United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
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DEPARTMENT OF
VETERANS AFFAIRS and COUNCIL OF VETERANS
ADMINISTRATION
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DECISION AND ORDER
The Department of Veterans Affairs (VA), Washington, D.C. (Employer) and the Council of Veterans Administration Locals, National Federation of Federal Employees, Federal District 1, IAMAW, AFL-CIO (Union), filed a joint 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.
Following an investigation of the request for assistance, the Panel determined that the impasse concerning sections of three articles for the parties= successor collective-bargaining agreement (CBA) should be resolved through an informal conference with Panel Member Andrea Fischer Newman. The parties were informed that, if a complete settlement were not reached during the informal conference, Member Newman would notify the Panel of the status of the dispute. The notification would include, among other things, the final offers of the parties and her recommendations to the Panel for resolving the issues. The parties also were informed that, after considering the entire record, the Panel would resolve the dispute by taking whatever action it deemed appropriate, which could include the issuance of a binding decision.
In accordance with the Panel's procedural determination, Member Newman met with representatives of the parties at the Panel's offices in Washington, D.C., on August 31, 2005. A voluntary settlement was reached on one of three issues, official time, but the parties were unable to agree to the issues involving the two other articles. Member Newman has reported to the Panel regarding the issues, and it has now considered the entire record, including the parties= post-conference written submissions.
BACKGROUND
The Employer provides health care to veterans, orphans, and widows; disability benefits; and loans for housing, business, and educational purposes. The Union represents a nationwide, consolidated bargaining unit of 4,715 professional employees, who work as doctors, nurses, pharmacists, psychologists, technicians, therapists, social workers, physician assistants, optometrists, dentists, and counselors. They are located at 18 VA medical centers, and in some stand-alone clinics and regional offices. All but the doctors and nurses are hybrid employees that are under both Title 5 and 38; their grades range from GS-7 through -14. The Title 38 employees are in special pay categories. The parties are covered by a master collective bargaining agreement (MCBA) that was negotiated in 1997 and expired on May 9, 2005; they will continue to abide by its terms until a successor CBA is implemented.1/
ISSUES AT IMPASSE
The parties disagree over: (1) the extent, if any, to which the Employer should pay Union representatives' travel and per diem expenses when the Union appoints a representative from outside the local area to assist in local negotiations (Article 8, Negotiations); and (2) whether to require the Employer to provide doctors with "functional statements" instead of "privileging documents" (Article 19, Functional Statements).
1. Payment of Travel and Per Diem Expenses for Non-Local Negotiators
a. The Union's Position
The Union proposes that "the Union [] be provided official time, per diem and travel for Union negotiators up to the number of representatives Management designates for the bargaining, but not less than two." This is the same wording that is in the 1997 MCBA. In 8 years, the Union has only requested that the Employer pay the Union's travel and per diem expenses three times. When the Employer denied the first request, the matter had to be taken to arbitration to obtain the Employer's compliance with the contract. On January 22, 2000, the Arbitrator issued an award examining the quoted wording. He concluded:
[T]he establishment of travel and per diem allowances in a separate subparagraph C within Section 2 [] reflects that the parties reasonably could expect the inclusion of non-local participants as union negotiators in local negotiations.
In the other two instances, the Employer again denied the Union's requests for payment of its travel and per diem expenses. Such financial support is necessary when a NFFE local needs the assistance of an experienced representative not within the local bargaining unit to adequately negotiate changes in working conditions. On its side, the Employer "has failed to demonstrate or provide any evidence of abuse regarding this issue by the Union."
b. The Employer's Position
The Employer is proposing the following:
The NFFE NVAC President may request from the local facility Director funding of travel and per diem for 1 NFFE official to assist in local negotiations. Requests will be approved when: 1. Management determines that such travel is in the primary interest of the Government in a given case; 2. Alternative technology resources have been exhausted; and 3. Funds are available. Management will give good faith consideration to the merits of each request.
In most cases, negotiators should be from the local area because they are "most familiar with the issues and are directly impacted by the outcome." In the appropriate circumstances, however, "it may be mutually advantageous to bring one NFFE official from another facility to help the local NFFE negotiate." To ensure that such situations are given fair consideration, management should apply "reasonable standards" to evaluate such requests. Furthermore, since the Federal Travel Regulations require that the payment of travel and per diem expenses must be "in the primary interest of the government," this standard should be on the list of things considered. If the request were denied, the Union would still be free to bring "any representative it wishes at its own expense." As to the past history on this issue, in one case the Union requested funds for an outside representative's travel and per diem even though the local president was an experienced negotiator.
CONCLUSION
Having carefully considered the evidence and arguments presented on this issue, we are persuaded that the Employer's proposal provides the better basis for resolving the dispute. In our view, it provides reasonable criteria for deciding whether, in individual cases, the Employer should pay the travel and per diem expenses for a non-local representative to assist in bargaining. In addition, the wording in the 1997 MCBA the Union proposes to retain has proved to be problematic. While the number of instances the Union has requested such payment does not appear to be excessive, there is no guarantee that it would be as restrained in the future. For these reasons, we conclude that the change the Employer proposes is justified, and shall order its adoption.
2. Functional Statements
a. The Union's Position
The Union proposes to retain the following wording in Article 19, Part B, of the parties 1997 MCBA:
Section 1 - Each unit employee is entitled to a complete and accurate functional statement which shall be reviewed annually by the employee and management during the proficiency rating process. If new duties are added for which the employee is not trained, appropriate training will be provided by management.
Section 2 - The union will be provided a copy of new or revised functional statements upon written request.
Section 3 - Any employee in the unit who feels that he/she is requested to perform duties outside the scope of the employees' abilities, may request management to review the employee's concerns on the requested duties.
An arbitrator has upheld the Union's view that the provision requires the Employer to provide functional statements to physicians. Such statements will ensure that doctors work within their specialties.
b. The Employer's Position
The Employer proposes the following:
Except for those employees who function under clinical privileges, Title 38 employees in the bargaining unit will be given a copy of their functional statement or scope of practice. Employees who are privileged will receive a copy of the approved privileging document. The functional statement or scope of practice shall be reviewed annually by the employee and management. Prior to assigning new responsibilities, management will provide training and/or orientation it deems necessary.
The "privileging document is the authoritative document for physicians," since it sets out the areas of medical practice in which they may practice. It essentially serves the same purpose as the functional statement used for other Title 38 employees. The fact that the parties at one local VA facility resorted to arbitration to resolve their different interpretations regarding the provision in the 1997 MCBA merely highlights its problematic nature, and does not support its retention.
CONCLUSION
Having carefully considered the parties' positions on the subject of functional statements, we shall order the adoption of the Employer's proposal to resolve the issue. We are persuaded that the wording the Union proposes to retain is inappropriate for physicians whose particular areas of medical practice within the VA are governed by their specific professional privileging documents rather than by functional statements. The Employer's proposal should ensure that the proper documents are issued to physicians.
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 under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:
1. Payment of Travel and Per Diem Expenses for Non-Local Negotiators
The parties shall adopt the Employer's proposal.
2. Functional Statements
The parties shall adopt the Employer's proposal.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
November 8, 2005
Washington, D.C.
[1]/ Part A of the parties’ MCBA covers professional and non-professional employees who are under the GS pay system, and Part B covers professional employees whose conditions of employment are governed by Title 38.