DEPARTMENT OF THE NAVY SUPERVISOR OF SHIPBUILDING, CONVERSION, AND REPAIR PORTSMOUTH, VIRGINIA and LOCAL 10, INTERNATIONAL FEDERATION OF TECHNICAL AND PROFESSIONAL ENGINEERS, AFL-CIO
In the Matter of )
DEPARTMENT OF THE NAVY )
SUPERVISOR OF SHIPBUILDING, )
CONVERSION, AND REPAIR )
PORTSMOUTH, VIRGINIA )
and ) Case No. 91 FSIP 141
LOCAL 10, INTERNATIONAL )
FEDERATION OF TECHNICAL AND )
PROFESSIONAL ENGINEERS, )
The Department of the Navy, Supervisor of Shipbuilding, Conversion, and Repair (Employer or SUPSHIP Portsmouth); filed a request for assistance under the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. sections 6120 et seq. (1988) (Act) to resolve an impasse arising from its determination not to establish the compressed and flexible work schedules as proposed by Local 10, International Federation of Professional and Technical Engineers, AFL-CIO (Union).
After investigation of the request for assistance, the Panel determined that the impasse should be resolved pursuant to written submissions from the parties, with the Panel to take final action in accordance with section 6131(c)(2) of the Act and section 2472.12 of its regulations.1/ Written submissions were made pursuant to this procedure and the Panel now has considered the record in its entirety.
1/ Under section 6131(c)(2)(B) of the Act and section 2472.12(a)(1) of its regulations, the Panel is required to take final action in favor of the employer's position if the findings on which the agency head's determination not to establish a flexible or compressed work schedule is based are supported by evidence that the schedule is likely to cause an adverse agency impact. If, on the other hand the findings are not supported by such evidence, section 2472.12(b) requires the Panel to "take whatever action is necessary to resolve the impasse."
The Employer administers shipbuilding, design, conversion, facility, and repair contracts between the Departments of the Navy or Defense and 28 private contractors in a 5-state area, which includes preparation of contract specifications and solicitation packages, procurement, and technical oversight of work performed under contract. The Union represents approximately 346 Wage Grade and General Schedule employees, all of whom are affected by the dispute. The majority are employed as planners and estimators, ship surveyors, production controllers, contract and quality assurance specialists, and electronic technicians. The parties' master labor agreement was to expire on May 11, 1989, but remains in effect until a successor is implemented.
The dispute arose during successor-agreement negotiations. The
parties have agreed to all matters except the Union-proposed 5-4/9
compressed work schedule (CWS) and 6 a.m. to 6 p.m. flexible work
schedule without a core-hours implemented.3/ which the agency head has determined would have an adverse impact upon the Employer's mission if implemented.4/ Currently, employees are permitted to deviate 2/ The 6 a.m. to 6 p.m. flexible schedule would allow employees to choose their time of arrival and departure within the 12-hour time frame so long as they are present at work the requisite 8 or 9 hours daily.
3/ The determination that the proposed schedules would adversely affect the agency's mission was made by the commanding officer of SUPSHIP Portsmouth who, as the head of the activity, was delegated authority to make such determination by the Department of the Navy pursuant to CPI 610.Sl-4b(1)(g).
Section 6131(b) of the Act defines adverse agency impact as:
(1) a reduction of the productivity of the agency;
(2) a diminished level of 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 schedule).
from the established workhours (7:15 a.m. to 3:45 p.m, with ½ hour for lunch between 11:15 a.m. and 12:15 p.m.) by at most 1 hour with the Prior approval of their supervisors.
ISSUE AT IMPASSE
The sole issue before the Panel for resolution is whether the
findings on which the agency head has based its determination not to establish the Union-proposed 5-4/9 CWS and 6 a.m. to 6 p.m. flexible work schedule are supported by evidence that the schedules are likely to cause an adverse agency impact.9/
POSITIONS OF THE PARTIES
1. The Employer's Position
The Employer contends that the Panel should take final action in favor of its determination that the Union's proposed plan for a 5-4/9 CWS and 12-hour-flexband-with-no-core-hours schedule is likely to have an adverse impact on its mission. In support thereof, it submits sworn statements from its engineering and planning officer, commanding officer, and department heads, as well as statistical graphs, charts, and surveys as evidence that the proposed compressed and flexible schedules would have an adverse affect on its productivity, customer service, and cost of operations.
It stresses that SUPSHIP Portsmouth is a "middleman" organization with administrative and oversight responsibility for numerous contracts between military agencies and private contractors. As such, employees must deal directly with parties to contracts and each other on a "constant and continual" basis to ensure that the contracted work is performed properly. In this regard, the Employer argues that the unavailability of employees on any given Monday or Friday under the 5-4/9 CWS would result in many lost hours of interaction with military customers, contractors, and co-workers assigned to the same projects or performing support
4/ The Act's legislative history clearly indicates that the Employer bears the burden of proving adverse agency impact. See 128
CONG. REC. 15414 (1982) (remarks of Sen. Stevens); and 128 CONG.
REC. 15799 (1982) (remarks of Rep. Ferraro).
functions for project teams^2/ which currently takes up 40 percent of employees' workhours. The lost direct interaction of employees with customers, contractors, and each other on Mondays or Fridays would jeopardize the agency's contract oversight operations already burdened by a reduction in manpower due to Department of Defense (DOD) downsizing, without a corresponding decrease in workload. The additional hour worked by employees on 8 out of 9 workdays would not make up for the loss of interaction time on the 10th day because it falls outside the normal workhours of contractors and customers.6/ In fact, the proposed 6 a.m. to 6 p.m. flexible schedule without core hours would permit employees to work more hours outside the scheduled- workhours of contractors and military customers which could result in a significantly greater amount of
interaction time lost, thereby further diminishing the level of service provided. To maintain the current level of efficiency, productivity, and customer service, the Employer would have to (1) hire more employees, which is not possible because of the current DOD hiring freeze and budgetary constraints; or (2) increase overtime or contract out work, which would expand greatly the cost of operations at a time when funds are scarce due to military budget cuts.
Furthermore, typically on Mondays and/or Fridays, there are often "urgent and compelling" tasks which must be performed for contractors; moreover, on those days, employees are often involved in researching and writing specifications for contracts which are to be let on Tuesdays, docking conferences, TDY travel, as well as emergent work or travel, which could not be performed during the other expanded workdays. The absence of employees on Mondays and Fridays could delay projects unnecessarily which could contribute to increased costs. To avoid such delays would require increased use of overtime.
5/ Contracted projects are assigned to teams of employees from "line functions" departments such as Combat Systems, Engineering and Planning, Quality Assurance, Contracts, and Repair; employees in Administrative, Material, and Resource Management departments
perform support functions for project teams and their members.
6/ Contractors' production staffs work Mondays through Fridays with
arrival and departure times ranging from 6:30 to 8 a.m. and 3:30 to
4:30 p.m., respectively; customers typically work from 8 a.m. to 4
p.m. Overtime expense also may be incurred in having to call in employees for training on their days off because continuous training is of utmost importance but typically cannot be scheduled in advance.2/ The added expenditure in what otherwise would be unnecessary overtime, would increase the cost of operations which is detrimental to the efficiency and productivity of the agency.
Finally, SUPSHIP San Diego, the only other facility performing the same type of work (oversight of repair work performed by multiple contractors) that has ever implemented a 5-4/9 CWS, terminated it after 6 months because of customer complaints and problems with participating employees.
2. The Union's Position
The Union argues that the evidence which the Employer has submitted to the Panel does not support its determination that implementation of the proposed 5-4/9 CWS and 6 a.m. to 6 p.m. flexible schedule arrangement would adversely affect the agency's mission. The data presented in support of that determination are inaccurate because they take into account the participation of management, military, and other nonbargaining-unit personnel. The affidavits submitted consist of mere suppositions and opinions that the proposed CWS and flexible schedule arrangement would hamper the agency in carrying out its contract oversight operations. In fact, the proposed schedules would work to the Employer's advantage rather than handicap it in performing its mission. In this regard, the additional hour employees would be available 8 out of 9 workdays per pay period would enhance productivity by allowing them to increase interaction with and monitor the work performed by contractors during their second and third shifts. Currently, this is not possible because of the Employer's curtailment of overtime. Productivity would be increased further by improved employee morale, job satisfaction, and reduced absenteeism.
Under the proposed arrangement, participation in the schedules is not guaranteed. Rather, the Employer would retain the right to deny or terminate participation of an individual employee or group of employees. Moreover, employees authorized participation would revert to a standard work schedule when on travel, TDY, and training. Also, the Union would agree to 7/ In 1988, the Employer provided 25,706 hours of training to employees, mostly in-house; by 1990, that number had increased to 46,381.
other than Fridays or Mondays off, thereby "reducing the amount of lost time on those days] and giving greater work schedule flexibility." Given these proposed safeguards, it would be unfair to deny all employees the opportunity to work a 5-4/9 schedule.
Finally, SUPSHIP Newport News, which the Union argues has the same workload as SUPSHIP Portsmouth, successfully implemented a 5-4/9 CWS some years ago and recently permitted supervisors to participate.
Having considered the entire record, we conclude that the Employer has met its statutory burden and thus need not negotiate over the merits of the Union-proposed schedules. In our view, the documentary evidence and arguments presented demonstrate that the Employer's primary mission, to ensure that contracts are properly let and fulfilled, may be severely affected if the proposed schedules are implemented. We take specific note of the Employer's undisputed evidence that (1) the service-oriented work performed by unit employees and (2) the team approach to performing such work require employees to deal directly with outside contractors, military customers, and each other on an ongoing basis. We are persuaded, therefore, that employees' work schedules should substantially parallel those with whom they must interact on a continuous basis, otherwise the projects contracted for