DEPARTMENT OF VETERANS AFFAIRS VETERANS AFFAIRS MEDICAL CENTER NEWINGTON, CONNECTICUT and LOCAL R1-109, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF VETERANS AFFAIRS
VETERANS AFFAIRS MEDICAL CENTER
LOCAL R1-109, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES, SEIU
Case Nos. 92 FSIP 129 and 92 FSIP 211
DECISION AND ORDER
Local R1-109, National Association of Government Employees, SEIU, AFL-CIO (Union) filed two requests for assistance with the Federal Service Impasses Panel (Panel) to consider negotiation impasses under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Veterans Affairs, Veterans Affairs Medical Center, Newington, Connecticut (Employer).
After investigation of the requests for assistance arising from mid-term bargaining, the Panel consolidated the cases with approval of the parties, and directed the parties to meet in an informal conference with Staff Associate Ellen J. Kolansky for the purpose of resolving disputes concerning safety committee membership, compressed work schedules (CWS), scheduling related to weekend military drills, performance appraisals, and travel and per diem for the informal conference. The parties were advised that if no settlement were reached, the representative was to notify the Panel of the status of the dispute, including the parties' final offers and her recommendations for resolving the matter. Accordingly, Mrs. Kolansky met with the parties on November 6, 1992, at the Panel's offices. With her assistance, the parties resolved the issue concerning the safety committee and approximately 15 sub-parts of 2 other issues at impasse; 4 issues remain for Panel resolution. She has reported to the Panel based on the record developed by the parties, and it has considered the entire record in the case.
The Employer provides inpatient and outpatient medical and dental care to veterans. The Union represents 300 bargaining-unit employees who work in positions such as laboratory technician, clerk, nursing helper, and telephone operator, at grades GS-2 through -9. The parties' 3-year, national-level, collective-bargaining agreement was ratified on May 28, 1992.
ISSUES AT IMPASSE
The four unresolved issues concern: (1) whether the parties' CWS framework agreement covering all bargaining-unit employees should include an anti-coercion statement, and whether, under a separate agreement, the Union president should be permitted to remain on a CWS pending the outcome of negotiations over termination of his schedule;(1) (2) what scheduling procedures should be used for employees who participate in weekend military drills; (3) whether additional performance standards should be written for the highest rating level, and how broad the Union's representational role should be in the performance area; and (4) whether the Employer should be ordered to pay the Union president's travel expenses and per diem allowances associated with an impasse resolution procedure determined by the Panel.
POSITIONS OF THE PARTIES
1. Compressed Work Schedules
a. The Employer's Position
Essentially, the Employer proposes that the Union withdraw its clause prohibiting coercion of employees related to CWS participation, and also that it retain the right to return the Union president to core hours (five 8-hour days) before engaging in negotiations over terminating the schedule. Since, with a minor exception,(2) this would be the parties' first experience with CWS, the Employer claims no need exists for placing a prohibition against coercion in the policy memorandum on CWS. Furthermore, such a reference might cast a cloud over the memorandum by incorrectly implying that the Employer has previously treated employees in a heavy-handed manner with regard to work schedules. As to the Union president's 4/10 CWS, it would be fairer to treat him in accordance with the same framework agreement terms that apply to employees generally when determining whether to discontinue his participation on a CWS, i.e., if their CWS is to be terminated, they are to be returned to the core schedule at the start of the next pay period. Finally, since his CWS might have an adverse impact on patient care, the flexibility to remove him quickly from the CWS would support the primacy of the hospital's basic health care mission.
b. The Union's Position
Regarding coercion, the Union proposes that:
An employee may not be directly or indirectly intimidated, threatened, or coerced by any other employee for the purpose of interfering with an employee's rights under compressed or alternative work schedules.
As to the Union president, essentially, he would be permitted to remain on the 4/10 CWS during any negotiations over its termination. The Union asserts that the Employer originally agreed to both provisions during a proceeding under the auspices of the Panel, and, therefore, should be bound by that agreement. The clause prohibiting coercion would serve to ensure fair treatment to employees who are permitted such schedules. It also would educate them about such rights under the Federal Employees Flexible and Compressed Work Schedules Act (Act), 5 U.S.C. § 6121 et. seq. Regarding the Union president, since he occupies two unique, part-time positions as chief bargaining-unit representative and sole technician making prostheses in the dental laboratory, allowing him to retain the schedule during any negotiations over a change would prevent sudden disruptions to either activity. In addition, termination would not become a potential pressure tactic to be used during some difficult juncture in the parties' relationship. Recent action by the Employer that precipitously removed him from an identical schedule underscores that possibility, and the need for this more measured procedure.
Having considered the circumstances and arguments on this issue, we conclude that the parties should adopt the Union's proposals to resolve the impasse. Not only do we believe that the Employer should be held to the agreement reached during the previous Panel proceeding which encompassed the two Union proposals, but we also believe that a cautionary reference against coercion may be useful in a hospital setting where scheduling can be a sensitive matter. Also, since the prohibition under the Act relates only to aspects of flexitime programs and not to CWS, without the provision, no specific wording would serve to discourage coercion. As to the Union president's retaining his 4/10 CWS during negotiations, § 6131(c)(3)(D) of the Act requires that the schedule not be terminated until negotiations over its termination, including impasse proceedings, are complete. We are persuaded, therefore, that to do otherwise would effectively waive such rights under the Act, and do not wish to impose such terms on an unwilling party. Furthermore, the argument that the timing of dental technician functions performed by one employee on a part-time basis are as critical to patient care as certain other functions is unconvincing.
2. Scheduling of Weekend National Guard/Reserve Drills
a. The Employer's Position
The Employer proposes, in relevant part:
The Employer will accommodate, to the best of its ability, all military duty schedules of bargaining-unit employees by not requiring the employees to work when the military duty schedules are known in advance by the Employer. The Employer will accommodate, to the best of its ability, any change in military schedules in military training that may occur with regard to bargaining-unit employees.
Additionally, bargaining-unit employees may request a co-worker to cover their work shift if an employee is both scheduled to work and scheduled for military duty on a particular occasion, with the consent of the supervisor.
The Employer encourages employees scheduled for military duty, who know in advance that they are also scheduled to work at the same time, to work out administrative schedules change with their individual military units, to make up drill time so that the scheduling conflict does not occur.
The Employer will act in accordance with rule, law, and regulation in scheduling bargaining-unit employees for military duty.
While the Employer recognizes that the law requires it to release employees who have weekend military training drill obligations, it continues to question the negotiability of the Union's proposed procedure since it would interfere with its right to assign work. On the merits, accommodating the small number of employees who work in thinly-staffed 24-hour-a-day, 7-day-per-week operations such as the police unit and the boiler plant is difficult. Frictions have arisen from repeated requests by one employee in the police unit with such drill duties for an additional weekend off each month. Advance planning and self-help measures to seek a co-worker to fill in or to work out a different schedule with the military authorities should be adequate to reduce or avoid the use of annual leave.
b. The Union's Position
The Union proposes, in relevant part, the following wording:
It is the purpose of this agreement to outline procedures to be followed by the Employer regarding weekend guard drills performed by bargaining-unit employees. The parties hereby agree as follows:
1. When given at least two (2) weeks advance notice, and when there are qualified employees available to perform the necessary work, the Employer shall provide through advance scheduling, days off for employees in the bargaining unit to attend military training drill.
2. If, because of emergency, the Employer is unable to schedule time off for the bargaining-unit employees to attend drills, the Employer shall afford the employee with an alternative work day within the administrative work week to prevent loss of pay or other benefits (annual leave).
3. Upon request, the Union will be afforded a written and specific reason as to why the Employer is unable to schedule time off for an employee to attend a weekend drill.
The Union asserts that its provision, found negotiable by the Federal Labor Relations Authority (FLRA),(3) creates scheduling procedures for the 12 to 15 employees who have weekend military drill duties. Since the Employer is required by law to release employees in such circumstances, through the use of advance planning, employees' schedules can be adjusted so that they are not forced to use annual leave or leave without pay for such purposes. In the past, despite the supervisor's prior knowledge, an employee who works shifts in the police unit often has been required to use earned leave for such purposes.
On balance, having considered the evidence and arguments on the merits of this issue, we conclude that the impasse should be resolved on the basis of the Union's proposal. We agree with the Union that the jurisdictional question raised by the Employer has already been resolved by the FLRA. The Panel is bound by decisions of the FLRA. The procedures that each party proposes appear adequate, in general, for dealing with weekend drill scheduling concerns. In light of previous problems reported by the Union and acknowledged by the Employer related to such scheduling, however, the Employer's qualifying phrase, "to the best of its ability," appears less desirable. Also, whether employees may easily request changes in weekend drill dates from the various military organizations, as the Employer suggests, is unclear. On the other hand, the Union's proposal encourages employees to act in a responsible manner by giving at least 2-weeks' notice of drill obligations to facilitate scheduling.
3. Performance Appraisals
a. The Employer's Position
It proposes, in relevant part:
1A. All standards shall be described in writing at the Fully Successful level.
4A. Employees and supervisors are encouraged to jointly develop performance standards. The rater will have the final determination on performance standards.
4B. When the employee chooses to participate in the development of the standard, such standards must conform with current legal, regulatory, and contractual requirements.
[4C. The Employer does not counter Union 4C, but renumbers its proposals so that its 4C is a section that is not in dispute.]
Preliminarily, the Employer argues that Union 1A, which would require establishing performance standards at an additional level, interferes with its right to direct employees and assign work, and Union 4C would violate employees' rights to privacy. On the merits, the Department of Veterans Affairs, nationwide, provides written standards only at the Fully Successful level. Maintaining the status quo would ensure that the system remains uniform throughout. Currently, without such additional written standards, over 50 percent of the employees at the hospital achieve ratings above the Fully Successful level. In addition, keeping the system simple makes it less burdensome for supervisors to administer. Although the Employer received a number of grievances related to performance matters, most grew out of work by a consultant. He created confusion by suggesting, without prior notification, that employees who were unhappy with their appraisals could give their supervisors a written self-assessment. With respect to the Union's part in performance matters, while the Union should have a role, under the Union's proposals, that role would be so enlarged it would interfere with important one-on-one communication between employee and immediate supervisor about work-related assignments. Finally, when an employee chooses to consult with a Union representative on performance matters, that employee still may do so.
b. The Union's Position
The Union proposes, in relevant part, the following wording:
1A. All standards shall be described in writing at the met and exceptional levels.
4A. Employees, supervisors, and the Union may jointly develop performance standards. The rater will have the final determination on performance standards. Prior to finalization of the standards the Union will be afforded the opportunity for review and comment.
4B. Whether the employee or the Union chooses to participate in the development of the standards, or in the review process, such standards must conform with current legal, regulatory, and contractual requirements.
4C. Employees shall have the right to Union representation at any and all meetings and hearings concerning performance evaluation.
The Union claims that employees have filed grievances over and questioned what might be required to achieve an Exceptional rating. Supervisors respond with vague or diffident answers; they often tell employees that they must "exceed the standard or make a significant major contribution to the agency" to achieve an Exceptional rating. Providing standards at an additional level, however, would be responsive to such concerns; it would force the Employer to be more specific about what it would expect at the higher level, rather than the current "I'll know it when I see it approach." As to representation matters, if the agreement is silent, employees might not recognize that the Union has a legitimate role in consulting with supervisors and employees over development of performance standards and representing employees who have performance problems; in turn, through ignorance, employees might be deprived of needed Union support. Finally, the initial meeting between the employee and the supervisor might take place before the Union representative is called in, and unnecessarily delay Union assistance.
After evaluating the evidence and arguments presented, we shall adopt the Employer's proposal to resolve the parties' dispute over this issue. For this reason, it is unnecessary to address the arguments raised by the Employer concerning the negotiability of the Union's proposal. We do not find that the Union has demonstrated a need that justifies changing the status quo regarding written performance standards at this time. Under the current system, the number of employees who are able to achieve at the higher performance levels suggests that the amount of information communicated is adequate. In regard to the Union's role, since employees would continue to have the option to request Union assistance, and the Union would continue to be consulted concerning changes to the performance system, a broader role appears unwarranted. Furthermore, we share the Employer's belief that direct communication between supervisor and supervisee over performance matters should be encouraged. Under the Union's proposal, such direct efforts might have been crimped rather than fostered.
4. Travel and Per Diem
a. The Employer's Position
The Employer believes that the Union should pay for its own travel and per diem expenses associated with impasse proceedings. Essentially, it argues that imposing such a groundrule at the impasse stage of negotiations would be unfair. Besides siphoning off monies needed for patient care, the parties did not discuss such matters prior to the Panel's determination to hold an informal conference in Washington, D.C. Furthermore, in Department of the Air Force v. FLRA, 877 F.2d 1036 (D.C. Cir. 1989) (Air Force v. FLRA), the Court of Appeals for the District of Columbia Circuit found that the FLRA lacked authority to order employers to cover such expenses.
b. The Union's Proposal
The Union proposes the following:
The Employer/Agency shall bear travel and per diem costs for the Union's representative to attend the informal conference to be at the offices of the Federal Service Impasses Panel, on Friday, November 6, 1992, Re: 92 FSIP 211, 92 FSIP 129.
It states that the Panel has ordered similar provisions in previous cases, and sees no impediment to its acting in the same manner in this case.
Having considered the evidence and arguments on the merits of this issue, we conclude that the impasse should be resolved on the basis of the Union's proposal. This is a provision we impose with due regard for its impact on both parties. Under the facts of this case, however, we believe that equitable considerations, including support for the integrity of the collective bargaining process, require this result. Furthermore, the Employer was in a position to avoid such costs by honoring the agreement its representative reached with the Union during a proceeding held under the Panel's auspices in the antecedent case.(4)
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 the 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: