DEPARTMENT OF VETERANS AFFAIRS VETERANS AFFAIRS MEDICAL CENTER MEMPHIS, TENNESSEE and LOCAL R5-66, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF VETERANS AFFAIRS
VETERANS AFFAIRS MEDICAL CENTER
LOCAL R5-66, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 91 FSIP 201
DECISION AND ORDER
Local R5-66, National Association 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, Veterans Affairs Medical Center, Memphis, Tennessee (Employer or VA).
After investigation of the request for assistance arising from negotiations for a successor supplemental agreement, the Panel directed the parties to speak informally by telephone with Staff Associate Ellen J. Kolansky for the purpose of resolving the issues at impasse concerning official time for Union representatives and shift-rotation cycles for police officers. The parties were advised that if no settlement were reached, Mrs. Kolansky was to notify the Panel of the status of the dispute, including the parties' final offers and her recommendations for resolving the matter. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse.
Mrs. Kolansky spoke with the parties on May 6, 1992, and with the Employer's representative on June 25, 1992.(1) During the conference call, the parties came close to settling the dispute concerning official time; however, both issues remain unresolved. Accordingly, she reported to the Panel on the issues based on the record developed by the parties. The Panel has now considered the entire record, including her recommendations for settlement.
The Employer is a hospital which provides both inpatient and outpatient health care for veterans. The Union represents approximately 1,200 employees who are part of a nationwide consolidated bargaining unit. They work in positions such as housekeeping aide, food service worker, nursing assistant, supply clerk, laborer, medical and diagnostic technician, and warehouseman. The master collective-bargaining agreement will expire on May 28, 1995.
Currently, with regard to official time, Union officers and stewards are granted reasonable time to conduct representational duties. As to schedules for the approximately 16 to 20 police officers, for the last 10 years they have worked one of three shifts: 7 a.m. to 3 p.m., 3 p.m. to 11 p.m., and 11 p.m. to 3 a.m. Such shifts currently are rotated once every 8 weeks.
ISSUES AT IMPASSE
The dispute concerns: (1) official time for Union representatives(2) and related administrative matters, and (2) how often police officers should rotate among the three daily, 8-hour shifts.
POSITIONS OF THE PARTIES
1. Official Time for Union Representatives(3)
a. The Employer's Position
It essentially proposes to grant 50 percent official time to the Union president, 25 percent official time to the chief steward, and reasonable amounts to other officers and representatives, during their regular tours of duty. All such amounts would be noncumulative and used consecutively. Additional time would be permitted for arbitrations, FLRA and FSIP hearings, and collective bargaining, including mediation. A log sheet, maintained by supervisors, would be used to record amounts used. Since its records indicate that the Union president used only 287 hours of official time (24.1 percent of his less than full-time duty hours) during calendar year 1991, its offer, an additional 753 hours per year, represents a substantial increase. When the 25 percent for the chief steward, reasonable amounts for other officers and representatives, and extra time for negotiations and hearings are considered, the amount appears generous for a 1,200-employee bargaining unit.
The Union's proposal, on the other hand, would result in about 1,300 more hours of official time, an amount not justified by present rates of use. In addition, the amount of official time should be expressed as a percentage rather than a definite hourly amount. Otherwise, if the Union president were a part-time employee who only worked 20 hours per week, the 4 hours per day proposed by the Union (50 percent for a full-time employee) would be equivalent to 100 percent official time, an unwarranted increase. Moreover, the terms the Employer proposes are those that the parties worked out, but did not sign off on, during the informal teleconference.
b. The Union's Position
Under the Union's proposal, the Union president would be granted 4 hours per day, the Union vice president 2 hours per day, the chief steward a minimum of 3 hours per day, and the Union secretary and assistant chief steward at least 1 hour per day. Such time would be consecutive and in addition to official time for negotiations, midterm bargaining, MSPB and arbitration hearings, and unfair labor practice investigations and hearings. Other officers, stewards, and designated representatives would be granted reasonable amounts of official time. As an alternative, the Union would accept the wording in the contract between the Martinsburg, West Virginia VA Medical Center and Local R4-78, NAGE:
Four hours of official time per day will be granted to the President of the Local. These hours will be consecutive and scheduled in the afternoon unless the nature of the President's work assignment precludes this arrangement.
Its proposal would ensure an adequate amount of official time for representing the 1,200 to 1,400 employees in the bargaining unit. Under the current reasonable-time system, the Union president's requests for official time are frequently turned down; although this is an active unit at the third largest VA hospital in the region, with many grievances, MSPB proceedings, and ULPs filed, he averages only 1 hour of authorized official time per day. Thus, the low figures that the Employer presents on current use are not indicative of the Union's real needs. In part, problems related to the denial of official time may have led the Employer to attempt to remove the Union president as an employee.
Having considered the circumstances and arguments on this issue, we conclude that the Employer's proposal on official time should be adopted because it would provide amounts adequate for a bargaining unit of this size, even given the active nature of the unit. Such amounts are a considerable increase over current usage levels. Since the parties have not previously used set amounts, permitting them to gain experience under the Employer's more limited quantity of hours is, in our view, the appropriate approach. In addition, use of definite amounts should do much to eliminate the ongoing dispute that the Union reports over requests for official time. Finally, we also are persuaded that, under the circumstances presented, expressing such time as a percentage should prove sufficient whether Union officials are full or parttime employees.
2. Shift-Rotation System
a. The Employer's Position
The Employer's proposal is as follows:
The Employer will agree to survey the police officers concerning their preference of rotating within the 2-month minimum and the 4-month maximum rotation period. If it is the majority's preference to work the 4-month rotation, the Employer will change the shift-rotation to the 4-month cycle.
Preliminarily, the Employer argues that the Union's proposal is nonnegotiable under section 7106 (b)(l) of the Statute, and that it conflicts with an agency regulation(4) for which there is a continued compelling need. On the merits, its chief concern is that permanent shifts might hamper officers' effectiveness by limiting their exposure to varied experiences occurring on other shifts, and foster lax behavior and undesirable familiarity in the active, confrontational work environment at the hospital. At other VA facilities where officers are permitted permanent shifts, work is less confrontational, yet permanent shifts are problematic even in those settings, and may be discontinued. Shorter shift cycles (2or 4-months duration) serve to prevent such problems from developing. Since employees are informed about the rotations when they apply for work, and their agreement to such hours is a selection factor in hiring, they have assented to work under such conditions. Furthermore, rotating through more active earlier and less active later shifts preserves the justification for police officers' current GS-6 classification and salary level. Moreover, it has received no complaints or grievances related to the shiftcycle duration, and staff turnover is low. Finally, under the master collective-bargaining agreement, employees can apply for exceptions to enforced shift-rotations for hardship reasons.
b. The Union's Position
The Union proposes the following wording:
For the purpose of implementing this provision, all current shift assignments for police officers will be considered to be vacated to permit interested personnel to request indefinite assignment to the evening and night shifts based upon individual qualification and senior service computation date.* The supervisor will post a request for indefinite assignments to the evening and night shifts within 45 days of the distribution of this agreement.
* Police officers pursuing formal job-related educational programs may be exempted from their usual shift assignment until completion of the educational program.
It rejects the Employer's nonnegotiability allegations. Since officers perform the same duties on all shifts, its proposal only involves when those duties are to be performed. Substantively, it asserts that officers would prefer permanent or indefinite shift assignments. Such consistent scheduling would better accommodate employees and their families, who find it difficult to adjust to shift changes. Furthermore, such schedules would be helpful for officers pursuing job-related educational goals. Since sufficient numbers would be willing to work evening and night shifts, and the work on shifts is similar, such less desirable time slots would be easy to fill. Moreover, several other VA hospitals successfully use permanent shift assignments.
Having considered the evidence and arguments on the merits of this issue, we conclude that the impasse should be resolved on the basis of the Employer's proposal. For this reason, it is unnecessary to address the arguments raised by the parties concerning the negotiability of the Union's proposal. The 4-month cycle option proposed by the Employer, if selected by employees, would cut the total number of yearly shift changes in half. Such a significant reduction addresses the Union's concerns by helping to decrease employees' stress while stabilizing family life, and meets the Employer's needs by providing shift changes frequently enough to avoid the development of lax habits and excessive familiarity. Furthermore, employees' skill levels would be maintained since they would continue to be exposed to a full range of work experiences that occur on different shifts. Finally, we note that the agency regulations cited by the Employer allow for requests to extend or change a shift on a case-by-case basis. Nothing in the record persuades us that the Employer has abused its discretion in this area in the past when evaluating individual employee requests for deviations from the normal shift-rotation schedule.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C S 7119, and because of the failure of the parties to resolve their dispute during the course of the proceedings instituted under the Panel's regulations, 5 C.F.R. S 2471.6(a)(2), the Federal Service Impasses Panel, under § §2471.11(a) of its regulations, hereby orders the following:
1. Official Time for Union Representatives
The parties shall adopt the Employer's proposal.
2. Shift-Rotation Cycle
The parties shall adopt the Employer's proposal.
By direction of the Panel.
October 8, 1992
Linda A. Lafferty
Official Time Proposals
A. The Employer's Proposal:
Section C: 1. The parties agree that official time is paid time when the appropriate Union representative would otherwise be in a duty status and is for the purpose of performing duties authorized under the Statute. The parties agree that official time shall not be requested and/or authorized under any circumstances to conduct any matter emanating from or related to internal Union business. The parties agree to the following allocation of official time for representational functions:
a. The president of local R5-66 will be granted an amount of official time of 50 percent of his/her daily regular tour of duty to perform appropriate representational functions. Such time will be noncumulative. Such time will normally be scheduled consecutively, but can be changed by mutual agreement. Official time will be limited to those amounts as indicated above except for days to appear before an arbitration, FLRA, FSIP hearing, or collective bargaining (including mediation).
b. The chief steward of Local R5-66 will be granted an amount of official time of 25 percent of his/her daily regular tour of duty to perform appropriate representational functions. Such time will be noncumulative. Such time will normally be scheduled consecutively, but can be changed by mutual agreement. Official time will be limited to those amounts as indicated above except for days to appear before an arbitration, FLRA, FSIP hearing, or collective bargaining (including mediation).
c. The Union vice president, assistant chief steward, secretary/treasurer, and stewards will be granted a reasonable amount of official time.
d. Other official time requirements shall be in accordance with Article 9, section 11, of the master agreement.
Section C: 2. A log sheet will be used to record all specified official time used for representational functions by Union officials and stewards.
Section C: 3. Supervisors will maintain a log sheet for each employee under their supervision who is a Union official or Union steward. Supervisors are responsible for ensuring that all official time used is accurately recorded on the log sheet.
B. The Union's Proposal:
Section C: 1. The Union president will be granted 4 hours per day for the purpose of conducting representational duties during his regular tour of duty. This time will begin no later that 11:15 a.m. each day, and end no earlier than 3:15 p.m. each day. The Union vice president will be granted 2 hours per day and the Chief Steward will be granted a reasonable amount of official time of a minimum of 3 hours per day for the purpose of conducting representational duties during their regular tour of duty. The Union Secretary and Assistant Chief Steward will be granted a reasonable amount of official time of a minimum of 1 hour per day for the purpose of conducting representational duties during their regular tour of duty. These hours will be scheduled consecutively. Arrangements for the use of official time will be decided between the representative and his/her supervisor. Time spent for negotiations and mid-term bargaining will not count towards the official time amount for designated union officials. Time spent in MSPB and arbitration hearings, and ULP investigations and hearings also will not count towards the official time amount.
Section C: 2. Stewards, designated representatives and officers other than those listed in section 1 are authorized a reasonable amount of official time for the purposes of conducting appropriate representational business during their regular tour of duty. Travel time will not be counted in this amount.
Section C: 3. Other official time provisions shall be in accordance with Article 6, Sec. 14 of the Master Agreement.
1.Although both parties agreed during the first teleconference that those efforts should be continued on a subsequent date, and such dates were confirmed more than once, the Union's representative did not make himself available on subsequent occasions, including this date.
7131 (d), official time is to be granted "in any amount the agency and the exclusive representative
involved agree to be reasonable, necessary, and in the public interest."
3.See Appendix for the complete wording of each party's official time 4.VA
Department of Medic
3.See Appendix for the complete wording of each party's official timeproposal.
4.VA Department of Medic