DEPARTMENTS OF THE ARMY AND AIR FORCE ARMY AND AIR FORCE EXCHANGE SERVICE FOREST PARK, GEORGIA AND RETAIL, WHOLESALE, AND DEPARTMENT STORE UNION, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENTS OF THE ARMY AND AIR
ARMY AND AIR FORCE EXCHANGE SERVICE
FOREST PARK, GEORGIA
RETAIL, WHOLESALE, AND DEPARTMENT
STORE UNION, AFL-CIO
Case No. 94 FSIP 57
DECISION AND ORDER
The Retail, Wholesale, and Department Store Union, AFL-CIO (Union), 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 Departments of the Army and Air Force, Army and Air Force Exchange Service, Forest Park, Georgia (AAFES or Employer).
After investigation of the request for assistance, the Panel determined that the impasse should be resolved through an informal conference between a Panel representative and the parties. If no settlement were reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to the Panel's determination, Staff Associate Nick G. Duris met with the parties on April 26, 1994, at Fort Gillem, Georgia. At the conclusion of the informal conference, two issues remained at impasse. Mr. Duris has reported to the Panel, and it has now considered the entire record.
The Employer is the distribution center that stores and distributes goods to 22 retail outlets throughout the southeast United States. It is a self-funded/nonappropriated-fund organization. Approximately 800 bargaining-unit employees who are represented by the Union hold positions such as clerk, motor-vehicle driver, stock worker, and warehouse worker. The parties' collective-bargaining agreement (CBA) expires on December 23, 1995.
The dispute arose in August 1993 when the Employer switched approximately 500 employees, most of whom work as clerks or warehouse workers in shipping or receiving at warehouses on Fort Gillem, from a Monday-through-Friday schedule, to a Tuesday-through-Saturday schedule. Due to the change, some employees who normally paid a child care provider for Monday-through-Friday services, now have to pay extra for Saturdays because most charge on a strict Monday-through-Friday basis, regardless of whether the service is needed on Monday. Further, in order to implement the change in schedules, employees had to work 6 consecutive days on one occasion, at the time of implementation of the Tuesday-through-Saturday schedule.
ISSUES AT IMPASSE
The parties basically disagree over whether (1) employees who must work on Saturdays because of the change in their work schedules should be reimbursed for Saturday child care expenses, and (2) the Employer should pay employees time and a half, either retroactively or for future instances, for working a sixth consecutive workday because of a change in work schedules.
POSITIONS OF THE PARTIES
1. Reimbursement for Saturday Child Care Expenses
a. The Union's Position
The Union's proposal is as follows:
Employees remaining on Tuesday-Saturday schedule may submit to AAFES a biweekly statement verifying the cost of Saturday child care for reimbursement. Such verification may be for a day care center or private home caretaker.
Its proposal would eliminate at least one hardship for those employees who have to pay more for child care because of the Employer's change in work schedules. In this regard, affected employees are already low-wage earners, whose wages fall "below prevailing Atlanta wage rates" and, unlike management officials, bargaining-unit employees affected by the change in work schedules did not receive "a 3.86% Federal Salary Council 'Locality Pay' increase in January." Therefore, reimbursing employees for Saturday child care would not only offset a financial hardship incurred by the change in schedules, but would also mitigate past discrepancies in pay. Additionally, the adoption of its proposal would strengthen employee morale since most employees did not want to work on Saturdays in the first place.
By contrast, the Employer's proposal would cause "hardship, antagonism, and loss of morale among members of the entire bargaining unit." Since a Union survey indicates that "at least 60 parents, and probably closer to 100," are paying an extra $20 to $30 per week for child care because of the change in work schedules, it would be unrealistic for the Employer to switch them all back to their original schedules without causing significant problems for the entire unit. In this regard, employees without day care needs currently working a Monday-through-Friday schedule would be forced to work on Saturdays if the Employer places employees with day care needs back on their original schedules. Furthermore, an opportunity for employees without child care needs to go back to a Monday-through-Friday schedule in the future would be slow in coming since, by Employer's own admission, the average attrition rate is only six employees per month, and employees would have to bid on higher graded positions. Lastly, since it was implemented 8 months ago, dissatisfaction over the schedule change may have somewhat dissipated, and another change may create an even bigger morale problem.
b. The Employer's Position
The Employer proposes the following:
In resolution of the impact of the Tuesday-Saturday schedule upon certain employees with a need for day care on Saturdays, management proposes the following:
(1) The parties will conduct a joint survey of bargaining-unit employees scheduled on Tuesday-Saturday to determine hardship cases. Hardship cases are defined as those employees who have incurred additional day care expenses, over and above the day care expenses previously paid when assigned to Monday-Friday schedule. These expenses must have been paid prior to the survey, and paid to a bona fide day care provider;
(2) Employees who are identified as hardship cases, and who so desire, will be reassigned to the Monday-Friday schedule. However, the reassignment may not be to the same section or area where the employee is currently assigned;
(3) Based on operational needs, Management may reassign employees without day care needs, from the Monday-Friday schedule to the Tuesday-Saturday schedule. In making these reassignments, Management will first seek volunteers, then reassign those employees with the lowest seniority; and
(4) Those employees who are reassigned from a Monday-Friday to a Tuesday-Saturday schedule will be placed on a roster. As vacancies occur on the Monday-Friday schedule, employees on the roster will be returned, by highest seniority, to the Monday-Friday schedule.
Although the Union has failed to name even one employee who currently suffers a financial impact from additional child care expenses, its proposal would "effectively eliminate any adverse impact of additional day care expenses, without creating additional expenses for the Employer," by reassigning those employees to their original schedules. As required by operational needs, however, it would reassign other employees without child care responsibilities to the Tuesday-through-Saturday schedule, which is possible "since the majority of employees work in the Warehouse Worker classification, with flexible duties that can be performed in most areas of the Distribution Center." Nevertheless, any employee who is reassigned to the Tuesday-through-Saturday schedule will also have an opportunity to be returned to the Monday-through-Friday schedule as vacancies occur, in order of seniority. As a nonappropriated-fund activity, it "must operate its facilities without appropriated fund support." Therefore, it "must make every effort to keep costs to a minimum, particularly in this period of military drawdowns, base/post closures, and erosion of the AAFES customer base." Lastly, "in no other location does AAFES provide, or reimburse employees for child care expenses." To do so in this circumstance "could seriously impair our bargaining position" in the future with other unions.
Having considered the evidence and arguments on this issue, we conclude that the dispute should be resolved on the basis of the Employer's proposal. Preliminarily, we note that the Employer's decision to implement the change to a Saturday work schedule was done to promote customer service, consistent with the good government standard. In our view, its willingness to place all employees who can show an increase in child care expenses as a result of this change back on their original schedules should eliminate both parties' cost concerns. As funding is scarce, and DOD downsizing continues, the Union's proposal could have the effect of requiring reductions in force to be conducted at AAFES, particularly since this is a self-funded/nonappropriated-fund organization. Finally, the Employer's proposal permits even those employees without day care needs to be reassigned to their original schedules when a future vacancy occurs, based on highest seniority. Thus, any negative impact on the morale of those employees should be limited, while at the same time alleviating the Employer's mission-related concerns about having enough employees to work on Saturdays. Accordingly, we shall order its adoption.
2. Time and a Half for Sixth Consecutive Day of Work
a. The Union's Position
The Union proposes that "when a change in an employee's work schedule requires work on 6 successive days, employees shall receive 1 1/2 their regular rate of pay for all hours worked on the sixth day." With respect to the Employer's "covered-by" arguments, although it is true that sections of the parties' collective-bargaining agreement may address this matter, "employees experiencing hardship resulting from working on 6 successive days was not an issue during contract negotiations in 1992," since most employees worked a Monday-through-Friday schedule at that time. Further, since the sixth successive day (Saturday) is the first day of the administrative workweek, employees are technically ineligible to receive overtime pay. As to the merits, employees affected by the implementation may have experienced greater fatigue by working the sixth consecutive day and should be compensated accordingly. The same would be true of employees required to work 6 consecutive days because of future schedule changes.
b. The Employer's Position
Essentially, the Employer would have the Panel order the Union to withdraw its proposal. In this regard, the Union has failed to show how working 6 consecutive days on one occasion, at the time of implementation of the Tuesday-through-Saturday schedule, has adversely affected bargaining-unit employees. Furthermore, under the parties' CBA, "management could, at any time, schedule employees to work on 6 consecutive days, without additional compensation, unless the work schedule resulted in overtime, in which case, time and one-half is required by both the contract and Federal law."
Having considered the evidence and arguments presented by the parties on this issue, we conclude that the Union has failed to demonstrate a need for the Employer to pay approximately 500 employees time and a half for the sixth consecutive day worked. While we can speculate that some employees may have experienced inconvenience and fatigue in having to work on a Saturday when they otherwise would have had the time to themselves, on balance, given its adverse impact on the Employer's budget, such reasons are insufficient to justify ordering the adoption of the Union's proposal. Moreover, it appears that the parties' CBA contemplates the Employer's right to have employees work 6 consecutive days without additional compensation. For these