In United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of  ENVIRONMENTAL PROTECTION AGENCY REGION 2 NEW YORK, NEW YORK
and LOCAL 3911, AMERICAN FEDERATION OF   GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 04 FSIP 76

 DECISION AND ORDER

    Local 3911, American Federation of Government Employees, AFL-CIO (Union) and the Environmental Protection Agency (EPA), Region 2, New York, New York (Employer) filed a joint 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.

    After an investigation of the request for assistance, which concerns the implementation of an alternative work schedule program, the Panel determined that the parties should participate in a teleconference with a Panel representative to attempt to resolve the issues in dispute.^[1]/  The parties also were informed that, in the event they were unable to resolve the matter during the teleconference, they would be notified of the next step in the dispute resolution process. 

Pursuant to the Panel's determination, Panel Representative (Staff Attorney) Julie Murphy conducted a teleconference with the parties on June 24, 2004, but the issue was not resolved. Thereafter, the parties were directed to submit their final offers and statements of position, with supporting evidence and arguments, regarding the issue.  The Panel has now considered the entire record in rendering this decision.

BACKGROUND

    The Employer’s mission is to protect the environment and public health through the enforcement of regulations and statutes.  The Union represents approximately 800 bargaining-unit employees, located in New York, New Jersey, Puerto Rico, the Virgin Islands, and the Caribbean, who work in positions such as engineer, scientist, environmental protection specialist, and clerk, at grades GS-3 through –14.  The parties’ master collective bargaining agreement (MCBA) expired in September 1997.  Until a successor agreement is implemented, the terms of the MCBA remain in effect.

ISSUE AT IMPASSE

    The parties disagree over the method of accounting for the time and attendance of employees who are on 4/10 compressed work schedules (CWSs).

THE POSITIONS OF THE PARTIES

1.  The Employer's Position

    In essence, the Employer would require employees on a 4/10 CWS to sign in and out in the order they arrive and leave on a daily log maintained in their branch.  A clock in the office would be designated for use in connection with this process.  No one would be permitted to sign in or out for any other person.  If an employee is also participating in the flexiplace program, “reporting for duty” and “leaving work” e-mail messages would be used instead.  Employees who fail to follow these procedures or misrepresent actual arrival and departure times could be returned to a regular 8-hour work schedule or be disciplined, and management also could return employees with attendance or lateness problems to a regular 8-hour schedule. 

    The adoption of its proposal, which would continue the current practice in Region 2, is necessary to comply with Federal requirements that agencies establish time-accounting methods which provide “affirmative evidence” that employees subject to the 4/10 CWS have worked the proper number of hours in a biweekly pay period.  In this regard, managers and supervisors work either a 5-4/9 or non-compressed schedule, and are unlikely to be present when non-supervisory employees working such schedules are starting and ending their shifts.  No managers or supervisors are permitted to work a 4/10 CWS, however, so they would be unable to affirm that employees on such schedules are working the proper number of hours.  Its proposed procedure also is “fair and convenient to employees,” as confirmed by the Panel in a previous decision involving the same issue.^[2]/  The fact that employees on 5-4/9 and 4/10 CWSs are subject to different rules is not unfair, given that supervisors “are available to track visually the schedule of employees on 5-4/9 in a way they are not for 4/10.”  Finally, its proposal to require employees on a 4/10 CWS to sign in and out also is consistent with the EPA Headquarter’s agreement governing employees represented by the National Treasury Employees Union (NTEU), and comparable to provisions in “numerous” other collective bargaining agreements (CBAs) throughout the Federal sector.

2.  The Union's Position

    Basically, the Union proposes that employees on a 4/10 CWS be required to sign in and out on a daily log maintained in their own branch during a 6-month probationary period.  After employees have successfully concluded the probationary period, they would revert to “Work Output Assessment” as their time-accounting method, whereby supervisors would determine the reasonableness of the work output for the time spent and also make occasional visits or telephone calls to employee workstations during scheduled work times.  Employees participating in the flexiplace program would be required to submit “reporting for duty” and “leaving work” e-mail messages in lieu of the in-office sign-in procedure during the probationary period.  If an employee fails to regularly follow the sign in/out procedures during the 6-month probationary period, the Employer would be permitted to remove the employee from the 4/10 CWS or require an additional 6-month sign in/out period.  In addition, if an employee misrepresents arrival or departure times, disciplinary action may be initiated.  Such action would be done in accordance with the Employer’s progressive discipline policy.  After completing the 6-month probationary period with no documented time and attendance problems, an employee who voluntarily stops participating in a 4/10 CWS but subsequently chooses to work the schedule again would not be required to complete another 6-month probationary period.  If employees voluntarily elect to stop participating in a 4/10 CWS before completing their 6-month probationary period, however, and later choose to continue with the schedule, they would be required to sign in/out for an additional period so that a total 6-month probationary period is completed.

    The peculiar circumstances under which the current sign in/out procedure was implemented justifies the conclusion that it does not represent the status quo, so the Employer should be required to demonstrate why measuring employee time and attendance via observation and work output assessment needs to be changed.  In this connection, the Union is “unaware of any studies done by the Employer” to support its position that supervisors would be less likely to observe abuse of starting and ending times because they are not permitted to work 4/10 CWSs.  Rather, the data show that “most employees working a 4/10 or 5-4/9 CWS are ‘unsupervised’ at worst for a period between 1-1.5 hours during the workday, regardless of the AWS schedule chosen” (emphasis in original).  Moreover, because supervisors on a 5-4/9 CWS are off an entire day per pay period, and many employees on CWSs also telecommute several days a week, “the Employer’s argument that a 4/10 CWS creates a unique situation of employees working for prolonged periods non-supervised is disingenuous.”  Its reliance on a previous Panel decision also is misplaced because that case involved a flexible work schedule where start times varied each day, while employees on a 4/10 CWS have the same start time every day.  

    The Union’s proposal should be adopted because, among other things, it “provides dignity and respect to the bargaining unit employees of Region 2,” and would enhance employee morale, both of which are required by the parties’ MCBA.  In this regard, most unit employees are professional engineers and scientists “not accustomed to micro-management of their time.”  Unlike the Employer’s, it does not breach the “spirit” of the MCBA because it would monitor employees’ time and attendance across the entire national unit through management observation and work output assessment, nor does it single out those on a 4/10 CWS as unworthy of being trusted.  The proposal also is consistent with: (1) the practice at the other two EPA locations where employees represented by AFGE currently are permitted to work a 4/10 CWS, and (2) the results of a Union survey which show that “employees would accept a probationary period.”  Finally, its approach addresses the Employer’s need to identify potential violators early on and future violators as they arise, and would apply “progressive discipline” without “intruding on the remaining employees who adhere to their work schedules.”

CONCLUSIONS

    Having thoroughly considered the evidence and arguments offered by the parties in their long-standing dispute over the time-accounting method for employees on a 4/10 CWS, we conclude that the Employer’s proposal provides the better basis for resolving the impasse.  In our view, given the wide variety of work schedule options enjoyed by the unit employees in Region 2, it is not unreasonable for the Employer to insist that those who voluntarily select a 4/10 CWS be held to a higher standard of accountability, particularly in light of the fact that supervisors’ work schedules do not readily permit direct observation of their arrival and departure times.  The Employer’s approach is also consistent with the recently negotiated agreement between EPA Headquarters and NTEU, and CBAs between employers and unions at other Federal agencies.  The Union’s proposal for a probationary period, on the other hand, appears to miss the point that the need for accountability is ongoing, not temporary.  Accordingly, we shall order the adoption of the Employer’s proposal. 

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 parties' failure 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: 

    The parties shall adopt the Employer's proposal.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

July 19, 2004
Washington, D.C.