United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF THE ARMY WHITE SANDS MISSILE RANGE WHITE SANDS MISSILE RANGE, NEW MEXICO
and LOCAL 2049, NATIONAL FEDERATION OF FEDERAL EMPLOYEES	Case No. 92 FSIP 226

DECISION AND ORDER

    The Department of the Army, White Sands Missile Range, White Sands Missile Range, New Mexico (Employer), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and Local 2049, National Federation of Federal Employees (Union).

    After investigation of the request for assistance, the Panel directed the parties to meet informally with Staff Associate Harry E. Jones for the purpose of resolving the outstanding issues. The parties were advised that if no settlement were reached, Mr. Jones would notify the Panel of the status of the dispute, including the final offers of the parties and his recommendations for resolving the issues. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Mr. Jones met with the parties on September 9, 1992, at White Sands Missile Range, New Mexico. At that proceeding, the parties were unable to reach agreement on all outstanding issues. Mr. Jones has reported to the Panel, and it has now considered the entire record.

BACKGROUND

    White Sands Missile Range is a 4,000 square mile national missile testing facility located in southeastern New Mexico which employs approximately 3,900 civilian employees. The Union represents four separate bargaining units at the facility; they are all covered by a single collective-bargaining agreement which is due to expire in June 1993. The parties are at impasse following negotiations over the impact and implementation of a reduction in force (RIF), which is planned for September 30, 1992. Notices were sent to the affected employees on July 22, 1992;⁽¹⁾ approximately 71 employees are scheduled to be separated.

    For RIF purposes, the following are the existing competitive areas at the installation: (1) the Medical Unit; (2) the Atmospheric Science Lab and the Vulnerability Assessment Lab; (3) the Test Measurement, and Diagnostic Equipment Support Group (TMDE); (4) the Test and Evaluation Command (TECOM) -- Atmospheric Science Division; (5) the Information Systems Command (ISC); (6) the Commissary; and (7) Competitive Area I. Competitive Area I consists of TECOM⁽²⁾ and the Strategic Defense Command (SDC).⁽³⁾ Only employees in Competitive Area I and ISC (which is referred to as Competitive Area II) are affected by the RIF. According to the Employer's projections, 45 employees will be separated from ISC and 26 will be separated from Competitive Area I.

ISSUES AT IMPASSE

1. Scope of Competitive Areas for RIF Purposes

    a. The Union's Proposal

    The Union proposes the following:

Competitive Area I is the U.S. Army Test and Evaluation Command (except Directorate for Technology, Atmospheric Sciences Division), and U.S. Army Register of AMC Career Interns (S&E only) assigned to White Sands Missile Range, New Mexico.

The net effect of this proposal would be to establish a separate competitive area for SDC employees; this is consistent with the practice at the installation whereby separate competitive areas have been established for all other tenant activities. Moreover, there is precedent for placing former TECOM employees into other competitive areas; in this regard, a number of employees who were redeployed from TECOM to ISC were shifted from Competitive Area I into Competitive Area II. Finally, a separate competitive area for SDC would not change the ultimate outcome of this RIF; its creation would, however, provide greater protection for TECOM employees should SDC be downsized in the future.

    b. The Employer's Proposal

    The Employer's proposal is as follows:

Competitive Area I is the U.S. Army Test and Evaluation Command (except Directorate for Technology, Atmospheric Sciences Division), U.S. Army Register of AMC Career Interns (S&E only), and U.S. Army Strategic Defense Command elements assigned to White Sands Missile Range, New Mexico.

In essence, the Employer proposes to maintain the status quo. Since HELSTF employees were part of Competitive Area I when HELSTF was an organizational component of TECOM, the employees were merely continued as part of that competitive area when they were reassigned to SDC. Under the Employer's plan, placement opportunities would be maximized for senior employees in both TECOM and SDC in the event of a RIF. Moreover, maintaining the status quo when a RIF is imminent is the best approach, since employees have based their expectations on the existing arrangement. Overall, the Union's proposal is unacceptable, as it seeks to protect TECOM employees at the expense of senior SDC workers.

CONCLUSIONS

    Having considered the evidence and arguments on this issue, we conclude that the dispute should be resolved on the basis of the Employer's proposal. In our view, the existing arrangement provides the greatest number of placement opportunities for senior employees of both TECOM and SDC in the event of future RIFs. It is also consistent with the widely-accepted principle of labor-management relations whereby more senior employees are retained during periods of reduced operations.⁽⁴⁾ Moreover, a change in the composition of competitive areas when a RIF is imminent is unfair, as employees have based their expectations on the status quo; in this vein, as we have stated previously, a change in the existing competitive areas under these circumstances should be made only with the highest degree of justification.⁽⁵⁾ Finally, modification of the status quo at this point would be administratively burdensome, as the Employer would have to rerun the RIF, thereby resulting in delay beyond the target date of September 30, 1992. For these reasons, we shall order adoption of the Employer's proposal.

2. Conduct of Cost Studies Prior to the RIF

    a. The Union's Proposal

    The Union proposal is as follows:

Because the effort by management did not satisfy the regulations as the Union interprets them, the Union proposes, consistent with existing Army regulations, that cost studies be conducted prior to the RIF. This is consistent with Article 5 of the collective-bargaining agreement which requires the parties to be governed by all existing Department of the Army rules and regulations. The RIF should be stayed pending the completion of these cost studies.

The Union maintains that cost studies are required by existing Army regulations.⁽⁶⁾ Its proposal, therefore, would be consistent with Article 5 of the collective-bargaining agreement which requires the parties to be governed by all existing Department of the Army rules and regulations.⁽⁷⁾ More importantly, cost studies and manpower audits would identify alternatives which may achieve the same cost savings without the need for a RIF. The proposal does not interfere with management's right to conduct a RIF, but would only require the Employer to consider alternative courses of action. Since the Employer has not examined any alternatives, its approach has fueled speculation that certain individuals have been targeted for separation; this, in turn, has had a negative impact on morale. For the Union's proposal to have any impact, staying the RIF is necessary to allow sufficient time for the cost studies to be performed.

    b. The Employer's Position

    The Employer urges the Panel to reject the Union's proposal and allow the RIF to proceed as scheduled. Contrary to the Union's position, there are no existing regulations which require the performance of cost studies. Regardless, the RIF was not approached in a haphazard fashion, but rather, a specific methodology was followed to determine the appropriate manpower needs and organizational structure in light of the installation's budgetary restrictions.⁽⁸⁾ Further cost studies would only result in delay, which, in turn, may require a larger number of employees to be separated when the RIF is implemented. Moreover, there is no guarantee that cost studies would lead to a different result; therefore, requiring them would result in a waste of resources. Since the current RIF plans were approved at the highest level of the organization, other alternatives are unlikely to be adopted.⁽⁹⁾

CONCLUSIONS

    Having considered the evidence and arguments presented by the parties on this issue, we conclude that the dispute should be resolved on the basis of the Employer's position. In our view, none of the regulations cited by the Union appear to require the Employer to conduct cost studies prior to arriving at a decision to conduct a RIF. In any case, the documents provided at the informal conference reflect that a painstaking analysis of the organization was undertaken in response to mandatory budget reductions. If anything, the evidence demonstrates an attempt by management to minimize the number of separations yet still operate within the confines of its budget. While we are sympathetic to the plight of employees whose positions are earmarked for elimination, further cost studies would only delay the inevitable, and may ultimately require a larger number of employees to be separated at some future date. As there is no guarantee that such studies would either lead to a different result or satisfy the concerns of the Union, we shall order the Union to withdraw its proposal.

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 the proceeding 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:

1. Scope of Competitive Areas for RIF Purposes

    The parties shall adopt the Employer's proposal.

2. Conduct of Cost Studies Prior to the RIF

    The Union shall withdraw its proposal.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

September 16, 1992

Washington, D.C.

 

1.The Union has filed an Unfair Labor Practice (ULP) charge with the Federal Labor Relations Authority (FLRA) alleging that the Employer violated the Statute by failing to bargain in good faith. More specifically, the Union maintains that the Employer mailed out RIF notices, which are required by Office of Personnel Management (OPM) regulations, prior to the completion of bargaining. The charge (DA-CA-21195) is currently pending in the Dallas Regional Office.

2.TECOM is the host command at the installation. It includes security guards, as well as the Wage Grade and General Schedule employees assigned to this command.

3.SDC was formerly composed of two separate components: (1) the High Energy Laser Systems Test Facility (HELSTF); and (2) the Ground Based Laser Project (GBL). HELSTF was formerly part of TECOM, with HELSTF employees included in Competitive Area I. Sometime in late 1989 or early 1990, an organizational change occurred, and HELSTF was made part of SDC. As part of a "Civilian Personnel and Equal Employment Opportunity Servicing Agreement" between SDC and White Sands Missile Range, effective October 1, 1990, both GBL and HELSTF employees were placed, by the unilateral action of the Employer, in Competitive Area I. GBL was dissolved in July 1991; RIF procedures were implemented, and GBL employees were placed in vacant TECOM bargaining-unit positions. Thus, the only SDC employees remaining at White Sands are those assigned to HELSTF.

4.This approach is consistent with prior Panel decisions on this issue. See, e.g., Department of Defense, Defense Contract Audit Agency, Northeast Region, Lexington, Massachusetts and DCAA Council of Locals No. 163, American Federation of Government Employees, AFL-CIO, Case No. 92 FSIP 83 (August 12, 1992), Panel Release No. 334; Department of the Army, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma and Local 273, National Federation of Federal Employees, Case No. 91 FSIP 213 (December 26, 1991), Panel Release No. 322; Department of the Army, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina and Local 1214, National Federation of Federal Employees, Case No. 91 FSIP 76 (March 15, 1991), Panel Release No. 308; and United States Federal Trade Commission, Washington, D.C. and Local 2211, American Federation of Government Employees, AFL-CIO, Case No. 90 FSIP 86 (November 20, 1990), Panel Release No. 302.

5. See Department of the Army, Letterkenny Army Depot, Headquarters, U.S. Army Depot System Command, Chambersburg, Pennsylvania and Locals 1429 and 1442, National Federation of Federal Employees; Local F-170, International Association of Firefighters, AFL-CIO; and Local 358, International Brotherhood of Police Officers, AFL-CIO, Case No. 90 FSIP 176 (September 21, 1990), Panel Release No. 299. See also Department of Agriculture, Agricultural Research Service, Plum Island Animal Disease Center, Greenport, New York and Local 1940, American Federation of Government Employees, AFL-CIO, Case No. 91 FSIP 198 (August 30, 1991), Panel Release No. 317. 

Although the Union maintains that it only became aware of the existing competitive area arrangement on June 25, 1992, there is documentary evidence in the record which leads us to a different conclusion. In response to a Union request for information dated March 20, 1991, the Employer provided, on April 4, 1991, a document entitled "Reduction-In-Force (RIF) Local Rules." This document clearly establishes that at that time, SDC and TECOM were included in the same competitive area. Although the Union could have requested mid-term negotiations over the issue at that time, it apparently sat on its rights until negotiations over the instant RIF began in May 1992.

6.The Union cites the following Army regulations: 

AR 570-4, Manpower Management (September 25, 1989), Paragraphs 1-5, 1-7, and 5-8; 

AR 570-4, Manpower Procedures Handbook (April 1974), Section III, Paragraphs 1-4, 1-5, and 1-6; 

AR 5-3, Installation and Management Organization (November 10, 1986), Paragraphs 1-4 and 4-15; and 

Unspecified portions of Army Regulation 690-501.

7.That section provides, in relevant part, as follows: 

The Employer and the Union agree that in the administration of all matters covered by this agreement, the parties and employees are governed by: 

* * * * 

c. Department of Defense and Department of Army rules and regulations in existence at the time this agreement is approved; and 

d. subsequently issued rules or regulations which do not conflict with the terms of this agreement.

8.At the informal conference, the Employer submitted several hundred pages of documents which, in its view, provide evidence of the organizational analysis which was conducted to determine manpower requirements.

9.In a memorandum dated July 20, 1992, the Director of Civilian Personnel Management, U.S. Total Army Personnel Command, advised the Commander of White Sands Missile Range: 

Your request for clearance to conduct reduction in force action at the White Sands Missile Range has been coordinated with appropriate [Headquarters, Department of the Army] staff elements. You may proceed in accordance with your schedule.