United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
| In the Matter of
DEPARTMENT OF THE NAVY MARINE CORPS AIR STATION CHERRY POINT, NORTH CAROLINA |
|
|
AND DISTRICT NO. 6, PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS, NMEBA, AFL-CIO
|
Case No. 97 FSIP 21 |
DECISION AND ORDER
District No. 6, Professional Airways Systems Specialists, NMEBA, AFL-CIO (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 (Statute), 5 U.S.C. § 7119, between it and the Department of the Navy, Marine Corps Air Station, Cherry Point, North Carolina (Employer).
Following an investigation of the request for assistance, which involves an impasse in negotiations over an initial collective bargaining agreement (CBA), the Panel directed the parties to participate in an informal conference with Panel Representative (Staff Attorney) Lori K. Grant for the purpose of resolving the outstanding issues. The parties were advised that if no settlement were reached, Ms. Grant would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the issues. After considering the report, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to the Panel’s determination, the parties met with Ms. Grant on February 5 and 6, 1997, but they were unable to resolve any of the issues in dispute. During the period between the informal conference and the Panel meeting at which this case was decided, Ms. Grant left her position at the Panel for other employment. As a result, after consulting with Ms. Grant, Executive Director H. Joseph Schimansky reported to the Panel regarding her recommendations for resolving the issues at impasse. The Panel has now considered the entire record.
BACKGROUND
The Employer’s overall mission is to service Marine Corps and Navy aircraft. The Union represents two bargaining units at the installation, Chapters 250 and 252. The 37 bargaining-unit employees affected by the instant impasse are in Chapter 250.(1) They provide telecommunication and information systems support to the Air Station, working chiefly as computer technicians, and also as computer specialists, systems analysts, and telecommunication maintenance workers, GS-4 through -12. While the parties currently are without a CBA, on June 7, 1994, the parties entered into an interim Memorandum of Understanding (MOU) establishing a negotiated grievance procedure (NGP).(2)
ISSUES
The parties disagree over five sections of their grievance article, and whether their parking article should contain wording providing designated parking spaces for bargaining-unit employees.
I. Article 5 - Grievance Procedure
a. Section 5
1. The Union’s Position
The Union proposes that Section 5(e) be deleted, and that the following subsections be added to wording already agreed to by the parties in Section 6:
(a) Management shall notify the Union that the final decision is available at the same time it is forwarded to the employee(s). The implementation of the grievance decision shall not be enforced for 6 workdays pending the Union’s review of the grievance decision for compliance with laws, rules, government-wide regulations and the collective bargaining agreement.
(b) If a dispute arises during the review process the Union shall deliver notification of the dispute to CHRO-East no later than noon of the sixth day. The grievance decision shall not be enforced until the dispute is resolved in accordance with this section.
The wording the parties have already agreed to requires management to delay the implementation of its grievance decisions whenever the Union invokes arbitration, until the arbitrator rules on the appeal. Its proposal, therefore, would merely specify a procedure, including time frames, for implementation of the stay provision. With respect to the Employer’s proposal, it makes more sense to include this procedure in the CBA, rather than the parties’ grievance form, because there is no reference in the CBA concerning the enforceability of the grievance form.
2. The Employer’s Position
The Employer proposes that management "notify the Union that the final grievance decision is available to be picked up at the same time the employee or group of employees are in receipt of the decision." Including any additional procedures in this section is unnecessary and would be too "cumbersome." Reference to such procedures should be located on the parties’ grievance form, which is an enforceable document under the CBA.
CONCLUSION
Having carefully considered the parties’ arguments on this matter, we are persuaded that the Union’s proposal would provide the more reasonable basis for resolving the dispute. Among other things, it should help the parties avoid potential conflicts by clarifying the length of time the Union has to decide whether to invoke arbitration. The Employer’s proposal, on the other hand, appears unnecessary as the parties have agreed elsewhere in Section 5 that the Employer will notify the Union when the grievance decision is available. Accordingly, we shall order the adoption of the Union’s proposal.
b. Section 10 - Grievances Filed by the Employee
1. The Union’s Position
Among other less significant areas of disagreement, the Union proposes in Step 3 of this section that "[t]he grievance may be amended to include any additional relevant issues," and to omit wording proposed by the Employer in Step 1 stating that "[h]owever, in no case will a first step grievance be submitted beyond the second-level supervisor." It is reasonable to allow employees to amend their grievances to include additional relevant facts or issues at any step prior to arbitration. Moreover, it would be unfair for the Telecommunications and Information Systems Directorate (TISD) Director to issue a decision in Step 2, and then not give the grievant the opportunity to amend the grievance at the Commanding General level in Step 3.
2. The Employer’s Position
In addition to its other wording in this section, which is similar to that proposed by the Union, the Employer would include in Step 1(b) a sentence stating: "However, in no case will a first step grievance be submitted beyond the second-level supervisor." It also would omit the Union’s proposed sentence in Step 3 permitting employees to amend their grievances "to include any additional relevant issues." This proposal would prevent Step 1 grievances from being elevated beyond the second-level supervisor in order to ensure that they are resolved at the lowest level possible. As to the second matter, permitting additional issues to be introduced for the first time at the Commanding General level would be unreasonable, particularly after extensive discussion has already occurred at the lower levels. Moreover, the Union might abuse the privilege by attempting to introduce evidence which is not related to the matter in dispute.
CONCLUSION
Having carefully considered the evidence and arguments presented, we shall order the adoption of a modified version of the Employer’s proposal to resolve the dispute over this section. In this regard, a comparison of the proposals persuades us that the Employer’s would provide a better overall structure. Additionally, we agree that preventing Step 1 grievances from being elevated beyond the second-level supervisor should ensure that concerted efforts are made to resolve them at the lowest level possible. We also believe, however, that the Employer’s proposal should be modified to permit employees to amend their grievances, where appropriate, when they are at the Step 3 level. This is consistent with the Employer’s wording in Step 2, and appears fair because employees may need to respond to new issues raised by the TISD Director’s decision at that step. Finally, we shall also add the word "personnel" after the word "Management" in the second sentence of Step 3 of the Employer’s proposal to correct what appears to be an inadvertent omission on its part.
c. Section 11 - Grievances Filed by the Union or Management
1. The Union’s Position
In essence, in Section 11.a. the Union proposes to: (1) define "grievance" as including matters "involving the interpretation or application of any agreement between the Parties;" and (2) impose a 5-workday deadline for the TISD Director to resolve the dispute informally, and a 12-workday deadline for the Commanding General to meet with the Union and issue a written decision. In addition, in Section 11.b. it proposes to use the same procedure for Employer-filed grievances as for Union-filed grievances, which would include requiring a 12-workday deadline for the Union’s national president or designee to meet with management and issue a written decision.
Its proposed definition of a grievance in Section 11.a. merely maintains the status quo, i.e., it continues the definition used in the parties’ interim MOU. With respect to the time frames in its final offer, the Union has already compromised by agreeing to give the TISD Director advance notice prior to filing the grievance with the Commanding General. The parts of its proposal permitting the Director to have 5 workdays to resolve the matter, and providing the Commanding General with 12 workdays to issue a written decision, were actually suggested by the Employer during the informal conference with the Panel representative. Each should ensure that Union-filed grievances are handled expeditiously. As to its proposed wording in Section 11.b., it is fair because it provides the same procedure for Employer-filed grievances as for those filed by the Union.
2. The Employer’s Position
In Section 11.a., the Employer basically proposes to: (1) define "grievance" as including "issues affecting the entire bargaining unit and involving the interpretation or application of any law, regulation or agreement between the parties;" (2) impose a 22-workday deadline for the TISD Director to issue a written decision in Step 1, and a 14-workday deadline for the Commanding General to issue a written decision in Step 2. Its proposal for Section 11.b. (1) deviates from the procedure in Section 11.a., Step 1, by skipping the advance notice stage for Employer-filed grievances, and (2) provides the Union with 14 workdays to meet with the Employer and issue a written decision.
Its proposed definition would limit Union institutional grievances only to matters which affect the entire bargaining unit, and should be adopted because only such matters should be permitted to receive the expedited treatment that Section 11.a. provides. It also would prevent the Union from filing frivolous grievances. Giving the TISD Director 22 workdays in Step 1 offers a more realistic opportunity to resolve the grievance informally since the issues in dispute are likely to be complicated, and the advice of subject-matter experts may have to be sought. Adopting wording intended to encourage the resolution of the dispute at this stage is important because it could avoid the "embarrassment" of allowing a grievance to be filed with the Commanding General, who should not be "bothered" with every grievance. Moreover, when the Commanding General or designee is required to resolve the dispute, it is also more realistic to provide 14 workdays to meet with the Union and write a decision. Finally, with respect to Section 11.b., a one-step procedure should apply to Employer-filed grievances because, in reality, only the local Union president would be involved in such matters. Providing the Union with 14 workdays to meet with the Employer and write a decision is fair because it is the same time frame the Commanding General is accorded under Section 11.a. of its proposal.
CONCLUSION
After carefully reviewing the parties’ positions on this issue, we shall order the adoption of a modified version of the Union’s proposal to settle the matter. In general, the Union’s approach provides virtually identical procedures for handling both kinds of grievances, and we are not persuaded on the basis of the record that Union-filed grievances should be treated differently from those filed by the Employer. More specifically, there do not appear to be any compelling reasons for changing the grievance definition used in the parties’ interim MOU, or for providing two separate definitions, as the Employer proposes. Concerning the time frames for the processing of such grievances, we believe that 5 workdays for the Union president and TISD Director, and 12 workdays for the Union’s national president (or designee) and the Commanding General (or designee), should ensure that they are given serious attention and handled expeditiously. In addition to minor cosmetic changes, however, we also find it necessary to modify the Union’s proposal by specifying that the Commanding General (or designee) shall be permitted to satisfy the grievance or meet with the Union prior to rendering a written decision. This is consistent with the wording contained in other sections of Article 5, and clarifies that a meeting would be unnecessary if the Commanding General has already decided to sustain the grievance.
d. Section 12 - Grievances Concerning Adverse Actions
1. The Union’s Position
The Union essentially proposes that: (1) either party be permitted to request a hearing in grievances concerning adverse actions, even if the Commanding General decides to sustain the grievance without one; (2) the phrase "beginning with the Commanding General level" be inserted at the end of the first sentence of the section; (3) the Commanding General’s written response be delivered by certified mail to both the employee and the appropriate Union representative; and (4) a sentence be added at the end of the section specifically stating that the Union may proceed to arbitration if it is unsatisfied with the Employer’s decision.
The grievant should have the right to meet with the Commanding General regardless of whether the grievance is immediately sustained. If the Commanding General only holds hearings after deciding not to sustain the grievance, this may imply that the case has been prejudged. Even where the Commanding General agrees to sustain the grievance, such matters are very important to employees and they would appreciate an "apology" and some sense of "closure." As to the other parts of its proposal, the section would be clearer if the first sentence simply directs the grievant to the Commanding General level rather than obscurely referring to the procedure in another section of this article, as the Employer suggests; delivery of the decision by certified mail to both the employee and Union would not be burdensome; and specifying that the Union may proceed to arbitration if it does not like the result eliminates any ambiguity concerning its rights in this regard.
2. The Employer’s Position
Basically, the Employer proposes to arrange a meeting between the "aggrieved employee" and "desired Management personnel" only if the Commanding General does not satisfy the grievance. It would also include the phrase "at Step 3 of Section 10 of this article" at the end of the first sentence of the section. There is insufficient need to have a face-to-face meeting if the Commanding General has decided to sustain the grievance without one. If, however, the Commanding General would like additional information before making a decision, a meeting may be necessary. With respect to the phrase it is proposing to include at the end of the first sentence, identical wording is contained in the parties’ interim MOU.
CONCLUSION
In our view, the parties’ dispute concerning this section should be resolved through the adoption of compromise wording. Using the Employer’s proposal as a basis, we shall order that: (1) the phrase "the Commanding General level" be inserted at the end of the first sentence, and the word "calendar" be inserted after the word "fifteen" in the second sentence; (2) the Commanding General’s written response be delivered by certified mail to both the employee and the appropriate Union representative; and (3) the Union be permitted to proceed to arbitration if it is unsatisfied with the Employer’s decision. In this regard, we are persuaded that wording should not be included permitting either party to request a hearing, regardless of whether or not the grievance has already been sustained. On the one hand, denials of such requests by management would probably lead to hard feelings, while on the other, it appears to be unnecessary to hold a hearing when the grievance has been sustained. Finally, we believe that the adoption of the additional wording specified above is warranted primarily for purposes of clarity, and to avoid future disagreements between the parties.
e. Section 15
1. The Union’s Position
The Union proposes the following wording:
Failure of the Employer to render a decision within any of the time limits specified in this article, or as extended by mutual agreement, shall render the grievance sustained, and the corrective action sought shall be granted by the Employer unless the corrective action sought is contrary to law, rule, or regulation.
Its proposal is fair since it applies the same penalty to both parties; that is, if the Union fails to process a grievance to the next step in a timely manner, it may be terminated by the Employer. Moreover, the parties’ interim MOU contains identical wording. Proof that the provision has been effective is the fact that the Employer has missed only one deadline since the interim MOU was implemented.
2. The Employer’s Position
The Employer proposes that the "failure of Management to meet the time limits prescribed in this Article shall permit the employee, or the Union, or the grievant, to move the grievance to the next step of the grievance procedure." Management should not be penalized so harshly for missing a deadline, particularly since it has only missed one in the past 2 years. It would be unfair for the Panel to continue to saddle the Employer with a provision it ill-advisedly agreed to during previous negotiations over an interim MOU.
CONCLUSION
After carefully considering the evidence and arguments presented by the parties, we are persuaded, on balance, that the Employer’s proposal provides the better resolution to this dispute. In our view, grievances should be resolved on their merits, and not on the basis of procedural technicalities. In addition, this approach is consistent with the practice established in the vast majority of Federal sector CBAs. Accordingly, we shall order the adoption of the Employer’s proposal.
II. Article 65 - Parking
a. The Union’s Position
The Union proposes the following wording: "Management agrees to reserve contiguous parking spaces for each bargaining-unit employee immediately adjacent to all TISD facilities. The spaces shall be identified by the PASS and G6 logos." Providing designated parking spaces for bargaining-unit employees would prevent other activities at the installation from "encroaching" on their spaces. Moreover, its proposal is consistent with what the Employer currently provides at least two other activities on the base.
b. The Employer’s Position
The following is proposed by the Employer: "Management agrees to provide adequate parking in close proximity to Telecommunications and Information Systems Directorate (TISD) facilities." There is no shortage of parking spaces close to employees’ worksites, and the Union’s fear of encroachment by the employees at other activities is groundless. Moreover, designating spaces for bargaining-unit employees implies that violations will be enforced. Expending resources for this purpose would be unnecessary and wasteful.
CONCLUSION
After reviewing the evidence and arguments presented by the parties, we shall order the adoption of the Employer’s proposal. In our view, the Union has failed to demonstrate a need to change the status quo.
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:
1. Grievance Article
a. Section 5
The parties shall adopt the Union’s proposal.
b. Section 10 - Grievances Filed by the Employee
The parties shall adopt a modified version of the Employer’s proposal. The wording shall be modified by adding the following sentence after the first sentence in Step 3: "The grievance may be amended to reflect any additional but relevant issues;" and by adding the word "personnel" after the word "Management" in the second-to-last sentence in Step 3.
c. Section 11 - Grievances Filed by the Union or Management
The parties shall adopt the following wording:
In the case of any grievance involving the interpretation or application of any agreement between the parties, which the Union may have against the Employer, or which the Employer may have against the Union, the moving party shall submit the grievance by certified mail or hand deliver a written copy of the grievance to the other party.
a. Grievances Filed by the Union
Step 1. In the case of a Union-filed grievance, the grievance shall be addressed to the Commanding General via CHRO-E, Labor and Employee Relations Division. An advance copy of the grievance shall be filed with the TISD Director or designee within fifteen (15) calendar days of the event giving rise to the grievance or within fifteen (15) calendar days after the date the Union had knowledge of the event giving rise to the grievance and shall provide the following information:
(1) the facts upon which the grievance is based,
(2) the Article and/or Section, if any, of the agreement alleged to have been violated, and
(3) the corrective action sought.
Such notice shall satisfy the fifteen (15) calendar day filing requirement. The Director and the Union have five (5) workdays to make every effort to resolve the grievance informally.
Step 2. If the parties are unable to resolve the grievance within the time permitted in Step 1, the Union shall file the formal grievance with the Commanding General via CHRO-E, Labor and Employee Relations Division. The Commanding General or designee shall either sustain the grievance or meet with the Union and conduct a hearing on the grievance. The Commanding General or designee shall render a written decision within twelve (12) workdays following the date CHRO-E received the grievance.
Step 3. If the Union is not satisfied with the answer, it may request that the matter be submitted to arbitration under section 14.
b. Grievances Filed by Management
Step 1. In the case of a Management-filed grievance, the grievance shall be addressed to the Union’s National President or designee. An advance copy of the grievance shall be filed with the local chapter President or designee within fifteen (15) calendar days of the event giving rise to the grievance or within fifteen (15) calendar days after the date Management had knowledge of the event giving rise to the grievance and shall provide the following information:
(1) the facts upon which the grievance is based,
(2) the Article and/or Section, if any, of the agreement alleged to have been violated, and
(3) the corrective action sought.
Such notice shall satisfy the fifteen (15) calendar day filing requirement. Management and the local chapter President or designee shall have five (5) workdays to make every effort to resolve the grievance informally.
Step 2. If the parties are unable to resolve the grievance within the time permitted in Step 1, Management shall file the formal grievance with the Union’s National President or designee. The National President or designee shall either sustain the grievance or meet with Management and render a written decision within twelve (12) workdays following the date the National President received the grievance.
Step 3. If Management is not satisfied with the answer, it may request that the matter be submitted to arbitration under section 14.
d. Section 12 - Grievances Concerning Adverse Actions
The parties shall adopt the following wording:
In the case of any grievance concerning adverse actions or actions based on unacceptable performance, the grievance shall be submitted beginning with the Commanding General level. The grievance shall be submitted within fifteen (15) calendar days of the effective date of the action. In the case of a grievance concerning a suspension exceeding fourteen (14) days or furlough, the grievance shall be submitted within fifteen (15) calendar days of the last day of the suspension or furlough. If the Commanding General does not satisfy the grievance, arrangements will be made to meet with the aggrieved employee and the Union representative and other desired Management personnel and conduct a hearing on the grievance. The Commanding General shall render a written decision within fifteen (15) workdays after receipt of the grievance. The written decision shall be delivered by certified mail to the employee and the appropriate Union representative. If the Union is not satisfied with the Employer’s decision, it may request that the matter be submitted to arbitration.
e. Section 15
The parties shall adopt the Employer’s proposal.
2. Parking Article
The parties shall adopt the Employer’s proposal.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
April 28, 1997
Washington, D.C.
1.Chapter 250 was certified on November 11, 1993, after a reorganization at the installation.
2.Approximately 10 years ago, a CBA was reached between the Employer and employees represented by Chapter 252, which included a negotiated grievance procedure. Following the reorganization and the certification of Chapter 250 as the exclusive representative of the new unit, the parties basically agreed to include the grievance procedure from Chapter 252's CBA in their interim MOU.