VOLUNTARY SETTLEMENT REACHED DURING FINAL ACTION HEARING

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP92-00455R000100130002-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 18
• Document Creation Date: December 12, 2016
• Document Release Date: March 11, 2002
• Sequence Number: 2
• Publication Date: July 8, 1976
• Content Type: REPORT

FE
R
AL
SE
RVICE IMPASSES PANEL
1900 E Street NW, Washington, D.C. 20415
Release No. 66
July 8, 1976
VOLUNTARY SETTLEMENT
REACHED DURING
FINAL ACTION HEARING
A settlement of a negotiation dispute affecting approximately 1,800
employees of the United States Marshals Service has been announced by the
Federal Service Impasses Panel. The agreement in Department of Justice,
U.S. Marshals Service, Washington, D.C. and International Council of U.S.
Marshals Service Locals, American Federation of Government Employees,
AFL-CIO (Case No. 75 FSIP 38, June 23, 1976) was reached on June 22, 1976,
during a hearing before a three-member subpanel of the Panel consisting
of Chairman Robert G. Howlett and Members Albert L. McDermott and James C.
Vadakin.
The Panel had directed the impasse to factfinding on issues relating to
disciplinary actions, scope of the grievance procedure, merit promotions,
overtime and standby, and use of official time. (Panel Release No. 60.)
Prior to the factfinding hearing before a member of the Panel's staff,
however, several of these issues were resolved. Accordingly, the Panel's
four postfactfinding recommendations concerned overtime and standby, and
the scope of the grievance procedure. (A copy of the Panel Report and
Recommendations for Settlement is attached.) Two of the recommendations
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were accepted by both parties. Because the impasse continued with respect
to the other recommendations, the Panel scheduled a final action hearing
in accordance with its authority under Executive Order 11491, as amended,
to take whatever action it deems necessary to bring a dispute to settlement.
It was at this hearing that the parties resolved the remaining issues,
using the Panel's recommendations as the foundation for the final agreement
terms. The agreement, the parties' first, will apply to some 1,400 U.S.
Marshals and 400 clerical personnel in a worldwide bargaining unit.
For further information,
telephone [phone].
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United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
DEPARTMENT OF JUSTICE
U.S. MARSHALS SERVICE
WASHINGTON, D.C.
Case No. 75 FSIP 38
INTERNATIONAL COUNCIL OF U.S.
MARSHALS SERVICE LOCALS
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
PANEL REPORT AND RECOMMENDATIONS FOR SETTLEMENT
Appearances:
For U.S. Marshals Service:
Kenneth C. Holecko,
Katherine F. Morland,
Chief, Labor-Management Relations
Section
U.S. Marshals Service
Washington, D.C.
Labor-Management Relations Specialist
U.S. Marshals Service
Washington, D.C.
For International Council of U.S. Marshals Service Locals, AFGE:
Robert L. Richardson,
John J. Steinheimer,
Contract Negotiation Specialist
American Federation of Government
Employees, AFL-CIO
Washington, D.C.
Chief of Negotiating Committee
Local 2535, American Federation
of Government Employees, AFL-CIO
Southern District of New York
New York, New York
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The International Council of U.S. Marshals Service Locals, American
Federation of Government Employees, AFL-CIO (the: Union), filed a request
with the Federal Service Impasses Panel (the Panel) on November 28, 1975,
to consider a negotiation impasse under section 17 of Executive Order
11491, as amended (the Order). The request arose out of labor agreement
negotiations between the Union and Department of Justice, U.S. Marshals
Service (the Employer).
On December 11, 1975, the Panel determined that resolution of the
impasse required factfinding. By letter and Notice of Hearing, it
appointed Edward E. Potter to conduct a factfinding hearing on issues
concerning use of official time, scope of the grievance procedure,
disciplinary action, merit promotion, and overtime and standby.
A hearing was held before Factfinder Potter on January 20, 21, 22
and 23, 1976, in Washington, D.C. A stenographic record was taken;
testimony and argument were presented; and the parties also submitted
documentary evidence. Posthearing briefs were filed by the parties on
February 20, 1976. The factfinder's report was issued on February 27,
1976; comments on the report were received from the Union on March 11, 1976.
BACKGROUND
1. The Employer
The U.S. Marshals Service is charged with a wide range of Federal
law enforcement responsibilities involving the service of criminal and
civil process. Its functions include serving warrants of arrest; movement
of Federal prisoners; protection of witnesses; seizure and disposal of
property under court order; maintenance of the security of Federal court
facilities, judges,and jurors; and prevention and control of civil dis-
turbances.
The Marshals Service is composed of 94 districts which conform to the
Federal District Court system. Each district is headed by a U.S. Marshal
who is appointed by the President and who heads a staff of Deputy U.S.
Marshals and clerical personnel. The average office contains approximately
15 deputy marshals although the Southern District of New York, Chicago, Los
Angeles, San Diego, and New Orleans have 40 to 50 deputies each. Over 200
deputy marshals are assigned to the Washington, D.C., office.
2. The Union
The Union represents approximately 1,400 Deputy U.S. Marshals and 400
clerical personnel. It achieved recognition as the bargaining representa-
tive for all nonprofessional employees of the U.S. Marshals Service, world-
wide, including intermittent and term deputies, on August 20, 1974. The
Union has approximately 35 locals ranging in size from 10 to 100 members;
about two-thirds of its membership is in the larger cities.
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3. The Current Negotiations
Negotiations for a first collective bargaining agreement began on
October 20, 1975. Between that date and November 14, 1975, there were
16 bargaining sessions of which the last 3 were attended by a Federal
mediator. The parties were able to reach agreement on numerous contract
terms but were unable to resolve the issues identified in the Notice of
Hearing.
Subsequently, during the course of the prehearing conference and
factfinding hearing, the parties resolved the issues concerning use of
official time, disciplinary action, merit promotion, and some of the
issues relating to overtime and standby. Left unresolved were three
issues concerning overtime and standby, and one relating to the scope of
the grievance procedure.
OVERTIME AND STANDBY
The issues at impasse concern Union proposals that the Agreement
provide that: (1) hours of work in excess of 8 hours a day and all
hours in excess of 40 hours in one administrative workweek shall be
overtime and that all overtime shall be paid at the appropriate rate of
pay; (2) all overtime assignments will be made by the Employer in a fair
and equitable manner; and (3) the Employer will not assign or permit an
employee to work overtime on an "administratively uncontrollable overtime"
basis solely to avoid paying any employee "regular overtime."
1. Back round
a. The Statutory Basis for Overtime Payment
Federal overtime legislation authorizes two distinct forms of
compensation.. 5 U.S.C. ? 5542(a)(Supp. II, 1972) provides that regular
overtime (including regularly scheduled overtime) for full-time, part-
time., and intermittent employees will be compensated at an hourly rate
equal to 1 1/2 times the employee's basic hourly compensation up to
GS-10 for "hours of work officially ordered or approved in excess of 40
hours in an administrative workweek, or . . . in excess of 8 hours in a day."
5 U.S.C. ? 5545(c)(2)(1970) provides for a second category of over-
time payment, hereinafter referred to as administratively uncontrollable
overtime or AUO. It states:
(c) The head of an agency, with the approval of the Civil
Service Commission, may provide that-
(2) an employee in a position in which the hours of duty
cannot be controlled administratively, and which requires sub-
stantial amounts of.irregular, unscheduled overtime duty with
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the employee generally being responsible for recognizing,
without supervision, circumstances which require him to remain
on duty, shall receive premium pay for this duty on an annual
basis instead of premium pay provided by other provisions of
this subchapter, except for regularly scheduled overtime, night,
and Sunday duty, and for holiday duty. Premium pay under this
paragraph is determined as an appropriate percentage, not less
than 10 per centum nor more than 25 per centum, of such part of
the rate of basic pay for the position as does not exceed the
minimum rate of basic pay for GS-10, by taking into considera-
tion the frequency and duration of irregular unscheduled over-
time duty required in the position. [Emphasis added.]
(Emp. Exh. 6.)
A Civil Service Commission regulation, 5 C.F.R. ? 550.153 (1976),
establishes the basis for determining positions for which premium pay
for administratively uncontrollable overtime is authorized. It provides
in pertinent part:
? 550.153 Bases for determining positions for which premium
pay under ? 550.151 is authorized.-
(a). The requirement in ? 550.151 that a position be one
in which the hours of duty cannot be controlled administratively
is inherent in the nature of such a position. . . .
(b) In order to satisfactorily discharge the duties of a
position referred to in ? 550.151, an employee is required to
perform substantial amounts of irregular or occasional overtime
work. In regard to this requirement:
(1) A substantial amount of irregular or occasional over-
time work means an average of at least 3 hours a week of that
overtime work.
(2) The irregular or occasional overtime work is a continual
requirement, generally averaging more than once a week.
(3) There must be a definite basis for anticipating that the
irregular or occasional overtime work will continue over an
appropriate period with a duration and frequency sufficient to
meet the minimum requirements under subparagraphs (1) and (2) of
this paragraph.
(c) The words in ? 550.151 that an employee is generally
"responsible for recognizing, without supervision, circumstances
which require him to remain on duty" mean that:
(1) The responsibility for an employee remaining on duty
when required by circumstances must be a definite, official, and
special requirement of his position.
(2) The employee must remain on duty not merely because it
is desirable, but because of compelling reasons inherently related
to continuance of his duties, and of such a nature that failure to
carry on would constitute negligence.
1/ 5 C.F.R. ? 550.151 (1976) paraphrases the statutory basis for AUO
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(3) The requirement that the employee is responsible for
recognizing circumstances does not include such clearcut
instances as, for example, when an employee must continue
working because a relief fails to report as scheduled.
(d) The words "circumstances which require him to remain
on duty" as used in ? 550.151 mean that:
(1) The employee is required to continue on duty in con-
tinuation of a full daily tour of duty or that after the end of
his regular workday, the employee resumes duty in accordance with
a prearranged plan or an awaited event. Performance of only call-
back overtime work referred to in ? 550.112(f) does not meet this
requirement.
(2) The employee has no choice as to when or where he may
perform the work when he remains on duty in continuation of a full
daily tour of duty. This differs from a situation in which an
employee has the option of taking work home or doing it at the
office; or doing it in continuation of his regular hours of duty
or later in the evening. It also differs from a situation in which
an employee has such latitude in his working hours, as when in a
travel status, that he may decide to begin work later in the morning
and continue working later at night to better accomplish a given
objective.
(Emp. Exh. 1.)
The position of Deputy U.S. Marshal has been determined by the
Department of Justice to meet generally the criteria set out in ? 550.153
of the Civil Service Commission regulations. Holding the position of
Deputy U.S. Marshal, however, does not in. and of itself qualify an
employee for administratively uncontrollable overtime pay. Under section
8(a) of Department of Justice Order 1551.4(a), dated August 1, 1975, an
employee qualifies by performing, on an average of at least 3 hours of
overtime work a week, such duties as surveillance, shadowing suspects,
undercover work, meeting informers, examining records when the examination
cannot be completed during regular duty hours, courtroom duty which is part
of or incident to the employee's official work, guarding prisoners or
detained witnesses, travel which involves the performance of actual work
such as guarding prisoners in transport and return travel from such assign-
ments, and travel which results from an event which could not be scheduled
or controlled administratively, such as time spent traveling to appear as
a Government witness. In addition, DOJ Order 1551.4(a), at section 8(b),
identifies as examples of duties which do not qualify for AUO pay the
following: early arrival or late departures from the office without official
sanction; curtailed lunch period; eating lunch at the desk or serving process
during the lunch period; traveling to or from Government-sponsored. training
classes; and time spent as a trainee or an instructor of scheduled training
classes.
The rates of pay for AUO are established by 5 C.F.R. ? 550.154 (1976):
? 550.154 Rates of premium payable under ? 550.151.
(a) An agency may pay the premium pay on an annual basis
referred to in ? 550.151 to an employee who meets t},e e-
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that part of the employee's rate of basic pay which does not
exceed the minimum rate of basic pay for GS-?10:
(1) A position which requires an average of
at least 3
but not more than 5 hours a week of irregular or
overtime work-10 percent;
occasional
(2) A position which requires an average of over five
but not more than 7 hours a week of irregular or occasional
overtime work-15 percent;
(3) A position which requires an average of over seven
but not more than 9 hours a week of irregular or occasional
overtime work-20 percent;
(4) A position which requires an average of over 9 hours
a week of irregular or occasional overtime work-25 percent.
(Emp. Exh. 1.)
Thus, a deputy may receive premium pay in the amount of 10, 15, 20, or
25 percent of his basic rate of pay. But an employee who has not
previously averaged enough hours to meet the requirements of 10 percent
premium pay would, until such time as he qualifies for AUO pay, receive
1 1/2 times the basic rate of pay for unscheduled overt?-me.
b. The Overtime Practices Within the U.S. Marshals Service
The determination of whether overtime will be paid at time and a
half or at an AUO rate is made either in the Office of the Director of
the Marshals Service or, at the district level, by the U.S. Marshal.
Overtime rates for assignments which originate from the Washington, D.C.,
headquarters of the Employer, such as witness security details, are
determined by the Office of the Director. Overtime determinations by
U.S. Marshals are made on assignments which concern the day-to-day
operations of each of the districts.
The Employer's decisions in both situations are based upon a
determination as to whether regularly scheduled overtime would be
appropriate.2/ Certain special assignments, however, such as guarding
Government witnesses and sequestered juries, courtroom security, and
transporting of Bureau of Prison prisoners require the U.S. Marshal to
seek authorization from the Office of the Director to pay regular over-
time. Such requests are made on the basis that there will be regularly
scheduled overtime, and they are almost always granted./
According to the parties, the Comptroller General has stated that
regularly scheduled overtime means overtime which is scheduled in
advance and ordered to recur on successive days or at specified
intervals.
The Union claims, in this regard, that many U.S. Marshals elect not
to obtain authorization from Washington, D.C., to pay for these
assignments at toe time-and-a-half rate. Conseqc~uentlyy, employees
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Deputy marshals who are dissatisfied with the Employer's disposition
of overtime may utilize the agency grievance procedure. Unlike most
grievances filed under this procedure, however, unresolved overtime
grievances are not submitted to agency grievance examiners.4/ If the
employee is dissatisfied with the results of the agency grievance proce-
dure, he may file a claim with the Comptroller General and litigate the
matter in court.
c. Court Suits Involving Deputy Marshals and the Employer
There are 6 pending court cases involving overtime claims of 200
deputy marshals, 3 in the United States Court of Claims and 3 in Federal
District Courts. The issues involved are essentially the same: (1) Does
the AU0 statute apply to the deputy marshal as a position, and to the
marshal's functions and duties in particular; i.e., should the deputy
marshal or any of the marshal's duties be subject to the AUO premium
payment in lieu of regular overtime? (2) Are overtime payments being
consistently applied throughout the Marshals Service?
Two of the Court of Claims cases have been consolidated and will
be tried in the spring of 1976; the third is expected to be consolidated
with the others. One of the District Court cases went to trial on
January 16, 1976, and has been taken under advisement. The other two
District Court cases were filed on August 15 and December 3, 1975, and
were in the discovery stage at the time of the factfinding hearing.
d. The Basic Dispute Between the Union and the Employer
The dispute concerning whether a deputy marshal should be paid
overtime at the regular overtime rate or at an AUO rate has been a
longstanding problem in the Marshals Service. The parties disagree
fundamentally on what constitutes regularly scheduled work and what
constitutes irregular and occasional overtime in many work situations.
The Employer says that regular overtime is that which is normal, usual,
and recurring; i.e., the overtime recurs on successive days in fairly
predictable amounts. The Union, however, contends that the requirement
for regularly scheduled overtime is fulfilled if the Employer schedules
the overtime. It argues that if a U.S. Marshal decides not to schedule
overtime which is recurring during a period of time, the employee will
be paid at an AU0 rate whereas, if it were scheduled overtime, he would
be paid at time and a half. Furthermore, the Union avers that regular
overtime is appropriate when, over a period of time, certain overtime
assignments have developed a pattern as to their duration.5/
4/ In the grievance of John A. Jones, Grievance Examiner Thomas S.
Templeton concluded that he had no "jurisdiction to make findings
of fact and recommendations under the agency's grievance procedure
in questions of pay. . . ."
5/ In this regard, the Employer periodically conducts surveys to
.establish whethe asst ents occur on a continuous or recurring
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e. Negotiations on Overtime and Standby
The Union initially made 19 proposals on overtime and standby.
Fourteen were declared nonnegotiable by the Employer essentially on the
basis that payment of overtime at a time-and-a?-half rate for the work
described in the Union's proposals would be in violation of statute and
regulation.6/ The Union intends to pursue the negotiability procedures
of the Order with respect to them. Negotiations on the five other
proposals did not take place prior to the Panel's proceedings but two
of them were resolved during the prehearing conference.
2. The First Overtime and Standby Issue-Article XX, Section 1
a. The Proposals
The Union made several proposals, the last: of which was:
All hours of work performed in excess of eight hours in
any one day and all hours of work performed in excess of
forty hours in one administrative workweek. by an employee
shall be overtime. All overtime shall be paid at the
appropriate rate of pay.
(Un. Exh. 5.)
The Employer made no proposal since it believes that the Agreement
should not contain a provision with respect.to this matter until the
conclusion of the pending litigation.
b. The Union's Position
The Union argues that the Employer's existing methods of paying
overtime are not consistent throughout the Marshals Service. This is
due, it contends, to differing interpretations by U.S. Marshals and
supervisors as to what is AUO and regular overtime, whether the work
is scheduled, and whether the U.S. Marshal seeks authorizations for
certain assignments which have been designated as being appropriately
paid at time and a half. Thus, AUO and regular overtime rates are
inconsistently paid for such duties as special assignments, witness
6/ The Union proposed, for example, that (1) overtime work which has
been scheduled in advance will be paid at a rate of time and a
half; (2) employees directed to report for overtime duty on either
of their consecutive days off will be paid time and a half; (3) no
employee will be required to work more than 16 consecutive hours
of duty; (4) employees reassigned from training status to overtime
duties will be compensated at time and a half; (5) no employee will
be threatened with disciplinary or nonpromot:ion action for refusing
to work overtime; (6) employees on a standby basis who are restricted
to their residences will be compensated at time and a half; and
(7) no employee will be required to work overtime in excess of the
amount of overt a nece 8 ,04 81 re cAhRt opoYoU m
2 finder AUO.
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security, courtroom security, sequestered juries, and Saturday assign-
ments within and between districts.7/ Arguing that employees in the
Marshals Service should receive equal pay for equal work, the Union
states that under its proposal "arbitration will establish the proper
case law in the administration of the contract" where employees are not
paid the appropriate rate of pay (Un. Br. 2).
With respect to the court suits on overtime, the Union contends
that: they have nothing to do with the issue before the Panel because
they pertain to the improper application of AUO to the duties of deputy
marshals; its proposal does not alter the Employer's current method of
paying overtime and. is therefore distinguishable from the issues involved
in the court suits; there is nothing which guarantees that the court
suits will not be prolonged by appeals; it is willing to include a
reopener provision in the contract to accommodate any court decisions
which are in conflict with the contract's provisions; and the court's
decisions will not satisfy the demonstrated need to have its proposal in
the Agreement.
An employee should have a right under the contract to grieve
inappropriate applications of overtime regulations, the Union affirms.
It also contends that it is unfair to require an employee to make a
claim on the. overtime either through expensive, time-consuming court
action or through the Comptroller General, particularly when the agency
grievance procedure has shown itself to be unworkable in resolving
employee problems.
c. The Employer's Position
The Employer contends in substance that: the Union's proposal is
directly related to the court suits; the fundamental thrust of the
Union's position has continually been that the Employer has been paying
AUO where it should have been paying time and a half; and the Union's
main concern in these negotiations has not been with the inconsistency
in the Employer's application of its own regulations, but rather with
what the Union believes to be the inconsistency between the regulations
and the intent of Congress in passing the enabling legislation pertaining
to administratively uncontrollable overtime. Although the AUO statute
and the associated regulations have been in existence for 20 years, there
has been very little litigation on the subject, the Employer points out.
The Employer states that the differences in pay practices between
districts are due to differences in operations from district to
district. It notes, for example, that Saturday arraignments
commonly occur in the Southern District of New York and Washington,
D.C., resulting in regular and recurring overtime, and time and a
half being authorized, but that in Richmond, Virginia, Saturday
courts are rare and AUO is therefore paid. Several Union witnesses
cited numerous cases where they had received (or knew of deputy
marshals who had received) AUO premium pay or regular overtime for
the same type of work.
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Since the parties are in dispute over the meaning of the statutory
language and since there is litigation pending before the courts which
will clarify the meaning of AUO, the Employer concludes, the Union's
proposed clause should not he incorporated in the Agreement until the
litigation is completed. In this regard, it suggests that the resolu-
tion of these court suits is near.
The Employer further contends that inclusion of the Union's pro-
posal in the contract would not resolve the dispute concerning the
meaning and effect of the AUO statute, 5 U.S.C. ? 5545(c)(2)(1970).
Until that question is resolved by the courts, the Employer asserts,
incorporation of the Union's proposal in the Agreement would cause
additional controversy between the parties. Recourse to the grievance
arbitration process would not in itself assure a final resolution'to an
overtime problem since an arbitrator's ruling is subject to appeal to
the Federal Labor Relations Council and the Comptroller General. Addi-
tionally, the Employer avers, the Union would obtain an unfair advantage
since employees could resort to the grievance arbitration process, and
if they lose, take their case to the courts.
3. The Second Overtime and Stands Issue-Article XX, Section 9
a. The Proposals
The Union made several proposals with respect to Article XX, Section 9.
Its final proposal is as follows:
All overtime assignments within each district will be
made, by the Employer, in a fair and equitable manner. If
the: need arises, a syste of distributing overtime assign-
ments within a district may be negotiated as a supplemental
to this contract.
(Un. Exh. 8.)
The-Employer offered no counterproposals.
b. The Union's Position
The purpose of the Union's proposal is to assure that overtime is
distributed in a fair and equitable manner. It believes that the
proposal is necessary because it avers there are wide variations in the
amount of overtime worked by employees in a particular district. In
some districts employees work many hours over what is required for 25
percent AUO premium pay while other employees have not so qualified.!/
8/ In this regard, the Chief Deputy U.S. Marshal for the Southern
District of New York stated that the distribution of AUO in his
district was as follows: 6 deputy marshals at 10 percent premium
pay; 13 at 15 percent; 5 at 20 percent; and 10 at 25 percent.
Union witness Charles Burgess testified that the majority of
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According to the Union, its proposal would result in a more equitable
distribution of overtime within districts.
The Union objects to the Employer's suggestion that the issue of
fair and equitable distribution of overtime be negotiated locally,
because employees in each marshal's office should not be required to
go through the long process of negotiations to ensure that overtime is
distributed fairly and equitably when it can be uniformly established
at the national level. The Union argues that, in the event of overtime
problems at the local level, many employees would choose not to
negotiate a local supplement to the national Agreement but instead
would resort to the courts or the Comptroller General.
c. The Employer's Position
The Union's proposal is duplicative of provisions already in the
Agreement which provide for local supplemental agreements concerning
distribution of work assignments within a particular district. Thus,
Article IV, Supplemental Local Agreements, Section 3, provides in
pertinent part:
Matters which may be included in supplemental agreements
2. Rotation of work assignments.
4. Fair and equitable distribution. of overtime. . . .
(Jt. Exh. 1 at Article 4.)
Different methods for assigning overtime work have been adopted
within the districts, the Employer states, and the general requirement
of fair and equitable distribution of overtime would play havoc with
some longstanding overtime systems. The Employer also avers that a
negotiated supplemental agreement requiring the rotation of work assign-
ments might conflict with the national Agreement requirement of a fair
and equitable distribution of overtime.
It might be impossible under some circumstances, the Employer
contends, for a local U.S. Marshal to implement the Union's proposal.
Requirements that a certain deputy be given a particular assignment and
the residence of a deputy with respect to the service of process at a
particular location were noted in this regard.9/ While the Employer
admits that these situations may result in unequal distribution of over-
time, it notes that there have been no complaints and therefore the cur-
rent system of assignments should not be changed. For all of these
reasons, the Employer concludes that the distribution of overtime is a
subject more appropriate for negotiation at the local level.
9/ Marshal John Twoomey testified that he currently was under court
order to assign a particular deputy marshal on a regular basis
to each of the 17 courts in the Northern District of Illinois.
Chief Deputy Marshal Furka, however, stated that no deputies are
specifically assigned to judges in the Southern District of New
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4. The Third Overtime and Standby Issue-Article XX, Section 11
a. The Proposals
The Union proposes that:
The Employer will not assign or permit an employee to
work overtime on an A.U.O. basis solely.to avoid paying any
employee regular overtime.
(Un. Exh. 11.)
No counterproposals were made by the Employer on this subject.
b. The Union's Position
The Union objects to the Employer assigning or permitting an
employee to work at an AUO rate to avoid paying that employee or any
other employee on a regular overtime basis. It.is concerned with
situations where employees may be intimidated into working at an AUO
rate in lieu of regular overtime or where employees may be seeking to
ingratiate themselves by working at the lower rate.1O/ A proposal
similar to the one described above, the Union asserts, was accepted
by the Employer in 1973 local supplement negotiations involving the
Southern District of New York. For these reasons, the Union maintains
that its proposal should be adopted.
c. The Employer's Position
The Employer asserts that the Union's proposal has the same
effect as its proposal on section 1 of the Overtime and Standby
article. Consequently, the Employer's position is that no language
should be placed in the contract until the court suits have been
resolved.
SCOPE OF THE GRIEVANCE PROCEDURE
The issue at impasse is whether the scope of the grievance procedure
should encompass overtime regulations and past practices.
1. The Proposals
The Union proposes that the following clause be incorporated in
Article XXII, Grievance Procedure, of the new Agreement:
Section 2. (2) Any matter involving working conditions
or the interpretation and application of agency policies,
regulations, past practices and practices not specifically
covered by this agreement. The sole exclusion to this. griev-
ance procedure shall be those matters subject to statutory
appeal procedures.
(Un. Exh. 13.)
10/ Although there was no evidence that either situation has, in fact,
occurred, Employer witness Twoomey testified that if no one on a
dq"&aMd a 3 OAWItsgMt@R9"04 Q Q11QD11 ,2-ae will
make the assignment to someone else. If that man prefers to work
at the AUO rate, Marshal Twoomey would honor the request.
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The Employer's initial position was that the negotiated grievance
procedure should cover only the interpretation and application of the
Agreement. Its current proposal is:
The negotiated grievance procedure should apply to the
application or the interpretation of the agreement or agency
regulations other than overtime.
(Tr. 663.)
2. The Union's Position
The Union states that its proposal establishes a single, fair
system for resolving employee problems, thereby reducing the number
of forums for settling such disputes. Alleging that the negotiability
decisions of the Federal Labor Relations Council have limited the
scope. of bargaining, the Union contends that it is only fair that it
should be granted the broadest scope for the negotiated grievance and
arbitration procedure.
Additionally, it argues that the exclusion of past practices from
the scope of the grievance procedure would have the effect of making
nugatory the previously negotiated past practices provision. This
provision states:
In accordance with Executive Order 11491, as amended,
it is agreed that any prior benefits and personnel policies
and practices which do not conflict with this Agreement
will continue in effect unless changed by mutual consent of
the parties.
(Jt, Exh. 1 at Article XXXVI.)
Past practices should be within the scope of the grievance procedure,
the Union asserts, in order to ensure that management will not unilat-
erally discontinue them. In this regard, the Union cites several griev-
ances and court suits concerning such matters as merit promotion,
assignments, and health and safety which, it contends, demonstrate the
need for its proposal. Without a reference to past practices in the
grievance procedure its only recourse, the Union states, is to the unfair
labor practice procedures of the Order which are unduly time consuming.
The Union argues that the proposals on overtime which are before
the Panel cover only some of the problems. Accordingly, overtime
regulations should be subject to the grievance procedure so that all
possible disputes involving overtime will be encompassed. The arbitration
process is less expensive and more expeditious than court litigation, the
Union contends.
3. The Employer's Position
Because of the limited bargaining history here, the Employer argues,
the grievance procedure should not cover past practices until the parties
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have had more experience in dealing with one another at the local level.
In this regard, the Employer claims that, with the exception of a few
locals, there are basically no relationships at the local level. In
addition, it asserts that unnecessary grievances will be generated by
inclusion of past practices under the negotiated grievance procedure
because no one understands what they are. It sees the use of the phrase
"past practices" as a catchall for everything the Union does not like.
The Employer is also opposed to including overtime regulations
within the scope of the grievance procedure for the same reasons under-
lying its position with respect to section 1 of the Overtime and Standby
article.
DISCUSSION
We have reviewed the record in this case, including the factfinder's
report and the comments made with regard to it. The impasse arises out
of a disagreement between the parties on these basic questions: whether
the Agreement should cover certain overtime matters, and whether certain
subjects should be excluded from the scope of the grievance procedure.
With respect to the first of the three overtime issues, the parties
differ over what constitutes regular overtime and what is administratively
uncontrollable overtime, as those terms are applied in the Marshals
Service. This is an important matter, of course, because of the higher
rate of pay which attaches to regular overtime. The Union proposes that
the Agreement provide that overtime be paid at the "appropriate" rate of
pay, contending that such provision will lead to more consistent applica-
tion of overtime regulations throughout the Marshals Service. The
Employer, on the other hand, prefers to see the contract silent on this
matter until a number of pending court suits are resolved.
Section 13(a) of the Order provides that the negotiated grievance
procedure "shall be the exclusive procedure available to the parties and
the employees in the unit for grievances which fall within its coverage."
Because overtime is a daily occurrence in the Marshals Service, it would
be more constructive to the day-to-day relationship of the parties if
essentially all problems concerning the appropriate rate of overtime pay
were to be resolved through the mechanism of the parties' Agreement rather
than through other forums. Furthermore, arbitral review of overtime
disputes may have the salutary effect of increasing the consistency and
fairness of overtime determinations by the Employer. The Panel concludes,
therefore, that the Union's proposal on the first overtime issue should be
adopted by the parties.
The Employer contends that the Union's proposal that overtime
assignments within each district be made in a fair and equitable manner
is unnecessary because the parties have already agreed in article IV
that the subject of fair and equitable distribution of overtime is a
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matter appropriate for local supplemental agreements. We agree that
such a provision in the national Agreement is not necessary. at this
time. Despite the Union's contention, the record does not establish
that there are generally wide disparities in the amount of overtime
worked by employees within particular districts. If such disparities
exist, article IV permits correction of any inequities in the distri-
bution of overtime through negotiations at the district level. There-
fore, the Panel concludes that the Union should withdraw its second
overtime proposal.
In its third overtime proposal the Union seeks to prevent the
Employer from assigning an employee to work at an AUO rate solely to
avoid paying that employee or another employee at the regular overtime
rate. For essentially the same reasons underlying its position on the
first overtime issue, the Employer prefers that the contract not speak
to this matter. We view the Union's proposal as stating, in another
way, its desire that employees be.paid.overtime at the appropriate rate
of pay. Since this matter will be taken care of under the terms of the
Union's first overtime proposal, we conclude that there is no need for
this provision in the parties' negotiated Agreement.
The parties disagree on whether overtime regulations and past
practices should be excluded from the scope of the grievance procedure.
With regard to overtime regulations, we have previously concluded that
the Agreement should contain a clause providing that overtime should be
paid at the appropriate rate of pay. Thus, all disputes between the
parties on this subject would normally be channeled through the nego-
tiated grievance and arbitration procedure. This worthwhile objective,
however, would be undercut if arbitrators were unable to interpret
agency regulations relating to overtime issues. Indeed, the record.
before us discloses a multiplicity of agency regulations which are
clearly connected with the administration of overtime in the Marshals
Service. They could not be excluded from the purview of arbitration,
in our judgment, without impeding the ability of the arbitrator to render
a meaningful award on this subject.
Finally, the past practices clause which the parties have already
negotiated would serve little purpose if it is excluded from the scope
of the grievance procedure.
For the reasons stated above, we conclude that overtime regulations
and past practices should not be excluded from the scope of the grievance
procedure. The clause which we recommend be adopted, by covering.dis-
putes over the interpretation and application of the Agreement and agency
policies and regulations, but excluding only matters subject to statutory
appeal procedures, will accomplish that end. It is broad enough, more-
over, to meet the needs of the parties as reflected in the record herein.
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RECOMMENDATIONS
The Panel makes the following settlement recommendations:
1. The First Overtime Issue
That the Union's proposal be adopted and the parties incorporate
the following provision in Article XX:
All hours of work performed in excess of eight hours
in any one day and all hours of work performed in excess
of forty hours in one administrative workweek by an
employee shall be overtime. All overtime shall be paid
at the appropriate rate of pay.
2. The Second Overtime Issue
That the Union's proposal be withdrawn.
3: The Third Overtime Issue
That the Union's proposal be withdrawn.
4. Scope of the Grievance Procedure Issue
That the parties incorporate the following provision in Article XXII:
The negotiated grievance procedure shall cover disputes
over the interpretation and application of the Agreement and
agency policies and regulations, but shall exclude matters
subject to statutory appeal procedures.
By direction of the Panel:
Ward W. Solomon
Executive Secretary
Federal Service Impasses Panel
April 30, 1976
Washington, D.C.
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