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Highlights from 2018 FSIP 077

Bob Gilson, FedSmith.com

I’ve cut and pasted from the decision and from the Agency’s last best offer. I’ve also reforma;ed
text but did not change a word or punctua>on mark. With each ar>cle, the Panel’s discussion is
first, followed by the directed language.

Panel Commentary and Conclusion on Article 7 – Union


Rights

“I. Agency Ar,cle and Posi,on


This ar,cle also clarifies when a Union representa,ve may represent employees in inves,ga,ve
se=ngs, but it addi,onally covers “formal discussions.” The ar,cle further discusses when an
employee may forward an individual seClement to the Union, and sets a ,meframe for when
the Union must take ac,ons thereaEer (if any). The Agency believes that FLRA case law clearly
spells out when no,ce is appropriate and when situa,ons arise to the level of a formal mee,ng
thereby necessita,ng the need for a representa,ve. Both par,es are “familiar” with this law.
Thus, it is unnecessary to include addi,onal language on no,ce requirements as the Union
proposes. The proposal also requires Union representa,ves to follow all general procedures for
accessing Agency facili,es. Such a requirement does not violate any law, rule, or regula,on.
II. Union Ar,cle and Posi,on
The Union proposal largely retains the status quo of the CBA. However, it has agreed to strike
Sec,on 5, which allows the Union to submit a brochure about “membership benefits” to local
Union chapters, and Sec,on 8, which concerns internal union business. A number of the
Union’s remaining proposals cover “significant” topics that touch upon the Union’s
representa,onal prowess. Key among the Union’s requested proposals are:
• Inclusion of a list of factors that the FLRA considers when it assesses whether a discussion
arises to the level of “formal,” and, therefore, requires the presence of Union
representa,on;
• Although Management is willing to provide 2 workdays no,ce of any mee,ng, the Union
requests that this no,ce be provided only if a mee,ng is within 5 workdays; if the mee,ng
will be in 5 workdays or greater, the Union requests no,ce within 1 workday of that
mee,ng;
• Language sta,ng that the Union be permiCed to postpone deadlines for any filings if the
Agency does not provide requested informa,on within 14 workdays pursuant to a statutory
informa,on request under 5 U.S.C. §7114(b)(4);
• A requirement that NTEU representa,ves who have not undergone background
inves,ga,ons should nevertheless be permiCed access to Agency buildings just as any other
member of the public; and
• Con,nua,on of a prac,ce wherein, at the local level, local Union chapters may u,lize
Agency facili,es as part of a “Labor Recogni,on Week” to discuss the contribu,ons of public
labor; employees may receive up to 1 hour of administra,ve ,me to par,cipate.
III. Conclusion
The Panel will impose the Agency’s proposal. The par,es’ proposals strive for the same goal: to
reference and reinforce various rights and principals associated with the topic of “Union
Rights.” However, they accomplish the foregoing in different ways. The Agency offers general
language that references the foregoing rights but does not offer specific recita,ons of exis,ng
legal authori,es. By contrast, the Union provides a litany of references to various authori,es in
a presumed effort to provide resources for individuals who would review or rely upon the CBA.
Despite the differing approach, both sets of proposals accomplish the same goal because they
act as a source of reference to individuals. That is, there is no substan,ve dis,nc,on between
the objec,ves of the proposals. Although there is no significant difference, there is a danger
that authori,es discussed in the Union’s proposal could change in the future. This change could
then make the language of the CBA obsolete and, poten,ally, confuse the aforemen,oned
par,es upon future review of the document. In order to address this poten,al confusion, and
because the Agency’s language s,ll captures the Union’s rights and interests, the Panel believes
imposi,on of Management’s language is warranted to resolve the par,es’ dispute on this topic.”

Agency Proposal: Article 7 Union Rights – Adopted as


Offered

SECTION 1
A. It is agreed that the Union shall be given the opportunity to be represented:
1. At all formal discussions between the Employer and the employee concerning any
grievance, or any personnel policy or prac,ces or other general condi,on of
employment, as provided for in 5 U.S.C. §7114(a)(2) and applicable regula,ons.
2. Any examina,on of an employee in the unit by a representa,ve of the agency in
connec,on with an inves,ga,on if, (i) the employee reasonably believes that the
examina,on may result in disciplinary ac,on against the employee; and (ii) the
employee requests representa,on, as provided for in 5 U.S.C. §7114(a)(2) and applicable
regula,ons.
B. Generally, The Employer will no,fy the Union in wri,ng of any scheduled formal mee,ng in
advance. If possible, the no,ce will be given at least two (2) workdays in advance of the
mee,ng. No,ce to each chapter shall go to the representa,ve(s) designated by the Union. The
local Chapter may designate a union mailbox to receive such no,fica,ons. In the absence of
such wriCen descrip,on, no,ce shall go to the chapter president. If available, the no,ce shall
include an agenda.
C. The Union will no,fy in wri,ng the iden,fied management official and the Labor Rela,ons
Specialist of the Union’s designated representa,ve who will aCend the mee,ng at least one (1)
work day in advance of the mee,ng, or if less no,ce was provided to the union, then as soon as
possible. The Employer will acknowledge the aCendance of the designated Union
representa,ve at the start of the formal mee,ng.
D. Provided that it is not otherwise inconsistent with law, rule or regula,on, bargaining unit
employees may forward seClement agreements rela,ng to complaints and grievances affec,ng
working condi,ons of the employee to the appropriate NTEU president. NTEU has seven (7)
days from the date the employee receives the seClement agreement to no,fy the Agency if it
alleges that the seClement conflicts with any nego,ated agreements between the HHS and
NTEU or other non-discre,onary requirements. Failure of the Union to allege within the seven
day considera,on period that a conflict exists shall be deemed acceptance of the seClement
agreement.

SeClement agreements will contain the following statement: This seClement agreement is
subject to approval for compliance with nego,ated agreements between HHS and NTEU.
Accordingly, bargaining unit employees may forward it to the appropriate NTEU chapter
president or the NTEU Na,onal President. NTEU has seven (7) days from the date the employee
receives the seClement agreement to allege any conflicts with any nego,ated agreements
between the HHS and NTEU, or other non-discre,onary requirements. If NTEU alleges any
conflicts, NTEU will no,fy the employee.

SECTION 2 All requests for data made by the Union under 5 U.S.C. § 7114(b)(4) will be so
iden,fied and will be processed in accordance with all applicable laws, regula,ons, and
contractual obliga,ons.

SECTION 3 The Union may refuse to represent any bargaining unit employee in any proposed
disciplinary ac,ons, any statutory appeals, or any maCer outside this Agreement, which
includes the following:
• Adverse ac,ons such as removals, demo,ons, etc.
• EEO complaints
• Unacceptable performance ac,ons such as removal or demo,on
• Workers compensa,on cases
• Allega,ons of prohibited personnel prac,ces
SECTION 4 All NTEU field representa,ves and NTEU Na,onal Nego,ators who are not current
federal employees will be afforded the same access to federal facili,es as is afforded to
members of the general public and must comply with all security procedures and Rules and
Regula,ons governing conduct on Federal property. Failure to do so may result in the banning
of the individual from HHS space. NTEU is required to provide a list of any non-current federal
employees who have badges in their possession.

Panel Commentary and Conclusion on Article 9 - Union


Access to Employer Services

I. Agency Ar,cle and Posi,on


The Agency agrees to provide limited office space to the Union for rental. However, this space
will be provided only if the Department of Jus,ce concludes such an arrangement is
permissible. The Union will provide its own equipment, however, but it may request the use of
Agency conference rooms, email lists, telephone lines, and the like. The Union may not record
mee,ngs between the par,es absent mutual consent, and Agency documents must remain
internal. This arrangement limits costs to taxpayers by trea,ng the Union equitably to other
groups that would u,lize Agency space. The Union’s proposal for telework (discussed below) is
based on its claim of limited office space, yet the Union also requests “valuable and scarce”
office space for its own purposes. These posi,ons are incongruous. The Agency’s proposal
provides effec,ve and efficient government service independent from any Execu,ve Order.
II. Union Ar,cle and Posi,on
With the excep,on of a few modifica,ons, the Union requests to largely keep exis,ng contract
language on this topic. Thus, the Union will keep all exis,ng office space “at no charge.”
Addi,onally, per Sec,on 6.C, local chapters may bargain for addi,onal office space. Further, the
Union will have unfeCered access to various pieces of Agency equipment for representa,onal
purposes. The Union argues that the Agency’s proposal is inconsistent with the decision
in Trump v. AFGE, 318 F. Supp. 3d 370 (D.D.C. 2018) (Trump). In Trump, the District Court issued
a decision enjoining several por,ons of three Execu,ve Orders issued by President Trump on
May 26, 2018, concerning Federal collec,ve bargaining. In par,cular, the decision enjoined
several provisions that directed Federal agencies to limit access of its resources to public sector
Unions. The Union argues that the decision prohibited agencies from “giving effect” to these
provisions, so the Agency’s proposals are illegal even if they are not explicitly based upon the
enjoined por,ons of the Execu,ve Orders.

In addi,on to the above, the Union objects to several other por,ons of the Agency’s proposal.
Agency Sec,on 3.A waives the Union’s bargaining rights because it grants Management “sole
discre,on” in deciding whether to permit employees to use equipment. Sec,on 3.C
inappropriately grants Management discre,on in deciding what the Union may or may not post
on bulle,n boards. Sec,on 4, which places limita,ons on informa,on that the Union may
publicly disseminate, is permissive. Finally, Sec,on 5 goes into ar,cles that the par,es did not
open for renego,a,ons because it states that, in conflicts with Ar,cle 9 and other por,ons of
the CBA, Ar,cle 9 controls.

III. Conclusion
The Panel will order a modified version of Management’s proposal. On balance, we agree with
Management that it is appropriate to treat the Union similar to other en,,es that may u,lize
Agency space. The same is true of Agency resources, such as telephones, computers, etc. The
Agency’s approach, then, is the more sensible one. However, we believe it is appropriate to
strike language in Management’s Sec,on 1.G in which the Agency states its proposal is
dependent upon obtaining legal guidance from the Department of Jus,ce that its proposed
arrangement is appropriate. Under the Statute, the legality of proposals turns upon conflicts
with law, rule, or regula,on. Nowhere in this language does it state that memoranda from
other en,,es govern the legality of proposals. Thus, the language should be dropped.
However, in doing so, we do not take a posi,on on the legality of the arrangement or otherwise
infringe upon Management’s ability to raise appropriate legal challenges as necessary, e.g.,
Agency head review.

Aside from its prac,cal concerns, the Union also objects to the above approach on the grounds
that it is inconsistent with the court’s decision in Trump. It argues, essen,ally, that even
proposing language that is similar to the enjoined Execu,ve Orders impermissibly gives effect to
those Orders. However, nothing in the Trump decision supports this conten,on or otherwise
prohibits agencies from taking such ac,ons. This argument, then, is rejected.

Despite the foregoing conclusion, the Panel does agree with other arguments raised by the
Union. Management’s Sec,on 3.C requires the Union to obtain approval of all its contents that
it will post on Agency bulle,n boards. Agency Sec,on 4 places limita,ons on what informa,on
the Union can disseminate publicly. Both of these proposals arguably place limita,ons, then, on
what the Union may or may not speak about publicly. The Panel has rejected similar proposals
in the past and does so here. Thus, Management’s proposal 4 should be stricken, and the
following sentence should be dropped from its Sec,on 3.C:

Prior to pos,ng, all such union materials must be approved by the Assistant Secretary for
Administra,on (ASA), or designee, and will be limited to the designated space and shall be
properly iden,fied as official Union issuances.
Agency Proposal: Article 9 Union Access to Employer
Services – Adopted with noted changes

SECTION 1
A. As a responsible steward of the American Taxpayer, the Par,es recognize the need to u,lize
space in a manner consistent with space saving ini,a,ves aligned with Department and other
Federal ini,a,ves to reduce office footprints and fiscal impacts.
B. As such, the Employer agrees to provide the Union dedicated private office space for the
designated recognized en,ty, NTEU, for the conduct of official business. This space shall be
provided in the vicinity of the NTEU President's locality and will not be the regularly assigned
office for any individual. One addi,onal office shall be provided in the Washington, DC
headquarters region for use as designated by the NTEU President, if desired. Under no
circumstances will Union office space be required to exceed 170 square feet in the aggregate.
The Employer may provide parking at its sole discre,on. Use of this space and parking will be
subject to paragraph C below.
C. The Union agrees to pay the Standard Level User Charge (SLUC) for its use of the Employer’s
space as determined by the Agency. The rental amount will be calculated to include a
reasonable es,mate of the cost of furnishings and other Agency resources provided for use by
the Union pursuant to this Ar,cle. The Agency will provide to the Union the cost of any space
permiCed for Union use for the upcoming fiscal year prior to the beginning of the fiscal year, or
any por,on thereof where a full fiscal year is not available. The Union agrees to remit the cost
of such space at least 30 calendar days prior to the beginning of the new fiscal year or when
otherwise due, if it desires to rent or con,nue ren,ng the space for the upcoming fiscal year.
The Union agrees to pay such rent when due or immediately cede access to the space. Charges
will be assessed and paid before the union occupies any dedicated private space. Use of space
only intermiCently will not impact the rental cost of any space by the Union.
D. The Employer agrees to provide access, on a space-available basis, to conference room space
reserva,ons for the conduct of official business for appointed NTEU representa,ves for the
conduct of official business. These space reserva,ons are to be used for Union grievance
mee,ngs with employees, to include during employees' non-duty status. Union Representa,ves
will be responsible for scheduling and cancelling reserva,ons as needed and failure to adhere to
cancella,on protocols could result in denial of future reserva,ons. The Union will have the
same access to the reserva,ons as other employee groups and, like other employee groups, the
Union may have reserva,ons cancelled by the Agency as Agency business requires.
E. All union office space is subject to audit requirements and other internal security
requirements as any other Department space is, and when needed, Agency officials will not be
denied entry to the space. F. The Employer agrees that, where available, the Union may have
access to the use of Video Teleconferencing and Computer Training Rooms for Union Sponsored
Training, as approved by the Employer. The Union will have the same access as other groups. G.
Paragraphs B and C apply only in the event that the Department of Jus,ce issues an opinion
sta,ng that the Agency is permiCed to charge and collect rental payments from the Union. Un,l
such opinion is received, the Agency shall provide no space to the Union. The Agency will
promptly request such an opinion before the effec,ve date of this Agreement.

SECTION 2
A. The Union shall be responsible for furnishing its own equipment (laptops, mobile devices,
printers, etc.) as to relieve any burden of audit accountability and internal security requirements
by the Department. The Union will be provided Wi-Fi access by the Department, where
available.
B. Beginning with the Effec,ve Date of this Agreement, government issued equipment may no
longer be used by Union representa,ves for representa,onal purposes. Any equipment issued
to a Union representa,ve solely for representa,onal purposes must be returned.

SECTION 3
A. At the sole discre,on of the Employer and with prior approval from the Employer, Union
representa,ves shall be permiCed reasonable use of public hard line telephones provided by
the Employer along with the Department's internal physical mail system when necessary for
conduc,ng labor-management ac,vi,es not inclusive of internal union business. Consistent
with postal and Departmental regula,ons, the Union shall have use of Employer metered mail
limited to labor rela,ons representa,onal maCers but not including maCers rela,ng to internal
Union business. This, however, does not permit the Union representa,ve to use other types of
mailing such as express, overnight, registered, cer,fied mail, etc. Management has the right to
cancel or deny at any ,me the use described in this sec,on.
B. Official publica,ons of the Union, which may include newsleCers, fliers, or other no,ces, may
be distributed, with prior approval by the Employer, on Employer property by Union
representa,ves during non-duty ,me.
C. Where available, the Employer agrees to provide the Union physical space for official Union
materials on public bulle,n boards. Prior to pos)ng, all such union materials must be
approved by the Assistant Secretary for Administra)on (ASA), or designee, and will be limited
to the designated space and shall be properly iden)fied as official Union issuances.
D. The Union is responsible for the content of all Union materials posted or distributed.
1. Union pos,ngs will be maintained in an orderly condi,on.
2. Posted material shall be per,nent to the conduct of workplace business and not
related to par,san poli,cal maCers. 3. Posted and distributed Union materials shall not
malign or nega,vely refer to specific managers or individuals.

SECTION 4
A. Regardless of jurisdic)onal laws, absent wriKen consent from all Par)es (with the
excep)on of court repor)ng transcripts in the conduct of official business), the recording
(audio, visual, or any other form) while conduc)ng Union business in the capacity of an
exclusive representa)ve (on or off premises) is prohibited. Nothing in this sec)on prohibits
the Employer from exercising its internal security of the agency.
B. Access to Employer policies, documents, correspondence and so forth, to include items
related to an individual employee, are for official business use only and will not be
distributed, posted, or shared in any way outside the strict scope of the business capacity in
which they are used by the exclusive representa)ve.

SECTION 5 In the event of any inconsistency or conflict between this Ar,cle 9 and any other
Ar,cle contained in this Agreement, the terms, condi,ons and provisions of this Ar,cle shall
govern and control.

Panel Commentary and Conclusion on Article 10 – Union


Representatives/Official Time

I. Agency Ar,cle and Posi,on


The key feature of the Agency’s proposal is to permit official ,me only for ,me granted under 5
U.S.C. §7131(a) and (c). The proposal does not authorize any official ,me in accordance with
§7131(d), however. The Statute states that official ,me pursuant to §7131(d) “shall be granted .
. . in any amount the [par,es] involved agree to be reasonable, necessary, and in the public
interest.” (emphasis added). In the Agency’s view, this language means that official ,me under
§7131(d) cannot be unilaterally imposed upon the Agency; it must be bilaterally nego,ated.
Imposing language upon Management is essen,ally gran,ng the Union a “blank check” that
could interfere with management’s right to assign work and schedule. Per OPM reports, the
Union’s use of official ,me increased over 200% between FY 2014 to FY 2016 (from 21,853
hours to 67,722). However, the Agency’s proposal permits Union officials the ability to u,lize
other forms of paid and non-paid leave for Union ac,vi,es.

In addi,on to the foregoing, the Agency proposes requirements for employees to
request official ,me and clear its use with supervisors. Failure to follow the foregoing will result
in various penal,es, including barring the use of official ,me altogether. Union representa,ves
must also stagger its use throughout the year. Finally, the Union must provide a weekly report
on its use of official ,me.

II. Union Ar,cle and Posi,on
The Union is willing to modify exis,ng CBA language. In par,cular, there are currently 6 Union
officials who are on full official ,me. As a compromise, the Union offers 80% official ,me for 4
stewards in 2 of the Union’s busiest local chapters that represent around 9,300 bargaining unit
employees. Other stewards would be eligible for “reasonable and necessary” official ,me
consistent with §7131(d) of the Statute and exis,ng language of the CBA.
The Agency’s proposal of no official ,me under §7131(d) is inconsistent with this sec,on’s
language that official ,me “shall be granted . . . in any amount” the par,es agree to be
“reasonable, necessary, and in the public interest.” (emphasis added). Similarly, 5 U.S.C. §7101
expresses Congress’ intent that collec,ve bargaining is in the public interest. Official ,me will
further that interest. The Statute does not contemplate that union representa,ves would be
required to use paid or non-paid leave to perform union ac,vi,es. Further, because the Agency
does not track or report its use of official ,me to OPM, it is in no posi,on to assert that
addi,onal official ,me is not reasonable and necessary.

III. Conclusion
The Panel will impose a modified version of the Agency’s proposal. The Agency’s proposal
provides a balance between mee,ng the needs of the Agency’s mission while sa,sfying the
Union’s statutory rights. Management’s proposal establishes an orderly system for reques,ng
official ,me that emphasizes the importance of ensuring a sufficiently staffed workforce.
Further, the proposal creates a system for tracking the use of official ,me that will provide the
par,es and other interested stakeholders a more accurate picture on the amount of official ,me
that is u,lized by the Union. Therefore, adop,on of the majority of the Agency’s proposal is
warranted.

Notwithstanding the foregoing, the Panel rejects the Agency’s arguments concerning 5 U.S.C.
§7131(d). Management’s argument that language cannot be imposed upon it in the absence of
its consent is inconsistent with exis,ng legal authority governing Federal sector bargaining. The
FLRA has long held that an agency must nego,ate when a statute does not grant that agency
sole discre,on to act. The Federal Service Impasses Panel is part of that nego,a,on process. It
has the statutory authority “take whatever ac,on is necessary” to resolve a failure to reach
agreements during nego,a,ons, i.e., an impasse, as long as that ac,on is not inconsistent with
the Statute. Stated differently, the Panel has broad authority to impose language upon par,es
that fail to reach agreement when they are legally required to bargain. Sec,on 7131(d) states
as follows: Except as provided in the preceding subsec,ons of this sec,on— (1) any employee
represen,ng an exclusive representa,ve, or (2) in connec,on with any other maCer covered by
this chapter, any employee in an appropriate unit represented by an exclusive representa,ve,
shall be granted official ,me in any amount the agency and the exclusive representa,ve
involved agree to be reasonable, necessary, and in the public interest.

Nothing in the above language indicates that agencies have sole authority to act pursuant to
this sec,on. Accordingly, to the extent the Agency suggests it cannot have language that differs
from its proposal imposed upon it, that sugges,on is misplaced. Indeed, carried through to its
logical conclusion, the Agency’s argument would mean that the Union could not have language
imposed upon it that it could not agree to.

The Agency’s other arguments in support of its posi,on on §7131(d) are equally unpersuasive.
It argues that gran,ng the Union any degree of official ,me pursuant to this sec,on could run
afoul of management rights. Yet, the FLRA has long held that official ,me is an excep,on to
statutory management rights. The Agency has not challenged the validity of this precedent. The
Agency also points to OPM data to note an increase in official ,me usage from FY 2014 to FY
2016. Although these numbers are troubling, they provide liCle in the way of explana,on or
analysis. Cri,cally, they do not explain how much, if any, tabulated official ,me fell under
§7131(d). Further, there is no breakdown as to whether the figure captures official ,me used
solely by NTEU or other unions within the Agency. The Agency offered no other support or
figures.

Based upon the foregoing, the Panel will remove Management Ar,cle 10, Sec,on 2.B, which
states that the par,es “agree that beyond the reasonable official ,me required under 5 U.S.C.
§7131(a) and (c), no addi,onal official ,me is reasonable, necessary, and in the public interest;
therefore the par,es agree that no official ,me shall be granted under 5 U.S.C. §7131(d).” The
Panel will not adopt the Union’s proposal on official ,me, however. In this regard, despite its
claim of a necessity for 4 individuals on some regular degree of official ,me, the Union provided
liCle suppor,ng empirical data to support that need. Thus, it would be inappropriate to impose
a per se requirement for official ,me. Rather, the Panel will include language that simply
references the Union’s ability to request reasonable official ,me in accordance with §7131(d)
and applicable law. Upon making such requests, it will then be up to the Union to jus,fy its
need. Based on the foregoing, the Panel will impose this language in lieu of Management
Ar,cle 10, Sec,on 2.B: The Union shall be permiCed to request official ,me in accordance with
5 U.S.C. §7131(d) and applicable law.

Agency Proposal: Article 10 Union Representatives / Official


Time – Adopted with noted changes

SECTION 1
A. This Ar,cle provides an equitable process for the alloca,on and approval of ,me for
representa,onal ac,vi,es as nego,ated pursuant to the Federal Service Labor-Management
Rela,ons Statute (FSLMRS or Statute) and shall be administered in accordance with said Statute
and this Agreement.
1. “Official” ,me is duty ,me that a union representa,ve spends performing the
representa,onal du,es specified in 5 U.S.C. §7131 (a) and (c). While on official ,me, the
employee receives his or her regular salary if otherwise in a duty status. It does not
include payment for over,me.
2. “Union” ,me is duty ,me that a union representa,ve spends performing
representa,onal du,es other than those found in 5 U.S.C. §7131 (a) and (c). If granted,
the absence will be charged to either annual leave of leave without pay, at the
representa,ve’s discre,on.
B. "Union representa,ves" as used in this Ar,cle, means any employee represen,ng the
exclusive representa,ve (in this case as a duly designated NTEU Union representa,ve).
C. This Ar,cle respects the Statute's goals of promo,ng collec,ve bargaining while honoring the
Statute's requirement that its provisions be interpreted to promote an effec,ve and efficient
government. The Agency and the Union share the responsibility to ensure that any ,me used
for representa,onal ac,vi,es:
1. Is authorized in wri,ng prior to use; and
2. That appropriate recordkeeping mechanisms, as determined by the Employer, are
u,lized for tracking and recording all ,me by all union representa,ves for performing
representa,onal ac,vi,es during the term of the Agreement as described in this Ar,cle.
D. It is the Union’s responsibility to ensure that any Official Time used for representa,onal
ac,vi,es is used appropriately, in accordance with the Statute and this Ar,cle.
E. In the interest of effec,ve and efficient government as stewards of the American tax payer,
abuse or misuse of any official ,me or union ,me used for union representa,onal maCers, to
include failure to ,mely and accurately report the ,me used, will not be tolerated and may
result in administra,ve ac,on against the union officer or representa,ve at the Employer's
discre,on and will be procedurally addressed as follows:
1. First offense = The NTEU President is no,fied and the Union representa,ve receives a
warning;
2. Second offense = The NTEU President is no,fied and the Union representa,ve is
prohibited from using official ,me or union ,me for representa,onal ac,vi,es for thirty
(30) calendar days; and
3. Third offense= The NTEU President is no,fied and the Union representa,ve is
prohibited from using official ,me or union ,me for representa,onal ac,vi,es for the
remainder of the dura,on of the Agreement.
F. Taking an administra,ve ac,on as defined above does not prohibit the agency from affec,ng
discipline or adverse ac,on as appropriate.

SECTION 2
A. In accordance with 5 U.S.C. §7131 of the FSLMRS, Union Officers and Representa,ves (not to
exceed the number of individuals designated as represen,ng the Employer for such purposes)
will receive reasonable amounts of official ,me within the scope of the FSLMRS for:
A. Nego,a,ons of collec,ve bargaining agreements and aCendance at impasse
proceedings (excluding travel and prepara,on ,me) under 5 U.S.C. §7131 (a) of the
FSLMRS.
B. Par,cipa,on in any phase of a Federal Labor Rela,ons Authority (FLRA) proceeding,
for which official ,me is ordered by the FLRA under §7131 (c) of the FSLMRS.
B. The Par)es agree that beyond the reasonable official )me required under 5 U.S.C. §713l(a)
and (c), no addi)onal official )me is reasonable, necessary, and in the public interest;
therefore the Par)es agree that no official )me shall be granted under 5 U.S.C. §7131(d). The
Union shall be permiKed to request official )me in accordance with 5 U.S.C. §7131(d) and
applicable law.
C. As an alterna,ve to official ,me, employees may request union ,me to be recorded as Leave
Without Pay (LWOP) or annual leave to perform the du,es below, in accordance with the
procedure in Sec,on 6.
1. Any employee represen,ng an exclusive representa,ve, or
2. In connec,on with any other maCer covered by FSLMRS, any employee in an
appropriate unit represented by an exclusive representa,ve.

SECTION 3 Union representa,ves and bargaining unit employees shall not perform any ac,vity
rela,ng to internal Union business on official ,me, including the solicita,on of membership,
elec,ons of labor organiza,on officials, and collec,on of dues. These ac,vi,es must only be
performed while in a non-- duty status, i.e., leave without pay (LWOP) or annual leave.

SECTION 4
A. The NTEU President will provide the Assistant Secretary for Administra,on (ASA), or
designee, wriCen no,fica,on of the name, union posi,on, designated representa,onal ,me
(official ,me), duty sta,on, telephone number, organiza,onal unit, and immediate supervisor of
each Union representa,ve within ten (10) workdays of the effec,ve date of this Agreement and
every 6 months thereaEer so that appropriate discussions can be held with these supervisors
and managers.
B. The NTEU President shall provide the ASA, or designee, the same informa,on in wri,ng of
any change in the list of Union representa,ves no later than ten (10) workdays before the
effec,ve date of the change. Temporary changes, e.g., to cover another representa,ve's
absence, shall not be u,lized to increase the number of representa,ves en,tled to use official
,me, provided by this Ar,cle. The NTEU President will indicate the dura,on of any temporary
appointment.

SECTION 5
A. Union representa,ves are required to stagger their request for authorized and approved
union ,me over the course of the fiscal year. Union representa,ves will work out ,me usage for
official representa,onal purposes consistent with this Agreement with their supervisors to
accommodate both union representa,onal ac,vi,es and Agency assigned du,es.
B. The NTEU President, or designee, will maintain close oversight over the use of ,me to ensure
that official ,me is kept to a minimum.

SECTION 6
A. Union representa,ves will be permiCed to leave their assigned work area on union ,me, as
appropriate and consistent with the work demands of the posi,on, as authorized under and
subject to this Agreement, including the limita,ons on pay and official ,me, aEer:
1. Providing wriCen or verbal no,fica,on to their immediate supervisor or appropriate
Management Official;
2. Providing a good-faith es,mate of the amount of ,me for which release is requested;
3. Indica,ng the des,na,on, if any; and
4. Specifying the appropriate representa,onal category.
B. If there is more than one (1) Union representa,ve repor,ng to the same supervisor, the
par,es agree to work closely and construc,vely to reduce the impact of mul,ple
representa,ves on performance of the work of the unit.
C. A Union representa,ve shall, to the extent possible, schedule his/her absences so as not to
compromise important work assignments, impede work, or interfere with the effec,ve,
efficient, and ,mely accomplishment of the Agency’s mission. The supervisor shall, to the extent
possible, schedule assignments, and inform Union representa,ves of assignments, in advance in
order to reduce the likelihood of conflic,ng demands. The ,me spent in carrying out the
representa,onal du,es described in this Ar,cle may require some adjustment of a
representa,ve's workload if, in the judgment of the Employer, an adjustment is necessary and
prac,cable.
D. Supervisors and Union representa,ves are encouraged to meet, periodically, to forecast ,me
use and to assess poten,al impact of official ,me on office workload.
E. Union representa,ves will be permiCed to leave their assigned work area as authorized
under this agreement only aEer repor,ng to their immediate supervisor or appropriate
management official and iden,fying the purpose of their ac,vity. The Union representa,ve shall
request union ,me in advance from their supervisor or their designee and have it approved in
advance prior to the use of ,me. The representa,ve may be released unless a union
representa,ve's presence is necessary to meet customer service, the work of the office
requirements, or the effec,ve, efficient, and ,mely accomplishment of the office’s mission. If
the representa,ve cannot be released at the ,me of the request and the amount of ,me the
par,es agree to, is reasonable, the representa,ve and the supervisor may discuss a mutually
agreeable ,me for departure. The Union representa,ve will be given a brief amount of ,me to
inform any bargaining unit employees involved in the delay.
F. If management is unable to approve a request for ,me, management will, within one
workday, iden,fy an alternate ,me for use of the requested ,me.
G. Upon entering any work area to meet with an employee, the representa,ve will advise the
immediate supervisor of his or her presence, the employee to be contacted, and the es,mated
dura,on of the mee,ng.
H. On occasion, discussions between the Union representa,ve and the employee may take
longer than originally an,cipated. In these cases, both will contact their supervisors
telephonically or by e-mail to request to extend the an,cipated return ,me and the amount of
addi,onal ,me needed. The supervisor (of the employee and union representa,ve) will
determine if the ,me can be extended for each individual or if rescheduling is necessary due to
work requirements.
I. When the Union representa,ve needs to leave the work site and his or her immediate
supervisor is temporarily absent from the site, or in unforeseen circumstances is unable to get
approval from the immediate supervisor, the representa,ve will request release from another
supervisor or manager in the chain of command prior to leaving the work site.

SECTION 8
A. Each Union representa,ve shall ,mely submit to his/her supervisor a biweekly wriCen report
of the amount of official ,me that he/she has spent on Union ac,vi,es covered by this Ar,cle
through the Employer's ,me and aCendance system, and shall provide an amended report if
official ,me is used aEer submission of their ,me and aCendance though the Employer's
system.
B. Union representa,ves will use the following categories in comple,ng their ,me and
aCendance report
1. Term Nego,a,ons (LRT): This category is for repor,ng official ,me hours used by
union representa,ves to nego,ate a basic collec,ve bargaining agreement or its
successor including aCendance at an impasse proceeding, as provided in 5 U.S.C.
§7131(a).
2. FLRA proceedings (LRFLRA): This category is for repor,ng official ,me hours used by
union representa,ves under 5 U.S.C. §7131(c).

SECTION 9 In the event of any inconsistency or conflict between this Ar,cle 10 and any other
Ar,cle contained in this Agreement, the terms, condi,ons and provisions of this Ar,cle shall
govern and control.

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