include a reopener in their agreement, no argument was made during the
investigation or in the Union’s written transmittal that such a provision would be in
conflict with the national CBA. The Union’s argument was simply based upon
tradition; national agreements don’t have reopeners.

The Panel found the Agency’s concern about the newness of the condition of
employment and concerns about addressing unforeseen issues to be a legitimate
concern that the Union failed to address. The Union’s argument that the parties
would have to come back to the table for every local agreement in 3 years and that
would be taxing on the parties’ resources is a stretch. While they may have to come
back to the table in 8 years or longer for this agreement, it will be because the
established practice needs to be addressed. The other extreme alternative would be
to allow those concerning practices to remain in place for many years (e.g., national
CBA in place since 2011) before there is an opportunity to address the concern. A
more balanced approach would be to allow some reasonable time to pass before
either party reopens the agreement. As the parties have already agreed that 3
years before opening terms is reasonable, the Panel has determined that the parties
will adopt the Agency’s proposal, which allows for reopener after 3 years.

ORDER

Pursuant to the authority vested in the Panel under 5 U.S.C. §7119, the Panel
hereby orders the parties to adopt the following language to resolve the impasse:

This Agreement shall remain in full force and effect for a period of three
years after its effective date. It shall be automatically renewed for one-year
periods unless either party gives the other party notice of its intention to
renegotiate this Agreement no less than sixty nor more than one hundred
twenty days prior to its termination date.

Abi bbb

Martin H. Malin
FSIP Chairman

April 5, 2024


therefore, it is inherently a national matter, not a local matter. The Union argued
that national agreements traditionally do not have reopeners, but instead rely on
the terms of the national CBA; they only reopen when the national CBA reopens.
The Union argued that the Panel should reject the Agency’s argument that local
agreements tend to have reopeners. Instead, the Union argued that the examples
provided by the Agency were actually national agreements, which supports the
Union’s argument that national CBAs don’t tend to have reopeners and neither
should this agreement.

The terms of the national CBA would allow either party to reopen the local
agreement only when the national CBA is reopened: which could be at 3 years, or,
with roll over, could be several years. For background on the execution of the
current national CBA terms, on December, 15, 2017, the Agency notified the Union
of its intent to renegotiate the parties’ national CBA, which had been in effect since
March 15. 2011 (2011-CBA). The parties started the negotiation process. On August
8, 2023, the NVAC and the Agency executed the successor 2023 master CBA (2023-
CBA). The terms of local agreements negotiated under the 2011-CBA, which
otherwise did not have a reopener clause, remained in effect until 2023, and many
continue to roll over.

The Union argued that if every local agreement reopened at 3 years, even
when the national CBA is not reopened by either party, that would be a drain on
both parties’ resources. The Union offered no counter proposal, but asks the Panel
to allow the agreement to be silent on reopening, which would mean reopener would
be governed by the terms of the national CBA; the agreement opens when the
national CBA reopens.

" PANEL DISCUSSION AND DECISION

In sum, the Agency argued that there should be a three-year reopener
because remote work for these employees is a new condition of employment. While
the parties have agreed to a number of terms that should address many foreseen
issues or concerns, there will inevitably be unforeseen issues that either party may
want to address as the new terms are executed. Providing for a 3-year reopener
would provide an opportunity for either party to raise and address concerns. If the
parties simply rely on the terms of the national CBA, many years may pass before a
party can raise and address concerns.

In sum, the Union argued that this is more akin to a national agreement.
The Union argued that the parties do not traditionally include a reopener clause in
national agreements; therefore, they should not include one here. It should be
noted that while the National AFGE representative advised the Agency (via email)
early in the bargaining process that the AFGE locals do not have the authority to


United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT. OF VETERAN AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
BLACK HILLS HEALTH CARE SYSTEM

And Case No. 24 FSIP 025
AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFGE COUNCIL 259, LOCAL 1539
AND LOCAL 2342

D (ON AND ORD!

The mission of the Department of Veterans Affairs (VA) is to fulfill President
Lincoln's promise “To care for him who shall have borne the battle, and for his
widow, and his orphan” by serving and honoring the men and women who are
America’s veterans. There are three main components within the VA: the Veterans
Health Administration (VHA), the Veterans Benefit Administration (VBA), and the
National Cemetery Administration (NCA). VA provides health care to Veterans’
family members and dependents through programs administered by VHA.
Pursuant to Section 1708(4) of Title 38, U.S.C., the VA may authorize a non-VA
health care facility to provide necessary medical care services when such services
are not feasibly available at a VA health care facility, or VA determines that such
services can be obtained outside the VA more economically or more appropriately
due to geographic inaccessibility. The Care in the Community (CITC) function
oversees the approval and procurement of non-VA health care services for the
veterans.

This case concerns a request for Panel assistance filed by the VA’s Black Hills
Health Care System (Agency) involving the negotiations of the Agency’s decision to
offer Remote Work Schedules for Registered Nurses (RNs) and Medical Support
Assistants (MSAs) that work in the Care in the Community function of the Black


Hills Health Care System. The American Federation of Government Employees,
Council 259 (Union) represents the two impacted locals (i.e., Local 1539 and Local
2342) and the approximate 55 impacted NPs and MSAs. The parties are governed
by a National Collective Bargaining Agreement (CBA) that was enacted in 2023.
This dispute was filed pursuant to §7119 of the Federal Service Labor-Management
Relations Statute (the Statute). The Federal Service Impasses Panel (Panel or
FSIP) asserted jurisdiction over this dispute and directed the matter to be resolved
through a Written Submission procedure.

PROCED

In September 2023, the Agency provided the Union with notice of a proposed
change to Remote Work?. Specifically, the Agency proposed to offer Black Hills
Care in the Community MSAs and RNs the option to work remotely. Prior to the
proposed change, CITC MSAs and RNs had the option of working on a Telework
schedule. Those that chose to telework were required to report to their assigned
duty station twice a pay period. The Remote Work would remove that requirement.
The only exception would be when staff would be required to report to the facility to
complete mandatory training. Staff who chose not to work Remotely or Telework
would continue to have a physical space to work onsite. The proposed effective date
for implementing this change was October 6, 2023, pending meeting bargaining
requirements.

The parties negotiated on September 22, 2023. The parties engaged on
November 22, 2023 with a Mediator from the Federal Mediation and Conciliation
Services (FMCS). Through negotiations and mediation, the parties were able to
reach agreement on nine (9) out of ten provisions to be included in the agreement
over remote work, except the issue of a sunset clause. The Mediator released the
parties on December 6, 2023.

ISSUE AND PARTY PROPOSALS

The sole remaining issue in dispute is the sunset clause for the agreement.
The Agency proposed the following language (the same language that is in current
CBA - Article — Duration of Agreement, Section 2):

This Agreement shall remain in full force and effect for a pericd of three
years after its effective date. It shall be automatically renewed for one-year
periods unless either party gives the other party notice of its intention to

1 The Office of Personnel Management (OPM) defines Remote Work as a flexible work arrangement in which an
employee, under a written remote work agreement, is scheduled to perform work at an alternative worksite and is
not expected to perform work at an agency worksite on a regular and recurring basis..

2


renegotiate this Agreement no less than sixty nor more than one hundred
twenty days prior to its termination date.

The Union did not offer a counter proposal, which means the agreement would only
reopen when the national CBA reopens; otherwise, the terms remain in effect.

POSITION OF THE PARTIES

1. Agency

The Agency wants to include language which allows the opportunity for
either party to reopen the agreement. While there is reopener language in the
national CBA, that would allow either side to reopen the national CBA each year
after the 3-year term expires, no such language exists for local agreements in the
national CBA. As a result, unless the parties agree otherwise, local agreements stay
in effect for as long as the national CBA is in effect (which could be many years
beyond 3 years) until the national CBA is reopened. Without specific sunset
language in the local agreement itself, there is no unilateral ability to reopen a local
agreement unless the national CBA is reopened.

The Agency argued that language in this agreement that would allow either
party to reopen the agreement ensures the agreement remains effective and
relevant by addressing unforeseen changes. The Agency offered evidence
demonstrating that the local facility (Black Hills Health Care System) has
previously negotiated several MOUs with the local Union which included sunset
clauses and/or reopener language. The Agency also offered evidence of several local
agreements which do not have sunset or reopener language and have been in effect
for many years (e.g., the agreement concerning annual leave, which remained in
effect for over 20 years before either party could address concerns). In two
examples provided by the Agency, the local Union requested to reopen those
agreements as the terms were no longer suitable to the needs of the Union.

The Agency also argued that the agreement concerning remote work for CITC
staff is a new endeavor for the CITC Department. The Agency is interested in
allowing the opportunity for either side to address unforeseen issues should they
arise. Finally, the Agency reminded the Panel that their posed language mirrors
the duration provision of the national CBA, which should make it more agreeable to
the Union.

2. Union

First, the Union argued that this matter isn’t a matter of local negotiations
because this matter involves not one but two locals (i.e., Local 1539 and Local 2342);