Holding: Management did not violate the bargaining agreement when it refused to grant a public employee’s telework request, even though the agency already had a “telework” policy in place for non-bargaining unit employees.
The agency had proposed a “telework” policy to the union, but the union had not agreed to agency’s proposal. “It is a well established principle of labor arbitration that a party may not obtain through arbitration what it could not acquire through negotiation.”
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In re
U.S.D.A.
Farm Service Agency
St. Louis, Mo.
and
AFGE Local 3354
121 LA (BNA) 1537
FMCS Case No. 05/54792
December 14, 2005
George L. Fitzsimmons, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
Issue
Did the Agency’s denial of Grievant’s request to “telework” violate the LMR Agreement, the FSLMR statute, or any other law, rule, or regulation pertaining to Union bargaining unit employees? If so, what shall be the remedy?
Summary Positions of the Parties
A. Union
The Agency violated the Contract in denying Grievant’s request to “telework” during her recuperation from major surgery.
B. Agency
The Agency properly denied Grievant’s request to “telework” during her recuperation from major surgery since the Agency had the right to manage the work force pursuant to 5 U.S.C. 7106 and said denial did not violate the LMR Agreement, FSLMR Statute, or any other law, rule, or regulation pertaining to Grievant.
Relevant Contract Provisions
Article 2—Provisions of Law and Regulation
In the Administration of all matters covered by this agreement, Management officials and employees are governed by existing and future laws and regulations of appropriate authorities, by existing regulations set forth in the Federal Personnel Manual (FPM); and by existing published Department and Agency rules and regulations consistent with provisions of 5 U.S.C. 7114 and 7117. The Union waives no right by agreeing to this proposal.
As of the effective date of this Agreement (1992), all past practices and previously negotiated agreements between AFGE Local 3354 and the Employees that conflict with the terms and conditions of the Agreement are null and void. All such past practices and negotiated agreements which do not conflict with the terms and conditions of this agreement remain in full force and effect as long as they are consistent with the law and existing Government-wide rules and regulations.
Article 3—Employee’s Rights
Article 3.3 E.
In an atmosphere of mutual respect, all Employees shall be treated fairly and equitably in the administration of personnel policies, practices and procedures and matters affecting conditions of employment with proper regard for their privacy and constitutional rights.
Article 3.3 E. 6
Work assignments will not be made or denied in violation of prohibited personnel practices, any applicable law, rule, or regulation, or in lieu of appropriate disciplinary action except as provided in this Agreement. Agency officials will exercise fairness and equity in making work assignments.
Article 3.3.E. 8.
Employees have the right to request leave of any type, official time, absence from overtime, core time deviation, tour of duty changes, visits to the health clinic, lunch period changes, and other similar requests to be absent from the work area in accordance with this Agreement, with the understanding that such requests may be subject to denial after consideration by the supervisor or other authorized individual. In considering such requests, supervisors or other Management officials will proceed as follows:
a. the supervisor will approve the request, if possible, and in accordance with the terms of this Agreement;
b. if the Supervisor has a valid work-related reason to tentatively disapprove the request, the affected employee will be appraised of the reason;
c. in considering such requests, the supervisor may request, or the employee may provide, such additional information/clarification relative to the request as is reasonable and necessary in order to determine whether approval/disapproval of the request is consistent with law, regulation, Employer instructions/policy, the efficiency of operations, and workload/workforce requirements when not in conflict with the Agreement;
d. if such additional information is provided by the Employee, the supervisor will reconsider the request, giving consideration to actual workload demands and to the Employee’s need;
e. if the supervisor must still deny the request, the Employee will be advised of the reasons for denial, and the supervisor will initiate action to reschedule, if applicable.
Summary of the Evidence
Sharon Cooney-Smith testified that she works in the FSA (Farm Service Agency) LOD (Loan Operations Division) as a management analyst and also serves as President of the Union. She attended a meeting with Mark McKinley, Grievant’s supervisor, to discuss Grievant’s request to “telework” during her upcoming six week recuperation from major surgery. She also attended a meeting with Glen Richter and Grievant to discuss the same issue. Grievant’s request to “telework” was denied and Grievant was required to use her annual leave and advance sick leave during her recuperation period.
Cooney-Smith stated that the Contract is silent as to “teleworking.” There is no “telework” policy in place between the USDA, FSA, and the Union. The Union has received a proposal from the Agency regarding “teleworking” but negotiations on that issue are ongoing. There is a “teleworking” policy in place between the Agency and non-bargaining unit employees in the St. Louis region. USDA Regulation 40860-3 dated January 2, 2002, encourages managers to utilize “teleworking.” Government Organization and Employees Title V is public law directing agencies to establish “telework” programs. She admits that at the time Grievant submitted a request to “telework,” the Agency and Union had already begun negotiations on a “telework” policy for bargaining unit employees.
Grievant testified that she is employed by the Agency as an accounting technician for twenty-one years and she has had excellent performance appraisals. She met with her immediate supervisor, Mark McKinley, on January 14, 2005, and requested permission to “telework” at home while she recuperated from major surgery. She did not want to exhaust all her leave as she would have been in a leave without pay category. She met with McKinley again on February 3, 2005, and he denied her request to “telework” but offered her 240 hours of advanced sick leave. She decided to use six days sick leave and three days credit time and 216 hours of advanced sick leave during her recuperation. She did not want to exhaust all of her annual leave because she is the primary caregiver of her elderly mother and her own children. She understands that “telework” is not an entitlement. She is also aware that no “telework” policy exists between the Agency and the Union. She testified that other Agency employees have been permitted to “telework” so why shouldn’t she be given the same opportunity.
Grievant admitted on cross-examination that her supervisor complied with Sec. 9.2 of the Contract in permitting her to use advance sick leave and she admits she lost no pay because of her leave usage. She also admitted that there was no provision in the Contract, no law, rule or regulation that required her supervisor to permit her to “telework” .
Deborah Stokes has worked for the Agency for twenty-five years. She is familiar with the Contract and there is no provision requiring a supervisor to grant a “telework” request. She supervises sixteen employees and has only permitted one employee to “telework” who had suffered a major heart attack and was also under a psychiatrist’s regular care. She is aware of Agency “telework” guidelines and she also is aware that there is no agreement between Union employees and the Agency requiring her to grant a “telework” request.
Daniel Kennebeck testified he is employed by the Agency as an accounting technician. He suffered a back injury and requested six weeks “telework” but his supervisor, Deborah Stokes, denied his request.
Mark McKinley testified that he is the Grievant’s immediate supervisor at the Agency and has worked for the Agency for nineteen years. He assigns work, does time and attendance, and performs other managerial duties. There is no provision in the Contract requiring him to grant a “telework” request. He denied Grievant’s “telework” request because he felt he could absorb her work by distributing it between his other fifteen employees who were performing similar work. He also had another employee returning from a long term illness who he could reassign some of Grievant’s work. The employees who were reassigned her work were able to do so without working overtime. There is no provision in the Contract and no rule, regulation, policy or law requiring him to grant a “telework” request. He did not approve Sharon Gottlieb’s one day “telework” request but was overruled by his supervisor.
Glen Richter testified that he is Chief of LOD and has three supervisors under his authority including Mark McKinley. He is familiar with the Contract between the Agency and the Union and there is no provision requiring a supervisor to grant a request to “telework.” He granted Sharon Gottlieb’s request to “telework” one Saturday at her home because there was a deadline for the work to be completed by the following Monday. There is no statute, regulation, or rule requiring a supervisor to grant a “telework” request. The Agency has a “teleworking” policy but cannot implement that policy without negotiating it with the Union.
Discussion and Decision
The issue to be decided by the Arbitrator is whether the Agency’s denial of Grievant’s request to “telework” violated the Contract, the FSLMR statute or any other law, rule or regulation pertaining to Union employees. The burden of proof lies with the Union since its grievance interprets the Contract. New Era Cap Co., 114 LA (BNA) 90 (2000). The Union must demonstrate that the Company violated the Contract. Entex, Inc., 73 LA (BNA) 331 (1979). If the Arbitrator finds the Contract language to be unambiguous, he will enforce the clear meaning of the Contract even if the parties disagree as to its meaning. Huron County Bd. of Commissioners, 114 LA (BNA) 487 (2000).
The Union argues two reasons to support its position that Grievant’s request to “telework” while she recuperated from major surgery should have been granted. First, the Agency already has a “telework” policy in place for non-bargaining unit employees. Since the policy is in place, the Agency should have granted Grievant’s request even though the Agency and Union have been unable to agree in ongoing negotiations on a “telework” policy. Second, Grievant argues that Article 3.3.E. 8 of the Contract gives employees the right to request “leave of any type.” The Union admits the Supervisor has the right to deny the request but alleges that the Supervisor violated the Contract by not apprizing Grievant of the work-related reason for denying her request to “telework.”
The Agency argues that 5 U.S.C. Section 710600—Management Rights grants management the right “... to assign work ... and to determine the personnel by which agency operations shall be conducted.” Since management has the right to assign work, it has the right to deny a request to “telework.” Further, the Agency maintains there is no provision in the Contract, no law, rule, or regulation requiring the Agency to grant Grievant’s request to “telework.”
Grievant’s first argument is that the Agency already has a “telework” policy in place for non-bargaining unit employees so Grievant’s request to “telework” should have been granted. The evidence is undisputed that the Agency has proposed a “telework” policy but the Union has not agreed to the Agency’s proposal. The evidence is also undisputed that the Agency cannot implement any policy, including a “telework” policy, without negotiating it with the Union. It is a well established principle of labor arbitration that a party “may not obtain through arbitration what it could not acquire through negotiation.” U.S. Postal Serv. v. Postal Workers, 204 F.3d 523, 530, 163 LRRM (BNA) 2577 (2000). Since the Union has not negotiated a “telework” policy with the Agency, this Arbitrator will not add such a provision to the Contract already existing between the parties. It is the duty of the Arbitrator to interpret and apply the Contract, not add new provisions to the Contract.
Grievant’s second argument relates to Section 3.3.E. 8 of the Contract which states in pertinent part:
Article 3.3.E. 8.
Employees have the right to request leave of any type, official time, absence from overtime, core time deviation, tour of duty changes, visits to the health clinic, lunch period changes, and other similar requests to be absent from the work area in accordance with this Agreement, with the understanding that such requests may be subject to denial after consideration by the supervisor or other authorized individual. In considering such requests, supervisors or other Management officials will proceed as follows:
a. the supervisor will approve the request, if possible, and in accordance with the terms of this Agreement;
b. if the Supervisor has a valid work-related reason to tentatively disapprove the request, the affected employee will be appraised of the reason;
c. if the supervisor must still deny the request, the Employee will be advised of the reasons for denial, and the supervisor will initiate action to reschedule, if applicable.
Grievant argues that this provision of the Contract gives the Grievant “the right to request any type of leave or any other similar request to be absent from the work area.” Therefore, a request to “telework” is an appropriate request as “teleworking” requires an individual “to be absent from the work area.”
In reviewing any provision of the Contract, the Arbitrator “is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement.” Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 [34 LA (BNA) 569] (1960). The Arbitrator’s duty is to interpret and apply the Contract. The burden is upon the Union to prove that this contractual provision includes “telework.”
In interpreting Article 3.3.E. 8 of the Contract, this Arbitrator begins with the assumption that the parties have used the language in the way that reasonable persons ordinarily do. The Union argues that the Arbitrator should equate the words “... leave of any type ...”with “telework.” The first problem with the Union’s argument is that the word “telework” is not used in the Contract. Also, when reasonable persons, including all witnesses who have testified at this hearing, use the phrase “telework,” they clearly mean doing Agency work for pay at a location away from the usual work site. In fact, in USDA Departmental Regulation dated June 2, 2005, the term “teleworking” is defined:
“h. Teleworking. (Also known as flexiplace, flexible workplace, and telecommuting. Performance of official duties at an alternative work site (i.e., home, telecenter, or other satellite work location).”
On the other hand, the American Heritage Dictionary, 2005 Edition, defines “leave” as “official permission to be absent from work or duty.” “Telework” encompasses performing work duties for pay away from the regular work site, while “leave” only involves permission to be absent from work. The Arbitrator finds that the Union has failed to prove that the Company violated the Contract, FSLMR Statute or any law, rule, or regulation. The Arbitrator refuses to equate the term “leave” with the word “telework.”
Award
The Arbitrator finds that Grievant has failed to prove that the Contract includes “telework” and failed to prove that the Agency violated the Contract, FSLMR Statute, or any other law, rule or regulation pertaining to Union bargaining unit employees including Grievant.
The grievance is denied in its entirety.