In United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

DECISION AND ORDER

    Local 85, 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 under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Veterans Affairs (VA) Eastern Kansas Health Care System, Dwight D. Eisenhower VA Medical Center, Leavenworth, Kansas (Employer or Medical Center).

    After investigating the request for assistance, the Panel determined that the dispute, which arises from bargaining over the Employer’s decision to create an Assistant Fire Chief position, should be resolved through an informal conference between a Panel representative and the parties. If no settlement was reached, the parties were informed that the Panel would take whatever action it deemed appropriate, including the issuance of a final and binding decision. In accordance with the Panel’s procedural determination, Supervisory General Attorney Ellen J. Kolansky met with the parties on January 12, 2000, at the Panel’s offices in Washington, D.C. Although the parties settled four issues, the two main issues remained unresolved.⁽¹⁾ Accordingly, the parties submitted their final offers and supplemental statements on related regulations and budget matters. The Panel has now considered the entire record.

    The Employer is one of two medical centers in the Eastern Kansas Health Care System. It provides health care services to eligible veterans through hospitals, "community-based" and "rotating" outpatient clinics, a nursing home, and a domiciliary psychiatric facility; it also operates the Leavenworth National Cemetery. The Union represents about 408 Wage Grade (WG) and General Schedule (GS) employees who are part of a nationwide, consolidated bargaining unit of about 112,000. Food service worker, housekeeping aide, and laundry worker are the main positions of WG employees; nursing assistant, medical clerk, pharmacy technician, and licensed practical nurse are the primary occupations of GS employees. Currently, the Fire Department consists of 15 employees: a Fire Chief (GS-12, supervisor); three lead firefighters (GS-7, Captains); four firefighters (GS-6, drivers/operators); and seven firefighters (GS-5, non-bargaining unit term appointments). The parties are covered by a master collective-bargaining agreement (MCBA) between the VA and the American Federation of Government Employees, AFL-CIO, and a local supplemental agreement, both due to expire on March 21, 2000.

    The parties disagree over: (1) how many firefighters there should be and (2) whether the seven firefighter positions should remain term appointments or be made permanent.⁽²⁾

1. Fire Department Staffing Level

    a. The Employer’s Position

    Under the Union’s proposal, "the Leavenworth Fire Department staffing shall consist of Fire Chief-1; Assistant Fire Chief-1; Captains-3; Firefighters-11." While the Union would retain the current number of firefighters, that number would decrease by one under the Employer’s proposal. In the profession, it is considered inappropriate for an Assistant Fire Chief, who is occupied with supervisory tasks, to perform firefighter duties on a "regular and recurring" basis. Nor do the regulations contemplate that a small department like the one at Leavenworth take the step of establishing an Assistant Fire Chief position, or counting that position as a firefighter position. Such positions are always viewed as being in addition to the firefighting staff. Furthermore, the Assistant Fire Chief cannot both perform firefighter duties and rotate through the shifts to adequately appraise firefighters’ performance. If the Assistant Fire Chief is needed, as the evaluation report indicates, it is because the Fire Chief, who also has managerial duties at the Chiller plant, needs assistance with approving leave and appraising employees’ performance.

    Having carefully reviewed the evidence and arguments presented, we conclude that the parties should adopt the Union’s final offer to resolve their dispute over staffing levels. The record developed by the parties establishes that staffing at fire departments within the VA is a subject addressed in agency and OSHA regulations. The requisite staffing level under VA regulations is 15 employees: a Fire Chief and 14 firefighters. We calculate, however, that the staffing level the Employer proposes would result in a Department of 14.5 employees, .5 short of the number needed. Our calculation is based on the June 30 to July 2, 1998, evaluation report of fire protection services at the facility, prepared by the VA’s Fire Department Program Manager. The report states that the Fire Chief, who also works as maintenance foreman at the Chiller Plant, is "only functioning in that position for approximately 50 percent of the time." Other evidence, which recognizes that the Fire Chief needs assistance in supervising the 24 employees under his direction at the two activities, including the statement of the personnelist engaged in classifying the Assistant Fire Chief position, corroborates this view.

    The parties appear to have framed their dispute in terms of whether the Employer’s proposal is consistent with applicable regulations. In our view, however, the real issue is whether the Employer’s proposed staffing levels would ensure that the Department’s firefighting responsibilities are met. That the Fire Chief and other members of the Department communicate by two-way radio, as the Employer explains, does not overcome our concerns in this regard. Furthermore, even though the number of fires at the Medical Center is low, staffing levels must be sufficient to meet exigencies as they arise. For these reasons, we conclude that the staffing level the Union proposes is more certain to meet such needs. Therefore, we shall order adoption of the Union’s proposal.

2. Permanent versus Term Positions⁽³⁾

    a. The Employer’s Position

    The Employer proposes that management "review each term or temporary appointment as it is vacated to determine appropriateness for permanent appointment." Applicable regulations specify that when VA facilities are "within the corporate limits of a local political subdivision . . . having legal responsibility for providing public firefighting services, such services shall be utilized" if the fire department is "within 3½ miles of an entrance to the facility" and meets staffing requirements.⁽⁴⁾ Where feasible, the regulations also require entering into mutual aid agreements with other fire departments located within 5½ miles.⁽⁵⁾ Although the City of Leavenworth has previously refused to provide fire protection services for the Medical Center, several changes make it more likely that the City will now agree to do so. These factors are: (1) receiving approval to demolish some 37 empty buildings on the Hospital’s campus; (2) decreasing the inpatient population through the greater concentration of inpatient care at the Topeka VA Medical Center; and (3) reliance on more outpatient clinics. Since the future of the Fire Department is so uncertain, it would be imprudent to rely on permanent employees as the Union proposes. Furthermore, extensive use of permanent positions is inconsistent with what the Employer is doing with regard to other positions in the Eastern Kansas region; few permanent employees are being hired in the hospital. In addition, turnover rates are not increasing, term positions are being filled as necessary, and the quality of the Department’s performance, as assessed in the evaluation report, is good.

    The Union’s proposal to make the seven term firefighter positions permanent also is legally deficient. In this regard, it interferes with management’s right to determine its budget. Moreover, to the extent that the proposal requires "current term employees [to] be placed non-competitively into permanent positions," it infringes on management’s statutory right to make selections for positions from any appropriate source.⁽⁶⁾

    b. The Union’s Position

    The Union’s proposal reads:

The existing fire fighter positions which are now filled by incumbents under term appointments shall be filled by individuals under permanent appointments as soon as this can be achieved in a manner consistent with the options and choices available to the agency under applicable laws and regulations.

Converting term firefighter positions to permanent positions is appropriate because of the ongoing need to provide in-house fire protection services at the Medical Center. In this regard, on April 7, 1994, the Kansas State Legislature, at the request of the City of Leavenworth, "de-annexed" the Medical Center. By this step, the City avoided a legal requirement to provide firefighting services to the Medical Center, which is within the City limits. The Employer’s claim that the City will relent and eventually provide such services represents a false hope. This hope is grounded in the expectation that the hospital campus can be reduced by the demolition of some 37 empty buildings. In a December 12, 1999, article, the Leavenworth Times reported that the Medical Center is listed on the National Register maintained by the National Park Service, requiring preservation of the structures the Employer wishes to tear down.

    In light of the continuing need to provide in-house firefighting services, the Employer’s reliance on term positions is inconsistent with Office of Personnel Management regulations governing the use of term employees. The lack of permanent positions also is having a negative impact on employee morale and retention rates. This is illustrated by the fact that no one internally will apply for the Assistant Fire Chief position because employees recognize that turnover is making it difficult to manage the Department. Since 1995, the last year when these positions were permanent, approximately 13 temporary or term employees have been hired; 7 of these later left; one employee remained for 5 years, another for 2 years. The most recent departure was an excellent term employee who had worked as a temporary, and later as a term employee, for a total of 4 years. He left because he felt he could not meet family obligations with the insecurity of a term position. Adding to the Department’s instability, it takes up to 90 days to fill these vacancies. For all of these reasons, its proposal should be adopted.

    Having considered the evidence and arguments provided by the parties on this issue, we are persuaded that the Employer’s proposal should be adopted to resolve their dispute. While the Union has raised doubts about the likelihood that the City of Leavenworth will agree to take over the firefighting function for the Medical Center, the VA’s policy is to work toward such arrangements in all cases. In view of such policy considerations, and that non-permanent positions are becoming the rule rather than the exception as the Medical Center restructures the way it provides services, we believe that the Employer has demonstrated a need to retain discretion over whether the seven firefighter positions will remain term or be made permanent. It is also unclear whether the turnover rate and morale problems the Union reports are so severe as to justify a different outcome. Accordingly, the Employer’s proposal shall be adopted to resolve this issue.⁽⁷⁾

ORDER

    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:

1. Staffing Levels

    The parties shall adopt the Union’s proposal.

2. Permanent versus Term Positions

    The parties shall adopt the Employer’s proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

March 15, 2000

Washington, D.C.

1.The settlement included agreements on sleeping quarters and firefighter training; the Union agreed to withdraw proposals that would have required the Employer to (1) identify bargaining-unit positions to be eliminated and (2) ensure that the Assistant Fire Chief be Department of Defense (DoD) certified.

2.While the parties were engaged in bargaining, the Employer converted seven firefighter positions from temporary to term status.

3.At the time of the informal conference, two of the term positions were vacant; one candidate had been selected, but had not yet passed the physical examination.

4.MP-3, Part III, paragraphs 34.04, generally, and 34.04c.

5.A mutual aid agreement is a reciprocal agreement with another fire protection facility for mutual fire fighting and emergency response assistance. See MP-3, Part III, paragraph 34.04h.

6.In support of its position, the Employer cites American Federation of Government Employees, Local 1964, AFL-CIO and Department of the Air Force, Headquarters 3415th Air Base Group (ATC), Lowry Air Force Base, Colorado, 27 FLRA 90, 92-95 (1987)(Proposal 2).

7.In light of our decision in this case, it is unnecessary to address the jurisdictional questions the Employer raises about the Union’s proposal.