28:0435(65)NG - NAT'L UNION OF HOSP. AND HEALTH CARE, DIST. 1199 V



[ v28 p435 ]
28:0435(65)NG
The decision of the Authority follows:


28 FLRA NO. 65

NATIONAL UNION OF HOSPITAL
AND HEALTH CARE EMPLOYEES
AFL-CIO, DISTRICT 1199

                Union

      and

VETERANS ADMINISTRATION
MEDICAL CENTER
DAYTON, OHIO

                Agency

Case No. 0-NG-1072

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 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of all or part of 21 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) 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 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 VA Medical Center, 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 VA Medical Center, 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 of Proposals 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 16, 20, and 21. See Appendix A 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. To the extent that the Agency raises those same general arguments as to each proposal in 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 - Staffing

New: Section 8. The Medical Center will make every reasonable effort to maintain adequate staffing levels sufficient to meet the capacity of the unit, the needs of the patients, and the safety of employees. The Medical Center will make every reasonable effort to replace nursing personnel who are absent from work. Except in emergency staffing situations, registered nurses will not be utilized to replace employees outside of the bargaining unit. Normally, registered nurses will only be utilized to replace other registered nurses.

A. Positions of the Parties

The Agency contends that Proposal I would violate its rights under section 7106(a)(2)(A) and (B) to assign employees and to assign work and under section 7106(b)(1) to determine the numbers, types, and grades of employees assigned to a tour of duty. The Agency maintains that the proposal would subject any management decision to assign a nurse to replace an employee outside the bargaining unit to a potential grievance over whether the duties assigned were "not normally" to be performed by nurses in the bargaining unit. The Agency also contends that the proposal is integrally related to the number of employees in the bargaining unit and, under section 7106(b)(1) of the Statute, is negotiable only at the election of the Agency. The Agency further contends that Proposal 1 is contrary to VA regulations for which a compelling need exists under section 7117(a) and (b) of the Statute.

The Union disputes the Agency's contentions that the proposal is inconsistent with the requirements for patient care and asserts that the proposal only requires that management exert reasonable efforts to attain permissible objectives in this area.

B. Analysis and Conclusions

The first sentence of Proposal I requires that the Agency make "every reasonable effort" to maintain adequate staffing levels. Proposals which relate to the staffing of a tour of duty concern management's determination of the numbers, types, and grades of employees or positions assigned to that tour of duty. Where such proposals are integrally related so as to be determinative of the numbers, types, or grades of employees assigned to a tour of duty, they are negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. See, for example, National Federation of Federal Employees and Haskell Indian Junior College, Bureau of Indian Affairs, Department of the Interior, Lawrence, Kansas, 22 FLRA No. 57 (1986) (Proposal 1).

Proposal 1 would subject the Agency's decisions as to what constitutes adequate staffing levels to a substantive criterion. Thus, the Agency's decisions on those matters would, if challenged by the Union, be subjected to a determination by an arbitrator as to whether the Agency had made "every reasonable effort" to maintain the level of staffing the arbitrator judges to be adequate. By authorizing an arbitrator to substitute his or her judgment as to adequate staffing, the first sentence of Proposal 1 would be determinative of the numbers, types, and grades of employees assigned to a tour of duty. Therefore, to this extent Proposal 1 is outside the duty to bargain because it involves a matter under section 7106(b)(1) on which the Agency has elected not to bargain.

The remaining sentences of Proposal 1 would impose substantive criteria on the Agency's right to assign work. That is, the proposal requires that management will make every reasonable effort to replace nursing personnel who are absent from work. Nurses could not be used to replace employees outside the bargaining unit "(e)xcept in emergency staffing situations" and could "normally" be used to replace only other nurses. This portion of the proposal is similar to Proposal 4 in VA Medical Center, Ft. Lyons, which we held to violate management's right to assign work under section 7106(a)(2)(B). For the reasons set forth in that decision, we find that Proposal 1 is also outside the duty to bargain because it directly interferes with the right to assign work.

Because we find the proposal to be outside the duty to bargain, it is not necessary to consider the Agency's contention that it conflicts with an Agency regulation for which a compelling need exists. 

IV. Proposal 2

Article 18 - committee and Board Membership

Section 1. The Union shall have the right to representation on all appropriate Nursing Service Committees, including newly formed or restructured service committees. Appropriate service committees shall be defined as those which do not consist entirely of matters related to management's internal business, or of retained management rights.

Section 2. The Union shall have the right to nominate unit employees for membership on the Nurse Professional Standards Board. At least four (4) of the nominees shall be seated as members of the Board and shall have full rights and privileges, provided there are four (4) nominees who are qualified. At least one member of the station designated Board will be in the grade or above the grade of the candidate under consideration.

Section 4, paragraph 1. Union designated representatives, excluding those on permanent off tours, to standing service or Center Committees will be scheduled in a duty status for regularly scheduled meetings.

Section 4, paragraph 2. Permanent off tour committee member will be authorized compensatory time for their attendance at scheduled committee meetings.

A. Positions of the Parties

The Agency contends that Section 1 is nonnegotiable because the Nursing Service Committees referred to in the proposal are committees whose functions, among others, include deliberations that are an integral part of management's decision-making process; since the proposal guarantees the Union a role on such committees, the proposal interferes with management's rights under section 7106 of the Statute. The Union argues that the committees are professional rather than managerial and that the proposal does not imply that the Union has any right to make management decisions.

The Agency argues that Section 2 interferes with its rights under section 7106(a)(2)(A) to hire, assign and retain employees. Reading Section 4 together with Section 2, the Agency argues that the proposal further interferes with management's rights under section 7106(b)(1) to determine the numbers, types, and grades of employees assigned to a particular tour of duty. The Union argues that its proposal would have no effect on management's decisions in that regard. Also, the Agency argues that paragraph 2 of Section 4 is nonnegotiable because the payment of compensatory time is governed by the specific provisions of 38 U.S.C. 4107(e)(5). The Union states that paragraph 2 deals only with the right to request compensatory time.

B. Analysis and conclusions

Section 1

We find Section 1 of Proposal 2 to be nonnegotiable. While the proposal itself does not state what the functions of the service committees shall be, the proposal refers to newly formed and restructured committees and defines service committees as those "which do not consist entirely of matters related to management's internal business." In our view, as argued by the Agency, this would include service committees any portion of whose function relates to management's internal business. The Authority has consistently held nonnegotiable proposals which require union participation in the deliberative process leading to the exercise of rights reserved to management by section 7106 of the Statute. See International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provision 17); Fort Knox Teachers Association and Fort Knox Dependent Schools, 22 FLRA No. 88 (1986) (Proposal 3); National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982). Section 1 of Proposal 2 would have the effect of directly interfering with management;'s statutory right to make the decisions involved and therefore is outside the duty to bargain. However, if Section 1 of Proposal 2 were revised to make clear that the Union's right to representation did not include the right to serve on committees any portion of whose function relates to management's internal business, it would be negotiable. See Notional Federation of federal Employees, Local 2059 and U.S. Department of Justice, U.S. Attorney's Office, Southern District of New York, New York, 22 FLRA No. 13 (1986) (Provision 1). 

Section 2

We find that section 2 of Proposal 2 is nonnegotiable. Section 2 of Proposal 2 would require that, once the Union has nominated unit employees for membership on the Nurse Professional Standards Board, the Agency must seat at least four of the nominees as members of the Board. Section 2 therefore is to the same effect as the proposal which the Authority found nonnegotiable in VA Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982). In that case, the Authority found that Professional Standards Boards in the Veterans Administration (1) constitute a statutorily mandated decision-making process whereby management's authority under section 7106 of the Statute to hire and retain or remove employees is exercised through professional peer review and (2) are an integral part of the process by which management decides and acts pursuant to that authority. Because the proposal would require Union nominees on such a Board, for the reasons stated in VA Medical Center, East Orange, it directly interferes with management's rights under section 7106(a)(2) and is outside the duty to bargain. See also Hawaii Federal Employees Metal Trades council, AFL - CIO and Pearl Harbor Naval Shipyard, 23 No. 24 (1986). Compare Illinois Nurses Association and Veterans Admininistration Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (1987) (Proposal 8), in which we found a similar proposal negotiable because it provided only for the nomination of employees to serve but did not require that any employee be selected to serve on the committee.

Section 4

Because we have found that employee participation on the specified committees is nonnegotiable, absent any revision of those sections in accordance with our discussion above, we would not need to decide whether Union designated representatives are entitled to be scheduled in a duty status for regularly scheduled meetings of those committees, or whether off-tour committee members shall be authorized compensatory time for such meetings. However, should those sections be revised in accordance with the guidance provided in our discussion, we would find paragraph 1 of Section 4 to be negotiable to the extent that it provides official time for employees to engage in labor-management related activities during their regularly scheduled tour of duty. The Authority has consistently held that official time for labor-management activities during duty time is negotiable under section  7131(d). See, for example, Military Entrance Processing Station, Los Angeles, California and American Federation of Government employees, Local 2866, AFL - CIO, 25 FLRA No. 57 (1987).

On the other hand, we would find that paragraph 2 of section 4 is nonnegotiable because it provides employees compensatory time for labor-management activities performed outside their regularly scheduled tour of duty. See National Treasury Employees Union, Chapter 65 and Department of the Treasury, Internal Revenue Service, 25 FLRA No. 27 (1987), and the cases cited herein. As to the Agency's contentions with respect to the payment of compensatory time under law, see our discussion below under Proposal 11, Section 4.

V. Proposal 3

The FLRA Members disagree over the negotiability of this proposal. The decision and order on Proposal 3, and Chairman Calhoun's dissent, appear immediately following this decision.

VI. Proposals 4 and 5

Articles 21 and 22 - Grievance Definition and the Negotiated Grievance Procedure

Proposals 4 and 5 would establish a grievance procedure. The text of the proposals is set forth in Appendix B to this decision.

A. Positions of the Parties

The Agency contends that Proposals 4 and 5 are inconsistent with the DM&S personnel system established under Title 38 and embodied in its legislative regulations, for the reasons discussed in Section II of this decision. The Agency also contends that the broad language of Article 21, Section 2.e and f should not be construed as excluding matters specifically excluded by operation of law. The Union argues that the proposed procedure is the same as that which has been in effect since 1981.

B. Analysis and Conclusion

Proposals 4 and 5 establish a negotiated grievance procedure. Article 21, Section 2.f provides that the grievance procedure shall exclude "(a)ny matter for which the final Agency decision is vested beyond the authority of the Medical Center Director." We interpret Section 2.f to exclude disciplinary matters from the coverage of the grievance procedure. Final authority for these matters resides with the VA Administrator. 38 U.S.C. 4110(d). The proposal is, therefore, to the same effect as Proposal 1 in VA medical Center, Ft. Lyons. In that case, we found that the proposal, requiring the establishment of a grievance and arbitration procedure which excluded matters covered under 4110 of Title 38, was within the duty to bargain. We thus find that Proposals 4 and 5 are within the duty to bargain. See VA Medical Center, Ft. Lyons, note 4.

Moreover, we find, contrary to the Agency, that the proposals would not include matters pertaining to the separation of probationary employees within the scope of the grievance procedure. Final action in such matters resides with Professional Standards Boards. 38 U.S.C. 4106(b). See National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998, 1000-01 (1982).

VII. Proposal 6

Article 28 - Education and Training Opportunities

Section 3. All unit employees' requests for assistance from the PIT (Post-graduate and Inservice Training Program) Subcommittee will be forwarded through the Nursing Service chain of command in a timely manner with appropriate endorsements or returned to the employee with an explanation in accordance with the current Center policy governing PIT Committee requests. The Medical Center will ensure that authorized absence and funding for educational activities are provided to applicants on an equitable basis. (Underscored portion is at issue.)

Section 4. A committee consisting of the Associate Chief, Nursing Service for Education, a designee from the Health Sciences Library and a representative of the Union will be formed to explore educational opportunities and tuition support alternatives for RN's.

The committee will meet quarterly, or more often by mutual agreement, to explore internal and external potential resources, programs, grants, loans, and scholarships and ensure that information is avail-able to both management and employees through the Health Sciences Library. (Underscored portion is at issue.) 

A. Positions of the Parties

The Agency contends that the last sentence of Section 3 of the proposal interferes with management's right to assign work under section 7106(a) of the Statute. It argues that the proposal seeks a guarantee that would mandate equal rotation of work assignments. The Union disagrees.

The Agency contends that the first sentence of Section 4 does not involve conditions of employment as defined by the Statute. Further, the Agency asserts that the proposal is nonnegotiable because it interferes with management's right to assign work under section 7106(a) of the Statute by mandating the formation of a joint labor-management committee and that the Associate Chief, Nursing Service for Education be a member of the committee. The Union argues that the proposal is negotiable.

B. Analysis and Conclusions

Section 3

We find that Section 3 of the proposal is negotiable. The essence of the proposal is to ensure the fairness and equity of educational training opportunities. The proposal does not obligate management to authorize leave and/or funding for educational activities, but rather provides that management will "ensure" the equitable distribution of educational opportunities only after management has decided to "authorize absence and funding" for such opportunities. We find this proposal is to the same effect as the proposal which the Authority found to be within the duty to bargain in Association of Civilian Technicians and State of Georgia National Guard, 2 FLRA 581 (1980). Accordingly, Section 3 of Proposal 6 is within the duty to bargain. Compare Internal Revenue Service and Brookhaven Service Center, 12 FLRA 19 (1983), in which the Authority found nonnegotiable a proposal that would require management to assign all types of work to all employees in an equal amount.

Section 4

The disputed portion of Section 4 of the proposal seeks to designate a particular management official (the Associate Chief, Nursing Service) within the Agency who will serve on a joint labor-management committee and, thus, it is nonnegotiable. The Authority has consistently held that the designation of a particular management official to perform specified tasks is inconsistent with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. 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 National Association of Government Employees, AFL - CIO, Local R14-87 and Department of the Army and Air Force, Kansas Army National Guard, 19 FLRA 381 (1985). For the reasons in Office of Personnel Management, Section 4 of Proposal 6 is therefore not within the duty to bargain. See also Joint council of Unions, GPO and United States Government Printing Office, 25 FLRA No. 86 (1987) (Proposal 4).

However, we note that in American Federation of Government Employees, AFL - CIO, Local 2761 and U.S. Department of the Army, U.S. Army Adjutant General Publications Center, St. Louis, Missouri, 14 FLRA 438 (1984), the Authority found a proposal for a joint labor-management committee to review training programs and establish training goals to be within the duty to bargain. Although we find Section 4 nonnegotiable for the reasons stated above, we recognize that the proposal would otherwise create a joint labor-management committee to provide a forum for the Union and employees to explore opportunities for education and tuition support. The proposal does not require management to provide training or tuition support, and does not seek to mandate the content of training, but rather only would create a committee to serve as a forum in which the Union would be able to air its views about and assist management in finding available sources of training a tuition support. Thus, if the proposal were revised to preserve management;'s right to designate its representative on the committee, it would, like the proposal in Army Adjutant General Publications Center, be negotiable. See American Federation of government employees, AFL - CIO, Local 1858 and U.S. 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) (Provision 6), petition for review on other matters filed sub nom. U.S. Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command - Redstone Arsenal commissary v. FLRA, No. 87-7445 (11th Cir. July 17, 1987). 

VIII. Proposal 7

Article 29 - Proficiency Reports and Promotions

Section 3. The proficiency rating supervisor will counsel the marginal or unsatisfactory nurse approximately 90 days prior to the due date of the proficiency report. At the time of the orientation conducted in Nursing, the hospital will provide copies of Nursing Service Memorandum covering the "Proficiency Rating System" and the VA "Nursing Qualification Standards." These memoranda will be discussed as part of the orientation procedure.

Upon assignment to their nursing unit, the immediate supervisor will discuss with new employees the goals and expectations of the Medical Center and the supervisor which may be utilized in the proficiency rating process. (underscored portion section is at issue.)

Section 5. Nurses will be notified of all actions of the Nurse Professional Standards Board concerning them within a reasonable time not to exceed 30 days after the Board Meeting. A negative Board recommendation will be discussed with the nurse by the Chief Nurse or designee. If the nurse meets the educational experience, and time-in-grade requirements for promotion, she will be considered annually. (All of this section is at issue.)

A. Positions of the Parties

The Agency contends that Proposal 7 is inconsistent with the scheme of Title 38, and with the Agency's legislative regulations, for the reasons discussed in Section II of this decision. The Union disagrees.

B. Analysis and Conclusions

The first sentence of the first paragraph of Section 3 requires that the "proficiency rating supervisor" counsel with employees who are performing at the unsatisfactory or marginal level. The second paragraph of Section 3, though not in dispute, requires that the immediate supervisor discuss with new employees goals and expectations of management which may be used in the proficiency rating process. The second sentence of section 5 requires that certain discussions with nurses will be undertaken by the "Chief Nurse or designee." The first sentence of the first paragraph of Section 3, the  second paragraph of Section 3, and the second sentence of Section 5 of the proposal are therefore nonnegotiable. The Authority has consistently held that the designation of a particular management official to perform specified tasks is inconsistent with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. National Treasury Employees Union and Department of the Treasury, 21 FLRA No. 123 (1986) (Provisions 2, 3, 4, and 5). For the reasons stated in National Treasury Employees Union, the first sentence of the first paragraph of Section 3, the second paragraph of Section 3, and the second sentence of Section 5 of Proposal 7 are therefore not within the duty to bargain. See also Joint Council of Unions, GPO and United States Government Printing Office, 25 FLRA No. 86 (1987) (Proposal 4). Moreover, as with Section 1 of Proposal 2 in this case, if the first sentence of Section 3, the second paragraph of Section 3, and the second sentence of Section 5 were revised to preserve management's discretion to designate the management official who will perform the specified tasks, they would be negotiable. See U.S. Army Missile Command, 27 FLRA No. 14. We note, finally, that the first sentence of Section 3 is distinguishable from Section 4 of Proposal 7 in Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA No. 79, which we found nonnegotiable. The proposal in that case prescribed the range of numerical scores that must correspond to an unsatisfactory or marginal rating.

The first sentence of Section 5 provides that nurses will be notified of actions taken by the Nurse Professional Standards Board within 30 days. Similar proposals which have provided for notice to employees of management action have been held to be negotiable as procedures under section 7106(b)(2) of the Statute. 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 of proposed performance based action); American Federation of Government Employees, AFL - CIO, General Committee of AFGE for SSA Locals and Social Security Administration, 23 FLRA No. 43 (1986) (Proposal 5), application for enforcement filed sub nom. FLRA v. Social Security Administration, No. 87-1118 (D.C. Cir. March 9, 1987) (notice to employees of job elements and performance standards). For the reasons stated in those and similar cases, we find that the first sentence of Section 5 is a negotiable procedure and within the Agency's duty to bargain under the Statute.

The last sentence of Section 5 provides that nurses will be considered annually for promotion. This sentence is to the same effect as the third sentence of Section 5 of Proposal 2 in Illinois Nurses' Association and Veterans Administration Medical Center, Hines, Illinois, 28 FLRA No. 35 (1987), which we found to be negotiable. For the reasons stated in that case, we find the last sentence of Section 5 of Proposal 7 in this case is within the duty to bargain.

IX. Proposals 8 and 9

Article 33 - Annual Leave

Annual leave will be administered in accordance with the provision of MP-5, Part II, Chapter 7. Annual leave shall accrue for full-time nurses at the rate of eight hours for each full bi-weekly period or twenty-six days per year. Annual leave shall accrue for part-time nurses at the rate of one hour for each thirteen hours in a pay status. The stipulated leave accrual rate may be modified or reduced by circumstances outlined in governing chapters of MP-5, Part II. Annual leave provisions of this contract are subject to modifications required by law or changes in governing policy.

Article 34 - Sick Leave

Sick leave will be administered in accordance with the provisions of MP-5, Part II, Chapter 7. Sick leave shall accrue for full-time nurses at the rate of four hours for each bi-weekly pay period or thirteen days per year. Sick leave shall accrue for part-time nurses at the rate of one hour for each twenty hours in a pay status. The stipulated leave accrual rate may be modified or reduced by circumstances outlined in governing chapters of MP-5, Part II. Sick leave provisions of this contract are subject to modifications required by law or changes in the governing policy.

A. Positions of the Parties

The Agency contends that Proposals 8 and 9 are inconsistent with the authority given the Administrator by Title 38, and with the Agency's legislative regulations, for the reasons discussed in Section II of this decision. The Union disagrees. 

B. Analysis and Conclusions

The Administrator of the Veterans Administration is authorized by Title 38 to prescribe by regulation the hours and conditions of employment of nurses. 38 U.S.C. 4108(a) and 4119. The Administrator has exercised that authority by, establishing, through internal regulation, a system of annual and sick leave administration for nurses. VA Manual MP-5, Part II, Chapter 7, Paragraphs 7.b.1.(d).2.a and 7.b.1 (d).2.b. In addition to leave administration, these regulations establish the rates at which leave is accrued.

These proposals incorporate the accrual of annual and sick leave as established in the Agency's regulations. Moreover, they specifically state that the accrual rates set forth in the proposals are subject to any modifications required by law or changes in the Agency's governing policy. Thus the terms under which nurses earn leave benefits are totally within the Agency's discretion under law. The proposals would not potentially bind the Agency to different terms should it revise its leave policy. Compare Patent Office Professional Association and Patent and Trademark petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. March 26, 1987) (agency's performance appraisal system cannot be included in the 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 pursuant to its management rights). Therefore, we find that Proposals 8 and 9 are within the Agency's duty to bargain.

X. Proposal 10

Article 36 - Holidays

Holidays scheduled off shall be distributed in an equitable manner.

A. Positions of the Parties

The Agency contends that the proposal interferes with management's right to assign work under section 7106(a) and its right to determine the numbers, types, and grades of employees under section 7106(b) of the Statute. The Union disagrees. 

B. Analysis and Conclusion

We find that this proposal constitutes a negotiable procedure by which the Agency will exercise its right to assign work. The proposal provides that, once the Agency has decided to schedule administrative nonduty days for holidays, it will schedule nonduty holidays in an equitable manner among nurses in a scheduling unit. The proposal is a procedure to ensure fairness and equity in the assignment of administrative nonduty days for holidays. See VA Medical Center, Ft. Lyons, 25 FLRA No. 66 (Proposal 6); VA Medical Center, Hines, Illinois, 28 FLRA No. 35 (Proposal 5, Section 8). Accordingly, Proposal 10 is within the duty to bargain.

XI. Proposal 11

Article 37 - Breaks and Lunch Period

Section 1. Each employee in the bargaining unit shall be entitled to two fifteen minute breaks away from their assigned work area.

a. The first fifteen minute break shall accrue within the first four hours of duty time.

b. The second fifteen minute break shall accrue within the second four hours of duty time.

Section 2. The Medical Center agrees that every reasonable effort to provide relief for RNs for these breaks will be made.

Section 4. Where coverage for meals is not provided, bargaining unit employees shall be paid overtime or, at their option, compensatory time, in accordance with Article 25, Section 4.d.

A. Positions of the Parties

The Agency contends that Sections 1 and 2 of the proposal interfere with management's right to assign work under the Statute. The Agency contends that Section 4 of the proposal concerns matters with regard to overtime that are specifically provided for by 38 U.S.C. 4107(e)(5), and the proposal is therefore nonnegotiable. The Agency also contends that the proposal is contrary to VA regulations for which a compelling need exists under section 7117(a) and (b) of the Statute. The Union argues that breaks and lunch periods are inherently negotiable and this proposal does not interfere with any management right. 

B. Analysis and Conclusions

Sections 1 and 2

Sections 1 and 2 of Proposal 11 provide a break period or unit employees on duty time and establish procedures intended to ensure that employees are able to take their breaks. These sections do not require that breaks be taken at any particular time. Rather, they recognize that the ability of employees to take a break at any particular time is dependent upon the work which must be done and the availability of resources to do that work. Thus, these sections of the proposal outline steps management will take to ensure that there is coverage for the unit so that employees will be able to go on their breaks without interruption and without jeopardizing patient care.

Sections 1 and 2 balance these competing interests without sacrificing management's right to assign work. The authority has consistently held that break periods are negotiable, so long as they are on duty time and employees remain subject to the assignment of work. See American Federation of Government Employees, Local 3342, AFL - CIO and Department of Health and Human Resources, Social Security Administration, 19 FLRA 1100 (1985); American Federation of Government Employees, AFL - CIO, Local 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76, 88 (1983) (Provision 3O). Nothing in the proposal precludes management from assigning work to employees during periods when they would otherwise be on a break where that is necessary to ensure coverage. Where it would not be necessary, Section 2 of the proposal requires management to schedule employees' breaks so that other employees would be available to provide coverage. Unlike Proposal 1 in this case, which obligates management to replace employees who are absent from work, Section 2 of Proposal 11 does not require management to replace employees who are scheduled to take a break. Rather, it requires management to schedule the work of employees so as to ensure that each employee will have the opportunity to take his or her break. Sections 1 and 2 of the proposal preserve the right of management to accomplish the work which must be done, while at the same time ensuring employees maximum opportunity to have an uninterrupted break. Thus, we find that those sections do not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and are within the duty to bargain.

The Agency also contends that there is a compelling need for its regulations requiring patient care needs to be the primary consideration in assigning nurses to tours of duty or in granting leave to bar negotiations on Proposal 11. However, Sections 1 and 2 of the proposal concern break periods for employees who have already been assigned to a tour of duty, which periods do not involve any form of leave. We conclude, therefore, that the Agency has not shown that the proposal conflicts with its regulations. Thus, we need not decide whether there is a compelling need for those regulations.

Section 4

We find Section 4 to be negotiable. The proposal specifies that overtime/compensatory time is to be in accord with Article 25, section 4.d of the parties' expired contract. Article 25 in turn states that overtime/compensatory time in this regard shall be in accord with agency regulations. As to 38 U.S.C. 4107(e)(5), it provides generally the work for which overtime pay must be granted, and provides that compensatory time in lieu of overtime pay shall not be permitted, except as voluntarily requested. Thus, 38 U.S.C. 4107(e)(5) does not address the question whether work performed during mealtimes shall be considered overtime work. We find, therefore, that the matter involved in Section 4 of the proposal is not specifically provided for by 38 U.S.C. 4107(e)(5) so as to be excluded from the duty to bargain under section 7103(a)(14)(C). Nor is the proposal otherwise inconsistent with Title 38. Accordingly, Section 4 of Proposal 11 is within the duty to bargain. Compare overseas Federation of Teachers and Department of Defense

Schools, Mediterranean Region, 26 FLRA No. 43 (1987) (award of additional compensation to teachers for lunchroom monitoring duties sustained).

II. Proposal 12

Article 39 - Assignment Posting and Bidding

The Members of the Authority disagree over the negotiability of the fourth sentence of Section 1 of Proposal 12. The Decision and Order of the Authority and Chairman Calhoun's dissenting opinion with respect to that portion of Section 1 follow this decision. The Members are in agreement with respect to the negotiability of the remaining portions of Proposal 12 which follow:

Section 1. The employer recognizes that many of the Medical Center's current employees possess the skills and experience necessary to perform the duties of many assignments. The employer is committed to providing opportunities for professional growth and development to the fullest extent possible. In order to provide unit employees with opportunities to fill vacancies and fully develop their professional skills, Nursing Service will utilize internal recruitment methods to the maximum extent possible when filling vacancies/assignments. . . .

Section 2. Bargaining unit employees shall receive full consideration for all job vacancies/assignments. Selection determination will be based on the professional qualifications necessary to meet current and future health care needs. It is recognized by the parties that the amount of professional VA nursing experience is a very significant indicator of professional qualifications.

Section 3. Specialized and managerial announcements shall be posted in all Nursing units for a period of at least 7 consecutive days. Announcements shall be numbered and include the position, criteria for selection, the tour of duty, and other special information as appropriate. Requests for consideration for an announced vacancy/assignment must be submitted in writing to the Chief Nurse by 8:00 a.m. on the day after the announcement closes (excluding Saturdays, Sundays, and Holidays). The memorandum should also cite the announcement number, briefly describe any specialized experience, education or other factors related to the applicant which are cited in the announcement. Those assignments not filled will be added to the open continuous announcement.

Section 4. Clinical specialty assignments; specialized staff nurse assignment announcements, i.e., Intensive Care Units, Hemodialysis, Operating Room, Psychiatry, Admitting/Clinics, will be used to inform employees about assignments in the unit of recognition which require special education/ training, specialized experience, and/or a documented high level of performance. To assure that employees are aware of position opportunities involving greater responsibility, Management will also announce supervisory and administrative positions.

Section 7. All Nursing Service candidates for a vacancy will be informed of the selection in writing. Upon request, a Nursing Service candidate will be informed of the area of work, or other qualifications where the employee should  improve to be better qualified for future selection considerations. This information may be obtained by internal discussions with supervisory personnel and the selecting officials. If the need for additional formal training or education is determined to be a disqualifying factor, the employee may request an appointment with the ACNSE for review of educational opportunities related to the vacancy. Such requests will be honored. Upon request the employee will be scheduled for appropriate Medical Center training as it becomes available.

(All of Section 2 is at issue; the underscored portions of the other sections are at issue.)

A. Positions of the Parties

The Agency contends that the proposal violates its right to assign employees, to assign work and to make selections for appointments under section 7106(a)(2)(A), (B), and (C) of the Statute because it would impose substantive criteria on its exercise of those rights. With regard to posting announcements for 7 consecutive days and requiring that requests for consideration be submitted by 8:00 a.m. on the next business day after closing, the Agency claims that the delay caused would adversely affect patient care. The Agency contends that to the extent the proposal requires the posting of supervisory or managerial vacancies it does not concern a condition of employment under section 7103(a)(14). The Union denies that the proposal restricts the Agency's exercise of its discretion and argues that possible access to positions outside the bargaining unit is a condition of employment.

B. Analysis and Conclusions

Section 1

The second and third sentences of Section 1 of Proposal 12 would require the Agency to use internal recruitment to the maximum extent possible when filling vacancies or making assignments. Although the Union's intention with respect to Section 1 of Proposal 12 is unclear, we do not view it as requiring the Agency to select internal candidates for vacant positions to the exclusion of candidates from outside the unit. Rather, because those sentences concern "recruitment," we find that it would only commit management, to the maximum extent possible, to solicit candidates internally. Thus, while this portion of the proposal may require management to advertise position vacancies in the unit, it does not preclude advertisement of those vacancies outside the Agency, nor would it prevent management from selecting an external candidate. At most, the second and third sentences of Section 1 would require the Agency to look first at candidates from within the unit, providing, as it were, "priority consideration." We find, therefore, that the second and third sentences of Section 1 provide a negotiable procedure, under section 7106(b)(2), whereby management will solicit and consider candidates from which to select, under section 7106(a)(2)(C), an individual to fill a vacant position.

Section 2

The first sentence of Section 2 would require only that bargaining unit employees be given "full consideration" for job vacancies or assignments. This is similar to the provision which we found to be negotiable in National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 26 FLRA No. 60 (1987) (Proposal 2), petition for review filed sub nom. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, No. 87-1234 (May 29, 1987). That proposal provided that unit employees be given priority consideration in filling vacancies. The lesser requirement in the present case that unit employees be given only "full consideration" similarly does not interfere with management's right to select and we hold that this portion of Section 2 is within the Agency's duty to bargain. See also National Treasury Employees Union and Department of the Treasury, 24 FLRA No. 54 (1986).

The second and third sentences of Section 2 would require the Agency to make selection determinations based on those professional qualifications considered to be necessary for future patient care needs. In particular, the proposal identifies professional VA nursing experience as a "significant indicator of professional qualifications." These terms would have the effect of establishing VA nursing experience as a selective factor which management must use when filling vacancies. For purposes of merit promotion, selective factors have been described as the knowledge, skills, and abilities needed to perform the work of a position. See National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565 (1983) (Proposal 2). It is well established that the determination of selective factors is an integral aspect of the process of selection for appointment under section 7106(a)(2)(C) of the Statute. Id.; see also American Federation of Government Employees, AFL - CIO, Local 15 and Internal Revenue Service, North Atlantic Region, New York, 15 FLRA 954 (1984) (Proposal 1). Therefore, because they prescribe a particular selective factor and the weight to be given to that factor, we conclude that the second and third sentences of Section 2 directly interfere with management's right to make selections under section 7106(a)(2)(C) of the Statute and are outside the duty to bargain.

Section 3

The disputed portions of Section 3 would require the posting of vacancy announcements for at least 7 days and would set a deadline by which requests for consideration for vacancies must be submitted. Contrary to the Agency's contentions, we find that these portions of the proposal concern only the procedural requirements which the Agency must observe once it decides to fill a vacancy. Section 3 prescribes the length of time the Agency will solicit candidates for the position. It would not cause any delay in the exercise of management's right to select employees for positions once the 7-day posting has expired. We conclude that the disputed portion of Section 3 constitutes a negotiable procedure for the exercise of management's right to select under section 7106(a)(2)(C) of the Statute and is within the Agency's duty to bargain.

Section 4

We find that the disputed portion of section 4 is negotiable only at the election of the Agency. It is well established that the procedures which management must follow in filling supervisory positions are not matters affecting conditions of employment of unit employees and are negotiable only at the election of the Agency. See, for example, National Labor Relations Board Union, Local 21 and National Labor Relations Board, 15 FLRA 798 (1984). In Federal Union of Scientists and Engineeers, National Association of Government Employees and Naval Underwater Systems Center, Newport, Rhode Island, 23 FLRA No. 50 (1986), we found that Proposal 2, which would require the posting within 30 days of all new positions, was negotiable only at the election of the Agency because it included supervisory positions outside the bargaining unit. We distinguished the decision in American Federation of Government Employees, AFL - CIO, Local 2 and Department of the Army, Military District of Washington, 4 FLRA 450 (1980), in which the Authority found a similar proposal to be a negotiable procedure because in that case there was no indication or contention that the proposal was  intended to apply to positions outside the bargaining unit. In the present case, there is no question that the disputed sentence of Section 4 applies to supervisory positions outside the bargaining unit. The proposal is negotiable only at the election of the Agency. The Agency has elected not to negotiate on the proposal. Thus, the proposal is outside the duty to bargain.

Section 7

The disputed portion of Section 7 of Proposal 12 provides that (1) where an employee has not been selected for a position because of a lack of specific formal training, the employee will be given an opportunity to consult with the ACNSE concerning appropriate educational resources, and (2) where training is available at the Medical Center which pertains to the areas in which the employee has been found to be deficient, the employee's request to attend that training will be granted. We find that the portion of Section 7 which provides for employees, in essence, to receive educational counseling is a negotiable procedure. See VA Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (Proposal 7).

The portion of Section 7 which requires management to grant an employee's request to attend particular training directly interferes with management's right to assign work. The Authority has consistently held that proposals which require management to assign employees to training programs directly interfere with management's rights under section 7106(a)(2)(B) of the Statute. See National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981) (Proposals I - III); International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provisions 19 and 20). We can find no substantive difference between requiring management to grant an employee's request for training and requiring management to as sign an employee to training. In either instance the effect on management's decision with respect to that training is the same: management must provide the employee with training. See VA Medical Center, Hines, Illinois, 28 FLRA No. 35 (Proposal 9). For the reasons set forth in Federal Aviation Administration, Bureau of Engraving and Printing, and VA Medical Center, Hines, Illinois, therefore, we find that the last sentence of Section 7 directly interferes with management's right to assign work and is outside the duty to bargain. Moreover, the fact that the Agency has already established training programs and made them available to employees does not change our conclusion that the last sentence of Section 7 is nonnegotiable. See Federal Aviation Administration, 6 FLRA 588, 591.

XIII. Proposal 13

Article 40 - Core Staffing and Float Pool

Section 1. A float pool of registered nurses will be established to provide relief personnel throughout Nursing Service. The float pool will be established within six months of the approval of this agreement.

Section 2. Assignment to the float pool shall be accomplished in accordance with the job bidding provisions of this agreement. With the exception of post-orientation new hires, RNs will not be involuntarily assigned to the float pool.

Section 3. A core group of positions will be established which will be assigned to the day tour of duty. Assignment to the core group shall be accomplished in accordance with the job bidding provisions of this agreement.

Section 4. The establishment of the float pool and core group is intended to minimize the necessity for pulling and shift rotation. The size of each group is Management's prerogative but will be directly related to the staffing pattern.

Section 5. Extended details will be made only when it is more practical than any other type of solution and will be limited to the shortest amount of time possible. When patient care needs require the detailing of a nurse to another area for more than one calendar week, the union and nurse to be detailed will be informed as soon as is reasonably possible. A list of employees affected by such reassignments will be maintained in the Chief Nurse's office. Routinely, subsequent details will be made: first, from those qualified nurses not on the list; second, from those highest on the list; and lastly those most recently on the list.

A. Positions of the Parties

The Agency contends that Proposal 13 is nonnegotiable because it would subject its right to assign work under section 7106(a)(2)(B) of the Statute to preconditions imposed by the core staffing and float pool system. The Agency contends that the proposal establishes the source and method for providing personnel for assignment and scheduling irrespective of health care needs. The Agency also contends that the proposal would expressly require management to establish two entirely separate work units, a core group and a float pool, which would interfere with its right under section 7106(b)(1) to determine the methods and means of performing its work.

The Agency further contends that Proposal 13 is contrary to regulations contained in VA Manual, DM&S Supplement, MP-5, Part 11, sections 7.04b and 11B.03c. The Agency asserts that a compelling need exists for those regulations in order that tours of duty and assignments of personnel be in accordance with patient care needs. The Union contends that nothing in the proposal is inconsistent with the requirement that scheduling and assignments should be based primarily on patient care needs.

B. Analysis and Conclusions

Proposal 13 would require the establishment of two entirely separate work groups--a core group, assigned to the day shift, and a float pool of nurses who would provide relief service throughout the Nursing Service. The proposal further provides that assignment to the core group would be through contractual job bidding procedures and that newly hired nurses would only be assigned to the float pool.

The effect of this proposal would be to restrict management's right to determine which nurses would be placed on which shift. That is, core group nurses could only be assigned to duties on the day shift and float pool nurses could only be used for relief duties. As indicated in Section 4 of the proposal, the intent of the proposal is to minimize the need for shift rotation and changes in shift assignment.

We find that the proposal would interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. The proposal sets out specific limitations which require that more experienced employees will be assigned to core units and that new hires will be assigned to the float pool and used for relief purposes. However, management must retain the right to determine which employee is needed to perform particular work on the shift on which that work is required. Because the proposal directly interferes with the right to assign work, it is outside the duty to bargain. See VA Medical Center, Ft. Lyons.

The first sentence of Section 5 would permit management to place nurses on extended details only when that solution would be more practical than any other and for the shortest amount of time. We find that this part of section 5 violates section 7106(a)(2)(A) because it places a substantive condition on the Agency's right to assign employees. The Authority has consistently found that proposals which subject management's decisions regarding assignment of employees to qualifying conditions and possible arbitral review violate the right to assign work under section 7106(a)(2)(A). See, for example, Department of the Treasury, 21 FLRA No. 123 (Provision 9) (in which the Authority found that a provision which would require management to keep details to lower graded positions "to an absolute minimum" was outside the duty to bargain). Similarly, the first sentence of Section 5 would subject the Agency's decision to detail employees to the requirement that a detail be more practical than any other type of solution and that it be limited to the shortest time possible. For the reasons set forth in Department of the Treasury, we find that the first sentence of Section 5 of Proposal 13 directly interferes with management's right to assign employees under section 7106(a)(2)(A) and is outside the duty to bargain.

The remaining sentences of Section 5 constitute procedures relating to informing employees of details, the maintenance of records of details, and the method of assigning employees to details once those employees have been determined to be qualified. If Proposal 13 were not otherwise nonnegotiable as we have found above, these sentences would be negotiable procedures relating to the exercise of management's right to assign work. See American Federation of State, County and Municipal Employees, Local 2027 and Action, 23 FLRA No. 7 (1986). See also National Federation of Federal Employees, Local 1798 and Veterans Administration Medical Center, Martinsburg, West Virginia, 27 FLRA No. 37 (1987) (Proposal 11).

Because we find the proposal, with the exception of the last three sentences of Section 5, to be outside the duty to bargain for the above reasons, it is not necessary to address the Agency's contention that the proposal is contrary to an Agency regulation for which a compelling need exists. With respect to the last three sentences of Section 5, which constitute negotiable procedures relating to the assignment of nurses, we find that the Agency has made no showing that those procedures are contrary to Agency regulations. The Agency has not demonstrated that the requirement to follow those procedures would in any way conflict with its regulations and the requirement to meet patient care needs and to provide quality medical care. Consequently, we do not need to reach the issue of whether there is a compelling need under section 7117(a)(2) of the Statute for those regulations to bar negotiation of the last three sentences of Section 5.

XIV. Proposal 14

Article XL (40) - Orientation and Tours of Duty for Newly Hired Nurses

The Medical Center will make every reasonable effort to assign newly hired nurses, after appropriate orientation, to odd tours of duty in keeping with the needs of patient care.

A. Positions of the Parties

The Agency contends that Proposal 14 is contrary to section 7106(a) because it interferes with its right to assign employees. The Agency maintains that under the proposal it would be unable to assign new employees to certain tours of duty unless the precondition of "appropriate orientation" is met. The Agency also contends that a requirement to make reasonable efforts to assign newly hired nurses to odd tours of duty would affect the Agency's ability to deliver health care in emergency situations. The Union contends that the proposal merely requires reasonable efforts to assign newly hired nurses to odd tours of duty and that it specifically provides for patient care needs.

B. Analysis and Conclusions

We find Proposal 14 to be nonnegotiable. The proposal is not clearly worded and the Union does not explain its intention as to all aspects of the proposal. The Agency claims, and the Union does not dispute, that the proposal would prevent management from assigning newly hired nurses to "odd" tours of duty until they had received appropriate orientation. By "orientation" the Union would appear to mean some form of instruction in the duties and responsibilities the nurses will be expected to perform on those tours of duty. Thus, we interpret the proposal as requiring management to provide some form of training to employees as a condition precedent to making specific work assignments.

Proposals which require an agency to provide training to bargaining unit employees 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). We have also held that proposals which impose conditions on management's right to assign work under section 7106(a)(2)(B) of the Statute are outside the duty to bargain because they directly interfere with the exercise of that right. VA Medical Center, Ft. Lyons (Proposal 4). Finally, the Authority has held that a proposal which would condition the exercise of a management right on the prior exercise of the same or another management right is outside the duty to bargain. See American Federation of Government Employees, AFL - CIO, Local 3004 and Department of the Air Force, Otis Air Force Base, Massachusetts, 9 FLRA 723 (1982).

Since Proposal 14 would condition management's right to make specific work assignments to newly hired nurses on the orientation of those nurses to the intended work assignments, we find, based upon the above-cited precedent, that this proposal directly interferes with management's right to assign work in two respects: (1) it requires the assignment of training to nurses and (2) it conditions the assignment of work to nurses on their having received such training. For these reasons, Proposal 14 is outside the Agency's duty to bargain under the Statute. See also Proposal 18, below.

XV. Proposal 15

The Members of the Authority disagree over the negotiability of Sections 5 and 6 of Proposal 15. The Decision and Order of the Authority and Chairman Calhoun's dissenting opinion with respect to those sections follow this decision. The Members are in agreement with respect to the negotiability of the remaining portions of Proposal 15 which follow:

Article 41 - Tours of Duty and Work Schedules

Section 4. The employer will post work schedules not less than four weeks in advance of each week. Another week's schedule will be added each week so that there will always be four weeks posted. Supervisors will establish work schedules which comply with the following broad principles:

C. Each supervisor will make a reasonable effort to allow a sufficient amount of time between completion of a scheduled workday and the beginning of the next scheduled workday so that the employee will have time to go home to obtain an adequate amount of rest to be able to return to work. Normally, the employee will be given at least fifteen and one-half hours off between the completion of a scheduled workday and the beginning of the next scheduled workday.

d. Each supervisor will make a reasonable effort to minimize rotation to the least amount necessary to meet patient care needs. Rotation will be distributed on an equitable basis. It is agreed that no RN shall rotate more than two major tours in any seven-day period, except during staffing emergencies affecting patient care, or if requested in writing by the nurse and approved by the supervisor.

e. Management will make every effort to equitably rotate weekends off on a given unit.

Section 7. In an emergency staffing situation in which patient care would be jeopardized, schedules may be adjusted to provide adequate coverage. When schedule modifications are required, the following procedures will be used.

a. The Nursing Supervisor will attempt to obtain coverage by using the unit's voluntary list.

b. In the event that no qualified volunteer can be obtained, the supervisor will assign an employee to provide the coverage and modify the employee's schedule. A list of employees adversely affected by such schedule changes will be maintained by the supervisor. The nursing supervisor will attempt to obtain coverage for subsequent schedule changes under this procedure: first, from qualified RNs not on the list; second, from among those highest on the list; and lastly, those more recently placed on the list.

A. Positions of the Parties

The Agency contends that Sections 4.c and 4.d of Proposal 15 violate management's right to assign employees under section 7106(a)(2)(A) and also concern the numbers, types, and grades of employees assigned to a tour of duty under section 7106(b)(1). The Agency contends that Section 4.e also concerns the numbers, types, and grades of employees  assigned to a tour of duty under section 7106(b)(1) of the Statute. The Agency contends that Section 7 violates the right to assign employees because the delays in making assignments would adversely affect proper patient care. The Agency also contends that Section 7, which permits changes in schedules for emergency staffing, conflicts with Agency regulations for which a compelling need exists under section 7117(a) and (b) of the Statute. The Union denies that the proposal interferes with management's right to assign employees. The Union does not address the Agency's other contentions.

B. Analysis and Conclusions

Various portions of Proposal 15 prescribe certain responsibilities for supervisors. For example, Section 4.c requires supervisors to allocate time between shifts. Section 4.d requires supervisors to approve particular schedule changes. With the exception of the first sentence, Section 7 requires, in Section 7.a, the Nursing supervisor to obtain coverage and, in section 7.b, supervisors to make schedule changes and assignments. These portions of the proposal have the same effect as Proposal 7 in VA Medical Center, Hines, Illinois, 28 FLRA No. 35, which we found to be outside the duty to bargain under section 7106(a)(2)(B) of the Statute. For the reasons set forth in that case, these portions of Proposal 15, namely, Sections 4.c, 4.d, and 7 (with the exception of the first sentence), are likewise outside the duty to bargain because they interfere with the right to assign work to nonunit personnel.

Some of these provisions, however, would be negotiable if they were revised so as to preserve management's discretion to assign work to supervisory personnel. See U.S. Army Missile Command, 27 FLRA No. 14, slip op. at 13 (1987). Some of these sections are nonnegotiable on other grounds and we will address each section separately as to those grounds. We note in this connection that the first portion of Section 4, which concerns the posting of work schedules, is not in dispute.

Section 4.c, d, and e

Section 4.c of Proposal 15 is to the same effect as Section 3 of Proposal 2 which we found to be outside the duty to bargain in VA Medical Center, Ft. Lyons. We found that that proposal--which provided for 15 hours or more of non-duty time between tours of duty--was outside the duty to bargain because it would preclude management from assigning nurses with specialized skills where and when necessary to perform specific tasks required for patient care. For the same reasons, and apart from the designation of duties to be assigned to supervisors in the first sentence, we find that Section 4.c of Proposal 15 is outside the duty to bargain.

Section 4.d is to the same effect as Proposal 3 in VA Medical Center, Ft. Lyons, which precluded management from assigning nurses to a third tour of duty in a workweek. However, we found that proposal to be within the duty to bargain because another section of the proposal specifically protected management's right to determine which nurses would perform specific duties and took into account patient care needs. Likewise, Section 4.d makes an exception to the limitation on tours of duty for staffing emergencies affecting patient care and does not directly interfere with the right to assign work. Further, we find that the second sentence of Section 4.d only requires that rotation be distributed on an equitable basis and is a negotiable procedure which is within the duty to bargain. See VA Medical Center, Ft. Lyons, Proposal 6. Therefore, we find that the second sentence of Section 4.d is within the duty to bargain. If the first and last sentences of Section 4.d were revised to preserve management's discretion to assign work to supervisory personnel, they would also be within the duty to bargain.

We find that Section 4.e constitutes a negotiable procedure by which the Agency will exercise its right to assign work. Section 4.e is to the same effect as Proposal 6 in VA Medical Center, Ft. Lyons, which we found to be within the duty to bargain. As in that decision, this proposal provides that once the decision to assign duties to nurses has been made, those assignments will be made in a fair and equitable manner. See also VA Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (Proposal 3, Section 3). For that reason Section 4.e is within the duty to bargain.

With respect to the Agency's contentions that Sections 4.c, d, and e affect the numbers, types, and grades of employees assigned to a tour of duty and are negotiable only at its election, we find that the Agency has not shown that those sections would require it to hire additional nurses. We reject the Agency's argument that those proposals are to the same effect as the one in American Federation of Government Employees, Local 3669, AFL - CIO and Veterans Administration Medical Center, Minneapolis, Minnesota, 2 FLRA 640 (1980). The proposal found to be nonnegotiable in that case guaranteed that nurses would have every other weekend off and would have forced management to hire additional nurses in order to carry out its mission. The proposals in this case impose no such obligation on the Agency and therefore do not interfere with management's right under section 7106(b)(1) of the Statute.

The first sentence of section 7 provides a means of modifying or adjusting schedules in emergency staffing situations. We find that this sentence constitutes a negotiable procedure which defines the steps to be followed when adjusting schedules to provide adequate coverage in emergencies. As we found above, the remainder of Section 7, including specifically Section 7.a and Section 7.b, is nonnegotiable because it would require the assignment of specific duties to supervisory personnel. As we also pointed out above, however, some portions of Section 7 could be revised to be negotiable. In particular, apart from the defect pertaining to the assignment of work to nonunit personnel, Section 7.a and the first two sentences of Section 7.b would be negotiable procedures. Like the first sentence of Section 7, these portions of section 7 outline certain steps management will take to provide coverage in emergency staffing situations.

The last sentence of Section 7.b also requires that the Nursing supervisor, after unsuccessfully attempting to find volunteers, will assign nurses according to a roster based on previous assignments. In this regard, Section 7.b is similar to Proposal 10 in VA Medical Center, Martinsburg, West Virginia, 27 FLRA No. 37, which we found to be outside the duty to bargain. That proposal would have required management to adopt a rotation system of shift assignment. We found that the proposal, by dictating the order in which management will make shift assignments, would have prevented management from scheduling employees with specific skills to perform specific tasks on the particular shift where that work must be done. For the reasons set forth in that decision, we find that the last sentence of Section 7.b is outside the duty to bargain. Since we find the last sentence of Section 7.b to be nonnegotiable, we do not need to reach the issue of whether this portion of the proposal is also barred by an Agency regulation for which a compelling need exists. 

We note that the defects of the remainder of Section 7, including specifically, Section 7.a and the first two sentences of Section 7.b, which relate to the right to assign work could be removed by revising those portions of the proposal to preserve management's discretion to assign particular duties to supervisory and managerial personnel. See U.S. Army Missile Command, 27 FLRA No. 14, slip op. at 13 (1987). If those portions of the proposal were revised in accordance with our discussion above, it would become necessary to address the Agency's claim that the proposal is barred from negotiations by Agency regulations for which a compelling need exists. In this connection, we note that the Agency has failed to show specifically how compliance with the procedural steps set forth in those portions of the proposal would conflict with the regulatory requirement to provide quality patient care. Moreover, as to the first sentence of Section 7, the Agency did not specifically contend that that portion of the proposal was in conflict with its regulations. Because it would permit employee schedules to be revised in emergency situations so as to avoid placing patient care in jeopardy, we find that the first sentence of Section 7 would not conflict with those regulations, which make the care and treatment of patients the primary consideration in assigning employees to tours of duty. Therefore, both as to Section 7.a and the first two sentences of Section 7.b and as to the first sentence of Section 7, we do not reach the question of whether a compelling need exists for the Agency's regulations to bar negotiation of those portions of Section 7.

XVI. Proposal 16

Article 42 - Light Duty Work

When an employee is temporarily unable to perform all the duties of her/his position due to illness or injury, the Employer will make every effort to assign her/him to light duty functions in Nursing Service before other placement efforts are made in accordance with governing VA regulations.

A. Positions of the Parties

The Agency contends that Proposal 16 is nonnegotiable because it violates its right to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Union contends that its proposal "merely requires the Agency to try to assign employees light duty when appropriate."

B. Analysis and Conclusions

Proposal 16 would require the Agency to "make every effort" to assign an ill or injured employee to light duty. The proposal is substantially similar to the proposal which the Authority found to be nonnegotiable in National Federation of Federal Employees, Local 943 and Department of the Air Force, Headquarters Keesler Technical Training Center, Keesler Air Force Base, Mississippi, 19 FLRA 949 (1985) (Proposal 2). That proposal would have required management to attempt to find assignments compatible with the conditions of ill or injured employees or to tailor their regularly assigned duties to meet those conditions. The Authority held that the proposal directly interfered with management's rights to assign work and to assign employees and that it was outside the duty to bargain. The Authority rejected the Union's contention that the proposal only required management "to attempt" to take the actions desired and that it could be distinguished on that basis.

In the present case, although the Union contends otherwise, the words "make every effort" place a substantive condition on management's right to assign work and assign employees. See also Department of the Treasury, 21 FLRA No. 123 (Provision 9). Therefore, for the reasons set forth in Keesler Air Force Base, we find that Proposal 16 directly interferes with management's right to assign employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the Statute and, therefore, is outside the duty to bargain.

XVII. Proposal 17

Article 43 - Non - Nursing Functions

Section 1. Registered nurses are professional employees whose conditions of employment and ability to efficiently perform direct patient care is adversely affected by assignments to non-professional functions, such as:

a. Stripping, cleaning, and remaking of discharge units.

b. Preparing, passing and collecting food trays.

c. General housekeeping - cleaning of furniture, floors, etc. 

d. Transportation of noncritical patients and patient-related data, such as x-rays, medical records, and specimens.

e. Secretarial duties during routine absence of a secretary.

f. Performance of routine dietary functions. It is the responsibility of employees having specific knowledge of such activities to report them to an appropriate nursing supervisor.

Section 2. The Medical Center shall make every effort to minimize the assignment of nurses to non-professional functions. . . . This process does not constitute negotiations on the assignment of work.

A. Positions of the Parties

The Agency contends that Proposal 17 would interfere with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency also contends that the proposal is contrary to VA regulations for which a compelling need exists under section 7117(a) and (b) of the Statute. The Union contends that the proposal merely attempts to "minimize" assignment to nonprofessional functions but that the proposal recognizes that such assignments will be made to some extent and that the proposal recognizes the primacy of patient care considerations.

B. Analysis and Conclusion

The first section of Proposal 17 lists specific duties which, if assigned to nurses, would be considered to be non-professional functions which would adversely affect patient care. The second section would require the Agency to "make every effort to minimize the assignment" of nonprofessional duties to nurses. The proposal contains wording in the nature of a disclaimer regarding an intent to negotiate on the assignment of work. The Union states that the proposal is intended to minimize those types of assignments. The effect of that requirement, however, is to impose a substantial limitation on management's right to assign work. The proposal, therefore, is to the same effect as the proposal which we found to be outside the duty to bargain in VA Medical Center, Ft. Lyons, 25 FLRA No. 66 (1987) (Proposal 4). In that case we found that the sentence of the proposal which would require the Agency to make "every attempt" to  avoid assigning nonprofessional duties to staff nurses imposed a substantive condition on management's right to assign work and established a criterion by which management must justify its action in assigning nonprofessional duties to staff nurses. See also New York State Nurses Association and Veterans Administration Medical Center, Bronx, New York, 11 FLRA 578 (1983). Therefore, for the reasons set forth in VA Medical Center, Ft. Lyons, 25 FLRA No. 66 (Proposal 4), we find that Proposal 17 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is outside the duty to bargain.

This proposal differs from the one which we found to be within the duty to bargain in VA Medical Center, Hines. Illinois, 28 FLRA No. 35 (Proposal 4). In that case, we found that the proposal specifically provided that the assignment of nonnursing functions were subject to management's right to assign work under section 7106(a)(2)(B).

Because we find Proposal 17 as presently worded to be outside the duty to bargain, it is not necessary to address the Agency's contention that it is also contrary to Agency regulations for which a compelling need exists. However, if the proposal were revised in accordance with our decision in VA Medical Center, Hines, we would find that, because the proposal as revised would specifically reserve management's right to assign work, it would protect management's ability to meet its patient care needs. In those circumstances, the proposal would not conflict with the patient care requirements of the Agency's regulations. We would therefore not reach the issue of whether there was a compelling need for those regulations.

XVIII. Proposal 18

Article 44 - Orientation of New Duties

Except in emergencies or staffing shortages, nurses who are assigned to the float pool will not be reassigned to new duties involving unfamiliar procedures and/or equipment without an appropriate orientation or training. When a nurse is temporarily reassigned or pulled to new duties on short notice, and he/she is unfamiliar with the procedures or equipment in the temporary assignment, they shall notify their supervisor either orally or in writing of their concerns. Upon such notification, Management  shall take such actions as may be appropriate under the circumstances to insure that the quality of patient care is not affected. (Underscored portion of this proposal is at issue.)

A. Positions of the Parties

The Agency contends that the disputed portion of Proposal 18 is contrary to section 7106(a)(2)(B) of the Statute because it precludes the right to assign work by imposing a precondition that nurses receive appropriate orientation or training before reassignment. The Union contends that this portion of the proposal applies only to nurses assigned to the float pool and that it leaves ample room for the full exercise of management discretion in making assignments.

B. Analysis and Conclusion

Proposal 18 would prohibit management from reassigning nurses to new duties without providing them with orientation or training. By thus conditioning the assignment of work on the provision of training, the proposal has the same effect as Proposal 14 in this case. For the reasons set forth in our discussion of Proposal 14, we find that Proposal 18 directly interferes with mangement's right to assign work under section 7106(a)(2)(B) of the Statute and is outside the duty to bargain.

XIX. Proposal 19

Article 45 - Health and Safety

Section 2. Employee Rights

a. No employee shall be allowed to work in an area beyond the visibility of others, without periodic checks being made by the supervisor, other employees, or security personnel. No employee shall be allowed to work in confined or enclosed spaces without proper ventilation. Both parties recognize that the safety of patients and employees alike is endangered when one employee works alone on a unit. Normally, employees will not be required to work alone on a unit. 

Section 3. Committee Structure and Procedures

d. It is agreed that occupational safety and health problems are subject to the negotiated grievance procedure.

e. It is intended that the Union or Union representatives' participation in the health and safety program shall not constitute a basis for liability.

A. Positions of the Parties

The Agency contends that Section 2.a of the proposal interferes with management's rights to assign work under section 7106(a)(2)(B) of the Statute. In this regard, it argues that the proposal would prevent management from assigning work to an employee unless management also undertook to assign other employees to monitor that employee, and would thus interfere with management's right to make work assignments. The Union disagrees.

The Agency contends that Section 3.d is nonnegotiable because, in addition to the arguments it makes with regard to section 2.a, matters with regard to health and safety are negotiable only at the election of the Agency and the Agency chooses not to negotiate.

The Agency contends that Section 3.e concerns matters of employee liability, matters specifically provided for by law, such as the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671-80, and are therefore excluded from conditions of employment about which an agency must negotiate under section 7103(a)(14)(C) of the Statute. The Union disagrees.

The Agency also contends that the entire proposal is contrary to VA regulations for which a compelling need exists under section 7117(a) and (b) of the Statute.

B. Analysis and Conclusions

Section 2.a

We find that section 2.a is nonnegotiable. The first part of Section 2.a would preclude management from assigning employees to work in isolated areas unless it has also assigned a supervisor, security person or some other employee the responsibility for watching over those isolated areas.

The effect of the proposal therefore is to condition one work assignment on another. Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to make specific periodic work assignments. See National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). Moreover, management cannot be required to negotiate on proposals which condition the exercise of a management right on the prior exercise of that right. See, for example, National Association of Government Employees, Local R14-8 and Veterans Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17 (1986) (Proposal 5). Thus, by requiring management to assign responsibility for monitoring an isolated area as a precondition to assigning an employee to work in that area, the first part of section 2.a directly interferes with management's right to assign work and is outside the duty to bargain.

The last sentence of section 2.a would preclude management from requiring an employee to work alone on a unit. The effect of this portion of the proposal is to require management to assign at least one other person to work with that employee. This portion of section 2.a therefore has the same effect as Proposal 6 in National Federation of Federal Employees, Local 1197 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981), aff'd National Federation of Federal Employees, Local 11167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). The proposal in that case provided that no employee required to work in a particularly hazardous or poor environmental area shall be directed to work alone. The Authority found the proposal nonnegotiable, as it constituted an interference with management's right under section 7106(b)(1) of the Statute to determine the number of employees assigned to any work project or tour of duty so long as management chose not to negotiate. For the same reasons we find that the last sentence of Section 2.a of Proposal 19 is not within the duty to bargain, as management here also chose not to negotiate.

The Agency's contentions as to a compelling need for its regulations concerning the care and treatment of patients appear to be directed at Section 2.a. Since we have found this section of the proposal to be nonnegotiable, we need not address the Agency's compelling need arguments. 

Section 3.d

We find that Section 3.d is negotiable. The proposal would make employee safety and health problems subject to the grievance procedure. Matters concerning employee safety and health on the job are matters which pertain to employees' conditions of employment. The term "grievance" is defined in section 7103(a)(9) to mean any complaint by an employee concerning the employment of that employee. Thus, consistent with Authority precedent, grievances concerning job-related health and safety problems are covered by the negotiated grievance procedure, unless otherwise excluded by law. See, for example, Bureau of Indian Affairs and National Federation of Federal Employees, 25 FLRA No. 74 (1987). The Agency has cited no law which excludes such matters from the negotiated grievance procedure and we are not aware of any provisions of the law which have that effect. Moreover, contrary to the Agency, by providing for health and safety matters to be covered by the negotiated grievance procedure, Section 3.d would not interfere with management's rights under the Statute. See American Federation of Government Employees, AFL - CIO, National Council of EEOC Locals and Equal Employment Opportunity Commission, 10 FLRA 3, 5 (1982), enforced sub nom. EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed, 106 S.Ct. 1678 (1986). See also United States Naval Ordnance Station, Louisville, Kentucky v. FLRA, No. 86-3123 (6th Cir. May 12, 1987), enforcing Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL - CIO and U.S. Naval Ordnance Station, Louisville, Kentucky, 20 FLRA 848 (1985). Thus, we find Section 3.d to be within the duty to bargain.

Section 3.e

As to Section 3.e of the proposal, we find that we cannot make a negotiability determination. The proposal states that participation in the health and safety program by "the Union," or "union representatives' participation in the health and safety program," shall not constitute a basis for liability. This phrasing is susceptible to more than one interpretation. It speaks of "Union" as well as "Union representatives'" participation. The Union, however, states only that "an employee's rights might arguably have some effect on where he is and what he is doing at a particular moment in time" and that the proposal does not involve "any attempt to negotiate the assignment of work." The Union does not address the nature of the "liability" against which it seeks to protect employees. 

The parties bear the burden of creating the record on which the Authority will make a negotiability determination. American Federation of Government Employees, Local 12 and U.S. Department of Labor, 25 FLRA No. 83 (1987) (Proposal 5). Because the Union has not met the burden of creating a record which is sufficient for the Authority to make a negotiability determination, the Union's petition for review as to Section 3.e must be dismissed. See American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA No. 89 (1987).

XX. Proposal 20

New Article 45 - "Baylor Plan"

Section 2. The Medical Center will implement the Baylor Plan in keeping with governing regulations. When nurses on a unit have an interest in or need for utilization of the Baylor Plan, they shall submit a request in writing to the appropriate management official. Upon receipt of such request, nursing management will develop a proposal for use of the Baylor Plan in consultation with the nurses on the unit and submit such proposal stipulating criteria for utilization to VACO for approval.

Section 3. In those units where the Baylor Plan has not yet been implemented, nurses interested in working the 12-12 tour will be considered for such positions in keeping with the job bidding and posting procedures of Article XXXIX of the collective bargaining agreement.

Section 4. Nurses who work under the Baylor Plan will be compensated at an hourly rate of basic pay equal to a 40 hour work week. Nurses on the Baylor Plan shall be considered full-time employees for the purpose of determining fringe benefits, such as leave, retirement, life insurance, health insurance, etc.

A. Positions of the Parties

The Agency points out that the Baylor Plan, as described in 38 U.S.C. 4107(h)(1), gives the Administrator discretion to establish a full administrative workweek that consists of two 12-hour tours of duty between midnight Friday and midnight the following Sunday, which is treated as a full administrative workweek for all pay purposes. The Agency also points out that implementation of the plan is only at the discretion of the Administrator and under regulations which he prescribes. The Agency argues that the proposal therefore does not concern a condition of employment because it is specifically provided for by Federal statute under section 7103(a)(14)(C). Further, the Agency claims that the proposal deprives the Administrator of the discretion to decide whether or not the Baylor Plan will be used at a particular facility. The Agency also contends that the proposal interferes with its right to assign work under section 7106(a) of the Statute because it requires the Chief, Nursing service to develop and submit a proposal for use of the Baylor Plan at the facility, although the authority to take that action has been granted to the Director of the facility.

The Union contends that the Baylor Plan proposal is a method for the implementation of the plan provided for in VA regulations and that the proposal is consistent with those regulations.

B. Analysis and Conclusions

We find that the proposal constitutes a negotiable procedure under section 7106(b)(2). The first sentence of Section 2 of the proposal could be interpreted, as the Agency maintains, as requiring management to implement a Baylor Plan at the Medical Center whether it chooses to or not. However, that sentence can also be interpreted to mean that if management decides to adopt the Baylor Plan, it will implement the Plan in accordance with governing regulations. The Union states that the proposal is a proposal for the method of implementation of a plan provided for in present regulations.

We agree with the Union that the proposal does not restrict the Agency's discretion to make the initial decision whether or not to implement the Baylor Plan. Section 2 of the proposal specifically states that submission of requests for a Baylor Plan must be consistent with appropriate regulations and that the request must be submitted to the Veterans Administration Central Office for approval. We find that the effect of the proposal is only to provide a procedure by which employees can request management to adopt a Baylor Plan but that the proposal in no way requires management to adopt a Baylor Plan. Therefore, to the extent that Proposal 20 only provides that the Baylor Plan will be implemented at the Agency's discretion in accordance with VA regulations, the proposal is within the duty to bargain. 

The Agency contends that the last sentence of Section 2 would require nursing management, which the Agency states would necessarily mean the Chief, Nursing Service, to develop and submit a Baylor Plan proposal. However, contrary to the Agency, we find that the last sentence of Section 2 would not require the Chief, Nursing Service to perform the duty of developing and submitting a Baylor Plan proposal. It simply requires that someone in management prepare the request. The proposal only outlines a procedure which would be followed in requesting a Baylor Plan but does not dictate to the Agency what duties should be assigned to a specific individual. Consequently, that sentence of the proposal is also within the duty to bargain. See VA Medical Center, North Chicago, 27 FLRA No. 79 (Proposal 4). Compare U.S. Army Missile Command, 27 FLRA No. 14.

XXI. Proposal 21

Closed Unit Coverage

Section 1. The closed unit concept is a voluntary one stipulating that employees on a given unit may fully participate in developing staffing schedules for their unit. The concept eliminates floating on or off the unit except in extreme staffing emergencies.

Section 2. The concept requires that unit employees provide 24-hour, 7-day a week coverage based on a staffing pattern sufficient to meet the capacity of the unit and the needs of the patients. On those units where nurses unanimously agree to the closed unit concept, management will ensure that a staffing level sufficient to meet the needs of patients is developed. Once a unit is closed, management will ensure that this staffing level is maintained.

Section 3. Staff are free to utilize any approved tours of duty. These may be permanent or there may be rotation as collectively agreed on by the employees. Days off may be permanent or rotated as staff themselves determine.

Section 4. In utilizing the closed unit system, it is assumed that participating employees may be relied upon to be on duty as scheduled. In the event that an employee must take unscheduled leave, the nurse in charge may request an off-duty employee to come to work, if necessary. This is voluntary on the part of the employee. Assignment or coercion of  employees to call-back or stand-by status during off-duty hours is expressly forbidden. A nurse will not be disciplined for not accepting unscheduled work under the closed unit system.

Section 5. If an off-duty employee cannot be located to come to work, the charge nurse will notify the appropriate coordinator/supervisor who will provide assistance as needed.

Section 6. The CNS (Chief Nursing Service) will authorize a unit to be closed or opened based on the following criteria:

(a) The CNS will authorize a unit to be closed or opened at the unanimous request of the staff on the unit. Individual employees not wishing to participate will, upon request, be transferred to another unit, according to their expressed preference, in keeping with Article 39 of the collective bargaining agreement.

b) A unit may retain closed status provide (sic) employees maintain adequate staffing levels with-out unusual demands on Medical Center or Service resources.

c) A unit will be reopened by the CNS if it is determined that there is excessive unscheduled leave usage requiring extensive personnel to maintain adequate staffing levels.

Section 7. Employees assigned to closed units, if working tours of duty other than those prescheduled, will be compensated in accordance with applicable pay and leave regulations as at present.

A. Positions of the Parties

The Agency contends that the proposal violates management's rights to hire, assign, direct, layoff, discipline, and retain employees under section 7106(a)(2)(A) and (B) of the Statute. The Agency also contends that the proposal is determinative of the numbers, types, and grades of employees assigned to a tour of duty and is negotiable only at the election of the Agency under section 7106(b)(1).

B. Analysis and Conclusions

The closed unit system would permit the employees assigned to a unit to develop their own staffing schedules to meet the requirement of 24 hours per day, 7 days per week coverage. According to the Agency, closed unit coverage would: (1) eliminate floating on or off the unit except in "extreme staffing emergencies" (Section 1); (2) prohibit management from interfering with employee staffing decisions (Section 2); (3) prohibit management from assigning employees to call-back or stand-by duty (Section 4); (4) require the transfer of employees to another unit at their request (Section 6a); (5) prevent management from disciplining an employee for failure to accept unscheduled work (Section 4); (6) prevent management from separating an employee in a closed unit unless there is a replacement for that employee (Section 2).

The proposal would, in effect, give to employees the right, if they unanimously agree, to demand that management establish a closed unit and that management provide and maintain adequate staffing levels (Section 1). All decisions relating to tours of duty, days off, or rotation of tours of duty and days off would be in the discretion of the staff, not management (Sections 2 and 3). Off-duty employees would have the right to refuse to work in place of absent employees (Section 4).

We agree with the Agency that Proposal 21 directly interferes with management's rights under section 7106(a)(2)(B) because it would substantively interfere with the Agency's right to assign work. The net effect of this proposal is that the employees would be given full discretion to assign themselves duties and to establish their own work schedules. In this regard the proposal is similar to the provision found to be outside the duty to bargain in International Organization of Masters, Mates and Pilots and Panama Canal Commission, 11 FLRA 115 (1983) (Provision 5(f)). That provision would have allowed the pilots involved in unusual, partial or aborted Canal transits to determine a fair division of duties. The Authority held that the provision would permit employees to substitute their judgment for management's with regard to the assignment of duties and would therefore deprive management of its right to assign work under section 7106(a)(2)(B).

In the present case, Proposal 21, by allowing those employees who unanimously agree to implement a closed unit system in their work unit to develop staffing schedules for their unit, would give those employees complete discretion to determine tours of duty and related work assignment matters. Management would have no discretion at all in that area of responsibility; the employees' judgment would be substituted for that of management. Therefore, for the reasons set forth in Panama Canal Commission, we conclude that Proposal 21 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is outside the duty to bargain.

Moreover, with respect to Section 4 in particular, by precluding management from assigning employees to stand-by or call-back status during off-duty hours, that portion of the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is outside the duty to bargain. See International Plate - Printers, Die - Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1986) (Provisions 6 and 8). Further, by precluding management from disciplining an employee for refusing to accept an unscheduled work assignment, Section 4 of Proposal 21 also directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Id. (Provisions 26-28).

In view of this determination, it is not necessary to discuss the Agency's contention that Proposal 21 also is outside the duty to bargain under section 7106(b)(1).

XXII. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain on Proposals 4 and 5; Proposal 6, Section 3; Proposal 7, the first and last sentences of Section 5; Proposals 8 and 9; Proposal 10; Proposal 11; Proposal 12, the second and third sentences of Section 1, the first sentence of Section 2, Section 3, and Section 7, with the exception of the last sentence; Proposal 13, the last three sentences of Section 5; Proposal 15, the second sentence of Section 4.d, Section 4.e, the first sentence of Section 7; Proposal 19, Section 3.d; and Proposal 20. 2

The Union's petition for review as to Proposal 1; Proposal 2; Proposal 6, Section 4; Proposal 7, the first sentence of Section 3, the second paragraph of Section 3,  and the second sentence of Section 5; Proposal 12, the second and third sentences of Section 2, Section 4, and the last sentence of section 7; Proposal 13, with the exception of the last three sentences of Section 5; Proposal 14; Proposal 15, Section 4.c, the first and last sentence of Section 4.d, and Section 7, with the exception of the first sentence; Proposal 16; Proposal 17; Proposal 18; Proposal 19, Section 2.a and Section 3.e; and Proposal, 21 is dismissed.

Issued, Washington, D.C.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

DECISION AND ORDER ON PROPOSAL 3, 12 and 15

I. Proposal 3

Article 20 - Union Representation Delegates -Permanent Tours of Duty

Section 8, paragraph 2. In order to improve communication between the Union and Management, one representative from each of Brown Hospital, Patrick Hospital and Nursing Home elected by the Union will be assigned to permanent day tour of duty.

A. Positions of the Parties

The Agency contends and the Union disputes that Proposal 3 violates management's right to assign employees under section 7106(a)(2)(A) of the Statute.

B. Analysis and Conclusion

Proposal 3 would require that certain Union officials be assigned to permanent day tour of duty. This proposal is to the same effect as Provision 3 which was found to be within the duty to bargain in International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987). As in that case, there is no indication here that the Union representatives would perform duties other than those which the Agency had already assigned to their positions. Rather, the proposal is concerned with when, that is, on what shift, the Union representatives will perform those duties, and is within the duty to bargain. Accordingly, Proposal 3 is within the duty to bargain.

I. Proposal 12

Article 39 - Assignment Posting and Bidding

Section 1.

. . . . Nursing Service shall fill vacancies in an expeditious manner.

A. Postions of the Parties

The Agency contends that the proposal violates its right to assign employees, to assign work and to make selections for appointments under section 7106(a)(2)(A), (B) and (C) of the Statute because it would impose substantive criteria on its exercise of those rights. The Union disagrees.

B. Analysis and Conclusions

The fourth sentence of Section 1 of Proposal 12 would require the Nursing Service to fill vacancies in an expeditious manner. It therefore has the same effect as Proposal 9 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 we found that a proposal requiring management to fill vacant positions as soon as practicable was a negotiable procedure under section 7106(b)(2) of the Statute. For the reasons stated in VA Medical Center, Salisbury, we find that the fourth sentence of Section 1 of Proposal 12 is likewise a negotiable procedure under section 7106(b)(2) and within the Agency's duty to bargain.

III. Proposal 15

Article 41 - Tours of Duty and Work Schedules

Section 5. If an employee requests a change of schedule after the schedule has been posted, said employee may arrange with another qualified RN to have a schedule change, provided the supervisor approves such change. Such requests will not be unreasonably denied.

Section 6. Trading of days scheduled off will be permitted, providing qualified employees have the approval of the supervisor. Such requests will not be unreasonably denied.

A. Positions of the Parties

The Agency contends that Sections 5 and 6 violate the right to assign employees because the delays in making assignments would adversely affect proper patient care. The Agency also contends that Sections 5 and 6, which permit changes in work schedules and in days off, conflict with Agency relations for which a compelling need exists under section 7117(a) and (b) of the Statute and section 2424.11 of the Authority's Regulations. The Union denies that the proposal interferes with management's right to assign employees. The Union does not address the Agency's other contentions.

B. Analysis and Conclusions

The first sentences of Sections 5 and 6 prescribe certain responsibilities for supervisors, namely, the approval of employee requests for changes in work schedules and days off. For the reasons stated in the discussion of the other portions of Proposal 15 above, see Section XV. of this decision, we find that these sentences directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. Similarly, if these sentences were revised to preserve management's discretion to assign work to supervisory personnel, they would be negotiable procedures for requesting schedule changes and days off. See Section XV. of this decision.

The last sentences of Sections 5 and 6 provide that requests to change schedules or to trade days off will not be "unreasonably denied." In our view, these sentences are similar to provisions in cases where the Authority has held that an agency's exercise of its discretion to authorize leave without pay can be subjected to an examination by an arbitrator to determine if that exercise of discretion was arbitrary, discriminatory, or capricious, or was undertaken for just cause. For example, Northeastern Program Service Center, Office of Program Service Centers, Social Security Administration and American Federation of Government Employees, Local 1760, 7 FLRA 747 (1982). See also Local 1917, American Federation of Government Employees and United States Immigration and Naturalization Service, Eastern Region, 13 FLRA 77 (1983). These sections do not establish any particular substantive standards by which management's actions are to be evaluated. They simply require the Agency to follow a rational process in applying whatever standards management has decided to utilize. For these reasons, the last sentences of Sections 5 and 6 do not interfere with management's rights.

Finally, because the last sentences of Sections 5 and 6 permit management to deny employee requests for changes in work schedules and days off where there are valid reasons, including reasons related to patient care needs, we find that those sentences do not conflict with the requirements of the Agency's regulations making the care and treatment of patients  the primary consideration in employee assignments. We do not need, therefore, to reach the question of whether there is a compelling need for those regulations under section 7117(a) and (b) of the Statute. We also note in this connection that if the first sentences of Sections 5 and 6 were revised in accordance with our discussion above, it would be necessary to reach the issue of compelling need as to those sentences. However, as the Agency has not specifically shown how compliance with those procedural steps would conflict with the requirements of its regulations regarding care and treatment of patients, we would not need to decide whether there is a compelling need for those regulations.

IV. Order

The Agency must upon request, or as otherwise agreed to by the parties, negotiate over Proposal 3, the fourth sentence of Section 1 of Proposal 12 and the last sentences of Sections 5 and 6 of Proposal 15. 3

The Union's petition for review as to the first sentences of Sections 5 and 6 of Proposal 15 is dismissed.

Issued, Washington, D.C., July 31, 1987.

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

Concurring and Dissenting Opinion of Chairman Calhoun

I respectfully disagree with my colleagues as to Proposal 3 for essentially the same reasons I set forth in my dissent as to Provision 3 in Bureau of Engraving and Printing, 25 FLRA No. 9 (1987).

With respect to the fourth sentence of Section 1 of Proposal 12, I disagree with my colleagues for the reasons set forth in my dissent in VA Medical Center, Salisbury, 27 FLRA No. 13 (1987).

I agree with my colleagues that the first sentences of Sections 5 and 6 of Proposal 15 are nonnegotiable because they assign to supervisory personnel the responsibility for approving employee requests for schedule changes and changes of days off. I respectfully disagree with my colleagues as to the negotiability of the last sentences of Sections 5 and 6. Those sentences provide that requests to change schedules or to trade days off will not be "unreasonably denied." In my view, that wording would directly interfere with management's right to make decisions concerning employees' work assignments. These sentences would establish a substantive criterion for the evaluation of management's denial of employee requests and would thereby subject the exercise of management's right to assign work to arbitral review. The effect would be that a substantive limitation would be imposed on management's right to determine which nurses should be assigned to meet specific skills requirements. See VA Medical Center, Ft. Lyons, 25 FLRA No. 66 (Proposal 4). Therefore, I would find that the last sentences of Sections 5 and 6 are outside the duty to bargain.

Dated, Washington, D.C. July 31, 1987.

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY 

APPENDIX A

Proposals 14 and 18

The Agency makes no claim that Proposals 14 and 18 conflict with any VA regulations.

Proposal 2

The Agency claims that Proposal 2 conflicts with VA Manual MP-5, Part II, Chapter 2, Paragraph 5c(1)(a) and the DM&S Supplement, Paragraph 2.05(a)(1), 2.05a(3)(b) and 2.05c(1)-(5), and VA Manual MP-5, Part II, Chapter 7, Paragraph 3(b) and the DM&S Supplement, Paragraph 7.04 pertaining to the numbers that will constitute the Standards Board, the functions of the Board, and the general duty of patient care, respectively. 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 2.

Proposal 3

The Agency claims that Proposal 3 conflicts with VA Manual MP-5, Part II, Chapter 7, Paragraph 3b and the DM&S Supplement, Paragraph 7.04 because the proposal is inconsistent with the VA Administrator's authority to prescribe hours of work and tours of duty. 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 3.

Proposals 4 and 5

The Agency claims that Proposals 4 and 5 conflict with VA Manual MP-5, Part II, Chapter 7 and the DM&S Supplement, Paragraph 7.04 because the proposal places authority at the local level and is thus inconsistent with the VA Administrator's authority to resolve grievances. 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 Proposals 4 and 5. 

Proposal 6

The Agency claims that Proposal 6 conflicts with VA Manual MP-5, Part II, Chapters 7 and 410 and VA Manual M-8, Part IV, Chapter 2 pertaining to established Agency criteria for training and educational programs. 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 7

The Agency claims that Proposal 7 conflicts with VA Manual MP-5, Part II and the DM&S Supplement, Paragraphs 2.05 and 6.06e(1); as to Paragraph 2.05 pertaining to the functions of the Standards Board, and as to Paragraph 6.06e(1) because the proposal would modify established Agency rating periods. 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 7.

Proposals 8 and 9

The Agency claims that Proposals 8 and 9 conflict with VA Manual MP-5, Part II, Chapter 7, Paragraphs 7b1(d)2a and 7b1(d)2b pertaining to the accrual and administration of annual and sick leave. 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 Proposals 8 and 9.

Proposal 10

The Agency claims that Proposal 10 conflicts with VA Manual MP-5, Part II, Chapter 7 and the DM&S Supplement, Paragraphs 7.04 and 7.07 pertaining to the general duty of patient care. 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 10.

Proposal 12

The Agency claims that Proposal 12 conflicts with VA Manual MP-5, Part II, Chapters 2, 5, 7 and 11 and the DM&S Supplement pertaining to appointments, advancements, duty and leave recruitment and placement, 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 12.

Proposal 16

The Agency claims that Proposal 16 conflicts with VA Manual MP-5, Part II, Chapter 11, Paragraph 11B.03c because the proposal is inconsistent with the VA Administrator's authority to change tours of duty in keeping with the general duty of patient care. 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 16.

Proposal 20

The Agency claims that Proposal 20 conflicts with VA Manual MP-5, Part II, Chapter 3, Paragraph 4 because the proposal conflicts with established Agency assignments of responsibility in connection with implementing a "Baylor Plan." 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 20.

Proposal 21

The Agency claims that Proposal 21 conflicts with VA Manual MP-5, Part II, Chapter 7, Paragraph 3b and the DM&S Supplement, Paragraph 7.04 because the proposal is inconsistent with the VA Administrator's authority to prescribe hours of work and tours of duty. 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 21. 

APPENDIX B

Article 21 - Grievance Definition

Section 1. A grievance is defined as any complaint:

a. By any registered nurse concerning any matter' related to his/her employment;

b. By the Union concerning any matter relating to the employment of any registered nurse;

c. By any registered nurse, the Union or the Agency concerning the effect of interpretation, or a claim of breach of the negotiated agreement; or any claimed violation, misinterpretation, or misapplication of any law, rule or regulation affecting conditions of employment.

Section 2. The negotiated grievance procedure shall exclude:

a. Any claim (sic) violation of subchapter III of Chapter 73 of Title 5, USC (relating to prohibited political activities);

b. Retirement, life insurance or health insurance;

c. A suspension or removal under Section 7532 of Title 5 (Security) ;

d. Any examination, certification, or appointment;

e. The classificatio