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 41
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, Region 2, New York, New York (Employer).
After investigating the request for assistance, the Panel determined that the dispute, which concerns four issues arising from negotiations over a regional policy instruction on the implementation and use of E-Z Pass commutation tags,(1) should be resolved through an informal conference by telephone between a Panel representative and the parties. If no settlement was reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. Following consideration of 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 (Staff Attorney) Donna M. DiTullio conducted an informal conference by telephone with the parties on April 13, 1999, during which the parties were able to resolve two of the four outstanding issues. 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.(2) The Panel has now considered the entire record.
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 750 employees in a mixed bargaining unit of professional and nonprofessional employees. Typical employee positions are environmental scientist, environmental engineer, environmental specialist, clerk, accountant, and budget officer. The nationwide master collective-bargaining agreement (CBA) which covers these parties was scheduled to expire in September 1997; however, it has been extended until a successor is implemented.
The employees who are affected by this dispute travel into the field to perform inspections and remedial work at Superfund sites and attend meetings at state capitals and other government offices. Prior to E-Z Pass, employees either used cash(3) or were issued tokens or script by the Employer to pay tolls. According to the Employer, the purpose of E-Z Pass commutation tags is to ease the administrative burden of the voucher system to reimburse employees for cash expenditures relating to local travel and to shorten local travel time by reducing the amount of time employees spend waiting in line at toll plazas to pay tolls. Most thoroughfares, bridges, and tunnels which require a toll now have separate lanes devoted to vehicles which have E-Z Pass tags displayed in their windshields.E-Z Pass tags for local travel will remain in use on a voluntary basis only until the regional instruction is implemented.
ISSUES AT IMPASSE
The parties disagree over whether: (1) the policy statement should include an additional example which describes a situation where employees are not required to use E-Z Pass for local travel and may instead use cash, and (2) an agency determination that an employee is liable for a lost or stolen E-Z Pass tag (including any charges for interest and penalties) should be stayed pending the outcome of a grievance filed by the employee contesting liability.
1. Policy Statement Examples
a. The Union’s Position
The Union proposes the following:
The use of cash is not encouraged as it defeats the purpose of E-Z Pass. However, in unusual circumstances when traffic conditions warrant, or when the designated agent or an E-Z Pass is unavailable at the time of the employee’s departure, employees may use cash to pay tolls. [Only the underlined wording is in dispute.]
Both parties agree in principle that, to the maximum extent possible, employees should avoid using cash to pay tolls. The first sentence is a more forceful and emphatic way of communicating the parties’ intent to employees. As to the second sentence of the proposal, while the parties have agreed to reference in the policy instruction two exceptions when cash may be used to pay tolls, a third should be added because it represents a realistic situation when it may not be feasible for an employee to use an E-Z Pass and, instead, may require the employee to use cash to pay tolls. Including this clear and specific guidance in the policy instruction may eliminate the need for employee’s having to file grievances if they are admonished or disciplined for using cash when a designated agent is unavailable. Although the Employer’s representatives have stated that even without this example in the instruction, employees could use cash when the designated agent is unavailable to issue an E-Z Pass, it is better to reduce management’s intent to writing rather than relying on institutional memory or oral understandings.
b. The Employer’s Position
The Employer’s proposal is as follows:
The use of cash is discouraged as it defeats the purpose of E-Z Pass. In unusual circumstances when traffic conditions warrant or if E-Z Pass is not available at the time of the employee’s departure, employees may use cash to pay tolls. [The underlined wording is in dispute.]
Its wording better communicates to employees that using cash to pay tolls is not favored. Including a third example in the policy statement concerning when it would be permissible to use cash to pay tolls is unnecessary since the wording the parties already have agreed upon covers the situation when a designated agent is not available to issue an E-Z Pass to an employee, as well as other unanticipated situations which would make the use of cash to pay tolls acceptable.
Upon review of the parties’ positions, we are persuaded that the dispute should be resolved on the basis of the Union’s proposal, modified to include a situation where either the designated agent or an alternate is unavailable to issue an E-Z Pass to an employee for local travel. In our view, the Union’s proposal, as modified, provides employees with clearer instructions as to when cash may be used to pay tolls because it specifies the situations when using cash is permissible. Thus, by adopting the Union’s proposal, as modified, the parties are more likely to avoid grievances over questions of interpretation of the policy instruction.
2. Stay of Collection Proceedings
a. The Union’s Position
The following wording is proposed by the Union:
Lost or Stolen E-Z Pass Tags: Employees’ assessment and payment for improper charges or the loss of the E-Z Pass tag are subject to the appropriate grievance procedure. Employees shall not be required to pay the alleged principal amount due (plus any interest or penalty) until the grievance has been resolved or adjudicated. In the event the employee’s grievance is denied, the employee shall be liable for the original principal due, plus interest or penalty, if any.
Employees should be permitted to exhaust their grievance rights before the Employer implements collection proceedings against an employee. If the grievance is denied, the employee then would pay the charges assessed by the Employer plus any interest or penalty that may have accrued. Deferring collection until after the grievance process concludes would not result in financial loss to the Employer. In the event that the grievance is sustained, the Employer would be spared the administrative burden of having to return previously-collected funds to the employee. Since an employee’s financial liability for a lost or stolen E-Z Pass tag is likely to be relatively small, it would be more cost effective for the Employer to delay the collection rather than go through a reimbursement process should an arbitrator reverse the agency’s decision on liability. The Federal Labor Relations Authority (FLRA) has found that a substantially similar proposal to stay reimbursement of a pecuniary liability pending the outcome of a grievance/arbitration procedure is within the duty to bargain, as it does not conflict with law, rule or regulation.(4)
b. The Employer’s Position
The Employer proposes the following:
Lost or Stolen E-Z Pass Tags: Should an employee be assessed for the loss of an E-Z Pass tag or for improper charges to the E-Z Pass while the tag is in his/her custody, the employee will be liable for payment subject to the Debt Collection Act, the Federal Claims Collection Standards, and other prevailing rules, laws and regulations. The employee will also have the right to grieve the action.
An employee who is assessed charges relating to a lost or stolen E-Z Pass should be required to pay the debt once the deciding official on these matters (the Assistant Regional Administrator or designee) determines liability. A stay of related collection proceedings is not permitted under law, except in three situations defined in the Federal Claims Collection Standards.(5)Since the Union’s proposal does not take into consideration that the law permits a stay of a collection action only under limited circumstances, the proposal is outside the duty to bargain. Moreover, the FLRA has determined that a proposal substantially similar to the Union’s is nonnegotiable as it conflicts with the Federal Claims Collection Standards, a Government-wide rule or regulation.(6) Under the Employer’s proposed wording, on the other hand, employees would not be deprived of any due process rights. In this connection, they would be entitled to grieve a collection action once a determination on liability has been made by the agency official, and an arbitrator could reverse or modify a collection determination made by the Employer and make an employee whole for any financial loss suffered.
Having carefully reviewed the parties’ positions, it is unnecessary to address the allegations of nonnegotiability concerning the Union’s proposal because, on the merits, we find that the Employer’s approach provides the better basis for resolving the impasse. In this regard, there does not appear to be a demonstrated need to stay collection, pending the outcome of a grievance contesting the employee’s liability, particularly where the amounts involved are likely to be relatively small, and the grievance process is often protracted. In our view, adoption of the Union’s proposal also would encourage frivolous grievances. Furthermore, in the event an employee chooses to grieve a collection action, which the Employer’s proposal contemplates, there remains a possibility that an arbitrator may reverse or modify an agency assessment of financial liability and make the employee whole for any loss suffered. Thus, even though collection already may have been implemented against an employee, due process rights, including the possibility of a make-whole remedy, appear to be fully protected under the Employer’s proposed wording. For these reasons, we shall order its adoption.
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. Policy Statement Examples
The parties shall adopt the Union’s proposal, modified as follows:
The use of cash is not encouraged as it defeats the purpose of E-Z Pass. However, in unusual circumstances when traffic conditions warrant, the designated agent or alternate is unavailable, or an E-Z Pass is unavailable at the time of the employee’s departure, employees may use cash to pay tolls.
2. Stay of Collection Proceedings
The parties shall adopt the Employer’s proposal.
By direction of the Panel.
H. Joseph Schimansky
May 17, 1999