United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF VETERANS AFFAIRS ALEDA E. LUTZ MEDICAL CENTER SAGINAW, MICHIGAN
and LOCAL 2274, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 97 FSIP 64

DECISION AND ORDER

    Local 2274, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse between it and the Department of Veterans Affairs, Aleda E. Lutz Medical Center, Saginaw, Michigan (Employer) resulting from an agency determination to terminate the compressed work schedules of three employees under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. §§ 6120-6133.

    Following investigation of the request for assistance, the Panel determined that the impasse should be resolved on the basis of a single written submission from each party. Written statements were submitted pursuant to this procedure, and the Panel has now considered the entire record.

BACKGROUND

    The Employer provides medical treatment to veterans in the Saginaw area. The Union represents, at the local level, approximately 400 professional and nonprofessional employees who work in a wide variety of occupations; the employees are part of a nationwide unit which is represented by AFGE. The parties are governed by the master agreement between VA and AFGE which was implemented in March 1997; there is also a local supplemental agreement currently in place.

    Prior to 1996, alternative and compressed work schedules at the facility were implemented through separate agreements between individual employees and the Employer. In September 1996, the parties conducted a review of unit positions at the facility to determine which compressed schedules, if any, should be eliminated. Following this review, the parties signed several agreements which identified those compressed schedules which would be eliminated and those that would be retained.⁽¹⁾ There is no dispute that these agreements superseded the individual agreements which originally established alternative and compressed schedules for unit employees.

    The three employees affected by this dispute work in the Engineering Division of the Facilities Management Service. Two employees (one electrician and one medical equipment mechanic) formerly worked 4-10 schedules; the third employee (an air conditioning and refrigeration repairman) formerly worked a 5-4/9 tour. Although the above-referenced agreements retained these employees’ compressed tours, the Employer, on December 6, 1996, placed each of them on a 5-day per week, 8-hour per day schedule.

ISSUE

    In accordance with section 6131(c)(3)(C) of the Act, the sole issue in dispute is whether the finding on which the Employer has based its determination to terminate the employees’ compressed work schedules is supported by evidence that the schedules have caused an adverse agency impact.⁽²⁾

POSITIONS OF THE PARTIES

1. The Employer’s Position

    The Employer maintains that the affected employees were removed from their compressed work schedules because of staffing reductions in the Facilities Management Service. These reductions occurred as a result of other employees accepting buyouts. To meet operational needs, duties were reassigned and work schedules were changed. The Employer concedes that because the affected employees’ schedules were changed at the time of the staff reductions, "there was no adverse agency impact." It argues, however, that any change to the current schedule would result in a disruption to service, undue hardship on other staff members, and an increase in overtime costs.

2. The Union’s Position

    The Union concedes that it agreed to abolish some compressed work schedules so that other unit employees would be allowed to accept buyouts. However, since the parties had agreed to retain the compressed tours of the affected employees, the Employer acted in bad faith by unilaterally terminating them.

CONCLUSIONS

    Under section 6131(c)(3) of the Act, the Panel is required to take final action in favor of the agency determination if the finding on which the determination is based is supported by evidence that a compressed work schedule has caused adverse agency impact. Having considered the record before us, we conclude that the Employer has not met its statutory burden. In this regard, the documents provided by the Employer contain no credible evidence to establish that the affected employees’ compressed schedules have resulted in decreased productivity, a diminished level of services to the public, or increased costs to the agency.⁽³⁾ To the contrary, the Employer candidly admits that "there was no adverse agency impact." While the Employer would have us uphold its determination on the basis of potential adverse impact, such a decision would be contrary to the plain wording of the Act.

    In cases such as this where the Panel determines that an agency finding is not supported by evidence that a compressed schedule has caused adverse agency impact, the Panel, under section 2472.11(b) of its regulations, is required to take "whatever final action is appropriate." In this case, the Employer has already implemented its decision and has placed the affected employees on 5-day per week, 8-hour per day schedules. Given this circumstance, we are persuaded that restoring the affected employees to their prior schedules is the "appropriate final action" which should be taken. Accordingly, we shall issue an order which is consistent with this decision.

ORDER

    Pursuant to the authority vested in it by section 6131(c) of the Federal Employees Flexible and Compressed Work Schedules Act, the Federal Service Impasses Panel, under section 2472.11(b) of its regulations, hereby orders the Employer to restore the three affected employees to their previous compressed work schedules.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

June 16, 1997

Washington, D.C.

 

1.The agreements were dated September 12, 1996; October 10, 1996; and December 4, 1996.

2.5 U.S.C. § 6131(b) 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).

Under section 6131(c)(3) of the Act and section 2472.11(a)(2) of its regulations, the Panel is required to take final action in favor of the agency head’s (or his delegatee’s) determination to terminate a 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. If, however, the finding on which the determination is based is not supported by evidence that the schedule has caused adverse impact, the Panel, in accordance with section 2472.11(b) of its regulations, shall take “whatever final action is appropriate” to resolve the impasse. The Act’s legislative history clearly indicates that the Employer bears the burden of proving adverse agency impact.

3.There are other deficiencies in the Employer’s position as well. First, no “finding” of adverse agency impact was made prior to the determination to terminate the affected employees’ compressed work schedules. The only documentation to this effect provided by the Employer was a statement prepared by its representative which describes the potential adverse consequences of allowing the affected employees to remain on compressed schedules. Since this document appears to have been generated for purposes of this proceeding after the Employer’s decision was implemented, it could not have served as a basis for the decision to terminate, as required by the Act and the Panel’s implementing regulations.

The Employer’s position is further weakened by the fact that the management official who made the decision to terminate did not appear to have the appropriate delegation of authority from the agency head. In this regard, VA regulations vest the authority to terminate compressed work schedules in the facility director; in this case, however, the decision to terminate the affected employees’ schedules was made by the assistant director, with the director concurring after the fact. Since no documentation was provided to demonstrate that the assistant director had been delegated the authority to make this decision, it appears that the termination decision is questionable on this basis as well.