IS BANK TIME ONLY PERMISSIVELY NEGOTIABLE WITH UNIONS?
Union and agency negotiators started creating banks of time for union reps to use because it made a lot of sense for both sides. Management, for example, no longer had to make countless decisions on what was a reasonable amount of time for each incident the union rep worked on. Instead of approving a specific amount of time for the rep to draft an information request and another decision to attend a formal meeting and a third decision to interview a potential grievant and a fourth decision to review a notice of proposed change from the agency, management could let the rep manage his/her time against a hard cap. Another advantage was that it permitted unions to have one or two people handle all the union business rather than spreading the workload across maybe a dozen stewards—and thereby forcing a dozen managers into the official time tracking business. Bank time leaves managers the freedom to manage rather than to be glorified official time clerks. But the White House may have screwed that up with its anti-union executive orders putting a ridiculous cap on how much time union reps can have.
The Panel had a chance to administer a large dose of common sense to the President’s orders by permitting reasonably funded banks of time to continue, but being the Trump clan finger puppets the members are the Panel has stated clearly it is going to destroy the utility of bank time provisions by depositing absurdly low amounts of time into the banks.
This will trigger several responses from unions, and one of them might be to declare that they have the right to refuse to negotiate banks of time. The statute says that the union shall be granted official time that the parties agree is “reasonable, necessary and in the public interest.” How can a union possibly know whether a multi-year offer of a bank of time meets those three criteria? Is the agency going to tell it how many formal meetings it will schedule over a year or investigatory interviews or oral replies or midterm changes or promotion actions, etc.? Of course not, that would be impossible. Consequently, without that kind of information from an agency the union lacks the information to make a reasoned decision.
No less an authority than those twin towers of twiddling Trumpian thought recently pronounced that the official time provision of the statute requires that the parties have the “information necessary to make a reasoned decision” so that they can determine whether the time requested is reasonable. They went on to say that a party must be allowed to “gather the information it needs” to make reasonable time determinations. See DHS, CBP and AFGE, 71 FLRA 119 (2019) Given that agencies will never be able to project the need for official time over the course of a year, much less an entire agreement, the agency cannot demand that the union make an uninformed official time decision any more than a union can demand that an agency do so.
Consequently, a union could enter bargaining and/or impasse refusing to bargain over a bank of time for anyone or maybe for anyone but one or two local leaders who get a personal bank. The rest of the stewards and representatives would be entitled to incident-by-incident official time. There are several benefits to that approach for the union. First, it will force the agency to turn the manager of every steward or rep into an official time clerk whose decisions could generate a new grievance (and maybe attorney fees) every time they make a mistake. Second, there would be no way for the agency to know whether its new agreement gives the union more than one hour of official time per unit member per year. Lacking that certainty, the agencies would not be required to turn themselves into Ivanka, Eric or any of the other Trumps for the punishment the executive orders suggest awaits them. Third, it will be fun to watch the managers feud when one of them wants to schedule something the union is entitled to attend and another manager refuses to let the union rep go at that time