In the Matter of DEPARTMENT OF ENERGY OAK RIDGE, TENNESSEE	Case No. 98 FSIP 161
and LOCAL 268, OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, AFL-CIO

 

ARBITRATOR’S OPINION AND DECISION

      Local 268, Office and Professional Employees International Union, 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 between it and the Department of Energy, Oak Ridge, Tennessee (Employer). After investigation of the request for assistance, which involves a ground rule to govern caucuses during negotiations for a successor collective bargaining agreement (CBA),⁽¹⁾ the Panel asserted jurisdiction and directed the parties to expedited arbitration⁽²⁾ by telephone with the undersigned.

      Accordingly, on October 29, 1998, I conducted an arbitration hearing by telephone with the parties’ representatives. Each side presented oral testimony and arguments in support of its position. During the course of the day, by facsimile transmission, the Employer provided copies of two arbitration awards by Panel-appointed arbitrators and a Federal Labor Relations Authority (FLRA) case; the Union provided the written statement of Mr. Gary Mai and a copy of a ground rules agreement. I have considered the entire record, including the parties’ submissions, which is now closed.

BACKGROUND

    The Employer enters into contracts with providers for the research, development, testing, production, environmental restoration, and waste management of energy and nuclear weapons. The Office of Scientific Technological Information (OSTI) manages a centralized collection system for the Department’s scientific and technical energy data. The Oak Ridge Operations (ORO) office administers and oversees contracts between the Employer and private contractors who operate three facilities at Oak Ridge and four locations in neighboring states. The Union represents approximately 430 bargaining-unit employees at both OSTI and ORO, who work as physical scientists, engineers, accountants, budget officers, and secretaries. The parties’ CBA will remain in effect until they implement the new agreement.

ISSUE

    The dispute essentially concerns time limits on the duration of caucus sessions.

1. The Employer’s Position

    The Employer proposes the following wording:

Either party may call caucuses at any time. Normally, caucuses shall not exceed 30 minutes unless longer periods of time are agreed to by both parties. If the issues regarding the proposals cannot be resolved within the agreed upon caucus time, the proposal will be set aside. Additionally, up to a total of 20 hours of official time is authorized for the Union negotiators to prepare counter proposals including necessary research - these 20 hours may be divided between the five negotiators as the Union may determine.

The Union has submitted some 200 proposals for the successor CBA and management over 70. A limit on caucus time is reasonable to keep the parties at the bargaining table to deal with these numerous issues. In the past, the Union has used extensive caucus time, 2 to 3 hours per caucus request. On one occasion, after waiting for a long time, it was discovered that the Union had left a caucus to go to lunch without informing management. In 1994 and 1995, the parties took 5 to 6 months to negotiate only five articles for the 1995 successor agreement; one cause of delay in those negotiations was the protracted Union caucuses. In view of this pattern, the proposed limit, with the opportunity to extend caucuses by mutual agreement, will help move negotiations forward more quickly and efficiently. If items are set aside, they may be taken up again, either sooner when a party indicates its readiness to discuss them or at the end of negotiations.

    The limits sought here are similar to those in a ground rules agreement between parties at the Department of the Interior. Furthermore, previous Panel decisions adopted proposals that imposed limits on caucus time during contract bargaining.⁽³⁾ In addition, a decision by the FLRA makes it clear that amounts of official time granted for the preparation of proposals are subject to the outcome of bargaining.⁽⁴⁾

2. The Union’s Position

    The Union’s proposal is as follows:

Caucus time will be reasonable in length. The party requesting the caucus will inform the other party of the approximate time needed (for the caucus). If the caucusing party needs additional time, the other party will be informed of additional time needed to fully debate and discuss the issue. Either party needing less time will inform the other party of its intent to return to the bargaining table earlier.

The proposal recognizes that each party should determine the length of their own caucuses based on the time needed to develop counter proposals, review and understand Office of Personnel Management and Department of Energy regulations referenced in proposals, consult with advisors, and discuss relevant experiences of Union team members. The proposal also meets the Employer’s need to be kept informed about the length of Union caucuses on an issue. Furthermore, it is consistent with the definition of reasonable time in the parties’ collective bargaining agreement which reads:

[T]hat period of time necessary to accomplish representational obligations established by the terms and provisions of this Agreement.

    During previous negotiations, the Union’s representatives have not abused caucus periods. Recently, for example, the parties were successful in reaching agreement on a new performance management system without incident. Although the Employer has filed a number of unfair labor practice charges and at least one grievance against the Union, none have concerned abuse of official time or caucus time. Furthermore, no grievance has been filed based on the reasonable time provision in the contract. If, in a previous instance, the Employer was not informed about the team’s going directly from a caucus break to lunch, it was because the team was unable to locate management to inform them of the change in plan. The Employer has been known to take 4 hour caucuses. As to the 1995 negotiations, since there were breaks in bargaining, it would be more accurate to conclude it lasted only 3 to 4 weeks. Under the current circumstances, the Union has no wish to prolong negotiations because it is the party seeking to change the CBA, nor do union team members have unlimited time to devote to contract negotiations.

    Regarding comparable ground rules agreements between other parties either at the Department of Energy or elsewhere, the Union is not aware of any such agreement that imposes limits on the length of caucuses. For example, paragraph 5 of the ground rules agreement between the Bonneville Power Administration and Laborer’s Union Local 335 sets out a bargaining schedule and, in relevant part, reads: "Caucuses may be called at any time unilaterally by either party’s chief spokesperson."⁽⁵⁾ The arbitration awards the Employer references are irrelevant to this case because they primarily address preparation time which is distinguishable from caucus time. A caucus occurs during negotiations; results of a caucus can be brought immediately to the bargaining table to move the parties closer to agreement. Preparation time, by contrast, is taken at an earlier or later time when access to the bargaining table is not immediate.

    With respect to the effect of an arbitrary caucus time limit, breaking caucuses at "the wrong point" is inefficient because work is prematurely interrupted when a few more minutes might result in a resolution. When, as under the Employer’s proposal, those issues set aside are taken up later, extra time will be spent to regain a familiarity with them. Ultimately, such a pattern which interrupts the flow of negotiations could be viewed as "bad faith bargaining."

OPINION

    Having carefully reviewed the parties’ positions and evidence on the issue at impasse, I am persuaded that the dispute should be resolved by ordering the adoption of the Union’s proposal to govern caucus sessions. In reaching this decision, I find that the Employer has not demonstrated a need to change the status quo at this time. In this regard, the record does not establish that a pattern of abuse occurred in prior negotiations which would justify imposing a time limit on caucuses during current negotiations. Instead, the information presented indicates that each party believes the other has, on occasion, taken overly long caucuses. Nor do the cases or contracts referred to establish that parties elsewhere have resorted to this practice with any frequency. The adoption of the Union’s proposal, which sets forth a standard of reasonableness for the length of caucus sessions, should not be read, however, as abrogating either party’s responsibility to keep their respective caucuses as brief as necessary in a manner consistent with the requirement of an effective and efficient Government. In addition, informing the other side about the length of a caucus should assist them in managing their time. With respect to the application of this ground rule to future bargaining, a matter discussed during the arbitration procedure, since the Panel only asserted jurisdiction over ground rules for successor agreement negotiations, that question is beyond the scope of this award.

DECISION

    The parties shall adopt the Union’s proposal to resolve their impasse over caucus time limits.

 

Ellen J. Kolansky

Arbitrator

November 2, 1998

Washington, D.C.

 

1.In the summer of 1998, the parties reached agreement over all but one of the ground rules for these negotiations. During the investigation of the case at the Panel, the parties clarified that what appeared to be a second ground rule involving the adjustment of work load assignments for Union representatives was resolved. The agreed-to ground rules contained the following schedule for negotiations:

 

The first negotiation meeting to consider proposals/counter proposals will be held July 20 - 24, 1998. Negotiations will be conducted Monday through Friday, 8:30 a.m. to 5:00 p.m. The negotiation schedule will continue September 14-18, 1998. At the end of each session the parties will attempt to schedule 1 or 2 days each week or additional weeks, if not already scheduled. Meetings will not occur if the Union team does not have its Spokesperson or Assistant Spokesperson and 3 other members in attendance.

2.Under this procedure, unless a complete settlement of the dispute is reached during the hearing, the Panel-appointed arbitrator is to issue an award within 2 workdays of the close of the hearing.

3.In Department of the Army, Headquarters, Presidio of San Francisco, San Francisco, California and Local 1457, American Federation of Government Employees, AFL-CIO, Panel Case No. 89 FSIP 45 (August 4, 1989), Release No. 283, the arbitrator resolved, among other things, the issue of official time to prepare for negotiations. Under the terms of the award, or as previously agreed to by those parties and incorporated into the award, the 4-week bargaining schedule was to alternate between a Monday, Wednesday, Friday and a Tuesday through Friday pattern. In conjunction with the schedule, preparation time was granted to the union’s team for 8 hours on Tuesdays and Thursdays (1 hour on other work days) during the first and third weeks and 8 hours on Mondays (1 hour on other work days) during the second and fourth weeks; caucuses could be requested at any time and would “normally be ten (10) minutes.” In Department of the Air Force, Maxwell Air Force Base and Gunner Annex, Montgomery, Alabama and Local 997, American Federation of Government Employees, AFL-CIO, Panel Case No. 95 FSIP 79 (September 8, 1995), Release No. 378, the arbitrator adopted a compromise that permitted the Union’s bargaining team 48 hours to research and prepare for negotiations.

4.In American Federation of Government Employees, Local 2612 and Department of the Air Force, Griffiss Air Force Base, New York, 32 FLRA 1238, 1240 (1988), the FLRA denied the union’s exceptions to an arbitrator’s award; the arbitrator found that "[t]he employer did not violate the provisions of the collective bargaining agreement or the Statute in refusing to provide official time to the grievant or union officials for the preparation of counter-proposals."

5.The Union provided a statement signed by Gary Mai, Chairman of the International Brotherhood of Electrical Workers Government Coordinating Council, GCC-1. Mr. Mai writes that in his 5-year experience with the Western Area Power Administration, they “never had a limit placed on caucus time for either party.”