Fiscal Year 2013 (FY 13) was a challenging year - maybe even the most challenging in decades - and one, I hope, that does not get repeated anytime soon. Not only was the pay freeze extended, but employees were furloughed, and no monetary awards were issued for a significant period of time during the fiscal year. These changes help account for the substantial increase in negotiated grievances and unfair labor practice (ULP) charges filed in FY 13.
A significant amount of time was spent by labor relations specialists within Army addressing furlough issues and the suspension of monetary awards. While the number of grievances and ULP charges could be misinterpreted as a lack of management effort, local labor relations specialists did an exceptional job in addressing union concerns and fulfilling all labor relations obligations so as to allow for the relatively smooth implementation of both initiatives.
Addressing furlough and monetary awards, while significant, were not the only actions required of labor relations specialists. Army continued to promote labor-management cooperative efforts as provided for in Executive Order (EO) 13522 and provided labor relations guidance regarding reorganizations/realignments, as well as a few reductions in force. All labor relations obligations were fulfilled so as to allow for their timely implementation.
Of course, the above actions were in addition to the myriad of changes to working conditions emanating from OPM, DoD, HQ Army and local commands; each requiring local labor relations specialists to inform and negotiate with unions having exclusive recognition. No easy task!
From an Authority perspective, it was an challenging year as well as there were insufficient Authority members to issue decisions from December 2012 to November 2013. As such, there were fewer Authority decisions issued in FY 13 than there would have been with a full set of members. The limitation of Authority members, however, did not diminish the number of ULP charges or arbitrations that could be filed, or the number of complaints issued. It only limited the number of decisions that could be issued by the Authority's three members.
Appeals - There were four negotiability appeals filed by unions involving Army installations. This is two (33%) fewer than FY 12's six appeals. Army accounted for 13% (4 of 30) of the total negotiability appeal cases filed with the Federal Labor Relations Authority in FY 13. That's the same percentage as FY 12. Just like last year, all of the cases were closed by the end of the FY with the unions withdrawing their petitions.
Two of the four appeals involved provisions being declared nonnegotiable during agency head review. The other two cases involved furlough and use of e-mail by non-DoD employees. The cases were withdrawn by the union after assistance from the Authority's Collaboration and Alternative Dispute Resolution Office, often referred to by its acronym, CADRO.
The mean average of Army negotiability appeals filed within the last 11 years is 4.8. The four negotiability appeals filed this year are slightly below average - and that's a good thing. The four cases involved a total of two proposals and 10 provisions. The twelve proposals/provisions were significantly fewer than the 46 proposals filed last year.
Decisions - In FY 13, the Authority accepted the unions' withdrawal in the four cases described above. The Authority did not address the merits of any negotiability appeals involving Army. We should expect a significant increase in FY 14 as the Authority will be fully staffed for more of the fiscal year than they were in FY 13.
The Authority issued a total of two negotiability decisions in FY 13 and neither involved the Army.
It is significant to note that all four of the Army negotiability disputes filed in FY 13 were withdrawn by the union. I like to consider this as the Authority not rejecting any Army claims that the unions' proposals were nonnegotiable. Let's hope this success continues into FY 14
The Panel received 194 requests for assistance in FY 13, up 18 (10%) from the previous year. Army installations accounted for 20 (10.3%) of the Panel's 194 requests - an increase of 10 from last year. The average number of Army submissions over the last ten years was 11.4. The 20 requests are the highest number of Army requests since FY 2003. Of the 20 requests for assistance, 10 involved furlough-related matters.
The Panel issued 24 decisions in FY 13, a decrease of 20% from last year's 30 decisions. None of the Panel's 24 decisions involved Army installations.
Management's relatively high number of Panel requests is undoubtedly attributable to the tumultuous events in FY 13. It is expected that the number of Panel requests should go down in FY 14.
Of the 20 requests, 12 were withdrawn by the filing party during the investigation because the disputes were settled or taken to a more appropriate forum; the Panel declined jurisdiction over five because of bona fide duty-to-bargain questions; and 3 were settled during mediation-arbitration proceedings conducted by Panel members.
When heading to the Panel, 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. The Panel also is more likely to uphold proposals backed by hard numbers and factual, proof-heavy arguments. Additionally, economic arguments in the era of downsizing may also be persuasive.
Grievances and Arbitrations
Grievances - There were 1,660 negotiated grievances filed by Army bargaining unit employees in FY 13. This is a rather significant increase of 685 (70.3%) from FY 12. The 1,660 grievances were the largest number of grievances filed since FY 94's 1,808. (See Charts A and B.)
Overall, three commands (MEDCOM, IMCOM and HQDA/FOA) accounted for 62% of all negotiated grievances filed within Army with an average of about 341 grievances per each of the three commands. One installation with multiple commands accounted for 13% of all Army negotiated grievances, with one activity receiving 152 of the 1,660 (9%) grievances. The bulk of the grievances related to furlough, where the unions actively encouraged employee grievances. Of course, furloughs didn't account for all grievances. Some unions like to have all disputes raised as grievances rather than trying to work out solutions informally. In those situations, commands are encouraged to bring in a third party to assist labor and management in addressing their relationship as a significant number of grievances, absent a specific cause such as furlough, typically indicate a relationship problem rather than management's failure to abide by the parties' agreement.
Most of our installations received very few grievances this year. In fact, 39 installations had five or fewer negotiated grievances in FY 13.
Using the numbers obtained from HQ ACPERS, there are 130,311 Department of the Army bargaining unit employees. The bargaining unit population reduced by 11,342 (8.0%) from last fiscal year. There were 12.7 negotiated grievances filed per 1,000 bargaining unit members. Last year's rate was 6.9. The 12.7 rate is the highest rate since FY 94 and well above the 10 year average of 8.7.
Arbitration - Forty-three (2.6%) of the 1,660 grievances were raised to arbitration. That's down 1 (2.3%) from the number of grievances taken to arbitration in FY 12. The 2.6% is the lowest percentage in over 25 years. It may be that a significant number of grievances were still being processed at the end of the FY, and the number of cases taken to arbitration next year will be significantly higher than this year. (See Charts A and C.) The eleven year average is 60.5 arbitrations per year. Of the 27 commands, 18 (67%) did not have any arbitrations. This is identical to last year's numbers.
There were 48 arbitration awards issued in FY 13 involving Army installations. That is an increase of 20 (71.4%) from FY 12. As the 28 awards in FY 12 were the fewest awards in any year for Army activities, and that there were a significant number of grievances filed in FY 12, it can be assumed that a number of awards in FY 12 were still pending at the end of the fiscal year, and were issued in FY 13. The 48 awards were the most arbitration awards issued in a year since FY 07's 61 awards.
In FY 13, management was sustained in 30 (62%) of the cases decided by an arbitrator. This was better than in FY 12 where management was sustained in 57% of the decisions. The union was successful in 10 (21%) decisions, down from last year's 36% success rate. Eight (17%) were either split or mitigated, which is up considerably from last year's rate of 7%. (See Charts A and D.) Overall, management's position was upheld either totally or partially in 38 (79%) of the 48 arbitration decisions.
Exceptions - Management filed two exceptions to arbitrators' awards in FY 13. That equates to filing an exception to 11.1% of the arbitrators' awards which were either in the union's favor or split/mitigated. In FY 12, by comparison, Army filed two exceptions equating to 16.7% of the arbitrators' awards favoring the union or split/mitigated by the arbitrator. The Authority received 124 arbitration exceptions in FY 13; Army's two exceptions equates to 1.6% of the total exceptions filed.
By the end of the fiscal year, the Authority dismissed one of the Army's exceptions and had not yet addressed the merits of the second. The Authority dismissed the activity-filed exception for lack of jurisdiction as the arbitrator's decision related to an adverse action.
The Authority issued decisions on two exceptions filed in FY 12; both exceptions were filed by the activity. In the first case, which involved FLSA, the Authority dismissed the exception as interlocutory. In the second, the Authority denied the activity's exception upholding the arbitrator's finding that a "needs improvement" rating had to be overturned because, among other things, the activity did not give the employee his performance standards within 10 days of the rating period, as required by the parties' contract. Clearly, overturning an arbitrator's decision remains a difficult challenge.
Oppositions - Army filed six oppositions to union-filed exceptions - one less than was filed in FY12. In one union-filed exception, management did not file an opposition as it agreed with the union that a portion of the arbitrator's remedy was not appropriate. By the end of the FY, the Authority had not issued any decisions regarding Army oppositions filed in FY 13. (Remember, the Authority did not have sufficient members to issue decisions for most of FY 13.) The Authority issued one decision in a case filed in FY 12. There, the arbitrator reduced a short suspension to a letter. The union filed an exception claiming the arbitrator based her decision on matters not part of the grievance. The Authority rejected the union's exception. Six cases were pending at the end of the fiscal year.
The following is our exception experience for the past 33 years:
|Award Modified Reversed or Remanded By FLRA
Before the Authority
Summary - Fiscal Year 2013 saw a dramatic increase in the number of grievances filed, but not a corresponding increase in arbitrations. The increase in grievances is directly attributable to the unions' efforts to encourage employee grievances over the furloughs in FY 13. Surprisingly, there was not a corresponding increase in the number of cases taken to arbitration, but that may be because the grievances were still being processed at the end of FY 13. Also, while each grievance was filed individually, some activities may have consolidated the grievances into a single arbitration, thus reducing the number of arbitrations compared with the number of grievances.
Of the 18 Authority decisions involving arbitration exceptions filed by both management or the unions, Army accounted for 3 (16.7%).
Management continued to do well before arbitrators. Management was sustained in 62% of the arbitrators' decisions; and was either sustained in whole or in part in 79% of arbitrators' decisions.
We continue to encourage activities 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. As we did last year, activities are once again 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, especially violations of specific regulations or management's rights, so as to preserve our arguments should an exception need to be filed.
Unfair Labor Practices (ULPs)
Charges - There were 368 ULP charges filed against Army activities; an increase of 121 (49.0%) from FY 12. (See Charts A and E). Again, furlough and limitations on awards played a significant role in the increase of the number of charges.
Three commands accounted for about 72% of 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 2.82 ULP charges filed per 1,000 bargaining unit employees in FY 13. This is up from last year's rate of 1.74 charges per 1,000 employees. The increase in charges, along with the decrease in the number of bargaining unit employees impacted the number of charges per employee ratio.
Government-wide, the General Counsel received 4,659 ULP charges in FY 13, an increase of 284 (6.5%) from last FY. Army received 7.9% of the government-wide charges, that's 2.3% higher than last year's percentage.
Complaints - Army received 25 ULP complaints in FY 13. That's an increase of 10 (67%) from last fiscal year. Two commands received 60% of the complaints; 21 commands (78%) did not receive any complaints. The 25 complaints were the most issued by the General Counsel since FY 11.
In FY 13, the General Counsel issued 258 complaints with Army accounting for 6.5%. Complaints against Army activities equate to 9.7% of the charges filed. This was up from last year's rate of 6.1%. Government-wide, the rate was 5.5%.
The General Counsel issued a ULP complaint for every 14.7 ULP charges filed against Army installations. Last year, a ULP complaint was issued for every 16.5 charges filed. Government-wide, the General Counsel issued a complaint for every 18.1 charges filed.
Decisions - The Army was not a party to any of the Authority's one decision involving a ULP.
Summary - This was not a particularly good year for ULPs within Army. While there is only so much an activity can do to preclude ULP charges, they can review each charge carefully and determine which ones, if any, warrant settlement. In FY 13, we saw an increase in ULP charges, ULP complaints and the percentage of ULP charges resulting in complaints. On the bright side, of all the complaints, only one resulted in a ULP finding by an ALJ, and none by the Authority. Of course, the Authority was short members most of the year and, as such, issued only one ULP decision. As the Authority was not issuing decisions for most of the FY, we will likely see an increase in ULP decisions issued in FY 14. Again, each ULP should be reviewed on its own merits in determining whether settlement or a good defense is appropriate. In this regard, and 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.
It appears that Fiscal Year 2014 will be yet another challenging year from a labor relations perspective. This time, it doesn't seem that furloughs will be the driving issue facing the parties; instead, it will likely be force reductions or realignments. The Secretary of Defense has made clear his intent to reduce military strength - and civilians can't be far behind. We can also expect a continuing effort to engage unions in councils and in pre-decisional involvement (PDI ) in accordance with E.O. 13522. Civilian workforce and budget reductions may be an ideal topic for PDI with the unions - even if it requires non-disclosure agreements among the parties.
With the upcoming potential for continued stress within the labor-management relationship, activities should begin now with efforts to help improve the way labor and management interact, share information, and work towards their goals of employee satisfaction and mission accomplishment. While it may be easy to impart these words of wisdom from the confines of an office with no exclusive representative, it nevertheless does not diminish the truth of the statement. Good labor-management relationships lead towards improved employee morale and mission accomplishment. Recognizing it takes at least two to make a good relationship, management is expected to take all reasonable steps towards achieving a sound, cooperative relationship. This includes engaging the unions in PDI, sharing information and keeping the unions informed of possible changes. And where possible, ensure such communications occur early and often.
|# to arb||61||67||82||76||90||57||51||42||53||44||43|
|% to arb||7.0%||7.2%||9.1%||6.6%||7.6%||4.5%||4.6%||3.8%||4.4%||4.5%||2.6%|
|% of Charges||4.9%||9.2%||5.7%||5.1%||6.0%||0.6%||3.0%||4.0%||10.2%||6.1%||6.89%|
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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