The Department of the Air Force, Peterson Air Force Base, Peterson AFB, Colorado (Employer) filed a request for assistance with the Federal Service Impasses Panel to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute between it and Local 1867, American Federation of Government Employees (AFGE), AFL-CIO (Union). After investigation of the request for assistance, which involves negotiations over a successor collective bargaining agreement (CBA), the Panel asserted jurisdiction and directed the parties to mediation-arbitration with the undersigned.

    The request for assistance concerned 14 articles containing about 75 disputed issues. Bargaining over a successor agreement took place over a period running from September 25, 1996, through April 17, 1997, totaling about 111 hours. Thereafter, the parties participated in mediation with the Federal Mediation and Conciliation Service over a period from April to December, 1997. The case was filed with the Panel on March 9, 1998. The parties agreed to cooperate in a procedure whereby they each identified five issues as most important, with these to be resolved through a mediation-arbitration procedure by a Panel representative. The 7 articles identified in this process, containing approximately 35 issues, were submitted to the undersigned as the designated Mediator-Arbitrator. Under this procedure, as to any issue requiring resolution by the Arbitrator, the Arbitrator is limited to selecting from between the parties’ final offers on an article-by-article basis insofar as the proposals are otherwise legal.⁽¹⁾

    The mediation-arbitration proceeding commenced on July 22, 1998, at Peterson Air Force Base and adjourned on the evening of July 23. As a result of mediation efforts, the parties succeeded in reaching agreement on all articles and issues⁽²⁾ except: Article 6 (Official Time)(two alternative articles are proposed by the parties) and Article 2(C), a section of the article on Employee Rights and Responsibilities that addresses outside employment. On these matters remaining at impasse, the parties had the opportunity to submit factual evidence and make arguments in support of their proposals. The parties submitted their final offers to the Arbitrator on July 30, 1998. These final offers reflect continued movement by the parties.

    The parties were unable to resolve issues concerning: (1) the conditions under which unit employees should have to report outside employment in advance (Article 2(C)), and (2) a variety of official time matters (Article 6).

I. ARTICLE 2, EMPLOYEE RIGHTS AND RESPONSIBILITIES, Section C

    Both parties' final proposals contain identical language making employees accountable for meeting prescribed standards of conduct and allowing for agency intervention in private activity only when such activity interferes with the ability to perform, appears to create a conflict of interest or may reasonably be expected to bring discredit or criticism of the employee or the Air Force. The parties’ positions regarding their disagreement in the area of outside employment are as follows.

    a. The Employer's Position

    The Employer's final proposal is to require bargaining unit employees to inform supervisors of involvement in any outside employment so that a determination can be made about the propriety of that employment under the criteria described above. The Employer acknowledges that bargaining unit employees are not required by law or regulation to gain approval of outside employment, but relies on regulations authorizing the Employer to exercise its discretion to impose such a requirement. There is a desire to bring this bargaining unit into conformity with the rest of the civilian employees at the base, who are required to report outside employment. The Employer believes it is to the employees' advantage to have the benefit of a legal opinion about outside employment rather than having them act at their peril.

    b. The Union's Position

    The Union's final proposal is to retain the language of the current contract stating that employees may engage in outside employment without a requirement to report such activity unless required by law, Office of Personnel Management directives or National security requirements (the latter two sources are additions to existing language).

    The Arbitrator adopts the Union's final proposal on Article 2(C). No information or evidence was submitted demonstrating that outside employment has been or is expected to be a problem with the members of this bargaining unit. Most of them are in the Air Force Reserve which leaves little time for any other off-duty activity. The Employer indicated that some people are self-employed as mechanics in engine repair but cited no way in which this has been problematic. The Union has agreed to make explicit in the contract the criteria which would justify the Employer taking action with regard to outside employment where there is a demonstrable problem with an employee. There was no explanation of how the lack of uniformity about advance reporting of outside employment has created difficulties. The members of this bargaining unit have not been subject to this requirement and plainly do not view the imposition of such a requirement as a measure for their benefit but as an unwarranted interference in their personal lives. Considering all of the above, the Arbitrator does not believe a case has been made for ordering this new requirement.

II. ARTICLE 6, STEWARDS REPRESENTATION AND OFFICIAL TIME

    The parties's final offers for this Article have moved the proposals much closer together. The Article proposed by each party covers the gamut of official time issues including the amount of allowable official time, procedures for release, and so on. On much of this, there is virtual or near agreement. Both proposals exclude from official-time blocks time for contract negotiations, partnership, wage surveys, and agency committees. The key differences that keep the parties apart on this Article are outlined below. There are other variants such as in the amount of notice time or the number of pay periods for "making up" canceled official time (the Union makes it the next two pay periods, the Employer the current and next one) but these are not major differences. The basic procedures for release -- requiring requests in advance under normal circumstances, and information to the supervisor about the duration and purpose of official time -- are nearly identical, the Union having incorporated much of this portion of the Employer’s proposal.

    a. The Employer's Position

    b. The Union's Position

    There is to be a single primary representative to deal with major issues and contract administration who is the PAFB complex vice president or designee. This primary representative will have official time of up to 6 days (48 hours) per pay period. Added to the list of activities excluded from the official time limit, is acting on behalf of the Union in Weingarten meetings, formal discussions and other meetings called by the Employer. The Union provides that other representatives may use official time in an amount that is "reasonable, necessary and in the public interest." Union representatives "may have their regular shifts adjusted in order to facilitate the parties' obligations under this agreement."

    The Arbitrator adopts the Union final proposal for Article 6. The most important interest asserted by the Employer was to spread the primary representation work between two people to avoid the situation of a Union representative’s being off the job more than half the time. Experience with a former representative created the concern with limiting the amount of time any one person can use. Given the small size of work units, this concern is understandable. The Union acknowledges the burden that can be created for other employees.

    The difficulty is that at the time of the hearing this bargaining unit did not have even one primary representative from among its members, and the Union resists having the contract dictate the number of primary representatives, particularly under those circumstances. With the final offers as they are, under the Employer proposal, if there is no "alternate," the Union will have primary representation of no more than 5 days of official time per pay period (20 hours per week). Under the Union proposal, the limit is 6 days, but with the difference that there is no limit on the number of days in any one week of the pay period. If there were two primary representatives, the Employer would actually allow 3 additional days of official time per pay period.

    With the Union having arrived at the conclusion that a single primary representative with up to 60 percent official time is sufficient, and having incorporated advance request procedures and requirements for providing information to supervisors, the Arbitrator is of the view that there are sufficient safeguards and procedures to recognize bona fide concerns by the Employer without dictating a split in the primary representative role in this bargaining unit. Given that there are activities covered by official time that fall outside the block of allowable time under both proposals, nothing can ensure that a Union representative will not in a given week spend the bulk of his or her time on representational responsibilities. The real keys are as much advance notice as possible by the representative, flexibility by the Employer, and cooperation by both parties to deal with problem situations. The Union’s proposal commits both parties to that approach and reserves with the Employer the discretion to disapprove the use of official time for mission-related reasons.

    With regard to other representatives -- stewards -- there is nothing in the record to suggest that "reasonable" has not worked as a sufficient standard. As to shift adjustments, the Union language allows rather than mandates them to be made ("may"), which is very close to the Employer's approach of "encouraging" adjustments by supervisors. As to the added activity which is outside the defined "block" of allowable official time, the record does not reflect a large amount of disciplinary activity in this bargaining unit (to the contrary) and it is unlikely that this category of Employer-instigated meetings would amount to much official time. Clearly, the official time use by the former representative that concerned the Employer was not of this type.

    The Union's proposal meets the Employer's concerns and interests and encourages mutual efforts to address problems if they arise while leaving the "staffing" of the primary representative responsibility to the Union. The Arbitrator is persuaded that this is preferable to the Employer's approach.

    The parties shall adopt the following to resolve the impasse over Article 2, Section (C) and Article 6 in its entirety:

I. Article 2(C)

    The parties shall adopt the Union's proposal.

II. Article 6

    The parties shall adopt the Union's proposal.

Mary E. Jacksteit

Arbitrator

September 4, 1998

Takoma Park, Maryland

1. Under the Panel's procedural order, the remaining issues are to be taken up by the parties and if not resolved by mutual agreement, submitted for private mediation-arbitration with the cost to be shared by the parties. The Panel's goal was to create momentum towards agreement during the Panel proceeding that will enable the parties to reach agreement on the remainder of the contract by their own efforts. The Arbitrator hopes that expectation will be realized.

2.Agreement was reached on: other portions of Article 2, Article 3 (Union Rights and Responsibilities), Article 23 (Performance Management), Article 30 (Discipline and Adverse Action), Article 32 (Arbitration), and Article 41 (Reduction in Force).