File 2: Opinion of Chairman Cabaniss
[ v60 p148 ]
Dissenting Opinion of Chairman Cabaniss:
I write separately to explain why I would resolve this case in a manner other than that set out by the majority. For the following reasons, I would dismiss the negotiability appeal as not being properly before the Authority because it is in contravention of the Federal Employees Flexible and Compressed Work Schedules Act (the WSA), and would urge the parties to adhere to the requirements of the WSA by submitting their dispute to the Federal Service Impasses Panel (FSIP)for resolution.
This may be the first opportunity to address the circumstance where parties have come to us with a negotiability dispute while midway through a process governed by 5 U.S.C. § 6131(c)(3) of the WSA, i.e., the parties have a collective bargaining agreement providing for the use of compressed schedules, and the Agency now wishes to terminate some of the compressed schedules. However, existing compressed and flexible schedules may terminated only if they have an "adverse agency impact" as defined by § 6131(b). Section 6131(c)(3) is clear in prohibiting agencies seeking to terminate already existing compressed schedules from doing so unilaterally. [n1] Rather, an agency must (although the statute references "may") "reopen the agreement to seek termination of the schedule involved." Section 6131(c)(3)(A). If the parties reach impasse with respect to terminating the schedule(s) in question, the parties must submit the impasse to the FSIP for resolution, per § 6131(c)(3)(B).
In the present instance the Agency wishes to terminate some of the existing contractually provided compressed schedules, and in fact has already done so, citing in support of its actions 5 U.S.C. § 6122, which does not apply to compressed schedules. Thereafter, the Union demanded to negotiate and submitted proposals demanding, inter alia, a return to the use of the same compressed schedules terminated by the Agency.
I submit that this negotiability appeal is at odds with the WSA's requirements governing an agency's desire to terminate existing flexible or compressed work schedules. Rather than becoming embroiled in the negotiability appeal of these proposals, none of which have to do with the statutory inquiry into whether there is an "adverse agency impact" from the continuation of the compressed schedules at issue, one or both of the parties should be seeking the services of the FSIP to resolve their dispute. The Union has already made this argument in its submissions to the Authority as part of this case. In that regard, in the Union's response to the Agency's Statement of Position (Response), the Union asserts at page 5 that "[t]his case is not properly before the Authority. If Management believes that certain compressed work schedules should be eliminated, it should present its case to the [FSIP]." Additionally, at page 7 of its Response, the Union argues that "[a]ll of our arguments lead to the fact that these issues do not belong in the negotiability appeal forum. Instead, if Management opposes the continuation of the CWS, it should make its argument to the FSIP." I agree.
It appears that the Authority's negotiability appeal regulations do not address (or envision) the issue of whether the Authority should entertain a negotiability appeal in the circumstances presented here, i.e., where the parties are negotiating over whether certain compressed or flexible schedules are having an "adverse agency impact" and thus should be terminated. As this negotiability appeal process is at odds with the mandate of the WSA, I would dismiss the appeal and note to the parties their obligations under the WSA. [n2]
That conclusion notwithstanding, I am sufficiently concerned with one of the conclusions set out in the majority opinion to address it on the merits. I would not find that the use of part-time employees is a legitimate bargaining proposal under the WSA. Notwithstanding the fairly broad interpretation the WSA's legislative history ascribes to that statute, I would not find that negotiating the use of part-time employees is in any way a part of negotiations over a full-time employee's "80-hour biweekly work requirement which is scheduled for less than ten workdays[,]" which is the statutory definition of a compressed schedule, found at 5 U.S.C. § 6121(5)(A). To be sure, compressed schedules apply to part-time employees, per the definition of a compressed schedule for part-time employees, found at § 6121(5)(B), but that does not mean that the creation of part-time positions is a valid WSA proposal.
File 1: Authority's Decision in 60 FLRA No. 34
File 2: Opinion of Chairman Cabaniss
Footnote # 1 for 60 FLRA No. 34 - Opinion of Chairman Cabaniss
While § 6131(c)(3)(D) provides that compressed and flexible schedules may not be involuntarily terminated until such termination is approved by a final decision of the FSIP, the Agency has already done so in this case.