DEPARTMENT OF THE ARMY HEADQUARTERS XVIII AIRBORNE CORPS AND FORT BRAGG, FORT BRAGG, NORTH CAROLINA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1770
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF THE ARMY HEADQUARTERS XVIII AIRBORNE
CORPS AND FORT BRAGG,
FORT BRAGG, NORTH CAROLINA
andAMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1770
Case No. AT-CA-40818
Mr. Ronald Ray Katt For the Charging Party
Sherrod G. Patterson, Esquire For the General Counsel
Before: WILLIAM B. DEVANEY Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, et seq. (1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether,
after reaching impasse in negotiations, Respondent violated §
16(a)(5) and (1) by terminating a compressed workweek without
presenting the impasse to the Federal Service Impasses Panel
(hereinafter, "Panel" or "FSIP"). Respondent asserts, in effect,
that it presented the Union with requested data showing "adverse
agency impact", i.e., specifically,
increase in the cost of agency operations (5 U.S.C. § 6131(b)(3)),
and, if it disagreed, the Union was obligated to present the matter
to the Panel; the Union did nothing and, accordingly, the
discontinuance of the compressed workweek was proper. For reasons
fully set forth hereinafter, I disagree. Discontinuance of an
established compressed workweek, when negotiations have reached an
impasse, without submission of the matter to the Panel is a
violation of the Statute even if the Union has not bargained in
This case was initiated by a charge filed on July 14, 1994
(G.C. Exh. 1(a)) and the Complaint and Notice of Hearing issued on
March 9, 1995, setting the hearing for May 23, 1995 (G.C. Exh.
1(c)), pursuant to which a hearing was duly held on May 23, 1995,
in Fayetteville, North Carolina, before the undersigned. All
parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the
issues involved, and were afforded the opportunity to present oral
argument which all parties waived. At the conclusion of the
hearing, June 23, 1995, was fixed as the date for mailing
post-hearing briefs and Respondent and General Counsel each timely
mailed a brief, received on, or before June 28, 1995, which have
been carefully considered. Upon the basis of the entire record, I
make the following findings and conclusions:
1. The American Federation of Government Employees,
Local 1770, AFL-CIO (hereinafter, "Union"), is the exclusive
representative of an appropriate unit of employees of Respondent
and the parties have entered into a multi-unit Agreement (Joint
Exh. 1), a Ground Rules Agreement for I&I bargaining (signed
April 11, 1991) and Addendum thereto (signed September 11, 1992)
(Joint Exh. 2, Attachments).
2. The Resource Management Division, Directorate of
Personnel and Community Activities, has about twelve to fifteen
employees, two of whom are supervisors (Tr. 17, 24). On, or about,
October 23, 1992, all but four or five Resource Management
employees, including the two supervisors, went on a compressed
workweek, whereby they worked four, ten-hour days per week (Tr.
20-21). The compressed workweek schedule remained in continuous
effect until April 18, 1994 (Joint Exh. 9) (Mr. Samuel Faircloth's
testimony that the date was April 1, 1994, i.e. Good Friday (Tr. 21), was in error).
3. By letter dated December 15, 1993 (Joint Exh. 4),
Respondent notified the Union of its intent to discontinue the
compressed work schedule in the Resource Management Division
effective January 9, 1994. Respondent stated that, ". . . The
current schedule of 4, 10-hour days has proven to be in conflict
with providing support to their internal and external customers and
has increased overtime requirements . . . ." (Joint Exh. 4). It
enclosed in support a memorandum dated December 8, 1993, signed by
Colonel Raymond A. Barbeau, Director of Personnel and Community
4. By letter dated December 29, 1993 (Joint Exh. 5), the
Union responded, in part, as follows:
". . . the following proposals are
"1. Status Quo;
"2. There will be no change in the
Compressed Work Schedule, without negotiation;
"The current agreed to I & I 'Ground
Rules' will apply to these negotiations.
. . ." (Joint Exh. 5).
In addition, the Union submitted a request for information
pursuant to § 14(b)(4) of the Statute and suggested that the
parties begin negotiations on January 4 or 6, 1994; however, the
letter closed with the statement that, "Upon receipt of requested
information and a reasonable amount of time to review requested
information, Impact and Implementation bargaining . . . may
continue . . . ." (Joint Exh. 5).
5. Respondent replied by letter dated January 5, 1994
(Joint Exh. 6) and stated that the information requested was not
retained in Personnel but that the information had been requested
and would be supplied upon receipt.
6. Initially, the Union had designated Mr. William Hall
as its spokesperson and point of contact (Joint Exh. 5); but in
January, 1994, Mr. Ronald R. Katt was designated as the Union's
point of contact. Mr. Katt stated that one of the first things he
did was ask to meet with the employees of Resource Management; that
Respondent did not object; and he met with the two supervisors and
the employees during the first week of January (Tr. 41). He stated
that the employees ". . . did not want to come off of it"
[compressed work week] (Tr. 41, 42).
7. Respondent supplied the information requested by
letter dated January 27, 1994 (Res. Exh. 2, Enclosures) and in its
letter of transmittal stated,
"Documentation regarding specific situations which conflict with providing support for internal
and external customers are not maintained. However, verbal summaries of such instances can
be provided during discussions with your office." (Res. Exh.
8. Mr. Katt stated that he suggested to Ms. Ruth
Crumley, Respondent's representative, after talking to the
employees, that ". . . maybe Management could just put the two
supervisors back" (Tr. 43); that they had negotiations scheduled
for 9:00 a.m. on January 10, 1994, and Ms. Crumley called at about
8:15 a.m. and told him that the two supervisors were going to be
put back on a five day work week and, "That that would probably
take care of the problems . . ." that the "main focal point was
having those supervisors right there constantly." (Tr. 44). Mr.
Katt stated that Ms. Crumley said she didn't see any need for them
to meet at that time.
Ms. Crumley did not wholly agree with Mr. Katt's version.
She stated that there had, indeed, been a meeting set for January
10 but, "There was a conflict, and I don't remember exactly what
the conflict was, but for some reason the meeting could not be
held, but I passed on the information at that time that the
supervisors' schedules had already been changed, that Colonel
Barbeau would access the impact of it, and we probably would get
together at a later date for any actual negotiations." (Tr. 103).
Ms. Crumley specifically denied that she ever said that just taking
the supervisors off the compressed schedule would satisfy the
situation and emphasized that she said only that Colonel Barbeau
would assess the impact of taking the supervisors off the
compressed work schedule. (Tr. 103).
9. By letter dated January 19, 1994 (Joint Exh. 7),
Respondent informed the Union that it intended to reinstate the
8-hour-a-day, 5-day-a-week schedule for all personnel in Resource
Management Division, supervisory personnel having already been
converted to that schedule. Respondent concluded by stating,
"Please provide any proposals you care to make by January 26, 1994. We will then
arrange a meeting . . . for Impact and Implementation
bargaining . . . . ." (Joint Exh. 7).
10. The Union replied by letter dated January 24, 1994
(Joint Exh. 8), asserting, in part, that inasmuch as 5 U.S.C. §
6131(a) states, "if the head of an agency finds . . . ." and,
"There is no indication in your
correspondence that Lieutenant General (LTG) Shelton is even aware
of the proposal . . . Barring such a determination by LTG Shelton,
the issue of not continuing any flexible or compressed schedule is
not in an appropriate posture for negotiations. . . ." (Joint Exh.
11. Mr. Katt stated that he might have had a
conversation with Ms. Crumley between the date of the Union's
letter of January 24 and Respondent's letter of April 13, 1994 (Tr.
48); however, the first response of any moment by Respondent was
its letter of April 13, 1994 (Joint Exh. 9) in which it stated, in
part, as follows:
". . . your unilateral determination that the Commanding General is the only person
authorized to decide whether or not activities continue or discontinue flexible or compressed
schedules at the unit level is puzzling. The Commander delegates personnel management
responsibilities to the head of the local activity as a necessary part of command. The Director
of Community Activities is charged with the operation of that Directorate and, as such, is
responsible for making these determinations.
However, we need to resolve the matter. My belief is that we have supplied the rationale
and all documentation to you to illustrate Management's view. In a telephone conversation with
you sometime in late January we discussed the two proposals you made in your December 29,
1993, letter (i.e., (1) status quo and (2) no change without negotiation). While these two items
might possibly be considered proposals in a technical sense, they, in effect, say "No" without
any chance of resolution. We have nothing to work with in
reaching a common ground.
As I stated, I would like to resolve this issue. If you have concerns, please advise me.
Otherwise, Management intends to implement the termination . . . on April 18, 1994 . . . ."
(Joint Exh. 9).
12. The Union replied by letter dated April 18, 1994.
(Joint Exh. 10). At the outset, the Union reiterated its position
". . . The above Statute does not contain any authority to delegated [sic] the decision to cease
flexible or compresses [sic] work schedules. Further, ceasing flexible or compressed work
schedules are agency wide decisions. . . ." (Joint Exh. 10,
The Union further stated, in part, that,
"While you view statue [sic] quo and no change without negotiations as merely saying
"no" without any chance of resolution, the Union sees the Agency's proposal of totally ceasing
AWS as providing no possible middle ground for resolution. You should expect your
ultimatum from management to beget an ultimatum from the Union. If indeed you would like to
resolve the issue, provide the demonstrated need to cease all AWS for the three Resource
Management Division; otherwise, make an alternative proposal of some other AWS. Also, I
request you should reconsider your intentions to implement without completing negotiations."
(Joint Exh. 10, pp. 2-3).
13. Respondent terminated the compressed workweek on
April 18, 1994.
If this case involved merely bargaining under the Statute,
one would have to conclude that neither party demonstrated any good
faith effort to bargain. cf. U.S. Department of Commerce, U.S. Merchant Marine Academy,
Kings Point, New York, A/SLMR No. 620, 6 A/SLMR 119, 6
A/SLMR Supp. 30 (1976). But here the provisions of the Flexible and
Compressed Work Schedules Act of 1982 (hereinafter also referred to
as the "Act"), P.L. 97-221, 5 U.S.C. § 6121, et seq., also apply and, in my
judgment, are controlling. Thus, § 6130 provides, in part, as
(a) (1) In the case of employees in a unit represented by an exclusive representative, any
flexible or compressed work schedule, and the establishment and termination of any such
schedule, shall be subject to the provisions of this subchapter and the terms of a collective
bargaining agreement between the agency and the exclusive
"(2) Employees within a unit represented by an exclusive representative shall not be
included within any program under this subchapter except to the extent expressly provided
under a collective bargaining agreement. . . .
. . . ." (5 U.S.C. § 6130)
Section 12 of Article XI of the parties' Agreement (Joint Exh.
"Irregular tours of duty, if established, will be in accordance with government-wide
rules and regulations.";
and Section 13 of Article XI provides:
"The parties acknowledge that Agency regulations recognize the possibility of
establishing flextime work schedules. Where the Employer determines that such schedules
would promote efficiency of government operations and/or improve productivity, such
arrangements may be implemented. The Union will be entitled to present its views to the
Employer regarding the feasibility of establishing flextime work schedules on a case-by-case
basis and the parties will discuss the matter.
Mr. Truman Earl Bullard, Sr., President of the Union, testified
that the alternative work schedule (AWS), compressed workweek,
etc. were currently used at Fort Bragg in a
wide variety of situations (Tr. 72); that Respondent did not want
to negotiate a post-wide policy because of the diversity in the
activities (Tr. 73); and that Respondent gives the Union notice of
intent to implement an AWS and if the employees want it and they
benefit from it, the Union does not object and the AWS is
implemented; however, if employees later wanted a different
schedule, the Union would negotiate further. (Tr. 73). Mr. Bullard
further testified that AWS terminations had been negotiated. (Tr.
§ 6131 provides, in relevant part, as follows:
(a) Notwithstanding the preceding provisions of this subchapter or any collective
bargaining agreement and subject to subsection (c) of this section, if the head of an agency
finds that a particular flexible or compressed schedule under this subchapter has had or
would have an adverse agency impact, the agency shall
promptly determine not to--
(1) establish such schedule; or
(2) continue such schedule, if the schedule has
already been established.
(b) For purposes of this section, "adverse agency
(1) a reduction of the productivity of the
(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
(c) (1) This subsection shall apply in the case of any schedule covering employees
in a unit represented by an exclusive representative.
. . . . .
(3) (A) If an agency and an exclusive representative have entered into a
collective bargaining agreement providing for use of a flexible or compressed
schedule under this subchapter and the head of the agency determines under
subsection (a)(2) to terminate a flexible or compressed schedule, the agency
may reopen the agreement to seek termination of the
(B) If the agency and exclusive representative reach an impasse in
collective bargaining with respect to terminating such schedule, the impasse
shall be presented to the Panel.
. . .
(D) Any such schedule
may not be terminated until--
(i) the agreement covering
such schedule is renegotiated . . . ; or
(ii) the date of the Panel's final decision, if an impasse arose in the
reopening of the agreement under
subparagraph (A) of this paragraph.
. . . ." (5 U.S.C. § 6131)
Respondent supplied data which it asserted demonstrated
adverse agency impact, the Union asserted that the data failed to
show any adverse agency impact, or, as Mr. Bullard testified, ". .
. we analyzed the information [Res. Exh. 2], and found no evidence
that supported the -- there was no relationship to the ten hour
schedule to cause this situation." (Tr. 89). Mr. Bullard asserted
that until Respondent produced, ". . . adequate evidence to show
that the ten hour schedule is causing the overtime, and the other
problems as alleged . . . ." (Tr. 91) it was inappropriate for the
Union to make "I & I" proposals; that it would proceed to "I
& I" proposals only when we got beyond the substantive issue of
termination; that "I & I" would have been appropriate if
Respondent had made proposals of other AWS, but Respondent never
made any alternative proposal. Respondent repeatedly sought
proposals from the Union but received none. In effect, Respondent
proposed termination of the compressed work schedule; the Union
said don't make any change; Respondent said here is proof of
adverse agency impact; the Union said we aren't convinced;
Respondent said give us your proposals; the Union said our proposal
is: don't make any change; etc.(2)
The Regulations of the Federal Service Impasses Panel
implementing the provisions of section 6131 of Title 5 of the
United States Code, define "impasse" as:
". . . that point in the negotiation of flexible and compressed work schedules at which the
parties are unable to reach agreement on whether a schedule has had or would have an
adverse agency impact." (5 C.F.R. § 2472.2(j)).
Plainly, the parties did not agree that the compressed work
schedule, which had been in effect in the Resource Management
Division for about eighteen months, had had an adverse agency
impact. It is equally plain that, where there is an exclusive
representative, a compressed work schedule may be terminated
only if it has had an adverse agency
impact; and if there is disagreement as to
whether there has been an adverse agency impact, the agency may not terminate the
scheduleuntil thePanel determines whether the agency's
findings, on which its determination to terminate the CWS
was based, are supported by evidence.
Unlike other negotiation impasses where, pursuant to § 19 of the
Statute, the services of FSIP may be
requested and the failure
of a union after impasse to timely request the
assistanceof FSIP permits
the agency to implement, U.S. Air Force,
Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, 5 FLRA 288 (1981); U.S. Customs
Service, 16 FLRA 198 (1984); Department of
Health and Human Services, Social Security Administration,
Baltimore, Maryland, 16 FLRA 217 (1984); Department of the Air Force, Scott Air Force Base,
Illinois, 33 FLRA 532, 545-547 (1988), the Act prohibits
termination of a CWS until the date of the Panel's final
decision (5 U.S.C. § 6131(c)(3)(D)(ii)). It
matters not that an agency has bargained in good faith and/or that
the union has not; if there is disagreement, as clearly there was
here, as to whether the CWS has had an adverse agency impact, the
agency may not terminate the CWS until the Panel's final decision.
To be sure, either party could have requested the Panel to resolve
the impasse, 5 C.F.R. § 2472.3; but the Act prohibits the Agency
from terminating the CWS until the Panel has decided. Respondent
was not obligated to request that the Panel resolve the impasse;
but it could not lawfully terminate the CWS unless and until the
Panel decided that Respondent's determination to terminate the CWS
was supported by evidence. Because it is unnecessary, I expressly
do not decide the merits of the Union's assertion concerning
non-delegation of "head of an agency" authority in § 6131, although
it is noted that the FSIP appears to disagree, Department of Veterans Affairs, Edith Nourse Rogers Memorial
Veterans Hospital, Bedford, Massachusetts, Case No. 95 FSIP
24, FSIP Release No. 374 (May 24, 1995); as does the Authority with
respect to the use of that term in § 14(c) of the Statute,
National Treasury Employees Union,
supra, n.2, 39 FLRA at 30. Because
termination of a compressed work schedule is part of the bargaining
process under the Statute, 5 U.S.C. §§ 6121(8), 6131; Defense Logistics Agency, Defense Industrial Plant Equipment
Center, Memphis, Tennessee, 44 FLRA 599 (1992); National Treasury Employees Union, Chapter 24, 50 FLRA
330, 332 (1995), Respondent violated §§ 16(a)(5) and (1) of the
Statute by its termination of the compressed work schedule without
a final decision of the FSIP finding that Respondent's
determination to terminate the schedule was supported by evidence.
Space Systems Division, Los Angeles Air Force
Base, Los Angeles, California, 45 FLRA 899, 904 (1992).
Accordingly, it is recommended that the Authority adopt the
Pursuant to § 2423.29 of the Rules and Regulations, 5 C.F.R.
§ 2423.29, and § 18 of the Statute, 5 U.S.C. § 7118, it is hereby
ordered that the Department of the Army, Headquarters, XVIII
Airborne Corps and Fort Bragg, Fort Bragg, North Carolina,
1. Cease and desist from:
(a) Unilaterally terminating a compressed work
schedule for its Resource Management Division employees prior to
the date of the Federal Service Impasses Panel's final decision,
pursuant to 5 U.S.C. § 6131(c)(1), (3)(A), (C) and (D), that
Respondent's determination to terminate the schedule is supported
(b) In any like or related manner, interfering
with, restraining or coercing its employees in the exercise of the
rights assured by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Upon request of the American Federation of
Government Employees, Local 1770 (hereinafter, "Union"), the
exclusive representative, re-establish the previous compressed work
schedule for its Resource Management Division employees.
(b) Give the Union notice and the opportunity to
negotiate with respect to any proposed change in the compressed
workweek schedule after its re-establishment.
(c) Post at its facilities at Fort Bragg, North
Carolina, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by the Commanding Officer of the XVIII
Airborne Corps, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that
such Notices are not altered, defaced, or covered by any other
(d) Pursuant to § 2423.30 of the Rules and
Regulations, 5 C.F.R. § 2423.30, notify the Regional Director of
the Atlanta Region, Federal Labor Relations Authority, 1371
Peachtree Street, NE, Suite 122, Atlanta, Georgia 30309-3102, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
July 27, 1995
AS ORDERED BY THE FEDERAL LABOR RELATIONS
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally terminate a compressed work schedule
for the employees of our Resource Management Division without a
final decision of the Federal Service Impasses Panel finding that
our determination to terminate the schedule is supported by
WE WILL NOT, in any like or related manner, interfere with,
restrain or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations
WE WILL, upon request of the American Federation of Government
Employees, Local 1770, the exclusive representative, re-establish
the previous compressed work schedule program for the employees of
our Resource Management Division and WE WILL give the American
Federation of Government Employees, Local 1770, notice and
opportunity to negotiate with respect to any proposed change in
that schedule after its re-establishment.
Date: ________________________________ By: ____________________________________
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Atlanta Region, whose address is: 1371 Peachtree Street, NE, Suite 122, Atlanta, Georgia 303