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United States of America



In the Matter of





Case No. 05 FSIP 13


    The Department of Agriculture, Risk Management Agency, Kansas City, Missouri (Employer) and Local 858, National Federation of Federal Employees, Federal District 1, IAMAW, AFL-CIO (Union), filed a joint request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119.

    Following investigation of the request for assistance, the Panel determined that the dispute, which arises from bargaining over a pilot Telework Memorandum of Understanding (MOU), should be resolved through single written submissions. The parties also were advised that, after considering the entire record, the Panel would resolve the dispute by taking whatever action it deems appropriate, which could include the issuance of a binding decision. In accordance with the Panel's procedural determination, the parties submitted their final offers and written statements of position on December 8, 2004. The Panel has now considered the entire record.


    The Employer, a corporation under a Government charter, is essentially a re-insurance company that coordinates with private sector companies to insure crops and other commodities produced on farms. Under its plans, farmers are able to purchase insurance that covers either production or revenue. Local 858 represents a stand-alone bargaining unit of 120 employees who work as risk management and crop insurance specialists, actuaries, underwriters, statisticians, accountants, information technologists, and clerks, at grades GS-6 through -14. The parties' collective bargaining agreement (CBA) has rolled over automatically every year for the last decade.


    The parties basically disagree over what the extent of the Union's involvement should be in determining the employees and positions permitted to participate in the Telework Program.1/


1.  The Union's Position

The Union's proposal is as follows: 

Section 3 - RMA Telework Program Requirements, subsection B - Eligible Positions: The Supervisor and the Union identify position eligible for Teleworking using criteria below.2/ Section 4 - Responsibilities, subsection B - Supervisors and the Union: Supervisors shall meet with Union representatives to confer about the evaluation of positions on their area of responsibility. [Only the highlighted wording is in dispute.]

Its proposed wording would require the Union's substantive participation at the point that a supervisor is determining which positions and employees are eligible to participate in the Teleworking program. This would ensure that supervisors treat employees occupying like positions and performing like duties similarly, and ultimately that the program is administered fairly. Given that participation criteria are already contained in the Telework MOU, such joint evaluations are conducted merely to apply the agreed-upon criteria. In this regard, the "criteria for eligibility [are] so sweeping that virtually every task meets [them]." If the Employer believes "a supervisor can introduce different criteria to override the agreed to clerical procedure," it is operating under a "misconception," because only the listed criteria constitute justifications for excluding an employee.

    As to precedent for the role of Union representatives under its proposal, the parties' agreement on medical flexiplace, dated September 28, 2000, calls for joint, case-by-case review of employee applications. In like manner, the parties' CBA "stresses cooperative effort" between the Union and management. The reference in the Employer's proposal to "input from the Union," on the other hand, would not foster comparable teamwork. Finally, the Union's proposed wording in subsection 4B gives supervisors clear guidance that a Union representative's involvement in decisions on telework participation should take place at a meeting, not just through a brief conversation during a chance hallway encounter.

2.  The Employer's Position

The following is proposed by the Employer:

Section 3 - RMA Telework Program Requirements, subsection B - Eligible Positions: The Supervisor with input from the Union identifies positions eligible for Teleworking using criteria below.

Section 4 - Responsibilities, subsection B - Supervisors and the Union: Supervisors with input from the Union shall evaluate positions in their area of responsibility. [Only the highlighted wording is in dispute.]

Although each supervisor who evaluates employees' eligibility should consider the Union's input, subsection 3B appropriately ensures that management retains the discretion to make the final decisions so that the Agency's mission goals are met. To give the Union the role it proposes to "decide what work should be done where and when," by contrast, "would add a degree of uncertainty and delay into all work assignments." In addition, an examination of public sector telework agreements produced none "wherein the union and management jointly decided upon either the positions or the employees eligible for teleworking." Nor were any located "wherein management allowed the union to have any input into the decision making process." In light of that reality, the Employer "would not be adverse" if the Panel decided to omit any reference to the Union's input in this matter from the Telework MOU. It should be noted that throughout bargaining, with the exception of those areas where its wording was identical to the Union's, management made numerous concessions, but "the Union has elected to not compromise."


    Having carefully considered the evidence and arguments presented, we shall order the adoption of the Employer's proposal to resolve the dispute. In the context of this case, we are persuaded that supervisors should determine the employees who telework by applying the criteria the parties already have established. This appears to be the normal practice in the Federal sector, and is consistent with the fact that management ultimately bears the responsibility for accomplishing the Agency's mission. Under the Employer's proposal, the Union would have the opportunity to point out inconsistencies in management's application of the criteria. As is appropriate in the circumstances presented, however, if disagreements arise regarding issues of fairness and the like, such matters should be addressed through the parties' negotiated grievance procedure. The parties also have the latitude to make adjustments in the program through bargaining at the end of the initial 6-month pilot period.


    Pursuant to the authority vested in it by the Federal Service Labor Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:

    The parties shall adopt the Employer's proposal.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

December 23, 2004
Washington, D.C.

[1]/ The resolution of this issue will complete the parties' 6-month pilot Telework MOU.

[2]/ The criteria are:

Appropriate work for a flexible worksite must meet the following criteria:

  • It must be portable;

  • It must be reportable; and

  • It must be able to be completed away from the official duty station without preventing office coverage or the mission of the work unit.

Elsewhere in their Telework MOU, the parties have agreed on other requirements for participation, including permanent career status, a fully successful performance rating, that daily face-to-face contact with the public is not a part of the employee's work, etc. They also have agreed that management would evaluate the program at the end of the 6-month period using specific criteria, and that if "significant problems" arise, "the MOU may be renegotiated to address those specific issues."