[ v27 p714 ]
27:0714(79)NG
The decision of the Authority follows:
27 FLRA No. 79
ILLINOIS NURSES ASSOCIATION
Union
and
VETERANS ADMINISTRATION
MEDICAL CENTER, NORTH
CHICAGO, ILLINOIS
Agency
Case Nos. 0-NG-1209
0-NG-1224
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7106(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of 12 proposals.
II. Preliminary Matters
The Veterans Administration (VA or Agency) raises two common issues
with respect to the negotiability of each proposal in this case, namely
that: (1) Title 38 of the United States Code provides the Administrator
of the VA with statutory authority to regulate conditions of employment
of professional medical employees in the Department of Medicine and
Surgery (DM&S) and therefore the Agency has no duty to bargain under the
Statute; and (2) that the proposals are barred from negotiations by its
"legislative regulations" which have the force and effect of law. For
the following reasons we reject the Agency's contentions.
In Colorado Nurses Association and Veterans Administration Medical
Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987), petition for review
filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C.
Cir. Feb. 25, 1987), we held that the Statute applies to DM&S employees
and that as a general matter the Agency has a duty to bargain over their
conditions of employment. /1/ In so holding, we rejected the Agency's
contentions that certain sections of Title 38 barred negotiations under
the Statute of DM&S employees' conditions of employment and that the
Agency's personnel regulations constitute "legislative regulations"
which have the force and effect of law. To the extent that similar
issues are presented here, we reaffirm our holdings for the reasons
stated in VAMC, Ft. Lyons.
In addition, since the Agency's personnel regulations apply only
within the VA itself, they are not Government-wide regulations within
the meaning of section 7117(a)(1) of the Statute. See VAMC, Ft. Lyons.
An agency's regulation can bar negotiations on a conflicting Union
proposal, therefore, only if a compelling need exists for that
regulation under section 7117(a)(2) of the Statute and section 2424.11
of our Regulations. In American Federation of Government Employees,
AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison
Region, 21 FLRA No. 104 (1986), the Authority stated that in order to
show a compelling need for an agency regulation, an agency must: (1)
identify a specific agency-wide regulation; (2) show that there is a
conflict between its regulation and the proposal; and (3) demonstrate
that its regulation is supported by a compelling need with reference to
the standards in section 2424.11 of our Regulations.
The Agency does not make any claim that a compelling need exists for
those regulations which are asserted to bar negotiations on Proposals 4,
5, 6, 8, 9, and 12. See the Appendix to this decision for the specific
regulations alleged by the Agency to bar negotiations on those
proposals. Therefore, the Agency's regulations cannot serve to bar
negotiations on the proposals listed above.
Accordingly, we find that there is no conflict between Title 38 of
the United States Code and the duty to bargain under section 7117 of the
Statute. We also find that the proposals are not barred from
negotiations under section 7117(a)(2) by agency regulations for which a
compelling need exists. To the extent that the Agency raises those same
general arguments as to each proposal at issue, we will not restate
those contentions and we will not further consider those issues. We now
turn to the specific proposals and the other issues involved in this
case.
III. Proposal 1
Article VIII, Existing Benefits.
Section 2. No existing local practices or policies which
affect the terms and conditions under which nurses in the unit
work shall be eliminated or modified without consultation between
the Medical Center and the Association. Any agreements reached
shall be consistent with Title 38 and any Government-wide rules
and regulations.
A. Positions of the Parties
The Agency raises no arguments regarding the nonnegotiability of this
proposal other than those addressed in Section II of this decision.
The Union asserts that the Agency's objection to this proposal merely
reasserts its objection to collective bargaining in general.
B. Analysis and Conclusions
Proposal 1 requires that the Agency consult with the Union before
eliminating or modifying nurses' conditions of employment and that any
agreements which result from consultation be consistent with Title 38
and any Government-wide regulations. The Agency's sole contention as to
the negotiability of this proposal has been rejected for the reasons set
forth in Section II of this decision and the record in this case
contains no Agency assertion of any law or Government-wide regulation
which would bar negotiation on this proposal. It is well established
that the parties bear the burden of creating a record upon which the
Authority can make a negotiability determination. National Federation
of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982),
aff'g National Federation of Federal Employees, Local 1167 and
Department of the Air Force, Headquarters, 31st Combat Support Group
(TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party
failing to meet this burden acts at its peril. Consequently, because
the Agency has raised no other grounds on which to base a finding that
this proposal is outside the duty to bargain and because there is no
basis in the record to indicate that Proposal 1 is intended to be
applied in a manner inconsistent with any law or Government-wide
regulation, we find that this proposal is negotiable.
IV. Proposal 2
Article X, Grievance Procedure.
Section 1. The Medical Center and the Association desire that
all employees in the unit be treated fairly and equitably. It is
intended that this grievance procedure will provide a means for
resolving complaints and grievances at the lowest level possible
and the Medical Center and the Association agree to work toward
this end.
Section 2. Grievances include any disputes which arise out of
a claim that any provision of this Agreement has not been complied
with, or out of a claim for dissatisfaction by an employee arising
out of a work related situation such as interpersonal work
relationships or work conditions. The procedures set forth in
this Article are available to all nurses as a way of seeking
adjustment of such grievances. The procedures do not apply to:
(1) any claimed violation of subchapter III of Chapter 73, Title 5
(relating to prohibited political activities); or (2) retirement,
life insurance, or health insurances; or (3) a suspension or
removal under Section 7532 of Title 5; or (4) any examination
certificate, or appointment; or reduction in grade or pay of any
employee; (6) all actions taken by the Chief Medical Director on
the basis of Disciplinary Board recommendations; or (7) in the
case of Nurse Anesthetists all actions and recommendations
resulting from competency reviews by a Professional Standards
Board. (There is no item (5) in this Section.)
Section 4. Nothing herein shall prevent any nurse from
handling her own grievance. However, the President or a
Representative from the Association must be given an opportunity
to be present at the adjustment. The Association shall not be
bound as a precedent by the settlement of any grievance where it
does not officially represent the nurse. During any step in the
grievance procedure, a nurse may have assistance or representation
from the Association. The representative shall be permitted a
reasonable amount of official duty time to consult and prepare the
grievance and response. Such consultations shall be arranged with
notification and approval of the respective supervisors, and shall
not interfere with work responsibilities of the nurse involved.
A. Positions of the Parties
The Agency contends that negotiations on this proposal are precluded
by the authority of the VA Administrator under Title 38 and by the
Agency's "legislative regulations," issues previously addressed in
Section II of this decision.
The Agency also claims that Proposal 2 conflicts with VA Manual MP-5,
Part II, and DM&S Supplement, Chapter 8, because the proposal does not
take into account that aspect of its regulations which provides for
patient care needs to be the primary consideration in adjudicating
grievances. The Agency asserts that a compelling need exists for these
regulations to bar negotiations on Proposal 2.
The Union disputes the Agency's contentions.
B. Analysis and Conclusions
Proposal 2 establishes a negotiated grievance procedure which would
exclude "all actions taken by the Chief Medical Director on the basis of
Disciplinary Board recommendations." This exclusion relates to
disciplinary actions and adverse action procedures for disputes over
alleged professional misconduct or incompetence. These matters are
covered by the appeals procedures established under 38 U.S.C. Section
4110. This proposal is, therefore, to the same effect as Proposal 1 in
VAMC, Ft. Lyons. In that case, we found that the proposal, requiring
the establishment of a grievance and arbitration procedure which
excluded matters covered under Section 4110 of Title 38, was within the
duty to bargain.
The Agency claims that Proposal 2 is barred by regulations for which
a compelling need exists. The Agency has not shown that without the
grievance procedure set forth in its regulations it would be unable to
accomplish its patient care mission in a manner consistent with the
requirements of an effective and efficient government. We conclude,
therefore, that the regulations cited by the Agency are not "essential"
within the meaning of section 2424.11 of our Regulations so as to bar
negotiations on Proposal 2.
Thus, for the reasons set forth in VAMC, Ft. Lyons, we find that
Proposal 2 in this case is likewise within the duty to bargain.
V. Proposal 3
Article XII, Hours of Duty.
Section 2. The duty schedules of full-time nurses shall be
regular tours of duty established as a 40 hour basic work week in
each administrative work week (calendar week). It will consist of
eight consecutive hours per day, exclusive of one-half hour meal
time where the schedule provides time for a meal. Those employees
who work an eight hour shift without a specified meal period will
be immediately available and eat their meals at their worksites.
All nurses shall be provided with at least 15 hours of non-duty
time between the completion of one scheduled tour of duty and the
beginning of the next scheduled tour of duty, except at the
nurse's specific request or agreement for less than 15 hours.
Section 3. Each nursing unit should have a pattern of time
worked out that would provide safe practice with a fair and
equitable distribution of time. Nurses will not be scheduled to
work for more than six (6) consecutive days except by mutual
agreement in writing. Every effort will be made to give nurses
every third weekend off. For purposes of this Agreement a weekend
is considered to be Saturday and Sunday.
Section 4. Individual nurses may request and be assigned to
evening or night tours of duty indefinitely. Such nurses may be
returned to daytime tours of duty for the purpose of closer
supervision, training or development. The remaining nurses
assigned to the Nursing Unit will rotate from days to evenings or
nights but not more than two tours within a one week period unless
requested otherwise in writing by the nurse.
Section 5. Requests of nurses for reassignment or transfer to
areas of clinical interest or personal preference will be
considered in light of the overall needs of the Nursing Service.
Preference will be given to qualified nurses presently employed
when a vacancy in another area is available. When an employee is
accepted for transfer to another position or unit, such transfer
will be implemented within ninety (90) days following acceptance.
Section 11. Overtime requests may be approved, or other
arrangements may be made by the Medical Center if a nurse advises
the supervisor that he/she is unable to complete the minimum
duties required professionally during a tour of duty.
A. Positions of the Parties
The Agency contends that Proposal 3 is inconsistent with management's
rights to direct employees and assign work under section 7106(a)(2)(A)
and (B) of the Statute because the scheduling of nurses for duty would
be based on the circumstances of individual nurses rather than the
patient care needs of the Agency. Further, the Agency argues that
Sections 2 and 4 of this proposal concern matters which are negotiable
only at the election of the Agency under section 7106(b)(1) of the
Statute because these sections concern the numbers, types and grades of
employees or positions assigned to a tour of duty. According to the
Agency, these sections would improperly require the Agency to adjust
scheduling to fit the concerns of individual nurses.
The Agency also claims that Proposal 3 conflicts with VA Manual MP-5,
Part II, Chapters 7 and 11 and the DM&S Supplement, because the proposal
does not take into account that aspect of its regulations which provides
for patient care needs to be the primary consideration in the scheduling
of hours of duty. The Agency asserts that a compelling need exists for
these regulations to bar negotiations on this proposal.
The Union asserts that Proposal 3 in its entirety consists of current
contract language which has been in effect for several years and which
has been approved by the Agency in the past. Further, as to sections 2
and 3 of this proposal, the Union contends that the Agency has confused
hours of work with the assignment of work. Finally, the Union contends
that Section 4 constitutes an appropriate arrangement under section
7106(b)(3).
B. Analysis and Conclusions
Section 2
Section 2 of this proposal would prevent the Agency from changing
nurses' schedules to meet its patient care needs. This portion of the
proposal would, among other things, prescribe regular tours of duty and
preclude split shifts. Section 2 is to the same effect as Proposal 2 in
VAMC, Ft. Lyons, which required the agency to establish regular tours of
duty and prevented the agency from establishing split shifts or
splitting nurses' days off. In that case we found that the proposal was
nonnegotiable because it directly interfered with management's right to
assign work under section 7106(a)(2)(B) of the Statute by preventing the
agency from scheduling an employee to perform particular duties on a
specific shift in a manner consistent with its patient care
requirements. Section 2 likewise would directly interfere with the
Agency's right to assign work and therefore is outside the duty to
bargain. In view of this disposition, it is not necessary to address
the Agency's additional contention that this section concerns matters
which are negotiable only at the election of the Agency under section
7106(b)(1) of the Statute.
Section 3
The first sentence of Section 3 of this proposal provides that there
should be a fair and equitable distribution of time in the scheduling of
nurses' tours of duty. This sentence is to the same effect as the first
sentence of Proposal 6 in VAMC, Ft. Lyons, which we found to be within
the duty to bargain. The proposal in VAMC, Ft. Lyons provided that
evening and night duty would be distributed as equitably as possible.
We found that the proposal was a procedure to ensure fairness and equity
in the assignment of duties and was not concerned with whether employees
will or will not be required to perform particular patient care duties.
Similarly, a provision to fairly and equitably assign overtime was found
to be negotiable in American Federation of Government Employees,
AFL-CIO, Local 1631 and Veterans Administration Medical Center,
Chillicothe, Ohio, 25 FLRA No. 26 (1987). Here, the Agency has not
demonstrated that this portion of the proposal would directly interfere
with its right to assign work to employees. Therefore, the first
sentence of Section 3 is within the duty to bargain.
The second sentence of Section 3 establishes a limitation on the
Agency's ability to determine the work schedules of its nursing
employees. It limits the ability of the Agency to schedule nurses for
more than six consecutive days. The effect of this limitation is to
prevent management from changing nursing schedules to meet its patient
care needs. There is no provision in this sentence that mandates that
assignments take into account the nursing skills necessary to meet the
hospital's patient care requirements. This sentence is therefore
distinguishable from Proposal 6 in VAMC, Ft. Lyons because that proposal
recognized and provided for the skills and qualifications of nurses
needed for patient care. Rather, the second sentence of Section 3 is to
the same effect as Proposal 2 in VAMC, Ft. Lyons, which would have
restricted management's right to determine employee work schedules by,
for example, prescribing regular tours of duty and precluding split
shifts and split days off. We found that Proposal 2 in that case
directly interfered with management's right to assign work by preventing
it from scheduling an employee to perform particular duties on a
specific shift consistent with the agency's patient care requirements.
Because the second sentence of Section 3 would interfere with
management's right to assign work, it is not a negotiable procedure and
is outside the Agency's duty to bargain.
The remainder of Section 3 would require the Agency to make "every
effort" to give nurses every third weekend off. In Proposal 4 of VAMC,
Ft. Lyons, we found that language which required the agency to make
"every attempt" to avoid replacing nonprofessional employees with staff
nurses constituted a substantive condition which interfered with
management's right to assign work. The term "every effort" as used in
Section 3 creates the same substantive limitation as that in VAMC, Ft.
Lyons; the Agency is constrained from assigning a nurse with
specialized skills during the nurse's scheduled free weekend even though
the specialized skills may be needed for particular patient care needs.
We find, therefore, that the remaining portion of Section 3 imposes a
substantive condition on management's right to assign work to employees.
Rather than preserving management's right to assign work, the language
restricts the exercise of that right. For this reason, we find that the
remainder of Section 3 directly interferes with management's right to
assign work under section 7106(a)(2)(B) of the Statute.
Section 4
The first portion of Section 4 of the proposal requires that the
Agency, if requested, assign individual nurses to evening or night tours
of duty "indefinitely" but would allow the Agency to return those nurses
to daytime duty for the purposes set forth in the proposal. The effect
of this portion of Section 4, therefore, is to require that the Agency
assign certain nurses to specific tours of duty. By thus requiring the
Agency to grant a nurse's request for assignment to a particular tour of
duty, this portion of the proposal would restrict management's ability
to assign that nurse to a different tour of duty where it determines
that his or her specialized skills are needed to perform particular
duties. That is, the determinative factor in assigning nurses to tours
of duty under this section of the proposal is the individual nurse's
request, not the patient care needs of the Agency. This portion of the
proposal is, therefore, to the same effect6 as Proposal 2 in VAMC, Ft.
Lyons, which required the VA to establish "regular" tours of duty.
Consequently, for the reasons stated in our discussion of that proposal,
we find that this portion of Section 4 of the proposal is likewise
outside the Agency's duty to bargain. Compare National Federation of
Federal Employees, Local 1798 and Veterans Administration Medical
Center, Martinsburg, West Virginia, 27 FLRA No. 37 (1987) (Proposal 9)
(proposal requiring management to grant employee request for shift
assignment held negotiable because it provided for the patient care
needs of the agency).
The remaining portion of Section 4 places a limitation on the
Agency's ability to determine the work schedules of its nursing
employees. It requires the Agency to rotate certain nurses from the day
shift to the evening or night shifts within the limitation stated in the
proposal. The effect of this portion of the proposal is to prevent the
Agency from changing its nursing schedules to meet its patient care
needs. This portion of Section 4 is distinguishable from Proposal 3
which we found to be negotiable as a "procedure" in VAMC, Ft. Lyons.
The parties in that case specifically acknowledged, and thereby
protected, the agency's exercise of its discretion with regard to its
unique patient care needs.
This portion of the proposal, however, is to the same effect as
Proposal 2 in VAMC, Ft. Lyons, which restricted management's right to
determine employee work schedules by, for example, prescribing regular
tours of duty and precluding split shifts and split days off regardless
of the agency's work requirements and whether a particular employee's
skills were needed on a particular shift. We found that the proposal in
that case directly interfered with management's right to assign work.
Because this portion of Section 4 would similarly interfere with
management's right to assign work, it is not a negotiable procedure and
is outside the duty to bargain.
The Union claims that Section 4 constitutes an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute for
employees adversely affected by management's decision to schedule those
employees for more than one tour of duty in a given workweek. The Union
states that by limiting management's ability to change an employee's
tour of duty the proposal protects employees against the "adverse
consequences" of multiple tours of duty. Even assuming, however, that
Section 4 constitutes an "arrangement" for employees adversely affected
by management's right to assign work, it would not be an "appropriate"
arrangement within the meaning of section 7106(b)(3). Limiting
management to one change in an employee's tour of duty in a workweek
would excessively interfere with management's right to assign work so as
to meet the requirements of its patient care needs. For this reason, we
cannot find that Section 4 is an appropriate arrangement within the
meaning of section 7106(b)(3).
Section 5
We find that Section 5, except for the last sentence, is within the
duty to bargain. Section 5 provides, among other things, that unit
employees may request reassignment to other areas and that they will be
given preference for vacancies in those areas. Section 5 is
distinguishable from Proposal 5 in VAMC, Ft. Lyons, requiring that
preference will be given to nurses currently employed. We found that
proposal to be nonnegotiable based upon the union's statement as to the
intended effect of the proposal. The union stated that the proposal in
that case permitted management to select a candidate from outside the
agency only where there were no internal candidates. Because it limited
the sources from which management would make selections to fill
bargaining unit vacancies, namely, promotion or reassignment from within
the agency where there are qualified internal candidates, we found that
the proposal directly interfered with management's rights under section
7106(a)(2)(C).
The Union in this case, however, states that the purpose of Section 5
is to insure that unit nurses will know what job opportunities are
available so that they can apply and be considered and thus be able to
realize their goals for different work experiences. Section 5 therefore
has the same effect as the first paragraph of Proposal 2 in National
Treasury Employees Union and Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, 26 FLRA No. 60 (1987). That portion of
Proposal 2 provided that unit employees be given priority consideration
in filling vacancies and we held that it was negotiable. Based on the
intent of Section 5 that unit employees have the opportunity to be
considered, but not necessarily be selected, we find that this portion
of the proposal does not directly interfere with management's rights
under section 7106(a)(2)(C).
The last sentence of Section 5 requires the Agency to implement
reassignments within 90 days of the acceptance of the employee for
transfer. This part of Section 5 is to the same effect as Proposal 7 in
American Federation of Government Employees, AFL-CIO, Local 1738 and
Veterans Administration Medical Center, Salisbury, North Carolina, 27
FLRA No. 13 (1987). In that case, the proposal required management to
put an employee who had been selected for a position into that position
within 2 weeks. We held that the proposal violated management's right
to assign work under section 7106(a)(2)(B) of the Statute. For the
reasons stated in VAMC, Salisbury, we find that the last sentence of
Section 5 interferes with management's right to assign work under
section 7106(a)(2)(B).
Section 11
Section 11 constitutes a negotiable procedure by which the Agency
will exercise its right to assign work. The Agency may use whatever
means it desires to meet staffing needs when a nurse notifies a
supervisor that he or she is unable to complete the tour of duty. As
the Union indicates, overtime is merely one option available to the
Agency. The Agency retains the ability to select among all the options
available to it, including mandatory overtime. See American Federation
of Government Employees, National Joint Council of Food Inspection
Locals and Department of Agriculture, Food Safety and Quality Service,
Washington, D.C., 9 FLRA 663 (1982).
Compelling Need
Finally, the Agency claims that Proposal 3 is barred by regulations
for which a compelling need exists. Because Section 2, Section 3
(except for the first sentence), Section 4, and Section 5, have been
found to be nonnegotiable, we need not reach the issue of compelling
need for regulations to bar those portions of Proposal 3.
We turn to the Agency's allegation of compelling need as it pertains
to the portions of Proposal 3 which we have found are otherwise
negotiable. The Agency contends that the proposal conflicts with that
aspect of its regulations which requires patient care needs to be the
primary consideration in scheduling the work of nurses. However, we
found that the first sentence of Section 3 is consistent with the
Agency's patient care needs. We also found that under Section 11 the
Agency retained every available option concerning the scheduling of
overtime. Consequently, we conclude that the first sentence of Section
3 and Section 11 do not conflict with the patient care requirements of
the Agency's regulations and, therefore, that those portions of Proposal
3 are not barred from negotiation by an agency regulation for which a
compelling need exists.
VI. Proposal 4
Article XIII, Salaries.
Section 1. The Medical Center will participate in the Chicago
Hospital Council's annual survey of salaries paid to nurses in
public and private hospitals throughout the area. The Medical
Center will make the information available to the Association.
The Association may also provide authenticated information and
data pertinent to the above survey. Such information and data
will be considered by the Medical Center, along with the facts it
has obtained, in reaching a decision on recommendations for
special pay rates or salary adjustments.
A. Positions of the Parties
The Agency contends that Proposal 4 violates its right to assign work
under section 7106(a)(2)(B) because it would have to assign someone to
review any data submission made by the Union. The Agency states that
the proposal would also require participation in a specific wage survey,
while the Agency does not have to participate in such a survey under
statutory requirements which remove this matter from conditions of
employment under section 7103(a)(14)(C) of the Statute.
The Union argues that the Agency has misrepresented the meaning of
Proposal 4. Specifically, the Union asserts that the proposal merely
provides for Agency consideration of the Union's salary survey.
Further, while it acknowledges that wage setting is outside the
collective bargaining process, the Union asserts that the proposal
provides a procedure by which it can make some contribution to the wage
determination. The Union states that the Agency participates in the
Chicago Hospital Council's wage survey by its own choice.
B. Analysis and Conclusions
We find that the proposal requiring the Agency's participation in the
Chicago Hospital Council's wage survey is negotiable. Under 38 U.S.C.
Section 4107(g) the VA Administrator may increase the rates of basic pay
of nurses and other professional medical employees on a nationwide,
local, or other geographic basis. The increase in the rate of basic pay
may be made to provide pay competitive with that paid to the same
category of personnel at non-Federal facilities in the same labor
market.
Under VA regulations, the Facility Director is responsible for
submitting a request for a change in the rate of basic pay. VA Manual
MP-5, Part II, Chapter 3-5d. A request which is approved by officials
within DM&S above the level of the facility is forwarded to the VA
Administrator for concurrence. Therefore, the VA Administrator has
discretion under 38 U.S.C. Section 4107(g) not only to adjust rates of
basic pay but to do so based on information as to salary rates at
non-Federal hospitals in a given locality.
The proposal simply outlines a series of steps which the Agency is to
follow in gathering information on salary rates for nurses in the local
area. It establishes a procedure whereby the Agency exercises its
discretion under law regarding possible increases in the rates of basic
pay for nurses. The Agency's contention as to section 7103(a)(14)(C)
is, therefore, inapposite. The proposal here concerns procedures for
developing information on salary rates, a matter which is not
specifically addressed by 38 U.S.C. Section 4107(g). Thus we find that
the portion of the proposal requiring the Agency's participation in the
Chicago Hospital Council survey is within the duty to bargain. /2/
We also find that Proposal 4 does not interfere with the Agency's
right to assign work under section 7106(a)(2)(B). The proposal would
allow the Union to submit data regarding wage rates in the area. The
proposal is silent concerning who is to accomplish the review of the
Union's submission. Thus, the Agency retains total discretion to assign
the task of reviewing the data. Moreover, taken literally, the Agency's
argument would mean that any proposal which required management to take
some action, for example, merely giving notice to the Union of some
proposed change in a condition of employment, would interfere with
management's right to assign work. Construed in this way, section
7106(a)(2)(B) would completely nullify the duty to bargain because no
obligation of any kind could be placed on management by negotiation.
Compare American Federation of Government Employees, AFL-CIO and Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
604, 607 (1980), enforced sub nom. Department of Defense v. FLRA, 659
F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982), where the
agency argued that a proposal would violate its right to determine its
budget because implementation of the proposal would impose a cost on
management. The Authority found that such a construction of the Statute
could preclude negotiation on virtually all otherwise negotiable
proposals, since, to one extent or another, most proposals would have
the effect of imposing costs upon the agency which would require the
expenditure of appropriated agency funds. See also American Federation
of Government Employees v. FLRA, 785 F.2d 333, 338 (D.C. Cir. 1986) ("If
an employer was released from its duty to bargain whenever it had
suffered economic hardship, the employer's duty to bargain would
practically be non-existent in a large proportion of cases.").
Consequently, Proposal 4 is within the duty to bargain.
VII. Proposal 5 /3/
Article XV, Education.
Section 1. Nursing inservice training conducted at the Medical
Center will normally be available to all nurses covered by this
Agreement whose assignment is pertinent to the training and whose
knowledge, skills, and performance are likely to be enhanced by
such training. Such training will, insofar as possible, be
conducted during the duty hours of the nurses involved.
Section 2. Where appropriate, the Medical Center will
authorize absences without charge to leave, and will authorize per
diem expenses, travel, and fees of nurses to attend educational
lectures, seminars, and courses of instruction. Such
authorization will be made subject to the staffing needs of the
Nursing Service and/or availability of funds for educational
purposes. The Medical Center agrees that employees covered by
this Agreement shall be given a fair share of funds from those
available for educational expenses. Consideration will also be
given to the developmental needs of individual nurses in the
present or planned assignment. Insofar as possible, such training
opportunities will be distributed equitably among the professional
nursing staff. This provision will also apply to the attendance
at educational lectures, seminars, and courses of instruction
conducted by the Association, the District of the Association and
the American Nurses Association for the purposes of professional
improvement.
A. Positions of the Parties
The Agency contends that the proposal violates management's right to
assign work because it specifies who is to receive training and when
they are to receive it.
The Union asserts that the proposal merely provides staff training
opportunities for nurses on all shifts and that actual approval and
discretion remain with the Agency.
B. Analysis and Conclusions
The Authority has held that proposals requiring an Agency to provide
training are outside the duty to bargain because the assignment of
training constitutes an assignment of work. American Federation of
Government Employees, Local 1760, AFL-CIO and Department of Health and
Human Services, Social Security Administration, 23 FLRA No. 21 (1986)
(Proposal 8). Inservice training is job-related training conducted
during duty hours at the work place. Section 1 of this proposal would
require that inservice training would "normally" be available to all
nurses to whom the training would be pertinent. This section of the
proposal would further provide that the training, "insofar as possible,"
be conducted during duty time. Section 2 of this proposal would impose
an obligation on the Agency "where appropriate" to authorize employees
to attend off-premises training during duty hours. It is well
established that language such as "normally" and "insofar as possible"
which imposes substantive conditions on management's exercise of its
reserved rights to assign work under section 7106(a)(2)(B) of the
Statute renders proposals nonnegotiable. See Congressional Research
Employees Association and Library of Congress, Congressional Research
Service, 25 FLRA No. 21 (1987) (Proposals 1 and 2) (finding that the
terms "to the extent that it is practicable" and "whenever possible"
create substantive limitations on agency's rights); American Federation
of Government Employees, AFL-CIO, Local 2786 and Defense Mapping Agency,
20 FLRA 193 (1985) (Proposal 1) (rejecting the union's contention that
the phrase "shall attempt where possible" did not bind management
action). Rather than providing discretion for the Agency, the
substantive conditions create an expectation that will be met, except in
unspecified situations. For this reason, we find that the proposal
directly interferes with management's right to assign work and is
outside the duty to bargain.
VIII. Proposal 6
Article XV, Leave.
Section 3. The Medical Center shall determine the number of
employees that can be permitted to be on annual leave from any
unit or similar areas of assignment at the same time during any
period of the year. The Medical Center will post a schedule in
each unit or area of assignment which contains that information at
the beginning of each calendar year. Requests for annual leave of
one week or more shall be made and acted upon in accordance with
the list at that time. Where there is a conflict in choices for
vacation period, the conflict will be resolved by the Head Nurse
and/or Coordinator. In order to assure a fair and equitable
rotation of desirable vacation periods, supervisors will consider
all factors in granting annual leave for vacation purposes. Other
things being equal, conflicts in selection of vacation dates will
be resolved in favor of the employee with the most total Federal
service as determined by the service computation dates. Assuming
that the time is available in accordance with the schedule posted
by the Medical Center, an employee may request leave to begin on
any day of the week. After annual vacation periods have been
assigned in accordance with the foregoing, any other requests for
annual leave in periods of one week or more shall be made four
weeks in advance. Preference for choice of time will be given to
the nurse first requesting the particular period. Requests will
be individually considered to assure adequate coverage over the
Christmas and New Year holiday period. Equitable consideration
will be givden to all requests in the Nursing unit on a year to
year basis.
Section 4. After annual leave periods have been requested and
approved, changes will not be made by the nurse or by the Medical
Center except in cases of extreme emergency. Nurses may request
changes which do not affect the approved leave of another employee
or they may request an exchange of periods which is acceptable to
the other nurse. Every effort will be made by the Medical Center
not to interrupt a period of annual leave by calling a nurse back
from leave except for emergencies. Except for emergency call
back, nurses will return from a period of annual leave on the date
and at the time specified on the approved leave request.
Section 8. Nurses who are elected to full-time positions with
the Association shall be granted leave without pay for up to one
(1) year. Upon request and approval by the Medical Center
Director such leave may be extended. A nurse on leave without pay
as provided in this Section will be returned to his/her former
position or a comparable position held by him/her prior to
commencing such leave.
A. Positions of the Parties
The Agency contends that the proposal violates management's right to
assign work under section 7106(a)(2)(B) of the Statute.
The Union contends that Section 3 of its proposal is not an
assignment of work to the Head Nurse because someone (the Head Nurse or
another supervisor) will resolve conflicts in leave requests. The Union
also states that Sections 4 and 8 do not create "leave upon demand"
conditions and that safeguards for the Agency are present.
B. Analysis and Conclusions
Section 3
The fourth sentence of Section 3 of this proposal requires the Head
Nurse and/or Coordinator to resolve conflicts in choices for vacation
period. By requiring that all vacation conflicts be resolved by the
Head Nurse and/or Coordinator, this section prescribes a specific duty
which is to be performed by the Head Nurse and/or Coordinator under
certain circumstances. The Authority has consistently held that
management's right to assign work under section 7106(a)(2)(B)
encompasses the right to assign specific duties to particular
individuals, including management officials, and that proposals which
interfere with this right are nonnegotiable. For example, American
Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army
Missile Command, the U.S. Army Test, Measurement, and Diagnostic
Equipment Support Group, the U.S. Army Information Systems
Command-Redstone Arsenal Commissary, 27 FLRA No. 14 (1987); National
Association of Government Employees, AFL-CIO, Local R14-87 and
Department of the Army and the Air Force, Kansas Army National Guard, 19
FLRA 381 (1985); American Federation of Government Employees, AFL-CIO,
Local 32 and Office of Personnel Management, 14 FLRA 278 (1984), aff'd
mem. sub nom. Local 32, AFGE v. FLRA, No. 84-1251 (D.C. Cir. May 10,
1985). Since this proposal requires the Agency to assign certain tasks
to the Head Nurse and/or Coordinator it violates the right to assign
work and is nonnegotiable. The same reasoning applies to those portions
of Section 3 which provide for supervisors to perform certain tasks.
However, these defects of the proposal are easily cured. See U.S. Army
Missile Command, 27 FLRA No. 14, slip op. at 13.
The fifth and sixth sentences of Section 3 provide for a rotation of
desirable vacation periods with conflicts in choices to be determined by
service computation dates. Provision 1 in National Association of
Government Employees, Local R4-75 and U.S. Department of the Interior,
National Park Service, Blue Ridge Parkway, 24 FLRA No. 7 (1986) provided
for conflicts in scheduling leave to be resolved by service computation
dates and rotated thereafter. We found the procedure to be negotiable.
Consequently, except for the fourth sentence, Section 3 is within the
duty to bargain.
Section 4
Section 4 prohibits the Agency from changing employee leave plans,
once approved. For example, this portion of the proposal would (1)
prevent the Agency from rescinding its approval of leave requests; and
(2) prohibit the Agency from calling an employee back to work, except in
emergencies. This proposal is not a negotiable procedure since it
directly interferes with management's right to assign work. The right
to assign work under section 7106(a)(2)(B) of the Statute includes the
right to determine when the work which has been assigned will be
performed. American Federation of Government Employees, AFL-CIO, Local
2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing
(MAC), Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583 (1984). In
that case, the Authority held that Proposal 4, requiring the granting of
annual leave to an employee where the need for leave is clearly
documented, violated management's right to assign work because it
deprived the Agency of the employee's services.
Because Section 4 of this proposal precludes the Agency from
rescinding leave approval or calling an employee back from leave, it
violates the Agency's right to assign work. As in Proposal 4 of VAMC,
Ft. Lyons, terms which impose a substantive condition, such as "every
effort" or "extreme emergency," limit the Agency's right to take action.
For these reasons, we find that Section 4 directly interferes with
management's right to assign work and is outside the Agency's duty to
bargain. Compare Blue Ridge Parkway, 24 FLRA No. 7 (Provision 2)
(provision notifying employees that they could be called back from leave
in an emergency held not to interfere with management's right to assign
work because management would not be limited to any definition of
emergency not precluded from calling employees back for other reasons).
As to whether Section 4 constitutes an appropriate arrrangement, we
again note that this section is to the same effect as Proposal 4 in
VAMC, Ft. Lyons. We found that because Proposal 4 in that case would
prevent management from reassigning nurses in all situations except
"emergencies," it would totally abrogate management's right to assign
work. Proposals which totally abrogate a management right do not
constitute appropriate arrangements under section 7106(b)(3) of the
Statute. See National Association of Government Employees, Local R7-23
and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA
No. 97 (1986). We conclude, therefore, that Section 4 in this case
excessively interferes with management's right to assign work under
section 7106(a)(2)(B) and is outside the duty to bargain. See U.S. Army
Missile Command, 27 FLRA No. 14 (Provision 9).
Section 8
The first two sentences of Section 8 establish an absolute right to
leave without pay whenever a bargaining unit employee is elected to a
full-time Union office. Proposals which leave management no discretion
to deny such requests regardless of the necessity for that employee's
services have been held to be nonnegotiable. See American Federation of
Government Employees, AFL-CIO, Local 2263 and Department of the Air
Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force
Base, New Mexico, 15 FLRA 580 (1984) (Proposal 4). For the reasons
stated in Kirtland AFB, we find the first two sentences of Section 8 to
be nonnegotiable.
The last sentences of this section provides that an employee
returning from leave without pay will be placed in his or her former
position or a comparable position held by the employee before commencing
the leave. This proposal restricts the positions to which the Agency
can assign returning employees. That is, it would limit the assignment
of returning employees to (1) the employee's former position, or (2)
another position formerly held by the employee and comparable to the
employee's last position. This would preclude assignment of the
employee to a comparable, similar position, but which the employee had
not previously held, or to any other available position. This
constitutes a violation of management's reserved right under section
7106(a)(2)(A) to assign employees and is outside the duty to bargain.
This section is similar to Proposal XIII in American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 626-27 (1980), aff'd
sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981),
cert. denied, 455 U.S. 945 (1982), which was found to violate
management's rights to assign employees. See also Fort Knox Teachers
Association and Fort Knox Dependents Schools, 26 FLRA No. 108 (1987).
Thus, we find that the last sentence of Section 8 is nonnegotiable.
IX. Proposal 7
Article (X)VI, Proficiency Ratings.
Section 4. The Proficiency Rating Official will counsel the
marginal (numerical score 39 to 59) or unsatisfactory (numerical
score 38 or below) nurse approximately 90 days prior to the due
date of the Proficiency Report. If an unsatisfactory rating is
contemplated and it has clearly been established that the employee
has not been counseled concerning unsatisfactory service as
provided, a recommendation will be made to the approving officials
to delay the annual rating for a period not to exceed 90 days.
Counseling as provided in this section is not discipline, and
shall not be a part of an employee's Official Personnel Folder.
Section 6. When a Special Proficiency is deemed necessary, a
penciled copy will be prepared and discussed with the nurse. The
nurse will be given 72 hours to respond in writing. The
supervisor will take into consideration the written responses and
discussion in the final copy.
A. Positions of the Parties
The Agency asserts that the proficiency rating system is an integral
part of the personnel system promulgated by the Administrator to advance
the VA patient care mission. The Agency argues that the proposal
violates its right to assign work and to determine the methods and means
of performing work. The Agency asserts that Section 4 violates
management's right to assign work because it prescribes rating elements
or factors.
The Agency also claims that Proposal 7 conflicts with VA Manual MP-5,
Part II, Chapters, 2, 4, 6, 8, and 9 and the DM&S Supplement, because
the proposal does not take into account that aspect of its regulations
which provides for patient care needs to be the primary consideration in
the assessment of nurses through the proficiency rating system. The
Agency asserts that a compelling need exists for these regulations to
bar negotiations on Proposal 7.
The Union argues that nothing in the proposal dictates a standard of
performance for, or the critical elements of, a position. The Union
asserts that determination of the quality and quantity of work rests
entirely with the VA supervisors who then unilaterally convert those
determinations into proficiency scores for each employee. According to
the Union, this proposal only takes effect after the supervisor makes
that proficiency score determination. Thus, according to the Union, the
proposal is purely procedural and does not affect management's rights.
B. Analysis and Conclusions
Section 4
The first sentence of Section 4 establishes the ratings of "marginal"
and "unsatisfactory" and further prescribes the range of numerical
scores which is to correspond to the marginal and unsatisfactory
ratings. This sentence is to the same effect as Section 11.B. in Patent
Office Professional Association and Patent and Trademark Office,
Department of Commerce, 25 FLRA No. 29 (1987), petition for review filed
sub nom. Patent Office Professional Association v. FLRA, No. 87-1135
(D.C. Cir. March 26, 1987), which established four rating categories for
evaluating employees' performance and which also prescribed the level of
achievement which would warrant a given overall rating. We held that by
establishing the level of performance which would be required to achieve
a particular summary rating, the proposal violated management's rights
under section 7106(a)(2)(A) and (B) of the Statute to direct employees
and to assign work. For these reasons, we find that the first sentence
of Section 4 is outside the duty to bargain.
We also note that the numerical scores set forth in Section 4 are a
restatement of a portion of VA Manual MP-5, Part II, Chapter 6 and the
DM&S Supplement. As we stated at Sections 4.H. and 4.I. in the Patent
and Trademark Office decision, if a particular matter is otherwise
negotiable, the fact that the matter is a part of an agency's appraisal
system will not in and of itself render it nonnegotiable. However, if a
particular subject matter contained in an agency's performance appraisal
system constitutes an exercise of management's rights under section
7106(a) of the Statute, the parties cannot bargain about including that
portion of the system in a collective bargaining agreement because
management would be bound by the provision for the life of the contract
and would be precluded from discontinuing or modifying it.
The remainder of Section 4 provides a procedure for counseling
employees with unsatisfactory performance, or employees bordering on
unsatisfactory performance. The proposal provides a 90-day counseling
period prior to issuance of the annual rating. Similar proposals which
have provided a period for an employee to improve performance or a
notice period prior to proposed action have been held negotiable. See
National Federation of Federal Employees, Local 476 and Department of
the Army, U.S. Army Electronics Research and Development Command, Fort
Monmouth, New Jersey, 26 FLRA No. 28 (1987) (finding negotiable a
provision providing 60-days advance written notice); American
Federation of State, County, and Municipal Employees, AFL-CIO, Local
2910 and Library of Congress, 11 FLRA 632, 635 (1983) (Proposal 5)
(finding negotiable an improvement period for employees trying to
overcome drug abuse). Compare American Federation of State, County and
Municipal Employees, Local 3097 and Department of Justice, 24 FLRA No.
49 (1986) (Proposal 3) (finding nonnegotiable a 120-day abeyance period
because it conflicted with a Government-wide regulation (5 C.F.R.
Section 432.204(b))). However, the nurses in this case are not subject
to Government-wide regulations referenced in the Department of Justice
case.
Moreover, because this proposal simply sets out the procedural steps
management will follow before it makes a final appraisal of an
employee's performance, it does not concern the methods and means of
performing the Agency's work within the meaning of section 7106(b)(1).
See National Federation of Federal Employees, Local 541 and Veterans
Administration Hospital, Long Beach, California, 12 FLRA 270, 272-73
(1983).
Although professional medical employees of the DM&S are not subject
to Chapter 43 of Title 5 of the United States Code, 5 U.S.C. Section
4301(2)(C), we note that Office of Personnel Management (OPM)
regulations require that employees covered by that chapter be given a
reasonable time to demonstrate acceptance performance before proposing a
reduction in grade or removal. 5 C.F.R. Section 432.203(b). OPM has
not established a minimum reasonable time period. Attachment to Federal
Personnel Manual (FPM) Letter No. 432-1. We note, however, that at
least some Federal agencies have provided employees a 90-day period to
demonstrate acceptable performance. See, for example, James L.
Alexander v. Department of Commerce, Merit Systems Protection Board
Docket No. DC04328510399 (March 10, 1986), slip op. at 6. Moreover, for
employees covered by Chapter 43, OPM has stated that if an agency has
negotiated a minimum or maximum period for employees to demonstrate
acceptable performance, it must follow those requirements. Attachment
to FPM Letter No. 432-1.
Finally, the Agency claims that Proposal 7 is barred by regulations
for which a compelling need exists. Because the first sentence of
Section 4 is nonnegotiable, we need not reach the issue of compelling
need for regulations to bar this portion of Proposal 7.
As to the remainder of Section 4, found to be otherwise negotiable,
the Agency claims generally that a compelling need exists for its
regulation requiring proficiency ratings to be based on the objectives
of its patient care system to bar negotiations on Proposal 7 as a whole.
The Agency makes no specific showing as to how the portions of Section
4 concerning counseling of employees would conflict with those
objectives. In the absence of such a showing, we conclude that the
Agency's regulation does not serve as a bar to negotiation under section
7117(a)(2) of the Statute.
Therefore, the remainder of this proposal constitutes a negotiable
procedure and is within the duty to bargain.
Section 6
Section 6 of this proposal concerns a "Special Proficiency" report,
which the Union describes as "one which occurs at some time other than
during the regular rating period." Union's Response at 12. The Union
did not submit any other information regarding this report. The
Agency's statement of position is completely silent regarding this
section of the proposal. Therefore, we have no way of assessing whether
its application as required by the proposal would affect the Agency's
exercise of its rights. In short, we cannot determine, on the record
before us, whether this proposal is negotiable.
The parties will bear the burden of creating the record on which the
Authority will make a negotiability determination. American Federation
of Government Employees, Local 12 and Department of Labor, 25 FLRA No.
83 (1987) (Proposal 5). Because the Union has not provided any relevant
information concerning the report which is the subject of Section 6, it
has not met its burden of creating a record which is sufficient for the
Authority to make a negotiability determination. In the absence of that
information, the Union's petition for review as to this section must be
dismissed.
X. Proposal 8
Article XVII, Promotions And Advancements.
Section 2. The Local Unit and Nursing Service agree it is
important to have local unit employees on the Nurses Professional
Standards Board. The Association may submit suggestions to the
Chief Nurse of nurse employees qualified to serve on the Nurse
Professional Standards Board. Nursing Service agrees to include
four (4) unit employees in the nominations forwarded to the
Director for appointment to the Nurses Professional Standards
Board.
Section 3. If a full-time permanent nurse is not promoted, the
nurse may request a conference with the Chairman of the
Professional Standards Board and the Rating Official to discuss
the Professional Standards Board's action. If the employee meets
the educational and experience standards of the type and scope
required, the nurse will be considered for promotion annually
until a change in grade occurs.
Section 5. Bargaining unit vacancies may be filled by
selection from among the best qualified and available nurses
whenever possible, and, consistent with this principle, selection
may be made among those candidates from the Medical Center.
Notice of all professional nurse vacancies shall be posted on the
Nursing Service bulletin board, Building 5, for ten calendar days
and nurses applying for such vacancies shall be notified of the
action taken. A copy of each vacancy notice will be provided to
the INA Local Unit.
Section 6. The Medical Center will make the fullest possible
use of the Special Advancement provisions.
A. Positions of the Parties
The Agency states that Section 2 of this proposal must be divided
into its essential elements in order to understand it. The first
element is a statement of policy that the Nursing Service agrees that it
is important to have local unit employees on the Professional Standards
Board (Board). The second element is that the Union may submit the
names of candidates to serve on the Board. The third element requires
that four unit employees be included in the nominations forwarded to the
Director for appointment to the Board. Therefore, according to the
Agency, this section of Proposal 8 would require that four unit
employees be appointed to the Board through implementation of the stated
policy concerning the importance of unit employee membership on the
Board. The Agency further asserts that, because the Professional
Standards Board, is a management decision-making body, it must be free
from union participation in the decision-making process.
The Union contends that the proposal does not conflict with statutory
or VA Manual provisions relating to the functions of the Professional
Standards Board. The Union contends that Section 2 of the proposal
merely recognizes that the local unit can submit suggestions for
appointment to the Board and that the discretion of the appointment
official is unlimited. The Union further asserts that its proposal is
not intended to require unit participation in that decision-making or to
determine the Board's organization, duties, functions or actions. The
Union also states that Section 3 of this proposal is purely procedural
and that it is merely a restatement of current VA practice. With regard
to Section 5, the Union asserts that it is aimed at providing nurses
with notice of promotion opportunities. The Union contends that this
section does not place any obligation on the Agency to promote
bargaining unit nurses, but does mean that bargaining unit nurses should
be promoted. Finally, the Union asserts that Section 6 of the proposal
permits special pay advances for nurses obtaining certifications. The
Union states that the language "fullest possible use" in that section
means "to the full extent of the process." Petition for Review at 14.
B. Analysis and Conclusions
Section 2
Section 2 of this proposal would permit the Union to submit
suggestions regarding nurses qualified to serve on the Nurse
Professional Standards Board. The proposal would require the Agency to
include four unit employees, who may but need not be from among those
suggested by the Union, among the nominations forwarded for appointment
to the Board. The proposal does not require the Agency to select any of
the employees suggested by the Union. Likewise, while the first
sentence of this section states that the parties recognize the
importance of local unit employees serving on the Professional Standards
Board, this section does not require the selection of unit employees for
appointment to the Board. This proposal is distinguishable from the
proposal in National Federation of Federal Employees, Local 1431 and
Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA
998 (1982), which would have required the appointment of a union
representative to the Professional Standards Boards. Therefore, we find
that this proposal is within the duty to bargain.
Section 3
We find that Section 3 of this proposal is negotiable. The first
sentence of this section merely provides that a nurse may request a
conference to discuss the Professional Standards Board's denial of
promotion. Management retains its discretion as to whether it will
grant the request. The second sentence of this section requires that an
annual re-evaluation be made for nurses who had been passed over for
promotion and who meet the requisite educational and experience
criteria. This portion of the proposal does not assign work to any
non-bargaining unit employee. Rather, the Agency retains the discretion
to determine how the re-evaluation is to be conducted. For these
reasons, we find that Section 3 constitutes a negotiable procedure under
section 7106(b)(2) of the Statute. See, for example, American
Federation of Government Employees, Local 1923, AFL-CIO and Department
of Health and Human Services, Office of the Secretary, Headquarters,
Office of the General Counsel, Social Security Division, 21 FLRA No. 28
(1986) (Proposal 4 and Proposal 5), petition for review filed sub nom.
American Federation of Government Employees, Local 1923 v. FLRA, No.
86-1297 (D.C. Cir. May 27, 1986).
Section 5
We find that Section 5 of this proposal is negotiable. The first
sentence of this section would give the Agency discretion to select from
among the best qualified candidates and would further provide the Agency
discretion to select from among candidates who are within the Medical
Center. This portion of the proposal is clearly distinguishable from
Proposal 5 in VAMC, Ft. Lyons, requiring that preference will be given
to nurses presently employed. We found that proposal to be
nonnegotiable because it limited management's right to select from among
the best qualified candidates. The use of the permissive term "may" in
Section 5 serves to protect the Agency's retained discretion to select
whomever it chooses.
The remainder of Section 5 constitutes procedures for informing
employees of existing vacancies. As such, it is negotiable under
section 7106(b)(2) of the Statute. See, for example, National Treasury
Employees Union and Internal Revenue Service, 7 FLRA 275, 282 (1981)
(Proposals 2-4).
Section 6
The Agency's Statement of Position is totally silent regarding
Section 6. Likewise, the Union's response is silent regarding this
portion of the proposal. As we noted above in our discussion of
Proposal 7, Section 6, it is well established that the parties bear the
burden of creating a record upon which the Authority can make a
negotiability determination. Because there is insufficient information
on which we can make a negotiability determination, the Union's petition
for review as to Section 6 must be dismissed.
XI. Proposal 9
Article XIX, Discipline.
Section 2. No nurse will be disciplined by admonishment,
reprimand, suspension, demotion, or discharge, except whenever an
employee's performance of duty or personal conduct is
unsatisfactory because of inaptitude, inefficiency, neglect, or
unwillingness to comply with commonly accepted standards of
personal conduct. Nurses will receive a copy of all written
counselings.
A. Positions of the Parties
The Agency makes no arguments as to the nonnegotiability of this
proposal other than those addressed in Section II of this decision.
The Union argues that its proposal does not present a conflict with
38 U.S.C. Section 4110 procedures or any of the Title 38 sections with
respect to probationary or part-time employees. The Union asserts that
a procedure should be negotiated to address discipline of bargaining
unit nurses. The Union also asserts that its proposal parallels the VA
requirements.
B. Analysis and Conclusions
We find that Proposal 9 is negotiable. The first sentence of the
proposal describes the bases on which the Agency may discipline nurses.
As explained by the Union, the intent of this sentence is simply to
parallel the bases for agency discipline which are established under
applicable law and VA regulations. Union's Response at 43-44. Noting
particularly the absence of any Agency argument to the contrary, we
construe this portion of the proposal as providing the Agency with the
full range of discipline that it already has under law and regulation.
That is, we find that this portion of the proposal does not in any way
restrict the Agency's right to discipline. Therefore we conclude that
this portion of the proposal is consistent with law and regulation and
is within the Agency's duty to bargain. We find that the remainder of
Proposal 9, which provides that nurses will receive a copy of all
written counselings, is a negotiable procedure under section 7106(b)(2)
of the Statute.
XII. Proposal 10 /4/
Article XI, Work Environment.
New Section 7. Appropriate actions recommended by a nurse as a
part of her professional responsibility will be recognized and
supported by the Medical Center so long as such actions are
consistent with the procedures and policies of the Medical Center.
The nurse will be notified of final action taken in such cases.
A. Positions of the Parties
The Agency makes no arguments concerning the nonnegotiability of this
proposal other than those which have already been resolved in Section II
of this decision.
The Union asserts that its proposal simply sets out a general
statement of intent that the Medical Center supervisors will provide
appropriate management support to nurses who experience difficulties in
dealing with other employees in the course of their work and that the
proposal has nothing to do with duties or work assignments. The Union
also asserts that the language in Proposal 10 has been part of the
parties' agreement and that the intent of the proposal is simply to
provide management support for nurses doing their jobs. Further, the
Union argues that the proposal is not inconsistent with any management
right.
B. Analysis and Conclusions
In its Petition for Review, the Union states that Proposal 10 is
intended to ensure that Agency supervisors will provide appropriate
management support to nurses who experience difficulties in dealing with
other employees in the course of their work. As an example of the
intended application of this proposal, the Union states:
(I)f a supervisor directs a night nurse to advise the
supervisor of the arrival and departure times of the
non-professional employees on the nursing unit, it may also be
necessary for the supervisor to alert the night nurse that
remedial actions have been taken by the Supervisor with certain
employees. Precise support measures and follow-through are not
defined. Petition for Review at 15.
The Union itself asserts that the Agency's responsibilities under the
terms of the proposal are not defined. Further, the record is unclear
as to the intended scope of this proposal. Because the Union has not
met its burden of creating a record containing information concerning
this proposal upon which we can make a negotiability determination, the
Union's petition for review as to Proposal 10 must be dismissed. See
American Federation of Government Employees, Local No. 12 and U.S.
Department of Labor, 25 FLRA No. 83 (1987) (Proposal 5).
XIII. Proposal 11
Article XI, Work Environment.
Section 6. It is recognized that in urgent needful situations,
no absolute restrictions can be placed on nurses' duties in a
patient care environment. However, Nursing Services agrees thagt
the general duties found within the positions of Nursing
Assistant, Housekeeping Aid, Food Service Worker, and clerical
support are not ordinarily intended to be a normal part of a
nurse's responsibility.
A. Positions of the Parties
The Agency contends that the effect of Proposal 11 is to preclude
management from assigning to nurses the general duties found within the
position of nursing assistant, housekeeping aid, food service worker and
clerical support with the exception of making such assignment in urgent
needful situations. Thus, according to the Agency, the proposal clearly
defines which duties should not be assigned to nurses as well as when an
exception to the rule can be made.
The Union contends that its proposal does not interfere with the
Agency's right to assign work. The Union also asserts that its proposal
is merely intended as a means to continue discussion on non-nurse duties
which may have to be performed by bargaining unit employees.
B. Analysis and Conclusions
Proposal 11 expressly places restrictions on the Agency's ability to
assign certain duties to nurses. The proposal is in all material
respects to the same effect as the proposal held to directly interfere
with management's right under section 7106(a)(2)(B) of the Statute to
"assign work" in New York State Nurses Association and Veterans
Administration Medical Center, Bronx, New York, 11 FLRA 578 (1983). See
also VAMC, Ft. Lyons (Proposal 4) and National Labor Relations Board
Union, Local 19 and National Labor Relations Board, Region 19, 2 FLRA
775 (1980). We therefore conclude that this proposal is outside the
duty to bargain.
XIV. Proposal 12
Article XVI, Proficiency Ratings.
Section 2. Nurses will be rated by their immediate supervisor
and the approving official will be the next higher professional
administrative supervisor above the rating official. The rating
official will not ordinarily discuss the report with other
personnel unless the official has been so recently assigned as a
supervisor that assistance is needed. In that case, the rating
official will review unofficial ratings prepared by previous
supervisors during the rating period and will discuss the rating
with other professional nurse supervisors who have observed the
performance of the nurse being rated. Comments and statements
recorded in the narrative part of the proficiency report will be
objective and specific. They will describe any especially
important aspects of the nurse's assignment or performance. They
will explain any unusually low or high element scores of total
rating scores. (Only the underlined portion is in dispute.)
A. Positions of the Parties
The Agency contends that the disputed portion of this proposal
conflicts with its right to assign work because it assigns specific
duties to particular positions; requires that nurses must be rated by
their immediate supervisor and that the approving official must be the
next higher administrative supervisor above the rating official. The
Agency also argues that the disputed portion of this proposal does not
involve a condition of employment because it attempts to impose work
assignments on supervisory personnel who are not part of the bargaining
unit.
The Union states, in response, that the proposal is consistent with
Title 38. The Union also contends that the Agency is merely reiterating
the same argument that it has made with respect to each proposal,
namely, that virtually no aspect of employment of registered nurses is
negotiable. The Union contends that its proposal is a procedure
regarding discussion of the rating with the employee and is negotiable
for that reason under section 7106(b)(2).
B. Analysis and Conclusions
The first sentence of the disputed portion of this proposal requires
nurses to be rated by their immediate supervisor and for that rating to
be approved by the next higher professional administrative supervisor
above the rating official. The Authority has consistently held that
proposals prescribing specific duties to be performed by particular
non-bargaining unit personnel in an agency directly interfere with
management's right to assign work under section 7106(a)(2)(B) of the
Statute by eliminating the discretion inherent in that right. American
Federation of Government Employees, AFL-CIO, Local 32 and Office of
Personnel Management, 14 FLRA 278 (1984), aff'd mem. sub nom. Local 32,
American Federation of Government Employees v. FLRA, 762 F.2d 138 (D.C.
Cir. 1985). See also our discussion of Proposal 6, Section 3 above.
The proposal in this case would have the same effect as Proposal 4 held
nonnegotiable in American Federation of State, County and Municipal
Employees, Local 2190 and Library of Congress, 18 FLRA 241 (1985).
Therefore, we conclude that the proposal would directly interfere with
the exercise of the right to assign work and as a result is not a
negotiable matter. However, as we noted in our discussion of Proposal
6, Section 3, these defects are easily cured. See U.S. Army Missile
Command.
The second sentence of the disputed portion of the proposal limits a
rating official's ability to discuss a performance report with other
personnel. The Authority has consistently held that the management
rights enumerated in section 7106 of the Statute encompass not only the
right to act but also the right to discuss and deliberate concerning the
relevant factors upon which decisions as to the exercise of those rights
will be made. See, for example, American Federation of Government
Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Madison Region, 21 FLRA No. 104 (1986). This sentence
directly interferes with the deliberative process associated with
management's right to assign work under section 7106(a)(2)(B) of the
Statute and therefore is outside the duty to bargain.
While the first two sentences of Proposal 12 reflect portions of VA
Manual MP-5, Part II, Chapter 6, the reiteration of agency regulations
in a proposal does not alter its negotiability. See our discussion at
Proposal 7, Section 4.
XV. Order
The Agency must upon request (or as otherwise agreed to by the
parties) bargain concerning the following proposals, or portions
thereof: Proposal 1; Proposal 2; the first sentence of Proposal 3,
Section 3; Proposal 3, Section 5, except for the last sentence;
Proposal 3, Section II; Proposal 4; Proposal 6, Section 3, except for
the fourth sentence; the second and third sentences of Proposal 7,
Section 4; Proposal 8, Sections 2, 3, and 5; and Proposal 9. /5/
The Union's petition for review is dismissed as to the following
proposals, or portions thereof: Proposal 3, Section 2; Proposal 3,
Section 3, except for the first sentence; Proposal 3, Section 4; the
last sentence of Proposal 3, Section 5; Proposal 5; the fourth
sentence of Proposal 6, Section 3; Proposal 6, Section 4; Proposal 6,
Section 8; the first sentence of Proposal 7, Section 4; Proposal 7,
Section 6; Proposal 8, Section 6; Proposal 10; Proposal 11; and
Proposal 12.
Issued, Washington, D.C., June 25, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) On October 27, 1986, we granted the VA's motion for Consideration
of Common Issues in Pending Cases, including this case. The common
issue as raised by the Agency concerned the applicability of the Statute
to VA professional medical employees in the DM&S appointed under Title
38 of the United States Code.
(2) The Agency makes no statement in the record regarding whether
disclosure of the Chicago Hospital Council's survey data to a union
would violate applicable law or regulation.
(3) The Agency refers to Proposal 5 in its allegation of
nonnegotiability as Article XIV, Sections 1 and 2. It is clear from the
record, however, that the Agency is addressing Article XV, Sections 1
and 2.
(4) The Agency refers to this proposal in its allegation of
nonnegotiability as Article XIX, Section 5. It is clear from the record
that the Agency is addressing Article XI, Section 7.
(5) In finding that these proposals (or portions thereof) are within
the duty to bargain, we make no judgment as to their merit.
APPENDIX
Proposals 1, 10, and 11
The Agency makes no claim that Proposals 1, 10, and 11 conflict with
any VA regulations.
Proposal 4
The Agency claims that Proposal 4 conflicts with VA Manual MP-5, Part
II, Chapter 3, Section D, because the proposal requires the Agency to
participate in a particular survey of salaries for nurses which is
inconsistent with the VA Administrator's authority to adjust the basic
rates of pay. The Agency, however, has neither alleged nor demonstrated
that a compelling need exists for this regulation under section
7117(a)(2) of the Statute and section 2424.11 of our Regulations to bar
negotiations on Proposal 4.
Proposal 5
The Agency claims that Proposal 5 conflicts with VA Manual M-8, Part
IV, Chapter 1; and VA Manual MP-5, Part II, Chapter 7, Paragraph 7(g)
pertaining to education for health care personnel and provisions for
leave to attend educational functions, respectively. The Agency,
however, has neither alleged nor demonstrated that a compelling need
exists for this regulation under section 7117(a)(2) of the Statute and
section 2424.11 of our Regulations to bar negotiations on Proposal 5.
Proposal 6
The Agency claims that Proposal 6 conflicts with VA Manual MP-5, Part
II, Chapter 7 and the DM&S Supplement pertaining to leaves of absence.
The Agency, however, has neither alleged nor demonstrated that a
compelling need exists for these regulations under section 7117(a)(2) of
the Statute and section 2424.11 of our Regulations to bar negotiations
on Proposal 6.
Proposal 8
The Agency claims that Proposal 8 conflicts with VA Manual MP-5, Part
II, Chapter 2, Paragraph 5A and the DM&S Supplement, Paragraph 2.05A;
VA Manual MP-5, Part II, Chapter 5, Paragraph 61 and the DM&S
Supplement, Paragraph 5.07e(7); VA Manual MP-5, Part II, Chapter 11,
Paragraph 3(b) and the DM&S Supplement, Paragraph 11B.03; and VA Manual
MP-5, Part II, Chapter 5, Paragraph 3 pertaining to the promotion and
advancement of nurses. The Agency, however, has neither alleged nor
demonstrated that a compelling need exists for these regulations under
section 7117(a)(2) of the Statute and section 2424.11 of our Regulations
to bar negotiations on Proposal 8.
Proposal 9
The Agency claims that Proposal 9 conflicts with VA Manual MP-5, Part
II, Chapter 8 pertaining to the discipline of health care personnel.
The Agency, however, has neither alleged nor demonstrated that a
compelling need exists for these regulations under section 7117(a)(2) of
the Statute and section 2424.11 of our Regulations to bar negotiations
on Proposal 9.
Proposal 12
The Agency claims that Proposal 12 conflicts with VA Manual MP-5,
Part II, Chapter s (sic), Section 6 pertaining to proficiency ratings.
(Chapter 6 deals with the Proficiency Rating System.) The Agency,
however, has neither alleged nor demonstrated that a compelling need
exists for these regulations under section 7117(a)(2) of the Statute and
section 2424.11 of our Regulations to bar negotiations on Proposal 12.