United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

 

In the Matter of

DEPARTMENT OF THE ARMY

HEADQUARTERS 10TH MOUNTAIN DIVISION

AND FORT DRUM

FORT DRUM, NEW YORK

 

 

 

 

 

 

Case No. 97 FSIP 94

and

LOCAL 400, AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO

 

DECISION AND ORDER

    Local 400, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse between it and the Department of the Army, Headquarters 10th Mountain Division and Fort Drum, Fort Drum, New York (Employer) under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119. After investigation of the request for assistance, which involves an impasse over the parties’ successor collective bargaining agreement (CBA), the Panel directed the parties to resume negotiations, on a concentrated schedule, over all remaining issues in dispute, with the assistance of the Federal Mediation and Conciliation Service (FMCS). If a complete settlement was not reached, the parties were to provide FMCS with their final offers, and FMCS would transmit such offers to the Panel. The parties were also informed that if final offers were transmitted by FMCS, the Panel would resolve the impasse on an article-by-article basis by selecting one of the parties’ final offers using whatever additional procedure it deemed appropriate.

    The parties were unable to reach a complete resolution of the dispute with FMCS assistance.(1) Following receipt of their final offers, the Panel directed the parties to present written submissions and rebuttal statements, after which the Panel would issue a Decision and Order to resolve the impasse. Consistent with its previous procedural determination, the Panel again indicated that it would be limited to selecting either of the parties’ final offers on an article-by-article basis, insofar as they were otherwise legal.(2) Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.

BACKGROUND

    The Employer is home to over 10,000 troops who serve in combat and peacekeeping missions. The bargaining unit consists of approximately 700 professional and nonprofessional employees who work in a variety of administrative and clerical positions. Representative occupations include supply clerk, nurse, lab technician, computer specialist, and secretary. This dispute involves the second CBA for this bargaining unit. The prior agreement, which had an 18-month duration, was due to expire in June 1995, but remains in effect until a successor is implemented.

ISSUES AT IMPASSE

    The parties disagree over all or parts of the following eight articles: (I) Article 4, § 6 (Rights and Responsibilities of Employees); (II) Article 6 (Official Time); (III) Article 11, §§ 2 and 10 (Leave and Excused Absence); (IV) Article 13, §§ 3, 12, 17, 19, and 20 (Health and Safety); (V) Article 17, § 1 (Training); (VI) Article 23, §§ 9 and 10 (Performance Appraisals); (VII) Article 24, §§ 11 and 13 (Merit Promotion); and (VIII) Article 36, §§ 6, 7, and 8 (Adverse Weather Conditions).

I. Article 4, § 6: Rights and Responsibilities of Employees

    a. The Employer’s Position

The Employer proposes the following wording:

A. Smoking is prohibited in any Government vehicle, building, or main entryway to a building (the designated area in P-10,000 being away from the front entrance), with the exception of any designated areas in Army-Air Force Exchange Service facilities, The Commons, and the Bowling Center (but there is no requirement that there be any designated areas in any of these facilities, the AAFES facilities not under the control of the Employer).

B. The parties shall jointly identify existing outdoor areas where employees may smoke. The areas shall meet the following criteria: they shall provide overhead coverings; they shall be reasonably accessible to employees’ work sites; and they shall meet safety, health, and security concerns. Any disagreements as to the areas identified should be resolved through grievance arbitration.

C. Reasonable smoke breaks will be allowed, not to exceed 15 minutes per 4-hour period. These may be broken down into two or three break periods subject to work requirements.

D. Employees who were employed by the Department of the Army at Fort Drum on September 27, 1995, may attend one smoking cessation class at no cost to them and on duty time.

Its proposal modifies a previous Panel decision involving the parties issued in 1995 concerning smoking policy.(3) The modifications it contains are necessary because "a number of changes have occurred since that time." Some of the business establishments referred to in that decision now have different names (Bonnie’s Snack Bar, Mountaineer Inn) or no longer exist (the Officer’s Club). More importantly, adoption of the wording it proposes would establish "one rule applicable to all patrons" of a small eating facility called Emma’s Snack Bar, "operated and managed by the Army-Air Force Exchange System [AAFES], a tenant organization not subject to the command and control of the Agency in this case." It would do this by making it clear that there is no requirement that a designated indoor smoking area be provided in the eatery. Since it is located in a building that has a central ventilation system, smoke would thereby be prevented from dispersing throughout the entire building. In this regard, "some people" recently presented a petition requesting that smoking not be allowed within the building. Moreover, there was no designated smoking area within Emma’s Snack Bar "prior to the last Panel decision," and maintaining the status quo "would be consistent with Executive Order 13058 requiring agencies to ban indoor smoking unless there was a negative ventilation system, an unreasonable burden in this situation." Finally, the building containing Emma’s Snack Bar has two designated outside smoking areas which provide a reasonable accommodation for smokers.

b. The Union’s Position

    The Union’s counteroffer regarding smoking policy is as follows:

(1)Smoking is prohibited in any Government vehicle, building, or entryway, with the exception of in Military Family Housing and the designated areas in the following places: Fort Drum clubs (Officer’s Club, Mountaineer (sic) Club (NCO Club), Spinner Club, Pennants Club); the following AAFES snack bars: Bonnie’s Snack Bar and Emma’s Snack Bar; the Bowling Center; and soldiers’s barracks.

(2) The parties shall jointly identify existing outdoor areas where employees may smoke. The areas shall meet the following criteria: They shall provide overhead coverings; they shall be reasonably accessible to employees’ work sites; and they shall meet safety, health, and security concerns. Any disagreements as to the areas identified should be resolved through grievance arbitration.

(3) Reasonable smoke breaks will be allowed, not to exceed 15 minutes per 4-hour work period. This may be broken into two or three break periods subject to work requirements.

(4) Current employees may attend one smoking cessation class at no cost to them and on duty time.

B. Section A.2. has not been resolved as of this time. At the conclusion of the process defined, the parties agree to replace this section with that agreement.

This proposal is the exact wording imposed by the Panel in its previous decision establishing the parties’ smoking policy at Fort Drum. Although the parties "previously agreed in these negotiations" to include the wording in their successor agreement, when the Union discovered that the Panel’s decision "was never fully implemented by management," i.e., smoking had not been permitted in Emma’s Snack Bar, it filed an unfair labor practice (ULP) charge.(4) Subsequently, the Employer changed its proposal "in a blatant attempt to excuse [itself] for not having implemented the [Panel’s] decision on smoking as it pertains to Emma’s Snack Bar." At this point, appropriate outdoor areas at Emma’s have not been mutually designated, as required by the Panel’s decision, and "available areas are limited." As for the argument that the Employer’s proposal is necessary because the names of some of the establishments have changed since that case was decided, this "could be accommodated in the agreement by simple administrative changes."

CONCLUSIONS

    Having carefully examined the evidence and arguments presented, we are persuaded that the Employer’s final offer would provide the more reasonable resolution of the parties’ dispute over smoking policy. In this regard, it is clear from the record that adoption of the Union’s proposal ultimately could result in the designation of an indoor smoking area in Emma’s Snack Bar. This would subject occupants of the entire building to second-hand smoke, in addition to nonsmokers within the eatery itself. The only substantive support the Union provides for its position is the Employer’s alleged noncompliance with the Panel’s previous decision. While the Panel traditionally has been reluctant to interfere with the rights of parties to pursue matters in other forums, in the present circumstances such reluctance is outweighed by our concern for the health and safety of nonsmokers. Accordingly, we shall order the adoption of the Employer’s final offer. We note that currently there are two smoking areas outside the building where Emma’s Snack Bar is located. Under the wording of the Employer’s final offer, the parties are still obligated jointly to identify existing outdoor areas where employees may smoke, and any disagreements as to the areas identified would continue to be resolved through grievance arbitration.

II. Article 6: Official Time

    a. The Employer’s Position

    The following is the Employer’s proposal for this article:

Section 1

Meetings between the Union and the Employer normally will take place during the time official time may be authorized. This is not meant to preclude meetings at other hours as mutually agreed upon.

Section 2

In the interests of efficient conduct of government business and the economical use of government time, and in order to draw a reasonable distinction between official and non-official activities concerned with the internal management of labor organizations such as membership meetings, solicitation of membership, collection of dues, campaigning for labor organizations offices, and distribution of literature will be conducted outside of regular working hours or in a non-duty status; and none of the above activities will be done at Employee work stations. Literature may be distributed to Employees in break rooms or handed out in break areas.

Section 3

The Union agrees to provide to the LRO a copy of literature (other than membership benefit information) distributed/handed out in mass distribution to Employees on Fort Drum.

Section 4

The Employer agrees to recognize the right of the Union to designate six shop stewards plus a Chief steward. No more than one steward may come from any one office or lowest organizational subelement or be located in the same office or lowest organizational subelement as an officer.

Section 5

The Union will provide the Employer the names of officers and stewards. For the purposes of granting official time the Union will notify the Employer of which three officers are on the three banks of time and another three officers will be treated as stewards for official time purposes. The Union will notify the LRO of any changes, and the appointed individual will be authorized to request official time beginning on the date agreed upon by the LRO and the Union, which will be not more than 5 days after notification. This is to ensure coordination with appropriate supervisors for authorizing official time.

Section 6

The Union agrees that Union officials will request permission from their immediate Supervisor when they wish to leave their assigned duties for the purpose of performing any of the duties listed below. The Supervisor’s permission will normally be granted except when work loads preclude such release. When permission is not granted when requested, it will be granted at a later time. Permission will be obtained also from the immediate Supervisor of any Employee being contacted. The Union agrees that its officers and stewards will guard against the use of excessive time in performing duties considered appropriate by the Agreement.

Section 7

The Employer and the Union agree that a non-Employee Union representative (National representatives, etc.) may assist the Union Officers and Employees in carrying out the Union’s responsibility for representing bargaining unit Employees. Notice of National Union representatives attending meetings with Employer officials will be made at least one duty day (24 hours) in advance to the LRO or the Employer official attending the meeting. Employer officials do not have to meet with National Union representatives if a request was not made in advance. Under normal circumstances National Union representatives will not be allowed to meet with Employees in the buildings where the Employees work.

Section 8

A. Official time will only be granted to stewards and officers of the Union. The amount of official time for all representational purposes granted to each of the three Union officers (such officers designated by the Union) will not exceed 600 hours annually, except as otherwise provided in this Article. The amount of official time for all purposes granted to each Union steward and the three undesignated officers in any one pay period will not exceed 4 hours, except there will be a common "steward bank" of 600 hours which any steward and undesignated officers can charge their time for representational purposes above the 4 hours per pay period. For the purposes of this section, any labor relations training not charged against the bank in subsection D below, may be charged against the banks provided in this section.

B. In addition to the above time, time spent in Partnership Council meetings, meetings with Employer officials about the A-76 contracting out studies or process, and Employer provided training on partnership and the A-76 process will not be deducted from the above banks.

C. The parties further agree that if a Union officer or steward is sent to any training by the Employer or attends any meeting, the Union officer or steward may act as the Union representative without charge to the bank of time. The representative may obtain two sets of course materials, one for use of the Union. The Employer is not required to send additional Union representatives to the same or duplicate training when a Union officer or steward attended it in as part of his official duties.

D. The Employer agrees to grant a block of official time to Union officers and stewards, if otherwise in a duty status, to attend labor relations training mutually determined to be of benefit to the Employer and Union. A block of 120 hours will be authorized annually for such labor relations training on or off the installation. The Union President will submit a request normally at least 30 calendar days in advance.

E. These banks of time will be computed starting with the first pay period after the effective date of this contract. The parties agree to meet at the request of either party (not more often than semi-annually) to discuss the usage of time in these banks and to mutually agree on adjustment of the time.

F. Official time taken by Union officers and stewards will be correctly reported and certified to their official time keepers on the form that is an appendix to this article. The official time keepers will forward a copy of the report to the Civilian Personnel Office. The official time will be reported as (1) non-bank time broken down by A-76 matters and Partnership Council meetings; (2) training bank time; (3) bank time for officers; (4) steward’s time broken down by bank and bi-weekly amount.

Section 9

When the Union is designated as an Employee’s representative (i.e. disciplinary actions, adverse actions, complaints, etc.), a designation of representation memorandum shall be prepared. It will identify the action (specifically or generally), be signed by the Employee and will contain the name and telephone number of the Primary Union representative; the name of the Employee; and an affirmative statement by the Employee stating he designates the Union official to be his representative.

The proposal should be adopted for the following reasons, among others. The amounts of official time it would provide for Union officers and stewards for representational purposes (i.e., 600 hours for each of three Union officers annually, 4 hours per pay period for the chief steward, six stewards, and three undesignated officers, and a "steward bank" of 600 hours annually) are sufficient for a bargaining unit of 700 employees, particularly when time spent in partnership and other management-scheduled meetings are excluded from the banks. In this regard, other than the current negotiations, and 44 Union-filed ULP charges (resulting in the issuance of just two complaints), there has been a general lack of representational activity during the term of the existing contract, demonstrating that more official time than the Employer proposes is unnecessary. The "steward bank" addresses one of the Union’s concerns by permitting the completion of representational functions that take longer than 4 hours per pay period. In addition, Union officers who would be required to attend meetings or training sessions in their capacity as employees could represent the Union with no charge to the banks. With respect to the requirements of 5 U.S.C. § 7131(a), if the bank of hours is exhausted prior to the end of the year, "any particular" Union official "would be limited to statutorily required official time." Moreover, it proposes that the parties may meet semi-annually regarding bank time to discuss "upward adjustments based upon the circumstances which occur during the year."

    By contrast, the Union’s proposal "would in essence make the president, two vice-presidents, and chief steward full time representatives, and potentially some of the stewards also," and is "disproportionate" when compared with the official time used by the other unions at the installation. The part of its proposal regarding accounting procedures is impractical because the Defense Civilian Pay System (DCPS) will not produce cumulative reports, or break the time down into useable components, whereas the Employer’s offer is more specific in tracking how much time is used and whether it counts against the established banks of hours. Finally, the Union’s position that Section 4 of the Employer’s proposal "is nonnegotiable is unsupported." The limits on stewards specified there "are for granting official time only. Whatever internal Union officers and positions which are established are irrelevant to the Agency."

    b. The Union’s Position

    The Union proposes the following wording:

Section 1

In order to develop and maintain effective labor relations, the Employer agrees to grant official time as provided below to accomplish representational duties. Release of designated Union representatives and Employees from their official duties for the purpose of employee representation will enhance labor-management relations at all levels.

A. Thus, official time will be authorized to designated Union officials to carry out representational activities as follows:

(1) 50% of time for the Local President

(2) 50% of time for the (2) Local Vice Presidents

(3) 50% of time for the Chief Steward

(4) 10% of time for the Secretary

(5) 5% of time for the Treasurer

(6) 40% of time per Steward

B. Official time will be authorized; however, the above blocks of time will not be charged for:

(1) Official time provided for by the Statute for negotiations under 5 U.S.C. 7131(a).

(2) ULP meetings, hearings, and proceedings when required by the FLRA, MSPB, or any other 3rd party.

(3) Meetings with management.

Section 2

Unless otherwise arranged, Union representatives will be required to request and arrange with appropriate management officials in advance for their usage of official time. If an exigency of business would not permit the Union representative to use the official time when requested, another occasion will be determined, keeping in mind the interests of the Union and Employees as well as the needs of the Employer. The Union agrees that its representatives will account for this time using codes required by the Defense Civilian Pay System: BA (negotiations); BK (grievances and complaints); and BD (all other labor relations). The Union recognizes its obligation to ensure official time for representational purposes is not abused and will cooperate with the Employer and make every effort to prevent abuse. If the Employer alleges that official time has been abused the alleged offender and the Union will be notified in writing. The Union agrees to investigate the representatives use of official time and to notify the Employer in writing within five (5) work days as to its determination of the propriety of such use of time or any corrective action which will be taken.

Section 3

While orderly and efficient procedures for the release of Union representatives is desirable for both parties, the appointment of stewards is a sole Union right. In the same manner, the assignment of duties to a steward is also a sole, unilateral Union right.

Section 4

The Employer agrees to grant a block of official time to Union officers and stewards, if otherwise in a duty status, to attend labor relations training determined to be of mutual benefit to the Employer and Union. A block of 400 hours will be authorized annually for such labor relations training on or off the installation. The Union President will submit a request as far in advance as is practicable.

Section 5

Official time will be available for other legitimate representational matters not specifically set forth in other provisions of the parties’ collective bargaining agreement.

Section 6

When the Union is designated as an Employee’s representative (i.e., disciplinary actions, adverse actions, complaints, etc.), a designation of representation memorandum shall be prepared. It will identify the action (specifically or generally), be signed by the Employee and will contain the name and telephone number of the primary union representative; the name of the Employee; and an affirmative statement by the employee stating he/she designates the Union official to be his/her representative.

The Union has no way of determining an appropriate number of hours for a bank of time that would suffice to meet its representational responsibilities, particularly where representational actions "are all at management’s call." Given its past history with the Employer, and increased levels of stress in the workplace requiring Union involvement due to current contracting out studies affecting a majority of the civilian positions, it proposes 50-percent official time for its primary officers, excluding statutory matters and meetings with management. This is "because reasonable and necessary has in most cases proven to be approximately 50 percent." Further, "it is counterproductive to set an arbitrary total number of hours for mutually beneficial labor relations training." Nevertheless, a block of 400 hours annually is justified given that the previous number of available hours was insufficient, and resulted in Union officials taking annual leave to attend such training. With respect to its proposal on accounting requirements, any which are beyond those necessary under DCPS "wastes time and increases the chance for errors" which no doubt would be construed by management "as deliberate." There is no need for cumulative reports on the amount of official time spent in connection with partnership or contracting out, as the Employer proposes, "since no effort is made too track time used by representatives of other organizations for these purposes."

    The Employer’s proposed banks of hours are inadequate and would result in the unacceptable continuation of the Union’s past practice of using personal time to fulfill its representational duties. Sections 4 and 6 of the Employer’s proposal "involve inherent Union rights (designation of stewards, and assistance from AFGE National Representatives) and are therefore nonnegotiable." This is also true of Section 8C, which would permit the Employer to designate which Union official attends training in a representational capacity by virtue of its right to require an employee to attend training as part of her or his normal work assignment. On its merits, such "dual status" is problematic because Union representatives would "go up against their own supervisory chain," subjecting them to "discipline . . . for actions taken for the Union." Overall, the Employer’s proposal is an "administrative monstrosity, causing the Local President to spend an inordinate amount of time tracking each representative’s time as to what bank(s) it came from, as well as the amounts remaining in each bank."

CONCLUSIONS

    After carefully reviewing the record established by the parties regarding official time, we shall order the adoption of a modified version of the Employer’s final offer to resolve the impasse. Preliminarily, we note that neither party has provided even so much as an estimate regarding the amount of official time used for representational purposes during the term of the current CBA. This makes it difficult to assess the reasonableness of their proposals on this aspect of the dispute, and is particularly troubling in the current circumstances, where the Panel is limited to selecting one of the parties’ final offers. Our impression on the basis of the record presented is that much of the Union’s previous official time use has been generated through its preparation of ULP charges and in negotiations over this successor CBA. With these observations providing the context for our decision, we shall now identify a few major reasons why, overall, we prefer the Employer’s final offer.

    In our view, the Union’s proposal that stewards receive 40-percent official time appears to be excessive. The Employer’s proposal on this issue, on the other hand, seems adequate because it would permit the completion of representational functions that take longer than 4 hours per pay period through the use of a "steward bank." In addition, the amount of official time the Union proposes for labor relations training is four times greater than what the current CBA provides, and it has offered no evidence to support its contention that significant amounts of annual leave were taken to attend such training. The Employer’s represents a slight increase over the status quo. Concerning the issue of record-keeping, the Union’s view that the Employer’s proposal would be inordinately burdensome appears to be exaggerated; it should also be helpful to the Union in tracking on a bi-weekly basis the number of bank hours that remain at its disposal as the year progresses. Further, while both parties would require Union officials to receive advance approval before official time can be used, only the Employer’s proposal also would require advance permission from the immediate supervisor of any employee being contacted, a provision which is common in Federal sector contracts.

    Having identified the primary advantages of the Employer’s final offer, we nevertheless believe that it must be modified so it is consistent with our understanding of the requirements of the Statute and previous FLRA case law. In this regard, the Employer states that official time for negotiations would be authorized even if the banks of hours it proposes are exhausted prior to the end of the year. Without specific wording excluding from the banks of hours the official time entitlements authorized under section 7131(a) and (c) of the Statute, however, imposing the Employer’s proposal would amount to the waiving of the Union’s statutory rights. The Employer also contends that Section 4 of its final offer limits the Union’s designation of stewards "for granting of official time only." Its actual wording is far broader, and appears to encroach on the Union’s right to designate how many stewards there will be, and what organizational components they will be from.(5) Finally, Section 8C of its final offer suffers from a similar defect in that it would permit the Employer to designate which Union official attends training in a representational capacity by virtue of its right to require an employee to attend training as part of her or his normal work assignment. Accordingly, consistent with the foregoing discussion, we shall modify the Employer’s final offer to ensure that it does not intrude upon subjects which arguably are permissive in nature and, therefore, outside the required scope of bargaining.

III. Article 11, §§ 2 and 10: Leave and Excused Absence

    a. The Employer’s Position

    The Employer has no counteroffer to the Union’s proposed Section 2, which contains wording acknowledging that employees may be considered for equivalent time-off awards on military training holidays. The following is the Employer’s proposal on Section 10:

Section 10

In the event of a death of an immediate family member, and if an employee has no annual leave to his/her credit, the Employer will normally approve a request for three days of either leave without pay or advanced annual leave, if otherwise allowable. Sick leave may also be granted to make arrangements for the funeral of an immediate family member in accordance with the Family Friendly Leave Act and implementing regulations.

With respect to time off awards, determining the meaning and intent of the Union’s proposal "would require considerable interpretation," leaving "the door open to litigation." Moreover, the policy of training holidays, which gives soldiers either the Friday or Monday off around each 3-day holiday, is "unique to the military," and was intended to recognize that soldiers serve "considerable time away from their families." Adoption of the Union’s proposal, therefore, would signal that employees should be considered for awards "for coming to work on normal workdays," and could be seen as equating civil service employment to military service. The Union’s reference to employees in another bargaining unit at the installation being given such time off does not support the adoption of its proposal because that unit, composed primarily of reserve technicians who must maintain status in an active reserve unit as a condition of civilian employment, is "not accurately comparable to the unit involved in this dispute."

    On the issue of bereavement leave, prior to the expiration of applicable Federal Personnel Manual (FPM) provisions, proposals such as the Union’s "were held to be nonnegotiable." Other than in certain limited circumstances authorized by law, the FPM provided that, except for brief periods, excused absences are not appropriate unless they further the mission of the Agency. The Employer’s proposal would ensure that employees may use "any of the leave entitlements and programs available to them at the time of their personal loss," including recent benefits authorized by Congress when it enacted the Family Friendly Leave Act, 5 U.S.C. § 6307(d)(2). The Union, on the other hand, "seeks to create by negotiation a leave benefit not approved by Congress," and its proposal "does not appear to recognize the provisions of the Family Friendly Leave Act."

    b. The Union’s Position

      The Union’s proposal is as follows:

Section 2: Activity Closings

B. On military training holidays, civilians may be considered for equivalent time off awards.

Section 10

In the event of a death in the immediate family (parents(s), sister(s), brother(s), spouse, child/step child, and grandparents), any Employee covered by this agreement will normally be granted administrative leave of up to three (3) days. If additional leave is needed and the Employee has no annual leave to his credit, the Employer will normally advance to a permanent Employee sufficient annual leave to cover the above periods. Employees may use sick leave in the place of annual leave if incapacitated for work mentally or physically.

Its proposal regarding time-off awards, which merely permits employees to be considered for such awards, would provide a relatively low-cost way of improving morale "since productivity is down in many areas on training holidays." Currently, "employees are often simply expected to use their annual leave at the discretion of the Agency" during such periods, when some activities are all but shut down "while others cannot accomplish certain work because their military customers are unavailable." The proposal is in response to inquiries from both unit employees and supervisors who wonder why they cannot receive the same benefit as a tenant activity at the installation which "affords civilians military training holidays." The proposal also would support the Agency’s strategic plan goals "in regard to quality of life and stewardship of resources."

    Adoption of its bereavement leave proposal would also improve morale, support strategic plan goals, and it is comparable to a provision contained in at least one private sector contract it is aware of, as well as the contract governing AAFES employees. In addition, the proposal "does not infringe on management’s rights under 7106(a)," as "negotiability issues have broadened since the FPM sunsetted." Finally, although the Family Friendly Leave Act authorizes employees to use up to 40 hours of accumulated sick leave at the death of an immediate family member, this is inadequate because employees may not have that much leave, and the Employer "will not categorically state that in all cases" it would approve the use of sick leave in such circumstances.

CONCLUSIONS

    Based on the evidence and arguments presented by the parties, we shall order the adoption of the Employer’s final offer to resolve the dispute over this article. In our view, the key issue is whether employees should receive up to 3 days of administrative leave for bereavement. The Employer’s proposal essentially would maintain the status quo, and also serve to remind employees that the "Family Friendly Leave Act" permits the use of up to 40 hours of accumulated sick leave per year for bereavement purposes. Even assuming that the Union’s proposal is negotiable,(6) we are not persuaded by the record before us that such a contractual entitlement is warranted. With respect to the issue of time off awards for civilians during military training holidays, the comparability data provided by the Union to support its proposal are unconvincing. Moreover, because it would still leave discretion to supervisors as to whether to grant such awards, including the proposal in the CBA would appear to be of marginal benefit in any event.

IV. Article 13, §§ 3, 12, 17, 19, and 20: Health and Safety

    a. The Employer’s Position

    The wording proposed by the Employer is the following:

Section 3

Employees will notify the appropriate supervisor of all accidents and injuries as soon as practicable. The on-duty injury must be identifiable by the time and place of injury, the specific body part involved, and the specific duty function at the time of the accident. Employees will also provide the names of all witnesses to the accident.

Section 12

The Employer encourages all Employees to engage in programs to promote personal fitness and well-being on their own time. The Employer will make information available and periodically offer information and classes on promoting personal health.

Section 17

Employees will not be subjected to medical examinations and testing except as authorized by law and regulation.

It also has no counteroffers to the wording proposed by the Union in Sections 19 and 20.

    Its wording in Section 3 reasonably requires employees to report the names of witnesses to accidents involving work-related injuries. This would ensure that employees meet their responsibilities in reporting what information is known "about persons being present." While "in this era of downsizing," management is fiscally unable to permit employees to engage in fitness programs on duty time, Section 12 recognizes that "there are a number of facilities and activities available to civilian employees to assist them in achieving or maintaining personal fitness." Section 17 would permit it to continue to subject employees to fitness for duty exams "necessary to promote the efficient operation of the Agency," even though such exams are merely "authorized" and not "required" by law and regulation. In this regard, its proposal, as well as existing Government wide regulations (primarily 5 C.F.R. Part 339), adequately protects employees "against any perceived abusive Agency actions."

    The Union’s proposed wording regarding Sections 19 and 20 is unnecessary, the former because the parties have already agreed to a definition of grievances which is broad enough to include the things it describes "as well as many other safety-related situations." As for Section 20, the Employer has established a Garrison Safety Committee to comply with Government wide regulations requiring that such safety committees be established at appropriate local levels. In addition, in Article 18 it has already agreed to provide Union membership on all safety committees and councils covering areas that employ bargaining-unit members. The Union’s proposal on Section 20 also should not be adopted because the Employer has bargaining relationships with three other unions representing four bargaining units. It would "further complicate operations" if the units have safety requirements which differ from contract to contract. The proposal also includes troubling wording allowing the Union to impose unilaterally a requirement of a safety committee on any activity it designates. Finally, in the past the Union has failed to attend the meetings of the safety committees of certain suborganizations at the facility where members of their unit work.

    b. The Union’s Position

    The Union’s proposed wording is the following:

Section 3

Employees will notify the appropriate supervisor of all accidents as soon as practicable. The on-duty injury must be identifiable by the time and place of injury, the specific body part effected, and the specific duty function at the time of the accident. If known, the Employees will also provide the names of all witnesses to the accident.

Section 17

Employees will not normally be subjected to medical testing not required by law or regulation. Other testing may be offered on a voluntary basis.

Section 19

An Employee who has a complaint concerning unsafe or unhealthy working conditions may file a grievance IAW the negotiated grievance procedures after:

a. The Employer has failed to meet the time limits for conducting required inspections.

b. The Employer has failed to meet established time limits for resolving Employee complaints under complaints resolution procedures established IAW applicable regulations.

c. The Employee is dissatisfied with the final decision received from the Employer under complaints resolution procedures established IAW applicable regulations.

Section 20

A. The Employer and the Union will cooperate in a continuing effort to eliminate accidents and health hazards. There shall be established a Health and Safety Committee at each Directorate or activity designated by the Union. Safety Committee members will be provided training as required by law. The Safety Committee will meet as needed, but not less than quarterly. The functions of this Committee shall be:

1. To review the implementation of agency safety regulations and the Occupational Safety and Health Act of 1970.

2. To review all safety suggestions, reported safety hazards, and serious lost time accidents, including reports as to the corrective measures taken to eliminate such conditions in the future.

3. To promote health and safety education of the Employees in the Unit.

B. The Committee shall, except where prohibited by law:

(1) Have access to agency information relevant to its duties, including information on the nature and hazardous or substances in Employer workplaces [sic].

(2) Monitor performance, including Employer inspections of the Employer’s safety and health programs.

(3) Discuss with and advise the Employer on the operation of the program.

C. The Committee may request the Secretary of Labor to conduct an evaluation or inspection pursuant to Executive Order 12196 of 26 February 1980, if half the Committee is not substantially satisfied with the Employer’s response to a report of hazardous working conditions.]

Its Section 3 proposal acknowledges that "there are any number of scenarios that could preclude the identification of all witnesses by name." Therefore, requiring employees to provide the names of witnesses "if known" is more reasonable than the Employer’s formulation, which is illogical as well as "unenforceable." Regarding the issue of wellness/fitness, during previous stages of bargaining the Union had proposed "some duty time" for such a program. If none is provided, "it serves no purpose to include the provision in the contract the way management proposed it." For this reason, it has offered no counterproposal on the matter. The Employer is seeking to obtain the benefits of a wellness/fitness program, "without expending any resources to gain those benefits."

    On the issue of medical testing (Section 17), its wording is intended to prevent the Employer from ordering more examinations than the law and regulations require. The proposal is warranted because of management’s history of subjecting employees to unnecessary tests, which waste "taxpayers’ money" and are "detrimental" to the employees involved. The Employer, on the other hand, hopes "to retain the unfettered ability to order ‘fitness for duty’ examinations of virtually unlimited scope." Its proposal on Section 19, which contains "examples of valid health and safety grievances," is "necessary and appropriate." Informing employees of their rights in these areas is likely to lessen or eliminate safety hazards and result in "more efficient mission accomplishment and lower workers compensation costs." The Employer’s argument that the parties’ grievance definition is broad enough to encompass its examples could lead to controversy and litigation over whether an employee’s complaint is valid. Finally, Section 20 "provides a means to ensure compliance with regulatory and statutory health and safety standards." In this regard, the Employer "historically has excluded the Union from meetings of its safety committees" by failing to notify its representatives when they are scheduled to occur and not providing copies of minutes. The Employer’s concerns about having to deal with four different unions should not obscure the fact that it is statutorily obligated to negotiate separately with each one.

CONCLUSIONS

    After careful consideration of the evidence and arguments presented on the areas at impasse regarding the parties’ health and safety article, we find that a modified version of the Union’s final offer would provide a reasonable basis for settling the matter. In our opinion, the Union’s wording on Section 3 is clearer than the Employer’s, yet still would ensure that employees meet their responsibilities in reporting what information is known about witnesses to accidents. Concerning Section 12, the first sentence of the Employer’s proposal is basically superfluous. With respect to Section 17, however, we believe that the Union’s final offer may be illegal. In this regard, the stated intent of its proposal is to restrict management’s authority to require employees to undergo fitness-for-duty exams. The FLRA has found a previous proposal which would have had the same effect to be nonnegotiable.(7) Accordingly, consistent with the Panel’s procedural determination to adopt either party’s final offer on an article-by-article basis insofar as they are otherwise legal, we shall modify the Union’s final offer by replacing its wording in Section 17 with the Employer’s. Finally, although the evidence in support of the Union’s proposals in Sections 19 and 20 is less than overwhelming, given the overall importance of health and safety matters on the working lives of employees, on balance we are persuaded that they should be included in the CBA.

V. Article 17, § 1: Training

    a. The Employer’s Position

    The Employer’s proposal is the following:

Section 1: The Employer will provide Employees with training and development opportunities which will enable the Employees to do their work effectively. Such opportunities will be based on the best interests of the Department of the Army, i.e., budget, staffing, workload, and past performance of the Employee. Employees’ desires and requests for training will be considered.

The wording it proposes in this article differs from what is contained in the current CBA by specifying that the Employer "will" provide employees training, rather than "may." This indicates a strengthened commitment on the Employer’s part to provide training opportunities for employees, while "recognizing that the best interests of the Agency are the primary concern." Moreover, during the life of the current CBA there have been no grievances or disputes about the section. The Union’s proposal, on the other hand, "does not seem to make much sense." Its first sentence has already been agreed to by the parties in Section 2 of the article, and its second sentence "appears to be a poor attempt to skirt" the fact that it "is a nonnegotiable infringement on the Agency’s right to assign work." Thus, it "ends up not stating anything, and is worse because of the apparent ambiguity."

    b. The Union’s Position

      The Union proposes the following wording:

Section 1: The Employer and Union recognize that training of Employees is essential to efficient operations. The choices of subject matter, areas for training, number and type of Employees, and assignment of training priorities may be appropriate items for bargaining.

This proposal is intended to address the growing number of concerns expressed by employees regarding the subject of training, while the Employer’s "does not commit the Agency to actually provide anything to the employees once they have made their training needs known." As for the Employer’s nonnegotiability claims, Executive Order 12871 has made assignments of training appropriate topics for mandatory negotiations because they involve methods and means of performing work, "as well as the number and types of employees to be assigned to a work project," under section 7106(b)(1) of the Statute. The Union’s wording also acknowledges that "certain things may be appropriate for negotiation because, while they are negotiable, in some cases it may not be appropriate, such as when matters are de minimis." Finally, it is unsurprising that there have been no formal disputes concerning training during the term of the current CBA because up to now the Employer has had unfettered discretion to make such assigns.

CONCLUSIONS

    On the issue of training, we shall order the adoption of the Employer’s final offer. As it points out, the first sentence of the Union’s proposal is unnecessary because the parties have already agreed to identical wording in Section 2 of the same article. With respect to the last sentence of the Union’s proposal, although it contends that Executive Order 12871 requires the Employer to negotiate substantively over training, it has provided no FLRA case law where a substantively identical proposal has been found negotiable, nor are we otherwise aware of any such cases. Thus, in accordance with the guidance provided in the FLRA’s Carswell case, the Panel has no authority to adopt the Union’s proposal, even if we were persuaded of its merit by the evidence and arguments presented in its support. The Employer’s proposal, on the other hand, commits management to provide training and development opportunities, and to consider employee desires and requests in the process, while avoiding questions of nonnegotiability.

VI. Article 23, §§ 9 and 10: Performance Appraisals

    a. The Employer’s Position

    The following wording is proposed by the Employer:

Section 10: Improving Performance

C. The Employer agrees to assist Employees in improving performance and to provide them reasonable opportunity to demonstrate acceptable performance. The first steps taken are corrective in nature and include counseling sessions. One of these counseling sessions will be in writing notifying the Ratee in writing that performance is unacceptable, identifying both the specific deficiency(s) and the documented responsibilities/objectives/standards which the Ratee failed to perform at an acceptable level. Raters are encouraged to provide the Ratee available documentation to illustrate the specific performance deficiency. Other corrective steps may include constructive assistance, remedial training appropriate to the situation and closer supervision, as appropriate. The Employer agrees to use these steps to assist Employees in performance improvement prior to taking other appropriate actions.

The Employer has no counterproposals regarding the Union’s wording in Sections 9F and 9G, both of which are nonnegotiable. Section 9F, which requires presumptive ratings, conflicts with Government wide regulations found at 5 C.F.R. 430.204(b) and 430.208(g), while 9G "is a nonnegotiable infringement on the Agency’s right to discipline employees" because it conditions counseling related to "needs improvement" or "fails" on documented evidence. On the merits, presumed ratings of employees "are unreasonable," particularly in the current circumstances where the parties have previously agreed to "many requirements for performance counselings," and employees have the opportunity to address allegations of improper counseling prior to the end of the rating period. The first sentence of Section 9G repeats wording which has already been agreed to in Section 9C, while the remainder "turns a performance counseling into an adversarial proceeding in which a supervisor must carry a burden of proof by providing documentary evidence of performance deficiencies." The second and third sentences also suffer from "disjointness." In summary, in the current era of employee empowerment and the increased span of control of supervisory personnel, "it is essential not to impose excess and duplicative bureaucratic requirements, as the Union’s proposals would do."

    With respect to Section 10A, only the last two sentences are in dispute. The Union proposes wording which was once found at 5 U.S.C. 4304(b), but has since been superseded by the Civil Service Reform Act of 1978, requiring that employees be given a 90-day advance warning period prior to being rated "Unsatisfactory." Such a warning period is unnecessary for a number of reasons. First, the Agency’s performance evaluation system (the Total Army Performance Appraisal System, or TAPES) does not have an "Unsatisfactory" rating. More importantly, however, the parties have already established sufficient safeguards for employees in such circumstances, including the issuance of formal performance improvement plans (PIPs). The Union’s proposed wording simply "does not correspond to the system currently being used by the Agency."

    b. The Union’s Position

    The Union’s proposed wording is as follows:

Section 9: Counseling

F. The Ratee will be considered to be at a minimum of a fully successful rating if no midpoint counseling was performed or if the Employee was not made aware of perceived performance problems and given sufficient opportunity to correct them prior to the end of the rating period.

G. Counselings will be recorded on the performance plan and entries will be initialed by both the Rater and Ratee. Counseling related to needs improvement or fails must be based on documented evidence which illustrates the deficiency(ies). The Rater will show the Ratee enough documentation to explain why it is a concern and to more fully explain the requirements to which it is holding the Ratee accountable. Copies of documentation, if requested, will be provided to the Ratee.

Section 10: Improving Performance

A. The Employer agrees to assist Employees in improving performance and to provide them reasonable opportunity to demonstrate acceptable performance. The first steps taken are corrective in nature and include counseling sessions. One of these counseling sessions will be in writing notifying the Ratee in writing that performance is unacceptable, identifying both the specific deficiency(s) and the documented responsibilities/objectives/standards which the Ratee failed to perform at an acceptable level. Raters are encouraged to provide the Ratee available documentation to illustrate the specific performance deficiency. Other corrective steps may include constructive assistance, remedial training appropriate to the situation and closer supervision, as appropriate. The Employer agrees to use these steps to assist Employees in performance improvement prior to taking other appropriate actions. An Employee may be rated Unsatisfactory only after a ninety (90) day advance warning and after a reasonable opportunity to demonstrate satisfactory performance. A performance rating of Unsatisfactory is a basis for removal from the position in which the performance was unsatisfactory.

Its Section 9 proposals do not infringe on management’s rights, but "accommodate employees who would otherwise be adversely affected" when it fails to provide required midpoint counselings. Keeping employees apprised of their level of performance benefits the mission, management, and the employees. The adoption of its proposals would also support the implementation of TAPES. The Employer’s objections "are tantamount to a demand that [it] be allowed to disregard the regulatory requirements for counselings, then place the responsibility for that failure on the employees by holding them accountable regardless of management’s disregard of [its] own responsibilities." Moreover, its contention that employees have the "opportunity" to address counseling shortfalls is "unrealistic." As to Section 9G, counselings during which employees are told that their performance is deficient "are likely to be adversarial to begin with," so requiring supervisors to carry the "burden of proof" by documenting them "is well worth it," particularly given the seriousness of such allegations.

    The Union’s Section 10A proposal is "intended as an appropriate arrangement for employees adversely affected by the exercise of management’s rights, and its implementation would have no significant impact on the exercise of those rights." Relying on formal PIPs is inadequate because they have been "unclear, unattainable, and written with the goal of removal of the employee." Its adoption would place responsibility for improving performance on management, something the Employer consistently attempted to avoid at the bargaining table. Finally, all of the Union’s proposals on this article support the installation’s strategic goals, particularly those on improving mission capabilities and effective stewardship of available resources.

CONCLUSIONS

    We have carefully examined the parties’ respective positions on performance appraisals and conclude that the Employer’s final offer would provide the more reasonable basis for resolving the dispute. In our view, other than identifying theoretical considerations in support of their adoption, the Union has failed to demonstrate why the three extraordinary procedures it proposes are necessary. For example, there is no evidence in the record regarding the number of grievances or MSPB appeals that have been filed on performance-related issues which would suggest deficiencies in the manner in which counseling has been provided. In addition, the Union’s proposal in Section 10, which refers to a rating that is not currently being used, appears to require a 90-day period to improve performance before a formal PIP may be issued. Other than the Union’s bare allegation that previous PIPs have been written with the goal of removing employees, the need for the extra opportunity its proposal would provide has not been supported by evidence that management’s past rating actions have been unfair. Thus, when viewed within the context of the entire article, which requires counselings and corrective steps prior to placing an employee on a formal PIP, and commits the Employer to operating a performance appraisal system that is "fair, objective to the maximum extent feasible and job related," the Union’s additional safeguards appear to be unwarranted. Accordingly, we shall order the adoption of the Employer’s final offer.

VII. Article 24, §§ 11 and 13: Merit Promotion

    a. The Employer’s Position

    The Employer proposes the following:

Section 13

The Employer agrees that when an Employee is detailed to a higher graded position for more than 30 days, an SF-50 will be prepared and filed in the Employee’s Official Personnel File.

The Employer has no counterproposal regarding the Union’s attempt in Section 11B to receive sanitized records in connection with promotion actions being grieved. In this regard, requests for such information should be processed under section 7114(b)(4) of the Statute, and it would be "counterproductive" to have a parallel system when "there has been no showing" that problems have arisen "with implementing the statutory right to information in failure to select grievances." It is also concerned that the Union’s proposal could be construed to require the release of crediting plans, which would compromise the credibility of the evaluation process, and the record of awards of other unsuccessful candidates, in addition to those of the grievant.

    The Union’s Section 13 wording "emerged as a brand new proposal during the mandated mediation sessions." It is contrary to 5 C.F.R. §335.103(b)(3), which requires employees to meet Office of Personnel Management (OPM) qualifications to be promoted, including temporary promotions. Further, the part of the proposal which prevents management from rotating employees into higher graded positions for less than 10 workdays violates its right to assign work. In addition, the proposed wording "would be a nightmare to administer because it would require a review of duties of a position to determine if an employee performed ‘grade controlling’ duties." Nor does it restrict temporary promotions only to circumstances where employees perform higher graded duties to which they are specifically assigned, but could result in employees taking it upon themselves to perform such duties to qualify for a temporary promotion. At the very least, "such a provision is an invitation to extensive grievance litigation." The Employer’s counteroffer is responsive to the concerns expressed by the Union at the time of negotiations that employees should receive official credit or acknowledgment of service in a higher graded position, and is consistent with the fact that "there is no requirement to process an SF-50 personnel form for details of less than 30 days." For details of short duration, the administrative burden of processing the SF-50 outweighs any benefit to the employee. Its proposal also is "almost identical to language in the existing agreement" over which "there has been no litigation."

    b. The Union’s Position

    The following wording is proposed by the Union:

Section 11 Grievances

B. When a written grievance is filed alleging violation of this article, the appropriate Union representative will be permitted to review those sanitized records which were used as a basis for ranking and selecting Employees for the promotion action being grieved. The records which may be reviewed are the referral list, record of awards, the supervisor’s appraisal and the selecting official’s statement of his reasons for the selection. Only documents which are necessary and relevant to the grievance, not otherwise excluded herein, may be made available, and then only with the grievant’s consent.

Section 13

Employees detailed to a higher grade position for a period of more than ten (10) consecutive workdays must be temporarily promoted. The Employee will be paid for the temporary promotion beginning the first day of the detail. The temporary promotion should be initiated at the earliest date it is known by management that the detail is expected to exceed ten (10) consecutive workdays. The ten (10) consecutive workday provision will not be circumvented by rotating employees into a higher graded position for less than ten (10) workdays in order to award the higher rate of pay. For the purposes of this section, a general schedule Employee who performs the grade-controlling duties of a higher graded position for at least 25% of his time shall be temporarily promoted.

Section 11B is necessitated by the "adversarial nature" of the parties’ relationship, and is an attempt to improve the Union’s ability to serve its customers "in a timely manner." Information requested under section 7114(b)(4) of the Statute "may or may not be provided in time to be used in a grievance or other action," and would not help the Union meet its goal of "quickly and accurately" confirming or denying employee perceptions that a vacancy has been filled illegally or improperly. Section 13, on the other hand, is intended to prevent management from continuing "to abuse employees by requiring work at a higher level than they are paid for." Contrary to the Employer’s claims, the proposal was crafted in response to its objections to previous proposals on the same subject, and was not a "brand new proposal" introduced for the first time during mediation. Moreover, the proposal does not require management temporarily to promote unqualified personnel, but would have the opposite effect of preventing it from placing employees into positions for which they do not qualify. In this connection, permitting the Employer to detail unqualified employees to higher graded positions is unfair because they are subject to performance evaluation in a position for which they are unprepared. Conversely, it is also unfair to those who are not detailed by potentially illegally enhancing the future employment opportunities of a chosen few.

CONCLUSIONS

    Upon consideration of the parties’ dispute over this article, we are persuaded that the Employer’s final offer should be adopted. On the issue of whether the Union should be permitted to review sanitized records in connection with grievances of promotion actions, the record fails to establish that the proposal is needed. In our view, section 7114(b)(4) of the Statute provides an appropriate and adequate mechanism for the Union to obtain necessary and relevant information in connection with the filing of promotion-related grievances. Moreover, unless the parties’ adversarial relationship changes, we believe that such a contractual provision is unlikely to result in more timely information, but would merely shift the Union’s attempts at enforcement away from the ULP forum to the grievance procedure.

    Regarding the matter of temporary promotions, our difficulties with the Union’s proposal are both legal and practical. First, similar wording preventing management from rotating employees to avoid temporarily promoting them has previously been found nonnegotiable by the FLRA.(8) Because this drawback could be circumvented by a decision on our part to modify the proposal, the more important concern from our perspective is the practical impact of its last sentence, which requires employees to be temporarily promoted if they perform grade-controlling duties of a higher graded position for at least 25 percent of the time. In addition to our concern that the 25-percent figure appears to be arbitrary, among other things, this would involve the retroactive classification of the work performed by employees. The administrative burdens and potential grievances this would create far outweigh the justification for its adoption presented by the Union, which once again has done little more than provide allegations regarding management’s past practices in support of its position. For these reasons, the Union’s final offer on this article must be rejected.

VIII. Article 36, §§ 6, 7, 8: Adverse Weather Conditions

    a. The Employer’s Position

    The Employer’s proposed wording is the following:

Section 6

When assigning work, supervisors will take into consideration environmental conditions, such as extreme heat or cold and availability of utilities (electricity, heat) required to do the work, and will make appropriate accommodations. If Employees cannot reasonably be accommodated as necessary to perform gainful work, they may be released on administrative leave.

Section 8

Those employees who perform duties which are vital to medical facilities, public safety, national defense or other work exigencies may be designated as Emergency Essential personnel. These Employees may be required to report for duty despite delay or closures or to remain at work when directed to do so and may be disciplined if they fail to make reasonable efforts to report for duty. Designations of emergency essential Employees will be forwarded to the Union prior to the proposed effective date.

In addition, the Employer has no counterproposal to the Union’s wording in Section 7.

    With respect to Section 6, its proposal acknowledges that management may grant employees administrative leave when gainful work cannot be performed due to environmental conditions, but avoids setting time limits on responses to employee complaints. In the occasional instances where utilities are lost at a worksite, "a reasoned approach must be taken." Moreover, it is unnecessary to include loss of water service as an example of an environmental condition for which administrative leave may be granted because many employees work in "buildings in close proximity to each other so employees can use rest room facilities in other buildings."

    The Union’s proposed Section 7 "is an unreasonable restriction on the Agency’s right to assign work to accomplish its mission." The bargaining unit has some occupations that can be expected to work outdoors in temperatures lower than 25 degrees for considerable periods of time, and the avoidance of cold weather injuries can best be achieved through a combination of adequate cold weather clothing and breaks in heated areas. In this connection, the excerpt from an industrial hygiene guide that it has provided to the Panel "clearly demonstrates the Union proposal is unsupportable."

    Finally, the Union’s proposals on Sections 8A and 8B infringe "on the Agency’s right to assign work" by interfering with its designation of emergency essential personnel. The Union has taken the position that management’s designations in this regard are "subject to substantive bargaining," and the inclusion of its wording in the agreement would make "negotiability disputes" a grievable topic. The Employer’s proposal leaves the issue of any right to negotiate to be adjudicated by the FLRA in the ULP forum. Given that the parties have already agreed to a description of emergency essential personnel in another part of the section, the first sentence of Section 8A of the Union’s proposal "is confusing so as to call into question the interrelationship of the two provisions."

    b. The Union’s Position

    The Union proposes the following wording:

Section 6

A. When assigning work, supervisors will take into consideration environmental conditions such as extreme heat or cold and the availability of utilities (electricity, phones, water) required to do the work, and will make appropriate accommodation. If Employees cannot reasonably be accommodated as necessary to perform the functions of their job, they may be released on administrative leave. A decision must be made within two (2) hours of the time the complaint is given to management. Before administrative excusal may be granted, it must be established by the Employer that the conditions are such as to actually prevent working.

Section 7

Employees who are required to work outside will not be exposed to temperatures below 25 degrees F, wind-chill factor included, for periods of more than 15 minutes, without a subsequent 30-minute period in a heated area.

Section 8

A. Specifically designated ‘emergency essential’ Employees (such as life support, road clearance, and other crucial missions which cannot be interrupted nor delayed) may be required to report for duty despite delay or closures or to remain at work when directed to do so[, and] may be disciplined if they fail to make reasonable efforts to report for duty. Designations of emergency essential Employees will be forwarded to the Union prior to the proposed effective date and the Union will be provided the opportunity to negotiate.

B. Those Employees who perform duties which are vital to medical facilities, public safety, national defense or other work exigencies may be designated as Emergency Essential personnel.

The proposed wording in Section 6 requires supervisors to consider granting administrative leave or making other accommodations to employees when warranted by environmental conditions. An incident that led to the proposal was when a building burned to the ground, causing electricity to all surrounding buildings to be turned off. Employees reported sitting in the cold and darkness "unable to perform other work," while some supervisors refused to release personnel unless they could take annual leave, and "no arrangements were made to allow them to vacate the facility where they were subject to smoke from the nearby fire."

    Section 7 "is intended as an appropriate arrangement for employees adversely affected by the exercise of management’s rights." It is taken "from the 77th ARCOM contract," supports Fort Drum’s strategic planning goals, and would keep workers compensation and sick leave costs down. The Employer’s position, on the other hand, fails to address those cases where "employees who basically have indoor, sedentary jobs come to work dressed for an office and are unexpectedly assigned to work outside, in a dress or other clothing inappropriate for exposure to extreme weather conditions."

    As to its proposals in Section 8, they are "negotiable under 7106(b)," and do nothing more than "provide criteria for the ‘emergency’ designation" for those categories of duties which in fact are essential in an emergency. Because the parties have already agreed to wording providing that employees would work in emergencies regardless of whether they are designated emergency essential, all that is affected is management’s desire to affix that label "on a greater number of positions than required, thereby needlessly inflicting an additional working condition on a greater number of employees than required." In this regard, there have been no standards to ensure the equitable handling of the emergency essential designation, so employees have been required to "risk their lives to keep the library, frame shop, and gymnasiums open."

CONCLUSIONS

    Concerning the issues at impasse in this article, after carefully examining the evidence and arguments presented by the parties, we shall order the adoption of the Employer’s final offer. In our opinion, the reasons provided by the Union in support of its wording in Section 7 are generally unpersuasive. In this regard, while stating that the proposal is intended to protect employees who normally work indoors when they are unexpectedly required to work outside, it provides no examples of where this has occurred, nor does it give data regarding the incidence of cold weather injuries, workers compensation claims, or increased sick leave costs attributable to management’s past practices. Given the lack of evidence for why it should be adopted in the specific circumstances pertaining to the employees the Union represents at Fort Drum, the existence of identical wording in one other contract is unavailing.

    With respect to the Employer’s contentions that its wording in Sections 8A and 8B infringe on its right to assign work, the Union responds that 8A merely provides "criteria" for the emergency designation, rather than preventing management from designating emergency essential personnel, and that 8B is "negotiable under 7106(b)." Its explanation regarding 8A appears to be inconsistent with the wording itself, and in neither case has it cited any FLRA decisions to support the negotiability of its proposals. As stated elsewhere, in such circumstances the Panel would be without authority to adopt the Union’s proposals, even if it were convinced by the Union’s allegations that the Employer routinely and recklessly designates far too many employees as emergency essential. While the one incident the Union cites does provide some justification for requiring a 2-hour deadline in response to complaints that environmental conditions prevent work from being performed (Section 6), because of the deficiencies identified above concerning its other two proposed sections, on balance, we believe that the Employer’s final offer provides the more reasonable resolution of the parties’ dispute.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

I. Article 4, § 6: Rights and Responsibilities of Employees

    The parties shall adopt the Employer’s final offer.

II. Article 6: Official Time

    The parties shall adopt the following sections of the Employer’s final offer without modification: Sections 1, 2, 3, 6, 7, 8B, 8D through 8F, and 9. Section 4 shall be omitted from the successor CBA. With respect to the remaining sections (i.e., Sections 5, and 8A and 8C), the parties shall adopt the following wording:

Section 5

The Union will provide the Employer the names of officers and stewards. For the purposes of granting official time the Union will notify the Employer of which three officers are on the three banks of time and another three officers will be treated as stewards for official time purposes. The Union will notify the LRO of any changes, and the appointed individual will be authorized to request official time beginning on the date agreed upon by the LRO and the Union, which will be not more than 5 days after notification. This is to ensure coordination with appropriate supervisors for authorizing official time.

Section 8

A. Official time will only be granted to stewards and officers of the Union. The amount of official time for all representational purposes granted to each of three Union officers (such officers designated by the Union) will not exceed 600 hours annually, except as otherwise provided in this Article; all official time spent by Union representatives in negotiations, in accordance with section 7131(a) of the Statute, or authorized by the FLRA, in accordance with section 7131(c) of the Statute, will be excluded from the banks of hours authorized under this Article. The amount of official time for all purposes granted to each Union steward and the three undesignated officers in any one pay period will not exceed 4 hours, except there will be a common "steward bank" of 600 hours which any steward and undesignated officers can charge their time for representational purposes above the 4 hours per pay period. For the purposes of this section, any labor relations training not charged against the bank in subsection D below, may be charged against the banks provided in this section.

C. The parties further agree that if a Union officer or steward is sent to any training by the Employer or attends any meeting, the Union officer or steward may act as the Union representative without charge to the bank of time. The representative may obtain two sets of course materials, one for use of the Union.

III. Article 11, §§ 2 and 10: Leave and Excused Absence

    The parties shall adopt the Employer’s final offer.

IV. Article 13, §§ 3, 12, 17, 19, and 20: Health and Safety

      The parties’ shall adopt the Union’s final offer on all of the sections at impasse under this article, with the exception of Section 17, where the Employer’s wording shall be adopted.

V. Article 17, § 1: Training

    The parties shall adopt the Employer’s final offer.

VI. Article 23, §§ 9 and 10: Performance Appraisals

    The parties shall adopt the Employer’s final offer.

VII. Article 24, §§ 11 and 13: Merit Promotion

    The parties shall adopt the Employer’s final offer.

VIII. Article 36, §§ 6, 7, and 8: Adverse Weather Conditions

    The parties shall adopt the Employer’s final offer.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

January 2, 1998

Washington, D.C.

 

1.Agreement was reached on 10 of the 18 articles initially submitted to the Panel in the Union’s request for assistance.

2.Prior to the Panel’s latest procedural determination, the Employer was requested to submit a separate statement regarding its position concerning the negotiability of the Union’s final offers on the articles at impasse. The statement was received on October 6, 1997. The Employer’s arguments, and the responses provided by the Union in its initial written submission and rebuttal statement, have been incorporated herein.

3.Department of the Army, Headquarters, 10th Mountain Division and Fort Drum, Fort Drum, New York and Local 400, American Federation of Government Employees, AFL-CIO, Case No. 95 FSIP 117 (September 27, 1995) (Fort Drum), Panel Release No. 379.

4.According to the Union, “the FLRA is preparing to issue a complaint” on its ULP charge “unless the parties negotiate a settlement.”

5.American Federation of Government Employees, AFL-CIO and U.S. Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 4 FLRA 272 (1980).

6.Regarding the negotiability of its proposal, the Union contends, as it does elsewhere, that recent developments in the Federal sector labor relations program (e.g., the sunsetting of the FPM, the issuance of Executive Order 12871) have “broadened” the scope of bargaining. Nowhere in this case, however, has the Union provided citations to specific FLRA cases where substantively identical proposals have been found negotiable. As the Panel has stated numerous times in previous Decisions and Orders where duty-to-bargain questions have arisen during impasse proceedings, it is guided by Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell), where the FLRA concluded that the Panel may apply existing case law to resolve such issues. In the absence of such precedent, the Panel does not have the authority to adopt union proposals where such allegations have been made. See, for example, Department of the Air Force, Wright-Patterson Air Force Base, Headquarters, Air Force Materiel Command, Wright-Patterson, AFB, Ohio and Council 214, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 88 (November 12, 1997), Panel Release No. 403.

7.American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023 (1988).

8.National Treasury Employees Union and U.S. Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service, 45 FLRA 1256 (1992).