ENVIRONMENTAL PROTECTION AGENCY REGION 2 NEW YORK, NEW YORK and LOCAL 3911, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
In United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
ENVIRONMENTAL PROTECTION AGENCY
NEW YORK, NEW YORK
LOCAL 3911, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 99 FSIP 69
DECISION AND ORDER
Local 3911, American Federation of Government Employees, 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 Environmental Protection Agency (EPA), Region 2, New York, New York (Employer). After investigating the request for assistance,(1) which arose as a result of the parties’ negotiations over a local supplemental collective-bargaining agreement, the Panel selected four of the issues at impasse and determined that they should be resolved through an informal conference by telephone between a Panel representative and the parties. With respect to the remaining issues, the Panel recommended, and later directed the parties, to submit them to a mediator/arbitrator of their choice for resolution. Following the teleconference, the Panel representative was to notify the Panel of the status of the dispute, with the notification to include the final offers of the parties and the representative's recommendations for resolving the matter. After considering this information, the Panel would take whatever action it deems appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to the Panel's determination, Panel Representative DiTullio conducted an informal conference by telephone with the parties on August 5, 1999, during which the parties were able to resolve only a portion of one issue concerning the performance of representational duties at Union representatives’ workstations. With respect to the remaining issues, the parties submitted their final offers and written statements of position to Ms. DiTullio, who reported to the Panel. The Panel has now considered the entire record.(2)
The Employer’s mission is to develop local programs in New York, New Jersey, Puerto Rico and the Virgin Islands for pollution abatement in the areas of air, water, solid wastes, pesticides, radiation and toxic substances, and to integrate and coordinate environmental protection activities with State and local governments. The Union represents approximately 700 employees in a mixed bargaining unit of professionals and nonprofessionals; approximately 500 employees are stationed in the Employer’s regional headquarter’s office in New York City, 130 are stationed in Edison, New Jersey, 30 in Puerto Rico, and 1 in the Virgin Islands. Typical positions are environmental scientist, environmental engineer, environmental specialist, clerk, accountant, and budget officer. The nationwide master collective-bargaining agreement (MCBA) which covers these parties was scheduled to expire in September 1997; however, it has been extended until a successor is implemented.
ISSUES AT IMPASSE
The parties disagree over: (1) official time for representational functions and Union-sponsored training, including procedures for requesting and accounting for official time usage; (2) travel expenses for Union representatives on official time; (3) Union office space; and (4) implementation of a 4/10 compressed work schedule (CWS) and credit hour plan.
1. Article 6.2, Use of Official Time
a. The Employer’s Position
In essence, the Employer proposes to grant the Union a block of official time, up to 2,080 hours per fiscal year, to be used by its representatives when performing representational duties. The Union president, and one other representative designated by the Union, would be permitted to spend up to 25 percent of their available work time performing representational functions; other Union representatives would be allowed to spend up to 20 percent of their work time on such matters. In addition, the Union would be granted up to 120 hours of official time per fiscal year for its representatives to attend Union-sponsored training determined to be of mutual benefit to the parties; requests for approval of such training would be required to be made at least 10 workdays prior to its start. Other training, such as joint training between the parties and training sponsored by other Government agencies, such as the Federal Labor Relations Authority, the Panel, the Office of Personnel Management (OPM), and the FMCS, may be approved by the Employer in addition to the block of hours for Union-sponsored training. Activities pertaining to the solicitation of Union members, election of labor organization officials, and the collection of dues, may be undertaken only when the employee is in a non-duty status and when the employee(s) being solicited also is in a non-duty status. Activities relating to the Union’s internal business matters may be conducted at the space designated to the Union by management. All official time usage in the aggregate of 1 hour would be reported by Union representatives, pursuant to the designated procedure, and any needed additional time beyond 1 hour must be requested from the supervisor in advance. Union representatives would be required to sign in and out when performing representational duties away from their workstations by using a form, maintained by the Union representative’s supervisor or designee, which indicates supervisory concurrence. In the event that a request for official time to perform representational functions away from the workstation is denied, the Union representative would receive verbal notification by his or her supervisor including the earliest time the employee would be permitted to leave the workstation to perform representational duties. A Union representative’s biweekly Report of Official Time Usage would include time spent on partnership activities.
As to the amounts of official time, a block of 2,080 hours per fiscal year for representational activities (the equivalent of one employee work year), is generous given that negotiations over a supplemental agreement are concluding and the Union is not likely to require large amounts of official time to prepare for negotiations. A block of 2,080 hours is, according to the Employer’s assessment, a 28-percent increase in the amount of official time which the Union is likely to need for representational activities, and is on par with that used by the Union during FY 1998, less the official time used in preparations for supplemental agreement negotiations. Moreover, since management anticipates that the size of the bargaining unit will remain stable, there should not be any need for a significant increase in official time for Union representational matters. Caps on the amounts of official time which may be used by certain Union representatives are necessary because the Union has a large (and growing) number of employee representatives, and they would ensure that "no one office or program bears an unduly large or disproportionate burden in terms of official time usage." Official time for training, partnership activities and negotiations would not be charged against the 2,080 hours allotted to the Union each fiscal year. Limitations on the amount of official time afforded Union representatives is necessary to stem the view held by the Union, and reflected in documented communications between the parties, that it is unequivocally entitled to any amount of official time it deems appropriate to perform representational activities, a position which is inconsistent with Congressional intent and the language of 5 U.S.C. § 7131. Granting the Union a block of official time hours would allow the Union to manage the allotment and thereby determine the appropriate amounts of official time to be used for various representational activities. As to official time for Union-sponsored training, the amount proposed represents a 50-percent increase over the current allotment. It is a reasonable amount, given the current number of Union representatives, and is in addition to official time which may be authorized for Union representatives to attend training offered through other sources.
With respect to procedures for requesting, approving and documenting official time usage, since the Employer ultimately is responsible for accounting to Congress and the OPM concerning official time used by employees in the performance of Union representational functions and partnership activities, the procedures and forms proposed by management are needed to better ensure that official time is being used properly, and recorded accurately.
b. The Union’s Position
Essentially, Union representatives would be granted "reasonable and necessary" amounts of official time to perform representational functions. Up to 600 hours of official time per fiscal year would be authorized for Union-sponsored training, with requests for official time for such training to be submitted "as early as possible prior to the start of the training." This block of hours for Union-sponsored training would exclude official time for other types of training such as joint labor-management training, partnership training, and training provided by other Government agencies on labor relations matters. A supervisor would be required to designate, in writing, the individual(s) authorized to approve requests for official time in the supervisor’s absence. Should a supervisor deny a request by a Union representative for official time to perform representational duties away from the workstation, the denial also would be in writing and include a statement establishing the earliest time when the employee would be permitted to leave the workstation to perform those duties. Union representatives would maintain their own sign-out/sign-in sheets and there would be no need for supervisors to initial them when they leave and return to their workstations. Furthermore, supervisors would not have to approve official time when Union representatives perform representational duties at their workstations. Finally, there would not be any need for Union representatives to account for partnership activities on their biweekly Report on Official Time Usage.
As to the amounts of, and accounting for, official time for representational activities, the proposed wording, essentially, reflects the status quo. Moreover, the proposal is consistent with the parties’ MCBA which provides that local Union representatives are to be authorized "necessary and reasonable" amounts of official time to perform representational functions. Comparability data show that all but two AFGE locals which represent EPA employees are afforded reasonable amounts of official time for representational activities. The Union has not sought excessive amounts of official time, nor do the parties have a history of grievances over the amounts of official time requested and used by Union representatives. Thus, there is no demonstrated need to change the current practice. Three other locals which represent EPA regional office employees have negotiated 100-percent official time for their local presidents, which is far more official time than that sought by Local 3911, even though it may have more Union activity than the other locals. The Employer cannot justify its proposal to place percentage caps on official time used by certain Union representatives since no Union representative has used more than 30 percent of his or her work time to perform representational functions, and the Employer has never contended that a representative’s work performance has suffered as a result of the amount of official time the representative has used. Moreover, management has never refused to grant a Union representative official time because of "pressing job-related need." Under the Employer’s proposal, Union representatives would be permitted to spend disproportionately less time on representational matters than their management counterparts. It is likely that the Union would need more official time than that proposed by management to address the burgeoning number of representational matters generated by management. Thus, an authorization of "reasonable and necessary" amounts of official time would give Union representatives the opportunity to receive sufficient official time to respond to an increasing number of representational matters.
As to official time for Union-sponsored training, the current allotment of 80 hours of official time per fiscal year is woefully inadequate; this fiscal year, three Union representatives took annual leave to attend training sessions because the Employer was unwilling to authorize a sufficient amount of official time. Because the turnover rate among Union representatives is high, the Union needs a significantly larger amount of official time to train new representatives. While the proposals would not give Union representatives the opportunity to receive as much training in labor relations matters as do Employer representatives, it would represent a significant improvement over the paltry amount of official time currently authorized for Union-sponsored training. The legislative history of 5 U.S.C. § 7131(d) indicates Congressional concern over equalizing the resources for and ability of labor organization representatives to pursue activities on official time in the same manner as management. The proposal would further this Congressional objective as well as the objective espoused by higher agency management that systematic training in labor-management relations matters should be provided to both parties. Finally, it supports FLRA’s pronouncement that union-sponsored training is of mutual benefit to parties and in the public interest.
It is unnecessary to include the provision proposed by management that internal Union business activities, such as attendance at Union meetings, solicitation of membership, and elections of officers be performed when both the soliciting employee and the employee being solicited are in a non-duty status. Arguably, such a provision would eliminate the Union’s ability to communicate with employees via e-mail and desk drop, as the Union cannot guarantee that employees being solicited would be in a non-duty status when reading e-mails or desk drop materials that relate to internal Union business matters. This issue relates more to how the Union communicates with employees than official time and, therefore, is more appropriate for inclusion in Article 11.1 "Use of Employer Facilities," which the Panel has ordered the parties to submit to a private mediator/arbitrator. Management’s proposal to limit the internal business activities of the Union to locations it designates should not be adopted because it could prevent the conducting of membership drives on the Employer’s premises, thereby severely limiting the Union’s ability to be a viable entity among the workforce. Moreover, it would tend to interfere with employee rights under 5 U.S.C. § 7102 to form, join or assist a labor organization, rights which labor organizations cannot legally waive. This issue has more to do with the use of Employer facilities than official time and, therefore, should not be addressed by the Panel in the official time article. Rather, it too should be considered by a private mediator/arbitrator under Article 11.1.
As to the Employer’s proposal that official time used by a Union representative to perform representational functions at his or her workplace be requested and approved in advance, such wording would be contrary to Article 6, Section 4, of the MCBA, which, indicates that advance notification and approval of official time usage is necessary only when the representative must leave the worksite to perform representational duties. No evidence has been provided by the Employer that the current practice of allowing employees to perform representational duties at their workstations without advance notification and supervisory approval is disruptive to agency operations. There have not been any grievances or unfair labor practice charges over this matter, suggesting that problems do not exist; therefore, the Employer has failed to demonstrate the need for a change. Moreover, supervisors, who are frequently in meetings, have no interest in being interrupted by Union representatives to request official time. Supervisors should designate, in writing, their alternates for approving official time requests to ensure that both parties have a clear understanding who the Union representative should contact in the supervisor’s absence. When a supervisor refuses to allow a Union representative to leave the workstation to perform representational duties the supervisor should state, in writing, the earliest possible date and time when the request would be granted to dissuade a supervisor from unnecessarily restricting a Union representative from performing representational functions. Furthermore, a written record may be needed in the event the Union files a grievance over the denial of official time.
Union representatives should retain their sign-out/sign-in sheets, and supervisors should not have to co-sign them, every time representational duties require that they leave their workstations. Such requirements would not only be burdensome for the Union representative who would have to "track down" the supervisor for the form, but also disruptive to the supervisor who, more often than not, may be in a meeting, and would not welcome the interruption. Moreover, a requirement that the supervisor initial off on the sign-out/sign-in sheet, as proposed by the Employer, serves no useful purpose since the supervisor also must certify the Union representative’s time card, which reflects when and how much official time has been used. Finally, time spent by Union representatives on partnership activities should not be recorded on the "Report of Official Time Usage" since those activities are not charged as official time hours.
Having carefully examined the evidence and arguments presented on the issues dividing the parties in this article, we are persuaded that the impasse should be resolved on the basis of a compromise which balances the legitimate interests of both sides. On the key issue of the amount of official time for Union representatives to perform representational duties, we are persuaded that the parties should retain the current practice, as captured in the Union’s proposal for "reasonable and necessary" amounts of official time. In our view, there is no demonstrated need to change the practice. In this regard, the parties do not have a history of grievances over official time usage, nor is there evidence that Union representatives have attempted to utilize excessive amounts of official time, or that a Union representative’s work performance has suffered as a result of the amount of official time the representative has used. Since the parties disagree over whether official time usage is likely to increase now that negotiations over a local supplemental agreement have concluded, a provision which authorizes reasonable amounts of official time for representational duties, rather than a block of hours with usage caps on certain Union representatives, is more likely to provide flexibility if the amount of such duties increases. Moreover, providing local Union representatives with reasonable amounts of official time is consistent with the parties’ MCBA and appears to be the practice among the majority of AFGE locals which represent EPA employees. As to official time for Union-sponsored training, the record does not support the substantial increase of up to 600 hours per fiscal year sought by the Union. However, we believe that some adjustment, as reflected by the Employer’s offer to increase by 50-percent the currently authorized amount, is warranted, particularly to allow for the training of new Union representatives. Additionally, the Employer’s proposal does not foreclose Union representatives from receiving official time to attend training sessions on labor-management matters offered through other sources which may be beneficial in the performance of representational duties.
In regard to procedures for requesting and approving official time, we shall order the parties to adopt the Employer’s provisions, including management’s proposal for a sign/out-sign/in sheet, and a Biweekly Report of Official Time Usage. In our opinion, the procedures proposed by the Employer should better enable it to fulfill its responsibilities in accounting for the amount of official time used, which may include reports to the OPM and responses to Congressional inquiries, and in ensuring that it is used appropriately. We shall modify the Employer’s provisions on procedures for approving official time, however, to require supervisors to designate, in writing, their alternates for approving official time requests (including permission to leave the workstation to perform representational duties), and for a supervisor or alternate also to state, in writing, when a request for official time is denied, the earliest time when the employee would be authorized official time. Requiring a written designation of the chain of command for approving official time requests should help Union representatives avoid any uncertainty as to how to proceed when a supervisor is unavailable to approve a request for official time. Moreover, a written statement from a supervisor, or alternate, which specifies the reason for the denial of official time and when the Union representative could expect to have it approved may help avoid arbitrary denials by creating a written record. This requirement should not be burdensome on the Employer given that there does not appear to be a pattern of denials of official time requests. Finally, we have determined that the Employer’s proposal concerning the use of agency facilities for activities relating to the internal business of the labor organization shall be included under Article 11.1, Use of Employer Facilities, which the Panel has ordered the parties to submit for resolution to a mediator/arbitrator of their choice.
2. Article 11.1, Travel Expenses
a. The Employer’s Position
Reimbursement of travel expenses relating to the performance of Union representational duties would be limited to travel by Union officials between Edison, New Jersey, and New York City, to attend Regional Partnership Council meetings and joint labor-management training. The Employer would consider paying for other travel expenses incurred by Union representatives, on a case-by-case basis, if it determined that the training was to the mutual benefit of the parties. Such requests would have to specify in writing the justification for the travel, and be submitted to management’s designated representative at least 10 workdays prior to the proposed travel date. The Employer would determine the mode of travel and all authorized travel would be subject to the Federal Travel Regulations (FTRs) and agency-wide travel policies in effect at the time of the travel.
While the Union has a right to choose which representatives are to handle various representational matters, the Employer should not be saddled with the travel expenses relating to such decisions. Since the Union has representatives on site at the New York City and Edison offices, there should be very little need for others to travel beyond their duty locations to perform representational functions. Payment of such travel expenses is not an entitlement, as the Union seems to believe. Restrictions are needed because there are bargaining-unit members in Puerto Rico and the Virgin islands, and it could become costly for the Employer to absorb travel expenses arising from travel to those locations. The Employer remains open, on a case-by-case basis, to paying for other travel under certain circumstances.
b. The Union’s Position
Except for travel relating to Union-sponsored training, the Employer would pay the travel expenses of Union representatives performing representational duties in accordance with the FTRs and agency-wide travel policies in effect at the time of the trip. The Employer also would pay the travel expenses for Union representatives to attend Partnership Council meetings and joint labor-management meetings.
The Union does not have the financial resources to pay for travel by its officials on representational matters because its funds are being depleted by having to defend itself against Employer-filed grievances. The Union recently acquired bargaining-unit members in Puerto Rico and the Virgin Islands, and financial constraints may prevent its representatives stationed in the New York City office from traveling to those locations if the need should arise. The Employer, on the other hand, has resources to pay for the travel of management representatives to attend arbitration proceedings scheduled at any location within Region 2. This could result in employees not receiving the best representation. In addition, paying for the Union’s travel expenses would be in the Employer’s interest because it would be assured of having the best representatives involved in the proceedings.
Having considered the parties’ arguments over travel expenses, we find that the Employer’s proposal provides the more reasonable approach. In our view, the Union’s proposal would be potentially costly for the Employer, who would have no opportunity for input concerning the Union’s decision to have representatives travel outside of their duty locations to conduct representational matters in a geographically dispersed bargaining unit. Thus, the Union would have total discretion to determine whether travel by a particular Union representative is necessary, and then have the Employer pay for the travel expenses incurred. The likely effect would be to discourage the Union from having on-site representatives at the Employer’s satellite offices in Edison, New Jersey, Puerto Rico, and the Virgin Islands, and from training representatives in those offices on representational matters. Accordingly, we shall order the adoption of the Employer’s proposal.
3. Article 11.5, Union Office Space and Use of Space
a. The Employer’s Position
At the New York City office, the Union would retain the use of its current office space measuring 9' x 12', and be afforded priority use of the adjacent conference room. It would follow the host division’s procedures for reserving the conference room for representational matters, negotiations, and partnership activities. In lieu of a Union office at the Edison, New Jersey, facility, the Employer would make available to the Union a conference room on Tuesdays from 9 to 11 a.m., and Thursdays from 1 to 3 p.m. Should an unusual circumstance arise which requires private meeting space outside the designated days and hours, the Union may submit a written request (e.g. by e-mail) to management’s representative along with enough information to allow management to make an informed decision as to whether the requested use of agency facilities would be appropriate.
With respect to the New York City office, the proposal reflects the current practice as to the size of the Union office and priority use of the adjacent conference room. Moreover, it is consistent with a Region-wide practice that conference room space be shared and not given over to the exclusive use of one division/group. Comparability data show that the proposed arrangements for the Union are better than those enjoyed by AFGE locals which represent employees in other regions. Moreover, no other regions with satellite offices provide exclusive representatives with separate office space in those locations. Since 75 percent of bargaining-unit employees are in the New York City office, that is where the Union should have permanent office space. In Puerto Rico, Union office space, or even standing office hours, is not feasible, since space is extremely limited and, given the small number of bargaining-unit employees involved, unnecessary. Should the Union need space for a private meeting at the Puerto Rico facility, it should notify the Employer’s designated representative.
b. The Union’s Position
At the New York City facility, the Union office would remain in Room 2835, and the Union would have exclusive use of the adjacent conference room. At the Edison, New Jersey, and Puerto Rico facilities, the Union would be permitted to reserve conference rooms, with reservation requests to be made through individuals in charge of conference room logs. The Employer would retain the right to preempt the use of conference rooms for official agency business; in such event, the Employer would provide the Union with comparable conference space for its meeting. The Employer also would provide the Union with lockable four-drawer filing cabinets at the Edison and Puerto Rico facilities.
Its proposal reflects the practice at the New York City facility. Although, officially, the Union only has had priority use of the conference room adjacent to the Union office, the practice has become one of exclusive use; the Union is amenable to allowing other EPA employees to use the conference room when the Union has no need for it. The adoption of the part of the proposal concerning space for the Union in the Edison and Puerto Rico offices is necessary to rectify the current situation, notably in Edison, where Union representatives and employees are afforded no privacy during meetings, and the Union representative uses a public telephone booth, works out of his car, and meets with employees at a picnic table. Furthermore, the proposal would allow Union representatives to reserve conference rooms in the same manner as other employees and non-work groups, thereby eliminating the current discriminatory treatment of the Union. In this regard, Union attempts to reserve conference room space have been overly scrutinized by management and, unlike other employees, Union representatives are required to submit a reservation request 2 days in advance, and are limited to one conference room reservation a week.
We are persuaded that the parties’ dispute over space for Union representatives to perform their representational duties should be resolved on the basis of the Union’s proposal. At the New York City facility, it appears undisputed that the Union has enjoyed exclusive use of the conference room adjacent to the Union office. We see no need for discontinuing the practice, particularly when there is no evidence of a shortage of conference room space at the facility, or that the Employer has had to preempt, for other purposes, the Union’s use of the conference room. At the Edison and Puerto Rico facilities, where there is evidence of a shortage of space, we are persuaded of the reasonableness of the Union’s proposal, which would merely give it equal standing with employees and groups to reserve conference room space at those facilities. Under the Employer’s proposal, on the other hand, it would determine the days and hours during which space would be available to meet with bargaining-unit employees at the Edison facility. We believe this would be overly intrusive in Union representational activities.
4. Article 22.2, Credit Hours and Flexible and Compressed Work Schedules
a. The Employer’s Position
The current flexitour schedule, where employees work an 8½ hour tour of duty starting as early as 7 a.m. and ending by 6 p.m., and have a 5-4/9 CWS option, would be continued with no additional work schedule alternatives available to employees at this time. Over 80 percent of bargaining-unit employees work under a 5-4/9 CWS and, with flexitour, employees already have significant flexibility in their work schedules. Additionally, in November 1998, approximately 135 bargaining-unit employees began working under a nationally negotiated flexiplace program. Management needs time to absorb the impact of these varied work schedules before adding more to the mix. Currently, one-third of the workforce is absent on Fridays as a result of alternative and flexiplace work schedules; a 4/10 CWS and credit hour plan proposed by the Union would only add to the number absent on that day. Thus, the Employer’s ability to perform its mission and meet customer service standards may be jeopardized if employees are given even greater flexibility in their workhours. Furthermore, experience with a pilot 4/10 CWS approximately 20 years ago, before the implementation of the Federal Employees Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. § 6120 et seq., was not positive. The test did not result in the permanent implementation of a 4/10 CWS because employees reported that the longer workday, combined with extended commutes, resulted in fatigue, and supervisors reported diminished productivity. Another test is likely to produce the same results. Furthermore, in the last few years, the number of supervisors has been reduced by half and, therefore, supervisory coverage in the workplace may be further diminished by the addition of the two new work schedules proposed by the Union. Moreover, since June 2, 1999, the agency has been under a hiring freeze in anticipation of a significant budget shortfall in FY 2000. Thus, employees who leave cannot be replaced, and office coverage is becoming a problem as the freeze continues. A 4/10 CWS is likely to exacerbate this difficulty since an employee would be absent 2 days every pay period under such a schedule. Finally, implementation of a 4/10 CWS and credit hours plan is more appropriate for resolution at the national level because EPA intends to place a 4/10 CWS and credit hour plan on the table during master-agreement bargaining; in light of this, the parties at the local level should maintain the status quo.
b. The Union’s Position
In addition to flexitour and a 5-4/9 CWS, employees would be given the option of working under a 4/10 CWS and a credit hour plan for a test period of 1 year. At the expiration of the test period, these schedules would remain in effect unless both parties mutually agree to their discontinuance. Employees working under a 4/10 CWS would not be permitted to begin work prior to 6 a.m. or end after 6 p.m. With prior supervisory approval, employees could earn up to 3 credit hours per day which could be accrued and used in 1/4-hour increments.
Testing these options for a 1-year period would be in the parties’ best interest to determine the feasibility of permanently implementing a 4/10 CWS and/or a credit hour plan. Currently, there is only speculation and no hard evidence as to whether a 4/10 CWS would work on a long-term basis. The Employer has acknowledged that there is no documentary evidence available concerning the results of the pilot 4/10 CWS conducted 20 years ago and, therefore, its conclusions as to why the program was not continued amounts to nothing more than guess work. Contrary to the Employer’s view, credit hours and a 4/10 CWS are appropriate matters for local-level negotiations since there is no agreement with EPA to elevate these matters to the national level. Safeguards are built-in to the proposal which would give the Employer discretion to allow an employee to work under a 4/10 CWS, or authorize the earning of credit hours. Supervisors also would maintain the ability to limit the use of any alternative work schedule if office coverage becomes a concern. Comparability data show that one other AFGE local which represents EPA regional office employees has negotiated a credit hour plan, and employees at EPA’s Ann Arbor Laboratory, who are represented by AFGE, are permitted in some areas to work a 4/10 CWS. EPA employees who are represented by other unions (NTEU Chapter 279, in Edison, New Jersey) or are unrepresented (EPA Region 10 and the EPA’s Office of the Inspector General) are permitted the option of working under a 4/10 CWS and/or credit hour plan.
Adding a 4/10 schedule and credit hour plan to employee work-CWS options would promote flexibility in workhours, which is an "absolute necessity in today’s world." Furthermore, since Federal employees do not earn the salaries of their private sector counterparts, they should be given the benefit of more flexibility in their work schedules. A Union survey concerning employee work schedules shows significant employee interest in being able to work under a 4/10 CWS or credit hour plan. Moreover, the new schedules proposed would be of political and economic benefit to EPA which promotes "green programs," i.e., those which protect the environment and reduce pollution. The agency has implemented flexiplace as a "green program" and a 4/10 CWS and credit hour plan would foster the policy as well. Finally, the new schedules may serve to reduce the amount of overtime and compensatory time requested by employees, as well as sick and annual leave usage.
Having considered the evidence and arguments offered by the parties, we have determined that the dispute over work schedules should be resolved on the basis of a compromise solution. With respect to flexitour and a 5-4/9 CWS, we shall order the parties to adopt the Employer’s proposal which apparently reflects the current practice as to those work schedules. There is no need demonstrated in the record to alter those programs, nor have the parties offered any evidence or argument that the current practices for requesting and approving flexitour or 5-4/9 schedules for employees are flawed. As to the Union’s proposal that the parties test, for a limited period of time, a 4/10 CWS and credit hour plan, we conclude that a pilot program should be implemented so the parties may determine the feasibility of implementing either or both of those programs on a long-term basis. Although the Employer argues that there is no need to add two more work schedule options to the current panoply available to employees because it may be difficult for management to administer a wide variety of work schedules, particularly in the midst of a hiring freeze, in our view the Employer’s position is based upon speculation and unsupported by evidence. We believe that a test of a 4/10 CWS and credit hour plan is warranted where, as here, the actual effect of the proposed work schedules is unknown and the predicted effects fall short of establishing that the schedules would have an adverse impact on agency operations. Therefore, we shall order the parties to implement a pilot program, as proposed by the Union, modified to reduce the test period to 6 months. During the test period, the parties should be able to gather sufficient evidence to establish whether either or both schedules should be permanently implemented, modified, or terminated.(3) Furthermore, the parties shall be directed to continue the two schedules during any reopener negotiations that may occur.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the parties’ failure to resolve their dispute 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 following:
1. Article 6.2, Use of Official Time
The parties shall adopt the following wording:
The Employer agrees to grant a reasonable and necessary amount of official time to be used by Union representatives (hereinafter when ever the term "Union representative" appears in this document it is understood that it refers to Union officials/stewards/designated representatives) for the performance of their authorized representational duties.
Union participation in the Partnership Council will not be charged as representational time discussed above.
Any employee representing an exclusive representative in the negotiation of a collective-bargaining agreement shall be authorized official time for such purposes including attendance at impasse proceedings, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized shall not exceed the number of individuals designated as representing the agency for such purposes.
In the spirit of an effective and cooperative labor-management relationship, the Employer agrees to grant a total of up to 120 hours per fiscal year which the Union may draw on to attend Union-sponsored training. In order for official time to be approved, the training must be deemed to be of mutual benefit to the Union and the Employer. Requests for official time to attend union-sponsored training must be submitted to the Employer’s designated representative no later than 10 workdays prior to the start of the training and must be accompanied by sufficient documentation to permit an evaluation of the training course. It is understood that the expenses (travel, per diem, fees) are the responsibility of the Union. It is further understood that a request for official time to attend union-sponsored training will be evaluated in terms of workload requirements. Management may disallow attendance at particular sessions if workload requires the representatives’s presence in the workplace. This block of hours excludes joint training sessions between AFGE and EPA Region 2 and other approved training sponsored by other Government entities such as FLRA, FMCS, FSIP and OPM.
Any activities performed by any employee relating to the internal business of a labor organization (including attendance at Union meetings, the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a non-duty status and then the employees being solicited also are in a non-duty status.
Union representatives will adhere to the following procedures when requesting and using official time:
A. Union representatives may use brief periods of official time to perform representational duties at their workstations. Union representatives shall conduct representational duties at their workstations in a manner that avoids disruption of Agency operations. All official time usage in the aggregate of 1 hour shall be reported by Union representatives pursuant to the designated procedure. Any needed additional time beyond 1 hour must be requested from the supervisor in advance.
B. When it is necessary for a Union representative to leave his/her workstation to perform an official Union duty, the representative will notify the supervisor or an appropriate authority who has been designated, in writing, by the supervisor. The representative will provide the time of departure from the worksite, estimated time of return, and the telephone number and location where the employee may be reached.
C. Permission to leave the work site shall be granted unless the representatives’s absence would substantially interfere with the accomplishment of a time-sensitive assignment or project, in which case the representative will by informed, in writing, by the supervisor of the reason for denying the request and the earliest time he/she will be permitted to leave the work site. The employee will report to the supervisor or an appropriate authority, as designed in writing by the supervisor, upon return to the worksite.
D. All use of official time away from the workstation will be recorded by the Union representative on EPA Region 2 Form LMR-2 (8/99), "Sign-out/Sign-in Sheet" maintained by the supervisor or an appropriate authority as designated by the supervisor in writing. The Union representative will record the time of departure and time of return.
All use of official time will be reported by the Union representative using the following procedure:
By no later than the second workday following the end of each pay period, each Union representative will submit EPA Region 2 LMR Form 1 (8/99), Report of Official Time Usage, to the timekeeper. The report will include the amount of time used each workday in accordance with the categories specified on LMR Form 1. In the event that the Union representative will be on leave on the due date, he/she will submit the report on the second workday of return.
Upon entering into this agreement, the Union will submit in writing to the Employer’s designated representative a list of all officers, designated stewards and other Union representatives who use official time, and will submit changes to the list within the pay period they occur.
In accordance with the Panel’s procedural directive to the parties dated July 28, 1999, they shall submit to a private mediator/arbitrator their dispute over where activities relating to the internal business of the Union may be conducted.
2. Article 11.1, Travel Expenses
The parties shall adopt the Employer’s proposal.
3. Article 11.5, Union Office Space and Use of Space
The parties shall adopt the Union’s proposal.
4. Article 22.2, Flexible and Compressed Work Schedules
The parties shall adopt a compromise consisting of the Employer’s wording with respect to flexitour and a 5-4/9 CWS; and the Union’s proposal for a test program for a 4/10 CWS and credit hour plan, modified to require a test period of 6 months, with the schedules to remain in place should the parties reopen their negotiations to determine whether the 4/10 CWS and credit hour plan should continue to be implemented as tested, modified or terminated.
By direction of the Panel.
H. Joseph Schimansky
September 30, 1999
1.During the Panel’s initial investigation into the request for assistance, Panel Representative (Staff Attorney) Donna M. DiTullio met with the parties and Federal Mediation and Conciliation Service (FMCS) Commissioner Carlos Tatte, at the Employer’s offices in New York City for the purpose of assisting the parties in reaching a voluntary settlement by, among other things, addressing any jurisdictional questions. Thereafter, the parties continued the meeting th