States of America
THE FEDERAL SERVICE IMPASSES PANEL
of THE NAVY
Case No. 04 FSIP 26
The National Association of
Independent Labor, Local 1 (Union), filed a request for assistance with the
Federal Service Impasses Panel (Panel) pursuant to the Federal Employees
Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. § 6120 et
seq., to resolve an impasse arising from a decision by the Department of the
Navy, Fleet Hospital Support Office, Williamsburg, Virginia (Employer), not to
establish a 5-4/9 compressed work schedule (CWS) for its bargaining-unit
investigation of the request for assistance, the Panel determined that the
dispute should be resolved through an informal telephone conference with Panel
Member Grace Flores-Hughes, preceded by written submissions. The parties were
advised that if no settlement was reached during the informal teleconference,
Member Flore-Hughes 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 final action in accordance with 5 U.S.C. §
6131 and 5 C.F.R. § 2472.11 of its regulations.
to this procedural determination, Member Flore-Hughes conducted an informal
teleconference with the parties on April 27, 2004, following receipt of their
written submissions. The parties, however, were unable to resolve their dispute./
Subsequent to the informal teleconference, the parties submitted
to the Panel, and each other, their final offers and statements of position on
the issue. The Panel has now considered the entire record, including the
parties’ pre- and post-conference submissions, and Member Flores-Hughes’
recommendation for resolving the dispute.
The Employer’s mission is to provide health service capabilities to support military component commanders in operational missions, i.e., it designs and deploys a variety of portable hospitals for emergency situations. The Union represents approximately 32 bargaining-unit employees who work in such positions as budget analyst, engineering specialist, quality assurance specialist, and logistics specialist, at grades GS-5 through –12. The master collective bargaining agreement (MCBA) was signed on September 5, 2003.
ISSUE AT IMPASSE
In accordance with section 6131(c)(2)(b) of the Act, the issue in dispute is whether the findings on which the Employer bases its determination not to establish the 5-4/9 CWS the Union proposes is supported by evidence that the schedule is likely to cause an adverse agency impact./
The Employer’s Position
The Panel should find that the evidence on which the Employer bases its determination not to implement the proposed CWS establishes that the schedule is likely to cause an adverse agency impact, as defined under the Act. The proposed schedule, if implemented, would: (1) reduce the productivity of the Employer; (2) diminish the level of service provided to its customers; and (3) increase the costs of agency operations.
to a reduction in productivity, the implementation of the proposed CWS would
likely result in missed deadlines and lead to a backlog of orders for fleet
hospitals. Since September
11, 2001, the demand for portable hospitals has increased.
In the last year and a half, two new hospitals have been designed and a
total of five hospitals have been deployed.
Prior to the War on Terrorism, the last hospital was deployed in 1995 for
the Gulf War. In addition to this increase, a new directive has been issued to
re-design the entire fleet of hospitals, while continuing the production of new
hospitals and the refurbishing of older hospitals.
Before September 11, the workflow was primarily based on a set schedule,
with allowances for a few emergency situations that might crop up during the
year. Currently, however, the
schedule is subjected to a constant stream of emergencies, with much less
predictability and less advance preparation time.
Based on this increased workload and its unpredictability, “[i]t is
possible that the contractor’s work could be delayed if the [bargaining-unit]
employees were unavailable as a result of the additional 26 days per year CWS
employees would be absent.”/
delay in production could delay the deployment or critical functioning of a
hospital, which could harm our troops overseas.
In addition to this concern, many of the bargaining-unit positions are
only one-deep so that resolution of problems “would be possibly delayed until
the employee returns to work,” or coverage for these positions would fall
either to a supervisor or military personnel.
Regularly adding such responsibilities to the supervisor’s or military
personnel’s duties could present a hardship to those individuals in completing
their own assignments. Furthermore,
having an employee on-site an extra hour a day is pointless if the employee’s
contacts and distributors are unavailable during that time, or if the contacts
or distributors are available but the employee is on a CWS day off.
Either way, the Employer has to bear the burden of the employee’s
unproductive time. For these
reasons, the imposition of a CWS, even on a short pilot program basis, would
reduce productivity and likely cause the Fleet Hospital to miss important
On the issue of diminished customer service, all employees need to work 5/8 schedules so that, upon request, timely information can be provided to customers and superiors on the subjects where they are experts. In regards to increased costs, “[a]dditional overtime would be necessary to cover when employees were unavailable due to their CWS day off – especially during short-fused mission requirements.” Another expenditure that may adversely affect the budget is the hidden increase of carry-over use or lose leave for employees on CWS.
The Union’s Position
As to the Employer’s
diminished customer service argument, it is erroneous because bargaining-unit
employees do not currently participate in providing a response to these types of
questions or scenarios. In fact,
“[m]ost contacts by [bargaining-unit employee’s] with customers are via
e-mail, voice mail or telephone, with a day or more response time.”
It is more likely that a supervisor would be involved in responding to
these emerging questions than a bargaining-unit employee.
Contrary to the Employer’s assertions about increases in cost, overtime
would likely decrease because an employee would be available an extra hour per
day at the regular rate of pay. The
remainder of the Employer’s increased cost argument citing carry-over leave is
Implementing the CWS would
increase employee productivity by: (1) saving time spent on daily start-up and
shut-down procedures; (2) allowing an extra hour of overlap with West Coast and
central time zone distributors; (3) decreasing overtime hours, since employees
would be present 1 more hour per day; and (4) increasing the number of hours
that bargaining-unit employees would work with Honeywell contractors.
In addition, the schedule would lead to a decrease in leave usage because
employees would be more likely to schedule house or automobile repairs,
doctor’s appointments, etc., on their compressed day rather than use annual or
sick leave. Based on all of these
benefits, and the Employer’s inability to substantiate its claims, the Panel
should order the parties to negotiate over the Union’s proposed 5-4/9 CWS.
Under section 6131 (c)(2) of the
Act, the Panel is required to take final action in favor of the agency head’s
(or delegatee’s) determination not to establish a CWS only if the finding on
which it is based is supported by evidence that the schedule is likely to cause
an “adverse agency impact.” As
its legislative history makes clear, Panel determinations under the Act are
concerned solely with whether an employer has met its statutory burden.
It also establishes that in hearing both sides of the issue, the Panel is
not to apply “an overly rigorous evidentiary standard,” but must determine
whether an employer has its statutory burden on the basis of “the totality of
the evidence presented.”/
Having carefully considered
the totality of the evidence in the record before us, we are persuaded that the
Employer has met its statutory burden. Accordingly,
we shall order the Union to withdraw its alternative CWS proposals.
to the authority vested in it by the Federal Employees Flexible and Compressed
Work Schedules Act, 5 U.S.C. § 6131 (c), the Federal Service Impasses
Panel under § 2471.11(b) of its regulations hereby orders the Union to
withdraw its 5-4/9 compressed work schedule proposals.
direction of the Panel.
H. Joseph Schimansky
/ Initially, the Union submitted its request for assistance under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119. After the Employer submitted its adverse agency impact determination under the Act, the Union revised its request.
/ During the preliminary conference call, and after the receipt of the parties’ initial position statements, Member Flores-Hughes permitted the Employer to submit additional information regarding its determination not to establish the CWS. The Employer provided this supplemental information prior to the start of the informal conference, which allowed the Union time to review it in advance.
5 U.S.C. § 6131(b) defines
adverse agency impact as:
a reduction in the productivity of the agency;
a diminished level of the services furnished to the public by the agency; or
an increase in the cost of operations (other than a reasonable
administrative cost relating to the process of establishing a flexible or
compressed work schedule).
The burden of demonstrating that the implementation of a proposed CWS is likely to cause an adverse agency impact falls on the employer under the Act. See 128 CONG. REC. H3999 (daily ed. July 12, 1982) (statement of Rep. Ferraro); and 128 CONG. REC. S7641 (daily ed. June 30, 1982) (statement of Sen. Stevens). Moreover, under the Act employers are only required to demonstrate adverse agency impact under one of the three criteria in 5 U.S.C. § 6131(b) to meet their burden of proof.
/ There are some 70 full-time employees on staff; there are 8 or so civil service positions in addition to the bargaining-unit employees; military personnel hold approximately 20 positions; and 10 positions are filled by contract employees. In addition to regular full-time staff, there are approximately 60 Honeywell contract employees whose main duties are to build and pack the hospitals (Honeywell contractors). Currently, full-time employees are working a standard 5-8 hour shift, while the Honeywell contractors are presently working 6-days-per-week and 10-hours-per-day, except for Saturdays when they only work 8-hours-per-day.
/ In relevant part, the Union’s primary 5-4/9 CWS proposal is:
Employees will submit their preferred work schedule to their chain of command for approval. The Employer will make final determination as to the work schedule of each employee who requests the 5-4/9 compressed work schedule, taking into consideration individual preferences and the needs of the command in determining its mission.
As an alternative offer, the Union proposes the above as a “Pilot/Test Program” of unspecified duration. Prior to completion of the Pilot/Test period, the parties would resume negotiations on whether the 5-4/9 compressed work schedule would continue.
See the Senate report, which states:
The agency will bear the burden in showing that such a schedule is likely to have an adverse impact. This burden is not to be construed to require the application of an overly rigorous evidentiary standard since the issues will often involve imprecise matters of productivity and the level of service to the public. It is expected the Panel will hear both sides of the issue and make its determination on the totality of the evidence presented. S. REP. NO. 97-365, 97th Cong., 2d Sess. at 15-16 (1982).