United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF VETERANS AFFAIRS VETERANS AFFAIRS MEDICAL CENTER NEW ORLEANS, LOUISIANA
AND LOCAL 1904, NATIONAL FEDERATION OF FEDERAL EMPLOYEES	Case No. 95 FSIP 38

DECISION AND ORDER

    Local 1904, National Federation of Federal Employees (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse 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 (DVA), Veterans Affairs Medical Center, New Orleans, Louisiana (Employer, VAMC, New Orleans, or hospital) to terminate a compressed work schedule (CWS).

    Following an investigation of the request for assistance, the Panel determined that the impasse should be resolved on the basis of written submissions from the parties to be followed by a telephone conference with a Panel representative. The parties were advised that if no settlement were reached, the representative would report to the Panel on the status of the dispute. After considering the written submissions and the report, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to the Panel's determination, the parties submitted written statements to the Panel and spoke by telephone with Panel Representative (Staff Attorney) Ellen J. Kolansky on April 5, 1995. The parties did not resolve the dispute during the course of this procedure. Mrs. Kolansky has reported to the Panel and it has now considered the entire record.

BACKGROUND

    The Employer's mission is to provide medical care to veterans and their dependents. The Union represents a bargaining unit of 600 employees at the VAMC. Approximately 8 of 21 social workers who were permitted to work CWS for the last 3 1/2 years will be affected by the outcome of the dispute. They are divided among three departments at the hospital: General Medicine and Surgery, Community Extended Care, and Psychiatry. Their role is vital in discharge-planning conferences, crisis interventions, nursing home and residential care inspections and conferences, and emergency room and other emergency consultations. While some assignments are scheduled, most of the work is performed on a crisis or impromptu basis. The parties are covered by an agreement due to expire on October 31, 1995.

ISSUE AT IMPASSE

    The issue in dispute concerns whether eight social workers should be permitted to continue to work a 4-10 CWS.⁽¹⁾ The issue before the Panel, therefore, is the following:

Whether the finding on which the Employer has based its determination to terminate the 4-10 CWS is supported by evidence that the schedule has caused an adverse agency impact as defined under the Act.⁽²⁾

POSITIONS OF THE PARTIES

1. The Employer's Position

    Essentially, the Panel should find that the evidence on which the Employer bases its determination to terminate the 4-10 CWS establishes that the schedule has caused an adverse agency impact as defined under the Act. Lowering the hospital's costs is directly linked to reducing the length of patients' stays; such stays at VAMC, New Orleans, exceed the national DVA average. Discharge planning is the key to reducing such times; social workers must maximize their availability, especially in the discharge area, by working regular hours (7 or 7:30 a.m. to 4 or 4:30 p.m.). After 4 or 4:30 p.m., there is a much reduced need for their services; the administrative staffs that social workers contact at most outside agencies, and nursing and extended care homes, have left by this time. In addition, during the 3 1/2 years that social workers have been on CWS, the Employer has received numerous complaints from physicians, family members, and patients about the difficulty of reaching them. Furthermore, the Joint Commission, a private hospital accrediting group, rated intake and the General Medicine and Surgery Department at the lowest level it gives, in part, because of the problems associated with social workers. While social workers perform well when they are present, the problem is that they are not present enough of the time when they are on CWS. Regarding sick leave use under CWS, records show that the amounts used actually increased. Furthermore, there was a tendency by some to use unplanned sick leave the day before or the day after the CWS off day.

2. The Union's Position

    The Union basically proposes that the Panel find that the 4-10 CWS for social workers has not had an adverse agency impact. While it is true that problems exist, social workers are committed to patient care, and the CWS is not the cause of such problems. "[D]eclines may be more of a reflection of [m]anagement's ability to manage staff, resources, and overall functioning of [the] department." Regardless of whether employees are on CWS or not, social workers from other areas frequently are pulled in to cover for those who are away on leave or consulting with other patients. Problems related to coverage represent a fact of life in this service where many contact needs arise on short notice. The Employer has contributed to such difficulties by increasing the demands for social workers' services without increasing the size of the staff. Since the Employer has diminished their availability, the Panel should not be persuaded to terminate the schedule based on the "evidence" presented. Regarding leave usage, problems in this area may stem more from the aging staff with increased health problems than attempts by employees to extend CWS off days. Moreover, the Union is unaware of complaints about social workers' being unavailable to doctors, patients, and patients' families. Notwithstanding the Employer's allegations that complaints are made, social workers' performance ratings are in the fully successful to outstanding range. If the Employer wants to terminate CWS, it should be for cause and tailored to those positions and duties such as Community Extended Care that may not be suitable for such schedules rather than eliminating CWS entirely.

CONCLUSIONS

    Under § 6131(c)(2) of the Act, the Panel is required to take final action in favor of the head of the agency's or, in this instance, his delegatee's determination to terminate the CWS if the finding on which it is based is supported by evidence that the schedule has caused an "adverse agency impact." The Act's legislative history clearly indicates that the Employer bears the burden of proving adverse impact.⁽³⁾

    Having considered the record before us, we find that the Employer has not met its statutory burden. In this regard, the record provided by the Employer is insufficient; it lacks credible evidence to establish that the 4-10 CWS for eight social workers has decreased productivity or services to the public or increased costs as contemplated by the term "adverse agency impact." For example, the Employer's evidence does not show conclusively that the 4-10 CWS has significantly interfered with social workers' availability. While the record contains graphs that show VAMC, New Orleans, experiences higher costs stemming from patients' length of stay than the national average, the graphs do not tie such costs to the 4-10 schedule; neither is collateral evidence presented that makes such a connection. Although complaints are mentioned, no documents are provided to substantiate the existence, frequency, or nature of such complaints, nor are discharge or other records shown which might directly link any availability problems stemming from the CWS to unnecessarily long hospital stays. Finally, the Employer states it received a low rating from the Joint Commission, but fails to provide the rating documents which might reveal whether there is a nexus between the rating and the schedule. Accordingly, we shall take final action in favor of the Union's position that social workers should be restored to the 4-10 CWS they enjoyed prior to the Employer's termination of the schedule.

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 Employer to restore affected employees to the 4-10 CWS.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

April 19, 1995

Washington, D.C.

 

1.Under the 4-10 CWS, employees work 4 10-hour days and have 1 permanently-assigned day off each week.

2.Under § 6131(b), "adverse agency impact" is defined 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). 

The burden of demonstrating that implementation of a proposed CWS is likely to cause an adverse agency impact or, as in this case, that an existing CWS has had an adverse agency impact, falls on the employer under the Act. In the instant case, the head of the agency specifically delegated the authority to make the requisite finding under the Act to the hospital's director.

3.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).