DEPARTMENT OF THE ARMY ARMY COMMUNICATIONS-ELECTRONICS COMMAND FORT MONMOUTH, NEW JERSEY and LOCAL 1904, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF THE ARMY
ARMY COMMUNICATIONS-ELECTRONICS
  COMMAND
FORT MONMOUTH, NEW JERSEY

and

LOCAL 1904, AMERICAN FEDERATION
  OF GOVERNMENT EMPLOYEES, AFL-CIO

 

Case No. 03 FSIP 28

DECISION AND ORDER

    Local 1904, 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 (Statute), 5 U.S.C. § 7119, between it and the Department of the Army, Army Communications-Electronics Command (CECOM), Fort Monmouth, New Jersey (Employer).

   Following investigation of the Union’s request for assistance in the case, which arose during negotiations over the CECOM Overtime Handbook (Overtime Handbook or Handbook) for employees,(1) the Panel determined that the dispute should be resolved through an informal conference by telephone with Supervisory General Attorney Ellen J. Kolansky. The parties were advised that if no settlement was reached, Mrs. Kolansky would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.

    Pursuant to this procedural determination, Mrs. Kolansky spoke with the parties by conference call on February 25, 2003. Although the parties explored several alternative proposals during the procedure, they were unable to resolve the issue in dispute. Afterwards, they submitted brief statements in support of their final offers. Mrs. Kolansky has reported to the Panel and it has now considered the entire record, including the parties’ statements of position.

BACKGROUND

    The Employer develops communication and electronic equipment and engages in contracting for such items. The Union represents approximately 2,300 bargaining-unit employees who work in numerous positions that involve procurement, contracting, computers, and logistics management; the unit includes budget analysts, computer operators, electrical technicians, and clerks, at grades GS-4 through -13. Approximately 1,100 of these employees are exempt from the Fair Labor Standards Act (FLSA), and will be affected by the outcome of this dispute. The collective bargaining agreement (CBA) was first implemented in 1982; although certain articles have been renegotiated from time to time, the CBA has been rolled over year after year since then.

ISSUE AT IMPASSE

    The parties essentially disagree over the standard a supervisor should apply when determining whether to grant an FLSA-exempt employee’s request for paid overtime.

POSITIONS OF THE PARTIES

1. The Union’s Position

The Union proposes the following wording:

An exempt employee may request the payment of overtime instead of compensatory time. The Employer will grant the exempt employee’s request for paid overtime when it can do so within budgetary constraints.

These FLSA-exempt employees are "not professional; the majority do not have degrees of any kind; they are ‘working folks.’" Their requests for overtime ought to be granted unless "budgetary constraints" dictate otherwise. Although "no provision had heretofore been included in the [CBA] addressing the payment of overtime to exempt employees, [the] law [does] not preclude such payment."(2) Furthermore, paying employees overtime is more economical because the Employer "never loses them or their services." When the Employer grants employees compensatory time, it is paying double because it is paying for a workday, but the employee is not at work. By paying overtime, the Employer is receiving a workday at a lower rate because overtime is 1½ times the minimum rate of GS-10 basic pay, while the employee’s normal rate of pay may be higher. The proposed wording is appropriate because it "acknowledges the agency’s budgetary constraints" and "leaves the decision within the discretion of the agency." Thus, the proposal would not "bust" the Employer’s budget. With respect to the Employer’s data on overtime costs, such costs increased in FY 2002 due to the response to the events of 9/11, a period of unusually high needs and, therefore, should be disregarded. Finally, the Union’s position is also supported by the results of an employee survey, which found that exempt employees "overwhelmingly expressed the desire" to choose between paid overtime and compensatory time.

2.  The Employer’s Position

    The Employer’s offer at the conclusion of the informal conference by telephone reads:

The Employer acknowledges that an exempt employee may prefer paid overtime rather than compensatory time for overtime hours worked. Any such preference relayed by the employee will be given serious consideration by the Employer.

The Employer also would find equally acceptable as a resolution to the dispute the following wording, which was presented to, but rejected by, the Union subsequent to the informal conference by telephone:

An exempt employee may request overtime instead of compensatory time. The Employer may grant the exempt employee’s request for paid overtime.

These proposals reflect the status quo, i.e., that supervisors should retain the discretion to offer compensatory time, yet "s