United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
| In the Matter of
DEPARTMENT OF DEFENSE MILITARY ENTRANCE PROCESSING STATION - SAN ANTONIO FORT SAM HOUSTON, TEXAS |
Case No. 99 FSIP 155 |
|
and LOCAL 28, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO |
DECISION AND ORDER
Local 28, Laborers International Union of North America, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Defense, Military Entrancing Processing Station - San Antonio, Fort Sam Houston, Texas (Employer or MEPS).
Following an investigation of the impasse, which arose from negotiations over an initial collective bargaining agreement (CBA), the Panel determined that the dispute should be resolved through the issuance of an Order to Show Cause (OSC) why the Panel should not order the adoption of the following wording to resolve the dispute:(1)
The parties agree to permanently adopt these procedures absent the agency declaring adverse agency impact. If the agency declares adverse agency impact during the trial period or at the completion of the trial period the parties agree to negotiate as appropriate.
After considering the entire record, including the parties’ statements of position, the Panel would issue a binding decision to resolve the dispute. The parties submitted written statements of position, and the Employer proposed alternative wording, pursuant to this procedure. The Panel has now considered the entire record.
BACKGROUND
The Employer is responsible for processing all applicants and basic training recruits for the Armed Services "on the day they report to the [MEPS]." MEPS – San Antonio is one of 65 MEPS Centers around the country. The Union represents 23 General Schedule employees who give physical examinations to applicants, operate and maintain computer systems, and provide administrative support. MEPS - San Antonio also has approximately 26 others on its staff, including several management officials, some 20 uniformed military personnel, and a doctor or registered nurse. The Union was certified as the exclusive representative of the bargaining unit in October 1998.
ISSUE AT IMPASSE
The parties disagree over whether the Employer should be permitted to terminate their previously agreed to 5-4/9 compressed work schedule (CWS)(2) while the Panel determines if the Employer has met its burden of proof under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. §§ 6120-6133.(3)
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union believes that "the previously agreed to" wording should be adopted. Permitting management "to unilaterally terminate [C]WS at the conclusion of the trial period would violate the statute." Further, "it is in the interests of both parties to adhere to the statute as it pertains to this issue."
2. The Employer’s Position
The Employer proposes the following wording:
In the event adverse agency impact is declared at the end of the trial period, employees revert to previous hours of work pending a decision from the FSIP. The agency will make every effort to comply with an employee’s desired work hours. However, both parties stipulate, that supervisors still retain the right to set-up or change work schedules to avoid an impact on daily operations.
Congress has mandated that MEPCOM "would have the sole responsibility to ensure that only the highest caliber men and women would be accepted to serve as part of this country’s national defense." As a result, "there is very little room for error in completing this mission." The same-day processing requirement, along with the fact that its daily operations are at the "total mercy" of the recruiting services, are the main reasons that CWSs "have not been instituted in operational areas of any MEPS nationwide." In addition, there are many phases in the processing of applicants and recruits, and "immense" coordination requirements. A "bottleneck in one phase" of the process "can domino into catastrophic delays." Thus, because of MEPS - San Antonio’s "unusual mission," the Employer’s proposal should be adopted instead of the Panel’s OSC wording. Finally, its "operational challenges" are similar to those of another agency in a recent decision where the Panel terminated a CWS at the conclusion of a trial period.(4)
CONCLUSION
After carefully reviewing the evidence and arguments presented by the parties, we conclude that the Employer has failed to demonstrate why the wording in the OSC should not be adopted to resolve the dispute. In essence, the Employer contends that its mission is so unique that extraordinary safeguards are warranted when it comes to the issue of CWS. In our view, however, its arguments are more appropriately raised in the context of a case under the Act than under the Statute.(5) Moreover, given the various statutory rights that the Employer already possesses concerning CWS, additional safeguards appear unnecessary. Thus, under § 6131(a) of the Act, "notwithstanding . . . any collective bargaining agreement," if the agency head determines that the parties’ previously agreed to 5-4/9 CWS is causing an adverse agency impact, the Employer may reopen the agreement to seek termination of the schedule;(6) if the parties reach an impasse over the issue, the Panel "shall rule on such impasse not later than 60 days after the date the Panel is presented the impasse."(7) In addition, the Employer’s right under 5 U.S.C. § 7106(a)(2)(D) of the Statute "to take whatever actions may be necessary to carry out the agency mission during emergencies" presumably also would continue to apply while the CWS is in effect. Accordingly, we shall order the adoption of the wording in the OSC.
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 following wording:
The parties agree to permanently adopt these procedures absent the agency declaring adverse agency impact. If the agency declares adverse agency impact during the trial period or at the completion of the trial period the parties agree to negotiate as appropriate.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
October 28, 1999
Washington, D.C.
1.This wording was part of an “agreement” over the same issue in a previous case, Case No. 99 FSIP 131, which later became a matter of controversy between the parties. As an alternative to litigation in other forums, the Union filed the instant request for assistance, and the Panel determined to assert jurisdiction and resolve the parties’ dispute on its merits. In addition, the phrase “these procedures” in the OSC wording refers to preceding portions of Article 17 of the parties’ initial CBA which have been agreed to and are not before the Panel.
2.Under a 5-4/9 CWS, employees work eight 9-hour days, one 8-hour day, and have one regular day off each pay period. The parties in this case have agreed to implement the CWS for a trial period of 90 days.
3.The Act’s legislative history clearly indicates that the Employer bears the burden of demonstrating that an existing CWS has caused an adverse agency impact. S. REP. NO. 97-365, 97th Cong., 2d Sess. at 16. 5 U.S.C. § 6131(b) defines adverse agency impact as:
(1) a reduction of the productivity of the agency;
(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). 4.Department of the Navy, Trident Refit Facility, Kings Bay, Georgia and Local Lodge 2783, District 112, International Association of Machinists and Aerospace Workers,
AFL-CIO, Case No. 99 FSIP 60 (May 11, 1999), Panel Release No. 420.
5.In fact, it was in the context of the requirements of the Act that the Panel decided the previous case cited by the Employer in support of its position.