United States of America

before THE FEDERAL SERVICE IMPASSES PANEL

)

In the Matter of )

DEPARTMENT OF THE AIR FORCE )

SCOTT AIR FORCE BASE )

SCOTT AFB, ILLINOIS )

and ) Case No. 91 FSIP 82

)

LOCAL R7-23, NATIONAL ASSOCIATION )

OF GOVERNMENT EMPLOYEES, SEIU, )

AFL-CIO )

3

DECISION AND ORDER

Local R7-23, National Association of Government Employees, SEIU (Union)

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, 5 U.S.C. § 7119, between it and the

Department of the Air Force Scott Air Force Base, Scott AFB, Illinois

(Employer).

After investigation of the request for assistance, the Panel determined

that the impasse concerning a 1986 reduction in force (RIF) should be

resolved through written submissions from the parties, with the Panel to take

whatever action it deemed appropriate to resolve the impasse. Written

submissions were made pursuant to this procedure, and the Panel now has

considered the entire record.

BACKGROUND

The Employer is headquarters for the Military Airlift Command (MAC),

which provides logistical military airlift services to activities of the

Department of Defense. Its mission is to provide support services, including

among others, supply, communications, personnel, medical, and commissary, to

MAC units stationed on the base. The Union represents two bargaining units;

only the appropriated-fund unit, consisting of approximately 2,500 General

Schedule (GS) and Wage Grade (WG) employees, is involved in this dispute.1/

GS employees work in a broad range of occupations including engineer,

1/ The second unit consists of approximately 500 nonappropriated-fund employees

who are covered under a separate labor agreement.

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engineering technician, contracting specialist, and computer operator or

specialist. WG employees hold such jobs as cook, waiter, sales store checker,

mechanic, child care provider, and custodial or store worker, among others.

They are covered by a collective-bargaining agreement (CBA) which is to

expire in April 1993.

The dispute arose during impact-and-implementation bargaining over a

1986 RIF at the base Commissary, which the Employer conducted after it

contracted out certain jobs without first negotiating with the Union.2/

Approximately 20 WG employees who worked as custodial or store workers were

affected by the RIF. Three issues remain for the Panel's consideration.3/

ISSUES

The parties disagree over (1) placement rights, (2) waiver of

qualifications for available positions, and (3) offers of

2/ In Department of the Air Force Scott Air Force Base. Illinois and National

Association of Government Employees .

Local R7-23, SEIU. AFL-CIO, 35 FLRA 844 (1990), the Authority found that

the employer violated §§ 7116(a)(1) and (5) of the Statute when it

issued RIF notices to bargaining-unit employees without first fulfilling

its obligation to bargain with the union over procedures for

implementing the 1986 Commissary RIF and appropriate arrangements for

affected employees. It ordered the parties to bargain, with the

resulting agreement to have retroactive application. Moreover, as an

additional remedy for the employer's unlawful conduct, the Authority

authorized a back pay award, conditioned on the outcome of bargaining,

for any bargaining-unit employee who suffered a withdrawal or reduction

in pay, allowances, or differential as a result of the RIF.

3/ In its request for Panel assistance, the Union indicated that the parties

were at impasse over its proposal which provided that Commissary

employees be returned to their previous positions should the contract

with the contractor be terminated in the future. Since the Union did not

include or discuss that proposal in its submissions to the Panel, we

will consider it as having been withdrawn. In its rebuttal statement,

the Union accepted the Employer's proposal on combining part-time

positions to create full-time positions when the latter are not

otherwise available to accommodate full-time employees whose positions

have been eliminated through the Commissary RIF.

full-time positions to part-time employees when no part-time positions are

available.

POSITIONS OF THE PARTIES

1. Placement Rights

a. The Employer's Position

The Employer proposes the following:

Each unit employee who is downgraded and entitled to grade

retention will receive mandatory promotion rights for 2 years

after which they will receive priority referral until they are

[]promoted to the grade from which they were downgraded. Each unit

employee who is downgraded and not entitled to grade retention

will receive priority referral until they are []promoted to the

grade from which they were downgraded. Each unit employee who is

separated because of [the] RIF will be placed on the Reemployment

Priority List and receive mandatory placement for a period of 2

years if they have career tenure, or 1 year if they are career

conditional.

The Panel should not adopt the Union's proposal, which is the policy the

parties agreed would be followed in future RIFs, because, on an earlier date,

the Union rejected the same proposal when made by the Employer to settle this

case. In this regard, the Employer notes that its earlier offer to settle

this issue by agreeing to what is now the Union's proposal was contingent on

the Union making specific concessions on the remaining issues.

b. The Union's Position

The Union proposes the following:

[The Employer shall] offer each employee affected by [the 1986

Commissary] RIF mandatory placement into the best position

available that would best minimize the impact on the employee in

accordanc[e] with applicable laws rules and the

collective[-]baraainina aqreement. This will include continued

mandatory referral and selection of RIFed employees beyond the

2-year grade retention period unless an exception is granted by

the Civilian

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Personnel Officer/desiqnee for good cause on a case-by-case basis.

Affected employees will be identified in priority I of AFR 40-300.

Attachment 2. The [E]mployer will apply this rule retroactively to

all employees who were adversely impacted by the [1986]

[C]ommissary reduction[]in[]force in such a manner that they will

not suffer from the retroactive application. The [E]mployer will

not adversely impact any current employees who may not now be

holding their current position[s] had the originally impacted

employees been placed as vacancies occurred.4/ [Emphasis added.]

This proposal is negotiable. The underscored wording is the placement

rights policy agreed to by the parties for future RIFs. The Union will not

agree to the same policy for the 1986 Commissary RIF in the absence of

assurances from the Employer that it would be applied retroactively.

4/ This proposal was proffered by the Union in its rebuttal statement in

response to the Employer's allegation in its initial submission that the

Union's original proposal was nonnegotiable because it (1) violated (a)

FPM Supp. 990-2, Book 536 and FPM Chapter 335, (b) the negotiated

Department of Air Force Regulation 40-300; and (2) interfered with

management's right to select the best qualified candidates for positions

it determined to fill. The Union's original proposal was the following:

[U]nit employees who are downgraded or separated [to] be

given permanent mandatory placement rights into appropriate

jobs as vacancies occur until each such employee attains

his/her grade back or refuses an appropriate offer to the

grade from which downgraded or separated

In support of the above proposal, the Union argued that (1) there are no

acceptable reasons for prescribing any time limitation for priority

referral and mandatory selection of RIFed employees for available jobs

for which they are qualified, and (2) the Employer could waive

qualification standards. The 2-year limitation for mandatory selection

provided for under Department of the Air Force regulations is "patently

unfair and arbitrary." Employees who were

(Continued)

CONCLUS IONS

Having evaluated the proposed provisions, we find that the Union's

provides an equitable basis for resolving the dispute concerning employees'

placement rights. In our view, this provision should protect the interests of

the Employer, Commissary employees RIFed in 1986, and current employees

alike. In this regard, continued employment with minimal economic impact is

of paramount interest to employees facing a RIF. The Employer, on the other

hand, has an interest in being able to select the best qualified individuals

to fill available positions. We are persuaded that both interests would be

served by requiring the Employer to provide RIFed Commissary employees with

job referrals and placements in conformity with the law and the CBA after the

expiration of the 2-year grade retention period, except for good cause as

determined by the Employer on an individual basis. Finally, over 5 years have

passed since the Employer implemented the Commissary RIF without first

bargaining with the Union. It is possible that there now are employees who

are (1) in better positions than they would have been had this provision been

in effect when the RIF was implemented, or (2) in their positions because

this provision was not in effect when the RIF was implemented. Since the

retroactive application of this provision as ordered by the Authority2/

undoubtedly is meant to help, not harm, employees, we believe that under the

circumstances of this case, wording should be included in the provision which

ensures that its retroactive application does not harm current employees,

whether or not involved in the 1986 RIF.

(Continued)

downgraded in the RIF retained grade for only 2 years; therefore, their

"need" for mandatory selection for vacant positions at their previous

grades was greater after those first 2 years following the RIF. In this

regard, since August 1988, the Employer has posted vacancy announcements

for WG positions with the same job titles and at the same grades as

those from which Commissary employees were RIFed. (It submitted listings

of these job vacancies.) Thus, "nearly all, if not all, of the impacted

employees would have [] their grade[s] and job[s] back" had the

mandatory selection policy which the Union proposes been in place at the

conclusion of the 2-year grade retention period.

5/ See supra note 2.

2. Waiver of Qualifications

a. The Employer's Position

The Employer proposes to give "sincere consideration to waiving or

amending nonmandatory qualifications" for available positions, if in its best

interest and that of the employees. The parties already have agreed to follow

this waiver policy for future RIFs, although the Union would not accept it in

settlement of the matter for the 1986 Commissary RIF. The Employer argues,

without explanation, that this policy is consistent with the Authority's

decision in National Treasury Employees Union and Department of Health and

Human Services.

Region X, X, 25 FLRA 1041 (1987) (NTEU). The Union's proposal, on the other

hand, is nonnegotiable because it would (1) "require management to waive

qualifications in every employee's situation;" (2) "prohibit management from

determining a candidate's qualifications;" and (3) "violate [management's]

right to select employees."

b. The Union's Position

Under the Union's proposal "waivers to qualifications [would] be granted

[to RIFed Commissary employees] where the mission [of the Employer] would not

be adversely impacted and where such waivers would be within the discretion

of management to grant." This proposed provision, which is similar to that

which will govern future RIFs, is an "appropriate accommodation" for affected

employees; therefore, the Employer's allegation that it is nonnegotiable

cannot be sustained. It promotes the retention of "experienced employees who

meet the basic X-118 standards and [] only need a little help to keep their

job[s]" without having an adverse impact on the Employer's mission. This is a

"sound management practice and makes for good morale."

CONCLUSIONS

Pursuant to the Authority's decision in Commander Carswell Air Force Base

Texas and American Federation of Government Employees. Local 1364, 31 FLRA

620 (1988), the Panel may resolve duty-to-bargain questions which arise in

the context of impasse proceedings by applying existing Authority precedent.

In this regard, we know of no proposal which is similarly worded to the

Union's which has been considered previously by the Authority. We will not,

however, decline to retain jurisdiction over this issue. We are persuaded

that, under the circumstances of this case, no useful purpose would be served

by doing so when, in its discretion, the Panel may order the adoption of a

provision which disposes of the Employer's nonnegotiability concerns while

retaining the intent of the

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Union's proposal.7/ Accordingly, we shall order the parties to adopt a

provision which allows the Employer to waive nonmandatory qualifications to

the maximum extent feasible, consistent with the needs of the agency to carry

out its mission.7/ This provision should ameliorate the impact of the RIF on

employees while still allowing the Employer to accomplish its mission in an

effective and efficient manner.

3. Offers of Full-time Positions to Part-time Employees

a. The Employer's Position

The Employer "w[ould] consider offering vacant full[-]time positions to

other-than-full-time employees in lieu of RIF separation or other RIF

actions," which is consistent with FPM Supp. 351-1, Subchapter S5, paragraph

S5-6c(1). The Union would not accept management's offer to settle this issue

by including Commissary employees RIFed in 1986 in the Scott Air Force Base

"job sharing program."

b. The Union's Position

The Union proposes that "part-time employees who are perma[n]ent be

assigned to vacant full[-]time positions that management intends to fill,

where qualified, and if there are no available appropriate part-time

positions after the full-time employees have been placed."8/ This proposal is

negotiable as an "appropriate accommodation" for affected

6/ 5 C.F.R. § 2471.11(a) (1991).

7/ In NTEU, supra at 1047-50, the Authority found a provision including

virtually identical wording to be negotiable as an appropriate

arrangement under § 7106(b)(3) of the Statute.

8/ The Union proffered this proposal in its rebuttal statement when the

Employer declared for the first time in its initial submission that the

Union's original proposal was nonnegotiable The original proposal

provided that the Employer assign "part-time employee who [were]

permanent [] to vacant full[-]time positions, if there [were] no

available appropriate part-time positions after full[-]time employees

h[ad] been placed." The Employer had argued that the proposal would

interfere with management's right to (1) select the employees who are

best qualified for the vacant positions and (2) not fill vacant

positions. In support of its position it cites the Authority's decision

in

(Continued)

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part-time employees. Also, there is precedent for such an accommodation in

the "job sharing program," which allows the Employer to "fill positions with

more than one employee."

CONCLUSIONS

After examining the parties' positions, we conclude that the Union's

proposal provides an adequate resolution to the matter.9/ In our view, the

Union's proposal balances the Employer's interest in retaining discretion to

fill full-time vacancies, if at all, in a manner that meets its operational

needs against part-time employees' interest in remaining employed.

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

proceedings instituted under

(Continued)

International Brotherhood of Electrical Workers. Local 2080 and

Department of the Army, Army Engineer District.

Nashville Tennessee, 32 FLRA 347 (1988) (Provisions 3 and 4). Also, FPM

Supp. 351-1, Subchapter 3, paragraph S3-3b(4) provides that

"[f]ull[-]time positions are in a different competitive level than

part-time positions[,]" which makes part-time employees ineligible for

mandatory placement into full-time positions.

9/ We note that the Authority has found proposals which are to the same affect

as the Union's in this case to constitute appropriate arrangements under

§ 7106(b)(3) of the Statute. See, e.g., American Federation of

Government Employees, AFL-CIO, Local 2635 and Naval Communications Unit

Cutler East Machias Maine, 30 FLRA 41, 43 (1987) (Proposal 1); and

International Plate Printers Die Stampers and Engravers Union of North.

America, AFL-CIO

Local 2 and Department of the Treasury, Bureau of Engraving

and Printing, Washinqton. D.C., 25 FLRA 113, 140 (1981) (Proposal 32),

among others. Although those proposals are not worded the same, they all

were construed by the Authority as allowing management to fill vacant

positions with qualified employees who would otherwise lose their jobs

because of a RIF, but only after management decides to fill those

vacancies.

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the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service

Impasses Panel hereby orders the following:

1. Placement Rights

The parties shall adopt the Union's proposal.

2. Waiver of Qualifications

The parties shall adopt the following wording:

The Employer shall waive nonmandatory qualifications to the

maximum extent feasible, consistent with the needs of the agency

to carry out its mission.

3. Offers of Full-time Positions to Part-time Employees

The parties shall adopt the Union's proposal.

By direction of the Panel.

Linda A. Lafferty

Executive Director

April 3, 1992

Washington, D.C.