FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. and NATIONAL TREASURY EMPLOYEES UNION
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
FEDERAL COMMUNICATIONS COMMISSION
NATIONAL TREASURY EMPLOYEES UNION
Case No. 96 FSIP 86
DECISION AND ORDER
The National Treasury Employees Union (Union or NTEU) 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 Federal Communications Commission, Washington, D.C. (Employer or FCC).
After investigation of the request for assistance concerning negotiations over a successor collective bargaining agreement (CBA), the Panel directed the parties to participate in an informal conference with Panel Representative (Staff Attorney) Ellen J. Kolansky for the purpose of resolving the outstanding issues. The parties were advised that if no settlement were reached, Mrs. Kolansky would report to the Panel on the status of the dispute, including the parties' final offers and her recommendations for resolving the issues. 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.
Accordingly, Mrs. Kolansky met with the parties on August 26 through 28, 1996, at the Panel’s offices. Although a settlement was reached on approximately 28 issues, 2 remain unresolved. She has reported to the Panel based on the record developed by the parties, and the Panel has now considered the entire record.
The Employer regulates interstate and international communications by radio, television, wire, satellite, and cable. The National Treasury Employees Union is the exclusive representative of 1,520 bargaining-unit employees in 2 nationwide, consolidated units. Employees in the nonprofessional unit work as office automation assistants, engineering and accounting technicians, communication industry analysts, and telecommunication and paralegal specialists; employees in the professional unit work as attorneys, engineers, economists, and accountants. Most employees are located in Washington, D.C., although the agency maintains 30 field locations in 6 regions. The CBA, the parties’ third such agreement, expired on May 29, 1993, but continues to govern conditions of employment until the successor is implemented.
ISSUES AT IMPASSE
The parties are at impasse over: (1) a transit subsidy program and (2) official time for lobbying.
POSITIONS OF THE PARTIES
1. Transit Subsidy Program
a. The Union’s Position
The Union essentially proposes that the parties conduct a survey to determine bargaining-unit employees’ commuting patterns and preferences. Eligible employees desiring to participate in the program would receive $30 in "fare media" per month towards defraying the cost of public transportation between their homes and the workplace; van and carpoolers who do not benefit from Government-subsidized parking also could participate. Procedures are provided for initiating and discontinuing participation; participants would be required to recertify their eligibility every month.
Consistent with the intent of Congress, establishing a transit subsidy program would encourage the many bargaining-unit employees who currently drive to switch to public transportation or van and car pools. With respect to the affordability of the program, the number of generous awards given to higher level management suggests that monies can be found to cover transit subsidies; the parties should be able to deal with issues of affordability together. Other Federal agencies, including the Federal Mediation and Conciliation Service, the Bureau of the Debt, the Customs Service, the Department of Health and Human Services, the Patent and Trademark Office, and the National Institutes of Health, currently provide this benefit to their employees. Finally, under the Employer’s proposal, it is uncertain whether the parties would ever complete negotiations for a subsidy program; efforts in this direction have been ongoing for over 5 years.
b. The Employer’s Position
Basically, the Employer proposes that a joint labor-management work group be established and convened within 90 days of the effective date of the contract to develop a survey of employee interest in a transit subsidy. The group would issue a report on the results of the study which would serve as a basis for developing cost estimates of the program. Within 10 days of the issuance of the report, or if the report was not issued within that period, the Union could request negotiations over a pilot transit subsidy program.
As part of the successor CBA, the Employer already is committed to establishing a $155,000 pilot flexiplace program that supports the same family-friendly and traffic-reducing ends as would a transit subsidy program. In light of this sizeable commitment, adding a transit subsidy program without further study of the costs would place an excessive burden on this moderate-sized agency.(1) That Congress made the program optional and appropriated no funds underscores the need for careful study. Unfortunately, funding for the subsidy might have to be siphoned from training and awards programs. Another drawback is that such programs pose inherent inequities: (1) employees who already use public transportation to commute would receive a windfall and (2) employees who travel short distances to work likely would receive a subsidy that covers the full cost of commuting while employees who travel longer distances might receive a subsidy that covers only a fractional amount of their costs. A final concern is that the availability of marketable fare media might foster unauthorized, fraudulent secondary sales by employees.
Having considered the arguments and evidence presented, we conclude that the parties should adopt a compromise provision consisting of the Union’s proposal plus wording to indicate that: (1) the program is to be a 1-year pilot; (2) the parties are to establish jointly appropriate time frames for ministerial aspects of the program; and (3) a 90-day negotiation period, during which employees will continue to receive the subsidy, is to follow immediately after the pilot period ends. At this juncture, we are persuaded that further negotiations prior to testing the program, as the Employer proposes, would ignore the bargaining which already has occurred and mainly result in delay. In addition, although the Employer already has committed itself to a flexiplace program which may reduce traffic congestion, that program is limited to a relatively small number of employees. We believe that employees should have the opportunity to demonstrate through participation in the pilot study whether a permanent transit subsidy program at this agency would be cost effective. In our view, this is not only consistent with the Federal Employees Clean Air Incentives Act, 5 U.S.C.A. § 7905 (1996), but also essential for assessing whether the purpose of the law has been achieved.(2) To that end, a 1-year pilot should generate sufficient data for the parties to determine whether the availability of the subsidy has reduced the use of single-occupant vehicles for travel to and from work to a degree that justifies its cost. If the parties are unable to agree whether the program should be made permanent, the data should assist the Panel in resolving any future dispute between them over this subject.
2. Official Time for Lobbying
a. The Union’s Position
The Union proposes that a reasonable amount of official time be granted "to contact members of Congress and their staffs to discuss legislative and related matters affecting the Employer and its employees." Currently, a few Union representatives use annual leave or leave without pay, generally about 8 hours per year, to make and keep appointments with local Congressional representatives during an annual legislative week held in February or March. Such efforts can be helpful to the agency, management, and bargaining-unit employees. For example, through lobbying, the Union can urge Congress not to cut the agency’s budget and to increase pay; the latter subject is one that the Union cannot approach through direct negotiations because pay rates are set by statute. Finally, the CBAs of a number of other Federal agencies, including the Internal Revenue Service, the Customs Service, and the Department of Health and Human Services, contain provisions granting official time for lobbying.
b. The Employer’s Position
The Employer opposes spending agency funds to support the Union’s lobbying efforts on Capitol Hill. A liaison office within the agency already handles communications with legislators. The Union’s proposal essentially would mount a duplicative effort, uncoordinated with the existing program. Furthermore, it would have the potential to aggravate or even antagonize the legislators, and might actually result in harm to the interests of the agency and its employees. Moreover, the scope of what may be addressed under the Union’s proposal is too broad, and should be limited only to negotiable conditions of employment; pay, for example, which is set by statute, would not be an appropriate topic.
After carefully considering the parties’ arguments on this issue, we conclude that a modified version of the Union’s proposal should be adopted to resolve the dispute. The modifications specify that: (1) only Union officers are to be granted official time for lobbying and (2) the topics to be discussed must pertain to conditions of employment of bargaining-unit employees. In reaching this conclusion, we find persuasive that, by practice, only a small number of Union representatives devote a limited amount of time, approximately 8 hours per year, to such activities. In our view, a grant of reasonable official time to Union officers is consistent with its previous lobbying efforts, and effectuates the rights recognized by section 7102(1) of the Statute.(3) This approach is also consistent with a proposal found negotiable by the Federal Labor Relations Authority,(4) enabling union officials to lobby elected representatives on matters that would impact the working conditions of employees they represent. Furthermore, neither party reports any problems related to lobbying at this agency or at agencies where parties already have such terms in their CBAs.
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. Transit Subsidy Program
The parties shall adopt a compromise provision consisting of the Union’s proposal and the following wording:
The $30 transit subsidy shall be offered to employees as part of a 1-year pilot study on the cost effectiveness of the transit subsidy program. The parties shall jointly establish appropriate time frames for ministerial aspects of the program. Immediately following the 1-year pilot, there shall be a 90-day negotiation period. Bargaining-unit employees shall continue to receive the $30 subsidy during the negotiation period.
2. Official Time for Lobbying
The parties shall adopt a modified version of the Union’s proposal as follows:
Union officers shall be granted a reasonable amount of official time to contact members of Congress to discuss conditions of employment affecting bargaining-unit employees.
By direction of the Panel.
H. Joseph Schimansky
Acting Executive Director
November 1, 1996