United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE INTERIOR
NATIONAL TREASURY EMPLOYEES UNION
Case No. 05 FSIP 95
DECISION AND ORDER
The National Treasury Employees Union (Union or NTEU) 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 Interior, National Park Service, Washington Administrative Services Organization, Washington, D.C. (Employer or WASO).
After investigation of the request for assistance, the Panel determined that the dispute, which involves an hours of work issue that arose during the parties' negotiations over their initial collective bargaining agreement (CBA),1/ should be resolved through an Order to Show Cause why the Panel should not impose the recommendation of a private mediator/arbitrator that they "adopt a Monday-Friday, 5:30 a.m. to 8:30 p.m. flexible work band" to settle their dispute.2/ In this regard, each side was directed to submit a statement of position with supporting arguments and evidence, including its proposal to resolve the matter if it is different from what the mediator/arbitrator recommended. The parties also were advised that, after considering the entire record, the Panel would take whatever action it deems appropriate to resolve the dispute, which could include the issuance of a binding decision. The parties' final offers and statements of position were received pursuant to this procedure, and the Panel has now considered the entire record.
The Employer (WASO) provides guidance, service, and advice, primarily to personnel at the 388 parks within the NPS. NTEU represents approximately 834 professional and nonprofessional employees in 23 states, GS-5 through -15, about 500 of whom are located in the Washington, D.C., and metropolitan area. The CBA between WASO and NFFE was to have expired in 1991, but an automatic rollover provision is in effect and the parties are required to abide by its terms until their initial CBA is implemented.
ISSUES AT IMPASSE
The parties disagree over the starting and ending times of the daily flexible band, and whether the band should include weekends for employees on an approved maxiflex schedule.
POSITIONS OF THE PARTIES
1. The Union's Position
The Union is willing to accept the mediator/arbitrator's recommendation that the flexible band extend from 5:30 a.m. until 8:30 p.m., but proposes that it also include "Saturday and Sunday for employees who are on an approved maxiflex schedule." Adoption of the daily flexible band portion of the recommendation would permit employees greater flexibility to deal with family issues and spend less time in Washington metro area traffic congestion while still meeting the Agency's mission, and is consistent with the goals articulated by Congress when it implemented the Federal Employees Flexible and Compressed Work Schedules Act of 1982. In addition, an expanded flexible band also makes sense "logically and mathematically" in view of the parties' agreement to permit employees to work a number of different alternative work schedules (AWS), including a 4/10 schedule. Under the Employer's limited flexible band proposal of 6 a.m. to 6 p.m., employees would not be able to work a 4/10 CWS unless they came into the office by 7:30 a.m. This "completely defeats the purpose of having a flexible schedule." Further, the mediator/arbitrator's recommendation is consistent with other Federal sector CBAs that contain flexible bands beyond 6 a.m. to 6 p.m.
The Employer has never provided a coherent rationale for its position on flexible bands. This is particularly significant in the current circumstance where it bears the burden of proving why the mediator/arbitrator's recommendation should not be adopted. For example, the building's sign-in/sign-out sheets, which show that "employees currently arrive and depart outside the 6 a.m. to 6 p.m. flexible band" proposed by the Employer, contradict the claim that it simply does not operate beyond 6 a.m. to 6 p.m.
On the issue of whether the flexible band should be limited to Monday through Friday, the Union understands that it bears the burden of demonstrating why the mediator/arbitrator's recommendation should not be adopted. On this aspect of the dispute, the recommendation "is arbitrary, illogical, and is sure to harm both employees and the Agency," while the Union's proposal to extend the 5:30 a.m. to 8:30 p.m. flexible bands to weekends for employees working on an approved maxiflex schedule is "flexible, comports with the statute, and is limited so as to impose no adverse impact on the Agency." In this regard, the mediator/arbitrator "only considered whether  employees could complete their work in the Monday through Friday timeframe," and not the efficiencies to be achieved by permitting employees on an approved maxiflex schedule to work on Saturday and Sunday, or the premium pay implications if weekends are excluded from the flexible band. Moreover, the Union's proposal would increase the ability of employees on approved maxiflex schedules to earn credit hours. The Employer's opposition to this "seems absurd," as the parties have agreed to a telework program whereby employees may be approved to work all or part of their hours at alternative worksites. It also is unclear why the Employer opposes a schedule permitting employees to work weekends on projects with tight deadlines that allows it to avoid the expense of premium pay. In conclusion, there is no negative impact if Saturday and Sunday are included in the flexible band for maxiflex-approved employees, only potential benefits to both employees and management.
2. The Employer's Position
The Employer does not believe that the mediator/arbitrator's recommendation should be adopted in its entirety. In its view, the Panel should impose the portion of the recommendation restricting the application of the flexible work band from Monday through Friday, but establish a 6 a.m. to 6 p.m. flexible work band instead of the one proposed by the mediator/arbitrator. The flexible work band the Employer proposes is more generous than the 6:30 a.m. to 6 p.m. band established under the WASO/NFFE CBA. It also is more consistent with the hours during which WASO currently conducts business, 6:30 a.m. to 6 p.m., than the mediator/arbitrator's recommendation. In this regard, WASO's "customers and clients, the Department of Interior, other bureaus, and the state and local government agencies with which [it] works are generally open during the same hours." Starting and ending times of 5:30 a.m. and 8:30 p.m., however, would result in employees "working at times when the people with whom they conduct business are not working." Employees could also end up working without supervision for several hours a day, and co-workers would have fewer opportunities to work together. Adopting the mediator/arbitrator's recommendation on this portion of the dispute, therefore, "would clearly limit the amount of work employees could perform and interfere with their ability to fulfill the Agency's mission."
The Employer's proposed flexible band also is identical to the band established for human resources employees in an hours of work policy that has been in effect for several months. The Union "never voiced any objection to this flexible band," and its acquiescence to the policy demonstrates that a flexible work band of Monday through Friday, 6 a.m. through 6 p.m., "is reasonable" and "can accommodate alternative work schedules." In addition, the security sign-in/sign-out sheets provided by the Union do not prove that employees regularly work outside the Employer's proposed band. There are a variety of reasons why some employees arrive early or work late on a particular day. Significantly, the Union has never explained how allowing employees to work before 6 a.m. and after 6 p.m. "promotes the Agency's mission."
Finally, the Panel should impose the portion of the mediator/arbitrator's recommendation rejecting the Union's proposal that the flexible work band be expanded to permit employees on an approved maxiflex schedule to work on weekends. Other Government agencies are not open on weekends, so employees would be unable to conduct business during that time. Those working on weekends also would have "virtually no supervision" and conceivably could spend "very little time in the office during weekdays." Further, the Union's proposal would strain the Agency's resources by increasing "costs resulting from the use of lighting, air conditioning, etc."
Having carefully reviewed the parties' responses to the Panel's Order to Show Cause in this case, in our view, the Union has failed to demonstrate why the mediator/arbitrator's recommendation regarding weekend work should not be imposed. With respect to the Monday through Friday flexible work band, however, we are persuaded that a compromise solution would provide the proper balance between the need to ensure that employees' work hours enable them to perform WASO's mission and the flexibility to allow them to deal with traffic congestion and family obligations. Accordingly, we shall order that a flexible band of 6 a.m. to 7 p.m. be adopted to resolve this portion of the parties' impasse.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:
The flexible work band shall be from 6 a.m. to 7 p.m., Monday through Friday.
By direction of the Panel.
H. Joseph Schimansky
December 12, 2005
2/ In accordance with the parties' ground rules agreement, they submitted their dispute to a private mediator/arbitrator for mediation prior to bringing it to the Panel. When the mediator/arbitrator was unable to persuade the parties to settle the matter voluntarily, he recommended the adoption of compromise wording to resolve the dispute. In support of his recommendation, the mediator/arbitrator stated that:
[I]t allows for morning and evening flexibility in dealing with family related issues and the Washington Metropolitan traffic. In addition, it seems reasonable that an employee on any of the various alternative schedules could reasonably complete their work schedule within a Monday-Friday, 5:30 a.m. to 8:30 p.m. flexible band.