United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
| In the Matter of
DEPARTMENT OF DEFENSE |
|
|
and LOCAL 3529, AMERICAN FEDERATION OF |
Case Nos. 02 FSIP 200/208 |
DECISION AND ORDER
Local 3529, American Federation of Government Employees, AFL-CIO (Union), filed two requests for assistance with the Federal Service Impasses Panel (Panel) to consider negotiation impasses under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Defense, Defense Contract Audit Agency, Central Region, Irving, Texas (Employer).(1)
Following investigation of the Union’s requests for assistance, the Panel determined that the disputes should be resolved through single written submissions. The parties were advised that the Panel would be limited to selecting between the parties’ final offers on an article-by-article basis, insofar as they are otherwise legal. Thereafter, the Panel would resolve the dispute within these parameters by issuing a binding decision. The purpose of this procedure is to persuade the parties to become more reasonable by modifying their final offers or risk losing entire articles. In addition, given the number of articles in dispute and the length of many of them, final-offer selection was chosen so the Panel is not put in the position of imposing compromise wording, which in this circumstance would be tantamount to doing the parties’ negotiating for them. Pursuant to this procedural determination, the parties submitted their final offers and statements of position. The Panel has now considered the entire record, including the parties’ statements of position, in reaching its decisions.BACKGROUND
The Employer, 1 of 5 regional offices within DCAA, oversees 25 major field audit offices and suboffices in 9 states. The Union represents the interests of approximately 608 bargaining-unit employees. Employees mainly work as contract auditors at GS-7 through -12. They perform procurement audits for the Department of Defense (DOD) and other Federal agencies under OMB Circular A-73(2) and provide DOD with accounting and financial advisory services to assist in contracting activities. The parties’ CBA expired on October 15, 1999, but will remain in effect until the successor CBA, the subject of the instant impasse, is implemented.
ISSUES AT IMPASSE
The parties disagree over parts or all of the following 32 articles: (1) Article 3 - Union Rights; (2) Article 4 - Management Rights; (3) Article 5 - Official Time; (4) Article 6 - Union Representation and Investigations; (5) Article 7 - Employee/Union Cooperation; (6) Article 8 - Negotiation Procedures; (7) Article 10 - Personnel Records; (8) Article 11 - Reduction in Force, Transfer of Function, and Reorganization; (9) Article 12 - Hours of Work and Flexible Work Schedules; (10) Article 13 - Overtime; (11) Article 14 - Leave; (12) Article 16 - Travel; (13) Article 18 - Training; (14) Article 19 - Performance Appraisals; (15) Article 21 - Details, Temporary Promotions, Rotations, and Extended Temporary Duty; (16) Article 24 - Discipline; (17) Article 25 - Adverse Actions; (18) Article 26 - Unacceptable Performance; (19) Article 27 - Grievance Procedure; (20) Article 28 - Arbitration; (21) Article 29 - Services, Facilities, and Publicity; (22) Article 31 - Equipment and Supplies; (23) Article 32 - Health and Safety; (24) Article 33 - Equal Employment Opportunity (EEO); (25) Article 34 - Alcoholism and Drug Abuse; (26) Article 35 - Retirement; (27) Article 37 - Dues Withholding; (28) Article 38 - Telework (Flexiplace) Program; (29) Article 39 - Team Award and Performance Awards; (30) Article 42 - Duration and Amendment; (31) Article 50 - Transportation Incentive Program (Transit Subsidy); and (32) Article 52 - Parking.
POSITIONS OF THE PARTIES
1. Article 3 - Union Rights
a. The Union’s Position
The Union proposes to clarify the existing article by including a statement that it may refuse to represent employees in certain statutory appeals, and that the Employer is "entirely neutral" in such matters. It also proposes that Union stewards speak for 30 minutes at new employee orientations where there are no on-site representatives, and the Employer pay those travel and per diem expenses. The Union also would provide "a letter from the Union President that is not scurrilous or libelous," and other materials for the orientation package. The Union states that the agreement between the Farm Service Agency, Kansas and Local 3354, AFGE, contains similar terms with no time limit imposed on the length of orientation talks.
b. The Employer’s Position
The Employer proposes to permit the Union to address new employees in orientation sessions lasting no more than 20 minutes, either on-site or by telephone. Telephonic orientations could be supplemented with a package of materials sent by the Union. The amount appears sufficient, particularly since, "historically, the Union has not had any time for a new employee orientation." Regarding internal Union decisions about whether to represent non dues-paying members in statutory appeals, this is an "internal" matter that should not involve the Employer.
CONCLUSION
Having considered the parties’ positions and contentions on this issue, we conclude that the parties should adopt the Employer’s proposal on Article 3 to resolve their differences. We find the Employer’s proposal preferable because it does not include any comment attributable to the Employer on how the Union may exercise its discretion to represent or not represent unit employees in statutory appeals. Furthermore, 20 minutes, in our view, should be adequate for addressing new employees. We also believe that presenting new employees with a package of materials to bolster the telephone communication is more cost effective, and will sufficiently inform employees about the Union’s role.
2. Article 4 - Management Rights
a. The Union’s Position
The Union’s proposal maintains the status quo in most respects. Its proposal clarifies that "only a change in the law will override the Agreement." The Employer’s changes are objectionable because they "would make all changes in working conditions non-negotiable and this position is contrary to the Statute." To show comparability, the Union cites the 2002 agreement between Local 2484, AFGE and the U.S. Army Medical Research Acquisition Activity. The Union opposes adding the new Employer section on counseling sessions. Earlier, the Union dropped a version of the proposal that would have required the Employer to bargain over permissive subjects.
b. The Employer’s Position
The Employer proposes to incorporate into the parties’ CBA, among other things, both existing and subsequently published policies, rules, and regulations. This is to clarify "what is controlling;" the CBA should be a "self-contained document." Currently, there are "confused interpretation[s] and absurd results." Furthermore, "[t]he Union’s past conduct indicates its interests remain in precluding a timely and efficient ‘bargaining management’ of changing issues, policies and regulations." As to informal counseling sessions, they may be held without a Union representative present.
CONCLUSION
Having considered the arguments presented on this article, we shall order the parties to adopt the Union’s proposal to resolve their dispute. In our view, the Employer’s proposal is overly restrictive, and could be interpreted to waive the Union’s statutory right to bargain over subsequently published policies, rules, and regulations that affect conditions of employment.
3. Article 5 - Official Time
a. The Union’s Position
On the amount of official time, and almost all of the other topics in Article 5, the Union proposes that the status quo be maintained. In the last fiscal year, the reasonable amounts of official time granted under the 1996 agreement provided Union representatives, who cover a 17-state area, with time to process: 33 grievances (1,664 hours), 17 local negotiations (472 hours), 17 EEO complaints (1,256 hours), 5 Merit Systems Protection Board cases (400 hours), and numerous members’ queries (495 hours). The only alteration to the status quo in the Union’s proposal concerns equal employment opportunity complaint processing, which is added to those activities listed as involving the administration of the agreement. By contrast, the Employer’s proposal, which "bears little resemblance" to the Union’s, would not provide enough official time. The Employer’s proposal of $5,000 annually for travel and per diem (TDY) is "grossly inadequate." In 2001, for example, Union TDY cost $38,535 and in 2002, $23,944. The Employer is also proposing inadequate amounts of preparation time (8 hours to one representative for impact-and-implementation bargaining). Finally, the Employer’s proposal for Section 5.10, which limits the Union to two representatives "at any point in time," would interfere with the "internal workings" of the Union, and would constitute an unfair labor practice under 5 U.S.C. §7116 (a)(1) insofar as it would "interfere with, restrain, or coerce any employee in the exercise by the employee of any right."
b. The Employer’s Position
The Employer proposes that all official time be "requested and approved in advance consistent with workload requirements and office coverage." Stewards would be granted reasonable official time to resolve grievances, appeals of unacceptable performance, appeals of adverse actions, and other listed activities. A bank of official time (2 hours yearly per bargaining-unit employee, about 1,200 hours) would be established to cover representational activities initiated by Union representatives and used by employees or Union representatives. In addition, 8 hours would be available for preparing for bargaining over changes in regulations. Most of the proposed wording is "taken directly from the June 17, 2002, memorandum from the Office of Personnel Management (OPM) director." The time granted for "traditional representational activities and issues" remains reasonable time. While a $5,000 cap on travel and per diem is proposed, "available and relatively inexpensive technologies (e.g., Net-meetings, Video-telephone, Video-conferencing)" will reduce costs. Such technologies will avoid the waste in current mid-term bargaining practices where the parties:
meet for less than an hour at the outset, typically to address housekeeping matters or more frequently, to announce the Union’s need to caucus. Then it is usually 8-16 hours before the Union announces it has a proposal or that, in fact, it is not going to change a previously proffered proposal.
Finally as to the number of Union stewards, Section 5.10 reads:
To meet mission/workload needs, office coverage and reduce costs for travel (local or overnight), etc., each FAO (Field Audit Office)/Organizational Unit shall have no more than two Local 3529 Union Representatives at any point in time.
The Union’s proposal is flawed because it provides no real standard for prior approval of official time and no incentive for the Union to act prudently in the use of official time. OPM requires Federal sector employers to account for the amount of official time being used. The Union’s proposal to permit representatives to take amounts of an hour or less without reporting is inconsistent with these accountability requirements. The number of grievances (at least three are noted) and unfair labor practice charges (one) that have been filed over this matter demonstrate that problems exist over how to interpret wording from the expired article that is part of the Union’s proposal. Furthermore, the Union wishes to rely on the labor relations office and the Union president to work out problems related to denials of official time requests when a supervisor believes the amount is excessive; "history tells us the answer [to that procedure] is more grievances." The cost of official time essentially for three Union representatives for a region of approximately 600 employees is $216,000 annually (85 to 90 percent of all official time). This total is out of proportion to other Department of Defense agencies, which average between 0.3 and 4.2 hours of official time per unit employee.
CONCLUSION
After considering the evidence and arguments presented by the parties, we conclude that the Employer’s proposal should be adopted to resolve their dispute over Article 5, with the exception of the last sentence of Section 5.10, which we shall order the Employer to withdraw. Without assigning blame for the current situation, it is clear that the use of official time has been mismanaged by both sides. We are persuaded by the record that the Employer’s proposal, which emphasizes advance approval of official time, is more likely to: (1) ensure an adequate amount of official time for the Union to meet its representational responsibilities, and (2) as stated in Section 7101(a)(1)(B) of the Statute, "contribute[] to the effective conduct of public business." Given the parties’ widely-divergent proposals on the subject, the $5,000 cap on travel and per diem, when coupled with measures such as telephone, internet, and video conferencing, which are apparently available to these parties without any added expense, would provide a better approach than the Union’s. With respect to the last sentence of Section 5.10 of the Employer’s proposal, it is well established that determining the number of stewards concerns a subject permissive to the Union under the Statute. Because a party cannot be forced to waive its statutory bargaining rights, the Panel is without authority to impose this portion of the Employer’s final offer.(3)
4. Article 6 - Union Representation and Investigations
a. The Union’s Position
The Union is proposing that the actual wording of 5 U.S.C. § 7114 be used in lieu of internet hyperlinks, as proposed by the Employer, to address various Union and employee rights, e.g., formal meetings, Weingarten meetings, etc., because the "plain language is [] easier for employees to locate and read." Furthermore, hyperlinks may be problematic because "language at a website can be altered." The Employer also should notify employees "in sufficient detail of the purpose and nature" of meetings so they can determine whether to request a Union representative. If an investigation relates to criminal conduct by a bargaining-unit employee, the employee should be given a specific Miranda warning every time such rights are implicated, and indicate any waiver of such rights in writing. The same is true for Kalkines warnings, when employees are informed that their answers cannot be used to incriminate them, but may affect their continued employment. Interviews by the Employer’s investigative officials "should be limited to matters of official interest," and not delve into "private matters outside the appropriate scope of the investigation." Finally, the Employer should pay for all regular and certified mail the Union sends to it, and for the cost of documents the Union mails for representational purposes.
b. The Employer’s Position
The Employer is proposing that the status quo, which calls for annual Weingarten reminders only, and does not mention Miranda and Kalkines warnings, be maintained, but Kalkines warnings would be provided if prosecution is declined. The proposal "follows the intent of Congress regarding the representational rights of Unions in the Federal sector; it is equitable and clear to understand." Because supervisors "do not have the legal right to grant immunity to employees who may have engaged in criminal conduct," Kalkines and Miranda-type warnings would have little value. Furthermore, very few disciplinary actions are taken – one to three per year between 2000 and 2002. The Union’s wording on when a Union representative can be present, e.g., during the discussion of personal problems between the employee and the supervisor, may be inconsistent with 5 U.S.C. §7114(a)(2)(A) and, therefore "must not be adopted."
CONCLUSION
Having considered the arguments presented, we shall order the parties to adopt the Employer’s proposal to resolve their dispute over Article 6. In this regard, we are persuaded that the relevant statutory citations the Employer plans to provide by internet address would be easily accessible to bargaining-unit employees. Furthermore, the Union has not described any problems that demonstrate a need to increase the number of times Weingarten warnings are repeated during the year. In this respect, the number of disciplinary actions taken annually, according to the Employer, are quite low. With respect to Miranda warnings, which are associated with police action, we do not find these are appropriate for supervisors to administer.
5. Article 7 - Employee/Union Cooperation
a. The Union’s Position
Under the Union’s proposal, at quarterly Union-management meetings, which it would limit to 8 hours unless mutually agreed otherwise, three representatives will participate for the Union; they will be granted reasonable official time for such meetings, for preparation, and for travel to and from the sessions. In addition, the Employer is to pay the travel and per diem expenses associated with attending the meetings. The expired agreement contains very similar provisions, except that the Union had been limited to four representatives. The Union points out that no "partnership" type meetings have been held over the last 6 years, and the Employer "effectively cancelled the DCAA Central Region Labor-Management Partnership Council" following President Bush’s issuance of Executive Order 13203.
b. The Employer’s Position
The Employer proposes to cut the number of Union negotiators to two, unless the parties agree to three, and to follow Article 5 on official time. Agendas would be exchanged in advance, and minutes from the meetings would be published afterwards. The proposal is flexible because, when both parties believe there should be an extra Union negotiator, they can so agree. Furthermore, by reducing the number of representatives, "its fiduciary duty to the taxpayer [of] sensibly controlling costs" would be discharged.
CONCLUSION
Having considered the parties’ positions on this issue, we conclude that they should adopt the Union’s proposal to resolve their dispute. In reaching this conclusion, we are persuaded that the reduction in the number of representatives the Union may appoint from four to three represents a move in the direction of economy, yet does not handicap the Union by allocating too few participants.
6. Article 8 - Negotiation Procedures
a. The Union’s Position
Under this article, the Union proposes that: (1) matters appropriate for negotiations are personnel policies and procedures, and matters affecting working conditions of unit members; (2) it be notified of "all" changes affecting unit employees; and (3) the agreement would prevail over discretionary instructions or directives that conflict with its terms.
On procedures for mid-term bargaining, the Union is to receive copies of new or changed wording in policies, practices, and procedures at least 30 calendar days prior to implementation of a change. The Union would then have 30 days to declare its intention to negotiate and submit relevant proposals. Bargaining would begin within the next 30 days, and multiple items would be taken up "on a first-in, first-out basis." After 16 hours, the parties could take an issue to mediation, or mutually agree to continue bargaining. Within 21 days of the mediator’s declaring that the parties are at impasse or after completing 16 hours of mediation, whichever comes first, either party could submit the matter to the Panel. The Employer would be constrained from implementing unless: the Union fails to request bargaining; neither party takes the matter to the Panel; or impasse proceedings or negotiability appeals are exhausted. If a request for Panel assistance is not made within 21 calendar days, the Employer may implement its final offer. Any agreements would remain effective until the approval of the next CBA. The Employer shall be responsible for providing employees with a typed copy of agreements no later than 7 days from the effective date, and within 3 days when the agreement affects less than the entire bargaining unit.
On the subject of the mid-term bargaining process, post-implementation bargaining would occur "with mutual consent of both parties for time sensitive matters." Regarding surveys, if the Employer intends to conduct a factual survey, it will provide a copy to the Union president, who may choose to comment or bargain over its impact. If the Employer intends to conduct an opinion survey, a copy will be provided to the Union. If the Union objects to that survey, it will not be conducted. In either scenario, the Union is to receive a copy of the survey results.
As to mid-term bargaining ground rules, negotiations will alternate between the regional office and the location of the Union president; sessions at the Regional office will be held in the Executive Conference room or the Arlington Branch Office conference Room, and in similar quarters when held at the Union president’s location. During bargaining, the parties will meet between 0830 and 1600 hours (beginning at 1300 on Mondays and ending at 1100 on Fridays) and take lunch breaks from 1100 to 1230 hours. For such sessions, the Union’s negotiating team should be provided with a stand alone computer and compatible color printer, the former comparable to that of the Regional Director. Union representatives will be on official time, if in a duty status, for preparation for, travel to and from, and attendance at the negotiations; the Employer will pay the travel and per diem for all members of the Union negotiation team. A separate section distinguishes between term and mid-term bargaining.
The Union urges the Panel to adopt its version of Article 8 for numerous reasons. "Strong exception" is taken to the Employer’s proposal to notify the Union only of those changes which would adversely affect bargaining-unit members; Section 7117 of the Statute "requires Management to bargain over any rule or regulation issued by an agency, not just those having an adverse impact on bargaining unit employees." Furthermore, the notice and response times the Employer proposes are "inadequate"; the Employer "has never indicated that the existing time frames are a problem." Similarly, the Employer relies on its proposed Article 5 on official time, which would grant only 8 hours to just one Union representative for reviewing changes prior to negotiations. The Employer proposes to engage in post-implementation bargaining on at least four occasions, however, such bargaining should instead "be on a mutual consent basis and then only be used on a very limited basis." About the Employer’s proposal to use video telephones, teleconferencing, and email every 4th session, the Union does not own such technology. When the use of video conferencing was explored 3 years ago, it was priced at $250 per hour. Besides the "prohibitive" expense, it is "a poor substitute for face-to-face discussions" because it is "virtually impossible to see who is speaking, when they are speaking."
Since the Employer states it wants to restrict the use of official time, its proposal that local agreements are to expire with the CBA would open those agreements for renegotiation, thereby increasing the need for official time. Under the Union’s proposal, the phrase – "and will remain effective until the approval of the next CBA" – would "protect the Union from having pieces of the new CBA implemented, if parts are determined non negotiable during the Agency head approval process."
b. The Employer’s Position
On the scope of negotiations, the Employer’s proposal permits bargaining over policies, procedures, and working conditions "so far as may be appropriate under the Statute and this agreement." As to the rights of bargaining-unit employees and the Union, "no provision of this agreement" would abrogate such their rights established by laws, or regulations by appropriate authority. Regarding conflicts, the agreement should not conflict with applicable or current law, regulations, Executive Orders, etc. The Union is to be notified of "changes in working conditions adversely affecting bargaining unit employees." Unless bargaining is prohibited by Section 7117 of the Statute or for some "other applicable reason," the Union may request bargaining.
With respect to procedures for mid-term bargaining, the parties would "employ interest-based bargaining techniques and focus on concerns and interests." The Union would receive copies of changes 14 calendar days prior to implementation of the change. The Union would notify the Employer of its intent to bargain and submit "material" proposals within 7 calendar days. Post-implementation bargaining on mid-term subjects "may be invoked by the Employer not more than four (4) times during each calendar year for time sensitive matters and to avoid unnecessary litigation." After completing bargaining over all items on an issue, and making one further attempt to resolve "the impasse," either or both parties may call in FMCS, and then seek Panel assistance. If, however, a request to the Panel is not made within 10 calendar days, the Employer’s final offer may be implemented. Once an agreement that affects all unit employees is complete, the Union and the Employer will alternate taking responsibility for distributing the agreement no later than 7 days after the effective date of the agreement, preferably by electronic distribution. Any hard copies would be distributed at the Union’s expense. Agreements affecting less than the entire unit are to be provided by the Employer within 3 days; if these cannot be provided in an electronic format, the Employer will cover the cost of hard copies.
Regarding ground rules, every fourth session would be by teleconference, videoconference, and email, regardless of topic, to reduce costs. The Employer is to find suitable meeting and caucus rooms for negotiations. Any local agreements are to be consistent with the contract or are "void from the beginning," take the same term as the CBA, and do not preclude region-wide bargaining over the same subject. It is also proposing that the Employer be permitted to implement changes prior to the completion of bargaining up to four times per year "for time-sensitive matters and to avoid unnecessary litigation." The Union’s right to engage in post-implementation bargaining in such instances would be preserved. By contrast, the Union’s proposal on notification of changes is overly broad, and has been applied to the detriment of unit employees in the past. In this regard, even though management was proposing to raise incentive awards from $150 to $300, and accelerate child-care subsidies throughout the region, the Union asserted that it had a bargaining right, and "barred the Employer from implementing."
CONCLUSION
Having considered the parties’ positions on the various sections of Article 8 that remain in dispute, we conclude that they should adopt the Employer’s proposal, as modified herein. On the modifications, Section 8.02.II B., of the Employer’s proposal addressing post-implementation bargaining shall be withdrawn, since it would otherwise impose a waiver of the Union’s right to bargain in accordance with the statutory scheme. Similarly, in the third paragraph, first sentence, of Section 8.01, the adverb "adversely" shall be deleted, since the parties may disagree about whether certain changes have a negative impact on bargaining-unit employees. In our view, appropriate notice is part and parcel of the Employer’s meeting its obligation to bargain under the Statute prior to making changes. In other respects, however, we find preferable the Employer’s proposal, which provides a more time-sensitive and economical approach to mid-term bargaining, sparing money that otherwise would be spent on travel to conduct bargaining.
7. Article 10 - Personnel Records
a. The Union’s Position
Sections 10.03 and 10.05 of the Union’s final offer would require that copies of a supervisor’s notes, diaries, and records, if retained, be provided to the affected employee within 48 hours. In addition to an agreed-upon subsection on making an employee aware of derogatory material in their official personnel folders (OPF), "material which may adversely affect an employee’s career in DCAA" would not be placed in an employee’s OPF, unless the affected employee has been given a copy beforehand. Comments or rebuttals that an employee submits are to "become a part of the adverse material." The Employer’s proposal, by contrast, does not contain a requirement that such negative material be furnished to the employee before it can be placed in the OPF. Similarly it fails to address access to a supervisor’s notes. With respect to the Employer’s sentences that disciplinary and adverse actions should be timely, but not contractually time-limited, they are not related to this article and, therefore, are out of place.
b. The Employer’s Position
Under the Employer’s proposal, a supervisor’s notes, diaries, and records are considered "merely extensions of the supervisor’s memory, and may be retained or discarded at the supervisor’s discretion." Disciplinary and adverse actions are to be taken in "a timely manner," but "nothing in this Agreement shall be construed as constituting a contractual limitation preventing the Employer from disciplining employees based upon a specific time limitation." An annual notice is to be provided to employees indicating the content of OPF records and how a copy of such records may be obtained.
The Panel should reject the Union’s proposal because it would impose disclosure requirements that are "far broader" than those of 5 U.S.C. §7114(b)(4), and may "invade other employees’ privacy." Furthermore, barring supervisors from using documentation that has not been provided to employees within 48 hours or shared prior to being placed in OPF files would "chill" supervisors from carrying out their responsibilities. Such strictures attempt to "preserve employment for non-performing employees on the basis of supervisory errors or omissions rather than the merits of the employees’ performance."
CONCLUSION
Having considered the parties’ proposals and their written discussion of Article 10, we conclude that they should adopt the Employer’s proposal to resolve the disputed sections. While fairness dictates that employees should be apprized of negative material that is placed in the OPF, we find that the Union’s proposal, which would require a supervisor to destroy notes that were not disclosed to an employee within 48 hours, goes too far. Instead, we are persuaded that the appropriate disclosure of information is sufficiently covered in agreed-upon sections: Section 10.03 (initial paragraph), which provides that employees be made aware of, and be given copies of, derogatory material either in the OPF or Supervisory Personnel Record; and Section 10.04 (second sentence), which provides that any "material relied upon for support of the action against the employee will be provided."
8. Article 11 - Reduction in Force [RIF], Transfer of Function, and Reorganization
a. The Union’s Position
The Union proposes that the Employer "provide equitable treatment for all employees," i.e., comply with Office of Personnel Management (OPM) rules and regulations when a RIF is to be conducted. Reference is made to 5 C.F.R. 351.802, and the regulatory section on the content of RIF notices is restated. (The restatement is close, but not identical to the OPM regulation cited.) Affected employees are to be given a 60-day notice period during which they would remain on active duty status, and 150 days if 50 or more employees are to be released. With respect to reemployment rights, employees would be given 30 calendar days to accept a reassignment offer. Bump and retreat rights, review of appropriate records, the MSPB appeal deadlines, retention standing tie-breaking procedures, transfers of function, and reorganizations are also explained. A sanitized copy of the RIF retention register, listing all employees in each competitive area, would be posted annually on the DCAA web site, showing only the last four digits of employees’ Social Security numbers. About eight of the sections proposed are identical to those in the current Article 11. Providing employees with more complete information in the contract is more useful than referring them to a Web Site, as the Employer proposes.
b. The Employer’s Position
The Employer proposes to provide a series of "hyperlinks" in the electronic version of the contract to specific locations on the OPM Web Site where information pertaining to RIFs, transfers of function, and reorganizations can be found. Regarding implementing a RIF, the parties would take any issues not resolved in bargaining to the Panel, however, "[i]f the Employer determines that a significant public business need exists, the RIF may be implemented as scheduled, with affected employees retaining their applicable appeal rights." The Union’s proposal to "incorporate wording from Government regulations verbatim" could lead to future bargaining because, if there are future regulatory releases issued only to clarify the meaning of current regulations, the Union "will insist on negotiating any and all words no matter how de minimis." Regarding the Union’s proposal that a retention register be created annually whether or not a RIF action is contemplated, such registers are not compiled unless a RIF is planned, at which point employee data must be verified. Publishing a RIF register could lead to allegations before the MSPB of "pretextual conduct masking a constructive adverse action"; to grievances, if errors are found in the register; and it would unnecessarily upset the workforce. Finally, the use of hyperlinks is the best way to ensure that the text of the CBA does not inadvertently introduce inaccuracies.
CONCLUSION
Having considered the parties’ positions and arguments on the open sections of Article 11, we conclude that they should adopt the Employer’s proposal to resolve this portion of their dispute, but modified to exclude the last sentence of Section 11.13 of its final offer. While including in the CBA parts of the OPM RIF, transfer of function, and reassignment-related regulations may be useful, we are persuaded that this benefit is off-set by the disruption and harm that would arise from inaccuracies in any paraphrased version. Similarly, we believe that an annual posting of a retention register, as the Union proposes, is not necessary when a RIF is not contemplated, and is likely to be disruptive. As to the last sentence of Section 11.13 of the Employer’s final offer, the standard it would apply for implementation of a RIF prior to the completion of bargaining (i.e., if it determines that a "significant public business need" exists) is not identical to the standard established by the FLRA that changes may be implemented if they are "necessary for the functioning of the agency."(4) To avoid potential legal conflict, we shall order the withdrawal of its last sentence from the section.
9. Article 12 - Hours of Work and Flexible Work Schedules
a. The Union’s Position
The Union proposes a maxiflex schedule that would be arranged with supervisory approval during the 6 a.m. to 6 p.m. workday. The schedule would not require a fixed number of hours on each workday so long as employees work or otherwise account for a minimum of 80 hours per pay period. The schedule permits up to an 11-hour workday, and employees may fulfill their work requirements in less than 10 days. The maxiflex schedule also includes flexible arrival and departure times, a ½-hour lunch to be taken between 10:30 a.m. and 1 p.m., and 15-minute rest periods. Rest periods, however, may not be accumulated, taken at the beginning or end of the day, or used to extend lunch. A longer lunch may be taken if approved by the supervisor and reflected in the employee’s work schedule. Credit hours may be earned on weekdays and weekends, with up to 24 -hour carryover to the next pay period. Regarding compensatory time, the supervisor would ensure that such time is used within 26 pay periods.
The Employer’s version of the Maxiflex schedule, with only three alternatives, is "rigid" and, therefore, less acceptable than the Union’s, which permits a "varied schedule to reach the 80 hour basic work requirement." Similarly, the change to an earlier possible starting time, 6 a.m., is advisable since employees who choose to arrive then would "beat traffic jams in major metropolitan areas where the bulk of our employees live and work." On the subject of credit hours, the Employer ignores the DCAA Memorandum for Regional Directors that permits employees to earn credit hours on weekends. In addition, the Employer’s proposal does not address rest periods, which "have been in effect for over 37 years." With respect to time sheets, although the Employer’s version comes from the current contract, a lot has changed in the past 6 years, making that version less accurate on how time sheets are completed. As to administrative leave, the Employer’s grant of only 8 hours is also "rigid"; the amount of administrative leave granted should reflect the hours the employee is scheduled to work.
b. The Employer’s Position
The Employer’s proposal describes two maxiflex schedules, both of which are described as flexible, rather than compressed, work schedules: one is a 10-hour, 8-day schedule (a 4-10); and the other, a 9-hour, 9-day schedule, with one 8-hour day (a 5-4/9). Either schedule would be arranged with supervisory approval during a 6:30 a.m. to 6 p.m. workday, Monday through Friday. Such schedules must "ensure that each office has adequate coverage for scheduled business hours at all times." Variations, including alternate hours, may be requested by individual employees or an entire FAO, however, regional approval would then be required. With advance supervisory approval, credit hours may be earned, but no more than 24 can be earned within a pay period or carried over to the next pay period. Further, "on rare occasions (to meet customer demands or accommodate short term employee needs), credit hours may be authorized for work on weekends or a holiday." Again, regional approval is required when such arrangements are to accommodate short-term individual needs. A ½-hour lunch may be taken between 11 a.m. and 1 p.m., although supervisors may approve a longer lunch as long as "the time is not excessive, there is adequate office coverage and [] the full amount of scheduled work for that day is accomplished within authorized office hours."
Adoption of the Union’s Maxiflex proposal would "disrupt mission accomplishment." Among its shortcomings are: (1) the failure to establish any core hours when employees must be at work; (2) the lack of clear recognition of the supervisor’s role to approve the earning and use of credit hours in a manner that ensures "officer coverage and proper customer service"; and (3) that it is a "hybrid" schedule (a combined flexible-compressed work schedule) not authorized by OPM regulations.(5) Without core hours, it becomes a "work anytime" schedule, which is contrary to 5 U.S.C. § 6122(a)(1).
Mention of "rest periods" in the contract is unnecessary because the current practice permits the "professional and well-educated individuals" who work in this "traditional office environment" to take breaks "as and when needed," without any tracking. As to earning credit hours on weekends, access to the Employer’s facilities after normal hours implicates security concerns. The proposed lunch period, which is the same one contained in the current CBA, represents "a reasonable approach." With regard to employees’ responsibility for making reports of hours worked, leave taken, etc., a May 31, 2002, letter from the Regional Director of the Dallas Regional Office of the FLRA, refusing to issue a complaint in a Union-filed unfair labor practice case, found the Employer "acted within its legal rights" when, among other things, it required employees to make daily inputs on the time and attendance system.
CONCLUSION
Upon consideration of the parties’ arguments and positions regarding Article 12, we conclude that they should adopt the Employer’s proposal to resolve their dispute. In our view, the scheduling options in its proposal strike a better balance between the accomplishment of the agency’s mission and the ability to grant employees sufficient flexibility to arrange their work lives. It represents a refinement of the current Maxiflex program by limiting variations in length of the workday to 10, 9, or 8 hours. The record does not contain any recitation of problems with the current Maxiflex program that would justify expanding the range of day-length possibilities to the extent that the Union proposes. In addition, we note that under the Employer’s approach, an employee working a 4-10 or 5-4/9 flexible schedule could elect, with advance supervisory approval, to earn 1 or 2 credit hours, respectively, thereby effectively working an 11-hour day. There is also no support in the record for lengthening the workday, the period available for lunch, or specifying a rest or break period. As to the earning of credit hours on the weekend, we concur with the Employer’s position that such an option should be available only when such work would meet customer needs, and receives regional approval for meeting an employee’s short-term needs. In particular, we are unmoved by the Union’s argument that the memorandum to supervisors on the earning of credit hours warrants granting a more relaxed provision on weekend credit hours.
10. Article 13 - Overtime
a. The Union’s Position
The Union’s proposal specifies that overtime could be "requested," yet also recognizes that it must be "approved" and "officially ordered." Regarding the relationship between overtime and leave, "overtime shall not in any way affect the employee’s right to take both annual and sick leave," and "may be worked on the same day that annual or sick leave is taken." Overtime performed on a day when an employee was not scheduled to work is to be "deemed to be at least two (2) hours in duration." As to the assignment of overtime to employees on TDY on a continuing basis, new hires are to be given "equitable consideration" for such assignments. Finally, upon request, the Employer is to provide the Union with "records of overtime worked by FAO and regional element."
The Employer’s directive that supervisors should avoid assigning leave and overtime in the same pay period appears "counter productive." For example, an employee may use 2 hours of sick leave for a doctor’s appointment and still work 2 hours of overtime later in the day. This scenario works to the Employer’s benefit because:
management gets back the 2 hours lost to the doctor visit and probably for less pay than straight time as federal employees at GS-12, Step 6 and above make less on overtime hourly pay than they do on straight hourly pay.
b. The Employer’s Position
The Employer’s proposal stresses that overtime must be approved in advance and compensated for in accordance with 5 C.F.R. 550 Subpart A, and should not be confused with credit hours; a "hyperlink" is provided to the governing regulations. While paid leave is to be considered as time worked when computing overtime pay, "supervisors should avoid having both paid leave and overtime in the same pay period, if possible." In addition: "All employees will be considered for overtime; however, because of training and/or experience some employees (most notably trainees) may not be approved to work it."
The Union’s proposal is "imprudent" and "incompatible with good business practices" insofar as it "would have a policy making it permissible to take annual leave to play golf, etc. the very same day the taxpayer is paying the employee overtime pay." When overtime is assigned, although all employees would be considered, "experience and training should be part of the calculus and consideration for overtime." The hyperlink to the actual text of regulations that control the computation of overtime is a more reliable reference on the issue of providing data to the Union than the paraphrased version the Union proposes.
CONCLUSION
After a full evaluation of the parties’ positions and justifications on the subject of overtime, we conclude that they should adopt the Union’s proposal to resolve their dispute. We are persuaded that the strictures the Employer would impose regarding approvals of sick or annual leave and overtime on the same day are unnecessary. In this regard, we note that supervisory decisions on whether to grant leave requests generally take into account workload and deadlines, the same factors considered when determining whether overtime is needed to complete work. On assigning overtime to new hires and trainees, since the parties have already agreed that overtime is to be "distributed fairly and equitably among qualified employees," it is expected that such criteria would apply to non-journeyman level employees as well. Finally, the 2-hour minimum for irregular or occasional overtime work, when work is not otherwise scheduled for the affected employee, merely includes what the regulations provide at 5 C.F.R. § 550.112(h).
11. Article 14 - Leave
a. The Union’s Position
Normally, while staffing levels are taken into account when deciding whether to grant leave, the Union is essentially proposing that leave may be granted during contractor shutdowns and around holidays without reference to staffing levels because the workload is low and contractor employees are on leave. In addition, during such periods, employees should be authorized administrative leave or permitted to take compensatory time off. It also proposes that, when an employee is requesting 5 or fewer days of leave, such requests should not be required to be submitted in advance. On determining whether sick leave is appropriate, conditions such as "physical or mental illness, injury, pregnancy, childbirth" should be included. For treatment or examinations under the Federal Employees’ Occupational Health Program, the employee "may be excused for absences of up to two hours"; absences in excess of 2 hours are to be charged to sick leave. When a disability retirement is approved prior to separation, the employee is to be granted "all sick leave to which he is entitled."
As to notice of illness, a "representative" may notify the supervisor on behalf of a sick employee, and "administrative staff" may receive the notice when the supervisor is absent. If an employee becomes ill during a period of annual leave, "sick leave may be substituted for annual leave to cover the actual period for which sick leave was appropriate." Also included in the proposal are comprehensive passages detailing the circumstances when sick leave can be used to care for an ailing family member or bereavement, for adoption, and when the Family and Medical Leave Act of 1993 (FMLA) applies, all of which are contained in the current CBA. On the subject of administrative leave for voting, the Union proposes that when polls are not open for at least 3 hours before or after an employee’s regular hours of work, 3 hours of excused time "will" be granted for voting; and under exceptional circumstances, when more time is needed to vote, an employee may be excused for an amount not to exceed a full day. As to emergency closures, "[i]f the [Federal Executive Board] recommends closure of all DCAA offices in a metropolitan area, all DCAA offices in the metropolitan area will close." When the office is closed for an emergency, the agreement on accounting for leave reached with the assistance of the FLRA’s CADR Office should be applied.
The Employer’s proposal should not be adopted because it would reverse 37 years of established past practice by requiring an employee out for 3 days or less to submit a written statement, explaining a sick leave absence when the employee did not obtain a medical certificate. As to considering staffing levels when deciding whether to grant leave requests, employees should be allowed to maximize their leave by taking it in conjunction with traditional contractor shutdowns that occur the day after Thanksgiving and in late December. Although the Employer does not have a similar proposal, the section addressing sick leave requests made by an employee representative are "taken directly from DCAA Personnel Management Manual (PMM)(updated May 2001)." The same is true of the proposal permitting an employee to substitute sick leave for annual leave when appropriate. On administrative leave for voting, the Union’s "language is from the current CBA." Another contract which permits an excused absence for voting is the one between the Defense Contract Management Agency and the National Federation of Federal Employees, Local 75. By contrast, the Employer’s proposal would force an employee to alter his or her work schedule from 9 or 10 hours to 8 hours "just to avoid using administrative leave on election day." Regarding court leave, the Employer’s proposal is incomplete because it only discusses jury duty. The Union’s proposal refers to the three types of court leave, and is taken from the PMM.
b. The Employer’s Position
Under the Employer’s proposal, emphasis is placed on the supervisor’s approving when annual leave will be taken. Factors to be considered when approving leave include ensuring "that a sufficient number of personnel will be on duty to serve customers and operate effectively." Emergency or unscheduled annual leave is to be requested from the supervisor "as soon as possible, generally no later than one hour after the start of their normal tour of duty." Regarding sick leave, employees are encouraged "to conserve such leave so it will be available to them in case of extended illness." Supervisors "may ascertain that the reasons for which the sick leave is requested are valid," and may deny such requests if no proper basis for sick leave use exists. When the supervisor is not available, an employee who is ill or the employee’s spouse may call the supervisor’s designee, and the employee must keep the supervisor advised of a continuing absence on sick leave. Should an illness last for more than 3 days, an employee’s written statement may be substituted for a medical certificate when: (a) the period of illness does not exceed 3 consecutive workdays; (b) the statement reasonably explains why a medical certificate was not obtained; and (c) the employee is not already under a leave restriction. On the subject of the FMLA, in addition to a statement that the parties agree to abide by the Act and the related OPM regulations, an Internet address is provided for employees who wish to read its provisions. To accommodate voting,
where the employee has requested to work a 9 or 10 hour day and 8 hours are sufficient for workload reasons and the 8 hour schedule meets this 3 hour before and after requirement, the employee must first adjust his schedule to an 8 hour day.
Under exceptional circumstances, with supervisory approval, an amount not to exceed 5 hours may be approved for voting. Time for jury duty will be granted in accordance with Government-wide rules and regulations.
The Employer’s proposal "clearly acknowledges the Supervisor’s role and responsibility in managing office coverage." In addition, clearer management controls are placed on employees calling in to request sick leave. Administrative staff should not take such calls because they likely have "no knowledge of pending assignments or important time sensitive projects." This avoids placing the supervisor in the "unenviable situation" of having to call the employee at home regarding an important project or data relating to a sensitive audit. Furthermore, the Employer should retain authority to determine whether to close or open an office during inclement weather rather than following decisions of the FEB. Finally, the use of "hyperlinks" is preferable to "burdening the new CBA with inclusion (and possible inadvertent inaccuracies) of the entire law or regulation."
CONCLUSION
Following a review of the arguments and evidence presented by the parties on Article 14, Leave, on balance, we conclude that the Employer’s version provides the superior approach for resolving this part of their dispute. Initially, we note that the parties’ proposals are similar in many respects. We find that taken as a whole, however, the Employer’s proposal provides greater clarity about the supervisor’s role in approving annual and sick leave, and appropriately takes into account staffing and workload considerations. In several places (use of annual leave during reduced or suspended operations, excused leave for voting, absence for taking a bar examination, etc.), the Union’s proposal appears to usurp such authority, using the mandatory verb "will" in lieu of the permissive verb "may." Although the Employer’s proposal does not address specifically what the FMLA provides, the Internet address the Employer offers appears adequate to inform employees who may be caring for an ill family member. Furthermore, we agree with the Employer’s view that relying on the actual regulations gives employees the most accurate, up-to-date resource. Similarly, while the Employer’s proposal does not mention an employee’s ability to substitute sick leave for annual leave when the employee becomes ill while away on annual leave, Government-wide regulations permit supervisory approval of such substitutions. Finally, the record does not support taking away the decision-making authority over inclement weather closings from the FAO manager. Based on these reasons, we shall order the adoption of the Employer’s proposal.
12. Article 16 - Travel
a. The Union’s Position
The Union proposes to incorporate five previously negotiated agreements concerning travel and the Department of Defense (DoD) Travel Card Program in this article. In addition, on trips over 2 or more nights, employees would be reimbursed for a brief daily telephone call home. Mileage when an employee travels in their personally owned vehicle (POV) would be based on the actual odometer reading. With respect to the Joint Travel Regulations (JTR), the Employer is to provide the Union with a copy of that document, all changes as the Region receives them, as well as a written summary of any changes.(6) Generally, employees would not be required to use Government quarters, nor would reimbursement for other lodging be limited to the cost of using Government quarters. As an exception, however, employees attending training courses conducted at military bases may be ordered to use Government quarters (private room and bath) of at least 250 square feet. If these conditions cannot be fulfilled, the employee would be reimbursed for commercial lodging and a rental car. As with other travel, training trips to the Defense Contract Audit Institute (DCAI) also is to be scheduled within an employees duty day to the maximum extent possible.
Regarding Government credit cards, which "will be used for travel-related expenses," a final section, 8 pages long, contains "pertinent sections of the October 30, 1998, DoD Travel Card Program Agreement" (1998 Agreement). The 1998 Agreement is one of those named as incorporated at the beginning of the proposal. The subjects covered are: cardholder rules, automatic teller machine cash advances, other authorized travel expenses, fees and charges, employee acceptance statements, billing milestones, credit check instructions, frequently asked questions, and information about a training video. In addition, another paragraph-length subsection describes informing new employees about the card program, including information on telephone calls, use of the card for meals and incidental expenses, and that undisputed delinquent amounts due will be deducted directly from the employee’s salary.
Travel advances are limited to amounts to cover the meal and incidental expense portion of per diem allowances, plus reimbursable items that cannot be charged, such as mileage, taxi fares, local public transportation, tolls, parking fees, and gasoline. Claims for travel reimbursement "must" be submitted within 5 days of the completion of travel, and when a TDY is longer than 45 days, every 30 days. Claims are initially submitted to "the travel approving official with first hand knowledge of the purpose and condition of the travel being claimed before being submitted to DFAS for payment." Such travel vouchers are to be reviewed "expeditiously and approved within two (2) business days after employee submission to avoid delays."
The Employer is simply repudiating agreements that it does not like by excluding them from its proposal. The JTR permits brief daily telephone calls home on trips over 2 nights duration, but the Employer refuses to reimburse for them. Furthermore, the Employer has "eliminated employee access to personal email and instant messaging services," previous cost-free methods for communication with families when out-of-town. The cautionary wording on being "prudent" when incurring travel expenses that the Employer wishes to include is unnecessary. Instead, the parties’ previous agreement on the use of government quarters should be included; the Employer would also exclude it from the CBA. By using the standard table of mileage instead of the actual mileage employees drive, employees may lose reimbursement for "up to 20 miles one way and at $.36 per mile this can amount to a significant sum." Wording on travel advances is added "to facilitate an employee’s travel experience by allowing the employee to use cash" to pay for certain charges. On the subject of local commuting, the Employer is inserting something in section 16.06 which would have the effect of cancelling what the parties agreed to in section 16.13. This maneuver appears to be a "trick" which should be "repudiated." In addition, the Employer is also "cleverly" trying to circumvent the last two sentences of Section 16.13 on travel time. For example,
we have metropolitan areas such as Dallas-Fort Worth that a local TDY site could be 50 miles from an employees current work site. In such instances we believe the employees should be allowed to have the extra travel time applied to their work time.
The Employer’s proposal "glosses over" the parties’ agreed-to wording on the non-use of cards for meals. On cash advances, the Employer’s proposal is more restrictive than what it previously agreed to, "and in violation of existing contractual language." Lastly, the Employer has added an entirely new subject at this juncture, which forbids overtime and credit hours while in a travel status. That is "just another attempt by management to mistreat employees."
b. The Employer’s Position
Under the Employer’s proposal, no mention is made of previous agreements pertaining to travel. The JTR would be furnished through an Internet link rather than by hard copy. Bargaining would be authorized over substantive changes to the JTR that adversely impact unit employees. While on official travel, employees would be encouraged to use the level of care of a prudent person when incurring expenses. Examples of the lack of prudence are: incurring excessive costs, using circuitous routes, booking luxury accommodations, etc. Travel is to be accomplished within the employee’s regularly scheduled hours of duty to the maximum extent "practical." In the same vein, employees on TDY lasting more than 2 weeks are to be allowed travel time every other week for a home visit. When an employee’s travel is local, commuting time from a residence to the assigned worksite is not compensated.
On travel reimbursement claims, among other things, travel debts should be paid within 30 days of a written request or the entire debt would be debited from the employee’s pay. Local travel claims are to be submitted when they exceed $100 "or annually, to use the proper appropriation," but not more than monthly to control administrative costs. When Government transportation is not available during TDYs, suitable meals and taxicab fares or other public transportation costs may be reimbursed with approval. Overtime or compensatory time for hours spent traveling will not be authorized except as provided by the Fair Labor Standards Act; and, credit hours will not be authorized in such circumstances.
The Union’s proposal should not be adopted because it "would create a confused and outdated entanglement of policies and produce unnecessary disputes." In this regard, most of the agreements the Union would incorporate are "time bound and for specific purposes and would be inconsistent with the Employer’s position in Article 4."(7) The Union’s proposal on the use of Government quarters appears to conflict with the JTR stricture that when available Government quarters are turned down, a reduced per diem allowance may be prescribed. The same is true of the Union proposal to reimburse mileage expenses based on actual odometer readings. The daily call home proposed by the Union also "is not included as a reimbursable item in the JTR." Finally, the standard the Union would apply for decisions on scheduling travel during work hours (i.e., "to the maximum extent possible") is too broad. By contrast, the term "practical" applies "good business practices to [] determining when such travel is practical – considering workload, costs, etc."
CONCLUSION
Following a thorough review of the evidence and arguments presented by the parties, we conclude that, essentially, they should adopt the Employer’s proposal to resolve their dispute on Article 16, Travel.(8) Preliminarily, we are persuaded that the Employer’s proposal is preferable to the Union’s because it encourages employees to make travel-related decisions "prudently" so that excessive costs can be avoided. In this and most other respects, the Employer’s proposal mirrors the current travel article quite closely. Insofar as it differs, that is due in part to regulatory changes, including the mandatory use of Government travel cards, instituted since the implementation of the current agreement. On its side, the Union has not presented evidence to justify eliminating the admonitions to spend travel dollars carefully.
Regarding the parties’ apparent disagreement over the use of Government quarters, the extent to which reimbursement should be provided for calls home, and how reimbursement for mileage expenses is to be calculated, we believe that they should follow the JTR on those subjects, as the Employer proposes. That will avoid any confusion and possible incompatibility between the parties’ successor contract and the JTRs. Finally, we find overly burdensome the Union’s proposal that the Employer furnish it with written summaries of all changes to the JTR, particularly since such changes would be available through an Internet hyperlink.
13. Article 18 - Training
a. The Union’s Position
With the exception of official time for labor relations training (Section 18.09), the parties’ final offers are similar. In regard to that issue, the Union proposes a 600 hour bank and up to $5,000 towards travel and per diem each fiscal year "for those Union officials who attend labor relations training of mutual benefit to the Union and the Employer." New stewards would receive 8 hours of training upon appointment. In addition, for every three out-of-town attendees, a rental car would be permitted. The labor relations officer and his staff would be invited to attend all sessions, and a limited number of other management officials would be invited to attend the opening and closing sessions. Of a somewhat more minor nature, "Government-wide" is inserted to show that these are the regulations being identified. As to employees who receive CPA certification and complete other self-development programs, they would be eligible for special act awards in accordance with Article 48 of the successor CBA on Professional Development.
Section 18.09 would basically retain wording in the current CBA that permits "3 complete days of labor relations training for up to 30 Union officials annually, plus travel time and expenses for out-of-town Union officials." Its current proposal sets limits on training hours and travel expenses to make them more acceptable to the Employer. In 2001, the Employer paid $8,045 and in 2002, $5,683, for these types of travel expenses. Other Federal sector agreements "demonstrate that other employers allow reasonable official time (no limits) to attend union training."
b. The Employer’s Position(9)
Official time for labor relations training should be drawn from the bank of hours the Employer proposes under Article 5, Section 5.05, which provides a total of 2 hours per contract year per Central Region unit employee for various representational activities. Among activities listed in that section are: (1) participating in "Employer-approved training designed primarily to further the interest of the Government by improving the Union-Employer relationship" and (2) attending "regularly scheduled Union events, i.e., National training, convention of which Employer is given reasonable advance notice and concurs with release from duties." An additional aggregate of 40 hours would be available each fiscal year for training new Union stewards. Moreover, under its proposed Section 5.09 of Article 5, the Employer also would "invest up to $5,000 per contract year for authorized travel and per diem expenses" in connection with activities identified in Section 5.05.
By comparison, the Union’s proposal is "very expensive" because it would use "a large amount of official time (30 employees at 32 hours = 960 hours)," yet does not provide compensating benefits, such as reducing the number of disputes or training new stewards who participate in Union activities beyond the annual training event. It is not cost effective to repeatedly train the same Union officials. Furthermore, such training would cost "approximately $25,362 annually" (600 hours X 32.27 per hour plus $6,000 for travel by Union attendees). Despite these financial concerns, the need to train new stewards, who have not previously received training, is acknowledged. The correct message to send is that training:
must focus on dispute resolution and efficient conduct rather than the Employer subsidizing, and thus endorsing, the same cycle of disputes and adversarial conduct that leads to inevitable third-party intervention.
CONCLUSION
After a review of the evidence and arguments presented by the parties on Article 18, Training, we conclude that they should adopt the Employer’s proposal to resolve their dispute over this article. In this instance, the parties’ differences are limited to the amount of labor relations training and related travel the Employer would fund for Union officials. While training is important to maintain a healthy labor-management relations program, in this instance, we are persuaded, as we were in our analysis of official time use in Article 5 above, that the Employer’s proposed changes to the status quo are more warranted than the Union’s. The limits on such time inherent in the bank concept will, in our view, impose reasonable controls over training costs. At the same time, the Union still retains the discretion to determine how it can most effectively allocate official time and travel reimbursement resources among those activities listed in Section 5.05 of Article 5.
14. Article 19 - Performance Appraisals
a. The Union’s Position
The Union’s version of Article 19 includes two groups of questions and answers that were part of agreements reached on March 12 and April 12, 1996, concerning the performance of GS-13 Technical Specialists and GS-12 Auditors, respectively. In addition, employees would be rated on a fiscal year schedule, with progress reviews to be conducted by April 15 (including review of the employee’s performance in relation to each critical element), and appraisals would be issued to employees by November 15. Appraisals would be based on completed DCAA Performance Notes, Form DCAA 1417-1, addressing all audit assignments over 80 budgeted hours, although audits with fewer budgeted hours could be reported. In completing such forms, the employee’s performance on each critical element would be included. The employee would be provided a copy of all 1417-1 forms within 30 days of the audit’s completion. As to the adjectival rating levels, reference would be made to DCAAM 1400.1PMM Chapter 17, Performance Management System for Bargaining Unit Employees, dated 2/95, at Section 4-3(b). Finally, an employee who receives an overall rating of exceeds fully successful or outstanding "will" receive consideration for an award; if the employee does not receive an award, the supervisor is to explain the decision in writing.
The Employer has failed to justify omitting previous mid-term agreements for the successor CBA. As to mid-term ratings, they are particularly important "to tell an employee how he is doing by providing scoring for each critical job element." This is emphasized by the number of recent firings. The use of a firm date for the mid-term review is to cure the problem of late mid-term reviews. In this regard, "many employees do not receive these mid-year appraisals until near year-end." In addition, a reasonable issuance date for performance appraisals helps ensure that the process is not open-ended. As in Article 16, Travel, in its proposal, the Employer has modified some wording agreed to with the help of the FLRA’s CADR Program. In one instance, the Employer has changed language on: (1) not deferring appraisals when a new supervisor is appointed and (2) not delaying appraisals for personnel who are laterally moved to a new or changed position (Union Section 19.08E.1 and 2; Employer Section 19.08B.1 and 2). In another, the Employer changed wording involving whether an employee with an overall rating of exceeds fully successful or outstanding "will be considered for an award" or "may be considered" (Union Section 19.09; Employer Section 19.08C.3).
b. The Employer’s Position
In Article 19, the Employer proposes to conduct a midyear progress review and discussion with each employee. The review is to be documented in writing, but not "formalized to the point of applying an interim or informal rating" (Section 19.06). The one exception to the end of fiscal year requirement for completing annual performance appraisals addresses those employees or supervisors who need 90 days of on-the-job performance/observation and new hires who are evaluated from the date of entry on duty. Subsequently, trainees and new hires would receive an evaluation of the short period ending on September 30th. Employees rated exceeds fully successful or outstanding "may" receive consideration for a performance award, but the proposal does not include any requirement for a written explanation when an award is not granted.
Regarding the Union’s proposals, the 1995 document on adjectival rating levels it refers to is "approaching 8-10 years in age, [is] no longer applicable and [is] unnecessary"; it is better to follow agency policy and the intent of 5 C.F.R. § 430. Insofar as the Union’s proposal would require a supervisor to gave a mini rating for each job element, it does not follow "the intent of the CFR which states the purpose of the mid-year or progress review is ‘a review of progress toward achieving the performance standards which is not in itself a rating’." In other respects, it is equitable to consider granting awards to employees whose performance exceeds fully successful, even though they may not be recommended for an award; "78 percent of all unit employees earn an Exceeds Fully Successful rating or higher." Since 1.5 percent of total compensation dollars is the maximum amount the agency can budget for awards, the number of awards granted must fit within that amount. On the subject of providing written reasons when an award is not granted, "most, if not all, Supervisors communicate their decision to employees in a private meeting and the status quo process is the employee may inquire and receive an explanation." To do more would create "an unnecessary administrative burden."
CONCLUSION
Having reviewed the parties’ proposals and their statements of position, we conclude that they should adopt the Employer’s proposal to resolve their dispute on this issue. In many areas of Article 19, the parties have either resolved their differences or proposed slightly different wording. Insofar as there are differences, we believe that the Employer’s version is less administratively burdensome and, as is appropriate for a CBA, more concise. On the former point, when an employee who is rated exceeds fully successful does not receive a award, we find that the supervisor’s giving reasons orally rather than in a written format is sufficient, and may actually prove more satisfactory since the employee would have the opportunity to ask follow-up questions during the discussion. On the latter, we are not persuaded that the CBA is the appropriate location for 3½ pages of questions and answers on performance issues. With respect to the Union’s allegation, nearly identical to that discussed above in Article 16, Travel, that the Employer is repudiating wording previously agreed to with the assistance of the FLRA’s CADR Program, we shall order the adoption of the Employer’s final offer, but only to the extent that it is consistent with any agreement reached by the parties in their meetings with the CADR representative.
15. Article 21 - Details, Temporary Promotions, Rotations, and Extended Temporary Duty
a. The Union’s Position
The Union proposes that if a detail to a higher grade position exceeds 45 days, a temporary promotion is to be utilized. Clarifications in the form of one-sentence definitions – reassignment, detail, rotation, and temporary duty station (TDY) – are provided. On rotations, they are to be expected for newly- hired auditors up to the GS-12 level, and while not normally required thereafter, they are encouraged. For voluntary rotations or reassignments, a 60-day notice period is to be given. If they involve a permanent change-of-station (PCS) move, at least 90-days’ notice should be given, and even when within the same commuting area, PCS move authorization is to be given in accordance with the Federal Travel Regulations (FTR). When reassignments are involuntary, they can be made at any grade level, and are to be based on inverse seniority. Should the selected employee announce an "intention to retire within 2 years of the effective date of the reassignment, the employee can request to not be reassigned." Reassignment selections are to be based on "quality and merit" without regard to the employee’s race, color, national origin, religion, sex, etc.
When it is the duty station of a Union representative that is being changed, the representative is to receive 4-months notice. On the subject of procedures for extended TDY,(10) the Employer is to first seek volunteers from among employees at overstaffed offices for locations where staffing shortages exist; volunteers would have at lease 3 business days to come forward. In this process, the most senior employee from the overstaffed office would have the right of first refusal. If the number of volunteers was insufficient, "then the least senior, fully successful GS-12 or above employee" would be involuntarily selected. An employee who served on an extended TDY the preceding year would not normally be given a similar assignment during the next year.
On the extended TDYs, the Union’s proposals comport with the "historical desire" to give such assignments to volunteers; when there are an insufficient number of volunteers, then seniority should be applied to determine who will be assigned. While a 60-day period now defines an extended TDY, changing to a 15-day period would be "consistent with the typical length of an audit [] and the desire to return home on alternative weekends." It also would spread out the "opportunity, or burden, of TDY." The 90 days the Employer proposes, by contrast, would be "onerous," affecting, among other things, family and educational activities. For example, "those trying to complete advanced degree programs or attempting to obtain a CBA certificate." Seniority as the selecting mechanism is preferable because it is "objective, readily determined, consistent with other uses of seniority, and not subject to manipulation."
b. The Employer’s Position
Under the Employer’s proposal, if a detail to a higher grade position exceeds 60 days, a temporary promotion is to be utilized to assign an employee temporarily to the higher-graded position or one with known promotion potential. The reader is referred exclusively to the DCAA PMM, Chapter 37, on the subject of procedures for the auditor rotation. As to extended TDYs, they are defined as "a temporary assignment to an area outside the individual’s normal commuting area for more than ninety (90) days." Employees would be provided with information about "unique qualifications [if any are] needed," for such assignments. Selections would be made from the list of qualified volunteers "to the maximum extent possible," and the Employer would provide "as much advance notice as possible (five business days in most cases)." When "the number needed is less than the number of volunteers, then the least senior, qualified, fully successful GS-12 auditor will be involuntarily selected."(11) If an employee believes that the involuntary selection would cause a hardship, the Regional Director is to make the final determination after the Hardship Committee issues a determination and/or rates the employees, if more than one pleads a severe hardship.
The Union has not demonstrated a need to change the status quo on the length of time before a detail is considered a temporary promotion. In this regard, only one grievance has been filed in the last 6 years on the topic.(12) The Union’s proposal "would impose a restriction on existing and needed management flexibility." The proposal also would introduce confusion since it would apply sections of the FTRs in Article 21, when in Articles 5 and 16 the Union is agreeing that the JTRs govern reimbursement. In addition, the Union’s proposals on rotations and involuntary reassignments are likely contrary to management rights under the Statute since they are based solely on seniority, without permitting the Employer to consider qualifications, skills, and needed experience. Finally, the Union’s extended TDY proposal does not acknowledge "that qualifications must be part of the calculus in determining who is best suited to perform agency work."
CONCLUSION
Following a thorough review of the parties’ proposals and the information presented in the parties’ statements of position, we conclude that the parties should adopt the Employer’s proposal to resolve their dispute over Article 21. Most importantly, we find, in agreement with the Employer, that limitations imposed by the Union’s proposal (4 months’ notice for Union representatives subject to a PCS; rotations not normally being required for employees at the GS-12 Senior Auditor level or higher; and excusal from reassignments for employees who announce an intention to retire within 2 years of the reassignment) are not supported by adequate justification.
As to selection procedures for extended TDY assignments, we believe that the Employer should retain the latitude to consider "unique qualifications" beyond seniority; the Union’s proposal would by contrast force the Employer to rely solely on seniority.(13)
In addition, we are convinced that the Union’s reference on the FTR for PCS move authorizations, when elsewhere in the successor CBA the JTRs are the governing regulations, would be both inconsistent and confusing. The Union has also failed to substantiate a need to change the status quo concerning the time frame for details. By the same token, we recognize that the Employer’s proposal introduces certain changes without testing their impact, which may cause a hardship to employees (for example, by instituting a longer period – 30 days more than the current CBA – for extended TDYs, and dropping the current 3 weeks’ advance notice to Union representatives of a change in duty station). Since the procedure adopted to resolve this dispute generally requires the selection of a party’s final offer for an entire article, we find that the limitations the Union’s proposal would impose on management’s ability to move employees with expedition to understaffed locations to meet mission-related needs outweighs its potential benefits to employees.
16. Article 24 - Discipline
a. The Union’s Position
The Union proposes that oral admonishments remain in a supervisor’s file for 90 days (the status quo) and be grievable (not the status quo). Disciplinary actions are to be timely, and if not, an employee is to be informed that such action is under consideration. When taking disciplinary action, the Employer is to "give regard to" the Douglas factors.(14) Each time an investigatory meeting that might give rise to discipline is held, the employee is to be informed of the right to Union representation (Weingarten rights).(15) In addition, a form indicating whether the employee wishes to be represented at the investigation is provided. The section, which clarifies that an oral admonishment is not a disciplinary action, is carried over from the current CBA. The current procedure for reprimands is also proposed for the successor CBA. This procedure includes a meeting with the supervisor to inform the employee of the intent to issue a reprimand and the underlying reasons. The Employee is allowed 10 days to respond. As a second step, if the employee’s explanation is not sufficient, the reprimand is issued.
Essentially, the Union questions why the Employer is unwilling to use the term "oral admonishment" in lieu of "letters of warning," since the former is used in the DCAA PMM. In other respects, it simply points out differences between the parties’ proposals.
b. The Employer’s Position
The Employer would retain a letter of warning for up to a year; such letters would not be grievable (the status quo). No information would be given to an employee when disciplinary action is only under consideration. Instead of referring to the Douglas factors, in taking disciplinary actions, regard should be given to the principles of progressive discipline. While the Employer’s practice is to inform employees annually of the right to Union representation (Weingarten rights), only sections addressing the right to receive advance notice of formal meetings and the right to be represented at such meetings are included. A letter of reprimand is described as a "formal disciplinary letter" for "misconduct or repeated infractions of a minor nature which are sufficiently serious to warrant formal disciplinary action." They are retained for a period of up to 2 years. Such letters are discussed with and reviewed by a personnel management specialist prior to being issued, and may be used to support future charges against an employee.
The Employer believes that its explanations of oral admonishment and letters of warning are clearer than the Union’s. Furthermore, the Union has not shown that excluding oral admonishments from the negotiated grievance procedure "is problematic or warrants change." As to notifying an employee that discipline is being considered when such consideration takes extra time, such notice "would result in disruption and speculation in the office" because neither the employee nor the Union would acquire any additional rights. Anything more than an annual reminder of Weingarten rights would "effectively alter the Statute by adding requirements." Furthermore, management has taken few disciplinary actions: "In FY 2000 – 1; FY 2001 – 3; FY 2002 – 3." The "extra layer of due process" that the Union proposes before a letter of reprimand could be issued "is not needed because a Supervisor who carelessly issues a letter of reprimand will get it overturned in whatever appeal process the employee elects." In such circumstances, if the employee decides to hire a private attorney, disclosure of employee information to the Union without the employee’s consent would likely violate the Privacy Act.
CONCLUSION
After considering the statements of position and final offers presented by the parties on the portions of Article 24 that are in dispute, we shall order the adoption of the Employer’s approach to resolve their dispute. Initially, the Union has provided insufficient evidence to support a requirement that supervisors provide more than the annual reminder of Weingarten rights. In this regard, annual reminders appear to be the norm in the Federal sector. The more frequent notice the Union proposes would, in our view, open the possibility that legitimate disciplinary action might be overturned because the management official conducting the investigation inadvertently forgets to remind the employee of his or her Weingarten rights. As to oral admonishments, given that the parties themselves agree that they are relatively minor and not disciplinary in nature, we believe that a supervisor should have the option of retaining them beyond the 90 days the Union proposes.(16) In certain areas where the Employer’s final offer represents a change in the status quo (notice of disciplinary action under consideration, the pre-reprimand procedure, etc.), the Employer provides sufficient justification for its position. For example, providing employees with notification that discipline is under consideration could cause needless disruptions in the workplace. As to the "pre-reprimand" procedure, since the employee and supervisor are likely to discuss such matters, the procedure appears unnecessary. For these reasons, we shall adopt the Employer’s proposal on Article 24.
17. Article 25 - Adverse Actions
a. The Union’s Position
In taking adverse actions (removals, suspensions over 14 days, reduction in grade, pay, etc.), the Union proposes the application of "like penalties for like offenses and progressive discipline, as appropriate." Other factors to be considered include "mitigating circumstances, the nature of the position occupied," etc. As to the degree of discipline, it should be "proportionate to the offense" and "determined on a case-by-case basis." In the area of documentation for proposed adverse actions, when witnesses are to be relied on, the Employer will provide the Union with their identity. Prior to any oral reply, written statements are to be provided, as well; such materials may be sanitized as required by law. When an employee makes an oral reply, which should be at the employee’s worksite, the Employer is to provide a written summary. From the time the summary is received, the employee would have 4 days to submit an alternative version or comments. The employee is entitled to "use the same means as the Employer to make notes during the oral reply." Written decisions are to be made within 30 calendar days.
During the 30-day advance notice period, when the employee is determined to be a threat to him or herself, or others, and the agreed-to alternatives (duties where the employee would not be a threat, leave with the employee’s consent, or appropriate leave if the absence is for reasons not originating with the Employer) are not selected, "the Employer may place the employee in a paid, non-duty status during all or part of the advance notice period, if otherwise consistent with applicable law, rule or regulation."
In three instances, the Employer’s proposal alters wording the parties agreed to with the assistance of the FLRA’s CADR Program: the first (in Section 25.02) omits the phrase "bargaining unit" before the word employee; the second (in Section 25.03 A) adds "consistent with 5 C.F.R. 752.404" to a passage addressing problems with retaining an employee in active duty status during the notice period; the third (in Section 25.25.04), entirely omitted by the Employer, addresses ways to deal with employees under a proposed removal who pose a threat to themselves or others at the workplace.
b. The Employer’s Position
The Employer’s proposal begins with an instruction that the terms of Article 25 are to be consistent with the Privacy Act. An employee who is the subject of an adverse action is to be given "a written decision and the specific reasons at the earliest practicable date, consistent with Government-wide regulations and law." Grievances contesting the validity of such actions are to be filed at the third step of the grievance procedure. Finally, when the Union moves a matter to arbitration, "the arbitrator shall be governed by Section 7701(C)(1)(B) of Title 5 of the United States Code"; this means that the Employer bears the burden of proof, and its decision is to be sustained if it is supported by a preponderance of the evidence.
Preliminarily, with respect to Section 25.04(D), agreed-to wording that the Union alleges to have been omitted, the Employer claims it cannot find such wording in the agreement brokered by the CADR Program. The most significant difference between the parties’ proposals are the "entitlements" the Union proposes for employees facing adverse action. These subsections, which require the release of witnesses’ names, would be disruptive. In some instances, the Employer might not actually call on the witnesses to testify, nor use their statements. In addition, release of witnesses’ names "has previously prompted attempts to get the person to retract their statement." Such events have "a chilling effect on management’s right to discipline and its duty to protect against violence in the workplace." On the location of the oral reply, the Union’s proposal would force senior management officials to travel to the affected employee’s office "where his/her coworkers are and obvious questions, discussions and breaks in work would result." As to preparing summaries of oral replies, the terms the Union proposes "involve the delegation of work by the Union to the Employer." A preferred approach is for each party to make its own record of meetings.
CONCLUSION
After considering the evidence and arguments presented by the parties, we conclude that to resolve their dispute over Article 25, they should adopt the Employer’s proposal, but only to the extent that it is consistent with any agreement reached by the parties in their meetings with the FLRA’s CADR representative. In our view, each side in an adverse action should be responsible for preparing their own summaries of the oral replies. The steps the Union proposes on the content of the summary could lead to additional bickering, if not litigation. With respect to delivering all oral replies at the affected employee’s worksite, we are persuaded that under some circumstances, that location might be disruptive. Finally, on the issue of releasing the names of witnesses and testimony, the matter is sufficiently covered by the Employer’s proposal. The relevant wording is taken from the current CBA, and the Union has not cited instances which demonstrate that the information provided under that subsection has been deficient.
18. Article 26 - Unacceptable Performance
a. The Union’s Position
In its proposal, the Union would require the Employer, when taking performance based actions, to "act in as fair and objective a manner as possible" to avoid disparate treatment of employees. Performance actions would not be processed if taken: (1) under a position description other than the employee’s; (2) when performance expectations have not been communicated; and (3) when the performance occurred more than 1 calendar year before the date the employee received the advance notice letter. The Employer is to inform the Union of discussions concerning these actions so that the Union can offer the employee Union representation. An advance notice of 30 days is required that: (1) identifies instances of unacceptable performance, (2) identifies the critical elements involved, and (3) informs the employee of the right to representation by the Union, an attorney, or other person. The charge code for official time to prepare an answer is provided. The Employer is to communicate the identity of witnesses relied on and any written statements obtained. In turn, the employee may submit affidavits and other documentary evidence in support of the answer. An action for unacceptable performance based upon medical inability to perform may be stayed for at least 180 days, so that the employee’s application for disability retirement can be granted or denied. The Employer, however, may "at any time determine [] that a continuation of the stay beyond 180 days poses an undue hardship [] and process the action." If OPM approves the disability retirement application, the employee may opt to use available sick leave prior to retiring. As to time limits in this article, they may be extended "for good cause shown." Finally, non-preference eligible employees in the excepted service would not be permitted to exercise an option to appeal to the MSPB.(17)
b. The Employer’s Position
In general, the Employer proposes to comply with OPM regulations in taking performance based actions; cites are provided in the Article to the relevant Government-wide regulations in lieu of restating or paraphrasing their content. These cites address (1) giving advance written notice of reductions in grade or removal; and (2) not precluding or delaying any other appropriate agency decision or personnel action when disability retirements are being considered. On the subject of formal discussions, the Union is to be informed "consistent with 5 US Chap 71 and the Privacy Act." Reasonable extensions of time are promised "on a case-by-case basis." Finally, the Article essentially covers all unit employees except those who are "serving a probationary or trial period under an initial appointment";" are subject to a suspension or removal "in the interests of national security"; or are being separated or reduced in pay or grade as the result of a RIF.
The Union’s section requiring the Employer to act in as fair and objective a manner as possible, and to avoid disparate treatment, is objectionable because it "presumes the Employer acts or has a record of taking actions for other than merit based reasons." The same concerns expressed with respect to similar wording in Article 25 exist regarding the Union’s proposal on the release of witness names. In addition, the Union’s proposal does not "acknowledge the applicability of the Privacy Act." With respect to the Union’s proposal that the Employer grant official time for preparing an answer, its adoption "would usurp management’s authority regarding approval or disapproval of leave by making the decision a unilateral one by the employee." As to appeals by non-preference eligible employees to the MSPB, the Union proposal is contrary to MSPB case law and "the 1990 Civil Service Due Process Amendments, Pub. L. No. 101-376, 5 U.S.C. 7511(a)(1)(C)(ii)(Supp. IV 1992)."
CONCLUSION
Following a full consideration of the parties’ proposals and the Employer’s statement of position, we conclude that the parties should adopt the Employer’s proposal to resolve their dispute over Article 26. Preliminarily, because we are adopting the Employer’s proposal, we need not address its contention that the Union’s proposal would improperly exclude non-preference eligible employees from exercising MSPB appeal rights. Many of the discrepancies between the parties’ proposals arise simply because the Union furnishes its version of what the Government-wide regulation provides, while the Employer includes website addresses to locate particular regulations. In our view, the use of hyperlinks, particularly for this generally well-educated workforce, is preferable since it will ensure that employees are provided access to the most up-to-date and accurate version.
19. Article 27 - Grievance Procedure
a. The Union’s Position
Under the Union’s proposal, multiple grievances that "involve the same issue and arise from the same or similar facts and actions, initiated by more than one employee, may be joined and processed as one by the election of either party." When an employee does not elect to be represented by the Union during grievance proceedings, "the Union will be given reasonable advance notice (at least two workdays) of such meetings"; the Union also is to be provided with copies of all such grievances and other related correspondence. On alternate Union representatives, one may be appointed when, among other reasons, "the initially appointed representative lacks sufficient experience to adequately process the grievance." All representatives would be local stewards "if they are qualified to process the grievance or a qualified steward that is closest geographically to the grievant in order to minimize travel expenses."
At step 1, among other things, "if the immediate supervisor did not take the action being grieved or does not have the authority to resolve the problem, the aggrieved employee or representative may, instead, present the grievance to the management official at the appropriate step." Grievances are to be presented to the "appropriate" management "official" and, when an employee does not ask for Union representation, the Union president or designee would be provided with a copy of management’s written response to the grievance.
As to time frames for grievances, they must be presented in writing within 20 calendar days from the date the employee or Union became aware of the grievance (the status quo). The response time for an answer to a step 1 grievance is 7 calendar days. At step 2, the grievance meeting is to be held 3 calendar days after receipt of the grievance, and the written answer is due within 7 calendar days following the meeting. If there is no response within that time frame, the grievance may be elevated to the next step. The deadlines are the same at step 3.
Institutional grievances begin with a non-mandatory informal discussion. If that step does not resolve the grievance, the Union president may file a written grievance with the Regional Director or the Employer may file the grievance with the Union president. Such grievances must be filed within 30 days of the action being grieved and state the part of the CBA being violated. The written answer is due within 14 days of receipt of the grievance. When the issues and circumstances in one grievance are nearly identical to those in one or more other grievances, it is difficult to understand management’s reluctance to consolidate them in one procedure.
Ten subjects would be excluded from the negotiated grievance procedure; that number "is in line with current CBAs approved by other employers." By contrast, the Employer’s proposal to exclude 18 matters is "extremely unreasonable." As to advance notice when the Union is not selected as the grievant’s representative, such notice will facilitate the Union’s presence at grievance meetings since "Union stewards [are not] available in all geographic areas," and may have to travel to such meetings. In circumstances where the employee asks for Union representation, it may be necessary to replace a local steward with a steward from elsewhere to ensure the representative has the needed experience.
In the area of institutional grievances, the Union’s proposal is essentially the same as the current section with a few minor changes, but the Employer’s proposal is "almost a complete rewrite." The Employer’s new version relies, at first, on meetings of the Labor-Management Committee, which "has existed in our current CBA for over 6 years and no such meeting has ever taken place." The Employer’s language "would hinder our ability to enforce our contract, as we would never meet to resolve any issues that would trigger the grievance procedures." Examples are presented of some agreements by parties elsewhere that contain similar time frames (although some are tighter) and institutional grievance procedures.
b. The Employer’s Position
Among matters excluded from the negotiated grievance procedure under the Employer’s proposal would be "a preliminary warning/letter of warning/oral admonishment or proposal of an action which, if effected, would be covered under this or a statutory appeals procedure." Another eight exclusions are: non-selection for promotion; non-adoption of a suggestion; disapproval of a quality step increase or any other kind of honorary or discretionary award; the content of published Agency policy when the Union bargained over it; promotion potential ratings/scores; mid-year performance reviews; and performance ratings above fully successful. If a grievance alleging EEO discrimination is filed, this article governs the procedure and Article 5, governs the official time. If, instead, the employee files an EEO complaint, the procedures and processing of all phases are covered by Article 33. The presence of a Union representative at grievance meetings where the grievant does not opt for a Union representative are to be "consistent with the Privacy Act."
Regarding time frames for grievances, they must be presented in writing within 15 days of the date the employee or Union become aware of the grievance. At step 1, the written answer to the grievance is to be provided within 14 days; if it is not provided within 21 days, the grievance may be moved to the next step. At step 2, a grievance meeting is to be held within 7 calendar days after receipt of the grievance, and a written answer given within 14 calendar days of the grievance’s receipt. If the Employer does not respond within 7 calendar days following the meeting, the grievance may be advanced to the next step. At step 3, "the services of FMCS and interest-based techniques will be used to the maximum extent possible to resolve disputes." Should the matter remain unresolved, within 7 calendar days it may be forwarded to the Regional Director, who is to respond within 14 calendar days. Step 4 provides for arbitration "consistent with 5 U.S.C. 7121." A decision or settlement prior to arbitration "does not constitute a precedent for other grievances that is binding on the Employer."
On the subject of institutional grievances, step A is to attempt to resolve the grievance informally at a meeting of the Labor-Management Committee. At step B, the moving party may request that the responding party provide its written position within 30 days. If no response is received or the written response does not resolve the dispute, arbitration may be invoked by the moving party under the procedure in Article 28.
Regarding changes to the list of exclusions, the Employer contends that the Union has not adequately supported its proposal to decrease the number of exclusions to the grievance procedure. For example, permitting grievances over the non-adoption of a suggestion, the disapproval of a quality step increase, or other honorary or discretionary awards "would permit third-party determination of the merits of an employee’s performance and the extent to which it should be rewarded." Furthermore, although a grievance by an employee who believes "he or she was improperly eliminated from the list" may be appropriate, the Union’s proposal to allow grievances over non-selection of a candidate for a position that has been properly ranked and certified to the selection official is "an impermissible infringement on management’s rights under section 7106(a)(2)(C)(i) of the Statute." In this regard, including final selection within the ambit of a grievance arbitrator would essentially "permit an arbitrator to make the selection." Permitting the Union to grieve published agency policies that the Union has already bargained over would "permit the Union the proverbial two bites at the apple." The Panel has adopted exclusions similar to these in previous decisions.
By contrast, the exclusions that the Employer proposes do not appreciably narrow the scope of the grievance procedure. A promotion potential rating/score is not an action that harms an employee, but "a subjective evaluation by the Supervisor of the employee’s potential for promotion." A third-party decision on this matter would determine "the merits of an employee’s performance and interferes with management rights to direct and evaluate employee performance and its right to determine qualifications." Similarly, mid-year performance reviews are not actions against an employee and should not be subject to grievances; only three such grievances have been filed in the last 6 years. If the Employer lacks discretion over a matter, it should be excluded on the basis that "where no privity [of contract] exists, no contractual obligation(s) exist." Grievances also should not be filed over performance ratings that are higher than fully successful. Normally, such grievances might be self-limiting if the Union had limited resources, however, this Union reported $215,491 in net assets to the Department of Labor for FY 2001. If the Panel adopts the Union’s proposal to make awards mandatory (Article 39), the exclusion becomes even more meaningful to the Employer. The Employer’s proposal to separate official time for alleging discrimination under the grievance procedure from that used for pursuing EEO regulations sets "clear rules for all parties to follow." As to selecting a steward that is closest geographically to the grievant, this avoids unnecessary travel expenses and "represents no material change from the status quo."
On the subject of grievance time frames, the Employer’s proposal "represents a more reasonable and timely approach [] than the Union proposal." In the area of institutional grievances, where much litigations starts, the Labor-Management Committee and the use of interest-based techniques is a good way to begin dealing with such problems.
CONCLUSION
After considering the evidence and arguments presented, we conclude that the Union’s proposal offers a better resolution to the parties’ dispute over Article 27. While the parties disagree over many subissues within the Article, their differences can be boiled down primarily to the time frames for processing employee grievances, the efficacy of using the Labor-Management Committee as the first step in resolving institutional grievance, the subjects to be excluded from the grievance procedure, and reference to the Privacy Act. On the first of these differences, we are persuaded that the shortened time frames the Union proposes will ensure that grievances are handled more expeditiously. With regard to institutional grievances, because the Labor-Management Committee has not met in the 6 years since its establishment in the current CBA, it is clear that more must be done to improve the parties’ relationship before such measures are relied on as a first step to resolving such grievances.
As to the exclusions, the FLRA and the courts have found that the party proposing to narrow the scope of the negotiated grievance procedure bears a special burden of proof if the matter is presented to the Panel;(18) the Employer proposes to add 4 exclusions to the 14 that are currently listed in the CBA, and retain 4 others that the Union proposes be dropped. Upon review, we are not persuaded that the Employer has sufficiently met its burden with respect to those items it would retain or add. For example, in grievances over non-selection for promotion, it has argued that they would result in infringements on management’s right to select through the substitution of an arbitrator’s judgment for that of the Employer’s. In our view, if some violation were found, the arbitrator is more likely to order the Employer to rerun the selection process to cure the noted defect. In any case, arbitrators who overstep the boundaries of existing case law undoubtedly would have their decisions appealed to the FLRA. Finally, the fact that the Union’s final offer does not specifically refer to the Privacy Act does not imply that the parties are free to violate its requirements. The current grievance article does not refer to the Privacy Act, yet the Employer has presented no evidence to establish that this has had any detrimental effects.
20. Article 28 - Arbitration
a. The Union’s Position
With respect to the FMCS fees associated with the selection of an arbitrator, the Union proposes that the "charging party" pay the fee and that, within 14 days, the non-charging party reimburse the charging party with its half share. As to the site for hearings on institutional grievances, "they should alternate between the site of the Union President and the Employer," beginning with that of the Union president. After receipt of the list of arbitrators, the parties are to communicate within 7 calendar days. The hearing date, short of mutual agreement otherwise, is to be set within 60 days of selection of the arbitrator. Among other things, the arbitrator is to be governed by "Government-wide rules and Government-wide regulations in existence at the time this agreement was approved." The party responsible for a postponement, delay, cancellation, etc., for any reason, will pay any fees the arbitrator charges. If the parties settle the matter before it is heard by the arbitrator, the parties are to share equally any costs charged by the arbitrator. As to travel and per diem, the Employer is to pay all such costs for the grievant, his representatives, and all employee witnesses.
On the payment of FMCS fees, the Union contends that the Employer has, in the past, delayed payment for several months. As to the location of arbitrations, the site should be rotated so that travel expenses will even out over time. Concerning the 60 days for scheduling arbitrations, this would address the Employer’s previous practice of stalling the completion of such arrangements. Currently, nine institutional grievances are pending, but in only two has an arbitrator been selected. Sections have been added to "establish who should pay arbitrator fees in certain circumstances" and to clarify "who is responsible to pay for the travel expenses of the grievant, witnesses, and representatives," to avoid future problems. Responsibility for travel and per diem reimbursement for all participants at an arbitration is shifted to the Employer.
b. The Employer’s Position
Under the Employer’s proposal, on institutional grievances, those filed by the Union are to be heard at the Employer’s site, and those filed by the Employer at the Union’s site. After receiving the list of arbitrators, the parties are to communicate within 10 calendar days. Among other things, the arbitrator is to be governed by "the regulations of appropriate authorities (e.g., Government-wide rules and regulations) in existence at the time this agreement was approved." For clarification, the costs of obtaining a list of arbitrators from FMCS is to be shared, and witnesses are to be excused from duty, without loss of pay or leave "consistent with Article Five (5), Section 5.04."(19)
The Union is attempting to change the status quo with respect to the location of arbitration hearings. That change "would result in excessive costs, unnecessary use of official time and travel." As to witnesses, historically, the Union has paid for its own witnesses; the Union’s proposal would again change the status quo by requiring the Employer to pay travel and per diem costs for employees called as witnesses. The Employer has granted official time to such witnesses if there was no dispute as to whether they are needed or the arbitrator so declared. As to delays in the scheduling of arbitration hearings, "the only source for delay lay at the Union’s collective feet." In a number of instances, cases pending arbitration are over 4 years old "with no action on the Union’s part to proceed to hearing."
CONCLUSION
Having considered the parties’ proposals and their written positions, we conclude that they should adopt the Employer’s final offer to resolve the disputed areas in Article 28. In reaching this conclusion, we find that the Employer’s proposal, which is nearly identical to the current article, is more tailored to controlling travel costs, particularly those related to witness travel, than the Union’s. In our view, shifting such costs entirely onto the Employer would be unwarranted. Instead, controlling such costs should be a shared responsibility to the same extent as other aspects of the arbitration procedure. With respect to the 2-month time frame for scheduling arbitrations, we are unable to sort out which side may be causing the current delays and, therefore, are unable to find that the Union has demonstrated a need for altering the status quo on this subject. On the location of arbitration hearings, there is also insufficient evidence in the record to support a change in the current system.
21. Article 29 - Services, Facilities, and Publicity
a. The Union’s Position
Article 29 addresses services, facilities, and publicity, primarily pertaining to the conduct of Union representation. The Union’s proposal invokes the parties’ November 14, 2000, Agreement (2000 Agreement), titled "Use of Government Office Equipment," which establishes the circumstances under which Government-owned equipment may be available for personal use. In the Union’s view, the 2000 Agreement permits its use for internal Union business during non-work times (lunch periods, break times, weekends, and holidays). As to Union notices on bulletin boards, they should be located "where notices are usually posted to the attention of employees at each office." On their content, "the material will not be scurrilous or libelous." With respect to photocopying machines, Union representatives may use them "for Employer/Union communications." When distributing Union mail, the Employer is not to open "individually addressed envelopes." Regarding computer-related equipment for the Union office, the following should be provided: "an HP Laser printer, a color monitor, and plain paper FAX all of equal or better performance capabilities as that used in the Central Region Labor Relations Office."
As occurred in connection with previous articles, the Employer has again impermissibly altered wording agreed to during sessions with the FLRA’s CADR Program, possibly in an attempt to take away the Union president’s Union office. In addition, the Employer is proposing limitations on material placed on bulletin boards that goes beyond the status quo by adding the terms "defamatory" and "offensive." The problem with these additions is that "any negative comment is bound to be offensive to somebody." The Employer could raise at any time a constraint on the use of equipment because it would "impede mission needs," which is why such wording "is not in our current CBA." On the sentence about not opening mail the Employer distributes to unit employees from the Union, "it simply means they will not open employees’ mail." The last sentence of the Employer’s proposal outlines how the Union president must use the laptop computer: "We don’t think that Management has the right to tell the Union president how he will conduct his off-site official Union activities."
b. The Employer’s Position
The Employer’s proposal grants the Union president or his designee the exclusive use of certain equipment, which he is also to use when performing agency auditing work. On Union notices, they may be posted on bulletin boards at each office "where bargaining unit employees are assigned." Such material is not to be "defamatory, offensive, scurrilous or libelous using a reasonable person standard." Equipment provided to Union officers and stewards may be used "for representational matters as long as such use does not impede mission needs," and not for "internal Union matters." As to the laptop provided to the Union president, it may be used "for official off-site Union activities, e.g., mid-term bargaining, arbitrations, etc."
Since at least 1993, prohibitions against "Union use of Government property for internal Union business" have been in place. Furthermore, that prohibition is consistent with "5 CFR 2635.704 (2002) which requires employees within the Executive Branch to protect and conserve such property and not allow its use for other than authorized purposes." The Employer’s proposal also is consistent with the parties’ November 14, 2000, agreement. That agreement precludes the Union’s use of Government property for internal Union business by referring to Article 29 of the current CBA, which "expressly forbids such use." Moreover, because the Union "is not new or ‘poor’, [] it is inappropriate for the taxpayer to subsidize such activities." As to the Union president, while the proposal grants him an office, the wording also "acknowledges that agency work (i.e., auditing work) should be performed by the Union president (and other Union officials) when they are not engaged in representational activities." Regarding his laptop, it should be brought with him so that the Employer does not have to provide another computer at negotiations (i.e., in Article 8, Section 8.09 (C), the Union proposes the Employer provide a computer at negotiations). Insofar as the Union proposal permits access to the workplace on weekends, it "affects the Employer’s ability to manage its internal security and subjects the Employer to Worker’s Compensation liability and claims among other issues."
CONCLUSION
After considering the statements of position presented by the parties on the disputed portions of Article 29, we conclude that they should adopt a modified version of the Union’s final offer to resolve their dispute. A careful review of their proposals indicates many areas of general agreement, some of which represent changes to the current contract article. The parties’ main differences appear to concern the standards that should apply for notices to employees posted by the Union on bulletin boards, whether the Employer’s final offer accurately sets forth agreements reached during meetings with the CADR office, and the use of Government office equipment for internal Union business. With respect to notices posted by the Union, the Employer has failed to demonstrate why the standards identified in the current article, which the Union proposes to retain, need to be supplemented.
On the Union’s assertion, here and elsewhere, that the Employer has proposed wording that differs from what the parties have already agreed to, as we have indicated before, the Panel is not the forum for deciding such matters. In accordance with the approach we have taken in previous articles, the Union’s final offer will be adopted only to the extent that it is consistent with any agreement reached by the parties in their meetings with the FLRA’s CADR representative. Finally, on the use of Government equipment for internal Union business, the parties’ interpretations of their November 14, 2000, agreement differ significantly. It is also not the Panel’s role to interpret parties’ previous agreements in resolving impasses. In adopting the final-offer selection process to decide this case, however, the Panel specified that a party’s entire proposed article would be imposed only insofar as it is otherwise legal. In our view, sentence four of Section 29.01 of the Union’s final offer is inconsistent with FLRA precedent on the use of Government equipment for internal Union business.(20) For this reason, we shall order that it be withdrawn from the Union’s final offer.(21)
22. Article 31 - Equipment and Supplies
a. The Union’s Position
On equipment and supplies for bargaining-unit employees, the Union proposes that the Employer provide "all material and equipment that are reasonably required by employees to perform the duties," and that such items, technology, and training be obtained "as is necessary for the employee to accomplish the mission of the Agency in an efficient, productive, and professional manner." As to office space, "[w]hen a move of office space or equipment is likely to result in a change in working conditions, the Employer is to notify the Union." In addition to bargaining under Article 8 of the CBA, "the Union will participate in any early resolution of differences proposed by the Employer." For employees who use computers, the furniture (workstations or desks) is to be "designed for computer monitors," and may include "adjustable keyboard trays, adjustable work surfaces, [] and any other equipment required by the employee to perform the duties and responsibilities of their positions." Wrist rests "will" be provided on request. When more than one chair style is available, employees will be offered a choice. As to auditor credentials, because the Employer has changed its position, "there is no longer a dispute in this section."
Since the Employer conditions providing necessary equipment on funding availability, "some accommodation needs to be made concerning the employee’s performance evaluation." Current performance standards assume that "employees will have adequate equipment and supplies to perform their job in a productive and efficient manner." Under the Employer’s proposal, bargaining over office moves and reorganizations would be limited only to those employees who are adversely affected. This "will create employee unrest over perceived unfairness, if less senior employees get better supplies, equipment, or office location (windows, etc.) than more senior employees."
b. The Employer’s Position
The Employer’s proposal commits it to providing employees with adequate equipment, "unless funding is unavailable." On redesigned existing office space, Section 31.02, first paragraph, provides in part that if the change "adversely affects employees" or relocates them to a new area, the supervisor is to notify the appropriate Union representative and "negotiate a mutually agreed upon procedure for reassigning adversely affected personnel in advance of the change." The second paragraph of Section 31.02 provides:
However, if the parties are unable to reach agreement, bargaining unit employees will be assigned to work spaces based on most seniority as reflected by the employees’ service computation."
Ergonomically designed furniture is to be provided within budgetary constraints "as furniture is replaced;" wrist rests "may" be provided. As to auditor credentials, Common Access (CAC) Cards will be issued.
With regard to Section 31.02, the intention is "not to detract from Union rights, it simply seeks to follow the pattern the parties currently use." The current Article 31 is not one that has resulted in multiple grievances or other litigation. The idea is that the Union steward ascertains unit employees’ preferences and follows the rest of the Article for resolving any disputes. At the same time, "simply because one or two workstations are moved, this does not trigger a Union right to rearrange the entire office space which would prove costly both monetarily and in unproductive time." It is predicted that the auditor credential issue will be resolved as part of mid-term bargaining scheduled during the week of February 24, 2003.
CONCLUSION
Upon consideration of the parties’ arguments and positions regarding Article 31, we conclude that they should adopt the Employer’s proposal to resolve their dispute. Since, however, the second paragraph of the Employer’s Section 31.02 would permit the Employer to implement decisions regarding the redesign of existing space prior to completing bargaining, it represents a waiver of the Union’s statutory rights when negotiable changes in conditions of employment have occurred. Accordingly, we shall order its withdrawal. Overall, we find little difference between the parties’ proposals on equipment and supplies, but prefer the Employer’s version, which conditions their purchase on the availability of funding.
23. Article 32 - Health and Safety
a. The Union’s Position
In essence, the Union proposes to retain many of the provisions in the current CBA, including the Employer’s subsidy of no more than $25 per month for employees to join fitness centers/programs. New provisions proposed by the Union would require the Employer to pay up to $120 in fees for an employee to participate in a smoking cessation program; ensure that each office and sub-office has one employee trained in cardiopulmonary resuscitation (CPR); equip each office and sub-office with an automatic external defibrillator (AED), and train employees on the use of an AED; provide periodic health and safety presentations on topics such as disaster preparedness, disease prevention, sexually transmitted diseases, weight control, smoking and stress reduction; and allow a Union representative to accompany the safety inspector during any inspection of an unsafe or unhealthy condition which an employee has reported as a possible endangerment to health or safety, with the Employer to pay mileage costs associated with a Union representatives’s travel to and from the inspection site. All of these initiatives would promote employee well being in the workplace and help ensure that employees are working in a safe and healthful environment.
b. The Employer’s Position
For the most part, the Employer proposes to retain the wording in the current health and safety article, but eliminate those provisions which would require the Employer to subsidize the fees, up to $25 per month, charged to employees for their participation in health and fitness programs. Furthermore, the current contract wording that would require the Employer to provide the Union with a copy of all reports mandated under Executive Order 12196 should be eliminated as well. With respect to the health and fitness program provided for in the parties’ most recent CBA, it has been underutilized by employees as records show that for fiscal year 2002, subsidies to employees for their participation in health and fitness programs amounted to only about $3,000; the Employer’s administrative fees for this program, however, were nearly double the amount reimbursed employees. Union proposals that would mandate the installation of AEDs in each of the Employer’s 60 offices and sub-offices and require training for office personnel on the appropriate use of that equipment are extremely costly provisions, given that new AEDs cost anywhere from $975 to $5,200. Furthermore, not only would the Union’s proposal to train at least one employee in every office in CPR techniques potentially be costly, it also may infringe upon management’s right to assign work, i.e., training, to employees. Finally, adoption of the Union’s proposal on CPR and AED training may lead to law suits should employees fail to properly administer CPR or use AEDs.
CONCLUSION
Having considered the parties’ proposals and arguments on this article, we find that the impasse over the Health and Safety Article should be resolved on the basis of the Employer’s final offer. In our view, while employees may benefit from having an AED in each office and sub-office as well as personnel who are skilled in the use of that technology as well as CPR techniques, the cost associated with implementing these provisions would be significant and, therefore, we are not inclined to impose them upon the Employer. In this regard, using the lowest cost estimates provided by the Employer, it could cost a total of nearly $60,000 to install an AED in each office, which does not include the additional costs associated with training a staff person in the use of the equipment. On the other hand, we find the Employer’s proposal to be more realistic in terms of its financial impact on management. Furthermore, we are persuaded that the Employer has demonstrated a need to modify the current contract article by eliminating those provisions which concern a health and fitness program. In this regard, the record reveals that there apparently is a relatively low level of employee participation in the program, with the cost to the Employer to maintain a health and fitness program nearly double the monetary benefits provided to employees. Accordingly, we shall order the adoption of the Employer’s final offer on this article.
24. Article 33 - Equal Employment Opportunity
a. The Union’s Position
The Union’s proposed article is 10 single-spaced pages in length, and covers numerous EEO-related subjects. Among its most significant provisions are the following:
1. The Employer would provide one Union official with an opportunity to attend EEO-related training or conferences sponsored by the Equal Employment Opportunity Commission (EEOC) whenever the EEO Officer attends such training, at the Employer’s expense (Section 33.01 B);
2. The Employer would be required to fulfill its statutory bargaining obligations where the development and implementation of its EEO Plans and Program involve changes in personnel policies, practices, or conditions of employment; to negotiate over the substance and the impact and implementation of changes resulting from EEO settlements; and to afford the Union an opportunity to be present "at any and all meetings (including the ADR process), hearings and discussions involving the EEO complaint," regardless of whether the employee seeks Union representatives (Section 33.03);
3. The Employer would be prohibited from sending out notices to employees concerning their EEO rights which do not agree with the provisions of the article or the CBA concerning official time and the use of Government equipment (Section 33.04 F);
4. An employee would have 20 workdays to file a grievance from, among other events, the date he/she receives a "Notice of Right to File" from an EEO counselor (Section 33.05 C);
5. Where an employee contacts an EEO counselor but later selects the grievance procedure, the grievance may include issues pertaining to other articles of the CBA even if the EEO issues are dropped (Section 33.05);
6. While employees must request an EEO counselor from the Regional EEO Officer within 45 days of the alleged discriminatory incident, the Employer would grant extensions of the 45-day time limit under a variety of circumstances; counseling would be required only if the employee chooses to file a formal EEO complaint, but not where a grievance under the article is selected (Section 33.06 A);
7. The EEO counselor would be required to perform a number of different tasks in various specified manners, including offering the complainant an opportunity to provide written comments concerning the complaint which would be attached to the counselors report (Section 33.06 C9);
8. Union representatives could not be disqualified from acting as EEO representatives unless the Employer can prove a "compelling need;" when representing EEO complainants as official Union representatives, Union Officers and Stewards would have all rights afforded by the CBA and would not be limited as representatives "by EEOC regulations and directives referred to in this article" (Section 33.07 A);
9. At any stage of the complaint process, once the complainant chooses a Union representative, Employer representatives would not be permitted to bypass the Union by directly dealing with the complainant (Section 33.07 B);
10. Although the Employer would have sole responsibility for selecting "Agency employees" to serve as EEO counselors, if the Employer decides to contract out its EEO counseling services, the Union would have the right to negotiate "changes in working conditions" (Section 33.08 A);
11. Union Officers and Stewards could serve as EEO counselors unless, based on specific circumstances, a conflict of interest would make such service inappropriate (Section 33.08 D);
12. The Employer would provide the Union with a copy "of any and all contracts, agreements or understandings with outside counselors or investigators" (Section 33.08 E);
13. The Employer would be required to conduct "a continuing campaign to eradicate every form of prejudice or discrimination" from its personnel policies, practices, and working conditions (Section 33.09 C);
14. The Employer would be required to make reasonable accommodations for qualified applicants and employees with disabilities "unless the accommodation would impose undue hardship on the operation of the Agency;" certain factors the Employer would consider in determining undue hardship, and examples of reasonable accommodations, would be included in the article (Section 33.09 D);
15. The Employer would be required to negotiate with the Union concerning the development of EEO Programs, and such programs would not be implemented until the exhaustion of negotiations, including negotiability appeals and impasse proceedings (Section 33.09 G);
16. The Employer would establish an "Alternative Dispute Resolution (ADR) method" for dealing with EEO complaints, with mediation as the sole option for ADR; although "it is anticipated" that mediation would be offered in the majority of cases, the Deputy Regional Director would have the right not to offer mediation in a variety of circumstances (Section 33.11 B);
17. In all cases involving 29 C.F.R. 1614 and EEOC Management Directive (MD)-110 where notice to the aggrieved is required, such notice would be in writing (Section 33.11 I);
18. The Employer would dismiss complaints for abuse of process only in cases that are supported by "clear and convincing evidence" (Section 33.11 J);
19. The Union would be permitted to send one representative to new EEO counselor training at the Employer’s expense, including all official time and the cost of travel and per diem (Section 33.11 L);
20. The Employer would be required to send at least one Union official to continuing counselor training, as required by MD-110, and EEOC yearly seminars, at the Employer’s expense, including all official time and the cost of travel and per diem (Section 33.11 M);
21. The Employer would be required to provide the Union with statistics concerning all EEO cases in a specified format on a quarterly basis (Section 33.11 N);
22. Official time and travel expenses for EEO proceedings "are not limited by EEOC regulations," and EEO procedures "are labor relations activities within the meaning of 5 U.S.C. 7131(d);" disputes over such matters would be resolved jointly by the Union President and the Labor Relations Officer (Section 33.12 A);
23. EEO official time would be granted in an amount necessary and reasonable, as determined by the Employer and the complainant/representative, for a wide variety of functions; official time includes time spent traveling, and would automatically be deemed reasonable "for EEO hearings, meetings with counselors, Agency representatives, investigators, EEOC representatives, and alternative dispute meetings;" Union officials/representatives will be granted 1 hour "for consultation/correspondence concerning EEO matters each day" (Section 33.12 B);
24. Information provided to the Employer by the complainant and representatives when requesting official time would be general in nature; complainants and representatives would have to be released on official time "to comply with third party orders;" witnesses approved by EEOC and/or investigators would be granted official time, including travel and per diem expenses; Union officials representing EEO complainants would be permitted to use Agency equipment and resources, including first class and certified mail postage (Section 33.12 C); and
25. During all stages of the complaint process the Employer would be required to provide the Union information in accordance with section 7114(b)(4) of the Statute; by December 1 of each year, the Employer would provide the Union a copy of each unit employee’s overall performance appraisal rating, and overall promotion appraisal score "by FAO showing the sex and race of each employee," but "with the employee’s name deleted for Privacy Act purposes" (Section 33.13).
Union Sections 33.01 and 33.10 are intended to protect the Union’s bargaining rights over changes in working conditions, while the Employer’s proposed Section 33.01 is an attempt to prevent the Union from bargaining. In this regard, by incorporating Chapter 46 of DCAAM 1400.1 into the CBA, management would be able to make mid-term changes without bargaining. The Employer has never stated, nor "attempted to infer, that there is a compelling need to implement Chapter 46 of the personnel manual." Other portions of the Union’s Section 33.01 merely explain what an EEO matter is, provide an opportunity for one Union official to attend yearly EEOC seminars, or are "similar to the previous contract." Its proposed wording in Section 33.03 "comes from the previous contract," and goes on to clarify the negotiation process, in accordance with a 1999 memorandum from the former General Counsel of the FLRA to Regional Directors indicating that "EEO plans are within the scope of bargaining." It "will serve to prevent further ULP charges and grievances over Union officials representing employees," while the Employer "has not offered any compelling reasons" for removing it from the contract.
Section 33.04 F is intended to prevent management from continuing to send out DCAA headquarters’ notices and guidance that are not in accordance with the CBA and negotiated policies and procedures. This should save both sides time and money by eliminating the cause of procedural grievances. Section 33.05 maintains the status quo by providing a complainant 20 days to file a grievance under the CBA, while the Employer’s final offer would reduce the time to 15 days. The Union also proposes to keep the current practice of allowing a complainant to file a grievance after the final interview with an EEO counselor. Management, however, is attempting "to stop a complainant from requesting an EEO Counselor" and resolving the complaint using the informal counseling process. The Union’s proposal also addresses a longstanding "threshold" problem which arises because of the differences in time frames for filing grievances and EEO complaints by clarifying that a complainant/grievant can still file a grievance, even if it is more than 20 days after the grievable event, where an issue was raised under the EEO process but "turns out not to be an EEO complaint."
Its wording in Section 33.06, among other things, shows a complainant how the process actually works without "having to spend inordinate time studying complex and various sets of directions." Its list of counselor functions is more comprehensive than the Employer’s by requiring a written report regardless of whether the complainant files a formal EEO complaint or a grievance. The Union’s proposals would improve the EEO process and lead to more settlements, and were crafted in response to the lessons it has learned in working on more than 17 EEO complaints during FY 2002. Section 33.07 is necessary because "Agency policies and procedures tend to try to limit the ability of non-Union representatives when acting as personal EEO representatives"; the wording makes it clear that a Union representative’s contractual rights supercede those specified in Agency policy guidance. Section 33.08 of its final offer "protects the Union’s rights to bargain over an Agency decision to use external contract counselors." It also preserves a Union officials right to perform EEO counselor duties unless there is a conflict of interest determined on a case-by-case basis, whereas the Employer proposes a blanket prohibition on the performance of such duties, which "could be an unfair labor practice." Its wording in Section 33.08 also would establish the Union’s contractual right to certain data, and would eliminate the problems it has faced with obtaining data under section 7114(b)(4) of the Statute.
Section 33.10 would ensure that negotiations "move along in an efficient manner" by prohibiting the implementation of EEO regulations prior to the completion of bargaining, including the resolution of negotiability appeals and impasse proceedings. Most of its wording in Section 33.11 is based on the parties’ mid-term agreement implementing changes to the EEO program in the ADR area, except for additions which would require a Union representative to be sent to new counselor training and yearly EEOC seminars at Agency expense so that complainants could be assisted in an efficient manner. Section 33.12 contains a process for resolving official time disputes "in a timely and efficient manner," which are crucial given the time-sensitivity of EEO matters and associated activities. The Agency "generally attempts to limit the complainant’s official time to a large extent," and proposes to resolve disputes unilaterally and "slow down the complainant’s and Union representative’s preparations by disruptions over official time." A logical process to resolve such disputes expeditiously should be established because the grievance process "takes too long when dealing with ALJs and the EEOC." The Employer’s proposal concerning the payment of "travel and such" for the Union representative and the complainant "appear to be against EEOC regulations." In FY 2002, the Union spent less than one "person year" of effort on EEO complaints, yet the Central Region has met or exceeded its critical measures of agency efficiency each year. Overall, therefore, official time use has not had an adverse impact on "management’s planned efficiency."
b. The Employer’s Position
Among other things, the Employer’s final offer on the EEO article would:
1. Establish the current Government-wide regulations at 29 C.F.R. 1614, and EEOC’s and DCAA’s implementation of those regulations via MD-110 and DCAAM 1400.1, respectively, as authority in all EEO matters "to the extent not contravened by this article" (Section 33.01);
2. Permit the Employer to exercise its discretion in determining whether to use internal DCAA counselors or external counselors, and provide internal DCAA counselors with training in accordance with the requirements specified in MD-110 (Section 33.02);
3. Grant an employee 15 workdays to file a grievance under Article 27 (not an EEO complaint) following, whichever is later: (1) the day of the alleged discriminatory incident, or (2) the date upon which the aggrieved became aware of the alleged discriminatory incident or situation (Section 33.03);
4. Require the EEO counselor to perform a number of different tasks in various specified ways, but not including, among other things the Union proposes, offering the complainant an opportunity to provide written comments concerning the complaint (Section 33.04);
5. Specify that, at any stage in the complaint process, the employee shall have the right to be accompanied by a representative of his or her choosing, or present the complaint without representation; if the employee designates a representative, all correspondence on the complaint from the Employer would be directed to the representative, with a copy provided to the complainant (Section 33.05);
6. Permit the Employer to immediately implement all EEOC regulations in effect at the time of this agreement, and to "also implement all future amendments to EEOC regulations and negotiate such changes with the Union in accordance with Article 8" of the CBA (Section 33.08);
7. Encourage the use of ADR procedures (mediation) to resolve EEO complaints; although "it is anticipated" that mediation would be offered in the majority of cases, either party may decline to mediate a complaint, with the Deputy Regional Director making the determination for the Employer (Section 33.09 A);
8. Handle official time for all EEO matters (excluding grievances filed under Article 27 of the CBA) by providing complainants and their representatives, if DCAA employees, with a reasonable amount of official time to present their complaint and respond to Agency requests for information; when disagreements arise over the amount of official time to be authorized, the complainant would be granted some time to begin the process, but the supervisor would have the sole discretion to resolve the dispute by rendering a decision to the employee prior to the expiration of the initially granted time (Section 33.10 A);
9. Grant Agency-employed witnesses who are approved by Investigators and/or EEOC Administrative Judges official duty time to attend hearings and/or investigations relating to complaints against DCAA (33.10 B);
10. Require the Employer to pay TDY costs, in accordance with the JTRs, for complainants and witnesses whenever their presence is required or authorized by the Agency or the EEOC, but never for complainants or witnesses who are not currently Federal government employees, or for representatives or witnesses called by the complainant (Section 33.10 D); and
11. Permit employees, and Union officials (if employed by the Agency) while representing EEO complainants, to use Agency equipment to process their claims while on official time (Section 33.10 E).
Under its final offer, individual EEO complainants would be provided "all protections afforded by applicable law," including, ultimately, the right to initiate civil litigation. Its wording makes clear to the parties "what the applicable rules are," and should be adopted because it refers to Agency-wide rules and regulations "agreed to by the parties" which, in turn, are based on Government-wide rules and regulations. By limiting the time to file a grievance to 15 days, it provides a "much more reasonable time frame" than the Union’s proposal, which "potentially extends the period to file a grievance related to non-EEO matters to as much as 90 days." Section 33.10 provides for official time for alleging discrimination after the employee has made an election to file a grievance (under Article 27) or an EEO complaint (Article 33); official time provisions are then "controlled by that election." This is needed because of the distinct differences in appeal procedures, and is intended "to honor the employee’s election."
The defects in the Union’s final offer, on the other hand, are numerous. Overall, the additional procedures it proposes are not required, "particularly in the absence of any evidence in the record that certain managers repeatedly are found in violation of EEO requirements." Their primary intent is "to ensure official time procedures are not controlled by EEO regulations or Administrative Law Judges." The portions of its proposal dealing with official time are "confusing" and single out Union officials for "special treatment." They also go "far beyond" what is mandated in the EEOC regulations, and would impose burdensome requirements on management. In fact, the Union’s proposal in Section 33.12 that official time and travel expenses for EEO proceedings not be limited by EEOC regulations is "clearly contrary" to 29 C.F.R. 1614.605. Its other wording in that same section prohibiting management from unilaterally resolving official time disputes without the agreement of complainants and/or their representatives "clearly interferes" with the Employer’s right to assign work.
Some of its other proposed sections also exceed statutory requirements. For example, by establishing the Union’s right to be present "at any and all meetings" involving an EEO complaint, Section 33.03 could be interpreted to include "management only discussions or private discussions with the mediator where the complainant is not a party and confidentiality is a requirement." That section’s additional wording stating that the Employer must bargain over "all settlement agreements" is overly broad, and inconsistent with case law, because it is not limited to whether the settlement affects the conditions of employment of the overall bargaining unit. It also uses the terms "aggrieved person" and "complainant" in a manner that is confusing and inconsistent with 29 C.F.R. 1614.105g.
What’s more, the Union’s final offer includes a number of wasteful provisions that would "unnecessarily increase the cost of the EEO program." In this regard, sending a Union official to EEO-related training and conferences put on by the EEOC, at Employer expense, whenever the EEO officer attends, would not be "appropriate or feasible for anyone without specialized experience." Section 33.08 requires management to provide the Union with copies of all contracts, agreements, or understandings with outside counselors or investigators. Such documents have not been provided in the past and, "given that they are standard contracts," the Union has not explained the need for them. Its proposal in Section 33.11, that all required notices to the aggrieved be in writing, is more than what is specified in the regulations, clearly operates to the disadvantage of an efficient EEO program, and "provides the Union yet another opportunity to file grievances." The information the Union proposes it receive under Section 33.13 is not readily available, and would be expensive to collect. It has requested the same information "for several years but has been unable to show a particularized need." Finally, its proposal that the Employer not implement EEO Plans and Programs and changes to EEO regulations until after the completion of negotiations, including negotiability appeals and impasse proceedings, is "simply too broad" because it requires bargaining over any revision, regardless of whether its impact on unit employees is de minimis.
CONCLUSION
After a thorough assessment of the evidence and arguments presented by the parties on the EEO article, we are persuaded that a modified version of the Employer’s final offer should be adopted to resolve the dispute. In this regard, the Union proposes roughly to double the length of the current article, but has failed to demonstrate the need for such extensive changes, many of which are designed to establish contractual rights in the EEO arena which appear to be adequately addressed in various statutes and regulations. Particularly troubling is the wording it proposes in Section 33.12 for settling disagreements over the reasonableness of official time requests involving EEO matters. In one subsection it requires every dispute of this kind to be resolved by the Labor Relations Officer and the Union President. Such a procedure might make sense if the parties had a constructive relationship, and it was agreed to mutually. Perhaps in recognition of the fact that the relationship here is dysfunctional, another subsection would make an entire subset of official time for EEO-related activities reasonable by definition. In other words, while prohibiting management from unilaterally resolving such disputes, the Union’s proposal then goes on to provide for the automatic resolution of a significant subset of such disputes in favor of complainants/representatives. On top of this one-sided procedure, which gives no recognition whatsoever to management’s mission-related needs, the Union also provides no support for granting its representatives 1 hour of official time each day for consultation/correspondence concerning EEO matters. For these reasons alone, adoption of the Union’s proposal is unwarranted.
The Employer’s final offer, while altering current contract wording in some significant ways, overall appears to provide employees with reasonable EEO procedures which comport with statutory and regulatory requirements. We are less certain, however, that it would preserve the Union’s statutory rights, as interpreted by the FLRA, where it is entitled to be present during discussions between unit employees and management concerning the resolution of formal EEO complaints, and to negotiate over mid-term changes in the Agency’s regulations governing EEO and its EEO Plans and Program, and EEO settlements affecting the conditions of employment of the employees it represents. For this reason, we shall add a proviso to the Employer’s final offer specifying that it should not be interpreted to waive any of the Union’s statutory rights with respect to EEO matters.
25. Article 34 - Alcoholism and Drug Abuse
a. The Union’s Position
The Union proposes to change the wording in the current contract article by requiring the Employer (rather than the employee) to pay the cost of treatment for alcoholism and drug abuse problems, including medical or counseling programs of the employee’s choosing, and by specifying that sick leave requests will be granted "absent severe workload disruptions." It also adds wording permitting employees with insufficient sick or annual leave to request administrative leave for such treatment, provides that the Employer may grant such requests for short periods of time, and does not preclude the Employer from denying such requests "due to workload considerations or applicable laws/regulations."(22)
b. The Employer’s Position
The Employer also proposes to change the status quo, primarily by removing wording from the current article which refers to alcoholism as "a treatable illness" and drug abuse as "a treatable health problem," and which states that "it is in the best interests of everyone concerned" that employees with such illnesses/problems receive appropriate treatment. It would also add wording requiring the granting of sick leave requests from employees following approved programs of treatment or rehabilitation if they provide "advance medical certification indicating the need." The Employer believes the current practice, whereby the existing Employee Assistance Program (EAP) provides initial counseling and referrals for care at no charge to the employee, is sufficient. It opposes allowing employees to select whatever care they choose at taxpayers’ expense, as proposed by the Union, as well as the portion of the Union’s proposal which "requires a de facto automatic grant of sick leave."
CONCLUSION
After fully considering the parties’ proposals and the Employer’s statement of position, we shall order the adoption of the Employer’s final offer to resolve their dispute over this article. Compared to the Union’s proposed changes to the current article, the Employer’s are relatively minor. Among other things, the Union has not demonstrated why the Employer should bear the cost of any medical or counseling program an employee selects for treatment of alcoholism or drug abuse.
26. Article 35 - Retirement
a. The Union’s Position
The Union would require the Employer to provide a pre-retirement seminar to employees within 5 years of retirement, at no cost to employees, and written copies of information relative to retirement options for which they qualify. It also proposes that employees about to retire receive a "professional looking [DoD] retirement card embossed with the employee’s picture," and that employees be permitted to withdraw a resignation or retirement application at any time prior to the effective date if the decision is communicated to the Employer in writing.(23)
b. The Employer’s Position
The Employer’s proposed wording ensures "a measure of flexibility" with respect to giving employees pre-retirement training. It includes providing a pre-retirement seminar to employees within 5 years of retirement eligibility, "within available resources," or individual retirement counseling to employees who request it. The Employer opposes the Union’s proposal that employees about to retire be given a DoD-embossed retirement card because "it does not concern conditions of employment for current employees covered by the CBA." In this regard, "its use is wholly to gain discounts at golf courses, etc. after retirement." In addition to the fact that OPM provides employees with "appropriate credentials" concerning their status as retired Federal employees, taxpayers "should not subsidize this activity."
CONCLUSION
With respect to the issues presented in this article, both parties propose changes to the status quo. While neither provides much in the way of evidence supporting the need for the changes, on balance, we are persuaded that the Employer’s final offer would provide a better basis for resolving the dispute than the Union’s. In this regard, the record provides no support for requiring the Employer to issue DoD-embossed retirement cards to employees who are about to retire. Accordingly, we shall order the adoption of the Employer’s final offer on this article.
27. Article 37 - Dues Withholding
a. The Union’s Position
The Union proposes "tightening up the time frame for Union members to revoke their dues allotments to a 30-day window." Although the Employer opposes the proposal, it "has not stated the reasons for its objections." The change is reasonable in that it is supported by wording in two contracts between other parties, one of which allows for dues revocations only during the months of June and December, while the other only permits dues revocations to be submitted no earlier than 30 days prior to an employee’s anniversary date.
b. The Employer’s Position
The Employer basically proposes to maintain the status quo, which permits an annual window period during which dues participation through payroll deduction may be cancelled. This practice has been in effect "since at least 1993." The Union’s proposal would make it more difficult for dues payers to exercise their right "to eliminate dues withholding" by restricting employee requests to the 30-day period prior to March 1 of each year.
CONCLUSION
After examining the arguments and evidence presented by the parties on the dues withholding article, we shall order the adoption of the Employer’s final offer to settle the matter. In our view, the existence of two voluntary agreements between other parties establishing window periods for dues revocation that are shorter than the one in the parties’ current CBA provides an insufficient basis for changing the status quo.
28. Article 38 - Telework (Flexiplace) Program
a. The Union’s Position
While the parties’ final offers on this article are similar in many respects, their most significant areas of disagreement involve the Union’s proposals that resident and suboffice auditors be eligible for "regular and recurring" telework, and that all unit employees be allowed to work up to 6 days per pay period at an alternate work site. In regard to the former, it also proposes that "ad hoc telework will not be used in offices where there are no employees on regular and recurring telework." The proposal is "consistent with the agreement signed by the union local representing the DCAA Northeast Regional employees and the DCAA Northeast Region on April 12, 2002, wherein all [unit] employees of the Northeast Region can work telework." The proposal is also consistent with Congresses’ conclusion that telecommuting alleviates traffic congestion, lowers pollution, and "could be an effective recruitment and retention tool in the Federal workplace." Furthermore, it comports with the intent of Section 359 of P.L. 106-346, which directs Federal agencies to establish telework policies to permit 25 percent of their eligible workforce to telecommute by April 23, 2001, and to increase the number of telecommuters so that "by 2003 there should be some 75 percent permitted."
The Employer "has attempted to circumvent this law by using Ad Hoc Telework," which would permit it to meet legal requirements "by claiming that all ‘ad hoc’ employees are telework employees; even if the ‘ad hoc’ employees never work a day away from their regular office." This approach also is inconsistent with statements by officials in the Office of Personnel Management, as well as policy and guidance providing by DoD, that regular and recurring telework is "the preferred arrangement," and that "‘ad hoc’ should not be considered to be teleworking for calculating the number of employees telecommuting." Nor is there any merit to the Employer’s stated reason for denying employees at resident and suboffice locations the option of telecommuting on a regular and recurring basis, i.e., the need for on-site observation of contractor performance and convenient access to contractor records. At most resident and suboffice DCAA locations, the opportunity for on-site observation of contractor performance is minimal, and physical access to contractor records is unnecessary where computerized access is available.
b. The Employer’s Position
The Employer proposes that mobile auditors be eligible to telecommute on a regular and recurring basis, with a maximum of 2 days per pay period worked at the employee’s home, and that auditors at resident or suboffice locations be eligible only for ad hoc telework. Among other things, it also specifies in detail the tasks and work activities that are to be performed only in the contractor’s plant or in the assigned DCAA office "because they are not portable and depend on the employee being in the traditional worksite environment." Its proposal is based on the fact that DCAA has "two distinct types of workplaces." Regular and recurring telework is best suited for auditors who are assigned to teams with a specific geographic area of responsibility encompassing numerous "non-major" contractors, or contractors who do government work infrequently. Such "mobile" auditors have frequent assignments of shorter duration than resident auditors, and issue twice as many reports. Their work, therefore, is more conducive to regular and recurring telework. Auditors at resident and suboffice locations, on the other hand, may spend weeks doing field work before progressing to the point of writing a lengthier report, which is more conducive to ad hoc telework.
The Union’s proposal "makes no sense" because it would require management to deny telework to everyone at an office where there was not at least one person telecommuting on a regular and recurring basis. In addition, in combination with the Union’s final offer on Article 12 ("Hours of Work and Flexible Work Schedules"), it would permit employees "to avoid all contact with contractor personnel and possibly their supervisor if they chose to do so," and "clearly impact[s]" management’s ability to meet professional auditing standards. Overall, the Employer’s final offer meets "the spirit and letter of the telework law" by expanding telework opportunities without compromising professional standards, while the Union’s is ambiguous and would lead to "further conflict" rather than clarity.
CONCLUSION
After fully weighing the parties’ positions on the issue of telework, we are persuaded that the Employer’s final offer should be adopted to resolve their impasse. Preliminarily, we note that telework is a subject ideally suited for a pilot program that would permit the parties to evaluate its suitability for this workplace under limited and non-threatening conditions. If they had agreed to conduct a pilot program, their starkly different views concerning the compatibility of telework with the accomplishment of the Central Region’s mission could be put to the test. Instead, neither party appears to have been willing to settle for less than the complete capitulation of the other side to its demands, with the result that the Panel must select between their final offers without the possibility of a compromise. In our view, the Employer’s refusal to adopt a regular and recurring telework program similar to the one the parties voluntarily agreed to in the Northeast Region must be balanced against a record that does not contain any information concerning the number of employees that participate in that program, the number of days per pay period that are actually worked at an alternative site, or the program’s overall success. In this regard, we note that, unlike the program established in the Northeast Region, the Union’s proposal specifies that auditors would be permitted to work at home for up to 6 days per pay period. In light of the Employer’s judgement that regular and recurring telework is incompatible with the assignments of resident and suboffice auditors in the Central Region, the Panel is unwilling to impose such a requirement upon management. Finally, to the extent the Union is contending that the Employer’s final offer violates the law, such allegations should be addressed in a more appropriate forum.
29. Article 39 - Team Awards and Performance Awards
a. The Union’s Position
The parties generally agree that 30 percent of the annual award pool should be allocated to team awards and 70 percent to individual performance awards, and that the program will adhere to the current regulatory requirement that the award pool be 1.5 percent of base salaries. On the issue of team awards, the Union essentially proposes wording, most of which the parties agreed to in earlier mid-term bargaining that occurred as a result of a grievance settlement, with the exception of two sentences which are the subject of the parties’ impasse in Case No. 02 FSIP 208:
Teams do not have the discretion to reduce or increase the distribution of funds for team members for reasons other than hours worked and/or time spent on the team for that year. Thus, the distribution of team awards will match the funding described above in the "Funding" paragraph.
This wording was offered in response to an Employer proposal that would have put team members in the "disruptive and divisive" position of rating each other before the final determination regarding the distribution of team funds is made by the FAO Manager. The Employer’s final offer on the team awards section of this article does not include the wording it proposed during the mid-term bargaining, nor the other provisions that were previously agreed to, and "the Union is at a loss as to why Management has decided to back away from" its earlier position.
In addition to numerous minor differences between the parties concerning individual performance awards, the Union proposes to link such awards to annual performance ratings, and require payments ranging from $450 to $1,300 for eight separate levels of performance. It also establishes separate award amounts depending upon whether the employee is GS-12 and below, or a GS-13 Technical Specialist. If the proposal is adopted, performance awards would be based "on objective criteria," the "unfairness" inherent in the Employer’s subjective approach to award distribution would be removed. Since it is normal for employees who are rated Outstanding to receive a performance award, its proposal also "is not far from actual practice."
b. The Employer’s Position
The Employer proposes that "all monetary awards be given at the discretion of management, with supervisors to timely nominate employees for awards." Its awards program "would be administered fairly and equitably with awards based on performance or achievements judged to deserve special recognition." Giving management sole discretion would ensure the availability of funds to reward the most deserving employees, and minimize the number of grievances over awards "because the matter would be clarified for all parties." Its final offer also should be adopted because it allows employees to participate in both the individual and team awards processes. The Union’s final offer, on the other hand, mandates automatic performance awards for employees receiving Exceeds Fully Successful or Outstanding performance ratings. This could lead management to "overspend" the amount of money available in the established bargaining-unit pool, requiring a transfer of funds from award pools established for non-bargaining unit employees. If the Union’s proposal had been in effect in Calendar Year 2002, for example, the award pool established for Technical Specialists would have been exceeded by 13 percent, or $6,900. The Union’s proposal "does not address how to handle this situation."
Linking element ratings with performance award amounts is also likely to cause a dramatic increase in grievances and EEO complaints related to performance appraisals. In addition, the Union’s proposal would result in the same amount of money being given "to a GS-7 trainee with an Outstanding rating as . . . a GS-12 Senior auditor doing the Agency’s most complex work." In other words, under its approach "there is simply no linkage of award amount to contribution." Finally, its adoption would effectively eliminate the Employer’s use of Quality Step Increases because it is prohibited from providing two awards for the same performance.
CONCLUSION
Upon careful review of the arguments and evidence presented by the parties regarding Article 39, we conclude that the Employer’s final offer would provide the better basis for settling the dispute. In this regard, among the valid concerns the Employer raises, the Union has not explained how its proposed awards system, which identifies specific dollar amounts for eight different rating levels, would stay within the budget allocated for the bargaining-unit employee awards pool. It appears that management would have to reduce the awards pool allocated to non-bargaining unit employees to make up for any shortfall, or manipulate performance ratings to stay within its awards budget. In our view, either course of action is unacceptable. Moreover, any increase in objectivity or fairness its system may provide in comparison to the one proposed by the Employer is undercut by its inflexibility. By awarding GS-7 and GS-12 employees who receive the same performance ratings identical monetary amounts it fails to draw meaningful distinctions based on contributions to the mission of the organization. While any awards system totally within the discretion of management may be criticized on the basis of subjectivity and favoritism, the appropriate mechanism for challenging activity that employees believe to be unfair is the negotiated grievance procedure. For these reasons, we shall order the adoption of the Employer’s final offer.(24)
30. Article 42 - Duration and Amendment
a. The Union’s Position
The Union essentially proposes that: (1) either party be permitted to reopen four articles of the CBA annually; (2) the ground rules for the negotiation of the next successor CBA be the same as those contained in its proposal on Article 8 (Negotiation Procedures); (3) either party may initiate mid-term bargaining on any matter affecting the working conditions of unit employees, including substantive bargaining on all subjects covered in the agreement, unless they are identified within an article as excluded from mid-term bargaining, or conflict with, interfere with, or impair implementation of the agreement; and (4) all existing mid-term agreements remain in effect upon completion of negotiations "of the follow-on CBA," except by mutual agreement.
The part of its proposal permitting either party to reopen up to four articles per year "is meant to even the playing field." Currently, management has "unlimited reopeners," while the Union is limited to only two. Its position is supported by examples of CBAs from two other organizations which establish that "it is common for both parties to be on an equal footing with respect to reopeners." Other parts of its proposal are more "straightforward" than the Employer’s, or "self explanatory."
b. The Employer’s Position
The Employer proposes, among other things, that "upon receipt of an Agreement termination notice," the parties shall begin negotiations over a new CBA within 30 days, using the ground rules the parties agreed to on October 24, 2000. It also proposes that the Union be permitted to reopen the CBA on "subjects not covered therein" on no more than two issues per contract year, with proposals to be submitted with the notice of reopener, and negotiations to commence within 30 days "unless the parties mutually agree otherwise." Its proposal should be adopted because, unlike the Union’s, it changes the status quo in only one area - the "use of the FSIP-mediated ground rules for any future term CBA. This issue was the subject of an arbitration "forced by the Union" which delayed the current negotiations; the Employer prevailed before the arbitrator, who ruled that "the Article 8 mid-term language did not control for negotiating a new CBA." The Union’s final offer on this article should be rejected because it "would operate to promote non-stop bargaining" and "the continual use of official time by a very small group of employees," hindering the Employer from carrying out its responsibilities. Moreover, "there is no evidence of demonstrated need" for the Union’s proposals."
CONCLUSION
Having fully considered the positions of the parties on the issues that remain at impasse over this article, we shall order the adoption of the Employer’s final offer to resolve these matters. The record of the current impasse demonstrates that the parties have bargained exhaustively, albeit ineffectively, over the conditions of employment of the bargaining unit. As stated by the FLRA in 1993 in the context of establishing a definitive test for determining when a matter is contained in or covered by a collective bargaining agreement:
the stability and repose that we seek must provide a respite from unwanted change to both parties: upon execution of an agreement, an agency should be free from a requirement to continue negotiations over terms and conditions of employment already resolved by the previous bargaining; similarly, a union should be secure in the knowledge that the agency may not rely on that agreement to unilaterally change terms and conditions that were in no manner the subject of bargaining.(25)
The Panel seeks the same stability and repose in the current circumstances. In our view, the Employer’s final offer provides a better vehicle than the Union’s for providing stability to their relationship, and avoiding the disruption that can result from endless negotiations over the same general subject matter.(26) It also generally maintains the status quo, while the Union has failed to demonstrate a need for the substantial changes it has proposed.
31. Article 50 - Transportation Incentive Program (Transit Subsidy)
a. The Union’s Position
The Union would include the parties’ 2-page mid-term Transit Subsidy agreement in the CBA, "sans the signature block, which is now redundant." It also objects to adding a reference to "Agency or DoD budgetary shortfalls" potentially affecting the funding of the program because "it is a way for management to avoid honoring the agreement, if it so chooses."
b. The Employer’s Position
The Employer proposes the following wording: "This article incorporates in its entirety the transit subsidy agreement dated January 31, 2001<hyperlink>. The parties agree that Agency or DoD budgetary shortfalls may affect th[e] funding of this program." The Employer believes it is redundant to include the text of the side agreement when the document is hyperlinked, and that it is important to acknowledge the reality that budgetary shortfalls could affect the funding of the program.
CONCLUSION
We shall order the adoption of the Union’s final offer on this article. Unlike other articles where the Employer proposes the use of a hyperlink, we believe incorporating the exact wording of the parties’ transit subsidy agreement into the successor CBA would be beneficial on a topic of such importance to employees. The Employer also has not substantiated the need to include wording that agency or DoD shortfalls may affect the funding of the program.
32. Article 52 - Parking
a. The Union’s Position
On the key issues separating the parties in this article, the Union proposes the following wording: (1) "An employee who rents a parking space at a duty post on a regular basis, that is, at a weekly or monthly rate, will be reimbursed on a pro rata basis for actual number of days the parking space is used for official business;" and (2) "the Employer will provide parking at the agency’s office for vanpools and carpools. The Employer will also reimburse employees who drive their vehicles to work in order to have them available for use on official business, for all parking costs as discussed" above. Its proposal would provide more parking spaces for unit employees at Branch offices, where space is leased, and at Federal buildings, while the Employer’s does nothing to help employees in major cities defray their parking costs. In this regard, the "major issue" is that, to meet management’s expectations, some auditors spend time at Branch offices and pay for parking in the large metro areas when they are not traveling to a contractor’s location. Although the Employer did not respond to a request for information regarding the amount it pays for parking in sufficient detail to verify this, the Union suspects that it "always pays for sufficient spaces to cover management employees in the big cities." If so, it should treat lower paid unit employees in a similar fashion, and equitably distribute spaces across the Central Region.
b. The Employer’s Position
To ameliorate the need for paid parking, the Employer proposes, among other things, that employees "utilize mass transit to the maximum extent possible . . . Consistent with this, the Employer will not provide employees with paid parking where there is mass transit and commercial parking available, as is the case in most DCAA offices in the Central Region." Its wording is equitable, and acknowledges the existence of the Transit Subsidy Program and that the Agency’s budget is limited. The Union’s proposal, on the other hand, is contrary to Panel "precedent."(27) In this connection, it would require the Employer to subsidize employee parking, which is prohibited by law.
CONCLUSION
Upon careful consideration of the evidence and arguments presented by the parties, we are persuaded that the Employer’s final offer provides the more reasonable basis for resolving the issues in dispute. It appears to be consistent with management’s current practices with respect to parking policy, which includes the reimbursement of parking expenses incurred by employees when using their cars for business purposes, in accordance with applicable regulations. The primary grounds cited by the Union for adopting its proposal is a belief that "Management always pays for sufficient spaces to cover Management employees in the big cities." There is little evidence in the record, however, to support this belief, or to assess its other chief contention that the distribution of spaces available from area to area is "inequitable." With respect to the latter, there may be legitimate explanations for variations in the number of parking spaces available for employee use throughout the 18 states which encompass the Central Region. Nor has the Union offered a rebuttal to the Employer’s claim that its proposal would require the illegal subsidization of employee parking. Given the existence of these unanswered questions, and the apparent adequacy of the Employer’s final offer, we shall order its adoption.
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 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:
1. Article 3 - Union Rights
The parties shall adopt the Employer’s final offer.
2. Article 4 - Management Rights
The parties shall adopt the Union’s final offer.
3. Article 5 - Official Time
The parties shall adopt the Employer’s final offer, with the exception of the last sentence in Section 5.10, which shall be withdrawn.
4. Article 6 - Union Representation and Investigations
The parties shall adopt the Employer’s final offer.
5. Article 7 - Employee/Union Cooperation
The parties shall adopt the Union’s final offer.
6. Article 8 - Negotiation ProceduresThe parties shall adopt the Employer’s final offer, with the exception in Section 8.01, third paragraph, first sentence, the word "adversely," and Section 8.02.II.B in its entirety, both of which shall be withdrawn.
7. Article 10 - Personnel Records
The parties shall adopt the Employer’s final offer.
8. Article 11 - Reduction in Force, Transfer of Function, and Reorganization
The parties shall adopt the Employer’s final offer, except for the last sentence of Section 11.13, which shall be withdrawn.
9. Article 12 - Hours of Work and Flexible Work Schedules
The parties shall adopt the Employer’s final offer.
10. Article 13 - Overtime
The parties shall adopt the Union’s final offer.
11. Article 14 - Leave
The parties shall adopt the Employer’s final offer.
12. Article 16 - Travel
The parties shall adopt the Employer’s final offer, but only to the extent that it is consistent with any agreement reached by the parties in their meetings with the FLRA’s CADR representative.
13. Article 18 - Training
The parties shall adopt the Employer’s final offer.
14. Article 19 - Performance Appraisals
The parties shall adopt the Employer’s final offer, but only to the extent that it is consistent with any agreement reached by the parties in their meetings with the FLRA’s CADR representative.
15. Article 21 - Details, Temporary Promotions, Rotations, and Extended Temporary Duty
The parties shall adopt the Employer’s final offer.
16. Article 24 - Discipline
The parties shall adopt the Employer’s final offer, with the exception of the last sentence in Section 24.01.A, which shall be withdrawn.
17. Article 25 - Adverse Actions
The parties shall adopt the Employer’s final offer, but only to the extent that it is consistent with any agreement reached by the parties in their meetings with the FLRA’s CADR representative.
18. Article 26 - Unacceptable Performance
The parties shall adopt the Employer’s final offer.
19. Article 27 - Grievance Procedure
The parties shall adopt the Union’s final offer.
20. Article 28 - Arbitration
The parties shall adopt the Employer’s final offer.
21. Article 29 - Services, Facilities, and Publicity
The parties shall adopt the Union’s final offer, with the exception of sentences four through six of Section 29.01, which shall be withdrawn. The Union’s final offer, with the exception of the sentences noted herein, shall be adopted only to the extent that it is consistent with any agreement reached by the parties in their meetings with the FLRA’s CADR representative.
22. Article 31 - Equipment and Supplies
The parties shall adopt the Employer’s final offer, with the exception of the second paragraph of Section 31.02, which shall be withdrawn.
23. Article 32 - Health and Safety
The parties shall adopt the Employer’s final offer.
24. Article 33 - Equal Employment Opportunity
The parties shall adopt the Employer’s final offer with the following additional wording:
The provisions of this article shall not be interpreted to waive any of the Union’s statutory rights in EEO matters.
25. Article 34 - Alcoholism and Drug Abuse
The parties shall adopt the Employer’s final offer.
26. Article 35 - Retirement
The parties shall adopt the Employer’s final offer.
27. Article 37 - Dues Withholding
The parties shall adopt the Employer’s final offer.
28. Article 38 - Telework (Flexiplace) Program
The parties shall adopt the Employer’s final offer.
29. Article 39 - Team Award and Performance Awards
The parties shall adopt the Employer’s final offer.
30. Article 42 - Duration and Amendment
The parties shall adopt the Employer’s final offer.
31. Article 50 - Transportation Incentive Program (Transit Subsidy)
The parties shall adopt the Union’s final offer.
32. Article 52 - Parking
The parties shall adopt the Employer’s final offer.
By direction of the Panel.
H. Joseph
Schimansky
Executive Director
December 17, 2003
Washington, D.C.
1.
Case No. 02 FSIP 208 on team awards has been consolidated with Case No. 02 FSIP 200,
which involves an impasse regarding the parties’ successor collective bargaining
agreement (CBA), because awards are a subject addressed in Article 39 of the CBA.
A previous request filed by the Employer was withdrawn on April 16, 2002, so that
the parties could pursue a negotiability appeal affecting 39 proposals. With one
exception, those matters were resolved with the assistance of the Collaboration and
Alternative Dispute Resolution (CADR) Program while a negotiability appeal was pending
before the FLRA. With the CADR Program’s assistance, the parties developed alternative
wording or withdrew the affected items; in one instance, the FLRA found the Union’s
petition for review was untimely filed. Ultimately, the FLRA denied the Union’s
request for reconsideration of its Order dismissing the Union’s petition for review,
American Federation of Government Employees, Local 3529 and U.S. Department of Defense,
Defense Contract Audit Agency, Central Region, Irving, Texas, 58 FLRA 151 (October 11, 2002).
In addition, the Panel recently resolved another dispute between these parties that was
filed during the same time period addressing their supervisory development program in
Department of Defense, Defense Contract Audit Agency, Central Region, Irving, Texas and Local 3529,
American Federation of Government Employees, AFL-CIO, Case No. 03 FSIP 42 (May 20, 2003), Panel Release No. 457.
2.
This circular requires that contractors who are engaged in performing work under Government contracts
follow Government auditing standards.
3.
See, for example, the FLRA’s recent decision in National Treasury Employees Union and U.S. Customs
Service,
59 FLRA No. 35 at 10 (September 25, 2003).
4.
See U.S. Department of Justice, Immigration and Naturalization Service, Washington,
D.C., 55 FLRA 892, 904 (1999).
5.
The Employer cites the following FLRA decision which discusses the legality of a hybrid schedule:
General Services Administration,
Washington, D.C. and National Federation of Federal Employees, 50 FLRA 136 (1995).
6.
The Union, however, concedes in its statement of position that “after accessing the referenced Web Site, the Union
can live with Management’s language in this section.”
7.
In its proposal for Article 4, the Employer includes:
Section 4.03. In the administration of all matters covered by this agreement, the bargaining unit employees are governed by:
. by published agency policies and regulations in existence at the time the
.
.
.
.
.
. by subsequently published agency policies and regulations required by law
or by the regulations of appropriate government authorities.
8. The parties’ positions on this article are among the most divisive of the 32 that they failed to resolve, and reflect behaviors that led to this almost complete breakdown in bargaining. Despite spending 196 hours in unassisted bargaining, working with four different mediators, in sequence, for a total of 84 hours, and receiving at least a week’s worth of assistance from the FLRA’s CADR Program, the parties left an unconscionable number of unresolved issues on the table.
The Union accuses the Employer of repudiating through its proposal five travel-related agreements the parties reached between October 30, 1998, and June 13, 2001. (Bargaining on this successor CBA began in February 2001, prior to the parties’ memorializing two of the five travel agreements.) Regarding the agreement on Section 16.13 that the Union alleges the parties worked out with the assistance of CADR, the Union states that the Employer “is inserting messed up language” in its proposed Section 16.06, which essentially repudiates that agreement. For its part, the Employer asserts that several subsections of the Union’s proposal (reimbursement for daily telephone calls home while on TDY, among others) conflict with the JTRs. As to the Union’s CADR-related allegation, the Panel’s role under the Statute is to resolve impasses, not questions concerning whether parties previously have reached agreements on matters. To avoid prejudicing the Union’s right to raise its allegation in an appropriate forum, however, we shall order the adoption of the Employer’s final offer only to the extent that it is consistent with any agreement reached by the parties in their meetings with t he FLRA’s CADR representative. On the Employer’s jurisdictional allegations, although the Union has not had an opportunity to respond, there is no need to address that question further since we are adopting the Employer's proposal on the merits.
9.
In its position statement, the Employer states that it accepts the Union’s proposal that Article 48 applies to awards relating
to professional development (Sections 18.03 and 18.04).
10.
“Extended TDY is defined as a temporary assignment to an area outside the individual’s normal commuting area for more
than fifteen (15) working days.”
11.
It appears that this sentence contains a typographical error. Presumably, the Employer meant to use the word “more” instead of “less,”
which would result in a more junior employee being involuntarily reassigned when too few employees volunteered. That view is substantiated
by the parallel subsection of the current CBA, which also encapsulates the idea of inverse seniority: “If the number of volunteers should be insufficient, then the least senior employee will be involuntarily selected.”
12.
The Employer provided, among other things, a copy of the step three grievance decision. That decision, which denies the Union’s grievance, recounts that the Employer passed over for involuntary TDY a qualified handicapped
employee, who requested not to be selected. Instead, the Employer sent the next employee on the list who volunteered to go. The Union contended in part that the CBA required the Employer to select the handicapped employee.
13.
Given our decision to adopt the Employer’s proposal, we shall not discuss further the Employer’s position that part of the Union’s proposal conflicts with management’s rights under the Statute.
14.
The so-called Douglas factors were enunciated by the Merit Systems Protection Board (MSPB) in
Douglas v. Veterans Administration, 5 MSPR 280 (1981). The factors essentially constitute guidelines governing the appropriateness of penalties.
American Federation of Government Employees, Local 2612 and U.S. Department of the Air Force, Rome Laboratory, Rome, New
York, 55 FLRA 483 (1999).
15.
Under section 7114(a)(2)(B) of the Statute, the Weingarten right is the right to union representation at:
(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if--
(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and
(ii) the employee requests representation.
16.
In light of our decision below regarding Article 27, the Employer’s reference to the non-grievability of oral admonishments, which would otherwise be inconsistent with that decision, shall be deleted from Article 24.
17.
No section addressing Article 26 could be found in the Union’s statement of position.
18.
Vermont Air National Guard, Burlington, Vermont and Association of Civilian Technicians,
Inc., 9 FLRA 737 (1982).
19.
The Employer’s version of Article 5, Official Time, Section 5.04, which we have adopted in this decision, provides in relevant part:
A reasonable amount of official time for Union Stewards will be granted to carry out the following functions:
. Attendance and participation at arbitration hearings.
20.
See, for example, National Treasury Employees Union and Internal Revenue
Service, 38 FLRA 615 (1990).
21.
Moreover, because sentences five and six of Section 29.01 only make sense with reference to sentence four, they too shall be stricken from the Union’s final offer.
22.
No section addressing Article 34 could be found in the Union’s statement of position.
23.
No section addressing Article 35 could be found in the Union’s statement of position.
24.
By adopting the Employer’s final offer on this article, which encompasses both team and individual performance awards, the parties’ dispute in Case No. 02 FSIP 208 has thereby also been resolved/rendered moot.
25.
U.S. Department of Health and Human Services, Social Security Administration, Baltimore,
Maryland, 47 FLRA 1004 at 1017-18 (1993).
26.
Moreover, the portion of the Union’s proposal permitting either party to initiate mid-term bargaining on any matter affecting the working conditions of unit employees, including substantive bargaining on all subjects covered in the agreement, unless they are specifically excluded from mid-term bargaining, appears to be negotiable only at the election of the agency, in accordance with the FLRA’s recent decision in
National Treasury Employees Union and United States Customs Service, Washington,
D.C., 59 FLRA No. 35 (September 25, 2003)(Member Pope dissenting). As that case was issued after the record in the instant impasse was closed, the Employer has not had an opportunity to state whether it would elect to negotiate over the proposal.
27.
The Employer cites Department of the Treasury, Internal Revenue Service, Rocky Mountain District, Salt Lake City Office, Salt Lake City, Utah and Chapter 17, National Treasury Employees
Union, Case No. 97 FSIP 74 (September 30, 1997), Panel Release No. 402.