United States of America  

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of   DEPARTMENT OF THE AIR FORCE DOVER AIR FORCE BASE DOVER AFB, DELAWARE
and LOCAL 1709, AMERICAN FEDERATION OF     GOVERNMENT EMPLOYEES, AFL-CIO	Case Nos. 03 FSIP 177 and 04 FSIP 7

  DECISION AND ORDER

      Local 1709, American Federation of Government Employees, AFL-CIO (the Union) and Department of the Air Force, Dover Air Force Base (AFB), Dover AFB, Delaware (Employer), each filed a request for assistance with the Federal Service Impasses Panel (the Panel) to consider a negotiation impasse over the same subject under the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7119.

     After investigation of these requests for assistance, which were consolidated, the Panel determined that the dispute, which concerns the establishment of a base-wide Flexible Work Schedule/Compressed Work Schedule (FWS/CWS) Program (the Program), should be resolved through an informal conference with Panel Member Grace Flores-Hughes.  The parties were advised that if no settlement was reached, Member Flores-Hughes would notify the Panel of the status of the dispute, including the parties’ final offers and her recommendations for resolving the matter.  After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a Decision and Order. 

     Pursuant to this procedural determination, Member Flores-Hughes conducted an informal conference at Dover AFB on January 21 and 22, 2004, and continued the conference by telephone on February 20 and March 8, 2004.  During the course of the meetings, the parties made some progress toward resolution of the issues.  Thereafter, the parties submitted to the Panel their final offers and supporting statements of position.  The Panel has now considered the entire record in rendering its decision. 

BACKGROUND 

    The Employer's mission is to manage C-5 aircraft for airlifting passengers and cargo, such as tanks and trucks, worldwide for the Department of Defense.  The four major groups include Maintenance, Mission Support, Medical, and Operations.  These groups are divided into approximately 19 subordinate squadrons, and further divided into work centers.  In addition to the subordinate squadrons, there are 9 or 10 tenant activities located at the installation.  The Union represents 666 employees who work as accounting technicians, aircraft mechanics, air traffic controllers, civil engineers, painters, and in crafts and trades, clerical, and supply positions, at grades GS-3 through -11 and WG-5 through -12.  The collective bargaining agreement (CBA) covering these employees expired on June 15, 1998; its terms and conditions will continue in effect until ongoing negotiations over a new agreement are completed. 

ISSUES AT IMPASSE 

    The parties essentially disagree over: (1) whether wording in the Memorandum of Understanding (MOU) establishing the Program would supercede Article 26, §§ 2(B) and 5(D) of the current CBA; (2) whether employees whose performance rating is less than “acceptable” would be permitted to participate in the Program; (3) whether schedule limitations should be set by the Employer or through negotiations with the Union established under the MOU; (4) the definition of “tour of duty”; (5) the length of the workday; (6) the timeframes for negotiating flexible schedules at the group commander level; (7) how lunch periods would be determined; (8) whether employees would be allowed to earn credit hours; (9) the definition of “personal hardship”; (10) the definition of “work center”; (11) the criteria for approval/disapproval of individual employee requests to work a FWS/CWS; (12) if credit hours are adopted, whether to include the definition of the “Round Down Daily” rule; (13) whether employees working a CWS would be permitted to substitute their regular day off for leave; (14) whether the Program would be implemented for a trial period and, if so, for how long; (15) whether the Employer would be identified as “Dover AFB” or “the Employer”; (16) the criteria for terminating the program either at the Employer, the component, or the work center level; (17) the criteria for evaluating the Program; (18) the types of FWS schedules and procedures to be used; and (19) the forms employees would use to apply for the Program. 

POSITIONS OF THE PARTIES 

1.    Scope of the MOU  

                a.     The Union’s Position 

        The Union proposes the MOU establishing the Program supercede Articles 26, §§ 2(B) (Tours of Duty) and 5(D) (Lunch/Break Periods) of the CBA.  The parties have already specifically agreed in § B(4) of the MOU (“Changes to Approved Work Schedules”) that “language in this MOU fully covers procedures.”  Therefore, by agreement, “any wording that pertains to tours of duty must supercede the language of the current contract.”  Similar reasoning applies to the application of the CBA wording on lunch periods, i.e., applying current CBA wording would conflict with what already has been agreed to in the MOU. 

 b. The Employer’s Position

        The Employer would continue to apply the provisions in Article 26 §§ 2(B) and 5(D) of the parties’ current CBA to all employees regardless of whether they work an FWS/CWS.  The methods outlined in those provisions have been in practice since 1995.  It does not make sense to “do away with something that is not broken” for part of the workforce and continue to use it for the rest.  The application of the CBA wording to all employees “is fair and consistent.”

CONCLUSION 

      Having carefully reviewed the evidence and arguments presented on this issue, we shall resolve the matter by order the Union to withdraw its proposals.  Generally, the party proposing to change the status quo has the burden of justifying the need for the change.  It is undisputed that some alternative work schedules (AWS) have been in place for a number of years at Dover AFB.  Apparently, the only procedures that have applied during this timeframe concerning changes in tours of duty and the scheduling of lunch periods are those in Article 26 §§ 2(B) and 5(D) of the parties’ CBA.  While the Union seeks to change this practice, it has failed to persuade us of the need for doing so.  Furthermore, eliminating the application of the current CBA wording to employees working a FWS/CWS may cause confusion, increase the number of grievances, and lead to abuses of the lunch period. 

2.    Employee Abuse of FWS/CWS Privileges

      a. The Union’s Position

      Regarding the Employer’s proposal to sanction employees who abuse the Program, this issue was resolved during the January 22, 2004, informal conference meeting.  The Employer’s proposal to require that employees who participate in the Program have an “acceptable” performance rating of record is unnecessary.  The parties already “negotiated and agreed to” this concept in § B(2); additional wording would be redundant.  Finally, the Employer’s proposal that employees “be flexible” when requesting FWS/CWS also should not be adopted.  It never provided any evidence supporting its assertions that the Program could not be accommodated in particular work centers.  In fact, the parties agreed that no employees would be excluded from the Program; thus, there is no need for the Employer’s wording.  Furthermore, the MOU should not “dictate what an employee may, need, or should understand” (emphasis in original).  The purpose of the MOU has already been agreed to in the “Introduction.” 

     b. The Employer’s Position 

The Employer proposes that: 

4) Employees who abuse AWS may be sanctioned such as, but not limited to imposition of stricter time limit accounting methods, disqualification from continued participation in the AWS program, and/or appropriate disciplinary measures.

 

5) Employees whose most recent performance rating of record is not “Acceptable” may be ineligible to participate, or continue participating in the AWS program, or may be changed to a different AWS.  If the employee receives a subsequent “Acceptable” performance rating, and their work schedule was impacted during the period with the unacceptable rating, the supervisor may return the employee to the originally approved work schedule if circumstances permit.  If the employee desires a new or different work schedule, the procedures outlined in paragraph B.4. apply.

 

6) Employees need to be flexible and should understand they may not always get the schedule they initially request (see B).

Since employees will use this MOU as a guide, subsection 4 of the proposal ensures that employees are aware of the potential for being sanctioned if they abuse the AWS program.  Furthermore, the Union has already agreed to the concepts in § B(2); therefore, the parties’ agreement is merely being reiterated in this subsection.  The proposal also should be adopted because “it logically flows” with § 2(B), concerning supervisors’ disapproval or an involuntary termination of an employee’s participation in AWS as a response to abuse of the Program.

        Regarding subparagraph 5, because the Union does not provide wording addressing this issue the Employer assumes that there is no objection to its proposal.  The proposal is appropriate because it would ensure that employees with “unacceptable” performance ratings understand they may be placed on a different schedule for retraining or closer supervision.  Moreover, this concept has validity because it was taken from the policy the Federal Labor Relations Authority (FLRA) applies to its employees.[1]/

        Subparagraph 6 is “a vital concern of management’s” in that some work centers may not be able to accommodate a particular FWS/CWS, or any FWS/CWS at all.  Therefore, it is important for employees to know that “flexibility” is a necessary component for potential participation in the Program.  Finally, the need for flexibility is also addressed in the introductory portion of the MOU. 

CONCLUSION 

      Upon careful review of the record presented in this case, we shall order the parties to adopt the Employer’s proposals.  With regard to subparagraph 4 (employee abuse), the Union indicates in its written statement that the parties reached agreement on this subsection during the informal conference session dated January 21, 2004.  As there is no apparent disagreement over this issue, we shall order the adoption of the Employer’s proposal.  Concerning subsections 5 (appraisal rating) and 6 (flexibility), we are persuaded that the Employer’s wording would be of some value in clarifying requirements for participating in the program.  Subsection 5 merely reiterates what the parties have already agreed to and, in our view, stresses the importance of employees maintaining acceptable performance to participate in the Program.  As to subsection 6, we understand the Union’s concern that the provision could be interpreted to mean that the Employer can unilaterally determine not to implement certain AWSs in specific areas.  Our adoption of the Employer’s proposal is not an endorsement of this concept.  In our view, the Employer’s statement is merely hortatory.  Any limitations on an employee’s ability to participate in the FWS/CWS Program should be determined by the provisions of this MOU and appropriate laws.        

3.    Establishing Individual Schedules

        a. The Union’s Position 

        The Union proposes that limits to the participation of full- and part-time employees’ in FWSs be “as set forth by negotiations of this MOU.”  In the “General Provisions” section, subpart 4 (“Responsibilities”), the parties agreed to the wording “parameters of this MOU.”  The words “limits” and “parameters” are “synonymous with each other.”  Thus, limits should be set in accordance with this MOU, not by a “unilateral” decision by the Employer. 

      Under the definition of the basic work requirement (BWR), the Union proposes to add the phrase “credit hours taken,” which reflects the status quo at Dover AFB.  The Employer has not provided any evidence or demonstrated need to change the status quo; therefore, the proposal should be adopted.  In this regard, the Employer’s position with respect to credit hours is based on speculation that is not supported by the evidence presented.  In addition, “the Employer has failed to demonstrate that the benefits received by both parties would outweigh any burdens that would be placed on the Employer.”  Credit hours are an “integral part” of a flexible work schedule.  Aircrews at Dover AFB use credit hours when working extended hours rather than accumulating overtime pay.  With the shortage of personnel and funds, allowing employees to earn credit hours is “reasonable and a valuable tool” for the Employer to “maintain an effective and efficient” mission.  

      b. The Employer’s Position

      Under its definition of FWSs, the Employer proposes to include wording that part- and full-time employees’ schedules be determined within the limits “set by the Employer.”  This wording is in accordance with the definition in the Office of Personnel Management (OPM) Handbook, and does not conflict with the parties’ agreement that the Employer would negotiate core hours and flexible time frames at the Group level for the work centers in each Group, if requested by the Union.  As to the phrase “credit hours taken,” the Employer would not refer to it in the definition of the BWR because it is not proposing that credit hours be part of the FWS/CWS Program.

CONCLUSION 

      After reviewing the evidence and arguments presented by the parties, we are persuaded that they should adopt compromise wording stating that FWSs would be set by the Employer in concert with the provisions of the MOU.  In our view, the Employer has failed to make the case that it should unilaterally determine the individual FWSs of each employee.  Turning to the dispute over adding the phrase “credit hours taken” to the definition of the BWR, we conclude that the parties should adopt the Union’s proposal.  The fundamental issue is whether the MOU should include credit hours as part of the Program.  While the Employer’s primary argument against doing so appears under Issue 8 of this Decision and Order, it is unpersuasive.  In enacting the Federal Employees Flexible and Compressed Work Schedules Act (Act), 5 U.S.C. § 6120 et seq., Congress found that “the use of flexible and compressed work schedules [including credit hours] has the potential to improve productivity in the Federal Government and provide greater service to the public.”  The Employer has not provided any evidence that a credit hours program could not have the same potential for Dover AFB.  Moreover, in accordance with our decision on Issue 13 below, the Employer’s concerns regarding the possibility that including credit hours as part of the Program would have an adverse impact on the accomplishment of its mission are adequately addressed.

4.    Definition of Tours of Duty  

 a. The Union’s Position

        For the same reasons set forth under Issue 1, the Panel should not adopt the Employer’s proposal to apply the current contract provisions in Article 26, § 2(B) to this MOU.  Similarly, as stated in Issue 3, limits on tours of duty should be “set forth by this MOU.”  The Union also proposes to add the words “and days,” to the section that defines tours of duty in the context of an FWS.  This is necessary because, elsewhere, it proposes a “variable day schedule.” 

 b. The Employer’s Position 

      The Employer’s proposal, and supporting argument, is the same as provided in Issue 1: Essentially, the parties should adopt the procedures outlined in Article 26, § 2(B) of the current contract when the Employer decides to change employees’ tours of duty because they are fair, and consistent for all employees. 

CONCLUSION 

      For the reasons set forth in our decision on Issue 1, we shall order the parties to adopt the Employer’s proposal on applying the procedures of Article 26, § 2(B) of the CBA when employees’ tours of duty are changed.  With regard to the definition of tour of duty, the parties also shall be ordered to adopt the same compromise wording set forth in Issue 3.  Finally, with respect to the Union’s proposal to add “and days” to the definition, its primary rationale for adopting this wording is that it would apply to employees working a “variable day schedule.”  Since this is not one of the schedules the Panel is including in the parties’ MOU, the additional wording is unnecessary. 

5.    Length of the Work Day  

 a. The Union’s Position

        The Union proposes that the workday be a maximum 12 hours in length.  In this regard, the Employer did not provide any evidence that working a 12-hour day would create fatigue or reduce productivity.  The proposal is further supported by the fact that one entity at Dover AFB has been working a 12-hour shift since the September 11, 2001, terrorist attacks with no known complaints.  Any concerns the Employer would have can be alleviated by limiting the option of working 12-hour shifts to employees working an FWS with credit hours. 

 b. The Employer’s Position 

      The Employer proposes that the maximum length of a shift not exceed 10 hours.   Its primary concern is the affect that a shift of more than 10 hours per day would have on employees’ safety, health, and productivity.   

CONCLUSION 

      Upon reviewing the parties’ arguments and evidence in this matter, we shall order the adoption of the Employer’s proposal to resolve the issue.  In our view, the potential adverse impact on the health and safety of employees who regularly work 12-hour days, particularly of the type performed at Dover AFB, renders the Union’s proposal unacceptable.  Further, the Employer’s proposal is more consistent with the types of scheduling options employees will have under this Program.  

6.    Negotiations at the Work Center Level

      a. The Union’s Position 

      The Union proposes that Group Commanders “negotiate the existence of core hours/flexible time bands . . . within 15 calendar days after the [Union’s] request.”  In addition, if negotiations are not completed within 45 calendar days from their commencement, the parties may submit a request for assistance to the Panel.  Given previous experience, the timeframes for these negotiations are “reasonable” and avoid the possibility that the Employer would “drag out negotiations.”  In addition, the Employer’s added wording that subsequent negotiations under the MOU will take place “unless the Employer declares adverse impact” is unnecessary because it previously agreed that the negotiations would occur in accordance with § 7119 of the Statute, and not under the Act.  Therefore, adverse agency impact does not apply in this case.

        b. The Employer’s Position

      The Employer proposes that negotiations over an FWS take place at the Group level for the work centers “at reasonable times,” unless the Employer declares an adverse agency impact.  While acknowledging its obligation to negotiate with the Union over core hours and flexible time bands, it would be imprudent to establish specific time frames for negotiations because the Employer may determine that the schedule would cause an adverse agency impact under the Act.  As a better alternative, the proposal applies the wording found in § 7103 of the Statute, which states that negotiations will take place “at reasonable times.”[2]/

 CONCLUSION

      Having considered the arguments and evidence concerning this matter, we shall order the parties to adopt compromise wording requiring them to meet within 20 days after the Union requests to negotiate over flexible time bands and core hours to establish a negotiations schedule.  In our view, the compromise strikes an appropriate balance between the Union’s concern that it receives timely responses to its requests to negotiate, and the Employer’s concern that managers at the Group level have some flexibility in scheduling the bargaining. 

7.    Lunch Periods

               a. The Union’s Position

         The Union proposes the following:

Lunch periods will normally be one-half hour in duration for employees on an AWS.  Lunch periods will normally be scheduled to begin one hour prior to the middle of the work shift to one hour after the middle of the work shift.  As an exception if an employee requests a one hour lunch period, the Employer will consider it and may grant a longer lunch period.

The Panel should adopt the proposed wording because it is consistent with its previous decision in Department of the Air Force, Travis Air Force Base, Travis AFB, California and Local 1764, American Federation of Government Employees, AFL-CIO, Case No. 01 FSIP 90 (August 9, 2001) (Travis AFB), Panel Release No. 442.[3]/  Moreover, the parties have a past practice of half-hour lunch periods.  The Employer failed to provide supporting evidence that this practice should change.  Furthermore, the proposed procedure is practical because the Employer has the following flexibilities:  (1) all employees not on an AWS may be scheduled for one hour lunches; and (2) for personnel on FWS/CWS, the Employer may: (a) stagger lunch periods; (b) authorize a 20-minute paid on-site lunch period; and (c) propose a change to working conditions.  The proposal would benefit employees by reducing the time they spend at work, improving morale, and allowing more time with their families and to participate in community events.  It would also permit employees to provide customer service 1 hour earlier, which is the cornerstone of the Act.

        b. The Employer’s Position

      The Employer proposes that lunch periods be scheduled in accordance with Article 26, § 5(D) of the parties’ current CBA, which states: “Lunch periods may range from one-half hour to one (1) hour in duration.”  Some of its arguments for this proposal are the same as those provided in support of its position on Issue 1.  In addition, the duration of lunch periods has an impact on the length of the work shift and staffing patterns, which is “part of management’s right to assign work and determine the numbers and types of employees assigned to work shifts,” so the Union’s proposal “would impact management’s right to determine needed staffing patterns.”  Finally, a ½-hour lunch period could lead to abuses because it would not permit employees to reach on-base eating establishments and still return to work in time to continue their shifts.

 CONCLUSION

        Consistent with the Panel’s rationale for deciding Issue 1, we shall order the parties to adopt the Employer’s proposal to resolve their dispute over the length of the lunch period.  Additionally, the Union has failed to establish the relevance of Travis AFB to the circumstances presented here.

8.    Definition of Credit Hours

 a. The Union’s Position

The Union essentially proposes that the definition for “credit hours” provided in the OPM Handbook be included in this section for the same reasons it provided in support of its proposal in Issue 3.[4]/  

          b. The Employer’s Position

      The Employer would exclude credit hours from the FWS/CWS Program.  In this regard, the only FWS it proposes is flexitour, and credit hours “do not lend themselves to the fixed, flexitour work schedule.”  Consequently, defining the term “credit hours” in the MOU is unnecessary.

 CONCLUSION

      After reviewing the record created by the parties on this matter, consistent with our findings in Issue 3, we shall order the adoption of the Union’s proposal.  There appears to be no basis for the Employer’s view that credit hours are incompatible with a flexitour schedule.  Since there are no other apparent reasons for not including the earning and use of credit hours by employees under the Program, particularly under the conditions set forth in this decision, we conclude that a definition of the term should be included in the parties’ MOU.

9.    Definition of Personal Hardships

 a. The Union’s Position

      The Union would have the Panel order the Employer to withdraw its proposal.  It is not willing to permit supervisors “to go beyond the boundaries of this MOU,” as the Employer proposes.  Further, the Employer has not provided any evidence of the need to allow supervisors to do so.  The parties have already agreed to temporary schedule variances in special situations.  The Employer’s definition of “personal hardship” may not be appropriate since there is no legal definition of the phrase.  Any concern the Employer may have is already addressed elsewhere in the MOU. 

         b. The Employer’s Position

The Employer proposes the following wording:

f. Personal Hardship:  Rare situations, such as temporary child/elder care or health problems, that are so extreme as to justify the supervisor’s decision to go beyond the boundaries of this MOU on an ad hoc, non-precedent setting basis (could never constitute the establishment of a past practice).  This would include the employee and/or their family members as follows:  Spouse, and parents thereof; children, including adopted children and spouses thereof; brothers and sisters, and spouses thereof; parents; brothers and sisters, and spouses thereof; and any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.  This would be beyond the special situations considered in paragraph B(4) below.

The FWS/CWS Program has limitations, so it is necessary to “balance the operational needs of the base with the work schedules employees want” to ensure the Program is manageable.  In “extreme personal hardship” situations, management sees the need for more flexibility that allows supervisors to establish temporary schedules that are not included in the MOU. 

 CONCLUSION

        Upon thorough examination of the record presented by the parties, we are persuaded that the best approach to resolve the dispute is to order the Employer to withdraw its proposal.  In our view, the Employer has failed to demonstrate the need for including its proposed wording in the MOU, especially since the parties have agreed that employee participation in the Program would be voluntary.

10.    Definition of Work Center

  a. The Union’s Position

       The Union agrees to the Employer’s proposed definition of the term “work center,” with following addition: “Headed by a supervisor or manager authorized to approve time and attendance and approve leave.”  Its proposed wording is derived from the OPM Handbook definition of a “work unit.”  With an “integrated” work force that includes active duty military personnel and reservists, the proposed modification will “clarify and identify” the supervisor.

  b. The Employer’s Position

            The Employer proposes the term “work center” be defined as follows:

j. Work Center:  A group of personnel that use similar machines, processes, methods, and operations to do homogeneous work usually located in a centralized area.  The term is used to identify a relatively small activity within a broad functional segment.  Personnel with a work center do work that basically contributes to the same end product or result (duties are similar or closely related).

This definition comes from Air Force Manual 38-208, Volume 2, Air Force Management Engineering Program (MEP) Quantification Tools, dated June 28, 2002.  Because this term is utilized throughout the MOU, it would benefit the parties, employees, and supervisors to have the definition included in the MOU.

 CONCLUSION

        Having carefully considered the evidence and arguments in support of the parties’ positions on this issue, we conclude that the Union should withdraw its proposal.  In our view, the Union has failed to demonstrate why wording taken from the OPM Handbook’s definition of a “work unit,” which applies to all Federal agencies within OPM’s jurisdiction, regardless of their internal organization, should be appended to the definition of “work center” included in the Air Force Manual.  Rather, the sentence it proposes to add appears unnecessary and more likely to cause confusion than clarification.  

11.    Adverse Work Center Impact

  a. The Union’s Position

       The Union proposes that management decisions to disapprove employees’ requests to participate in the Program be based on the adverse agency impact criteria established in the Act, i.e., a reduction in productivity, a diminished level of services furnished to the public, or an increase in the cost of work center operations.  This proposal is appropriate because it is “widely accepted by OPM and the Federal Government.”  Furthermore, it encompasses all of the examples that the Employer cites in its proposal.  With regard to the Employer’s proposal to add the phrase “warlike conditions” as a reason for disapproving participation in the Program, its approach should be rejected.  Dover AFB performs a military function; coupled with the current state of world affairs, the facility could be interpreted to be in “warlike conditions” continually.  Thus, employees would never be permitted to work an FWS/CWS.  Finally, the Employer’s proposal to include the phrase “unmanageable number of different work schedules in a work center” as yet another criterion for disapproving an employee’s request to participate in the Program should also be rejected.  Like the term “warlike conditions,” what is “unmanageable” is open to interpretation.  The Employer already has sufficient flexibility when approving or disapproving an employee’s request to participate in the Program.  If the Employer believes that the schedules are unmanageable and should be terminated, the matter should be addressed under the procedures in § 6131 of the Act. 

         b. The Employer’s Position

            The Employer proposes the following:

b. Disapproval of an eligible employee’s request, or involuntary termination of an AWS, shall be based on the following criteria:

1)  Disruption in carrying out a work center’s functions related to alternative work schedules (e.g., insufficient employee coverage to accomplish the mission efficiently [such as multi-shift operations, specific customer service hours], extended turnover time, diminished productivity, diminished customer service) or an increase in costs related to alternative work schedules; or

 

2)  Abuse of the AWS privilege.  Example:  It is an abuse of the AWS privilege for an employee on a flexible work schedule to falsify their arrival and/or departure time; or

 

3)  Temporary, normally unforeseen surges in workload related to safety,   security, emergencies, weather, natural disaster, and/or warlike conditions; or

 

4)  Unmanageable number of different work schedules in a work center; or

5)  The most recent performance rating of record is not “Acceptable.” [Only the wording in bold is in dispute.]

The proposal provides specific criteria to support disapproval of an employee’s request for, or an involuntary termination of, an AWS; thus, it will ensure supervisors are not “arbitrary and capricious” when making such decisions.  The term “warlike conditions” is included because Dover AFB has experienced workload surges since September 11, 2001.  These surges had a great impact on some areas of Dover AFB, such as organizations involved in operations, maintenance, and providing supplies.  As to the proposal concerning an “unmanageable workload,” the wording is needed because participation in the Program will be voluntary.  Since employees would have a variety of schedules to choose from, a work center is only able to “manage his/her assigned mission” with the employees available.  The idea to limit the number of schedules to two or three was rejected because the number of schedules should be determined by the work center’s mission, size, hours of operation, customer service hours, etc.  Finally, on its proposal to exclude employees with unacceptable performance ratings from the Program, the Union already agreed to this language “in the basic B(2) paragraph regarding the supervisor altering an employee’s work schedule for the duration of a performance improvement period.”  The wording goes “hand in hand” with allowing a supervisor to disapprove or involuntarily terminate a work schedule for the same reason.

 CONCLUSION

    After careful review of the parties’ evidence and arguments on the issue of individual employees’ participation in the Program, we conclude that the equities involved would be balanced by ordering the adoption of the following: (1) in subsection 1, concerning disruption in carrying out a work center’s functions, the Employer’s proposal; (2) in subsection 3, concerning whether the phrase “and/or warlike conditions” should be added as a criterion, a modified version of the Employer’s proposal which moves the phrase to a position after the word “emergencies,” as a parenthetical; and (3) in subsection 4, concerning whether the phrase “unmanageable number of different work schedules in a work center” should be included as a criterion, withdraw the Employer’s proposal.  In regard to the latter, the Employer’s proposed wording is vague and could cause grievances.  Moreover, we believe that its interests are adequately addressed in Issue 17 concerning procedures for Employer determinations of adverse agency impact under the Act.

12.    Round Down Daily Rule (Credit Hours)

            a. The Union’s Position

            The Union proposes the following:

 “Round Down Daily” Rule.  This rule is used for computing daily or partial hours.  This rule requires that the entire time period be worked — no rounding up is allowed.  Thus, in order to earn a partial credit hour, an employee must work a full 15-minute increment.  Employees cannot carry-over any minutes worked that do not constitute a full 15-minute increment.  Example (illustrative only):  An employee under a gliding work schedule who works an additional 29 minutes (within the afternoon flexible time band) beyond the 8-hour work requirement will be credited for a ¼ credit hour, rather than for a ½ credit hour.

If the Panel adopts the words “credit hours taken” in Issue 3, this proposal should be included to provide procedures to calculate the earning of credit hours.

          b. The Employer’s Position

        The Employer’s position is that the Union’s proposal should be rejected because it pertains to the earning of credit hours.  The proposal is unnecessary because the earning of credit hours should not be an option within the FWS/CWS Program at Dover AFB.

 CONCLUSION

       Having reviewed the parties’ arguments in connection with this issue, consistent with our decision in Issue 3 that the Program include the earning and use of credit hours, we shall order the adoption of a modified version of the Union’s proposal.  In this regard, we shall remove the last sentence of the proposed wording which, although intended to be merely illustrative, refers to “gliding” work schedules, an option that is not part of the Program.

13.   Earning and Using Credit Hours

         a. The Union’s Position

      For the reasons provided under Issue 3, the Union proposes that employees be permitted to earn up to 4 credit hours per day.  It also proposes procedures that would govern the earning and use of credit hours. 

         b. The Employer’s Position

      For the reasons provided under Issue 3, the Employer would not permit employees to earn or use credit hours under the Dover AFB FWS/CWS Program. 

 CONCLUSION

      Upon reviewing their arguments and evidence concerning the implementation of a credit hours program as part of their AWS MOU, consistent with our decisions on Issues 3 and 8, we shall order the parties to adopt a modified version of the Union’s proposal.  Given that the Employer did not submit a proposal outlining procedures for earning and using credit hours, we are left with assessing the appropriateness of the Union’s proposed procedures.  In our view, with a modification in § D(2)(a)(1) of the Union’s proposal to state “employees may earn a maximum of one credit hour per work day and a maximum of 10 credit hours in a biweekly pay period,” we find the Union’s proposal reasonable.  Our modification limits the scope of the credit hours program and, in conjunction with the requirement that supervisor’s may demand prior approval before such hours are earned, should be of mutual benefit to employees and management.

14.    Substituting Regular Day Off for Leave

             a. The Union’s Position

   The Union proposes the following:

D.3. When an employee working under a compressed work schedule is scheduled to take approved leave on a workday, the employee may, upon approval of the supervisor, substitute the employee’s scheduled day off for the absence instead of the employee’s leave account being charged.  Documentation may be required by the supervisor.

The proposal should be adopted because it is in accordance with the “Introduction” to the MOU, where the parties agreed to “establish a versatile and innovative work schedule at Dover AFB.”  Further, the ability to substitute a regular day off for leave would be a way for employees to save leave.  Management has not provided a “legitimate argument” showing that this provision would be an additional burden or would interfere with assigning work. 

                 b. The Employer’s Position

           The Panel should order the Union to withdraw its proposal.  Supervisors are already responsible for ensuring coverage for their work centers based on scheduled days off as well as unscheduled leave. In addition, there are “unanticipated workload surges,” and the scheduling of “use or lose” leave to ensure that employees avoid losing leave at the end of the leave year.  Adding the responsibility of ensuring coverage when employees want to substitute their regular day off for leave “would only serve to complicate the supervisor’s ability to manage all aspects to ensure coverage for the work center.”  Regular days off should not be manipulated “simply for an employee to avoid using their leave.” 

 CONCLUSION

        On this issue, we are persuaded that the Union should withdraw its proposal.  The need for substituting a regular day off for leave has not been demonstrated.  Further, given that this is a new base-wide Program, the concept the Union is proposing is premature and could lead to considerable confusion.  In this vein, the Employer should be given the opportunity to evaluate the Program’s effectiveness before considering allowing employees such freedoms.

15.    Pilot Period and Timing of Evaluations

  a.    The Union’s Position

 The Union proposes that the Program be “periodically evaluated” to ensure it is in compliance with the Introduction, as well as the evaluation criteria outlined in the MOU.  First, a pilot period is not necessary because the parties have been under an AWS program for the past 7 years.  In addition, “most of the language” in the MOU has come from “proven sources,” such as the OPM Handbook.  There is no “legitimate argument” for the Employer’s proposal for a 2-year test period.  With the 6-month evaluation period the parties have already agreed to, this MOU becomes “a living document.”

       b.    The Employer’s Position

         The Employer proposes the FWS/CWS Program be tested for 2 years and “evaluated periodically” to ensure it is in conformance with the Introduction to the MOU as well as the parties’ evaluation criteria.  Implementing the program on a test basis, as opposed to permanently, provides the parties with the opportunity, at the end of the test period, to mutually determine if the Program should be made permanent, modified, or terminated.  To this end, it would be more appropriate to terminate it rather than have a Program that only one party supports.

CONCLUSION

       After carefully considering the parties’ arguments and evidence on this issue, we conclude that they should adopt a modified version of the Union’s proposal.  To the extent that the Employer interprets its proposal here, and in Issue 17, to permit it to unilaterally terminate the Program at the conclusion of the 2-year test period, it is inconsistent with the requirements of the Act.  In this regard, unless parties clearly and unmistakably agree otherwise, § 6131 of the Act provides the exclusive means for terminating an AWS.[5]/  Under these circumstances, adoption of the Employer’s proposal could effectively waive the Union’s statutory right to require the Employer to demonstrate to the Panel that an AWS is causing adverse agency impact.  Moreover, the Act also specifies that, notwithstanding the terms of any collective bargaining agreement (e.g., the parties’ MOU), if the head of an agency finds that a particular FWS or CWS has had an adverse agency impact, the agency shall promptly determine not to continue such schedule.  It also sets forth the specific procedures agencies are to follow when seeking the termination of such schedules.  Thus, to characterize the Program, as the Employer does, as existing only for a 2-year trial period could lead employees to believe that the Employer would not raise an allegation of adverse agency impact before the trial period ends.  It is also inconsistent with the Employer’s proposals elsewhere in the MOU to preserve its right to declare adverse agency impact over a proposal to implement a FWS/CWS at the “work center” level.  On the other hand, we find that the Union’s proposal that the Program be “periodically evaluated” is too vague.  Therefore, we shall order the parties to modify the Union’s proposed wording to add the following sentence: “The first overall evaluation for the Program will occur at the 1-year anniversary date of this MOU.”

16.   Evaluation Criteria

 a. The Union’s Position

         The Union proposes the following criteria for evaluating the Program:

 1) Mission requirements: The following factors will be considered:  (a) neutral or positive impact on productivity in terms of the Employer, component (i.e., tenant organizations), work center individual; (b) a positive or neutral impact to service to customers external to the Employer with a concomitant positive public perception, by extended work center coverage; (c) neutral or positive impact on coverage, availability, and timeliness regarding service to customers internal to the Employer; and (d) neutral or positive impact on the quality of service to all customers internal or external. 

 2) Management flexibility.  The following factor will be considered: neutral or positive impact on the ability of supervisors and managers to respond to the need for change in routine operation, and extraordinary situations.

 3) Work environment.  The following factors will be considered: (a) neutral or positive impact on the Employer-wide atmosphere of a shared sense of accountability, responsibility, open communications, and accommodation for the sake of both the mission and individual needs among all managers, supervisors, and employees; and (b) positive impact on employee morale.

 4) Management of the AWS program.  The following factors will be considered:  (a) a neutral or positive impact on AWS participants’ compliance with the BWR (including starting and quitting times, and use of lunch periods, and break periods), and the incidence of disciplining for abuse of such considerations; (b) simple yet effective time accounting systems; and (c) balance ease of management of the AWS program with providing participants the maximum variety of options. [Only the wording in bold is in dispute.]

The parties agreed in the Preamble of this MOU that Dover AFB would be identified as “the Employer.”  Thus, that portion of its proposal should be adopted because it more appropriately reflects what the parties agreed to.  The wording the Employer proposes (Group/Squadron/Flight/Section, etc.) is unnecessary because it is already covered under the definition of “work center” in §A(5)(j).  Including the phrase “a positive or neutral impact” is consistent with the MOU as a whole.  Finally, the words “accommodation for the sake of both the mission and individual needs among all managers, etc.” is better than what the Employer proposes because it is takes into consideration the intent behind the Introduction to the Program that has already been agreed to. 

            b. The Employer’s Position

       The Employer’s proposal states:

      3. Evaluation Criteria.  This program will be evaluated using the following criteria:

a.   Mission requirement.  The following factors will be considered: (1) neutral or positive impact on productivity in terms of Dover AFB, component (i.e. Group/Squadron/Flight/ Section, etc.), work center, and individual; (2) promote enhanced service to customers external to Dover AFB with the concomitant positive public perception, by extended work center coverage; (3) neutral or positive impact on coverage, availability, and timeliness regarding service to customers internal to Dover AFB; and (4) neutral or positive impact on the quality of service to all customers internal or external

 

b.   Management flexibility.  The following factor will be considered: neutral or positive impact on the ability of supervisors and managers to respond to the need for change in routine operations, and to extraordinary situations.

c.   Work environment.  The following factors will be considered: (1) neutral or positive impact on Dover AFB-wide atmosphere of a shared sense of accountability, responsibility, and open communication for accomplishing the mission while considering the individual needs among managers, supervisors, and employees; and (2) positive impact on Dover AFB morale.

d.   Management of the AWS program.  The following factors will be considered: (a) neutral or positive impact on AWS program participants’ compliance with Employer-scheduled work requirements (including starting and quitting times, and use of lunch periods, and break periods, etc.), and on the incidence of discipline for abuse of such requirements; (b) simple yet effective time accounting systems; and (c) balance ease of management of the AWS program with providing potential/possible work schedule options. [Only the wording in bold is in dispute.]

The Union’s proposal to characterize Dover AFB as the Employer should not be adopted because “it is an awkward term” and does not adequately “cover what we intend” as clearly as the term “Dover AFB.”  With regard to the Employer’s definition of component, it is in line with the dictionary definition.  The terms the Employer uses (Groups, Squadrons, Flights and Sections) are appropriate because they characterize how Dover AFB Wings are broken down.  The Union’s definition of component should not be adopted because tenant organizations are not in the normal chain of command.  Its proposal also specifies that “management is looking for enhanced service to our customers, not just positive or neutral impact the Union proposes.” As to the wording concerning “work environment,” the Employer’s proposal is clearer than the Union’s, whose reference to making accommodations for the sake of the mission and individual needs “doesn’t make sense.”  The last sentence in this section of the Employer’s proposal makes it clear that evaluating the Program at Dover AFB includes its effect on the morale of everyone at the base.  Finally, with respect to section 3d, the Employer’s wording focuses on the supervisors’ perspective, who must ensure that employees meet scheduled work requirements.  This is a management right and responsibility, and its “proposed language is needed here.”  Its reference to “potential and/or possible work schedule options” is also superior to the Union’s formulation because it is “in line with our General Provisions,” and there is nothing elsewhere in the MOU “to say the Program is providing employees a maximum variety of options.” 

 CONCLUSION

    After carefully reviewing the parties’ arguments and evidence concerning evaluation criteria, we are persuaded that the Employer’s proposal should be adopted to resolve the dispute.  Preliminarily, we note that the proposals are substantially similar and the dispute seems to turn on minor wording differences that should have been resolved short of the Panel having to issue a decision on the matter.  As this did not occur, however, we believe the Employer’s approach more accurately reflects the intent of Congress when it passed the Act, i.e., that “the use of flexible and compressed work schedules has the potential to improve productivity in the Federal Government and provide greater service to the public.”[6]/  In addition, we believe it would be inappropriate to evaluate the success of the Program on the basis of whether participants are provided with the “maximum variety” of work schedule options, as the Union proposes.   

17.    Program Termination

           a. The Union’s Position

           The Union proposes the following wording on § F(4):

A specific work schedule option will be terminated for the Employer, a component, or a work center only if there is evidence showing that the work schedule option in question is causing an “adverse impact” as defined in 5 U.S.C. § 6131(b).  “Adverse impact” means:  1) a reduction in the productivity of the Employer, a component, or work center; 2) a diminished level of services furnished to the Employer, a component, or a work center; or 3) an increase in the cost of the operations of the Employer, a component, or a work center (other than a reasonable administrative cost relating to the process of establishing and administering the work schedule in question.)

The Legislative history of the Act and the Panel’s precedent support this wording.  Furthermore, adopting the Employer’s proposal with words “substantially disrupted” could aggravate the parties’ relationship.  Moreover, the parties already agreed elsewhere in the MOU the conditions under which the Employer may restrict work schedule options.

             b. The Employer’s Position

             The Employer proposes the following:

4. Work Schedule Termination.  If the Employer determines that any group, flight, section, work center or individual at Dover AFB which is participating in this program is being substantially disrupted in carrying out its mission or function or is incurring additional cost because of such participation, the Employer may:

a. restrict employees’ choice of arrival and departure time,

 

b. restrict the use of work schedule options

  

c. exclude from such participation any employee or group of employees.

 

5. Conclusion.  Provisions of the program are not intended to interfere with management’s right to assign work, determine the mission or number of employees.  Employer decisions concerning individual requests for alternative work schedules are not subject to the criteria and review standards found in 5 U.S.C. 6131.  That standard (5 U.S.C. 6131) only applies if the installation commander, as the employer head, determines not to continue one or more of the schedules allowed by the alternative work schedule program options created in this MOU.  At the end of the two-year test period, this program may, with mutual consent of the parties, be made permanent or modified and tested.  If mutual agreement is not reached, the program will be terminated.

This proposal concerns circumstances when supervisors may terminate work schedules, and is not applicable to a determination by the head of the agency to terminate “a work schedule altogether from the program.”  It is a “manageable, negotiable process for termination” that covers this matter satisfactorily for supervisors’ use within the Dover AFB program.  The proposal also is necessary to clarify the intent of the Program regarding individual requests for AWSs.  The parties, for the most part have agreed to this process.  Negotiating the Program has been a “large undertaking” and, although the Employer is willing to give it a try on a test basis, it must be recognized that the Program may not work.  Rather than having a permanent Program, implementing it on a test basis allows both parties to mutually determine if the Program should be made permanent, or modified and retested.  If the parties do not “mutually agree,” the Program “is clearly problematic” and should be terminated. 

 CONCLUSION 

      Upon careful review of the arguments and evidence presented in this case, we shall order: (1) the adoption of the Union’s proposal on § F(4), with only one slight modification, and (2) that the Employer withdraw its proposal on § F(5).  In this regard, the Union’s proposal more accurately reflects the appropriate procedures the Employer must follow when making determinations to terminate an AWS, and does not conflict with procedures for approving or disapproving an individual employee’s request, which is addressed in Issue 11.  The Employer’s approach, on the other hand, attempts to maintain an unsustainable distinction between decisions by supervisors to terminate work schedules, which it asserts would not require a showing of adverse agency impact, and “terminating a work schedule altogether from the program.”  It also permits management to unilaterally terminate the entire Program at the end of 2 years.  In our view, for the reasons indicated previously in this decision, its adoption would be inconsistent with the requirements of the Act for terminating AWSs.  The only modification we shall order to the Union’s proposal is the addition of a sentence indicating that if the parties fail to reach agreement on whether the Employer has shown evidence that a specific work schedule is causing adverse agency impact, they may seek the assistance of the Panel.

18.    Types of FWS

 a. The Union’s Position

      The Union proposes that employees have the option of participating in variable day, variable week, maxiflex, and gliding schedules.  In accordance with its earlier proposal that the Program should include credit hours, it also refers to credit hours as one way to account for “missed core hours.”   Overall, the proposal is appropriate because it comports with the parties’ agreement to “establish[] a versatile and innovative work environment.”  The broader selection of schedule options would “balance employee interest for a family–friendly work schedule environment and the Employer’s mission.”  Essentially, the additional schedules would “offer maximum flexibilities for the employee and the Employer.”  Their ultimate suitability to the environment at Dover AFB would be evaluated under the criteria established in the MOU, and “any decision to exclude these schedules from the program at Dover AFB would be purely speculation and unsupported by evidence.”

b. The Employer’s Position

     In essence, the Employer proposes that the only FWS permitted at Dover AFB be a flexitour schedule; credit hours would not be permitted.  The Program would also include 4/10 and 5-4/9 CWSs, the only two CWSs currently being used at Dover AFB.  These are a “reasonable, manageable number of options,” and consistent with a survey that was conducted before negotiations began which indicated “no other work schedules were needed.”  More importantly, its proposal would permit managers to effectively balance the complexities of the “tremendous mission” of Dover AFB with “employee desires.”  As to the four additional flexible work schedules proposed by the Union, it “has provided no information to support the need” for them or “how they would work successfully in the Dover AFB program.” 

CONCLUSION

Having carefully reviewed the arguments and evidence presented by the parties regarding the types of FWS to be included in this Program, we believe that the Employer’s proposal provides the more reasonable approach.  In this regard, the Union’s proposal for several FWS options appears to be premature.  While it is undisputed that AWSs have been in place at Dover AFB for some time, this is the parties’ initial attempt to negotiate a base-wide program.  In our view, it is more appropriate for them to implement a limited number of FWS options under their Program, and assess their continued viability, prior to widening the types of FWS from which employees may select.  With regard to the Union’s proposal to include credit hours as an option for employees to choose from, we have addressed this matter under Issues 3, 8, and 13.  For the reasons set for therein, we shall modify the Employer’s proposed wording on core hours under this issue to include reference to credit hours.   

19.    FWS Tours of Duty

 a. The Union’s Position

 The Union proposes the following wording:

1) All hours of which flexible and core hours have been designated.  The employer establishes flexible and core hours.  Flexible schedules provide for flexible time bands at the start and end of the workday and may also allow for flexible hours at midday (during lunch break).  Employees must work during core hours.

 

4) Employees may flex in the beginning, in the middle, and the end of the administrative workday up to a maximum of 3½ hours per day subject to employer approval.

The Union’s position is that same as outlined under Issue 6, whereby it agrees to bargain over core hours and time bands at the appropriate level.  The Employer’s proposal to include the phrase “unless the employer declares adverse impact,” however, is moot because the parties are bargaining this agreement under § 7119 of the Statute; thus, declarations of “adverse agency impact” do not apply.  With regard to the Union’s proposal on core hours, the proposal reflects the different types of FWS proposed.  It is intended to “set procedures and time limits” for the parties to follow.

  b. The Employer’s Position

  The wording proposed by the Employer is as follows:

b. Tour of Duty:  Core hours and flexible time bands before and after the core hours will be negotiated at the Group level for the work centers in each group, if requested by the Union, unless the Employer declares adverse impact for a flexible work schedule.  The core hours include a standard lunch period.

 

c. Core hours:  An employee must account for missed core hours (if permitted) with leave or previously earned and documented compensatory time off.

The proposal should be adopted because it acknowledges that the Employer has an obligation to negotiate core hours and flexible time bands with the Union.  Timeframes to negotiate over core hours and time bands are not included because they would be unnecessary if management declares that the FWS would have an adverse agency impact.  Any negotiations required under this section would be conducted by applying the standard under § 7103 of the Statute, in accordance with its proposal under Issue 6.   

CONCLUSION

Regarding this issue, we shall order the parties to adopt the Employer’s proposals.  Its proposed wording concerning negotiations over time bands and core hours more accurately reflects what the parties already have agreed to.  While the Union takes issue with the Employer’s proposal to preserve its right to declare that a particular FWS has caused an “adverse agency impact,” as we have explained elsewhere in this decision, under the Act the Employer cannot be compelled to waive this right even if the Program, and resulting MOU, is negotiated under the Statute.  Concerning the Union’s proposal describing when employees may flex their hours under an FWS (Attachment 2, Section (b)(4)), it cannot be adopted because it reflects schedules beyond what the Panel has included under the Program.

20.   Application Forms

          a. The Union’s Position

The Union proposes the Panel adopt either form it has developed, or a modified version of the Employer’s form.  Modifications to the Employer’s form would include deleting the following: (1) the sentence: “Just as AWS is not mandatory for everyone, AWS may not be available for everyone, or choices may be limited; check with your supervisor”; (2) the word “Flexitour”; and (3) the sentences: “Indicate requested time from flexible time band before core hours” and “Indicate requested time from flexible time band after core hours.” 

 b. The Employer’s Position

      The Employer proposes to adopt its form without the Union’s proposed modifications.  The only part of the form in dispute is the portion pertaining to indicating the employee’s choice of time from the flexible time bands before and after core hours.  This information is necessary for the supervisor to know when an employee would prefer to arrive and depart.  Furthermore, supervisors need to know when employees will be available to perform certain duties.   

CONCLUSION

Having carefully considered the evidence and arguments presented in this matter, we shall order the parties to adopt a modified version of the Employer’s proposed application form because it more appropriate reflects the Program as addressed herein.  As to modifying the Employer’s form, we believe that a more logical place for the sentence, “Just as AWS is mandatory for everyone, AWS may not be available for everyone, or choices may be limited; check with your supervisor” would in the approval/disapproval section of the form.  All other aspects of the Employer’s form shall remain unchanged.   

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 § 2471.11(a) of its regulations hereby orders the following:

1.    Scope of the MOU 

 The Union shall withdraw its proposal.

2.    Employee Abuse of FWS/CWS Privileges 

 The parties shall adopt the Employer’s proposals.

3.    Establishing Individual Schedules

 The parties shall adopt the following compromise wording:    

 Definitions:

 a.    Alternative Work Schedules

        (2) Flexible Work Schedules (FWS)    

a) For full-time employees, has an 80-hour biweekly basic work requirement that allows an employee to determine has or her own schedule within the limits set by the Employer in concert with the provisions of this MOU.

b) For part-time employees, has a biweekly basic work requirement of less than 80 hours that allows an employee to determine his or her own schedule within the limits as set forth by the Employer in concert with the provisions of this MOU.    

Regarding the definition of the Basic Work Requirement, the parties shall adopt the Union’s proposal.

 

4.    Definition of Tour of Duty 

 

        The parties shall adopt the Employer’s proposal on § A(5)(c)(1).  They shall adopt the following compromise wording on § A(5)(c)(2):

 2)  Under a flexible work schedule, tour of duty means the limits set by the Employer in concert with this MOU within which an employee must complete his or her basic work requirement.  The tour of duty comprises all hours for which flexible and core hours have been designated.

5.    Length of the Workday

 The parties shall adopt the Employer’s proposal.

 

6.    Negotiations at the Work Center Level 

 

 The parties shall adopt the following compromise wording:

 

 1)  The Group Commanders will negotiate the existence of core hours/flexible time bands, if requested by the Union.  Within 20 calendar days of the request, the parties will meet and establish a negotiation schedule.

7.     Lunch Periods 

       The parties shall adopt the Employer’s proposal.

 

8.     Definition of Credit Hours

 

  The parties shall adopt the following modified version of the Union’s proposal: 

Employees working a flexible work schedule will be permitted to earn up to 1 credit hour per day, with supervisory approval.  Credit hours means those hours within designated flexible work schedules that an employee elects to work in excess of his or her basic work requirement so as to vary the length of a workweek or workday (depends on work schedules).  There is no legal authority for credit hours under a compressed work schedule.  The law provides for credit hours only for designated flexible work schedules.  Credit hours may be earned only in the performance of assigned and necessary work.

9.     Personal Hardship

 

  The Employer shall withdraw its proposal.

10.    Definition of Work Center

        The parties shall adopt the Employer’s proposal.

11.    Adverse Work Center Impact 

 

       The parties shall adopt the Employer’s proposal on § B(2)(b)(1).  They shall adopt the following modified version of the Employer’s proposal on § B(2)(b)(3):

  3) Temporarily, normally unforeseen surges in workload related to safety, security, emergencies (warlike conditions), weather, and/or natural disaster.

The Employer shall withdraw its proposal on § B(2)(b)(4).  The parties shall adopt the Employer’s proposal on § B(2)(b)(5).

12.     Round Down Daily Rule

        The parties shall adopt the following modified version of the Union’s proposal:

 “Round Down Daily” Rule.  This rule is used for computing daily or partial hours.  The rules require that the entire time period be worked – no rounding up is allowed.  Thus, in order to earn a partial credit hour, an employee must work a full 15-minute increment.  Employees cannot carryover any minutes worked.

13.     Credit Hours

        The parties shall adopt the following modified version of the Union’s proposal:

   2.     Earning/Using Credit Hours.    

        a. Earning Credit Hours.

1) Earned at the Employee’s Election.  Employees may earn credit hours in increments of no less than ¼ hour (15 minutes).  Employees may earn a maximum of 1 credit hour per workday and a maximum of 10 credit hours in a biweekly pay period.

2) Supervisory Approval for Earning.  Unless in a travel status, employees must notify their supervisor of the intent to earn credit hours.  At the supervisor’s discretion, supervisory approval may be required before an employee can earn credit hours.  If supervisory approval is required, the approval will be based on workload requirements.  An exception to the notification/approval requirement could be based on the following: Example (illustrative only):  If an employee is performing a task it is expected that the employee will finish the task rather than interrupting that process in an attempt to notify the supervisory and secure approval for credit hours.

b. Maximum Carry-Over.  Subject to D.2.d., Compensation below, full-time employees may carry from pay period to pay period up to 24 credit hours.  A part-time employee may carry forward to the next weekly pay period an amount of credit hours equal to ¼ of the hours in the employee’s biweekly BWR.

 

c. Using Credit Hours.  Employees may use earned credit hours in lieu of annual, military, or sick leave.  Credit hours may NOT be used to qualify an employee for premium pay.  Use of credit hours to cover periods of absence will be administered in the same manner as use of annual, military, and sick leave.  Supervisory approval is required before credit hours may be used.

d. Compensation.  Payment for a balance of unused credit hours occurs when an employee working under a flexible work schedule either leaves the employer, or changes to a fixed work schedule.  In those circumstances, the employee is entitled to compensation for unused credit hours.  Payment for credit hours is made at the rate for which they were earned.  To the maximum extent possible, the supervisor and the employee should plan work schedules so that the employee has no remaining balance of credit hours at the time the employee either leaves the employer, or changes to a fixed work schedule.

e. Annual Leave “Use or Lose.”  A credit hour balance is not a valid justification for carrying over “use or lose” annual leave.  Therefore, employees should schedule annual leave usage before credit hour usage when they are in a “use or lose” situation.

14.     Substituting Regular Day Off for Leave                 

             The Union shall withdraw its proposal.

15.     Pilot Period and Evaluation Timing

             The parties shall adopt the following modified version of the Union’s proposal:

Evaluation: The AWS Program will be periodically evaluated to ensure that it is in conformance with A3 Introduction above and with F3 Evaluation Criteria below.  The first overall evaluation of the Program will occur at the 1-year anniversary date of this MOU.

16.     Evaluation Criteria

    

   The parties shall adopt the Employer’s proposal.

17.     Program Termination 

        The parties shall adopt the following modified version of the Union’s proposal on § F(4):

4) Work Schedule Termination. A specific work schedule option will be terminated for the Employer, a component, or a work center only if there is evidence showing that the work schedule option in question is causing an “adverse impact” as defined in 5 U.S.C. § 6131(B).  “Adverse impact” means: 1) a reduction in the productivity of the Employer, a component, or a work center; 2) a diminished level of services furnished to the public by the Employer, a component, or a work center; or 3) an increase in cost of the operations of the Employer, a component, or a work center (other than a reasonable administrative cost relating to the process of establishing and administering the work schedule in question.)  If no agreement is reached, the parties may seek the assistance of the Federal Services Impasses Panel.

The Employer shall withdraw its proposal on § F(5).

18.     Types of AWS 

 

        The parties shall adopt the Employer’s proposal on Attachment 2, § A(1) through (5). § A(1)(c) shall be modified as follows:

 

c. Core Hours: An employee must account for missed core hours (if permitted) with leave, previously earned and documented compensatory time, or credit hours.  

 

19.    FWS Tour of Duty 

 

       The parties shall adopt the Employer’s proposals.

 

20.    Application Approval Forms

       The parties shall adopt the Employer’s form, modified by moving the sentence: “Just as AWS is not mandatory for everyone, AWS may not be available for everyone, or choices may be limited; check with your supervisor,” to the Approval/Disapproval section above the word “Modification.”

By direction of the Panel.

H. Joseph Schimansky
Executive Director

August 3, 2004
Washington, D.C.