United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Local 2110, American Federation of Government Employees (AFGE), AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Veterans Affairs (VA), Palo Alto Health Care System, Palo Alto, California (Employer or Agency).

    The Employer operates three hospitals which provide inpatient and outpatient health care services to veterans in Northern California. The Union represents approximately 2,000 General Schedule, Wage Grade, and nonappropriated-fund employees at the Menlo Park and Palo Alto facilities, which have "multiple psychiatric wards, post traumatic stress disorder programs, and alcohol and drug rehabilitation units."⁽¹⁾ These employees, who occupy a variety of nonprofessional positions, are part of a nationwide bargaining unit of approximately 99,000 employees. The parties will continue to be covered by a national collective-bargaining agreement (CBA) between AFGE and VA which expired in December 1995, until a successor is implemented; successor negotiations are in progress.

    Preliminarily, we address the Employer’s argument that the Panel should relinquish jurisdiction over this case because it has no duty to bargain over the Union’s proposal:

    In general, in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell) and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3 (1991)(Bureau of Reclamation), the Authority has established the obligations and limitations relating to the Panel’s authority to resolve impasses which include duty-to-bargain issues.⁽³⁾ In this case, the Employer argues that the Union’s proposal is nonnegotiable because it violates Governmentwide regulations, and infringes on management’s rights to assign work, and determine its mission and internal security practices. It has made these arguments at all stages in the Panel’s case processing. The Union contends that the Employer’s arguments are without merit. In this regard, there is longstanding Authority precedent finding that a management decision to eliminate a shift and assign employees to another shift (i.e., changing employees’ tours of duty) concerns the number of employees assigned to a tour of duty and, therefore, is a § 7106(b)(1) matter negotiable at the Employer’s election.⁽⁴⁾ Even assuming that the Union’s proposal also infringes on a number of the Employer’s § 7106(a) rights, it nevertheless remains negotiable at the Employer’s election in light of the Authority’s decision in National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA No. 36 (October 31, 1995), Report No. 871. In that case, the Authority found that where a proposal addresses matters that come within the purview of both § 7106(b)(1) and 7106(a), the former governs the negotiability of the proposal.⁽⁵⁾ While the Employer has not specifically elected to negotiate over the Union’s proposal, it is nevertheless required to do so pursuant to Sec. 2.(d) of the President’s Executive Order 12871, "Labor-Management Partnerships," issued October 1, 1993 (58 Fed. Reg. 52201-52203, Oct. 6, 1993).⁽⁶⁾ Consistent with the guidance contained in Carswell and Bureau of Reclamation, because there is Authority precedent establishing that proposals substantively identical to the Union’s in this case concern (b)(1) matters, we conclude that there is no merit to the Employer’s jurisdictional argument. Accordingly, we will proceed to the merits of the dispute.

ISSUES AT IMPASSE

    The parties disagree over (1) when the 12-hour shifts should be eliminated (immediately or when PSSD is at full staffing) and (2) what the starting and quitting times for each of the three 8-hour shifts should be.

POSITIONS OF THE PARTIES

1. The Union's Position

    Under the Union’s proposal, police officers would continue to work the established 12-hour shifts until the PSSD is at full staffing, at which time they would work one of the following 8-hour shifts: 10 p.m. to 6 a.m. (Watch "A"); 6 a.m. to 2 p.m. (Watch "B"); and 2 p.m. to 10 p.m. (Watch "C"). Implementation of 8-hour shifts must wait until the PSSD is fully staffed because they could not be covered "safely" at the current staffing level. Specifically, the safety of officers would be compromised because they would be working without "back-up." This would be a violation of Article 24, § 1, of the CBA, which requires the Employer to provide employees with "places and conditions of employment which are free of recognized hazards that ... are likely to cause death or serious physical harm to employee[s]." Contrary to the Employer’s argument, 12-hour shifts provide "better coverage" (seven officers as compared to four or five under 8-hour shifts) and require less use of overtime. In fact, those were the reasons the Employer switched to 12-hour shifts from 8-hour shifts in 1989. Moreover, officers would not be more "alert" under 8-hour shifts because they would still have to work 12- to 14-hour days to meet staffing needs on each shift due to the staffing shortage. With regard to the overtime comparison chart submitted by the Employer, it is a "farce" because records of overtime use are kept for only 3 months. This makes it impossible to get a reliable comparison of overtime use and costs under the 8-hour shifts worked prior to 1989 and under the 12-hour shifts worked since then. Also, the period of time used for comparison purposes is too short to obtain reliable figures. The 6 a.m. starting time for Watch "B" would facilitate the commute of employees scheduled for that shift by allowing them to avoid a period of heavy traffic congestion.⁽⁷⁾ The Employer’s proposed 8 a.m. start time for that shift, on the other hand, would pose an "unnecessary hardship" and would be "inhumane." Finally, adoption of the Employer’s proposal would lower morale because the Union’s proposed starting and quitting times for the 8-hour shifts as well as 12-hour shifts are preferred by an "overwhelming" majority of police officers.

2. The Employer's Position

    The Employer proposes that police officers immediately begin working one of the following three 8-hour shifts: 12 a.m. to 8 a.m. (Watch "A"); 8 a.m. to 4 p.m. (Watch "B"); and 4 p.m. to 12 a.m. (Watch "C"). Under current staffing levels, "almost" five officers would work every 8-hour shift as compared to the three and one-half that are working each 12-hour shift. In addition to permitting "more coverage" on each shift, 8-hour shifts would allow for more officers to work every 24 hours, which would be a greater deterrent to crime. Also, by working shorter shifts, officers would be more alert towards the end of their shift and, therefore, better able to protect themselves and other persons and property on the Employer’s premises; this is supported by "authoritative studies" which show that employees’ alertness and productivity decrease after 8 hours of work. The proposed 8-hour shifts would reduce overtime use and costs. In this regard, its overtime comparison chart shows that overtime use and costs during a specific period covering eight pay periods would have been reduced by more than half had employees been working its proposed 8-hour shifts, rather than 12-hour shifts. Moreover, for internal security reasons, a change in shift for police officers cannot coincide with a major shift change for medical personnel. Because there is a major shift change for nurses at 7 a.m., an 8 a.m. start time for officers on Watch "B" would "more effectively create [the needed] off-set." Further, the dusk to dawn "high crime period" would be "more effectively" covered by two 8-hour shifts (two different groups of employees covering the period at different times) than by one 12-hour shift (the same employees covering the entire period). Finally, implementation of 8-hour shifts would allow for establishment of upward mobility positions, which would benefit employees.

    The Union’s proposal would be "disruptive" because a change in shift at 2 p.m. falls within (1) the "peak period of visitor hours and vendor appointments" (1 to 3 p.m.) and (2) the period of time (early afternoon) when the highest number of security calls are received from the emergency rooms and the psychiatric wards. It also would require a greater expenditure of funds for overtime for a number of reasons. First, the Union’s proposed 6 p.m. to 6 a.m. 12-hour shift and 10 p.m. to 6 a.m. 8-hour shift "build in" overtime for employees who work Sundays. Because they "cross over" to a new pay period every 2 weeks, employees work less than 80 hours one pay period and more than 80 the next. Second, coverage of a shift on overtime under 12-hour shifts requires payment of 12 rather than 8 hours of overtime. Third, the last 4 hours of employees’ 8-hour days under 12-hour shifts must be on overtime. The "cross over" every two pay periods also "creat[es] fiscal and accounting problems for the Agency as well as employees."

CONCLUSIONS

    After carefully examining the evidence and arguments presented by the parties, we are persuaded that the Employer’s proposal provides the better basis for resolving this dispute. At the outset, we note that the Union’s contention that 12-hour shifts would provide better coverage than 8-hour shifts appears to be inaccurate. In this regard, while seven officers (under current staffing levels) are assigned to work each of two 12-hour shifts, not more than three or four are scheduled to work on any given day because they work only 7 out of 10 days in a biweekly pay period. In our view, the Employer’s proposed 8-hour work shifts should allow for more effective round-the-clock coverage of the hospitals without compromising officers’ safety, while reducing overtime costs. These benefits to the Employer, as well as to hospital patients and visitors, outweigh the inconvenience some officers may experience in longer commuting times. Accordingly, we shall order its adoption.

    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 proceedings instituted pursuant to 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:

    The parties shall adopt the Employer’s proposal.

By direction of the Panel.

Linda A. Lafferty

Executive Director

March 20, 1996

Washington, D.C.

1.Employees at the third facility located in Livermore are represented by another union.

2.There is no dispute that the PSSD is not at its full staffing level (21 officers). The Employer is in the process of hiring 5 additional officers, which would bring PSSD staffing up to 19 officers in the very near future. New hires will receive training for 1 month, followed by on-the-job training.

3.Carswell allows the Panel to resolve duty-to-bargain issues raised in impasse proceedings where there is existing Authority precedent to apply; Bureau of Reclamation allows such resolution even where an employer’s negotiability arguments are different from those previously addressed by the Authority.

4.See U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 41 FLRA 56, 60 (1991); National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA 479, 484-85 (1991); and Department of the Air Force, Scott Air Force Base and National Association of Government Employees, Local R7-23, 33 FLRA 532, 542-43 (1988) aff’d on other grounds sub nom. National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990).

5.See also Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150 (D.C. Cir. 1994).

6.That provision of the Executive Order requires heads of Federal agencies to “negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1), and instruct subordinate officials to do the same[.]” The Employer has not challenged its duty to bargain over (b)(1) matters under the Executive Order. On the contrary, in its unsolicited brief, it states: “As to 7106(b)(1) issues, [the Executive Order] appears to change the discretionary aspect of negotiations ... to a mandatory obligation to negotiate.”

7.By way of explanation, the Union notes that 7 of the 14 officers do not live in the Menlo Park/Palo Alto area because the cost of housing is very high. Rather, most of them live anywhere from 25 to 135 miles away across San Francisco Bay, which requires them to cross any one of three bridges to get to work. Traffic congestion on those bridges is at its peak between 7:30 and 9 a.m.