United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF VETERANS AFFAIRS PORTLAND VETERANS ADMINISTRATION MEDICAL CENTER PORTLAND, OREGON
and LOCAL 2157, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 98 FSIP 145

DECISION AND ORDER

    Local 2157, 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 the determination of the Department of Veterans Affairs, Portland Veterans Administration Medical Center, Portland, Oregon (Employer) not to implement compressed work schedules (CWS) as proposed by the Union in several inpatient wards at the Employer’s Portland, Oregon, facility.⁽¹⁾

    Following an investigation of the request for assistance, the Panel determined that the impasse should be resolved on the basis of an informal conference with a Panel representative. The parties were advised that if no settlement were reached, the representative would report to the Panel on the status of the dispute, including the parties’ final positions and the representative’s recommendation for resolving the matter. After considering the report, the Panel would take final action in accordance with section 6131(c) of the Act and section 2472.11 of its regulations.

    Accordingly, the parties met with Panel Member Dolly M. Gee on October 14, 1998. When the dispute was not resolved during the informal conference, the parties submitted written statements of position. Member Gee has reported to the Panel and it has now considered the entire record.

BACKGROUND

    The Employer operates a tertiary-care medical center for veterans with facilities at Portland, Oregon, and Vancouver, Washington. Local 2157 represents approximately 600 to 650 bargaining-unit employees at the Portland facility who are included in two nationwide, consolidated units--one of professional and the other of nonprofessional employees. The two consolidated units are covered by a single master collective bargaining agreement (MCBA), which is scheduled to expire on March 21, 2000. The parties have negotiated a local supplemental agreement, which had not gone into effect at the time of the initial investigation in this case. Among other things, the MCBA establishes procedures under which bargaining-unit employees can request alternative work schedules. The outcome of this dispute will affect approximately 62.9 nurse (RN) and licensed practical nurse (LPN) full-time equivalents assigned to two surgical wards, 9C and 8D, at the Portland facility. The employees on those wards provide care for patients during periods of hospitalization and recovery from diagnostic and surgical procedures. They are assigned around the clock and currently work on three 8-hour shifts--day, evening, and night.

ISSUE AT IMPASSE

Under the Union’s proposal, RNs and LPNs on wards 9C and 8D desiring to do so would, for a 1-year pilot period, work a CWS consisting of six 12-hour days and one 8-hour day per pay period.⁽²⁾ The Employer asserts that the proposed CWS would cause an adverse agency impact because it would increase costs, reduce productivity, and diminish services to patients. The issue before the Panel, therefore, is the following:

Whether the agency head’s findings on which the Employer has based its determination not to establish the Union's proposed CWS pilot in wards 9C and 8D is supported by evidence that the schedule is likely to cause an adverse agency impact as defined under the Act.⁽³⁾

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 establishes that the schedule is likely to cause an adverse agency impact as defined under the Act. With respect to service to patients, the establishment of a 12-hour CWS in a 24-hour-a-day operation would produce more shift changes than a conventional 8-hour/3-shift schedule. One of the reasons for this is that not all nurses would be required to work 12-hour shifts under the Union’s proposal. Increasing the number of shift changes, in turn, disrupts the continuity of patient care by producing additional rotations of patients among caregivers. Rotations among caregivers fragment and undermine the quality of patient care. A 1989 study shows that the quality of patient care is significantly lower under this type of work schedule.

    An increased number of shift changes would also be deleterious to productivity. In particular, more time would be used for communications associated with transferring patients between nurses. When compared with 8-hour shifts, 12-hour shifts afford less flexibility to match staffing levels with patient-care needs that decrease as day progresses into night; they would produce regular periods of "overstaffing" during the day and inefficiency in responding to unplanned staff absences. A study conducted on the subject indicates that when nurses work 12-hour shifts, the quality of patient care is reduced. Contrary to the Union’s assertion that the availability of CWS is beneficial as a recruitment and retention incentive, the availability of CWSs in the Employer’s Intensive Care Units has not demonstrably enhanced retention rates there.

    Finally, the Union’s proposed CWS would prevent meeting established core staffing requirements in a cost-effective manner.⁽⁴⁾ The regular "overstaffing" that would result is conservatively estimated to cost $397,600 per year for the two wards. Further "overstaffing" costs can be expected to result from unplanned absences when an employee with the same work schedule is not available as a replacement. Cost problems will be aggravated by the inability to control the number of nurses who elect the CWS or who, after doing so, revert to a conventional 8-hour work schedule. Currently, due to a budget shortfall, no additional personnel will be hired for the two wards involved in this case regardless of whether the CWS is implemented.

    2. The Union’s Position

    The Union’s proposal is as follows:

1. Pilot Program for all RN’s/LPN’s desiring 12-hour tours in Patient Care Service Line 2, on 9C and 8D, for a period of one year.

2. If adverse agency impact is declared on either 8D or 9C, the Agency may invoke its rights under the Federal Employees Compressed Work Schedules Act.

3. If a nurse desires to be removed from the 12-hour tours during the pilot, the request must be submitted in writing to the manager of Patient Care Service Line 2. Criteria for voluntary discontinuation of the 12-hour tour will be negotiated at a future date.

The Employer has not established that the proposed CWS would have an adverse agency impact. Contrary to the Employer’s assertions, patient care will benefit from the proposed CWS. The ability of nurses to spread patient care over a 12-hour period will increase the quality of care. Rather than producing more shift and patient-care changes in a day, the CWS is just as likely to result in fewer changes than under the current conventional work schedule. Twelve-hour shifts will afford greater continuity in both patient care and communications between caregivers. The availability of more days off will allow nurses more down time and enhance their productivity and morale. The availability of a CWS will also serve as a recruitment and retention incentive.

    Currently, the Employer does not meet core staffing requirements using the 8-hour schedule; the proposed CWS will permit the Employer to meet its patient care needs. Regarding the termination of the previous CWS, despite the Union’s request, the Employer has never provided information showing that the termination produced any cost savings. Hypothetical schedules applying the proposed CWS show that the Employer can provide the same or better staff coverage without hiring additional personnel. In health-care facilities in the surrounding community and elsewhere within the Department of Veterans Affairs, nurses are allowed to work CWS, including 12-hour shifts.

CONCLUSIONS

    Under section 6131(c)(2) of the Act, the Panel is required to take final action in favor of the head of the agency's or, in this instance, his 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 record does not support a finding that the proposed CWS is likely to diminish service to the public, reduce productivity, or increase costs. Because we find that the Employer has not met its burden of showing that the Union’s proposed CWS is likely to cause an adverse agency impact, we will order the parties to negotiate over the Union’s proposal.

    As to service to the public, we find the Employer’s claims that the proposed CWS would undermine the quality of patient care by producing more frequent shift changes and reassignments of patients to caregivers are based on the prediction of a "worst-case scenario" and, therefore, are unconvincing. For one thing, without knowing the number of nurses who would opt for CWS, the Employer’s assumptions appear speculative. In our view, proper management of staff and patient assignments under the CWS could avoid the type of scenario the Employer posits and maintain continuity in patient care at a level comparable to that which currently exists. With respect to the 1989 study submitted by the Employer to support its contention that the quality of patient care would diminish in conjunction with 12-hour shifts, that study specifically acknowledges that the view presented is not universal and cites other studies that have reached a different conclusion.

    Turning to productivity, the Employer has not persuaded us that an increase in the number of shift changes is inevitable under the proposed CWS and that, correspondingly, the amount of time dedicated to tasks involved in shift changes would rise. Again, we believe that creative scheduling could limit the number of shift changes. Moreover, it appears equally likely that the use of the longer, 12-hour shifts might reduce the overall number of shifts in a day, depending on how many nurses elect the CWS option. Similarly, the Employer’s assertions that the proposed CWS would result in "overstaffing" are also unpersuasive. In this regard, CWSs should not be held to a higher standard than conventional 8-hour shifts in terms of success in meeting preestablished staffing requirements which may or may not correlate with the needs of the patient population at any given time. Recent work schedules in the record show that both "overstaffing" and "understaffing," relative to the core staffing requirements, occur under the current 8-hour shifts.

    The study submitted by the Employer to demonstrate that 12-hour shifts are likely to produce a reduction in the quality of nursing care, in our assessment, also fails to hit its mark. In this connection, the study itself acknowledges that it was performed in an environment where staff attitude towards a 12-hour shift was very negative and the observed staff behavior was undoubtedly influenced by that negativity. By contrast, the record in this case indicates that although desire for the 12-hour shift may not be universal in wards 9C and 8D, a significant number of nurses welcome the prospect. Consequently, it appears that employees permitted to work these schedules would be motivated to ensure the success of the 12-hour shifts. The validity of this assumption, of course, can only be demonstrated by making the CWS option available to employees and testing the results.

    On the issue of increased cost, while the Employer projects that "overstaffing" attributable to the schedule would cost at least $397,600 annually, it does not show that this would lead to increased overtime use on other shifts or increased hiring. To the contrary, the Employer confirms that there are no funds available to pay for the alleged increased costs of the CWS. In essence, therefore, its projected cost increases appear to boil down to an argument that making the CWS available would result in the inefficient allocation of fixed resources, and not an actual increase in expenditures. The defects in its position have already been addressed above in relation to its contentions regarding service to the public and productivity.

    As previously suggested, we believe that a test of the CWS is warranted where, as here, the actual effect of the proposed CWS is not yet known and the predicted effects fall short of establishing that the schedule would have an adverse agency impact. A pilot period should generate data that provides a better basis on which to determine the impact of the schedule. Furthermore, the details that the parties ultimately work out may differ from those in the Union’s proposal as currently drafted.⁽⁵⁾ The parties are urged to be flexible during the negotiations and responsive to each other’s interests and concerns. To ensure the establishment of a successful and mutually beneficial CWS program, we also recommend that the parties include provisions in their CWS agreement for jointly gathering and sharing information about how the schedule is working so they may collaboratively review, evaluate and, if necessary, fine-tune the program. Finally, as the Union’s current proposal and the parties’ MCBA acknowledge, if at any point the Employer finds that the CWS has had an adverse agency impact, it is legally and contractually entitled to determine not to continue the schedule in accordance with the provisions specified in the Act and their MCBA.

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 parties to negotiate over the Union’s proposal.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

December 4, 1998

Washington, D.C.

 

1.Approximately 2 years ago, the Employer terminated then existing CWS schedules in those wards apparently without opposition from the Union.

2.The Union modified its original proposal during the course of the investigation and informal conference.

3.Under 5 U.S.C. § 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).

The burden of demonstrating that implementation of a proposed AWS 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).

4.Core staffing requirements are staffing plans that prescribe the number of personnel that should be assigned to each shift on the various wards. They are determined based on the average patient population for a given ward combined with the amounts of time required for patient-care during various portions of the day developed by the VA Central Office.

5.For example, we note that insofar as the Employer is concerned about the disruption that may result if nurses are able to convert from CWS to conventional schedules with only a pay period’s notice, Article 20, section 2(C)(2)(d) of the MCBA provides that parties may negotiate locally over the amount of notice required.