DECISION AND ORDER

 

 

BACKGROUND

 

This case was filed by the General Service Administration (GSA or Agency), and concerns the negotiations of nine (9) articles in the Collective Bargaining Agreement (CBA) between the Agency and the National Federation of Federal Employees (NFFE or Union).  The General Service Administration’s primary function is to serve as the “landlord for the Federal Government” by leasing and managing real estate for Federal agencies; it also provides agencies with information technology services and supplies.  Other aspects of the GSA mission include the promulgation of the Federal Travel Regulations and the Federal Acquisition Regulations.  The National Federation of Federal Employees represents approximately 3,300 professional and non-professional employees, GS-5 through -14.  The bargaining-unit includes employees stationed in the Washington area in the Central Office and the National Capital Region, as well as most employees in Regions 5 (Chicago) and 4 (Atlanta), and a small number of employees in Regions 3, 7 and 9. 

In December 1991, GSA and NFFE executed a term CBA, which went into effect the end of January 1992. That CBA was for a duration of three (3) years, after which it rolled over for annual renewal, unless re-opened by either Party during the window for re-opening. Portions of the CBA were re-opened subsequently and the entire CBA was re-opened in 2011, when the Union exercised its right to reopen the CBA during the open annual window in 2011.  That successor CBA became effective March 2017, after an agreement was finally reached through a Panel-imposed Mediation-Arbitration procedure, with Member Don Wasserman.

 

On May 25, 2018, the President issued three (3) Labor Relations Executive Orders[1]. While the parties were negotiating the CBA, and seemed to be close to reaching agreement on the articles, except one, Article 23 – Work Schedule, the Agency contacted the Union to discuss re-visiting nine (9) articles of the CBA which the Agency believed were in conflict with the Executive Orders. Because all of these 9 articles were in conflict with the Executive Orders, the Agency believed that those articles would have resulted in Agency Head disapproval of them as non-negotiable after Section 7114(c) review. 

The Parties mutually agreed to re-open the 9 articles in conflict with the Executive Orders.  However, the Parties made little negotiations progress on those re-opened articles, and were not able to reach resolution with the assistance of FMCS.  FMCS released the parties in May 2020.  The Agency submitted their request for assistance on August 24, 2020.  On November 10, 2020, the Panel asserted jurisdiction over the nine (9) articles.  The Panel ordered the parties to a Written Submissions procedure.  Both parties timely provided their submissions[2]. 

 

 

COLLATERAL MATTER

 

            In its written submission, the Union requested that the Panel return the case to the parties for a ninety (90) day period of bargaining.  The Union explains that the parties were close to reaching agreement on the articles in the CBA when the Agency changed their proposals, asserting that the changes were necessary because they needed to be in compliance with the Trump Administration’s Executive Orders in order to clear Agency Head Review.  The Union argues that the results of the recent Presidential Election may affect the application of the  Executive Orders.  The Union believes that it is likely that the relevant Executive Orders will be rescinded after the transition to the new administration.  The Union asserts that if the Executive Orders are rescinded, the parties will likely return to the agreement reached prior to the Agency changing their proposals to align with the  Executive Orders. 

The Agency has argued that the  Executive Orders are considered a “government-wide rule or regulation” that permissibly remove subjects from the scope of collective bargaining, as contemplated by Congress. 5 U.S.C. § 7117(a)(1).  It is notable that the Agency has not declared the Union’s proposals non-negotiable in support of their belief that the proposals are in conflict with the Executive Orders.  Nevertheless, the Agency relies on that position to oppose the Union’s proposals and in support of their proposals. 

Whether the  Executive Orders will be repealed is uncertain.  What is clear, however, is that the Panel has asserted jurisdiction over this CBA impasse and is prepared to fulfill its statutory function[3] by bringing closure to this negotiation.  The Panel denies the Union’s request to return the parties to the bargaining table for 90 days so the matter can await the results of the Presidential Transition.  The Panel is prepared to fulfill its function by bringing closure to this negotiations impasse.

 

9 ISSUES AT IMPASSE

 

1. Article 2 – Management Rights

 

1. Article 5 – Unions Use of Facilities.

 

1. Article 6 – Official Time

 

1. Article 7 – Grievance Procedure

 

1. Article 8 – Arbitration

    

2. Article 15 – Performance Appraisal

    

3. Article 30 – Discipline

 

1. Article 31 – Employee Space

 

1. Article 38 – Duration and Termination

 

 

POSITIONS OF THE PARTIES AND PANEL DETERMINATION

 

 

1. Article 2 – Management Rights

 

The Agency proposals seek to eliminate a commitment to negotiating permissive subjects under 5 USC 7106 (b), consistent with the Executive Orders.  The Agency’s provision is intended to comply with section 6 of Executive Order 13836 which prohibits bargaining of permissive subjects (i.e., 5 USC 7106 (b)).  The Agency argues that Section 6 of EO 13836 restates agencies’ statutorily-conferred right under Section 7106 of the Statute to “refrain from negotiating.”  The Agency argues that this proposal is preferable because it eliminates the costs and time required to bargain permissive subjects. No quantitative data was offered by the Agency to support the projected cost or time savings.

 

The Union seeks language that makes negotiations of permissive matters available, but at the option of the Agency.  For each of the remaining articles, the Union argues that their proposal should be adopted because the parties have already tentatively agreed to the language of the articles.  The Agency rebuts that argument, noting that the parties mutually agreed to re-open the tentatively agreed upon articles, thereby, rendering those tentative agreements nullified.  Also, the Union argues that the language is consistent with the statute (5 USC 7106 (b)) and does not prohibit the Agency from complying with the Executive Order on permissive bargaining because the agency is free to elect permissive bargaining or not.

 

The Panel orders the parties to adopt the Union’s proposal, which reflects the Statute by allowing the parties to bargain permissive subjects under 5 USC 7106 (b), at the election of the Agency.  The Agency offered no support to its preference other than its desire to reflect the Executive Order. The Union’s proposal, consistent with the law, leaves the choice of bargaining permissive subjects at the option of the Agency.

 

1. Article 5 – Unions Use of Facilities.

 

The Agency’s proposals seek to eliminate the Union’s free use of facilities consistent with the Executive Orders.  The Agency’s provision is intended to comply with section 4 of Executive Order 13837. Section 4(a)(iii) of EO 13837 prohibits employees from receiving “free or discounted” use of Government property or resources for union business unless the use is “generally available” for other employees acting on behalf of “non-Federal organizations.” The Agency’s proposal also limits access to Agency equipment and services.  Finally, the Agency’s proposal eliminates the need to bargain over potential travel expenses for Union representatives. Section 4(a)(iv) of EO 13837 provides that “[e]mployees may not be permitted reimbursement for expenses incurred performing non-agency business, unless required by law or regulation.”  The Agency argues that their proposal represents an annual cost-savings of over $209,299.00 (spread sheet provided by the Agency), representing annual current market value for space designated as Union office space, value of equipment provided free, and current proportion of shared services for security costs for Union office space.

 

The Union seeks to maintain the status quo of using Agency facilities at no cost.  The Union simply argued that the previously agreed upon language is preferable because the Agency offered no practical problem with the agreed upon language.

 

The Panel orders the parties to adopt the Agency’s proposal.  The Agency demonstrated that the proposed change will result in an annual cost savings of over $200,000.  The Union did not refute this argument, nor did they demonstrate how the change would interfere with its ability to fulfill its statutory obligation to represent the bargaining unit.

 

1. Article 6 – Official Time

 

The Agency seeks Official time provisions consistent with the Executive Order 13837 (e.g., .5 hours of official time per bargaining unit employee and 25% individual cap).  The Agency provided no discussion or justification for their proposed amount of official time.  The Agency did offer that in March 2019, a new process was implemented in the agency’s time and attendance system (i.e., HR Links) to manage official time.  By implementing a new time and attendance process, which assisted the supervisors in more effectively managing and tracking official time, the Agency asserts that they saw a reduction in the hours of official time used, creating an overall savings for the Agency:

 

• Savings in Hours between FY18 and FY20 - 30,139.50 hours
• Savings in Hours between FY18 and FY19 – 7298 hours
• Savings in Dollars between FY18 and FY20 - $1,903,994
• Savings in Dollars between FY18 and FY19 – $476,846

 

In addition to being consistent with the Executive Order requirement, the Agency also offers that their official time proposal is more consistent with a recent FLRA case, Customs and Border Protection and AFGE, 71 FLRA 119. (attached).   In that case, the Union president (grievant) requested sixty-four hours of official time for certain activities, but did not specify how much time he needed for each activity. The Agency asked the grievant to provide that information, he refused, and the Agency denied the request as excessive. The Arbitrator found that the parties’ CBA did not require the grievant to provide the additional information about his official-time request. Thus, the Arbitrator concluded that the Agency violated the agreement.  On exceptions, the Authority found that even when parties have agreed to procedures for requesting official time, those procedures must allow an agency to gather information necessary to make a reasoned determination as to whether the request is reasonable under 5 U.S.C. § 7131(d). Because the award prevented the Agency from determining how many hours of official time the grievant would use for each activity, the Agency could not determine whether the request was reasonable. Thus, the Authority set aside the award as contrary to § 7131(d).

 

 The Union seeks to maintain status quo, which includes the allotment of full-time representatives (i.e., up to 100% representatives).  The Union simply argued that the previously agreed upon language is preferable because the Agency offered no practical problem with the agreed upon language.

 

When reviewing official time disputes, the Panel expects the parties to provide sufficient argument and evidence to support their positions.  The Agency presented their argument showing that there has been a savings on official time over the last two fiscal years.  The Agency’s proposed official time calculation of .5 per bargaining unit employee is slightly higher than the actual official time usage in FY20:

 

•           Actual use in FY20 - 1094 hours

•           .5 of the bargaining unit (3300) - 650 hours. 

 

The Union did not refute the savings achieved, nor did the Union offer any argument that the need for official time is expected to change going forward.  The Panel orders the parties to adopt the Agency’s official time proposal, which provides for 1/2 hour of official time per bargaining unit employee and a 25% individual cap.

 

1. Article 7 – Grievance Procedure

 

First, the Agency proposed a change on how a grievance will be served on the Agency.  The Agency has proposed that all grievances be filed in a Universal mail box.  The Agency explains that as a result of a recent re-organization along customer service lines, OHRM is no longer organized along regional lines; instead, it is organized along customer lines (PBS, FAS, or Staff Office lines). National LR is responsible for implementing the CBA and for providing assistance to LER Specialists in the field.  However, National LR has no supervisory relationship over their compliance with the terms of the national Agreement. Therefore, the Agency has proposed to require all grievances to be filed at a universal mailbox (to be established if this provision goes into effect), to increase visibility of all filings, ensure proper handling, consistent with the provisions in the new Agreement, and to facilitate proper assignment of the grievances to the appropriate Specialist.

 

The Agency also seeks additional exclusions to the grievance procedure, consistent with the Executive Order.  The Agency would add to the list of exclusions:  performance ratings, awards, and removals/other adverse actions. The Agency generally states that the elimination of grievances over these matters would improve consistency, same time and the cost of arbitration, and leave the judgement over the adverse actions to the trained judges of MSPB.  The Union disagrees with these changes.  The Union seeks the prior agreed upon language. The Union argued that the previously agreed upon language is preferable because the Agency offered no practical problem with the agreed upon language.  Additionally, the Union also argues that there have been no excessive arbitrations of removals in this unit (i.e., only one arbitrated removal case in the past four (4) years.)

 

The Panel orders the parties to adopt the Union’s proposal. The Agency failed to establish the need to exclude additional matters from the negotiated grievance procedure. As for the desire that the grievant, or the Union on their behalf, file the grievance both with their supervisor and in a national electronic mailbox, in order to keep the national office informed, that issue should not be the grievant’s responsibility.  That is an internal management matter.

 

1. Article 8 – Arbitration

 

The Agency seeks to exclude the same matters from the arbitration procedure.  The Agency also proposes the concept of “loser pays” as a means for discouraging baseless actions.  The Union does not agree. Same arguments raised as above (Article 7).  The Panel orders the parties to adopt the Union’s proposal. 

 

1. Article 15 – Performance Appraisal

 

The Agency seeks changes consistent with the Executive Orders, but presents no argument on the revised proposals.  The Union seeks the maintenance of the status quo. The Union simply argued that the previously agreed upon language is preferable because the Agency offered no practical problem with the agreed upon language.  Because the Agency offered no practical reason or arguments for change, the Panel orders the parties to adopt the Union’s proposal; previously agreed upon language.

 

1. Article 30 – Discipline

 

The Agency seeks changes consistent with the Executive Order (e.g., no commitment to use progressive discipline, reduction of time on a PIP, and limiting appeals to adverse actions to MSPB – not grievable).  The Agency offers no argument or support for its proposed changes.  The Union disagrees with the proposed changes. The Union argued that the previously agreed upon language is preferable because the Agency offered no practical problem with the agreed upon language. Also, the Union asserts that there was only one arbitration over a removal in the past 4 years.  Because the Agency offered no practical reason or arguments for change, the Panel orders the parties to adopt the Union’s proposal; previously agreed upon language.

1. Article 31 – Employee Space

 

The Agency seeks to limit when employees and the Union will be pre-decisional involved regarding office moves or re-configurations.  The Agency states that its proposal promotes efficiency in the administration of the government.  The Union seeks involvement before all decisions are finalized. The Union simply argued that the previously agreed upon language is preferable because the Agency offered no practical problem with the agreed upon language.  The Panel orders the parties to adopt the Agency’s proposal.  While the Agency had been willing to engage the Union pre-decisionally on space issues, the Agency’s language preserves the Agency’s right to determine if it is in the best interests of the Agency to engage pre-decisonally on a case-by-case basis going forward under the new CBA.

1. Article 38 – Duration and Termination

 

The Agency seeks to no longer provide printed copies of the CBA to the Bargaining Union (i.e., electronic only).  The Agency argues that their proposal eliminates the unnecessary cost of printing of mass contracts and promotes efficient distribution of the contract. It follows principles of the President’s Management Agenda to eliminate hard copies, whenever possible.  The Union seeks to maintain the practice of issuing printed CBAs.  The Union simply argued that the previously agreed upon language is preferable because the Agency offered no practical problem with the agreed upon language.

 

Additionally, the Union has proposed that in the event the Executive Orders are rescinded, the rights contained in the prior CBA will be restored. This proposal is similar to the request by the Union to return the parties to the bargaining table while they await to see what happens with the transition.

 

The Panel orders the parties to adopt the Agency’s proposal.  The Panel has determined in other cases (e.g., FSIP 20022 – VA) that the cost of printing thousands of CBAs is an inefficient use of the Agency’s resources.  It is likely that most employees have electronic access or at least access to the Union, who can provide a written document as they see fit.  The Panel rejects the Union’s language seeking to automatically restore the language of the prior CBA in the event of rescission of the  Executive Orders.  The parties are free to mutually agree to reopen the CBA as they see fit.

 

 

 

 

 

ORDER

 

Pursuant to the authority vested in the Federal Service Impasses Panel under 5 U.S.C. §7119, the Panel hereby orders the parties to adopt the provision as discussed above. 

 

                                  

 

 

                                                                                    Mark A. Carter

                                                                                    FSIP Chairman

 

January 17, 2021

Washington, D.C.

 

 

Attachment:  Parties’ Proposals