Union Corner: Right to Official Time for Union Activities Comes in Two Flavors

"Official time" designates time on the clock or duty status used by unionized Federal employees to meet their representational responsibilities. Federal unions rely exclusively on the voluntary efforts of their members to support chapter activities. The national union has officers and employees supported by dues and operates as a coordinating and cooperative service organization for the local chapters.

The law provides two kinds of official time: time to negotiate a collective bargaining agreement, which is guaranteed in the law, and time for all other activities, which is contained in the labor-man-agement negotiated agreement.

Official time to negotiate a collective bargaining agreement. Official time to negotiate of a collective bargaining agreement is granted employees representing an exclusive representative as a statutory right. The number union employees cannot exceed the number of individuals designated to management in the contract negotiations. The term negotiations includes not only that time spent sitting at the bargaining table but also covers related activities, such as attendance at impasse proceedings.

The National Treasury Employees Union and FDA will be negotiating the nationwide collective bargaining agreement early next year. The contract will be effective for three years. Negotiations will be held during three two-week sessions in January, February and March. Six rank-and-file FDA employees will sit at the bargaining table with six FDA employees representing management. The contract will govern all aspects of the FDA work environment and bind all rank-and-file employees. The union’s proposed contract is more than 100 pages long. A professional negotiator from NTEU National will lead the union team.

Official time for all other representational activities. The law specifically excludes from official time any activity related to the internal business of the union, such as electing officers or collecting dues. Otherwise any employee representing the union or any employee engaged in any activity covered by the statute must be granted official time to engage in such activity to the extent that the union and agency agree that the use of official time is reasonable, necessary, and in the public interest.

Official time is not a benefit or privilege conferred upon employees by the agency, but is mandated by the statute. Employees engaged in covered activities have a right to official time.

The amount of official time to be allocated is negotiable. All bargaining unit employees, not only union members, officers and stewards, are covered.

The negotiation of official time for labor-management relation activities is mandated. The union and management may agree to permit official time in circumstances unrelated to labor-management relation activities, provided that the activities are consistent with the law. A variety of activities have been found to be appropriate (for official time), including attendance at Equal Employment Opportunity Commission hearings; responding to discovery requests made in Merit Systems Protection Board hearings; attendance at meetings with management; attendance at third-party proceedings where the employee is the affected employee or a witness in a grievance or appeal proceeding; preparing a grievance; responding to inquiries from the media and public about issues affecting the terms and conditions of employment within the unit; visiting, phoning and writing to elected representatives in support or opposition to pending legislation which would impact employee working conditions; etc..

The union is obligated to make a reasonable effort to schedule the use of official time to avoid absences from agency duties. The use of official time can be suspended only when the absence would cause substantial adverse effects on the work product of the employee’s group and an alternative time is provided.

An agency’s ordinary workloads are insufficient to suspend the use of official time, just as they are insufficient to justify restored leave. Official time is time on the clock or duty time. It is not time shifting-merely shifting the time when regular work is done. The activity for which official time is granted is assigned work, in most position descriptions to be found as “other duties as assigned.” It is not an additional duty to be added on or superimposed upon the employee’s regular work increasing an employee’s total workload.

The crunch usually comes when an employee’s regular work fills nearly 100 percent of his or her duty time, and then he or she engages in official time activities. Since the regular work day is limited by law to eight hours and the work week to 40 hours, something has to give. It should not be the employee.

Ordinarily, official time activities replace regular agency work. When this would result in an immediate, substantial adverse effect on the work group’s work product, time to make the necessary adjustments and accommodations is proper.

Controlling the above results are three key concepts:

• Employees are to chose their own representatives.
• There should be a balance between management representatives and employee representatives.
• Official time is a “carve-out” exception to management’s general right to direct employees and assign work.

The union is sympathetic to the plight of first-level supervisors. They have work to complete and, generally, a staff insufficient for the task. When some of their staff use official time, there is a real reduction in the staff available to them. If a single member of a small group goes on official time 100 percent, a very substantial reduction in available workers may result. Only supervisors higher up have the resources to make the required adjustments. There is nothing inherently unfair about this. It is precisely these kinds of problems they sought and were chosen to solve.

Robert Young, M.D., Ph.D., is interim president of Chapter 282, National Treasury Employees Union.