Local 1226, 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, Central Iowa Health Care System, Knoxville Division, Knoxville, Iowa (Employer), to terminate a 4/10 compressed work schedule (CWS) for certain employees in Engineering Services at the Employer’s Knoxville, Iowa, facility.⁽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 Grace Flores-Hughes. The parties were informed that if no settlement was reached during the informal conference, Member Flores-Hughes would notify the Panel of the status of the dispute. The notification would include, among other things, her recommendation for resolving the matter. 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. The parties were also directed to submit statements of position, prior to the informal conference, with supporting evidence and argument on the following issue:

   The Employer’s mission is to provide in-patient and out-patient services and care to veterans in central Iowa. There are two divisions, Des Moines and Knoxville, in the Central Iowa Health Care System.⁽³⁾ The Union represents 599 bargaining-unit employees who work in such positions as engineer, plumber, physician, psychologist, electrician and firefighter (at GS-3 through -14 and WG-2 through -12). The termination of CWS in this case would directly affect 14 employees who work in 8 of the 14 shops/units in Engineering Services. The parties’ collective bargaining agreement (CBA) was to have expired in 1997; since that time, it has been renewed for 2-year periods, and is now due to expire in August 2003.

   The issue before the Panel is whether the finding on which the Employer has based its determination to terminate the 4/10 CWS in Engineering Services is supported by evidence that the schedule is causing an adverse agency impact.

    The Panel should find that the evidence on which the Employer bases its determination to terminate the 4/10 CWS establishes that the schedule is causing an adverse agency impact as defined under the Act. The "main issue" leading to the Employer’s determination is that "over the last 10 years staffing levels in various Engineering disciplines have been reduced to the point that it is no longer possible to maintain adequate coverage during the normal administrative workweek (7:45 a.m. - 4:30 p.m. Monday through Friday)." In the Machine, Bio-Med, Air Conditioning, and Pipefitting Shops, where the adverse impact of the CWS is most severe, the total complement of unit employees has gone from 18 (in 1991 when the CWS first went into effect) to 12, with a majority of journeyman level employees working the CWS. This has left "recurring periods of single coverage with the potential of no coverage during times of unscheduled leave." When journeymen are not available, either someone is reassigned from another area, supervisors are taken off their normal assignments to perform the work, or work is delayed until coverage is available. The net result is a diminishment of the overall level of customer service provided.

    The problems that have arisen in Laundry Services illustrate how adverse agency impact is occurring because of the CWS. Between April 11, 2001, and February 12, 2003, there were 10 incidents on Wednesdays when a journeyman employee from the Machine Shop was on his CWS off-day, which delayed needed repairs to washers, dryers, and ironer folders, reducing production and the quality of service to customers within the facility. Additionally, evidence of adverse agency impact is provided through memoranda submitted by supervisors of the Bio-Med, Maintenance, Carpenter/Plumbing, and Electric Shops attesting to, among other things, the difficulties the CWS has caused in ensuring there are enough people present "to do the work when the work needs to be done."

    While the Employer "acknowledges that the [CWS] has personal benefits to employees, this must be weighed against the need to provide service at the appropriate times." Among the benefits of eliminating the CWS are an increase in journeyman level coverage during the normal workweek, improved coordination of ongoing work between engineering disciplines and affected medical center departments, and increases in the number of supervised hours and needed training for employees. For example, had the CWS not been in effect for the period of January 13, 2002, through August 24, 2002, the aggregate number of work hours available during the normal workweek in the Machine, Bio-Med, Air Conditioning, and Pipefitting Shops would have increased by 1,330, and there would have been an additional 134 days where no coverage or single coverage would not have occurred.

    The Union urges the Panel to find that the Employer has not met its statutory burden under the Act, and permit the 4/10 CWS in Engineering Services to continue. The CWS "has successfully and positively impacted productivity and morale" for over 10 years, as demonstrated by the testimony of affected employees, and non-unit employees in other divisions, both in terms of accommodating family needs, and in improving service to customers. Among other things, compressed tours: (1) permit employees to take care of family issues without having to use annual and family-friendly leave; (2) provide greater hours of service to the public during a given workday; (3) avoid disruption to client care during clinic hours; and (4) minimize the need for call-backs and overtime in emergency situations because of extended hours of coverage during each workday.

    The Employer, on the other hand, has failed to provide "any proof supported by documentation" that the CWS has created an adverse agency impact. Moreover, even if there has been a diminished level of service to the public, management "should take the credit for creating the situation" by not filling positions "that became vacant in a timely manner if at all." In this regard, it continues to send a biomedical equipment technician from Knoxville to its Des Moines Division, in effect creating the coverage problem in the Bio-Med Shop that it alleges is caused by the CWS. To the extent that the Employer’s allegation of adverse agency impact is based on a lack of supervisory staff, "engineering is and traditionally has been a self-directed, self-motivated department, receiving work orders from office staff in many instances, not supervisory staff."

    With respect to the 10 incidents in Laundry Services cited by the Employer for the first time just before the informal telephone conference to support its allegation of adverse agency impact, "the data the agency submitted to the Panel is inaccurate and misleading at best." The Employer did not supply official work orders that are used to track parts and labor, or copies of the repair history for each piece of equipment, in 9 out of the 10 incidents. Further eroding the credibility of these alleged incidents, "even if a piece of equipment is disabled or out of service there are multiple pieces of each type of equipment, so if one is down there are other machines that can be used." In addition to failing to verify that these equipment problems ever took place, it provided no documentation or evidence of adverse agency impact "in any of the other targeted areas where proposals were made to eliminate CWS tours of duty."

    Under section 6131(c)(3) of the Act, the Panel is required to take final action in favor of an employer’s determination if the finding on which the determination is based is supported by evidence that a CWS has caused adverse agency impact. Having considered the record before us, we conclude that the Employer has not met its statutory burden. Accordingly, we shall order that the 4/10 CWS in Engineering Services be continued.

    Pursuant to the authority vested in it by section 6131 (c) of the Federal Employees Flexible and Compressed Work Schedules Act, the Federal Service Impasses Panel, under section 2472.11(b) of its regulations, hereby orders that the 4/10 CWS in Engineering Services be continued.

1. The burden of demonstrating that a proposed CWS would have an adverse agency impact falls on the employer under the Act. In this case, VA Directive 5011, issued in April 2002, delegates authority to “Facility directors” to approve, disapprove or discontinue “duty and leave actions for employees under their jurisdiction, including flexible and compressed work schedules.” In the Employer’s September 19, 2002, finding of adverse agency impact, the Facility Director attests to the fact that he has “concluded that it is [his] responsibility to recommend discontinuance [of the CWS] based on a diminished level of service to the public/veteran.”

2. 5 U.S.C. § 6131(b) defines adverse agency impact 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 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 any one of the three.