United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Local 1698, American Federation of Government Employees, 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 Department of the Navy, Aviation Supply Office, Philadelphia, Pennsylvania (Employer or ASO).

    After investigation of the request for assistance, the Panel directed the parties to participate in an informal conference with Panel Member Daniel H. Kruger for the purpose of resolving the dispute over core time deviation and whether holidays should be employees' 8-hour days under a 5-4/9 alternative work schedule (AWS).⁽¹⁾ The parties were advised that if no settlement were reached, Mr. Kruger would report to the Panel on the status of the dispute, including the parties' final offers, and his 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.

    Mr. Kruger met with the parties on June 14, 1993, in Philadelphia, Pennsylvania. With his assistance the parties resolved the core time deviation issue. Mr. Kruger has reported on the holiday scheduling issue based on the record developed by the parties. The Panel now has considered the entire record.

    The Employer, a component of the Naval Supply Systems Command (NAVSUP), controls the inventory, repair, distribution, and purchase of aircraft spare parts for Naval and Marine Corps aviation worldwide. The Union represents approximately 1,400 General Schedule (GS) and Wage Grade (WG) employees. GS employees, who make up the majority of the unit, work principally as specialists (inventory management, general supply, or equipment), supply analysts, contract negotiators, and accounting technicians. The few WG employees are mostly planners and estimators, heating, ventilation, and air conditioning equipment mechanics, pipefitters, carpenters, boiler plant operators, forklift operators, and telephone mechanics. Pursuant to its terms, the parties' collective-bargaining agreement has been rolled over annually since its original 3-year term expired in May 1985.

    The dispute arose during mid-term bargaining over a 5-4/9 AWS program. Pursuant to the Memorandum of Agreement dated May 12, 1992, the parties implemented all the AWS provisions agreed upon as memorialized in ASO Notice 12600, Pilot Program for Alternative Work Schedules (ASO Notice), and the Employer's proposals on the disputed issues until they are resolved through impasse procedures. Only those employees participating in the AWS program will be affected by the outcome of the dispute.⁽²⁾

    Whether employees should be credited for 8 or 9 hours' work for holidays under the 5-4/9 AWS program.

1. The Employer's Position

    Under the Employer's proposal, "[w]hen a national holiday is observed, that day will be scheduled as the employee[']s 8[-]hour workday[,] and the employee will receive 8 hours' holiday pay. Should the employee schedule the holiday as [his or her] 9[-]hour day, the employee will receive 8 hours holiday pay and will be required to use [1] hour of annual leave." In addition, when there are two holidays in the same pay period, for example, Christmas and New Years Day, employees will revert to the flexible work schedule (Article XI), thus working eight 8 1/2-hour days and receiving 8 hours of holiday pay for each of the two holidays.

    Initially, it agreed with the Union's position because it had assumed that employees would work a fixed AWS with limited rights to change their work hours. On that assumption, NAVSUP informed the Employer that (a) an employee's "holiday pay had to equal the number of hours the employee was scheduled to work," and (b) it "could not require [an] employee to schedule the holiday as his [or] her 8-hour day." Since then, it has obtained "clarification" of 5 C.F.R. § 610.406. In this regard, it has learned that other Federal agencies' AWS programs provide for employees to "automatically change their 8-hour workday to the scheduled holiday."⁽³⁾

    The parties agreed to a "flexible" rather than an "extremely structured" AWS program. Under the program, every 2-week pay period, employees may opt to (a) work the AWS and (b) change their day off. One can expect, therefore, that for pay periods with holidays, employees would choose to work AWS and schedule the holiday as one of their 9-hour days. Permitting employees to do this would lead to a loss in productivity of 4.49 man years and $124,783.29, which would have an adverse impact on the agency. Such loss in productivity cannot be justified during these times of (1) Department of Defense funding cuts, (2) staff reductions, (3) continued increase in workload, and (4) the possible transfer of ASO's function to Mechanicsburg, Pennsylvania, among other things. Moreover, since the AWS program, including its proposal for 8-hour holidays, was implemented, no complaints have been filed by employees.

2. The Union's Position

Under 5 C.F.R. § 610.406,⁽⁴⁾ the Union argues, employees scheduled to work 9 hours on a Federal holiday are entitled to 9 hours of holiday pay. Although it subsequently changed its position for economic reasons, the Employer initially agreed with the Union on this matter. Provisions providing for employees to be paid for the number of hours scheduled to work on a holiday can be found in the AWS programs of the Naval Air Technical Service Facility, the Naval International Logistics Command, NPFC,⁽⁵⁾ and the Army's Defense Industrial Support Center, three other tenants of the compound.⁽⁶⁾

    Having considered the evidence and arguments presented by the parties, we conclude that the Employer should withdraw its proposal. Consistent with 5 C.F.R. § 610.406, employees should be paid 8 or 9 hours for a holiday, depending on the number of hours they are scheduled to work on that day under schedules which, under an earlier agreed upon provision, are required to be pre-approved by their supervisors. In our view, the occurrence of a holiday on a specific day should not be the sole determinant of whether or not an employee can designate it as a 9-hour day. In this regard, we were persuaded by the House Committee on Post Office and Civil Service's report on the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. § 6120 et seq., dismissing the inclusion of wording in the Act which would have limited the holiday pay of employees on an AWS to 8 hours.⁽⁷⁾ Moreover, we are not convinced by the Employer's argument that a loss in productivity would materialize to the extent that it would have an adverse impact on the agency if employees are allowed to designate holidays as 9-hour days. If it does, an expedited statutory procedure is available for the Employer to terminate the AWS program altogether.⁽⁸⁾ Furthermore, the parties are free to mutually agree to adopt the Employer's position should its prediction prove correct but, faced with the record before us, we are unwilling to impose such a provision.

    Pursuant to the authority vested in it by 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 pursuant to 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:

    The Employer shall withdraw its proposal.

By direction of the Panel.

Linda A. Lafferty

Executive Director

July 1, 1993

Washington, D.C.

1.Under a 5-4/9 AWS, during a biweekly pay period, employees work 9 hours a day for 8 days, 8 hours on 1 day, and have 1 day off.

2.Under par. 3 of the ASO Notice, all employees are permitted to participate in the AWS program unless otherwise excluded (permanently or temporarily) under par. 5.f. The record indicates that for an unspecified pay period in April 1993, 934 employees participated. It is unclear whether all were bargaining unit employees, however.

3.In support of this position, the Employer cites to the Panel's Decision and Order in Department of the Army, Ordinance, Missile, and Munitions Center and School, Redstone Arsenal, Alabama and Local 1858, American Federation of Government Employees, AFL-CIO, Case No. 91 FSIP 83 (July 23, 1991), Panel Release No. 314. We note, however, that in that case both parties' proposals provided that holidays would be employees' 8-hour days; the dispute resolved by the Panel concerned the assignment of employees' off day.

4.Subsections (a) and (b) provide that full-time and part-time employees, respectively, "relieved or prevented from working on a day designated as a holiday by Federal statute or Executive order ... [are] entitled to basic pay for the number of hours of the compressed work schedule on that day."

5.The record does not indicate the full name of this activity.

6.The Union did not provide the Panel with copies of these provisions.

7.H.R. REP. NO. 99-82, 99th Cong., 1st Sess. 5 (1985), reprinted in 1985 U.S.C.C.A.N. 1095, 1099-1100.

8.5 U.S.C. § 6131(c)(3)(A).