DEPARTMENT OF COMMERCE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION NATIONAL MARINE FISHERIES SERVICE NORTHEAST FISHERIES SCIENCE CENTER WOODS HOLE, MASSACHUSETTS and LOCAL 231, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF COMMERCE
LOCAL 231, AMERICAN FEDERATION
Case No. 04 FSIP 129
DECISION AND ORDER
Local 231, American Federation of Government Employees, AFL-CIO (Union), 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 Department of Commerce (doc), National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Service (NMFS), Northeast Fisheries Science Center (NFSC), Woods Hole, Massachusetts (Employer).
After investigation of the request for assistance, the Panel determined that the dispute, which arises from bargaining over procedures for excused absences, should be resolved through a telephone informal conference with Supervisory General Attorney Ellen J. Kolansky. In addition, if the dispute were not resolved during the informal teleconference, the parties would be directed to submit written statements of position. The parties were also informed that if no settlement was reached, Mrs. Kolansky 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.
In accordance with the Panel's procedural determination, Mrs. Kolansky conducted an informal conference by telephone with the parties on October 26, 2004. When they were unable to resolve the disputed issue, the parties submitted their final offers and filed post-conference statements supporting the merits of their positions. Mrs. Kolansky has reported to the Panel and it has now considered the entire record, including the parties' post-conference statements.
The Employer - "the research arm of the NMFS in the northeastern United States" - supplies information for making and managing fish stock allocation decisions and researches fish stock and related habitat issues pertaining to wild fish from Cape Hatteras to Canada. The Union was certified as the exclusive bargaining representative of the unit in November 2001. It represents about 70 professional and non-professional bargaining-unit employees who hold positions such as fisheries research biologist and chemist, and physical science and biological science technician.1/ Employees also work in information technology. Overall, their grades range from GS-3 through -13. The parties currently are negotiating an initial collective bargaining agreement (CBA).
ISSUE AT IMPASSE
The parties essentially disagree over whether, when the Employer announces a delayed opening for the first several hours of the day due to a weather-related or other emergency, an employee who takes annual leave for the balance of the day, or is already on pre-approved annual leave for the entire day, should be credited with administrative leave for the duration of the closure.
POSITIONS OF THE PARTIES
1. The Employer's Position
The Employer's proposal is:
When an emergency condition occurs before the workday begins, the Officer-in-Charge (or designee) may announce a delayed arrival which permits non-emergency bargaining unit employees to leave their homes later than their normal departure time, consistent with the announcement. Bargaining unit employees will be excused, without charge to leave or loss of pay, for the period from their normal arrival time at work until the designated delayed arrival time at work. Bargaining unit employees granted leave for the entire workday on delayed arrival days will not receive excused absence for the period from their normal arrival time to the designated arrival time. [Emphasis in original.]
Its proposal maintains the status quo as it is currently applied to employees working throughout NOAA, DOC, and to most employees of the NFSC. In addition, none of the CBAs between NOAA and other unions contain a provision similar to the Union's proposal in the instant case. Although the practice at the laboratory in Sandy Hook has been to grant administrative leave for the 2 to 4 hours of a delayed arrival even to employees who do not come in after the delay, at the other two laboratories (Narragansett and Woods Hole) where Local 231 is also the exclusive representative, administrative leave has not been granted to employees who choose to remain at home.2/
At Sandy Hook, when the weather is bad, the following takes place:
[T]he Officer-in-Charge [confers] with the State of New Jersey, the owner of the facility, and the U.S. Park Service, which is responsible for clearing the roads into the park that surrounds the facility, to determine whether to delay opening or close the facility for any part of the work day.
If a decision is reached to "set a delayed opening," employees have a choice of coming in for the balance of the day or taking the entire day off on annual leave. For employees who choose the latter option, the additional 2 to 4 hours of annual leave they would be charged under its proposal should not be considered a "hardship." Furthermore, the proposal reflects the Office of Personnel Management's (OPM) policy for Federal employees who work inside the Beltway. In such circumstances, the DOC Leave Handbook (Handbook) also gives supervisors the latitude to consider granting more administrative leave to employees who "either make a diligent effort to get to work but could not, or should not have attempted to come to work at all from their location."
The practice in force everywhere but at Sandy Hook is beneficial because it encourages employees to come to work after a morning closure period, thereby increasing productivity. If the Union's proposal is adopted, on the other hand, to avoid morale problems the Employer might have to grant administrative leave across the board to unit and non-unit employees alike, which could cost as much as $7,000 per hour. Extending the current policy to all three NFSC laboratories represented by Local 231 would avoid such costs.3/ Finally, the Union's proposal is nonnegotiable because it would interfere with management's right to assign work by effectively negating its discretion to decide not to grant administrative leave.4/
2. The Union's Position
The Union's proposal reads:
When an emergency condition occurs before the workday begins, the Officer-in-Charge (or designee) may announce a delayed opening. Bargaining unit employees will be excused, without charge to leave or loss of pay, for the period from their normal arrival time at work until the designated delayed opening time at work. Bargaining unit employees granted leave for the remainder of the workday on delayed opening days will receive excused absence for the period that the facility is closed. Bargaining unit employees on previously scheduled leave will receive excused absence for the period that the facility is closed. [Emphasis in original.]
The proposal reflects the status quo at the Sandy Hook Laboratory. Under a "delayed opening" scenario, the facility is closed, or access is denied until a specified time. The delayed opening may occur to permit the Park Service to plow the employee parking lot before cars arrive. The operative fact is that employees cannot work at the office when it is closed. A grant of administrative leave under these circumstances is fair whether employees come to work later or not at all because the closure effectively prevents employees from working. Previous Panel decisions support this view.5/ In practice, the one exception would be for employees on Telework who could work at home so long as they have electricity and do not have child or eldercare duties.
A different scenario prevails when the Employer announces a "delayed arrival" because "travel conditions make commuting difficult." Under this scenario, the facility is open at the normal hour and the Employer approves leave for employees who need "an extra hour or two to get to work." These procedures are outlined in the Handbook and the Union "accepts" them. While the Handbook is silent on delayed openings, it permits a grant of administrative leave even to an employee who takes leave after the start of the workday, but prior to an afternoon closure, albeit only for the period of the closure. Administrative leave procedures for delayed openings should parallel those in the Handbook for afternoon closures.
Having carefully considered the evidence and arguments presented by the parties, we shall order the adoption of the Union's proposal, without its last sentence, to resolve the dispute.6/ Preliminarily, the Sandy Hook laboratory appears unique because of its remote location and the fact that the Employer's decisions regarding adverse weather conditions are made only after considering the needs of the U.S. Park Service and the State of New Jersey. These factors explain why the current administrative leave practices at Sandy Hook differ from those that typically apply during weather-related emergencies at most Federal Government offices. In our view, in situations where it has chosen to delay the opening of the facility, the Employer has not demonstrated why employees who are permitted to use annual leave for the balance of the day should not continue to be granted administrative leave for the period of the closure. We also note that if the Employer were to announce a delayed arrival/liberal leave policy instead of closing the facility the granting of administrative leave could be avoided. Finally, with respect to those on pre-approved annual leave, we are not persuaded such employees should be granted administrative leave for the length of any closure. Unlike the facility's other employees, they were not intending to come to work on the day of the closure, and should not receive a benefit simply because they happened to take pre-approved leave during a weather-related emergency.
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 5 C.F.R. § 2471.11(a) of its regulations, hereby orders adoption of the following modified version of the Union's proposal:
When an emergency condition occurs before the workday begins, the Officer-in-Charge (or designee) may announce a delayed opening. Bargaining unit employees will be excused, without charge to leave or loss of pay, for the period from their normal arrival time at work until the designated delayed opening time at work. Bargaining unit employees granted leave for the remainder of the workday on delayed opening days will receive excused absence for the period that the facility is closed.
By direction of the Panel.
H. Joseph Schimansky
December 23, 2004
/ Unit employees work at three remote laboratories located at Sandy Hook, New Jersey (approximately 57 employees), Woods Hole, Massachusetts (15), and Narragansett, Rhode Island (13). In total, about 285 unit and non-unit employees work at the three laboratories.
/ The Employer notes that the weather conditions at Sandy Hook are generally more severe than at the other laboratories; in the past 3 years Sandy Hook has had seven weather-related closures (part and/or full day).
/ The Employer refers to the Panel’s decision in Department of the Army, Rock Island Arsenal, Rock Island, Illinois and Local 2119, National Federation of Federal Employees, 92 FSIP 173 (October 26, 1992), Release No. 338 (Rock Island) a case involving administrative leave for closures during holiday periods, to support its position. In Rock Island, the Panel agreed that “placing the entire workforce on administrative leave is the same as providing employees with an additional paid holiday.” For those employees who would otherwise have requested annual leave, the union’s proposal would have represented a “windfall” – up to a week’s worth of administrative leave, in addition to earned annual leave – and would deny the employer the economic benefit it sought from the closures.
/ The Employer raised its jurisdictional allegation for the first time in its post-conference statement of position.
/ The Union cites Department of the Air Force, Nellis Air Force Base, Nellis AFB, Nevada and Local 1199, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 79 (October 9, 1997), Panel Release No. 403 (Nellis AFB). In Nellis AFB, the Panel adopted a compromise that allowed unit employees a grant of administrative leave for the time they otherwise would have worked during the 2 days when the employer closed the facility for an air show. <