This is the first year, in a number of years, where we have had a full contingent of Federal Labor Relations Authority (Authority) members as well as a General Counsel. As such, we saw a significant increase in the number of unfair labor practice charges and complaints issued by the General Counsel from the previous year. With the addition of the third member of the Authority, we also saw an increase in the number of Authority cases involving split decision.

            The most significant event in FY 10, and likely the most significant event in the labor relations field in the past decade, was the signing of Executive Order 13522 (E.O.), Creating Labor-Management Forums to Improve Delivery of Government Services. The E.O. called for the establishment of agency and installation labor-management councils and engaging the union in pre-decisional involvement in workplace matters.

            In an effort to assist in the implementation of the E.O., the Army arranged for joint labor-management training on the E.O. conducted by representatives of the Authority and the Federal Mediation and Conciliation Service (FMCS). This joint training conducted in Aberdeen, Maryland, brought in labor-management teams from various Army installations that not only received the training, but were expected to return to their installations and train their labor-management council. While during FY 10 there wasn't momentous progress in the establishment of local labor-management councils within Army, efforts had begun at a number of installations to form their councils or to reconstitute previously existing ones. This delay in establishing councils was not surprising given that the National Labor-Management Council was still clarifying the E.O. by the end of the fiscal year. During the year, Army published briefing charts, general guidance, a Council Agreement template and conducted a teleconference with Army activities to assist the local parties in the implementation of the E.O.

            Not all changes in FY 10 stemmed from the White House or the Authority. Army issued its revised version of AR 190-56, The Army Civilian Police and Security Guard Program. The most significant revision was an easing of the requirements of the physical ability test. Many installations still hadn't completed bargaining over the 2006 version of the regulation, so this update actually smoothed out a few wrinkles in their on-going negotiations. Where agreement had been reached on the 2006 version, the modifications contained in the 2009 version provided less contention for the parties and the revised agreement was reached relatively easily.

            Besides these significant matters, there were, as there are year to year, a multitude of changes requiring labor relations involvement at the installation level. In FY 10 we saw the banning of texting while driving on post or in government vehicles; mandatory immunizations; the addition of testing designated positions; the movement of substance abuse counselors from MEDCOM to IMCOM; emergency reporting requirements, the adoption of USA Staffing; and the DOIM/NETCOM realignment. Of course, this being the Army, installations also faced numerous obligations to engage their unions based on changes in local policies along with various realignments and reorganizations.

            Fulfilling statutory labor relations obligations, in addition to meeting other requirements of the Statute, can serve as a catalyst in establishing and maintaining cooperative labor management relationships. However, with the new E.O., timely union notification of proposed changes is no longer the modus operandi for labor-management relations. Instead, management must look towards providing unions with pre-decisional involvement on workplace matters. No longer is it sufficient to notify the union of a management decision and afford the union an opportunity to bargain prior to implemen-tation. Now, unions should be brought in at the planning stage - pre-decisional involvement - and afforded an opportunity to provide input during the development of the policy. Then, once management decides its course of action, the union is afforded its Statutory right to bargain. Though this is a significant change to the way we have been doing business, such efforts should result in an enhanced labor-management relationship and should provide the proponent broader input to be used in the finalization of the policy. Early union involvement should result in a better, more encompassing policy.

            While the parties working on their labor-management relationships were a significant aspect of FY 10, we also had real cases to work with. Gregg Easterbrook said, "Torture numbers, and they'll confess to anything." Let's just see what these FY 10 numbers have to say ...

Negotiability Disputes

            Appeals - There were eight negotiability appeals filed by unions involving Army installations. This is five (167%) more than FY 09's three appeals. Army accounted for 15% (8 of 52) of the total negotiability appeal cases filed with the Federal Labor Relations Authority in FY 10. While there was a significant increase in the number of negotiability cases filed, none of the proposals were found to have been negotiable.

            The first Army negotiability appeal involved a single proposal providing that an employee may refuse to participate in the Influenza Immunization Program due to medical, religious or personal reasons. The Authority found this proposal violated management's right to determine internal security.

            Five cases were either dismissed by the Authority, or withdrawn by the unions, because the parties either reached agreement with the assistance of the Authority's Collaboration and Alternative Dispute Resolution (CADR) Office or there were procedural errors. In none of these cases did the agency have to file a statement of position. These cases would have addressed proposals involving tour of duty, AR 190-56, severe weather, VERA/VSIP, and gate inspections. Two other cases involving AR 190-56 remained undecided by the end of the fiscal year. The Authority did not address any cases filed prior to FY 09. At the end of the year, only two negotiability cases, both filed in FY 10, remained open before the Authority.

            The mean average of Army negotiability appeals filed within the last eleven years is 5.3. The eight negotiability appeals filed this year are on the high end of the average, and even though there were more negotiability appeals filed than in the previous two years, the Authority did not find any proposals negotiable in FY 10. (See Chart A)

            The eight cases submitted to the Authority contained 31 proposals; a marked increase from last year's 12 proposals and provisions.

            Decisions - This is the first time in three years that the Authority issued a decision addressing the negotiability of a proposal involving the Army. In the one case decided this year (described above), the Authority found the union's proposal nonnegotiable. http://www.flra.gov/decisions/v64/64-185.html In the remaining cases, the union either withdrew its negotiability appeal or the case was dismissed. Two cases filed in FY 10 remain waiting for a decision by the Authority.

            The Authority issued a total of 22 negotiability decisions in FY 10, only one of which was an Army case. Army had 4.5% (1 of 22) of the decisions issued where the Authority decided on the merits of the proposal.

            Even with all the Army negotiability cases filed with the Authority, only one resulted in the decision on the merits, and in that case, the proposal was found nonnegotiable. It is impressive that while a number of parties faced challenges regarding the negotiability of proposals, they were able to resolve their issues without the need for a written decision by the Authority (in all but one case). Army activities are encouraged to continue to avoid negotiability disputes and, instead, recommend negotiable proposals where the unions submit nonnegotiable ones, convince the unions that their nonnegotiable proposals are nonnegotiable, and/or actively participate in the Authority's CADR program as warranted. With all the negotiations that go on within Army, that the Authority needed to issue only one negotiability decision on the merits also speaks well of our union counterparts in that they either did not offer any nonnegotiable proposals or withdrew them prior to the need for a third party decision.

Impasses

            The Panel received 143 requests for assistance in FY 10, up 7 (5%) from the previous year. Army installations accounted for 11 (7.8%) of the Panel's 143 requests - an increase in 3 from last year. The average number of Army submissions over the last ten years was 12.6. The 11 requests are within average of the Army's normal range of Panel submissions.

            The Panel closed 176 cases in FY 10; an increase of 87 (98%) from FY 09. Keep in mind that there were no Panel members for about half of FY 09 and, as such, there was a significant backlog. The Panel reported that they have since eliminated their backlog stemming from the lack of Panel members in FY 09. Not all the closed cases resulted in written decisions. Resolution of impasse requests could stem from the parties withdrawing their requests; the Panel declining to accept jurisdiction; or the parties settling their disputes prior to a final decision.

            The Panel issued 20 decisions in FY 10, an increase of 43% from last year's 14 decisions. The written decisions equated to 11% of the cases disposed of by the Panel. Two (10%) of the Panel's 20 decisions involved Army installations. The first case involved numerous issues stemming from the base closure and transfer of function at St. Louis. The Panel determined that the dispute should be resolved through mediation-arbitration. Mediation failed and a decision was issued by the arbitrator. The union submitted a total of 9 proposals that it felt would protect the rights and benefits of those employees who elected not to transfer. Included was a proposal that would require affected employees to receive their separation notices 120 days prior to the Command's effective date of closure. The union acknowledged that the employer could not be bound to specific dates because of circumstances related to the TOF but expected to be kept apprised of any change related to the TOF so that it would have the ability to engage in open dialogue.

            The employer submitted 9 proposals that included providing an additional 45 calendar days of advanced notice, (in addition to the statutory minimum 30 day notice) to separate employees who declined the employer's offer of continued employment at the new location, to the extent that it did not impair its ability to continue to successfully execute its mission. The employer reasoned that providing for an additional 45 days would avoid the possibility of a mass exodus of civilian employees that could impact mission accomplishment.

            The arbitrator concluded that the impasse would be resolved via a compromise. The arbitrator's decision stated in pertinent part, "The Parties recognize the statutory requirement to afford Employees who declined the Employer's offer of continued employment at HRC-Fort Knox, Kentucky, with thirty (30) calendar days of advanced notice of the employer's intent to separate them from the Federal service. The employer agrees to afford such employees an additional sixty (60) calendar day's advance notice unless such notice would substantially impair its ability to successfully execute the mission."
http://www.flra.gov/node/12832

            In the second case, the agency sought to terminate a 4/10 compressed work schedule for approximately 120 security guards. The Panel directed, as it did with the previous Army decision, that the case be resolved through mediation/arbitration with a Panel member serving as the med/arb. Among other things, management noted that under the current schedule, employees are assigned 2¾ hours overtime each shift and that the schedule interferes with coverage. The commander voiced strong concern with employees working what amounted to 36-hour shifts as this created a safety hazard. The Panel found that the agency did not meet its burden of demonstrating an adverse agency impact. The Panel noted that the agency' argument that long hours will create fatigue thus diminishing response time was heartfelt and understandable, but the agency never provided any evidence to support its findings. In other words, management didn't actually show some type of security breach or an employee getting hurt on the job. The Panel felt that management never demonstrated that employees would be better rested under the changed work schedule. The Panel directed retention of the 4/10 schedule. http://www.flra.gov/node/12918

            Even with the appointment of the Panel members, Army's presence before the Panel remained relatively low. With all the negotiations going on in Army, from term to mid-term, only 11 cases winding up before the Panel is a very impressive number. (Of course, that's only if you're impressed with low numbers.) Negotiating teams in Army accounted for 7.8% of the cases submitted to the Panel. With over 500 Army bargaining units, it would not have been unexpected to see a greater presence before the Panel.

            While Army was relatively successful before the Panel, it is important to continue to attempt to keep negotiations at the local level since involving any third-party in your negotiations guarantees a certain amount of risk.

            As we caution from year to year, should an activity find itself before the Panel, it is important to be fully prepared with specific facts, figures and background material, and not just unsupported arguments defending your position. The more facts you can present to the Panel, the better your chance of success.

            Next year will be the second year with the new Panel members. Now that the Panel is again up and running, it will be interesting to see if there is an increase in the number of requests. A lot may depend upon the parties' perception of which way, if any, the Panel leans.

Grievances and Arbitrations

            Grievances - There were 1106 negotiated grievances filed by Army bargaining unit employees in FY 10. This is a decrease of 2 (0.2%) from FY 09. The 1106 grievances were the fewest grievances filed in a fiscal year since FY 05, and was the second annual decrease in grievances since that year. (See Charts A and B.) Given the arrival of the General Counsel, it is not surprising to see a drop in the number of negotiated grievances as it was expected that there would be a rise in the number of ULPs filed. While the drop in negotiated grievances from last year was not significant, it is the second year in a row where we have seen a decrease in the number of negotiated grievances.

            Overall, three commands (IMCOM, AMC and MEDCOM) accounted for about 75% of all negotiated grievances and three installations accounted for over one-third of the grievances filed in FY 10. One of the three installations identified that most of their grievances stemmed from an internal union dispute within its NAF unit. Unfortunately, that internal dispute manifested itself in the filing of numerous grievances. At the second installation, there was an internal union election and with the new slate of officers came a different labor-management philosophy. This resulted in a significant increase in the number of grievances (and ULPs) filed. The union official responsible for the bulk of the grievances was ultimately relieved of his union duties approximately 9 months after taking office. (The union has subsequently been placed in trusteeship.) At the third location, the large number of grievances stemmed from the BRAC and associated merit promotion actions, as well as a very active union. Additionally, the activity services a very large civilian population with seven different locals representing 3 national unions.

            With three installations accounting for 35% of the grievances, most of our installations received very few grievances this year. In fact, 17 commands had five or fewer negotiated grievances in FY 10.

            Using the numbers obtained from HQ ACPERS, there are 150,153 Department of the Army bargaining unit employees. This number was obtained by subtracting all employees with bargaining unit status codes of 7777 (non-represented) and 8888 (statutorily excluded, e.g., supervisors) from the entire population as reported in HQ ACPERS. The bargaining unit population rose 8,044 (5.7%) from last fiscal year.

            Using the bargaining unit population of 150,153, there were 7.4 negotiated grievances filed per 1,000 bargaining unit members. This is the lowest rate since FY 05 when the rate was also 7.4 per 1,000 bargaining unit employees.

            Arbitration - Forty-two (3.8%) of the 1106 grievances were raised to arbitration. That's down 9 (18%) from the number of grievances taken to arbitration in FY 09 and is the lowest percentage for arbitrations involving the Army. (See Charts A and C.) Given the rather small decrease in the number of negotiated grievances, it could be expected that the number of arbitrations would also go down. It is surprising to see just how many fewer arbitrations were invoked by the unions.

            The 42 arbitrations were the fewest number of arbitrations ever filed within Army. The ten-year annual average of arbitrations within Army is 70.1. Of the 29 commands, 21 (72%) did not have any arbitrations.

            Even though there were significantly fewer arbitration cases than FY 09, there was a substantial increase in the number of arbitration awards. This is because a number of the awards issued in FY 10 stemmed from arbitrations that began in FY 09. There were 45 arbitration awards issued in FY 10 involving Army installations. That is an increase of 15 (50.0%) from FY 09. The 45 awards were the highest number since FY 07. Given the fewer grievances taken to arbitrations in FY 10, it is expected that we will see a reduction in the number of awards next year.

            In FY 10, management was sustained in 20 (44%) of the cases decided by an arbitrator. This was slightly better than in FY 09 where management was sustained in 43% of the decisions. The union was successful in 9 (20%) decisions, down from last year's 33% success rate. Sixteen (36%) were either split or mitigated. (See Charts A and D.) While management typically has no say in whether a negotiated grievance will be raised to arbitration, it must act as if each grievance will go before a third party. Where management appears to have violated a rule or regulation, then management should be encouraged to grant or settle the grievance. Where a case is questionable, at best, then settlement may be the appropriate resolution. Given that the unions decide whether a grievance should be raised to arbitration, and you would expect that they chose those cases carefully, management was able to convince an arbitrator that its position should be sustained in whole or in part in 80% of the arbitrations raised by the union. That certainly is an endorsement of the skills of our labor practitioners within Army.

            Exceptions Management filed five exceptions to arbitrators' awards in FY 10. That equates to filing an exception to 11.1% of the arbitrators' awards. In FY 09, by comparison, Army filed two exceptions equating to 6.7% of the arbitrators' awards. The Authority received 134 arbitration exceptions in FY 10; Army's five exceptions equates to 3.7% of the total exceptions filed.

            By the end of the fiscal year, the Authority addressed one of the exceptions filed in FY 10, modifying, in part, the arbitrator's award. The other four exceptions were pending before the Authority. In the case where a decision was issued, the arbitrator found that management improperly denied the union president official time. The arbitrator's remedy, however, was applicable to all bargaining unit members with regard to official time. The Authority modified the arbitrator's award so that the remedy applied only to the grievant. The Authority denied the agency's other arguments.
http://www.flra.gov/decisions/v65/65-32.html

            Besides addressing the one exception filed in FY 10, the Authority issued decisions on four other exceptions filed in previous fiscal years. In one exception, the arbitrator had directed that the activity pay mileage reimbursement for temporary assignments. The Authority denied the activity's exception. http://www.flra.gov/decisions/v64/64-040.html In another case, the Authority denied the activity's exception where it sought to overturn an arbitrator's decision that management had to bargain over the filling of term positions. http://www.flra.gov/decisions/v64/64-065.html The activity's exception was also denied when it sought to have the Authority overturn an arbitrator's decision that management had not complied with the parties' agreement or regulation when it contracted out a certain function. http://www.flra.gov/decisions/v64/64-83.html In the last decision, the Authority reversed, in part, the arbitrator's decision noting that he inappropriately determined the hourly rate for the attorney fees. The Authority dismissed all of the other arguments in support of the exception. http://www.flra.gov/decisions/v65/65-15.html As such, in FY 10, the Authority addressed five management exceptions and modified, in part, two awards.

            Oppositions - Army filed six oppositions to union-filed exceptions - two more than we filed in FY 09. The Authority decided five of the cases and in all five cases denied the unions' exceptions. One case was pending at the end of the fiscal year. In addition to the five FY 10 oppositions decided, the Authority ruled on two other agency oppositions filed in prior years. In each of the two decisions, the Authority upheld the arbitrator's award - which is the outcome we sought. The cases involved such matters as suspensions, reprimands, performance appraisals and selections

            The following is our exception experience for the past 31 years:

            Summary - Fiscal Year 10 was a very positive year with respect to negotiated grievances. We saw a six-year low in the number of grievances, and the fewest cases taken to arbitration, ever. 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 seeking to sustain arbitrator awards will make future exceptions even more unlikely to be successful. As such, the agency will have to be more prudent in the cases we elect to take before the Authority on exception. Management's success rate before arbitrators increased slightly to 44% success. We saw a dramatic increase in the percentage of split decision so that Army management achieved full or partial success in 80% of all arbitrators' decisions. That equates to at least partial success in four out of every five arbitrations.

            Of the 174 Authority decisions involving arbitration exceptions filed by both management and the unions, Army accounted for only 10 (5.7%). This is a relatively low number given the size of our bargaining unit population.

            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.

Unfair Labor Practices (ULPs)

            Charges - There were 277 ULP charges filed against Army activities; an increase of 110 (65.9%) from FY 09 (See Charts A and E). The 277 ULP charges were the highest number since FY 03. This dramatic increase in the number of ULP charges is not surprising. As noted in the FY 09 bulletin, "I would expect to see a significant increase in ULP charges in FY 10." Keep in mind that in FY 09, there was no General Counsel for 10 months. Additionally, the unions may now feel that the new General Counsel is more sympathetic to their position. As we noted in 09, it would not be surprising to see the number of ULP charges continue to rise in FY 11.

            Three of the larger commands accounted for over half of the ULP charges. Over half the commands did not receive any ULP charges.

            Comparing the number of ULP charges with the unit data in ACPERS, there were approximately 1.84 ULP charges filed per 1,000 bargaining unit members. This is up from last year's rate of 1.18 charges per 1,000 employees.

            Government-wide, the General Counsel received 4,398 ULP charges in FY 10, an increase of 444 (11.2%) from last FY. Army received 6.3% of the government-wide charges, that's 1.1% more than last year's percentage. As Army accounts for approximately 11% of the bargaining unit population, receiving 6.3% of the ULP charges is well within the government-wide average.

            Complaints - With the increase in ULP charges, as well as the presence of a General Counsel for all 12 months of the year, it is not surprising to see an increase in the number of complaints issued. Army received 11 ULP complaints in FY 10. That's an increase of 6 (120%) from last fiscal year. The increase in ULP complaints over last year undoubtedly stemmed from having a full-time General Counsel throughout the year, as well as the increase in ULP charges. Additionally, this General Counsel is apt to have a more expansive philosophy regarding the scope of bargaining as well as a stricter reading of the Statute. We can expect to see the General Counsel take a more active role in ensuring the parties' adherence to the spirit and intent of the Statute through the active prosecution of ULP cases. In FY 10, the General Counsel issued 268 complaints, an increase of 194 (262%) from the previous year. Within that period, Army accounted for 4.10% of all the complaints issued government-wide. That's a decrease of 2.66% from last year's rate.

            As with the number of charges, it is not surprising that we saw an increase in the number of complaints. As stated above, this is the first year in quite some time where the Authority had its General Counsel in place for the entire year. Additionally, this General Counsel has a more expansive view of the Statute and has been more aggressive in ensuring full compliance. It would not be surprising to see the number of charges and complaints continue to rise in the coming years as the unions may perceive a more favorable attitude within the Office of the General Counsel.

            Complaints against Army activities equate to 4.0% of the charges filed. This was up from last year's rate of 3.0%. The 4% rate was the highest rate since FY 07. Government-wide, the rate was 6.1%. Army's percentage of ULP complaints to charges was about a third less than the government-wide rate.

            The General Counsel issued a ULP complaint for every 25.2 ULP charges filed against Army installations. Last year, a ULP complaint was issued for every 33.4 charges filed. Government-wide, the General Counsel issued a complaint for every 16.4 charges filed. Using our ACPERS data, in FY 10 there were 0.073 complaints issued per 1,000 bargaining unit members.

            Decisions - The Army was a party to two (22.2%) of the Authority's nine decisions involving ULPs. In the first case, the activity advised the union that, in accordance with the parties' agreement, it could not use official time to distribute fliers about NSPS. The ALJ found that the activity had violated the Statute. The Authority disagreed. It found that official time for distributing fliers fell within 7131(d) and was, therefore, negotiable. As there were no provisions in the parties' agreement providing for official time for this action, it was not a ULP to deny official time. http://www.flra.gov/decisions/v64/64-054.html
In the second decision, the ALJ found that management had not complied with a verbal agreement (reached with a management official who subsequently resigned) regarding the movement of employees in pay bands. The ALJ awarded a make whole remedy, to include back pay. On review, the Authority found that oral agreements are binding and that the management official did have authority to bind the command. http://www.flra.gov/decisions/v64/64-137.html

            The Authority did not publish any Administrative Law Judge (ALJ) decisions in FY 10, so we are unsure how many involved Army activities and what success we may have had. The Authority indicated it plans to restart publishing ALJ decisions.

            Summary - With the General Counsel position filled, we fully expected to see a rise in the number of ULP charges and complaints - - and that's exactly what we saw. The 277 ULP charges fell within the range of charges we have seen when there was a General Counsel for the entire year; likewise with the number of complaints. Not considering the last two years when there wasn't a full-time General Counsel, this year's numbers are actually on the low side of our annual data.

            With the new General Counsel and Authority members, activities have to continue to carefully consider the validity of any ULP charge or notification of intent to file a charge. Where there may be merit, consideration of settlement is appropriate. Of course, consideration is not just limited to the strict interpretation of the Statute, but also to the labor-management relationship as well as overall mission accomplishment. Being able to give thoughtful consideration to resolving potential ULPs is greatly aided by the inclusion of a ULP notice period in your collective bargaining agreement. Typically, these provisions provide that the party considering filing a ULP charge must first give the other party a certain amount of notice, typically 10 to 15 days. These provisions give the parties a chance to consider and potentially resolve a ULP before a charge is filed. Or, if nothing else, it allows the parties to fully understand each other's position. The Authority has upheld the enforcement of these provisions dismissing ULP charges where advance notice has not been provided. If such language is not in your contract, consider adding it at the next renewal.

What's Next

            So, what does FY 11 have in store? Two things for sure: 1. Executive Order 13522, Creating Labor-Management Forums to Improve Delivery of Government Services; and 2. the beginning of "rightsizing" the workforce as a result of budgetary constraints.

            While the implementation of the E.O. is a command function, CPACs will be called upon to actively assist in the establishment of local councils and engage the unions pre-decisionally. From a CPAC perspective, the E.O. will require the establishment of an education campaign for managers as well as personal involvement in the development of a charter for the local Labor-Management Council. This may be relatively easy for those who have previously been involved in the establishment of a labor-management partnership under E.O. 12871, but a bit more challenging where the labor-management relationship is not currently cooperative in nature. Expect to be responding to a number of reports checking on the status of these efforts.

            In addition to the E.O., budgetary constraints and associated reductions or restructuring will require fulfilling labor relations obligations with less than happy union officials. The parties can expect these changes will result in substantial, time-consuming bargaining; however, these changes also present a perfect opportunity for union pre-decisional involvement. By working with the unions early on in the decision-making process, it is anticipated that the solution, and its implementation, will be accomplished in a much smoother fashion.

            These two changes will be implemented along with all the other changes that normally occur throughout the year, such as reorganizations, office moves, changes in policies, new regulations, etc., all of which come with a Statutory/contractual labor relations obligation. So, regardless of whether these changes are accomplished through the use of a labor-management council or through some challenging face-to-face negotiations, the activity labor relations specialist is going to have a very busy year.

(Chart A)    Army Labor Relations Statistics FY 99 - FY 09

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