DEPARTMENT OF COMMERCE INTERNATIONAL TRADE ADMINISTRATION U.S. FOREIGN COMMERCIAL SERVICE WASHINGTON, D.C. and AMERICAN FOREIGN SERVICE ASSOCIATION
United States of America
BEFORE THE FOREIGN SERVICE IMPASSE DISPUTES PANEL
In the Matter of
DEPARTMENT OF COMMERCE
AMERICAN FOREIGN SERVICE
Case No. 02 FSIDP 1
DECISION AND ORDER
The American Foreign Service Association (Union or AFSA) filed a request for assistance with the Foreign Service Impasse Disputes Panel (Panel) to consider a negotiation impasse under the Foreign Service Act of 1980 (Act), 22 U.S.C. § 1010, between it and Department of Commerce, International Trade Administration, U.S. Foreign Commercial Service, Washington, D.C. (Employer or FCS).
After investigation of the request for assistance, the Panel determined that the dispute, which concerns the amount of official time for the AFSA Vice President (VP), should be resolved through an informal conference with Panel Chairman Peter W. Tredick. The parties also were directed to provide written statements in advance of the informal conference setting forth their final offers on the issue at impasse, and supporting arguments and evidence. They were advised that if no settlement was reached during the informal conference, Chairman Tredick would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendation for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.
Pursuant to this procedural determination, the parties submitted written statements of position on November 20, 2002, and Chairman Tredick conducted an informal conference with the parties on December 11, 2002, at the Panel’s offices in Washington, D.C. At the close of the proceeding, the parties remained deadlocked over the amount of official time that the AFSA VP should be entitled to use for Union representation. Subsequent to the meeting, the parties submitted supplemental briefs and responses. Chairman Tredick has reported to the Panel, and it has considered the entire record.
The International Trade Administration (ITA) was established by the Secretary of Commerce on January 2, 1980. The ITA’s purpose was to promote world trade and to strengthen the international trade and investment position of the United States. The mission of the FCS, an activity within ITA, is to develop, produce, market, and manage an effective line of high-quality products and services geared to the marketing information needs of the U.S. export and international business community.
The Union represents approximately 236 Foreign Service (FS) bargaining-unit employees, most of whom are posted around the world. At any given time, only a few unit employees are posted in the Washington, D.C., area. The Union was certified as the exclusive representative of FCS’s FS employees on September 1, 1994, and the parties executed their first collective bargaining agreement (CBA) on December 3, 1996. The CBA had an initial term of 3 years, is automatically renewed annually unless either party gives written notice of its intent to renegotiate the agreement, and permitted the Union VP to spend up to 25 percent official time. This 25 percent figure was raised to 50 percent by a Memorandum of Understanding (MOU).(1)
ISSUE AT IMPASSE
The issue at impasse is whether the AFSA VP should be entitled to 100 percent official time, or 50 percent with the right to request more on an as-needed basis.
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposes that Article VII, Section 2 C, of the parties’ CBA be revised to state as follows: "The AFSA Vice-President shall be authorized 100-percent official time." According to the current AFSA VP’s time and attendance records, which were approved by his supervisor every 2 weeks, he used the following amounts of time to work on AFSA official business during the past 4 years: 2002 - 92.5 percent; 2001 - 98 percent; 2000 - 87.4 percent; and 1999 - 77.4 percent. When using such time, the VP performs a wide range of Union duties on a daily basis, and spends "countless hours" with management on a variety of issues affecting FCS employees. Negotiations relating to these issues "have been uniformly protracted and difficult," and have led to unfair labor practice (ULP) charges and other filings by AFSA against the Employer. Formal filings alone, however, are not an accurate reflection of the level of representational activity, nor should the size of the bargaining unit be the primary factor in determining the appropriate amount of official time for the AFSA VP. Overall, the parties’ difficult labor-management relationship "support[s] AFSA’s request for a full-time VP."
Adoption of the Union’s proposal also would ensure that the official time practices at FCS are comparable to those at most of the other FS agencies where employees are represented by AFSA. In this regard, with one minor exception, FCS is the only FS agency that does not have a full-time VP. Even the AFSA VP at the Foreign Agricultural Service, who represents approximately 163 unit employees, is on 100-percent official time. Additionally, in 1992 the Panel issued a decision under similar circumstances involving AFSA and the United States Agency for International Development (USAID).(2) In adopting a modified version of the union’s proposal granting 100-percent official time to the AFSA VP in that case, the Panel "implicitly recognized" that the FS is different from the Civil Service, with unit members spread throughout the world and "great pressure placed on the union VP to compete with his peers before promotion boards."
FCS employees currently are assigned to about 130 overseas posts and 10 domestic offices, and only three unit members, including the VP, are posted in Washington, D.C. Contrary to the Employer’s claim that other FS employees are available to assist the AFSA VP in the performance of representational duties, the VP "is the only Union official who can represent the unit." This is because AFSA representatives at FCS historically have used little or no official time, as they have had "demanding full-time duties that they must perform." The AFSA VP, on the other hand, has had to suffer the inherent "structural inadequacies" created by the fact that he must devote one half of his time to the non-union portion of the position. In an "up-or-out system" like the FS, performance appraisals based on part-time work make it impossible for an AFSA VP to be competitive with peers who are performing meaningful, career-enhancing work on a full-time basis. This is particularly true of the current VP, who has occupied the position since 1999, but was not even given a work plan until September 2002. Accordingly, its proposal also should be adopted because it would "eliminate the residual negative effect of a sparse appraisal."
2. The Employer’s Position
The Employer’s proposal is to continue the present language of the MOU between the parties, as follows:
The AFSA Vice-President shall be authorized up to 50 percent official time. Should representational duties give rise to the need for additional time, the Senior Advisor for Human Resource Development may approve a request from the Vice-president for a specific amount of official time in excess of 50 percent, if approval is in the best interests of AFSA and the US & FCS.
Among other things, adoption of the Employer’s proposal is justified because "100-percent official time is not reasonable, necessary, or in the public interest." In this regard, a bargaining unit of approximately 235 employees does not warrant a full-time representative. The Employer’s position is supported by numerous similar cases involving proportional numbers of unit employees where the Federal Service Impasses Panel "has commonly disapproved the figure of 100-percent official time." In addition, there is no merit to the Union’s argument that the unique nature of FS employment makes the AFSA VP the only member of the unit available to perform representational duties. The current AFSA VP has had the assistance of two other FS representatives who are permitted to use a reasonable amount of official time, although he "generally did not avail himself of their support."(3) Moreover, during a 7-month period in 2001 when one of the representatives filled in for the AFSA VP, the 50-percent official time allocation was exceeded in only one pay period.
Nor does the level of representational activity at FCS justify more than 50-percent official time for the AFSA VP, and such additional time as the Employer may decide to authorize. In this connection, there have only been 2 ULP charges and 3 institutional grievances filed by AFSA since 1999, and it "has represented employees in only 9 of 13 grievances filed at the Agency level during that time." In addition, no arbitration proceedings were conducted, and only one negotiability appeal was filed. At the same time, "but for one instance," the current AFSA VP has not been denied approval of official time. Not even AFSA argues that he spends 100 percent of his time on Union-related duties; according to its figures, the VP has spent varying percentages of time on Union duties, and "does not consistently put in 80 percent." There is also some question as to whether the time has been used for matters that fall within the "parameters set in the CBA." In any event, the Union has failed to demonstrate that the parties’ previous agreement has hindered the AFSA VP from executing his AFSA duties, or that its proposal for a full-time representative should be adopted.
There is no evidence to support the Union’s allegation that "a performance appraisal prepared on the half-time non-union portion of the job is, by its nature, damaging to one’s career." The CBA permits AFSA VPs up to 3 additional years of time in class before needing to be promoted or otherwise retired. Furthermore, the current AFSA VP received "Fully Successful" ratings in 2000 and 2001, and previous AFSA VPs at the FCS not only successfully returned to full-time FS positions with promotions, but also received performance-based awards during their tenure as AFSA officers. The current AFSA VP was well aware of the conditions surrounding the position in 1999 when he decided to run for Union office, and "cannot now complain" that it is per se deleterious to an FS officer’s career. As to the Union’s reliance on the Panel’s decision in USAID, that case is distinguishable from the matter at issue here. Unlike the situation at FCS, those parties were trying to negotiate their first official time agreement, and the bargaining unit was five times larger than the one here. Finally, AFSA’s proposal "does not balance the parties’ interests" in a reasonable manner. If adopted, the Employer would "completely lose the benefits" of the AFSA VP’s expertise in his field.
Having carefully reviewed the evidence and
arguments presented in support of the parties’ positions, we conclude that the
Employer’s proposal should be adopted to resolve the impasse. Under 22 U.S.C.
§ 4118(d), the amount of official time is to be "reasonable, necessary,
and in the public interest." In our view, the Union has not demonstrated
that the parties’ existing agreement has proved to be inadequate for meeting
the representational needs of the unit. There is no evidence in the record that
the AFSA VP has been prevented from providing service to the unit due to a lack
of official time, and only one instance since 1999 where a request for official
time has been denied. Given these circumstances, and the availability of
additional reasonable amounts of official time for other AFSA representatives
under Article VII, Section 2 B, of the CBA, we are not persuaded that a change
in the status quo is in order. Accordingly, we shall order the adoption
of the Employer’s proposal.(4)
Pursuant to the authority vested in it by the Foreign Service Act of 1980, 22 U.S.C. § 1010, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 22 C.F.R. § 1471.5(b), the Foreign Service Impasse Disputes Panel under its regulations, 22 C.F.R. § 1471.10(a), hereby orders the following:
The parties shall adopt the Employer’s proposal.
By direction of the Panel.
H. Joseph Schimansky
February 11, 2003
1. The relevant language of the MOU is: