6/28/13:  To All Chapter 293 Stewards and Executive Board Members:

As you have probably heard by now, the Federal Service Impasses Panel (FSIP) Factfinder issued his report regarding our Collective Bargaining Agreement (CBA) negotiations on Monday of this week.

The Union has not yet reported on this development to the SEC employees we represent because I have been engaged in discussions with Chair White about possibly reaching immediate agreement on this contract and issuing a positive joint message about the agreement. This deal would involve the SEC giving us some additional provisions beyond what the Factfinder gave us. As part of that process, however, I recently found out that the Chair decided to disseminate the Factfinder’s report to all of the Directors in the agency, for their review and comments. As always seems to happen, some of these senior managers have leaked the report to various individuals and/or have discussed its existence with their employees. As a consequence, I know that you may be receiving questions about the report now (I know that I certainly am!).

For that reason, I have decided to distribute the report to all of you (below), just as the Chair distributed it to her senior officers. And I am also providing the following summary to you, to assist you in answering any questions that you may receive about the status of the CBA negotiations. It is still my wish to reach agreement with our new Chair, but it remains to be seen whether that will occur.

Bottom Line

All in all, the Factfinder ruled in favor of the Union on most of the substantial issues that were before him, as we previously had predicted. The SEC’s management negotiating team, unlike the Union team, simply failed to provide any evidence on the most important issues to be decided. Under the circumstances, it really is not very suprising that we prevailed.

The Factfinder’s report, like a decision of a trial judge, will now constitute the fact findings in the FSIP proceedings. In most cases, the FSIP simply will adopt the findings and rulings of the Factfinder.

The parties were required to present any disagreements that they have with the report by today (June 27). The SEC’s management negotiating team, however, has requested a two-week extension, which was granted by the FSIP. Due to this further delay, if the SEC opts to continue to fight, rather than to reach agreement with the Union in the next week or so, we will miss the FSIP's July meeting and probably will not have a final resolution until the end of the summer at the earliest, and more likely sometime in the fall.

You should understand, though, that it is highly unlikely that the agreement ultimately imposed by the FSIP will deviate to any significant degree from what the Factfinder has recommended. That is generally what happens. A summary of those findings follows...

Telework

On the most important remaining dispute, the Factfinder completely vindicated our position and accepted the Union’s proposal that recurring telework should be expanded from the current maximum of two days per week to five days per week. The Union agreed to some reasonable limits on this expansion – no more than 25% may participate in 3, 4 or 5 day telework in any given office (except Corp Fin, which will have no percentage cap). Furthermore, an employee must successfully telework for two days per week for a year before applying for 3-day, for three days per week for a year before applying for 4-day, and for four days per week for a year before applying for 5-day. These were our proposals to address management's apparent fear that the sky will fall once expanded telework is available to the staff.

The Factfinder backed our arguments, noting that the Union presented solid evidence to support its position, whereas the SEC simply stated a position that was utterly unsupported by the evidence:

“In its Position Statement (at pp. 56-64), NTEU describes in detail (and with documentation) the implementation of the Expanded Telework program, SEC’s assessment of the program, and various materials suggesting that expansive telework at the SEC has been successful (including SEC materials extolling the expansion of telework). Although SEC’s new proposals reflect a wholesale retreat from SEC’s apparent earlier embrace of greater telework opportunities, this Factfinder finds it significant that no objective evidence has been presented by SEC to demonstrate the Expanded Telework program was not successful. For that matter, SEC has not even provided anecdotal evidence to suggest the program was not successful.”

Factfinder’s Report, p. 39 (emphasis added).

The Factfinder essentially determined that the Union had the better argument – that anyone should be permitted to apply for telework, and decisions to grant or deny applications should be made on case by case basis based on the nature of their work, rather than simply broadly prohibiting the benefit because management doesn’t like it:

“Overall, the ‘take away’ for this Factfinder is skepticism regarding the overall SEC approach. Plainly, extensive recurrent telework would be inappropriate for large numbers of Agency employees, simply based on the type of work they perform. However, SEC’s approach is to curtail sharply the opportunity for any employee to apply for the extremely broad telework schedules that succeeded under the pilot program. In this Factfinder’s view, this kind of across the-board shift is inappropriate. The better strategy is to adopt policies that allow employees broadly to apply for extensive telework opportunities, if they so choose, while also educating supervisors and managers that each telework request needs to be analyzed critically in light of the Agency’s needs and the employee’s ability to perform work independently. Although this individualized assessment approach may be more difficult (because it places supervisors in a position where they sometimes have to say “no” to their employees), it best achieves the result mandated by Congress, i.e., allowing expanded telework opportunities in circumstances that are appropriate.”

Factfinder’s Report, p. 40.

The Factfinder also noted that it was somewhat odd for the agency to “repeatedly stress the need for employees to be physically present in its offices to provide ‘face time’ with supervisors and colleagues,” when it was also obvious that the SEC needs to mitigate a coming “space crunch” due to its MOU with GSA and new hiring demands. Factfinder’s Report, p. 13. This is, of course, precisely what we have been arguing in the context of ongoing space discussions, to no avail. You should note in this regard that the Factfinder included a provision permitting the SEC to double up expanded teleworkers, but specifically excluded stewards at our request, due to the confidential nature of their work.

In addition to broadly adopting the Union’s telework regime, the Factfinder also rejected numerous efforts by the SEC to insert burdensome new standards to curtail telework. As but one example, the Factfinder rejected an SEC proposal to require all teleworkers with children to regularly provide “documentation” that a caregiver is providing childcare during the employee’s working hours. NTEU objected to this burdensome provision as a wholesale invasion of employees’ private lives, and the Factfinder agreed. The Factfinder also included a provision making it clear that 5-4-9 and 4-10 employees also may telework.

The Factfinder also rejected the SEC’s proposal that would mandate that all employees with an ad hoc telework agreement must work when the office is closed due to a storm:

“In the view of the Factfinder, SEC’s proposal that employees with ad hoc telework agreements be compelled to work during Agency shutdowns, even when the employee was scheduled to be working at the Agency, is simply unreasonable. On those days, the employee’s duty station is the Agency site. If the Agency chooses to shut down the site and send employees home, it is unfair to expect certain groups of workers to be compelled to work from another site. I do not recommend the SEC language.”

Factfinder’s Report, p. 59. Furthermore, when there is an early dismissal, such as on a holiday, the Factfinder would require that recurring teleworkers will also be excused.

Work Schedules

The Factfinder also adopted the Union’s proposed new “SEC-flex” work schedule with credit hours. This will permit employees to set up schedules that are essentially the same as a 5-4-9 or 4-10, but with the ability to earn and use credit hours. Most importantly, the Factfinder rejected the SEC’s "poison pill" demand that this new program be only a one-year “pilot” that the SEC could terminate unilaterally for any reason at its sole discretion:

“The Factfinder agrees with NTEU that implementation of the SEC-flex program as a pilot is undesirable. Further, even if the concept of a pilot program (with its possible termination) may not violate the letter of the Work Schedules Act, it certainly runs counter to the spirit. Although somewhat complicated, the SEC-flex program offers real possibilities for improving the quality of worklife for many SEC employees. The parties plainly have spent substantial time developing the program, and SEC essentially is “on board” with trying to make the program work. I believe it would be counterproductive in many respects to enter into the program with the burden of knowing that the program effectively would need to be re-authorized after a single, short year. In the view of the Factfinder, all involved would be better off entering into the SEC-flex program with the knowledge that it is a new work schedule under the labor agreement, while recognizing – per 5 U.S.C. §6131 – that the program can be reopened upon a showing of adverse agency impact.” 

Factfinder’s Report, p. 38.

In addition, credit hours will now be permitted to be earned from 6:30 AM to 10:00 PM each day (the old rule was between 7 AM and 7 PM). Credit hours now may also be earned on a holiday when an employee is required to work on the holiday by management (e.g., when working on a TRO). And there is also a new provision explicitly allowing employees who are teleworking on the weekend to earn credit hours.

Professional Dues Reimbursement and Upward Mobility

The Factfinder agreed to the Union’s new provision under which the SEC will reimburse employees for up to $200 per year for professional dues, licenses, society memberships, etc., to the extent that they are required as a condition of employment or when the SEC actively encourages such memberships:

“Although SEC may be correct (per the 2004 FSIP decision in the Treasury and NTEU case) that payment of bar dues is not common at Federal agencies, in the Factfinder’s experience this type of reimbursement of job-required professional dues costs is quite common among large employers, and most likely is commonplace among the private sector employers where SEC’s professional employees would likely be working if they had not chosen to take positions in the Federal sector.”

Factfinder’s Report, p. 64.

The Factfinder also required that the Upward Mobility Program for support staff be determined by a joint labor-management committee.

Excused Absence/Administrative Leave

In this article, the Factfinder agreed to the Union’s proposed language on weather-related excused absences.

“Whereas the existing labor agreement arguably would allow SEC to grant administrative leave when an employee is unavoidably delayed in arriving at work, NTEU would expand paragraph 2 to encompass situations in which administrative leave could be granted by SEC if an employee was entirely prevented from arriving at work because of emergency situations. Similarly, with regard to provisions allowing employees to request a reasonable amount of excused leave, NTEU proposes adding language making clear that the requests may encompass either part or all of a work day. NTEU proposes new language making clear that SEC can require an employee who alleges an emergency situation to provide documentation. In two locations in the paragraph, NTEU proposes minor text changes, removing references to the Agency “considering” employee requests and instead stating the Agency “may grant” the requests. NTEU points to similar language at a few other agencies.”

Factfinder’s Report, p. 67.

Furlough Due to Lapse in Appropriations

Finally, the Factfinder also adopted most of the Union’s proposals for dealing with furloughs due to a lapse in appropriations, such as during government shutdown.

Conclusion

All in all, this was a very good decision for the Union. It totally vindicated our approach to these negotiations, as well as what we have been reporting to the employees we represent during the negotiations. The fact of the matter is that the SEC’s management negotiating team was unwilling to work with the Union to collaborate on solutions to real issues that face the front line staff. And, in the end, since they had nothing to back up their positions on the key issues, we were able to prevail across the board.

It is my hope that our new Chair will embrace these basic work life benefits and that we will be able to turn over a new leaf in our relationship with senior management. I will keep you posted on the results of our ongoing discussion about the CBA with Chair White. I just wanted you to be as informed as the senior managers in your office in the meantime.

You can review a copy of the report here. Thanks.

Greg Gilman