United States of America


In the Matter of








and Case No. 91 FSIP 148





The Department of Health and Human Services, Public Health Service, Indian Health Service, Oklahoma City Area, Claremore Indian Hospital, Claremore, Oklahoma (Employer), 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 with Local 3601, American Federation of Government Employees, AFL-CIO (Union) arising from the determination of the head of the agency under section 6131(a)(2) of the Act to terminate a compressed work schedule.

Following investigation of the Employer's request for assistance, the Panel determined that the dispute should be resolved on the basis of written submissions from the parties, with the Panel to take final action on the matter in accordance with section 6131(c)(3)(C) of the Act and section 2472.12 of the Panel's

regulations. Submissions were made pursuant to these procedures and the Panel has considered the entire record.


The Employer's mission is to provide comprehensive health care to approximately 70,000 native Americans residing in Northern Oklahoma. The Union represents approximately 225 bargaining-unit

employees who hold a variety of health care and administrative positions at the main hospital facility in Claremore and 3 outpatient clinics in Jay, Okmulgee, and Miami, Oklahoma. Among those employees are seven medical technologists assigned to the day shift at the hospital's laboratory who run tests and collect specimens. Three of them work a 4-10 schedule (four 10-hour days in each week of a biweekly pay period) with hours from 6 a.m. to 4:45 p.m. The dispute before the Panel directly affects the workhours only of these three. The others work an 8-hour tour from 8 a.m. to 4:30 p.m., coinciding with the public hours for the laboratory and the Outpatient Department. There are also two medical technologists on the night shift who work a 4-lo schedule who are not affected by the dispute as the Employer is not proposing to terminate that schedule for night-shift workers. A 4-10 alternative work schedule (AWS) has been available to technicians since 1985 when it was implemented unilaterally by the Employer.

In 1990, the Employer determined that the outpatient clinic at the hospital was inadequately staffed to meet patient needs; consequently, four additional General Practitioners and support staff were hired for the General Practice/Walk-in Clinic. The additional staff was able to treat more patients which substantially increased the number served by the Outpatient Department.


The sole question to be resolved by the Panel is whether the finding on which the agency head has based its determination to terminate the compressed work schedule for day-shift employees in the laboratory is supported by evidence that the schedule is having an adverse agency impact.7/1/ Section 6131(b) of the Act defines "adverse agency impact" as -

(1) a reduction of the productivity of the agency;

(2) a diminished level of 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 schedule).

1. The Employer's Position

The Employer maintains that the 4-10 compressed work schedule for day-shift employees is having an adverse impact on the agency and should be terminated. In this regard, the increase in the number of patients being treated in the outpatient Department (OPD) has resulted in a significant rise in the day-shift workload of the hospital laboratory. According to an affidavit submitted by the hospital's Clinical Director, "(s)ome OPD patients are waiting up to 1 hour to have their specimens collected. This drastically slows down patient turnaround time and patient processing." Furthermore, the laboratory's Chief Technologist has stated in an affidavit that the waiting time for " ... testing reports has drastically increased, (by as much as 1 hour) ... ." Although it is recognized that a need exists to hire additional personnel for the day shift in the laboratory, current day-shift technologists could be utilized better by terminating their 4-10 schedule and having them work a tour of duty which coincides more closely with the hours when the laboratory is open to the public. Eliminating the 4-10 schedule would mean that each of the three employees would be available 1 additional day per workweek, thereby increasing the level of service to the public.

Keeping outpatients waiting in the "holding areas" exposes them to additional risks from other patients. Moreover, physicians have complained about the "unacceptable waiting time for lab reports." Additionally, the paper work associated with tests is delayed, and catch up is usually done on breaks or on overtime/compensatory time at the end of the day shift thereby contributing to costs.

2. The Union's Position

The Union argues in favor of retaining the 4-10 compressed work schedule for medical technologists assigned to the day shift; it maintains that the Employer has not met its burden of demonstrating adverse agency impact. In this regard, since 1990, the work production of the laboratory has increased notwithstanding that three employees on the day shift worked a 4-10 schedule. Even though the Employer has approved 820 hours of unearned leave for laboratory employees, production nevertheless has risen.

The Employer's submission often strays from addressing the issue of adverse agency impact, and instead, deals with the purported effect which the 4-10 schedule has had on employee morale, health, and appearance. AWS may be the "scapegoat" for management's problems in the laboratory. Rather, it has contributed to productivity and improved the level of service to the public. In this regard, it is undisputed that since the three employees start work at 6 a.m., they are able to do early morning pick ups, calibrate and set up instruments, and perform quality control by 7:45 a.m.; inpatient reports are out by 8:30 to 9 a.m., and when the

outpatients arrive, the laboratory is ready for them. Also, malfunction of instruments is identified earlier, and other means of testing or repair could be arranged before the outpatients start arriving. Prior to the implementation of an alternative work schedule these assignments were finished later, particularly inpatient reports, which were not posted on the chart until 11 a.m., or sometimes after lunch.

The Employer's claim that AWS has diminished service to the public by contributing to patients' waiting time for test results is untrue. In this regard, there has always been a certain amount of waiting time for test results since the laboratory runs tests at specified times of the day to utilize equipment and personnel better. If specimens are collected soon after a scheduled run there would be a longer turnaround time for those patients than for patients "collected" immediately before a run. Certain tests take longer to run, therefore the waiting time for results would be unavoidably lengthy. Other factors such as instrument failure and necessary maintenance procedures also have an impact on waiting time.

Comparability data concerning test times at one private local

laboratory show that its test results are either reported to the

physician the following day or, if a "panic value" is requested, it would take at least 3 hours for a report to be issued. Another private laboratory in the area which performs a comparable number of daily tests has a similar turnaround time as the lab at Claremore, even though the private laboratory has twice as may technologists performing tests.

As acknowledged by the Employer, it has a problem with understaffing; terminating AWS would not give the Employer any more workhours per employee; rather, employees still would be working 40 hours per week, 2080 hours a year. The Employer's claim that it is difficult to schedule annual leave for employees on the day shift who work an 8-hour day is something of its own making as the Union's examination of leave records for 1990 reveals that the Employer has approved a significant amount of unearned leave for laboratory employees. Better distribution of work assignments and more efficient utilization of personnel by management would help to even out the workload, rather than the termination of AWS.


The issue here arises under the Federal Employees Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. § 6120 et seq. Section 6131(c)(3)(C) of the Act requires us to take final action in favor of the head of the agency's determination to terminate an existing compressed work schedule if the finding on which the determination is based is supported by evidence that the schedule has caused an adverse agency impact.2/ The Act's legislative history makes it clear that the agency bears the burden of proof with respect to showing adverse impact.3/

Having considered the record before us, we find that the Employer convincingly supports its assertion that the 4-day workweek which allows three of the seven day-shift employees to be off work 1 day a week has contributed to a diminished level of service to the public. In this regard, although the schedule had been successfully implemented for several years, the recent rise in the number of patients being tested at the laboratory, without a corresponding increase in laboratory staff, has added to the amount of time patients must wait in the laboratory to be tested and for results.4/ The presence of the three medical technologists only 4 days each week necessarily means that when one takes a day off under a 4-10 schedule, there are fewer day-shift technologists available to perform the work, likely contributing to this situation. On balance, we agree with the Employer that having patients wait for tests and results for extended periods of time has diminished the level of service to the public because patients are being exposed longer to the potentially contagious maladies of others.

Although the Union contends that productivity has increased, we find that while the record shows that the number of tests performed at the laboratory has risen, there is no indication that there has been an improvement in the length of time patients must wait to be tested or for the results of the tests administered. We find that termination of the 4-day work schedule for day-shift employees should assist the Employer in 2/ Supra, note 1.

3/ See 128 CONG. REC. H 3999 (daily ed. July