United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Local 1539, American Federation of Government Employees, 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, Black Hills Health Care System, VA Medical Center, Hot Springs, South Dakota (Employer) not to implement a 5-4/9 compressed work schedule (CWS) for one employee at the Employer’s Hot Springs, South Dakota, facility.⁽¹⁾

    Following an 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. The parties were advised that after considering their statements, the Panel would take final action in accordance with section 6131(c) of the Act and section 2472.11 of its regulations. Accordingly, the parties submitted written statements of position and the Panel has now considered the entire record.

    The Employer’s mission is to provide hospital, nursing home, and domiciliary care, and outpatient medical and dental care to eligible veterans of military service. The services provided are the same as those given by private-sector institutions, but are augmented by services that meet the special requirements of veterans. The Union represents approximately 350 bargaining-unit employees who work primarily as non-supervisory nurses, doctors, social workers, maintenance workers, and clerical employees, in pay grades GS-3 through GS-11 and WG-1 through WG-11. The parties are covered by a master collective bargaining agreement which is due to expire in March 2000.

ISSUE AT IMPASSE

    Under the Union’s proposal, the installation’s Industrial Equipment Mechanic (mechanic) would be permitted to work a 5-4/9 CWS. The Employer asserts that the proposed CWS would cause an adverse agency impact because it would reduce service to the customers of the agency. The issue before the Panel, therefore, is the following:

Whether the agency head’s findings on which the Employer has based its determination not to establish the Union's proposed 5-4/9 CWS is supported by evidence that the schedule is likely to cause an adverse agency impact as defined under the Act.⁽²⁾

1. The Employer’s Position

    The Panel should find that the evidence on which the Employer bases its determination not to implement the proposed CWS for the WG-10 mechanic establishes that the schedule is likely to cause an adverse agency impact as defined under the Act. At this time, the mechanic works from 7:30 a.m. to 4 p.m., 5 days a week. His tour of duty, which follows the administrative core hours of the agency, is well suited to keeping the Employer’s vehicles and equipment in repair and minimizing "interruption to the services." The affected employee occupies a "unique one-of-a-kind position" that "requires him to perform preventative maintenance and repairs on all types of motorized and mechanical equipment including major overhaul of engines, drive components and systems that are technically complex." Occasionally, he also operates motor vehicles and heavy equipment. A WG-8 Equipment Operator (operator)⁽³⁾ substitutes when the mechanic is absent on leave or for training, but is less skilled and, therefore, unable to perform the same range of repairs as the mechanic. "Due to the grade level difference and knowledge required . . . [the operator] is not qualified to provide full-time coverage." There is, therefore, "no back-up employees for the incumbent’s primary duties." In addition, a finding that the proposed schedule would cause an adverse agency impact is consistent with the Panel’s decisions in two previous cases.⁽⁴⁾ In both, as in the instant case, the fact that the positions were "one-deep" persuaded the Panel that the proposed schedules would cause an adverse agency impact. Finally, as an alternative to the Union’s proposal, the Employer’s offer of December 18, 1999, to allow the mechanic to work a 5-4/9 CWS if the operator agrees to switch from his current 4-10 CWS to a 5-4/9 CWS, and the two employees take different regular days off, "is still available."

2. The Union’s Position

    The Union proposes that the mechanic be permitted to work a 5-4/9 CWS, with one Monday off every other week. The original request was approved by the employee’s immediate supervisors in 1997 and again in 1998. Currently, when he is away on leave or at training, the Employer has been able to provide coverage. In this regard, at least two employees in Facilities Management Services (FMS) can provide back up. Furthermore, based on an informal survey, his co-workers indicate they are willing to cover his duties if necessary. Regarding the number of vehicles to be serviced, most vehicles at the facility are leased through the General Services Administration (GSA). Since GSA provides maintenance for these vehicles, the mechanic has no responsibilities with respect to them. As to the prevalence of compressed schedules in FMS, eight employees, including one supervisor, now are on a 4-10 CWS; three are off on Mondays and the rest on Fridays. Considering the foregoing, the Employer has not established that the proposed CWS would have an adverse agency impact.

CONCLUSIONS

    Under section 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 not to establish a CWS only if the finding on which it is based is supported by evidence that the schedule is likely to cause an "adverse agency impact." Having considered the record before us, we find that the Employer has not met its statutory burden. In this regard, the record does not support a finding that the proposed CWS is likely to diminish service to the public. Because we find that the Employer has not met its burden of showing that the Union’s proposed CWS is likely to cause an adverse agency impact, we will order the parties to negotiate over the Union’s proposal.

    While we recognize that the affected mechanic is, as the Employer contends, the only employee in his department who can perform certain major repairs, the Employer does not contend, nor is it otherwise apparent from the record, that these repairs must be completed on the day that they are received. Furthermore, the Employer currently relies on a substitute during periods when the mechanic is away on leave and training, and proposes increasing such reliance if that operator would switch from a 4-10 CWS to the same schedule as that proposed for the mechanic. In our view, the Employer’s willingness to increase the number of days that the operator would substitute for the mechanic, albeit on the terms specified by management, significantly undercuts its adverse agency impact allegation. Nothing in the record satisfactorily explains how the substitute’s remaining on a 4-10 schedule diminishes his acceptability as a substitute; on either schedule, the operator will take a different day off than the mechanic. Other factors also raise doubts about the potential of an adverse agency impact; they include the Union’s statement that GSA services most of the Employer’s fleet, that other employees in FMS are willing to cooperate to make the schedule work, and that the employee’s immediate supervisors originally approved the schedule. For these reasons, we do not find that the proposed schedule would cause an adverse agency impact and shall order the parties to negotiate over the Union’s proposal.

ORDER

By direction of the Panel.

H. Joseph Schimansky

Executive Director

January 11, 2000

Washington, D.C.

1.In this case, the record indicates that the parties do not have a local alternative work schedule agreement in place as permitted by the master collective bargaining agreement. Therefore, the parties have been operating under the Employer’s policy, MP-5, Part 1, Chapter 610, which provides:

 

If the exclusive representative and the approving official reach an impasse in collective bargaining with respect to a determination not to establish a flexible or compressed work schedule, the impasse shall be presented to the Federal Service Impasses Panel (FSIP) for resolution.