In United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Local 3911, 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 Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Environmental Protection Agency, Region 2, New York, New York (Employer).

    After investigating the request for assistance, the Panel determined that the dispute, which concerns four issues arising from negotiations over a regional policy instruction on the implementation and use of E-Z Pass commutation tags,⁽¹⁾ should be resolved through an informal conference by telephone between a Panel representative and the parties. If no settlement was reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. Following consideration of this information, the Panel would take whatever action it deems appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to the Panel's determination, Panel Representative (Staff Attorney) Donna M. DiTullio conducted an informal conference by telephone with the parties on April 13, 1999, during which the parties were able to resolve two of the four outstanding issues. With respect to the remaining issues, the parties submitted their final offers and written statements of position to Ms. DiTullio, who reported to the Panel.⁽²⁾ The Panel has now considered the entire record.

    The Employer’s mission is to develop local programs in New York, New Jersey, Puerto Rico and the Virgin Islands for pollution abatement in the areas of air, water, solid wastes, pesticides, radiation and toxic substances, and to integrate and coordinate environmental protection activities with State and local governments. The Union represents approximately 750 employees in a mixed bargaining unit of professional and nonprofessional employees. Typical employee positions are environmental scientist, environmental engineer, environmental specialist, clerk, accountant, and budget officer. The nationwide master collective-bargaining agreement (CBA) which covers these parties was scheduled to expire in September 1997; however, it has been extended until a successor is implemented.

    The parties disagree over whether: (1) the policy statement should include an additional example which describes a situation where employees are not required to use E-Z Pass for local travel and may instead use cash, and (2) an agency determination that an employee is liable for a lost or stolen E-Z Pass tag (including any charges for interest and penalties) should be stayed pending the outcome of a grievance filed by the employee contesting liability.

1. Policy Statement Examples

    a. The Union’s Position

    The Union proposes the following:

The use of cash is not encouraged as it defeats the purpose of E-Z Pass. However, in unusual circumstances when traffic conditions warrant, or when the designated agent or an E-Z Pass is unavailable at the time of the employee’s departure, employees may use cash to pay tolls. [Only the underlined wording is in dispute.]

Both parties agree in principle that, to the maximum extent possible, employees should avoid using cash to pay tolls. The first sentence is a more forceful and emphatic way of communicating the parties’ intent to employees. As to the second sentence of the proposal, while the parties have agreed to reference in the policy instruction two exceptions when cash may be used to pay tolls, a third should be added because it represents a realistic situation when it may not be feasible for an employee to use an E-Z Pass and, instead, may require the employee to use cash to pay tolls. Including this clear and specific guidance in the policy instruction may eliminate the need for employee’s having to file grievances if they are admonished or disciplined for using cash when a designated agent is unavailable. Although the Employer’s representatives have stated that even without this example in the instruction, employees could use cash when the designated agent is unavailable to issue an E-Z Pass, it is better to reduce management’s intent to writing rather than relying on institutional memory or oral understandings.

b. The Employer’s Position

    The Employer’s proposal is as follows:

The use of cash is discouraged as it defeats the purpose of E-Z Pass. In unusual circumstances when traffic conditions warrant or if E-Z Pass is not available at the time of the employee’s departure, employees may use cash to pay tolls. [The underlined wording is in dispute.]

Its wording better communicates to employees that using cash to pay tolls is not favored. Including a third example in the policy statement concerning when it would be permissible to use cash to pay tolls is unnecessary since the wording the parties already have agreed upon covers the situation when a designated agent is not available to issue an E-Z Pass to an employee, as well as other unanticipated situations which would make the use of cash to pay tolls acceptable.

    Upon review of the parties’ positions, we are persuaded that the dispute should be resolved on the basis of the Union’s proposal, modified to include a situation where either the designated agent or an alternate is unavailable to issue an E-Z Pass to an employee for local travel. In our view, the Union’s proposal, as modified, provides employees with clearer instructions as to when cash may be used to pay tolls because it specifies the situations when using cash is permissible. Thus, by adopting the Union’s proposal, as modified, the parties are more likely to avoid grievances over questions of interpretation of the policy instruction.

2. Stay of Collection Proceedings

    a. The Union’s Position

    The following wording is proposed by the Union:

Lost or Stolen E-Z Pass Tags: Employees’ assessment and payment for improper charges or the loss of the E-Z Pass tag are subject to the appropriate grievance procedure. Employees shall not be required to pay the alleged principal amount due (plus any interest or penalty) until the grievance has been resolved or adjudicated. In the event the employee’s grievance is denied, the employee shall be liable for the original principal due, plus interest or penalty, if any.

Employees should be permitted to exhaust their grievance rights before the Employer implements collection proceedings against an employee. If the grievance is denied, the employee then would pay the charges assessed by the Employer plus any interest or penalty that may have accrued. Deferring collection until after the grievance process concludes would not result in financial loss to the Employer. In the event that the grievance is sustained, the Employer would be spared the administrative burden of having to return previously-collected funds to the employee. Since an employee’s financial liability for a lost or stolen E-Z Pass tag is likely to be relatively small, it would be more cost effective for the Employer to delay the collection rather than go through a reimbursement process should an arbitrator reverse the agency’s decision on liability. The Federal Labor Relations Authority (FLRA) has found that a substantially similar proposal to stay reimbursement of a pecuniary liability pending the outcome of a grievance/arbitration procedure is within the duty to bargain, as it does not conflict with law, rule or regulation.⁽⁴⁾

b. The Employer’s Position

    The Employer proposes the following:

Lost or Stolen E-Z Pass Tags: Should an employee be assessed for the loss of an E-Z Pass tag or for improper charges to the E-Z Pass while the tag is in his/her custody, the employee will be liable for payment subject to the Debt Collection Act, the Federal Claims Collection Standards, and other prevailing rules, laws and regulations. The employee will also have the right to grieve the action.

    Having carefully reviewed the parties’ positions, it is unnecessary to address the allegations of nonnegotiability concerning the Union’s proposal because, on the merits, we find that the Employer’s approach provides the better basis for resolving the impasse. In this regard, there does not appear to be a demonstrated need to stay collection, pending the outcome of a grievance contesting the employee’s liability, particularly where the amounts involved are likely to be relatively small, and the grievance process is often protracted. In our view, adoption of the Union’s proposal also would encourage frivolous grievances. Furthermore, in the event an employee chooses to grieve a collection action, which the Employer’s proposal contemplates, there remains a possibility that an arbitrator may reverse or modify an agency assessment of financial liability and make the employee whole for any loss suffered. Thus, even though collection already may have been implemented against an employee, due process rights, including the possibility of a make-whole remedy, appear to be fully protected under the Employer’s proposed wording. For these reasons, we shall order its adoption.

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted 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. Policy Statement Examples

    The parties shall adopt the Union’s proposal, modified as follows:

The use of cash is not encouraged as it defeats the purpose of E-Z Pass. However, in unusual circumstances when traffic conditions warrant, the designated agent or alternate is unavailable, or an E-Z Pass is unavailable at the time of the employee’s departure, employees may use cash to pay tolls.

2. Stay of Collection Proceedings

    The parties shall adopt the Employer’s proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

May 17, 1999

Washington, D.C.

1.Several transit authorities in the New York/New Jersey area have implemented an electronic scanning system called E-Z Pass. When an E-Z Pass tag is displayed in the windshield of a motor vehicle, the tag is electronically scanned and the toll automatically debited from the pass holder’s account. Thus, the need to collect cash, tokens or script at toll plazas is eliminated.

2.On April 20, 1999, Ms. DiTullio held a teleconference with the parties to clarify their positions.

3.Those using cash submit vouchers for reimbursement.

4.In American Federation of Government Employees, AFL-CIO and Department of the Air Force, Hill Air Force Base, Ogden, Utah, 33 FLRA 691 (1988), the union proposed that should an employee choose to grieve management’s plan to collect any debt involving overpayment of pay and allowances allegedly owed by an employee to the Government under 5 U.S.C. § 5514(a)(2), the collection will be delayed pending the decision of the arbitrator or withdrawal of the grievance prior to arbitration. The FLRA determined that the Debt Collection Act (Act) does not preclude access to the grievance procedure to contest a final determination that the employee is indebted to the agency. Moreover, the Act does not preclude an arbitrator from ruling on and overturning an assessment of administratively determined indebtedness against an employee.

5.The Federal Claims Collection Standards, which implements 5 U.S.C. § 5514, the Debt Collection Act of 1982, provides in 4 C.F.R. §104.1(a) that agency heads may suspend or terminate ongoing collection actions if certain specific standards are met. The standards to be applied in determining whether suspension of collection activities is appropriate are contained in 4 C.F.R. § 104.2. Under that section, collection activities may be suspended when: (1) the debtor cannot be located after diligent effort; (2) the debtor’s temporary financial condition is such as to temporarily prevent him or her from making payments on the Government’s claim; or (3) the debtor has sought waiver or administrative review of the claim under a statute which makes both the consideration of such request and the suspension of collection action pending consideration of the request for waiver or review discretionary.

6.In National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 37 FLRA 500, 512 (1990), the FLRA determined that a proposal which requires that “all debt collections from unit employees through payroll deductions be suspended pending completion of negotiations over applicable procedures . . . conflicts with 4 C.F.R. § 104.2 by requiring suspension of ongoing collection activities without regard to the standards required to be met in the applicable Government-wide regulation.” Accordingly, the FLRA found the proposal nonnegotiable under 5 U.S.C. § 7117(a)(1) as it is inconsistent with a Government-wide regulation.