Local 609, American Federation of Government Employees (AFGE), 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 Department of Veterans Affairs, Veterans Affairs Medical Center, Indianapolis, Indiana (Employer).

   After investigating the request for assistance, the Panel determined that the issues, concerning official time, should be resolved through an informal conference between Panel Member Mark A. Carter and the parties. The parties also were advised that if no settlement was reached, Member Carter would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the dispute, which could include the issuance of a binding decision.

   Pursuant to this procedural determination, Member Carter conducted an informal conference with the parties on March 4, 2003, at the Employer’s facility in Indianapolis, Indiana. During the course of that meeting, the parties were able to resolve 15 of 18 issues. With respect to the remaining three, the parties submitted their final offers. Member Carter has reported to the Panel, and it now has considered the entire record.

   Essentially, the parties disagree over: (1) the amount of official time to be authorized Union representatives; (2) whether an acting local Union president should be permitted to use the official time designated for the president’s position; and (3) the criterion to be used by management for release of a Union representative on official time.

   In Section 4,⁽¹⁾ the Employer proposes that: (1) the local Union president be authorized 50-percent official time⁽²⁾ for general and indirect representational duties (.5 FTEE)⁽³⁾ and an additional 10-percent official time (.1 FTEE) to attend to duties specified in the MCBA, for a total of 60-percent official time (or .6 FTEE); (2) the local Union secretary/treasurer be authorized 2 hours official time per month to complete legally required reports; and (3) stewards and other representatives be granted a "reasonable amount" of official time to represent employees in grievances. The Employer proposes further that, as specified in the MCBA, local representatives be granted official time, as needed, to attend partnership and related meetings, labor-management training, handle health and safety-related assignments, and represent employees in their appeals to the Merit Systems Protection Board (MSPB), etc. The Union also would be permitted one representative on official time to represent employees before the MSPB and handle discrimination claims under Equal Employment Opportunity Commission (EEOC) procedures. In Section 5A, the Employer proposes that in the absence of the local Union president, an alternate may not assume the official time allotted to the position of local Union president.⁽⁴⁾ Finally, in Section 8, it proposes that the release of Union representatives on official time to perform representational duties be "subject to staffing and workload demands of the Medical Center;" if the time requested cannot be approved, the Union representative and the management official would attempt to reschedule release at a mutually agreeable time; official time requests would not be unreasonably denied.

   With respect to Section 4, .6 FTEE is more than the .4 FTEE minimum required by the MCBA, which the local president currently is authorized. The amount proposed is more than the .5 FTEE authorized for another local union president who represents an even larger bargaining-unit at the same facility consisting of 816 non-professional employees. Providing the Union with significantly more, as it proposes, may make it difficult to justify a lesser amount for the other union’s local president. Moreover, the amount proposed is consistent with a downward trend in the Union’s utilization of official time. In this regard, for fiscal year 2002, Union representatives utilized official time totaling 2.43 FTEE; thus far in FY 2003, they have utilized a pro rata amount of 1.75 FTEE. Furthermore, the position of local Union president should be authorized less than 100-percent official time because, in the event that a physician should assume that post, the Employer would not be totally without his or her services to attend to patient care. Finally, limiting the Union to one representative on official time to provide direct representation to bargaining-unit employees involving MSPB and EEOC matters is reasonable.

   Concerning Section 5A, an alternate should not be authorized to assume the local Union president’s official time in his/her absence. If the total amount of official time granted by the Panel is as large as the Union proposes, an alternate or acting local Union president is likely to be a Union representative who already is receiving an allotment of official time; if that individual is permitted to combine his or her official time with that allotted to the position of local Union president, this could result in the alternate receiving 100-percent official time. Allowing another professional employee to backfill the local Union president’s position would mean that yet another employee may be unavailable to attend to patient care matters; this could effect whether patients are provided services by their health care providers on a timely basis. As to Section 8, release of a Union representative to perform representational duties should be based upon both the staffing needs and workload demands of the Medical Center. This criterion would recognize that patient care, the primary mission of the facility, at times may have to trump other high priorities.

   Among other things, in Section 4 the Union proposes that it be authorized 2.5 FTEE, allocated as follows: (1) Union president, 100-percent official time (or 1.0 FTEE); (2) vice-president and chief steward, 50-percent official time (or .5 FTEE each); and (3) secretary/treasurer, .35 to .40 FTEE (or 7.5 hours per week official time). Stewards would be granted "necessary and reasonable" official time to perform their representational duties. The time proposed would be in addition to official time for Union representatives to represent employees before the FLRA, MSPB or EEOC. As a counter to the Employer’s Section 5A, the Union proposes that: "A representative who is acting as an alternate in the absence of another designated representative will use the amount of official time" that is the higher amount of the two positions. Finally, as a counter to the Employer’s Section 8, it proposes essentially that, upon request, Union representatives be released immediately on official time provided that their work can be covered, or conditions do not necessitate the immediate performance of the work; however, in the event that job-related duties prevent an immediate release, any delay would be of short duration, typically 1 or 2 hours, and only in "extremely rare circumstances should it be more than 1 workday."

   Regarding official time allocations (Section 4), 2.5 FTEE is a reasonable amount for Union representatives given the size of the bargaining-unit; also, during the initial term of the parties’ supplemental agreement, the Union may be involved in many representational activities, further justifying the amounts proposed. The amount is comparable to what other locals receive which represent similarly-sized bargaining units within the Department of Veterans Affairs. As to Section 5A, when the local Union president is on leave or otherwise unavailable, another Union representative designated as a substitute should be permitted to utilize the official time allotted to the president’s position. Doing so would enable the Union to provide effective representation to employees; moreover, it is consistent with the principle that official time inures to the position, and not the individual. With respect to Section 8, its proposal is an effort to balance the accomplishment of the facility’s mission of providing excellent patient care to veterans with the Union’s need to have employees released on official time to perform representational duties. Contrary to the Employer’s assertion, workload requirements should not dictate when employees may be released on official time because the Employer is chronically short-staffed, and the workload is consistently heavy. Thus, management always would be reluctant to release employees. The Union’s approach provides a better alternative than the Employer’s because it allows representatives to be released if their work could be covered by others, or deferred temporarily without jeopardizing patient care.

   Having carefully considered the arguments and evidence presented by the parties in support of their final offers, we are persuaded that the impasse over official time in Sections 4 and 5A should be resolved on the basis of compromise solutions. In this regard, in Section 4, on the key issue of official time allotments, the Union shall be authorized 1.4 FTEE of official time; of that, the local Union president shall be limited to no more than .6 FTEE (60 percent), with the Union having the discretion to distribute the remainder, except that no other Union representative may be permitted to receive more than .4 FTEE (40 percent). In our view, the Employer has a legitimate interest in ensuring that its professional employees, many of whom hold understaffed positions, are available to perform patient care duties for at least a portion of their work time. Thus, limiting the local Union president to 60-percent official time, and others to no more that 40 percent, would ensure that Union representatives continue to serve as health care providers, the positions for which they were hired, at least on a part-time basis. We are also mindful that no Panel has previously undertaken to implement 100-percent official time for any union representative unless the employer concurs.

   With regard to Section 5A, the Employer has stated that it would drop its objection to having an alternate serve in the position of local Union president if official time is limited to .6 FTEE. Accordingly, the parties shall be ordered to adopt compromise wording which provides that, in the absence of the local Union president, the Union may appoint an alternate or acting local Union president who may assume the official time allotted for that position; however, the alternate may not increase his or her official time by adding any other allotment of official time that the individual may have been entitled to prior to assuming the position. This would prevent an acting or alternate local Union president from becoming a de facto full-time Union representative, and appears to be consistent with the intent of the Union’s proposal.

   With respect to Section 8, we believe that the criterion proposed by the Employer for determining whether a Union representative may be released on official time strikes the more appropriate balance between the facility’s patient care responsibilities and the representational needs of employees. In addition, the Employer’s proposal provides the Union with an avenue for challenging the Employer’s application of the criterion through the negotiated grievance procedure. Thus, we shall order its adoption to resolve the parties’ impasse over this issue.

   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 the 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:

1. Where the parties use different numbering to identify the contract sections in dispute, we shall follow the section numbers designated by the Employer.

2. The parties use several different terms in their proposals to describe the time Union representatives would be authorized to perform Union representational duties; in this regard, their proposals refer to “official time,” “representation time,” and “duty time.” To simplify the terminology, within this Decision and Order the term “official time” is used as a generic description of the time Union representatives spend performing Union representational duties.

3. “FTEE” stands for full-time equivalent employee.

4. During the informal conference, the Employer stated that in the event the Panel determines to adopt management’s proposal for .6 FTEE for the local Union president (or an amount close to .6 FTEE) the Employer would withdraw its objection to allowing an alternate to assume the official time associated with the position of local Union president, provided that the local Union president is on scheduled annual leave or prolonged leave.