United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    The Department of the Army, Headquarters, Fort Devens, Fort Devens, Massachusetts (Employer) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Local R1-4, National Association of Government Employees, SEIU, AFL-CIO (Union).

    After investigation of the request for assistance, the Panel determined that the impasse should be resolved through an informal conference between a Panel representative and the parties. If no settlement were reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to the Panel's determination, Staff Associate Harry E. Jones met with the parties on April 21, 1993, at Fort Devens, Massachusetts. Although a number of issues were resolved at that meeting, the parties were unable to reach agreement on three. Mr. Jones has reported to the Panel, and it has now considered the entire record.

    Fort Devens houses active duty Army units and is home to a number of support activities including a base hospital, a communications command, and a commissary. The facility is scheduled to close at the end of Fiscal Year 1995. The Union represents a bargaining unit of approximately 750 General Schedule and Wage Grade employees who work in a variety of professional and nonprofessional occupations. The parties' collective-bargaining agreement, which was originally implemented in 1973, expired on March 29, 1993. The parties reached impasse following negotiations for a successor agreement.

    The parties are deadlocked over three issues: (1) the definition of "emergency situation;" (2) whether a desk audit should be conducted whenever one is requested by an employee; and (3) whether the existing nondiscrimination provision should be amended to include sexual orientation.

1. The Definition of "Emergency Situation"

    a. The Union's Position

    The Union proposal is as follows:

Emergency Situation: A situation which poses sudden, immediate, and unforeseen work requirements for the Employer as a result of natural phenomena or other circumstances beyond the Employer's reasonable control or ability to anticipate.

This specific definition is intended to restrict the Employer's ability to declare an emergency situation. In its view, the Employer has overworked this term, to employees' detriment, by characterizing minor inconveniences as emergencies.

    b. The Employer's Position

    The Union's proposal is nonnegotiable, as it conflicts with the Employer's right under section 7106(a)(2)(D) of the Statute.⁽¹⁾ The Panel, therefore, should order the Union to withdraw its proposal.

    Having reviewed the evidence and arguments with respect to this issue, we shall order the Union to withdraw its proposal. In this regard, an examination of Federal Labor Relations Authority (FLRA) case law reveals that in a prior case, the FLRA found a proposal almost identical to the Union's to be outside the duty to bargain.⁽²⁾

2. Job Description Review

    a. The Union's Position

    The Union proposes that "if an employee requests a job description review for any reason, then a desk audit shall be conducted by the Civilian Personnel Office." This would allow for an independent desk audit whenever an employee believes that his or her position description does not accurately reflect the assigned duties. Making desk audits easily available to employees would be of benefit, since some positions could be reclassified at a higher grade; in this regard, some employees have routinely been assigned duties outside their position descriptions without receiving any additional compensation for their efforts. In the Union's view, the proposal is likely to have a positive impact on employee morale, as it would establish a mechanism for evaluating the accuracy of an employee's position description. Finally, having a desk audit conducted by the Civilian Personnel Office should result in an objective assessment, since that office would not have any vested interest in the outcome of the study.

    b. The Employer's Position

    The Union's proposal is nonnegotiable, as it would interfere with the Employer's right to assign work in accordance with section 7106(a)(2)(B) of the Statute.⁽³⁾ In this connection, on numerous occasions the FLRA has found union proposals which would require the performance of certain duties by a particular individual or office to be outside the duty to bargain. Rather than urging the Panel to order the Union to withdraw, however, the Employer instead proposes:

When an employee questions job description accuracy as part of a classification question, the Employer will conduct an audit of the appropriate type and communicate the results to the employee within thirty (30) workdays. Especially if the employee requests one, the Employer will consider whether or not a desk audit will be the best method of gathering facts.

This proposal would provide the same benefits as the Union's while allowing for flexibility in determining the most appropriate method of conducting an audit. It also would avoid the negotiability problems associated with the Union's proposal. Overall, the Employer's proposal is preferable because it recognizes that there are a variety of methods available for determining the accuracy of an employee's position description.

    We find it unnecessary to consider the parties' arguments regarding the negotiability of the Union's proposal because, in our view, the Employer's proposal provides the more reasonable resolution of the dispute. In our assessment, the proposal provides a mechanism for evaluating the accuracy of an employee's position description while maximizing the options in determining the best way to conduct an audit. Since some positions may ultimately be reclassified at a higher grade as a result of an audit, the creation of this mechanism also should have a positive impact on employee morale. Accordingly, we shall order its adoption.

3. Amendment of Nondiscrimination Provision

    a. The Union's Position

    The Union proposes that the existing nondiscrimination provision be amended to provide as follows:

Nondiscrimination. No employee will be discriminated against by either the Employer or the Union because of race, color, creed, religion, sex, sexual orientation, national origin, age, marital status, physical handicap, or lawful political affiliation.

This proposal would change the existing contract provision to prohibit specifically discrimination against employees on the basis of sexual orientation. It is based on the fundamental principle that individuals should not be subject to discrimination on the basis of an immutable characteristic. Moreover, it is aware of at least two instances of harassment that have occurred at Fort Devens. Thus, expansion of the existing nondiscrimination provision is necessary to ensure protection of gay and lesbian employees in the workplace.

    By way of comparability, its proposal is consistent with the provisions found in other Federal sector collective-bargaining agreements. In addition, it is consistent with similar nondiscrimination laws and ordinances which have been enacted in a number of state and local jurisdictions, as well as policies which have been adopted by private corporations and universities.

    The Union disputes the Employer's assertion that the provisions of 5 U.S.C. § 2302(b)(10)⁽⁴⁾ provide sufficient protection to gay and lesbian employees because the wording of that section has never been interpreted by any adjudicative body to prohibit discrimination on the basis of sexual orientation. Also, it discredits the Employer's approach by noting that the proposed wording could prohibit a wide array of personal behaviors; in this regard, prohibiting conduct which "adversely affects . . . the ability of the Employer to accomplish its mission" could be used to justify discrimination against gay and lesbian employees. Finally, the Employer's attempt to achieve parity between military personnel and civilian employees is misplaced since the two groups are completely dissimilar.

    b. The Employer's Position

    The Employer's proposal is as follows:

Accountability. An employee is accountable for the performance of official duties and compliance with standards of conduct for Army employees. It is the right of the employee to conduct his or her private life as he or she deems fit to the extent that such conduct does not violate law or appropriate regulation, or adversely affect the ability of the employee to do his/her job, the ability of others to do their jobs, or the ability of the Employer to accomplish its mission. Employees shall have the right to engage in outside activities of their own choosing without being required to report to the Employer on such activities, except as required by law or regulations of higher authority. No employee shall be coerced, threatened, or in any way forced to donate to charities, buy bonds, or make any donations against his or her will.

Nondiscrimination. No employee will be discriminated against by either the Employer or the Union because of race, color, creed, religion, sex, national origin, age, marital status, physical handicap, or lawful political affiliation, nor will they take any action against an employee in violation of any law.

Its proposal would allow an employee to "conduct his or her private life as he or she deems fit," and, therefore, gay and lesbian employees would be protected from discrimination. Since it would also forbid conduct that would "adversely affect the ability of others to do their jobs," any employee who harasses a gay or lesbian co-worker would be subject to disciplinary action. In addition, the proposal clearly provides that no action will be taken against an employee "in violation of any law;" since the Employer interprets the provisions of 5 U.S.C. § 2302(b)(10) as already prohibiting discrimination on the basis of sexual orientation, a contract provision requiring compliance with existing law is sufficient to achieve the Union's objective. Since gay and lesbian military personnel who disclose their sexual orientation are subject to discharge, adoption of the Employer's proposal would avoid the inconsistent treatment of military and civilian personnel. Finally, since Congress has not enacted legislation which would establish a protected class for gay and lesbian individuals, adopting the Union's proposed wording would be inconsistent with existing civil rights legislation.

    Having carefully examined the record on this issue, we conclude that the Employer's proposal provides the better resolution of the dispute. Preliminarily, we note that it is one thing for parties to agree mutually to wording which breaks new ground in a controversial area, but quite another for a third party to impose such terms when voluntary efforts fail. With this in mind, we are persuaded that in the circumstances presented it would be inappropriate for the Panel to create a new protected class through collective bargaining, as urged by the Union, when neither the President, through Executive Order, nor Congress, through legislation, has elected to take such action. Because the Employer's proposal allows an employee to conduct his or her private life as he or she deems fit, we see no need for the explicit, and potentially divisive, wording proposed by the Union. Accordingly, we shall order that the Employer's proposal be adopted.

    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 pursuant to the Panel's regulations, 5 C.F.R. § 2471.6 (a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

1. Definition of "Emergency Situation"

    The Union shall withdraw its proposal.

2. Job Description Review

    The parties shall adopt the Employer's proposal.

3. Amendment of Nondiscrimination Provision

    The parties shall adopt the Employer's proposal.

By direction of the Panel.

Linda A. Lafferty

Executive Director

November 16, 1993

Washington, D.C.

1.That section of the Statute provides as follows: 

(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- 

(2) in accordance with applicable laws-- 

(D) to take whatever actions may be necessary to carry out the agency mission during emergencies.