United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Local 259, National Federation of Federal Employees, Federal District 1, IAM&AW, 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 Housing and Urban Development (HUD), Memphis Area Office, Memphis, Tennessee (Employer).

    Following investigation of the request for assistance, which arose as a result of the parties’ negotiations over changes in employee work schedules, the Panel directed the parties to participate in an informal conference with Panel Representative (Staff Attorney) Donna M. DiTullio for the purpose of resolving the outstanding issues. The parties were advised that if no settlement were reached, she would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the matter. After considering this information, the Panel would take whatever action it deems appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to the Panel's determination, on September 2, 1999, Ms. DiTullio conducted an informal conference with representatives of the parties at the Employer’s facility in Memphis, Tennessee; the parties, however, were unable to reach a voluntary settlement of the issues. Their final offers and supporting statements have been submitted. Ms. DiTullio has reported to the Panel, and it has now considered the entire record.

BACKGROUND

    The Employer is the situs for an Office of Public and Indian Housing, Troubled Agency Recovery Center (TARC) which is responsible for rehabilitating public housing authorities by providing assistance with financing, construction, and resolving tenant complaints. Geographically, it services the southern United States, Guam and Puerto Rico.⁽¹⁾ The Memphis Area Office also includes the Office of Housing, which monitors housing contractors who work on behalf of HUD in Northern Mississippi and parts of Western Tennessee. The Union represents a bargaining unit of approximately 30 employees who hold positions such as public housing revitalization specialist, financial analyst, program assistant, management information specialist, single family housing program specialist, and associate community builder. The parties are covered by a collective-bargaining agreement (CBA), negotiated in the mid-1970's, which has been rolled over annually.

    Since 1991, bargaining-unit employees have been permitted the option of working a so-called "hybrid" schedule which allows employees under a 5-4/9 compressed work schedule (CWS)⁽²⁾ to vary, on a daily basis, their arrival times. This work schedule arrangement, along with other work schedule options, has been a past practice between the parties and has never been reduced to a written agreement. These work schedule practices were modeled after a 1990 Alternative Work Schedules (AWS) Program negotiated by HUD and the American Federation of Government Employees (AFGE), the labor organization which represents the vast majority of HUD employees (over 6,000) in a nationwide consolidated bargaining unit. With respect to AWS, the Employer’s practice has been to offer the Union the same agreement which was negotiated by HUD and AFGE.

    The parties’ basic disagreement concerns whether employees should continue to have the option of working a 5-4/9 CWS which also allows them to vary, on a daily basis, their starting times.

POSITIONS OF THE PARTIES

1. The Employer’s Position

    In essence, bargaining-unit employees would be given the option of working under a 4/10 CWS, with fixed starting times between 7 and 8 a.m.; a flexitour schedule, with employees being permitted to vary the starting time by 1 hour before or after their selected stating time; or a credit hour plan.⁽⁵⁾ Supervisor concurrence would be required for an employee to work under any of the three schedules. For flexitour and a credit hour schedule, the morning flexiband would extend from 7 to 9:30 a.m., and the evening flexiband from 3:30 to 6:30 p.m. Core hours for all employees, regardless of their work schedule, would be from 9:30 a.m. to 3:30 p.m. Employees could earn up to 3 credit hours per workday, but only during the flexiband periods; full-time employees would not be allowed to accumulate more than 24 credit hours at any given time or carry over more than 24 credit hours from one biweekly pay period to the next. Credit hours could not be earned by employees working under a 4/10 CWS.

    The same proposal has been agreed to by HUD and AFGE. There is no reason why the 30 employees represented by the Union should have different work schedule options than other HUD employees. Uniform work schedule plans covering employees in all HUD offices nationwide would be easier for the agency to administer and monitor. Employees would have several work schedule options to choose from, providing them with flexibility in scheduling workhours, and furthering President Clinton’s goal of a family-friendly work environment. Limiting the opportunity to vary starting times on a daily basis is a quid pro quo for the Employer’s elimination of employees’ sign-in/sign-out requirements. In this regard, restrictions on starting times are needed so that supervisors are able to ensure that employees fulfill their daily workhour requirements.

    Most significantly, the work schedule options proposed by the Employer would not continue the current "illegal" practice of allowing employees on a 5-4/9 CWS to vary their starting times on a daily basis. That schedule must be eliminated because the Federal Labor Relations Authority (FLRA) has determined that combining a compressed and flexible work schedule is contrary to law.⁽⁶⁾ Accordingly, since the Union proposes a "hybrid" work schedule which is substantively similar to the provision the FLRA has found unenforceable, the Panel does not have the authority to impose it on the parties.

2. The Union’s Position

    Essentially, the Union proposes that employees be given the option of working a 4/10 CWS with fixed starting times between 6:45 and 9:30 a.m., flexitour, credit hours, or a "maxiflex 5-4/9" schedule. The latter is a "conservative model of the maxiflex flexible work schedule" whereby, during a biweekly pay period, employees would be permitted to work eight 9-hour days, one 8-hour day, with 1 day off, and "flex" their arrival times on a daily basis between 7 and 9:30 a.m. The "maxiflex 5-4/9" schedule would allow employees to retain a benefit they have enjoyed for more than 8 years–-to begin work any time during the morning flexiband period and have 1 day off during a biweekly pay period. There is no evidence that the five or so bargaining-unit employees who currently work under the 5-4/9 CWS with flexitime (which has the same features as its proposed maxiflex 5-4/9 flexible work schedule), have abused the schedule or failed to accomplish their work. Since the proposed "maxiflex 5-4/9" is a "conservative" version of a maxiflex schedule, it should be more palatable to management because it would not permit the widely fluctuating daily changes in work schedules which are possible under a "full blown" maxiflex schedule. Rather, the Union has chosen voluntarily to limit the number of hours which employees may work daily to no more than 9 and no fewer than 8, for a total of 80 hours in a biweekly pay period.

    Contrary to the Employer’s assertions, the proposal for a "maxiflex 5-4/9" is "legal" because it does not attempt to combine a compressed schedule with a flexible work schedule; rather, it is a flexible work schedule which merely places limitations on the length of the duty day. The Employer has not demonstrated that the "maxiflex 5-4/9" is likely to have an adverse impact on agency operations, nor has it been able to show that the essentially similar 5-4/9 CWS with flexitime plan has had an adverse agency impact. The schedule would be invaluable to working parents who, due to the uncertainties and needs of family life, sometimes cannot start work at the same time each day and would find it helpful to have a day off during the pay period to attend to family matters, such as doctor’s appointments for children and school-related activities. The "maxiflex 5-4/9" schedule would continue to offer employees the same family-friendly work arrangements they currently enjoy.

CONCLUSIONS

    While the parties’ proposals for a fixed 4/10 CWS, flexitour, and credit hours are similar, the Employer’s approach provides employees and supervisors with more detailed information on the process of requesting and approving work schedules. Therefore, it should be more helpful to the parties in implementing and administering those schedules. On the key issue of whether employees should retain the option of working a 5-4/9 CWS which gives them the flexibility of varying, on a daily basis, their starting times, the Employer submitted virtually no evidence on the merits to support its opposition to such a schedule, choosing to focus almost exclusively on the legal arguments against combining a compressed and flexible work schedule. Instead of joining the parties’ debate over the legality of the Union’s proposal, our preference is to effectuate the Union’s intent by imposing wording which clearly falls within OPM’s definition of a maxiflex schedule. On another aspect of the compromise, we believe that allowing employees to have pre-approved work schedule plans should benefit the Employer because supervisors would have a greater degree of certainty about employee work schedules. Accordingly, we shall order wording consistent with the discussion provided above.

ORDER

    The parties shall adopt the Employer’s proposals for a fixed 4/10 CWS, flexitour, and credit hour plan, modified to exclude all references to AFGE and to limit coverage to bargaining-unit employees. Additionally, the parties shall adopt the following wording for a maxiflex schedule:

Employees shall have the option of working under a maxiflex schedule which is a flexible work schedule involving fewer than 10 workdays in the biweekly pay period, and in which a full-time employee has a basic work requirement of 80 hours biweekly, but can vary the number of hours worked on a given workday or workweek. Employees may vary the starting time of their workday between 7 and 9:30 a.m., on a daily basis; the evening flexiband is 3:30 to 6:30 p.m. Core hours for employees on a maxiflex schedule are between 9:30 a.m. and 3:30 p.m. each day worked. Employees working a maxiflex schedule are not eligible to earn credit hours. Each employee requesting maxiflex will be notified of approval or disapproval. If a maxiflex schedule is disapproved by the supervisor, the employee will receive, in writing, a reason for the exclusion. Employees, with their supervisor’s permission, may have pre-approved plans for working these schedules.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

November 8, 1999

Washington, D.C.

1.The other TARC is located in Cleveland, Ohio.

2.Under a 5-4/9 CWS, a full-time employee works eight 9-hour days and one 8-hour day for a total of 80 hours in a biweekly pay period. The employee has 1 day off during the pay period.

3.Under the flexitour program negotiated by HUD and AFGE, full-time employees must account for 8 hours each day plus the established lunch period for the local office. Employees who elect to work a flexitour schedule must select an arrival time between 7 and 9:30 a.m.; they are then permitted to vary, daily, their starting time up to 1 hour prior to or after the pre-selected arrival time.

4.Under a 4/10 CWS, an employee works four 10-hour days during each week of a biweekly pay period, thereby permitting the employee to have 1 day off during each week of the biweekly pay period.

5.Although the Employer’s proposal references a 5-4/9 CWS, no specific wording for a 5-4/9 plan was submitted as part of its final offer. In addition, the Employer’s final offer contains references to AFGE and nonbargaining-unit employees.

6.In General Services Administration, Washington, D.C. and National Federation of Federal Employees, 50 FLRA 136 (1995), the FLRA found a contract provision was contrary to law, and therefore unenforceable, which would permit employees to combine compressed and flexible work schedules. The FLRA determined, based on its examination of the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. § 6120, et seq., (hereinafter the Act) and its legislative history, that the Act separately defines and authorizes flexible and compressed schedules, and that the two types of schedules have different requirements with respect to such matters as overtime, holidays, and night pay. The FLRA further found that the Act is silent with respect to combining the two schedules. On the basis of these findings and the responsibility delegated to the Office of Personnel Management (OPM) to prescribe regulations necessary for the administration of flexible and compressed work schedules established under the Act, the FLRA adopted OPM’s interpretation of the Act as prohibiting such combination.