Q&A on Legal Representation
In the course of representing our membership, many legal questions arise. These questions are referred to our General Counsel Richard Hirn for review. Here are a few examples of the questions Mr. Hirn has answered for us.
QUESTION 1: Must NWSEO represent an employee who is not a union member against whom discipline is proposed? Must NWSEO help in preparing his or her response to the proposed discipline if he or she is not a dues paying NWSEO member? Answer...
QUESTION 2: Is NWS management obligated to notify the union of its intent to change the working conditions that affects only one employee, and to bargain about the impact and implementation of that change before it is made? Answer...
QUESTION 3: May an AWS be implemented if not all union members agree to it on station? Answer...
QUESTION 4: Is it legal to tape record phone conversations at work without the other party having knowledge of it? Answer...
QUESTION 5: What is a hostile work environment that is prohibited by Title VII of the Civil Rights Act? Answer...
QUESTION 6: What is the definition of "insubordination" and what disciplinary action may be taken against an employee who is insubordinate or disruptive? Answer...
QUESTION 7: Must I take compensatory time in lieu of overtime? Answer...
QUESTION 8: Can the union negotiate for us to get paid for the time we spend traveling to work when we get called in on our day off? Answer...
QUESTION 9: Am I entitled to overtime when I travel on a day off to attend training to be held the following week away from my duty station? Answer...
Must NWSEO represent an employee who is not a union member against whom discipline is proposed? Must NWSEO help in preparing his or her response to the proposed discipline if he or she is not a dues paying NWSEO member?
Under the FSLMR Statute, unions are NOT required to represent non-members during proposed disciplinary actions. The union has no "duty of fair representation" in this regard because it is not the "exclusive" representative of unit employees in responding to proposed disciplinary actions. Individual employees, regardless of their bargaining unit status, may retain private counsel to respond to proposed disciplinary actions. If the agency ultimately decides to take the disciplinary action, and the employee wishes to grieve, the union is the exclusive representative during that process and is required to represent members and non-members alike. Of course, the union is not obligated to represent anyone in a grievance which the union does not believe to be meritorious.
Several years ago, the NWSEO National Council voted that it would be union policy not to extend representation assistance to unit employees who are not NWSEO members when dispciplinary action is proposed against them. The Council established a rule that unit employees must be an NWSEO member before the incident for which discipline is being proposed took place.
Please advise the employee that we can not provide him any assistance or advice in responding to the proposed suspension, other than to provide him with a copy of the collective bargaining agreement. Please advise him that he is free to retain counsel privately to represent him at this stage.
If the agency determines to impose discipline after consideration of his reply, and the employee asks for assistance in filing a grievance, NWSEO at the Regional and/or national level would be happy to review the complete file, including management's decision letter, and make a make a decision whether such a grievance has merit.
Is NWS management obligated to notify the union of its intent to change the working conditions that affects only one employee, and to bargain about the impact and implementation of that change before it is made?
As you are aware, an agency commits an unfair labor practice in violation of § 7116(a)(1) and (5) of the Statute when it exercises a management right but fails to negotiate about the implementation of the change in working conditions and appropriate arrangements for employees adversely affected by the change. This letter is in response to your question as to how many employees need be affected by a change in working conditions before NWS management has an obligation to notify the Union and bargain before the change is made.
Management is required to notify and bargain with the Union even if the change in working conditions is not substantial. However, the effect of the change on bargaining unit employees must be more than de minimus (i.e. small or trifling). Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) established the standard to be applied in determining whether a change in conditions of employment by an agency is de minimis . There the current standard was established as follows:
... In examining the record we will place principal emphasis on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change of conditions of employment of bargaining unit employees. Equitable considerations will also be taken into account in balancing the various interests involved.
There is no threshold number of employees who must be involved before a bargaining obligation arises:
As to the number of employees involved, this factor will not be a controlling consideration. it will be applied primarily to expand rather than limit the number of situations where bargaining will be required. For example, we may find that a change does not require bargaining. However, a similar change involving hundreds of employees could, in appropriate circumstances, give rise to a bargaining obligation. As to the size of the bargaining unit, this factor will no longer be applied.
In that particular case, the FLRA held that the reassignment of one employee from one work unit to another was de minimis because the work of the two units was substantially similar.
In contrast, in Department of Human Services, Social Security Administration , Baltimore, MD and HHS, SSA, Hartford District Office, Hartford, CT and AFGE Local 116, 37 FLRA 278, (1990) the Authority held that the agency violated 5 USC 7116(a)(1) and (5) by reassigning one employee from Field Representative to Claims representative without first giving the union notice and an opportunity to bargain over impact and implementation on the one employee's reassignment. In that case there was a substantial change in duties.
The de minimis inquiry does not focus primarily on the magnitude of the change in employees' conditions of employment, but rather on the magnitude of the foreseeable effect of the change on the welfare of the employees. U.S. Customs Service (Washington, D.C.) and U.S. Customs Service, Northeast Region ( Boston, Massachusetts) 29 FLRA 891 (1987).
For example, the FLRA held in 51 FLRA No. 69 that the agency had an obligation to notify and bargain with a union the detail of four employees. The FLRA rejected management's claim that since there was no loss of pay, the detail had a de minimis impact on the employees. The FLRA found that the impact on the detailed employees was more than de minimis because their work was less desirable after the details, it involved less skill and technical responsibility, and it could have adversely affected promotion potential. The detail also meant that other unit employees had to perform more work to pick up the slack because of the absence of the detailed employees.
The "foreseeable impact" on the unit employees does not have to be confined to the employee's job tenure, work environment or facility. The FLRA has found that changes in conditions of employment such as changes in scheduled days off, which in turn intrude on an employee's family, travel and or educational plans, trigger a duty to bargain. Id ., Department of the Air Force, Sacramento Air Logistics Centers McClellan Air Base, California 39 FLRA 1357 (1991). If the foreseeable impact of the change in working conditions on the employees is not self evident, and the union has information that is not available to the agency that would help establish the impact, it must share that information with the agency in order to later claim that the agency was obligated to bargain. Portsmouth Naval Shipyard and IFPTE Local 4 45 FLRA 574 (1992).
May an AWS be implemented if not all union members agree to it on station?
An alternative work schedule, which is technically known as a "compressed work schedule" may be implemented without unanimous support . NWSEO, as the exclusive representative, has the right to propose to management that an AWS or "CWS" be established, either on a trial or permanent basis.
This authority is found at 5 U.S.C. § 6130(a) which reads:
(1) In the case of employees in a unit represented by an exclusive representative, any flexible or compressed work schedule, and the establishment and termination of any such schedule, shall be subject to the provisions of this subchapter and the terms of a collective bargaining agreement between the agency and the exclusive representative.
(2) Employees within a unit represented by an exclusive representative shall not be included within any program under this subchapter except to the extent expressly provided under a collective bargaining agreement between the agency and the exclusive representative.
NWSEO may, but is not required , to poll local branch union membership before deciding to propose an AWS. Any AWS that is developed through negotiations with management need not be submitted to nonmembers for approval. The decision to propose an AWS, or to ratify final adoption of an AWS developed through negotiations, is an internal union matter. However, our collective bargaining agreement requires both the Union and Management to "consider the needs and concerns" of employees who prefer not to participate. Article 20, §11(f).
You may be interested to know that even if there was no union in the workplace, an AWS may be adopted by majority vote - unanimity is not required. Title 5 U.S.C. § 6127(b)(1) provides:
An employee in a unit with respect to which an organization of Government employees has not been accorded exclusive recognition shall not be required to participate in any program under subsection (a) unless a majority of the employees in such unit who, but for this paragraph, would be included in such program have voted to be so included.
Furthermore, there is only a limited basis by which an employee may elect out of participation in an AWS. Title 5 U.S.C. § 6127(b)(2) provides that:
Upon written request to any agency by an employee, the agency, if it determines that participation in a program under subsection (a) would impose a personal hardship on such employee, shall-
(A) except such employee from such program; or
(B) reassign such employee to the first position within the agency-
(i) which becomes vacant after such determination,
(ii) which is not included within such program,
(iii) for which such employee is qualified, and
(iv) which is acceptable to the employee.
A determination by an agency under this paragraph shall be made not later than 10 days after the day on which a written request for such determination is received by the agency.
The procedures by which an employee who claims personal hardship may request exemption should be included within negotiations over the establishment of an AWS, and such procedures should include an opportunity for Union review before an employee is exempted on the basis of personal hardship. Standards for what constitutes a hardship can probably be negotiated, as well as alternative schedule arrangements for employees granted such exclusions.
Is it legal to tape record phone conversations at work without the other party having knowledge of it?
Such conduct does not violate Federal law. However, many states have laws which prohibit such conduct such as California and Maryland. It is the union's position that employees and managers should never tape record telephone or personal conversations without knowledge and approval of the other person. Even then, we strongly discourage its use because by tape recording the other party to a conversation, even with his or her consent, you are implicitly accusing the other party of being a liar. This hinders healthy labor-management relations.
It is NWSEO's legal policy not to use any surreptitious tape recording in any defense of an employee in a disciplinary, EEO or other case. You may be interested in knowing that in a recent case which I handled on behalf of another union, the Arbitrator sustained the demotion of an employee in part because he had secretly tape recorded a telephone conversation with a company official. The Arbitrator ruled that the company was justified in part in demoting the employee because they could no longer reasonably place trust in him.
What is a hostile work environment that is prohibited by Title VII of the Civil Rights Act?
Hostile work environment harassment arises when "sexual conduct has the purpose of effect of unreasonable interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment," .
To prevail on a hostile work environment cause of action, a plaintiff must establish, among other things, that he/she was subjected to unwelcome sexual harassment based upon his/her sex that affected a term, condition, or privilege of employment. The behavior creating the hostile working environment need not be overtly sexual in nature, but it must be "'unwelcome' in the sense that the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive." The harassment must also be sufficiently severe or pervasive "to alter the conditions of employment and create an abusive working environment."
In assessing the hostility of an environment, a court must look to the totality of the circumstances. Circumstances to be considered include " the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." No single factor is determinative and the court "should not carve the work environment into a series of discrete incidents and then measure the harm occurring in each episode."
Courts have held that the following incidents did not constitute conduct severe enough to be considered as a violation of the civil rights laws
- a single exposure to offensive videotape was not severe or pervasive enough to create hostile environment;
- exposure to offensive behavior by supervisor on one instance does not satisfy "severe or pervasive" requirement under Title VII;
- five sexually-oriented incidents spread out over the course of 16 months not sufficiently severe or pervasive enough to create hostile work environment;
- "relatively limited" instances of unwanted sexual advances, which included the supervisor placing his hand on plaintiff's leg above the knee several times, rubbing his hand along her upper thigh, kissing her several seconds, and "lurch[ing] at her from behind some bushes," did not create an objectively hostile work environment.
What is the definition of "insubordination" and what disciplinary action may be taken against an employee who is insubordinate or disruptive?
Insubordination is defined as a refusal to obey some order that a superior officer is entitled to give and have obeyed. To sustain a charge of insubordination, the agency must establish that the refusal to obey a proper order was intentional and willful disobedience, rather than a negligent or otherwise unintentiona l failure to obey an order.
In contrast, a charge of failure to follow supervisory instructions does not turn on proof of intent.
An agency may prove the charge by establishing that proper instructions were given to an employee and that the employee failed to follow them, without regard to whether the failure was intentional or unintentional.
"Disruptive behavior" is any unwarranted conduct by an employee which interferes with the accomplishment of work at the work site, including distraction of co-workers from their duties.
An employee guilty of insubordination, failure to follow instructions, or disruptive behavior may receive discipline ranging from admonishment up to removal. This will depend on the gravity of the conduct the employee's past disciplinary record, and the degree to which the employee is willing to admit responsibility or demonstrate capacity to improve his behavior.
Must I take compensatory time in lieu of overtime?
| FSLA NON EXEMPT | FSLA EXEMPT |
| OT at 1 1/2 x Base Pay (incl Locality Pay) | OT at 1 ½ x base pay incl. locality pay up to max of 1 ½ x base pay of GS-10, step 1 incl. locality pay. |
| Employee cannot be required to take comp. time . Comp time may be taken at employee's request by signing name in column 10 of CD-81. | If pay is less than or equal to GS-10/10 , employee cannot be required to take comp time . Comp time may be taken at employee's request by signing name in column 10 of CD-81. |
| If pay is > GS-10/10 , employee must take comp. time unless payment of OT is authorized |
Can the union negotiate for us to get paid for the time we spend traveling to work when we get called in on our day off?
The Federal Labor Relations Authority has ruled that a proposal made by another union which would compensate employees from the time they left their homes until the time they returned, when called back for overtime, was nonnegotiable. The FLRA held that "without statutory authority, overtime pay can only be made for actual performance of work." International Brotherhood of Electrical Workers, Local 570 and Department of the Army, Yuma Proving Ground , 14 FLRA 432 (1984).
The FLRA relied on an earlier decision of the U.S. Comptroller General which had earlier rejected a proposal by another union for a minium of four hours call back overtime. B-175452 (May 1, 1972).
I understand the disruption caused by being called into the office on your day off. However, as these cases discuss, Congress has decided that the minimum guarantee of two hours pay under such circumstances is sufficient, in its view, to compensate for this inconvenience.
Am I entitled to overtime when I travel on a day off to attend training to be held the following week away from my duty station?
In this instance an employee was being required to travel on a Sunday to attend a professional training meeting that is being conducted on Monday. This meeting is sponsored and scheduled by a private organization. The National Weather Service has no control of the time and date the meeting is to be held.
Under these circumstances, an employee is not entitled to overtime or compensatory time for the days on which you travel. As a professional meteorologist, this employee is exempt from coverage of the Fair Labor Standards Act. Overtime entitlement is therefore governed by Title 5, § 5542 of the U.S. Code. (generally referred to as "Title 5" overtime).
Under § 5542(b)(2), time spent in travel status is not compensable hours of work unless it
(a) occurs during your regularly scheduled duty hours; or
(b) you perform work while traveling or
(c) travel is to or from an event that could not be "scheduled or controlled administratively," that is to say, by the NWS.
Consequently, the Comptroller General has held that when an employee travels on Sunday to a training course at a private institution, the employee can count the hours in travel status as overtime work under Title 5. The Comptroller General reasoned that since the employee's agency had no control over the scheduling of the course the employee was attending, the travel resulted from an event that could not be "scheduled or controlled administratively." In the Matter of William A. Lewis, et al : Overtime Pay for Travel to Training , 69 Comp. Gen. 543 (June 29, 1990).
The result would be different, however, if the training was conducted by the agency, or under a contract with the agency wherein the agency had a say in the scheduling of the course.
If you were required to travel on Sunday to an NWS sponsored training or meeting scheduled for Monday morning, you would not be entitled to overtime for the travel on Sunday. In the Matter of Defense Security Institute Instructors: Travel to Course Location and Setting Up for Course, 71 Comp. Gen. 228 (February 10, 1992); In the Matter of Perry L. Golden and Wayne Wood : Overtime for Travel to Training , 66 Comp. Gen. 620 (August 31, 1987).
Slightly different rules apply to NWS employees who are not exempt from the Fair Labor Standards Act, such as most electronics technicians. Regardless of whether the employee is traveling to an event that could be scheduled or controlled administratively, the FLSA covered employee can count the travel on her day off as overtime if such travel occurs "on non-workdays during hours which correspond to his/her regular working hours." In the Matter of Dian Estrada: Entitlement to Overtime Pay for Travel to Training, 60 Comp. Gen. 434 (May 5, 1981). Ascertaining the regular working hours of a rotating shift worker may be problematic, however.
If the FLSA covered employee travels to training on a day off during hours which do not correspond to her regular working hours, she is not entitled to overtime under the FLSA. However, she would still be entitled to overtime under Title 5 if the training or meeting to which she was traveling could not be scheduled or controlled by the NWS. In the Matter of Robert L. Moore, Jr., B-239097 (Comp. Gen. September 17, 1990). Such Title 5 overtime is limited to one and one-half the hourly rate of a GS-10, step 1.
In order to avoid forcing employees to travel to agency sponsored meetings and training on their days off without pay, Congress has instructed Federal agencies to schedule employees' travel within their regular workweek whenever possible. 5 U.S.C. § 6101(b)(2). This has been interpreted to mean "that Federal employees should not be asked to travel on their own time unless there is no alternative." In the Matter of Dian Estrada, supra, (quoting with approval interpretive guidance from OPM).
As noted earlier, travel time during "the regularly scheduled administrative workweek of the employee" is fully compensable. I would argue that, in the case of NWS rotating shift workers whose "regularly scheduled administrative workweek" changes from week to week depending on the needs of the NWS, when it is known in advance of the posting of the fixed schedule that an employee has to travel to an agency scheduled or controlled event, the anticipated travel time should be included in the employee's "regularly scheduled administrative workweek" on the posted schedule for the period in question. See generally Article 20, §§ 4, 6 of the NWS/NWSEO Collective Bargaining Agreement.
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