DEPARTMENT OF THE AIR FORCE HEADQUARTERS 66TH SUPPORT GROUP HANSCOM AIR FORCE BASE, MASSACHUSETTS and LOCAL R1-8, 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 AIR FORCE
HEADQUARTERS 66TH SUPPORT GROUP
HANSCOM AIR FORCE BASE,
LOCAL R1-8, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, SEIU, AFL-CIO
Case Nos. 96 FSIP 6
96 FSIP 7
DECISION AND ORDER
Local R1-8, National Association of Government Employees, SEIU, AFL-CIO (Union) filed two separate requests 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 Air Force, Headquarters 66th Support Group, Hanscom Air Force Base, Massachusetts (Employer).
After investigation of the requests for assistance, the Panel consolidated the cases and determined that the dispute, which concerns a successor agreement, should be resolved on the basis of written submissions and rebuttals from the parties. Submissions were made in accordance with the Panel’s procedural directive, and it has now considered the entire record.
The Employer’s mission is to manage the development and acquisition of electronic systems for the Air Force. The bargaining unit consists of approximately 1,100 employees who work in a variety of technical and administrative occupations. The vast majority of unit employees work at Hanscom Air Force Base, with approximately 40 Wage Grade employees stationed at New Boston Air Station in Amherst, New Hampshire. The parties’ collective-bargaining agreement expired in August 1992, but remains in effect until a successor is implemented.
There are two issues in dispute: (1) the scope of the alternative work schedules (AWS) program; and (2) whether unit employees should receive priority consideration for unit vacancies.
1. Alternative Work Schedules
a. The Employer’s Position
The Employer proposes that the current flexitour program, as described in Electronic Systems Center Instruction 36-801 (December 9, 1994), be continued. This program allows employees some flexibility in starting and quitting times, while preserving a high level of customer service. The approach provides a practical arrangement given that some positions at the installation are one-deep and that unit employees "work as an integrated team along with military members in all areas of the base."
The Union’s proposal would have a negative impact on customer service, particularly in view of the fact that by October 1996, the installation is "slated to lose approximately 40 percent of its acquisition workforce." Moreover, it is simply too broad in scope and would create an extreme administrative burden for the Employer. Overall, the Union’s approach is unrealistic, and its adoption would have an adverse impact on the installation’s mission.
b. The Union’s Position
In essence, the Union proposes an expansion of the AWS program to include flexitour, gliding, variable day, variable week, maxiflex, 4-10, and 5-4/9 schedules, thereby maximizing the options available to all employees. This proposal is consistent with President Clinton’s directive, "Expanding Family-Friendly Work Arrangements in the Executive Branch" (July 11, 1994), which requires agencies to establish programs to encourage and support flexible work arrangements. The plan is workable and not overly burdensome, as evidenced by the fact that "the Employer has been testing" a 5-4/9 schedule "for full-time employees of selected organizations since 5 April 1992." In addition, a similar AWS program has been implemented at the Federal Aviation Administration, New England Region, which is one of the installation’s customers.
The Employer’s proposal, on the other hand, would restrict, rather than expand, flexible work arrangements. In this regard, the Employer’s proposal would eliminate the 5-4/9 option for those employees who, through practice, are already working that schedule. Moreover, the Employer has provided no evidence that an expansion of work schedule options would have a negative impact on the agency’s ability to perform its mission. Overall, management’s proposal is inconsistent with the President’s directive and fails to recognize the value of flexible work arrangements.
Having carefully reviewed the record on this issue, we conclude that neither party’s proposal provides an adequate basis for resolving the dispute. On the one hand, the Union’s proposal is overly broad and would create an undue administrative burden for the Employer. The Employer’s approach, on the other hand, is too restrictive, especially since some employees are already working a 5-4/9 schedule. Because of these drawbacks, we shall craft a compromise provision which we believe should provide a more balanced solution. Under this scheme, the parties shall continue the present flexitour option and shall also establish a 1-year 5-4/9 pilot, based on section 23.05 D. of the Union’s proposal; this will allow all unit employees the option of working a 5-4/9 compressed work schedule. At the conclusion of the 1-year pilot, the 5-4/9 option shall be jointly reviewed. If the parties are unable to agree (with the assistance of a mediator, if necessary) on whether it should be continued, the matter may be submitted to the Panel for resolution, with the 5-4/9 option remaining in effect during the evaluation period and any subsequent impasse proceedings.
In our opinion, this approach is consistent with the parties’ previous experiment with expanded work schedule options. In this regard, the parties implemented a 5-4/9 pilot in 1992 but neither concluded the test nor conducted an evaluation to determine its level of success. The establishment of this new pilot should allow them to undertake a serious evaluation of the 5-4/9 option, with the Presidential directive serving as a backdrop. In addition, maintaining the flexitour option will continue to provide a benefit to those workers who wish to work this type of schedule. Overall, we believe that this plan is fair to both sides and, therefore, shall order its adoption.
2. Priority Consideration
a. The Employer’s Position
Preliminarily, the Employer maintains that the Union’s proposal is nonnegotiable, as it interferes with management’s right, under section 7106(a)(2)(C) of the Statute, to make selections for appointments from any appropriate source.(1) On the merits, it proposes the following:
Managers with bargaining-unit vacancies not subject to a Department of Defense, Air Force, or Air Force Materiel Command covered program, will be given internal referrals for consideration, if there are qualified, available employees, prior to the referral of external candidates. External candidates can be referrals from program[s] such as, Applicant Supply File, OPM, VRA, Outstanding Scholar, Handicap, etc.
This proposal would require managers to consider unit employees for vacancies only if the opening is not subject to certain "covered" programs such as the DOD Priority Placement Program and the Air Force Career Program. Under this plan, unit employees would be given consideration for some vacancies prior to the referral of external candidates. Unlike the Union’s proposal, this approach would preserve the integrity of department-wide programs for displaced workers while providing some benefit to unit employees.
b. The Union’s Position
In response to the Employer’s allegation of nonnegotiability, the Union contends that its proposal is within the duty to bargain. On the merits, it proposes the following:
Managers with vacancies, within the bargaining unit, will consult with the staffing office to assure that consideration for vacant positions is given to bargaining unit employees ahead of nonunit employees and outsiders. This consultation with the staffing office will be noted in the record of the action by the personal representative. Where profiles are available, the profiles will be referred to the appropriate official for review.
This proposal would enhance opportunities for unit employees by providing them with priority consideration for unit vacancies. Its adoption would likely have a positive impact on morale, but would not "restrict the Employer from seeking applicants from all available sources." Moreover, there is nothing in its proposal "that runs counter to, or would significantly interfere" with department-wide programs for displaced workers. Finally, the proposal is similar to one ordered by the Panel in a previous case.(2)
Turning first to the duty-to-bargain question, the Panel is guided by the FLRA’s decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988). In that case, the FLRA concluded that the Panel may apply Authority precedent to resolve duty-to-bargain questions which arise during impasse proceedings. As relevant here, the FLRA has consistently held that a proposal that requires an agency to give priority consideration to employees within a bargaining unit when filling vacancies, but does not prevent management from timely considering other applicants or expanding the area of consideration once bargaining-unit employees have been considered, does not directly interfere with management’s right to select under section 7106(a)(2)(C) of the Statute.(3) Because the Union’s proposal in the instant case appears to be substantively identical to proposals found to be negotiable, we conclude that the matter is properly before us for resolution on the merits.
Upon review of the evidence and arguments presented by the parties, we conclude that the Union’s proposal should serve as the basis for resolving the impasse. We believe that the modest benefit of first consideration for vacant bargaining-unit positions should be given to bargaining-unit applicants. The Union’s proposal would apply only after the Employer determines to fill a position, and would not affect management’s right to select from any appropriate source should the initial area of consideration fail to produce a sufficient number of highly qualified candidates. Since the proposal merely establishes the order in which candidates are referred to the selecting official, this requirement would do little to delay the ultimate decision to select. While we are mindful of the competing interest of displaced employees from other locales, on balance, we are persuaded that the positive impact on the morale of unit employees outweighs the benefit to these potential beneficiaries. For these reasons, we shall order adoption of the Union’s proposal.
Pursuant to the authority vested in it by section 7119 of 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:
1. Alternative Work Schedules
The parties shall adopt the following wording:
The current flexitour program, as described in Electronic Systems Center Instruction 36-801 (December 9, 1994), shall remain in effect. In addition, the parties shall establish a 1-year pilot, based on section 23.05 D. of the Union’s proposal, which will allow all unit employees the option of working a 5-4/9 compressed work schedule. At the conclusion of the 1-year pilot, the 5-4/9 option shall be jointly reviewed, and if the parties are unable to agree on whether it should be continued, the matter may be submitted to the