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 |
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and LOCAL 1709, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO |
Case No. 97 FSIP 107
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DECISION AND ORDER
Local 1709, 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 between it and the Department of the Air Force, Dover Air Force Base, Dover AFB, Delaware (Employer) resulting from an agency determination to terminate a 4-10 compressed work schedule (CWS) under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. §§ 6120-6133.(1)
Following investigation of the request for assistance, the Panel determined that the impasse should be resolved on the basis of an informal conference to be followed by a single written submission from each party if the dispute were not resolved during the informal conference. Accordingly, Supervisory General Attorney Ellen J. Kolansky held an informal conference with the parties on August 5, 1997, but the dispute was not resolved. The parties then submitted written statements, and the Panel has now considered the entire record.(2)
BACKGROUND
The Employer's mission is to fly 32 C-5 aircraft which airlift passengers and cargo such as tanks, helicopters, trucks, and "74-ton . . . mobile scissors bridges," worldwide for the Department of Defense (DOD). In the Jet Engine Intermediate Maintenance (JEIM) function of the Component Repair Squadron, the organizational component affected by the dispute, the Employer overhauls TF-39 replacement engines for the C-5s(3) during two daily shifts (7 a.m. to 3:30 p.m. and 3 p.m. to 11:30 p.m.). The Union represents 700 employees in a stand-alone unit at Dover AFB. The 10 affected unit employees work as jet engine mechanics. They work on mixed 6-member crews along with a much larger number of active duty military employees; besides the civilian and military employees, the work is also performed by a number of contract employees from the Lockheed Corporation, and by similar teams at Kelly Air Force Base. Each crew tears down and reassembles the TF-39 engines that propel the C-5 aircraft; the civilian employees also provide training to the military members of the crew. The engines are rated by category; "category 7" refers to engines receiving the most extensive, complex, and time-consuming repairs and "category 1" refers to engines receiving the simplest and least time-consuming repairs. The parties are covered by a collective bargaining agreement (CBA) which is due to expire on June 14, 1998.
ISSUE AT IMPASSE
In accordance with section 6131(c)(3)(C) of the Act, the sole issue in dispute is whether the finding on which the Employer has based its determination to terminate the employees’ CWSs is supported by evidence that the schedules have caused an adverse agency impact.(4)
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Employer contends that the 4-10 CWS caused an adverse agency impact by reducing the productivity of the agency and increasing the cost of agency operations. This finding is chiefly based on data comparing the number of engines repaired during two 6-month periods: May through October 1996 when employees worked the CWS and November 1996 through April 1997 when employees worked a regular 5-8 schedule. The Employer states that during the 6-month period when employees worked regular hours, 28 engines were produced at an average of 283 crew hours per engine (a crew hour reduction of 38 percent); during the earlier 6-month period only 24 engines were completed at an average of 457 crew hours per engine.(5) In addition, during this same 1-year period, staffing was reduced by 23 percent. While the Employer admits that it is unable to apply laboratory controls to the data, it believes that the CWS is an independent variable; production levels, leave, including administrative leave for military employees, and the availability of spare parts represent dependent variables; over each 6-month period, the effect of such dependent variables remained constant. Currently, the inventory of spare engines has risen from 41 to 55, and the speed of production is not exceeding the flow of spare parts. Furthermore, the durability of the repairs made, which has been boosted by an improvement in spare part quality, is also contributing to the inventory gain since the frequency of engine repairs has been reduced. Returning employees to the 4-10 schedule would upset this balance attributable to the restoration of normal hours. The inventory goal of 70 TF-39 engines, set by DOD to meet a standard of war readiness, might be reached sometime next year if the status quo is maintained; at that point, the Employer states it would consider a return to CWS.
2. The Union’s Position
The Union believes that the Employer has failed to meet the burden of proof required under the Act. In this regard, it challenges the Employer’s use of crew hours because that measure essentially does not compare "apples to apples." The most accurate common denominator to use for comparison purposes is the actual man hours expended per engine repair; the team hour comparisons that the Employer uses do not reveal daily and hourly fluctuations that occur when employees are away on annual and sick leave. In addition, the Employer’s data is not adjusted for differences in the difficulty of repairs. Furthermore, military employees are frequently granted administrative leave during the workday for morale and welfare activities such as fishing and golf tournaments. Another piece of evidence disputing the Employer’s finding is a June 9, 1997, letter to Honorable Michael N. Castle, a Member of the House of Representatives from Delaware, who inquired about concerns raised by the Union. In the letter, the Department of the Air Force responds that "[i]t is true that the TF39 engine has not reached the projected serviceable spares goals, but it is primarily due to parts supportability problems;" the CWS is not mentioned.
Other factors outside of unit employees’ control also affect achieving the 70-engine inventory goal. These include that: (1) overhaul work is shared among two Air Force Bases, Dover and Kelly, and two sets of contractor teams supplied by the Lockheed Corporation; (2) reservists among the civilian employees are away on reserve duty for 2 to 6 weeks in the summer months and at least 1 weekend per month during the year; (3) inventories may drop when engines break down or are otherwise damaged; and (4) Dover AFB has not been assigned its own fair contribution to inventory levels. Regarding the latter point, without an inventory contribution level specifically for Dover AFB, the Employer’s offer to place employees on CWS when the inventory reaches 70 is disingenuous. Moreover, although the Union’s survey reveals that only 5 of the 10 bargaining-unit employees are interested in working the 4-10 CWS, the Employer has not attempted to ascertain how that smaller group of employees on CWS might affect productivity. Any impact, when the overall workforce is 49, however, would likely be relatively minor. Finally, a last consideration is the fact that the Employer has other means available to enhance productivity. These are: (1) curtailing the granting of administrative leave to military employees during work hours for "morale and welfare" activities; (2) assigning more military employees to overhaul engines; and (3) restoring the use of overtime.
CONCLUSIONS
Under section 6131(c)(3) of the Act, the Panel is required to take final action in favor of the agency determination if the finding on which the determination is based is supported by evidence that a CWS has caused adverse agency impact. Having considered the record before us, we conclude that the Employer has not met its statutory burden. Preliminarily, we note that the instant case arose because of the Employer’s determination to terminate a 4-10 CWS which existed for roughly 7 months in 1996. The Panel’s task in this case, therefore, is to evaluate whether the evidence upon which the Employer based its determination to terminate the schedule in October 1996 establishes that the 4-10 CWS caused an adverse agency impact. The evidence in the record provided by the Employer to support its determination to terminate the schedule, however, is based primarily on data collected during a 6-month period between November 1996 and April 1997 after the 4-10 CWS had already been terminated.(6) Therefore, it appears to be geared toward persuading the Panel that restoration of the previous CWS would have an adverse agency impact. For this reason, if for no other, we find that the Employer has failed to support its determination to terminate the schedule with evidence demonstrating that it caused an adverse agency impact.
Although we are persuaded on the basis of the preceding analysis that the evidence provided by the Employer, under the circumstances presented, is not in accordance with the basic framework established under the Act, we nevertheless believe that additional discussion regarding deficiencies in the Employer’s evidence would be instructive to these parties as well as to others who may face similar issues in the future. This is particularly pertinent in light of the fact that under § 6131(a) of the Act the head of an agency may seek to terminate a CWS at any point that he or she finds such a schedule has had an adverse agency impact.(7) In our view, the data the Employer presents does not conclusively establish that the affected employees’ compressed schedules have resulted in decreased productivity or increased costs to the agency. It is inconclusive, in part, because, as the Union indicates, crew-hour figures are too imprecise a method for comparing output on the two schedules. Without a more reliable measure for comparing the hours expended per engine repair, it is uncertain whether the "dramatic decreases," the Employer points out, "in the amount of time it takes to repair the more difficult category 4 through 7 engines" under the 5-8 schedule can be relied on. In addition, during the 6 months under CWS, the data reveal that a significantly greater proportion of the engines overhauled involved more time-consuming category 7 repairs (three more category 7 engines were produced); during that same period none came from category 1. By contrast, during the 6 months on standard hours, 10 of the 28 engines overhauled, nearly one-third, came from categories 1 and 2, again, the least time-consuming to perform. Since the Employer indicates that the increase in productivity occurred following a period when the workforce was reduced by 23 percent (April through September 1996, when employees were on CWS), as indicated previously, an accounting of the actual man-hours spent on each repair would serve to clarify the actual impact of the staffing reduction. Nor does the Employer explain why it opted to use crew-hours when man-hours would have provided a more precise method for measuring productivity.
Regarding the issue of costs, while the parties appear to agree that overtime was regularly scheduled when employees were on CWS, the Employer provides no information that establishes the cost of such overtime or links assigning increasing amounts of overtime to a need to make up for productivity losses attributable to CWS.(8) The Employer also indicates that employees used more sick and annual leave during the 6 months on CWS. Since it measures productivity based on crew hours, the impact of these absences is not assessed. We note in this connection that the Panel’s previous experience with CWS cases suggests that leave use usually decreases under CWS.
The foregoing discussion describes problems that we believe are inherent in the Employer’s methodology. Guidance in the legislative history of the Act indicates that "if a sufficient showing is made, the Panel must uphold the agency decision to terminate."(9) Consistent with such guidance, our purpose is not to fashion a standard of proof that is impossible to meet, but to provide additional guidance so that parties present the best evidence available along with a cogent narrative to explain how data and other non-numeric evidence support an adverse agency impact finding. Although we conclude today that the Employer has not made such a showing, in the future, if the Employer should find that the resumed CWS is having an adverse agency impact, following the negotiations specified in § 6131 (c)(3)(B) of the Act, the parties are not prevented from again seeking the Panel’s assistance. Should this occur, we would encourage the Employer to present information on the methodology used to collect its evidence. It is also expected, as discussed above, that the Employer would rely on evidence collected from the time period which prompted the finding, rather than on evidence collected after the fact. When productivity accomplishments of two time periods are being compared, to the greatest extent possible, such evidence should be presented in like units that permit a fair comparison. Finally, if cost is a factor being raised, the actual costs should be presented and the connection between the cost and the work schedule explained.
In cases such as this where the Panel determines that an agency finding is not supported by evidence that a compressed schedule has caused adverse agency impact, the Panel, under section 2472.11(b) of its regulations, is required to take "whatever final action is appropriate." In this case, the Employer has already implemented its decision and has placed affected employees on 5-day-per-week, 8-hour-per-day schedules. Given this circumstance, we are persuaded that restoring the affected employees to their prior schedules is the "appropriate final action" which should be taken. Accordingly, we shall issue an order which is consistent with this decision.
ORDER
Pursuant to the authority vested in it by section 6131(c) of the Federal Employees Flexible and Compressed Work Schedules Act, the Federal Service Impasses Panel, under section 2472.11(b) of its regulations, hereby orders the Employer to restore affected employees to their previous compressed work schedules.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
September 16, 1997
Washington, D.C.
1.Under a 4-10 schedule, employees work four 10-hour days each workweek and have one off day.
2.The Employer terminated the 4-10 CWS for all employees (unit and non-unit) essentially without bargaining in October 1996. After about 7 months on CWS, employees were returned to 5-day-per-week, 8-hour-per-day standard schedules, and overtime which had been scheduled on Fridays and 2 hours at the end of the first shift was discontinued. The Union filed an unfair labor practice (ULP) charge which was settled with an agreement by the parties to return to the bargaining table; apparently, under the settlement agreement, all employees remained on regular 5-8 schedules.
3.These airplanes and engines are no longer being manufactured.
4.5 U.S.C. § 6131(b) defines adverse agency impact as:
(2) a diminished level of the services furnished to the public by the agency; or
(3) an increase in the cost of agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed work schedule). 5.One crew hour is 1 hour an engine is in work by one assigned crew. In the first set of data presented at the informal conference, the number of additional engines produced on regular hours was listed as two. Following a challenge by the Union over the time periods being compared (April through September 1996 and October 1996 through March 1997) which included the work of two teams on a swing shift, the Employer revised its figures based on the time periods indicated in the text.
6.The sole piece of evidence that references a period prior to the implementation of the 4-10 CWS is on a single sheet of paper apparently dating from October 16, 1996, which appears to present the Employer’s original rationale for seeking to terminate the schedule. It was submitted as part of the Union’s request to the Panel for assistance. The relevant paragraph conveys "metrics data" on the average days in work of various categories of engines in 1992 and in 1996. This data is essentially undeveloped and is not referred to in any documents that the Employer submitted after the Panel asserted jurisdiction to substantiate its finding.
7.Under the scheme set forth in § 6131(c)(3)(A) and (B) of the Act, we believe that any data relied on by an employer should be collected before it proposes to terminate the schedule. The Act contemplates that such data would be presented to the exclusive representative during negotiations where, presumably, the union might be persuaded that the data establishes that an adverse agency impact has occurred. Should a union agree with an employer at this stage, the matter would be resolved without the need for Panel assistance.
8.The overtime hours worked are excluded from the Employer’s productivity figures.
9.S. REP. NO. 97-365, 97th Cong., 2d Sess. at 16.
(1) a reduction of the productivity of the agency;
Under section 6131(c)(3) of the Act and section 2472.11(a)(2) of its regulations, the Panel is required to take final action in favor of the agency head’s (or his delegatee’s) determination to terminate a compressed work schedule if the finding on which the determination is based is supported by evidence that the schedule has caused an adverse agency impact. If, however, the finding on which the determination is based is not supported by evidence that the schedule has caused adverse impact, the Panel, in accordance with section 2472.11(b) of its regulations, shall take "whatever final action is appropriate" to resolve the impasse. The Act’s legislative history clearly indicates that the Employer bears the burden of proving adverse agency impact.