DEPARTMENT OF THE ARMY, ARMY CORPS OF ENGINEERS, MEMPHIS DISTRICT, MEMPHIS, TENNESSEE and LOCAL 259, NATIONAL FEDERATION OF FEDERAL EMPLOYEES



In the Matter of: )

)

DEPARTMENT OF THE ARMY, )

ARMY CORPS OF ENGINEERS, )

MEMPHIS DISTRICT, )

MEMPHIS, TENNESSEE )

) Case No. 95 FSIP 106

and ) Case No. 95 FSIP 75

)

LOCAL 259, NATIONAL )

FEDERATION OF FEDERAL )

EMPLOYEES )

______________________________)





ARBITRATOR'S OPINION AND DECISION



BACKGROUND



Local 259, National Federation of Federal Employees (hereafter "NFFE" or "Union"), filed separate(1) requests for assistance with the Federal Service Impasses Panel (hereafter "Panel") to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (hereafter "Statute"), 5 U.S.C. § 7119, between it and the Department of the Army, Army Corps of Engineers, Memphis District, Memphis, Tennessee (hereafter "Army" or "Employer").(2) Following investigation of the requests for assistance, the Panel determined that the impasse relating to three issues in the two cases, should be resolved through the mediation-arbitration process and delegated the undersigned to engage in such process.



Accordingly, on July 26, 1995, at 9:00 a.m., representatives from NFFE(3) and the Army(4) met before the undersigned at the Clifford Davis Federal Building (hereafter "Federal Building") in Memphis, Tennessee. At the beginning of the proceeding, the undersigned confirmed with the parties that the two cases had been consolidated for mediation-arbitration purposes. Thereafter, the parties engaged in extensive mediation efforts/arbitration proceedings (hereafter "MED-ARB"), in which each side engaged in oral argument, presented evidence and exhibits, and each had the opportunity to raise objections and contest the evidence presented by the other party. The mediation efforts in both cases were unsuccessful. The parties' collective-bargaining agreement (hereafter "CBA") expires in November, 1995.





95 FSIP 106:



There are two issues in dispute, to wit: a) Union Office Space; and b) Official Time.



A. Union Office Space



1. The Army's Position:



The Army proposes the following as reflected in a memorandum dated March 27, 1995:



1. You are aware that the District has undertaken to better utilize and reduce its office space due to "reinvention of government" efforts and budgetary constraints. The union is aware of several effective efforts to better utilize the District's resources by more efficient use of especially the space rented from GSA through relocating offices presently in the Clifford Davis Federal Building (CDFB). Some of this effort will result in offices in the Federal Building being moved, while other offices will be relocated to Ensley Engineer Yard (EEY).



2. The current Cairo Field Office will be closed and a smaller space will be leased at a lower cost. The Transportation Office in the basement of CDFB has been closed and the space returned to GSA. There are numerous other examples of space reassignment within and among offices in the CDFB.



3. As the District downsizes, so will our total leased space requirement. It has become obvious that certain offices should be relocated to EEY due to the nature of their activities, the locus of their interests and the source of the customers they most frequently serve. As such offices are identified, they will also be relocated to their "work sites".



4. The former union office remains unoccupied since the Local's move to CDFB and is ready for re-occupation. Virtually all of the bargaining unit "customers" who have need of the union's assistance are EEY employees and the overwhelming majority of union-management matters involve matters and personnel associated with EEY. In light of this and the above, it is proposed that the union office be relocated to its former location at EEY by 1 June 1995.(5)



In further support for its proposal, the Army indicated that it had discovered that it was paying rent equal to approximately 130% of the average rent for similar office space in the general vicinity of the Federal Building; that rent was a significant portion of the Army's overhead; that the proposed relocation of the union office space from the Federal Building to the Ensley Engineer Yard (hereafter "EEY"), approximately 11 miles from the Federal Building, would result in an overhead rental reduction since the space proposed for the Union at the EEY was on land owned by the Army, and consequently rent-free.



The record reflects that the Union moved from its office at the EEY to its basement office at the Federal Building in or about March, 1993, pursuant to negotiations between the parties. The record further reflects that the Union office at the Federal Building is approximately 266 square feet, while the space that the Army is accountable for at the Federal Building is approximately 103,000 square feet, of which approximately 83,000 square feet is usable administrative space. The evidence indicates that during the course of negotiations on this issue, the Union offered to assist the Employer in identifying wasted space and other suggestions for reduction of space which were reiterated at the MED-ARB. It appears that the Employer was not receptive to such input from the Union.



In addition, the Army also articulated its belief, without providing evidence to substantiate its allegation, that the Union was abusing its allotted official time to represent members of this bargaining unit, by engaging in representational activities out of its Federal Building office, for members of another bargaining unit of employees employed by HUD. Accordingly, the Army maintained that the proposed move to the EEY facility would allow them to more effectively monitor instances of alleged abuse since all individuals entering the EEY facility, who are not employed there, are required to sign in and out of the entrance and indicate their destination. The Union denied the Employer's allegations on this matter.



Finally, the Army pointed out that it had been advised by the GSA that at some time in the foreseeable future, all of the Army's space in the basement of the Federal Building would be required for the Department of Justice, who had become the majority space-holder tenant in the Federal Building. The Union's response was that it had offered and was willing to relocate from its basement office to some other reasonable office location within the Federal Building to accommodate GSA's projected plan.



2. The Union's Position:



In response to the Army's proposal, the Union proposed the status quo, i.e., that its office remain in the Federal Building. In support thereof, the Union presented a number of reasons, to wit: a) history of office problems; b) accessibility to all district employees(6); c) accessibility to personnel office (in Federal Building); d) accessibility to EEO office (in Federal Building); accessibility to decision making managers; e) privacy of employees [employees presently required to sign in and out of EEY and state their destination]; f) hearings, be they grievance or otherwise, i.e., arbitrations, are conducted at the Federal Building; and g) union office needs to be at the District headquarters.



In further support of its position, the Union articulated and produced a compilation of documents (Union Exh. 1), setting forth samples of its representational activities on behalf of the members of the Army-Union bargaining unit, including but not limited to the grievance procedure and its various stages ultimately leading to arbitration hearings; proceedings before the Merit Systems Protection Board (hereafter "MSPB"), the Equal Employment Opportunity Commission (hereafter "EEOC"), the Office of Workers' Compensation (hereafter "OWCP"); along with its participation in activities pertaining to the Partnering Agreement with the Army.(7) In doing so, the Union maintained that the bulk of these representational activities, i.e., hearings, meetings, necessarily took place at the Federal Building, precisely because that is where the personnel and EEO offices are located, along with the Employer officials with whom they interact on a regular and continuing basis in carrying out their functions as collective-bargaining representative.



CONCLUSIONS:



Having considered all of the evidence and arguments of the parties on this issue, I conclude that the impasse should be resolved on the basis of the Employer withdrawing the relocation proposal.

In my view, the Employer has not sufficiently demonstrated a need to change the status quo. In this regard, the evidence of record fails to convince the Arbitrator that the Employer's overhead rental deduction rationale outweighs the advantages and reasons presented by the Union for maintaining its office in the Federal Building. As referenced above, the Union office consists of approximately 266 square feet, while the usable administrative space that the Employer is accountable for is approximately 83,000 square feet. As such, in my view, the cost rental reduction to be derived by the Employer is less than one-half of one percent, which I consider to be nominal and or negligible, at best.



In addition, while there was some evidence presented by the Employer indicating that most of the ULP's filed by the Union involved matters at the EEY facility, there was a substantial amount of evidence indicating that a broad spectrum of the Union's representational duties and functions, including the processing of ULP's filed by the Employer against the Union, and vice-versa, are facilitated and necessarily take place at the Federal Building. The Federal Building serves as the hub, the central location for the various departments of the Employer involved in the decisions and the processing of matters impacting on the collective-bargaining relationship for all employees within the Memphis District. It follows, and I was convinced, for the reasons expressed by the Union, as described above, that the Union office should continue to be maintained at the Federal Building.

B. Official Time



1. The Army's Position:



The Army proposes the following as reflected in a memorandum dated March 27, 1995:



1. For years the union's use of official time was governed by the contract. Then after the 1992 revetment season Duane Laird, your immediate supervisor, agreed to allow you, the union president, a full duty day of official time per week provided no other request for official time was made. Originally this day was Friday but at your request it was changed to Monday. In the spring of 1993 Colonel Willer adopted Mr. Laird's position and extended an additional two (2) hours of official time for the other duty days of the week, plus travel time one way to Ensley Engineer Yard, resulting in sixteen (16) hours of official time which the union could use in any way necessary to represent the bargaining unit members of the Memphis District. You did not have to account for the use of these hours other than to do the things necessary to represent the bargaining unit during this period.



2. A regrettable pattern has developed over the two years since Colonel Willer extended that plan. You have refused to meet for negotiations, labor-management discussions, grievance meetings or other such meetings or to schedule anything in that block of time which was set aside for those very purposes. Your position has caused great concern about the necessity and efficiency of continuing to allow an unrestricted block of official time since there is no apparent benefit or use of it in representing the bargaining unit.



3. Therefore, effective 1 June 1995 official time will be granted pursuant to the terms of the contract and the practice of requesting/granting official time which was previously in effect, and the present grant of sixteen (16) hours unrestricted official time per week is rescinded.



In further articulating its position, the Employer essentially stated that since the Union was not using the block grant of time for its intended purpose, it was abusing the agreement that had been reached with Colonel Willer in 1993. Accordingly, it was the Employer's position that the use of official time for Union business should revert back to the "reasonable time" standard contained in the parties' CBA, Article V, ¶5.(8)



In further support of its position, the Employer introduced a compilation of documents (Employer Exh. 5), purporting to establish the Union's abuse of official time and or to contest the Union's position (to be discussed, infra), that it needed expanded blocks of official time in order to adequately meet its representational obligations. However, upon review of said documents, I find them to be inconclusive on both points. With regard to the "abuse of time", I am not convinced that they sufficiently demonstrate that the Union used the block grant of time for purposes other than as intended by the parties agreement in 1993. In that regard, it is noted that in the Employer's position statement of June 15, 1995, it indicated that the parties met and negotiated on the issues sub judice, on May 1st and May 15th, 1995. Since both those dates fell on Mondays, it appears, as asserted by the Union, that said negotiations took place within the block grant of time and for the purposes intended by the parties. With regard to the Employer's alternative argument, I find there was insufficient evidence presented to establish that the manner of collecting such data accurately and definitively reflects the amount of official time spent on Union business.



2. The Union's Position:



The Union's proposal may be summarized as follows: That as a result of the umbrella of active representational activities it performs on behalf of its bargaining unit membership, it requires an expanded amount of official time for its President, Vice-President, and Chief Steward.



In support thereof, the Union furnished sample documents(9), and indicated that in representing its employees throughout the Memphis District(10), it continuously participated in a myriad of different representational activities, including but not limited to: a) grievance processing through arbitration; b) unfair labor practice proceedings with the FLRA; c) MSPB appeals; d) EEOC; e) OWCP; f) assisting employees in the Employee Assistance Program; g) involvement in the District's Total Quality Management program; and h) participation in the parties Partnering Agreement. The Union further asserted that its involvement in such activities was hampered by Employer actions that arbitrarily and capriciously denied their Vice-President and Chief Steward's requests for official time to engage in such activities.



In presenting its position, however, the Union failed to articulate how much of an expansion of "block grant" hours it was seeking for the Union President, nor how many block grant hours it was seeking for the Vice-President or Chief Steward. In addition, the Union failed to present demonstrative and or documentary evidence that could clearly establish that the block grant hours currently enjoyed by the Union President, and or that the CBA "reasonable time" standard in place for the Vice-President and Chief Steward, were insufficient for the Union to continue to meet its representational obligations.



CONCLUSIONS:



Having considered the arguments and evidence on this issue, I conclude that neither of the parties' presented sufficient evidence to substantiate and or justify the implementation of their respective proposals. The Union failed to demonstrate its need for an expanded amount of block grant hours for the officials involved. The Employer, likewise, failed to sufficiently demonstrate that the Union and or its President, abused the "block grant" hours approach, in effect since 1993. Moreover, the Employer's proposal would appear to be burdensome in its impact on the Union President, who would then be required to continually request "official time", which in the Arbitrator's opinion, could cause unnecessary disruptions in the workplace and lead to a "further"(11) deterioration of the parties' collective-bargaining relationship. Accordingly, on this issue, I shall order that the parties' maintain the status quo, to wit: the sixteen (16) hours block grant of unrestricted official time, per week, shall continue in full force and effect.





95 FSIP 75:



The sole issue in dispute is whether bargaining unit employees should continue to receive "transportation subsidies" furnished by the Employer, from in or about 1992 through on or about March, 1995.

1. The Employer's Position:



In or about the middle of January of 1995, the Employer(12), notified the Union that it no longer had the necessary authority to purchase bus tokens for distribution to enrolled bargaining members, for use on the local area's transit system. Further, that when the existing supply of tokens was exhausted(13), the transit subsidy program would be terminated until higher level authorization for the program was granted.(14) At the MED-ARB, the Employer further articulated that since there were no specific appropriations for such transit subsidies within the branch component Corps of Engineers budget, they were without legal authority to continue such subsidies.



2. The Union's Position:



The Union essentially proposed that the status quo, prior to the Employer's cessation of such subsidies be reinstated. In doing so, the Union asserted that the Employer's legal authority argument was without merit.



Analysis and Findings:



Authority for the establishment of transit subsidies at the federal level appears to have been first established under Pub. L. No. 101-509, and carried forward through Pub. L. No. 103-172, codified at 5 U.S.C. § 7905, known as the Federal Employees Clean Air Incentives Act, as amended (hereafter "Clean Air Act"). As stated in the Clean Air Act, at Section 1. (b), its purpose "is to improve air quality and to reduce traffic congestion by providing for the establishment of programs to encourage Federal employees to commute by means other than single-occupancy motor vehicles." The record reflects that the Employer, pursuant to such legislation, had a transit subsidy program in place dating back to 1992.(15)



Addressing the Employer's "component-higher level authority" argument, I find that both the Panel and the FLRA have previously considered and rejected such arguments.(16) In Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA 501, 503-504 (1987), the component, Office of Dependent Schools, was a field activity within the Office of the Secretary of Defense, that provided education for eligible dependents of military and civilian personnel stationed overseas. Based on their overseas employment, the union asserted and proposed that the employees receive certain housing allowances. In rejecting the agency's lack of higher level authority argument, the FLRA stated in pertinent part:



"For the same reasons expressed in Department of Defense, Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 5), we reject the Agency's contention that proposal 5 is not within the duty to bargain simply because the Government housing involved is within the control of the military department. That decision, relying on an earlier Authority decision, noted that where a union holds exclusive recognition in a component of an agency, the component is obligated to bargain over conditions of employment despite the fact that control over a particular condition of employment rests with a different organizational component in the same overall agency. The only limits on an agency's obligation to bargain over conditions of employment, in that circumstance, are those placed on its discretion by provisions of law, Government-wide rule or regulation or agency regulations for which a compelling need exists." (Emphasis added).



In National Federation of Federal Employees, Council of VA Locals and U.S. Department of Veterans Affairs, 49 FLRA 923 (1994), the FLRA again addressed transit subsidy issues in the context of non-negotiability challenges raised by the agency. In that case, as here, involving provisions of the Clean Air Act, the FLRA found no merit to the agency's argument that it had no obligation to bargain over transit subsidy proposals.(17) Based on the foregoing, I find the Employer's "component-higher level authority" argument to be without merit.



Turning then to the merits of the issue, the Employer has posited that since the branch component does not have specific "appropriations" set aside within the Corps of Engineers budget for the transit subsidy program, it cannot continue the program. This issue was also raised by the agency in U.S. Department of Veterans Affairs, supra, 49 FLRA 923, at 936-943. In rejecting the agency's "appropriations-budget" argument, the FLRA stated:



"While Proposal 4 would necessitate an expenditure of funds by the Agency, it does not, by its terms, directly prescribe how any resultant funding requirements will be addressed in the Agency's budget. Also, we reject the Agency's argument that the fact that it currently does not have a 'program' for commuter subsidies brings this proposal within the ambit of the first part of the budget test. The proposal does not, by its terms, prescribe the establishment of a program within the budget itself. Even assuming that this proposal requires the Agency to establish a subsidy 'program,' as we stated in Red River Depot, the establishment of an administrative or operational program does not equate to the establishment of a program within the budget itself."



Accordingly, I find the Employer's "appropriations" argument unpersuasive.



Finally, the parties agreed at the MED-ARB, that the cessation of the transit subsidy program, impacted on approximately ten (10) bargaining unit members. Further, that the cost of the program for the affected employees was approximately $40.00 per month, per employee for the bus tokens. As such, the Employer did not claim, and I do not find that a continuation of the transit subsidy program would create a significant cost-increase or burden to the Employer.(18)



CONCLUSIONS:



Having considered all of the evidence and arguments of the parties on this issue, I conclude that the impasse should be resolved on the basis of the Employer withdrawing the transit subsidy proposal. Accordingly, the transit subsidy program that was in place prior to its cessation shall be reinstated for all eligible bargaining unit employees.



DECISION:



Case No. 95 FSIP 106:



A. Union Office Space:



1. The Employer shall withdraw its relocation proposal. The Union Office shall continue to be maintained at the Federal Building.



B. Official Time:



1. The Employer shall withdraw its proposal eliminating the present grant of sixteen (16) hours unrestricted official time, per week.



2. The Union shall withdraw its proposal requesting an expanded amount of official time for its President, Vice-President, and Chief Steward.



3. The parties shall maintain the status quo, to wit: the sixteen (16) hours block grant of unrestricted official time, per week, shall continue in full force and effect.



Case No. 95 FSIP 75:



1. The Employer shall withdraw its proposal to eliminate the transit subsidy program.



2. The transit subsidy program that was in place prior to its cessation shall be reinstated for all eligible bargaining unit employees. In order to facilitate and accommodate the arrangements that will have to be made by the Employer to reinstate the transit subsidy program, the actual implementation date for the bargaining unit members to commence to receive the transit subsidies shall be Monday, October 2, 1995.



Dated: September ___, 1995 _____________________

Miami, Florida Gilbert Carrillo, Arbitrator



1. 1 In 95 FSIP 75, the Union's request was filed on March 16, 1995; in 95 FSIP 106, the Union's request was filed on May 23, 1995.

2. 2 The Army's mission is to render navigation and flood control services/systems.

3. 3 Appearances on behalf of NFFE were made by: Clark D. King, President; Larry Donald, Vice-President; Ronald O. Bonucchi, Treasurer; and Randy Farr, Chief Steward.

4. 4 Appearances on behalf of the Army were made by: Alvin C.W. Ellis, District Labor Counsel; Barbara Cook, Labor/Management Employee Relations Specialist; Bobby J. Littlejohn, Assistant Chief, Construction - Operations Division; Richard W. Kaiser, Chief, Logistics Management Office; and Brenda H. Mixon, Finance and Accounting Officer.

5. 5 In support of this statement, the Army submitted an unsigned compilation (Employer Exh. 2) of unfair labor practice case numbers (hereafter "ULP's"), apparently filed by the Union against the Army, with the Federal Labor Relations Authority (hereafter "FLRA"), for a period commencing sometime in 1993 and going through 1995. The compilation appears to indicate that most of the ULP's involved matters pertaining to the facility located at the EEY.

6. At the MED-ARB, the parties estimated that there were approximately 600 full-time employees in the Memphis District bargaining unit, with the substantial bulk of them being employed either at the Federal Building or at the EEY. In that regard, it is noted that the parties collective-bargaining agreement (scheduled to expire in November, 1995), which the parties introduced as Joint Exhibit 1, at page 2, ARTICLE I: RECOGNITION AND UNIT DESCRIPTION, states in pertinent part as follows:



"2. Unit. The Employer recognizes the Union as the exclusive bargaining representative for the following: all permanent year-round Classification Act and Wage Grade nonprofessional employees in the District Office (Clifford Davis Federal Building, Memphis, Tennessee), including survey parties based: in the District Office Building; Caruthersville, Missouri; Helena, Arkansas; and Tiptonville, Tennessee; all permanent seasonal and non-seasonal, non-supervisory employees assigned to the following organizational units of the Memphis District; all Dredges with attendant plant; all Bank Protection Parties with attendant plant; all towboats; all Patrolboats; Ensley Engineer Yard, including Procurement and Supply Division Warehouse."



The above-cited inclusion language includes such positions as: civil engineering technician, clerk, laborer, and secretary.

7. 7 A copy of which is found on the first page of the parties CBA, Joint Exh. 1.

8. Article V, ¶5, states in pertinent part:



5. Authorized Official Time. Union officers and officials shall be permitted reasonable time during working hours without loss of leave or pay to represent employees in accordance with this agreement. (This shall include time to review working conditions in their areas.) Use of official time shall not be limited to the confines of the activity, but will allow the representative to travel in accordance with the needs of the individual case. ...



b. All negotiations and preparations therefore shall be conducted on official duty time. This shall include time to prepare and present matters to the Federal Mediation and Conciliation Service and the Federal Service Impasses Panel.



c. Reasonable time for receiving, investigating, preparing and presenting a complaint, grievance or appeal must necessarily depend on the facts and circumstances of each case, i.e., number and nature of allegations, number and complexity of supporting specifics, the volume of supporting evidence, availability of documents and witnesses and similar considerations.



d. Reasonable time for preparation of information reports required under 5 U.S.C. 7120(c), including financial reports and trusteeship reports, shall be accorded to Union officials. The amount of time granted will be that necessary to gather data and complete reports.

9. Union Exh. 1.

10. See footnote 6 above.

11. Upon review of Union Exh. 1, it is the Arbitrator's observation, that the parties, for quite some time, have engaged in an active and well-documented "adversarial" relationship. Without addressing the merits of the cause for such relationship, this Arbitrator, in an attempt to promote an amicable collective-bargaining relationship between the parties, urges and suggests that the parties re-visit their efforts to consider and abide by the partnership principles contained in President Clinton's Executive Order 12871 of October 1, 1993; and the parties own Partnering Agreement (see first page of CBA, Joint Exh. 1) of 1993, wherein they committed themselves to teamwork, open communications and joint problem-solving in order to meet the mutual interests of the employees, labor and management.

12. A component branch of the Army, under the Department of Defense.

13. On or about March 9, 1995.

14. In a Memorandum from Barbara Cook to Clark King, Union President, dated January 12, 1995, it states in pertinent part:



1. ... In spite of numerous component and Army MACOM requests, the Secretary of Defense has neither authorized DOD participation nor delegated this authority to military components. Therefore our implementation of such a program was done without authority.



2. USACE has recommended that we reexamine our program to insure we are operating within appropriate delegated authority. Until a legal opinion has been rendered on this matter, we must cease purchasing bus passes ...".

15. See Union Exhibit identified as #1 to Case No. 95 FS