United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF THE ARMY FORT CARSON EVANS ARMY COMMUNITY HOSPITAL FORT CARSON, COLORADO
AND LOCAL 1345, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 96 FSIP 53

DECISION AND ORDER

    Local 1345, 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 Employees Flexible and Compressed Work Schedules Act (Act), 5 U.S.C. § 6120, et seq., between it and the Department of the Army, Fort Carson, Evans Army Community Hospital, Fort Carson, Colorado (Employer).

    After investigation of the request for assistance concerning a dispute over the termination of a 4/10 alternative work schedule (AWS) for the medical clerks in the Psychiatry Department, the Panel asserted jurisdiction over the dispute under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, and determined that it should be resolved through written submissions from the parties.⁽¹⁾ Thereafter, the Panel would issue a Decision and Order to resolve the impasse. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.

BACKGROUND

    The Evans Army Community Hospital is responsible for providing medical support to combat troops, dependents, and retirees. The Union represents approximately 1,200 General Schedule (GS) bargaining-unit employees, 600 of whom are employed at the hospital. The bargaining-unit employees work as nurses, clerks, secretaries, and medical technologists. There are three medical clerks⁽²⁾ employed by the Psychiatry Department, but only two are participating in the AWS program, which was implemented on April 12, 1995.⁽³⁾ While negotiations for a successor collective-bargaining agreement (CBA) are in progress, the current agreement, which expired in 1988, remains in effect until its successor is executed.

ISSUE AT IMPASSE

    The parties essentially disagree over whether the 4/10 AWS of two medical clerks in the Psychiatry Department should be terminated.

POSITIONS OF THE PARTIES

1. The Employer’s Position

    The Employer proposes that the current 4/10 work schedule be terminated. In its place, it proposes the following work schedules:

For Medical Clerks assigned to the Psychiatry Department, an AWS of 9 hours x 5 days in the first week and 9 hours x 3 days and 8 hours x 1 day and a Regular Day Off (RDO) for the second week of each pay period. This AWS would be exchanged or rotated at a scheduled time between the two Medical Clerks, every 6 months for example. Duty hours for the Medical Clerk on AWS would be from 0700-1700 on the 9-hour days, and from 0800-1700 on the 8-hour day, both with an hour for lunch. Duty hours for the Medical Clerk not on an AWS would remain 0730-1630, with an hour for lunch.

The current 4/10 work schedule has caused staffing problems on the clerks’ Monday and Friday off-duty days. On at least eight occasions "just since the beginning of 1996," only one clerk has been available for duty because the second clerk who is scheduled for duty has taken annual or sick leave, or attended training. One clerk cannot provide adequate coverage of administrative duties.⁽⁴⁾ To ensure that patients can be treated, military personnel, who are responsible for direct patient care, have performed the clerks’ administrative duties. Because of this degradation in duties, patients are delayed in receiving treatment.⁽⁵⁾ Hence, its proposal is reasonable because it would permit the clerks to retain access to some form of AWS program, while allowing the hospital to improve customer service by reducing the number of days in which only two clerks are scheduled for duty.

    The Union’s proposal, on the other hand, "clearly intends for soldiers, who provide direct patient care, to perform the clerical work of the employees while the employees enjoy the day off." This "arguably interferes with the Agency’s right to assign work." Moreover, there is no current policy to use military personnel on a staggering schedule, "or any other type of schedule." Finally, with respect to the Union’s contention that the Employer has failed to demonstrate "adverse agency impact," because it intends to continue an AWS for the affected employees, such a demonstration is unnecessary. In this regard, in previous cases the Panel has ordered the implementation of 5-4/9 schedules instead of 4/10 schedules without addressing the issue of whether adverse agency impact was proved.

2. The Union’s Position

    The Union proposes "no change from the established policy. Alternate coverage shall be accomplished consistent with the current policy of utilizing military personnel only on a staggering schedule." In this regard, the Employer has not demonstrated an adverse agency impact "pursuant to Section 6131" of the Act, to justify terminating the schedule. The current staff has met all the requirements of the position, even though the number of full-time clerks has been reduced by one. Thus, any modifications to the work schedule appear to be unnecessary, and would only lower the morale of the employees who "are very happy and supportive of the AWS."

CONCLUSIONS

    Having carefully considered the evidence and arguments presented by the parties, we now find that our determination to assert jurisdiction over this dispute under the Statute was mistaken. By way of background, § 6131(a)(2) of the Act essentially states that if the head of an agency finds that a particular AWS has had an adverse agency impact,⁽⁶⁾ "the agency shall promptly determine not to . . . continue such schedule, if the schedule has already been established." Further, § 6131(c)(3)(A) specifies that if parties have entered into an AWS agreement and the head of the agency determines under § 6131(a)(2) to terminate an AWS, "the agency may reopen the agreement to seek termination of the schedule involved." If the parties reach an impasse in collective bargaining with respect to terminating such schedule, § 6131(c)(3)(B) specifies that "the impasse shall be presented to the Panel."

    Our analysis of these statutory provisions leads us to conclude that unless parties clearly and unmistakably agree otherwise, the Act provides the exclusive means for terminating an AWS.⁽⁷⁾ In our view, the Panel lacks the authority to order the termination of this AWS in the absence of the Employer’s meeting its statutory burden of demonstrating that the existing schedule has caused an adverse agency impact, a requirement not applicable to AWS cases considered under the Statute. In this regard, we are unpersuaded by the Employer’s contention that because it proposes to continue an AWS for the affected employees, it is not required to demonstrate adverse agency impact under the criteria specified in the Act. Moreover, it is clear from our examination of the parties’ AWS agreement and their written submissions that the Union has not agreed to allow the Employer to bypass this statutory requirement.⁽⁸⁾

    For these reasons, the Panel declines to retain jurisdiction in this case without prejudice to the right of either party to submit another request for assistance under the Act. The parties are reminded that any such request for assistance should be in conformance with the requirements specified in the Act and the Panel’s regulations.⁽⁹⁾

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because the dispute does not comport with the statutory requirements applicable to the termination of an alternative work schedule, the Federal Service Impasses Panel under 5 C.F.R. § 2471.11 of its regulations hereby declines to retain jurisdiction of this case.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

June 27, 1996

Washington, D.C.

 

1.The Panel’s determination to proceed under the Statute was made at the request of the Employer, and was not specifically opposed by the Union.

2.When the AWS program was implemented, there were four medical clerks in the department; however, in mid-1995, one position became vacant and will not be filled due to budgetary constraints.

3.The shifts of the medical clerks are as follows:

Clerk 1 works 0730 to 1630, 5 days a week.

Clerk 2 works 0630 to 1700, 4 days a week. (Friday off-day)

Clerk 3 works 0600 to 1630, 4 days a week. (Monday off-day)

4.The medical clerks are responsible for screening patients before treatment, obtaining medical records, answering the telephones, performing clerical duties, and making appointments for mental health services.

5.Section 6 of the parties’ AWS agreement, dated March 24, 1995, provides that “[a]ll parties must remember that should the mission be degraded by AWS, there is no requirement to implement or continue AWS.”

6.Under § 6131(b), "adverse agency impact" is defined as:

(1) a reduction of the productivity of the agency;

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

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

Under the Act, the burden of demonstrating that an existing AWS has had an adverse agency impact falls on the employer.

7.In this connection, while it appears at least arguable that the parties’ MOU permits the Employer to terminate an AWS unilaterally, there is nothing in the MOU to indicate that the parties agreed that any impasses reached over such terminations would be handled under the Statute, rather than the Act.

8.To the extent that the Panel has previously considered terminations of AWS under the Statute without the explicit concurrence of both parties, it will no longer do so.

9.See 5 U.S.C. § 6131(a) and (b); 5 C.F.R. § 2472.4.