ENVIRONMENTAL PROTECTION AGENCY REGION 1 BOSTON, MASSACHUSETTS and LOCAL 3428, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
In United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
LOCAL 3428, AMERICAN FEDERATION OF
Case No. 04 FSIP 84
DECISION AND ORDER
Local 3428, 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 Environmental Protection Agency (EPA), Region 1, Boston, Massachusetts (Employer).
After an investigation of the request for assistance, which concerns an hours of work agreement,1/ the Panel determined that the parties' dispute should be resolved through single written submissions. Pursuant to the Panel's determination, the parties were directed to submit their final offers and statements of position, with supporting evidence and arguments, regarding the issues.2/ The Panel has now considered the entire record in rendering this decision.
The Employer's mission is to protect the environment and public health through the enforcement of regulations and statutes. The Union represents approximately 610 bargaining-unit employees in two locations - the downtown Boston Federal Building and the separate New England Laboratory - 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 basically disagree over: (1) the alternative work schedule (AWS) options that should be included in their hours of work agreement; and (2) the time-accounting method.
THE POSITIONS OF THE PARTIES
1. Alternative Work Schedules
a. The Employer's Position
The Employer proposes to introduce a FlexiTour schedule with credit hours. This schedule would allow an employee to vary the starting and ending times "each day of the week within the agreed upon flexible time bands and, once approved, they would remain fixed until the Employer provides an opportunity for the employee" to change those times. As for credit hours, notification to the supervisor would have to occur in the preceding pay period, and they would be earned in accordance with 5 C.F.R. 610. The FlexiTour schedule would be introduced as a 1-year pilot program.3/
By including this schedule in the list of available AWS options - 5-4/9, 4/10 and Flexible4/ - employees would be "provide[d with] additional scheduling flexibility without causing an adverse agency impact or otherwise compromising the Employer's statutory and regulatory duties." Its proposed schedule offers a new element of flexibility, i.e., different starting and ending times for each day, which is not currently enjoyed by employees. Through this schedule, the supervisor will be able to "ensure that each employee's AWS does not interfere with the agency's obligation to maintain productivity, deliver services to the public in an undiminished manner, and avoid additional operational costs." Under the Gliding and MaxiFlex schedules proposed by the Union, on the other hand, it is uncertain whether these goals can be met. Specifically, the unfettered daily discretion permitted employees under these options may cause a coverage problem, which in turn could result in poor customer service. For example, if both employees in a two-person unit were on the Gliding schedule and they both chose not to arrive until 9:30 a.m. on a particular day, then the unit would not have coverage at the beginning of the workday, but the supervisor would be unaware of the lapse until after the fact. In addition, the daily task of monitoring an employee's time and attendance would be unwieldy.
b. The Union's Position
The Union's proposal includes both Gliding and MaxiFlex schedules. The Gliding schedule would allow full-time employees to work 8 hours per day, varying their arrival and departure times within flexible time bands, without supervisory approval. It also would require full-time employees to be present during core hours. Essentially, employees would have daily discretion as to starting and ending times as long as they were within the flexible time bands. Under the MaxiFlex schedule, full-time employees may "vary the number of hours worked on any workday and the number of hours in each work week to complete their basic work requirement of 80 hours in the biweekly pay period." Employees would: (1) vary their arrival and departure times within the flexible time bands; (2) have to be present during core hours on 8, 9, or 10 workdays in a pay period; and (3) be required to be at work for the core days.
Offering these schedules satisfies employees' "expressed preference for flexible start/stop times," as well as "allow[ing] them to balance family obligations and work needs, and eas[ing] commuting burdens." These schedules are successful at nine other EPA locations, as substantiated by affidavits from local Union representatives. The Employer's argument that productivity would drop if the Gliding and MaxiFlex schedules were adopted is "without evidence,  based on speculation [and] . . . unfounded." In conjunction with the provisions the parties have already agreed to, its proposal "provides for sufficient management controls . . . to guarantee the accomplishment of the Agency's mission without adverse impact." An inherent limitation of the Employer's proposal is the fixed starting/stopping times; this rigidity does not permit employees to adapt their schedules to daily needs.
Having carefully reviewed the evidence and arguments presented in support of the parties' positions, we conclude that the Employer's proposal provides the better basis for resolving the impasse. In our view, an incremental increase in flexibility is the superior approach based on the Employer's concerns over coverage, and its need to continue to meet mission requirements. The addition of its proposed schedule to the list of AWS options the parties have already agreed to also should ensure that employees have greater flexibility in balancing their personal and work lives without placing undue administrative burdens on management. Accordingly, we shall order the adoption of the Employer's proposal.
2. Time-Accounting Method
a. The Employer's Position
The Employer's proposal would require employees to use their badges to "swipe in" when they enter the workplace and "swipe out" each time they leave, except for emergency situations. Management would "generate reports only at the request of a supervisor who suspects an individual of time/attendance abuse." In addition, after notification in writing, other methods of accounting for an employee's time may be imposed
if managers or supervisors have cause to believe that the record generated by the 'swipe in/out' method does not accurately account for time spent by the employee in performing his or her assigned work.
If time and attendance abuse occurs, the Employer also could require an employee to return to the regular 5/8 schedule and initiate appropriate disciplinary action.
Based on the number of flexible and compressed work schedules offered to employees, it is unlikely that managers and supervisors will "work the same hours as their staff and, consequently, [they will be] less able to use personal observation to provide affirmative and objective evidence of hours worked." Due to this lack of direct oversight, managers and supervisors are apt to rely more heavily on objective information in monitoring employee hours. By contrast, PeoplePlus, the system proposed by the Union, "does not generate time-accounting reports nor provide any other objective means by which a supervisor can verify that an employee was indeed present." Therefore, no reliable external data would be available to compare against an employee's "self-certified" time. This lack of objective information would hinder the Employer's ability to appropriately monitor the staff's work hours.
b. The Union's Position
The Union proposes that PeoplePlus be the time-accounting method used by employees approved to work AWSs (flexible and compressed work schedules). Employees would be required to enter their starting and ending times into the comment field of the computerized system on a daily basis. In accordance with EPA policy and procedures, more restrictive methods may be imposed "when the Employer has a reasonable suspicion of time abuse by an employee."
The "PeoplePlus [system] has been officially chosen by EPA as its timekeeping system for all of its 18,000 employees, and is, therefore, an appropriate methodology that meets OPM's requirements for accountability." In addition, the information provided by EPA regarding PeoplePlus specifically addresses the systems ability to serve as a time accounting tool for Gliding schedules and maxiflex. In this regard, "the Employer's claim that PeoplePlus is not an 'adequate time accounting method' is, therefore, demonstrably untrue." Since the Employer's proposal does not encompass a system for those employees who are routinely performing work off-site, it is "operationally problematic and unrealistic." PeoplePlus is preferable because it allows for equitable treatment of all employees, and would not prevent appropriate action from being initiated if misconduct or abuse occurs. In addition, "the Employer simply has not demonstrated that there will be a need to increase supervision of employees."
Having thoroughly considered the evidence and arguments offered by the parties in this dispute, we are persuaded that the Employer's proposal would provide the more suitable solution. The badge swipe in/out system provides affirmative, objective, and reliable information regarding an employee's hours of work primarily because it creates a contemporaneous record. The PeoplePlus system would not ensure that an employee's arrival and departure times are recorded accurately, and appears to have been implemented at EPA for a wholly different purpose. For these reasons, we shall order the adoption of the Employer's proposal to resolve the impasse.
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