24:0505(56)CA - VA and VA Medical Center, Lyons, NJ and AFGE Local 1012 -- 1986 FLRAdec CA



[ v24 p505 ]
24:0505(56)CA
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.