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DEPARTMENT OF JUSTICE BOARD OF IMMIGRATION APPEALS FALLS CHURCH, VIRGINIA and LOCAL 3525, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of

DEPARTMENT OF JUSTICE

BOARD OF IMMIGRATION APPEALS

FALLS CHURCH, VIRGINIA

and

LOCAL 3525, AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO

Case No. 97 FSIP 143

 

DECISION AND ORDER

    Local 3525, American Federation of Government Employees (AFGE), 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 Justice, Board of Immigration Appeals, Falls Church, Virginia (Agency or Employer).

    After the investigation of the request for assistance, the Panel determined that the dispute, which concerned parts or all of 11 articles remaining in negotiations over a successor agreement, should be resolved through an informal conference between a Panel representative and the parties.(1) If no settlement were reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. 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.

    Pursuant to the Panel's determination, Panel Representative (Staff Attorney) Gladys M. Hernandez met with the parties on January 5 and 6, 1998, at the Panel’s offices in Washington, D.C. With her assistance, the parties reached agreement on all of what remained of nine articles(2) and five of six provisions in the overtime article. At the conclusion of the meeting, the parties exchanged their final proposals on the official time article and the provision remaining in the overtime article. On January 12, pursuant to Ms. Hernandez’s request, the parties submitted written summary statements in support of their proposals on these issues. Ms. Hernandez has reported to the Panel, and it has now considered the entire record.

BACKGROUND

    The Employer has nationwide jurisdiction to consider the approximately 25,000 appeals of decisions by immigration judges that are filed annually; decisions with precedential value are published. The Union represents 160 bargaining-unit employees who work mainly as attorney-advisors, but also as paralegals, legal technicians, secretaries, and in support positions at GS-5 through -15. The parties have agreed to abide by the terms of the existing collective-bargaining agreement (CBA) which expired on November 8, 1996, until the successor is implemented.

ISSUES AT IMPASSE

    The parties disagree over: (1) the procedure for making overtime assignments to unit employees covered by the Fair Labor Standards Act (e.g., clerks and legal technicians); and (2) various official time issues, including the purposes for which Union representatives may be granted official time and a procedure for requesting official time.

POSITIONS OF THE PARTIES

1. Overtime

    a. The Employer's Position

    The Employer’s proposal is as follows:

Overtime for bargaining-unit employees will be distributed by seniority from a pool of eligible employees. Management will determine the qualifications for eligibility for the pool, including considerations of productivity and quality of work product. Management remains free to assign overtime work to nonbargaining-unit employees when it deems it appropriate.

This proposal incorporates the Union’s "suggestion" that overtime be distributed on a seniority basis, while preserving management’s rights to set the qualifications for overtime work and determine whether employees meet those qualifications. In this regard, it has the right to assign available overtime work to "those employees most likely to accomplish the necessary work well and on a timely basis." The adoption of its proposal would allow it to continue its efforts to control the amount of overtime being worked and "ensur[e]" that those employees working overtime are "productive."(3) Such efforts are necessary because, during the last 1 ½ years when workload increased substantially, it became "commonplace" for employees to work overtime, particularly in the Clerk’s Office. Even with the controls in place, 85 percent of those working in an overtime status perform the same functions during regular duty hours.

    The Union’s proposal, on the other hand, requires management to assign overtime work to specific employees, which infringes on management’s right to assign work under § 7106(a) of the Statute.(4) Specifically, the Union’s proposal denies management the right to: (1) determine the qualifications and skills necessary to perform the overtime work and which employees possess them; and (2) assign overtime work to "whomever it wishe[s]," including nonbargining-unit employees. Finally, the Union’s proposal should not be adopted because it "would result in a significant loss of efficiency."

    b. The Union's Position

    The Union proposes the following:

If a work unit (Clerk’s Office, Paralegals, Board Secretaries, [and] Legal Technicians supporting attorneys) requires overtime, it will be worked by an employee who covers that work unit during the normal tour of duty, except when a qualified employee is not available or in cases of emergency. However, nothing in this section shall be construed as precluding Management from assigning overtime work normally performed by unit employees to supervisors.

Contrary to the Employer’s argument, its proposal is substantively similar to the one found negotiable by the Federal Labor Relations Authority in American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA 663, 665 (1982)(Proposal 1) and, therefore, is negotiable. On the merits, its proposal provides a "fair" process for assigning available overtime, which is called for now that once plentiful overtime has been "drastically cut." In this regard, since employees in the same work unit perform the same tasks during regular duty hours, in the absence of any "substantiated" evidence of abuse, all should have an "equal opportunity" to perform the same tasks on overtime. Moreover, this procedure meets management’s interests in keeping overtime abusers from continuing to work overtime and "having productive work units." Finally, in earlier cases, under similar circumstances, the Panel ordered "equitable selection process[es]" such as the Union’s.(5)

    Neither the overtime assignment procedure the Employer unilaterally implemented in November 1997, nor the one it has proposed, are fair to employees who have been adversely affected by the reduction in overtime work. The November 1997 overtime assignment procedure "allows [management] to select whichever employees it wishes, without any type of fair process or legitimate justification." Since it was implemented, overtime work has been unfairly distributed, which has created a "tense [work] environment" and caused "significant problems."(6) Management’s proposal would allow it to consider productivity and quality of work product in assigning overtime. These "terms," however, are "undefined, unreasonable, and broad," and would give management complete discretion in assigning overtime; this could lead to favored employees outside work units getting overtime assignments when qualified work unit employees are available. Moreover, if productivity has been a problem with some employees, it may be because they have been spending "a disproportionate amount of time" correcting the many mistakes made by employees from outside their work units who have been assigned to perform overtime work. In any case, productivity and quality of work problems should not be addressed by denying an employee an opportunity to work overtime, but rather by putting the employee on a performance improvement plan.

CONCLUSIONS

    Upon careful review of the evidence and arguments presented by the parties, we shall order the adoption of a modified version of the Employer’s proposal. Preliminarily, we note that our decision on this issue is based solely on an assessment of the merits of the proposals. Regarding employees’ qualifications to perform overtime work, we are persuaded that, in terms of productivity and quality of work product, employees in the same work unit performing the same tasks are not necessarily equally capable. In our view, the Employer’s proposal allowing for the assignment of expensive overtime work to the more productive employees and/or those producing a higher quality work product, should make it easier for management to control overtime costs with the least possible disruption in operational efficiency and service to customers (immigrants appealing their cases). Under the Union’s proposal, on the other hand, the best workers would not necessarily be performing overtime work. This would not be financially prudent, particularly when workload has increased twofold and overtime dollars are limited. We also believe, however, that in fairness to employees and to maintain the integrity of the selection process, the Employer should be required to: (1) announce in writing the qualifications which it relied upon in determining employees’ eligibility for the overtime pool; and (2) identify in writing the qualifications lacking in an employee determined to be ineligible for the pool, if the employee submits a written request for such information. In our view, there is no reason why only the Employer should have such information. Moreover, those employees who initially are not selected for the pool should have some assurance that, if they take steps to increase their productivity and improve on the quality of their work product, their eligibility will be reconsidered. Therefore, we shall require the Employer to redetermine employees’ eligibility for the overtime pool no less than twice each year. Accordingly, we shall order the adoption of the Employer’s proposal modified in a manner consistent with the discussion provided above.

2. Official Time

    a. The Employer's Position

    Essentially, the Employer’s proposal: (1) allows Union representatives to use reasonable amounts of official time, with limits on the amounts to be used to prepare for specified proceedings (e.g., Panel proceedings, and EEOC and MSPB hearings); (2) specifies the representational duties for which official time may be used, in addition to what is already provided for under the Statute, and prohibits the use of official time for internal Union business; (3) includes an "Official Time Form" to be used by Union representatives in requesting official time; (4) requires that request forms include a "good faith estimate" of the amount of time it will take the Union representatives to perform the representational duties for which official time is being requested; (5) requires Union representatives to request official time from their supervisors "as far enough in advance as possible," make a "good faith effort"(7) to locate and get approval from their first-line or second-line supervisors before leaving the request forms on the supervisors’ desks and taking official time, and report to the approving supervisors upon their return to work; (6) requires supervisors to grant requests for official time "if workload permits and if [] in accordance with [any] applicable provisions in the contract," and notify the Union representatives of disapproved requests "as much in advance as possible so that the Union may make alternative arrangements" and, if such arrangements cannot be made, to "make an effort to reschedule work requirements, if [] not unreasonable to do so;" (7) allows Union representatives to request "additional time due to unforseen circumstances" from the supervisors who approved the original requests; and (8) grants the Union 80 hours of official time for "Union-sponsored training" per year, with no employee "normally" taking more than 20 hours per year.

    In the past, management did not track or control official time use because Union activity was at a "minimal" level. It needs to do so now because, with the growth of the organization over the last few years due to a "burgeoning" case load,(8) Union activities are on the rise and the use of official time has "apparently mushroomed." While the Union argues that it has not abused official time, there is no way of knowing whether this is true because there is no system in place for tracking official time use. It has, however, received from supervisors "anecdotal information" on Union representatives not being at their workstations and using "large amounts of official time." Also, Union activities, at times, have affected representatives’ production levels.

    To regain control of official time use, management needs a tracking system such as the one it proposes, which requires prior supervisory approval of official time use and "spell[s] out in detail" the purposes for which it may be used. With regard to the "guidelines" for use of preparation time,(9) they are "essential" because, "as highly trained, highly capable, and efficient attorneys," Union representatives are more likely than others to use large amounts of [preparation] time." The "guidelines" also: (1) would avoid disputes over what are reasonable amounts of time to prepare for the stated purposes; and (2) recognize the "importance of good preparation" to the Union without losing sight of management’s need to get appeals processed as expeditiously as possible.(10) Management "need[s] to keep employees engaged in accomplishing the [A]gency’s mission;" in this regard, it is important to get decisions issued because delay works to the detriment of those immigrants held in detention awaiting word on their appeals, and the Government, which pays all detention costs.

    The Union does not dispute that most official time requests can be made in advance. The dispute over the procedure for requesting official time, therefore, centers on those "infrequent" times when a Union representative has to immediately attend to a representational matter. In such situations, requiring Union representatives to make a good faith effort to get the approval of second-line supervisors when first-line supervisors cannot be located after similar effort "further assures that official time [is] approved before it is taken." This would permit management "to meet its responsibility to know where employees are during duty hours." On those infrequent occasions when official time requests must be denied, it is reasonable to require Union representatives to make alternative arrangements because "in most cases" there are a number of representatives who could handle "an emergency matter." As for the proposed amount of time for Union-sponsored training, it doubles what was allowed under the old contract and, therefore, should meet the Union’s needs. By limiting the hours any one representative may take, everyone should receive some labor-management training; the success of the labor-management program will depend, in part, on having all Union representatives trained and not just a selected few. Overall, its proposal meets its "interest in ensuring that official time is used only for appropriate purposes and that the amounts of time used are, in fact, reasonable" without "unduly burdening the Union or restricting it from properly engaging in representational activities."

    The Union’s proposal, on the other hand, should be "reject[ed]" because the list of representational duties for which official time may be used is so "broad" that it will "give[] the Union a blank check for [using] official time." Moreover, in providing for a "formal accounting system" (i.e., a form for requesting the use of official time), the Union has not made "a significant concession," because it had included a similar system in an earlier proposal and "Congress has made [it] clear that it expects every agency to have and use a careful accounting system."

    b. The Union's Position

    In summary, the Union’s proposal: (1) permits Union representatives to use official time "in amounts that are reasonably necessary to accomplish the [representational] purposes;" (2) identifies the representational duties for which official time may be used, in addition to what is already specifically provided for under the Statute, and confirms that the use of official time for internal Union business is prohibited; (3) includes an "Official Time Form" to be used when requesting official time; (4) requires Union representatives, in those circumstances where they could not have "reasonably submit[ted] the [request] form[s] in advance," to make a "good faith effort" to locate their supervisors before proceeding to take official time and leave the completed forms in the supervisors’ offices upon their return; (5) requires supervisors to "promptly consider" and grant a request for official time "unless the Union representative’s presence at his or her work site is necessary to meet work requirements," and "ensure that within 1 workday an alternate time will be permissible for use of official time" when the representative cannot be released as requested because of work requirements; (6) gives the Union "up to 120 hours" of official time for training per year, except in "a year in which the contract is reopened" when it will be given "up to 200 hours," and requires that such official time requests "be made at least 2 weeks in advance of the scheduled training."

    The Union requires a reasonable amount of official time to be able to perform its representational duties, which have increased because of the Agency’s growth and management-initiated changes to organizational and supervisory structures, work processes, and performance evaluation procedures. Still, the Union is not proposing an unlimited amount of official time but only the amount "reasonably necessary" to accomplish each of the listed representational duties. Its proposed provisions addressing the matters for which official time may be used and the amounts allowed to perform them are the same as in two other contracts, including one between AFSCME, Local 3719 and the Department of Justice’s "Legal Division/Office of the Solicitor." The Employer’s interest in accounting for official time would be met by the adoption of the Union’s proposal. At issue is the procedure to be followed by Union representatives in those "rare situations" where official time cannot be scheduled in advance. The Union proposes "a quick, one-step procedure" which provides "a measured response for an infrequent occurrence," whereas the Employer’s approach may take representatives longer to track down their second-line supervisors than they would have taken to accomplish the representational tasks. On the matter of official time for Union-sponsored training, 120 hours is the "minimum necessary to provide adequate training [to] officers" (Steward, President, and Financial Officer) because of "frequent turnovers" in Union leadership, particularly over the last 2 years. Also, unlike the Employer’s proposal, it would allow Union representatives to take advantage of the training offered by AFGE’s national office. Moreover, it is in both parties’ interest to have Union representatives well trained in labor-management matters, because it may "ultimately result[] in fewer hours of official time expended." In evaluating requests for official time for training "the only relevant consideration" should be whether a representative’s presence is necessary to meet workload requirements.

    The Employer has not demonstrated a need to limit the Union’s use of official time as it has proposed. In this regard, it has not provided any "data" showing that the Union has been using "significant amounts of official time;" it has based its argument on assumptions instead of evidence. In fact, over the years, the Union has not used an "inordinate" amount of official time. With regard to the time limits for preparation, they are "inadequate" for the Union to accomplish the specified tasks.(11) They are also "arbitrary" and have no objective basis. Management provides no explanation as to how it arrived at its limits; for example, it does not indicate that they represent the amount of time its representatives actually have spent on the specified tasks. In addition, its list is unacceptable because, unlike the Union’s, it leaves out "other legitimate" tasks such as "preparing for contract negotiations, preparing for [l]abor-[m]anagement meetings, and reviewing [m]anagement proposals regarding changes in working conditions." The proposed limitations are management’s "attempt [] to severely decrease the Union’s ability to represent the bargaining unit." They also are inconsistent with the intent of § 7131 of the Statute as made clear in the legislative history; in this regard, the purpose of that statutory provision is "to equalize resources and to provide labor organizations with the ability to pursue activities on official time in the same manner as management." Since the Union’s proposal allows management to collect data during the 2-year term of the successor agreement, it can propose to curb official time in negotiations for the next CBA if its use proves to be excessive. Concerning Union-sponsored training, while management may have an interest in ensuring that all representatives are trained, it is inappropriate for it to direct which of them get training by limiting the number of hours each may use. Finally, the Employer’s proposed "workload permitting" standard for releasing employees on official time should not be adopted because supervisors could create work for Union representatives to avoid having to release them.

CONCLUSIONS

    After thorough consideration of the evidence and arguments presented on the issue at impasse, we are persuaded that the Union’s proposal should be adopted. Preliminarily, we note that both parties’ proposals: (1) grant reasonable amounts of official time to Union representatives; and (2) require the use of a request form to track official time. In our view, the Union’s proposal is superior to the Employer’s because it establishes fair and reasonable controls, and there is insufficient substantial evidence to establish that its representatives have been using an excessive amount of official time or otherwise abusing it. Significantly, even assuming there has been an increase in official time in the last few years, the Employer does not argue that it was not used for legitimate representational purposes. In this regard, the record supports the conclusion that there have been numerous factors, among them, recent changes to the Agency’s organizational and supervisory structures, work processes and performance appraisal system, that may have contributed to any increase.

    With regard to the representational activities for which official time may be used, all those on the Union’s list appear to be appropriate. Once again, the evidence concerning the Union’s prior use of official time does not support the exclusion of any of the listed activities. With respect to the Employer’s most pressing concern, preparation for various representational activities, it has not demonstrated a need to limit preparation time to the extent that it has proposed; since it does not explain how it arrived at its proposed time limits, we are unable to determine whether they are reasonable. Also, its argument that Union representatives will use more preparation time than necessary because they are "highly" educated, trained, and efficient attorneys is speculative and unpersuasive; in fact, these same characteristics could result in their need for less preparation time. Concerning official time for Union-sponsored training, the number of hours which the Union proposes does not appear to be excessive in light of the turnover rate in Union leadership, and the Employer does not argue otherwise. Furthermore, the Union is in a better position to determine who among its representatives requires training.

    On the matter of a procedure for requesting use of official time in those rare circumstances that require the immediate attention of a Union representative, we are convinced that the Union’s provides a better balancing of its interest in being able to attend to representational obligations quickly, and the Employer’s in having all official time requests approved beforehand. The Employer’s proposed procedure, on the other hand, is inefficient as it may keep Union representatives away from their workstation (and the work of the Agency) for longer periods of time. As for the Union’s proposed standard for determining whether to grant official time requests, no questions or concerns were raised by the Employer, and none are apparent to us. Finally, if Union representatives cannot be released on official time when requested because of work requirements, it is reasonable for management to permit them to take the time the following workday instead of having to make alternative arrangements; this process balances management’s interest in getting the Agency’s work done and the Union’s in meeting its representational obligations. Requiring representatives to make alternative arrangements, as the Employer proposes, could be an inefficient way of handling denials of official time because it may require a number of Union representatives to interrupt their normal work to request official time. Accordingly, for the reasons provided, we shall order the parties to adopt the Union’s proposal.

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 pursuant to 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. Overtime

    The parties shall adopt the Employer’s proposal modified as follows:

Overtime for bargaining-unit employees will be distributed by seniority from a pool of eligible employees. Management will determine the qualifications for eligibility for the pool, including considerations of productivity and quality of work product. Management remains free to assign overtime work to non-bargaining-unit employees when it deems it appropriate. The Employer will announce in writing the qualifications which it relied upon in determining employees’ eligibility for the overtime pool. Upon written request from an employee determined to be ineligible for the pool, the Employer will identify in writing the qualifications he or she lacks. Management will redetermine eligibility for the pool no less than twice per year.

2. Official Time

    The parties shall adopt the Union’s proposal.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

February 6, 1998

Washington, D.C.

1.Fifteen articles were brought to the Panel but four were resolved during the investigation of the request.

2.These articles are: (1) Duration and Modification of Agreement; (2) Evaluation Information; (3) Flexiplace; (4) Hours of Work; (5) Special Work Opportunities; (6) Ridesharing and Transit Subsidies; (7) Work Committees; (8) Work Space; and (9) Rights of the Employer.

3.In November 1997, while this case was pending, the Employer unilaterally implemented an overtime policy, which is now the subject of an unfair labor practice charge.

4.In support of its position it cites American Federation of Government Employees, National Veterans Administration Council and U.S. Department of Veterans Affairs, Washington, D.C., 40 FLRA 1052, 1057-60 (1991)(Proposal 15); American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Non-appropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587, 1592-94(1987)(Provision 2); and American Federation of Government Employees, Local 32 and Office of Personnel Management, 26 FLRA 612, 617-18 (1987)(Proposal 3).

5.The Union cites Department of the Army, U.S. Army Publications Center, St. Louis, Missouri and Local 2761, American Federation of Government Employees, AFL-CIO, Case No. 87 FSIP 122 (December 2, 1987), Panel Release No. 263; and Veterans Administration, Regional Office, Newark, New Jersey and Local 2442, American Federation of Government Employees, AFL-CIO, Case No. 79 FSIP 61 (December 21, 1979), Panel Release No. 131.

6.One of the problems cited by the Union is employees not being advised of the number of overtime hours available in the various work units, nor who is working them and why.

7.At the informal conference, the parties reached an understanding that such effort “requires more than dropping by the supervisor’s office: [S]ome further effort to ascertain the supervisor’s location and contact him or her should be made.”

8.The number of Board Members has tripled and the number of attorneys and support staff has at least doubled. The number of cases filed annually has risen from 14,000 in Fiscal Year (FY) 1994 to 25,000 in FY 1997.

9.The Employer explains that the amounts of time provided for are not “set,” but rather represent “clear guidelines for appropriate and effective use of official time;” therefore, Union representatives could request additional time which would be granted if reasonable.

10.At the informal conference, the Employer’s representatives conceded that Union representatives are always well prepared.

11.Ms. Hernandez’s understanding of the Employer’s proposed limitations for preparation time is that they would apply to each case and not, as the Union indicates, to all cases in a given year.