CORRECTED ISSUANCE DATE
DECISION AND ORDER
This case concerns a request for Panel assistance filed by the U.S. Department of Housing and Urban Development (HUD or Agency) involving the negotiations of the successor collective bargaining agreement (CBA) between it and the American Federation of Government Employees, Council 222 (AFGE or Union). This dispute was filed pursuant to §7119 of the Federal Service Labor-Management Relations Statute (the Statute). The Federal Service Impasses Panel (Panel or FSIP) asserted jurisdiction over this dispute and directed the matter to be resolved in the manner discussed below.
BARGAINING AND PROCEDURAL HISTORY
The Agency's mission is to create strong, sustainable, inclusive communities and quality affordable homes for all. The Parties are covered by a CBA that expired on July 23, 2018, but continues to roll over until the parties enter into a new agreement. The American Federation of Government Employees, Council 222 represents nearly 4,500 employees throughout the United States.
The Agency initiated negotiations[1] over a new agreement by emailing the Union its initial ground rules proposal on June 8, 2018. The Parties then had numerous interactions between this date and August 8, 2018, when the Agency filed a request for Panel assistance (FSIP Case No. 18075). The Panel asserted jurisdiction over the ground rules matter. The Panel ultimately imposed ground rules upon the parties, in Case No 18 FSIP 075, by way of a Decision and Order[2] issued on February 14, 2019. In accordance with that decision, the Parties exchanged initial proposals at the end of February. They then engaged in numerous bilateral negotiation sessions from March 2019 until August 23, 2019. Beginning September 9, 2019, the Parties began receiving mediation assistance from the Federal Mediation and Conciliation Services (FMCS). From then until January 10, 2020, the Parties utilized the services of three different FMCS mediators. The Parties reached tentative agreement on over 20 articles as a result of the foregoing process. Despite the bargaining activity, the Agency filed a request for Panel assistance on January 10, 2020 (FSIP Case No. 20026). The Panel declined jurisdiction over that request because the Parties had several weeks of impending mediation/negotiations at the time of the Agency’s filing. The Panel determined that the Parties had not yet bargained to impasse.
After receiving the decision in Case No. 20 FSIP 026, the parties engaged in more bargaining with the FMCS mediator. On February 28, 2020, the parties concluded negotiations after a total of 22 weeks of negotiations and mediation. At the conclusion of negotiations, the Parties had reached agreement of 37 articles, but failed to reach agreement on 14 articles in the Parties’ successor CBA. The mediator released the parties. The Panel asserted jurisdiction over the impasse and directed the parties to submit their dispute to Member Newman for an Informal Conference. The Informal Conference was held on April 23, 2020. No resolution was reached. The parties were directed by Member Newman to continue discussions for 30 days over the outstanding issues, with an attempt to find joint resolution in as many of the articles and sections as the parties could resolve on their own. The parties were advised that if, at the end of the 30-day continuation-of-bargaining period, the parties had any remaining outstanding issues, the parties were to submit the remaining issues to the full Panel.
Two weeks into the continued-bargaining period, the Agency reached out to the Panel, expressing concern that the Union had not engaged with the Agency since the Informal Conference. The Agency notified the Panel that the Agency had previously provided their last best offer and asked that the continuation-of-bargaining period be terminated. The Agency asked that the parties be directed to submit their written submissions. The Union responded with proof that they in fact had several email exchanges with the Agency and had already committed to providing revised proposals in short order. Member Newman advised the parties that she was inclined to maintain the original timeframes, as directed. After Member Newman’s instruction, the parties voluntarily reduced the number of remaining articles from 14 to 12. The Panel was also informed that on May 18, 2020, the Agency modified its last best offer regarding Article 30 – Performance Appraisal. The Union responded with its final offer, which appears to accept the Agency’s proposal on all substantive matters in Article 30. In its written submission and the rebuttal, the Union did not mention or discuss any disagreements in Article 30. Accordingly, the Panel orders the parties to adopt the Agency’s Article 30, as modified on May 18, 2020. As a result, there are 11 remaining articles for the Panel to resolve.
On June 5, 2020, both parties submitted their statement of positions (SOPs) regarding the remaining issues. The parties were directed that their SOP was to be no more than 2 pages per remaining article. The Agency filed a Motion to Strike the Union’s submission, arguing that the Union’s statement of position exceed the page-limit; the SOP included a “notes section”, which was eight single-space pages of argument. The Agency asked that the Panel not consider that section of argument.
The Union responded by arguing that the Agency mischaracterizes the Union’s “notes” section as “argument”, but they are in fact end notes; supporting citations. The Panel instruction indicates that the SOP shall have a limited number of pages (i.e., maximum of 28 pages), excluding the attachments. The Panel concludes that the attachment (i.e., the end note), is supporting reference and, therefore, does not count against the page numbers or format expectations. The Union’s arguments are in its SOP and meet the page-limit requirements imposed by the Panel.
The Union then filed a Motion to Amend its first response to the Agency’s Motion to Strike. The amendment was provided after the Union had an opportunity to read the Agency’s SOP in full. In its original response, the Union notes that the Agency’s SOP included 102 exhibits as attachments; a submission of 772 pages. The Union drew the parallel to its inclusion of attachments. However, after the Union actually reviewed the Agency’s submission, the Union argued in its amendment that the Agency placed a number of its arguments, not in the body of the SOP, but actually in the attachments. For example, while the Agency’s statement may say they are offering its proposal to “address problems”, the Agency doesn’t discuss what those problems are in the body of the SOP. Instead, the Agency references affidavits in the attachments, where a bargaining team member discusses what the problems are; the arguments are made in the affidavit, not in the body of the limited SOP. The Union argues that the Agency misuses the affidavits in order to not exceed the page limit in the SOP. The Union also contends that while the Agency argues that the Union’s attachments where non-conforming because the endnotes were presented in single-space format, the Agency’s attachments were “deceptively” presented in 1 1/2 -space format.
In a recent Panel decision (Case No. 20 FSIP 033), the Panel discussed a similar concern raised over a party exceeding the page limitation. The Panel’s procedural letter states (in FN2) that Evidence may include affidavits. The Panel provides no guidance on the purpose of affidavits or limit to the number of attachments. While it appears that both parties may be avoiding the page limitation of the submissions by taking advantage of the opportunity to provide attachments, since the parties have not technically violated the Panel direction by providing their affidavits, the Panel rejects the Union’s motion regarding the Agency’s attachments.
The parties were directed to submit their rebuttals by June 19, 2020 at 5 PM EST. The Agency’s rebuttal was received at 4:35 PM and the Union’s rebuttal was received at 5:01 PM, including exhibits 1-10. Then the Union provided exhibits 11-31, received at 5:07 PM. And then at 5:23 PM, the Union sent a follow up confirming that all of the exhibits had come through; including all of the attachments in one email. On June 22, the Agency sent the Panel an email, noting that the Union’s submission of its rebuttal was not in conformance with Panel instruction because it was received after 5 PM (at 5:01 PM and 5:07 PM). Additionally, the Agency asserts once again that the “notes” section exceeds the page limit. Finally, the Agency notes that the Union’s last email, received at 5:23 PM, included an addition exhibit (declaration of S. Viola). The Panel’s direction to parties is to submit their material by a date and time certain. However, the parties have no control over what time the emailed materials will actually be “received” by the opposing party and the Panel. It is certainly plausible that the Union submitted a document just before or at 5:00 pm and the material did not register as actually received (i.e., cleared the server) until after 5:00 PM. The Panel takes note of the submissions that were “received” at 5:01 PM and 5:07 PM.
In prior Panel cases, where one party was not in compliance with the Panel direction, the Panel noted that it would consider the totality of the circumstances, the impact of the late filing on the other party, and what the other party is seeking as a remedy. In Dep’t of State, Bureau of Consular Affairs, Passport Services (18 FSIP 059) (a case involving the length of the submitted statement of position), the Panel decided not to consider the additional page presented by the Union in its written submission because that extra page “prejudiced the Agency, as the Agency did not have an additional page to present its arguments and evidence.” In Dep’t of Defense Education Activity, 18 FSIP 069 (a case involving the length of the submitted SOP), the Panel accepted the Agency’s extra page of its written submission when the Union did not object, but did not accept the three extra pages of the Agency’s rebuttal statement (to which the Union did object) because the Union “did not have an opportunity to supplement its rebuttal statement.” The Panel recently issued a procedural decision in Dep’t of Veterans Affairs and AFGE, 20 FSIP 022 (June 8, 2020), in which it considered the Union’s objection to the Agency’s late filing of its submission. In that case, the Panel stated, “[S]triking Management's position in full is simply a bridge too far, particularly where the Union has not identified any prejudice it experienced as a result.” Instead, the Panel permitted the Union to miss a deadline for one of its article submissions by five days, and granted the Agency five extra days to submit its rebuttal as a matter of parity: the Panel decided to grant the Union an extended deadline that matched the Agency’s earlier tardiness.
The Panel has a desire to see the entire record. While the Panel will not disregard lack of compliance with its procedural instructions when the opposing party raises an objection, in consideration of the circumstances in this case, there was potentially a delay of only 1 minute. That minor delay could be explained by the difference between submitting and the actual receipt once clearing the FLRA server. As for the email submitted at 5:23 PM, as the original email as confirmed to be received, there is no need to even consider the follow up email at 5:23 PM. As for the impact of the late filing on the other party, the Agency raised no adverse impact in their note to the Panel. And finally, the Agency requested no sought remedy. The Panel determines no action is warranted under the circumstances.
On July 2, 2020, the Union emailed a request to stay the Panel proceedings in this case while the Union’s court filing challenging 18 FSIP 075 (case regarding the ground rules to negotiating the CBA) is under consideration. In FSIP Case No. 18075, after the Panel issued its decision over the ground rules, the Union filed a case with the court, challenging the appointment and composition of this Panel. American Federation of Government Employees v. Federal Service Impasses Panel et al., 19-cv-01934 (D.D.C) (AFGE v. FSIP). The relief sought in AFGE v. FSIP includes an order enjoining the Panel from exercising its powers and declaring that the Panel may not exercise its powers until it is composed of a Chairman and at least six other members that have been appointed “by and with the Advice and Consent of the Senate,” as required by the Appointments Clause to the United States Constitution. The Union claims that the Panel does not have authority to resolve this matter and that any action it takes will be in violation of the Appointments Clause to the United States Constitution. The Union’s argument because the Union’s argument is unpersuasive. The Panel is appropriately appointed and, therefore, the Panel’s jurisdiction over this matter is appropriate.
PARTIES ARGUMENTS AND PANEL DECISIONS
- Article 7 - Professional Employees
The Parties’ remain in dispute over the scope of the article and the extent to which the Agency will reimburse employees for holding licenses that are required for their jobs. The Union represents two separate bargaining units at HUD. One unit includes close to 4400 non-professional employees (including Appraisers[3]), the other unit includes approximately 400 professional employees (i.e., Attorneys). Under the current CBA, the Agency reimburses the Professional Employees for bar dues[4] and attendance at meetings. The Agency seeks to maintain that language in the successor CBA. The Union seeks parity between the two units by expanding the application of the article to provide reimbursement for both professional employees (i.e., Attorneys) and for non-professional employees (i.e., Appraisers), who have licensure as a condition of their employment.
The Agency employs real estate appraisers to support various Federal Housing Administration (FHA) programs. These employees have always been required to be state-certified appraisers with credentials based on the minimum certification criteria issued by the Appraiser Qualifications Board (AQB) of the Appraisal Foundation and must appear on the Appraisal Subcommittee’s (ASC) National Registry. While the Agency currently pays for the cost for the Attorneys to meet state bar continuing education requirements, the Agency does not currently pay for the initial certification (a requirement in ordered to be hired) or renewal[5] of these state certifications (a requirement to maintain eligibility to hold the position). The Union argues that the cost of approximately $373 per appraisal is a burden on employees, but is negligible to the Agency given its $47.9 Billion budget. The Agency argues that the unreimbursed licensure requirements have not resulted in the position being hard to fill, has not caused a high rate of attrition, and the additional expense on the Agency would result in no tangible benefits to the Agency.
The Agency currently expends approximately $85,000 annually supporting their commitment to the Attorneys. The Agency estimates that the cost of the Union’s proposal would result in an additional $20,000[6] per year. The Agency argues that the Union has offered no tangible benefit to the Agency in exchange for this increased cost, but only offers that the benefit would improve morale. The Union argued that the reimbursement would also serve as a recruitment incentive as well as a retention incentive.
The Agency relies on Department of the Treasury, Office of the Chief Counsel and National Treasury Employees Union, 04 FSIP 005 (2004), where the Panel rejected a similar union proposal on the basis of the cost and the lack of tangible benefit to the Agency. In 04 FSIP 005, the Panel relied on NFFE Local 1214, 40 FLRA 1181 (1991) and Comptroller General decisions (e.g., B-218964 (1985)) prohibiting paying for real estate appraiser fees. The Union notes that the Comptroller General decision relied upon has since been overturned by Comptroller General decision B-302548 (2004). In the 2004 case, the Comptroller General within the General Accounting Office (GAO) determined that pursuant to 5 U.S.C. 5757(a), federal agencies are authorized to use appropriated funds to pay an employee’s expenses to obtain professional credentials. However, an agency may pay only the expenses required to obtain the license or official certification needed to practice a particular profession, including licensing fees and examinations to obtain credentials. The Agency, in its rebuttal, did not refute that the Agency is not prohibited from paying the fees, but argues that the Agency does not choose to cover the expense. In the interest of parity, and in acknowledgement that the Agency does in fact receive a benefit from the Appraisers maintaining licensure, the Panel orders the parties to adopt the Union’s Article 7.
- Article 12 - Disciplinary and Adverse Actions
The Parties remain at impasse over two issues: Section 12.01 - the standard to be applied to discipline actions that does not rise to the level of an adverse action, and Union’s Section 12.07 - the circumstances under which the Union will receive notice of decisions issued in disciplinary and adverse actions.
- Standard to be Applied to Discipline Actions
A disciplinary action includes suspensions of 14 days or less and reprimands, while an adverse action includes the more severe forms of discipline such as, removals, suspensions of more than 14 days, and a reduction in grade (demotion) or pay. As for the standard for taking disciplinary actions, under the current CBA, Section 12.01, discipline can only be taken for “just and sufficient cause”. The Union proposes a “just cause” standard will be used for disciplinary actions. The Agency proposes the “efficiency of the service” standard.
The principle of “just cause” standard[7] is a common disciplinary standard adopted in contracts (and by arbitrators[8] enforcing contracts) to ensure disciplinary actions taken by an employer against an employee are just and appropriate. Adopting that standard means that discipline of employees will only occur if the Agency establishes “just cause” for doing so.
The “efficiency of the service” standard for imposing discipline is derived from the Civil Service Reform Act; from Congress. Agencies are authorized to subject employees to adverse actions “only for such cause as will promote the efficiency of the service,” according to 5 U.S.C. § 7513(a).
The Union seeks to maintain the distinction in standards between disciplinary actions and adverse actions. The Agency argues that having two different standards would be inefficient and leads to confusion by the manager on which standard to apply. The Agency provided no evidence that having a different standard in the current CBA has caused confusion or lead to challenges in arbitration[9].
The Panel addressed a similar issue in a recent FSIP case. In that case, the parties had adopted a “just and sufficient cause” standard in their CBA since at least 2001. The Parties presented no evidence or argument regarding the use of the standard. With no evidence to support the concerns offered, the Panel ordered the parties to maintain the current contract standard. Similarly, in this case, the Panel orders the parties to maintain the current contract standard – “just and sufficient cause”. The parties are ordered to add to the Agency 12.01 (2), the following modification – “Disciplinary Actions will be based on just and sufficient cause.”
- Union Notification of Decisions Issued in Disciplinary and Adverse Actions
The Agency proposes to eliminate an information requirement in the current CBA, Section 12.07. Under the current 2015-CBA:
Section 12.07 - Union Notification. When Management issues a notice of proposal and/or decision to suspend, reduce-in grade, or remove an employee in the unit, Management shall provide to the Union a general statement of the charges, proposed action, and subsequent decision.
The Agency asserts that the current contract language, requiring the Agency to release disciplinary information on an employee in the bargaining unit, violates employee privacy, particularly where that employee has not authorized the Agency to release the data to the Union. The Agency cites a 1990 FLRA case, 37 FLRA 1346, where the FLRA cautions against proposals that require the release of information that would violate personal privacy.
The Union is entitled to certain information about the administration of discipline within the bargaining unit under its statutory rights (5 USC 7114 (b))[10]. In an attempt to address the Agency’s concern regarding the release of information where an employee has elected not to authorize the Agency to release information, the Union has proposed an amendment to the contract language. While the Agency would continue to be obligated to provide the information (e.g., general statement of the charges, proposed action and subsequent decision) to the Union automatically, the amended language would allow the Agency, where the employee has not provided written authorization to release information to the Union, to provide a sanitized copy of the data.
While the Agency asserts that the current contract language presents a legal challenge, the Agency provided no evidence that the Agency has challenged the legality of the provision under the existing CBA (e.g., disallowed on Agency Head review or declining to provide the data, as supported by a law). The Panel orders the parties to adopt the Union’s Section 12.07, which maintains the current language in the CBA, with modification allowing the Agency to redact information, where appropriate.
- Article 16 - Hours of Duty, Credit Hours, Alternative Work Schedules
The primary area in dispute in this article concerns whether employees working a “flexitime” schedule will be required to notify their supervisor when they begin work each day. The Agency proposes language in the Section 16.03 (2)(d) that would require the employee approved to work on a Flexitime schedule to notify their supervisor when they actually begin their workday. Without that notification, particularly if the supervisor and the employee are not physically in the same area, there are two hours in the morning and two hours in the afternoon during which the supervisor many not be aware of the employee’s presence in the work area. The Agency argues that this creates accountability problems in terms of physical verification, management-directed work assignments, validation of time and attendance records, and unintentionally forcing an accruement of credit hours or overtime.
The Union’s proposal, similar to the current CBA, does not include such a requirement. Instead, the Union’s proposal (16.10) prohibits the Agency from requiring the employee to use any system (e.g., T&A system, sign in sheets, security access systems, or computer log ons) to sign in or out. The Agency argues that the current CBA language has created significant problems for management because they don’t know what time an employee arrives at work. The Agency provided affidavits supporting the management challenges under the current CBA language, including substantiation that supervisors regularly request information from the Agency’s facilities personnel regarding the time employees have entered the building[11], or request data from the information technology personnel regarding what time an employee used a computer.
The Union offers that while the parties had in the current CBA that sign-in procedures would not be necessary, the parties also agreed to multiple provisions that would allow management to oversee their employees without requiring any additional daily sign-in procedures. In the establishment of the flexi-time program, the parties have agreed to proposals that allow management to 1) discipline employees for abusing the flexitime schedule and 2) end the flexitime schedule and replace it with a standard fixed tour schedule (Sec. 16.03). The parties also agree on management’s right to terminate any alternative work schedule if it is determined that the “employee’s participation would negatively impact operational needs” (Sec. 16.04). These provisions are in the current CBA and are already agreed to by these parties. The Union argues that the Agency has not shown that there is a need to change the longstanding no sign-in practice or that there is any significant or widespread problem that has not been resolved by the aforementioned Sections.
The Panel disagrees that the Agency has shown no need for change. The Agency presented unrefuted affidavits demonstrating the supervisors have been challenged with managing the workforce and the work without knowing the status of their employees for up to 4 hours a day. It is not unreasonable for a supervisor managing a flexi-schedule employee to require a check-in from the employee at the start of their workday. Regarding using sign-in/sign-out for employees on a flexitime schedule, the Panel orders the parties to adopt the Agency proposal 16.03 (2)(D) and modify the Union proposal 16.10 by removing the last sentence – “Employees will not be required to use time recording equipment, sign-in/sign-out sheets, security systems, or communication systems for timekeeping.”
The parties disagree over Section 16.03 (g)(v) concerning the resolution of conflicts regarding the scheduled day off under a compressed work schedule (CWS). Both parties provide that if two employees are unable to resolve their conflict concerning the CWS-day, it shall be resolved by seniority. The Agency’s proposal limits the provision’s applicability to new requests for a CWS-day off. The Agency argues that broader application of the Union’s proposal could permit a senior employee to require a less senior employee to change their already established schedule. The Union provided no argument regarding their proposed language. As the Agency has presented a valid reason for their more limited provision, the Panel orders the parties to adopt the Agency’s Section 16.03 (g)(v).
The last remaining impasse in Article 16 is over the last remaining sentence in 16.08; specifically, how to reference the Agency’s existing Limited Personal Use Policy. The Agency refers to the policy as the “applicable” Limited Personal Use Policy. The Union refers to the policy as the Limited Personal Use Policy (as applicable under Section 57.02 of the Agreement). The Panel orders the parties to adopt the Agency’s language that references the applicable Limited Personal Use Policy, and add the modified language – “to the extent that it has been bargained as required by the Statute”.
- Article 34 - Furlough for Thirty Days or Less
The 1 remaining area of disagreement in Section 34.03 concerns the extent to which negotiations will be conducted before an administrative or planned furlough. The decision to conduct a furlough is a management right, however, the Union retains the right to bargaining impact and implementation of the decision under the labor Statute. Under the Union’s Section 34.03 (5), if impact and implementation bargaining is necessary, the Union proposes the parties will following Article 49 – Midterm Bargaining. The Agency would rather remain silent regarding bargaining rights. The Panel orders the parties to adopt the Union’s Section 34.03 (5), with modification – “For Administrative and Planned Furloughs, to the extent the Statute requires impact and implementation bargaining, that bargaining will take place in accordance with Article 49.”
- Article 45 - Reasonable Accommodations
The Parties are far apart on this article. The first area of disagreement is in the inclusion of a list of policies and laws that would apply. In the prior CBA and the Union’s proposal, there is a list of EEOC laws and policy guidance that will be followed by the parties. The Union offers the list of relevant authorities to make it easier for the parties to identify the governing policies. The Agency provided no reason for disagreement, they offered no examples where the reference has created concern, nor does the Agency deny that they are obligated to follow those policies in the execution of the Reasonable Accommodation program. Those same authorities are listed in section 1-6 of the HUD Reasonable Accommodation Handbook (RA Handbook; discussed below). As the parties have agreed to reference that RA Handbook in the CBA, there is no need to duplicate the list of authorities in the CBA. The Article is exceptionally long. Eliminating duplication will help make the article easier to follow. The Panel orders the parties to eliminate the reference to the authorities in section 45.01.
Under Section 45.01, the parties disagree over the reference to the HUD RA Handbook on Reasonable Accommodation (RA). The parties agreed under the former CBA to reference the applicable RA Handbook (Handbook 7855.1). In an effort to improve the overall RA process and experience, the Agency updated the RA Handbook: HUD Handbook 7855.1, Rev. 2, Reasonable Accommodations for Individuals with Disabilities Policy Procedures. The Agency submitted the revised RA Handbook to the EEOC on August 23, 2019 for review and approval. The EEOC determined that the revised reasonable accommodation procedures comply with EEOC regulations implementing Section 501 of the Rehabilitation Act of 1973 (Section 501), as amended, 29 U.S.C. § 791(b); 29 C.F.R. § 1614.203, and Executive Order 13164, 65 Fed. Reg. 46565 (2000). The RA Handbook was approved. Both parties agree to incorporate the revised RA Handbook into the CBA. Where they disagree is over the Agency’s proposal to incorporate not just the revised RA Handbook, but also any “successor” to that RA Handbook, that has not yet been created, approved by the EEOC, or bargained with the Union. The Panel orders the parties to adopt the Union’s proposal regarding the Handbook 7855.1 (Rev 2).
Section 45.02 provides a list, not all inclusive, of examples of reasonable accommodations. As the parties cannot reach agreement, and a list of examples are included in the RA Handbook, Section 1-7, the Panel orders the parties to eliminate the list of examples in Section 45.02.
Section 45.03 covers the RA request process. The RA Handbook, CHAPTER 3: THE REASONABLE ACCOMMODATION REQUEST PROCESS, also covers the process for requesting and approving a RA. It appears that the Agency added language in the CBA provision that was not included in its August 2019 policy that was approved by the EEOC. As the parties agreed to follow the RA Handbook, which was approved by the EEOC, the Panel orders the parties to follow the procedures reflected in the RA Handbook, without modification.
Section 45.04 covers reassignment as a form of a Reasonable Accommodation. The RA Handbook, CHAPTER 3: THE REASONABLE ACCOMMODATION REQUEST PROCESS, also covers reassignment as a form of a RA. As the parties agreed to follow the RA Handbook, which was approved by the EEOC, the Panel orders the parties to follow the procedures and criteria reflected in the RA Handbook, without modification.
Section 45.05 covers confidentiality of Medical Documentation provided during the Reasonable Accommodation process. The RA Handbook, CHAPTER 4: MEDICAL DOCUMENTATION AND CONFIDENTIALITY, covers the handling of medical documentation during the RA process. As the parties agreed to follow the RA Handbook, which was approved by the EEOC, the Panel orders the parties to follow the procedures and criteria reflected in the RA Handbook, without modification.
The last area of substantive disagreement in is Agency Section 45.06 – Previously Approved Accommodation. The Agency argues that there have been problems with revisiting previously approved RAs. As a result, the Agency would like to add a provision to the CBA that makes it clear that the Agency is free to revisit its decision to approve a RA. The Union argues that the Agency’s proposed language, forcing an employee, at the request of the Agency, to re-substantiate the need for the accommodation after already being approved for the accommodation, is in violation of EEOC regulations. In a 2014-court decision, decided under the American with Disabilities Act (ADA, 42 USC 12117(a)), the court indicated that an employer cannot withdraw an accommodation that had previously worked for both the employer and the employee. In Isbell v. John Crane[12], Inc., a federal district court ruled an employer violated the ADA when it withdrew an employee’s previously approved modified work schedule which had allowed her to start later in the morning so her medication could actuate. The employee, who was diagnosed with ADHD, bipolar disorder, and a joint-affecting disorder known as Ehlers Danlos, had been prescribed medication that did not take effect until several hours after she woke up in the morning, which necessitated a later start to her work day. The employee enjoyed a modified work schedule with the approval of her supervisor for two years which allowed her to arrive to work later than her co-workers. The employee was later assigned a new supervisor who unilaterally withdrew the accommodation after attempting to institute a uniform start time, claiming the late arrival time placed an “undue hardship” on the employer. She was then required to submit new documentation to support her need to renew the old work schedule.
At trial, both sides filed motions for Summary Judgment. The court granted Isbell a Summary Judgment on the ADA discrimination claim. But the District Court commented that both Isbell and the employer completely missed the main issue by “focusing their attention on the question of whether a start time of 9:15 a.m. was reasonable.” The real issue was whether it was reasonable for the employer to remove an accommodation (i.e., the 10:00 a.m. start time) that was already in place, and working successfully for both parties, for more than two years. The Court concluded it was unreasonable for the employer to withdraw the accommodation in the absence of evidence suggesting the employee’s later start time presented an “undue burden.” The Court also found the employer had not worked with the employee to adjust the accommodation or presented evidence suggesting the employee’s performance suffered as a result of her modified work schedule. Thus, the employer’s sudden change to the employee’s schedule, done without consideration of her known disability, “constituted an unreasonable failure to continue to accommodate that disability under the ADA.”
This case provides warning that employers should think twice before considering discontinuation of a long-held disability accommodation as a hardship without going through an interactive process with the employee. Given this need to be cautious, and the fact that the Agency did not include this provision in the RA Handbook approved by the EEOC, the Panel orders the Agency to withdraw their Section 45.06 regarding previously approved accommodations.
- Article 47 - Union Representation and Official Time[13]
The Parties disagree on a number of major topics in this Article, many of which are provisions that are the subject of Executive Order 13837 - Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use. The first dispute concerns the amount of official time that will be available to the Union to conduct representational duties. The current CBA provides for about 60,000 hours of Official Time to provide representation in the Headquarters and the 9 Regional Offices across the country. For the two most recent fiscal years (FY18 and FY19), the Agency submits that AFGE charged 24,371 and 20,343 respectively in official time. With approximately 4500 bargaining unit employees, the rate of official time actually approved for use was 4.6 hours per bargaining unit employee in FY18 and 4.12 per bargaining unit employee in FY19. This is significantly higher than the rate generally considered under public policy guidance by the Administration[14] to be reasonable, necessary and in the public interest.
The Agency has proposed to reduce the amount of official time available in the bank to 2000 hours. The Agency proposes to achieve that reduction by eliminating official time for a number of representation activities. The largest reduction, the Agency argues, will come from the Agency’s proposal to no longer offer official time for grievance activities, the largest category of official time used by AFGE in FY18 and FY19. This proposed exclusion will be discussed further below. The Agency claims that the Union used 1922 hours on such activity in FY18 and 2611 in FY19; thus, substantiating the offer of 2000 hours (less than half of the Executive Order amount of approximately 4500 hours).
The Agency supports their proposal to disallow the use of official time for grievance preparation by arguing that allowing union representatives to use official time to prepare grievances artificially increases the filing of grievances. The Union refutes that claim by providing an affidavit from a former Labor Relations representative that asserts that the work the Union does to help a bargaining unit employee evaluate and prepare a grievance is invaluable and actually leads to less frivolous grievances being filed by the bargaining unit. The Agency also argues that not offering official time for preparing grievances is on par with the non-bargaining unit, who are not granted duty time to prepare an administrative grievance. The Union has filed a ULP grievance, alleging bad faith bargaining over the insistence for eliminating official time for grievance preparation. That case has not been scheduled with an arbitrator.
The Union argues that their proposal would voluntarily reduce the bank of hours by 75%, to 15,000 hours; approximately 3 hours per BU employee. While it is not as low as the E.O. guidance of 1 hour per bargaining unit employee, the Union argues that the offer is consistent with the Agency’s stated goal to reduce the impact of official time.
The Agency demonstrated where the official time reduction would come from, the elimination of grievance preparation, in support of the need for approximately 2000-2600 hours. The Agency’s historic figure assumes that there will be no increase in the formal filing and processing of grievances. The evidence does not require the conclusion that there would be less grievances. In fact, there may actually be more grievances (less developed grievances) that may very well take more time to address through the formal grievance process. With this uncertainty over the likely impact of eliminating grievance processing on official time, the Panel does not believe the Agency has substantiated the quantitative number of hours in the official time bank they are seeking.
The Panel believes that the Union has also failed to substantiate the need for the quantitative number they are seeking; 15,000 hours. Besides offering an arbitrary number less than what they were entitled to under the former contract (a 75% reduction), the Union did not substantiate how the Union will need to use those hours to support its representational role under the new CBA.
Neither party substantiated the quantitative number they are seeking in the official time bank. As the Panel has relied on the E.O. 13837 standard of 1-hour per bargaining unit employee as valuable public policy guidance, the Panel orders the parties to adopt that calculation for the official time bank that applies to Section 47.01 (1).
The Agency also proposed to cap the amount of official time any individual union representative can use. The Agency provided affidavits demonstrating that Union leaders that are 100% or nearly 100%-Union officials are unable to effectively perform the assignments of their position of record. The E.O. 13837 provides that an individual cap of 25%[15] is generally appropriate. The Union is willing to agree with a 25% individual cap. However, the Agency is proposing a cap of 15%. The Agency argues that a 15% individual cap provides an “acceptable impact” on the Agency mission; an acceptable amount of time for the Union representative to be away from performing their mission-related work assignments. The Union argues that 15% is arbitrary and artificially low, and will prevent consistent representation of the bargaining unit; forcing the Union to continually shift Union representatives in order to remain under the individual cap. While the Agency did demonstrate how 100% designation has an impact on being able to make assignments to particular individuals, the Agency did not demonstrate how the E.O. recommended cap of 25% would adversely impact the delivery of the agency mission or could be managed. The Panel orders the parties to adopt the Union’s 25% individual cap.
The next section of impasse between the parties is in Section 47.04 – Procedures. The Agency’s proposal requires the Union representative to provide an advanced written request to use official time. The Union’s proposal only requires that the request and approval be provided in advance, but not necessarily in writing. Written request and written approval formalize the process and protect both the Union and the Agency should there be a challenge to a denial of official time. The Panel orders the parties to adopt the Agency’s proposal of requiring that the request and approval be in writing.
The parties are also in dispute over the basis for denial of a request to use official time. Under the Agency’s Section 47.04 (4), the supervisor may deny the use of official time due to “operational needs”, but should work with the employee to reschedule the time. This is a change from the standard under the prior CBA and the standard proposed by the Union, Section 47.04 (4) – “mission critical necessities”. The Agency argues, but provides no examples or evidence, that the Union’s standard is too onerous to administer. Official Time is statutorily authorized and protected (5 USC 7131). The Agency presented no evidence that the standard it has in the current CBA has been problematic. The Panel orders the parties to maintain the current standard for denying official time – “mission critical necessities or ineligibility to use official time”.
The parties are in dispute over the Agency’s language which would charge an employee absence without leave (AWOL) (subject to discipline) if that employee is performing union duties during their tour of duty without prior written approval of official time. The Agency provided no explanation for proposing this language. Without any explanation for the need for the language, the Panel orders the Agency to withdraw this proposal. Similarly, the Agency is ordered to withdraw its proposal in Section 47.06 – Disciplinary and /or Adverse Actions for Failure to Follow Official Time Procedures. If a Union representative has not properly requested official time in advanced, as required by the CBA, the Agency is free to deny that request for Official Time. Additionally, Union representatives are not exempt from discipline under Article 12 of the CBA.
The parties are in dispute over Section 47.04 concerning the requirements for a Union official to enter another work area in order to provide representation to that employee. The Agency proposes that the Union representative receive written approval in advance of any visit for representational purposes. The Union simply proposes advance notice for visits of more than 10 minutes. Consistent with the recommendation above, the Panel orders that the approval should be in writing. As it may be difficult for the Union representative to know in advance if their conversation with a bargaining unit employee will last for more than 10 minutes, it is best to eliminate any potential disputes over meetings that are more than 10 minutes or not. The Panel orders that the notification requirement apply to all meetings with employees, whether they are anticipated to be more than 10 minutes or not. The final sentence in the Agency’s Section 47.04 (2) provides for punishment if there is any misstep in the notification requirement. Similar to the issues discussed above, the Agency provided no explanation for proposing this language. Without any explanation for the need for the language, the Panel orders the Agency to withdraw this sentence.
The parties are in dispute over the Union’s Section 47.04 – Adjustment of Workload. The Union provided a detailed proposal on adjusting a Union representative’s workload in order to facilitate their release. The Union provided no explanation for proposing this language. Without any explanation for the need for the language, the Panel orders the Union to withdraw this proposal.
- Article 48 - Union’s Use of Official Facilities
In this article, the Agency commits to providing private office space in Headquarters, as well as in the Regional Offices. Under the current CBA, Article 48, the Agency is required to provide the Union private offices in Headquarters and “for each Local President and at those field locations that currently provide private office space for local representatives.” While the Agency has 10 regional offices, the Agency has approximately 60 field offices, and approximately 12 of them house less than 10 staff members. The Agency submitted an affidavit that explained that there are numerous field offices across the country that previously had larger staffs, union stewards, and a union office but have undergone drastic staff reductions. The result is that there are numerous field offices with under 30 employees that are required by the current CBA language to continue to provide a union office, including in future space when there is an office move, despite the fact that the union office is rarely, if ever, used. Further, many of these offices, such as San Juan, PR and Albuquerque, NM, do not have a union steward in the office and very little, if any, union activity; yet those offices are required under the current CBA language to continue to provide a union office and will be required to rent space and provide for a union office in the future.
In some of those small offices, the Agency argues that they have a need to use space occupied by a rarely used union office or, the Agency is moving and doesn’t believe there’s a reasonable need to lease space for a union office that has been rarely used. Under the new CBA, the Agency is seeking the flexibility to more efficiently manage its space and have the ability to either save costs by not leasing a union office in a future move, or utilize current union office space to meet agency operational needs. The Union seeks to maintain the current space commitment, but also acknowledges that if the Agency has other business reasons to take that space back, they can do so, subject to bargaining under the Statute.
The parties agree over much of the provisions of Section 48.01, save the level of commitment (i.e., will consider providing the space vs. will provide the space); the criteria for leasing existing space; and the Union’s right to bargaining over a notification to change the existing space. The Panel believes that the Agency has offered appropriate criteria for determining that space will no longer be provided. The Panel orders the parties to adopt the Agency’s Section 48.01.
The parties disagree over Section 48.02, concerning the use of meeting space by the Union. The Agency proposes that the Union can use the space only during off-duty time. The Union’s proposal includes use of the space during duty and non-duty time, but also subjects the use to management approval and subject to cancellation by the Agency where there is a conflict. The Agency provided no specific concerns with the Union’s proposed language, except that it is a change from the current CBA language. The Union provided no specific need for the change from the current CBA. The Panel orders the parties to maintain the current CBA language for Section 48.02 – Meeting Space.
The parties disagree over Section 48.03 concerning usage of the Agency’s telephone system. The Agency commits to allowing use of the telephones at the individual’s worksite or at other HUD offices. The Union proposes that the Agency will allow use of the telephone at the individual’s worksite or Union office (if that office is provided by the Agency). The Agency is concerned that the language will commit to providing a Union office, when the Agency may choose not to (per Section 48.02). The Agency’s proposal addresses the commitment to provide access to Agency telephones. The Panel orders the parties to adopt the Agency Section 48.03 concerning the use of Telephones and VTC.
The parties disagree over a number of provisions in Section 48.05 concerning Union office equipment and supplies provided to the Union. Under the Union’s proposal and consistent with the terms of the current CBA, the Agency would be required to furnish the Union with a computer for each local office. The Agency estimated the cost for that commitment to be approximately $2795[16] per Union office or a total of $136,995. The Agency’s proposal is for the Union to provide its own office equipment, including computers, furniture and file cabinets. The Union argues that much of the requested equipment has already been provided by the Agency, in accordance with the current CBA. The Union argues that there is no gain to the Agency to dispose of the items already provided. The Union offers no argument regarding why the Union cannot cover the Union’s equipment expenses.
There is one concern that hasn’t been addressed by either party. While the Agency proposes that the Union provide its own computer equipment, the Agency also asserts that connecting that private equipment to the Agency’s computer network (i.e., LAN) must be approved by the Office of Chief Information Officer (OCIO). Security network requirements are extensive and often changing, requiring continuous updates and equipment replacements to maintain a safe and secure environment. The Agency prefers the Union to be connected with the internal systems[17]. However, without providing the proper and appropriately maintained equipment, the Union’s access to the system would quickly become limited or non-existent.
The Panel orders the parties to adopt the Agency’s Section 48.05, with modification. In Section 48.05 (1), the parties will add, “The Union is responsible for procuring its own office equipment, except for the Union’s office computer that is approved to be connected to the LAN. The Agency will provide and maintain that computer in the Union’s Headquarter office and in 9 Union regional offices.” The Panel also orders the parties to adopt language that allows the Union to maintain its current (upon execution of the CBA) equipment, but not be entitled to replacement of that equipment under the new CBA.
Neither party demonstrated a need to change Section 48.07, concerning Electronic Mail. The Panel orders the parties to maintain the current contract language for Section 48.07 concerning Electronic Mail. The Agency proposes a new Section 48.07, concerning punitive actions against Union representatives for any failed compliance with the Article. Disciplinary and Adverse Actions for all bargaining unit employees are addressed in other Articles and applicable Agency policy. The Panel orders the Agency to withdraw their Section 48.07 concerning Disciplinary and/or Adverse Actions for Failure to Comply with Article 48.
- Article 49 - Mid-Term Bargaining
The purpose of this Article is to prescribe the criteria and procedures by which the Union and the Agency will engage in negotiations during the term of the Agreement. The provisions of this Article would apply to mid-term bargaining when required by law. The Parties disagree on a number of topics in this Article. The first disagreement is in Section 49.01 – General. The Union’s proposal references back to the parties commitment in Article 4. Neither provided argument or discussion over that language, and that Article is not before the Panel in this impasse. The Panel orders the parties to withdraw their second paragraph in Section 49.01; otherwise, the parties agree over Section 49.01.
In Section 49.02, the parties disagree over whether the procedures of the Article would apply to union-initiated midterm bargaining changes. The history of bargaining over union-initiated changes in working conditions is reiterated in Dep’t of Interior, 56 FLRA 45 (2000). That case was an unfair labor practice case before the Authority on remand from the U.S. Court of Appeals for the Fourth Circuit. In 1999, the U.S. Supreme Court vacated a Fourth Circuit decision (132 F.3d 157 (4th Circ 1997). The Supreme Court found that the Statute was ambiguous with respect to the question of whether agencies are required to bargain over union-initiated midterm proposals and Congress delegated to the Authority the power to determine when bargaining is required. The Supreme Court remanded the case to the Authority for further consideration, consistent with the Court’s opinion. In Dep’t of Interior, the Authority discussed Congress’ intent regarding the bargaining obligation under 5 U.S.C. Section 7103 (a) (12). Congress defined the obligation to bargain as “mutual”. The Authority determined that requiring an agency, during the term of an agreement, to bargain over a union’s proposed change in negotiable conditions of employment maintains the mutuality of the bargaining obligation prescribed in the Statute.
The Agency recognizes that Dep’t of Interior, decided by the Authority in 2000, continues to be the law. However, the Agency would prefer to not include any mention of the Union’s right to propose mid-term changes, with the hope that the state of the law “could change in the future”. The Agency also argues that the parties have had no problems with the language not being included; the Agency argues the language is not necessary. However, the Agency discussed in their SOP that the parties actually had an arbitration case over the matter of a union-initiated change. The Arbitrator ruled, not that the Union could not initiate bargaining over a union-initial change, but instead, that the parties did not have procedures in their CBA to process such a request to bargain. The Arbitrator ruled that Article 49 in the current CBA only applies to Agency-initiated changes. To address the absence of procedures for Union-initiated changes, the Union has proposed procedures in the Union’s Section 49.02 (2). The Panel orders the parties to adopt the Union’s proposed procedures in Section 49.02 (2) for Union-initiated changes.
The parties also disagree over local and regional bargaining. The FLRA has determined that a mandatory bargaining obligation exists only at the level of recognition. Bargaining below the level of recognition is permissive. Federal Aviation Administration, 62 FLRA 174 (FLRA 2007). That case was before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Statute and concerning the negotiability of 8 proposals, one of which would have required the agency to bargaining below the level of recognition. The FLRA found that a union proposal required bargaining at the local level over some issues arising after the national agreement was reached was negotiable only at the election of the agency. The level of recognition in that bargaining unit was national. The FLRA determined that a party may, but does not have to bargain below the level of recognition. This Panel has consistently stated that it would not force a party to waive its permissive rights to decline to bargain. In order to preserve both parties’ right to maintain bargaining at the level of recognition (i.e., the national level), the Panel orders the parties to adopt the following modification to the Agency’s Section 49.02, “the parties agree that there is no obligation to bargain matters below the national level of recognition, unless the parties mutually agree to do so.” The Panel orders the Union to withdraw its remaining sentence in Section 49.02 (1) concerning the time frame for management to provide notice because that matter will be addressed below.
The parties disagree over the time period for the Union to demand bargaining after receiving notice of a proposed change. As a general rule, an agency or activity is free to make changes in conditions of employment not covered in a collective bargaining agreement following adequate notice of the proposed change to the union. Adequate notice of a proposed change in conditions of employment triggers the Union’s responsibility to request bargaining over the change. See United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 715 (1999). Failure to request bargaining may result in a finding that the union has waived its bargaining rights. Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575, 582-83 (1992).
In Section 49.03, the Agency proposes that it will provide the Union notice of the proposed change no less than 15 days prior to the implementation date of the change. The Union proposes that the notice will be provided in no less than 25 days prior to the proposed change, providing more time for the parties to exchange information and proposals before the scheduled implementation date. Both parties agree that once bargaining is complete, even if it is before the 15-day or 25-day timeframe, the Agency is free to move forward with implementation. The Panel orders the parties to adopt a modified timeframe - 20-days.
In Section 49.04, concerning the Agency’s response when the Union has submitted a demand to bargain, the parties agree in principle, even regarding the timeframes to commence bargaining. The Union’s language is clearer: submit proposals on time or bargaining is waived; begin bargaining within 10 days; the Union has the right to request information; and parties will exchange proposals in writing. The Panel orders the parties to adopt the Union’s Section 49.04.
In Section 49.05, concerning the bargaining venue and the number of negotiators, the parties agree with most of the principles, including agreement that each party will pay their own cost for travel to negotiations and the ability to conduct bargaining virtually. The Panel orders the parties to adopt the provisions where there is agreement, and withdraw the provisions where they do not agree. Neither party offered explanation or justification for their unagreed to provisions.
In Section 49.06, concerning the ground rules for midterm bargaining. The Agency indicated, through the affidavits, that bargaining has been delayed due to travel demands or the delay in providing the Union information. The travel cost-issue has been resolved under Section 49.05. There is a body of case law that addresses the Agency’s obligation to provide information to facilitate negotiations. The Panel orders the parties to adopt the Agency’s Section 49.06, except Section 49.06 (9), which references a provision in Section 49.04 that was not adopted.
In Section 49.07, concerning negotiability disputes, the parties disagree over a number of issues. First, the parties disagree over whether the negotiability determination will be a grievable matter under this CBA. The matter of grievability will be addressed under Article 51, Grievance Procedures. The parties will adopt only the first sentence to Section 49.07.
The parties also disagree over Section 49.07 (1), concerning the treatment of proposals when there is a determination by the Agency that part of the Union’s proposal in not negotiable. The Agency seeks the agreement to implement the proposed change, with the commitment that if they are later found by the Authority to be in error in making the negotiability determination, they will resume bargaining. Essentially, they are asking the Union to waive its rights to challenge the declaration of negotiability through the filing of a ULP. The Union’s proposal allows for the implementation of only the agreed upon proposals. The Panel orders the parties to adopt the Union’s Sections 49.07 (1) and (2).
In Section 49.08, concerning bargaining impasse procedures, the parties disagree over 2 main issues. The first is in the Union’s Section 49.08 (1), requiring that impasse be reached and the FMCS Mediator declares the impasse before either party can request the assistance of FSIP. That is inconsistent with the Panel regulations. The Mediator is not required to “declare an impasse” before a party can file for FSIP assistance. The Agency’s Section 49.08 (1) includes a provision that allows for part of the agreement to be implemented prior to complete agreement on all negotiable issues; a severability clause. The Panel has determined in several cases that they will not order a severability ground rules clause because, under Carswell[18], it is not clear that the proposal is a negotiable proposal. The Panel orders the parties to adopt the Union’s Section 49.08, modified by removing the language in Section 49.08 (1) – “If impasse is reached and declared by the FMCS mediator”.
- Article 51 - Grievance Procedures
The Parties have not reached agreement over a number of issues including, primarily, the exclusions from the grievance procedure. The scope of the grievance procedure, meaning the types of matters considered, is fully negotiable. However, the party moving to exclude matters from the negotiated grievance procedure will have a difficult time excluding subjects and narrowing the scope because Congress has expressed a strong preference for "broad scope" grievance procedures. (AFGE Local 225 v. FLRA, 712 F. 2d 640 (D.C. Cir 1983)). If a bargaining impasse is reached on the scope of the negotiated grievance procedure, the FLRA has stated that FSIP is to impose a broad scope grievance procedure, unless the limited-scope proponent can persuade it to do otherwise. (Pension Benefit Guarantee Corporation, 59 FLRA 937 (FLRA 2004)).
The Agency proposes to exclude: (1) Agency Section 51.03 (6) - classification of any position (even those that do not result in a reduction of grade or pay[19]); (2) termination of a temporary appointment; (3) official reprimand; (4) adverse action, (5) performance-based action; (6) interim appraisal; (7) annual performance rating; (8) retention/relocation/recruitment payments or the failure to grant such payments; (9) performance standards; (10) failure to grant or process a within grade increase (WIGI); (11) changes to the union’s use of agency space and equipment; (12) negotiability disputes; (13) attorney fee disputes in excess of $10,000; and (14) the granting of, failure to grant, or failure to timely process awards[20].
The Agency argues that it is consistent with public policy to exclude matters from the negotiated grievance procedure when the employees have alternative avenues of redress to expert adjudicators. The Agency relies on a footnote in an appealed arbitration (i.e., arbitration exception) regarding the awarding of attorney fees in a hazardous duty case. In AFGE and VA, 71 FLRA No.38 (July 2019), Member Abbott observes that the Arbitrator in this case, by finding that the housekeepers are entitled to environmental-differential pay, reached the opposite conclusion as the arbitrator in another recent case − AFGE, Local 933, 70 FLRA 508 (2018) (Local 933). Member Abbott noted that these cases illustrated the limitations of pursuing every possible complaint through the negotiated-grievance procedure to be decided ultimately by a third-party arbitrator. Member Abbott offered, as a suggestion in Footnote #3, that when employees are concerned about serious hazards and workplace safety, it may be more effective and efficient to have those concerns addressed by expert adjudicators at the Occupational Safety and Health Administration (OSHA), a government entity designed to address workplace safety.
The Agency in this case is relying on that advisory footnote to support its exclusion of some matters from the grievance procedure. The Agency argues that some of the matters are otherwise appealable to the Merit Systems Executive Board (MSPB): (2) – termination of temporary promotions; (4) – adverse actions; (5) - performance based actions); and (10) failure to grant or process a within grade increase (WIGI), and therefore, they don’t need to be appealed in the negotiated grievance procedure. The Agency argues that the MSPB is staffed with judges that have more expertise to address those claims than an arbitrator. The Agency argues that item (12) is appealable to FLRA, where they have the superior expertise. The Agency argues that allowing for expert adjudicators is paramount to allowing claims to be adjudicated before arbitrators selected by the parties.
The Agency argues that other items should be excluded because of the cost associated with litigating some of those matters and other items should be excluded because non-bargaining unit employees are not allowed to grieve those matters. And finally, the Agency asserts that some items (6 7, 8, and 14) should be excluded because the Agency has been asked to excluded them under E.O. 13839, Section 4.
The Panel has repeatedly stated in its recent decisions regarding grievance exclusions that the Panel will not ignore the United States Court of Appeals for the District of Columbia’s holding that a proponent of grievance exclusion will be held to a elevated burden when a particular matter must be excluded in a particular setting. See, Social Security Administration and AFGE, 19 FSIP 019 (May 2019). With that standard in mind, the Agency has failed to demonstrate that in this setting, exclusions are more reasonable than allowing the matters to be subject to the negotiated grievance procedure. Absent that demonstration, the Panel orders the parties to maintain the exclusions in the current CBA.
The parties disagree over Section 51.04 regarding the time lines for filing a grievance. The Union included in its proposal language regarding continuing violations. The continuing violations doctrine holds that for every day a violation of the CBA continues, a new and separate violation accrues; restarting the timeline for filing a claim. The Agency has not agreed with including this provision in the CBA, arguing that the inclusion of the provision would render the timeframes for grievance filings meaningless.
An arbitrator should not be precluded from applying equitable doctrines, even if that application may toll the time period for filing, in the interest of justice. The Arbitrator should be free to make a finding of fact on the continuing nature of a violation and the appropriate remedy given that finding. The Panel orders the parties to adopt the Agency’s 51.04, with modification by adding a statement that an arbitrator may determine that a matter is not time time-barred if all acts constituting the claim are part of the same practice and at least one act falls within the filing period.
The next area of disagreement is in Section 51.05 concerning grievances filed by an employee who chooses to not be represented by the Union. In its proposal, the Union included a provision asking the Agency to provide the Union with a copy of the final grievance decisions that are also provided to the unrepresented employee. Such information would be relevant and necessary to the Union’s monitoring the Agency’s commitment to not resolve any grievance inconsistent with the terms of the CBA (Section 51.05.) The Panel orders the parties to adopt the Union’s Section 51.05.
In Section 51.06, the parties disagree over the number of Union representatives that can be present in a grievance meeting. The Agency proposes (Section 51.06 (3)) that the Union can only have one representative present at the grievance meeting, regardless of how many Agency representatives are present. The Union’s proposal (Section 51.06 (3)) provides for an equal number of Union representatives in the meeting to the number of Agency representatives. The Panel orders the parties to adopt the Agency’s proposal, with modification - the Union may be represented by one bargaining unit employee on official time and such other representatives as it chooses.
The parties also disagree over using Official Time to prepare grievances. As discussed in Article 48 above, the Agency has proposed to reduce the amount of official time available in the bank to 2000 hours. The Agency proposes to achieve that reduction by eliminating official time for a number of representation activities. The largest reduction, the Agency argues, will come from the Agency’s proposal in Section 51.06 (5) to no longer allow official time for grievance handling activities, the largest category of official time used by AFGE in FY18 and FY19. The Panel orders the parties adopt the Agency’s proposal for Section 51.06 (5), prohibiting Union representatives to use Official Time for grievance preparation.
As for the bargaining unit employee, the Agency provided no language or argument on how the bargaining unit employee involved in a grievance should charge their time in preparing for a grievance. The Union argues that as the parties have agreed to allow the employee to be on duty in the grievance meetings and arbitrations, they should also be allowed to be on duty time in preparing their grievance. Absent any rebuttal argument from the Agency to the Union’s proposals, the Panel orders the parties to adopt the Union Section 51.07.
The parties disagree over the timing of raising a specific violation or remedy under Section 51.08. The Agency has proposed that all issues be raised in the originally drafted grievance, otherwise waived. The grievance procedure is intended to be a less formal, administrative procedure than a court procedure, with advocates and drafters of the grievance that are more often not attorney’s or even labor-relations professionals. Additionally, the Agency provided no evidence that a less restrictive process has been troublesome to the Agency. The Agency simply argues that a more limiting grievance procedure will “facilitate amicable resolutions”, without any evidence to support that assertion. The Panel orders the Agency to withdraw its language in Section 51.08 that limits the raising of issues or remedies.
- Article 52 – Arbitration
The disagreement in Sections 52.01, 52.02, and 52.10 primarily relate to the arguments regarding exclusions to the grievance procedure. As the Panel ordered that new proposed matters not be excluded from the negotiated grievance procedure above, those matters should not be referenced in this article. The parties are also in disagreement over the Union’s proposal in Section 52.01 (5) to allow some matters to go directly to arbitration, with no consideration under the grievance procedure. The Union provided no justification for such a treatment. Those matters should go through the grievance procedure as with other matters.
The parties disagree over the treatment of witnesses in Sections 52.04 and 52.09. The Agency argues that witnesses should normally appear in person. The Agency also proposes that each party will pay for their travel and per diem for them to appear. The Union proposes that witnesses can be virtual or in-person, at the discretion of the arbitrator, who is the one determining the credibility of the testimony offered. Finally, the Agency proposes that witnesses not identified in the prehearing submissions shall not be permitted to testify. The Panel orders the parties to adopt the Agency’s Sections 52.04 and 52.09 (4).
The parties disagree over the submission of exhibits. In Section 52.08 (4), the Agency proposes that any exhibit that was not identified in the prehearing submission will be excluded from the hearing. The Agency has proposed the same for the statement of the issue; if a party doesn’t offer a proposed statement of the issue in the prehearing submissions, they are excluded from do so later (e.g., in the post hearing brief). The arbitrator is in the best position to determine the weight he or she will provide to the submissions. The Panel orders the parties to adopt the Union’s Section 52.08.
The parties disagree over the issuance of attorney’s fees in the case where the employee has been granted back pay by the arbitrator. Attorney's fees may be recovered in connection with grievance arbitration, but only as authorized by Statute. The Back Pay Act (BPA), 5 USC 5596, grants jurisdiction to an arbitrator to consider a request for attorney fees. Once the BPA's threshold requirements are met, fees may be awarded by an arbitrator consistent with the provisions of 5 USC 7701 (g). The requirements for an award of attorney's fees are: 1) the employee (or union) must be the prevailing party; 2) the award of fees must be warranted in the interest of justice; 3) the amount must be reasonable; and 4) the fees must have been incurred by the employee (or union). Fees may also be awarded under other fee-shifting statutes, such as the Fair Labor Standards Act. There must be a specific statutory authorization for an award of attorney's fees. Naval Surface Warfare Center, 60 FLRA 530 (FLRA 2004). When an arbitrator fails to sufficiently explain the basis for a fee award, necessary to ensure the statutory requirements have been met, that is subject to review by the FLRA. The arbitrator will determine the entitlement to attorney fees and the FLRA will assess whether the legal sufficiency has been met by the arbitrator in making the award.
There is a body of FLRA case law concerning the reasonableness of attorney fees. Under Section 52.07, the parties disagree over the language that acknowledges the arbitrator’s authority to determine fees. The Union’s proposal simply states that the arbitrator may authorize fees in accordance with law, including the BPA. The Agency’s proposal goes further by trying to interpret specific FLRA case precedent (e.g., whether a waiver of sovereign immunity is required; whether the employee must have a retainer agreement with the Union; and whether the Agency can artificially cap the attorney rate to match the rate of the GS-14 Agency Attorneys). As the Back Pay Act and other statutes grant jurisdiction to the arbitrator to determine the entitlement to attorney fees, subject to the review of the Authority, the Panel orders the parties to adopt the Union’s Section 52.10 (7) concerning attorney fees.
- Article 53 - Duration
The Parties disagree over the duration of the CBA. The Agency proposes the duration of the CBA to be seven (7) years. The Union proposes a term of three (3) years[21]. The Agency argues that its proposal will help to reduce resource expenditures[22]. The Agency argued that these negotiations have cost the Agency roughly $517,831 in Iost productivity for Union and Agency representatives to participate in ground rules and term negotiations in 2019 and 2020. The Agency did not pay travel and per diem for the Union representatives. In addition to the cost savings in renegotiating a successor CBA less frequently, the Agency proposes a 7-year duration because throughout the parties’ bargaining history (dating back to 1979), with the terms rolling over by mutual agreement, the contracts have generally been in place for nearly nine years, on average. Consistent with a number of recent Panel orders (i.e., FSIP Case No. 19031, FSIP Case No. 19019 and FSIP Case No. 20012), where the cost of bargaining and the concern over perpetual negotiations of a CBA were considered by the Panel, the Panel orders the parties to adopt a 7-year term, with roll over unless either provides notice of reopener.
The parties disagree over the supplemental agreements the parties have bargained. While there appears to be hundreds of policies and agreements that were adopted by the parties under the current CBA, the parties are only in agreement to carry the terms of 9 agreements into the new CBA. The Panel orders the parties to only adopt those supplements that the parties have agreed to: Supplements: 5B, 6, 7, 10, 20, 129, 134, 141, and 146. All other past practices, prior local agreements, and prior oral agreements will not be references in Section 53.01.
The parties disagree over 53.02, concerning the impact of changes in law, government-wide rule, rulings that impact the Department. The Agency proposes that those changes go into effect, with no reference to bargaining implications. The Union’s proposal acknowledges that there may be a bargaining obligation, subject to waiver of the Union. The Panel orders the parties to adopt the Union’s Section 53.02.
Generally, an automatic renewal provision of a contract provides that the contract shall continue in effect after its expiration date if no action to amend or terminate it is taken within a specified period prior to its expiration date. However, a contract with an automatic renewal or "rollover" provision is still subject to agency head review upon renewing itself. Kansas Army National Guard, 47 FLRA 937 (FLRA 1993, Kansas National Guard). In Kansas National Guard, the FLRA clarified the effect of automatically renewing a CBA. The Authority found that the use of automatic contract renewal dates was consistent with efficient and effective government because it preserved the time and resources that would be expended in renegotiating collective bargaining agreements where the parties deemed such to be unnecessary. The Authority found, however, that an automatically renewed agreement was still subject to agency head review under 5 USC 7114 (c) because governing laws and government-wide regulations might have changed during the term of the agreement. The Authority held that for automatically renewing collective bargaining agreements, the execution date (for purposes of triggering the time limits for agency head review) was the date on which no further action was necessary to finalize a complete agreement. The Panel orders the parties to adopt the Agency’s 53.04.
The parties disagree over Section 53.07 concerning the electronic distribution of the CBA and the referenced supplements. Consistent with the recommendation above, the Panel orders the parties to adopt the Union’s Section 53.07, requiring the Agency to electronically distribute not only the CBA, as they have agreed to do, but also the supplements listed in 53.01.
ORDER
Pursuant to the authority vested in the Panel under 5 U.S.C. §7119, the Panel hereby orders the parties to adopt the provisions as stated above.
Mark A. Carter
FSIP Chairman
August 12, 2020
Washington, D.C.
Attachments:
Original CBA
Agency Proposals
Union Proposals
[1] Upon initiating bargaining over the ground rules, the Union sent the Agency numerous information requests regarding the Agency’s proposals; with particular interest in their proposals requiring each party to pay its own expenses in bargaining the CBA. The Agency denied the requests for information. The Union filed a grievance over the denial, alleging failure to bargain in good faith. On April 9, 2019, the Arbitrator ruled that the Agency committed a ULP by denying the information requested. The Agency filed an exception to the award with the FLRA. (71 FLRA No. 116). The Agency argued, in part, that the information request was moot due to the FSIP decision 18 FSIP 075, which included an order requiring that each party pay their own expenses. The FLRA determined that the matter was not moot and ultimately denied the exception. In the order, the FLRA discussed the Agency’s behavior in its refusal to provide the Union the requested information. During the arbitration, the Arbitrator ordered the parties to engage in mediation-type discussions to determine what information could be provided. FLRA Member Abbott noted that the Agency’s unrelenting position ran counter to the intent of the Trump Executive Order 13836, which promotes effective and efficient bargain.
[2] 18 FSIP 075 was challenged by the Union in the District Court of the District of Columbia. The Union claimed that FSIP violated the APA by issuing its decision at a time when the Panel was comprised of only four members. The case has been dismissed.
[3] The Agency employees 78 real estate Appraisers.
[4] Section 7.02 - Membership Dues. Where membership in a professional organization is required by
Management, Management agrees to pay membership dues related to that requirement.
Section 7.03 - Attendance at Meetings. If an employee is directed to attend a meeting of a
professional society, organization, or association, such direction must be in writing from an authorized
Management official, and, therefore, shall be considered official authorization to participate and shall
be reimbursed accordingly.
[5] The renewal frequency differs by state from annual to triennial.
[6] The Union estimates the cost to be closer to $22,000, based upon a survey of interest.
[7] The general “just cause” standard is a by-product of an arbitration case decided in 1966. In that case, an employee was fired for failing to perform tasks as instructed by their employer. The labor contract in force at the time included language stating that management had the right to discipline or discharge employees for “cause” but also that employees could not face discipline or termination without “proper cause.” Realizing that no provision in the labor contract in question defined the words “cause” and “proper cause” – the arbitrator overseeing the case chose to establish the standards to be applied. To this day, those standards – referred to as the “Seven Tests of Just Cause” – are applied by arbitrators when analyzing and judging an employer’s evidence supporting “just cause” in discharge and discipline cases.
The 7 tests: (1) Notice. Did the Employer give the Employee forewarning for or foreknowledge of the possible or probable disciplinary consequences of the Employee’s conduct; (2) Reasonable Rule and Order. Was the Employer’s rule (which the Employee was forewarned of) reasonably related to (a) the orderly, efficient, and safe operation of the Employer’s business and (b) performances that the Employer might expect of the Employee; (3) Investigation. Did the Employer, before administering discipline to an Employee, make an effort to conduct an investigation and discover whether the Employee did, in fact, violate or disregard a rule or order of the Employer; (4) Fair Investigation. Was the Employer’s investigation conducted fairly and objectively; (5) Proof. Did the Employer obtain substantial evidence or proof that the Employee was guilty as charged; (6) Equal Treatment. Has the Employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees; (7) Penalty. Was the degree of discipline administered by the Employer in this case reasonably related to (a) the seriousness of the Employee’s proven offense and (b) the record of the Employee in his service with the Employer.
[8] A Supreme Court decision in 1985 (Cornelius v. Nutt) held that for adverse actions, arbitrators must apply the same standards as those used by the Merit System Protection Board (MSPB).
[9] The Agency did reference one arbitration case (a case in the Social Security Administration, not precedential to this unit), where the Arbitrator ruled that the agency erred when it applied the wrong standard when it mitigated an adverse action down to a disciplinary action, resulting in the discipline being overturned by the Arbitrator.
[10] The D.C. Circuit Court has stated that the representational functions of a union in connection with the discipline of unit employees promotes important public interests. For example, the exclusive representative serves to ensure that Federal agencies observe statutory, regulatory, and collective bargaining agreement procedures in disciplining and removing employees. We find that the public’s interest in ensuring that Federal agencies comply with their responsibilities in disciplining and removing employees outweighs an individual employee’s privacy interests. AFGE, Local 1345 v FLRA, 793 F2d 1360 (D.C. Cir. 1986)
[11] Affidavit from Ronald J. Salazar, Physical Security Specialist in the Office of 5 Administration at HUD: “Frequently, management requests access reports to verify the arrival time of an employee. Due to union Supplement 116, which states that the PIV/Smartcard Logon will not be utilized for signing in and signing out for time and attendance purposes, I am not allowed to provide that information unless it is pursuant to an official Departmental request or OIG investigation. I let the manager/supervisor know that I am unable to provide them with such a report and refer them to Employee Relations/Labor Relations for guidance.
[12] Isbell v John Crane, Inc., Case No. 11 C2347 (Northern District of Illinois Eastern Division, March 21, 2014).
[13] On January 16, 2020, the Union filed an Unfair Labor Practice (ULP) grievance against the Agency, charging that the Agency’s proposals would harm the Union because they limit the amount of official time that would be available to the Union; requiring the Union Representatives to engage with the bargaining unit on some representational activities on personal time. Those charges are working their way through the grievance procedure. Arbitration has not yet been scheduled.
[14] Trump Executive Order 13837 - No agency shall agree to authorize any amount of taxpayer-funded union time under section 7131(d) of title 5 … unless such time is reasonable, necessary, and in the public interest. Agreements authorizing taxpayer-funded union time under 7131(d) that would cause the union time rate in a bargaining unit to exceed 1 hour should, taking into account the size of the bargaining unit, and the amount of taxpayer-funded union time anticipated to be granted under sections 7131(a) and 7131(c) of title 5 … ordinarily not be considered reasonable, necessary, and in the public interest, or to satisfy the “effective and efficient” goal set forth in section 1 of this order and section 7101(b) of title 5…. Agencies shall commit the time and resources necessary to strive for a negotiated union time rate of 1 hour or less, and to fulfill their obligation to bargain in good faith.
[15] Employees shall spend at least three-quarters of their paid time, measured each fiscal year, performing agency business or attending necessary training (as required by their agency), in order to ensure that they develop and maintain the skills necessary to perform their agency duties efficiently and effectively.
Employees who have spent one-quarter of their paid time in any fiscal year on non-agency business may continue to use taxpayer-funded union time in that fiscal year for purposes covered by sections 7131(a) or 7131(c) of title 5, United States Code.
Any time in excess of one-quarter of an employee's paid time used to perform non-agency business in a fiscal year shall count toward the limitation set forth in subparagraph (1) of this subsection in subsequent fiscal years.
[16] Costing per Debbie Jankowski, June 2020. The price of $2,795 includes the laptop, docking station, keyboard, mouse and two monitors. There are 49 offices, including HQ. 49 x $2,795 = $136,955
[17] The Agency proposes to give the Union an electronic mail box (email) and agrees to communicate using the email system (e.g., notice requirements).
[18] Commander Carswell Air Force Base, TX and AFGE, Local 1364, 31 FLRA 620 (1988).
[19] Re-classifications that result in a reduction of grade is an adverse action; appeal to MSPB. The Union agrees to exclude the reduction of grade cases under their Section 51.03(16).
[20] The Union agrees, in its Section 51.03 (20) to exclude on the spot awards.
[21] Although the Agency has not declared the Union’s provision non-negotiable (i.e., was a waiver on a parties’ right to bargain over a permissive subject), the Union filed a ULP charge over the Union’s provision: the effect of the terms of the CBA when the parties are negotiating over the terms of the new CBA: ground rules provisions for negotiating the successor CBA. The Agency is not contesting the negotiability of the provision, additionally, the Panel does not order the adoption of that portion of the Union’s provision. This negotiability appeal does not change the Panels order that the parties adopt the Agency’s proposal, but has been noted as an argument raised by the Union.
[22] Trump Executive Order, “Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining” provides guidance on reducing expenditures, including establishing a 7-year contract duration to save cost associated with negotiations.