DEPARTMENT OF THE ARMY ARMY DENTAL ACTIVITY FORT KNOX, KENTUCKY and LOCAL 2303, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE ARMY
LOCAL 2303, AMERICAN
Case No. 06 FSIP 63
DECISION AND ORDER
The Department of the Army, Army Dental Activity, Fort Knox, Kentucky (Employer or DENTAC), filed a request for assistance with the Federal Service Impasses Panel (Panel) under 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 its decision to terminate the 5/4-9 compressed work schedule (CWS) of bargaining unit employees in DENTAC represented by Local 2303, American Federation of Government Employees (AFGE), AFL-CIO (Union).
After investigation of the request for assistance, the Panel determined that the dispute should be resolved through an informal conference at Fort Knox, Kentucky, 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 with the parties on May 24, 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 mission of the Fort Knox DENTAC is to ensure dental readiness for its beneficiaries by promoting beneficial oral health and hygiene habits and by restoring and maintaining optimal dental health. Its workforce includes General Schedule (GS), military, and contract employees. The Union represents approximately 1,040 employees in various nonprofessional positions at Fort Knox. There currently are 14 employees on CWS affected by the Employer’s decision occupying such positions work as dental assistants, dental therapy assistants, hygienists, lab technicians, and clerks, at grades GS-3 through 7. The collective bargaining agreement (CBA) covering these employees expired on April 20, 2006; the terms of the agreement will remain in effect until a new agreement is negotiated.
ISSUE AT IMPASSE
In accordance with section 6131(c)(2)(B) of the Act, the issue in dispute is whether the finding on which the Employer bases its determination to terminate the 5/4-9 CWS in DENTAC is supported by evidence that the schedule has caused an adverse agency impact.1/
POSITIONS OF THE PARTIES
1. The Employer’s Position
The 5/4-9 CWS should be terminated because it has caused a reduction in productivity, a diminished level of service to its external customers (soldiers), and an increase in the cost of Fort Knox DENTAC’s operations. By way of background, the Fort Knox DENTAC is unique in that there are three specific elements to its mission: (1) dental readiness of soldiers mobilizing from three separate sites in support of the Global War on Terrorism; (2) the First Term Dental Readiness (FTDR) program, which addresses the extensive dental needs of new recruits; and (3) the oral health of the soldiers of the installation’s tenant units. To meet the increased demand for its services, in the late 1990’s the Army Dental Care System moved towards a "team dentistry" approach, which is more efficient because it allows a greater number of services to be provided per patient visit.
For most of the workweek, "dental care teamwork is feasible since all employees are present for work." On Fridays, however, when the employees on the CWS have their regular day off (RDO), "reduced mission capability" is the result. To illustrate this point, management compared the average number of appointments on Mondays through Thursdays with those on Fridays for periods in September, October, and November 2004, February and March 2005, and January, February, and March 2006. During the most recent 3-month period, there were 15-30 percent fewer appointments on Fridays than other days of the week. While the negative impact on its mission "was demonstrably more severe prior to November of 2004" before the parties reached an agreement to reduce the number of employees on CWS to the current number, "the optimum ratio of auxiliaries to dentists is not achievable with this compromise." Moreover, if the CWS continues, the situation will be exacerbated in the near future when soldiers/trainees are scheduled for more surgery appointments on Fridays to give them the weekend to recover before resuming training on the following Monday. In this regard, "to hire the required [number of contract] employees to [reach] the optimal number to cover the shortage created" by the CWS, the Employer estimates it would have to spend over $52,000 per year in additional salary and benefits "out of a fixed budget."
The Employer also compiled statistics comparing "the production per patient visit" for three distinct periods: (1) April-May-June 2004, when all of its personnel were on CWS; (2) August-September-October 2004, when only GS employees were on CWS; and (3) portions of November 2004 through March 2006, the period during which the current agreement regarding the number of GS employees permitted on CWS has been in effect. There was a 22-percent increase in production per patient visit when Period 3 is compared to Period 1, and a 13.4-percent increase when Period 3 is compared to Period 2. Clearly, the data indicate that production per patient visit "has grown dramatically the further the DENTAC moves away" from the CWS so that the work schedules of all three component groups of its staff are aligned for maximum efficiency.
Returning to the issue of cost, of the 14 employees currently on the CWS, 11 "are not employed at all efficiently." Their primary duties are to assist in the provision of dental care, but each pay period they "do not have patients to assist during the last hour of the duty day." While "efforts have been made to find busy work for them," based on the average salary and benefits of the GS employees on CWS, "DENTAC expends on an annual basis $48,551.36 for inefficient or no productive labor for these employees." The cost of the CWS would have been even greater if management had not agreed to schedule one of its dentists so that the hygienists on the CWS could provide dental cleanings during the last hour of the their workday. This dentist treats patients only about 30 percent of the time during that last hour because the demand for services diminishes markedly at that time. In fact, at the primary clinic, "the largest percentage of failed appointments occurs during the last appointment of the workday." Therefore, changing the schedule of additional dentists to accommodate the GS employees on the CWS will not address the service needs of DENTAC’s patient population. In addition, the CWS has a negative impact on morale because some employees are perceived to have advantages over others, particularly regarding the accommodations that are required to schedule unit meetings where mandatory training is conducted. Finally, "the compelling rationale" to terminate CWS is further buttressed by an Army Audit Agency Report concerning dental care in the European Theater which found that CWS was "the single greatest detriment to the efficient provision of treatment." This is one of the primary reasons that the other six DENTACs in the North Atlantic Regional Dental Command already have terminated their CWSs.
2. The Union’s Position
The Panel should find that the Employer has not met its burden under the Act of demonstrating that the 5/4-9 CWS in DENTAC has caused an adverse agency impact. Preliminarily, the Union and the DENTAC employees it represents have always supported DENTAC’s mission and the team dentistry approach. Contrary to the Employer’s position, however, CWS is "compatible with team dentistry" if the DENTAC Commander would take certain actions to increase the efficiency of the operation. Instead, he has been "steadfast in his desire to eliminate" the CWS at Fort Knox DENTAC despite the Union’s efforts over an 18-month period to negotiate the "obvious solution" to the decreased staffing levels on Fridays, i.e., a CWS that "rotates the [RDO] of the employees." Such a solution has not been reached "due to bad faith bargaining on management’s part."
Turning specifically to the Employer’s allegation that CWS is responsible for the lower number of appointments on Fridays, "a careful analysis of the data presented reveals that all factors were not reflected in the data." Mondays through Thursdays are 9-hour days, while Friday is an 8-hour day "with an additional hour" used not for patient care but for infection control, sterilization, and other cleaning of dental bays and equipment. Management also schedules fewer dentists to work on Fridays than on the other days, further accounting for why fewer patient appointments are possible. The credibility of the Employer’s appointment availability figures is also undermined by the fact that it covers only 8 out of the 18 months during which the negotiations have been underway. Furthermore, it has failed to show that 15-30 percent more appointments on Friday are needed, given that soldiers in the FTDR program are leaving Fort Knox with the appropriate dental classification and there is no backlog of patients.
The Employer’s estimates of the cost of the CWS are similarly flawed. The average hourly wages management used are higher than the 2006 pay tables for the applicable GS levels of the employees in question, and it should not have included costs for GS-7 hygienists at all because they work alone and treat the patients they normally would see on their Friday RDOs during the last hour of their 8 9-hour days. More importantly, while all active duty military and contract civilian employees currently work an 8-hour day, the DENTAC Commander has the flexibility to adjust their work schedules to "provide the ratio of auxiliaries to dentists that management desires," but has chosen not to do so. With respect to the Employer’s claim that CWS employees are "not engaged in duties for which they are hired," during the last hour some of them perform end-of-the-day infection control procedures for their treatment area, restock their areas, and prepare their instruments, as well as those of the 8-hour employees, to be sterilized. The last hour "finalizes these procedures in order for the 8-hour employee to leave on time." The three Registered Dental Hygienists have scheduled patients, the two Dental Laboratory technicians are still performing their daily duties, the three Medical Dental clerks are still in-processing and out-processing soldiers, and the clinic is available for emergency care.
The Employer’s figures concerning production per patient visit refer to three different periods, but management does not explain why there are no statistics provided for a number of months, or why the periods themselves have varying lengths. Significantly, it did not mention the increase in contract dentists and dental assistants, or the other staffing increases that have occurred since July 2004 to support the FTDR program and the entire unit mission. The change in production per patient visit that the Employer attributes to a reduction in the number of CWS employees, therefore, is really the result of increases in staffing. Moreover, the Employer’s statement that the largest number of failed appointments occurs during the last appointment of the workday "is simply false." Failed appointments occur throughout the day, and there is no evidence that the largest percentage is in the last hour. The DENTAC Commander could address the problem of no-shows/failures by enforcing a failure policy, as his predecessors had done, but once again has chosen not to take actions that would increase the productivity and efficiency of the organization instead of seeking the termination of the CWS. Finally, the Army Audit Agency Report that led to the DENTAC Commander’s attempt to terminate the CWS "has nothing to do with the Fort Knox bargaining unit employees." It focused on contract employees overseas, and prominently mentions poor management at the control and clinic levels, which is the real reason that those employees should have a certain work schedule. The Panel should follow the example of the DENTACs at Forts Sam Houston, Carson, Hood, Lewis, and Irwin, which all have CWSs, and order that the CWS at Fort Knox be continued.
Under section 6131(c)(2) 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."2/
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 is causing a reduction in the productivity of the Fort Knox DENTAC. Although rotating RDOs throughout the workweek, as the Union suggests, would alleviate some of the adverse impact of having off-days exclusively on Fridays, we are persuaded that most of the CWS employees currently are not performing their primary patient care duties during the last hour of their 9-hour duty day. In this regard, there appears to be a fundamental incompatibility at the Fort Knox DENTAC between a 9-hour workday and the habits of its patients, who normally prefer not to have dental services performed late in the day. In addition, while it is unclear from the record whether the largest percentage of failed appointments occurs during the last appointment of the day, we do not believe that the DENTAC Commander should enforce a failure policy (i.e., attempt to change the habits of DENTAC’s customers) simply so that CWS employees can perform their primary patient care duties during their workday. Accordingly, we shall order that the 5/4-9 CWS in DENTAC be terminated.3/
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 Fort Knox DENTAC.
By direction of the Panel.
H. Joseph Schimansky
May 31, 2006
5 U.S.C. § 6131(b) defines adverse agency impact as:
The burden of demonstrating that the CWS has caused 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