DEPARTMENT OF HEALTH AND HUMAN SERVICES HEALTH CARE FINANCING ADMINISTRATION BALTIMORE, MARYLAND and LOCAL 1923, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF HEALTH AND HUMAN
HEALTH CARE FINANCING
LOCAL 1923, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 90 FSIP 145
DECISION AND ORDER
Local 1923, 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 section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland (HCFA or Employer).
After investigation of the request for assistance, the Panel determined that the impasse should be resolved through an informal conference between Staff Associate Joseph Schimansky and the parties. If there were no settlement, Mr. Schimansky was to notify the Panel of the status of the dispute, including the final offers of the parties and his recommendations for resolving it. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Mr. Schimansky met with the parties October 16 and 17, 1990, in Baltimore, Maryland, but no agreement was reached on 5 of the 11 contract articles initially brought before the Panel for resolution. Mr. Schimansky reported to the Panel on the status of the dispute, and it determined that the remaining issues would be resolved through final-offer selection on an article-by-article basis. Under this procedure, the Panel would dispose of all unresolved matters by issuing a binding decision based upon the final offers of either party, to the extent they are otherwise lawful, on each of the articles. Submissions were made pursuant to this procedure and the Panel has now considered the entire record.
The Employer's primary mission is to provide oversight of Federal medical care programs such as Medicare and Medicaid. The Union represents approximately 2,500 bargaining-unit employees in the Baltimore and Washington, D.C., metropolitan areas, who work mainly as technical support personnel, program analysts, and clerks. The parties' term agreement expired on April 15, 1990. The impasse arose during negotiations over the parties' successor collective bargaining agreement.
ISSUES AT IMPASSE
The following articles remain in dispute: (1) Article 8 -- Official Travel; (2) Article 9 -- Health, Safety, and Environment; (3) Article 10 -- Hours of Work and Overtime; (4) Article 26 -- Merit Promotion; and (5) Article 27 -- Details, Temporary Assignments, and Voluntary Changes. The ensuing descriptions of the parties' final offers are limited to their main areas of disagreement within each article.
1. Article 8 -- Official Travel
a. The Union's Position
The Union essentially proposes to change Article 8 of the expired agreement by adding provisions which would: (1) permit employees traveling outside the Baltimore/Washington, D.C.,areas who are unable to return during normal duty hours, i.e., 6 p.m., "due to conditions beyond their control," to return that evening or the following day and be reimbursed authorized travel expenses; (2) permit employees required to be in attendance at a time too early to allow them to travel during the normal duty day to elect to travel during normal duty hours on the preceding day, or, if the preceding day is a non-workday, to request to travel on the first workday preceding the day in question; require the Employer to grant such requests unless "a substantial operational problem" exists; and limit reimbursement to what employees would be entitled to had they traveled on the non-workday preceding the day in question; and (3) require the Employer to pay the travel and per diem expenses of an escort for those handicapped employees on official travel who need such assistance.
The first two parts of its proposal are intended to establish "a fair and equitable procedure in furtherance of Office of Personnel Management (OPM) guidelines and Comptroller General decisions that travel should occur during an employee's normal tour of duty." Such wording is necessary to eliminate current discrepancies in the application of travel policy throughout the bargaining unit by different supervisors. It would not interfere with mission requirements, and is identical to wording in the Employer's Regional Office contract covering approximately 45 percent of the total HCFA workforce. Finally, its proposal regarding handicapped employees who are directed to perform official travel is consistent with Comptroller General decisions and Government rules and regulations, and was previously offered by the Employer during negotiations.
b. The Employer's Position
With respect to travel during normal duty hours, the Employer proposes that:
Employees who are unable to arrive at, or return from their destination prior to 8 p.m. will be reimbursed for authorized travel expenses provided said inability to arrive or return is due to arduous travel conditions beyond the employee's control resulting from natural calamity, unavailability of transportation, or severe weather.
It offers no counterproposal regarding handicapped employees.
Its proposal would maintain the status quo with regard to travel by employees outside the regularly scheduled workweek. During the 6 years that this contract wording has been in existence "there have been very few instances of problems" involving such travel. The Union, on the other hand, has provided no evidence that "its proposed changes are needed or justified." Moreover, although applicable law requires an agency to arrange travel during the scheduled workweek "to the maximum extent practicable,(1)'' it leaves to the exclusive discretion of the employing agency the determination of when such scheduling would be impracticable. A proposal, therefore, which restricts the Employer's authority in this regard could be an infringement on its right to assign work.
We are limited to selecting either party's final offer on this article, as well as the others before us, to resolve their impasse. Having considered the evidence and arguments, we conclude that the Employer's position provides a reasonable basis for settlement. In this regard, the Union has provided no objective evidence of problems arising under the current policy which would demonstrate a need to change the status quo. Moreover, those portions of its proposal which refer to "conditions beyond the employee's control, "and would require approval of an employee's request to travel during normal duty hours on the first workday preceding the day during which attendance is required "unless it presents a substantial operational problem," respectively, are vague, and could lead to future disputes. Accordingly, we shall order the adoption of the Employer's final offer on Article 8.
2. Article 9 -- Health. Safety. and Environment
a. The Union's Position
The most significant portions of the Union's final offer on this article would require that: (1) the Employer maintain a log of Union reports of hazardous or unsafe conditions to be made available to the Union upon request; (2) each worksite facility be inspected twice each calendar year; (3) the Employer conduct air quality tests on a monthly basis at the Meadows East Building, and one other HCFA building; notice of the availability of test results be posted on the bulletin board of the tested buildings within 5 days of receipt; actual test results be given to the Union prior to posting them; a standard of 600 parts per million (ppm) of carbon dioxide (CO2) be used as a measure of overall air quality; the Employer take corrective steps whenever CO2 levels range above 600 ppm in any given HCFA-occupied building, and test CO2 levels in each HCFA-occupied building at least on a monthly basis; and (4) if the Employer cannot prevent the application of insecticides or other like chemicals during working hours, appropriate safeguards be taken to prevent employee exposure; and the Employer provide the Health and Safety Committee with a list of chemical agents used in the workplace on a quarterly basis.
The Panel should adopt its final offer because of the "very real and serious problems regarding health and safety" which have arisen at the Employer's main facility, the Meadows East Building, over the past 6 years. Employees have complained frequently of "eye inflammation, allergic conjunctivitis, nose and throat irritation, and occasional dizziness," and a number have been transferred from the building "due to environmental health problems." After an investigation of employee complaints conducted in 1986, the National Institute for Occupational Safety and Health (NIOSH) concluded that the building would need "a major system change" to meet American Society of Heating, Refrigeration, and Air Conditioning Engineers (ASHRAE) standards for indoor air quality. Repairs to the air handling system were completed in February 1989, but since that time the CO2 level in the building has risen from a monthly average of 475 ppm in December 1988 to 837 ppm in June 1989. Moreover, the air handling system failed five times in May 1990, and "is now literally in systems failure, part by part."
To rectify these demonstrated health and safety problems, its proposal would require the Employer to take corrective steps whenever CO2 levels range above 600 ppm in any given HCFA-occupied building. This is the standard recommended by the private contractor currently conducting air quality tests for the Employer at the Meadows East Building, and is justified given its history of problems. Its proposal also would require the Employer to post the results of such tests in a timely manner, which should restore a degree of confidence among affected employees that the building is safe.
b. The Employer's Position
In addition to some minor differences in wording from the Union's offer, the Employer essentially proposes that: (1) each worksite facility be inspected once each calendar year, and (2) the current program of air quality testing be continued in accordance with General Services Administration (GSA) indicator levels for indoor air quality. Its final offer "represents a positive effort to address the health and safety matters affecting Agency employees, n and balances the concerns of all affected parties. In this regard, its final offer "demonstrates considerable movement from the Agency's original negotiating position, n and includes several provisions proposed by the Union.
After carefully examining the evidence and arguments provided by the parties in support of their final offers, we conclude that, on balance, the Employer's position should be adopted. The parties' primary disagreement appears to focus on the CO2 indicator level which would be used~to measure the overall air quality of HCFA-occupied buildings, and trigger corrective steps by the Employer. The Union would use the 600 ppm standard which is recommended by the private contractor currently conducting monthly air quality tests at the Meadows East Building. The Employer, on the other hand, would rely on the indicator level used by GSA, which currently is ASHRAE's recommended 1,000 ppm standard. While it is clear that the Meadows East Building has had health and safety problems in the past, we are nevertheless unpersuaded that a CO2 indicator level which is 400 ppm higher than that used by GSA, and recommended by ASHRAE, is warranted in the circumstances of this case. We note in this regard that the results of the July 1989 monthly sampling performed at the Meadows East Building, which was provided by the Union, showed CO2 levels at that facility were between 500 and 650 ppm.
Other than at the Meadows East Building, the Union has provided no evidence of health problems. Its final offer, however, would require each worksite facility to be inspected at least twice each calendar year, and that CO2 levels in each HFCA-occupied building be tested at least on a monthly basis. We believe that the need for such stringent and burdensome requirements has not been justified on the basis of the evidence presented. After examining the Employer's entire package, which includes, among other things, annual inspections of all worksite facilities, and the continuation of the current monthly indoor air quality testing program at the Meadows East Building, we shall order its adoption because we believe it provides a reasonable approach to the protection of the health and safety of HCFA employees.
3. Article 10 -- Hours of Work and Overtime
a. The Union's Position
The Union would change Article 10 of the expired agreement by adding a credit hours program whereby: (1) employees could earn up to 2 credit hours per day, provided sufficient work is available and approved by the supervisor; (2) credit hours could be earned and used in 1/4-hour increments; (3) the maximum carryover per pay period would be 24 hours; (4) requests to earn hours normally would be made on the day preceding the one in which they are to be earned; (5) if credit hours were approved and overtime subsequently made available, employees could elect to work overtime; and (6) the use of earned credit hours would be requested by submitting standard SF-71 forms; and credit hours could be used in lieu of, or together with, approved leave and/or compensatory time.
The adoption of a credit hours program would permit employees who cannot participate in the current 5-4-9 option the benefit of working a flexible schedule. While 30 percent of the bargaining unit currently participates in the 5-4-9 program, "many employees, especially working mothers and parents, cannot work" such a schedule because of the fixed nature of the daily work requirement. The option of giving employees more than one flexible schedule to choose from "is common in most Federal sector contracts." Indeed, "most bargaining units within DHHS currently have such options." The Employer's own data demonstrate that performance and productivity have increased since the inception of flexible work schedules at HCFA, and the addition of a credit hours program would further enhance its operations.
The Employer has been unable to articulate "any adverse impact, administrative or operational, to the credit hour program, or to having it as an additional option with the 5-4-9 program." Finally, HCFA and the Social Security Administration (SSA) are collocated in their headquarters operations, and the SSA workforce already has a credit hours option, in addition to the other work schedule options currently available to the HCFA workforce. Thus, the adoption of its proposal would promote effective and efficient use of transportation and related conditions of employment by providing "convergent flexibility" in the work schedules of both organizations.
b. The Employer's Position
The Employer proposes that Article 10 of the expired agreement be renewed without modification. It specifically opposes the establishment of a credit hours program. In this regard, bargaining-unit employees already enjoy several alternative work schedule options "which have provided employees with sufficient flexibility and convenience in scheduling their hours of work." These include flexitime, flexitour, and a 5-4-9 compressed workschedule. Moreover, during negotiations "the Union was unable to present evidence of a need to change or supplement the current hours-of-work provisions."
Based on the evidence and arguments presented by the parties with respect to the credit hours issue, we conclude that the Union's final offer should serve as the basis for settlement. We are persuaded that, in the circumstances of this case, the additional flexibility the credit hours program should provide to those employees currently unable to utilize other work-schedule options is sufficient reason to order its adoption. In this regard, there is no evidence in the record to suggest that the introduction of such a program would reduce productivity, or be administratively burdensome. Moreover, the Union's proposal includes wording which would permit employees to earn credit hours only if: (1) there is sufficient work available, and (2) requests to do so are approved by the supervisor in advance. Thus, it appears to provide adequate safeguards to ensure that the program would not be abused. Moreover, we note that the Federal Employees Flexible and Compressed Work Schedules Act of 1982 provides for the termination of such programs should they cause an adverse impact on an employer's mission.
4. Article 26 -- Merit Promotion
a. The Union's Position
The Union proposes that: (1) when employees are temporarily assigned to a higher graded position for a period in excess of 30 days, the assignment be made via a temporary promotion effective the first day of the assignment; (2) vacancy announcements be posted weekly for 10 workdays; and (3) when vacancies occur in the same geographic location with the same title, series qualification requirements, etc., as that used for a previously-posted vacancy, candidates from the previous announcement may be referred and need not reapply, but the new vacancy be announced and a new best qualified (BQ) list established. In addition, the Union would retain wording from the expired agreement which requires the Employer to post nonbargaining-unit positions to be filled competitively for which bargaining-unit employees may be eligible.
The first part of the Union's proposal would change from 45 to 30 the number of days required for an employee temporarily promoted to a higher graded position to receive pay, effective the first day of the assignment, commensurate with that position. While it is unclear "why employees should suffer in a situation where pay is not commensurate with duties for any period of time," its proposal "represents an incremental improvement" in an area where the Employer has previously attempted to rotate employees, or terminate details to higher graded positions, to avoid paying employees at the higher rate. Moreover, the proposed wording is identical with a provision in the current SSA-AFGE national agreement covering 48,000 employees.
With respect to the reuse of BQ lists originally compiled as a result of previous vacancy announcements, its proposal would "correct a practice particularly irritating to the bargaining unit." The Employer currently avoids the need to announce new vacancies for job titles which are prevalent in all components of HCFA by using an already established BQ list. This puts employees in the awkward position of either applying for all vacancies for which they qualify, even if they have no intention of accepting the job should it be offered, or being shut out from bidding on the jobs they really prefer. The Union proposal would rectify this situation by: (1) allowing candidates who have applied for a previous vacancy to be referred for a new vacancy without having to reapply, and (2) requiring management to announce each vacancy and establish new BQ lists.
b. The Employer's Position
The Employer would delete from the previous agreement the provision requiring it to post nonbargaining-unit positions to be filled competitively for which bargaining-unit employees may be eligible. It also proposes that: (1) when employees are temporarily assigned to a higher graded position for a period in excess of 45 days, the assignment be made via temporary promotion effective the first day of the assignment; (2) vacancy announcements be posted weekly for 5 workdays; and (3) when vacancies occur in the same Associate Administrator organization with the same title, series qualification requirements, etc., as that used for a vacancy previously posted, candidates from the previous announcement could be referred instead of reannouncing the new vacancy.
With respect to the provision in Article 26 of the expired agreement concerning the posting of nonbargaining-unit positions, the Employer contends that under existing case law, this matter is a permissive subject of bargaining and, thus, negotiable only at its election.(2) The portion of its final offer requiring 45 days 'performance in a higher graded position before authorizing payment at the higher rate would merely maintain the status quo which "has adequately served the interests of both the Agency and the Union over the past 6 years. n Finally, in an attempt to accommodate the Union's concerns, and balance them with its own needs for administrative efficiency, it proposes to change the current practice regarding the reuse of BQ lists for new vacancies by limiting it only to vacancies "within the areas under the control of the Associate Administrator level or its equivalent."
Having considered the evidence and arguments concerning the parties' final offers on this article, we shall order the adoption of the Union's position, with the exception of the section dealing with the posting of nonbargaining-unit positions to be filled competitively for which bargaining-unit employees may be eligible. In this regard, in addressing the Employer's allegation of nonnegotiability, the Panel is guided by the FLRA's decision in Commander, Carswell Air Force Base. Texas and American Federation of Government Employees, 31 FLRA 620 (1988). In that case, the FLRA concluded that the Panel may apply existing case law to resolve an impasse where a duty-to-bargain issue arises. We have examined the cases cited by the Employer in support of its contention that the wording in question concerns a matter negotiable only at its election.
In our view, the Employer has raised a legitimate nonnegotiability allegation which should be resolved by the FLRA, and prevents us from considering that part of the Union's final offer on its merits. Thus, in accordance with the terms of the final-offer selection procedure being used in this case, we shall decline to order its adoption as part of our resolution of the issues.
With respect to the other portions of the article, we believe that reducing from 45 to 30 the number of 'days of service required before an employee is entitled to a temporary promotion is fairer to employees temporarily assigned to higher graded positions, yet still affords the Employer a reasonable period of time to assess employees' performance at the higher level. Moreover, no justification has been offered by the Employer for changing the parties' practice of posting vacancy announcements weekly for 10 workdays. Finally, we are persuaded that the practice of reusing BQ lists developed'-from previous vacancy announcements to fill new vacancies should be changed. Limiting the practice only to when vacancies occur within the areas under the control of the Associate Administrators, however, does not go far enough. In this regard, the Union has demonstrated that, on balance, the adverse impact of the practice on employees seeking promotional opportunities outweighs the additional administrative burdens that adoption of the Union's proposal would entail.
5. Article 27 -- Details, Temporary Assignments, and Voluntary Changes
a. The Union's Position
The Union basically proposes that: (1) employees detailed to classified positions be given job descriptions, or a written statement of duties when detailed to an unclassified position, if the assignment is for 30 calendar days or more; and (2) the Employer be required to follow a procedure when offering noncompetitive' details to both classified and unclassified positions whereby: (a) the qualifications necessary to perform the job, and the names of those employees who possess them, would be listed; (b) qualified employees of similar grade and occupation within the component where the detail exists would be canvassed to volunteer for the detail, and selected 'if the same number of volunteers as vacancies occur; (c) seniority would be the selection criterion if there were more employees who volunteer than vacancies, unless unusual circumstances require some other bonafide factor; (d) if there were no volunteers, the least senior qualified employee would be selected; (e) if there were fewer volunteers than vacancies, the volunteers would be selected, along with the necessary number of least senior qualified employees; and ( the procedure need not be followed when the detail is for the purpose of accommodating a substantiated medical or health problem, or for an initial period when the Employer must make a detail to respond to an emergency.
The first part of its proposal "simply mandates a written record of details and the duties assigned." The second part sets forth a procedure for offering details to bargaining-unit employees when competitive procedures are not mandatory. Such a procedure "is currently in effect in HCFA regions." Its purpose is to ensure "a level playing field for all employees" in the area of merit promotions by stringently regulating detail assignments. Such a seniority-based procedure is necessary to prevent supervisors from rigging "the BQ list mechanism and ultimately selection" by assigning favored employees to particular details, where they can acquire experience valuable to them in the pursuit of future promotional opportunities. Requiring some documentation and a limited canvassing of volunteers would also "help personnel specialists distinguish real experience from puffery on candidates' applications."
b. The Employer's Position
The Employer would retain Article 27 of the expired agreement without change. Thus, on the key issue of a seniority-based procedure for offering noncompetitive details to both classified and unclassified positions, it proposes that: (1) "noncompetitive details may be offered on a rotational basis to qualified employees;" and (2) "the Administration agrees to continue to assure that details do not compromise the merit promotion system." The article "has served the parties well over the past 6 years," and is well understood by employees and managers. Moreover, the Union has offered no concrete evidence of past abuses which would justify the changes it proposes.
A careful examination of the evidence and arguments submitted by the parties in support of their final offers convinces us that the Union's position provides the more reasonable basis for settlement. In this regard, it is unclear from the record whether the parties have experienced significant problems in the past regarding the assignment of noncompetitive details. In any event, requiring a written record of such details, and adopting a seniority-based procedure for their assignment, should eliminate the potential for future abuse by providing an objective means for enabling all qualified employees to acquire the experience necessary to enhance their future prospects for promotion. Moreover, by limiting canvassing to employees within the same component of similar grade and occupation, and carving out exceptions for the accommodation of employees with medical or health problems, the procedure should not be unduly burdensome to administer. For these reasons, we shall order the adoption of the Union's final offer on this article.
Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the cour