Union fights decision to change work schedules for some CMS employees

The American Federation of Government Employees has asked the Federal Service Impasses Panel to reconsider a May ruling that allowed the Center for Medicare and Medicaid Services to reduce the range of alternative work schedules available to employees. On Wednesday, the union said it had filed a "motion for reconsideration" with the panel after it ruled in favor of CMS management on 25 of 26 disputed issues.

The ruling means that CMS employees will no longer be able to combine flexible work schedules. An employee who works 10-hour days, for example, would not be able to work also from home. At the same time, union officers would not be able to work from home so long as they performed union duties during the work day. Beyond work schedules, a number of other issues were involved in the case, including employee rights, health and safety concerns, work hours, parking, recycling, contracting out, equal employment opportunity and employee performance evaluation.

"The panel made it very clear that they were reluctant to impose anything on management that management didn't agree to, but that's the whole point of an impasses panel," said J. Ward Morrow, AFGE assistant general counsel. Morrow added that the union was not allowed to participate in a hearing, present evidence or rebut management claims. The panel called no witnesses, and only allowed the union to submit a one-page written argument for each of the 26 claims.

The ruling affects 3,800 CMS employees nationwide. Most are in the agency's Baltimore headquarters. Morrow said the union would consider filing a lawsuit in federal district court if the panel refuses to hold a hearing. "If the panel acted unconstitutionally or contrary to law [by not holding a hearing], a court could entertain a request," Morrow said.

In addition, he said the union was investigating the environmental impact of the decision to limit alternative work schedules and was considering a lawsuit based on the 1969 National Environmental Policy Act, which would require the agency to conduct an environmental impact assessment of any policy change that might affect the environment. The new rules "will have a negative impact on air quality and negatively impact road congestion in the Baltimore and D.C. areas," Morrow said.

A branch of the Federal Labor Relations Authority, the impasses panel has seven part-time members appointed by the president and is charged with resolving disputes between federal agencies and employee unions arising from negotiations over conditions of employment under the Federal Service Labor-Management Relations Statute and the Federal Employees Flexible and Compressed Work Schedules Act.

Becky Norton Dunlop, the panel's chairwoman and vice president of external relations at the Heritage Foundation, a conservative think tank, said the panel had "gone the extra mile" by granting extensions to allow the union to continue negotiating with CMS management. No hearing was held, she said, because for "an extended period" the panel's staff had tried to help the two sides work through the issues. As a result, the arguments and counterarguments were well-known to the panel, she said. Ultimately, the two sides were asked to make their final offers. "The final decision comes to the panel and we make a decision based on what we feel is the best direction to go for the federal government," Dunlop said. In the end, she added, CMS's changes to the workplace rules were within its rights.

She dismissed the union's request for reconsideration as "public relations," adding that "union president [John Gage] was not successful in negotiating with management…. When you have such a high profile, you have to do something to show your constituency that you're in there fighting for them."