United States of America

 

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF HEALTH AND HUMAN  SERVICES, NATIONAL INSTITUTES OF HEALTH, BETHESDA, MARYLAND
and LOCAL 2419, AMERICAN FEDERATION  OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 00 FSIP 123

 

DECISION AND ORDER

      Local 2419, American Federation of Government Employees, AFL-CIO(Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Health and Human Services, National Institutes of Health, Bethesda, Maryland (NIH or Employer).

          Following an investigation of the request for assistance, arising from the parties’ negotiations over a successor collective-bargaining agreement (CBA), the Panel determined that the dispute should be resolved through single written submissions.⁽¹⁾ After considering the entire record, including the parties’ statements of position, the Panel would take whatever action it deems appropriate to resolve the impasse, which may include issuance of a Decision and Order. Pursuant to this procedure, the Employer submitted its final offer and written statement of position⁽²⁾  The Panel has now considered the entire record.

BACKGROUND

     The Employer’s mission is to employ science in the pursuit of knowledge to improve human health conditions. Bargaining-unit employees work for two components of NIH. Under the Office of Research Services, the Union represents employees in the Maintenance Engineering Section, the Medical Arts and Photography Branch, the Printing and Reproduction Branch, and the Library Branch. In the Clinical Center, the Union represents employees in the Nutrition Department. The bargaining unit, which was consolidated on March 3, 1997, consists of approximately 400 General Schedule and Wage Grade employees. Bargaining unit occupations include food service workers, utility systems repair operators, boiler plant operators, photographers, and librarians. The parties are covered by four separate CBAs, all of which expired, but their terms and conditions continue to operate until a successor consolidated CBA is effectuated.

ISSUES AT IMPASSE

            The parties disagree over whether to: (1) provide a reserved parking space solely for Union use; (2) require the Employer to convert annual leave to administrative leave when the employee prevails in court over NIH police-issued traffic or parking citations; and (3) include a Definitions Article in the CBA.

POSITIONS OF THE PARTIES

1. Union Parking Space

        a. The Employer’s Position

            The Panel should order the Union to withdraw its proposal for a reserved parking space. Parking is limited on campus and no extra spaces are available to reserve for a Union representative. The available spaces at the loading dock are set aside for Government-owned vehicles assigned to the maintenance section and locksmith. These vehicles must be located near the loading dock so that employees may load and/or unload equipment and supplies which they need to effectively perform mission-related duties.

                 Additionally, the Union officials, as NIH employees, already have designated parking spaces in the 8000-space employee parking lot. Previously, the parties also agreed that Union visitors will be provided with temporary parking permits. In an effort to ensure employees have sufficient parking, a "stacked parking" system accommodates employees who do not arrive early enough to obtain a parking space in the employee lot. They may leave their vehicle and key with a contract employee to be double parked in designated areas.

                    b. The Union’s Position⁽³⁾

                    The Union’s proposal is:

The AFGE local will be allowed one (1) reserved parking space in a parking area loading dock nearest the Union office or other location mutually agreed upon by the parties that is reasonably similarly situated. This space will be for the sole use of the Union and its officials, and its visitors.

The Employer has sufficient parking to provide the Union with a single reserved space. If the Employer is able to reserve spaces for Government-owned vehicles and contractors, it should also be able to designate a space near the Union office for Union officials’ use.

CONCLUSION

          Having carefully reviewed the entire record in this case, we conclude that the dispute should be resolved on the basis of a modified version of the Union’s proposal. The modification clarifies that the reserved parking space is to be located near the Union’s office. If a parking space is not available in the loading dock area, the Employer is to provide a space "in a mutually agreeable location." The modification also refers the parties to their negotiated grievance/arbitration procedure should a dispute subsequently arise over the location of the reserved space. In our view, a reserved parking space in the vicinity of its office would facilitate the Union’s ability to perform its representational duties. It also does not appear from the record that parking at the facility is so limited that a suitable space recognizing the importance of the Union’s institutional role cannot be found.

2.   Converting Annual Leave to Administrative Leave

      a.  The Employer’s Position

               The Panel should order the Union to withdraw its proposal for a number of reasons. First, "there is no legal basis" for converting annual leave to administrative leave when an employee prevails in court over NIH police-issued citations. In this regard, the Union’s proposal is nonnegotiable because it violates management’s right to assign work by placing "in the hands of the judicial branch" the Agency’s discretion to approve administrative leave. It also conflicts with Comptroller General rulings that specify the granting of "administrative leave must be for the furtherance of an agency function." On the merits of the proposal, it is unclear what it would mean for an employee to "prevail" before a court, so its adoption could lead to further litigation. The proposal also would require that cost-prohibitive systems be established by management "to monitor the usage and/or application of the administrative leave," and by the NIH police "to determine when bargaining unit employees received citations." Finally, if the Panel feels in any way "compelled to entertain the Union’s proposal," the Employer requests a hearing regarding its merits.

b.  The Union’s Position

        The Union proposes that:

When an employee receives a traffic or parking ticket from the Agency police force, the employee has the right to defend such tickets in court. In cases where the employee prevails in his case on its merits before the court or [liaison], the Agency will convert any annual leave the employee requested to defend him/herself to administrative leave. This includes time required to report to, attend, and return from court. This provision will only apply to Agency issued traffic and parking violations.

On the NIH campus, a high rate of unwarranted traffic and parking citations are issued by the Employer’s police force. Employees who prevail in court should not have to use up their annual leave to contest such unwarranted citations.

CONCLUSION

        Having carefully considered the parties’ positions on this issue, we shall order the adoption of a modified version of the Union’s proposal. With respect to the Employer’s jurisdictional contentions, the Panel is guided by the Federal Labor Relations Authority’s (FLRA) decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, 31 FLRA 620 (1988)(Carswell) when duty-to-bargain questions are raised in the course of its proceedings.⁽⁴⁾ In addressing its argument that the Union’s proposal interferes with management’s right to assign work, we interpret the proposal differently than the Employer. In our view, it contemplates a situation where a supervisor already has granted an employee’s request to take annual leave. Therefore, management’s right to determine that the employee is needed to perform work, and to deny the employee’s request for annual leave in such circumstances, is completely unaffected by the proposal.⁽⁵⁾

    Given this interpretation of the proposal’s meaning, the proper analysis of the duty-to-bargain question raised by the Employer is to be found in FLRA precedent that addresses an employer’s discretion to grant excused absences for brief periods of time. In Department of Veteran Affairs Medical Center, Asheville, North Carolina and American Federation of Government Employees, Local 446, AFL-CIO, 51 FLRA 1572 (July 19, 1996) (Asheville), the FLRA stated that "agencies have discretion to grant administrative leave to their employees in certain situations for brief periods of time" and that "management can negotiate over how it will exercise that discretion."⁽⁶⁾ The FLRA also cited a number of cases, and a variety of situations, where it held that grants of administrative leave are negotiable conditions of employment. Accordingly, we find that Asheville and the cases cited therein provide sufficient precedent under Carswell to permit the Panel to consider the merits of the Union’s proposal.⁽⁷⁾

          Turning to the merits of the proposal, we deny the Employer’s request for a hearing. The Panel’s function is to bring finality to the collective bargaining process. The record indicates that the parties have been negotiating a successor CBA since May 1998, and have received extensive pre-jurisdictional assistance from FMCS and a Panel representative. In our opinion, no purpose would be served by delaying resolution of this matter further. This is particularly true since we are persuaded that, on balance, the Union’s overall approach should be adopted on the basis of fairness to any employee who is wrongly accused of committing a parking or traffic violation. Moreover, the adverse impact of the proposal on management appears to be minimal. Contrary to the Employer’s contention, we see no reason why its adoption would necessitate that management or the NIH police set up cost-prohibitive systems to monitor the use of administrative leave or the citations issued to unit employees. To address the Employer’s legitimate concern that the Union’s proposal could lead to future litigation, however, the wording shall be modified to clarify that an employee’s annual leave would be converted to administrative leave only in those cases "where the employee’s citation is rescinded and/or the employee is completely exonerated in his/her case on its merits."

3.  Definitions Article

     a. The Employer’s Position

           The Panel should order the Union to withdraw its proposal. The Union has "arbitrarily chosen to define labor relations terms just for the sake of defining them." Many of the terms are not relevant and do not provide a clearer understanding of the CBA. Additionally, including a voluminous article like this will unnecessarily increase printing and copying costs.

    b.  The Union’s Position

          The Union essentially proposes to include, as part of the CBA, 18 pages of labor relations terms and definitions. Defining as many terms as possible would reduce the number of conflicts which arise after the new contract is implemented. Moreover, the terms and definitions are all in accordance with those provided by OPM.

CONCLUSION

           Upon consideration of the record provided on this issue, we shall order the Union to withdraw its proposal. The terms and definitions included in the proposal appear to be general labor relations terms that are not necessarily related to the subjects addressed in the parties’ CBA. The Union claims that the article would help to avoid future disagreements over the meaning of the words. In our view, however, it is more likely to confuse, rather than clarify, the parties’ understanding, particularly because little time, if any, was spent at the bargaining table discussing the terms and definitions contained in the proposal.

ORDER

           Pursuant to the authority vested in it by the Federal Service Labor-Management Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

1.   Union Parking Space

            The parties shall adopt the following compromise wording to resolve their dispute:

The AFGE will receive one (1) reserved space in the parking area loading dock nearest the Union office, if available. If no parking space is available in this area, the Employer will provide the Union with a reserved parking space in a mutually agreeable location nearest to the Union office. This space will be for the sole use of the Union and its officials. Any disagreements regarding this matter will be addressed through the grievance/arbitration procedure.

2.  Converting Annual Leave to Administrative Leave

         The parties shall adopt the Union’s proposal to resolve their dispute, modified as follows:

When an employee receives a traffic or parking ticket from the Agency police force, the employee has the right to defend such tickets in court. In cases where the employee’s citation is rescinded and/or the employee is completely exonerated in his/her case on the merits before the court or liaison, the Agency will convert any annual leave the employee requested to defend him/herself to administrative leave. This includes time required to report to, attend, and return from court. This provision will only apply to Agency issued traffic and parking violations.

3.     Definitions Article

          The Union shall withdraw its proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

December 22, 2000

Washington, D.C.

1.The investigation included a pre-jurisdictional meeting between the parties, a mediator from the Federal Mediation and Conciliation Service (FMCS), and a Panel representative. During the investigation, approximately 35 issues were voluntarily resolved.

2.The Union did not submit a written statement of position.

3. Since the Union did not provide a written statement addressing the merits of the dispute, its positions on the issues are drawn from the statements it made during the Panel’s initial investigation of the case.

4. In Carswell, the FLRA stated that “the purposes of the Statute are best furthered by encouraging third-party consideration and application of [FLRA] precedent so as to assist in the resolution of negotiation impasses which raise substantively identical duty-to-bargain issues to those already decided by the [FLRA].” Thus, “if the Panel can resolve an impasse relating to a proposal concerning a duty-to-bargain issue by applying existing FLRA case law, it may do so.” (Carswell at 624-25.)

5.Thus, for the purposes of this decision, we understand the phrase “the employee has the right to defend such tickets in court,” which appears in the first sentence of the proposal, to be a general statement of fact, dependent upon a supervisor’s decision to grant the employee’s request for annual leave. If an annual leave request is denied for bona fide work-related reasons, the employee’s recourse would be to request a postponement of his or her scheduled court appearance.

6.In reaching this result, the FLRA noted that, in a previous case upholding the granting of time off as a holiday good-will gesture, the Comptroller General found that “[t]he controlling issue here is not the prudence of the release from duty order, but rather, the validity and effect of that order.” 64 Comp. Gen. at 172.

7.The negotiability of the proposal is further buttressed by the FLRA’s decision in National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1129 (1991), where it determined that a proposal was negotiable which required the employer to convert absence without leave to a different leave category if it later found the absence excusable.