25:0875(71)CA - VA, VA Medical Center, Muskogee, OK and AFGE Local 2250 -- 1987 FLRAdec CA
[ v25 p875 ]
The decision of the Authority follows:
25 FLRA No. 71 VETERANS ADMINISTRATION VETERANS ADMINISTRATION MEDICAL CENTER MUSKOGEE, OKLAHOMA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO, LOCAL 2250 Charging Party Case Nos. 6-CA-50105 6-CA-50106 DECISION AND ORDER I. Statement of the Case This consolidated unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's Decision filed by the General Counsel. The Respondent filed an opposition to the General Counsel's exceptions. The issue is whether the Respondent's change in the clinical privileges of two bargaining unit physicians without notice to the Union and an opportunity to negotiate over the procedures to be observed in implementing the change and appropriate arrangements for adversely affected employees violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute). For the reasons stated below, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute. /*/ II. Background Drs. M. O. Lewis and Bahaeddin Safavi are physicians employed by the Veterans Administration in a nationwide bargaining unit. Both were assigned to the surgical service at the Veterans Administration Medical Center, Muskogee, Oklahoma (the Medical Center). In August 1983, both physicians received notification that their positions at the Medical Center would not be funded in the 1984 fiscal year budget. Each was given a temporary assignment on October 11, 1983, while efforts were made to arrange transfers. Subsequently, both physicians were retained. Each was subjected to a review by the Professional Standards Board at the Medical Center of his clinical privileges as a result of the determination that he be retained. On October 25, 1984, each physician was informed in a notice granting him "interim clinical privileges" that he would only be permitted to perform general medical and minor surgical procedures. This action removed significant surgical procedures from each physician's previous delineation of permitted surgical privileges. Based on this action, neither was permitted to perform in the areas of surgical specialty for which he had been previously certified. No explanation was provided to either physician for this action. III. Judge's Decision The Judge concluded that the Respondent had no duty to negotiate concerning the procedures to be observed in changing the physicians' clinical privileges or with respect to appropriate arrangements concerning any adverse effect of the change on them. The Judge viewed the determination of clinical privileges to be within the purview of the hospital. While noting that the Respondent did not raise the question of the applicability of Title 38 of the United States Code to the issues of this case, it was his "view" that it cannot be overlooked." In this regard he found that the determination of clinical privileges was a certification or licensing process rather than a performance rating process. Therefore, he rejected the General Counsel's argument that a similarity existed between the determination of critical elements and performance standards and the determination of clinical privileges that occurred in this case. Assuming that an obligation to negotiate does exist generally regarding changes in clinical privileges, the Judge concluded further that the impact or reasonably foreseeable impact on the conditions of employment of bargaining unit employees resulting from the change in clinical privileges of the two physicians, or based on their reassignment, was no more than de minimis. In applying the factors set out in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101 (1985), the Judge noted particularly that while their duties were reduced, both physicians remained in the same positions, at the same pay, hours per week and benefits and that while the changes appeared permanent, only two employees were affected in a unit of some thirty full-time and ten part-time physicians. He concluded further that impact on others, including other physicians nationwide, was purely speculative, and there was no evidence that the parties negotiated analogous changes. Therefore, he concluded that the Respondent was under no obligation to notify the Union and its failure to negotiate did not violate section 7116(a)(1) and (5) of the Statute. IV. Positions of the Parties The General Counsel excepted to the Judge's conclusions, essentially reiterating arguments made to the Judge. In this regard, the General Counsel restated its contention that a similarity existed between clinical privileges for physicians and the critical elements and performance standards required of Title 5 employees for whom the Authority has determined there exists an obligation to give notice and to bargain concerning implementing procedures and appropriate arrangements for adversely affected employees. The General Counsel contended further that because the Respondent did not raise Title 38 of the United States Code as a defense, "it must be concluded that the Respondent has waived any claim of right for its action which was based on that Title." The General Counsel, in excepting to the Judge's conclusion that the change in clinical privileges had no more than a de minimis impact, argued that the change had a substantial and permanent impact on the two physicians and a reasonably foreseeable impact on all unit employees comparably classified. Specifically, the General Counsel argued that the change in clinical privileges had a pervasive impact on the two physicians involved as well as foreseeably on the whole bargaining unit, because such determinations act as a limitation on assignments of the physicians involved, as well as those who work with them, and directly affect their retention and overall career status. In its opposition to the General Counsel's exceptions, the Respondent noted its agreement with the Judge's findings of fact and conclusions of law. With respect to the General Counsel's contention that the Respondent had waived any claim based on Title 38, the Respondent argued that it was inevitable that the Judge would take notice of that Title, even though the Respondent had not specifically proposed it as a defense. V. Analysis It is undisputed, as noted by the Judge, that the complaint in this case is limited to whether the Respondent violated its duty to give notice of and an opportunity to negotiate concerning the procedures to be observed by management in exercising its reserved right to make the change in the two physicians' clinical privileges and over appropriate arrangements for employees adversely affected by the change. While we agree with the Judge that the determination of clinical privileges is particularly within the purview of the hospital, we do not agree with his conclusion that there is no duty to negotiate over the procedures and appropriate arrangements. Neither the Judge nor the Respondent cited any statutory or regulatory bar to such negotiations. In Department of Health and Human Services, Social Security Administration, 24 FLRA No. 42 (1986), we reassessed and modified the de minimis standard previously used to identify the changes in conditions of employment which require bargaining. We stated that in order to determine whether changes in conditions of employment require bargaining, we would carefully examine the pertinent facts and circumstances presented in each case; and that in examining the record, principal emphasis would be placed on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment. We also stated that equitable considerations would be taken into account in balancing the various interests involved; that the number of affected employees and the parties' bargaining history would be given limited application; and that the size of the bargaining unit would no longer be applied. Applying the revised standard to this case, we find that the change in the two physicians' clinical privileges had a reasonably foreseeable effect on their conditions of employment which gave rise to an obligation to bargain. In this regard, the change in the clinical privileges had a significant effect on the two physicians' professional well-being and on their professional credentials. Both physicians suffered an obvious limitation on their future assignments. This limitation additionally would have an effect on their retention standing based on the reduced functions they would be eligible to perform at the Medical Center. Moreover, the change was permanent in nature. In view of these circumstances, we conclude that the Respondent's change in the clinical privileges of the two physicians resulted in an obligation to bargain. Therefore, we conclude that the Respondent's conduct in failing to give notice of and an opportunity to bargain over the change in clinical privileges violated section 7116(a)(1) and (5) of the Statute. VI. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing, find that no prejudicial error was committed, and thus affirm those rulings. We have considered the Judge's Decision and the entire record, including the parties' contentions, and adopt the Judge's findings and conclusions only to the extent consistent with our decision above. ORDER Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, it is ordered that the Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma shall: 1. Cease and desist from: (a) Unilaterally changing the clinical privileges of Drs. M.O. Lewis and Bahaeddin Safavi without first notifying the American Federation of Government Employees, AFL-CIO, Local 2250, the exclusive representative of its employees, and affording it an opportunity to negotiate with respect to the procedures to be observed in implementing such changes and concerning appropriate arrangements for affected employees. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Upon request, negotiate with the American Federation of Government Employees, AFL-CIO, Local 2250, the employees' exclusive representative, with respect to the procedures and appropriate arrangements for employees affected by the implementation of changes in Drs. Lewis and Safavi's clinical privileges. (b) Post at all locations under the direction of its Muskogee, Oklahoma Medical Center, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by Medical Center Director and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VI, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. 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 NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT unilaterally change the clinical privileges of Drs. M.O. Lewis and Bahaeddin Safavi without first notifying the American Federation of Government Employees, AFL-CIO, Local 2250, the exclusive representative of our employees, and affording it an opportunity to negotiate with respect to the procedures to be observed in implementing such changes and concerning appropriate managements for affected employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL upon request negotiate with the American Federation of Government Employees, AFL-CIO, Local 2250, the exclusive representative of our employees, with respect to procedures and appropriate arrangements for employees affected by the implementation of changes in Drs. Lewis and Safavi's clinical privileges. (Activity) Dated: . . . By: Medical Center Director This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region VI, Federal Labor Relations Authority, whose address is: 525 Griffin Street, Suite 926, Dallas, Texas 75202, and whose telephone number is: (214) 767-4996. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case Nos.: 6-CA-50105, 6-CA-50106 VETERANS ADMINISTRATION, VETERANS ADMINISTRATION MEDICAL CENTER, MUSKOGEE, OKLAHOMA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2250 Charging Party Robert M. James, Esquire Mr. John K. Parmelee Mr. Harold K. Haxton For the Respondent Susan E. Jelen, Esquire For the General Counsel Before: ELI NASH, JR. Administrative Law Judge DECISION Statement of the Case Pursuant to a Consolidated Complaint and Notice of Hearing issued on March 29, 1985 by the Regional Director for the Federal Labor Relations Authority, Dallas, Texas, a hearing was held before the undersigned on June 12, 1985. This proceeding arose under the Federal Service Labor-Management Relations Statute (herein called the Statute). It resulted from charges filed on November 8, 1984 and amended on March 13, 1985 by the American Federation of Government Employees, AFL-CIO, Local 2250 (herein called the Union) against Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma (herein called the Respondent or VA Medical Center). The Consolidated Complaint alleges that the Respondent violated sections 7116(a)(1) and (5) of the Statute by unilaterally changing the clinical privileges of two bargaining unit physicians without providing the Union notice and an opportunity to negotiate over procedures to be observed in implementing the changes and appropriate arrangements for adversely affected employees. All parties were represented at the hearing. Each was afforded full opportunity to be heard, adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of Fact The Union is the exclusive representative of both professional and nonprofessional employees at Respondent's Muskogee, Oklahoma facility. The professional bargaining unit there is separate from the nonprofessional bargaining unit and is part of a nationwide professional unit. Although there is no nationwide collective bargaining agreement for these professional employees, parts of the local supplemental agreement for the Muskogee facility are still relevant to that unit. The professional unit is made up of physicians, physician assistants, nurses, psychologists, dentists, social workers, and others. There are about 30 full-time physicians at the Muskogee facility and about 10 more part-time physicians. Approximately 12,000 physicians are employed by the Veterans Administration nationwide. Fred Salas has been at all times material herein, the Director of the VA Medical Center in Muskogee. Although not a physician, he is the administrative head of the facility. The Chief of Medical Staff has been at all times material herein, Martin J. Fitzpatrick, M.D. The major services at the VA Medical Center include ambulatory care (at both Muskogee and the Tulsa Outpatient Clinic), dental service, laboratory service, medical service (general medicine), mental hygiene clinic, nuclear medical service, psychology service, radiology service, rehabilitation medicine service, substance abuse clinic, and surgical service. Dr. Fitzpatrick also serves as chairman of the Professional Standards Board. The Professional Standards Board supervises the performance of medical services at the VA Medical Center, including the determination of clinical privileges. The Board is generally made up of the Chief of Staff and two or more Chiefs of Services. Clinical privileges are the grant of authority to engage in areas of medical practice or other work at the hospital. They are issued to each physician on an individual basis. The privileges outline the type work a doctor may legally and administratively perform in a hospital on a daily basis. The privileges are based on education, training, experience, and acquisition of technical skills of the doctor and are the authority under which the physician works. Duty assignments are made within the perimeters of a physician's clinical privileges. Thus, no physician is permitted to engage in medical practice not included in his description of clinical privilege. The two physicians involved herein, Dr. M. O. Lewis and Dr. Bahaeddin Safavi, have been employed at the VA Medical Center since about 1966. Drs. Lewis and Safavi were both assigned to the surgical service until around August 29, 1983. At that time, both Lewis and Safavi received written notification that their positions at the VA Medical Center would not be funded for the 1984 fiscal year budget. Sometime thereafter, about on October 11, 1983, both physicians were assigned duties at both Muskogee and Tulsa "on a temporary basis" while efforts were made to arrange transfers pursuant to procedures generally used by the Veterans Administration to relocate displaced professionals. Also, around October 11, 1983, Dr. Lewis received notification of action by the Professional Standards Board. The notice stated that since Dr. Lewis had been declared excess to patient case needs and since his future assignments would be primarily in the ambulatory case examination areas his surgical privileges would be limited to "the performance of diagnostic endoscopy." Dr. Lewis thereafter requested clarification of the Board's action. On November 15, 1983, he was informed that his clinical privileges had been restored as those previously carried while he was on interim duty assignment and that his request for termination was being forwarded to higher authority. Both Drs. Lewis and Safavi protested the excessing of their positions and the resulting proposed terminations. The local Oklahoma congressman, Rep. James F. Jones, had requested an on-site visitation as a result of a number of allegations regarding the Muskogee facility. On September 6, 1984, Congressman Jones informed Dr. Lewis that a decision had been made to retain both Dr. Lewis and Dr. Safavi. An excerpt from the report of the VA Administrator, Harry N. Walters, reviewed the findings of the visitation team and made certain recommendations to the Medical Center as follows: Review and update the professional privileges and credentialing of all professional staff members consistent with education, training, professional experience, clinical skills and clinical assignments. Organizationally assign Drs. Lewis and Safavi consistent with their clinical privileges. Although informed by Congressman Jones that his position would not be eliminated, Dr. Lewis did not recall, and no evidence was introduced to show, that he had been informed by Respondent that his position was no longer considered excess. Further, Dr. Lewis was not aware that his position was reviewed as recommended by the VA Administrator in his report. If such a review was made, Dr. Lewis did not receive the opportunity to provide any input. On October 25, 1984, Dr. Lewis received a notice granting him certain "Interim Clinical Privileges." This notice was signed by Dr. Fitzpatrick as Chairman, Professional Standards Board. As a result of this action, Dr. Lewis' surgical privileges were specifically removed from the official delineation of his clinical privileges. Furthermore, his specialty, gastrointestinal fiberoptic endoscopy and colonoscopy were eliminated from his clinical privileges and, as a result, Dr. Lewis was no longer allowed to perform this specialty. Dr. Lewis' specialty of gastrointestinal fiberoptic endoscopy and colonoscopy had been added to his clinical privileges in 1979, following extensive education and training in the field. With the clinical privileges allowed under the October 25, 1984 Interim Clinical Privileges, Dr. Lewis was allowed to perform only general medical and minor surgical procedures. The delineation of clinical privileges for Dr. Safavi dated May 3, 1979 specifically included surgery for pleura, lung, mediastinum, and sternum. On October 25, 1984, Dr. Safavi received "Interim Clinical Privileges" which eliminated his surgical specialty and allowed only general medical and minor surgical procedures. The Union was not notified that the clinical privileges of either Dr. Lewis or Dr. Safavi had been changed. On October 26, 1984, Dr. Lewis was given additional interim ambulatory care assignments. Since October 13, 1983, he had been assigned to the Tulsa Outpatient Clinic two days a week. There he performed the following: C&P exams (compensation and pension examinations) on Tuesday, and surgical clinic (minor surgery) on Thursday. In Muskogee, his assignment were endoscopies (his surgical specialty) on Monday and C&P exams on Wednesday and Friday. On October 26, 1984, Dr. Lewis was informed he was assigned C&P exams and minor surgery in Tulsa on Tuesdays and Thursdays. In Muskogee, he was assigned the proctosigmoidoscopy clinic on Mondays, review of C&P exams (primarily paperwork) on Wednesdays, and concurrent utilization reviews (also primarily paperwork) on Fridays. On February 21, 1985, Dr. Lewis was assigned to work Fridays at the Tulsa Outpatient Clinic after Dr. Safavi had heart surgery and could not return to work. Dr. Lewis also took over Dr. Safavi's examination of blind patients on Wednesday mornings, beginning March 6, 1985. Dr. Safavi had been assigned to the Tulsa Outpatient Clinic on Wednesdays (C&P exams) and Fridays (surgical clinic) in October 1983. At Muskogee, he performed C&P exams on Monday and worked surgical clinic Tuesdays and Thursdays. On October 26, 1984, Dr. Safavi was assigned to the proco-sigmoidoscopy clinic, the back clinic, and the fee basis program review in Muskogee on Mondays, Tuesdays and Thursdays, respectively. His Tulsa Outpatient Clinic assignments remained the same. The Union was not given notice of the changes in work assignments for Drs. Lewis and Safavi. Dr. Safavi did not testify at the hearing because of illness. Dr. Lewis testified that as a result of the change in clinical privileges he has not been permitted to work in his specialty of gastrointestinal endoscopy. He further testified that the loss of his clinical privileges in this area will cause him to be unable to obtain malpractice insurance for his work. The removal of his clinical privileges has also affected his professional standing in the medical community. The Union also expressed concerns that the loss of clinical privileges could affect the physician's annual proficiency rating. Title 38 of the United States Code is the statutory authority under which Veterans Administration physicians work. Physicians do not have position descriptions, instead they are given clinical privileges which state the areas in which physicians are entitled to practice their profession within the Veterans Administration. By changing an employee's clinical privileges, and eliminating a specialty, the physician could be forced to work in an area outside his primary competence. There was Union concern that other bargaining unit employees could potentially be affected by the changes by having to increase their own workload. The Union was also concerned with whether the VA procedures and guidelines had been observed prior to the lifting of the clinical privileges. Finally, the Union expressed an interest in bargaining over the procedures and the impact of details, including such items as transportation, hours of work, and problems with supervision. The record discloses no impact on those areas since the hours, transportation and the like are virtually identical to those previously performed by these physicians. Conclusions There is no question that this case does not involve negotiations regarding the substance of the decision to change the clinical privileges, but concerns only whether Respondent had a bargaining obligation with respect to the impact and implementation of that decision. The General Counsel while not questioning the management right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute /1/ does argue that in accordance with section 7106(b)(2) and (3) of the Statute /2/ the procedures to be observed and the appropriate arrangements for employees adversely affected by managements exercise of those rights are negotiable. /3/ The General Counsel contends that clinical privileges for physicians are similar to critical elements and performance standards for Title V employees. I find no merit in this argument. The record establishes that clinical privileges are based on a physician's education, training, experience and acquisition of technical skills. They are the license permitting a physician to engage in medical practice in a hospital setting. While Respondent does not raise the question of applicability of Title 38 of the United States Code which controls actions of the Veterans Administration in obtaining and keeping professional staff, it is my view that it cannot be overlooked. Certification of physicians and other professionals should be, if it is not, within the specific province of the medical staffs operating Veterans Administration hospitals. They certify the acceptability of professional staff in order to allow them to practice at a particular facility. The function of the Professional Standards Board is to review credentials and recommend membership and listing of clinical privileges; review competence of staff and assignment of practitioners to services; investigate and make recommendations to the Medical Director on matters concerning conduct and ethics. It is not to rate applicants on their performance in any particular period. The certification is a license or ticket to practice medicine in that facility rather than being a measure of performance of a particular individual. It is my view, that the authorization of a clinical privilege is particularly within the purview of the hospital. Accordingly the General Counsel's argument that a similarity exists between critical elements and performance standards and the clinical privileges found in this matter is rejected. Therefore, it is found and concluded that no duty to negotiate concerning the procedures which management would will observe in exercising reserved rights under section 7106 concerning appropriate arrangements for employees adversely affected by management's exercise of those rights existed herein. /4/ Even assuming that any obligation existed to negotiate concerning changes in clinical privileges, Respondent asserts that there is no measurable impact on the working conditions of unit employees involved in the case. While there probably is a measurable effect on each of these physician's standing in the medical community, it is difficult to attach such impact to working conditions in this bargaining union. Since the hearing in the case the Authority has declared its judgment on whether a duty to bargain arises from the exercise of a management right that results in an impact or a reasonably foreseeable impact on bargaining unit employees which is no more than de minimis. See Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101, 19 FLRA 827 (1985); Department of the Treasury, U.S. Customs Service, 19 FLRA No. 128, 19 FLRA 1155 (1985); Bureau of Field Operations, Social Security Administration, San Francisco, California, 20 FLRA No. 9, 20 FLRA 80 (1985); Federal Aviation Administration, Washington, D.C.; 20 FLRA No. 11, 20 FLRA 112 (1985); Department of Housing and Urban Development, Columbia Area Office, Columbia, South Carolina, 20 FLRA No. 31, 20 FLRA 233 (1985); U.S. Department of Housing and Urban Development, Washington, D.C. Area Office, 20 FLRA No. 38, 20 FLRA 374 (1985); Federal Aviation Administration, 20 FLRA No. 45, 20 FLRA 430 (1985); Department of Transportation, Federal Aviation Administration, Wasington, D.C., 20 FLRA No. 52, 20 FLRA 474 (1985); Environmental Protection Agency and Environmental Protection Agency, Region II, 20 FLRA No. 76, 20 FLRA 644 (1985). In the above cases the Authority set out 5 favtors it intended to use in determining whether a change was more than de minimis. Those factors are: the extent of the change in work duties, location, office space, hours, loss of benefits or wages and the like; the temporary, recurring or permanent nature of the change; the number of employees affected or foreseeably affected by the change; the size of the bargaining unit; and the extent to which the parties may have established, through negotiations or past practice, procedures and appropriate arrangements concerning analogous changes in the past. The Authority also noted that a determination as to whether the exercise of a management right under section 7106(a) of the Statute gives rise to a duty to bargain under section 7106(b)(2) and (3) will not necessarily require in every case a determination as to whether the exercise of the management right results in a change in a condition of employment having an impact on bargaining unit employees which is more than de minimis, especially where there is no indication that the nature and degree of impact is at issue in the case. Here Respondent clearly exercised a management right when it reassigned clinical work to Drs. Lewis and Safavi. Therefore, the nature and degree of impact must be considered under criteria established by the Authority. In all the circumstances of this case, applying the recommended factors, I am constrained to find that the impact or reasonably foreseeable impact on conditions of employment of unit employees caused by changing clinical privileges or by reassigning these two physicians was no more than de minimis. Therefore, the Respondent was not obligated to bargain concerning procedures it would observe in exercising its section 7106 rights and concerning appropriate arrangements for adversely affected employees. It must be noted that while the duties of the two physicians were reduced to some extent both remained in the same positions, at the same pay, hours per week and benefits. Both physicians still maintained the capacity to perform the work in ambulatory care as physicians without further training. While the changes appear to be permanent only two employees in a unit of some full-time and ten part time physicians were affected and any impact on others appears to be purely speculative. /5/ Furthermore, it is not clear that analogous changes were ever negotiated at the local level since initially Respondent urged the matter as nonnegotiable. Based on the foregoing, and noting the slight nature of the change, the lack of a showing that working conditions of other bargaining unit employees were affected in any material way, and the small number of employees actually affected, it is found that the impact or the reasonably foreseeable impact of the change on unit employees' conditions of employment in this matter was no more than de minimis. Accordingly, it is found that Respondent was under no obligation to notify the Union and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3), and its refusal to negotiate therefore was not violative of section 7116(a)(1) and (5) of the Statute. It is therefore, recommended that the Authority adopt the following: ORDER IT IS ORDERED that the Consolidated Complaint in Cases No. 6-CA-50105 and 6-CA-50106 be, and they hereby are, dismissed. /s/ ELI NASH, JR. Administrative Law Judge Dated: March 26, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (*) On October 27, 1986, we granted the Respondent's motion for Consideration of Common Issues in Pending Cases, including this case. The common issue concerned the applicability of the Statute to Veterans Administration professional medical employees in the Department of Medicine and Surgery (DM&S) appointed under Title 38 of the United States Code. In Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987), we held that the Statute applies to DM&S employees and as a general matter the Veterans Administration has a duty to bargain over their conditions of employment. To the extent that a similar issue is presented in this case, we reaffirm that holding for the reasons in Colorado Nurses Association. (1) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency -- "(2) in accordance with applicable laws -- "(A) to hire, assign, direct, lay off, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; "(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted . . . " (2) Nothing in this section shall preclude any agency and any labor organization from negotiating -- "(2) procedures which management officials of the agency will observe in exercising any authority under this section; or "(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials." (3) Social Security Administration, 8 FLRA 517 (1982). (4) The evidence reflects that Respondent also met with the Union in October 1983, but contended then that its action was a protected management right under section 7106 of the Statute. (5) The professional unit encompasses all VA professionals nationwide. Any foreseeable impact here, however, would seemingly be limited to the local unit which represents Drs. Lewis and Safavi.