U.S. Federal Labor Relations Authority

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United States of America



In the Matter of







Case No. 90 FSIP 101


The National Treasury Employees Union (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of the Treasury, U.S. Customs Service, District Office, San Francisco, California (Employer).

The Panel determined that the case should be resolved on the basis of written submissions from the parties. After considering the entire record, the Panel would issue a Decision and Order in which it selected one of the parties' final offers to resolve the impasse. Written submissions were made pursuant to these procedures and the Panel has considered the entire record.


The Employer's mission is to ensure compliance with U.S. Customs laws through the clearance of overseas passengers and cargo. There are approximately 300 bargaining-unit employees in the San Francisco District, the majority of whom hold positions as uniformed customs inspectors and import specialists. They are part of a nationwide consolidated unit of 12,000 employees whose master agreement expires in August 1990.


The issue at impasse in this case arose during local negotiations over the implementation of a 5-4-9 alternative work schedule (AWS) which would affect approximately 90 import specialists and entry-branch personnel. The parties primarily disagree over the procedure to be used for determining the off days of participating employees.

1.The Union's Position

The Union's final offer is as follows:

When more employees than can be accommodated choose the same non-workday and/or 8-hour day, and/or working schedule, employees are encouraged to first resolve such conflicts informally, amongst themselves. However, if employees are not able to resolve such conflicts informally, the request of the employee who has the most seniority shall be granted. Seniority shall be determined based upon service computation date as used by the Agency for retirement purposes. In the event employees have the same service computation date, the tie shall be broken by coin toss.

By encouraging employees to work out scheduling difficulties informally among themselves, the need for an alternative mechanism of selection may be avoided altogether. If conflicts remain, however, a seniority procedure is inherently fairer than the procedure proposed by management because it would eliminate perceptions of favoritism. A survey of participating employees and a petition signed by most of the higher graded employees indicate that its proposal enjoys overwhelming support. The use of seniority also would acknowledge the contribution of lower graded employees, thus boosting morale, enhancing productivity, and fostering cooperation. Similar seniority-based procedures have been implemented in two other West Coast District offices with no adverse consequences.

Adoption of the Employer's proposal, on the other hand, would result in a decline in morale and productivity by unnecessarily creating antagonism in the workplace. Moreover, there is no validity to the Employer's allegation that granting preference by seniority would have an adverse impact on the operations of the Agency, or undermine the authority of those higher graded employees who function as team leaders. In this regard, the parties already have agreed to wording which provides ample protection for the Agency in the unlikely event that applying the Union's proposal would result in inadequate staffing. Finally, there is so little merit in the Employer's position that the Union suspects it has brought the matter to the Panel merely to delay the implementation of the Parties AWS program.

2.The Employer's Position

The following is the Employer's final offer:(1)

When more employees than can be accommodated within any unit eligible for AWS choose the same non-workday and/or 8-hour day, employee requests will be granted in order first by higher grade; however, if same graded employees are requesting, then by length of service based on service computation date for retirement purposes. This method of resolution shall be utilized in all organizational areas where AWS is available.

The Employer "applauds" the change in the Union's position that disagreements between employees over off days should be resolved informally, because it conforms with what management has advocated "from the beginning. If conflicts cannot be resolved in this manner, however, its proposal should be adopted primarily because it would ensure that the higher graded employees who occupy team-leader positions "retain the authority to judge when office coverage might be impaired by conflict over an AWS day off." In this regard, those in lead positions assign work and priorities within a team or sub-unit, and are in the best position to know when they are expendable from the office. Hence, "it would [have an] impact on the Agency's functioning, the leader's morale and undermine the leader's authority to permit the lower graded employee to mandate his/her AWS preference." Its proposal also would serve as a "small perquisite" for those who have been selected through the merit system for leadership roles.

While its proposal "is founded on operational realities and the job-related performance evaluations of the higher graded employee, the Union's statement of position "is an emotional appeal relying on hearsay, self-serving, unfounded opinion declarations and based solely on speculation. Moreover, the Union's survey results should be discarded because only about half of the potentially affected employees responded. Finally, the Employer's position was clearly enunciated in October 1989, and any delay in resolving this impasse was occasioned by the Union, so its attempt to cast aspersions on the Agency's motivations is without merit.


Having considered the evidence and arguments in this case, we conclude that the dispute should be resolved on the basis of the Union's final offer. Preliminarily, we support the view of both parties that those employees who would be affected by the AWS program should make every effort to resolve informally whatever conflicts may arise in the selection of off days. With respect to that part of the dispute over which the parties disagree, however, we believe that the adoption of a seniority-based procedure for resolving any conflicts that remain would be fairer to the interests of all employees than the Employer's proposal, and should enhance cooperation in the workplace. In this regard, there appears to be broad support for the Union's proposal among the employees who would participate in the program, including team leaders.

While the interests of employees must be balanced against bona fide operational needs, we are persuaded that the Employer's concern that the adoption of a seniority-based procedure would prevent effective coverage from being maintained is unwarranted. In this regard, under the Statute management is entitled to ensure that its mission requirements are met. In addition, the Federal Employees Flexible and Compressed Work Schedules Act of 1982 provides for the termination of AWS programs which cause an adverse agency impact. Finally, the record indicates that the parties have already agreed, among other things, that an employee's request to participate in the program "shall be granted as long as the approval would not disrupt the office in carrying out its functions or impair the Employer's right to determine the type and amount of work being performed." We find that these provisions adequately protect the Employer's mission requirements and, accordingly, shall order the adoption of the Union's final offer.


Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to section 2471.6(a) (2) of the Panel's regulations, the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:

The parties shall adopt the Union's final offer.


By direction of the Panel.

Linda A. Lafferty

Executive Director

June 26, 1990

Washington, D.C.

1. The Employer submitted a modified final offer during the rebuttal phase of the written-submissions procedure. In our view, such modifications are inconsistent with the procedure adopted for the instant final-offer selection, and the Panel has proceeded on the basis of the final offer presented in the Employer's initial submission.