United States of America
THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
OF VETERANS AFFAIRS
Case No. 04 FSIP 45
DECISION AND ORDER
The Department of Veterans Affairs (VA), Washington, D.C. (Employer or VA) and the United American Nurses, AFL-CIO (Union or UAN) filed a joint 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.
After investigation of the request for assistance, the Panel determined that the dispute, which involves portions of three articles in the parties’ first master collective-bargaining agreement (MCBA), should be resolved through an informal conference with Panel Member Joseph C. Whitaker. The parties were informed that if no settlement was reached, Member Whitaker would notify the Panel of the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would resolve the dispute by taking whatever action it deems appropriate, which could include the issuance of a binding decision.
Pursuant to this procedural determination, Member Whitaker convened meetings with the parties on April 14 and 15, 2004, at the Panel’s offices in Washington, D.C. During those sessions, the Union withdrew its proposal concerning parking for Union representatives at VA facilities; however, all other issues remained in dispute. Thereafter, the parties submitted their final offers and post-conference supporting statements. Member Whitaker has reported to the Panel and it has now considered the entire record.
The Employer’s mission is to operate medical facilities nationwide that provide a full array of care for military veterans including primary, specialty, in-patient, medical-surgical, psychiatric and long-term care services. On November 16, 2001, the UAN was certified by the Federal Labor Relations Authority as the exclusive collective-bargaining representative for a bargaining unit consisting of approximately 6,000 registered nurses (RNs)/ stationed at 21 VA facilities nationwide.
The parties disagree over: (1) Article 5, Labor Management Relations National Meeting (whether there should be mutual agreement on agenda items; the number of Union representatives to attend the meeting on official time, and the payment of travel and per diem expenses for them); (2) Article 40, Union Use of VA Facilities and Services (the square footage of Union office space that is to be shared by national and local Union officers; ability to negotiate locally over alternative space); and (3) Article 43, Official Time (amount of official time for the Union’s national vice-president and for local bargaining-unit representatives; Union’s ability to designate an alternate representative to utilize official time; the amount of notice the Union is to provide to the Employer when requesting that an alternate be released from patient care duties to perform representational work; release of alternate to perform Union representational activities; and the authority of alternate to bind the Union).
POSITIONS OF THE PARTIES
Article 5, Labor-Management Relations (LMR) National Meeting
The Union’s Position
The Union proposes to eliminate any requirement that the parties “mutually agree” upon the agenda for their annual meeting; official time and travel and per diem expenses would be authorized for eight UAN representatives to attend the meeting. Agreement on the meeting agenda is unnecessary. While the Employer believes that mutual agreement would reduce the length of the meeting and, thereby, control costs, the parties already have agreed to limit the meeting to a single day, absent mutual agreement to extend it. Requiring mutual agreement on the agenda may be problematic as either party could attempt to delay the annual meeting if there is no mutual consent on agenda items. The VA’s national labor agreements with four other unions do not require mutual agreement on agendas and there is no need to deviate from that bargaining pattern.
As to the number of Union representatives on official time at the LMR meeting and the payment of their travel and per diem expenses, eight should receive official time and travel and per diem because that is the number of members on the Union’s National Council, its decision-making body; in the event that the parties reach agreement at the LMR meeting on matters that would require the consent of the National Council, their presence would allow for immediate execution of those agreements. The proposal also would provide the Union with “sufficient” parity with the four other national unions at the VA; in this regard, by contract, the VA has agreed to authorize official time and travel and per diem expenses for 29 AFGE representatives, 12 NAGE representatives, 10 NFFE representatives and 10 SEIU representatives to attend national-level LMR meetings with management.
The Employer’s Position
The Employer proposes that “(t)he agenda  be mutually agreed upon;” official time and travel and per diem expenses would be authorized for six UAN representatives to attend the meeting. Requiring mutual agreement on the agenda may help the parties limit the number of topics they reasonably could expect to address in a single day, and limit the cost of the LMR meeting. It is also consistent with the general concept that such meetings are supposed to be collaborative. On the issue of official time and travel and per diem expenses, the Union should be limited to sending six representatives because that is the number of representatives the Union had on its contract bargaining team. If six were adequate for the purpose of negotiating the parties’ first MCBA, that number should be sufficient for purposes of the LMR meeting. While the Employer may have authorized official time and travel and per diem expenses for a larger number of representatives at such meetings on behalf of other VA unions, they represent greater numbers and broader ranges of employees than UAN and, therefore, require a more diverse representation to adequately represent employees’ interests. Moreover, because of the nursing shortage at the VA, the Employer has an interest in minimizing the number of nurses it would have to release from patient care duties to attend a meeting in Washington, D.C.
Having carefully considered the
parties’ evidence and arguments on this issue, we are persuaded that the
Union’s proposal provides the better resolution.
In our view, requiring the parties to mutually agree on the agenda for
the annual meeting, as the Employer proposes, could lead to its postponement or
cancellation, and the unnecessary filing of grievances.
Furthermore, the Employer’s cost concerns appear to be unfounded since
the parties already have agreed to limit the meeting to 1 day.
The Union’s approach, on the other hand, is more reasonable because it
would avoid a potentially confrontational situation between the parties.
As to the number of Union representatives on official time, and the
payment of their travel and per diem expenses by the Employer, the
Union’s proposal appears to be more consistent with what management has agreed
to provide its other labor organizations. For
these reasons, we shall order the adoption of the Union’s final offer to
resolve the parties’ dispute.
Union Use Of VA Facilities and Services
a. The Union’s
essence, the Union proposes that Union office space should measure at least 160
sq. ft. when it is to be shared by both national and local Union
representatives; alternative office space arrangements for the UAN national
president and officers would be bargained locally.
A 160 sq. ft. office would be adequate to serve as shared space because
it could accommodate the office furnishing authorized for both a national and
local Union representatives, and still provide enough privacy for two
representatives to conduct business in the office at the same time. Since VA facilities vary widely in terms of the amount of
space available for offices, it is difficult for the parties to develop a “one
size fits all” solution during MCBA negotiations.
Therefore, the parties should have the flexibility to bargain locally
over alternative space for national officers and representatives.
The Employer’s Position
The Employer proposes that “(w)here feasible, such shareable
space will be at least 120 sq. ft.” It
contends that an office consisting of 120 sq. ft. should be large enough to
comfortably accommodate two desks, chairs, computers and other office equipment.
The proposal would set a minimum size for shared office space, and not a
maximum, so the parties would be free to negotiate locally over additional
space, as they already have agreed to do in MCBA negotiations.
Thus, the Union would not be foreclosed from obtaining more space at
those VA facilities that could accommodate larger Union offices.
thorough consideration of the evidence and arguments presented by the parties on
this issue, we conclude that the dispute over Union office space should be
resolved on the basis of the Employer’s final offer.
The record reveals that VA facilities differ widely in terms of the
amount of space available for offices and, because of that, it may not be
feasible to provide the Union with an office of 160 sq. ft. at those facilities
where national and local Union officers are to share Union office space.
In our view, the better approach is to require shared office space to be
a minimum of 120 sq. ft., as the Employer proposes, but leave open the
possibility that larger offices or additional space be provided through local
negotiations at facilities that can accommodate such arrangements.
Accordingly, we shall order the parties to adopt the Employer’s
Article 43, Official Time
The Union’s Position
In essence, the Union
proposes that the national Union vice-president be authorized 100-percent
official time/; official time could be rolled
over from one Union representative to another; in regard to the release of Union
representative to perform Union representational functions, when a
locally-elected official, who also is a national official, is “periodically”
unavailable to perform local Union representational functions, another local
official would be permitted to perform such local functions; the locally-elected
official who assumes the duties of the unavailable representative would be
delegated a portion of that unavailable representative’s official time.
If release of the Union representative could not be accommodated at the
time requested because of patient care needs, the parties, in a timely manner,
would be required to establish a mutually agreeable time for release of the
Union representative to ensure the preservation of the Union’s
representational obligations. Additionally,
each local UAN bargaining unit would be entitled to the equivalent of .40 FTEE/
on official time (32 hours per 2-week pay period).
The Union would be permitted to designate the local representatives for
whom this time is authorized.
One hundred percent official time for its national vice-president
is warranted due to the broad array of Union representational duties the
incumbent would be expected to perform. In
this regard, the vice-president is to undertake the same functions as an
officer-at-large, which is estimated to require 20 hours a pay period, but also
share the workload of the president, which should amount to another 20 hours of
representational work. Combining
these duties with those inherent in the vice-president’s position (40 hours
worth of representational work each pay period) the vice-president would be
expected to perform 80 hours of representation per pay period, which is the
equivalent of having full-time Union representational duties.
Since this is the parties’ first MCBA, there are likely to be many
“start-up” issues, including the negotiation of local agreements that would
require consultation between the vice-president and local units.
The proposal for 100-percent official time for the vice-president is
“appropriately proportional” to the VA’s agreement with AFGE.
Even though UAN does not represent as many employees as AFGE, a national
union still must perform functions that bear no relation to the number of
employees it represents; participation in labor-management committees, reviewing
regulations, and other institutional functions of the national union do not vary
by the size of the unit.
With respect to the rollover of official time from one Union representative to another, and the release of an alternate Union representative to perform Union representational functions, the proposed provision balances the Employer’s need to fulfill its patient care mission with the Union’s statutory right to designate its representatives and attend to Union representational matters. Furthermore, the proposal contains a “safety valve” concerning the release of a designated alternate which provides that if the Union representative cannot be released when requested due to patient care needs, the parties in a timely manner are to agree upon an alternative time for release. This mechanism for release of alternates is identical to language already agreed upon by the parties in Article 43, Section 4, which sets forth procedures for the release of Union representatives (other than alternates) on official time.
As to official time for local Union representatives and the Union’s designation of its representatives, each local bargaining unit should be authorized 32 hours of official time (.40 FTEE) every pay period to ensure that local representatives are able to handle effectively not only routine representational matters, but also initial “start up” issues that are likely to include matters involving the overlay of a national contract on local agreements. Moreover, the VA has authorized similar amounts of official time for local AFGE and NAGE representatives in its master agreements with those two labor organizations; both of those contracts provide for “at least one (local) union official with no less than 40-percent official time,” which equates to 32 hours per pay period. Finally, the wording that would allow UAN to designate the local representatives for whom official time is authorized should be adopted because it reflects the Union’s “statutory” right to designate its own representatives.
The Employer’s Position
The Employer basically proposes that the Union’s national vice-president be authorized 50-percent official time. With respect to the Union’s ability to transfer official time from one Union representative to another, and the release of an alternate Union representative to perform Union representational functions, when a locally-elected official, who also is a national official, “occasionally” is unavailable to perform local Union representational functions, another local official, such as the local vice-president, may perform such local functions; when the Union delegates official time to an alternate pursuant to this provision, the release of the alternate would be granted when adequate notice has been given, normally 6 weeks, patient care permitting. The alternate may not increase his/her own official time allocation by adding the national official’s allotment so as to become a de facto full-time Union representative; the alternate to whom official time is delegated also must be delegated full authority to act and make decisions in the absence of the national official. Finally, each local UAN bargaining unit would be authorized up to 24 hours of official time per pay period.
Fifty percent official time for the national Union vice-president is reasonable because that allocation, when viewed in light of the UAN’s relative size, is “in line” with the amounts of official time granted to AFGE and NFFE national officials in their MCBAs with the VA. Because all UAN national officials are professional nurses, any official time allocated to them necessarily takes scarce nursing staff away from patient care duties that form the core of the VA’s mission. The amount proposed strikes a balance between patient care needs and the Union’s desire to have sufficient official time authorized to support its national representational functions. As to the parties’ dispute over the rollover of official time from one local Union representative to another, and the criteria for release of an alternate Union representative to perform representational functions, the solution offered by management would safeguard the VA’s patient care mission while allowing the Union adequate flexibility to accomplish its representational duties. In this regard, the requirement that the Union provide 6-weeks’ notice for the release of a Union representative who is to act as an alternate would give the Employer time to plan all nurses’ shifts in time to post them 4 weeks in advance. The proposal also would prevent an alternate from becoming a de facto full-time Union representative. Requiring the alternate to have the full authority to act and make decisions in the absence of the Union official that has delegated the time would increase the odds that the use of official time would be productive. Finally, an allocation of a minimum of 24 hours of official time per pay period to each local bargaining unit is reasonable because it would establish an appropriate floor for bargaining locally over any additional time. During local negotiations, particular nursing needs and shortages at local facilities may be taken into consideration. Providing, up front, an amount of official time that would be in excess of 24 hours could have a negative impact on patient care in this time of severe nursing shortages.
Upon a complete evaluation of
the proposals and arguments presented by the parties, we are persuaded that
their dispute over the official time article should be resolved on the basis of
the Employer’s position. It appears that the Union’s internal organizational needs,
rather than the size of the bargaining unit it represents, is the basis for the
Union’s proposal that a second national officer receive 100-percent official
time. In our view, the size of the
bargaining unit, and the fact that all of the UAN’s officers are nurses,
mitigate against having two national officers on 100-percent official time.
Authorizing another full-time Union representational position for a
registered nurse at a time when the VA is experiencing difficulties in retaining
nurses and striving to provide the best possible medical care for our nation’s
military veterans is unwarranted. In
contrast, the Employer’s proposal to authorize 50-percent official time for
the Union’s national vice-president is a more balanced approach because it
permits the incumbent of that position to divide time between attending to Union
representational matters and providing nursing services to veterans.
With respect to the rollover of
official time, and the release of an alternate Union representative, reference
to the phrase “periodically unavailable,” found in Section 2(D)(2) of the
Union’s proposal, is vague and could trigger grievances.
Moreover, by not specifying how much advance notice is to be provided to
management for the release of an alternate on official time, its adoption could
interfere with the Employer’s ability to schedule nursing staff to attend to
patient care. This also could lead
to grievances. Again, the
Employer’s proposals, overall, provide a better balance between meeting its
patient care mission and allowing the Union the flexibility to accomplish its
representational functions. Finally,
on the issue of official time for local Union representatives and the Union’s
designation of its representatives, the Union’s proposal for 32 hours of
official time per pay period for each of its local bargaining units appears to
be out of proportion with the relatively small size of the bargaining unit
(6,000) it represents. For example,
the Employer’s current contract with AFGE, which represents approximately
134,000 employees, also provides 32 hours of official time per pay period for
each of its local bargaining units. We
also note the parties’ agreement that whatever amount is authorized in the
MCBA for local Union representatives may be supplemented through local
negotiations. For these reasons,
the adoption of the Employer’s final offer on these matters shall be ordered.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the 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:
Article 5, Labor-Management Relations National Meeting
The parties shall adopt the Union’s proposal.
2. Article 40, Union Use
of VA Facilities and Services
The parties shall adopt the Employer’s proposals.
Article 43, Official Time
The parties shall adopt the
direction of the Panel.
/ Within the VA, in addition to the UAN, four other labor organizations represent professional and non-professional employees. They are: (1) the American Federation of Government Employees (AFGE), which represents approximately 134,000; (2) Service Employees International Union (SEIU), which represents 13,000; (3) National Association of Government Employees (NAGE), which represents 9,000; and (4) the National Federation of Federal Employees (NFFE), which represents 3,000 employees.