U.S. Federal Labor Relations Authority

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United States of America 



In the Matter of

Department 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 employees.[1]/  

     After 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. 

     Pursuant 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.[2]/ 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.    


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.[3]/


1.  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. 

    As 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.”[4]/   

    Any 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 deadlines. 

     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.

2.   The Union’s Position

   The Panel should find that the Employer has not met its burden under the Act with respect to either of the Union’s alternative CWS proposals.[5]/  The information the Employer relies on in making its determination is misleading.  In this regard, “[t]he crux of the Agency’s argument centers on the Agency’s increased workload and emergent work resulting from deployments.  Agency work is normally planned weeks and/or months in advance.”  An employee’s individual schedule “becomes irrelevant due to the long range planning of the majority of the Agency’s workload.”  In reality, “emergent work does not occur to the extent that [bargaining-unit employee’s] are required to be present at work to perform short-notice tasks.”  The Employer’s argument that a bargaining-unit employee’s excused absence could cause a delay or backlog in production is untrue.  Follow-on containers are regularly shipped out after the initial deployment of a hospital.  Thus, any items that may be delayed by an employee’s excused absence, however unlikely that is, would be handled through this process and not cause the hospital’s deployment to be unduly delayed.  

     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 “preposterous.” 

    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.”[6]/  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. 


     Pursuant 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.    

By direction of the Panel. 

H. Joseph Schimansky
Executive Director

June 10, 2004
Washington, D.C.

[1]/ 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.


[2]/ 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.


[3]/   5 U.S.C. § 6131(b) defines adverse agency impact as: 

(1) a reduction in the productivity of the agency;

(2) a diminished level of the services furnished to the public by the agency; or

(3) 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.

[4]/ 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.

[5]/ 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.

[6]/   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).