United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
| In the Matter of
DEPARTMENT OF THE ARMY FORT MONMOUTH, NEW JERSEY |
|
|
and LOCAL 1904, AMERICAN FEDERATION
|
Case No. 03 FSIP 28 |
DECISION AND ORDER
Local 1904, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of the Army, Army Communications-Electronics Command (CECOM), Fort Monmouth, New Jersey (Employer).
Following investigation of the Union’s request for assistance in the case, which arose during negotiations over the CECOM Overtime Handbook (Overtime Handbook or Handbook) for employees,(1) the Panel determined that the dispute should be resolved through an informal conference by telephone with Supervisory General Attorney Ellen J. Kolansky. The parties were advised that if no settlement was reached, Mrs. Kolansky would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.
Pursuant to this procedural determination, Mrs. Kolansky spoke with the parties by conference call on February 25, 2003. Although the parties explored several alternative proposals during the procedure, they were unable to resolve the issue in dispute. Afterwards, they submitted brief statements in support of their final offers. Mrs. Kolansky has reported to the Panel and it has now considered the entire record, including the parties’ statements of position.
BACKGROUND
The Employer develops communication and electronic equipment and engages in contracting for such items. The Union represents approximately 2,300 bargaining-unit employees who work in numerous positions that involve procurement, contracting, computers, and logistics management; the unit includes budget analysts, computer operators, electrical technicians, and clerks, at grades GS-4 through -13. Approximately 1,100 of these employees are exempt from the Fair Labor Standards Act (FLSA), and will be affected by the outcome of this dispute. The collective bargaining agreement (CBA) was first implemented in 1982; although certain articles have been renegotiated from time to time, the CBA has been rolled over year after year since then.
ISSUE AT IMPASSE
The parties essentially disagree over the standard a supervisor should apply when determining whether to grant an FLSA-exempt employee’s request for paid overtime.
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposes the following wording:
An exempt employee may request the payment of overtime instead of compensatory time. The Employer will grant the exempt employee’s request for paid overtime when it can do so within budgetary constraints.
These FLSA-exempt employees are "not professional; the majority do not have degrees of any kind; they are ‘working folks.’" Their requests for overtime ought to be granted unless "budgetary constraints" dictate otherwise. Although "no provision had heretofore been included in the [CBA] addressing the payment of overtime to exempt employees, [the] law [does] not preclude such payment."(2) Furthermore, paying employees overtime is more economical because the Employer "never loses them or their services." When the Employer grants employees compensatory time, it is paying double because it is paying for a workday, but the employee is not at work. By paying overtime, the Employer is receiving a workday at a lower rate because overtime is 1½ times the minimum rate of GS-10 basic pay, while the employee’s normal rate of pay may be higher. The proposed wording is appropriate because it "acknowledges the agency’s budgetary constraints" and "leaves the decision within the discretion of the agency." Thus, the proposal would not "bust" the Employer’s budget. With respect to the Employer’s data on overtime costs, such costs increased in FY 2002 due to the response to the events of 9/11, a period of unusually high needs and, therefore, should be disregarded. Finally, the Union’s position is also supported by the results of an employee survey, which found that exempt employees "overwhelmingly expressed the desire" to choose between paid overtime and compensatory time.
2. The Employer’s Position
The Employer’s offer at the conclusion of the informal conference by telephone reads:
The Employer acknowledges that an exempt employee may prefer paid overtime rather than compensatory time for overtime hours worked. Any such preference relayed by the employee will be given serious consideration by the Employer.
The Employer also would find equally acceptable as a resolution to the dispute the following wording, which was presented to, but rejected by, the Union subsequent to the informal conference by telephone:
An exempt employee may request overtime instead of compensatory time. The Employer may grant the exempt employee’s request for paid overtime.
These proposals reflect the status quo, i.e., that supervisors should retain the discretion to offer compensatory time, yet "seriously consider" or ("may grant") employees’ requests to earn overtime.(3) Requiring overtime pay when it is "within budgetary constraints," as the Union proposes, might, by contrast, "force [] CECOM to defend each instance in which a supervisor denied an exempt employee overtime payment." While its budget is the dominant factor considered when approving a request for overtime pay, data from FY 2002 shows that, at present, affected employees receive a significant amount of paid overtime (10,681 hours/$336,150.86 paid), and lesser amounts of compensatory time (3,811 hours). In addition, affected employees work in maintenance and operations, which are two of the more under-funded parts of the organization.
The Union has not demonstrated a need to change the status quo, which "is working adequately." Instead, its proposal is based on the misperception that FLSA-exempt employees "cannot receive payment for overtime work." Furthermore, the Union’s position is "mere speculation" as "this particular issue has [not] been a source of conflict between supervisors and exempt employees." The Union also has not provided any comparability data on practices "in the private, public or Federal sector"; the current practice at Fort Monmouth is comparable to that of other DOD installations. Finally, the survey of bargaining-unit employees the Union provided is not persuasive because it: (1) only asks whether employees wish a choice between overtime and compensatory time (implying "that exempt employees were not allowed to receive payment for overtime work"); (2) does not distinguish between FLSA exempt and non-exempt employees; and (3) does not inquire into employees’ experiences under the current practice.
CONCLUSIONS
Having carefully considered the evidence and arguments presented by the parties on this issue, we conclude that the parties should adopt the offer the Employer made at the conclusion of the informal conference by telephone to resolve their dispute. By the end of the informal conference, both parties had put forth proposals recognizing that exempt employees may request overtime in lieu of compensatory time. At this point, the crux of the dispute is the standard that a supervisor should apply when considering whether to grant such requests, i.e., "budgetary constraints" versus "serious consideration." The Employer’s evidence reveals that, in the last fiscal year, it paid FLSA-exempt employees overtime about three times as often as it granted the same group of employees compensatory time off. Considering this history, and that neither party has identified any problems or complaints by employees over denials of requests for overtime pay, we are persuaded that, in this workplace, "serious consideration" of employee requests for overtime is the more appropriate standard. The Employer’s alternative proposal is less appropriate because it imposes no standard on such decisions.
ORDER
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the adoption of the following wording:
The Employer acknowledges that an exempt employee may prefer paid overtime rather than compensatory time for overtime hours worked. Any such preference relayed by the employee will be given serious consideration by the Employer.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
May 1, 2003
Washington, D.C.
1.
Bargaining arose when the Employer provided the Union with notice
of some changes it intended to make to the Overtime Handbook.
According to the Employer, the Handbook was “published in 1996
to assist CECOM personnel in understanding their rights and
responsibilities in the use of overtime and compensatory time”
and “to assist managers.”
2.
In American Federation of Government Employees, Locals 3807 and 3824
and U.S. Department of Energy, Western Power Administration, Golden, Colorado, 55 FLRA 1 (1998), the FLRA found negotiable the following
two proposals directed to FLSA-exempt employees:
A decision to request compensatory time
off in lieu of overtime is a decision to be made by the employee who
is working the overtime. [Proposal 3] When authorized by pending legislation, WAPA will initiate a policy of
allowing exempt employees to cho[o]se to take compensatory time off at
a rate of 1½ hours off for each hour of overtime worked. [Proposal 4] With respect to Proposal 3, the FLRA stated that “the Agency may
exercise its discretion through negotiation and it may agree to allow individual
employees to elect overtime rather than compensatory time.” 3.
Section 3c(3) of the CECOM Policy Memo, provided by the Union, states:
At Fort Monmouth, managers are encouraged
to maximize the use of compensatory time vice paid overtime wherever
feasible. However, managers should also consider employee preference
prior to directing the use of either paid overtime or compensatory time. With respect to exempt employees, Subsection (2) of the same memo,
and the proposed revision of the CECOM Overtime Handbook, say basically the same thing,
which is that an exempt employee: can be required to take compensatory time off providing
there are no provisions in the local Labor-Management Agreement (for bargaining unit members)
that require the payment of overtime.