DEPARTMENT OF COMMERCE PATENT AND TRADEMARK OFFICE ARLINGTON, VIRGINIA and CHAPTER 245, NATIONAL TREASURY EMPLOYEES UNION
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
CHAPTER 245, NATIONAL TREASURY
Case No. 95 FSIP 108
DECISION AND ORDER
The National Treasury Employees Union (NTEU) 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 NTEU Chapter 245 (Union) and the Department of Commerce, Patent and Trademark Office, Arlington, Virginia (Employer).
After investigation of the request for assistance, the Panel determined that the dispute, which concerns transit subsidies, should be resolved through an informal conference between a Panel representative and the parties. If no settlement were reached, the representative was to notify the Panel of the status of the dispute, including the final offers of the parties and the representative's recommendations for resolving the matter. Following notification, the Panel would take whatever action it deemed appropriate to resolve the impasse.
In accordance with this procedural determination, Panel Representative (Staff Attorney) Harry E. Jones conducted an informal conference with the parties on September 7, 1995, at the Panel’s offices in Washington, D.C. During the course of that proceeding, the outstanding issue was not resolved. At the conclusion of the meeting, Mr. Jones directed the parties to provide written statements setting forth their respective final positions on the disputed issue. Those statements have been received, and Mr. Jones has reported to the Panel. The record is now closed, and the Panel has considered all relevant information contained therein.
The Employer issues patents and registers trademarks. It receives no appropriated funds for its operations, but instead, is funded through user fees which are placed in a revolving account controlled by the Congress. The bargaining unit consists of approximately 215 trademark attorneys who range in grade from GS-9 through -14; they are physically located at the Employer’s offices in Crystal City, Virginia. NTEU also represents a unit of nonprofessional employees (Chapter 243) at the Patent and Trademark Office who are not directly affected by this dispute. The parties are covered by a collective-bargaining agreement which is due to expire in July 1996. There is no dispute that trademark user fees, which by law cannot be used for any purpose other than trademark operations, are currently running a surplus. Nevertheless, the Employer anticipates that some funding will be withheld from its overall appropriation during the next fiscal year.
ISSUE AT IMPASSE
The sole issue in dispute is the extent to which the Employer should provide transit subsidies to employees.(1)
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposal is as follows:
The Agency and the Union will establish a one (1) year public transit subsidy program that will provide bargaining-unit employees with the maximum $60 subsidy allowed by law, to be administered under jointly developed criteria.
Adoption of its proposal would encourage unit employees to use public transportation, which is consistent with the purpose and intent of the legislation. This contention is supported by the results of an employee survey which reveal that an additional 36 percent of unit employees would switch from private vehicles to mass transit if such a subsidy were provided. Despite this show of enthusiasm for a program, some employees may require a period of time to adjust to a new commuting routine; therefore, a 1-year pilot period is necessary to allow for a fair evaluation of the program. The proposal is also consistent with two prior Panel decisions in which the Panel ordered the payment of transit subsidies to unit employees to the extent permissible by law.(2)
With respect to the Employer’s position (see below), its cost arguments are not persuasive, especially since the Trademark Office is currently running a $21 million surplus. Also, there is no rationale for applying the experience of NTEU Chapter 243, which has had a pilot transit subsidy program in effect since 1993, to Chapter 245, as that pilot is still under evaluation; regardless, even if mass transit use has not increased under the Chapter 243 pilot, this merely demonstrates that the $30 per month subsidy offered under that program has been inadequate to induce employees to alter their commuting habits. Moreover, the Employer’s proposed requirement that employees turn in a parking permit to be eligible for a transit subsidy is contrary to Congressional intent, as it would remove any incentive for current mass transit riders to continue using that mode of transportation. In addition, such a requirement is unnecessary, since attorneys are not likely to jeopardize their careers by falsifying certificates of eligibility. Finally, using the number of parking permits turned in as a measure of the pilot’s success is a faulty assessment tool since the Employer does not provide unit employees with parking spaces or parking permits.
2. The Employer’s Position
The Employer’s proposal is as follows:
Any NTEU Chapter 245 bargaining-unit member who is willing to relinquish his or her parking pass would be included for the duration of the current pilot program covering NTEU Chapter 243 bargaining-unit members.(3)
The Employer proposes that unit employees be rolled into an existing transit subsidy pilot which was established in 1993 pursuant to an agreement with NTEU Chapter 243. That pilot provides for the payment of a $30 per month transit subsidy; it is scheduled for evaluation at the end of December 1995. Under its proposal, Chapter 245 employees would receive the same $30 per month subsidy, with the additional requirement that they "relinquish [their] parking pass[es]" to become eligible for the payment.
The amount of the subsidy is reasonable, especially in view of the Employer’s current budget uncertainties. Moreover, placing unit employees in the Chapter 243 pilot is appropriate since the time remaining is sufficient to determine whether $30 per month will provide an incentive for employees to use mass transportation. The additional requirement that employees turn in their parking permits to be eligible for the program should provide a cost-containment measure while helping to ensure that participants actually alter their commuting habits. Furthermore, the proposal would maintain equity with NTEU Chapter 243, thereby avoiding any possible negative impact on morale.
The Union’s proposal, on the other hand, cannot be justified, as it would result in an increase in costs without providing any offsetting benefits. In this regard, the Union’s argument that retention problems would be resolved is not persuasive since employees who take jobs in the private sector are not likely to stay for an additional $60 per month. In addition, providing a $60 per month subsidy to trademark attorneys while cutting back in other areas of the organization could be perceived as inequitable and may result in morale problems. Moreover, a separate 1-year pilot is not necessary for Chapter 245 employees since they are not likely to behave any differently, in terms of commuting habits, from other employees; that is, although the Chapter 243 pilot is not slated for full review until December 1995, preliminary results indicate that the subsidy has not encouraged employees to commute by means other than a single-occupancy vehicle. Further, the Union’s proposal could result in a windfall for employees who already use mass transit since all unit employees would be eligible, regardless of their current commuting practices. Finally, contrary to the Union’s statements, its proposal is not consistent with prior Panel decisions; in those cases, transit subsidies were awarded only in cities designated as severe areas under the Clean Air Act, and the Washington, D.C., metropolitan area has not been so designated.
Having carefully reviewed the record in this case, we conclude that a modified version of the Employer’s proposal should serve as the basis for resolving this dispute. In our view, placing unit employees into the Chapter 243 pilot is a reasonable approach because it would provide an adequate incentive for some employees to switch from private vehicles to mass transportation. We are not persuaded that a higher subsidy amount is justified considering the results of the Chapter 243 pilot program, budgetary factors, and the inconsistency it would create with the treatment of Chapter 243 employees. Because the Employer has stated its desire to terminate the Chapter 243 pilot when it expires in January 1996, we recognize that our decision may establish a short time period for testing the program as it relates to the Chapter 245 bargaining unit. Nevertheless, we believe there are important reasons for having the value of the two transit subsidy programs examined at the same time.
In addition to placing unit employees into the Chapter 243 pilot, we shall also add wording that the Employer proposed at the close of the informal conference, but which does not appear in its written statement, requiring a January 1996 reopener. Such wording shall specify that employees under the Chapter 245 pilot will continue to receive transit subsidies during any subsequent negotiations until a final resolution is reached concerning the matter. This should allow the parties an opportunity to reexamine the issue once the Employer’s budget picture comes into sharper focus, and provide additional data to the parties concerning the success of the pilot program for this group of employees. Finally, requiring Chapter 245 employees to turn in their parking permits as a condition of eligibility appears unwarranted. There is no similar requirement for employees under the Chapter 243 pilot, and requiring this group to do it could have a negative impact on morale. Accordingly, we shall order the adoption of wording consistent with these conclusions.
Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their disputes during the course of proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the parties to adopt the following wording:
All NTEU Chapter 245 bargaining-unit members will be included for the duration of the current transit subsidy pilot program covering NTEU Chapter 243 bargaining-unit members. Chapter 245 will have the right to reopen the issue, separate and apart from Chapter 243, in January 1996. Employees under the Chapter 245 pilot will continue to receive transit subsidies during any subsequent negotiations until the parties reach a final resolution concerning the matter.
By direction of the Panel.
Linda A. Lafferty
November 6, 1995
1.Under the Federal Employees Clean Air Incentives Act, Pub. L. No. 103-172, 107 Stat. 1995 (1993), codified at 5 U.S.C. § 7905 (1994), an agency may establish a program to encourage employees “to use means other than single-occupancy motor vehicles to commute to or from work;” the legislation, however, does not provide agencies with any additional monies for implementation. Because of this, transit subsidy programs must be funded through the use of exis