DEPARTMENT OF AGRICULTURE FOREST SERVICE ARLINGTON, VIRGINIA and NATIONAL FEDERATION OF FEDERAL EMPLOYEES-FOREST SERVICE COUNCIL
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF AGRICULTURE
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES-FOREST SERVICE COUNCIL
Case No. 96 FSIP 144
DECISION AND ORDER
The National Federation of Federal Employees-Forest Service Council (Union) and the Department of Agriculture, Forest Service, Arlington, Virginia (Employer) filed a joint 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.
After investigation of the request for assistance, the Panel determined that the dispute, which concerns leave for the "Three Kings Day" holiday, should be resolved on the basis of a single written submission from each party, with the Panel to take whatever action it deemed appropriate to resolve the impasse. A written submission was received from the Employer, but the Union did not provide a separate statement.(1) Pursuant to this procedure, the Panel has now considered the entire record.
The Employer manages natural resources including the National Forest System, conducts forestry and range research, and provides advice on state forestry issues. In Puerto Rico, it operates the International Institute of Tropical Forestry (IITF) which engages in research and technology transfer work involving foreign countries, and the Caribbean National Forest (CNF). The Union represents 16,000 bargaining-unit employees in a nationwide, consolidated unit. The 80 affected bargaining-unit employees are located in Puerto Rico; some are professional and non-professional employees of the CNF; others are non-professional employees of the IITF. They work as foresters, forester and accounting technicians, wildlife biologists, plant pathologists, receptionists, and laborers. The master collective bargaining agreement (MCBA) is due to expire on May 5, 1999; there is no local agreement.
Historically, the parties essentially agree that in the mid-1970s, a number of components of the Department of Agriculture in Puerto Rico initiated a policy of granting administrative leave for "Three Kings Day" to deal with reduced public transportation and lack of access to leased office space on the holiday.(2) In 1986, for the first time, the Forest Service granted employees administrative leave for three holidays: "Three Kings Day" (January 6), Good Friday (March), and Constitution Day (July 25). In 1987, however, the Employer proposed to eliminate granting administrative leave for two of the holidays; by vote, employees selected "Three Kings Day" as the holiday that merited special treatment; compensatory time, credit hours, and a liberal leave policy were made available for the other two holidays.
ISSUE AT IMPASSE
The sole issue in dispute concerns the kinds of leave provisions to be instituted annually for scheduled work hours on "Three Kings Day."
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposes that affected employees continue to be granted administrative leave for scheduled work hours on January 6 each year in recognition of "Three Kings Day." For the last 11 years, the Employer has granted employees such leave for what is the "most important" and "venerable" holiday of the year. To ignore the event would show "insensitivity to another country’s tradition," and might ultimately lead to its "annihilation." On the positive side, facilitating the family celebrations that are associated with the day is consistent with the policies of the current and previous Presidential administrations which support "family values." Finally, the Union would be willing to exchange another Federal holiday for this one if regulations would allow it.
2. The Employer’s Proposal
The Employer proposes that:
Employees who request leave for scheduled work hours to celebrate "Three Kings Day" (a religious holiday occurring on January 6), will be afforded the option to: earn and use credit hours or elect to work and use compensatory overtime to avoid being charged leave; or be granted leave, in accordance with agency attendance and leave regulations.
Puerto Rico is a "popular vacation destination, especially during the winter months." Maintaining normal operations for the benefit of visitors on the holiday at the CNF, the only rain forest in the National Forest System, and its newly opened visitor’s center at El Portal, is consistent with the customer service goals of the National Performance Review. Currently, to provide such service, some employees must be designated "essential" and required to work on the holiday. This results in an inequity since employees who are "non-essential" get a day off without charge to leave, while those who are deemed "essential" must work without any similar compensating benefit. Although no grievances have been filed related to the situation, "when other[s] get administrative leave there is no incentive for employees to come in those days." Furthermore, granting employees an opportunity to earn credit hours or compensatory time is more consistent with the MCBA, and agency and Governmentwide regulations and the criteria they set forth. For example, such regulations: (1) permit the earning and use of religious compensatory time "unless the presence of the employee is necessary for efficient operation of the workplace";(3) (2) allow excused absences when, among other reasons, "it is in the public interest to permit employees to engage in civil activities promoted by the Government";(4) and (3) permit group dismissals if a local holiday prevents Federal work from being properly performed."(5) Finally, "out of 69 agencies surveyed, only 20 grant administrative leave to their employees" for this local holiday; the overwhelming majority grant options nearly identical to those the Employer proposes, or have no policy.
Having considered the evidence and arguments presented, we shall order the parties to adopt the Union’s proposal to resolve the dispute. The record establishes that "Three Kings Day" is one of the most important annual events in the Commonwealth of Puerto Rico. Consistent with this view, a substantial number of other components of the Department of Agriculture, as well as other Federal agencies in Puerto Rico (20 of 69 surveyed), grant administrative leave to their employees on January 6. Moreover, after 11 years of experience under the practice, the Employer has not identified problems significant enough to demonstrate the need for a change. While some employees already have been designated "essential" to perform necessary functions, under either party’s proposal, such measures are likely to have to be continued to ensure that the Employer’s mission is accomplished. In light of the foregoing, we are not persuaded that the practice should be discontinued.
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)