DEPARTMENT OF VETERANS AFFAIRS VA CONNECTICUT HEALTHCARE SYSTEM WEST HAVEN, CONNECTICUT and LOCAL 2138, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF VETERANS AFFAIRS
LOCAL 2138, AMERICAN FEDERATION OF
Case No. 02 FSIP 183
DECISION AND ORDER
Local 2138, 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 Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Veterans Affairs (VA), VA Connecticut Healthcare System, West Haven, Connecticut (Employer).
Following investigation of the request for assistance, arising from negotiations over official time, 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 was reached, Member Ainsworth would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendation for resolving the impasse. The parties were also advised that after considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.
Pursuant to this procedural determination, Member Ainsworth conducted an informal teleconference with the parties on October 24, 2002. At the close of the proceeding, the parties remained at impasse over a number of issues pertaining to official time, and were permitted to submit final offers and written statements in support of their positions. Member Ainsworth has reported to the Panel, and it has now considered the entire record.
The Employer’s mission is to provide hospital, nursing home, domiciliary care, and outpatient medical and dental services to eligible veterans.(1) The Union represents 335 employees who work as registered nurses and advance practical nurses at grades Nurse 1 through -3 and are part of a nationwide consolidated unit.(2) The nationwide master collective bargaining agreement (MCBA) is due to expire in March 2003. The parties are in the process of negotiating a local supplemental agreement.
ISSUES AT IMPASSE
The parties basically disagree over the following issues: (1) whether the standard to be used when releasing employees on official time should be based on "staffing and patient care workload needs" or "safe staffing needs"; (2) the procedures for delegating unused official time in the absence of the local president or the Newington representative; (3) workload adjustments for Union officials; and (4) whether to refer to wording from the parties’ MCBA addressing topics excluded from the negotiated grievance procedure.
POSITIONS OF THE PARTIES
1. The Union’s Position
In essence, the Union proposes that the phrase "safe staffing needs" serve as the standard for releasing employees on official time to conduct representational activities (Sections 1, 3, and 6). With regard to releasing employees on official time for activities assigned by the National office or to attend National and District level meetings (Section 3), the Union proposes that employees "will" be released when "safe staffing needs are met;" among other differences, the Employer’s section uses "may." As to the local president and Newington representative delegating the use of official time when they are not available (Section 4), the Union proposes to assign such unused time to another official with 48 hours notice to the Employer. In addition to the agreed-to wording on performance evaluations in Section 5, the Union proposes to add a statement that requires the Employer to adjust Union officials’ workload when necessary. Finally, the Union proposes that in instances when the Employer is given less that 4 weeks notice of union training, employees be released from duty based on "safe staffing needs" (Section 6).
On the standard for releasing Union representatives on official time, this proposal should be adopted because, except for dropping the term "workload," the wording mirrors a previous Panel decision that imposed, as a standard, "staffing and workload."(3) The Employer’s proposal that release on official time be based on "staffing and patient care workload" would lead to future conflicts. In this regard, pursuant to Title 38, the Secretary of the VA is "the only individual who has the authority to decide patient care." Under this broad standard, the Employer’s proposal would give supervisors carte blanche to deny Union officials’ requests for official time due to "patient care," regardless of the duties that bargaining-unit employees perform. For employees whose duties do not involve direct patient care, the Employer’s standard of "staffing and patient care need" is inappropriate. The Union’s provision is more reasonable because it does not tie patient care needs to representatives’ requests for release from duties.
In the same vein, the Panel should not adopt the Employer’s wording specifying that employees "may" be released on official time when asked to perform additional union duties by the National level. This wording would allow the Employer to deny a Union representative’s request even when patient care needs have been met. As to the right of the local president or the Newington representative to delegate official time to other Union representatives, the Panel previously has adopted wording similar to what the Union is proposing.(4) By contrast, adoption of the Employer’s proposal would result in the loss of official time, and would permit management "to interfere with the internal affairs of the Union." With regard to requiring the Employer to adjust Union officials’ workload when necessary, its proposal works "hand in hand" with the agreed to wording concerning not allowing official time to affect an employee’s performance appraisal. If it is not included, "the representative’s workload will be affected." Lastly, the Employer’s proposal to include wording that refers to provisions in the MCBA is unnecessary. The Employer simply wants its wording "so the Union cannot grieve the denial of official time."
2. The Employer’s Position
The Employer proposes that the standard releasing employees on official time should be "staffing and patient care workload permitting" (Sections 1, 3, and 6). In addition, it proposes that if a particular official cannot be released, the Union may appoint an alternate to conduct the representational duties. Concerning management releasing Union officials on official time to perform duties assigned by the National office (Section 3), employees may be released, "patient care workload permitting." On the issue of whether the local president and Newington representative should be permitted to delegate official time to others (Section 4), the Employer proposes to suspend labor-management activity in such circumstances until either officer returns or, in the alternative, that "another Union officer may be granted necessary official time" if "the Union or management feels the urgency of the issue requires immediate attention." With regard to the Union’s attending annual training on representational responsibilities (Section 6), the Employer proposes that it be provided with notice 4 weeks in advance; employee release would be based on consideration of staffing and patient care workload needs. In addition, the Employer would accept less than 4 weeks notification if the Union can document that it was provided with insufficient notice. Finally, the Employer proposes that wording be included in the agreement referring to "Article 42 C and related procedural notes" of the MCBA which, among other things, prohibits grievances over matters or issues concerning or arising out of professional conduct or competence, such as direct patient care.
The Employer’s proposal is superior to the Union’s because it takes into consideration several factors, including: the past year’s experience, during which Union representatives were generally released upon request on "unscheduled" official time; the acute shortage of nurses; the fiscal and morale impact of releasing employees on official time which causes greater reliance on overtime; and contractual requirements to provide nursing schedules in advance. The proposal most appropriately addresses management’s concerns regarding releasing employees on unscheduled official time, especially since four of the seven newly-elected Union officials are Emergency Room nurses, while providing the Union with a sufficient amount of official time to properly conduct its representational activities.
Section 1 is more than generous as it grants the Union an amount of official time equal to 1.4 full-time equivalent employees, increasing the availability of official time from 4 to 7 days per week. In addition, the proposal deletes the word "normally" because it erroneously infers that a Union official may leave the work area without making arrangements with the supervisor in advance. The Union’s Sections 2 and 3 should not be adopted because they "obligate management to comply with open-ended requests for additional official time," and conflict with 38 U.S.C. § 7422, which requires that such requests "be evaluated in terms of patient care." Employer Sections 2 and 3 "operate to meet the Union’s underlying interests without incurring an obligation to do so in each and every instance at the expense of patient care."
Similarly, the Union’s Section 4 is unworkable because it would result in "entirely uncontrollable mandatory official time entitlements beyond that granted by the Statute." Further, the provision does not define what is meant by "unavailability," which could lead to grievances. The Union’s position that the Panel should order wording similar to that in VA, Columbia, is misplaced because the facts here are "markedly different." In that case, the Panel determined that the local president should be allowed 20 hours per week of official time. Permitting the president to delegate this time to another representative when not at the facility may be appropriate given the total amount of official time that was granted. Here, the parties have agreed to 100 percent official time for the local president and 40 percent for the Newington representative. Further, in VA, Columbia, the Panel emphasized that by delegating the official time, the union "could not detract from the patient care/mission of the agency." The Union’s proposed wording concerning adjustments to representatives’ workloads also should not be adopted because it is confusing, and could lead to grievances. Moreover, the first sentence of the section, to which both parties agree, already addresses the Union’s concern over protecting representatives’ performance ratings. Finally, "for the sake of clarity," the parties’ agreement should refer to 38 U.S.C. § 7422 and "the related passages" in the MCBA.
Having carefully considered the evidence and arguments presented by the parties, we conclude that their impasse over various aspects of official time should be resolved on the basis of a compromise. With regard to Section 1, the Employer’s proposal to release Union representatives based on "staffing and patient care workload needs" sets a clearer standard for determining when an official time request should be denied, while the Union’s appears more likely to spawn grievances. Moreover, we find little in the record to support the Union’s contention that the Employer would use its proposed standard unreasonably to prevent employees from being released. Additionally, the wording proposed by the Employer at the end of the last sentence of Section 1, addressing the use of a different representative, is unnecessary because unions are already legally entitled to select alternative representatives. Accordingly, it shall not be imposed.
In Section 3, we shall order the adoption of a modified version of the Union’s wording which would permit a representative’s release on official time, for the purposes described therein, when staffing and patient care workload permits. The term "may," used by the Employer in its corresponding Section, implies that factors other than "staffing and patient care workload" also could be considered; the wording is ambiguous and shall not be adopted because it might lead to future disagreements over release decisions. On delegating official time to a different Union representative (Section 4), we shall order the adoption of the Employer’s proposal. Given the facts in the record, the Employer’s offer appears adequate to meet the Union’s needs. Regarding workload adjustments (Section 5), the parties agree that official time use will not adversely affect an employee’s performance appraisal. In our view, this sufficiently addresses the subject, so the Union’s second sentence is unnecessary. As to the issue concerning approval to attend AFGE District and National meetings for training purposes where the Union gives less than 4 weeks notice (Section 6), we are persuaded that employees should be released based on the same standard adopted in Section 1, i.e., a consideration of "staffing and patient care workload." Finally, because questions concerning the scope of the negotiated grievance procedure are already addressed in the parties’ MCBA, the Employer has not established the need for the additional wording it is proposing in this regard.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under § 2471.11(a) of its regulations, hereby orders the following:
1. Union representatives shall receive official time as indicated below to carry out their representational duties: Local President 100% and an additional 40% for a Union representative at the Newington campus. All other Union representatives, before leaving their work sites to transact permissible union representational duties, will contact their immediate supervisors. Arrangements for a union representative to leave the unit will be made in advance. The supervisor will assess staffing and patient care workload needs to determine whether the union representative can be released at the requested time and for the anticipated duration. Official time requests will not be unreasonably denied. If the Union representative cannot be released at the requested time and for the requested duration, the supervisor and the representative will arrange a mutually agreeable alternative date and time.
2. Activities specified in Article 45, Section 6, will count as duty time and not be calculated against the official time limits.
3. In the event any member of Local 2138 has additional representational duties, other than internal union assignments, assigned by the A