In the Matter of DEPARTMENT OF THE NAVY NORFOLK NAVAL SHIPYARD PORTSMOUTH, VIRGINIA	Case No. 96 FSIP 155
and LOCAL 41, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO

ARBITRATOR’S OPINION AND DECISION

      Local 41 of the International Federation of Professional and Technical Engineers, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia (Shipyard or Employer). After investigation of the request for assistance, which concerns an initial collective bargaining agreement (CBA), the Panel directed the parties to mediation-arbitration before the undersigned. On January 7, 1997, after day-long mediation efforts successfully enabled the parties to resolve four of the five issues at impasse,⁽¹⁾ a brief arbitration hearing was conducted on the remaining issue, during which the parties presented their final offers and supporting arguments. The parties also submitted post-hearing briefs. The record is now closed.

BACKGROUND

      The Employer is primarily responsible for repairing and overhauling naval vessels. The bargaining unit consists of approximately 110 radiological technicians who ensure that the Shipyard’s work on nuclear components is accomplished safely in accordance with specific nuclear requirements; the technicians range in grade from GS-7 through -11. The Union was certified as the exclusive representative of this unit in late 1994; the radiological technicians were formerly part of a larger unit represented by a different union, the Tidewater Virginia Federal Employees Metal Trades Council (FEMTC). Until the implementation of a new agreement, the parties, for the most part, will continue to apply the terms of the CBA between the Employer and FEMTC to the unit.

ISSUE AT IMPASSE

    The parties disagree over whether the CBA should include a bank of official time hours to be used by Union representatives when conducting labor-management business.

THE PARTIES’ POSITIONS

1. The Employer’s Position

    The Employer’s proposal is as follows:

ARTICLE 7. UNION REPRESENTATION

Section 3a. Union representatives, including recognized and identified officers and Executive Committee members, shall be allowed official time for conducting labor-management business in an amount not to exceed 1,500 hours per year, excluding hours spent in negotiations. This official time shall be placed in a "bank" which the Union’s representatives’ time will be charged against for conducting appropriate labor-management business. The parties also agree that, if necessary, a separate amount of official time may be negotiated to cover unusual unforeseen circumstances which require the involvement of the Union, and which are not in the course of normal Employer/Union business, as anticipated by the bank of hours.

Section 3b. The aforementioned figures shall be computed on an annual basis beginning each fiscal year (October 1) for the life of this Agreement and any extensions thereof. The parties agree that the Union will be allocated half of these hours each six months (twice per fiscal year - at the beginning of the year and midterm) in a lump sum. There shall be no carryover of time from year-to-year, and the number of hours in the bank will be reviewed at the beginning of each fiscal year to determine if adjustments need to be made. If either party feels adjustments are required, this will be accomplished through negotiation. The Union agrees to jointly manage the use of this official time to ensure that the total authorized time is not exhausted. The Employer agrees to furnish the Union a computer read out of all official time charged against the "bank" once a month, listing each individual Union representative and dates of usage. Further, the listing will indicate the total percent of usage to budget to date. In the event all allocated funds have been exhausted by the Union, representatives may not charge any additional hours against the Union’s "bank" of hours. In that event, the officers, Executive Committee members, and representatives agree to request annual leave or leave without pay for conducting labor-management business that was chargeable against the "bank." It is understood by the parties that the aforementioned time is to be used for appropriate labor-management business and the Union will not conduct internal affairs of the Union, including solicitation of membership and activities concerned with the internal management of the Union such as: the collection of dues and assessments, membership meetings, campaigning for office, conducting elections, distribution of literature and authorization cards during working hours.

Its proposal for a bank of hours is consistent with the provisions of its CBA with FEMTC, "its largest bargaining unit." Although a separate bank of hours was not negotiated for the Union when it was certified to represent the unit, "the parties have continued to observe the procedures contained in the FEMTC agreement for requesting and granting official time, and management has administered the official time article as if a bank of hours were in effect." This has resulted in improved labor-management relationships by eliminating disputes over whether Union representatives should be released from work to use official time. Unlike what frequently occurred when the parties were on a "reasonable time" standard, since the bank of hours was implemented "there have been no grievances, unfair labor practices, or complaints of any kind raised over the issue of official time."

    The 1,500 hours it proposes is reasonable because it is based on the parties’ history of official time usage since Fiscal Year (FY) 1994. To come up with that figure, it started with the fiscal year in which the Union used the most official time (2,275 hours in FY 1996), and subtracted the number of hours used by 3 of 5 of the Union’s representatives for negotiations during that fiscal year (850 hours); the resulting figure of 1,425 hours was then rounded up. By including wording which permits the Union to negotiate additional hours for dealing with unforeseen circumstances, and establishes a yearly reopener if either party believes further adjustments are required, the proposal addresses the Union’s concern that the number of hours in the bank may not enable it to meet its representational obligations. Finally, "the Shipyard needs the bank of hours in order to be able to reliably predict its budget." In this regard, there has been an increasing emphasis in recent years on ensuring that indirect budget costs, which includes official time, are kept in line. Its proposal provides a mechanism for ensuring that this will occur.

2. The Union’s Position

    The following wording is proposed by the Union:

Article 7, Section 3a:

Official time shall be provided to the Union for the purpose of representational matters of unit members. This time shall be provided to the Union as reasonable, necessary, and in the public interest as provided for in the Civil Service Reform Act (Public Law) 95-454 (Section 7131 A & D). The Union agrees not to abuse the use of official time.

Article 7, Section 3b:

The Employer shall withdraw its final offer.

The standard by which official time is granted to its representatives "is of great importance to the Union." In this regard, the Employer’s proposal for a bank of official time hours is of no benefit to the Union and, "depending on its undefinable need for official time . . . could restrict the Union’s" access to official time "for otherwise legally entitled needs." Its own proposal, on the other hand, is consistent with the requirements of § 7131(d) of the Statute that official time be granted which is "reasonable, necessary, and in the public interest."

    In its final offer management, for the first time, recognizes the differences between the Union’s right to official time under § 7131(a) and (d) of the Statute. In this regard, the statistics the Employer presented during the mediation-arbitration proceeding on the use of official time by the Union since 1994 are "inaccurate and misleading" because "at no discernable time did management attempt or record the different usage of official time by Union representatives, as prescribed by law. Negotiations and representative activities were lumped together with no apparent effort to separate the two." For this reason, management’s figures "must be disregarded." In addition, its statement during the proceeding that it was afraid the Union would take advantage of a "reasonable time" standard is unsubstantiated. It has failed to demonstrate that adoption of the Union’s proposal would "interfere with the accomplishment of agency work," nor has it ever asserted that the Union has "abused official time during its lengthy relationship with management." Finally, "consideration for additional negotiations in mid-term, as proposed by management on a subject already highly controversial, would not and cannot be in the interest of the parties."

CONCLUSION

    Having carefully considered the record in this case, I shall order the adoption of a modified version of the Employer’s final offer to resolve the parties’ impasse. Preliminarily, it is important to note that contract provisions establishing a bank of hours for representational purposes are commonplace in the Federal sector; in fact, before its membership failed to ratify the contract previously negotiated by the parties, the Union agreed to a provision similar to the one proposed by the Employer in this case. In the circumstances presented, a bank of hours should yield three primary benefits: (1) in an era of fiscal austerity, it provides the parties with a mechanism for tracking expenditures to ensure that they remain within budgetary constraints; (2) it holds the Union accountable for the management of its resources, consistent with the requirements imposed on the rest of the Shipyard; and (3) it maintains the current positive labor-management climate by minimizing the number of disputes between supervisors and Union representatives over the use of official time. On the basis of its previous official time usage, the small size of the bargaining unit, and the overall level of representational activity between the Union and management since the unit was certified, I am satisfied that 1,500 hours of official time per fiscal year should be enough to meet the Union’s needs. In this regard, while the Employer may not have differentiated precisely the purposes for which official time was used by the Union in FY 1996 (e.g., negotiations under § 7131 (a), partnership, grievance handling, etc.), there is little reason to doubt that the total number of hours was 2,275. The Union’s ability under the proposal to reopen the agreement to negotiate additional official time provides a safety net which, in my view, may never have to be exercised.

    While it is unlikely that the rationale provided above will overcome the Union’s scepticism, disappointment, and discomfort in having to be bound by such an arrangement, I am persuaded that, on balance, the benefits of a bank of hours to the enterprise as a whole outweigh any potential drawbacks. In addition, however, I believe the Employer’s final offer should be modified in two respects. In this connection, the last sentence of Section 3b., which cites a laundry list of internal Union matters for which the use of official time under the bank would be inappropriate, appears gratuitous. In its place, the Union’s wording will be substituted, by which it simply agrees not to abuse official time. Finally, because neither party addresses the issue of how much official time should be in the bank between now and the start of the next fiscal year, they will be ordered to continue to follow their current official time practices until the beginning of FY 1998, at which time the bank of hours will go into effect. This has the added advantage of providing the Union with approximately 7 ½ months to adjust to the new system.

DECISION

    The parties shall adopt the following wording to resolve their impasse:

ARTICLE 7. UNION REPRESENTATION

Section 3a. Union representatives, including recognized and identified officers and Executive Committee members, shall be allowed official time for conducting labor-management business in an amount not to exceed 1,500 hours per year, excluding hours spent in negotiations. This official time shall be placed in a "bank" which the Union’s representatives’ time will be charged against for conducting appropriate labor-management business. The parties also agree that, if necessary, a separate amount of official time may be negotiated to cover unusual unforeseen circumstances which require the involvement of the Union, and which are not in the course of normal Employer/Union business, as anticipated by the bank of hours.

Section 3b. The aforementioned figures shall be computed on an annual basis beginning each fiscal year (October 1) for the life of this Agreement and any extensions thereof. The parties agree that the Union will be allocated half of these hours each six months (twice per fiscal year - at the beginning of the year and midterm) in a lump sum. There shall be no carryover of time from year-to-year, and the number of hours in the bank will be reviewed at the beginning of each fiscal year to determine if adjustments need to be made. If either party feels adjustments are required, this will be accomplished through negotiation. The Union agrees to jointly manage the use of this official time to ensure that the total authorized time is not exhausted. The Employer agrees to furnish the Union a computer read out of all official time charged against the "bank" once a month, listing each individual Union representative and dates of usage. Further, the listing will indicate the total percent of usage to budget to date. In the event all allocated funds have been exhausted by the Union, representatives may not charge any additional hours against the Union’s "bank" of hours. In that event, the officers, Executive Committee members, and representatives agree to request annual leave or leave without pay for conducting labor-management business that was chargeable against the "bank." The Union agrees not to abuse the use of official time.

The bank of hours shall be established beginning in Fiscal Year 1998; until that time the parties agree to continue their current practices with respect to the use of official time for representational purposes.

 

H. Joseph Schimansky

Arbitrator

February 10, 1997

Washington, D.C.

 

1.The parties reached agreement over matters concerning the administrative workweek, procedures for requesting sick leave, and medical certification of illness.