United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
| In the Matter of
DEPARTMENT OF VETERANS AFFAIRS EDITH NOURSE ROGERS MEMORIAL HOSPITAL BEDFORD, MASSACHUSETTS |
|
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and LOCAL R1-32, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO |
Case No. 94 FSIP 97 |
DECISION AND ORDER
Local R1-32, National Association of Government Employees, SEIU, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) pursuant to the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. § 6120 et seq., to resolve an impasse arising from the determination of the Department of Veterans Affairs, Edith Nourse Rogers Memorial Hospital, Bedford, Massachusetts (Employer or hospital) not to establish a compressed work schedule (CWS) as proposed by the Union.
After investigation of the request for assistance, the Panel determined that the impasse should be resolved pursuant to written submissions from the parties, with the Panel to take final action in accordance with § 6131(c) of the Act and § 2472.12 of its regulations. A written submission was made only by the Employer pursuant to this procedure and the Panel now has considered the record in its entirety.
BACKGROUND
The Employer operates a psychiatric hospital with a patient population of 670. It includes approximately 30 buildings spread out over 17 acres in a rural area. While its overall mission is to provide medical care to eligible veterans and their dependents, it is also responsible for securing the safety of all persons and property on its premises. The Union represents approximately 900 General Schedule and Wage Grade employees in 2 separate bargaining units (professionals and non-professionals, respectively). The parties are covered by a national collective-bargaining agreement (CBA) due to expire in May 1995.
This CWS dispute apparently arose during Union-initiated mid-term bargaining. It concerns 10 police officers who are responsible for maintaining hospital security and law enforcement operations. At present, they are working standard 8-hour shifts on a rotating basis (4 months on "base," 2 months on "off" shift).(1)
ISSUE AT IMPASSE
The sole question before the Panel is the following:
Whether the finding on which the Employer has based its determination not to establish the Union's proposed CWS is supported by evidence that the schedule is likely to cause an adverse agency impact as defined under the Act.(2)
POSITIONS OF THE PARTIES
1. The Union's Position
In essence, the Union proposes a 5-4/9 CWS(3) in which the officers assigned to each of the three shifts (watches) would alternate working the following hours on a monthly basis: (1) on "A" shift, 11 a.m. to 8 p.m. and 10 a.m. to 7 p.m.; (2) on "B," 7 a.m. to 4 p.m. and 6 a.m. to 3 p.m.; and (3) on "C," 3 to 12 p.m. and 2 to 11 p.m. Regardless of the shift, two officers would always work the same hours.(4) The schedule would increase police visibility by 60-plus hours per week and during shift changes, notwithstanding that the number of days when only two officers would be on duty would increase from 138 to 180. Annual leave schedules and training assignments would reduce police visibility with or without a CWS in place and, therefore, are not factors that should be considered in evaluating the proposed schedule. At present, when only two officers are on duty during any given shift due to leave schedules or training assignments, the Employer is not scheduling a third officer on overtime to provide the "proper level of service." Overtime should not be considered a "main factor" against implementation of the proposed schedule because the need for officers to work overtime would exist regardless of the work schedule in place. In fact, the proposed schedule should reduce annual leave usage and, hence, the need for overtime. The Employer's concern for officer "readiness and alertness" is disingenuous. In this regard, in violation of the CBA, the Employer has in the past required officers to work double shifts or to "doubl[e] back from one shift to another" (i.e., for example, work the 7 a.m. to 3 p.m. shift and return for the 11 p.m. to 7 a.m. shift).
2. The Employer's Position
Preliminarily, "there is a direct relationship between visibility of officers and the crime rate. As visibility increases, the crime rate decreases." It is, therefore, "extremely important" in deterring crime and maintaining the safety of patients, employees, and visitors that police visibility be maintained or increased, but particularly so for a rural psychiatric hospital with a large patient population spread out over many buildings where "disturbances, arrests, and drug possession" have been on the rise since 1991. Under the Union's proposed CWS the number of shifts with three or more officers on duty would decrease from 314 to 202 between May 1 and November 1, 1994.(5) This amounts to a 64-percent reduction in police visibility during a 6-month period, which would diminish the level of police and security services at the hospital. Contrary to the Union's argument, the overlapping of officers on shift changes would not "provide for overall increased visibility." Rather, it would "exacerbate" the existing problem with reduced visibility due to officers' absence for training and leave. During that same 6-month period, the proposed schedule would also increase "the possibility of overtime" by 61 percent because the number of days when only two officers would be scheduled for duty would increase from 164 to 268. This would result in a 30-percent ($10,250) increase in overtime costs per year. Moreover, the longer hours officers would work under the proposed CWS would reduce their "readiness and alertness." This situation would be further worsened if officers are required to work a second 9-hour shift on overtime.
CONCLUSIONS
Under § 6131(c)(2) of the Act, the Panel is required to take final action in favor the Employer's determination not to establish the proposed CWS if the finding on which it is based is supported by evidence that the schedule is likely to cause adverse agency impact. The Act's legislative history clearly indicates that the Employer bears the burden of proving adverse impact.(6)
Having considered the record before us, we find that the Employer has met its statutory burden and thus need not negotiate over the merits of the proposed CWS. In this regard, the Employer has provided sufficient evidence that the proposed schedule is incompatible with its responsibility for ensuring the safety and security of hospital patients, visitors, employees, and property. It is undisputed that increased police presence and visibility are proven deterrents to crime. It is also undisputed that the number of shifts when three or more officers are on duty would decrease significantly under the proposed CWS, thereby compromising the Employer's ability to deter criminal activity and handle everyday security needs within its premises.
The Union's argument that police visibility would increase under the proposed schedule, on the other hand, is unsupported by the evidence; in fact, the opposite appears to be true. While the overlapping of shifts would create an increased police presence during the first hour of every shift, less than a full complement of officers would be on board every day since they would work 1 less day in a biweekly pay period. Also, the proposed schedule would aggravate the Employer's current problem with maintaining necessary shift coverage resulting from training and leave demands, which the Union recognizes. It would require officers to work more overtime to maintain required staffing levels, which may impair their fitness for duty. In turn, this would make the hospital more vulnerable to all types of crimes, and risk officer and public safety. Accordingly, we shall take final action in favor of the Employer's determination and order the Union to withdraw its proposed CWS.(7)
ORDER
Pursuant to the authority vested in it by the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. § 6131(c), the Federal Service Impasses Panel, under § 2472.12(a) of its regulations, hereby orders the Union to withdraw its proposal.
By direction of the Panel.
Linda A. Lafferty
Executive Director
November 16, 1994
Washington, D.C.
1.The three officers assigned to "A" watch (shift) work from 11 p.m. to 7 a.m. (without a 1/2-hour break off the clock), the four assigned to "B" watch work from 7 a.m. to 3:30 p.m. (with a 1/2-hour lunch break off the clock), and the three assigned to "C" watch work from 3 p.m. to 11 p.m. (without a 1/2-hour lunch break off the clock). Under agencywide regulations, psychiatric hospitals must have a minimum of two officers on duty at all times. MP-1, part 1, chapter 2, section B.11.c.(6). Other factors to consider in police staffing include (1) size and physical dispersion of the facility and (2)"environmental crime conditions." Id. Rotating shift schedules are called for under MP-1, part 1, chapter 2, section B.11.c.(8).
2.Section 6131(b) of the Act defines "adverse agency impact" as --
(1) a reduction of the productivity of the agency;
(2) a diminished level of the 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 work schedule).
3.Under a 5-4/9 CWS, during a biweekly pay period, an employee works 9 hours a day for 8 days, 8 hours on 1 day, and has 1 day off.
4.Even though not specified in the Union's proposal, logic dictates that officers' days off would have to be scattered if a minimum of two are to be on duty each shift as required by regulation.
5.The Employer also submitted a graph illustrating that, over 44 shifts, the number with 3 police officers on duty is 174 percent greater under the current schedule.
6.See 128 CONG. REC. H3999 (daily ed. July 12, 1982)(statement of Rep. Ferraro); and 128 CONG. REC. S7641 (daily ed. June 30, 1982)(statement of Sen. Stevens).
7.We note that the Union did not submit an initial position statement and neither party submitted a rebuttal.