U.S. NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. and NATIONAL TREASURY EMPLOYEES UNION

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL





In the Matter of )

)

U.S. NUCLEAR REGULATORY )

COMMISSION )

)

WASHINGTON, D.C. )

)

and )

)

NATIONAL TREASURY )

EMPLOYEES UNION )

)

)

) Case No. 91 FSIP 235



DECISION AND ORDER



The National Treasury Employees Union (NTEU or 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), S U.S.C. § 7119, between it and the U.S. Nuclear Regulatory Commission, Washington, D.C. (NRC or Employer).



After investigation of the request for assistance, the Panel directed the parties to meet with Panel Member Charles A. Kothe for the purpose of resolving issues concerning their successor collective-bargaining agreement. The parties were advised that if no settlement were reached, Member Kothe would report to the Panel on the status of the dispute, including his recommendations for resolving the issues. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.



Member Kothe met with the parties on January 21 through 23, 1992, in Washington, D.C., but a complete agreement was not reached. Member Kothe reported to the Panel on the status of the dispute, and the Panel has now considered the entire record in the

case. l At the end of the informal conference, the parties were given a suitable time period to submit in writing their final offers with supporting arguments and evidence on the issues at impasse. After their written submissions were received, the Union sent Member Kothe a letter requesting that the Employer's "new evidence not be considered by the Panel in making its determination on the parties' proposals" on the hours-of-work issue. In this

regard, the Union



BACKGROUND



The Employer is an independent Government agency whose mission

is to regulate civilian uses of nuclear energy and materials in the

U.S. It is divided into five regions, with a headquarters office in

Rockville and suboffices in Bethesda, Maryland, which are scheduled to be relocated to the Rockville location in the next few years. The Union represents approximately 1,950 bargaining-unit employees in such jobs as project manager, inspector, engineer, mechanic, and secretary. The parties' collective-bargaining agreement expired in April 1990.



ISSUES AT IMPASSE



The parties are at impasse over: (1) the number of employees

that may be recognized as Union officials from any one organizational unit of the NRC; (2) whether a credit-hours and a 410 Compressed Work Schedule (CWS) pilot program should be established; (3) how to verify that employees who receive priority parking actually work the unusual hours upon which the privilege is based; (4) the extent to which the Employer should provide the Union with sanitized copies of letters proposing and implementing disciplinary and adverse actions against employees; and (5) whether the Union should be furnished equal employment opportunity (EEO) statistical information on an annual basis concerning positions filled within the NRC, and an EEO breakdown of the best qualified candidates for those positions.



1. Number of Union Representatives Within Organizational Units



a. The Union's Position



The Union proposes the following wording:



All Union representatives shall be members of the bargaining unit, but no more than two (2) Union representatives may be appointed from the same protests the Employer's inclusion of Tab H of the enclosures to its written submission containing various documents from management officials commenting on the Union's proposals on the issue, some of which existed as early as June 1991. In its view, the Employer's failure to disclose this information to the Union in a timely manner prior to the completion of the bargaining process constitutes "outrageous behavior," and prejudices the Union by denying it the opportunity to investigate the factual allegations contained therein, and to respond appropriately. We agree. Accordingly, in reaching its decision on the merits of the parties' proposals herein, the Panel has not considered the documents contained in Tab H of the enclosures to the Employer's 8 written submission.



organization and branch. Additionally, in situations where two Union representatives are appointed from the same organizational unit, the Union representatives shall make every reasonable effort

to schedule use of official representational time so as to avoid simultaneous absence of the Union officials for representational purposes.



The adoption of its proposal is necessary to enable it "to use all of the volunteers who step forward" to be Union representatives "subject to reasonable workload restrictions." In this regard, the Union has had difficulty recruiting representatives primarily because "volunteering to be a Union steward is likely to have a negative impact on career advancement for the individual." In addition, allowing more than one representative per organizational unit, which is prohibited under the parties' current agreement, would disperse the amount of official time taken by any one steward, "thereby diminishing the need for management to readjust assignments to accommodate workload concerns."



Problems have arisen under the current contract provision. On one occasion, a steward had to represent himself in his own grievance against the Employer after it rejected the Union's request that a volunteer from the same work unit be designated as an alternate steward. The provision is also superfluous because another section of the contract requires prior supervisory approval if a Union official is to take any time away from work to perform representational activities. Finally, strictly speaking, the Union is not required to negotiate over any restrictions to its right to designate its own representatives, as the Federal Labor Relations Authority (FLRA) has previously held,2 but "agreed to impose a restriction of no more than two representatives per work unit" in an attempt to resolve the dispute.



b. The Employer's Position



The Employer offers the following counterproposal:



All such Union representatives shall be members of the bargaining

unit. NTEU will not appoint more than one representative per branch

or where branches do not exist, the lowest organizational unit. Exceptions to this general rule may be requested by the Union if it

finds it difficult to locate sufficient stewards from different branches or lowest organizational units. Denials of exceptions may be grieved except a denial where both Union representatives would have the same immediate supervisor.



2 See American Federation of Government Employees. AFL-CIO and U.S. Air Force Air Force Logistics Command Wright-Patterson Air Force Base Ohio, 4 FLRA 272 (1980).



In deference to the Union's legitimate concerns, the Employer has modified its previous position that the status quo be maintained in a manner that "balances the needs of the Agency and the Union." The Union's proposal, on the other hand, "would significantly impair the ability" of its supervisors to accomplish the mission of the Agency "solely to remedy an internal Union problem." While management has the right to deny official time requests should a workload concern exist, because such denials are grievable, the supervisor of a branch containing two Union stewards would be forced "to either acquiesce in a steward's request to engage in representational activities or face the possibility that she would have to spend a considerable amount of her time responding to a grievance." The practical result "would be that the supervisor would seldom if ever deny such a request and thus lose a significant portion of the services of two employees." The impact would be particularly onerous in circumstances where two employees within a branch perform the same function and are both designated as stewards.



CONCLUSIONS



Having examined the evidence and arguments on this issue, we conclude that the dispute should be resolved on the basis of the Union's proposal. In this regard, we are reluctant to impinge on the Union's ability to recruit volunteers to perform representational functions, particularly where the Employer's concerns regarding the adverse impact this would have on its mission appear speculative. As previously noted, the parties have already agreed to a provision ensuring a supervisor's right to deny a steward's request to interrupt work on assigned duties to engage in representational functions for reasons related to his or her workload. In addition, the Union has offered to make every reasonable effort to schedule the use of official time to avoid the simultaneous absence of its representatives where two are appointed from the same organizational unit. In these circumstances, we believe that the Employer's ability to accomplish its mission is adequately protected, and, accordingly, we shall order the adoption of the Union's proposal.



2. Credit-Hours and 4-10 CWS Pilot Programs



a. The Union's Position



The Union essentially proposes that: (l)(a) a program be established whereby credit hours may be earned (up to a maximum of 2 hours per day and 8 hours on regular non-workdays) and used (in ½-hour increments, with a maximum of 24 hours carried over from pay period to pay period) with prior supervisory approval; and (b) Union officials be permitted to earn credit hours for representational activities performed in excess of their normal work schedules, including a maximum of 8 hours for weekend work; and (2)(a) a l-year experimental 4-10 CWS program be established

involving a maximum of 25 volunteers whose participation would be subject to workload considerations and supervisory approval; and (b) either party be permitted to reopen negotiations concerning the 4-10 program at the end of the l-year period.



While it believes that "the parties have a solid base of experience with the current CWS program" to warrant the establishment of a 4-10 option for the entire bargaining unit, the Union has modified its proposal to include only a small pilot demonstration project. This should show the Employer that its concerns regarding the effects of such a program on its mission "are purely speculative," and provide proof that such an option increases the available contact time between headquarters employees and their regional counterparts. If the schedule does cause unforeseen difficulties, however, "the limited scope of the pilot would preclude significant adverse impact to the Agency."



With respect to the other parts of its proposal, their adoption is warranted because its experience "with the current CWS schedule has shown that the existing program leaves many employees without options." A credit-hour option would permit a larger number of employees to participate in the CWS program and benefit the Agency as well by reducing its needs for directed overtime. In addition, it has provided examples of previous Panel decisions ordering the implementation of 4-10 pilot programs and credit hours in agencies similar to the NRC.



b. The Employer's Position



The Employer proposes that the status quo be maintained, whereby employees have the option of working 5-4-9 or flexitour schedules with 7 to 8:45 a.m. starting times, and 3:45 to 5:30 p.m. ending times. In this regard, there is nothing in the Federal Employees Flexible and Compressed Work Schedules Act requiring it "to offer every conceivable type" of scheduling option "merely because the Union desires such flexibility." An Office of Personnel Management (OPM) survey of Federal sector collective-bargaining agreements reveals, among other things, that only 8 out of the 2,228 recognized bargaining units in the Federal sector are covered by agreements with provisions containing 5-4-9, 4-10, and credit-hours plans, and only 10 contain both 5-4-9 and 4-10 options. Thus, the parties' current agreement "is consistent with the overwhelming majority of Federal labor agreements containing alternative work schedules."



In general, providing employees with either of these additional CWS options would make it difficult to hold group meetings, and for supervisors to cover one-of-a-kind positions throughout the day while still performing their managerial functions. Such problems would be exacerbated under the Union's proposal because employees working a 5-4-9 schedule could also earn credit hours, permitting some to work up to 11 hours a day.



Finally, the Union's specific 4-10 proposal "is a poorly designed pilot program" which could create conflict between supervisors and employees who volunteer to participate, and would be of little empirical value since it "does not stem from any reasoned determination that a 4-10 CWS might be feasible in a particular branch or for certain types of employees."



CONCLUSIONS



On the hours-of-work issue, we are persuaded that there has been no demonstrated need to expand the current flexitour and CWS options, which appear appropriately to balance the interests of the parties. Further, the Employer has identified a number of plausible reasons why the adoption of the Union's proposal would have a detrimental impact on its mission, of which we note but two. First, permitting employees who work 5-4-9 schedules also to earn credit hours could lead to 11-hour workdays, resulting in inadequate supervision and diminished productivity. Secondly, the proposed 4-10 pilot program does not appear particularly well thought-out, and would be of limited value in determining the feasibility of providing such an option to larger segments of the bargaining unit. Finally, there is nothing in the record which would warrant the adoption of the additional part of the Union' s proposal permitting

its representatives to earn credit hours for representational work, including time spent performing such work on weekends. Accordingly, we shall order the adoption of the Employer's proposal to settle this issue.



3. Verifying Unusual Work Hours for Priority Parking



a. The Union's Position



The Union proposes wording as follows:



All applicants for parking permits based upon unusual working hours will be advised that the NRC will routinely monitor the OWFN [Office at White Flint North] computer access records to assure that unusual hours permit holders are performing 25 percent or more of their work outside of scheduled work hours. They will further be instructed to access the entry card when they leave after normal work hours to assure an accurate record of their actual work times.

The purpose of its proposal is to provide a mechanism for ensuring that neither unit employees nor supervisors are "permitted to displace legitimate carpools unless the need for an unusual permit is real." There have been complaints about alleged abuses for this parking category, and the Union also recently received information that "no unusual hours application request had ever been denied." The current computer-controlled access system has been used previously to verify that employees have worked the overtime hours they have claimed, and is "an available mechanism to help eliminate abuse of parking privileges."



b. The Employer's Position





The following wording is proposed by the Employer:



All applicants for priority parking permits based upon unusual working hours will be advised that the NRC will periodically (twice each year) monitor the OWFN computer access records to assure that unusual hours permit holders remain eligible for priority parking spaces. They will further be instructed to use their badges in the key card access system when they arrive at work and when they leave work to create an accurate record of their actual arrival and departure times. The Employer has modified its previous proposal on this issue "in an effort to accommodate the concerns raised by the Union." Its proposal should be adopted because, unlike the Union's, it defines how frequently the computer access records will be monitored and requires those employees who work unusual hours to use the entry card both upon arrival and departure.



CONCLUSIONS



Preliminarily, we note that the parties have reached agreement on the basic concept that the current computer-controlled access system be used to monitor the priority parking privileges of employees working unusual hours. As to which proposal would better facilitate this purpose, we favor the Employer's. In this regard, it specifies that the monitoring would occur twice per year, and, by advising employees to use the access card upon arrival, it precludes the possibility of employees claiming they lid not use the card because they came into the work area with another employee. Accordingly, we shall order its adoption.



4. Sanitized Copies of Disciplinary and Adverse Action Letters



a. The Union's Position



The Union proposes that it be provided "with sanitized copies of all proposal and decision letters for admonishments, written reprimands, suspensions, downgrades, and removals simultaneously with their issuance to employees." While it believes it has the right to receive unsanitized copies of disciplinary proposal and decision letters, "to resolve the issue, at least temporarily," it agreed to pursue the matter in another forum, and to modify its proposal to mention only sanitized copies of the letters. Adoption of its proposal would permit it to fulfill its legal obligation to represent all bargaining-unit employees more easily by allowing it

to determine whether: (1) employees are being disciplined fairly and progressively, and (2) employees in similar circumstances are receiving comparable treatment, both of which are required under the parties' collective-bargaining agreement.



b. The Employer's Position



The Employer proposes that:



On a monthly basis the Union will present to the Office of Personnel a list of all employees who they are representing in disciplinary and/or adverse actions. Within 5 workdays the Agency will provide sanitized copies of all remaining proposal and decision letters issued to employees. Its proposal attempts to accommodate the Union "in the most efficient manner," i.e., by providing sanitized copies of proposal and decision letters "only when there is a need." In this regard, "it is rare for an employee not to take advantage of the Union's services when faced with an adverse action," so in most instances, the Union already possesses the unsanitized proposal or decision letter. Under its proposal, it would be required to provide sanitized copies of letters regarding only those bargaining-unit employees that the Union is not representing. Thus, the Employer would not have "to engage in the

wasteful task of providing the Union with information which [it] already [has] received."



CONCLUSIONS



After considering the evidence and arguments on this issue, we shall order the parties to withdraw their proposals. On the one hand, the Union's proposal appears to be largely redundant as it would require the Employer unnecessarily to sanitize even those unsanitized copies of proposal and decision letters regarding disciplinary and adverse actions already in the Union's possession. Moreover, denying the Union access to such information as a contractual matter would be of little consequence since it may request the identical information under section 7114(b)(4) of the Statute. The Employer's proposal, on the other hand, would inappropriately require the Union to reveal to management the employees it is representing in such matters, leading them to be needlessly identified. Thus, given the defects in both parties' proposals, we are convinced that the contract should remain silent on the matter.



5. EEO Statistical Information Regarding the Filling of Positions



a. The Union's Position



The Union proposes that, on an annual basis, it be furnished with "EEO statistical information concerning positions filled and an EEO breakdown of the best-qualified candidates for those positions." The need for a database containing EEO profiles of best-qualified candidates and selectees for unit positions is prompted "by the increasing number of complaints received from employees claiming that younger, less qualified, candidates are routinely selected for NRC positions." Because the Employer already maintains a database containing employee-provided EEO information for all employees, its proposal would merely require the Employer to record the names of best-qualified candidates and selectees into the NRC computer, and "generate[s] no additional workload." Only by comparing the profile of selectees with those of highly qualified candidates "can one gain a true insight into the overall promotion

practices at the NRC." This information is already available, and can be used to diagnose and correct problematic hiring practices through "managerial training rather than through the more time consuming, expensive, and adversarial path of litigation."



b. The Employer's Position



The Employer believes that the Union's proposal should be withdrawn because its adoption is unnecessary to achieve the stated purpose of identifying patterns of discrimination within the Agency. In this regard, twice per year the NRC is briefed on the status of its continuing EEO program, largely through presentations by employee-EEO committees, one of which is established under the negotiated agreement. While the Employer is already devoting substantial resources to evaluating its EEO program in connection with these briefings, the Union's proposal "would add substantial additional burden" by requiring the manual review of some 500 selection actions per year, a search through another document to determine which EEO category the employee falls within, and the production of a sanitized document indicating the vacancy and the EEO makeup of those that made the best-qualified list. Even then, the information would be incomplete "because there is no requirement that non-NRC applicants for the vacancy indicate what EEO category they fall under."



Each selection action must be judged individually to determine if discrimination is occurring. Relying on statistics alone could cause the erroneous targeting of supervisors "who do not have a selection profile consistent with what the Union believes is appropriate." Moreover, it could pressure a selecting official to use an applicant's EEO status as the deciding factor in the selection process, and contribute to establishing a quota system within the Agency. Finally, the concept behind the Union's proposal appears to be that "discrimination is widespread within the Agency and only the most extreme form of oversight" can prevent it. This is inconsistent with a recent statement by the Union's president to the NRC's Commissioners that discrimination in the Agency ~'is the result of individual actions by a small number of managers and supervisors." Hence, its proposal is overly broad, and ignores existing mechanisms for dealing "with a few isolated incidents of discrimination" which would allow the Union access to the information it is requesting on a case-by-case basis.



CONCLUSIONS



On the basis of the evidence and arguments presented by the parties in connection with this issue, we conclude that the Union should withdraw its proposal. In our view, it is unlikely that its adoption would require "no additional workload," as the Union suggests. More significantly, however, we are persuaded that the Employer's existing EEO program, which appears to be objectively scrutinized twice each year, is monitored sufficiently to render the proposal unnecessary. Moreover, there is little evidence in the record to justify the broad statistical approach to eliminating discrimination inherent in the Union's proposal. Given these circumstances, we believe that such complaints would be more appropriately addressed either through the statutory process provided by the Equal Employment Opportunity Commission or the negotiated grievance procedure.



ORDER



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 following:



1. Number of Union Representatives Within Organizational Units



The parties shall adopt the Union's proposal.



2. Credit-Hours and 4-10 CWS Pilot Programs



The parties shall adopt the Employer's proposal.