DEPARTMENT OF DEFENSE DEFENSE CONTRACT AUDIT AGENCY NORTHEASTERN REGION LEXINGTON, MASSACHUSETTS AND COUNCIL OF LOCALS 163, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF DEFENSE

DEFENSE CONTRACT AUDIT AGENCY

NORTHEASTERN REGION

LEXINGTON, MASSACHUSETTS

AND

COUNCIL OF LOCALS 163, AMERICAN

 FEDERATION OF GOVERNMENT

 EMPLOYEES, AFL-CIO

Case No. 95 FSIP 110

ARBITRATOR’S OPINION AND DECISION

BACKGROUND

    Council of Locals 163, American Federation 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, 5 U.S.C. Section 7119, between it and the Department of Defense, Defense Contract Audit Agency (DCAA), Northeastern Region, Lexington, Massachusetts (Employer). After investigation of the request for assistance, the Panel directed the parties to mediation-arbitration before the undersigned. Accordingly, the undersigned met with the parties on September 12 and 13, 1995 at the DCAA office in Lexington, Massachusetts. At the outset, the undersigned engaged in mediation efforts to assist the parties in resolving the issues at impasse in four contract articles for a successor collective bargaining agreement: official time, performance appraisal, midterm negotiations, and work schedules. A negotiability appeal concerning a fifth matter (temporary assignments) is pending before the Federal Labor Relations Authority.

    The parties were unable to resolve the matters at impasse during the September 12 and 13 sessions. At that time, the Employer renewed its assertion (made in its earlier submissions to the Panel) as to the non-negotiability of the Union’s proposals on the performance appraisal system. After consideration of the parties’s arguments and the rulings of the Federal Labor Relations Authority cited, the Arbitrator informed the parties that she found it necessary under Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) to decline consideration of the proposal because a substantial issue concerning negotiability had been raised.(1) That ruling is here affirmed. Consequently the parties did not submit final proposals and positions on the performance appraisal article and the proposals concerning that subject are not considered in this Award.

    As to the three other areas at impasse, in subsequent discussions directed by the Arbitrator the parties were able to agree upon withdrawal of the article on midterm negotiations and also on mutually acceptable language on a number of contested provisions. The parties provided these "stipulations" to the Arbitrator by FAX transmittal on October 5. Final offers and statements of position on the sections remaining in dispute were then submitted. The Arbitrator has considered the full record developed during the Panel’s investigation and the mediation and the parties’ final submissions in reaching the conclusions and award provided below.(2)

    The Employer, one of five regional offices within DCAA, oversees 25 major field audit offices and a declining number of suboffices in nine states. Council 163 is made up of four locals and represents approximately 608 bargaining unit employees (the individual locals range in size from 80 to 300 members.) Employees mainly work as contract auditors. They perform audits for the Department of Defense and other Federal agencies under OMB Circular A-73 and provide DOD with accounting and financial advisory services to assist in contracting activities. The parties’ collective bargaining agreement expired on April 5, 1995, but remains effective until the successor agreement, including the articles that are the subject of this Award, is implemented.

ISSUES AT IMPASSE

    The parties are at impasse over the following articles:

(1) Article 4, Official Time, and (2) Article 11, Flexitime and Compressed Work Schedules (CWS).

I. OFFICIAL TIME (ARTICLE 4)

1. The Employer’s Position

    The Employer is seeking changes from the current treatment of official time in the parties’ negotiated agreement. Under the current agreement, union representatives are entitled to "reasonable" time for "all matters" relating to administration of the agreement or labor-management affairs, with time mutually agreed upon by the Employer and representative on a case-by-case basis. A further provision requires representatives to report to and obtain authority from their supervisors if they are to leave their work area for more than one hour.

    The above provisions were interpreted in a 1992 arbitration award (Award of Arbitrator Cornelius McAuliffe, November 11, 1992) as prohibiting the Employer from denying official time for otherwise covered activity on the basis of agency mission demands and work deadlines. The award also held that the contract language means that "an unlimited amount of [representational] work can be done at the work area, and no supervisory permission is required." Permission is needed only if the work site is left for more than one hour. Arbitrator McAuliffe indicated that Employer dissatisfaction with the result would have to be addressed through negotiations to change the language. That award did not lay to rest disputes over official time. Grievances and disputes have continued, while the amount of official time used has continuously risen.(3) Hence the present Employer proposals.

    The Employer is seeking several significant changes:

(1) A requirement that union representatives provide notice and seek authorization for any representational work (including telephone) exceeding one hour, whether or not at the worksite; and, if a representative leaves the worksite and needs more time than anticipated, a requirement that he or she notify the supervisor as early as practicable. The Employer perceives a Union attitude that there is no legitimate management interest in a Union representative’s whereabouts or time use, and believes that the requirement it seeks is intended by Section 7131 of the Statute.

(2) An explicit acknowledgement of the need to balance the right to official time with the Employer’s need to accomplish its operations and work to overcome any confusion created by McAuliffe.

(3) Replacement of "reasonable time" with blocks of official time: 20 hours per pay period for the Council President and Vice President (aggregate for the two positions); and 10 hours per pay period for Local Presidents. Stewards are to be granted time on a case-by-case basis. The blocks do not include (i.e. there is additional time for): official time for negotiations (including mediation and FSIP hearings), midterm bargaining, joint labor-management relations meetings, arbitration hearings, ULP meetings and hearings and others jointly agreed to or required by management. The Employer maintains that a change in the status quo is needed because official time remains the source of repeated litigation and the amounts of official time used continue to increase unexplained by the characteristics of the bargaining unit.

(4) A limit on the number of union representatives attending joint labor-management meetings on official time equal to the number of employer representatives (citing Section 7131 of the Statute).

(5) A requirement that no more than one union representative from the same FAO or field office be on official time in the same period unless the Employer agrees.

(6) Reassignment out of contractor space to leased or government space of a Union representative whose aggregate use of official time is more than 25% "to avoid any appearance of inappropriate use of contractor space for purposes other than the audit mission." Commonly, auditors examining large contractors on an ongoing basis are provided a permanent work place by the contractor within its facility. The Employer is concerned with contractor expectations that the free space provided at contractor facilities will be used for audit work only.

    The Employer retains current language that limits to one the number of Union representatives granted official time for an individual case, with additions needing Employer agreement (with the exception of dropping the word "normally").

2. The Union’s Position

    The Union has agreed to language in Section 4.04 that makes the determination of what is "reasonable" official time a matter of mutual agreement between an employee and supervisor prior to an employee’s release or use of official time. There is also continued the current procedure for supervisors being notified when an employees leaves the workplace, and returns. In the Union’s view the Employer’s additional restrictions applying to notification and authorization are contradictory and unnecessary to protect its legitimate interests and concerns.

    The Union’s proposed Section 4.08 retains the current approach of "reasonable time" for "all matters relating to the administration of this Agreement and joint labor-management relations". This proposal is consistent with the collective bargaining agreement between DCAA Central Region and AFGE Local 3529.(4)

    The Union proposal limits the number of its representatives in labor-management meetings to no more than five, to reflect there being four AFGE Locals within Council 163 and the need to accord representation to each Local when necessary. The Union maintains it has been responsible in this regard and has agreed in other provisions to use the telephone to the maximum extent possible. On limits on the number of representatives in individual cases, the Union adds an exception for third party appearances to the current contract language. The Union opposes the second limitation on more than one person on official time from a single DCAA facility as interfering with an individual’s right to act as a Union representative under the Statute.

    The Union has no proposal addressing changes in the assignment location of Union representatives working at contractor sites who use 25% or more of their time as official time. The Union cites no information substantiating an actual problem with contractors on this, and believes that the Employer’s proposal would very possibly discourage employees from becoming Union representatives.

CONCLUSIONS ON OFFICIAL TIME

    The Arbitrator believes that given the impact of the McAuliffe award, continuing disputes about the meaning of current official time language and of that award, and the amount of official time being used, the parties are best served by clearer guidelines and a change in the status quo is justified. On the issue of how representatives interact with supervisors on official time the Central Region Agreement cited by the Union supports the reasonableness of notice to, and agreement by, supervisory authority whenever a Union representative will be using official time for a significant period of time, regardless of whether it is at the worksite or elsewhere. The Statute’s dictate that union representatives be given official time "in any amount the agency and the exclusive representative involved agree..." necessitates that there be a mechanism for that agreement to come into being which the Union’s proposal does not provide except when there is departure from the duty site. Up to the present the term "mutual agreement" has not been sufficient to create a shared understanding about what is expected. The Arbitrator therefore orders adoption of the Employer’s proposal contained in Section 4.04(B) of its last offer.

    The Union’s open-ended approach to the amount of official time (basically the current language) has not prevented ongoing disputes or the addressing of the specific instances where there have been problems. On the basis of the record presented the Arbitrator is convinced that the block method used in the Employer’s proposal is preferable to continuing that approach and that the specific amounts of official time proposed by the Employer are much closer to an appropriate number than what the Union is willing to concede. The Arbitrator notes particularly the items that do not count against the capped amounts (e.g negotiations and mid-term bargaining, labor-management meetings which it should be made clear include partnership meetings, third party hearings and meetings, and meetings called by the Employer). The Arbitrator also notes the number of employees in the bargaining unit (about 600) and the fact that the unit is divided into four Locals, each with its own officers and stewards, in addition to two Council officers. The current Council President being also a Local President would be entitled to the hours accorded to each position. The Arbitrator orders adoption of the Employer’s proposal contained in Section 4.08 of its last offer but substituting 30 hours for the Council President and 15 hours for Local Presidents for each bi-weekly period.

    The Arbitrator is aware that these parties have not before operated with block grants and that there is great concern by the Union about the adequacy of the time allotted. The Arbitrator believes it appropriate to order inclusion in Section 4.08 of provision for a reopener of this Section, only, after one year, the opportunity for reopening to be solely the Union’s on the basis that experience has demonstrated that the number of hours ordered here has been found to be seriously inadequate. The parties are encouraged to keep the kind of records on the use of official time that would permit it to substantiate any claims in this regard.

    The Employer demonstrated no history of problems and no need for imposing the limitation on numbers of union representatives that is has proposed for labor-management meetings.(5) Neither party showed an actual problem demonstrating a need for change in the current language about individual grievances. With regard to the restriction on more than one representative from a single office, again the Employer described no actual problem in need of solution. The Employer has the basis elsewhere for having workload/operational considerations taken into account. The Arbitrator orders adoption of the Union proposal for Sections 4.10 and current contract language for Section 4.13.

    The Arbitrator does not order adoption of the Employer’s proposed Section 4.15 there being no experience or verifiable instances cited to confirm the Employer’s anxiety about the conduct of officially sanctioned Union representation activities on contractor property. However, the continued credibility and success of DCAA as an organization is a strong interest of both employees (and therefore the Union) and management, and the Arbitrator therefore believes that any identified problems in this regard that may arise should be amenable to a cooperative response by the Union and Employer.

II. HOURS OF WORK AND MAXIFLEX WORK SCHEDULES

1. The Employer’s Position

    The Employer wishes to modify Article 11 by eliminating as a choice for employees the 4/10 option. The ten hour, four day a week schedule has been available to Employees since 1979. The Employer strongly argues that change is now justified by increased pressures to reduce the time taken to perform audits, to reduce backlogs, and to be more flexible in a competitive environment, while at the same time accommodating work teams and new dictates for family-friendly leave policies. Also, the consolidation of offices has increased the ratio of employees to supervisors. These challenges, the Employer believes, cannot be met when employees are absent from the workplace one day a week so that office coverage is difficult to achieve. The unprecedented difficulty the agency had meeting FY95 performance goals it cites in support of the legitimacy of its concerns. A specific incident was offered of a contractor complaint about the non-availability of an employee on a flex day-off. The 4/10 option has already been eliminated for managers and supervisors. The Employer retains the 5-4/9 and flexible eight hour day schedules in its proposal. According to the Employer about 25 percent of employees in the bargaining unit currently are on a 4/10 schedule. DCAA Headquarter’s policy authorizes but does not require maxiflex schedules. During the September 12-13 session, management representatives also described administrative problems in making system entries of exceptions (changes) in maxiflex schedules. The Employer believes that decisions of the Panel emphasizing the need for agencies to demonstrate adverse impact to justify termination of flexible or compressed work schedules do not adequately take account of the new environment.

    Responding to the Union’s proposals the Employer finds no justification provided for increasing the number of credit hours that can be carried over from 14 to 24. Region management has the authority to set the carry-over number up to 24. The Union’s proposal to set office hours at 6:30 instead of the 7:00 set by the Employer is non-negotiable under FLRA precedent, NLRB Union Local 21 and NLRB (NLRBU and NLRB), 36 FLRA 853 (1990) (proposal on office hours concerns the exercise of management’s rights under Section 7106(a)(1)).

2. The Union’s Position

    The Union proposes to retain the 4 day workweek, arguing that the Employer has demonstrated no credible grounds for changing a long-standing condition of employment which contributes to employee morale, has come to be depended upon in family schedules, has been a recruiting draw for DCAA, and continues to be an option under DCAA Headquarters personnel regulations. Article 11 adequately provides for consideration of workload/exigencies, etc.

    The Union proposes an increase in the number of credit hours which an employee can carry over from pay period to pay period from the current 14 to 24, the maximum permitted by DCAA regulations. Other DCAA regions increased the credit hour carry-over when Headquarters regulations were revised, and the Union’s change is intended to bring the Northeast region into conformity with the others. Since elsewhere in Article 11 management is given the right to approve both the earning and use of credit hours, the Union sees no reason to restrict the carry-over number. Credit hours actually offer a mechanism for management to respond to deadlines without incurring the cost of overtime.

    Section 11.05(H) of the Union’s proposal provides that "’Office hours’ are between 0630 and 1800", and in subpart (1) that "Employees may start work as early as 0630 and leave as late as 1800." The current agreement provides for 7:00 but the Employer allows 6:00 and 6:30 start times at various work locations. The Union is seeking uniformity and consistency.

CONCLUSIONS ON HOURS OF WORK/MAXIFLEX

    The Arbitrator does not find the Employer’s arguments against continuing the 4/10 schedule to advance beyond speculation and assumptions about the impact of continuing such schedules. The speculation is that 4 day weeks will make the undeniably difficult challenges it faces more difficult. The assumption is that the 4 day week reduces productivity, makes deadlines harder to meet, work teams harder to operate, customers harder to satisfy, etc. However, these assumptions have not been supported by such things as documentation of a pattern of complaints (one or two do not make a case), specific examples of meetings postponed, deadlines delayed, etc. Throughout Article 11 are provisions that flexible/compressed schedules are subject to workload considerations and requirements for supervisory approval of schedules, change in schedules, credit hours, use of credit hours, etc. Undoubtedly these are burdens on supervisors, but the public policy established by the legislative and executive branches of our government is still firmly on the side of encouraging flexible schedules, revealing an implicit assumption that innovations like compressed schedules can improve productivity and enhance organizational flexibility.

    As to the increase in credit hours that can be carried over, consistency and expanded authority from DCAA Headquarters provide a rationale for increasing the hours, while there is really no rationale for not doing so. The earning and using of credit hours are entirely subject to supervisory approval.

    The Arbitrator orders adoption of the Union’s proposals retaining the 4/10 compressed work schedule and increasing the number of credit hours that may be carried over from 14 to 24 with the addition of language ensuring consistency with the terms of the Federal Employees Flexible and Compressed Work Schedules Act.(6)

    The Union may not negotiate over office hours. NLRBU and NLRB. It is permissible, however, for the Union to address flexible reporting times. There was no showing of need or even added convenience on the part of employees to support the proposed change from 7:00 to 6:30. The Union’s sole rationale was consistency. The implications of having start times different from office hours are unknown. The Arbitrator orders adoption of the Employer’s proposals on office hours and starting time.

AWARD

    For the reasons provided, the Arbitrator orders adoption of:

1. Section 4.04(B) of the Employer’s last offer.

2. Section 4.08 of the Employer’s last offer except that the block of time for the Council President shall be 30 hours and that for Local Presidents shall be 15, and with the addition of the following language:

One year following the effective date of this Agreement the Union shall, for a period of thirty (30) days following that one year anniversary, have the right to request reopening of this Section of the Agreement for the sole purpose of changing the number of block hours herein provided for official time. The status quo will be maintained during any negotiations following such reopener.

3. Section 4.10 of the Union’s last offer.

4. For Section 4.13 the following language:

Normally, only one Union representative will be granted official time to act in a representative capacity in any individual case. In the event additional representation is required, it will be at the mutual agreement of the Employer and the Union.

5. Section 11.04 of the Union’s last offer.

6. Section 11.05(A) of the Union’s last offer, adding the following additional sentence:

Maxiflex is to be implemented consistent with the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. chapter 61.

7. Language from the Union’s last offer increasing the number of credit hours that may be carried over from 14 to 24 (Article 11, Sections 11.05(E) and 11.06).

8. Language from the Employer’s last offer setting office hours and the time employees may start work as beginning at 7:00 AM (Article 11, Section 5 (G)).

Mary E. Jacksteit

Arbitrator

December 6, 1995

Takoma Park, Maryland

 

1.The key element of the Union proposal offered at the September 12-13 session addresses the number of critical elements receiving a minimally satisfactory rating that will lead to an overall rating of minimally satisfactory (the Union wants two, the Agency one.) Existing FLRA decisions raise a substantial question as to the negotiability of this aspect of a performance appraisal system. See AFSCME Council 26 and US Department of Justice, 13 FLRA 578 (1984)(‟the Union’s proposal which would establish the particular levels of performance in individual job elements which would be required to achieve a particular summary rating for overall performance is not within the duty to bargain.”)

2.Following the September 13 session the Arbitrator provided the parties with a list of all documents that had been provided during either the pre-mediation investigation or during the mediation. In every case, these materials were provided to the Arbitrator by either the Union or the Employer. Both parties were invited to provide any additional evidence they considered material to the Arbitrator’s consideration. Both agreed to a schedule of joint written submissions and responses. No requests for any additional opportunity to complete the record were received from either party.

3.Data on official time use was offered by the Employer for the years 1992 through June 1995. Besides demonstrating a sizeable increase over this period, this data shows one local officer with hours exceeding those of another who combines the duties of Council President and Local President.

4.That contract uses a "reasonable time" standard for "all matters relating” to the administration of the contract and labor-management relations, with "reasonable time” defined as "the necessary time to accomplish the representational task.” As for procedures, it requires that the time needed will be "mutually agreed upon in advance” on a case-by-case basis, that whenever representatives "desir[e] to set aside their principal work to engage in a representative capacity” (except to answer incoming calls) they must notify an immediate supervisor who is to approve requested official time unless there would be "an adverse impact on time-sensitive work . . ..”

5.The Employer suggests that equal numbers in labor-management meetings are Statutorily mandated. Actually, Section 7131 which does impose that limitation, applies only to negotiations of collective bargaining agreements.

6.In its final submission the Employer raised the case of General Services Administration, Washington,D.C. and National Federation of Federal Employees (GSA and NFFE), 50 FLRA No.28 (February 23, 1995) which holds that an agency need not honor a contract provision expressly allowing employees to combine a compressed work schedule and a flexible work schedule, adopting OPM guidance that combining the two is inconsistent with the Federal Employees Flexible and Compressed Work Schedule Act of 1982. The negotiated agreement here does not contain a comparable provision. The Arbitrator does not read Article 11 as explicitly permitting employees to combine the two types of schedules so as to run afoul of the law as in the GSA and NFFE case. Schedules, and any changes, are to be submitted in advance to supervisors for approval. Thus it is in implementing Article 11 that the parties need to be cognizant of the implications of this case. To make this clear a sentence is added referring to t