DEPARTMENT OF COMMERCE PATENT AND TRADEMARK OFFICE ALEXANDRIA, VIRGINIA and PATENT OFFICE PROFESSIONAL ASSOCIATION
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF COMMERCE
PATENT OFFICE PROFESSIONAL
Case No. 04 FSIP 102
DECISION AND ORDER
The Department of Commerce, Patent and Trademark Office, Alexandria, Virginia (Employer or PTO) filed a 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, between it and the Patent Office Professional Association (Union or POPA).
After investigation of the request for assistance, the Panel determined that the dispute, which involves a telework plan for employees outside the Patent Corps who provide various sorts of technical and administrative support, should be resolved through an informal conference with Panel Member Grace Flores-Hughes. The parties were informed that if no settlement was reached, Member Flores-Hughes would notify the Panel of the status of the dispute, including the parties' final offers and her recommendations for resolving the impasse. After considering this information, the Panel would resolve the dispute by taking whatever action it deems appropriate, which could include the issuance of a binding decision.
Pursuant to this procedural determination, Member Flores-Hughes convened a 2-day meeting with the parties on October 19 and 20, 2004. During those sessions, the parties were able to resolve numerous provisions in a telework agreement. However, at the close of the meetings, approximately 15 provisions remained in dispute. The parties submitted post-conference statements in support of their final offers on these issues.1/ Member Flores-Hughes has reported to the Panel and it has now considered the entire record, excluding the documents attached to the Employer's post-conference statement of position.
The Employer's mission is to examine applications for, and issue patents, and register trademarks. The bargaining unit consists of approximately 3,800 professional employees, most of whom hold positions as patent examiners. The dispute herein concerns the Non-Patents Telework Program (NPTP), a plan for telework that would affect approximately 170 employees in the Office of the Chief Information Officer (CIO) and the Chief Financial Officer (CFO). The majority of these employees hold positions as computer scientists/engineers assigned to the CIO; other positions include accountant, economist, procurement specialist, contract specialist and librarian.2/ In January 2003, the parties entered into an agreement which permits approximately 900 patent examiners to telework 1 day a week.3/ The parties agreed that a telework program for employees who are not part of the Patents Cost Center (patent examiners) would be negotiated separately. The parties are still litigating their long-standing dispute over whether there is a valid collective-bargaining agreement in effect between them.
ISSUES AT IMPASSE
There are 15 unresolved provisions. They include the following issues: (1) the frequency of telework; (2) whether librarians who work in the Patent Cost Center should be covered by the NPTP; (3) whether employees at the GS-12 grade level should be permitted to telework; (4) whether employees who work flexible work schedules should be able to retain those schedules on their telework days; (5) whether employees on telework should have to continue working on days when the Federal Government closes due to poor weather conditions or for other reasons; (6) the frequency with which employees on telework should have to check their office voicemail and maintain other communications with co-workers and customers; and (7) whether the Employer should provide the Union with the amount of time bargaining-unit employees spend teleworking, and how frequently the names of such employees should be provided.
POSITIONS OF THE PARTIES
1. The Union's Position
In essence, the Union proposes that employees deemed eligible for telework be permitted to work at alternative sites either once a week or once during a bi-week, on a fixed, recurring schedule; if an employee is ineligible to telework once or twice during a bi-week, the employee may request to telework on an irregular basis, with supervisory approval. Eligibility to participate in telework would be based on the Employer's analyses of employee positions to estimate the percentage of time spent on job junctions that could be performed from an alternate work site. In this regard, employees with positions having 25 percent or more of work time spent on job functions appropriate for telework that could be performed in a single day normally would be permitted to telework 1 day per week, up to 10 hours per day; employees with positions having less than 25 percent, but more than 15 percent, of work time on job functions appropriate for telework that could be performed in a single day normally would be permitted to telework at least 1 day per bi-week, up to 10 hours per day.
The Employer would be required to reduce to writing its rationale for denying an employee request to participate in the NPTP. Employees would not be permitted to telework during weeks in which office priorities require them to perform greater than 75 percent of their time on-site at the Employer's premises. Core hours may be modified only during weeks when an employee actually teleworks, and not merely when the employee "expects to" telework. If an employee teleworks on the same schedule each week, a single notification of that schedule to the supervisor and a single approval of that schedule would be adequate. On a quarterly basis, the Union would be provided with the names, organizational units and telework dates for each employee participating in the NPTP. To participate in the telework program, employees would have to be at least a GS-12 and at the full performance level for their position. Employees who already are working a flexible work schedule would not be required to change schedules in order to participate in the NPTP, nor would employees be denied entrance into a flexible work schedule because they are participating in the NPTP. Teleworkers who use their own telephones would be required to have work calls forwarded to their telephones on telework days or give their phone number to their supervisor and coworkers. Office voicemail and e-mail would have to be checked on a telework day. Generally, employees who telework would be given advance notice of at least 2 business days for all meetings, legal lectures, training, or other events that would require their attendance at the Employer's worksite. In cases of Federal Government closures, Office of Personnel Management (OPM) directives concerning teleworkers would be controlling.
In support of its position, the Union maintains that its proposals are consistent with the telework law, P.L. 106-346, § 359, which allows employees to participate in telecommuting "to the maximum extent possible without diminished employee performance," and that the term "eligible employee" means "any satisfactorily performing employee of the agency whose job may typically be performed (at an alternate work site) at least 1 day per week." Numerous affidavits submitted by employees show that they have job functions conducive to telework 1 or 2 days a bi-week. Ultimately, management would have the authority to exclude any employee from telework, with a written denial. The proposal also would provide management with the flexibility of canceling telework during those weeks when 75 percent of an employee's work priorities require his or her presence at the Employer's worksite. Additionally, the Employer would have the option of approving intermittent requests to telework made by employees whose job functions do not meet the tests for teleworking on a regular basis. Overall, a more streamlined process for employees to request approval to telework would be available under the Union's proposal.
According to the Union, librarians in the 1410 series in the Patent Cost Center should be eligible to participate in the NPTP because the parties had a "gentlemen's agreement" at the close of negotiations over telework for employees on the patents side to include the librarians in an agreement involving "non-patents"; evidence of this verbal agreement between the parties is provided by two Union bargaining team members who submitted affidavits to that effect. Moreover, the NPTP should include employees at the GS-12 level, when that grade is the full performance level for the position. There are approximately 17 employees who are in "dead-end" GS-12 jobs who would be capable of performing their duties from alternate work sites, and there is no reason to exclude this group from teleworking. Unrefuted evidence shows that there is very little difference in the performance plans for GS-12 and GS-13 employees who would be covered by this agreement. The portion of its final offer concerning core hours would provide employees with more certainty regarding their work schedules during weeks when they telework because it is based upon what actually occurs rather than on what is expected to occur. Its proposed wording on voicemail does not set any limits on the number of times a teleworker would be expected to check office voicemail, unlike the Employer's proposal which would require employees to check voicemail not more than twice a day. Since many employees have mobile phones issued to them by the Employer that fellow workers have the phone numbers of, teleworkers likely would be called directly on those phones, and could reasonably be expected to check for messages more than twice a day. Wording that would require the Employer to provide the Union, on a quarterly basis, with the names of teleworkers, their organizational units and the days an employee teleworks, is critical to the Union, particularly if the Panel adopts the Employer's proposal which would allow only ad hoc telework; in order to monitor participation in the NPTP and, most importantly, the frequency that employees are permitted to telework, the Union needs specific data provided by the Employer on a recurring basis.
Under the Union's proposal, employees would not be required to choose between telework, and the currently available flexible work schedule options. As OPM has stated, telework programs work best with schedules having maximum flexibility; in this regard, one of the goals of telework - to reduce traffic congestion - would be accomplished best when employees are permitted to retain their flexible work schedules on days they do not telework. In regard to scheduling meetings at the Employer's premises which require a teleworkers presence, common courtesy and good business practice dictate that at least 2 business days' notice should be given for meetings, etc. which an employee must attend on what otherwise would have been a telework day; exceptions would be permitted when there is no opportunity for 2-days' notice and a last-minute meeting is required. As to the proposal on Federal Government closures, it would ensure that employees in the NPTP are treated in a manner consistent with the way the Employer treats teleworkers under the Patent Examiner Telework Agreement, as well as other PTO teleworkers who do not have union representation. The Employer has not required teleworkers to continue to work through Government closures in the past. In addition, because the functions of the CIO and CFO regularly require collaboration among colleagues during the workday, employees under the NPTP would be ill suited to telework during a Government closure, as co-workers and customers at the PTO site would not be present on Government closure days.
2. The Employer's Position
Essentially, the Employer proposes that employee participation in the telework program should be based on the number of employees the PTO could allow to be away from the worksite during normal business hours and still meet customer service needs and maintain normal functions and performance expectations. Participants in the program would be permitted to telework for up to 26 days a year, but no more than 4 days in any month, with supervisory approval. During a week when an employee expects to telework, management would have the ability to alter core hours for the employee when the employee works at the PTO site. Employees would be expected to request to work at home on a given day, with the request to include the work proposed to be accomplished on that day; the supervisor would approve in advance the work to be performed on a telework day. The NPTP would not include librarians in the 1410 series who work within the Patents Cost Center (although librarians who work in the "non-patent" CIO area would be covered by the NPTP agreement). In order to facilitate communication, employees who telework would have to provide their home telephone numbers to their supervisors and co-workers; furthermore, teleworkers would be required to check their office voicemail at the beginning and mid-point of the telework day.
The Union would be provided with the names of all employees participating in the NPTP. Participation in the telework program would be limited to employees who are GS-13s or higher, and at the full performance level in a position covered by this agreement; participants would have to have the ability to work without regular supervision, schedule work, meet deadlines and work with available tools to complete tasks at the alternate worksite, and meet OPM criteria for eligibility. Written approval would be required for employees to take original documents and records protected under the Privacy Act to their telework site. Generally, employees in the NPTP would be given advance notice of at least 1 business day for all meetings, lectures, training, or other events that require their attendance at the Employer's premises on what otherwise would have been a telework day. When management has an immediate need for files located at an alternative worksite, employees may be directed to return material within 1 business day. In cases of Federal Government closures, employees on their telework day would be required to continue to work; the Employer, however, would consider requests for administrative leave if conditions limit an employee's ability to perform duties.
The Employer contends that under its proposals, PTO could continue to operate efficiently and meet the objectives of the telework law, P.L. 106-346, § 359 (October 23, 2000). Allowing employees to have up to 26 non-fixed telework days a year, with supervisory approval, is preferable from a management perspective to a regularly scheduled telework day each week, as the Union proposes, because the work performed by CIO employees typically is unpredictable and requires them to collaborate, work in project teams, and be available to trouble shoot problems relating to PTO's automated tools. With respect to this group of employees, there is a greater need to have them available on-site when crises arise or immediate customer service is required. Similarly, Finance and Procurement employees frequently need to meet on-site at PTO headquarters to collaborate and resolve problems relating to fiscal year deadlines that often require immediate action to be taken. Furthermore, Finance and Procurement employees often perform their tasks using computer systems only available on-site at the Employer's offices. The proposal which allows for intermittent scheduling of telework days would provide management with the flexibility to ensure that work which an employee proposes to do on a telework day does not conflict with the employee's project deadlines, impede collaboration with co-workers or customer service, and diminish office coverage.
The Union has failed to provide any persuasive evidence that the Patent Examiner Telework Agreement, executed in January 2003, does not cover librarians in the 1410 series who work on the patent side of the house. To the contrary, the negotiators did not intend to exclude those librarians from being covered by the patent examiner agreement on telework; if the Union disagrees, it will have an opportunity to reopen the Patent Examiner Telework Agreement in January 2005, at its 2-year anniversary. In fact, the librarians who work in the Patents Cost Center are "covered by" the Patent Examiner Telework Agreement, so the Employer is under no obligation to negotiate to impasse over the matter. Moreover, as a permissive subject of bargaining which the Employer has elected not to pursue, the Union cannot legally force the issue to impasse. The portion of its proposal permitting supervisors to modify the core hours for employees during a week when they "expect to" telework would provide management with the flexibility it may need to provide support to customers, some of whom are permitted to start work as early as 5:30 a.m. and end as late at 10 p.m. Requiring employees on their telework days to check their voicemail twice daily - once in the early morning and once midday - would help facilitate communications between teleworkers and their colleagues, customers and supervisors, and ensure that the level of services is not diminished when an employee teleworks.
The provision mandating that the Employer provide the Union with the names of those who participate in the NPTP is the same wording used in the Patent Examiner Telework Agreement, and should serve adequately the Union's need to know the number of employees who telework. Requiring participants in the NPTP to be at the GS-13 level or higher, and at the full performance level of their position, would include 85 percent of "non-patent" employees; most importantly, it would help to ensure that those who telework have sufficient experience to perform their work independently. Participants in the NPTP should be required to meet the criteria recommended by OPM for teleworking (i.e., have the ability to meet deadlines, successfully plan work production schedules, etc.) because they establish standards to be used to gauge whether an employee can work independently without supervision. One business-day advance notice of meetings to employees in the NPTP requiring their attendance at the PTO site is reasonable because CIO and CFO employees often work on systems and matters affecting the entire agency operation that must be resolved quickly. Finally, its provision that employees on telework continue to work in the event of the closure of the Federal Government is consistent with OPM guidance that agencies set their own policies when such circumstances arise. The Employer's willingness to consider requests for administrative leave when conditions, such as a loss of electricity, limit an employee's ability to perform duties at the alternate worksite is reasonable.
Having carefully considered the parties' arguments and evidence in support of their final offers, we conclude that the remaining issues should be resolved in the following manner. The Panel shall: (1) decline to retain jurisdiction over whether librarians in the 1410 series who support the Patents Cost Center should be included in the telework agreement for non-patents; (2) order the adoption of the Union's proposals: (a) permitting GS-12 employees, at the full performance level for their position, to participate in the telework program; (b) permitting employees to combine telework with flexible work schedules, modified to allow the Employer to change core hours for employees, as necessary, during weeks when employees are scheduled to telework; (c) requiring the Employer to provide the Union, on a quarterly basis, with certain information about teleworkers; and (d) requiring the Employer to follow OPM directives with respect to the status of teleworkers on days when the Federal Government closes; and (3) order the adoption of the Employer's proposals on the remaining provisions.
Turning first to the parties' disagreement over whether librarians in the 1410 series who work under the Commissioner for Patents should be included in the non-patents telework agreement, the threshold question raised by the Employer concerning its obligation to bargain over the Union's proposal because it is "covered by" an existing agreement must be resolved in an appropriate forum before a determination can be made as to whether the parties have, in fact, reached a negotiation impasse.4/ This determination to decline to retain jurisdiction over the Union's proposal is without prejudice to the right of either party to file another request for assistance if the underlying threshold question is resolved in the Union's favor, and an impasse subsequently is reached following the resumption of bargaining on the substantive issue.
With respect to the issues at impasse, overall, we are persuaded that a regularly scheduled telework day for non-patent employees, either weekly or once during a bi-weekly pay period, as the Union proposes, may impede the Employer's ability to accomplish work in a timely manner. Unlike patent examiners who work relatively independently once they have obtained signatory authority, the employees in question frequently work collaboratively on projects that require quick turn-around times, on computer systems that are only available at the PTO site, or in direct support of the business units they service. Accordingly, we favor the Employer's approach, which permits managers to have greater control over the scheduling of telework. In addition, the Employer's proposal to follow the criteria established by OPM on the issue of eligibility would provide management with better grounds for assessing whether an employee is capable of working independently in a telework situation. In our view, this is necessary particularly where, as the Employer states, most "non-patent" employees assume their positions at the full performance levels.
Furthermore, we find that the Employer's proposals requiring more frequent checks of office voicemail than proposed by the Union, and that teleworkers have calls forwarded from their office telephones to their home telephone numbers or, in the alternative, provide their supervisors and co-workers with a home telephone number, would better enable employees to maintain communication with persons at the PTO site and vice versa. Clearly, telephonic and electronic communications enhance employees' ability while teleworking to stay connected with events and persons that require their attention. The Employer's proposals would allow for more effective utilization of those communication methods. Similarly, we believe it is reasonable for teleworkers to be provided 1-day advance notice of meetings that require their attendance at the PTO on what otherwise would have been a telework day. Accomplishing the mission of the agency should take priority over the personal convenience of a telework day.
With respect to other provisions, however, the Union's proposals provide the better outcome. In this regard, we are convinced that the relatively small number of GS-12 employees who are at the full performance level (top grade) for their position should be eligible to participate in the telework program because they are likely to be able to work independently without supervision. In any event, the Employer would make the final determination on any employee request to telework and would evaluate such requests by applying OPM's eligibility criteria. As to whether telework may be combined with flexible work schedules, there does not appear to be any evidence that such an arrangement would have a negative impact on the Employer's ability to meet mission requirements. We shall order a modification of the Union's proposal, however, to require employees who combine flexible work schedules with telework to adhere to any changes in core hours that the Employer may need to make. This should help to ensure that management has the flexibility to address work needs that may arise during weeks when employees are expected to telework.
Regarding the information to be given to the Union so it can monitor the Employer's administration of the program, in view of our decision to permit affected employees to telework only intermittently, we believe management should be required, on a quarterly basis, to provide the Union with the names, organizational units and telework dates for those who participate. This should permit the Union to effectively evaluate the extent of employee participation in the program and to determine whether the program is being administered fairly. Finally, with respect to the parties' dispute over work requirements for teleworkers on days when the Federal Government does not open for business, the Union contends, and the Employer does not dispute, that in the past management has not required teleworkers to remain on duty while all other PTO employees were authorized administrative leave. Adopting the Union's proposal that the Employer be required to follow OPM "directives" concerning the status of teleworkers in the event of Federal Government closures should encourage management to be consistent in the treatment of its teleworkers.5/
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 determines to decline to retain jurisdiction over whether librarians in the 1410 series who support the Patent Cost Center should be included in a telework agreement for "non-patent" employees.
With respect to the issues at impasse, the parties shall adopt the Employer's proposals on all disputed issues, with the following exceptions, where the Union's proposals shall be adopted: (1) GS-12s at the full performance level for their position shall be permitted to participate in the telework program; (2) the Employer shall provide the Union, on a quarterly basis, with the names of employees who telework, their organizational units, and the number of hours those employees have worked at alternative sites; and (3) the Employer shall follow OPM directives concerning the status of teleworkers on days when the Federal Government closes. In addition, the Union's proposal permitting employees to combine telework with flexible work schedules shall be adopted, except that the Employer shall be permitted to change core hours, as necessary, for employees who combine the two schedules during the weeks when those employees are expected to telework.
By direction of the Panel.
H. Joseph Schimansky
December 27, 2004
/ Following the parties' exchange of their statements of position to the Panel, the Union objected to several documents which the Employer had attached to its submission, arguing that including them in the record of the case would be in conflict with the instructions given by Member Flores-Hughes to the parties that all documents must be exchanged prior to or during the informal conference. While the documents submitted by the Employer along with its post-hearing statement of position are virtually identical to documents it previously submitted during the informal conference, the Panel has not considered them because they have a later computer "run date" than the earlier documents. Technically, therefore, they do not comply with the Panel Member's directive.
/ The parties do not dispute that the librarians in the CIO Business Unit would be included in the NPTP, assuming that they meet the grade level for eligibility; they disagree, however, over whether another group of librarians, who work in the Patent Cost Center and support the work of the Patent Corps, would be included in the agreement.
/ This settlement agreement occurred during an informal conference conducted by a Panel Member in Patent and Trademark Office, Arlington, Virginia and Patent Office Professional Association, Case No. 03 FSIP 27 (closed on January 30, 2003).
/ In Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, National Council of SSA Field Office Locals, 47 FLRA 1004 (1993) (SSA), the Federal Labor Relations Authority (FLRA) set forth a test for determining whether a matter proposed for bargaining by a union is "covered by" an existing agreement, thereby eliminating an employer's legal obligation to negotiate over the subject. In essence, the FLRA determined that it is the proper role of the FLRA, and not the Panel, to apply the "covered by" test when an employer asserts that it has no obligation to bargain based on the terms of a negotiated agreement.
/ While we are unaware of any regulations issued by OPM on the status of teleworkers during closures of the Federal Government, it has provided Federal agencies with guidance on that matter. Thus, we have construed the Union's proposal to mean that the Employer follow OPM