25:0803(66)NG - Colorado Nurses Association and VA Medical Center, Ft. Lyons, CO -- 1987 FLRAdec NG



[ v25 p803 ]
25:0803(66)NG
The decision of the Authority follows:


 25 FLRA No. 66
 
 COLORADO NURSES ASSOCIATION
 Union
 
 and
 
 VETERANS ADMINISTRATION MEDICAL 
 CENTER, FT. LYONS, COLORADO
 Agency
 
                                            Case No. 0-NG-1104
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed by the Union under section 7105(a)(2)(D) and (E) of the Federal
 Service Labor-Management Relations Statute (the Statute).  The case
 presents issues concerning the negotiability of six proposals.
 
    The Veterans Administration (Agency or VA), in this and other cases
 involving professional employees of the Department of Medicine and
 Surgery (DM&S), contends that as a general matter the duty to bargain
 over conditions of employment under the Statute does not apply to
 professional medical employees appointed under Chapter 73 of Title 38,
 United States Code.  On October 27, 1986, we granted the Agency's Motion
 for Consideration of Common Issues in which the VA requested that the
 Authority resolve the issue of the VA's general duty to bargain with
 DM&S professional employees by considering the record in all cases in
 which the issue is raised.  Parties were given until January 15, 1987 to
 file submissions.  We have considered the filings of the parties in
 these cases as well as additional submissions filed with and in response
 to the Agency's motion.  /1/
 
    For the reasons discussed in Section II, we find that as a general
 matter the Veterans Administration has a duty to negotiate over
 conditions of employment of DM&S professional employees.  In Section III
 of this decision, we address the specific proposals at issue in this
 case.
 
            II.  Whether the Agency has a Duty to Bargain over
 
                Conditions of Employment of DM&S Professional Employees
 
          A.  Background:  Grievances Concerning Disciplinary and
 
                Adverse Actions
 
    In Veterans Administration, Washington, D.C. and Veterans
 Administration Medical Center, Minnespolis, Minnesota, 15 F.RA 948
 (1984), the Authority held that the Veterans Administration had no duty
 to bargain with DM&S professional medical employees on proposals
 relating to disciplinary actions and adverse action procedures for
 disputes over alleged professional misconduct or incompetence. The
 Authority relied on the reasoning of the U.S. Courts of Appeals in
 Veterans Administration Medical Center, Minneapolis, Minnesota v. FLRA,
 705 F.2d 953 (8th Cir. 1983) (VA Minneapolis), and Veterans
 Administration Medical Center, Northport, New York v. FLRA, 732 F.2d
 1128 (2d Cir. 1984) (VA Northport), in finding that disciplinary and
 adverse actions were to be resolvedexclusively through the peer review
 system established under section 4110 of the DM&S statute, 38 U.S.C.
 Sections 4101-4119.  The courts found that allowing disciplinary and
 adverse action cases to be resolved under a negotiated grievance
 procedure would conflict with the VA's exclusive peer review system, and
 that the conflict between the two procedures must be resolved in
 accordance with section 4119 of Title 38, which provides:
 
          S. 4119.  Relationship between this subchapter and other
       provisions of law
 
          Notwithstanding any other provision of law, no provision of
       title 5 or any other law pertaining to the civil service system
       which is inconsistent with any provision of this subchapter shall
       be considered to supersede, override, or otherwise modify such
       provision of this subchapter except to the extent that such
       provision of title 5 or of such other law specifically provides,
       by specific reference to a provision of this subchapter, for such
       provision to be superseded, overridden, or otherwise modified.
 
    Both courts held that because the Federal Service Labor-Management
 Relations Statute makes no specific reference to Title 38 with respect
 to disciplinary and adverse action cases, the conflict must be resolved
 in favor of the peer review system set forth in section 4110 of Title
 38.
 
    A number of unions who are parties to these cases contend that the
 Authority should reconsider the holding in Veterans Administration,
 Washington, D.C.  /2/ They claim that the legislative history of the
 1980 amendments to the DM&S statute, which added section 4119, shows
 that Congress intended those amendments to improve working conditions
 and enhance recruitment of nurses and other DM&S professionals, and that
 the Authority's decision is inconsistent with this legislative intent.
 However, we find that the holding in Veterans Administration,
 Washington, D.C. is consistent with the Congressional intent of section
 4119 and we reaffirm that holding.
 
                       B.  The Parties' Contentions
 
    The Agency contends that it has no obligation to bargain over
 conditions of employment of DM&S professionals because a conflict exists
 between the Statute and 38 U.S.C. Section 4108(c), which provides:
 
          Section 4108.  Personnel administration
 
          (a) Notwithstanding any law, Executive order, or regulation,
       the Administrator shall prescribe by regulation the hours and
       conditions of employment and leaves of absence of physicians,
       dentists, podiatrists, optometrists, nurses, physician assistants,
       and expanded-function dental auxiliaries appointed to the
       Department of Medicine and Surgery(.)
 
    The VA argues that section 4108(a) demonstrates Congress' intent to
 establish a DM&S personnel system that is entirely independent of the
 civil service restrictions of the Title 5 personnel system.  It contends
 that its mission requires that any review of conditions of employment of
 DM&S professional employees be through peer review administered by
 officials directly responsible and accountable for the delivery and
 quality of patient care, rather than review by "inexpert arbitrators."
 Agency's Statement in Support of Allegations of Nonnegotiability (Case
 No. 0-NG-1104) at 11.  The Agency further argues that its internal
 regulations are "legislative regulations having the full force and
 effect of law" and that collective bargaining may not "concern, change,
 alter, modify, subyract from or add to the VA's nationwide Title 38
 personnel regulations." Agency's Brief in Response to Negotiability
 Appeal (Case Nos. 0-NG-1209 and 0-NG-1224) at 12.  The VA also argues
 that, because Title 38 and the VA's "legislative regulations"
 specifically provide for the exclusive DM&S personnel system, working
 conditions of DM&S professionals are excluded under section
 7103(a)(14)(C) of the Statute from the meaning of "conditions of
 employment" to which the duty to bargain extends.
 
    The Union disputes these contentions and takes the position that
 Congress did not intend to deprive DM&S employees of collective
 bargaining rights established by the Civil Service Reform Act of 1978.
 Rather, the Union argues, the legislative history of the 1980 amendments
 to Title 38 demonstrates that Congress specifically intended to preserve
 existing collective bargaining rights for those employees.
 
                       C.  Analysis and Conclusions
 
    Section 4119 requires the provisions of Title 5 to yield to the
 provisions of Title 38 where a direct conflict exists between those
 statutes.  VA Minneapolis, 705 F.2d at 956 n.3.  We conclude that no
 direct conflict exists between the provisions of section 4108
 authorizing the Administrator to prescribe hours and conditions of
 employment and leaves of absence and the provisions of the Statute
 permitting collective bargaining concerning conditions of employment
 unrelated to disciplinary and adverse actions.  We base this conclusion
 on Congress' intent as expressed in the legislative history of the 1980
 amendments to Title 38, as well as on the Statute and its legislative
 history;  the history of collective bargaining between the parties;  and
 the interpretation of the courts in VA Minneapolis and VA Northport.
 Accordingly, we reject the VA's assertion that sections 4108 and 4119 of
 Title 38, read in conjunction, remove conditions of employment of DM&S
 employees from the VA's duty to bargain established by the Federal
 Service Labor-Management Relations Statute.
 
                (1) Legislative History of the DM&S Statute
 
    As discussed by the courts, the legislative history of the DM&S
 Statute contains many references to the need of the VA to have a free
 hand in removing incompetent DM&S professionals without the "red tape"
 of civil service restrictions.  See VA Minneapolis, 705 F.2d at 956-57;
 VA Northport, 732 F.2d at 1131.  See also, H. Rep. No. 138, 79th Cong.,
 1st Sess. 2 ("such legislation should . . . incorporate authority to
 dispense with the services of unsatisfactory or disqualified employees
 in certain categories without regard to the restrictions of the laws and
 regulations pertaining to civil service . . . . ").  Another theme
 discussed throughout the legislative history is that the VA should have
 flexibility to hire DM&S professionals without regard to civil service
 requirements.  See S. Rep. No. 858, 79th Cong., 1st Sess. 1, reprinted
 in 1945 U.S. Code Cong. Serv. 956;  H. Rep. No. 79-1238 at 2.  Congress
 responded to this concern by providing in section 4106 of the DM&S
 Statute that professionals shall be appointed in accordance with
 regulations prescribed by the Administrator "without regard to
 civil-service requirements."
 
    However, the legislative history does not show a similar
 Congressional intent that VA exercise exclusive control over other
 conditions of employment of DM&S professionals.  Both the Senate and
 House reports accompanying the DM&S legislation merely paraphrase the
 language of section 4108(a) without further discussion.  S. Rep. No.
 79-858 at 3, 1945 U.S. Code Cong. Serv. at 958;  H. Rep. No. 79-1238 at
 3.  The only reference to that section in the House debate is the
 following statement by Representative Scrivner:
 
          (W)e know that people do not get sick by the clock.  We found
       in many of these (VA) hospitals under civil-service regulations
       doctors practice 40 hours a week.  As we have gone through
       hospitals and seen 4:30 come around, we have seen doctors put on
       their hats and walk out, because if they had worked a few minutes
       overtime, compensatory time would have had to be given them, and
       it would have taken a great deal of complicated figuring and
       bookkeeping to straighten it out.  In section (7)(b), we provide
       that notwithstanding any law, Executive order, or regulation, the
       Administrator shall prescribe by regulation the hours and working
       conditions and leaves of absence of doctors, dentists, and nurses.
 
    91 Cong. Rec. H11662-63 (Rep. Scrivner).  Thus the legislative
 history demonstrates a recognition by Congress that with respect to
 "conditions of employment," DM&S needed flexibility to assure provision
 of patient care services.
 
    We cannot conclude, however, that the existence of that flexibility
 and discretion automatically operates to remove all DM&S professionals
 from coverage of the Statute or otherwise serves to preclude all
 collective bargaining about their conditions of employment. To the
 contrary, the legislative history of the 1980 amendments to Title 38
 states that Congress did not "intend that any of the changes made by the
 legislation to the VA's health care personnel authorities detract in any
 way from employee rights under existing collective bargaining agreements
 between the VA and its employees." Explanatory Statement of Compromise
 Agreement on H.R. 7102/S. 2534, 126 Cong. Rec. H6850 (1980), reprinted
 in 1980 U.S. Code Cong. & Ad. News 2463, 2557, 2563.  We interpret this
 language to be an express recognition by the Congress of a past practice
 of collective bargaining between the VA and its professional employees,
 and a manifestation of an intent that the practice continue.
 
    Furthermore, had Congress intended negotiations over conditions of
 employment under the Statute not to apply to DM&S professionals, it
 could have done so expressly by excluding them from the Statute as it
 did with certain other categories of employees.  See 5 U.S.C. Section
 7103(a)(2) and (3).  It did not do so.  To the contrary, as explicitly
 stated in the Senate Report's discussion of the Statute, Title 38
 employees are covered by the Statute.  S. Rep. No. 969, 95th Cong. 2d
 Sess. 110, reprinted in 1978 U.S. Code Cong. & Ad. News 2723, 2832.
 
  (2) Past Bargaining History and the Application of VA Minneapolis and
 VA Northport
 
    Although the courts in VA Minneapolis and VA Northport found that
 Congress intended the peer review procedures in disciplinary and adverse
 action matters to be an exclusive remedy, nothing in those decisions
 indicates that section 4119 bars negotiations on all matters affecting
 DM&S employees.  In VA Northport, at 1132, the court stated that:
 
          At the time of its (section 4119's) enactment, the DM&S
       professionals at issue here had no "rights existing under existing
       collective bargaining agreements" pertaining to discipline because
       the VA has consistently refused to bargain over this issue.  As to
       other matters, the VA has not refused to bargain with DM&S
       professionals, and does not argue here that it has no duty to do
       so.
 
    Among the matters over which the VA previously has not refused to
 bargain is the grievance and arbitration of conditions of employment of
 DM&S professional employees other than disciplinary and adverse actions.
  See, for example, American Federation of Government Employees, AFL-CIO,
 Local 3669 and Veterans Administration Medical Center, Minneapolis,
 Minnesota, 3 FLRA 311 (1980) (VA objected to union proposal for broad
 scope grievance procedure only insofar as proposal did not expressly
 exclude grievances over separation of probationary employees, actions
 resulting from competency reviews by supervisors or nurse professional
 standards boards, and actions taken by Chief Medical Director based on
 disciplinary board recommendations).
 
    Additionally, the court in VA Minneapolis limited its holding,
 finding that the union proposals specifically conflicted with 38 U.S.C.
 Section 4110 only insofar as they created alternative grievance
 procedures and allowed binding arbitration of disputes regarding alleged
 "inaptitude, inefficiency, or misconduct" of DM&S professionals.  The
 court, at 958, stated that:
 
          Section 4110 covers these explicit matters of professional
       performance, but does not create procedures for the resolution of
       disputes over other personnel decisions common to all employment
       situations, such as vacation assignments or working conditions.
       We hold, therefore, that the union proposals before us are
       nonnegotiable insofar as they offer DM&S professionals
       alternatives to the exclusive section 4110 procedures for the
       resolution of disputes covered by that section.  Our decision does
       not preclude proposals concerning grievance procedures, which
       could include binding arbitration, to be used in employment
       disputes not covered by section 4110.
 
    Accordingly, the past bargaining history of the parties and the
 application of VA Minneapolis and VA Northport support the conclusion
 that section 4108 of Title 38 does not operate to remove DM&S employees
 from coverage under the Statute.  /3/
 
  (3) The Effect of the Agency's Regulations on the Negotiability of the
 Conditions of Employment of DM&S Professional Employees
 
    The Agency contends that its personnel regulations constitute
 "legislative regulations" having the same status as the relevant
 sections of Title 38 of the U.S. Code.  We find no support for this
 assertion in the DM&S statute or its legislative history.  Although the
 Administrator is granted authority to promulgate regulations which
 prescribe the conditions of employment for DM&S professionals, there is
 no indication that the exercise of discretion by the Administrator is in
 any way different from that involved when regulations are promulgated by
 other employing Federal agencies.  Thus the grievance procedure set
 forth in VA Manual MP-5, Part II, Chapter 8, Section B is promulgated
 pursuant to section 4108, but is not expressly created by Title 38
 itself.  These regulations differ from the peer review procedures of
 section 4110 in that they are not expressly created by statute.
 
    Section 7117(a) of the Statute provides that negotiations over union
 proposals may be barred by a conflicting regulation only where that
 regulation is either a Government-wide regulation or an internal agency
 regulation for which the agency has demonstrated a compelling need.
 Since the Agency's personnel regulations apply only within the VA
 itself, they are not Government-wide regulations.  The VA has not
 demonstrated that taken as a whole its regulations are supported by a
 compelling need.  Of course, the VA is not precluded from contending
 that a compelling need exists for any of its personnel regulations which
 would bar negotiations on a specific conflicting proposal.
 
                                (4) Summary
 
    We find that requiring the Agency to negotiate over conditions of
 employment of DM&S professional employees is not inconsistent with the
 Administrator's authority under section 4108(a).  The VA's broad reading
 of section 4108(a) to preclude all such collective bargaining must be
 rejected.
 
    For the reasons set forth, we find that a conflict does not exist
 between 38 U.S.C. Section 4108(a) and the duty to bargain under section
 7117 of the Statute.  Consequently, section 4119 of the DM&S Statute
 does not apply, and thus does not remove all conditions of employment of
 DM&S professional employees from the VA's duty to bargain.  We now turn
 to the specific proposals and contentions presented in this case.
 
                             III.  Proposal 1
 
    Proposal 1 would establish a grievance and arbitration procedure.
 The text of the proposal is set forth in an appendix to this decision.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 1 is inconsistent with the DM&S
 personnel system established under Title 38 for the reasons discussed in
 Section II of this decision.  The Agency also contends that, because
 section 3 of the proposal provides that an employee may be represented
 by "someone approved by the Association," it is contrary to (1) section
 7114(a)(1) and (5) of the Statute, which provides that the union is the
 exclusive representative except that an employee may choose to be
 represented by an attorney or other representative;  and (2) section
 7121(b)(3)(B) of the Statute, which provides that an employee is
 entitled to be represented by the exclusive representative in
 grievances.
 
    The Union disputes the Agency's contentions that a negotiated
 grievance and arbitration procedure is precluded by Title 38.
 Additionally, the Union argues that section 3 of the proposal is not
 inconsistent with the Statute because the Union has a right to designate
 representatives of its own choosing in fulfilling its representational
 functions.
 
                       B.  Analysis and Conclusions
 
    For the reasons discussed in section II, we reject the Agency's
 contention that a proposal establishing a negotiated grievance and
 arbitration procedure is inconsistent with Title 38.  /4/
 
    As to section 3 of Proposal 1, the Authority has held that "it is
 within the discretion of both agency management and labor organizations
 holding exclusive recognition to designate their respective
 representatives when fulfilling their responsibilities under the
 Statute." American Federation of Government Employees, AFL-CIO, 4 FLRA
 272, 274 (1980).  Contrary to the Agency's contention, the Authority's
 decision in National Federation of Federal Employees, Local 1001 and
 Department of the Air Force, Vandenberg Air Force Base, California, 15
 FLRA 804 (Provision 1) does not require a finding that the proposal here
 is nonnegotiable.  In Vandenberg Air Force Base, the Authority held that
 if an employee chooses to be represented in a grievance under a
 negotiated grievance procedure, the employee may be represented only by
 the exclusive representative.  However, this limitation on the right of
 an employee to designate his or her own representative does not also
 limit the right of the union to designate its own representative in a
 grievance under a negotiated grievance procedure.  Consequently, section
 3 of the proposal is not inconsistent with section 7114(a)(1) and (5) or
 section 7131(b)(3)(B) of the Statute.
 
    Accordingly, we conclude that Proposal 1 is within the duty to
 bargain.
 
                              IV.  Proposal 2
 
                        Article XI -- Tours of Duty
 
          Section 1.  The schedules of nurses will be established as
       regular tours of duty consisting of eight consecutive hours per
       day, exclusive of 1/2 hour on-duty meal time where the schedule
       provides time for a meal.
 
          Section 2.  Five consecutive days will be the normal tour of
       duty followed by two consecutive days off.  This tour of duty may
       be extended to not more than six consecutive days with two
       consecutive days off.  Management will consider nurses' requests
       for exceptions to this policy.  Split days off and split shifts
       will not be scheduled without the employee's consent, with the
       following exception:
 
          Where sick leave requests, emergency vacancies, or emergency
       leave require the Employer to have fill-in coverage, the Employer
       will first seek the consent of the employee involved and/or
       attempt to find replacements before requiring compliance with the
       split day schedule.
 
          Section 3.  Time schedules will be planned to provide for 15 or
       more hours of non-duty time between the completion of one tour and
       the beginning of the next tour of duty except at the nurses
       specific request or agreement for less than 15 hours.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 2 concerning tours of duty of
 nurses is outside the duty to bargain because it is (1) contrary to
 "Agency legislative regulations" in the VA personnel manual and the
 right of the Administrator under sections 4108(a) and 4119 of Title 38
 to establish conditions of employment for DM&S professional employees as
 discussed in section II of this decision;  (2) integrally related to,
 and determinative of, the numbers and types of employees assigned to a
 tour of duty so as to be negotiable only at its election under section
 7106(b)(1) of the Statute;  and (3) contrary to internal agency
 regulations making care and treatment of patients the primary
 consideration in scheduling of nurses.  The VA claims that there is a
 compelling need under the Authority's regulations because the VA's
 regulations are essential to the accomplishment of its mission.  The
 Agency also argues that the proposal is (1) inconsistent with the
 Agency's discretion under section 4107(h)(1) of the DM&S Statute to
 establish a "Baylor plan" in which nurses are paid for a full
 administrative work week by working two 12 hour shifts on the weekend;
 and (2) contrary to the Agency's right under section 7106(a)(2)(B) of
 the Statute to assign work.
 
    The Union disputes the Agency's contentions as to a conflict with its
 legislative regulations or with Title 38 and states that the legislative
 history of the 1980 amendments to the DM&S Statute shows that Congress
 intended VA to negotiate over conditions of employment, including tours
 of duty.  The Union states that its proposal is consistent with laws
 concerning work schedules and with the VA regulations, and that the
 sections of the proposal are negotiable procedures and appropriate
 arrangements under section 7106(b)(2) and (3) of the Statute.  The Union
 also contends that its proposal is not inconsistent with the Agency's
 patient care mission and does not prevent the Agency from establishing a
 Baylor plan.
 
                       B.  Analysis and Conclusions
 
    For the reasons discussed at section II above, we reject the Agency's
 contention that it has no duty to bargain over the proposal because it
 is inconsistent with "Agency legislative regulations" or because
 conditions of employment are removed from the duty to bargain by Title
 38.
 
    Proposal 2 establishes limitations on management's ability to
 determine the work schedules of its nursing employees, namely, it
 prescribes regular tours of duty and precludes split shifts and split
 days off.  Union Statement of Intent as to Article IX, Attachment to
 Union Petition for Review.  The effect of those limitations is to
 prevent management from changing nursing schedules to meet its patient
 care needs.  In particular, the Agency states, and the Union does not
 dispute, that "nurses perform different duties during different shifts.
 Individual nurses have specialized skills and responsibilities which are
 not necessarily interchangeable." Agency Statement of Position at 54.
 See also Agency Statement of Position at 48-49.  In practical terms this
 means that the nature of the work which needs to be done may vary with
 the shift and that the nursing skills required may likewise vary with
 the shift.  Under the restrictions imposed by the proposal, therefore,
 management would be unable to assign the nurse who can perform the
 particular work which must be done to the shift on which that work is
 required.  That is, the Agency would be unable to schedule nurses with
 specialized skills to perform specific tasks on the particular shift
 where that work must be done.
 
    For this reason, we find that the proposal has the same effect as
 Proposal 2 in National Association of Government Employees, Local R14-8
 and Veterans Administration Medical Center, Topeka, Kansas, 24 FLRA No.
 17 (1986).  In that case, the proposal would have restricted
 management's right to determine employee work schedules by, for example,
 precluding management from scheduling two different tours of duty in the
 same week, regardless of the agency's work requirements and whether a
 particular employee's skills were needed on a particular shift.  We
 found that the proposal in that case directly interfered with
 management's right to assign work pursuant to section 7106(a)(2)(B) of
 the Statute by preventing it from scheduling an employee to perform
 particular duties on a specific shift consistent with the agency's
 patient care requirements.  Because Proposal 2 here would similarly
 interfere with management's right to assign work, it is not a negotiable
 procedure and is outside the Agency's duty to bargain.
 
    This proposal is distinguishable from cases in which the Authority
 has held that proposals prescribing criteria for the assignment of
 employees to shifts are negotiable.  See, for example, International
 Plate Printers, Die Stampers and Engineers Union of North America,
 AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and
 Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provision 4).  The
 proposal in that case concerned shift assignments of employees whose
 work remained the same regardless of the shift and who were all equally
 qualified to perform that work.  As noted above, the record in this case
 indicates that not all nurses are qualified to perform the various
 specialized medical procedures required for adequate patient care and
 the times at which that expertise may be needed may also differ from day
 to day and week to week.
 
    The Union states that its proposal is consistent with the Agency's
 staffing needs with regard to its patient care mission (Memorandum in
 Support of Petition for Review at 55-56).  Section 17 of the Tours of
 Duty Article states that exceptions may be made to the article's
 requirements when required by the Agency's patient care needs only with
 respect to Sections 4, 5, 6, 7, 9, 14 and 16.  However, neither the
 language of the Union's proposal nor the record indicates that a similar
 exception is provided for Sections 1-3.  In this respect, therefore, the
 proposal here is distinguishable from Proposal 3 in VA Medical Center,
 Topeka, In that case, we found that the use of the word "ordinarily" in
 the proposal protected the Agency's right to vary employees' days off in
 order to provide for its patient care needs.  As noted above, no such
 protection is present in Proposal 2 in this case.
 
    Additionally, the Union's contention that 5 U.S.C. Section 6101
 requires the Agency to establish a regular work schedule as proposed by
 the Union is without support.  Even assuming that professional medical
 employees of the DM&S are subject to 5 U.S.C. Section 6101, the proposal
 makes no allowance for the Agency's right under that statutory provision
 to make exceptions from its requirements where the Agency would
 otherwise be seriously handicapped in carrying out its functions.  The
 proposal in this case, therefore, is like Proposal 3 in Tidewater
 Virginia Federal Employees Metal Trades Council and Department of the
 Navy, Navy Public Works Center, Norfolk, Virginia, 25 FLRA No. 1 (1987)
 and distinguishable from Union Proposal 3 in VA Medical Center, Topeka
 and Union Proposal 4 in National Association of Government Employees,
 SEIU, AFL-CIO and Veterans Administration Medical Center, Grand
 Junction, Colorado, 24 FLRA No. 21 (1986).  In Navy Public Works Center,
 we found that the proposals in the Topeka and Grand Junction cases
 expressly permitted management to take into account actual work
 requirements when deciding employee work schedules and thereby
 incorporated the statutory and regulatory requirements.
 
    As to whether Proposal 2 constitutes an appropriate arrangement,
 after this case was filed the Authority issued National Association of
 Government Employees, Local R14-87 and Kansas Army National Guard, 21
 FLRA No. 4 (1986).  In that case, the Authority stated that it would
 determine whether a proposed "arrangement" for employees adversely
 affected by the agency's exercise of its section 7106 rights is
 "appropriate" for negotiation within the meaning of section 7106(b)(3),
 or whether it is inappropriate because it would "excessively interfere"
 with the exercise of management's rights.  We find that even assuming
 that the proposal constitutes an "arrangement" for employees adversely
 affected by the exercise of a management right within the meaning of
 section 7106(b)(3), it is not an "appropriate" arrangement.  Although
 the Union's proposal would substantially benefit employees by providing
 them with regular schedules, it would do so at the cost of management's
 flexibility to schedule nurses on irregular tours of duty to fulfill its
 patient care mission.  Since the Union's proposal would eliminate that
 flexibility, we find that Proposal 2 would excessively interfere with
 the Agency's right to assign work and is not an appropriate arrangement.
 
    Accordingly, for the reasons set forth, Proposal 2 is outside the
 duty to bargain.  In view of this determination, we need not decide
 whether the proposal also violates the Agency's right to determine the
 number of employees assigned to a tour of duty, prevents it from
 establishing a Baylor plan, or conflicts with an internal regulation
 which is supported by a compelling need.
 
                              V.  Proposal 3
 
                        Article XI -- Tours of Duty
 
          Section 5.  Management will take responsibility for planning
       time schedules so employees will not have more than two different
       tours of duty within a period of seven consecutive days beginning
       with Sunday.  One of these tours of duty will be the day tour
       unless requested otherwise by the nurse.  The rotating nurse will
       work the day shift prior to rotating to the night tour of duty.
       Changes to an irregular tour other than these approved will be
       discussed with the individual nurse or nurses.
 
          (The underscored portion of this proposal is at issue.)
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 3 prohibits the Agency from
 assigning nurses to more than two major tours of duty in a seven day
 period in violation of its rights to assign employees under section
 7106(a)(2)(A) and to determine the numbers, types, and grades of
 employees assigned to a work project or tour of duty under section
 7106(b)(1) of the Statute.
 
    The Union contends that its proposal constitutes a negotiable
 procedure and an appropriate arrangement.
 
                       B.  Analysis and Conclusions
 
    Proposal 3, like Proposal 2 discussed above, restricts management's
 ability to schedule nurses so as to assign particular nurses to perform
 specific duties on particular shifts, namely, by precluding management
 from assigning nurses to a third tour of duty during a workweek.  Unlike
 Proposal 2, however, the proposal here takes into account the Agency's
 patient care needs.  Section 17 of the Tours of Duty Article provides
 that in implementing section 5, among other sections, "the Association
 recognizes the unique problems of staffing and patient care at the Fort
 Lyon VA and agrees to work with Nursing Service to develop and accept
 exceptions to the aforementioned sections when the needs of the hospital
 dictate." By thus protecting management's right to determine which
 nurses will perform specific duties on particular shifts, the proposal
 does not directly interfere with management's right to assign work and
 is within the Agency's duty to bargain.  See National Association of
 Government Employees, Local R14-8 and Veterans Administration Medical
 Center, Topeka, Kansas, 24 FLRA No. 17 (1986) (Union Proposal 3) and
 National Association of Government Employees, SEIU, AFL-CIO and Veterans
 Administration Medical Center, Grand Junction, Colorado, 24 FLRA No. 21
 (1986) (Union Proposal 4).
 
    We disagree with the Agency's contention that the proposal violates
 its right under section 7106(b)(1) of the Statute to determine the
 numbers, types, and grades of employees assigned to a tour of duty.
 Unlike American Federation of Government Employees, Local 3669, AFL-CIO
 and Veterans Administration Medical Center, Minneapolis, Minnesota, 2
 FLRA 640 (1980), cited by the Agency, the Agency here has not shown how
 the Union's proposal would require it to hire additional nurses to meet
 its staffing needs.
 
    Because we find that Proposal 3 does not directly interfere with
 management's rights, we do not need to reach the question of whether
 Proposal 3 constitutes an "appropriate arrangement" within the meaning
 of section 7106(b)(3) of the Statute.
 
                              VI.  Proposal 4
 
                        Article IX -- Tours of Duty
 
          Section 11.  Reassignments from one ward to another for relief
       will be made only in emergencies and after evaluation by the
       appropriate supervisor and with consultation with the staff nurse
       or nurses involved.  Every attempt will be made to avoid replacing
       nonprofessional employees with staff nurses.
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 4 violates its rights under section
 7106(a)(2)(B) to assign work and determine the personnel by which agency
 operations shall be conducted.  The Union contends that the proposal
 constitutes a negotiable procedure and an appropriate arrangement.  The
 Union states that the last sentence of the proposal does not prevent the
 Agency from assigning duties to nurses since it merely provides that
 "(e)very attempt will be made to avoid replacing nonprofessional
 employees with staff nurses."
 
                       B.  Analysis and Conclusions
 
    The first sentence of Proposal 4 would prohibit the Agency from
 reassigning nurses from one ward to another for relief except in
 emergencies.  This proposal is not a negotiable procedure since it
 directly interferes with management's right to assign work by
 conditioning the Agency's ability to assign work by conditioning the
 Agency's ability to reassign employees to other duties upon the
 ex-stence of an emergency.  See National Labor Relations Board Union,
 Local 19 and National Labor Relations Board, Region 19, 2 FLRA 775
 (1980) (proposal establishing a condition on management's ability to
 assign specified duties to a particular employee directly interferes
 with management's right to assign work).  While the fact that the
 proposal would permit management to make reassignments in an emergency
 renders the proposal consistent with management's right to take action
 in an emergency under section 7106(a)(2)(D) of the Statute, it directly
 interferes with management's right to assign work because it would
 prohibit management from making such reassignments in situations which
 are not "emergencies." Management's right to assign work to employees
 under section 7106(a)(2)(B) is not limited to emergencies. If it were,
 section 7106(a)(2)(B) and section 7106(a)(2)(D) would be redundant.  For
 these reasons, we find that Proposal 4 directly interferes with
 management's right to assign work and is outside the Agency's duty to
 bargain.
 
    As to whether the first sentence of the proposal constitutes an
 appropriate arrangement, we note that neither the Union nor the Agency
 makes any specific arguments concerning the manner in which the
 limitation on reassigning nurses between wards would either benefit
 employees or interfere with the Agency's ability to fulfill its patient
 care mission.  However, even assuming that the proposal constitutes an
 "arrangement" for employees adversely affected by the exercise of a
 management right, we find that it is not an "appropriate" arrangement
 within the meaning of section 7106(c)(3).  Because the proposal would
 prevent management from reassigning nurses from one ward to another in
 situations which may not be considered "emergencies" for purposes of the
 proposal, it would totally abrogate management's right to assign work.
 We conclude, therefore, that the first sentence of Proposal 4
 excessively interferes with management's right to assign work and is
 outside the duty to bargain.
 
    The second sentence of the proposal would require the Agency to make
 "every attempt" to avoid assigning non-professional duties to staff
 nurses.  We find that the sentence therefore imposes a substantive
 condition on management's right to assign work to employees.  Rather
 than preserving management's right to assign work, the language
 restricts the exercise of that right by establishing a criterion under
 which management must justify its action in assigning non-professional
 duties to staff nurses.  For this reason, we find that the second
 sentence of Proposal 4 directly interferes with management's right to
 assign work.  See National Federation of Federal Employees, Local 615 V.
 Federal Labor Relations Authority, 801 F.2d 477, 479-80 (D.C. Cir.
 1986), affirming National Federation of Federal Employees, Local 615 and
 National Park Service, Sequoia and Kings Canyon National Parks, U.S.
 Department of Interior, 17 FLRA 318 (1985).
 
    Moreover, we find that the second sentence of Proposal 4 does not
 constitute an "appropriate arrangement" within the meaning of section
 7106(b)(3) of the Statute.  Even assuming that the sentence constituted
 an "arrangement" for employees adversely affected by the exercise of a
 management right, because it would totally abrogate management's right
 to assign work, it would excessively interfere with that right so as not
 to be an "appropriate" arrangement.  For this reason, the second
 sentence of Proposal 4 is outside the Agency's duty to bargain.
 
                             VII.  Proposal 5
 
                        Article XI -- Tours of Duty
 
          Section 13.  Notices of Professional Nurse vacancies within the
       VA System will be maintained in a folder and available around the
       clock in the Nursing Service Conference Room.  Notices of
       in-hospital vacancies will show on the Nursing Service Staffing
       Board.  Notices will be posted promptly when the employer becomes
       aware of the vacancy.  Preference will be given to nurses
       presently employed when a vacancy is available.
 
          (Underscored portion of section is at issue.)
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 5 is contrary to the VA's
 legislative regulations and, for the reasons set forth in section II of
 this decision, that it has no duty to bargain over the proposal.  The
 Agency also argues that the proposal violates management's right under
 section 7106(a)(2)(C) to make selections in filling vacancies.
 
    The Union states that Proposal 5 is consistent with the intent of the
 1982 amendments to the DM&S Statute which were designed to improve
 recruitment and retention of nurses.  The Union also contends that its
 proposal constitutes a procedure which allows the Agency to hire the
 most qualified nurse applying from within the DM&S system, hire from
 outside if there are no applicants from within, or choose not to fill a
 vacancy at all.  The Union also contends that the Agency has not
 demonstrated a compelling need for its internal regulations.
 
                       B.  Analysis and Conclusions
 
    For the reasons set forth at section II of this decision, we reject
 the Agency's contention that it has no obligation to bargain because the
 proposal is inconsistent with Agency legislative regulations.
 
    We find, however, that Proposal 5 would directly interfere with
 management's right to make selections for positions from any appropriate
 source and is not a negotiable procedure.  The Union states that
 Proposal 5 would not preclude a selection from outside the Agency.
 Memorandum in Support of Petition for Review at 65.  That is, the Agency
 must select a candidate applying from within the Agency, unless there
 are no internal applicants.  By limiting the sources from which
 management will make selections to fill bargaining unit vacancies,
 namely, to promotion or reassignment from within the Agency, Proposal 5
 directly interferes with management's rights under section 7106(a)(2)(C)
 and is outside the duty to bargain.  See American Federation of
 Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA
 674 (1985) (Proposal 1).  Because it dictates a source for selection,
 Proposal 5 is distinguishable from proposals requiring an agency to
 consider unit employees for vacancies prior to seeking outside
 applicants.  See, for example, National Federation of Federal Employees,
 Local 1332 and Headquarters, U.S. Army Materiel Development and
 Readiness Command, Alexandria, Virginia, 6 FLRA 361 (1981), finding
 negotiable the first sentence of Proposal IV.  We do not need to reach
 the issue of a compelling need for the Agency's regulation.
 
                             VIII.  Proposal 6
 
                        Article XI -- Tours of Duty
 
          Section 16.  Relief p.m. and night duty will be distributed as
       equitably as possible.  Every consideration will be given to a
       nurse's desire to relieve exclusively on either the p.m. or night
       tour of duty, among staff nurses, provided that skills,
       qualifications and performance meet the needs of the assigned
       area.
 
          (Underscored portion of section is at issue.)
 
                       A.  Positions of the Parties
 
    The Agency contends that Proposal 6 violates its rights under section
 7106(a)(2)(A) and (B) of the Statute to assign employees and assign
 work.  The Union disputes the Agency's contentions and argues that
 Proposal 6(1) is a negotiable procedure, and (2) establishes a general
 standard by which the Agency's application of performance standards to
 employees could be evaluated in a subsequent grievance.
 
                       B.  Analysis and Conclusions
 
    We find that this proposal constitutes a negotiable procedure by
 which the Agency will exercise its right to assign work.  Proposal 6 is
 to the same effect as the second paragraph of the proposal in
 Association of Civilian Technicians and State of Georgia National Guard,
 2 FLRA 580, 583-85 (1980), which the Authority found within the duty to
 bargain.  The proposal in Association of Civilian Technicians provided
 that general cleanup duties were to be assigned on an equitable basis.
 The Authority found that the proposal was a procedure to ensure fairness
 and equity in the assignment of duties and was not concerned with
 whether employees will or will not be required to perform such duties.
 Similarly, the Agency has not shown that the proposal here would prevent
 it from assigning relief p.m. and night duty to nurses.  Rather, the
 proposal provides that, once the Agency has decided to assign such
 duties to nurses, such assignments will be made in a fair and equitable
 manner.  Additionally, the Agency has not demonstrated that the proposal
 concerns its right to assign employees.  Consequently, for the reasons
 set forth more fully in Association of Civilian Technicians, Proposal 6
 is within the duty to bargain.
 
                                IX.  Order
 
    The Union's petition for review as to Proposals 2, 4, and 5 is
 dismissed.  The Agency shall upon request, or as otherwise agreed to by
 the parties, bargain concerning Proposals 1, 3, and 6.  /5/
 
    Issued, Washington, D.C., February 20, 1987.
                                       /s/ Jerry L.Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In its response to the Agency's motion, the Union in this case
 requested that the Authority hold an oral argument concerning the
 threshold issue in these cases.  We find, however, that the issue may be
 resolved based on the parties' written submissions and that oral
 argument is unnecessary.  Accordingly, the Union's request is denied.
 
    (2) See, for example, Memorandum of Petitioner in Support of Petition
 for Review (Case Nos. 0-NG-1209 and 0-NG-1224) at 10-27;  New York State
 Nurses Association Response to Veterans Administration Position
 Statement (Case No. 0-NG-1187) at 7-12;  Memorandum of Petitioner in
 Support of Petition for Review (Case No. 0-NG-1104) at 5-42.
 
    (3) We note that our predecessor agency, the Federal Labor Relations
 Council, had not interpreted section 4108 as barring collective
 bargaining on a range of subjects under Executive Order 11491.  See
 American Federation of Government Employees, Local 1739 and Veterans
 Administration Hospital, Salem, VA, 6 FLRC 208 (1978).  See also
 Memorandum Opinion No. 79-11, 3 Op. Off. Legal Counsel 74 (1979).
 
    (4) Our decision that Proposal 1 is negotiable is based on an
 interpretation of the language of the proposal to exclude matters
 covered by appeals procedures established under 38 U.S.C. Section 4110.
 See our discussion of VA Minneapolis and VA Northport at pp. 2-3 above.
 
    (5) In finding these proposals to be within the duty to bargain, we
 make no judgment as to their merits.
 
 
                                 APPENDIX
 
                             Union Proposal 1
 
            Article X -- Grievances and Arbitration Procedures
 
    Section 1.  Grievances, within the meaning of the Article, include
 any dispute over the interpretation or application of this Agreement.
 This Article does not cover any other matters, including matters for
 which statutory appeals exist, and shall be the exclusive procedure
 available to the parties and the employees in the Unit for resolving
 such grievances.  It is understood that grievances on matters other than
 the interpretation or application of the Agreement may be processed
 under any procedure available for the purpose.  Where the parties have
 decided, for purpose of information, understanding, or otherwise, to
 incorporate in this Agreement by paraphrase reference or repetition,
 provisions of law or higher level policies or regulations, such
 provisions will not be within the scope of this Article.
 
    Section 2.  Every attempt will be made by nurses, the Association,
 and the Hospital to adjust grievances informally and promptly as close
 to the source of the grievances as possible in the interest of sound
 employee-management relations and the mission of the Hospital.  The
 parties agree to make every effort to produce all the facts in relation
 to the grievances at the first step.
 
    Section 3.  Employee representative under this Article is the
 Association or someone approved by the Association.  If there is a
 formal grievance hearing for a registered nurse in the Unit and the
 Association is not chosen by the grievant as his representative, the
 Hospital will notify the Association so that an observer may be present
 if the Association desires.
 
    Section 4.  The procedure and time limits shall be as follows:
 
          Step One
 
          (a) An employee, or group of employees covered by this
       Agreement may present a grievance verbally to the grievant's
       immediate supervisor.
 
          (b) The supervisor will discuss the grievance in private, in
       good faith, and after full and fair consideration of all the
       facts, will attempt to resolve the issue.
 
          (c) The request for such informal adjustment must be made as
       soon as possible after the event has occurred or after the
       grievant(s) has become aware of the event that gave rise to the
       grievance, but in no case later than five (5) calendar days after
       the incident or circumstances occurred about which he is
       concerned.
 
          (d) The supervisor will render a decision verbally to the
       grievant(s) within five (5) calendar days following the
       discussion.
 
          Step Two
 
          (a) If the grievant(s) is not satisfied with the results
       obtained in Step One, and desires to pursue the grievance further,
       the grievant(s) may request that the Association assist him in
       filing with the Chief of Service a formal written grievance on his
       behalf.  Such formal written grievance must be filed within ten
       (10) calendar days after receipt of the decision in Step One.
 
          (b) If such grievance is filed, the Chief of Service, or his
       designee, shall meet within ten (10) calendar days with the
       grievant(s) and the Association may have an individual designated
       by the Association present.  After consideration of all facts, the
       Chief of Service shall render a decision in writing within ten
       (10) calendar days following the discussion.
 
          Step Three
 
          (a) If the decision of the Chief of Service is unacceptable to
       the grievant(s), the grievance may be appealed through the
       Personnel Officer to the Hospital Director within fifteen (15)
       calendar days after receipt of the decision in Step Two.
 
          (b) If such appeal is filed, the Hospital Director or his
       designee shall meet promptly with the grievant(s) and their
       representative, if any.  He shall render his decision, in writing,
       within ten (10) calendar days after close of the grievance
       conference.
 
    Section 5.  If the decision of the Hospital Director or his designee
 does not resolve the grievance to the satisfaction of the grievant(s)
 involved, the Association may submit the issue in dispute to
 arbitration.  Either party may take a case to arbitration and the other
 party will be advised.
 
    Section 6.  Arbitration shall extend to grievances over the
 interpretation or application of this Agreement, but may not extend to
 other matters.  The following procedures shall apply to arbitration:
 
          (a) The request for arbitration shall be in writing and shall
       be submitted to the Hospital within fifteen (15) calendar days of
       receipt of the decision of the Hospital Director.  If the Hospital
       desires arbitration of a dispute it shall notify the Association
       Chairman in writing within 15 days after receipt of ap