American Federation of Government Employees, Local 3669, AFL-CIO (Union) and Veterans Administration Medical Center, Minneapolis, Minnesota (Activity) 

 



[ v02 p641 ]
02:0641(78)NG
The decision of the Authority follows:


 2 FLRA No. 
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3669, AFL-CIO
 (Union)
 
 and
 
 VETERANS ADMINISTRATION MEDICAL
 CENTER, MINNEAPOLIS, MINNESOTA
 (Activity)
 
                                            Case No. 0-NG-47
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
                              UNION PROPOSAL
 
    ARTICLE XV, HOURS OF WORK, SECTION 3
 
    NURSES SHALL HAVE THEIR TOURS OF DUTY ARRANGED TO PERMIT EACH PERSON
 TO HAVE TWO CONSECUTIVE DAYS OFF IN EACH CALENDAR WORK WEEK.  ANY NURSE
 MAY REQUEST TO WAIVE THE RIGHT IN WRITING.  DAYS MAY BE SPLIT PRECEDING
 OR FOLLOWING A WEEKEND OFF.  SATURDAY AND SUNDAY WILL NOT NORMALLY BE
 SCHEDULED OFF UNLESS BOTH ARE SCHEDULED OFF.  NURSES WILL HAVE EVERY
 OTHER WEEKEND OFF.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS A MATTER WITHIN THE
 AGENCY'S DUTY TO BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE) OR IS A MATTER WITHIN THE SCOPE OF
 SECTION 7106(B)(1) OF THE STATUTE, I.E., NEGOTIABLE ONLY "AT THE
 ELECTION OF THE AGENCY," /1/ AS ALLEGED BY THE AGENCY.  /2/
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL CONCERNS A MATTER WHICH IS NEGOTIABLE ONLY
 AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND
 REGULATIONS (44 FED.REG. 44740 ET SEQ.(1979)), THE AGENCY'S ALLEGATION
 THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS
 SUSTAINED.
 
    REASONS:  IN NATIONAL TREASURY EMPLOYEES UNION CHAPTER 66 AND
 INTERNAL REVENUE SERVICE, KANSAS CITY SERVICE CENTER, CASE NO. O-NG-19,
 2 FLRA NO. 106(SEPT. 13, 1979), REPORT NO. . . . , THE AUTHORITY
 RECENTLY STATES, WITH REGARD TO THE MEANING AND INTENT OF SECTION
 7106(B)(1) OF THE STATUTE, AS FOLLOWS:
 
    UNDER THE PLAIN LANGUAGE OF SECTION 7106(B)(1) OF THE STATUTE (AND IN
 THE ABSENCE OF ANY
 
    CONTRARY INDICATION IN THE LEGISLATIVE HISTORY OF SUCH LANGUAGE) THE
 CLEAR MEANING OF THIS
 
    SECTION IS TO RENDER THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
 ASSIGNED TO A TOUR OF DUTY
 
    NEGOTIABLE AT THE AGENCY'S ELECTION.  A PROPOSAL OTHERWISE CONSISTENT
 WITH THE STATUTE, WHICH,
 
    BY ITS DIRECT OR INTEGRAL RELATIONSHIP TO THE NUMBERS, TYPES, OR
 GRADES OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO A TOUR OF DUTY, WOULD BE DETERMINATIVE OF SUCH
 NUMBERS, TYPES, OR
 
    GRADES, LIKEWISE WOULD BE NEGOTIABLE AT THE ELECTION OF THE AGENCY.
 (FOOTNOTES OMITTED.) /3/
 
    IN THE PRESENT CASE, WHILE THE LANGUAGE OF THE PROPOSAL DOES NOT
 EXPLICITLY RELATE TO THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
 ASSIGNED TO A TOUR OF DUTY OR TO THE ORGANIZATIONAL SUBDIVISION HEREIN,
 SO AS TO COME WITHIN THE LITERAL LANGUAGE OF SECTION 7106(B)(1), IT IS
 NEVERTHELESS SO DIRECTLY AND INTEGRALLY RELATED TO THE NUMBERS, TYPES,
 AND GRADES OF EMPLOYEES ASSIGNED THERETO AS TO BE DETERMINATIVE OF SUCH
 NUMBERS, TYPES AND GRADES AND THEREFORE IS NEGOTIABLE AT THE ELECTION OF
 THE AGENCY.  /4/
 
    THE RECORD INDICATES THAT THE ACTIVITY HEREIN IS RESPONSIBLE FOR THE
 MEDICAL CARE AND TREATMENT OF VETERANS.  IN ORDER TO MEET THIS
 RESPONSIBILITY, THE ACTIVITY MUST HAVE PROFESSIONAL MEDICAL PERSONNEL IN
 CONTINUOUS ATTENDANCE.  THUS, THE ACTIVITY MUST ESTABLISH TOURS OF DUTY
 WITH SUFFICIENT NUMBERS AND TYPES OF PROFESSIONAL MEDICAL PERSONNEL TO
 PROVIDE THE REQUISITE ROUND-THE-CLOCK SERVICES TO ITS PATIENTS.  IN
 DETERMINING THE NUMBER AND TYPES OF SUCH PERSONNEL TO BE ASSIGNED TO
 EACH TOUR OF DUTY, MANAGEMENT MUST CONSIDER SUCH FACTORS AS THE NUMBER
 AND TYPES OF PERSONNEL ACTUALLY IN ITS EMPLOY;  THE ADDITIONAL NUMBER,
 IF ANY, IT IS AUTHORIZED TO HIRE;  THE NUMBER AND TYPES OF MEDICAL
 PERSONNEL REQUIRED TO PROVIDE QUALITY MEDICAL CARE DURING EACH TOUR OF
 DUTY;  AND THE QUALIFICATIONS AND ABILITIES OF INDIVIDUAL EMPLOYEES.
 
    THE INSTANT PROPOSAL GUARANTEEING THAT "(N)URSES WILL HAVE EVERY
 OTHER WEEKEND OFF," WOULD NEGATE THE ACTIVITY'S DISCRETION TO TAKE INTO
 ACCOUNT THE MEDICAL CARE NEEDS OF THE PATIENTS AND THE PROFESSIONAL
 SKILLS OF THE NURSES INVOLVED, WHEN ASSIGNING INDIVIDUAL NURSES TO
 WEEKEND TOURS OF DUTY.  THAT IS, REGARDLESS OF THE PARTICULAR NURSING
 SKILLS AND SPECIALIZATIONS REQUIRED DURING THE WEEKENDS IN ORDER TO
 ENSURE QUALITY MEDICAL CARE AND TREATMENT OF PATIENTS, /5/ MANAGEMENT
 WOULD BE REQUIRED TO MAKE SUCH ASSIGNMENTS SOLELY ON THE BASIS OF WHICH
 NURSES HAD NOT RECEIVED THE PREVIOUS WEEKEND OFF.  UNDER THESE
 CIRCUMSTANCES, AS THE AGENCY'S STATEMENT OF POSITION ASSERTS AND THE
 UNION DOES NOT CONTRADICT, THE ACTIVITY WOULD BE FORCED TO HIRE
 ADDITIONAL NURSES WITH THE NECESSARY QUALIFICATIONS IN ORDER TO
 ACCOMPLISH ITS MISSION AND COMPLY WITH SUCH AN AGREEMENT.  /6/ IN LIGHT
 OF THE ABOVE, THE AUTHORITY CONCLUDES, IN THE BARGAINING UNIT OF THIS
 CASE, THAT THE UNION'S PROPOSAL, REQUIRING THAT NURSES IN THE BARGAINING
 UNIT BE ASSURED ALTERNATE WEEKENDS OFF, IS INTEGRALLY RELATED TO, AND
 CONSEQUENTLY DETERMINATIVE OF, THE NUMBERS, TYPES, OR GRADES OF
 EMPLOYEES ASSIGNED TO A WORK PROJECT OR TOUR OF DUTY AND, ACCORDINGLY,
 NEGOTIABLE AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1) OF THE
 STATUTE.
 
    THEREFORE, THE PROPOSAL AT ISSUE IS NOT WITHIN THE AGENCY'S DUTY TO
 BARGAIN UNDER THE STATUTE, AND THE AGENCY'S ALLEGATION THAT THE PROPOSAL
 IS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY MUST BE SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7106 OF THE STATUTE (92 STAT. 1198) PROVIDES, IN
 PERTINENT PART:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
 OF EMPLOYEES OR
 
    POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
 OR TOUR OF DUTY, OR ON THE
 
    TECHNOLOGY, METHODS AND MEANS OF PERFORMING WORK(.)
 
    /2/ IN VIEW OF THE AUTHORITY'S DECISION HEREIN, IT IS UNNECESSARY TO
 REACH THE AGENCY'S ADDITIONAL ALLEGATION THAT THE UNION'S PROPOSAL IS
 INCONSISTENT WITH AN AGENCY REGULATION FOR WHICH A COMPELLING NEED
 EXISTS AND IS THEREFORE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
 7117(A)(2) OF THE STATUTE.
 
    /3/ IN THIS REGARD, THE AUTHORITY NOTED THAT PROPONENTS OF THE BILL
 ENDORSED THIS APPROACH TOWARDS NEGOTIATION ON THESE SUBJECTS AS
 MANDATED
 BY THE FINAL VERSION OF TITLE VII, CITING THE FOLLOWING REMARKS OF REP.
 FORD (AT 124 CONG.REC. H 9649(DAILY ED.  SEPT. 13, 1978)):
 
    IN ADOPTING THIS COURSE, IN THE UDALL COMPROMISE, WE IMPLEMENT THE
 RATIONALE OF SEVERAL
 
    DECISIONS OF RELEVANT OVERSIGHT AGENCIES FOR FEDERAL SECTOR LABOR
 RELATIONS.  THE FEDERAL
 
    LABOR RELATIONS COUNCIL, FOR EXAMPLE, HAS RULED THAT A PROPOSAL MUST
 DIRECTLY RELATE TO THE
 
    "NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES" BEFORE THAT
 PROPOSAL CAN BE RULED
 
    NONNEGOTIABLE BECAUSE IT INFRINGES ON THE MANAGEMENT RIGHT UNDER THE
 EXECUTIVE ORDER TO
 
    DETERMINE THOSE MATTERS.
 
   .          .          .          .
 
 
    AS THE SECTIONAL ANALYSIS MAKES CLEAR, THE UDALL SUBSTITUTE IS
 DRAFTED SO AS TO EMBODY IN
 
    THE STATUTE THE APPROACH OF THESE AND SIMILAR DECISIONS.  . . .
 
    SEE ALSO, 124 CONG.REC. H 9638(DAILY ED. SEPT. 13, 1978) (REMARKS OF
 REP. CLAY).
 
    /4/ WHILE THE TERMS OF THE PARTIES' EXPIRING AGREEMENT PROVIDED THAT
 "EVERY EFFORT WILL BE MADE TO PROVIDE 1 WEEKEND OFF OUT OF EVERY 3 OR
 MORE IF POSSIBLE" AND THE ACTIVITY MAY HAVE PROPOSED TO CONTINUE THAT
 ASSURANCE DURING THE NEGOTIATIONS HEREIN, IT IS CLEAR FROM THE
 LEGISLATIVE HISTORY OF SECTION 7106(B) THAT THE ACTIVITY HAD NOT THEREBY
 MADE AN IRREVOCABLE "ELECTION" TO NEGOTIATE A PROVISION CONCERNING
 NURSES' WEEKENDS OFF.  THUS, DURING THE FLOOR DEBATE ON THE FINAL
 VERSION OF SECTION 7106, REP. FORD STATED IN RESPONSE TO QUESTIONS AS TO
 THE NATURE OF MANAGEMENT'S DUTY TO BARGAIN ON THE "NUMBERS, TYPES, AND
 GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT,
 WORK PROJECT, OR TOUR OF DUTY," AS FOLLOWS:
 
    I MIGHT SAY THAT NOT ONLY ARE (AGENCIES) UNDER NO OBLIGATION TO
 BARGAIN, BUT IN FACT THEY
 
    CAN START BARGAINING AND CHANGE THEIR MINDS AND DECIDE THEY DO NOT
 WANT TO TALK ABOUT IT ANY
 
    MORE, AND PULL IT OFF THE TABLE.  IT IS COMPLETELY WITHIN THE CONTROL
 OF THE AGENCY TO BEGIN
 
    DISCUSSING THE MATTER OR TERMINATE THE DISCUSSION AT ANY POINT THEY
 WISH WITHOUT A CONCLUSION,
 
    AND THERE IS NO APPEAL OR REACTION POSSIBLE FROM THE PARTIES ON THE
 OTHER SIDE OF THE TABLE.
 
    SEE 124 CONG.REC. H9646(DAILY ED. SEPT. 13, 1978).
 
    /5/ IN A SURVEY AND EVALUATION OF HOSPITAL OPERATIONS CONDUCTED BY
 THE ACTIVITY'S CHIEF OF NURSING SERVICE IN 1978 AND 1979, THE RESULTS OF
 WHICH WERE ATTACHED TO THE AGENCY'S STATEMENT OF POSITION, "EVERY
 WARD/UNIT HAD BEEN ABLE TO MAINTAIN A 'WEEKEND OFF' FREQUENCY OF BETTER
 THAN ONE-THIRD, BUT 19 OUT OF 23 AREAS WERE UNABLE TO ACHIEVE THE HOPED
 FOR AVERAGE OF 50%," BECAUSE OF A NEED FOR BUT AN INSUFFICIENT NUMBER OF
 FULL-TIME REGISTERED NURSES (RNS) QUALIFIED TO ASSUME OVERALL WARD
 RESPONSIBILITIES.  THE SURVEY CONCLUDED THAT "THERE IS NO MEANS BY WHICH
 50% OF THE WEEKENDS CAN BE SCHEDULED OFF DUTY FOR ALL RNS IN ALL AREAS."
 
    /6/ THE AGENCY ALLEGES, WITHOUT CONTRADICTION, THAT THERE IS A
 FEDERALLY-IMPOSED PERSONNEL CEILING IN EFFECT WHICH RESTRICTS
 MANAGEMENT'S AUTHORITY TO HIRE THE DESIRED NUMBER OF NURSES.  HOWEVER,
 EVEN IF THERE WERE NO CEILING ON HIRING ADDITIONAL QUALIFIED NURSES, AS
 THE AGENCY ASSERTS, THE REQUIREMENT TO HIRE ADDITIONAL PERSONNEL IN
 ORDER TO COMPLY WITH THE TERMS OF THE UNION'S PROPOSAL UNDERSCORES THE
 DIRECT AND INTEGRAL RELATIONSHIP BETWEEN SUCH PROPOSAL AND THE
 ACTIVITY'S STAFFING PATTERNS-- I.E., THE NUMBERS, TYPES, AND GRADES OF
 EMPLOYEES OR POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK
 PROJECT, OR TOUR OF DUTY." THE UNION TACITLY ACKNOWLEDGES THIS DIRECT
 RELATIONSHIP IN ITS RESPONSE TO THE AGENCY'S STATEMENT OF POSITION, BUT
 MERELY STATES THAT " . . . MANAGEMENT HAS ALREADY AGREED TO THE PORTION
 OF THE (PROPOSAL) THAT IS INTEGRALLY RELATED TO AND INTERFERES WITH
 MANAGEMENT'S RIGHT TO ESTABLISH STAFFING PATTERNS THAT ARE NECESSARY FOR
 THE PROPER OPERATION OF THE HOSPITAL WHEN THEY AGREED TO ARRANGING THE
 NURSES'