[ v25 p875 ]
25:0875(71)CA
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.