United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF VETERANS AFFAIRS
LOCAL 1765, NATIONAL FEDERATION
Case No. 04 FSIP 110
DECISION AND ORDER
The Department of Veteran Affairs (VA), Eastern Kansas Healthcare System, Eisenhower VA Medical Center, Leavenworth, Kansas (Employer), 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 Local 1765, National Federation of Federal Employees, Federal District 1, IAMAW, AFL-CIO (NFFE or Union).
After investigation of the request for assistance, the Panel determined that the dispute, which arises from bargaining over changes to routine laboratory tests provided to Title 38 employees, should be resolved through written submissions, including rebuttal statements. The parties also were advised that, after considering the entire record, the Panel would take whatever action it deems appropriate to resolve the dispute, which could include the issuance of a binding decision. The parties' final offers and written submissions, including rebuttal statements, were received pursuant to this procedure, and the Panel has now considered the entire record.
The Employer provides hospital, nursing home, domiciliary, outpatient, and psychiatric care to veterans and their dependents. The Employer's two main service locations are in Leavenworth and Topeka, Kansas; it also operates several smaller clinics in Kansas and Missouri. The Union represents approximately 210 Title 5 and Title 38 professional employees, including registered nurses, physical therapists, doctors, pharmacists, and social workers. Some are in the General Schedule (GS), GS-3 through -11, while others occupy special Title 38 pay classifications. The parties' master collective bargaining agreement (MCBA) expired in May 2000, but its terms will continue in force until a successor agreement is implemented. The parties also are governed by the terms of a supplemental agreement that has expired, but will remain in effect until it is renegotiated.
ISSUE AT IMPASSE
The issue in dispute is whether the Employer, in exercising its discretion under VA regulations, should change the types and schedule of routine laboratory tests provided to Title 38 employees.
1. The Employer's Position
The Employer's proposal is:
a) On a voluntary basis, lab work will be provided every 2 years, unless voluntary clinical assessment establishes the need for one or more of these tests to be provided annually. (Emphasis in original.)
b) The lab work provided will be as follows: Hemoglobin/Hematocrit (HH); Fasting Glucose; Urinalysis; Fasting Lipid Panel; Thyroid Stimulating Hormone (TSH) for women over 40; and Prostate Specific Antigen (PSA) for men over 50.
Currently, in accordance with the VA Handbook, the Employer offers its employees the opportunity to (1) have a physical examination, which may lead to further laboratory tests, or (2) have only laboratory work performed.1/ In the first situation, an employee has a physical examination and, as a result, a battery of laboratory tests is ordered. This option is not affected by the Employer's proposal, as an employee will still be able to sign up for an examination annually and appropriate laboratory work would be performed as a part of that examination.
As to the second scenario, which is the subject of the current impasse, an employee can choose to skip the physical examination and just request laboratory tests. The proposal changes the kinds of tests offered and reduces their frequency from annually to once every 2 years. Screening tests presently being offered include: Complete Blood Count (CBC); Comprehensive Metabolic Profile (CMP); Fasting Lipid panel; TSH; and PSA for men over 50. The proposed modifications would permit the use of subtests rather than the complete test, i.e., the HH instead of the CBC, and the Fasting Glucose in place of the CMP. The other tests are unchanged except that the TSH would now be provided only to women over 40 rather than all women.
The VA Handbook does not dictate which laboratory tests should be offered to employees; this determination is delegated to the discretion of the local medical facility.2/ As a result, there are no standard screening tests.3/ After a review of laboratory utilization services in 2002, "it was determined that a change  was warranted based upon current clinical knowledge and standards." According to the recommendations in the United States Preventative Services Task Force (USPSTF) Guidelines,4/ the current battery of tests being provided to employees is beyond the "accepted standard of care of preventative medicine." Continuing this particular series of tests would be giving employees a higher level of care than currently offered to patients. Thus, "a common sense of fairness dictates that hard-won benefits provided to our Veteran patients should not be less than a benefit provided to VA employees." As an additional consideration, the adoption of its proposal would produce some cost savings, approximately $500 per year.
2. The Union's Position
The Union is proposing to continue the current application of VA regulations for screening tests, i.e., employees should receive the following tests on an annual basis if they choose not to have a physical examination: the CBC; CMP; Urinalysis; Fasting Lipid Panel; TSH for women; and PSA for men over 50. These tests are an important part of monitoring an employee's health and wellbeing. Not only are they preventative in nature, but they also reassure an employee who has been "accidentally exposed" to an unknown health risk. Since these tests are of "minimal cost to the agency" and the employees value this higher level of care, the Employer should not alter its practice.
The Employer's assertion that an employee can obtain the full spectrum of tests through the voluntary physical examination does not respond to the concerns of those who choose only to undergo the screening tests. Furthermore, since many employees find it embarrassing for a co-worker to see them unclothed during the physical examination, they do not prefer that option. Therefore, the Employer's proposal would deny the majority of employees the opportunity to avail themselves of the preventative tests. Overall, because the Employer has not provided a valid reason for changing the status quo, its proposal should not be adopted.
Having carefully reviewed the evidence and arguments presented in support of the parties' positions, we shall order the adoption of the Employer's proposal to resolve this dispute. In reaching this decision, we are cognizant of the fact that VA employees are regularly exposed to health risks in the course of performing their duties. It is clear from the record, however, that exposure and surveillance testing is already available to employees to cover such situations, and is unaffected by the Employer's proposal. In our view, given this fact, the Union's stated concerns are insufficient to persuade us to prohibit the Employer from exercising its expertise and discretion in this area.
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:
The parties shall adopt the Employer's proposal.
By direction of the Panel.
H. Joseph Schimansky
December 23, 2004
/ While an employee's decision to have a physical examination or screening tests is strictly voluntary, the VA Handbook 5019, Part II, Section 4, Annual Medical Examination, states "the examination or screening tests will take place annually as nearly as practicable during the anniversary month of initial appointment in VA."
/ VA Handbook 5019, Part II, Section 4.b, Physical Examination, states:
[t]he Examining Occupational Healthcare Provider will use discretion in determining how comprehensive the examination will be. Special tests and diagnostic procedures may be ordered as appropriate based upon the examination findings.
Section 4.c, Screening Tests, provides:
Each full-time employee who elects not to have an annual physical examination, and each part-time and intermittent employee, except residents, may choose to undergo screening tests as are available at the medical facility. The screening tests may consist of blood tests, urinalysis, and an EKG. Other special tests and diagnostic procedures as available and believed indicated by the local professional staff may be performed.
/ The Employer supports this claim with information from five other VA facilities.
/ The Employer cites "[t]he USPSTF [as] an objective source of clinical guidance for Agency healthcare providers."