Official Time for Union-Related Activities

BACKGROUND

On June 17, 2002, I issued a memorandum to agency and department heads describing my expectations when it comes to granting and using official Government time for union-related activities. I emphasized that labor and management officials are equally accountable to the taxpayer and have a shared responsibility to ensure that official time is authorized and used appropriately. To achieve greater accountability in this area, I instructed agencies to report to the Office of Personnel Management (OPM) at the end of each fiscal year on the number of hours of official time used by employees to perform representational activities.

Discussed in more detail below are OPM's summary of official time reports for FY 2002; the official time information that agencies will be expected to submit for FY 2003; and the additional measures I plan to take to address official time practices in the Federal Government.

SUMMARY REPORT FOR FY 2002

Agencies reported 4,765,848 hours of official time in FY 2002. This is an increase of 10 per cent since 1998, the last time that OPM collected official time data. The estimated cost of official time for FY 2002 is $114,280,000, an increase of 5.52 percent since 1998. The average amount of official time per bargaining unit employee in FY 2002 was 4.21 hours. In FY 1998, the average amount was 3.99 hours per employee.

OPM's complete agency-by-agency summary report for FY 2002 is attached. See Attachment 1

COLLECTION OF FY 2003 OFFICIAL TIME DATA

For FY 2003, OPM is again asking agencies to report the number of hours of official time used by employees to perform union-related activities. Agencies must submit their reports to OPM by January 30, 2004. We have prepared the attached guidance to help you prepare your reports and to answer any questions you may have. See Attachment 2

COLLECTION OF OFFICIAL TIME DATA FOR FY 2004 AND BEYOND

As OPM's summary report makes clear, there has been a significant increase in both the number of hours of official time and the cost of such time since 1998. I believe that new measures are needed to ensure the level of accountability that the Administration and Congress insist upon and that the American people expect when it comes to taxpayer dollars. That is why OPM will be taking the following steps to address official time use in the Federal Government:

• We will conduct a special study of the procedures used to request and grant official time for union representational activities and the way that official time hours and costs are reported. We will focus on the Government's largest bargaining units and evaluate the effectiveness of their official time practices. The study will yield crucial information about official time procedures and also help agencies better manage their resources and their labor-management relations programs. We expect to complete the study by March 2004.
• As part of our e-Payroll initiative, OPM will establish reporting mechanisms for the use of official time for union representational purposes as part of every agency's payroll system. This will ensure that all unionized Federal agencies can record and track official time and assure appropriate accountability on the part of both labor and management.
• For FY 2004 and beyond, agencies will be asked to report not only how many hours of official time are being used but what they are being used for. Such information will yield more useful data about official time practices across the Government. While we plan to issue more detailed reporting instructions for FY 2004 at a later date, here are the categories for which official time information will be sought:
  • Term Negotiations - official time used by union representatives to prepare for and negotiate a basic collective bargaining agreement or its successor.
  • Mid-Term Negotiations - official time used to bargain over issues raised during the life of a term agreement.
  • Dispute Resolution - official time used to process grievances up to and including arbitrations and to process appeals of bargaining unit employees to the various administrative agencies such as the MSPB, FLRA and EEOC and, as necessary, to the courts.
  • General Labor - Management Relations-official time used for: meetings between labor and management officials to discuss general conditions of employment, labor-management committee meetings, labor relations training for union representatives, and union participation in formal meetings and investigative interviews.

I have strongly supported the right of Federal employees to use official time to represent bargaining unit employees. At the same time, I have been clear that the right to official time carries with it a responsibility to use that time appropriately, efficiently, and when workload conditions permit. I believe the new initiatives outlined above will strengthen accountability to the taxpayer and substantially improve the tracking and reporting of official time.

If you have any questions, please contact Jeffrey Sumberg, Deputy Associate Director, Center for Workforce Relations and Accountability Policy, at 202-606-2639. He may also be reached via e-mail at jsumberg@opm.gov.

Attachment 1
Attachment 2
cc: Chief Human Capital Officers

Attachment 1

On June 17, 2002, the Director of the Office of Personnel Management (OPM) issued a memorandum to agency and department heads describing her expectations when it comes to granting and using official time (see Appendix 1). She emphasized that labor and management are equally accountable to the taxpayer and have a shared responsibility to ensure that official time is authorized and used appropriately. She made it clear that she expects management and labor to develop sensible arrangements for official time that meet the needs and expectations of agencies, employees, and the ultimate customers -- the American people.

Believing that accountability to the American people begins with understanding the scope of the issue, the Director also instructed each agency and department to report to OPM by the end of each fiscal year on the number of hours of official time used by employees to perform representational activities. The first such report was due by October 31, 2002, covering FY 2002. OPM prepared guidance to assist agencies in compiling and reporting on official time.

In this summary, OPM's consolidates the official time reports from departments and agencies.

BACKGROUND

Official time is generally defined as authorized, paid time off from assigned Government duties to represent a union or its bargaining unit employees. Under the Labor-Management Relations law-chapter 71 of title 5-Congress allowed official time in two broad categories (see Appendix 2).

First, employees have a statutory right to receive official time to negotiate collective bargaining agreements and participate in impasse proceedings. Official time in this category can mean time spent bargaining with management over a term agreement that sets basic working conditions for unit employees for the life of that contract. It can also mean time spent negotiating during the life of the agreement, also known as mid-term bargaining. Most mid-term bargaining takes place when the union seeks to negotiate over the procedures an agency will follow when exercising its management rights or over the impact that an agency's decisions will have on bargaining unit employees.

Second, the law permits agencies and unions to negotiate official time in connection with other labor-management activities, as long as the time is deemed reasonable, necessary, and in the public interest. Examples include time spent meeting with employees to discuss problems in the workplace, handling employee grievances or formal administrative appeals, attending meetings called by the agency, and receiving training on labor relations topics. Official time in this category generally rises or falls depending on the nature and extent of labor-management activities, but in any case is restricted by the reasonableness standard imposed by the law.

Official time cannot be used for internal union business, such as organizing new members or campaigning for office, nor can it be used for partisan political activities.

OPM'S ROLE

In 1976, the Civil Service Commission issued a memorandum instructing agencies on how to carry out their responsibilities for authorizing official time. Agencies were also directed to establish recordkeeping systems to track official time. After finding that 18 of 26 bargaining units at four agencies had no records of official time usage, the General Accounting Office (GAO) issued a report in 1979 recommending that OPM (no longer the Civil Service Commission) direct agencies to comply with recordkeeping requirements. GAO also recommended that OPM require agencies to submit annual reports on official time.

In response, OPM issued Federal Personnel Manual letter 711-161, which required agencies to develop recordkeeping systems for official time no later than January 1, 1982. OPM did not, however, require agencies to report annually on official time as GAO had recommended. When the Federal Personnel Manual was abolished in 1994, all recordkeeping requirements for official time also were abolished.

In 1998, OPM was directed to prepare a report on official time usage for the House Committee on Appropriations. OPM was instructed to sample official time use for a six-month period. We collected and analyzed official time data from some 70 Federal agencies covering over 2,100 bargaining units. Our findings were submitted to the Appropriations Committee in November 1998 in a comprehensive report entitled Official Time and Services Used by Unions Representing Federal Employees.

FY 2002 OFFICIAL TIME DATA

In response to the Director's June 2002 memorandum, agencies reported to OPM on the number of hours of official time used by employees in FY 2002 to perform representational activities. In comparison to the 1998 figures, the number of hours of official time increased 10.0 percent (4,332,608 to 4,765,848) (See Table 1). The estimated cost of official time increased 5.52 percent ($108,297,000 to $114,280,000) (See Table 2). In considering these figures, it is important to keep in mind the following:

• Bargaining over term agreements requires considerable official time, but not all agencies and unions negotiate term agreements in the same year. Contracts typically expire after three years but only some are renegotiated. Others are continued by the parties for another fixed term without new negotiations. We do not know the extent of term bargaining activities in 2002.
• Mid-term bargaining, another major source of official time, is largely driven by the degree to which agencies exercise their management rights. In any given year there may be reorganizations, downsizing, or workplace change initiatives that require more mid-term bargaining - and more official time - in comparison to other years. We do not know whether this was the case in 2002.
• The number of grievances may lead to changes in official time as well. Official time use will typically rise with an increase in the number of grievances and fall as grievances and other workplace disputes decrease. However, if cooperative efforts are employed to reduce grievances and improve labor-management relations, the use of official time in connection with such cooperative initiatives may actually rise, at least in the early stages. We do not have information on grievances and dispute resolution efforts for 2002.

TABLE 1

The total number of hours of official time increased 10.0 percent since 1998, rising from 4,332,608 to 4,765,848 in FY 2002. The average amount of official time per bargaining unit employee in FY 2002 was 4.21 hours. In FY 1998, the average amount was 3.99 hours per employee.

Among major agencies, the Department of Transportation had by far the greatest increase in both the number of hours of official time (193,728 in 1998 to 612,397 in FY 2002) and the average number of hours per bargaining unit employee (5.7 to 13.9). This may be attributed to the high level of employee organizing that has occurred in recent years at the Federal Aviation Administration and the addition of over 10,000 bargaining unit employees since 1998. Other agencies showing significant increases in hours of official time since 1998 include Commerce (18,566 to 47,328); Justice (105,150 to 164,504); and Veterans Affairs (606,150 to 756,407).

Major agencies experiencing a significant decline in the number of hours of official time include Agriculture (164,482 to 127,188); Housing and Urban Development (37,340 to 20,062); and Interior (49,188 to 33,669). The Equal Employment Opportunity Commission (EEOC) saw the largest decline in the use of official time per bargaining unit employee (10.87 to 5.9). EEOC attributes this decline to the improved relationship between labor and management, more open communications, and an increase in expertise on the part of employee representatives.

¹ For fiscal year 2002.
² 1998 data was collected for a 6 month period. To compare 1998 data to annual 2002 data, we doubled the 6 month 1998 data
³ The number of employees represented by bargaining units is from January, 2003.

TABLE 2

While OPM did not ask for the cost of official time in 2002, we attempted to calculate this number. Cost figures were estimated for each agency by multiplying:

• September 2002 Central Personnel Data File average agency bargaining unit employee annual salary divided by 2080 hours

by

• the number of official time hours reported for 2002.

In 1998, agencies reported to OPM the cost of official time for the 6 month data collection period required by Congress. For purposes of comparing 1998 data to annual data for 2002, we doubled the 6 month 1998 data. Using this method, the cost of official time was estimated to be $114,280,000 for FY 2002, an increase of approximately 5.52 percent over FY 1998's estimate of $108,297,000.

⁵ Cost figures were estimated by Agency by multiplying (1) September 2002 Central Personnel Data File average Agency bargaining unit employee annual salary divided by 2080 hours by (2) the number of official time hours for 2002.
⁶ In 1998, Agencies reported to OPM the cost of official time for the 6 month data collection period. For purposes of comparing 1998 data to annual data for 2002, we doubled the 6 month 1998 data and adjusted for annual Federal pay raises using 3 percent annual growth.

Appendices:

Appendix 1 - June 17, 2002 Memorandum to Departments and Agencies
Appendix 2 - Section 7131, Title 5 U.S. Code
Appendix 3 - June 21, 2002 Memorandum to Departments and Agencies
Appendix 4 - Detailed Agency Listing: FY 2002 Official Time

Attachment 2

The Office of Personnel Management is issuing this guidance to help departments and agencies report on the number of hours of official time used to perform representational functions in FY 2003. Please complete your agency's report and submit it to OPM no later than January 30, 2004.

1. Scope of Report
   Your report should cover all agencies except non-appropriated fund instrumentalities and only those representational activities related to labor relations, such as those provided for by 5 U.S.C. Chapter 71 and collective bargaining agreements. Agencies should not report activities under non-labor relations laws or regulations (e.g., civil rights laws or agency administrative grievance procedures).
2. Reporting Period
   Agencies shall provide the actual or best estimate of the number of hours of official time used by employees in FY 2003.
3. Definitions and Terminology
   Official Time means all time regardless of agency nomenclature granted to an employee by the agency to perform representational functions under 5 U.S.C. Chapter 71 or by collective bargaining agreement when the employee would otherwise be in a duty status.

   Representational Functions refers to activities undertaken by employees acting on behalf of the union or fulfilling the union's responsibility to represent bargaining unit employees in accordance with 5 U.S.C. Chapter 71 or a collective bargaining agreement.

4. Completing the Report
   
   1. OPM expects to receive one consolidated report from each department or agency. You can determine how your agency collects information from its components.
   2. Each report shall provide:
      1. the name of the department or agency responsible for completing and submitting the information;
      2. the name of the activity, administration, or bureau if appropriate; and
      3. the name and telephone number of a contact person for management and for the labor organization that provided input.
   3. Provide the actual or best estimate of the number of hours of official time used by employees in FY 2002 to perform representational functions. If actual data on official time is not available, you may estimate the hours of official time based on the best available data or use standard statistical sampling methods. If you provide an estimate or sample, please explain the methodology that was used.
   4. Provide any information that may explain unusually high or low usage of official time during FY 2002.
   5. OPM encourages each agency to work with their labor organizations to help determine or verify the information reported.

PLEASE COMPLETE YOUR REPORT BY OCTOBER 31, 2002 AND SEND IT TO:

U.S. Office of Personnel Management
Office of Labor and Employee Relations
1900 E. Street, NW, Room 7H28
Washington, DC 20415

If you have any questions, please contact Jeffrey Sumberg, Director, Office of Labor and Employee Relations, at (202) 606-2639 or at jsumberg@opm.gov

Appendix 1

MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES

FROM: KAY COLES JAMES, Director

Subject: Official Time for Labor-Management Relations

This memorandum describes the Office of Personnel Management's expectations for agencies and unions when it comes to granting and using official time for labor-management relations. OPM is also instructing each department and agency to report by the end of each fiscal year on the number of hours of official time used by employees to perform representational activities. The first report is due to OPM by October 31, 2002, covering FY 2002.

President Bush has recognized the importance of strategic human capital management, placing it at the top of his agenda for improving the performance of Government. I believe that Federal agencies and their unions have a mutual interest in this critical effort to create a citizen-centered, results-oriented, market-based Government. To succeed, labor and management must use their time and resources in ways that meet the needs and expectations of agencies, employees, and the ultimate customers -- the American people.

Setting sensible standards for granting and using official time is an important part of this effort. Congress authorized employees official time for labor-management relations because lawmakers believed that the right to organize and bargain collectively safeguards the public interest, contributes to the effective conduct of public business, and encourages the amicable settlement of disputes between Federal employees and the Government. But the right of agencies to grant official time and the right of employees to use it on behalf of their unions creates a shared responsibility to the taxpayer. I believe that labor and management are equally accountable to the taxpayer and have a mutual duty to ensure that official time is authorized and used appropriately.

That is why I expect agencies and unions to work cooperatively on sensible, responsible arrangements for authorizing and using official time. In fact, most collective bargaining agreements already contain provisions that define official time for labor-management relations and set forth the kind of activities that are appropriate for official time usage. Establishing a clear set of reporting requirements for official time sends a strong signal that labor and management understand their joint obligation to use public funds wisely. Just as important, developing prudent official time arrangements that both parties support helps promote better relations between labor and management and reduces disputes over official time.

To help ensure accountability in this important area of labor-management relations, OPM is instructing each agency to report by the end of each fiscal year on the number of hours of official time used by employees to perform representational activities. The first report is due to OPM by October 31, 2002, covering FY 2002. We have prepared the attached guidance to assist agencies in compiling and reporting this information.

We have asked for as little official time data as possible because we are fast approaching the end of the fiscal year and we recognize that agencies may not be able to collect and report more than total hours of official time for FY 2002. To help us draw conclusions from the information reported this year, OPM will examine the official time data and any explanation of unusually high or low usage and correlate that with data we have already collected showing the number and size of bargaining units at each Federal agency. We will work closely with agencies and unions to establish a more comprehensive reporting framework for future years.

If you have any questions, please contact Jeffrey Sumberg, Director, Office of Labor and Employee Relations, at 202-606-2639. He may also be reached via e-mail at jsumberg@opm.gov.

Appendix 2

Title 5 U.S. Code, Section 7131

§7131. Official Time

(a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes.

(b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a nonduty status.

(c) Except as provided in subsection (a) of this section, the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status.

(d) Except as provided in the preceding subsections of this section-

(1) any employee representing an exclusive representative, or

(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative,

shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.

Appendix 3

MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES

FROM: KAY COLES JAMES, Director

Subject:Labor-Management Relations

I sent you a memorandum earlier this week in which I emphasized the shared obligation of labor and management to ensure that official time is authorized and used appropriately. Today I am issuing this memorandum to underscore the equally important responsibility of labor and management to work together to deliver the best possible service to the American people.

As you know, President Bush has identified a bold strategy for improving the performance of Government and delivering better results for the American people. I believe that management and the unions that represent Federal workers have a mutual stake in achieving the President's agenda. That is why I am encouraging agencies and their unions to work cooperatively on the critical challenges ahead.

I believe that cooperation between labor and management can enhance effectiveness and efficiency, cut down the number of employment-related disputes, and improve working conditions, all of which contribute to the kind of performance and results sought by the President. This will demand management and union leaders who trust each other, who are open and honest with each other, who respect the different interests that each party brings to the table and build on the interests they share.

When the President signed Executive Order 13203, there was speculation that it meant the end of labor-management cooperation and communication in the Federal Government. I think that is wrong. The President was motivated by his conviction that partnership is not something that should be mandated for every agency in every situation. But while agencies are no longer required to form partnerships with their unions, they are strongly encouraged to establish cooperative labor-management relations.

Much is being asked of Government today, and it has never been more important for labor and management to find common ground. I will be counting on that cooperative spirit to bolster efforts to establish world-class human resources systems at the new Department of Homeland Security. We plan to work with unions, employee associations, and other stakeholder groups and seek their advice about how to design the best systems possible to support the men and women entrusted by the President to safeguard our nation. I am convinced that great things can be achieved for the Government and the citizens we serve when management and union leaders work together on issues that unite them rather than spend their time and energy on what divides them. That is a principle I will continue to support as OPM Director.

OPM is ready to assist you to ensure that your labor-management relations policies and practices help your agency achieve its mission. Please do not hesitate to contact me or OPM's Office of Labor and Employee Relations if we can help in any way.

Appendix 4

⁶ For fiscal year 2002.
⁷ The number of employees represented by bargaining units is from January, 2003.