United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF THE ARMY U.S. ARMY ARMOR CENTER FORT KNOX, KENTUCKY
and LOCAL 2302, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 98 FSIP 115

DECISION AND ORDER

    The Department of the Army, U.S. Army Armor Center, Fort Knox, Kentucky (Employer) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Local 2302, American Federation of Government Employees, AFL-CIO (Union).

    After investigation of the request for assistance, the Panel determined that the dispute, which arose from bargaining over the Employer’s proposal to discontinue using Room 118 in Building 2807 as a break room and convert it to an office, should be resolved on the basis of written submissions from the parties. After receiving their submissions, the parties were advised that the Panel would take whatever action it deemed appropriate to resolve the impasse. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.⁽¹⁾

BACKGROUND

    The Employer’s mission is to provide basic training and advanced individual training to armor soldiers. The Union represents a bargaining unit of about 2,200 employees. The parties are governed by the terms of a collective bargaining agreement (CBA), which is due to expire on January 15, 2001. The outcome of the dispute in this case will affect approximately 8 to 11 employees assigned to the Directorate of Logistics (DOL) who work as warehousemen, supply clerks, and secretaries. Currently, they use Room 118 as a break room. The dispute also concerns 17 employees assigned to the 16th Cavalry Regiment who work as wheel and track mechanics. They use Room 207 as a break room and, depending on the outcome of the instant case, may have to share it with the employees who currently use Room 118.

ISSUE AT IMPASSE

    The parties essentially disagree over whether Room 118 should continue to be used as a break room for DOL employees.

POSITIONS OF THE PARTIES

1. The Employer’s Position

    In its first submission, the Employer proposed the following:

Room 118 of Building 2807, currently used as a break room for some Directorate of Logistics employees will be converted to office space for military supervisors. Room 207, currently used as a break room for elements of the 16th Cavalry Regiment, will be made available for use of the employees of the Directorate of Logistics who used Room 118.

In its supplemental submission, it offers to modify its proposal by: (1) placing a refrigerator and microwave in the open break area designated as Room 126; and (2) if necessary, designating these items for the exclusive use of employees who previously used Room 118, who would also have access to Room 207 at their option. The latter would be accomplished by a directive from supervisors and, if necessary, placing a locking device on the refrigerator and giving keys to employees who used Room 118.

    Military supervisors currently use one stall of a bay in the maintenance work area as office space; the Employer needs that bay for maintenance work. Placing supervisors in Room 118 affords proximity to the personnel they supervise and interact with frequently during the day. Room 207 and a break area located in Room 126 would provide ample space for employees who now use Room 118. In this regard, Room 207 has 1,350 square feet of space with tables and seating for 60 people. In addition, employees’ alternative work schedules result in staggered use of the break rooms. Based on an Employer-conducted study of current use of break areas by employees, converting Room 118 to office space will not subject employees to crowding in the remaining break areas. Employees have only two breaks per day plus lunch, consequently, going upstairs to Room 207 is not burdensome. The employee whose physical problems make it difficult for her to use the stairs can be accommodated by putting a refrigerator and microwave in Room 126.

    Contrary to the Union’s assertion, the issue of relocating break rooms is not covered by the parties’ CBA. In fact, Article 49, Changes in Working Conditions, specifically recognizes that changes in break areas may be made during the term of the agreement, and that the Union must be provided with an opportunity to negotiate prior to their implementation.⁽²⁾ In addition, the Union’s proposal to use a portion of Room 207 as an office for military supervisors is not a suitable solution to the problem. In this regard, Room 207 does not lend itself to subdivision. Furthermore, it is on a different floor from the employees with whom the military supervisors interact. As to the problem of military personnel changing clothes in Room 207, management has instructed them to limit such activity to donning coveralls.

2. The Union’s Position⁽³⁾

The Union’s proposal is as follows:

This issue should be remanded back to the parties under the scope of the FLRA decision of the "covered-by" doctrine.⁽⁴⁾

The designation of Room 118 as a break room is "covered by" a signed agreement that the parties entered into in February 1998. Admittedly, the parties’ CBA does not specify the location of break rooms and the Union has negotiated regarding changes in the location of break rooms during its term. When the Union entered into those negotiations, however, it did not fully understand the FLRA’s covered-by doctrine. Additionally, insofar as Article 49 authorizes negotiations over changes in break areas, it relates to moves from one building to another, which is not the circumstance involved in this case.

    Regarding the merits of the issue, designating Room 207 as the break room for use by DOL employees would deprive current and future employees with disabilities that impede their use of stairs of full rest and lunch periods as provided for by Article 9 of the parties’ CBA. Currently, one employee who walks with a cane would have difficulty climbing the 22 stairs to the second floor. Furthermore, because it may not have a right to negotiate the conditions of employment of military personnel, allowing them to use the same break room as bargaining-unit employees would limit the extent to which the Union can negotiate about the break room. Moreover, the existing practice by male military personnel of changing clothes in Room 207 is problematic for female DOL employees using that room. Finally, because Room 126 lacks amenities such as tables, it is not a true break room or an adequate substitute for Room 118.

CONCLUSIONS

    Having reviewed the evidence and arguments provided by the parties, we conclude that the Employer’s proposal as modified in its supplemental submission provides the more reasonable solution to the parties’ dispute. Even assuming that the FLRA’s "covered-by" doctrine applies in these circumstances,⁽⁵⁾ we find that Article 49 of the parties’ CBA, on its face, specifically authorizes the Employer to make changes in working conditions such as break and lunch areas, provided the Union is given an opportunity to bargain over such changes. The February 1998 agreement between the parties regarding the designation of Room 118 as a break room, on which the Union relies, is simply one example of the bargaining contemplated by Article 49 and does not support the position that further bargaining over designation of break areas in Building 2807 is precluded.

    Turning to the merits of the impasse, the Employer has demonstrated that the use of Room 118 as office space by military supervisors would enable it to fulfill its mission in a more effective and efficient manner. On the basis of the record presented, we are persuaded that Room 207 is large enough to serve as a break room for the DOL employees in addition to employees of the 16th Cavalry. Moreover, the additional measures offered by the Employer, such as providing a refrigerator and microwave oven in Room 126 for the exclusive use of DOL employees, and restricting clothing changes in Room 207 to slipping on coveralls, appear to adequately address the concerns raised by the Union regarding their use of that room as a break area.⁽⁶⁾ For these reasons, we shall adopt wording consistent with the Employer’s proposal, as modified in its supplemental submission, to resolve the dispute.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

    The parties shall adopt the following wording:

Room 118 of Building 2807, currently used as a break room for some Directorate of Logistics employees, will be converted to office space for military supervisors. Room 207, currently used as a break room for elements of the 16th Cavalry Regiment, will be made available for use of the employees of the Directorate of Logistics who used Room 118. The Employer will also place a refrigerator and microwave in the open break area designated as Room 126. If necessary, these items will be designated for the exclusive use of employees who previously used Room 118, who will also have access to Room 207 at their option. This will be accomplished by a directive from supervisors and, if necessary, a locking device will be placed on the refrigerator and keys given to employees who used Room 118.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

September 24, 1998

Washington, D.C.

 

1.After receiving the parties’ submissions, it became apparent that the record needed to be supplemented. A conference call was conducted with the parties in which they were instructed to submit additional statements; both parties did so.

2.Article 49 provides in relevant part:

 

Section 49-1. The parties recognize that in addition to the provisions of this agreement, constant changes occur that impact on bargaining unit employees and management has the obligation and the union has the right to negotiate these changes before they are implemented. . . .

Section 49-2.

a. The employer agrees that, absent compelling reasons to the contrary such as short time constraints or sensitivity of information, the union will be provided an opportunity period during the formation of policies, practices or matter affecting conditions of employment of bargaining unit employees, to comment or provide input to the proposed change.

(1) Employee working conditions concern many different matters including such issues as the working environment and working hours. A contemplated move to a different building would affect employee working conditions. Organizational realignments and position abolishment, change in break or lunch areas, . . . are other examples of changes affecting working conditions. (Emphasis added.)

3.The Union also challenges the propriety of the Employer not having a representative from DOL participate in the process before the Panel, as had occurred in previous phases of the negotiations. Long-established Federal Labor Relations Authority (FLRA) precedent holds that it is within the discretion of both management and labor organizations to designate their representatives when fulfilling their responsibilities under the Statute. See American Federation of Government Employees, AFL-CIO, 4 FLRA 272, 274, (1980).

4.During negotiations, the Union had proposed that, in lieu of discontinuing use of Room 118 as a break room, the Employer should (1) conduct a space utilization survey to determine whether an alternative administrative space is available for military supervisors; or (2) convert some of the space in Room 207 to an office for military supervisors. Alternatively, it also proposed that no military personnel should be permitted to use the second floor break room.

5.In establishing the contained-in/covered-by framework, the FLRA specifically stated that it was intended “to apply only to cases in which an agency asserts that it has no obligation to bargain based on the terms of a negotiated agreement.” U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1016 n.7 (1993) (emphasis added).

6.Given the limited information in the record, the Panel makes no determination as to whether the employee the Union claims has limited ability to use stairs qualifies as an individual with a disability, or whether the Employer’s proposal would satisfy any contractual, legal, or regulatory requirements to provide accommodations for such individuals. If such questions remain, they may be pursued in an appropriate forum.