27:0714(79)NG - Illinois Nurses Ass'n and VA Medical Center, North Chicago, IL -- 1987 FLRAdec NG



[ 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 regula