25:0875(71)CA - VA, VA Medical Center, Muskogee, OK and AFGE Local 2250 -- 1987 FLRAdec CA



[ 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 t