United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE ARMY
U.S. ARMY ORDNANCE MISSILE
AND MUNITIONS CENTER AND
REDSTONE ARSENAL, ALABAMA
LOCAL 1858, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 90 FSIP 21
DECISION AND ORDER
Local 1858, American Federation of Government Employees, AFL-CIO (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, 5 U.S.C. § 6120 et seq., (Act) to resolve an impasse arising from the determination of the Department of the Army, U.S. Army Ordnance Missile and Munitions Center and School, Redstone Arsenal, Alabama (Employer) not to establish a compressed work schedule as proposed by the Union.
Following investigation of the Union's request for assistance, the Panel determined that the dispute in the above-referenced case should be resolved through an informal conference between a Panel representative and the parties. If there were no settlement, the Panel representative was to notify the Panel of the status of the dispute. The notice was to include the final positions of the parties and the Panel representative's recommendation for resolving the issue, with the Panel to take final action in accordance with 5 U.S.C. § 6131 of the Act and section 2472.12 of its regulations.
Accordingly, Staff Associate Namsoo M. Dunbar met with the parties on February 8, 1990, at the Employer's facility in Redstone Arsenal, Alabama. While the issue at impasse was narrowed, it was not resolved. He reported to the Panel, and it has now considered the entire record.
The mission of the Employer is to train military personnel in the operation of Army missile systems. Currently the parties are operating under the terms and conditions of an agreement which was to expire on April 2, 1989. The dispute before the Panel concerning their alternative work schedule (AWS) article is the sole issue holding up a successor agreement. During the informal conference, the Union's proposal was narrowed to exclude all bargaining-unit employees in seven training organizations who hold essentially instructional positions. As a result, the Union now proposes that a 5/4-9 AWS(1) option be made available to bargaining-unit employees in all non-training organizations including the following departments: Directorate of Training and Doctrine, School Secretary, Directorate of Combat Developments, Training Support Office, and Directorate of Evaluation and Standardization. These employees represent the remaining 450 of the approximate 600 employees in the bargaining unit. The proposed AWS would also affect about 300 military personnel who also work in these departments.
ISSUE AT IMPASSE
Because this case arises under the Act, the issue before the Panel is: whether the finding on which the Employer has based its determination not to establish an alternative work schedule, as proposed by the Union, is supported by evidence that the schedule is likely to cause an adverse agency impact.(2)
1. The Union's Position
Under the Union's proposal, a 5/4-9 AWS would be available only to non-instructional employees. Although the proposal seeks to create 3-day weekends every other week, it reserves for management the discretion to determine the employees' day off should scheduling problems or their duties make this unfeasible. It acknowledges management's right under section 6122(b)(1) and (2) of the Act to (1) establish arrival and departure times and (2) deny participation to any employee or group of employees when participation is being "substantially disrupt[ive] [to] carrying out its functions[.]" With such discretion reserved to management, the Employer would have sufficient flexibility to overcome the demands placed on employees whose duties are not directly involved in the instructional activity of the Employer's mission. Thus, contrary to the Employer's contention, it may not be necessary to have these employees' schedules conform to those of instructional employees, who may have a greater need to have their schedule coordinated with the schedule set for the students by the military.
The Employer has two other facilities located in El Paso, Texas, and Pensacola, Florida, which are in time zones differing by 1 hour on either side, respectively, of the Employer's main Alabama location. The 5/4-9 AWS could be used to help synchronize the hours of operations at all three locations and thereby increase contact availability between the three sites. Furthermore, the Employer contends that the affected departments have instructionally-related functions and thus employees' work schedules should conform to that maintained by instructional personnel. It, however, has not demonstrated how the Union's 5/4-9 proposal would have an adverse affect on achieving those objectives since the schedules of participating employees would either coincide with or completely overlap the schedule of instructional employees on 9 of the 10 days in a biweekly work period. Moreover, as a result of a settlement of a Union-filed unfair labor practice charge, instructional employees and about 55 percent of the affected non-instructional employees start their workday 1 hour later than the rest of the bargaining unit. Thus, there are currently 10 hours every 2 weeks when 45 percent of the affected non-instructional employees are unavailable to the other 55 percent and to most of the instructional employees. A 5/4-9 AWS could be used by the Employer to reduce this number of hours. Finally, the military students typically begin their daily schedule at 5 a.m. and end at 9 p.m. Thus, the proposed AWS would have little if any affect on the total access time that students would have to these employees.
2. The Employer's Position
The employees for whom the Union has proposed a 5/4-9 AWS option provide support to students, instructional personnel, and assist in the operation of the school in various ways, i.e., curriculum development, administration, and travel and living arrangements for students. Thus, their schedules should coincide with the standard schedule of instructional personnel to assure maximum daily availability. Forty percent of the staff of those departments where a 5/4-9 AWS would be an option are military personnel. They work as an integrated "team" and perform similar duties as the civilian employees who would be availing themselves of the AWS option. As such, the proposal would have the effect of requiring the military to conform with an AWS pursuant to labor relations laws that govern civilian employees. The Employer asserts that "we don't drive the students or Army; they drive us."
Due to the highly specialized nature of many of the affected employees' positions or knowledge, the subject departments may not be 100 percent effective or functional on those days when employees are off under a 5/4-9 AWS. Even if all affected employees were to have the same day off, these departments would be nonoperational 1 out of every 10 days in the biweekly work period. Finally, these employees would be unavailable l less day during a 10-day work period to respond to higher level military personnel's impromptu needs.
Pursuant to section 6131(c)(2) of the Act requires the Panel to take final in favor of the Employer's determination not to establish a flexible or compressed work schedule if the finding on which it is based is supported by evidence that the proposed schedule is likely to cause an adverse agency impact. The Act's legislative history makes it clear that the agency bears the burden of proof with respect to showing adverse impact. (3)
Having considered the record before us, we find that the Employer has not met its statutory burden. Thus, although the Employer asserts that implementation of the Union's proposal would cause a reduction in productivity, a diminished level of services, and an increase in the cost of agency operations, it has not met its burden of proof that those assertions are likely to occur. In this regard, the Employer's contentions are generally conclusory and, thereby, fail to demonstrate how each employee is so uniquely qualified such that his or her predetermined and regularly scheduled off day would have an adverse impact on the Employer's mission. The Employer's contention that additional overtime cost would be incurred is merely an unsubstantiated assertion in view of the large degree of discretion it would retain under the Union's proposal. Thus, the Employer has failed to establish that the nature of these employees' duties are such that their unavailability for 1 day during a 10-day work period could not be made up by their expanded hours on the other 8 days without a loss in productivity, decrease in services, or increase in costs.
Furthermore, the Employer has not demonstrated why military personnel, who work with these employees, should not be the ones to conform to an AWS established pursuant to duly enacted civilian labor relations laws. Absent "evidence" establishing a need to conform civilian employees to a militarily established schedule, civilian employees who work with- military personnel in Department of Defense agencies could be effectively stripped of ever having an AWS for that reason alone. Finally, the Act requires that an agency head must find that an AWS would have an adverse agency impact. The Employer has provided only the statement of the activity's commandant.(4)
For the above reasons, we conclude that the finding on which the Employer's determination not to establish a compressed work schedule is based, is not supported by evidence that the proposed schedule is likely to cause an adverse agency impact as defined in section 6131(b) of the Act. Accordingly, we shall direct the parties to negotiate concerning the merits of the Union's proposal.(5)
Pursuant to the authority vested in it by the Federal Employees Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. § 6131, the Federal Service Impasses Panel, under section 2472.12(b) of its regulations, hereby orders the parties to negotiate over the Union's proposal for a compressed work schedule.
By direction of the Panel.
Linda A. Lafferty
March 23, 1990
1. Under a "5/4-9" AWS, the standard work period, consisting of ten 3-hour days, is altered by allowing employees to work 9 hours for 8 days and 8 hours for 1 day, thereby dispensing with the10th workday.
2. Section 6131(b) of the Act defines adverse agency impact as:
(1) a reduction of the productivity of the agency;
(2) a diminished level of services furnished to the public by the agency; or
(3) an increase in the costs of agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed schedule).
3. See 128 CONG. REC. H 3999 (daily ed. July 12, 1982) (remarks of Rep. Ferraro); and 128 CONG. REC. S 7641 (daily ed. June 30, 1989) (remarks of Sen. Stevens).
4. Section 6121 of the Act defines agency as "mean[ing] any Executive agency, any military department, and the Library of Congress[.]" Thus, the head of the agency herein, for purposes of who may determine an adverse agency impact, is the Secretary of the Army or someone officially delegated that authority by the Department of the Army.
5. In taking this action, the Panel makes no judgment concerning the merits of the Union's proposal. Any impasse arising from negotiations over the proposal should be resolved pursuant to section 7119 of the Federal Service Act.