United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, D.C.

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

Case No. 90 FSIP 209

The National Federation of Federal Employees (Union) and the Department of Veterans Affairs, Washington, D.C. (Employer) filed a joint 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).

After investigation of the request for assistance, the Panel directed the parties to meet informally with Staff Associate Gladys M. Hernandez for the purpose of resolving the issues at impasse. The parties were advised that if no settlement were reached, Ms. Hernandez would report to the Panel on the status of the dispute, including the parties' final offers, and her recommendations for resolving the issues. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

Ms. Hernandez met with the parties on October 25, 1990, in Washington, D.C.; however, the parties were unable to reach a settlement. Ms. Hernandez has reported to the Panel based on the record developed, and the Panel has considered the entire record in the case.

The Employer provides medical care and benefits to eligible veterans and their beneficiaries. The Union represents a nationwide consolidated bargaining unit consisting of approximately 11,000 General Schedule and Wage Grade employees who hold a variety of jobs in technical, clerical, trades and crafts, skilled services, and professional fields.

The dispute arose during bargaining over a successor to the parties' collective-bargaining agreement which was to expire on January 12, 1990; the parties have agreed to extend its terms and conditions until the new agreement is approved. In accordance with the groundrules for bargaining, the new agreement will not cover Title 38 employees, but rather, shall apply only to Title 5 and "hybrid" employees.⁽¹⁾ Title 38 employees were covered under the expired agreement.

The issues in dispute concern: (1) the amount of official time for Council officers to perform Council-level representational functions; (2) the payment of travel and per diem expenses for Union representatives and witnesses in connection with grievance arbitration hearings; and (3) the distribution of duplicate copies of letters of admonishment and reprimand, and notices of proposed actions or decisions.

1. Official Time for Council Officers

    a. Employer's Position

The Employer proposes 16 hours per pay period for the Council president and 8 hours per pay period for each of the 8 Council vice presidents to perform Council-level representational duties. This amount of time is reasonable given that (1) the Union represents 11,000 employees in 33 facilities, and (2) there have been only 10 arbitrations heard in the last 2 years and no national grievances filed in the last 2 to 3 years. The parties already have agreed to separate contract provisions which provide official time for, among other matters, preparation and presentation of grievances, negotiations, and training for local representatives. All but two of the Council officers are also local presidents and, therefore, would be entitled to official time for local-level representational duties, as well as official time for negotiations and training under these contract provisions.

In addition, under the new agreement, the Union would have various methods of communication, i.e., long distance telephone service (FTS), FAX machines, and word processors. This should facilitate the performance of Council-level representational duties by Council officers, thereby diminishing the need for travel and related official time. The "reasonable time" standard proposed by the Union would lead to litigation. Moreover, such a standard would be cumbersome to administer because local management, unfamiliar with other than local representational activities, would require assistance from upper level management in ascertaining what amount of time would be "reasonable" to accomplish Council-level representational activities. Official time for lobbying, as proposed by the Union, would be improper because lobbying is an institutional rather than a representational activity on the part of the Union.

    b. The Union's Position

Under the Union's proposal, Council officers would "receive a reasonable amount of official time to perform representational duties at the Council level." These duties would include: (1) reviewing national consultation matters or management-initiated changes; (2) advising locals on representational matters; (3) coordinating with other Council officers on representational matters; (4) preparing for meetings with management; (5) providing training to locals; and (6) communicating with members of Congress and their staffs regarding legislative matters affecting the Employer and its employees.

Currently, Council officers have de facto "reasonable" time to perform Council-level representational functions; its proposal, therefore, reflects the status quo. In addition, the "reasonable time" standard is used to allocate official time for local-level representational functions; applying the same standard for ouncil-level functions would, therefore, maintain a consistent practice. Moreover, the number of hours allotted by the Employer is insufficient for the Council officers to perform all of the new responsibilities for administration of the collective-bargaining agreement which they have assumed or will be assuming as the result of staff reductions at the Union's national office. Also, the newly installed Council president is a full-time Veterans Affairs employee who, unlike her predecessor who was a retiree, requires official time to perform her Council-level representational duties. Because the matter in dispute concerns allocation of official time for Council-level, not local, representational functions, it is irrelevant that some Council officers are also local representatives entitled to official time for local functions. Finally, the Union argues, without support, that lobbying Congress over employment-related matters is a legitimate representational function rather than internal Union business; it is, therefore, a matter for which official time may be allotted.

We find that the Employer's proposal provides a reasonable basis for resolution of this matter. There is little evidence in the record to demonstrate that the number of hours proposed by the Employer would be inadequate for Council officers to perform Council-level representational duties properly. In our view, the amount of official time allotted under the Employer's proposal is both reasonable and sufficient given the number of unit employees represented by the Union and the very limited activities for which such time is to be used.⁽²⁾ Moreover, the Council officers would have a variety of ways to communicate with employees, management, and one another, which should facilitate the performance of Council-level activities in the least amount of time.

2. Travel and Per Diem Expenses for Union Representatives and Witnesses in Connection with Grievance Arbitration Hearings

    a. The Employer's Position

The Employer proposes that the status be maintained, and the Union be ordered to withdraw its proposal. The current practice is for the parties to pay their respective travel and per diem expenses pertaining to grievance arbitration hearings.⁽³⁾ Since the Union has local presidents and stewards who perform or should perform local representational functions, there is no need for nonlocal representatives to travel to perform such functions. Moreover, since the Union infrequently invokes arbitration, the travel and per diem expenses that it would incur, should representation from outside the locality be provided, would not be great.

Finally, the Employer would lose control over its travel budget if the Union's proposal were adopted because the Union, regardless of the costs, would have a contractual right to send a representative from one locality to another to represent a grievant at an arbitration hearing.

    b. The Union's Position

The Union proposes that the Employer pay all the travel and per diem expenses of Union representatives if they are traveling within their region, and 50 percent if traveling outside their region to represent a bargaining-unit employee at a grievance arbitration. Furthermore, the Employer should pay for the travel and per diem expenses of Union witnesses necessary for the hearing. Doing so would "put the parties on equal footing;" moreover, it would enable the Union to assign the best representative to any given case. By agreeing to split travel expenditures with the Employer when it sends representatives from one region to another to handle grievance arbitration cases, the Union has addressed the Employer's concern that the Union would do so indiscriminately. The travel and related costs concerning witnesses are likely to be negligible because they typically are located at the site of the hearing; grievants should not be disadvantaged, however, if their witnesses are not local.

We conclude that this issue should be resolved by balancing the need to ensure that full and fair hearings are conducted against the need to contain the costs of such proceedings. The record indicates that the parties have a relatively low level of grievance arbitration activity, witnesses are "typically" located at the grievants' worksites where the hearings are conducted, and trained local Union representatives are available to represent employees. Moreover, various means of communication are available to the Union which should allow local representatives to consult with one another, and higher level Union representatives, without the need for travel. Thus, on balance, it is reasonable for each party to continue to be responsible for its own travel and per diem expenses relating to grievance arbitration hearings. Accordingly, we will order the Union to withdraw its Proposal.

3. Distribution of Duplicate Copies of Letters of Admonishment and Reprimand and Notices of Proposed Actions or Decisions.

    a. The Employer's Position

The Employer proposes to maintain the current practice; that is, provide employees who have been issued letters of admonishment and reprimand, and notices of proposed actions or decisions with duplicate copies. The practice has posed no problems; furthermore, it protects the privacy interests of employees who do not want this information released. The Union may use other means to obtain this information, i.e., informal communications with employees, without compromising the employees' privacy interests. The letters and notices issued to employees inform them of their rights to appeal and seek Union representation. Thus, if employees choose to seek Union representation, they may give the duplicate copies of the letters or notices to their representatives.

    b. The Union's Position

Under the Union's proposal, the Employer would provide local Union representatives with duplicate copies of letters of admonishment and reprimand, and notices of proposed actions or decisions, at the same time they are issued to unit employees. The Union should have notice of the actions taken against employees in order to initiate grievances on behalf of the bargaining unit, even though the employee may not wish to pursue an individual grievance. The Union should not have to rely on the "grapevine" to get such information.

Through an information request, submitted under section 7114(b) of the Statute, the Union discovered that it had no knowledge of most of the actions taken against employees, some of which it would have pursued institutionally or advised employees to initiate individual grievances, had it received direct notice from the Employer that the actions had been taken. Moreover, it could have advised employees on how to avoid further actions. The Union's obligation as the exclusive representative of the bargaining unit outweighs an employee's privacy interests in employment-related matters.

We conclude that the parties should adopt the Employer's proposal to continue the current practice. In our view, the personal privacy interests of individual employees in not having such information disclosed to the Union without their consent outweighs the Union's representational interests in disclosure. Since the Employer provides employees with two copies of the documents and advises them of their appeal rights as well as the right to seek Union representation, the employees' administrative due process rights are protected. Thus, we leave it to the employees themselves to determine whether they wish to seek the services of the Union.4/ We do \note, however, that the Union is not precluded from requesting the release of such information under section 7114(b)(4) of the statute.

Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of the proceedings instituted under section 2471.6(a)(2) of the Panel's regulations, the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:

1. Official Time for Council Officers for Council-level Representational Functions. 

The parties shall adopt the Employer's proposal.

2. Travel and Per Diem Expenses for Grievance Arbitration Hearings

The parties shall adopt the Employer's proposal.

3. Distribution of Duplicate Copies of Letters of Admonishment Reprimand and Notices of Proposed Actions or  Decisions.

The parties shall adopt the Employer's proposal.

By direction of the Panel.

Linda A. Lafferty

Executive Director

December 28, 1990

Washington. D.C.

1. Title 38 employees are professional and medical employees, including physicians and nurses, in the Employer's Department of Medicine and Surgery. Over the past 2 years, the collective-bargaining rights of these employees have been curtailed by the courts and the Federal Labor Relations Authority. "Hybrid" employees are covered under Title 5 for some purposes and under Title 38 for others. The successor agreement will dictate the relationship between the Employer and "hybrid" unit employees on Title 5 matters only.

2. The provision in the Union's proposal which would provide for authorization of official time for Council officers to communicate with members of Congress and their staffs concerning workplace matters appears to be outside the duty to bargain. In American Federation of Government Employees. Local 2094. AFL-CIO and Veterans Administration Medical Center, New York. New York, 19 FLRA 1027 (1985), the Authority considered a substantially similar provision and determined that "visiting] [a] Congressman for any job[-]related reason" is not a representational matter for which official time may be negotiated under section 7131(d) of the Statute.

3. The parties have agreed to other contract provisions which provide that the Employer pays, within prescribed limits, travel expenses related to negotiations and the Union's annual meeting.

4. Following the parties' informal conference with the Panel's representative, the Authority determined in U.S. Department of Justice and Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA No. 111 (October 30, 1990), Report No. 640, that a provision, similar to the Union ' 's in the instant case, which requires the blanket disclosure of unsanitized information relating to proposed and final disciplinary and adverse actions when the union has not been designated as the representative of the affected employee, or the employee has not consented to disclosure, is nonnegotiable because it violates the Privacy Act, 5 U.S.C. § 552a(1982).