In the Matter of )
DEPARTMENT OF THE ARMY )
U.S. ARMY AEROMEDICAL CENTER )
FORT RUCKER, ALABAMA )
and ) Case No. 91 FSIP 115 )
LOCAL 1815, AMERICAN FEDERATION OF )
GOVERNMENT EMPLOYEES, AFL-CIO )
Local 1815, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of the
Army, U.S. Army Aeromedical Center, Fort Rucker Alabama (Employer).
The Panel determined that the impasse concerning the on-call policy should be resolved pursuant to written submissions1/ from the parties, with the Panel to take whatever action it deemed appropriate to resolve the dispute. Submissions were made pursuant to these procedures and the Panel has: considered the entire record.
1/ The Panel has received previous requests for assistance concerning negotiations over the issue, including the identical Union proposal at impasse in the instant case, in Case Nos. 90 FSIP 98 and 232. Those cases were withdrawn by the Union prior to the issuance of a Panel Decision and Order so that it could file a petition for review before the Federal Labor Relations Authority (FLRA) concerning the Employer's written allegation that the proposal was nonnegotiable. Prior to the issuance of the FLRA's decision, however, the Employer withdrew its written allegation of nonnegotiability, whereupon the Union once again filed a request for assistance with the Panel to resolve the impasse in the instant case.
The U.S. Army Aeromedical Center is a tenant command hospital at Fort Rucker. Its mission is to promote and maintain the health of Army personnel on the base and their dependents. The bargaining unit consists of approximately 2,000 support personnel from both base and tenant commands. The instant dispute, however, affects three civilian nurses who work in the hospital's operating room. The parties' collective-bargaining agreement expired on May 2, 1991.
ISSUE AT IMPASSE
The impasse arose after negotiations pursuant to the settlement of an unfair labor practice charge.2/ The only issue in dispute concerns the length of time that employees will have to report for duty on those days when they are scheduled to be on call.
2/ The Union filed the charge at least 17 months after the Employer's on-call policy had been in effect upon discovering that disciplinary action was being proposed against an employee who failed to comply with it on one occasion. The charge was withdrawn after the Employer agreed to negotiate over the impact and implementation of the policy.
3/ It is useful to understand the meaning attributed by the parties to the terms "on call," "call back," and "standby" in the context of this case. It is necessary for employees staffing positions in
departments where the Employer is required to maintain 24-hour coverage to remain in an on-call status, ready and able to go to work. Generally, time spent on call may be designated either as call back or standby. Employees in a call-back status are off duty and do not receive compensation unless they are called back to the job after completing their normal shift. If required to respond, they are guaranteed 2 hours of pay regardless of the number of hours actually worked. On the other hand, employees on standby receive compensation, at premium rates under certain conditions, to remain in total readiness to respond to an emergency. They are paid for this time whether or not they are actually called back to the
facility. None of the employees affected by this case have been designated to be in standby status.
1. The Union's Position
The Union proposes the following wording:
The employee on call agrees to make himself or herself available for duty at his or her duty station as quickly as possible; however, employees will not be required to meet more strict requirements than stated below:
a. Employees will have 25 minutes to prepare themselves to start the drive to their duty location.
b. Employees will be allowed a reasonable driving time to their duty location, considering traffic laws and the location of residence or area from which the notification was received. This expected driving time will be communicated in writing to each employee by the Employer at the time they are placed in a position that will require them to be in an on-call status.
Its proposal is consistent with the terms of the parties' collective-bargaining agreement, which states that "employees who are designated for on-call duty may not have their freedom of movement unduly restricted. Ordinarily the requirement that they hold themselves available will not extend beyond a requirement that they leave word where they may be reached." The Employer's proposed 25-minute time limit, on the other hand, unduly restricts employees' movements as well as "the area in which one may live," and is not in accordance with the parties' intent when the agreement was originally negotiated. Moreover, through its policy the Employer "is attempting to provide full-time emergency service without hiring a proper staff." Such a policy is unwise, particularly "under conditions where a life may depend upon emergency surgery," and is really "standby duty being disguised as call back." Finally, the Union's proposal was part of an agreement reached by the parties' representatives with the assistance of a Federal mediator which subsequently was breached when the Employer's chief negotiator was unable to "sell" the agreement to management. For this reason, the Employer "should now be held to the agreement."
2. The Employer's Position
The Employer proposes that operating room employees continue to "be subject to call back within a 25-minute time frame." The change was initially proposed in 1987 "due to the nature and need of the employees' services in emergency situations." The time frame was established on the basis of past practice, which showed 25
minutes to be the "normal" response time in emergency situations. In fact, the policy had been implemented for 17 months before the first incident of tardiness occurred. This demonstrates conclusively that the policy is reasonable, not unduly restrictive of employees' freedom of movement, and consistent with the applicable sections of the parties' collective-bargaining agreement. Moreover, it believes that the hospital's staff should determine the reasonableness of the time standard because it could be "tragic for non-medical people, with no association with or knowledge" of its mission, "to dictate an expanded time which could result in the loss of lives." Finally, "it is inconceivable" that
an on-call policy with a 25-minute time limit meets the strict statutory requirements of standby duty.
Having considered the evidence and arguments in this case, we
conclude that the impasse should be resolved on the basis of the Union's proposal. In our view, the dispute boils down to the question of which proposal is consistent with the terms of the parties' collective-bargaining agreement. On the basis of the record established by the parties, we are persuaded that requiring affected employees to continue to be in the emergency operating room staging area within 25 minutes of being notified that their services are needed would be unduly restrictive. This is particularly the case in view of the contract's additional wording that "ordinarily" the employees' obligation to hold themselves available will not extend beyond the requirement that they leave word where they may be reached. Conversely, the Union's proposal
appears more fully to comport with the plain meaning of the agreement, and is reasonable because it provides a procedure for determining the call-back period of employees on a case-by-case basis. Accordingly, we shall order its adoption.
In reaching this decision, we clearly recognize that the timely response of employees is crucial for the success of emergency room operations. There are, however, alternative means available to the Employer for ensuring that its life-and-death mission is accomplished which are fully consistent with the terms of the parties' collective-bargaining agreement. Moreover, the parties are free to negotiate a different on-call policy in the future through the collective-bargaining process should experience indicate the need to do en so.
Pursuant to the authority vested in it by section 7119 of the
Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to section 2471.6(a)(2) of the Panel's regulations, the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Union's proposal.
By direction of the Panel.
Linda A. Lafferty
May 30, 1991