United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF VETERANS AFFAIRS VETERANS AFFAIRS MEDICAL CENTER WEST PALM BEACH, FLORIDA
and LOCAL 507, AMERICAN FEDERATION OF   GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 02 FSIP 204

DECISION AND ORDER

   Local 507, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) pursuant to the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. § 6120 et seq., to resolve an impasse arising from a decision by the Department of Veterans Affairs, Veterans Affairs Medical Center, West Palm Beach, Florida, not to establish an 8/12 compressed work schedule (CWS) for Plant Operations employees.⁽¹⁾

   Following an investigation of the request for assistance, the Panel determined that the impasse should be resolved through an informal conference by telephone with Panel Member Richard B. Ainsworth. The parties were informed that if no settlement was reached during the informal conference, Member Ainsworth would notify the Panel of the status of the dispute. The notification would include, among other things, his recommendation for resolving the matter. After considering the information, the Panel would take final action in accordance with 5 U.S.C. § 6131 and 5 C.F.R. § 2472.11 of its regulations. The parties were also directed to submit statements of position prior to the informal conference.

   Accordingly, statements of positions were submitted, and an informal conference by telephone was conducted by Member Ainsworth on March 12, 2003. Although the Union’s initial proposal was modified to meet concerns raised by the Employer, the parties were unable to resolve their dispute. The Panel has now considered the entire record, including the parties’ pre- and post-conference written submissions, and Member Ainsworth’s recommendation for resolving the dispute.

BACKGROUND

   The Employer’s mission is to provide eligible veterans with medical and other health related services, augmented by services to meet the special needs of veterans. The affected employees work in Plant Operations, a part of the Facilities Management Service, as utility systems operators. The Union represents 1,392 employees who typically work as non-supervisory nurses, nurses’ assistants, pharmacists, social workers, food service workers, and in various support staff positions, at grades GS-3 through -11 and WG-1 though -11. The parties’ master collective bargaining agreement (MCBA) expired in March 2000; the contract remains in effect under a contractual rollover provision.

ISSUE AT IMPASSE

   In accordance with section 6131(c)(2)(b) of the Act, the issue in dispute is whether the findings on which the Employer bases its determination not to establish an 8/12 CWS in Plant Operations is supported by evidence that the schedule is likely to cause an adverse agency impact.⁽²⁾

POSITIONS OF THE PARTIES

1. The Employer’s Position

   The Panel should find that the evidence on which the Employer bases its determination not to implement the proposed CWS for Plant Operations staff establishes that the schedule is likely to cause an adverse agency impact, as defined under the Act. The proposed schedule, if implemented, would: (l) increase overtime costs related to covering for employees who call-in sick or are on leave; (2) jeopardize employee and Medical Center safety; and (3) violate the MCBA. As to cost, a review of sick leave usage for calendar year 2002 (pay periods 1 through 26), shows that under the CWS overtime costs would increase by $3,796.16.⁽³⁾ In addition, the cost of covering shifts for employees taking 1 to 2 weeks of annual leave would increase by $6,864. Furthermore, there would be "serious scheduling problems" relating to covering the 8 a.m. to 4:30 p.m., Wednesday shift.

   With regard to jeopardizing employees’ health, there are several studies supporting the view that working longer shifts could have negative effects on employees’ and the Medical Center’s safety. This may be especially true in situations where employees work for long periods in high temperatures, as employees do here. If a plant operator working longer hours fails to monitor "critical systems" due to sleep deprivation and a reduced ability to remain alert, the employee could put himself and the Medical Center in jeopardy.

   Finally, adopting the proposed CWS would put the Employer in the position of violating the MCBA, because under the Union’s rotation system, employees working 12-hour weekends would be scheduled only 1 day off between shifts, i.e., when the shift one operator rotates to shift two and when the shift three operator rotates to shift four, rather than the 2 days off between shifts that the MCBA requires.

2. The Union’s Position⁽⁴⁾

   The Panel should find that the Employer has not met its burden under the Act, and establish the 8/12 CWS for utility systems operators working in Plant Operations. In this regard, the Employer’s assumptions as to increased overtime costs are "complete conjecture," and "predicated on a worst-case scenario." In addition, the Employer’s estimates of increased operational costs would be mitigated by the portion of the proposal that would permit no more than one employee at a time to be on annual leave. Moreover, since only one operator would be on annual leave at a time, the CWS would provide cost savings because maintenance mechanics would not have to back up vacationing operators. In turn, mechanics would remain available to perform their maintenance function; they would only cover when plant operators call in sick.

   Finally, the Employer’s claim that the proposed CWS would cause it to violate provisions of the MCBA are erroneous. A review of the wording in Article 20, § 3(J), indicates that local parties have the flexibility to vary the specifics of scheduling, such as the minimum number of days off, when negotiating a CWS. This is exemplified by the fact that employees in other parts of the West Palm Beach Medical Center have, with Union concurrence, varied scheduling procedures as part of their CWS agreements.

CONCLUSIONS

   Under section 6131(c)(2) of the Act, the Panel is required to take final action in favor of the agency head’s (or delegatee’s) determination not to establish a CWS only if the finding on which it is based is supported by evidence that the schedule is likely to cause an "adverse agency impact." Having considered the record before us, we find that the Employer has not met its statutory burden. In this regard, the evidence presented does not support a finding that the proposed CWS is likely to increase the costs of agency operations, reduce productivity, or diminish service to the public.

   In our view, the Employer’s assertions that overtime costs would increase by $10,660.16 are, on the whole, unpersuasive. Its projections are based on data which are subject to change, particularly if the CWS is made available on a trial basis. We also believe that the exercise of managerial discretion in regulating leave usage, in conjunction with the Union’s proposal to limit annual leave use to one employee at a time, should help control the overtime costs that the Employer is predicting. With regard to the Employer’s safety concerns, it relies on journal articles whose conclusions are offset by an equal number of studies reporting that longer shifts would have certain advantages. In addition, the schedules examined in the studies the parties allude to differ from the one proposed in this case and, therefore, do not provide a useful comparison. Finally, with respect to whether implementation of the Union’s proposed CWS would violate the MCBA, in addition to the Union’s conflicting interpretation of the relevant contract provisions, the Employer’s argument falls outside the parameters of the criteria established under the Act for meeting its statutory burden. Accordingly, consistent with the intent of the Act as established by its legislative history,⁽⁵⁾ we shall order the parties to negotiate over the Union’s proposed CWS.

ORDER

   Pursuant to the authority vested in it by the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. § 6131(c), the Federal Services Impasses Panel, under § 2472.11(b) of its regulations, hereby orders the parties to negotiate over the Union’s proposed CWS.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

May 6, 2003
Washington, D.C.

1. The affected employees’ current workweek consists of 7 days (Sunday through Saturday) and includes three 8-hour shifts: 8 a.m. to 4 p.m., 4 p.m. to midnight, and midnight to 8 a.m. The Union is proposing the parties conduct a 90-day trial where, during a standard pay period (80 hours) when an employee is scheduled to work a weekend, the employee would work two 8-hour days during the week, two 12-hour days on weekends, and have three consecutive regular days off. This schedule would rotate every 2 or 4 weeks.

2. 5 U.S.C. § 6131(b) defines adverse agency impact as:

(1) a reduction in the productivity of the agency; to the public by the agency;

(2) a diminished level of the services furnished to the public by the agency; or

(3) an increase in the cost of operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed work schedule).

The Act does not require the Employer to demonstrate adverse agency impact under each of the three criteria in 5 U.S.C. § 6131(b). It is sufficient to demonstrate a substantial effect on the agency under one of the three. The burden of demonstrating the implementation of a proposed CWS is likely to cause an adverse agency impact falls on the employer under the Act. See 128 CONG. REC. H3999 (daily ed. July 12, 1982) (statement of Rep. Ferraro); and 128 CONG. REC. S7641 (daily ed. June 30, 1982) (statement of Sen. Stevens).

3. In calculating this figure, the Employer assumed, among other things, that sick leave use for weekend call-ins would remain the same under a CWS as in calendar year 2002.

4. In addition to permitting affected employees to work two 8-hour days during the week, two 12-hour days on weekends, and have three consecutive regular days off, the Union also proposes the following:

1. 90-day pilot program for [C]WS for utility systems operators.

2. Employees [] agree that only 1 employee will be allowed AL (annual leave) on any given time period.

3. Management and the Union will agree on tangible measurements for the monitoring of this pilot schedule, to properly determine any adverse agency impact.

4. The employees agree that in the event they are unable to comply with coverage needs for the weekend sick call, Management will reserve the right to discontinue the pilot program.

5. AFGE agrees that 14 days prior to the end of the pilot program to meet with management to properly evaluate tangible data to determine feasibility to continue this schedule until the agency [determines the schedule has caused an] adverse agency impact.

5. See 128 CONG. REC. H3, 999 (daily ed. July 12, 1982), and S. REP. NO. 97-365, 97th Cong., 2d Sess. 15-16 (1982).