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 AGENC