BEFORE THE FEDERAL MEDIATION AND CONCILIATION SERVICE JOSEPH M. SHARNOFF, ARBITRATOR ______________ FMCS No. 13-02465-A _______________ NATIONAL WEATHER SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U. S. DEPARTMENT OF COMMERCE, and the NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION _________________________________ UNION’S POSTHEARING BRIEF _______________________________ RICHARD J. HIRN General Counsel National Weather Service Employees Organization 5535 Wisconsin Ave NW Suite 440 Washington, DC 20015 202-274-1812 TABLE OF CONTENTS Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Union’s Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. The NWSEO bargaining unit and organizational structure of the National Weather Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 B. The NWS and NWSEO negotiated Weather Forecast Office and River Forecast Center staffing in 1993 during the NWS modernization and restructuring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. The NWS and NWSEO expanded their labor-management “partnership” and continued to make joint decisions on WFO staffing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 D. The parties agreed to amend their 1993 staffing agreement by creating an Information Technology Officer at each WFO and by designating one of the HMT slots as a “floater” that could be assigned, by mutual agreement, to another job category or WFO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 E. In 2004 the parties again agreed to alter the staffing within the HMT or “Public Service Unit” to create a GS-12 bargaining unit position for an HMT at every WFO, and, in return, to allow management to use the remaining HMT positions to hire more Met Interns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 F. Management continued to staff WFOs in accordance with the staffing agreements through 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 G. Congress increases NWS funding in anticipation of sequestration, and urges the agency to reprogram funds to offset the impacts of sequestration on NWS operations . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 H. Management assures the union that it will continue to fill operational positions during pre-decisional discussions about the impact of sequestration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 I. In March, 2013, the union discovered that management had not filled dozens of positions covered by the staffing agreements . . . 27 J. The NWS imposed a freeze on hiring and promotion without providing the union with notice and an opportunity to bargain . . . 29 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 I. Management breached the parties’ 1993, 2000 and 2004 staffing agreements by failing to fill vacant bargaining unit positions at the Weather Forecast Offices and River Forecast Centers . . . . . . . . 40 A. Management has failed to fill approximately 200 positions covered by the staffing agreements . . . . . . . . . . . . . . . . . . . . . 40 B. The staffing agreements are enforceable because they concern permissive matters covered by § 7106(b)(1) and therefore supercede the “management rights” enumerated in § 7106(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 C. The 1993 Memorandum of Understanding is still in effect . . 48 D. The 2000 Floater Agreement is binding even though it was negotiated in an informal process because Clinton-era “partnership” discussions were a form of collective bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 E. The 2000 Floater Agreement requires more than merely ensuring that there are two people on duty 24/7 . . . . . . . . . . 53 F. The 2004 Plan to Revise WFO Staffing was also a collectively bargained and binding agreement which required management to fill OPL positions . . . . . . . . . . . . . . . 57 G. NWS cannot escape its responsibly for compliance with its staffing agreements by blaming NOAA. . . . . . . . . . . 60 H. The agency’s alleged “fiscal challenges” do not excuse the breach of the staffing agreements . . . . . . . . . . . . . . . . . . . . . . 69 -ii- II. Management committed an unfair labor practice in violation of the FSLMR Statute and also violated Article 8 of the parties’ CBA when it unilaterally implemented a hiring freeze without providing the union with prior notice and an opportunity to bargain. Management’s violation of the staffing agreements also constituted an unfair labor practice because the breach of those agreements was “clear and patent” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 A. The Arbitrator has jurisdiction to adjudicate a statutory unfair labor practice allegation . . . . . . . . . . . . . . . . . . . . . . . . 71 B. The hiring freeze unilaterally changed conditions of employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 C. The unilateral implementation of the hiring freeze also violated Article 8 of the parties’ CBA . . . . . . . . . . . . . . . . . . . . 75 D. The NWS may not escape liability for the unfair labor practice by blaming NOAA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 E. Sequestration was not an “emergency” within the meaning of § 7106(a) that entitled management to implement a hiring freeze without bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 1. Budget cuts are not an “emergency” within the meaning of § 7116(a)(2)(D) that would entitle an agency to act without negotiating . . . . . . . . . . . . . . . . . 81 2. Sequestration was not an “emergency” within the plain meaning of the word because it was anticipated in advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 3. The NWS has failed to demonstrate, as a matter of fact, that an emergency existed or that it had no alternative but to impose hiring freeze . . . . . . . . . . . . . 84 a. The agency has failed to demonstrate in this case that a fiscal emergency existed at the National Weather Service that warranted the hiring freeze . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 -iii- b. The record demonstrates that there were numerous “alternative methods of dealing with” any financial shortfall that existed . . . . . . 88 III. Management’s freeze on the hiring of forecasters and hydrologists violated Article 8, § 1 of the CBA which requires that the agency provide the union with an opportunity for pre-decisional consultations on the exercise of “traditional management prerogatives” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 IV. Management violated Article 23, § 2 and Article 30, § 3 of the CBA when it cancelled Southern Region forecaster vacancies to avoid paying PSC costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 V. Management’s failure to respond to the union’s March 28 information request was both an unfair labor practice and a violation of the CBA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Relief Requested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 A. Remedy for violation of the staffing agreements . . . . . . . . . . . . . . . 101 B. Remedy for unilateral implementation . . . . . . . . . . . . . . . . . . . . . . 106 C. Remedy for violation of the union’s Article 8 pre-decisional consultation rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 D. Remedy for the violation of Article 23, § 2 and Article 30, § 3 . . . . 110 E. Remedy for failure to provide information requested on March 28 necessary to bargain over the hiring freeze . . . . . . . . . . . . . . . . . . . 112 F. Additional remedial measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Proposed “Notice to Employees” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 -iv- BEFORE THE FEDERAL MEDIATION AND CONCILIATION SERVICE JOSEPH M. SHARNOFF, ARBITRATOR ______________ FMCS No. 13-02465-A _______________ NATIONAL WEATHER SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U. S. DEPARTMENT OF COMMERCE, and the NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION __________________________________ UNION’S POSTHEARING BRIEF __________________________________ INTRODUCTION According to the National Academy of Sciences, the ability of the National Weather Service to protect the public from the hazards of severe weather is highly dependent on sufficient staffing. In a 2012 report, the Academy’s Committee on the Assessment of the NWS’s Modernization Program wrote: The quality of the NWS’s warning capability corresponds with its capacity to muster an ample, fully trained local staff at its WFOs [Weather Forecast Offices] as severe weather unfolds. With current staff levels, there are always two people working each shift, 24 hours a day, seven days a week. Though this works well in fair weather, it can become problematic in severe weather, particularly when events develop rapidly under seemingly benign conditions. While managers at individual WFOs generally plan ahead to add sufficient staff to cover forecasted dangerous weather situations, more innocuous weather scenarios that suddenly and unexpectedly "blow up"often lead to shortcomings that are directly attributed to having insufficient manpower. Several recent Service Assessments (e.g., NWS, 2003, 2009, 2010) illustrate the critical role that adequately enhanced staffing (or lack thereof) plays in the success (or weakness) of NWS performance during major events. Appropriate levels of staffing, beyond normal fair weather staffing, during major weather events, are critical for fulfilling the NWS's "protection of life" mission. NATIONAL RESEARCH COUNCIL OF THE NATIONAL ACADEMIES, THE NATIONAL WEATHER SERVICE MODERNIZATION AND ASSOCIATED RESTRUCTURING: A RETROSPECTIVE ASSESSMENT, 60-61 (2012). Union ex. 75. The National Academy of Public Administration reported last May that “[w]hile staffing levels have been relatively constant over the past decade, in the last three years, the NWS has realized personnel losses at a greater rate than it has been hiring.” NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, FORECAST FOR THE FUTURE: ASSURING THE CAPACITY OF THE NATIONAL WEATHER SERVICE, 39 (2013). Union ex. 76. The Senate Appropriations Committee noted in early 2013 that “[s]ince 2010, NWS has seen a reduction of 290 positions, or approximately 6 percent of its workforce, with many forecaster and other positions left vacant across the country.” S.REP. No. 113-78, 113 Cong. 1st Sess. 38 (2013). According to NAPA, the vacancy rate had reached 8 percent by the second quarter of 2013. NAPA warned that “[i]f this trend continues, 2 the NWS is in danger of losing a significant segment of the workforce and will not be able to renew itself at sustainable levels unless it revises staff functions and allocations across programs and offices.” FORECAST FOR THE FUTURE, at 38, 39. Union ex. 76. On March 27, 2013, this problem was compounded when the NWS imposed a freeze on hiring and promotions. In May, 2013, the NWS issued a “Service Assessment” on its performance during Hurricane/Post-Tropical Storm Sandy in October, 2012. The agency concluded that its performance during this event was hampered by vacancies in critical positions. Eight vacancies at the NWS’s Eastern Region Headquarters “limited the ability of the Acting ERH Director to help offices provide DSS [Decision Support Services] and to staff the Regional Operations Center.” This assessment revealed that the Upton, NY, Forecast Office (which services New York City and Northern New Jersey) could not provide numerous forecast products, such as tropical storm wind speeds at skyscraper heights, because the Information Technology Officer position was vacant. The assessment also noted that there was a “severe staffing shortage” in the branch of the National Hurricane Center that maintains the computer systems, communication support, and software development for the Center. The Assessment made the following recommendation: NWS should identify and fill critical positions at operational facilities. If these positions cannot be filled, NWS 3 should ensure awareness at higher levels in NOAA that these vacancies may result in reduced levels of service, including constraints and potential failure on the delivery of products and services during the next significant weather event. U.S. DEPARTMENT OF COMMERCE, SERVICE ASSESSMENT: HURRICANE/POST- TROPICAL CYCLONE SANDY, OCTOBER 22-29, 2012, 43-44 (May 2013). Union ex. 77. Fortunately, the nation was spared during last year’s hurricane season. However, due to the hiring freeze, there are now almost 500 vacant positions in the National Weather Service - a vacancy rate which continues to grow, as does the risk to our nation. NWSEO has brought this case to arbitration in an effort to protect the American public as well as its members’ career opportunities, and because the ever-increasing workload on the remaining employees is unsustainable. By agreement, the parties have consolidated four related grievances. The first three grievances were filed before the hiring and promotion freeze, and essentially challenged the agency’s failure to fill numerous journeyman forecaster, lead forecaster and hydrometorological technician/meteorologist intern positions. These grievances allege that the failure to fill these positions violates a series of agreements covering staffing in the NWS’s 122 Weather Forecast Offices (“WFOs”) and River Forecast Centers (“RFCs”), the first of which was negotiated in 1993 and was subsequently amended in 2000 and 4 2004. The grievance that concerns the failure to fill journeyman forecaster positions also alleged that the NWS violated the parties’ CBA, which entitles employees to moving expenses, or, in the alternative, violated past practice, by cancelling five advertised journeyman forecaster positions in the NWS’s Southern Region after the agency decided not to pay “permanent change of station” or “PCS” relocation costs associated with those positions. The fourth grievance was filed after the hiring freeze was implemented. It alleged that the freeze on hiring and promotions violated the agreements covering the staffing of WFOs and RFCs. This grievance also alleged that the NWS violated the parties’ CBA and committed an unfair labor practice in violation of the Federal Service Labor Management Relations Statute by unilaterally implementing a freeze on hiring and promotions without prior (or even post-implementation) bargaining on positions that are not covered by these staffing agreements, and, to the extent or in the event that it was found that the WFO staffing agreements were not violated, by unilaterally implementing a hiring freeze on those positions, as well. In addition, this fourth grievance alleged that the NWS violated the CBA and the FSLMR Statute by failing to respond to a request for information submitted by the union needed for bargaining over the freeze, and that the NWS failed to provide the union with pre-decisional involvement concerning the freeze as required by Article 8 of the CBA. 5