United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Department of the Interior, Bureau of Reclamation, Boulder City, Nevada (Employer) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse between it and Local 1978, American Federation of Government Employees, AFL-CIO (Union) resulting from an agency determination to terminate a 4/10 compressed work schedule (CWS)⁽¹⁾ under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. §§ 6120-6133.

    Following an investigation of the request for assistance, arising from negotiations affecting approximately 16 Hoover Dam tour guides working at the Visitor’s Center, the Panel determined that the dispute should be resolved on the basis of single written submissions from the parties. The parties were informed that after considering the entire record, the Panel would take whatever action it deemed appropriate to resolve the impasse, which may include the issuance of a Decision and Order. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.

BACKGROUND

    The mission of the Visitor’s Center is to give public tours of the Hoover Dam. The Visitor’s Center employs a total of 35 to 40 employees, of whom 31 are in the bargaining unit. Bargaining-unit employees range in grade from GS-1 or -2 to -6. The parties’ master collective bargaining agreement (MCBA) is due to expire on April 3, 2002.

ISSUE AT IMPASSE

    The issue before the Panel is whether the finding on which the Employer has based its determination to terminate the 4/10 CWS for tour guides is supported by evidence that the schedule causes an adverse agency impact.⁽²⁾

POSITIONS OF THE PARTIES

1. The Employer’s Position

    Restrictions on productivity and profit making could have dire consequences on the Employer’s ability to fulfill its financial obligations in connection with the Visitor’s Center.⁽³⁾ In essence, the 4/10 schedule restricts the Employer’s ability to increase productivity and the level of service provided to customers and, therefore, causes an adverse agency impact. In this regard, under the 4/10 schedule, on days when no employees have a CWS off day, 100 percent of the tour guide staff is available from 8 to 10 a.m. and from 4 to 6 p.m. when only 25 percent of the tours occur. Tour guides arrive for their shifts at 8 a.m., and many of them are idle until peak demand for tours occurs at 10 a.m. Peak demand ends at 4 p.m., but tour guides’ days end at 6 p.m. Therefore, "the Employer, has no way of adjusting the current work schedule to place more employees on duty when they are needed, nor reduce the amount of employees during the hours when they are not needed." By contrast, under a 5/8 schedule, staffing from 10 a.m. to 4 p.m. would be increased (i.e., the need to accommodate 1 off-day per week per employee would be eliminated), and the number of unproductive hours from 8 to 10 a.m. and 4 to 6 p.m. would be decreased. In turn, increased staffing would permit the Employer to add more tours in service to the public between 10 a.m. and 4 p.m. This would result in at least a 20-percent increase in productivity.⁽⁴⁾

    The 4/10 schedule made more sense when tour guides spent their morning non-tour time assembling hard hats for the "hard hat" tours. In fact, this was a "primary reason" for initially establishing the current CWS. Hard hat assembling, however, "was eliminated at the request of the Union in favor of a service contract to preassemble hard hats. This has a direct impact of increasing operational costs for FY 2001 by approximately $182,500." Now that contractors are assembling the hard hats, and are doing some collateral security assignments as well, most guides are idle during much of the non-peak tour time. In an attempt to compromise, the Employer offered a 5-4/9 CWS which was agreed to by the Union, but rejected by its membership. When this transpired, the Employer’s only option was to attempt to terminate the 4/10 CWS under the requirements of the Act.

2. The Union’s Position

    The termination of the CWS would cause "imminent adverse impact to the employee." In this regard, the 4/10 schedule boosts employee morale, and is a benefit for these employees, all of whom are GS-6 or lower, who must work holidays, and under taxing conditions with large crowds in extreme hot and cold temperatures. Since being a tour guide already is an arduous job, ending the 4/10 schedule would mean even more time spent enduring extreme temperatures, and walking up and down long stairwells. Furthermore, asking guides to come in another day per week will add commuting and child care expenses. Finally, termination of the 4/10 schedule would disregard the bargaining history of the Employer and the Union in agreeing to such a schedule in 1995. Instead of terminating the 4/10 schedule, management should encourage the contract marketer to use incentives to sell more tickets for earlier and later tours.

CONCLUSIONS

    Under section 6131(c)(3) of the Act, the Panel is required to take final action in favor of an employer’s determination if the finding on which the determination is based is supported by evidence that a CWS has caused adverse agency impact. As its Legislative History makes clear, Panel determinations under the Act are concerned solely with whether an employer has met its statutory burden, and not with the merits of CWS proposals.⁽⁵⁾ In addition, the Legislative History also establishes that in hearing both sides of the issue, the Panel is not to apply "an overly rigorous evidentiary standard," but must determine whether an employer has met its statutory burden on the basis of "the totality of the evidence presented."⁽⁶⁾

    Having considered the record before us, we conclude that the Employer has met its statutory burden. After evaluating the totality of the evidence, we are persuaded that a continuation of the 4/10 CWS would prevent the Employer from increasing the agency’s productivity and the level of services furnished to the public. In this regard, the record demonstrates that tour guides are idle for as much as 40 percent of the workday under the 4/10 schedule, and that a shorter work day could eliminate at least half of this inactivity. In reaching this decision, we also conclude that an employer’s showing that a CWS prevents increased productivity, and improvements in customer service, meets the Act’s definition of a reduction in productivity. In our view, to conclude otherwise would be inconsistent with the Legislative History of the Act, which cautions the Panel not to apply an overly rigorous evidentiary standard when determining whether an employer has met its statutory burden.

    Turning to the Union’s arguments, we find that most of them address either the adverse impact that terminating the current CWS would have on affected employees, or why the implementation of a 5/8 work schedule would not result in the increases in productivity and service to the public predicted by the Employer. For example, the Union contends that Visitor Center facilities would be incapable of accommodating additional visitors from 10 a.m. to 4 p.m. Although this assertion appears to contradict a claim it makes elsewhere in its submissions that a 5/8 schedule would result in more work for tour guides, the more significant point is that the Union’s contentions are directed mainly at establishing the merits of the current CWS. As stated previously, however, under the Act the Panel’s only role is to determine whether an employer has met its statutory burden. Nor does the Act permit the Panel to order compromise solutions in CWS termination cases.

    In concluding that the 4/10 schedule causes an adverse agency impact, we are not oblivious to the impact its elimination could have on such things as employee morale, and commuting and child care costs. We note in this regard that the parties previously reached a tentative agreement to convert tour guides from a 4/10 to a 5-4/9 CWS which was rejected by the Union’s membership. While it is troubling that the parties could not make the compromises that would have avoided bringing the case to the Panel under the requirements of the Act, nothing prevents the Employer at this point from reconsidering the 5-4/9 CWS option, or other alternatives, such as reverting to a CWS during times of the year when customer demand historically diminishes. Finally, should the Union conclude that a 5/8 schedule has failed to result in increases in productivity or levels of service furnished to the public, it could choose to reopen CWS negotiations when the current MCBA expires in less than a year.

ORDER

By direction of the Panel.

H. Joseph Schimansky

Executive Director

May 24, 2001

Washington, D.C.

4.  The Employer does not explain how it arrives at this figure.

5.  Representative Ferraro stated the following:

If the agency’s presentation does not convince the Panel that the imposition of the particular alternative work schedule at issue would likely cause an adverse agency impact, the Panel will direct the parties to return to the bargaining table and to continue negotiations of an alternative work schedule. 128 CONG. REC. H3,999 (daily ed. July 12, 1982).

See also Senate Report on S. 2240, 97^th Cong., 2d Sess. (1982) which, as subsequently amended with respect to other matters, was enacted into law as the Act. The Report contains the following:

If the Panel finds that there is not sufficient evidence to support a conclusion that an adverse impact will occur, it is expected that the Panel will direct the parties to fully negotiate out the particular schedule and not to simply impose it on the agency. S. REP. NO. 97-365, 97th Cong., 2d Sess. 15-16 (1982)(hereinafter the Senate Report).

While the Legislative History cited above was necessarily focused on the initial establishment of CWS throughout the Federal government, we find nothing to suggest that the same principle should not apply in the context of the termination of a CWS.

6.  See the Senate Report, which states:

The agency will bear the burden in showing that such a schedule is likely to have an adverse agency impact. This burden is not to be construed to require the application of an overly rigorous evidentiary standard since the issues will often involve the imprecise matters of productivity and the level of service to the public. It is expected the Panel will hear both sides of the issue and make its determination on the totality of the evidence presented. S. REP. NO. 97-365, 97th Cong., 2d Sess. at 15-16 (1982)(emphasis added).