DEPARTMENT OF VETERANS AFFAIRS CINCINNATI VETERANS AFFAIRS MEDICAL CENTER CINCINNATI, OHIO and LOCAL 105, KENTUCKY NURSES ASSOCIATION
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF VETERANS AFFAIRS
CINCINNATI VETERANS AFFAIRS MEDICAL
LOCAL 105, KENTUCKY NURSES
Case No. 99 FSIP 72
DECISION AND ORDER
Local 105, Kentucky Nurses Association (KNA or 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, 5 U.S.C. § 7119, between it and the Department of Veterans Affairs, Cincinnati Veterans Affairs Medical Center, Cincinnati, Ohio (Employer).
Following an investigation of the request for assistance, which involved negotiations over a successor collective bargaining agreement (CBA), the Panel directed the parties to participate in an informal conference with Executive Director H. Joseph Schimansky for the purpose of resolving the outstanding issues. The parties were advised that if no settlement were reached, Mr. Schimansky would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the issues. After considering the report, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to the Panel’s determination, the parties met with Mr. Schimansky on July 21, 1999. They were able to resolve an issue involving staff adjustments, but failed to reach a voluntary settlement of their second issue concerning official time for representational purposes. The parties each submitted their final offers and supporting statements. Mr. Schimansky has reported to the Panel, and it has now considered the entire record.(1)
The Employer’s mission is to provide hospital, nursing home, domiciliary, outpatient, and psychiatric care to veterans and their dependents. The Union represents approximately 226 "Title 38" registered nurses (RNs), including registered nurse anesthetists and nurse practitioners. The parties’ CBA was due to expire on January 17, 1998, but its terms continue in effect.
ISSUE AT IMPASSE
The parties essentially disagree over the amount of pre-approved time the Union should receive to conduct representational duties on behalf of the bargaining unit.
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposes the following wording:
KNA Local 105 will receive 1.0 FTE plus "reasonable and customary" time. The 1.0 FTE will be divided in any way that the parties agree, provided the unit president receives not less than .5 FTE. If agreement cannot be reached, the Union will designate two people in addition to the president who will receive .25 FTE.
The parties’ current practice, whereby the Union’s president is granted official time of .5 FTE, and all of its other representatives receive reasonable time, is inadequate to meet the Union’s "legal and fiduciary" responsibilities to the bargaining unit. In this regard, "it is the nurses’ legal and ethical responsibility to put the patient first." Unfortunately, the current practice "leaves nurse leadership in a precarious position when patient needs fluctuate," and prevents the Union from "establishing consistent leadership roles and mechanisms for handling representational duties." It also "compromises" the Union’s ability "to maintain an organizational structure that is accessible to the nurses who require representation."
Other than the Union president, "every other [representative] is awarded official time arbitrarily by their supervisors." In some cases, this results in a significant amount of representational work being done on personal time. Given the incompleteness of the current official time tracking system, the Employer "cannot establish" that the Union "has no need for more official time." Moreover, the Union has a proven track record of resolving conflict informally. Therefore, it would be unfair to hold the Union’s lack of grievance and unfair labor practice charge filings against it in determining whether changes in current official time practices are necessary. Finally, the adoption of its proposal also is justified on the basis of the parties’ bargaining history because the Union has been willing to compromise from its initial position, while the Employer has not.
2. The Employer’s Position
The Employer’s proposal is as follows:
The Association President will be afforded 50-percent official time during his/her tour of duty for the purpose of representational duties and all activities inclusive of grievance matters, arbitration, committee meetings, inspections, etc. All other Union officials will be afforded a reasonable amount of time, as follows: A KNA representative, before leaving their work site to transact permissible KNA representational duties, contacts the immediate supervisor. Normally arrangements for a KNA representative to leave the unit will be made in advance. The supervisor will assess staffing and workload to determine whether the KNA representative can be released at the requested time. If the KNA representative cannot be released at the requested time a mutually agreeable alternative time will be arranged by the supervisor and the representative.
Continuation of the current practice, which is reflected in the Employer’s proposal, is appropriate given the size of the bargaining unit, and the complexity and amount of the Union’s representational activity. This is supported by the fact that "there have been few if any conflicts surrounding official time usage." While management "appreciates" the Union’s efforts in resolving many issues informally, and "in no way" suggests that it be penalized for doing so, the Employer’s overall review of the matter leads it to conclude that additional amounts of official time are unwarranted.
With respect to bargaining history, management made a higher compromise offer during negotiations for reasons unrelated to what it felt was a reasonable amount of time to represent bargaining- unit interests. In addition, another level of the organization offered the Union president 1.0 FTE official time, which would have included partnership activities, and been effective through September 30, 1999, but the Union "once again declined that offer." Having been "forced to engage in impasse proceedings," the Employer "stand[s] firm that the truly appropriate and reasonable amount of official time" should be .5 FTE for the Union president and reasonable time for the remaining Union officials.
Having carefully considered the evidence and arguments presented, we are persuaded that the parties’ impasse should be resolved on the basis of a compromise solution which provides a modest increase in the amount of pre-approved time to be granted to a total of three Union officials, but maintains the status quo with respect to the amount and procedures by which all others are granted time to engage in appropriate representational activities. Preliminarily, there is a paucity of reliable data for determining: (1) the total amount of official time used in the past; (2) how often mission requirements led to the outright denial of official time requests; and (3) how often Union representatives and their supervisors agreed to alternative times for release when the requested time was denied because of patient care needs. Nevertheless, it appears from the record that Union representatives other than the president occasionally are granted official time, and that restricting pre-approved time only to the president has made it difficult for the Union to meet its responsibilities. Thus, requiring that an additional .25 FTE be granted, divided at the Union’s discretion between two officials other than the president, should meet the Union’s interest in establishing consistent leadership roles and mechanisms for handling representational duties. In our view, this should be achieved without adversely affecting patient care because the amount of pre-approved time involved is minimal, and consistent with amounts that the Employer is already granting under the current reasonable time standard.
As to the procedures under which all other Union representatives would be granted reasonable amounts of official time, there appear to be no grounds for changing the parties’ current practice, as reflected in the second part of the Employer’s proposal. Accordingly, we shall order the adoption of wording to resolve the dispute consistent with the discussion above.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because ofthe failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the following wording:
KNA Local 105 will receive .75 FTE plus "reasonable and customary" time. .5 FTE will be reserved for the Union president, and the remaining .25 FTE will be divided between two other Union officials. All other KNA representatives, before leaving their work si