DEPARTMENT OF LABOR WASHINGTON, D.C. and LOCAL 12, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Case No. 04 FSIP 111

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF LABOR
WASHINGTON, D.C.

and

LOCAL 12, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO

Case No. 04 FSIP 111

DECISION AND ORDER

The Department of Labor, Washington, D.C. (Employer or DOL) 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 Local 12, American Federation of Government Employees, AFL-CIO (Union).

Following investigation of the Employer's request for assistance, which concerns a dispute over the parties' successor collective-bargaining agreement (CBA), the Panel determined that Chairman Becky Norton Dunlop should conduct an informal conference to resolve up to four of the articles at impasse, and that the remaining articles should be resolved through single written submissions.¹^/ The parties were advised that, regardless of the procedure used, for any matters requiring the issuance of a Decision and Order, the Panel would select from between the parties' final offers on an article-by-article basis, to the extent they otherwise appear to be legal.

Pursuant to this procedural determination, Chairman Dunlop conducted an informal conference with the parties on September 21 and 22, 2004, with Panel Member Mark A. Carter in attendance on the first day, addressing the articles the parties had selected. They in some cases narrowed their differences, but agreements were not reached. At the conclusion of the informal conference the parties were invited to submit statements in support of their final offers. In addition, written statements supporting the parties' final offers on the remaining nine articles at impasse were submitted in accordance with that portion of the Panel's procedural determination. Chairman Dunlop has reported to the Panel and it has now considered the entire record, including the parties' statements of position, in reaching its decisions.²^/

BACKGROUND

The Employer's mission is to foster and promote the welfare of job seekers, wage earners, and retirees of the U.S. by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements. The Union represents a bargaining unit consisting of approximately 3,500 professional and non-professional employees, both General Schedule and Wage Grade, who are stationed in the Washington, D.C., metropolitan area. The parties' current CBA, which was implemented in 1992, remains in full force and effect until replaced by a successor.

ISSUES AT IMPASSE

The parties disagree over parts of the following 13 articles: (1) Article 4 - Flexible Work Plans/Flexible or Compressed Work Schedule; (2) Article 5 - Leave; (3) Article 10 - Telework/Flexiplace; (4) Article 29 - Space; (5) Article 30 - New Technology; (6) Article 35 - Labor-Management Relations; (7) Article 36 - Mid-Term Bargaining/Bargaining During the Term of the Agreement; (8) Article 43 - Grievance Procedure; (9) Article 44 - Arbitration; (10) Article 46 - Facilities and Services; (11) Article 47 - Duration; (12) New Article - Mass Transit Subsidies; and (13) New Article - Child Care Subsidies.

POSITIONS OF THE PARTIES³^/

1. Article 4 - Flexible Work Plans/Flexible or Compressed Work Schedule

a. The Union's Position

The Union proposes that: (1) the article contain no reference to Departmental Personnel Regulation (DPR) 630; (2) the article include a definition of the term "Maxiflex"; (3) core hours be from 10 a.m. to 3 p.m.; (4) Flexitime Committees continue to be used at the agency and departmental levels, consisting of equal numbers of representatives from each side; (5) all changes to employees' work schedules be negotiated; (6) supervisors not be granted the exclusive right to set core hours for part-time employees; (7) current contract wording on "Pay Administration" and "Shift Work" be continued; (8) the phrase "providing receptionist duties" be excluded from the list of examples of principle forms of office coverage that must be accounted for; and (9) the article's subsection on abuse refer only to "any problems of individual abuse of the timekeeping system."

b. The Employer's Position

The Employer's final offer includes the following: (1) the article would be administered in accordance with DPR 630; (2) all employees would work "variable workweek schedules," a standard workweek or workday, or a compressed work schedule (CWS), and employees who currently work "Maxiflex" could continue to do so as long as they remain in their current office; (3) core hours would be from 9:30 a.m. to 3 p.m.; (4) supervisors would have the right to deny certain employees the full range of flexible time band options if, for example, an employee's job entails answering incoming phones or greeting visitors, as well as the right to temporarily suspend flexible schedules or CWS "to meet agency goals"; (5) supervisors would have the right to establish and make final decisions on core hours for part-time employees; (6) all employees would be required to record all hours worked or not worked in DOL's electronic time and attendance system; and (7) all employees would be required to take a lunch break between the hours of 11 a.m. and 2 p.m.

The proposal would establish the same standard work schedule and core hours throughout the DOL, including its regional offices, where 70 percent of its employees work. It allows for "critical office coverage and mission accomplishment" while still "afford[ing] employee work hour convenience and flexibility." Reference to the DPR would be useful to managers and employees and is consistent with the parties' agreement on Article 34 - Governing Laws and Regulations, which establishes that DOL regulations apply to the administration of the entire CBA. Providing supervisors the flexibility to deny certain employees the full range of work schedule options, and to temporarily require changes in schedules, acknowledges that the mission is a "priority," and that certain employees have duties that are not compatible with flexitime or AWS, among them, receptionists who often occupy one-deep positions. The Employer's proposed section on abuse of work schedules "is clear and unambiguous," and would be helpful to supervisors to detail their options in dealing with abuse, and to employees by clearly enunciating the implications of abuse. It also includes a "provision relative to hours of work" that articulates fully the various aspects of this subject, including lunch periods.

CONCLUSION

Having considered the evidence and arguments presented by the parties, we conclude that the Employer's final offer provides the better basis for resolving their dispute. We are persuaded that the Employer needs greater discretion in determining the feasibility of flexitime arrangements for individual employees. In balancing the rights of employees to work the schedules of their choosing with the ability of an agency to accomplish its mission, the latter must always take precedence. Accordingly, we shall order the parties to adopt the Employer's final offer on this article.

2. Article 5 - Leave

a. The Union's Position

The Union's final offer would: (1) contain no reference to DPR 630; (2) continue to entitle employees to use at anytime during the year all the leave they are scheduled to earn; (3) continue wording contained in the current CBA article specifying that the lunch period is from 11 a.m. to 2 p.m.; (4) not include any references in the article corresponding to the Employer's Leave Bank and Leave Transfer Program section (Employer's proposed §10) which would continue to be governed by a previous Memorandum of Understanding (MOU) between the parties identified in its final offer in Article 47; and (5) add three new sections (§§12., 13 & 14.) on various aspects of Family Leave, which the Employer addresses in §2 of its final offer.

b. The Employer's Position

Under the Employer's final offer for this article: (1) leave would be administered in accordance with DPR 630; (2) there would be a 64-hour annual limit on the amount of annual leave that could be advanced to an employee; and (3) a lengthy section on the Voluntary Leave Bank and Leave Transfer Programs would be included, where the former would continue to be administered by a joint labor-management committee, but the latter would be administered exclusively by the DOL.

Overall, its final offer aligns the CBA better with current law and regulations regarding, for example, family leave and court leave, supports a "flexible and family-friendly workplace," and "provides a reasonable balance between the needs of employees and the rights of supervisors." Reference to the DPR would be helpful, and is consistent with the parties' agreement on Article 34 - Governing Laws and Regulations. A 64-hour annual limit on the amount of annual leave that could be advanced to an employee is the same policy that applies to all other employees within the DOL; the policy also allows supervisors to approve more hours in emergency situations. Its proposal to change the current practice permitting employees up to 2 years of annual leave or leave without pay for child-rearing purposes is justified. Leaving the amount of time to the determination of the supervisor and the employee on a case-by-case basis, subject to mission requirements, is the better approach. Excluding leave transfer from the jurisdiction of the Leave Bank Board is appropriate because leave transfer does not necessarily involve only bargaining-unit employees.

CONCLUSION

After careful review of the parties' positions on this article, we shall order the adoption of the Employer's final offer. In our view, this outcome is warranted for a number of reasons, including the need to state accurately the current requirements of Government-wide regulations concerning various types of leave and to present employees with comprehensive guidance on an important subject. The Employer's final offer also provides a reasonable approach to the leave bank and leave transfer issues, continuing the operation of a joint labor-management committee for the former, but appropriately excluding the latter from the committee's purview.

3. Article 10 - Telework/Flexiplace

a. The Union's Position

The Union would: (1) continue to call the program "Flexiplace" instead of "Telework"; (2) retain the current section on "Purpose," which emphasizes the need to balance work and family responsibilities; (3) prohibit "informal arrangements" from being used as trial periods for formal flexiplace arrangements; (4) permit all employees to participate in the program if certain specified criteria are met that are less stringent than those proposed by the Employer; (5) list the specific technology/equipment that employees may need to participate in the flexiplace program; (6) specify time frames for supervisors to respond to requests to participate in the program and for commencing participation once requests are approved, and include requirements on management making it easier to grieve disapprovals; (7) include wording designed to make it harder for management temporarily to recall employees from flexiplace than proposed by the Employer; (8) establish more employee-friendly criteria for removing employees from the program (for example, performance must have slipped to less than Fully Successful), require written reasons for the removal to be provided to affected employees and for the Union to be given notification, and include criteria that would permit employees removed from the program to reapply; (9) refer to Article 29 - Space, where all changes to employees' workspace, including changes related to participation in flexiplace, would be subject to consultation and negotiations with the Union; (10) permit grievances to be filed over all management decisions regarding flexiplace; (11) encourage the establishment of joint labor-management committees to resolve any problems that arise over the participation of individual employees in the flexiplace program, and require joint labor-management training on the article; and (12) establish a joint labor-management flexiplace committee of up to 5 on each side "to oversee implementation and evaluate functioning of the flexiplace program."

b. The Employer's Position

The Employer proposes to: (1) change the name of the program from "Flexiplace" to "Telework"; (2) revise the current "Purpose" section so that greater emphasis is placed on the benefits to the Government of establishing such programs; (3) permit "informal arrangements" to be used as trial periods for formal telework arrangements if the employee and the supervisor agree, with the trial period to last no longer than 90 days; (4) establish tighter criteria for evaluating an employee's request to telework than proposed by the Union (for example, the supervisor would be permitted to assess the employee's "most recent performance evaluation and current performance"); (5) not require specific time frames for responding to employee requests to participate in telework, or for starting telework if a request is approved; (6) add wording on employees' responsibilities to protect all Government records and data against disclosure, access, etc.; (7) establish management-friendly criteria for "recalling" employees from telework, with no specified notice period, and for removing employees from telework (for example, one of the removal criteria would be the supervisor's judgment that the employee's performance has declined); (8) not require supervisors to provide written reasons to employees for removing them from the program, or that management notify the Union, and not include criteria that would permit employees removed from the program to reapply; (9) include wording that would put an employee who voluntarily terminates participation in the program on notice that he or she may have to continue working away from the office temporarily until a workstation can be found, and that it may be necessary to share a workstation temporarily; and (10) specify that employees who telework would lose any assurances regarding their previous work space, and may be required to share space and equipment.

CONCLUSION

Upon consideration of the record created by the parties in support of their positions on this article, we conclude that, on balance, the Union's final offer provides the better basis for resolving the impasse. In particular, we believe employees requesting to participate in the program are entitled to receive a timely response from their supervisors, and that those whose requests are approved are entitled to know when their participation would begin. Accordingly, we shall order the parties to adopt the Union's final offer.

4. Article 29 - Space

a. The Union's Position

The Union would retain the wording in the current CBA which requires: (1) consultations between the parties on "all aspects of [space] changes being proposed by Management" that have an impact on employees; (2) that it receive a copy of the final space plan following the consultations; and (3) that it request negotiations within 5 workdays from receipt of the final space plan to be conducted in accordance with Article 36 - Mid-Term Bargaining.

b. The Employer's Position

The final offer of the Employer on this article basically would: (1) clarify the definition of an "Agency"; (2) permit "informal communications" between the parties, if they mutually agree, on space changes that have an impact on employees; (3) require management to provide the Union with a copy of any final space plans; and (4) eliminate any reference to negotiations with the Union over space changes. The definition of an "Agency" within DOL "has been at issue" under the current CBA, and the adoption of management's proposal would "remove ambiguity and preclude future disputes over this matter." The Employer excludes any reference to mid-term negotiations over space changes because such a provision is "misplaced and unnecessary" in this article. In addressing all negotiations during the term of the CBA, Article 36 fully preserves the Union's right to bargain concerning space. From a "contract administration and interpretation perspective," it is preferable to cover the subject of negotiations in a single article.

CONCLUSION

Having considered the arguments presented, we shall order the parties to adopt the Employer's final offer to resolve their remaining disputes over this article. We are persuaded that the Employer's final offer appropriately removes what has proved to be an unproductive and unnecessary step in the process of making workspace changes at the DOL while preserving the Union's statutory right to negotiate over such matters. The Employer's final offer also resolves a continual source of conflict under the current CBA.

5. Article 30 - New Technology

a. The Union's Position

Under the Union's final offer: (1) in addition to general wording committing the parties to exploring ways to share information about technology, management would be required to notify the Union whenever it acquires or implements "any hardware, software, or system based on technology" that may adversely impact bargaining-unit employees; (2) the parties would be required to "respect each other's statutory rights," and specific wording would be included acknowledging that the Union has not waived it's statutory right to bargain over the impact of changes in technology; (3) a "Technology Team" would be established, with equal numbers on each side, that would meet at the request of either party to address a variety of technology-related subjects, including oversight of training on new technology; and (4) DOL would provide the Team with copies of preliminary and final announcements of new standard hardware, software, and upgrades to existing products.

b. The Employer's Position

The Employer's final offer: (1) includes general wording committing the parties to exploring ways to share information about technology, while preserving each side's statutory rights, i.e., the Employer's right to determine the technology in the workplace, and the Union's right to negotiate over the impact of such changes on the workforce; and (2) commits management to providing appropriate training on new technology.

CONCLUSION

After carefully reviewing the parties' positions, we are persuaded that the Employer's final offer provides the more reasonable basis for settling the impasse. We accept that the Employer "stipulates" the Union's statutory right to bargain in connection with the impact of changes in the technology of the workplace upon the working conditions of unit employees and so shall order the adoption of the Employer's final offer to resolve the parties' dispute over this article.

6. Article 35 - Labor-Management Relations

a. The Union's Position

The Union's final offer: (1) includes wording stating that success in a labor-management relationship is assured through a "structured forum" for communication; (2) commits management to communications and "consultations" throughout all levels of the organization through "appropriately scheduled meetings," including brief, periodic meetings on duty time between Union stewards and first-level supervisors to discuss matters of concern; (3) establishes 15 Agency Labor-Management Relations (LMR) Committees, 5 members per side, to meet quarterly, and a DOL LMR Committee, 5 members per side, to meet "at least quarterly"; (4) requires "meaningful" consultation on organizational changes, with provisions for labor-management meetings prior to issuance of final plans, and further consultation if changes are made later; (5) specifies the information the Union would be provided prior to consultations on organizational changes; (6) grants the Union 5 workdays to request negotiations, to be conducted in accordance with Article 36 - Mid-Term Bargaining, upon receipt of final approved organizational changes; and (7) includes specific wording acknowledging that the Union has not waived its right to negotiate over the impact of organizational changes.

b. The Employer's Position

The Employer's proposed wording: (1) states that success in a labor-management relationship is assured through "regular communication"; (2) commits management to establishing and maintaining communications, but does not include the term "consultations"; (3) omits the current contract's requirement that brief, periodic meetings be conducted between Union stewards and first-level supervisors on duty time to discuss matters of concern; (4) establishes a DOL LMR Committee of up to 5 members from each side to consider DOL-wide issues whose meetings would be conducted at the request of either party, but no more frequently than quarterly, and 8 Agency LMR Committees of up to 5 on each side to meet quarterly; and (5) allows the DOL Agency and Union Agency Vice President to mutually agree to permit the DOL Agency and the Union to communicate informally on planned space or organizational changes. Its proposal provides for regular communication between the parties on matters of mutual interest, and establishes a structure of LMR Committees at all levels of the DOL to make this happen.

CONCLUSION

On this article we shall order the adoption of the Employer's final offer that, among other things, reduces the number of LMR Committees under the current contract and eliminates the requirement for pre-decisional consultations between the parties on organizational changes. In agreement with the Employer, we do not believe that current practices have promoted the expeditious resolution of issues at the lowest possible level. Moreover, nothing in the Employer's final offer waives the Union's right to negotiate over such changes, as required under the Statute.

7. Article 36 - Mid-Term Bargaining/Bargaining During the Term of the Agreement

a. The Union's Position

The Union proposes that: (1) the title of the article remain "Mid-Term Bargaining"; (2) all mid-term bargaining be conducted through Mid-Term Bargaining Committees at the Departmental or Agency levels of up to five members per side; (3) most mid-term bargaining be done by the Departmental Committee on a quarterly basis, except when the subject concerns space and organizational changes affecting a single Agency; (4) the agenda for the quarterly bargaining could include anything either party wants to negotiate, provided the other side is notified 30 days before bargaining is scheduled; (5) the parties meet 5 days prior to bargaining to finalize the agenda; (6) the Union be provided with "all relevant information and documents" regarding agenda items; (7) Agency level mid-term bargaining begin within 15 days of receipt by the Union of notices required under Article 35 - Labor-Management Relations, and Article 29 - Space (notice of final DOL pre-approved organizational changes and final floor plans, respectively); and (8) any agreements be submitted to the Union President and the Director of the Office of Employee and Labor-Management Relations (OELMR) for approval.

b. The Employer's Position

The Employer's final offer includes the following: (1) the title of the article would become "Bargaining During the Term of the Agreement"; (2) the Employer's requirement to negotiate with the Union mid-term would be "synonymous with the statutory obligation to bargain," and the Union would retain its statutory right to initiate mid-term bargaining; (3) all mid-term bargaining would occur at the Departmental level, except regarding space and organizational changes affecting a single Agency; (4) numerous rules would be established for mid-term bargaining that would occur on a case-by-case basis; for example, the Employer would provide reasonable notice of proposed changes, there would be a 10-day period for the Union to request bargaining, bargaining would be scheduled within 15 workdays of notification to the Union, the Union would be permitted to name up to 5 members on its bargaining team, and any agreements would be submitted to the Union President and the Director of OELMR "for approval for purposes of legal sufficiency only." Its proposal limits management's bargaining obligations to those required by law, while preserving the Union's statutory bargaining rights.

CONCLUSION

Having fully considered the parties' positions on this article, we conclude that the Employer's final offer provides the better basis for resolving the dispute. The Employer's wording is much more straightforward, and less likely to lead to disputes over the parties' mid-term bargaining rights and obligations. Further, the parties' practice of negotiating mid-term changes only on a quarterly basis does not appear to be a common one in Federal sector contracts, and clearly impedes the expeditious implementation of changes designed to facilitate the accomplishment of DOL's mission. We shall order the adoption of the Employer's final offer.

8. Article 43 - Grievance Procedure

a. The Union's Position

The Union's proposed article would: (1) include the same nine exclusions to the grievance procedure (in addition to those subjects excluded by statute) as in the current CBA article; (2) provide reasonable time to grievants and/or Union representatives for obtaining, preparing and assembling information pertinent to a grievance, in the amount actually required to perform these tasks, as well as for presentation of the grievance to management or a third party; (3) grant grievants and Union representatives reasonable time for travel to and from such presentations; (4) require the use of a standard grievance form "except where circumstances are such as, by reasonable view, to preclude the use of the form"; (5) prohibit an incomplete grievance form from being the basis for rejecting a grievance, and require management to return the form to the grievant for proper completion before processing; (6) require a Step 1 grievance to be filed within 20 workdays of when the grievant or Union learned of the alleged violation; (7) require the grievant to provide the "basic facts, issues or concerns on the grievance form" at Step 1; (8) permit the grievant or Union to appeal to Step 2, or get the OELMR to ensure a decision is rendered within 3 workdays, if no timely decision is received at Step 1; (9) require a Step 2 grievance to be filed on the grievance form, but permit additional information to be provided, including provisions of the CBA alleged to have been violated and the remedy sought; (10) permit the grievant or Union to appeal to arbitration, or get the OELMR to ensure a decision is rendered within 3 workdays, if no timely decision is received at Step 2; (11) require DOL grievances to be filed within 20 workdays of when management learns of the alleged violation; (12) permit DOL to invoke arbitration within 25 workdays if the matter has not been resolved within 10 workdays of receipt of the grievance by the Local 12 President; (13) encourage the parties to raise non-grievability or non-arbitrability at the earliest possible time, but permit such allegations to be raised for the first time at arbitration if they advise each other no later than 20 workdays after arbitration is invoked and at least 10 workdays before the hearing; and (14) require DOL to stay for 3 months, or until an arbitrator makes an award, whichever comes first, decisions to remove unit employees with 10 or more years of Federal Service upon the timely filing of a grievance within 5 workdays after employees' receive such decisions.

b. The Employer's Position

In its final offer, the Employer proposes to: (1) add to the list of current contractual and statutory exclusions from the procedure grievances over the placement of employees on Performance Improvement Plans (PIP) and oral counseling or warnings/admonishments; (2) afford reasonable time to employees to prepare and present grievances, in accordance with Article 41 - Official Time, §4.; (3) require the use of its revised grievance form, wherein grievants must identify all relevant facts and terms alleged to have been violated on the form; (4) prohibit arbitrators from considering "issues and allegations that are not raised by the Union in the Step 2 process"; (5) permit grievances and grievance decisions to be filed and issued electronically; (6) require a Step 1 grievance to be filed within 20 workdays of when the grievant knew "or should have known" of the alleged violation; (7) eliminate the current contractual requirement that OELMR get a decision to the grievant within 3 days of being asked by the Union if no Step 1 decision has been rendered by the appropriate official in a timely fashion; (8) eliminate the current contractual requirement that OELMR get a decision to the grievant within 3 days of being asked by the Union if no Step 2 decision has been rendered by the appropriate official in a timely fashion; (9) require Union grievances to be filed within 20 workdays of when it knew "or should have known" of the alleged violation; (10) require the Union President to issue a written decision on DOL grievances within 10 workdays, and permit the Director of OELMR to invoke arbitration within 10 workdays after receipt of such decision, or within 10 workdays of when the decision is due; (11) automatically waive Steps 1 and 2 when an employee elects to appeal adverse or performance-based actions under the grievance procedure; (12) encourage the parties to raise non-grievability or non-arbitrability allegations as early as possible, but reserve their right to "assert jurisdiction" at any time; (13) dismiss grievances that are not processed in a timely manner through the various stages of the process absent mutual consent to modify time limits; (14) permit the employee or Union to move to the next step in the process when the Employer fails to meet applicable time requirements; and (15) totally eliminate provisions in the current article granting stays of various management decisions once the grievance procedure has been invoked.

CONCLUSION

Upon thorough review of the parties' positions and arguments on this article, we shall order the adoption of the Employer's final offer to settle their impasse. Overall, the Employer's proposed modifications to the grievance procedure appear reasonable, streamlining it in certain areas without sacrificing the fair treatment of employees. In particular, the Union's practice of raising new issues and allegations for the first time before an arbitrator regarding contract violations is not conducive to solving problems at the lowest possible level. Moreover, the Union's proposal would prevent either party from raising a jurisdictional issue before an arbitrator unless it has advised the other side of the issue at least 10 days before the date of the hearing. This is inconsistent with the long-standing principle that jurisdictional issues may be raised at any point in an administrative proceeding.

9. Article 44 - Arbitration

a. The Union's Position

The Union proposes that: (1) separate rosters/panels of arbitrators be maintained for regular and expedited arbitration; (2) arbitrators who are removed from panels be permitted to continue to decide any case to which they already have been assigned; (3) the Employer be required to pay for transcripts requested by either party and to provide copies to the Union and the arbitrator; (4) the parties schedule hearing dates with the arbitrators on panels in advance on a rotating basis, at least one date each month, for both regular and expedited arbitration; (5) except where personnel actions have been stayed, regular arbitration hearings be held within 90 days; (6) where personnel actions have been stayed, regular arbitration hearings be held within 30 days; (7) hearings in expedited arbitration cases be held within 30 days; (8) the parties conduct a pre-hearing meeting no later than 14 days before a scheduled hearing to stipulate issues, exchange documents, etc.; (9) its preferred list of specific subjects for expedited arbitration be used but that, by mutual consent, other subjects could be included for expedited arbitration; (10) its preferred list of four specific subjects to be excluded from expedited arbitration be used; (11) there be no transcripts of expedited arbitration hearings, and no mention of whether the arbitrator could record such hearings; (12) there be no wording restricting the arbitrator from considering new issues, allegations, etc., not previously raised by the grievant, in writing, at or before the Step 2 grievance meeting, and no wording establishing any burden-of-proof standards on either side; (13) DOL be required to advise the Union no later than 20 workdays after arbitration is invoked, and at least 10 workdays before the hearing, if it considers a grievance non-grievable or non-arbitrable, or such allegations cannot be raised before the arbitrator; and (14) the article contain no wording permitting either party to require a separate hearing to decide grievabilty and/or arbitrability allegations prior to any hearing on the merits of the grievance.

b. The Employer's Position

The Employer's proposed article: (1) contains no provision for the maintenance of separate rosters/panels of arbitrators for regular and expedited arbitration; (2) assigns arbitrators randomly and, once assigned, places the arbitrator back into the selection pool only after all others have been selected, regardless of the type of arbitration involved; (3) returns to the pool for random assignment any case that has already been assigned to an arbitrator removed from the panel; (4) requires the cost of transcripts to be shared equally by the parties; (5) includes no reference to scheduling hearing dates with arbitrators in advance on a rotating basis; (6) requires arbitrators who agree to be on the panel not to charge a cancellation fee if given more than 3 days' notice, and to charge no more than $350 if the notice is 3 days or less; (7) requires the parties to have a pre-hearing meeting no later than 10 days before a scheduled hearing to stipulate issues, exchange documents, etc., and if the parties cannot agree on joint stipulations, to exchange separate statements of issues no later than 5 workdays before the hearing; (8) requires that expedited arbitration be used for all grievances except institutional grievances, individual employee grievances involving suspensions of 15 days or more, up to and including removals, and individual employee grievances involving performance-based actions; (9) permits the parties to mutually agree to use either type of arbitration for any grievance; (10) prohibits transcripts in expedited arbitrations, but permits arbitrators to record the hearing; (11) prohibits the filing of briefs in expedited arbitrations except by mutual consent; (12) permits either party to submit case law up to the close of the hearing; (13) grants no authority to the arbitrator to consider new issues, allegations, etc., not previously raised by the grievant, in writing, at or before the Step 2 grievance meeting; (14) requires the grievant to prove the merits of a grievance by a preponderance of the evidence, except for grievances involving performance based (Chapter 43) or disciplinary or adverse actions (Chapter 75), where the Employer bears the burden of proving its case by the substantial evidence and the preponderance of the evidence standards, respectively; and (15) permits a party raising non-grievability or non-arbitrability to request a separate hearing, and requires an arbitrator, in such cases, to render a decision on the matter no later that 3 days following the hearing and prior to any hearing on the merits of the grievance.

CONCLUSION

Having considered the positions of the parties on this article, we conclude that the Employer's final offer should be adopted. We are persuaded that the Employer's approach would streamline the arbitration process while still ensuring basic fairness to grievants and the Union. In addition, there is no justification in the record for permitting arbitrators to continue their involvement in cases once they have been removed from the panel, or requiring the Employer to continue to provide transcripts of hearings free of charge to the Union. The impact of the latter on the Union should be offset by the expanded use of expedited arbitration under the Employer's final offer. Accordingly, we shall order the adoption of the Employer's final offer to resolve the parties' impasse over this article.

10. Article 46 - Facilities and Services

a. The Union's Position

The Union would: (1) preserve the continued use of all of its current space within the DOL; (2) require management to provide the use of Room N-4437 A and B in the main DOL building between 11:45 a.m. and 1:30 p.m. if it receives 3 or more workdays' notice, the use of Room N-4437 A, B, and C for the full day on Wednesdays if an adequate advance request is made, and make a "special effort" on requests for other Union meeting space; (3) require the Employer to continue to furnish the Union with one copy of its regulations, including supplements and changes relating to unit employees; and (4) include no provisions in the article corresponding to the Employer's proposed wording on sections addressing "facilities and services upgrades" and "messages on earnings and leave statements."

b. The Employer's Position

Under the Employer's final offer for this article: (1) Union office space would be limited to Room N-1501 in the headquarters DOL building; (2) the Union could make case-by-case requests for conference space, and the same rules for deciding on its requests would apply as to any other entity in DOL; (3) the Union would not be permitted to make repeated ad hoc requests that have the effect of ensuring continual or permanent use of conference space; (4) management would continue to "make available" to the Union its regulations in electronic format; (5) management's right to upgrade software, equipment, and technology, as well as physical facilities and security services, as appropriate, would be reserved; and (6) the Union would be permitted to submit up to three messages per quarter for publication concerning unit employees' earnings and leave statements, but DOL messages for employees would take precedence over Union messages.

CONCLUSION

After careful consideration of the record presented by the parties on this article, we shall order the adoption of the Employer's final offer to settle the dispute. The Employer's proposal provides the Union with an amount of office space to represent bargaining-unit employees effectively. Electronic copies of DOL rules and regulations relating to bargaining-unit employees are consistent with the efficient management of government.

11. Article 47 - Duration

a. The Union's Position

The Union's proposal includes the following: (1) the successor CBA would become effective 30 days after ratification by its membership; (2) a list of 21 previously agreed upon MOUs that would "remain in full force and effect" under the successor CBA; and (3) the continuation of a provision specifying that the article would not apply to dues withholding, which would continue in full force as long as Local 12 retains exclusive recognition of the unit.

b. The Employer's Position

The Employer's final offer specifies that: (1) the articles or provisions mutually agreed upon by the parties become effective on November 15, 2004, subject to Union ratification; and (2) the only previously agreed upon MOU that would survive the implementation of the successor CBA is the one the parties signed on December 6, 1991, involving the DOL's Drug Testing Program, but that Article 33 - Past Practices, "applies to mandatory working conditions that resulted" from previous MOUs.

Its proposal "is silent regarding the 13 articles" that are the subject of the current impasse, and would have the effect of "keeping the FSIP neutral" concerning any future dispute between the parties "on the unknown action or inaction of the Union as to when it intends to submit the mutually-agreed upon provisions to the membership for ratification." In any case, because the Panel's decision is binding on both parties and not subject to ratification by the Union's membership, the effective date of its determinations "should not be overtly or necessarily linked to the other articles," as would occur under the Union's final offer. Moreover, the Union's proposal "does not stipulate a specific date for a total, new agreement to become effective," leaving it to an "ambiguous, unspecified open-ended ratification by the Union membership." It also "makes no sense" to refer to MOUs in the successor CBA that are now moot. Therefore, the Employer has included reference to MOUs "for which there is continued operation" in the specific articles where they belong, and the article on Past Practices "fully protects the Union in regard to any future changes contemplated by management" which could adversely affect unit employees' working conditions. Finally, the subject matter of dues withholding is already appropriately addressed in Article 40 - Dues Withholding, and is "misplaced in an article regarding contract duration."

CONCLUSION

Having carefully reviewed the arguments and evidence presented by the parties on this article, we are persuaded that the Employer's final offer should be adopted. On the issue of the effective date of the successor CBA, the Employer's wording preserves the Union membership's statutory right to ratify those portions of the agreement that were mutually agreed to by the parties while permitting the Employer to implement articles imposed by the Panel that are not legally subject to ratification. Moreover, the Union has provided no support for its assertions that the Employer's proposal "constitutes an unfair labor practice" and violates the parties' ground rules and current Article 47. With respect to the second main issue in the dispute, we do not see the justification for including references in the article to MOUs between the parties that are clearly outdated, particularly where the Employer's wording guarantees the Union's right to negotiate over any future changes to conditions of employment established by the MOUs. For these reasons, the parties shall be ordered to adopt the Employer's final offer.

12. New Article - Mass Transit Subsidies

a. The Union's Position

The Union proposes that: (1) "all bargaining-unit users of eligible mass transit or of eligible commuter highway vehicles (CHVs) will be provided a subsidy of $100 per month via MetroChek" although "an employee's monthly subsidy cannot exceed the employee's actual cost of commuting by eligible mass transit or CHV"; and (2) the parties maintain a "joint oversight and monitoring committee" to deal with issues or problems that arise under the program, as well as matters of program implementation and consistency of application across Agency lines, but that the committee play no role in individual employees' misconduct matters in connection with the program.

b. The Employer's Position

As proposed by the Employer: (1) "within budgetary limitations," eligible bargaining-unit users would receive a transit subsidy not to exceed $100 per month via MetroChek; and (2) in addition to the forums provided under Article 35 - Labor-Management Relations, the Union President or designee could raise issues or concerns about the program with the Director of OELMR on an ad hoc basis. While the parties are in basic agreement as to the amount of the monthly subsidy that employees would be eligible to receive under the program, its proposed wording on this point is more clear than the Union's. The "real impasse" on this article concerns the Union's desire to continue a joint standing committee on this subject matter. The parties already have mutually agreed "not to have ad hoc or standing committees on special subject matters," but to rely on the labor-management committees set up in Article 35 as the "sole forums for all matters and concerns that may arise between the parties." Nevertheless, the Employer has attempted to address the Union's interests by providing an additional "ongoing ad hoc avenue" for it to raise issues or concerns about the program with management.

CONCLUSION

After reviewing the parties' positions regarding the items that remain in dispute in this article, we shall order the adoption of the Employer's final offer. Any problems that may arise can be handled effectively through the labor-management committee structure imposed by the Panel in Article 35 - Labor-Management Relations.

13. New Article - Child Care Subsidies

a. The Union's Position

The Union proposes that management provide 20 percent of the actual child care costs, not to exceed $225 per month, to families with annual total income from $60,000 - $69,999, and 10 percent of the actual child care costs, not to exceed $200 per month, to families with annual total income from $70,000 - $79,999. The legislation permitting agencies to spend appropriated funds to assist their lower income employees with the cost of child care grants them "maximum flexibility" in defining "lower income Federal employees." The Union's proposal to define such employees as those with a total family income (TFI) of $79,999 or less is consistent with Model C of the guidance OPM has provided on the subject, and justified by the cost of living in the Washington D.C. metro area as well as the "extremely low participation rate" in the DOL program nationwide.

b. The Employer's Position

Under the Employer's proposed Child Care Subsidy Program, no assistance would be provided for any family whose total annual income is greater than $59,999. Its proposal increases the subsidy received by eligible bargaining-unit employees to the level currently provided to all other eligible DOL employees. Unlike the Union's proposed threshold TFI, however, $59,999 is "in keeping with Congressional intent." In addition, the Employer's survey of Federal agencies with such a program reveals that only 1 of 28 has a threshold TFI as high as $65,000.

CONCLUSION

Having considered the evidence and arguments presented by the parties on this issue, we conclude that the Employer's final offer provides the better basis for resolving their impasse over the TFI limit that should be applied to determine employees' eligibility to receive child care subsidies. Accordingly, we shall order its adoption.

ORDER

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:

1. Article 4 - Hours of Work