After investigation of the request for assistance, the Panel determined that the dispute should be resolved through an informal conference by telephone with Panel Member Richard B. Ainsworth. The parties were advised that if no settlement were reached during the informal conference, Member Ainsworth would report to the Panel on the status of the dispute, including the parties’ final positions and his recommendations for resolving the impasse. After considering this 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.

   Pursuant to the procedural determination, Member Ainsworth conducted an informal conference by telephone with the parties on June 7, 2006. While the possibility of a settlement was explored, a settlement was not reached. The Panel has now considered the entire record, including the parties’ pre-conference submissions, and Member Ainsworth’s recommendation for resolving the dispute.

   The Employer provides both inpatient and outpatient health care services to veterans in Southern and Central Ohio. The Union represents approximately 1,168 Title 5 and Title 38 professional and non-professional employees who work in such positions as registered nurse, food service worker, social worker, physician, psychologist, and a wide variety of clerical and program support positions (at GS-3 through -14 and WG-2 through -12). The parties= master collective bargaining agreement (MCBA) was to have expired in 1997 but its terms and conditions continue in effect until it is replaced by a successor MCBA.

   In accordance with section 6131(c)(3)(C) of the Act, the issue in dispute is whether the finding upon which the Employer has based its determination to terminate the 5/4-9 CWS of the MAA at the MHC is supported by evidence that the schedule is causing an adverse agency impact.^3/

   The CWS should be terminated because it has diminished the level of service provided to veterans and caused a reduction in the productivity of the MHC. Management’s decision to abolish the CWS was "initiated as a result of complaints from staff members that administrative support was not available" during MHC operating hours.^4/ After reviewing the situation, the Employer determined that the level of service provided to veterans is diminished on the MAA’s regular day off (RDO) once every 2 weeks. This is because, essentially, it takes two MAAs to handle the MHC’s daily workload. During the recent period when only the CWS MAA was working at the MHC, the MHCL’s one relief clerk, who fills in for MAAs on annual, sick, or any other unexpected leave at the eight clinics, or an MAA from another clinic, had to be assigned to the MHC every time the CWS MAA had her RDO. This only ensured that there would be at least one MAA at the MHC on a daily basis. Now that the MHC once again has two MAAs, there will be an MAA working on the CWS MAA’s RDO, but the relief clerk will still have to be assigned to the MHC on that day to ensure that two MAAs are providing veterans with service. Doing this on a regular basis diminishes the level of service provided to the MHCL’s other seven clinics, none of which have CWS in place. In this regard, "patient calls are forwarded to other staff members who do not have the capability to take care of patient’s needs including scheduling appointments or advising patients of their benefits and entitlements." Moreover, "a clerk is not physically available to assist patients entering the clinic to greet them, clarify numerous questions the patient may have and coordinate patient emergency situations."

   In addition to the effect on service, productivity is being reduced on a daily basis because there is insufficient work for the MAA to perform between 7 and 8 a.m., when the MHC’s professionals begin their appointments with veterans. Given that some veterans arrive at the MHC early for an 8 a.m. appointment, the Employer offered during bargaining to permit the MAA to arrive as early as 7:30 a.m. provided the MHC is covered Monday through Friday, but this was unacceptable to the Union. The current CWS also has had an adverse impact on "morale and efficiency of the service." The Associate MHCL Manager has "received several requests from other staff members" that the MAA return to a regular work schedule. In this regard, a major responsibility of the MAA is to act as a liaison between the patient and the provider and, "in situations when the MAA is not available, it hinders the efficiency of the process." Finally, during previous discussions between the Associate MHCL Manager and the employee, there was no indication of any "personal issues such as child care needs, medical needs, or any personal responsibilities" that would adversely affect the employee if the CWS were terminated.

   The Panel should find that the Employer has not met its burden under the Act of demonstrating that the 5/4-9 CWS in the MHC has caused an adverse agency impact. Preliminarily, the Union believes that the Employer filed its request to terminate the CWS with the Panel prematurely. In its view, the Employer did not provide data to support its adverse agency impact allegations during the negotiations, as required under section 6131(b) of the Act, nor was there sufficient discussion of alternative approaches before the Employer requested the Panel’s assistance. Therefore, "bargaining has not reached impasse" and the parties "should return to the bargaining table." In addition, in its request to the Panel the Employer admits to "bypassing" the Union by attempting to bargain directly with the employee. While "this is an issue to be addressed in another forum," it shows that management has not been diligent "by dragging this issue out for the past year."

   Regarding the Employer’s claims of adverse impact, "management has failed to provide any data to support" them, and "has given conflicting statements as to the coverage issue in the clinic." In June 2005, it contended that "two clerks were needed for the daily operations of the clinic," but indicated in March 2006 that only one clerk was needed, "stating that the circumstances related to clerical coverage [had] changed." In fact, management decided at that time not to fill the recently vacant MAA position in the MHL, giving "the appearance that the lack of coverage is solely tied to the [CWS] under the guise of adverse impact, and not the reality that management has not properly staffed the clinic." Now that the MHC once again has a second MAA, and the relief clerk continues to be available, flexibility has been restored and there is once again adequate customer support on the CWS MAA’s RDO. Finally, with respect to the Employer’s allegations concerning a reduction in productivity, the CWS MAA has plenty of things to do between 7 and 8 a.m., among them, seeing to the needs of veterans who routinely arrive early for their 8 a.m. appointments.

   Under section 6131(c)(3)(C) of the Act, the Panel is required to take final action in favor of the agency head’s (or delegatee’s) determination to terminate a CWS if the finding on which the determination is based is supported by evidence that the schedule has caused an "adverse agency impact." As its legislative history makes clear, Panel determinations under the Act are concerned solely with whether an employer has met its statutory burden on the basis of "the totality of the evidence presented."^5/

   Turning to the Union’s preliminary contention that the parties are not at impasse, section 6131(c)(3)(B) of the Act states that "if [an] agency and exclusive representative reach an impasse in collective bargaining with respect to terminating [a CWS], the impasse shall be presented to the Panel" [Emphasis added]. The Panel makes determinations regarding whether parties have reached an impasse on a case-by-case basis after conducting an initial investigation of a request for its assistance. In the instant case, the record contains a document indicating that the Employer first raised questions concerning the impact of the CWS on the MHC’s operations as far back as April 2005, as well as minutes of five negotiating sessions that culminated in the Employer’s rejection on April 10, 2006, of proposals the Union made at the parties’ last bargaining session on April 7, 2006. On the basis of their bargaining history, the Panel concluded that without its intervention, no further progress would be made by the parties in resolving their dispute. In our view, the Union has failed to present any facts or circumstances to substantiate its claim that the parties are not at impasse. Consequently, we turn next to the issue of whether the Employer has met its statutory burden under the Act.

   Having carefully considered the totality of the evidence presented in this case, we conclude that the Employer has demonstrated that the 5/4-9 CWS at the MHC is causing a diminished level of service to veterans. In this regard, there is evidence in the record that when MAAs from the MHCL’s other clinics have been detailed to the MHC to cover for the CWS MAA on her RDO, they are unable to perform patient and clinician support duties at the clinics to which they are regularly assigned. There is also a documented instance where there was no on-site MAA in the MHC during the CWS MAA’s RDO and a veteran was unable to reach anyone in the MHC to cancel and reschedule an appointment, and other veterans were required to wait to get fairly simple tasks accomplished. While a greater number of MAAs in the MHCL would undoubtedly alleviate these adverse affects, we do not believe that the Employer should be required to hire additional employees so that CWS can continue to be made available. Accordingly, we shall order that the 5/4-9 CWS in the MHC be terminated.

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 Service Impasses Panel under § 2472.11(b) of its regulations hereby orders the termination of the 5/4-9 CWS in the MHC.