United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Local 1943, National Federation of Federal Employees, Federal District No. 1, IAM&AW, 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 the Navy, Naval Aviation Depot (NADEP), Jacksonville, Florida (Employer).

    Following investigation of the request for assistance, concerning 27 issues which arose during the parties’ negotiations over the relocation of employees, the Panel asserted jurisdiction and directed the parties to resume negotiations, on a concentrated 2-day bargaining schedule, with Federal Mediation and Conciliation Service Commissioner John Lee. Panel Representative (Staff Attorney) Donna M. DiTullio also attended the meeting. During the session, the parties were able to reach agreement on 17 issues; thereafter, during two teleconferences with Ms. DiTullio, the parties further reduced the number of issues in dispute to two. The Panel then directed the parties to submit their final offers and written statements of position, with supporting argument and evidence. After considering the entire record, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision. Written submissions, including rebuttal statements, were made pursuant to this procedure, and the Panel has now considered the entire record.

BACKGROUND

1. Location of Contractor Personnel

    a. The Union’s Position

    Essentially, the Union proposes that contractor personnel not be stationed within Government leased and/or controlled space in Buildings 338, 832, and 1821 at Cecil Field. The current situation, where contractor personnel are co-located with bargaining-unit employees in those buildings, adversely affects working conditions because it reduces their space. Allowing contractor personnel free use of Government space and equipment increases the cost of doing business and adds to the Government’s overhead which makes labor rates for unit employees artificially high; this could become a factor should the Employer determine to contract out work that they now perform. Furthermore, co-location tends to encourage certain interactions between unit employees and contractor personnel which are prohibited by the Federal Acquisition Regulations, Government Rules of Ethics, and applicable agency rules and regulations. Under the Department of Defense Standards of Conduct (SOC), contractors ordinarily are required to furnish all property necessary to perform Government contracts; here, the Government is providing office/work space to contractors, potentially in violation of the SOC. Over the years, the Union has complained to the Employer regarding problems with contractors; the move to Cecil Field may be an opportune time for the Employer to rectify the situation and comply with governing laws, rules, regulations and instructions concerning contractor personnel.

    Contractors also are performing work which is outside the scope of their "statement of work," a prohibited practice under agency and Government-wide rules and regulations. If contractors were not co-located with Government employees, there likely would be less opportunity for contractors to "cross the line." The Employer’s efforts to segregate contractor from Government personnel have been ineffective, if not nonexistent; therefore, a physical relocation of contractor personnel is needed so that contractors are more likely to perform only contract support services and not personal services for the Employer. Finally, the Employer is not complying with restrictions on contracting contained in the parties’ CBA and, contrary to the Employer’s contentions, its proposal is negotiable under 5 U.S.C. § 7106(b)(1)-(3).

    b. The Employer’s Position

    The Panel should decline to retain jurisdiction over this issue for a number of reasons. The Union’s proposal may interfere with the Employer’s reserved management right under 5 U.S.C. § 7106(a)(2)(B) of the Statute to make determinations with respect to contracting out work; arguably, included within the scope of this right, management is entitled to make decisions to allow contractors to use Government- leased space. Moreover, since the move to Cecil Field does not represent a change concerning the Employer’s relationship with its contractor employees, there may not be any change subject to negotiations.

    Alternatively, in the event that the Panel determines to retain jurisdiction on this issue, it should resolve the dispute on the merits by permitting the Employer to continue to use contractor personnel to provide support services, or other contract requirements, within its facilities at Cecil Field. Reasonable efforts would be made by management to segregate, where practicable, Government employees from contractor personnel, develop contractor badge requirements, telephone procedures, and sign-in-and-out rules to reduce the likelihood of conflicts of interest. It is necessary for contractor personnel to continue to work within the Employer’s facilities to ensure efficient operational support for the Employer’s primary customer, the U.S. Navy Fleet. Steps would be taken, however, to control the actions of contractors within the Employer’s space in order to reduce the likelihood of conflicts of interest and ensure that contractors do not perform "personal services" for the Employer.

CONCLUSIONS

2. Compressed Work Schedules

    a. The Union’s Position

    In essence, the Union proposes that employees who were relocated to Cecil Field, and all full-time employees affected by the relocations at the Jacksonville Electric Authority (JEA) Building in downtown Jacksonville, the Lake Gray facility, and Buildings 2, 168 and 101UA at the NAS JAX, be given the option of working a standard schedule 8-hour-a-day schedule, a 5-4/9,⁽³⁾ or a 4/10 CWS.⁽⁴⁾ Employees who work under a CWS would be permitted to select fixed starting times between 6 and 8:30 a.m. The 4/10 CWS would be subject to a 12-month test period, during which the Employer would be prevented from making unilateral changes to the schedule, or review it, prior to its conclusion. The criteria for evaluating the 4/10 CWS would be "developed mutually" by the parties and, at the end of the test period, the schedule would remain in effect, unless both parties agree to its discontinuance. Only Fridays could be taken as the CWS day off, with no more than 65 percent of the eligible workforce scheduled off on either Friday in a bi-weekly pay period. Team consensus would determine which Friday during the pay period an employee would have off, and disputes among team members typically would be resolved on the basis of seniority status. Disputes between the parties over work schedules would be resolved through "partnership" discussions between the Department site manager and the Union’s representative; however, an employee who is dissatisfied with the outcome may file a grievance. Department and Division managers, in partnership with the Union, would have the responsibility of reviewing and approving employee requests for work schedule exceptions based upon personal hardship. Branch managers would be responsible for coordinating appropriate work schedules, as determined by team consensus; time keeping; maintaining leave and attendance records; and providing new personnel with forms and copies of the negotiated instruction on workhours. Employees who work beyond their scheduled number of hours in a duty day would be compensated, at the employee’s election, with either overtime pay or compensatory time.

    The proposed work schedule options should be extended not only to employees relocated to Cecil Field, but to all employees who were affected by moves at the Employer’s facilities.⁽⁵⁾ No test period for a 5-4/9 CWS is needed because employees at NADEP in Jacksonville had CWS "for many years" and there is no evidence that it resulted in an adverse impact upon agency operations. Furthermore, the Employer has no "hard evidence" that either CWS would result in an adverse agency impact; rather, it relies only on speculation that implementing both a 4/10 and 5-4/9 CWS would adversely affect office coverage, customer service, and prevent employees from working together as a team. In this regard, under its proposal, supervisors would retain the ability to limit the use of either alternative work schedule if office coverage becomes a concern.

    Adding a 5-4/9 and 4/10 CWS to employee work schedule options would promote a family-friendly work environment. Moreover, compressed schedules may serve to reduce the amount of annual and sick leave used by employees, and a longer workday may reduce the amount of compensatory time and overtime authorized by the Employer. Since Federal employees do not earn the salaries of their private sector counterparts, they should be given the benefit of greater flexibility in their work schedules. A Union survey shows significant employee interest in being able to work under a 5-4/9 or 4/10 CWS. These schedules, which extend the duty day, would allow employees to better support the Employer’s customers in the Midwest and on the West Coast. Since engineering positions are more than "one deep," appropriate job skills would be maintained even on days off, thereby ensuring coverage for work. Finally, employee efficiency and effectiveness is not likely to deteriorate under a CWS because employees would still receive the same level of supervision from the Employer and employees would continue to work in teams under the leadership of team leaders who are bargaining-unit members.

    b. The Employer’s Position

    Any test of the 5-4/9 CWS should be limited to employees relocated to Cecil Field because other employees who moved from the downtown JEA Building to NAS JAX did not experience a change but simply moved back to NAS JAX as originally planned. The Union’s request for Panel assistance did not include a proposal to extend CWS to NAS JAX employees; rather, it only referenced bargaining with respect to the move to Cecil Field. Moreover, the parties have not bargained or had mediation assistance over the issue as it concerns employees stationed anywhere but Cecil Field. The Union’s opportunity to extend CWS to the entire bargaining unit should be addressed during term negotiations and not during impact-and-implementation bargaining over a relocation of only some members of the unit to Cecil Field.

    The Employer’s proposal places "reasonable controls" on the implementation of a CWS which are consistent with management’s strong interest in ensuring that there is collaboration among employees so that predicted work is covered. Furthermore, the proposed schedule balances employee interest in a family-friendly work environment with the Employer’s need to assure that operations are carried out efficiently and effectively. Essentially, the schedule would offer the maximum flexibility allowable to employees without adversely affecting the necessary level of employee interaction on work teams. Employee fatigue from working a longer day, and commensurate loss of productivity, would be less severe under a 9-hour-day schedule than under the Union’s proposed 10-hour workday. Finally, the 20-percent increase in hours of supervision under a 5-4/9 CWS would not be as burdensome on management as the projected 34-percent increase in supervisory coverage which would be required under a 4/10 CWS.

CONCLUSIONS

    While favoring the Employer’s proposal to test a single CWS, we are nevertheless persuaded that there are some areas where it is in need of modification. For one thing, the parties shall be directed to continue the 5-4/9 CWS during any reopener negotiations that may occur.⁽⁷⁾ In addition, we shall remove the portion of the proposal which would require employees’ 8-hour days to coincide with Federal holidays [Section 11.b.(2)]. Such wording appears to be inconsistent with 5 C.F.R. § 610.406, as well as the legislative history of the Act.⁽⁸⁾ The Employer’s proposal shall also be modified to allow an employee who elects to exercise the 5-4/9 CWS option to begin work at a fixed time each day at any 15-minute increment between the hours of 6 and 8 a.m. An employee’s starting time would be determined with supervisory concurrence, and remain the same throughout the trial period unless supervisory approval is obtained for a deviation. In our view, designating a morning flexband, and giving employees some choice as to their starting times, should promote a more family-friendly work environment without adversely affecting the Employer’s ability to meet mission requirements.⁽⁹⁾

    As to the Union’s proposal, it appears to provide the Employer with virtually no control over the work schedules selected by employees, which could lead to difficulties in providing timely customer service, as well as employee supervision. Furthermore, that portion of the Union’s proposal which would give employees the option of receiving overtime pay or compensatory time for work beyond their scheduled duty day may be contrary to the Fair Labor Standards Act, which requires that certain employees, depending upon whether they are non-exempt by virtue of their grade level, must receive overtime compensation for work performed beyond their duty day. Finally, the requirements under the Union’s proposal that certain management officials and supervisors perform various duties relating to the administration of the parties’ agreement on work schedules may be contrary to management’s right to assign work under 5 U.S.C. § 7106(a)(2)(B). For all of the above-stated reasons, we shall order the adoption of the Employer’s proposal as modified herein.

1. Location of Contractor Personnel

    The parties shall adopt the Employer’s proposal.

2. Compressed Work Schedules

An employee who works under a 5-4/9 CWS shall begin work at a fixed time each day at any 15-minute increment between the hours of 6 and 8 a.m. The employee’s starting time is to be determined with supervisory concurrence and shall remain the same throughout the 9-month trial period unless supervisory approval is obtained for a deviation.

The 5-4/9 CWS shall remain in place in the event that the parties reopen their negotiations to determine whether the it should continue to be implemented as tested, modified or terminated.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

March 16, 2000

Washington, D.C.

1.Having adopted the Employer’s proposal on the merits, it is unnecessary for the Panel to address the Employer’s allegations that the Union’s proposal is outside the duty to bargain.

2.To the extent the Union believes that the Employer’s current practices violate applicable laws and regulations or the terms of the parties’ CBA, such claims are more properly addressed in other forums.

3.During a biweekly pay period, employees who have a 5-4/9 CWS work 9 hours for 8 days, 8 hours for 1 day, and have 1 day off.

4.For employees under a 4/10 CWS, each week they would work 10 hours a day for 4 days, and have 1 day off.

5.The Union contends that, in addition to employees relocated to Cecil Field, others experienced a change in working conditions when they were moved from the downtown JEA building to NAS JAX. The Union bargained over that relocation, as well as others, since the Employer insisted upon bargaining over all of the moves at one time rather than piecemeal.

6.The Union’s opportunity to expand CWS to the entire bargaining unit is a matter which is more appropriately addressed during the parties’ term negotiations.

7.The procedures for terminating alternative work schedules (AWS) are set forth in § 6131 of the Act. For additional information on the statutory requirements for terminating alternative work schedules, the parties are directed to the Panel’s decision in Department of the Army, Fort Carson, Evans Army Community Hospital, Fort Carson, Colorado and Local 1345, American Federation of Government Employees, AFL-CIO, Case No. 96 FSIP 53 (June 27, 1996), Panel Release No. 388.

8.Subsections (a) and (b) of 5 C.F.R. § 610.406 provide that full-time and part-time employees, respectively, "relieved or prevented from working on a day designated as a holiday by Federal statute or Executive order . . . [are] entitled to basic pay for the number of hours of the compressed work schedule on that day." The report of the House Committee on Post Office and Civil Service rejected the inclusion of wording in the Act which would have limited the holiday pay of employees on an CWS to 8 hours. See H.R. REP. NO. 99-82, 99th Cong., 1st Sess. 5 (1985), reprinted in 1985 U.S.C.C.A.N. 1095, 1099-1100.

9.This solution, which permits employees under a 5-4/9 CWS to begin work at fixed starting times selected within a flexband, is consistent with the Federal Labor Relations Authority’s (FLRA) decision in General Services Administration, Washington, D.C. and National Federation of Federal Employees, 50 FLRA 136 (1995)(GSA). In that case, the FLRA determined that a contract provision was contrary to the Act and unenforceable because it would have allowed employees to combine a 5-4/9 CWS with a flexible schedule where employees could vary their starting times each day during the morning flexible band and depart after completing their required number of hours. According to the FLRA’s interpretation of the Act, such flexible schedules may not be combined with a compressed schedule. Unlike the situation presented in GSA, under the Panel’s decision in the instant case, employees would have to select fixed starting times within the morning flexband.