DEPARTMENT OF THE ARMY ARMY CORPS OF ENGINEERS PITTSBURGH ENGINEER DISTRICT PITTSBURGH, PENNSYLVANIA and LOCAL 2187, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE ARMY
ARMY CORPS OF ENGINEERS
PITTSBURGH ENGINEER DISTRICT
Case No. 01 FSIP 1
LOCAL 2187, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
DECISION AND ORDER
Local 2187, American Federation of Government Employees (AFGE), AFL-CIO (Union) and the Department of the Army, Army Corps of Engineers, Pittsburgh Engineer District, Pittsburgh, Pennsylvania(Employer), filed a joint request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119.
Following an investigation of the request for assistance, the Panel determined that the impasse over two articles in a successor collective-bargaining agreement (CBA), concerning equal employment opportunity (EEO) and official time, respectively, should be resolved through an informal conference with a Panel representative. The parties were advised that if no settlement were reached, the representative would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the matter. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Accordingly, Chief Legal Advisor Donna M. DiTullio met with representatives of the parties in Pittsburgh, Pennsylvania, on January 18 and 19, 2001. During those sessions, the parties were able to resolve the issues in their EEO Article but they remain at impasse over official time. Ms. DiTullio has reported to the Panel regarding the issue, and it has now considered the entire record, including the parties’ written post-conference statements in support of their final offers on the issue.
The Employer’s mission is to maintain navigable depth in rivers, engage in flood control, and oversee river navigation projects and lake recreational facilities. The Employer maintains a District Office in Pittsburgh, and 41 remote facilities located in Pennsylvania, Ohio, West Virginia, Maryland and New York which are primarily locks, dams and flood control reservoirs. The bargaining unit consists of approximately 600 non-professional employees, the majority of whom hold Wage Grade positions as lock and dam operator, lock operator, and maintenance mechanic. Approximately one third of bargaining-unit employees provide administrative support and work in the Pittsburgh District Office; the rest are stationed at field locations and, primarily, maintain locks and dams. The parties’ current CBA, which was to have expired in January 2000, has been extended until a successor agreement is implemented.
Since October 1996, the Union president has been on 100-percent official time;(1) he works out of the Union office located in the Employer’s District Office building. Originally, the decision to grant the Union president 100-percent official time was made unilaterally by a previous commanding officer, who believed that it would be in the best interest of the parties. The practice of permitting the Union president to "staff the Union office" on a full-time basis was memorialized in the parties’ current CBA, which went into effect in January 1997. The CBA further provides that "(a)s the focal point for the Union, the president shall normally handle the grievances, appeals, and other matters concerning the administration of the negotiated agreement for the Pittsburgh District." Under the terms of the CBA, this "staffing program" was to run for a 1-year trial period, followed by an evaluation by the parties and, if there was any disagreement concerning the effectiveness of the program, either party could reopen the provision. Neither party, however, reopened the official time provision during the term of the CBA and, as a result, the Union president has remained on 100-percent official time for over 4 years.
ISSUE AT IMPASSE
The parties disagree over whether the local Union president should remain on 100-percent official time.
POSITIONS OF THE PARTIES
1. The Employer’s Position
Essentially, under the Employer’s proposal, the Union president would be authorized 16 hours of official time to staff the Union office on Mondays and Tuesdays, unless the parties mutually agree to an alternate schedule. Mileage, if appropriate, would be the only travel expense authorized in connection with the staffing of the Union office in the District Office building. While at his/her permanent duty station in the field, the Union president would be provided a phone with voice-mail capacity; any telephone calls at the field facility would be limited to emergencies and conducted only with an approved request for official time. The Union’s secretary-treasurer would continue to be afforded official time not to exceed 1 day per month, to assist the Union official at the District Office with the administration of the contract. Requests for additional official time made by the president or secretary-treasurer would be submitted in accordance with provisions previously agreed to by the parties in their contract article entitled "Officers and Stewards of the Union," and considered on a case-by-case basis. All official time use would be documented on a monthly basis in accordance with the same article; additionally, the Union president would provide his/her immediate supervisor, on a monthly basis, with a synopsis supporting the use of official time. The parties would be permitted to evaluate annually the effectiveness and success of the staffing of the Union office, and either party would have the right to reopen negotiations midway through the duration of the CBA on the issue of the "staffing program."
The authorization of 100-percent official time for the local Union president is an experiment that has failed. The status quo should not be permitted to continue because the Union president is not using the time in accordance with current contract language. In this regard, the current CBA provides that as a quid pro quo for granting the Union president full-time representative status, the individual "normally" would handle the bulk of Union representational matters, such as grievances and employee appeals. Instead, other Union representatives are drafted to handle these matters. Furthermore, the Union has ceased to participate in the partnership council, the Union president frequently does not attend meetings to which he has been invited by management, and he has stopped working with management to resolve workplace disputes at the lowest level. As the objective in granting 100-percent official time for the Union president was to attend meetings and represent employees, these developments, which demonstrate his lack of participation, justify reducing the current allotment of official time.
The Union cannot demonstrate that the president has used his official time for representation because it maintains no data on the matter. A lack of effort put forth by the Union president in his representational duties also is evidenced by the increased amounts of official time used by Union stewards. Data collected by the Employer shows that for calendar year 2000, stewards used 402 hours of official time, a 60-percent increase over 1999, and a 50-percent increase from 1998. In addition, while the Union president was on extended sick leave, and during periods of frequent, consistent annual leave use, the Union office has not been staffed, for the most part, by any other Union official. This is another indication that a full-time representative in the Union office is unnecessary. Moreover, the size of the bargaining unit (approximately 600) does not justify having a Union official on 100-percent official time as no other bargaining unit within the Army Corps of Engineers, of comparable size or larger, has one. Advances in communication technology which have become available to bargaining-unit employees over the past 4 years, such as e-mail and voice mail, further diminish the need for the Union president to be in the Union office on a full-time basis to communicate with bargaining-unit members. Finally, its proposal would not foreclose the Union from requesting additional official time as may be needed.
2. The Union’s Position
The Union proposes to allow the Union president to remain on 100-percent official time to staff the Union office 5-days a week, with the Union president "normally" handling grievances, appeals, and other matters pertaining to the administration of the contract; during absences, a designee would attend any necessary meetings and conduct any business which demands the attention of the president; and the secretary-treasurer would continue to receive 1 day of official time per month. Additionally, the Union proposes that another representative be made available on official time to staff the Union office when the Union president or designee is attending to Union representational matters in the field, participating in office staff meetings or attending any other meeting that leaves the Union office vacant for more than 1 hour.
The Employer has not demonstrated a need to change the current allotment of 100-percent official time for the Union president. Rather, the Employer’s proposed reduction to 40-percent official time may really be motivated by the current District Commander’s desire to assert his authority over the Union in retaliation for an incident, in 1998, where the Union president sought the assistance of the commanding general in Washington, D.C., on a matter that the president had been unable to resolve with the local commander. If the Union president’s official time use was of real concern to the Employer, it would have exercised its right, 1 year after the CBA went into effect, to contest the continuation of the practice. Its belated concern supports the Union’s contention that the Employer’s real motivation in pursuing this matter is retaliatory in nature.
There is a need now, more than ever, for the Union president to remain on 100-percent official time because the parties’ relationship has deteriorated over the past 4 years and he must deal with attendant matters. Returning him to his former duty station in the field, as the Employer proposes, may only serve to resurrect difficulties with field supervisors who, in the past, resented having a Union president in their midst and made allegations, in a memorandum to Headquarters in 1992, that he was insubordinate, among other things. The Union office typically was not backfilled when the president was away visiting field installations, or on several occasions when he was on annual or sick leave, because the Union was attempting to reduce costs to the agency. Moreover, other Union representatives, wary of the resistence they often receive from their supervisors when requests are made to be released on official time, have not been anxious to provide coverage in the Union office in the president’s absence.(2) During his two 6-week absences for medical reasons, the Union arranged for another of its officials to be present in the office to handle representational matters.
The Employer agreed to a full-time Union representative in 1996 because of the difficulties associated with getting officials released from their jobs in the field to attend to representational matters. While the Employer maintains that its expectations in terms of reducing employee complaints and grievances have not been met over the past 4 years, it has failed to produce a baseline from which the parties could assess whether such activities have increased. Nor should the Panel be influenced by the fact that the Union’s president is the only union official in the Army Corps of Engineers who is on 100-percent official time. Since bargaining-unit employees are geographically disbursed throughout a 5-state area and work rotating shifts, they are better served by a representative who is available on a full-time basis in the Union office in Pittsburgh. Moreover, the reason the Union cannot fully account for how the president has used his time is because there is no requirement for him to do so. There also is no way to document the Union president’s frequent behind-the-scenes efforts to resolve employee problems informally without having to bring them to the attention of management. Telephone records for the Union office show a significant amount of monthly telephone use by the president while on official time. These calls involved communications to and from bargaining-unit members on representational matters.
Having carefully examined the evidence and arguments presented by the parties, we are persuaded that the impasse should be resolved on the basis of compromise wording. In our view, the Employer has demonstrated a need to change the status quo. In this regard, the record reveals that the Employer had agreed, on an experimental basis, to authorize 100-percent official time for the Union president to work out of the Union office in the District Office building so he could attend meetings involving labor-management matters, be readily available to resolve employee concerns at the lowest possible level, and normally handle grievances, appeals, and other matters concerning the administration of the negotiated agreement. These expectations, however, do not appear to have been met. The evidence indicates that the Union, by its own choosing, now has a diminished role in the parties’ partnership council, and that the Union president’s attendance at labor-management meetings has fallen off. In addition, other Union representatives increasingly have assumed representational responsibilities concerning employee grievances, appeals, and unfair labor practice charges, contrary to the terms of the existing CBA. We also find that the Union’s failure to staff the Union office during many periods when the Union president was absent is an indication that there may no longer be a need for a representative to staff the Union office on a full-time basis.
While a reduction in the amount of official time for the Union president appears warranted, we do not believe it should be to the extent proposed by the Employer. In this regard, noting the size of the bargaining unit, its geographic disbursement, and the increasing number of employee grievances and ULP charges, we conclude that a 60-percent allotment of official time, distributed over 3 days during the workweek, is more reasonable. In addition, circumstances may arise when it is necessary for the Union to have a representative in its office more than 3 days a week to work on representational matters. To address those situations, we shall order the creation of a bank of official time hours, not to exceed 800 hours annually, for Union representatives to draw on. Requests to use the bank of hours shall be consistent with other provisions in the parties’ CBA regarding the use of official time. In conjunction with previously negotiated contractual requirements, we shall also add wording ensuring that requests for the use of bank time shall be approved unless management can demonstrate that work exigencies prevent a representative’s release. Finally, should the Employer fail to approve a request for official time from the bank of hours, it shall be required to state in writing the specific reasons for its action to discourage the arbitrary denial of such requests.
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 parties to adopt the following wording:
Article 2, Union Rights and Responsibilities, Section 8:
a. The Union President shall be permitted 8 hours of official time each day to staff the Union office 3 days per week. The elected Union President shall be scheduled on the first shift, Monday through Friday, in order to affect his/her staffing responsibilities (unless the parties mutually agree otherwise.) When Federal holidays fall on days when the Union president is scheduled to be on official time in the Union office, 8 hours of official time for staffing the Union office will be granted to the Union president on the next scheduled workday.
b. The Union shall be authorized a bank of official time, not to exceed 800 hours annually, for the purpose of staffing the Union office during the other 2 days each week. Requests to use official time from the bank of hours shall be approved unless management can demonstrate that due to work exigencies the representative cannot be released as requested. In those circumstances, the Employer shall indicate a specific justification in writing and specify the time and date when release could be accommodated. Bank hours may not be carried forward from 1 contract year to another.
c. The Secretary-Treasurer of the Union shall be afforded official time not to exceed 1 day per month, if requested, to assist the Union President in the District Office with the administration of the contract.
d. Requests for additional official time by the President or Secretary-Treasurer will be considered on a case-by-case basis and shall be made to the facility supervisor in accordance with Article **, "Officers and Stewards of the Union." If the additional requests for official time