BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Following investigation of the request for assistance, the Panel determined that the impasse should be resolved on the basis of an informal conference by telephone with a Panel representative. The parties were advised that if no settlement were reached, the representative would report to the Panel on the status of the dispute, including the parties’ final positions and the representative’s recommendation for resolving the matter. After considering the report, the Panel would take final action in accordance with 5 U.S.C. § 6131(c)(3) and 5 C.F.R. § 2472.11 of its regulations. Accordingly, Panel Representative (Staff Attorney) Donna M. DiTullio conducted the informal conference with the parties by telephone on April 17, 1998. Since the parties did not resolve the dispute during the course of the informal conference, Ms. DiTullio reported to the Panel and it has now considered the entire record.

    The Employer’s mission is to provide basic training and advanced individual training to armor soldiers. As is relevant to the instant case, it operates a hospital on the post to provide inpatient and outpatient health care for the military and retirees. The Union represents approximately 2,220 employees in two bargaining units, one consisting of professional and the other nonprofessional employees. The dispute affects employees in the latter unit who hold positions as nursing assistant, medical clerk and secretary at the hospital’s Red Primary Care Clinic. On January 16, 1998, a successor collective-bargaining agreement (CBA) covering both bargaining units became effective.

    This case arises as a result of the Employer’s determination to terminate the 5-4/9 and 4/10 schedules in the Red Primary Care Clinic which have been available to employees since October 1996. Currently, four employees, three nursing assistants and one secretary, are working under a CWS. In accordance with the requirements of the Act, the Employer has not implemented its decision to terminate CWS. As a preliminary matter, after the Panel asserted jurisdiction in this case, the Union raised a belated argument that the Panel should decline jurisdiction because, under the parties’ CBA, issues involving the termination of CWS should be submitted to the parties’ Partnership Council for resolution. In its view, the Employer should not have taken this matter to the Panel for resolution, in light of the fact that the parties already have in place a negotiated procedure for handling CWS termination issues. Furthermore, should the Panel retain jurisdiction it would supplant the parties’ intent in dealing with the issue. The Employer takes the position that the Union’s interpretation of the CBA provision in question is erroneous, and the Panel should retain jurisdiction as the Partnership Council is not the appropriate forum for resolving Employer determinations to terminate CWS under the Act.

ISSUE AT IMPASSE

    In accordance with 5 U.S.C. § 6131(c)(3)(C), the issue in dispute is whether the finding on which the Employer has based its determination to terminate employees’ 5-4/9 and 4/10 CWS is supported by evidence that the schedule has caused an adverse agency impact.⁽²⁾

POSITIONS OF THE PARTIES

1. The Employer’s Position

    Essentially, the Panel should find that the evidence on which the Employer has based its determination to terminate the 5-4/9 and 4/10 CWS establishes that the schedules are causing an adverse agency impact as defined under the Act. Productivity and services to patients have been adversely affected as a result of CWS. In this regard, nursing assistants who work under a CWS begin their shifts at 7 a.m., but are not needed that early since military medics, who perform similar duties, remain on duty until 7:45 a.m. Thus, nursing assistants essentially have nothing to do for the first 45 minutes of their shifts which overlap with those of the military medics. While none of the medical clerks who handle patient bookings, process paperwork, and submit reports, have opted to work under a CWS, they should not be permitted to do so. Medical clerks are needed to work 8-hour shifts, 5 days a week in order to keep up with booking appointments for patients and the attendant paperwork. When there is a shortage of medical clerks, that is, when one is on leave, a backlog in booking appointments for patients, which generates paperwork, results. CWS only would compound this problem and, thus, diminish the level of services to the public. Moreover, when a medical clerk is absent, a GS-10 registered nurse provides coverage at a much higher rate of pay than a GS-4 clerk, and is taken away from critical patient care duties. Employees working under a CWS who have a regularly scheduled day off on a Friday have not been available for the mandatory training sessions for military and civilian personnel which take place on the first and third Friday of each month. The Employer must reschedule training for those who have missed it, thereby adversely affecting productivity.

    On May 1, 1998, a new health care system called TriCare will be fully implemented at the hospital. Among other things, TriCare will give the military and their beneficiaries a choice as to where they may seek medical services. The Employer anticipates that under TriCare, its potential patient population will expand from 6,500 to 10,000. If the Employer does not meet the contractual requirements imposed by TriCare for patient services, it will lose clientele to the private sector, resulting in increased costs for the Government. TriCare, which currently is in a transition period at the Employer’s facility, already has resulted in an increased workload for health care providers from 15-20 patients per day to 25-27 per day. In order to keep up with the anticipated workload after May 1, 1998, and avoid compromising patient care, all Clinic employees must be available for duty 5 days a week, 8 hours per day.

2. The Union’s Position

    On the merits, the Union contends the Panel should order the Employer to retain CWS for Clinic employees as it has not submitted any evidence of adverse agency impact. In this regard, since TriCare has not been fully implemented, the Employer’s arguments for terminating CWS are based on speculation as to what may happen when this occurs. Further, the Employer has not provided any evidence whatsoever to establish why the secretary, who is not involved in patient care, should be removed from CWS. As to the problems which the Employer attributes to CWS, they should be blamed instead on "bad management." Specifically, with respect to employee absences on mandatory training days, the Employer could negotiate alternative CWS days off when training days conflict with an employee’s scheduled day off under CWS. Coverage problems which the Employer claims would arise in the event that any medical clerk opts for CWS could be handled by assigning personnel other than registered nurses to book appointments for patients and take care of the daily paperwork. Moreover, when TriCare is fully implemented, a contractor will take over most of the function of booking appointments for patients. Finally, contrary to the Employer’s assertion, nursing assistants who begin their shifts at 7 a.m. under a CWS have sufficient work to do during the 45-minute period in which their shifts overlap with those of military medics. In this regard, the nursing assistants are busy with duties such as taking vital signs, weight and height measurements, and preparing patients to be seen by the medics.

    Furthermore, the Employer’s allegaton that productivity has been reduced because it has had to reschedule training missed by those employees on a regularly scheduled day off under a CWS is also unpersuasive. The record reflects that the Employer has had to reschedule training for those who missed it while on annual or sick leave as well. In our view, the Employer’s concerns regarding training could be rectified, as the Union suggests, if the parties were to negotiate days off for employees under a CWS which do not conflict with mandatory training days.

    In addition, there is no support in the record to substantiate the Employer’s contention that registered nurses would have to be taken away from critical patient care duties, thereby diminishing the level of services to the public, while they provide coverage for medical clerks who are on a regularly scheduled day off under a CWS. We note that currently no medical clerks are working under a CWS. Once again, therefore, the Employer’s argument is speculative, and not in accordance with the requirements established in the Act for the termination of an existing CWS. Moreover, the Employer does not refute the Union’s contention that once TriCare is implemented, contract employees will take over most of the responsibility for booking appointments for patients, thereby eliminating the need for registered nurses to provide coverage for those duties.

    We turn next to the Employer’s contention that the productivity of nursing assistants has declined under CWS because they begin work at 7 a.m., when there is little or no work for them to do. Contrary to its position, the record reveals that even though their shifts overlap for the first 45 minutes with those of military medics, nursing assistants are performing duties preparing patients to be seen by medics. While we conclude that the Employer has not met its statutory burden under the circumstances presented, we note that it nevertheless retains the right to assign nursing assistants additional duties or negotiate with the Union a later starting time to alleviate its concern that nursing assistants may be underutilized during the first part of their shifts.

    Finally, with respect to the CWS of the Clinic secretary, who is not involved in patient care, we find that the Employer has failed to provide any evidence of adverse agency impact.

    In light of the foregoing, we shall order the Employer to rescind its determination to terminate CWS for employees in the Red Primary Care Clinic.

    Pursuant to the authority vested in it by 5 U.S.C. § 6131 of the Federal Employees Flexible and Compressed Work Schedules Act, the Federal Service Impasses Panel, under 5 C.F.R. § 2472.11(b) of its regulations, hereby orders the Employer to continue the 5-4/9 and 4/10 compressed work schedules for employees in the Red Primary Care Clinic.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

May 12, 1998

Washington, D.C.

1.Under a 5-4/9 schedule, employees work eight 9-hour days, one 8-hour day, and have one regularly scheduled day off each pay period. Under a 4/10 schedule, employees work four 10-hour days and have one regularly scheduled day off during each week of the pay period.

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 workschedule).