DEPARTMENT OF VETERANS AFFAIRS EISENHOWER VA MEDICAL CENTER EASTERN KANSAS HEALTHCARE SYSTEM LEAVENWORTH, KANSAS and LOCAL 1765, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, FEDERAL DISTRICT 1, IAM&AW, AFL-CIO
In United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF VETERANS AFFAIRS
EISENHOWER VA MEDICAL CENTER
EASTERN KANSAS HEALTHCARE SYSTEM
LOCAL 1765, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, FEDERAL DISTRICT
1, IAM&AW, AFL-CIO
Case No. 99 FSIP 144
DECISION AND ORDER
Local 1765, National Federation of Federal Employees, Federal District 1, IAM&AW, 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 (VA), Eisenhower VA Medical Center, Eastern Kansas Healthcare System, Leavenworth, Kansas (Employer).
During the Panel’s initial investigation into the request for assistance, which arose as a result of the parties’ negotiations over a local supplemental collective-bargaining agreement, Executive Director H. Joseph Schimansky and Federal Mediation and Conciliation Service (FMCS) Commissioner Eugene Bralley met with the parties at the Eisenhower VA Medical Center in Leavenworth, Kansas, from October 19-21, 1999, for the purpose of assisting them in reaching a voluntary settlement by, among other things, addressing any jurisdictional questions. During the meeting, 42 of the 46 issues originally contained in the Union’s request for assistance were resolved voluntarily. Subsequently, the Panel determined that the remaining issues should be resolved on the basis of written submissions, including rebuttal statements, from the parties. After considering the entire record, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a Decision and Order. The parties filed written submissions pursuant to this procedure, and the Panel has now considered the entire record.
The Employer’s mission is to provide hospital, nursing home, domiciliary, outpatient, and psychiatric care to veterans and their dependents. The Union represents approximately 200 Title 5 and Title 38 professional employees, including registered nurses, physical therapists, doctors, pharmacists, and social workers. The parties’ master collective bargaining agreement (hereinafter referred to as the NFFE Master Agreement) is due to expire in May 2000. Their supplemental agreement became effective in December 1984; this is the parties’ first attempt to renegotiate the supplemental agreement since that time.
ISSUES AT IMPASSE
The parties disagree over: (1) the appropriate amount of official time Union representatives should receive to perform representational duties; (2) whether all reviews regarding the classification of positions should be conducted on-site through desk audits; (3) whether the number of parking spaces reserved for physicians should be reduced, and the location of parking spaces reserved for Union representatives changed and the number increased; and (4) where, and how quickly, unit employees should have access to official personnel files (OPF).
1. Article 2, § 9, Official Time for Representational Duties
a. The Union’s Position
The Union proposes that it be authorized "one Union-designated official at 100-percent official time and another designated official" with "a minimum of 50-percent official time, and all other official time be in accordance with the VA National Contract." The amounts of official time being proposed are justified by the "massive changes" which are currently taking place within the VA, which "have not bypassed NFFE Local 1765 at the VA Medical Center, Leavenworth, Kansas." Among these changes was the consolidation of the Leavenworth and Topeka Medical Centers into the Eastern Kansas Healthcare System. This has caused the Union to take on "an expanded role" requiring "expanded official time," in addition to its "normal representational duties" (e.g., unfair labor practice filings, grievances, Employer-initiated mid-term bargaining). Without "the proper official time to fulfill" these responsibilities in a timely manner, the Union "would be breakingthe law" by failing to represent all bargaining-unit employees.
The record shows that from November 1998 to November 1999, over 86 percent of the Union president’s time has been spent on representational duties. In addition, during the period from January 1996 through November 1998, she served as a NFFE National Vice President. Instead of using official time, she used annual leave, leave without pay, and authorized absences during that period. If management were to combine all such time in its calculations, "the figures would support the Union position on the amount of official time for Union representation." The Union’s proposal that one other official be authorized 50-percent official time should be adopted because "it has gotten increasingly more difficult to get Union representatives the proper time off to perform" their duties. The Union would be able to "keep up" with its responsibilities by having a representative on a tour of duty different from the Union president’s. In any event, the NFFE Master Agreement entitles the Union to at least an additional 40-percent official time because it represents a "separate administration," the Consolidated Mailout Outpatient Pharmacy.
Contrary to the Employer’s assertions, the Union president spent "only about 1 week in total" on official time preparing for these local supplemental negotiations. She spent "most of her own time preparing negotiations at home" due to the "extreme amounts" of changes to working conditions that the Employer has been implementing, over which the Union has requested to negotiate. Further, the Union’s proposal is consistent with the results of a study released by the Office of Personnel Management on December 1, 1998, which found that 134 union officials within the VA receive 100-percent official time, while another 33 receive between 75 and 100 percent. The study also recited the numerous benefits of official time to agency operations. Finally, the Union’s figures "show that the size of the bargaining unit does not determine the need for 100-percent official time," and the Panel should not use unit size as the primary factor in deciding such disputes.
b. The Employer’s Position
The Employer’s proposed wording is as follows:
The President, NFFE Local 1765, is entitled to 50-percent official time for Union duties as outlined in Article 2 of the Master Agreement. Additional official time may be requested by the President, subject to the approval of his/her supervisor, for special situations such as local supplemental contract negotiations. Within 10 workdays of the approval of this agreement the Union president and his/her supervisor will meet to determine a schedule to accommodate Union duties and VA work with 50 percent devoted to each.
Its proposal is appropriate for a number of reasons. For one thing, the Union represents relatively few employees (194), and the number should continue to go down through attrition in the next 3 years. This downsizing is a result of "the reduced number of inpatients at the center and consequently reductions in our budget." In addition, its proposal of 50-percent official time for the Union president is comparable to what at least four other locals representing significantly larger bargaining units receive. A fifth VA Medical Center surveyed provides the president of its local 100-percent official time, and the vice-president 50 percent, but that union represents over 900 bargaining-unit employees. Moreover, Local 1765 represents professional staff (over 70 percent of whom are Title 38 physicians and nurses) "which generate few discipline or adverse action problems normally associated with union representation."
Another reason that its proposal should be adopted is the actual recorded use of official time by the Union president over the past 4 years. In 1996, her official time usage averaged 24 percent of her total time, 34 percent in 1997, 53 percent in 1998, and 86 percent in 1999. The increased use of official time in 1999 should be discounted because of the larger block of time that was used in preparing for and negotiating over the supplemental agreement -- an event which "is not a common occurrence as the last NFFE Supplemental Agreement was negotiated in 1984." In fact, most Union activity has involved ULPs or arbitrations which the Union president "has filed at her own initiation rather than representational matters initiated by bargaining-unit members." In addition, a recent survey of the facility conducted by the Joint Commission for the Accreditation of Healthcare Organizations listed the Recreation Therapy staff "as not sufficient to provide daily programs for Long Term Care." Because the Union president is a Recreation Therapist, granting her a larger percentage of official time than what the Employer proposes would have an adverse impact on management’s need "to maximize recreational activities" for the facility’s patients.
Management disagrees with the Union’s argument that the president’s use of annual leave, authorized absence, and leave without pay "should be figured into the statistics of use of official time." Even though the Union claims that significant amounts of such leave were used by the president in connection with Union responsibilities, these categories "are not technically official time." Taken altogether, they averaged only about 200 hours per year for the 4-year period between 1996 and 1999. In the case of annual leave, although the president "self-reported" 450 hours during this period as time-off for pursuit of Union activities, the use of such time is "a personal choice of an individual" and "not monitored or verified by management." As such, it should play no part in the Panel’s deliberations regarding the outcome of this issue. Nor should the Union’s reliance on the "integration/reorganization" of the two Medical Centers that make up the Eastern Kansas Healthcare System. In reality, "the greatest impact" of the integration "will be on managers and supervisors." Finally, the Union "presents no documentation or evidence" that it has had difficultly obtaining time to perform "regular representational duties."
Having carefully examined the evidence and arguments presented by the parties on the official time issue, we are persuaded that the impasse should be resolved through the adoption of a modified version of the Employer’s proposal. Evidence in the record regarding the actual amount of official time used at the facility over the past 4 years simply fails to support the significant increases in such time proposed by the Union. There is also nothing to substantiate the Union’s allegation that it has become increasingly difficult for its representatives to receive the proper time off to perform their responsibilities. It is clear, however, that the Union president’s official time use during this period has steadily risen, with the Employer’s concurrence, even when the amount of time spent during recent supplemental agreement negotiations is discounted. In our view, some consideration also should be given to the fact that the Union president has spent some of her own time on representational matters. For these reasons, we shall order that the Union president receive 60-percent official time.
Given our decision on the amount of official time for the Union president, reference in the Employer’s proposal to requests for additional official time for "special situations" appears unnecessary, and shall be eliminated. Such wording also could lead to future disagreements between the parties. Instead, we prefer wording which specifies that the 60-percent official time for the Union president is in addition to the Union’s other official time entitlements under the provisions of the NFFE Master Agreement and section 7131 of the Statute. Finally, the last sentence of the Employer’s proposal shall be changed only to the extent required to make it consistent with the previous portions of our Order. Requiring the Union president and supervisor to schedule official time use within 10 workdays of agency head approval of the parties’ supplemental agreement should bring the matter of official time to closure in an efficient and effective manner.
2. Article 20, Part A, Classification Reviews
a. The Union’s Position
The Union’s proposal is that "desk audits  be performed by request of the employee when there is a dispute on Job Classification. The desk audit will be performed at the facility with the employee. Appeals will be established by the VA Central Office and OPM Guidelines." Its proposed wording is consistent with the past practice at the facility whereby, if there was any doubt whether an employee was "working below or beyond the employee’s current job description, job classification, grade, and responsibility, the employee or management could request a desk audit in order to determine the accurate classification of the position." Sometime at the end of 1998, management proposed "not to do any desk audits at any facility site." Not all jobs, however, "are as simple to write about or to communicate about on the phone." If management’s goal "is to actually get a true rating" of what an employee does "at times it will take a visit to the employee’s work site."
b. The Employer’s Position
The Employer proposes that:
A position audit may be requested by an employee, through the supervisor, as specified in the NFFE Master Agreement. A position audit may be performed by different means, depending on the type of position to be audited. The employee may choose to be assisted or represented by the Union in the position audit process, and may use the VA appeals procedures, as outlined in the Master Agreement, if he/she is not satisfied with the results.
Its proposal is consistent with the intent of the NFFE Master Agreement, while the Union’s is not. For example, Part A, Section 4, of the NFFE Master Agreement does not "mandate that the audit/review be completed at the facility with the employee." Contrary to the Union’s opinion, it is "often impractical" to perform other than unusual reviews face-to-face at the facility, which is why they "have traditionally been performed by various means based upon such factors as the complexity of the position, the cross-referencing of different classification standards, and the number of positions involved." Desk audits will become even more impractical given the centralization of classification functions that has already occurred, and that will become more pronounced in the near future. Moreover, "these matters have been and will be negotiated at the national level, not the local level, because they impact all facilities." Further, the Union has presented "no evidence or documentation" that in 1997-8 it requested negotiations over network-level centralization of human resource functions, while there is evidence in the record that the Union failed to "respond to the offer to negotiate." Finally, approximately 70 percent of the bargaining unit is composed of Title 38 employees "who function under professional practice guidelines that are unclassified," so the Union’s proposal would not even apply to them.
After carefully considering the parties’ positions regarding the issue of how classification reviews should be conducted, we conclude that neither side has sufficiently demonstrated the need to supplement the comprehensive wording which already covers this matter in Article 20, § 4, of the NFFE Master Agreement. In this regard, there is nothing in the record to support the assumption that desk audits have always been the method used by the Employer to perform classification reviews. Nor is there any evidence of past instances where desk audits were not performed even though an employee requested one, or where an employee at the facility appealed the results of a review because a desk audit was not performed. By the same token, most of the Employer’s proposal appears unnecessary because it merely reiterates that the provisions of the NFFE Master Agreement govern this issue. Accordingly, we shall order the parties to withdraw their proposals.
3. Article 32, § 2, Reserved Parking Spaces
a. The Union’s Position
The Union’s proposal is that:
All parking included in the January 29, 1996, MOU agreement will remain in effect except for physician parking. All physician parking will remain the same except with the following changes: 1. Two spaces in front of the GMS Hospital next to the 1-hour open parking will now be Union parking (NFFE Local 1765) with appropriate signs. 2. Thirty parking spaces will remain designated Physician (NFFE Local 1765 bargaining unit physicians) Parking. 3. The remaining 17 parking spaces will be returned to open parking for all employees.
Significant reductions in the number of bargaining-unit physicians at the facility over the past 3½ years warrant a change in the parties’ previously-negotiated Memorandum of Agreement (MOU) on parking. Thus, the Union has proposed to return 17 parking spaces previously reserved for physicians "back to other employees" to "solve some of the problems employees at the Medical Center face every day trying to find a parking space." This part of its proposal was formulated after it monitored the daily usage of the parking area in question over a 3-week period between 8 a.m. and 2:30 p.m., and found that "on any given day" 15 spaces designated for physicians were not being used, "and several others were being used by other than physicians." Its attempt to put "some of the unused parking spaces to good use" is also supported by photographs which show that "only 10 percent of the parking is actually being utilized by the physicians in the bargaining unit." The part of its proposal requiring the re-designation of two parking spaces for the Union’s use addresses its concern for the safety of the two women whom management is proposing park "in the rear of the hospital." That area is "not well lighted nor in sight of many employees."
b. The Employer’s Position
The following is the Employer’s proposed wording:
The Employer will provide suitable parking space for bargaining-unit employees, while at the same time providing parking space for others who have business at the facility, including patients, families of patients, non-bargaining unit VA employees, contractors, vendors, consultants, volunteers and visitors. Following negotiation with the Union, the specific locations of parking for bargaining-unit employees will be implemented appropriately and fairly.
Its proposal "is appropriate" because the specifics of parking issues should be negotiated and addressed in memoranda, and updated by the parties as needed, rather than in a supplemental agreement. In this regard, the parties’ previous negotiations over a supplemental agreement culminated in 1984, and "this is too long a period of time for the specific locations and numbers of parking spaces to be ‘fixed’ into an agreement." The proposed wording is also consistent with the parties’ past practice regarding parking, and the Employer’s "willingness to re-distribute parking spaces" is demonstrated by MOUs it negotiated in 1996, 1997, and 1998.
Contrary to the Union’s view, the parties’ 1996 MOU "does not restrict physician parking to ‘bargaining-unit physicians’." The Employer has always provided reserved parking for unit and non-unit physicians alike because "of the urgent and sometimes emergency nature of their patient care responsibilities." The number of Medical Staff for whom parking is provided, currently 89, "fluctuates, and the need for Medical Staff parking changes." Nor are all of these practitioners at the facility simultaneously. This is why informal surveys done on any given day or hour will show unused spaces, but should not be used to justify a reduction in the number of reserved spaces. Not only is "the present number of 46 spaces reserved for [Medical Staff]  sufficient," but the fact of the matter is that "areas for parking at the VA Medical Center are numerous and that parking is free of charge." Finally, the Union president has had a designated parking space "for at least 6 years." Management does not agree that parking for the Union should be in the area reserved for physicians, and "does not see the merit" of providing more than one space for its exclusive use. With respect to the former point, "there have been no documented safety problems in the area where the NFFE president currently parks." Concerning the latter, the president of the bargaining unit represented by the American Federation of Government Employees currently has one reserved parking space in the same location as the space designated for the NFFE president.
With respect to the parties’ impasse over physician parking, we are persuaded that the Employer’s approach provides the better resolution of the dispute. Preliminarily, the memoranda the parties have negotiated over the past few years support the Employer’s view that the specifics of parking issues are more appropriately handled as the need for change arises. In our view, they also demonstrate the Employer’s past willingness to address through negotiations the legitimate needs of bargaining-unit employees when it comes to parking issues. Therefore, there is good reason to believe that the adoption of its proposal would lead to a continuation of the balancing of the interests of bargaining-unit employees in having suitable parking space with those of management in ensuring that patient care responsibilities are met. Moreover, the last sentence of the proposal, which commits management to implementing the specific locations of parking for bargaining-unit employees "appropriately and fairly," following negotiations with the Union, also provides a standard which can be enforced through the provisions of the parties’ negotiated grievance procedure.
Turning to the Union’s proposal, while it is true that its adoption would open up a number of more conveniently located parking spaces for non-physician employees, there is no evidence in the record that the overall number of parking spaces at the facility is inadequate. It also appears that some spaces could be re-designated for the general use of employees without harming patients. In the circumstances presented, however, we are convinced that management’s need for a margin of error concerning the exact number of parking spaces that physicians may require outweighs considerations based mainly on convenience. Regarding the parties’ dispute over the location and number of reserved Union parking spaces, we find no support in the record for doubling the current number to two, and little justification for changing the location of the Union’s current reserved parking space. On the latter point, there is no evidence that the current location is unsafe, nor do there appear to be grounds for favoring the Union president in this regard, who happens to be female, over other female personnel who work at the facility. Accordingly, we shall order the adoption of the Employer’s proposal.
4. Article 33, § 4, Access to OPFs
a. The Union’s Position
The Union’s proposal is that:
Any bargaining-unit employee will have access to their personnel files upon request and will be able to review such files at the VISN Business Office between 8-4:30 Monday through Friday. Any questions that the employees may have will be answered by the Personnel in the VISN office or by the local facility Personnel representative, depending on the expertise at both sites.
The Employer "unilaterally changed" how bargaining-unit employees may secure their OPFs "prior to negotiating this with the Union." Thus, adoption of the Union’s proposal would continue the employees’ "right" to obtain OPFs 5 days a week, 8 a.m. to 4:30 p.m., Monday through Friday. This requirement "creates no hardship on management," and would accommodate an employee "putting in for a new job" who needs the material on the day of the request, rather than the 2 to 3 days that it now takes. In addition, management "is violating" the NFFE Master Agreement, which specifies that "an employee may review his/her OPF upon request." The office which currently maintains the OPFs has "adequate staff in order to be able to facilitate our needs."
b. The Employer’s Position
The Employer proposes the following wording:
In accordance with the provisions of the Master Agreement and upon request, a bargaining unit employee may review his/her Official Personnel Folder (OPF) at the local VA facility during regular hours of operation. Upon receipt of a request from the employee, the Employer will retrieve the OPF within a reasonable period of time for review by the requesting employee. If the employee signs permission for a designated representative to review his/her OPF, the designated representative may do so.
Its proposal should be adopted because "the subject of employee access to OPFs is covered in detail" in the NFFE Master Agreement. The "main problem" with the Union’s proposal is the demand for "immediate review" of OPFs in the Veterans Integrated Services Network (VISN) Business Office, which maintains OPFs for all seven medical centers in the VISN. Employees have never had immediate access to their OPFs, even when medical centers maintained them individually. In this regard, employee requests have "always been subject to Human Resource staffing and workload requirements." The Union’s proposal will become even more unworkable when maintenance of OPFs is transferred to the Shared Services Center in Topeka, Kansas, for the entire VA by the end of the current calendar year. Finally, "it is rare, if ever, that an employee would have an ‘immediate’ need for the OPF." This is because nothing in an OPF has not already been given to the employee "or is of such immediate consequence that it cannot be reviewed in a reasonable time frame."
Upon a full review of the parties’ positions regarding employee access to OPFs, for the most part we conclude that neither has made a convincing case that its proposal should be adopted. The Union’s major concern appears to be the adverse impact that recent changes regarding the location of OPFs at the VISN office have had on employees’ ability to obtain immediate access to their personnel records. Even assuming that such access was immediate in the past, it has cited no actual examples where employees have been adversely affected by these recent changes. The Employer’s proposal, on the other hand, appears to be an attempt to get the Panel to certify that the best management can do is provide access to OPFs at the local facility within 2 to 3 days of a request. It too, however, has failed to demonstrate any past difficulties concerning this matter which would support the adoption of its proposal. For these reasons, we shall order that the parties be governed by the terms of Article 33, § 4, of the NFFE Master Agreement. To address the Union’s interest that employees with a bona fide need be provided immediate access to their OPFs, wording shall also be imposed requiring the Employer to expedite requests where good cause is shown. In our view, the NFFE Master Agreement contains extensive wording adequately covering the issue. In addition, our compromise also preserves the Union’s right to grieve the Employer’s current practices regarding access to OPFs, which it alleges violate the NFFE Master Agreement.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the parties’ failure 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:
1. Article 2, § 9, Official Time for Representational Duties
The parties shall adopt the following wording:
The President, NFFE Local 1765, shall receive 60-percent official time for Union duties as outlined in Article 2 of the Master Agreement. Additional official time for the Union president and other Union officials will be granted consistent