DEPARTMENT OF THE ARMY HEADQUARTERS, ARMY TRAINING AND DOCTRINE COMMAND TRADOC CONTRACTING ACTIVITY FORT EUSTIS, VIRGINIA and LOCAL R4-6, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE ARMY
HEADQUARTERS, ARMY TRAINING
AND DOCTRINE COMMAND
TRADOC CONTRACTING ACTIVITY
FORT EUSTIS, VIRGINIA
LOCAL R4-6, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, SEIU, AFL-CIO
Case No. 95 FSIP 85
DECISION AND ORDER
Local R4-6, National Association of Government Employees, 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 Army, Headquarters, Army Training and Doctrine Command, TRADOC Contracting Activity, Fort Eustis, Virginia (Employer or Agency).
After investigation of the request for assistance concerning a dispute over alternative work schedules (AWS), the Panel directed the parties to participate in an informal conference with Panel Representative (Staff Attorney) Gladys M. Hernandez for the purpose of resolving the outstanding issues in dispute. The parties were advised that if no settlement were reached, Ms. Hernandez would report to the Panel on the status of the dispute, including the parties' final offers and her recommendations for resolving the issues. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Accordingly, Ms. Hernandez met with the parties on May 30, 1995, in Fort Eustis, Virginia, but no settlement was reached. She has reported to the Panel on the remaining issues based on the record developed by the parties.(1) The Panel has now considered the entire record.
The Employer’s mission is to provide "centralized mission-related contracting support, staff advice and assistance for Mission and Federal Information Processing-type acquisitions for all Training and Doctrine Command Activities" nationwide. The Union represents a bargaining unit of approximately 40 General Schedule employees who work as contract specialists, contract administrators, procurement clerks, purchasing clerks, procurement assistants, and secretaries.(2) The parties’ collective-bargaining agreement expires on January 19, 1997.
By way of background, since November 1991, employees have been allowed to work a gliding schedule which provides for arrival between 6 and 8:30 a.m.(3) On December 16, 1994, the parties signed an agreement which would have allowed employees to work a flexitour schedule (with seven possible fixed work schedules from which to select)(4) or a 5-4/9 compressed work schedule (CWS), both permitting arrival at 6 a.m. This agreement also would have required employees to "log on SAACONS(5) within 5 minutes of arriving and sign off SAACONS within 5 minutes prior to departure, for timekeeping and accounting purposes." It was never implemented because the parties disagreed over whether employees could elect to work one of these schedules in addition to or instead of the existing gliding schedule. Rather than seeking an interpretation of the agreement, the parties returned to the bargaining table giving rise to this dispute.
ISSUES AT IMPASSE
There are two issues at the center of the dispute: (1) Whether employees will be allowed to continue to work a gliding schedule;(6) and (2) whether the earliest arrival time under any AWS will be 6 or 6:30 a.m.
POSITIONS OF THE PARTIES
1. The Union's Position
Under the Union’s proposal, employees would be allowed to continue to work the existing gliding schedule in which they have a basic work requirement of five 8-hour days per week, but may change their arrival time daily so long as it is within the flexible hours of 6 to 8:30 a.m. Core hours (the hours employees must be present for work) would be 8:30 a.m. to 3 p.m. In the alternative, employees could work a 5-4/9 CWS with four fixed starting times from which they may choose -- 6, 6:30, 7, and 7:30 a.m. Under the CWS, the employee’s day off and 8-hour day "would be coordinated with and approved by the immediate supervisor." Under both schedules, employees would have a 1-hour lunch period. Schedule changes would require advance notice of 1 pay period. Selected schedules would be worked a minimum of 2 pay periods. For time accounting purposes, "a seriatim sign-in sheet would be maintained within each division to record each employee’s arrival time." Finally, Transportation Center Fort Eustis (TCFE) Regulation No. 690-1 (Alternative Work Schedules), dated 22 August 1994, would control those AWS issues not specifically addressed by this proposal.(7)
With regard to the Employer’s negotiability argument, the Union is not proposing to negotiate the hours in which service will be provided to customers, but rather AWS. The Authority case law cited by the Employer in support of its argument, therefore, is not applicable.
The proposed gliding schedule with a 6 a.m. early arrival time has been in place since November 1991, and during that time has "proven its workability." The Employer has not provided any evidence showing otherwise, for example, (1) customer complaints of employees’ unavailability or poor customer service, (2) "incomplete or unfinished assignments," (3) "missed deadlines," or (4) "employee abuses." In fact, the Agency has been "very efficient and responsive" to its customers. This is supported by the Customer Satisfaction Appraisals submitted by 18 of them last year.(8)
Its proposed schedules would provide employees with "well blended options." They would not affect "customer contacts" and the Agency’s mission because they would maintain the current operational hours (6 a.m to 5:30 p.m.), core hours (8:30 a.m. to 3 p.m.) and lunch period. These same operating hours, including the 6 a.m. arrival time, are provided for under TCFE Regulation No. 690-1 for Fort Eustis and its tenant activities. The only effect these schedules would have is improved employee morale and efficiency. In this regard, over 30 percent of unit employees prefer the gliding schedule, while 65 percent of them prefer the 5-4/9 CWS with fixed starting times as early as 6 a.m.
The "mechanism" for schedule changes would provide employees with "flexibility in accomplishing their work assignments and planning personal and family matters." The "seriatim sign-in sheets" would provide for error-free "attendance accountability." The SAACONS system, on the other hand, is (1) not accessible to all employees; (2) an inefficient and inaccurate means of timekeeping; and (3) "overwhelmingly opposed" by employees. Furthermore, it is unnecessary because supervisors would know employees’ daily "whereabouts" and "routine of work arrivals." In proposing to incorporate TCFE Regulation, No. 690-1 the Union "seeks to have issues such as pay, leave, and holidays uniform throughout Fort Eustis and its tenant activities."
The Employer’s proposal for a later arrival time "is not mission motivated." Rather, it is an "unjustified and unsupported whim" which would "deprive productive employees of a little flexibility ... in their daily lives." In fact, during these negotiations, and "as late as" January 24, 1995, the Employer proposed a 6 a.m. starting time. The Employer’s proposal also would result in the loss of carpool arrangements and employees’ having to take leave to attend to personal matters. Finally, the proposed AWS evaluation period is a "new issue." It was never raised or "discussed" previously and, therefore, should not be considered by the Panel.
2. The Employer's Position
In essence, the Employer’s proposal would allow employees to work one of two schedules. The first schedule ("Schedule A") is a flexitour schedule with five established tours (fixed arrival and departure times) from which employees could choose, with the earliest starting time being 6:30 a.m., and the latest 8:30 a.m. The second schedule ("Schedule B") is a 5-4/9 CWS, with employees being allowed to choose from among three starting times -- 6:30, 7, or 7:30 a.m. Under both schedules, employees would have a 1-hour lunch period. Also, supervisors would determine an employee’s day off under the CWS based on "discussions with the employee and mission requirements," and it would be scheduled before the beginning of the pay period. The Employer would retain the right to "limit the employee’s [schedule] election to ensure office coverage" from 7 a.m. to 5:30 p.m.; however, it would "attempt to honor the employee’s first choice or attempt to settle such through voluntary means with the employee." Finally, 6 months from the date of implementation, the schedules would be evaluated to "determine if they should be continued as written, modified, or discontinued."
With downsizing and budget reductions, the Agency’s future will depend on the quality of service it can provide its customers. In fact, "it may not survive the draw down" or competition from installation contracting offices should they consolidate, if it cannot provide the best service to its customers located nationwide in different time zones. If it is to provide such service, employees must be at work during "the optimal hours of dealing with customers," most of whom have operational hours starting at 7 a.m. or later. The Employer, therefore, has determined that its mission "can best be fulfilled" with operational hours of 7 a.m. to 5:30 p.m. "In the interest of settling this negotiation and as a concession to the Union," however, it has proposed a 6:30 a.m. starting time "even though it is not in the best interest of the organization and may be detrimental to its future existence, because it does not allow for the best provision of customer service available."
The Union’s proposal would infringe on management’s right to (1) establish its hours of operation; (2) assign work; and (3) "know the whereabouts of its employees." On the merits, the problems with the current gliding schedule, "compounded by no daily sign-in system," are that (1) management is unaware of employees’ "whereabouts" and, therefore, is unable to advise customers calling in when employees will get back to them; (2) office coverage is "never assured;" and (3) meetings cannot be scheduled outside of core hours. The schedule "does not work" and continuing with it is "untenable." No other activity at Fort Eustis allows its employees to work a gliding schedule. The Union’s "focus" on the absence of "adverse agency impact" in support of continuing this schedule is misplaced because this case does not arise under the Flexible and Compressed Work Schedules Act of 1982. The only "evidence of success" of this schedule which the Union provides is that employees are "happy" that they can change their arrival time on a daily basis. Finally, the Employer does not oppose using TCFE Regulation 690-1 as the "filler regulation" for those matters not addressed by the proposals.
There would be no need for employees to use SAACONS if the gliding schedule is terminated in favor of fixed tours because management would know their daily work schedules. Contrary to the Union’s argument, SAACONS is an "efficient and accurate" method of timekeeping which is accessible to all employees and permitted under TCFE Regulation No. 690-1. In fact, it is "probably the most accurate method of timekeeping available." In this regard, employees’ computers are equipped with (1) "battery back-up in the event of a power failure," and (2) "power surge protectors." Its use would be consistent with the move towards a paperless society, which the Panel has recognized in earlier decisions. Moreover, it would allow management to "certify" employees’ attendance as it is required by regulation. The use of sign-in sheets, on the other hand, would be "wasteful, inefficient, ... and not environmentally sound."
Preliminarily, to the extent that the Employer argues otherwise, the Union’s proposal is negotiable. In this regard, the Federal Labor Relations Authority has consistently held that an agency may object to the negotiation of a proposed AWS only on grounds that it would have an "adverse agency impact" as defined under § 6131 of the Federal Employees Flexible and Compressed Work Schedules Act (Act), or is inconsistent with the Act itself or with other laws superseding the Act; it will not consider arguments, such as that made by the Employer, that the AWS proposal conflicts with management’s rights under § 7106 of the Statute.(9)
As to the merits, having carefully examined the evidence and arguments presented by the parties, we conclude that neither party’s proposal adequately resolves the matter. With regard to the matter of the gliding schedule and 6 a.m. starting time, we note that no documentary evidence was submitted by the Employer to support its claim that they have had an impact, much less an adverse one, on customer service because of employee unavailability or insufficient office coverage, among other reasons. For example, there is no evidence of customer complaints or reduced employee productivity. On the contrary, the Customer Satisfaction Appraisals submitted by the Union indicate that customers are very satisfied with the level and quality of service being provided. In the absence of such evidence, we believe it is appropriate to maintain the gliding schedule and 6 a.m. arrival time favored by employees and proposed by the Union. Also, a 6 a.m. arrival time is permitted under provisions of TCFE Regulation No. 690-1 covering both flexible and compressed work schedules, albeit subject to supervisory approval. Moreover, we note that since all employees must be at work during core hours, the Employer, contrary to its statement, is able to advise customers when employees will be available. Also, it is not precluded from scheduling meetings for a particular time and requiring desired employees to be present. Because of the addition of the 5-4/9 CWS, however, we will require employees to coordinate their elected schedules (gliding or CWS) with their supervisors as well as get their approval to work the elected schedules to ensure that (1) the duties and requirements of the employees’ positions are fulfilled and (2) office coverage outside of core hours is maintained. Since both parties agree that TCFE Regulation No. 690-1 should cover the AWS issues not addressed by the parties, we will order the adoption of the Union’s wording on the matter. In addition, we will require employees to use SAACONS as provided for in the parties’ December 16, 1994, agreement; this wording, unlike its provisions concerning the gliding schedule and CWS, is not subject to interpretation. Furthermore, we are persuaded this computerized system is a more efficient and accurate method of timekeeping, and should allow the Employer to determine quickly whether an employee is available when needed. This method of timekeeping also is consistent with the trend in Government towards a paperless workplace. Finally, it would be inappropriate to order a 6-month evaluation period in this case because the matter was first proposed by the Employer in its post-informal conference submissions to the Panel and, therefore, was never negotiated by the parties. The parties are free, of course, to mutually agree upon a suitable time period for evaluation purposes.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to 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 a compromise proposal as follows:
(1) Continue flexible work schedule that has been in existence since 14 November 1991. The existing flexible work schedule provides for five consecutive 8-hour days, Monday through Friday, with a 6 to 8:30 a.m. (gliding) arrival time, with a 1-hour lunch period, and a core period of 8:30 a.m. to 3 p.m. (less the 1 hour for lunch).
(2) Employees have