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In the Matter of
The Department of the Army
Fifth U.S. Army
Fort Sam Houston
Texas
* Case No. 96 FSIP 81
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and
National Federation of Federal Employees Local 28
ARBITRATOR'S OPINION AND DECISION
Arbitrator Edward F. Hartfield Appointed by the Federal Service Impasses Panel Decision Transmitted October 3, 1996
ARBITRATOR'S OPINION AND r)DECISION
BACKGROUND
The National Federation of Federal Employees, Local 28, AFL-CIO, (the Union), pursuant to the Federal Service Labor Management Relations Statute (Statute) filed a request for assistance with the Federal Service Impasses Panel (FSIP or Panel) to consider a negotiation impasse involving four articles in dispute in successor agreement negotiations between it and the Fifth Army, Fort Sam Houston.
The Panel ordered the parties to submit the unresolved issues to telephone "med-arb" by the undersigned. A teleconference was scheduled for July 22, 1996 for the purpose of engaging in mediation efforts. The parties were advised that any issues not resolved at the end of the mediation process would be decided in arbitration.
Acting in a mediator capacity, the undersigned mediated via telephone with the parties on July 22-23, 1996. At the conclusion of the telephone session on July 23, the parties had made some progress on several of the issues, but none were resolved in their entirety. Therefore, the undersigned directed the parties to submit their final proposals and any arguments and evidence relating to their cases to the Arbitrator by 5:00 p.m. on August 23,1996. Given the progress that they had made during the telephone portion of the mediation-arbitration, the Arbitrator also encouraged the parties to utilize the time to attempt to resolve as many of the issues as possible during the 30 days before they had to submit their arbitration cases.
The parties both made timely submissions of the unresolved issues, notifying the Arbitrator that in the interim, they had been able to resolve two of the four issues.
ISSUES AT IMPASSE
The parties are at impasse over the following issues and articles: 1) Facilities and Services Provided to the Union, specifically, posting and distribution of Union literature, Article 7, section 3; and, 2) Hours of Work (Alternative Work Schedule), Article 16.
PARTIES' POSITIONS AND CONCLUSIONS~UNIONS
ARTICLE 7: FACILITIES AND SERVICES PROVIDED TO THE UNION
Employer's Position
The Employer seeks to include a new Section 3 in this article which would prohibit the Union from using the Employer's internal distribution system or posting on its bulletin boards material which it feels is "factually inaccurate or goes beyond reporting about, or calling into question, the actions of an employee or manager and is designed to hold said employee or manager up to public contempt or ridicule". The Employer is concerned with the Union newsletter The Outpost, in which the names of specific individuals are critically mentioned.
Union's Position
The Union asserts that the Employer's proposal is non-negotiable since by asking the Union to remove all supervisors and the Employer officials' names, not just the ones from the Fifth Army, it goes beyond the bounds of the Fifth Army and involves other bargaining units and activities. The Union notes that the Employer declined to negotiate on this proposal during the interim between the telephone mediation-arbitration despite the interest of the Union in working on this issue. The Union's proposal offers "to voluntarily remove the names of 5th Army management officials and supervisors from the 'Jeers' section of the Local 28 newsletter, The Outpost, and other sections of the newsletter". The Union also agrees that "any portrayal of events/issues will be accurate and factual. In return, the Union seeks to have the Arbitrator:
1) impose a Partnership relationship between the parties;
2) order the 5th Army to fund and resource Partnership training for both
parties;
3) order the right to grieve perceived violations of the Partnership; and
4) order the Employer to withdraw its proposal of a new section 3 to Article 7.
Conclusion
This Arbitrator is at a loss to explain the Union's thinking and its proposal on this issue, since they seem to conflict with one another. If the Union is sincere in its desire to engage the Employer in a Partnership, as it indicated to the undersigned during the telephone negotiations, then it is difficult to explain its reliance on publicly attacking and embarrassing the Employer in its newsletter. Among other things, the use of this tactic simply does not send the Employer a clear and consistent signal about its desire to enter into a Partnership, nor does it provide much of an incentive to the Employer to do so. Furthermore, publicly ridiculing
DECISION
For the reasons noted above, I order the adoption of:
1. Article 7 Facilities and Services Provided to the Union:
The Employer's Proposal:
The use of the employer's facilities by the Union will not be available for posting or distribution of material that is factually inaccurate or goes beyond reporting about, or calling into question, the actions of employees or managers and is designed to hold said employee or manager up to public contempt or ridicule.
2. Article 16, Hours of Work
(3a) If the Employer disapproves the implementation or the continuance of an alternative Work Schedule, the parties will comply with the requirements of the Federal Employees Flexible and Compressed Work Schedules Act. As provided under the Act, pending the decision from the Federal Service Impasses Panel, employees will continue on their elected schedule.
(9a) The Employer will notify the Union, if at all possible, prior to determining that an emergency exists, and consult with the Union regarding any need for suspending the Alternative Work Schedule within 24 hours of the notice.
(11) The parties are ordered to withdraw their proposals on this section.
Respectfully Submitted,
=~. ~
Edward F. Hartfield, Arbitrator
(Date)
Southfield Michigan
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FOOTNOTES
1. Additionally, the Employer cites Panel Case No. 95 FSIP 032, Department of the Army. U.S. Army Garrison Fort Sam Houston Texas and Local 28 NFFE as a case in which the Panel declined to assert jurisdiction under the Act over an issue relative to the termination of compressed work schedule for four bargaining unit positions assigned to the Troop Issue and Subsistence Activity, Directorate of Logistics, U.S. Army Garrison. Contrary to the Employer's assumption, the Panel did not decline to assert jurisdiction in this case. The union in that case, withdrew the case during the initial investigation.
specifies that if the Employer disapproves the implementation or the continuation of an alternative work schedule, the parties will comply with the requirements of the Act, including the requirement that employees continue on their elected schedules while the matter is pending before the Panel. In Section 9, while the Arbitrator is supportive of the parties embracing of the "expedited negotiation procedure" addressing how the AWS should be handled during emergencies, I shall order the adoption of language Which, mirrors the spirit, but not the letter, of the parties' proposals, and requires the Employer to notify and consult with the Union, if at all possible, prior to declaring that an emergency exists. As was the case above, where I declined to order the adoption of language which would waive the Union's right to bring to the Panel questions regarding the implementation or termination of alternative work schedules, neither can I order the adoption in this section of language which interferes with the Employer's right under the Statute to determine emergencies and take whatever actions it deems necessary to carry out its mission. With respect to Section 11, I shall order the parties to withdraw their proposals, as the matter is adequately addressed under the existing provisions of the Statute and the Act.
proof to demonstrate that its mission is suffering an adverse impact because of the AWS. In its proposal, the Employer appears to be suggesting that its mission may be regularly impacted by emergencies and critical situations, and therefore is asking for a carte blanche to suspend an AWS whenever it sees fit.
The Employer should have considered that situation before agreeing to the pilot. It now appears to be either getting cold feet about implementing the AWS, or attempting to place so many restrictions on the AWS that the AWS pilot may, in the Arbitrator's view, be rendered ineffective and useless. If, after implementation of the pilot, the Employer finds that the frequencies of emergencies and other critical mission activities are so prevalent that its overall mission effectiveness is hampered, then it has the responsibility under the Act to assemble evidence supporting its claim and present it to the Panel. It should be noted that the Act requires the Panel to issue decisions within 60 days in impasses involving termination of AWS. The Employer should not be attempting to circumvent its responsibilities under the Act by having the Arbitrator rule on what will happen in emergencies up front. The Arbitrator is confident that the Employer is aware of the fact that under 7106 (a) (2) (D) of the Statute, it already has the right to determine that an emergency has occurred and to take whatever actions it deems necessary to carry out its mission.
The third and final disputed section of the Hours of Work Article revolves around the methods of dispute resolution and the status of employees while the issues are being resolved. This section must be consistent with the determination in section 3 above. The Union's proposal asks that employees continue on their elected schedule pending a decision by the Panel, and differs from the Employer's in that the Employer is proposing that only those AWS issues affecting the entire Activity be sent to the Panel.~
In my view, there is need to distinguish between disagreements over whether an AWS should be implemented or terminated and otherwise grievable issues. Decisions over the implementation or termination of an AWS fall under the protection of the Act, and therefore are reserved to the Panel. Once an AWS is in place, the parties may agree that decisions by supervisors on the schedules of individual employees are grievable issues. It is permissible for the Employer to attempt to place certain issues under the grievance procedure, as they have done in part of its proposal in section 3 involving those issues where individual supervisors can decide to deny a 5-4-9 or other alternative work schedule to an individual employee. However, once an alternative work schedule has been implemented for a discrete functional unit, even if there is only one bargaining unit employee in that unit, decisions over whether the AWS should be continued for that unit fall under the Act, and if the Union disagrees with the determination that an adverse agency impact has occurred, the Employer bears the burden of proof before the Panel as noted above.
Therefore, after having carefully reviewed the arguments, evidence, and proposals in this issue, I shall order the adoption of language in Section 3 which
Conclusion
At the outset, the Arbitrator commends the parties for their collaboration on this article, during the med-arb teleconference, during their subsequent negotiations prior to filing their final positions, and in the modifications reflected in those final positions. In particular, their concept of an expedited negotiation procedure for handling these types of cases is innovative not only from a collective bargaining perspective, but also given the unique mission of the 5th Army: responding to national emergencies and mobilizations.
The parties agreed on their own to the majority of this article, leaving only 3 sections in dispute. The first section in dispute involves the question of how to resolve differences when the Employer disapproves an AWS. The Union proposes that determinations involving an entire Directorate or its equivalent should be sent to the Panel for a determination of adverse agency impact, while the Employer proposes that the Panel address only those determinations that affect the entire activity, and that all other determinations be handled through the grievance procedure. The Employer's argument is based upon the fact that acceptance of the Union proposal "would cause the Panel to become involved in decisions affecting one, two, or three employees". A review of the Agency's organizational structure and staffing information submitted by the Employer shows that 2 of the 7 directorates have either 0 or 1 bargaining unit employee, while the other 5 directorates have 5 to 19 bargaining unit employees. Of the 12 staff offices, only 1 of them, the Office of Public Affairs, has more than 2 bargaining unit employees.
While it may not be expedient or cost- effective, as the Employer argues, for the Panel to become involved in cases involving 1, 2, or 3 employees, adoption of the Employer's proposal here would restrict the Union's bargaining rights under the Federal Employees Flexible and Compressed Work Schedules Act (Act). The Act is clear in providing access to the Panel in questions involving the implementation or termination of an alternative work schedule. Accordingly, absent the Union's voluntarily agreeing to do so, I am unwilling to impose upon it a waiver of its statutory rights under the Act.
The second section in dispute, Section 9, involves the temporary suspension of AWS in cases of emergency, and the time frames for negotiation of the suspension. It should be noted at the outset that not only do the parties disagree on the definition of emergency, but the Employer's proposal seeks both a broad authority to suspend the AWS " as necessary to meet the exigencies of mission requirements, emergencies, or when mobilization occurs", and alternatively, "whenever a mission is time sensitive and critical". The parties agree on the concept of an "expedited negotiation procedure", but the Employer wants the ability to implement a suspension to meet the contingency while continuing negotiations with the Union.
This is a particularly significant issue for the parties in light of the fact that the mission of the 5th Army revolves around responding to emergencies and mobilizations. Nevertheless, once the Employer has agreed to an AWS Pilot, as it has in this case, the Act is clear in requiring that the Employer has the burden of
it may well lose the right to post its materials on the Employer's bulletin boards and distribute them through the Employer's internal distribution system. Perhaps more significantly, the continuation of additional personal attacks may well signal the Employer that the Union is neither ready for nor serious about a Partnership.
Therefore, in light of the above discussion, and having carefully weighed the arguments, evidence, and proposals presented to me, I shall order the adoption of the Employer's proposal on this issue.
Article 16: Hours of Work
Emplover's Position
While the parties agree that the Panel should resolve disagreements over the Alterative Work Schedule for the activity as a whole, the Employer believes that disputes involving Directorates of the activity or individual employees should ultimately be resolved through the grievance procedure, rather than by the Panel. (Section 3)
In Section 9, the Employer wants to be able to suspend the AWS "as necessary to meet the exigencies of mission requirements, emergencies, or when mobilization occurs". While the parties agree in principle over the concept of an "expedited negotiation procedure" to address temporary suspensions of the AWS in such cases, they do not agree over what constitutes an emergency and additionally, the Employer wants the authority to implement the temporary suspension if the parties are unable to agree on it in negotiations.
Finally, in Section 11, the Employer wants to reinforce its ability to discontinue the AWS for individual employees and determinations that are less than activity-wide while the matter is resolved in the grievance procedure.
Union's Position
The Union proposes that disapprovals of the AWS for an entire Directorate or the equivalent should be sent to the Panel for a determination of adverse impact. (Section 3)
In Section 9, the Union agrees with the Employer that the parties should meet on an expedited basis during times of emergency, stating that the parties should agree to meet and negotiate "as soon as possible". However, they want the determination of the negotiations to govern whether the AWS should be suspended for the incident or situation in question.
In Section 11, the Union's proposal that employees will continue on their elected schedule pending the determination of the Panel is based on its desire to have all determinations of AWS involving "a Directorate or its equivalent" decided by the Panel.
management representatives in its newsletter violates one of the fundamental premises of an interest-based approach, "Focus on the issue, not the people", which provides the foundation of the Partnership the Union states that it wants.
Moreover, the expectation in the Union proposal that the Arbitrator would impose Partnership on the parties is both unrealistic and completely at odds with the essence of a Partnership relationship, which two parties choose to enter voluntarily because it will improve their relationship and advance their mutual interests.
Nevertheless, while not adopting the Union proposal and imposing Partnership on the parties, I am inclined to strongly encourage the parties to make the commitment to undergo Partnership training and enter into that kind of labor management relationship. Partnership is designed to provide the regular communication, information-sharing, and problem-solving on a proactive basis that greatly enhances most parties' mutual understanding and respect, two things which seem to be lacking in this relationship. Since the Employer agrees to work on Partnership separate from this Article, both parties are strongly encouraged to make this a priority activity in their relationship.
The Union has raised a concern about the negotiability of the Employer's proposal, based upon requiring the Union to refrain from attacking all management officials, not just those of the Fifth Army. The Arbitrator dismisses this concern as irrelevant. First, while that language may have been discussed during negotiations between the parties, the Employer's final proposal does not contain that reference. Second, the real issue here is whether there are going to be any standards on what the Union can expect to post on the Employer's facilities or distribute within its internal distribution system.
With respect to the issue of whether the Employer's proposed Section 3 should be included in this Article, there is a balance that should be considered between the Union's right to compose its newsletter as it sees fit, and the Employer's right to restrict the use of its facilities to distribute material which it finds objectionable. There are other balances involved as well. While the Union may have a protected right to create a newsletter which is critical of the Employer's policy, along with the right to represent and communicate with Union members, the Arbitrator is aware of no statutory right to use an agency bulletin board, and posted material may be subject to negotiated restrictions and limitations.
The Employer's proposal does not restrict the Union's right to free speech in any way; it does restrict the Union from posting on or distributing materials in the Employer's distribution system. The real issue, based on the evidence submitted, is what the Employer is required to tolerate in its own facilities. Had the Union not already demonstrated the type of attack about which the Employer is concerned, I might be tempted to order the Employer to withdraw its proposal. In addition, the Union has alternative means of distributing its materials, namely hand drops and the postal system.
It strikes this Arbitrator that the proverbial ball is in the Union's court. Having won the right to use the internal distribution system in section 1 of this Article, the Union now has to measure what is more important to it: if it chooses to continue the personal attacks on management representatives in The Outpost then