24:0505(56)CA - VA and VA Medical Center, Lyons, NJ and AFGE Local 1012 -- 1986 FLRAdec CA
[ v24 p505 ]
The decision of the Authority follows:
24 FLRA No. 56 VETERANS ADMINISTRATION AND VETERANS ADMINISTRATION MEDICAL CENTER, LYONS, NEW JERSEY Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1012, AFL-CIO Charging Party Case No. 2-CA-50029 DECISION AND ORDER The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, The General Counsel filed exceptions to the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the findings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. See Veterans Administration and Veterans Administration Medical Center, Lyons, New Jersey 24 FLRA No. 8 (1986). ORDER The complaint in Case No. 2-CA-50029 is dismissed. Issued, Washington, D.C., December 17, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 2-CA-50029 VETERANS ADMINISTRATION AND VETERANS ADMINISTRATION MEDICAL CENTER, LYONS, NEW JERSEY Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1012, AFL-CIO Charging Party Leslie S. Vincent, Esquire For the Respondent Mr. Lee Whitaker For the Charging Party Susan M. Roche, Esquire Edgar Allan Jones, Esquire For the General Counsel, FLRA Before: GARVIN LEE OLIVER Administrative Law Judge DECISION Statement of the Case This decision concerns an unfair labor practice complaint issued by the Regional Director, Region II, Federal Labor Relations Authority, New York, New York against the Veterans Administration and Veterans Administration Medical Center, Lyons, New Jersey (Respondent), based on an amended charge filed by the American Federation of Government Employees, Local 1012, AFL-CIO (Charging Party or Union). The complaint alleged, in substance, that Respondent violated sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Section 7101 et seq. (the Statute), by instituting a monthly schedule for rotating certain unit employees into the position of Acting Associate Chief of Nursing Service for Education, without first affording the Charging Party an opportunity to negotiate concerning the impact and implementation of the change. Respondent's answer admitted the jurisdictional allegations of the complaint, but denied any violation of the Statute. A hearing was held in New York, New York. The Respondent, Charging Party, and the General counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. Based on the entire record, /1/ including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact At all times material herein, the American Federation of Government Employees, AFL-CIO (AFGE), has been, and is now, the exclusive representative for a nationwide unit of certain professional nurse employees of the Respondent, including professional registered nurses at the Veterans Administration Medical Center, Lyons, New Jersey. The professional registered nurses include nursing instructors supervised by the Associate Chief of Nursing Services for Education (ACNSE). At all times material herein, AFGE has delegated to the National Veterans Administration Council, AFGE (Council) authority to act as its representative for the purposes of collective bargaining for Respondent's employees, including the professional registered nurse employees of the Veterans Administration Medical Center, Lyons, New Jersey, and the Council's delegation has been recognized by the Respondent. At all times material herein, the Charging Party has acted as the agent of the Council for the purposes of collective bargaining on behalf of the professional registered nurses at the Veterans Administration Medical Center, Lyons, New Jersey, and the Charging Party's delegation has been recognized by the Respondent. On or about September 21, 1984, the ACNSE implemented a new system whereby all six instructors under the ACNSE would serve in the capacity of Acting ACNSE in the absence of the ACNSE on a rotating monthly basis. The duties and responsibilities of the Acting ACNSE were to include "attending meetings, responding to and assisting faculty from respective schools, writing memos or other correspondence, if necessary, providing guidance and/or assistance to other instructors, if necessary, and checking incoming mail". The Acting ACNSE is expected to perform only these duties and not all of the duties listed in the ACNSE position description. The Charging Party was not notified and afforded an opportunity to negotiate concerning the impact and implementation of the change. /2/ The ACNSE has been absent ten to twelve times for a total of about three to four weeks since the new schedule was placed in effect. Five of the six nursing instructor have served as Acting ACNSE from one to four days each. There is no change in an instructor's grade, step, or hours of duty when an instructor serves as Acting ACNSE. Nor is there any change in the employee's rating or approving official for purposes of an employee's performance appraisal. The ACNSE estimates that her absences from the Center in the coming year will include five weeks of annual leave, approximately one week of sick leave, and about two days of administrative leave for seminars. She does not take her vacation at the same time each year. There was no showing that there were some months of the year which would require that an instructor serve as Acting ACNSE more than other months. However, there are no guarantees that each nursing instructor will be able to serve as ACNSE in a fair and equitable manner. Some nursing instructors may be scheduled to be Acting ACNSE during a month when the ACNSE may be away for several days or weeks, and other instructors may be scheduled when the ACNSE is at work every day or absent only for a day or two. The Acting ACNSE position provides the opportunity for a nursing instructor to gain experience in a management position. In addition, instructors are rated in their annual evaluations on several areas dealing with supervisory and administrative abilities. Service as an Acting ACNSE may be appropriately considered in such areas as well as being mentioned in the narrative description of the employee's performance. Evaluation of these areas may be helpful for promotional opportunities. There are no other supervisory or administrative duties involved in the nursing instructor position, so service as an Acting ACNSE provides the only opportunity for experience and a rating in this area. The Acting ACNSE is expected to attend any committee meeting which the ACNSE would attend. The instructors regard this as beneficial experience which enables them to learn more about the Medical Center operation and the opportunities for nurses. Respondent was on notice that the Union desired bargaining on the change at issue. Although the Union never had the opportunity to specifically address its concerns, the Union wished to negotiate a fair and equitable distribution of service as Acting ACNSE among the instructors, the recording of the service as Acting ACNSE in employees' personnel files, and a more specific identification of the duties of the Acting ACNSE. Respondent took the position that the ACNSE is a management position and that the selection of an Acting ACNSE is not subject to negotiation. The record reflects that from April through November 1983 bargaining unit nursing instructors were rotated through the Acting ACNSE pursuant to an agreement negotiated by the Chief, Nursing Service and the Charging Party. Thereafter, in November 1983, June 1984, and on the instant occasion, September 21, 1984, Respondent made unilateral changes concerning procedures used to fill the position of Acting ACNSE. Discussion, Conclusions, and Recommendations In National Labor Relations Board Union, Local 21, 15 FLRA 798 (1984), the union submitted proposals regarding the substitution by unit employees in supervisory positions on a long-term and short-term basis. The period of time covered by such substitution by unit employees ranged from four or fewer working days to eleven or more days. The proposals dealth with such matters as the composition of selection lists, comments concerning supervisory potential, and the performance of bargaining-unit work during such assignments. The Authority declared the disputed proposals to be outside the duty to bargain, stating, in part: It is well established that a proposal concerning the filling of supervisory positions, including temporary appointments, is negotiable only at the election of the agency since it does not concern a condition of employment of bargaining unit employees. National Union of Compliance Officers, Ind. and U.S. Department of Labor, Labor-Management Services Administration, 9 FLRA 735 (1982), International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980) (proposal III) . . . Since the Respondent in this case has elected not to bargain, I am, therefore, constrained to conclude that the procedures for filling the ACNSE position, on a temporary basis, does not concern a condition of employment of bargaining unit employees within the meaning of section 7103(a)(14), and that a unilateral change in such procedures does not constitute a violation of section 7116(a)(1) or (5) of the Statute. National Labor Relations Board Union, Local 21, supra; Nuclear Regulatory Commission, 17 FLRA No. 132, 17 FLRA 972 (1985); United States Department of the Treasury, U.S. Customs Service, 18 FLRA No. 1, 18 FLRA 1 (1985); Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 11 FLRA 316 (1983). In view of this disposition, it is unnecessary to apply the recent criteria set forth in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101, 19 FLRA 827 (1985) for determining whether the impact or reasonably foreseeable impact of a change in unit employees' conditions of employment was more than de minimis. Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order: ORDER It is hereby Ordered that the Complaint in Case No. 2-CA-50029 be, and it hereby is, DISMISSED. GARVIN LEE OLIVER Administrative Law Judge Dated: October 9, 1985 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Counsel for the General Counsel's unopposed Motion to Correct the Transcript is granted; the transcript is hereby corrected as set forth therein. /2/ The ACNSE, Patricia Ralston, testified that she notified the instructors of the new rotation at a staff meeting on August 21, 1984 and that, to the best of her recollection, Ben Canete, Union vice-president for the professional registered nurse unit, was present. Canete testified that he had no knowledge of such a meeting. Based on the entire record, I credit Canete's testimony on this point.