AFGE SEALS 6101 SHIELD AGAINST SHADDY SHIFT SCHEMES
Here is how FLRA described the scheme, “The Agency planned a seventy-fifth anniversary celebration on a Saturday at the Shenandoah National Park (the event). Several weeks before the event, the Agency scheduled all of its employees to work that day, but gave each employee a day off earlier in the week so that the Saturday shift constituted part of the employees’ scheduled tours of duty.” (AFGE, 67 FLRA 489 (2014)) Because the Authority has held the substance of shift changes non-negotiable and a one-time change might not qualify as a unilateral change in past practice, unions have only one way left to protect their members from shift scams—and AFGE just made that shield bigger and stronger.
Title 5 USC 6101 and 5 CFR 610, Subpart A spell out the government-wide rules for changing in employee shifts and work schedules. Whether a union incorporates those rules into its agreement or just enforces them through grievances as binding laws and regulations, they can be very effective buffers against improper agency actions. When the arbitrator, Jerry Ross, sustained the union’s 6101/610 grievance and ordered retroactive overtime pay for the Saturday work, the agency filed exceptions claiming principally that the award, not its actions, violated 5 USC 6101. It argued that an agency may “change employees’ work schedules without limitation ‘when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions OR that costs would be substantially increased.’”
FLRA responded by initially noting that for § 610.121(a) to apply, an agency head must make a determination that “an exception from the normal scheduling was justified, in view of agency functions and the costs involved.” An agency head must justify her determination that the agency would be “seriously handicapped” or that “costs would be substantially increased” with a “discussion of the nature of work performed” by the employees and “the inherent administrative difficulties in scheduling their hours of duty.” Although not requiring “exhaustive findings,” such determination must be “reasoned.” A serious handicap is one that “would jeopardize an agency’s entire mission and demand priority attention throughout the organization.”
The Authority then noted that the arbitrator had found that the agency had not established that it needed to rearrange its employees’ schedules to avoid being seriously handicapped. Rather, he determined that the Agency chose this action “to avoid paying overtime,” and that there was “no demonstrated operational advantage in the rescheduling.” Similarly, the Arbitrator found that the Agency had not shown that its costs would be substantially increased if it allowed the employees’ schedules to remain unaltered. Although the Arbitrator acknowledged that “personnel costs . . . would be higher” because of additional overtime, he found that the Agency had not satisfied the “legal and regulatory test” regarding substantial increases.
The Authority has dealt with 5 USC 6101 shift changes before, but this case is so clearly and firmly written that it likely will be the precedent against which future 6101 schemes are assessed. In other words, union activists, remember this one.