DEPARTMENT OF ENERGY OAK RIDGE, TENNESSEE and LOCAL 268, OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, AFL-CIO

      Local 268, Office and Professional Employees International Union, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute between it and the Department of Energy, Oak Ridge, Tennessee (Employer). After investigation of the request for assistance, which involves a ground rule to govern caucuses during negotiations for a successor collective bargaining agreement (CBA),⁽¹⁾ the Panel asserted jurisdiction and directed the parties to expedited arbitration⁽²⁾ by telephone with the undersigned.

      Accordingly, on October 29, 1998, I conducted an arbitration hearing by telephone with the parties’ representatives. Each side presented oral testimony and arguments in support of its position. During the course of the day, by facsimile transmission, the Employer provided copies of two arbitration awards by Panel-appointed arbitrators and a Federal Labor Relations Authority (FLRA) case; the Union provided the written statement of Mr. Gary Mai and a copy of a ground rules agreement. I have considered the entire record, including the parties’ submissions, which is now closed.

    The Employer enters into contracts with providers for the research, development, testing, production, environmental restoration, and waste management of energy and nuclear weapons. The Office of Scientific Technological Information (OSTI) manages a centralized collection system for the Department’s scientific and technical energy data. The Oak Ridge Operations (ORO) office administers and oversees contracts between the Employer and private contractors who operate three facilities at Oak Ridge and four locations in neighboring states. The Union represents approximately 430 bargaining-unit employees at both OSTI and ORO, who work as physical scientists, engineers, accountants, budget officers, and secretaries. The parties’ CBA will remain in effect until they implement the new agreement.

    The dispute essentially concerns time limits on the duration of caucus sessions.

1. The Employer’s Position

    The Employer proposes the following wording:

Either party may call caucuses at any time. Normally, caucuses shall not exceed 30 minutes unless longer periods of time are agreed to by both parties. If the issues regarding the proposals cannot be resolved within the agreed upon caucus time, the proposal will be set aside. Additionally, up to a total of 20 hours of official time is authorized for the Union negotiators to prepare counter proposals including necessary research - these 20 hours may be divided between the five negotiators as the Union may determine.

The Union has submitted some 200 proposals for the successor CBA and management over 70. A limit on caucus time is reasonable to keep the parties at the bargaining table to deal with these numerous issues. In the past, the Union has used extensive caucus time, 2 to 3 hours per caucus request. On one occasion, after waiting for a long time, it was discovered that the Union had left a caucus to go to lunch without informing management. In 1994 and 1995, the parties took 5 to 6 months to negotiate only five articles for the 1995 successor agreement; one cause of delay in those negotiations was the protracted Union caucuses. In view of this pattern, the proposed limit, with the opportunity to extend caucuses by mutual agreement, will help move negotiations forward more quickly and efficiently. If items are set aside, they may be taken up again, either sooner when a party indicates its readiness to discuss them or at the end of negotiations.

    The limits sought here are similar to those in a ground rules agreement between parties at the Department of the Interior. Furthermore, previous Panel decisions adopted proposals that imposed limits on caucus time during contract bargaining.⁽³⁾ In addition, a decision by the FLRA makes it clear that amounts of official time granted for the preparation of proposals are subject to the outcome of bargaining.⁽⁴⁾

2. The Union’s Position

    The Union’s proposal is as follows:

Caucus time will be reasonable in length. The party requesting the caucus will inform the other party of the approximate time needed (for the caucus). If the caucusing party needs additional time, the other party will be informed of additional time needed to fully debate and discuss the issue. Either party needing less time will inform the other party of its intent to return to the bargaining table earlier.

The proposal recognizes that each party should determine the length of their own caucuses based on the time needed to develop counter proposals, review and understand Office of Personnel Management and Department of Energy regulations referenced in proposals, consult with advisors, and discuss relevant experiences of Union team members. The proposal also meets the Employer’s need to be kept informed about the length of Union caucuses on an issue. Furthermore, it is consistent with the definition of reasonable time in the parties’ collective bargaining agreement which reads:

[T]hat period of time necessary to accomplish representational obligations established by the terms and provisions of this Agreement.

    During previous negotiations, the Union’s representatives have not abused caucus periods. Recently, for example, the parties were successful in reaching agreement on a new performance management system without incident. Although the Employer has filed a number of unfair labor practice charges and at least one grievance against the Union, none have concerned abuse of official time or caucus time. Furthermore, no grievance has been filed based on the reasonable time provision in the contract. If, in a previous instance, the Employer was not informed about the team’s going directly from a caucus break to lunch, it was because the team was unable to locate management to inform them of the change in plan. The Employer has been known to take 4 hour caucuses. As to the 1995 negotiations, since there were breaks in bargaining, it would be more accurate to conclude it lasted only 3 to 4 weeks. Under the current circumstances, the Union has no wish to prolong negotiations because it is the party seeking to change the CBA, nor do union team members have unlimited time to devote to contract negotiations.

    Regarding comparable ground rules agreements between other parties either at the Department of Energy or elsewhere, the Union is not aware of any such agreement that imposes limits on the length of caucuses. For example, paragraph 5 of the ground rules agreement between the Bonneville Power Administration and Laborer’s Union Local 335 sets out a bargaining schedule and, in relevant part, reads: "Caucuses may be called at any time unilaterally by either party’s chief spokesperson."⁽⁵⁾ The arbitration awards the Employer references are irrelevant to this case because they primarily address preparation time which is distinguishable from caucus time. A caucus occurs during negotiations; results of a caucus can be brought immediately to the bargaining table to move the parties closer to agreement. Preparation time, by contrast, is taken at an earlier or later time when access to the bargaining table is not immediate.

    With respect to the effect of an arbitrary caucus time limit, breaking caucuses at "the wrong point" is inefficient because work is prematurely interrupted when a few more minutes might result in a resolution. When, as under the Employer’s proposal, those issues set aside ar