DEPARTMENT OF THE NAVY SUPERVISOR OF SHIPBUILDING, CONVERSION, AND REPAIR NEW ORLEANS, LOUISIANA and LOCAL R5-190, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF THE NAVY
SUPERVISOR OF SHIPBUILDING,
CONVERSION, AND REPAIR
NEW ORLEANS, LOUISIANA
LOCAL R5-190, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES, SEIU,
Case No. 93 FSIP 23
DECISION AND ORDER
The Department of the Navy, Supervisor of Shipbuilding, Conversion, and Repair, New Orleans, Louisiana (Employer) 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 Local R5-190, National Association of Government Employees, SEIU, AFL-CIO (Union).
After investigation of the request for assistance, the Panel directed the parties to participate in a telephone conference with Staff Associate Gladys M. Hernandez for the purpose of resolving their dispute over a sign-in/sign-out procedure for employees working a flexitime work schedule (FWS). The parties were advised that if no settlement were reached, Ms. Hernandez 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 whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Ms. Hernandez held a telephone conference with the parties on February 19, 1993, but to no avail. She has reported to the Panel based on the record developed by the parties, and it has now considered the entire record.
The Employer procures and administers shipbuilding, design, conversion, and facility contracts with private shipyards for the Departments of the Navy and Defense in four southern states. The Union represents approximately 230 employees; 6 are Wage Grade mail truck drivers and ship surveyors, and the remainder are General Schedule employees working principally as specialists (field quality assurance, industrial, or contract), accounting technicians, analysts (contract or supply), purchasing agents, and clerks. All will be affected by the outcome of the dispute. The parties' collective-bargaining agreement (CBA) is due to expire in May 1995.
The dispute arose during negotiations which ensued after the Employer proposed to implement a sign-in/sign-out procedure to facilitate supervisory verification and accounting of employees' arrival and departure times for work under the recently negotiated flexitour and flexitime schedules, Article 10, §§ 7-10, of the CBA. Employees' flexitour schedules are set in advance with prior supervisory approval (Article 10, § 8). They may, however, vary their arrival and departure times by ½ hour from the established starting times on any given day without prior supervisory approval (Article 10, § 9), and extend their 30-minute lunch period within the 11 a.m. to 1 p.m. flexband with such prior approval (Article 10, § 10).
Currently, in accordance with agency instructions, employees complete their own timekeeping sheets (also referred to as timekeeping, cost, and workload accounting sheets or Form 7420/1).(1) These are then submitted with supporting documentation to their supervisors for review and approval.(2) Under the General Accounting Office Policy and Procedures Manual, title 6, chapter 3, section 3.2.D.3. (May 1989)(GAO Manual), as well as Navy Comptroller Manual, par. 033002-3. (NAVCOMPT Manual), supervisors' approval of the timekeeping sheets "must be based on knowledge from personal observation, from timekeeper attestation, checking data against other independent sources (such as matching starting and ending times of work against sign-in/sign-out sheets or time clock entries), from reliance on other internal controls, or a combination of these."(3) In work situations where employees are permitted to work flexible hours outside the hours of their supervisors, as under the negotiated flexible schedule in this case, the Employer is required to use serial sign-in/sign-out sheets, time clocks, or techniques such as "1. arrangements with other timekeeping or supervisory personnel to provide observation; 2. occasional supervisory telephone calls to employee during the time the supervisor is not present but the employee is scheduled to be; 3. occasional observation by the supervisor through the supervisor coming to work earlier or staying later than normal; and 4. determining reasonableness of work output for time spent," to assure that employees are working when scheduled.(4) Other methods may be used but only with prior approval of the Comptroller General.(5)
ISSUE AT IMPASSE
The parties disagree over which of the supervisory time and attendance (T & A) verification methods recognized under the GAO Manual and NAVCOMPT Manual, as set forth above, should be adopted.
POSITIONS OF THE PARTIES
1. The Employer's Position
The Employer proposes that employees be required to sign a seriatim sign-in/sign-out sheet, which will record when they "report to work, take their lunch breaks[,] and depart the work site at the end of the duty day." Preliminarily, the Union's argument that the Panel does not have jurisdiction over this matter lacks merit. In proposing to negotiate over a T & A verification procedure, the Employer has not precipitated the reopening of the FWS provisions in Article 10. Rather, in accordance with the CBA,(6) it is simply "attempting to comply with the legal requirement that supervisors have positive knowledge of time and attendance of unit employees." This requirement existed when the parties negotiated the CBA. Moreover, during negotiations over the FWS article, it indicated to the Union that implementation of FWS would necessitate instituting sign-in/sign-out sheets for the Employer to be in compliance with such requirement. Finally, by entering into negotiations with the Employer after threatening to file an unfair labor practice charge, the Union, in effect, admitted that the Panel would have jurisdiction to resolve the matter if agreement could not be reached.
On the merits, its proposal, which is consistent with an earlier Panel decision,(7) would "objectively record the actual time and attendance of unit employees." It would also provide the Employer with the best way to comply with the regulatory requirement that it "have positive knowledge or affirmative evidence" that employees have worked their required number of hours in a pay period.(8) This is "the least intrusive and most practical" time accounting method of those recognized under applicable regulations, and would require employees to take only a few seconds of their day to sign the sheet.
The timekeeping, workload, and cost accounting sheets, without more, would not provide for adequate verification of employees' T & A; while they do record an employee's time of arrival and departure, they are not "self-policing" like sign-in/sign-out sheets. In this regard, reliance on supervisory observation is inadequate for a number of reasons. For instance, while supervisors normally work 7:30 a.m. to 4 p.m., employees report to work as early as 6 a.m. and leave as late as 6 p.m. and, in addition, are permitted to flex ½ hour from established starting and quitting times without prior supervisory approval. Also, both supervisors and employees often work at other than "duty location[s]," and delegation of observation duties to other supervisors would be unfeasible and unduly burdensome to them. In summary, it would not provide "sufficient assurance" that employees are working the times reported on their timekeeping sheets.
The Union's proposal combines two documents with "separate and distinct" purposes, and would increase both the number of timekeeping sheets and processing time tenfold. As such, it may require the hiring of an additional employee to undertake the increased workload. Thus, the administrative burden from the Union's proposal "far outweighs any inconvenience to unit employees which would result from the simple requirement to sign a seriatim sign-in/sign-out sheet." Finally, the Union's proposal would require the inclusion of confidential information, for example, leave usage, which is forbidden from disclosure under the Privacy Act, 5 U.S.C. § 552a(b).
2. The Union's Position
The Union essentially proposes that the Employer incorporate into SUPSHIPNOLAINST 12630.3A the recognized alternative methods to serial sign-in/sign-out sheets and time clocks set forth in the NAVCOMPT Manual.(9) In the alternative, it proposes the following:
Management [will] design a [f]orm incorporating the Time and Attendance in a seriatim sign-in/sign-out [sheet] complete with the overtime, compensatory time earned/used, leave, etc. currently printed on the SSNOLA Form 7420/1. These forms would be tailored in size to a Section, Code[,] or Division and would contain the overtime [worked], compensatory time earned/used, leave, etc. on the sign-in portion/line of the [f]orm. One [f]orm would be used per day. The timekeeper would input the preceding days time and attendance, overtime, compensatory time, leave, etc. data on the following day into the automated payroll system located within the Section, Code, or Division concerned. This would preclude having to complete all timekeeping functions for the whole pay period on   day. The [f]orm's physical location within a section would be subject to future bargaining. Workload accounting would be accomplished on a separate [f]orm by each [u]nit [e]mployee.
Before reaching the merits of the dispute, however, the Union requests that the Panel "reconsider" its earlier determination to assert jurisdiction over this case because the issue in dispute is more appropriate for reopener negotiations on the CBA's FWS provisions;(10) nevertheless, it "in no way  [implies] that the Panel does not have jurisdiction in this matter or should not issue a binding decision." The Employer should have insisted on a sign-in/sign-out procedure during negotiations over FWS, where the "institution, implementation, and administration" of the schedule were discussed, rather than try to implement that procedure later without first notifying the Union in accordance with Article 7, § 2.a., of the CBA.(11) What the Employer is attempting to do is "to manipulate the 'Panel's [a]uthority' in this matter so as to obtain that which they failed to secure at the bargaining table and thereby subterfuge the [n]egotiated [a]greement ... by prematurely opening Article 10, [s]ections 7 through 10."
On the merits, timekeeping sheets together with supervisory observation, "will meet all scrutiny." Its alternative proposal evidences "the Union's flexibility and willingness to participate in good faith bargaining." The use of timekeeping sheets has been an acceptable method to account for employees' T & A for the past 10 years. The Employer is seeking to change this method simply because of the added supervisory responsibilities under FWS, which it did not fully understand until after the schedule went into effect. The Union (1) "finds it hard to believe" that the Employer cannot monitor employees' T & A through supervisory observation when its primary mission is to monitor the production schedules of industrial shipbuilders under contract to the Navy; and (2) questions how in the past the Employer ensured accurate recording of employees' T & A when they worked different schedules from their supervisors and sign-in/sign-out sheets were not in use. Moreover, the use of sign-in/sign-out sheets could lead employees to reject FWS altogether, even though FWS is recognized by Congress as having "the potential to improve productivity in the Federal Government and provide greater service to the public."
The Employer is merely looking for the "least costly basis of recording [T & A]." Consistent with FPM 610-15, par. 4-9a(2), however, the Employer need not record an employee's exact starting and quitting time where a supervisor can "'reasonably certify from personal knowledge that an employee on a flexible work schedule is entitled to pay for his or her work requirement'." When such certification is not possible, in accordance with par. 4-9a(3), other methods may be used which may vary from agency to agency depending on, among other things, the different work situations and number of employees. In fact, par. 4-9b recognizes that no