united states of America BEFORE THE FEDERAL SERVICE IMPASSES PANEL In the Matter of DEPARTMENT OF HEALTH AND HUMAN SERVICES PUBLIC HEALTH SERVICE OFFICE OF THE SURGEON GENERAL COMPENSATION BRANCH ROCKVILLE, MARYLAND and LOCAL 41, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Case Nos. 92 FSIP 124 and 92 FSIP 143 DECISION AND ORDER Lo(;al 41, American Federation of Government Employees, AFL-CIO (Union) and Department of Health and Human Services, Public Health Service" Office of the Surgeon General, Compensation Branch,Rockvil:Le, Maryland (Employer or PHS) filed requests for assistance with the Federal Service Impasses Panel (Panel) to consider a negotia1t.ion impasse under the Federal Employees Flexible and Compres!;ed Work Schedules Act (Act), 5 U.S.C. § 6120 g.t. .§.gg., arising from the determination by the head of the agency under section 6131(a) (2) of the Act to terminate a compressed work schedul4a. Fo:llowing investigation of the requests for assistance, the Panel ,consolidated the cases and directed the parties to partici]pate in an informal conference with Staff Associate Ellen J. Kolansk:~ for the purpose of resolving the disputes, with the Panel to take~ final action on the matter in accordance with section 6131(C) (3) (C) of the Act.:!/ and section 2472.12 of the Panel'sregulations. The parties were advised that if no settlement were reached, Mrs. Kolansky would notify the Panel of the status of the dispute, including the parties' final offers and her recomme:ndations for resolving the matter. Accordingly, Mrs. Kolansk'y met with the parties on May 28, 1992. Since the dispute was not resolved during the conference, the parties were permitted The standard to be applied by the Panel under § 6131(c) (3) (C) is: "The Panel shall take final action in favor of the agency's determination to terminate a schedule if the finding on which the determination is based is supported by evidence that the schedule has caused an adverse agency impact." 1./ -2- to submit cl statement of position, and the Panel has now considered the entire record. BACKGROUND PHS pharmacists, is a uniformed and other service medical consisting personnel of involved physicians, in health nurses, care; theJre are approximately 10,000 active and retired PHS Commissioned Officers. The Union represents approximately 600 bargaining-unit employees. The dispute, however, involves 11 pay technicians at grades GS-7 through -9 in the Commissioned Corps Compensation Branch, Office of the Assistant Secretary for Health (OASH), within the Office of the Surgeon General, who handle the pay record:; of active duty and retired Commissioned Officers in thePHS. The parties" master collective-bargaining agreement was scheduled to expire on July 26, 1987; however, the agreement has been renewed twice for 3-year periods. commissioned Officers' pay, like military pay, is made up of base salary plus special pay and allowances, and is adjusted for tax withholding, etc. It is an exception system; Officers continue to be paid at a cer1:ain rate unless technicians enter corrections. since January 1990, 99 percent of the work has been computerized. The teleph.one is used extensively both by technicians collecting information from Officers for adjustments and certifications, and by the Of:ficers seeking information or reporting changes anderrors. Overor underpayments can be inconvenient for thesepayees. F:ive technicians work in the active duty pay section; each is assigned to 20 percent of the approximately 6,800 Commissioned Officers on active duty. They also recertify the variable housing allowance costs.£/ four technicians work in the special pay section dealing with bonuses, retention pay, etc. A key employee, called a v4arifier, checks all audits performed during a given month for accuri;lcy. The secretary is the eleventh bargaining-unit employee. During a single year, employees audit the pay records of over 5,000 Commissioned Officers; each audit takes approximately 2 1/2 hours to perform. On MaLY7, 1990, the Employer implemented a 5-4/9 compressed work sched:ule (CWS) option for bargaining-unit employees in OASH. Requests for suchi schedules from all 11 employees in the CommissioI1Led Corps Compensation Branch were granted including a Monday or Friday day off (the option originally offered by the supervisor'), and arrival times of 6:30, 7, or 7:30 a.m. The underlyingr CWS agreement negotiated between PHS and the Union was never formally signed by the parties or reviewed by the head of the agency bec:ause the Union's leadership "changed." Z/ In a.ccordance with a recent change in the law, these certifications will need to be conducted annually. -3L~~UE AT IMPASSE which The sole question before the Panel is whether the finding the agency head has based its determination to terminate agency' impact. J/ Posi:tiQD asserts that the 5-4/9 compressed work schedule on the 5-4/9 cclmpressed work schedule for 11 employees in the compensation is supported by evidence that the schedule an adver'se office of is having ~EmQloyer's Thei Employer for the 11 employees is having an adverse impact on the agency,and, therefore, should be terminated. In support of this position, it calc'ulates that productivity has declined by 10.6 percent despite increased staffing and computer access that eliminated the time consuming search for records stored on microfiche. Furthernlore, employees are no longer cooperating with each other by taking c:alls for co-workers away on off days. As a result, while it does not give an exact number, it has received complaints from clients about di1:ficulties in reaching pay technicians. Although office hlours are from 8:30 a.m. to 5 p.m., employees arrive mainly between 7 and 7:30 a.m. and leave between 4 and 4:30 p.m., causing inadequclte coverage between 30 and 60 minutes at the end of theday. Coverage difficulties are exacerbated by the misalignment of hours actually worked, computer availability (generally, no earlier than 7:~10 a.m., a full hour absences: stemming from off from different time zones after days, (~, half of the employees arrive), and the fact that clients call the West Coast, Alaska, andHawaii). Moreover, it is the only office in OASH with 100-percent employeE~ participation in the 5-4/9 schedule. The Employer has not removed any employee from the schedule. It believes that since the parties Ii agreement on compressed work schedules was never executed, such act~ion could subject it to grievances or unfair labor practice charges., -Finally, under the schedule, anticipated improvements in employeE~s' morale and reduction in sick leave usage were not attained. .J./ as.-- Se<:tion 6131 (b) of the Act def ines ..adverse agency impact II (1) agency; a reduction of the productivity of the (2) a diminished level of services furnished to the public by the agency; or (3) an increase in the cost of agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed schedule). 1. -4The u:nion' s -P.Qsitiorl The 1[Jnion proposes: continue the compressed alternative work schedules, utilizing the 5-4/9 schedule with a regularly scheduled day ,off each pay period. Management will determine who will receive what off day. The off day will remainconstant. Employees may voluntarily swap their off day subject to the approval of management. The one 8-hour workday per pay period shall be determined and controlled in the same manner as the off day; the office hours operation shall be from 7:30 a.m. to 5 p.m. daily. of One manager and one employee (selected by peers) shall monitor and evaluate this program on a quarterly basis, and 'make their findings and recommendations known to allconcerned. It argues that employees' hours and off days should be adjusted to cure current deficiencies in work flow, productivity, and coverage rather than taking the drastic step of terminating the schedule for everyone in the office. .since the schedule worked well in its first yeclr and employees benefit from such schedules, the more moderate steps it offers would be more appropriate than wholesaletermination. While the Employer states that clients have complaine~d about not being able to reach technicians by phone, such claims are vague as to the number of complaints received, who made them, and which employee was absent. Furthermore, problems in the office stem more from poor management than from the 5-4/9 schedule. For examp'le, the Employer has failed to deal with the one employee who refuses to take others' calls, and has not trained a replaceme!nt for the verifier who continues on the schedule, and is about to go on maternity leave. As to staffing levels, the Employer has added several employees over the past few years, and its requE~st for five additional employees indicates that a larger staff ma:)' be required to deal with expected increases in the workload. In addition, employees' records, although possibly incomplet:e, indicate that the number of transactions they perform per mont][} have risen every year between 1990 and 1992. Other records ]tept by employees show that overtime was assigned both before alnd after the implementation of the compressed work schedule., Amounts used declined somewhat after the schedule went into effe~ct, challenging the accuracy of the Employer's claims that overtime was not used before implementation of the schedule and that no savings in overtime costs resulted under the schedule. Finally, since clients on the West Coast and beyond know the office's hours of operations, they could place their calls early enough to ensure that they reach a pay technician. 2. -5CONCLUSIONS The issue arises under the Federal Employees Flexible and compressed Work Schedules Act (Act), 5 U.S.C. S 6120 gt ~. section 6131(c) (3) (C) of the Act requires us to take final action in favor of the head of the agency's determination to terminate an existing compressed work schedule if the finding on which the determination is based is supported by evidence that the schedule has caused an adverse agency impact. The adverse impact may occur in any o:ne of three ways: either, reduced productivity; diminished service to the public; or increased costs. The Act's legislative history makes it clear that the agency bears the burden of proof with respect to showing adverse impact.!/ " Having considered the record before us, we find that the Employer convincingly supports its assertion that the 5-4/9 compressed work schedule used by all bargaining-unit employees in the Co~nissioned Corps Compensation Branch has resulted in a diminished level of service to the public by the agency. In this regard, :r-eceipt of clients' complaints regarding the unavailability of pay t~echnicians to take their phone calls indicates that they are not being well served. Evidence from both parties that there have bel;!n refusals to take an absent employee's calls during biweekly off days confirms such problems even though the parties disagree about the extent to which employees are not cooperating. Undoubtedly, cooperative efforts among employees working on a compressed work schedule is a keystone to the success of the schedule, particularly where, as here, an office's workload is great, and may be increasing. Evidence also indicates that the schedule has delayed follow- up phone! calls to confirm or correct information relating to pay and allowances. Such delays increase the times an account must be audited, and have led to backlogs in dealing with complicatedaccounts. Slowness in working through the backlogs has delayed bymonths, and even years, payments due to commissioned Officers (amounts, have ranged up to $2,800) or owed to the Government (amounts, have ranged up to $300). We believe that a return to regular hours (8:30 a.m. to 5 p.m.), with employees present each day dur:Lng the pay period, would enhance employees' ability to pursue 1:0110w-up information so that account corrections can be made in a timely fashion, and also improve their responses toclients' calls. its Foz' the statutory above reasons, we conclude that burden of demonstrating that the the Employer has met compressed schedule ..4./ ~l 128 CONGeREC. H 3999 (daily ed. July 12, 1982) (remarks of Rep. Ferraro); and 128 CONGeREC. S 7641 (daily ed. June 30, 1982) (remarks of Sen. Stevens), and sunra, note 1. -6for employ.~es in having an aldverse the Commissioned agency impact. ORDER pursuamt to the authority vested in it by the Federal Employees :Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. § 6131 (c) (3) (C), the Federal Service Impasses Panel, under § 2472.12(a) (2) of its regulations, hereby takes final action in favor of: the Employer's position and orders the termination of the 5-4/9 compressed work schedule for 11 employees in the Commissione!d Corps Compensation Branch. Corps Compensation Branch is By direction of the Panel. c===~~-.&:~~ ~ Linda A. Lafferty /' Executive Director 1 June 29, lSI92Washington, D.C.