Fiscal Year 2012 (FY 12) was an interesting time for labor relations. As with the last few years, implementation of Executive Order 13522 continued to be of major focus within Army and among all Federal agencies. This year's report includes a short section on the overall success activities have had in establishing councils at the level of recognition. While progress is being made, more work needs to be done. In addition to the establishment of councils, labor relations specialists were asked to report on the use of union pre-decisional involvement and the establishment and measurement of metrics as a way of identifying improvements in mission accomplishment or labor-management relationships stemming from the implementation of EO 13522.
Of course, implementation of the EO was not the only focus in the area of labor relations. Installations had significant dealings with their unions regarding the potential for a government shutdown based on a lack of appropriations or continuing resolution. While the government shutdown never materialized in FY 12, there was significant union interest and demands to bargain so that labor relations specialists had to be fully engaged in the discussions. There were also numerous discussions regarding the potential need for civilian reductions, which was another area of significant union interest.
All of these actions were in addition to the numerous changes to working conditions established at both the national and local levels that necessitated union notification and negotiations. But then that's nothing new for the dedicated, hard-working Army labor relations specialists.
But as they say, talk is cheap. So let me share with you what I can only assume are some expensive numbers detailing Army's labor relations program in FY 12.
Appeals - There were six negotiability appeals filed by unions involving Army installations. This is three (100%) more than FY 11's three appeals. Army accounted for 13% (6 of 45) of the total negotiability appeal cases filed with the Federal Labor Relations Authority in FY 12. At the end of the fiscal year, all six cases were closed with the union withdrawing their petitions in all cases.
The six negotiability appeals covered such issues as management subsidizing liability insurance; sick leave; severance pay for NAF; overtime assignments and multiple proposals declared nonnegotiable by the activity during contract negotiations.
The mean average of Army negotiability appeals filed within the last 11 years is 5.0. The six negotiability appeals filed this year are slightly above average. The six cases involved a total of 46 proposals (37 coming from a single appeal). The 46 proposals were substantively more than the 3 proposals filed last year.
Decisions - In FY 12, the Authority decided two Army cases and accepted the union's withdrawal in a third case. All three of these cases were filed in FY 11. In one of the two cases decided on the merits, the Authority found a union proposal regarding the payment of hazard differential pay to be negotiable. In the other, the union proposed that when employees travel from their homes to a temporary duty station, employees will be reimbursed for mileage in excess of the mileage traveled during their "normal commute" from their homes to their permanent duty stations. The Authority found the proposal nonnegotiable.
The Authority issued decisions addressing the merits of union proposals in 12 negotiability appeals. (It also issued two negotiability decisions denying the unions' requests for reconsideration.) Army's 2 decisions accounted for 17% of the Authority's 12 merit decisions in FY 12.
It is significant to note that all six of the negotiability disputes filed in FY 12 were withdrawn by the union.
The Panel received 176 requests for assistance in FY 12, up 24 (16%) from the previous year. Army installations accounted for 10 (5.7%) of the Panel's 176 requests - an increase of 1 from last year. The average number of Army submissions over the last ten years was 11.4. The 10 requests are slightly below average of the Army's normal range of Panel submissions.
The Panel issued 30 decisions in FY 12, an increase of 30% from last year's 23 decisions. Two (6.7%) of the Panel's 30 decisions involved Army installations. The first case involved the payment of attorney fees. The parties agreed to splitting the arbitrator's fees, but the union wanted an arbitrator to be able to assess 100% of the fees against the party that failed to resolve the grievance at the lower level. Management wanted the arbitrator to be able to assess 75% of the fees if there was a specific finding that the unresolved agency action was without merit or the union knew or should have known that it would not prevail. The Panel split the matter by directing adoption of language allowing the arbitrator to assess 100% of the fees if there was a specific finding that the unresolved agency action was without merit or the union knew or should have known that it would not prevail.
In the second decision, the Panel awarded management's proposal for a 30-minute duty-free lunch period (the union did not want a duty-free lunch) and the union's proposal for 11.5 hours between shifts, instead of management's proposed 10 hours. Additionally, management wanted to assign overtime to employees called back who are in the same occupational series as the employee being replaced. The union wanted the employee to be in the same series and grade. The Panel adopted the union's proposal.
Management's limited involvement with the Panel demonstrates the local party's efforts to resolve negotiating impasses at the bargaining table. Activities are reminded that the Panel typically leans towards retaining current contract language absent a clear showing of the need for change by the moving party. Actual numbers, statistics, and real-life examples are often the most persuasive arguments. While whining may eventually get my children what they want, it is rarely successful before the Panel.
Grievances and Arbitrations
Grievances - There were 975 negotiated grievances filed by Army bargaining unit employees in FY 12. This is a decrease of 110 (19.8%) from FY 11. The 975 grievances were the lowest number filed since FY 05's 902. (See Charts A and B.)
Overall, three commands (IMCOM, AMC and MEDCOM) accounted for 72% of all negotiated grievances filed within Army with an average of about 235 grievances per command. One installation accounted for 23% of all Army negotiated grievances with one activity receiving 125 of the 975 (13%) grievances.
Most of our installations received very few grievances this year. In fact, 37 installations had five or fewer negotiated grievances in FY 12.
Using the numbers obtained from HQ ACPERS, there are 141,653 Department of the Army bargaining unit employees. The bargaining unit population reduced by 3,072 (2.1%) from last fiscal year. There were 6.9 negotiated grievances filed per 1,000 bargaining unit members. Last year's rate was 8.4. The 6.9 rate is the lowest rate since we began keeping records and falls well outside the 10 year average of 8.2.
Arbitration - Forty-four (4.5%) of the 975 grievances were raised to arbitration. . That's down 9 (17%) from the number of grievances taken to arbitration in FY 11. It remains a relatively low percentage and is the second fewest arbitrations in the last eleven years. (See Charts A and C.) The eleven year average is 67.1 arbitrations per year. Of the 27 commands, 18 (67%) did not have any arbitrations.
With the reduced number of arbitrations, there were also fewer arbitration awards. There were 28 arbitration awards issued in FY 12 involving Army installations. That is a decrease of 13 (31.7%) from FY 11. In fact, the 28 awards were the fewest awards in any year for Army activities.
In FY 12, management was sustained in 16 (57%) of the cases decided by an arbitrator. This was better than in FY 11 where management was sustained in 49% of the decisions. The union was successful in 10 (35.7%) decisions, up from last year's 29% success rate. Two (7.1%) were either split or mitigated, which is down considerably from last year's rate of 22%. (See Charts A and D.) Overall, management's position was upheld either totally or partially in 18 (64%) of the 28 arbitration decisions
Exceptions Management filed two exceptions to arbitrators' awards in FY 12. That equates to filing an exception to 7.1% of the arbitrators' awards. In FY 11, by comparison, Army filed three exceptions equating to 7.3% of the arbitrators' awards. The Authority received 107 arbitration exceptions in FY 12; Army's two exceptions equates to 1.9% of the total exceptions filed.
By the end of the fiscal year, the Authority had not addressed either of the two exceptions.
The Authority also issued decisions on two exceptions filed in the previous fiscal year. Army was unsuccessful in both exceptions which involved arbitrators awarding overtime. It continues to be a challenge to overturn an arbitrator's award, especially given the Authority's recent decisions that both limit arguments that can be successfully presented to the Authority and give greater weight to an arbitrator's findings.
Oppositions - Army filed seven oppositions to union-filed exceptions - one less than we filed in FY11. The Authority decided four of the cases. It denied the unions' exceptions in three cases and reversed in part an arbitrator's award in which he did not award liquidated damages in an FLSA overtime case. (Unfortunately, we knew that going in but wanted to at least raise some argument to the contrary.) Three cases were pending at the end of the fiscal year. In addition to the four FY 12 oppositions decided, the Authority denied three other union exceptions filed in FY 11.
The following is our exception experience for the past 33 years:
|Award Modified Reversed or Remanded By FLRA
Before the Authority
Summary - Fiscal Year 2012 saw a significant decrease in the number of grievances filed and the number of cases taken to arbitration. Management filed relatively few exceptions to arbitrator's awards; the only negative may be the lack of success we had before the Authority in the exceptions that were taken. A number of recent Authority decisions have made successful reversal of an arbitrator's award even more challenging. As such, management will have to be more prudent in the cases it elects to take before the Authority on exception.
Of the 109 Authority decisions involving arbitration exceptions filed by both management and the unions, Army accounted for only 9 (8.3%).
Activities are encouraged to continue to review grievances, looking to settle those worth settling, and coming well prepared to present management's interests should the case go before an arbitrator. Activities are reminded that arguments not raised before an arbitrator cannot be raised to the Authority in an exception. Should a case go before an arbitrator, management is encouraged to raise all valid arguments to the arbitrator so as to preserve our arguments should an exception need to be filed.
Unfair Labor Practices (ULPs)
Charges - There were 247 ULP charges filed against Army activities; a decrease of 7 (2.8%) from FY 11. (See Charts A and E).
Two commands accounted for about half the ULP charges. The number of have and have-nots were pretty evenly split with 13 (48%) commands not receiving any ULP charges and 14 (52%) receiving one or more charges.
There were approximately 1.74 ULP charges filed per 1,000 bargaining unit employees. This is down slightly from last year's rate of 1.75 charges per 1,000 employees.
Government-wide, the General Counsel received 4,375 ULP charges in FY 12, an increase of 281 (6.9%) from last FY. Army received 5.6% of the government-wide charges, that's 0.6% less than last year's percentage.
Complaints - Army received 15 ULP complaints in FY 12. That's a decrease of 11 (42%) from last fiscal year. One command received 47% of the complaints; 21 commands (78%) did not receive any complaints. After three years of rising ULP complaints, it is nice to see a reversal of the trend.
In FY 12, the General Counsel issued 231 complaints with Army accounting for 6.5%. Complaints against Army activities equate to 6.1% of the charges filed. This was down from last year's rate of 10.2%. Government-wide, the rate was 5.3%.
The General Counsel issued a ULP complaint for every 16.5 ULP charges filed against Army installations. Last year, a ULP complaint was issued for every 9.6 charges filed. Government-wide, the General Counsel issued a complaint for every 18.9 charges filed.
Decisions - The Army was not a party to any of the Authority's eight decisions involving ULPs.
Summary - This was a very good year for ULPs. Army saw a significant decrease in both the number of ULP charges and the number of complaints. None of the complaints resulted in a final decision from the Authority. As we encourage each year, consideration should be given to including in the parties' agreement a notice period prior to the filing of a ULP. For example, either side will provide 15 days notice prior to filing a ULP. This will provide an opportunity for settlement - - or at a minimum, extra time to prepare your defense. If included in your agreement, the Authority will dismiss a ULP charge where either party did not adhere to the 15-day notice.
Labor Management Councils and Union Pre-Decisional Involvement (PDI)
Activities are asked quarterly to report on the number of labor-management councils at the level of recognition. Based on second and third quarter input (there was no fourth quarter report in FY 12), activities reported that there were178 labor-management councils within Army; with 118 bargaining units working to establish a local council. Additionally, there were 137 bargaining units that engaged their unions 950 times in PDI. We expect that more activities will have established labor-management councils and engage their unions in pre-decisional discussions by the next quarterly report.
Fiscal Year 2013 will bring a lot of excitement with the possible sequestration, budget reductions and the downsizing of the Army. There will continue to be a push for the implementation of E.O. 13522 with enhanced union pre-decisional involvement. Each action has the potential for shoring up your labor-management relationship or creating problems. The path taken could have an impact on the efficient accomplishment of the mission. Activities continue to be encouraged to work with their unions in establishing working conditions and in improving communications. Training concerning the Executive Order is available on the Authority's web site with classroom instruction available from the Authority and FMCS. Training is also available on building a stronger relationship from FMCS. Parties not fully engaged in a healthy labor-management relationship are encouraged to take advantage of this type of training. If you're unsure whether it would be helpful - - there is only one way to find out.
|# to arb||115||61||67||82||76||90||57||51||42||53||44|
|% to arb||12.1%||7.0%||7.2%||9.1%||6.6%||7.6%||4.5%||4.6%||3.8%||4.4%||4.5%|
|% of Charges||5.9%||4.9%||9.2%||5.7%||5.1%||6.0%||0.6%||3.0%||4.0%||10.2%||6.1%|
Chart B Grievances Filed Under Negotiated Procedures FY 07 - 12
Chart C Arbitration (as % of Negotiated Grievances) FY 07 - 12
Chart D Arbitration Decisions (% of Total Decisions) FY 07- FY 12
Chart E Unfair Labor Practice Charges and Complaints (Filed by Union) FY 07 - FY 12
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