34:0260(51)CA - - Veterans Affairs, Washington, DC and Veterans Affairs, Medical and Regional Office Center, Togus, ME and AFGE Local 2610 - - 1990 FLRAdec CA - - v34 p260



[ v34 p260 ]
34:0260(51)CA
The decision of the Authority follows:


34 FLRA NO. 51

U.S. DEPARTMENT OF VETERANS AFFAIRS
WASHINGTON, D.C.
AND
U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL AND REGIONAL OFFICE CENTER
TOGUS, MAINE
(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2610
(Charging Party)

1-CA-70068
1-CA-70069

DECISION AND ORDER

January 12, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated unfair labor practice case in before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondent's exceptions.


The issues are whether the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) when it unilaterally changed conditions of employment of bargaining unit employees by: (1) changing the definition of "mentor" in the qualification standards for promotion of nurses of the Veterans Administration Medical and Regional Office Center, Togus, Maine (VA Togus Center), without notifying American Federation of Government Employees, Local 2610, AFL - CIO (the Union) and providing it with an opportunity to bargain over the impact and implementation of the change; and (2) changing the definition of "research and study" in the qualification standards for promotion of nurses at the VA Togus Center, without notifying the Union and providing it with an opportunity to bargain over the impact and implementation of the change.

Subsequent to the Judge's decision in this case, the United States Court of Appeals for the District of Columbia Circuit reviewed the Authority's decision in Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA 803 (1987) (VAMC, Ft. Lyons). In VAMC, Ft. Lyons, the Authority found that the obligation to bargain under the Statute applies to the conditions of employment of professional medical employees of the Department of Medicine and Surgery (DM& S) of the VA who are appointed under chapter 73 of Title 38 of the United States Code (title 38).

The court found that the VA is not obligated to bargain over the conditions of employment of DM&S, title 38 employees and reversed the Authority's ruling. Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) (Colorado Nurses). The court found that the Statute's provision for mandatory collective bargaining over the conditions of employment of these employees conflicts with the authority of the VA Administrator under 38 U.S.C. 4108(a). Section 4108(a) provides that "(n)otwithstanding any law, Executive order, or regulation," the VA Administrator "shall prescribe by regulation the hours and conditions of employment and leaves of absence" of DM&S professional medical employees. The court stated that "(i)n enacting section 4108, Congress intended to give the Administrator unfettered discretion to issue regulations concerning the working conditions of DM &S employees." Id. at 1492.

Consistent with the court's decision in Colorado Nurses, we conclude that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by its failure to notify the Union of the Respondent's changes in the qualification standards for promotion of nurses at the VA Togus Center and afford the Union an opportunity to bargain over the impact and implementation of the changes.

II. The Administrative Law Judge's Decision

Based on the Authority's decision in VAMC, Ft. Lyons, the Judge rejected the Respondent's contention that under sections 4108 and 4119 of title 38, the Authority has no  jurisdiction over conditions of employment of professional medical employees of the DM&S.

The Judge found that the Respondent had merely restated existing policy and did not change conditions of employment by defining "mentor" in the qualification standards for promotion of nurses. Consequently, he recommended the dismissal of this allegation in the consolidated complaint. (Case No.  1-CA-70069).

The Judge also concluded that the Respondent changed the requirements for complying with the qualification standards of "research and study" and that the change had more than a de minimis impact on the bargaining unit. He found that by not notifying the Union and affording it an opportunity to bargain over the impact and implementation of the change, the Respondent violated section 7116(a)(1) and (5) of the Statute. Consequently, the Judge recommended that the Respondent cease and desist from the unfair labor practices and take certain affirmative action. (Case No. 1-CA-70068.)

III. Positions of the Parties

The Respondent contends that: (1) based on the court's decision in Colorado Nurses, the Respondent has no obligation to bargain over the conditions of employment of professional medical employees of the DM&S; (2) this case involves matters which are excepted from the definition of conditions of employment under section 7103(a)(14) of the Statute because they are "specifically provided for" by law; (3) the complaint was not specific or did not contain a clear and concise statement of facts, as required by FLRA regulations; (4) no change occurred in conditions of employment; (5) the requested bargaining would interfere with management rights under section 7106 of the Statute; and (6) any impact on the bargaining unit was de minimis.

The General Counsel contends that the Authority should not follow the court's decision in Colorado Nurses.

IV. Discussion

For the following reasons, we conclude that, under Colorado Nurses, the Respondent was not obligated to bargain over any changes in the qualification standards for promotion of nurses at the VA Togus Center. 

Based on the rationale and conclusions of the U.S. Court of Appeals for the D.C. Circuit in Colorado Nurses, the Authority has concluded that the VA has no obligation to bargain over the conditions of employment of professional medical employees of the DM&S. For example, Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 33 FLRA  284 (1988), aff'd order sub nom. Illinois Nurses Association v. FLRA, No. 88-1891 (D.C. Cir. Apr. 12, 1989). Likewise, the VA has no obligation to bargain over the impact and implementation of changes in the conditions of employment of those employees. Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 33 FLRA 417, 419 (1988).

It is undisputed that the nurses who are the subject of this consolidated complaint are professional medical employees of the DM&S. VA nurses are promoted under regulations prescribed by the Administrator in accordance with the provisions of title 38. Brief for Respondent at 6-7. Under title 38, the Administrator has "unfettered discretion to issue regulations concerning the working conditions of DM&S employees." Colorado Nurses at 1492. The promotion process clearly is a working condition of professional medical employees of the DM&S within the meaning of Colorado Nurses.

Therefore, because the Respondent had no obligation to bargain over the impact and implementation of changes in the conditions of employment of the nurses involved, we find that the Respondent did not violate the Statute by failing to notify the Union of any changes in the qualification standards for promotion of nurses at the VA Togus Center and afford the Union an opportunity to bargain over the impact and implementation of those changes. Accordingly, we will dismiss the complaint. In view of our conclusion, it is unnecessary to address the Respondent's alternative arguments.
V. Order

The consolidated complaint in Case Nos. 1-CA-70068 and
1-CA-70069 is dismissed. 
_______________________________________________

VETERANS ADMINISTRATION
(WASHINGTON, D.C.) AND
VETERANS ADMINISTRATION
MEDICAL AND REGIONAL OFFICE
CENTER (TOGUS, MAINE)

Respondent

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2610

Charging Party

Case Nos. 1-CA-70068
1-CA-70069

Timothy Ridge, Esq.
For the Respondent

Marilyn H. Zuckerman, Esq.
For the General Counsel

Before: WILLIAM NAIMARK
Administrative Law Judge

DECISION

Statement of the Case

Pursuant to an Order Consolidating Cases, Complaint and Notice of Hearing issued on February 12, 1987 by the Regional Director, Federal Labor Relations Authority, Region I, a hearing was held by the undersigned on November 19, 1987 at Augusta, Maine.

The cases arose under the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). They are based on charges filed on November 17, 1986 in Case No. 1-CA-70068, and in Case No. 1-CA-70069, by American Federation of Government Employees, AFL - CIO, Local 2610 (herein called the Union), against Veterans Administration, Washington, D.C. and the Veterans Administration Medical and Regional Office Center, Togus, Maine (herein collectively called Respondent).

The Complaint alleged, in substance, that on or about June 2, 1986 Respondent unilaterally changed conditions of employment by (a) changing the definition of mentor in the qualification standards for promotion of nurses of the VA Togus Center, without notifying the Union and providing it with an opportunity to bargain re the impact the implementation of said change; (b) changing the definition of research and study in the qualification standards for promotion of nurses at the VA Togus Center, without notifying the Union and providing it with an opportunity to bargain re the impact and implementation of said change -- all in violation of Section 7116(a)(1) and (5) of the Statute.

Respondent's Answer dated March 9, 1987 denies the aforesaid allegations as well as the commission of any unfair labor practices. Several affirmative defenses are raised by Respondent including (a) that the complaint is untimely and barred under Section 7118(a)(4)(A) of the Statute; (b) that policies, practices and matters re working conditions of nurses, including promotion criteria, are provided for in Title 32 U.S.C. 4105 et seq., and therefore they are outside the terms "condition of employment" in Section 7102(a)(14) of the Statute; (c) the application of the qualification standards requires professional judgment and cannot be subject to negotiation; (d) the alleged violation is de minimis. 1

All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed which have been duly considered.

Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions:

Findings of Fact

1. At all times material herein the American Federation of Government Employees, AFL - CIO, has been, and still is, the exclusive representative of all full time and regularly schedule part-time registered nurses employed at the VA Medical and Regional Office Center, Togus, Maine, with specified exclusives from said unit.

2. At all times material herein Respondent has recognized the Union as the agent and representative of the American Federation of Government Employees, AFL - CIO at the VA Medical and Regional Office Center, Togus, Maine. 3. Promotions of nurses at the VA are dealt with by Statute (38 U.S.C. 4101 et seq.) as well as regulations and manual provisions. 2 A preliminary step requires that head nurses prepare a proficiency report of a nurse. This report is sent to the Nursing Professional Standards Board for oreview and recommendations. This Board is composed of a special group of nurses selected by the chief nurse. The Union has not been represented thereon. The Board evaluates a proficiency report and then sends its recommendations as to promotions to the Chief Nurse. The latter concurs or disagrees, and the report is forwarded to the Director of the Center who makes the final decisions.

4. The Nurse VA Qualification Standards, Department of Medicine and Surgery (DM&S), dated May 18, 1983, set forth the criteria in clinical, managerial, instructional and research skills which are necessary for a nurse to be promoted to an Intermediate Grade (Joint Exhibit 3). Under "clinical skills" it is provided inter alia, that the nurse "functions as consultant and mentor to other nurses." Under "research skills" it is provided: "under supervisory guidance accepts responsibility for a scientific investigation expected to result in a published addition to scientific knowledge; resolves problems ordinarily entailed in the accomplishment of a project; interprets findings; prepares reports and papers."

5. The Nursing Professional Standards Board (Board) worksheet for promotion to Intermediate Nurses, in connection with the 1983 criteria provides:

"In Clinical Skills" 3

(a) Uses sound clinical judgment in assessing, planning, implementing,
documenting and evaluating nursing care: _______ MET ________ NOT MET

(b) Applies current concepts and findings from research and/or studies
to practice: (underscoring supplied) ________ MET _______ NOT MET

(c) Shares clinical expertise with professional and supportive nursing
personnel: _______ MET ________ NOT MET

(d) Accurately documents and reports care: _______ MET
_______ NOT MET 

(e) Identifies, analyzes and resolves patient care problems whose
resolution results in the significant improvement of nursing care to
individuals and/or group of patients:  _______ MET _______ NOT MET

(f) Functions as consultant and mentor to other nurses: _______ MET
_______ NOT MET (underscoring supplied)

6. A new Chief Nurse, William Harness came to the VA Medical Center in 1984. He took note of the fact that there were many comments from the staff that the promotional process, based on the proficiency narratives, was not understood. The Board advised him that the proficiencies set forth in the report did not address the qualification standards and it was difficult to determine whether nurses were meeting those standards. Further, the Chairperson of the Board discussed the use of a worksheet, but members of the staff stated it was not always possible to know what parts of the qualification standards were not being met. Harness met with the Board to discuss various examples of how a qualification standard could be met. They asked him  to reduce his opinions to writing and talk to the head nurses and discuss it with them. The Board asked Harness to define in writing the meaning of the terms "mentor" and "research and study", which are two of the criteria for promotion to Intermediate Nurse, and illustrate different ways of meeting them.

7. The record reflects that the definition of "mentor" had not been a common problem in the past. Head nurses would advise their registered nurses what to look for to satisfy that criteria. Cliff Andreasen, personnel representative and Board advisor, would present ideas on how to meet the criteria of "mentor."

8. Harness sent a written memo, dated March 3, 1986, to all Head Nurses/Supervisors re the definition of "mentor." 4 In addition to setting forth definitive explanations of the term by the Central Office, Regional Board members, and chairpersons at other VA facilities, Harness explained what is deemed a "mentor" relationship. He also stated that the absolute requirements for a mentoring relationship are attraction, action, and affect.
9. Harness also sent a written memo, dated April 11, 1986 to all Head Nurses/Supervisors re "Management Communication -- R.N. Qualification Standards." 5 This memo recited that "the following are interpretations of R.N. qualification standards which may be beneficial to you when writing proficiency reports." Under the terms "Research" a definition is set forth, as well as examples of research which include "a thesis at the graduate level or research being done here in station through the Research Department." Elements of research are also provided. Under the term "studies" Harness describes what is deemed a study for grade qualifications. The study, he notes, should be a formalized study of a subject -- some evidence of written documentations of the study, why there was a problem, what was done to collect data, what was changed, and the evaluation after recommendations coming out of the study were implemented.

10. Agnes Cassidy, a registered nurse (Intermediate Grade) and chief steward of the Union, testified she met with Harness in June, 1984. He remarked that in August, 1983 the qualification standards has been changed, and it required the nurses be reboarded 6 to determine if they met the new criteria for promotion to intermediate grade. Harness stated that  so many nurses were promoted prior to his arrival and he felt the promotions were automatic. 

11. In October, 1986 Cassidy saw copies of the two memos pertaining to "mentor" and "research and study" which Harness had issued. On October 23 she wrote the Chief Nurse requesting that management bargain thereon, stating that they impacted on the unit and demanded they be withdrawn with no further implementation.

12. Under date of October 31 Harness replied to the request by stating they did not constitute a change in policy or procedures. The Chief Nurse mentioned that the statements in the memos were a composite from several services which presented his interpretation of the standards; that they were guidelines, giving head nurses and supervisors some examples of how standards could be met. Harness explained that the head nurses and supervisors must still interpret the qualification standards and describe in proficiency reports how the nurse meets those standards.

13. Cassidy's testimony reflect that prior to the memos from Harness the dictionary definition of mentor was followed, i.e. as instructor, teacher, someone who guides others in areas where they are not familiar or experienced. In respect to research and study, nurses were told that to meet that requirement they must go out and do some special study and research - get computer searches done on a particular subject that is pertinent to the ward area.

14. Further testimony by Cassidy shows that, prior to the March 3, 1986 memo from management, no intermediate grade nurse was required to engage in a formalized study to comply with the "research and study" qualification. She testified that the requirements of some evidence of written documentation of the study, why there was a problem, what was done to collect data, and what was changed in the evaluation after implementing recommendations from the study -- all those steps were changes initiated by the Chief Nurse in respect to meeting this qualification standard.


15. Record facts show nurse Jerry Vannah was denied a promotion three times during 1986. The first two denials were based on his failure to meet the criteria of "mentor" and "research and study, "the third was due to Vannah's failure to identify, analyze and resolve patient care problems and his failure to function as a mentor. He did satisfy the requirement as to research and study. Vannah was finally promoted on July 1,
1987. 7

16. Head nurses Betty Davis and Linnea Hemphill testified they considered the memos issued by Harness re "mentor" and "research and study" to be guidelines, and they did not consider the memos to be directives. Associate Chief of Nursing Service for Education, Naomi McGyver, testified she used the memos from Harness as a checklist. Staff nurse Harry Bonish has been a Board member, each year since 1982. He testified that the information contained in Harness' memos were no surprise; that it had been talked about and discussed a lot, and he had assimilated it into the way he looked at Board actions; that he considered the information in the memos to be acceptable suggestions for supporting data which must be present.

Conclusions

The issue to be determined herein is as follows: Whether the Respondent unilaterally changed conditions of employment by changing the definition of "mentor" and "research and study" -two qualifications criteria for promotion of registered nurses -without notifying the Union and affording it an opportunity to bargain as to the impact and implementation thereof.

Respondent contends, at the outset, that the Authority has no jurisdiction over working conditions of DM&S employees since sections 4108 and 4119 of Title 38 provide for the personnel system and employment conditions. Thus, it is argued that conditions of employment of DM&S employees are removed from the
VA's duty to bargain under the Statute herein. This argument was rejected by the Authority in Colorado Nurses
Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA 803. The Authority found no conflict exists between Section 4108, which authorized the VA Administrator to prescribe employment conditions, and the Statute which permits collective bargaining re such conditions.


Accordingly, the undersigned concludes there is no merit to this contention and finds that jurisdiction does exist under the Statute with respect to working conditions of DM&S employees. 8

Case No. 1-CA-70069

In respect to the term "mentor," which it is alleged was redefined so as to constitute a change in working conditions, the record reflects that prior to the March 3, 1986 memo from Harness the term was given its dictionary meaning. While this mentorship was a criteria for promotion, there was no definitive explanation of what was meant by it. Thus, the Board sought some clarification or guidelines concerning the term. It is thus essential to ascertain whether the March 3 memo actually changed the criteria requiring the nurse to function as a mentor.

Note is taken if the dictionary's definition of the word "mentor," which was generally followed by the head nurse issuing a proficiency report for a nurse. Webster's third International Dictionary defines the term as follows:

MENTOR

"1: a close, trusted, and experienced counselor or guide . . . who, because he is detached and disinterested, can hold up a
mirror to us . . .

s 2: teacher, tutor, coach"

The definition of "mentor" set forth in the memo from Harness on March 3 reveals that the primary concern of the individual so classified is "establishing and guiding the next generation." As stated, this individual guides and supports the neophyte toward self-knowledge and independence.  Further, the mentor is described as a "teacher, sponsor, host and guide, exemplar and counselor."

In elaborating on what constitutes a mentor, I do not agree with General Counsel that management was changing working conditions. No new requirements on the part of nurses were imposed to qualify for this criteria. No conditions were changed or altered which could affect the promotional possibilities of nurses. The emphasis is clearly upon guiding a less experienced nurse in professional development. The comments were, in essence, guidelines issued by the chief nurse as to the term "mentor" and a recitation of some of the indicia thereof. The Authority has concluded that guidelines issued by management to supervisors which, in effect, restate policy already established, do not require an agency to bargain thereon. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 17 FLRA 1011.

General Counsel adverts to the fact that a mentor is referred to as an older man and thus it changes eligibility since a younger person would not now meet the criteria. However, the superintendent makes it clear that "older" refer to the profession and this is synonymous with someone more experienced and mature. There is no indication that a "mentor" could not be younger in age than one who is guided by him. Further, the requirements for a mentoring relationship, i.e. attraction, action, and affect, are merely part and parcel of the aforesaid definition of a "mentor" as a teacher, tutor or coach to less experienced persons. They do not change what was deemed necessary to occupy such a title, but are descriptive in nature of the term. Hence, I conclude Respondent did not unilaterally change a condition of employment by defining this criteria. Its failure and refusal to bargain on the impact and implementation thereof was not violative of 7116(a)(1) and (5) of the Statute.

Case No. 1-CA-70068

Respondent raises as a defense herein that the charge was not filed within six months of the alleged unfair labor practices as required by Section 7118(a)(4) of the Statute. 9 With respect to the alleged change in the qualification: "Applies current concepts and findings from research and/or studies to practice," management issued its memo to the head nurses/supervisors on April 11, 1986. Since the charge concerning that alleged change was filed on November 17, 1986, it is contended by Respondent's Answer that it was not timely filed within six months of the change and are barred by the Statute.

Record facts indicate that the April 11, 1986 memo was distributed only to managerial personnel and was intended for use by the head nurses or supervisors who issued proficiency reports. No notification thereof was given to the Union, nor did the latter receive a copy thereof. It was not until the Union steward, Agnes Cassidy, was approached by nurse Jerry Vannah in October 1986 that the Union became aware of the directive concerning the research and study qualifications. The foregoing persuades me that the Union was never in a position to know about the newly defined terms until Vannah showed the memo to Cassidy in October. No evidence appears in the record that Vannah, the other nurses, or the Union representatives, knew of it
beforehand.

While it may well be that no deliberate effort was made by management to conceal the April 11 memorandum, it is also true that the Union was unable to learn of it and to file charges within six months of that date. The Authority has recognized that equitable reasons may well call for suspending the running of the six month period under Section 7118(a)(4). Where unique circumstances prevail, time limits imposed by statute may be suspended, and nothing in the aforesaid statutory provision precludes the application of equitable principles in computing the time period. Department of the Air Force, Headquarters 83rd Combat Support Group, DPCE, Luke Air Force Base, Arizona, 24 FLRA 1021. 10 The circumstances herein, which resulted in the Union's having no knowledge of the definitive qualification concerning research and/or studies until October 1986, justify suspending the time period herein. In view of the fact that the charge with respect to this alleged change was filed a month after the Union learned of the memorandum, I conclude it was timely filed under section 7118(a)(4) of the Statute.

In respect to the qualification standards of "research and study," I conclude that the April 11, 1986, memo initiated a change in the requirements for complying therewith to justify a promotion to, intermediate nurse. The redefined terms called for five elements in regard to "research." As an example, a thesis is mentioned in the memo. With regard to "studies," Harness stated therein that it needs to be a formalized study of a subject. The Chief Nurse "would expect some evidence of written documentation of the study, why there was a problem, what was done to collect data, what was changed and the evaluation after implementation of the recommendation which came out of the studies."

The credible, and for the most part unrefuted evidence, as testified to by nurse Cassidy reveals that no such formalized study was a prerequisite beforehand. The expectations in this regard, as set forth in this memo, were not imposed upon nurses in the past in order to fulfill this standard. Cassidy's testimony, that the requirements which must be met for this standard were a change, was not countered by other evidence to demonstrate exactly what was required previously. Nor does the record reflect clearly that the elements set forth in respect to "research and study" were not a change. Accordingly, I conclude that, by not notifying the Union and affording it an opportunity to bargain concerning the impact and implementation of this change, Respondent violated Section 7116(a)(1) and (5) of the
Statute. 11

Having found that Respondent violated section 7116(a)(1) and (5) of the Statute by changing the requirements to meet the qualification standards, "applies current concepts and findings from research and/or studies to practice," it is recommended that the Authority issue the following order designed to effectuate the purposes and policies of the Statute.

It is also recommended that the allegation of the Complaint in Case No. 1-CA-70069, that Respondent on June 2, 1986 unilaterally changed the definition of "mentor" in the qualification standards for promotion of nurses, be dismissed.
ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Veterans Administration (Washington, D.C.) and Veterans Administration Medical and Regional Office Center (Togus, Maine), shall:

1. Cease and desist from:

(a) Instituting changes in the criteria for clinical skills in the qualification standards for promotion of full grade nurses to the intermediate grade without affording American Federation of Government Employees, Local 2610, AFL - CIO, the representative of its employees at its Regional Office Center, Togus, Maine, the opportunity to bargain concerning the procedures for implementing such changes and concerning appropriate arrangements for employees adversely affected by such changes.
(b) In any like or related manner interfering with,
restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor - Management Relations
Statute.

2. Take the following affirmative action:

(a) Rescind the memorandum issued on April 11, 1986 to all Head Nurses/Supervisors in respect to the requirements to comply with the criteria: "applies current concepts and findings from research and/or studies to practice" in order to promote a full grade nurse to the intermediate grade at the Togus, Maine Regional Office Center.

(b) Return to the requirement existing prior to April 11, 1986 necessary to comply with the criteria: "applies current concepts and findings from research and/or studies to practice" in order to promote a nurse to the intermediate grade at the Togus, Maine, Regional Office Center.

(c) Notify the American Federation of Government Employees, Local 2610, AFL - CIO, the representative of its employees at the Regional Office Center, Togus, Maine, of any intention to change the criteria for clinical skills in the qualification standards for promotion of full grade nurses to intermediate nurses, and, upon request bargain in good faith as to the procedures for implementing such change and concerning appropriate arrangements for employees adversely affected by such a change.

(d) Upon request, reboard and reevaluate all nurses at the Togus, Maine Regional Office Center who were denied a promotion to the intermediate grade level since April 11, 1986, based, in part or in whole, on the failure by said nurses to comply with the requirements set forth in the April 11, 1986 memorandum to Head Nurses/Supervisors in respect to the criteria: "Applies current concepts and findings from research and/or studies to practice."

(e) Make whole any nurses whose reboarding and reevaluation results in their being promoted retroactively to the intermediate grade after April 11, 1986 based on their having satisfied the criteria as it existed prior to that date in respect to "Applies current concepts and findings from research and/or studies to practice."

(f) Post at its Togus, Maine facility copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Superintendent of the Togus, Maine Regional Office Center, or his designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. 
(g) Notify the Regional Director, Region I, Federal Labor Relations Authority, 10 Causeway Street, Room 1017, Boston, MA 02222-1046, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
WILLIAM NAIMARK
Administrative Law Judge

Dated: July 6, 1988
Washington, D.C.



NOTICE TO ALL EMPLOYEES

PURSUANT TO

A DECISION AND ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

AND IN ORDER TO EFFECTUATE THE POLICIES OF

CHAPTER 71 OF TITLE 5 OF THE

UNITED STATES CODE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT institute changes in the criteria for clinical skills
in the qualification standards for promotion of full grade nurses
to the intermediate grade without affording American Federation
of Government Employees, Local 2610, AFL - CIO, the
representative of our employees at our Regional Office Center,
Togus, Maine, the opportunity to bargain concerning the
procedures for implementing such changes and concerning
appropriate arrangements for employees adversely affected by such
changes.

WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
assured by the Federal Service Labor - Management Relations
Statute.

WE WILL rescind the memorandum issued on April 11, 1986 to
all Head Nurses/Supervisors in respect to the requirements to
comply with the criteria: "applies current concepts and findings
from research and/or studies to practice" in order to promote a
full grade nurse to the intermediate grade at the Togus, Maine
Regional Office Center.

WE WILL return to the requirement existing prior to April
11, 1986 necessary to comply with the criteria: "applies current
concepts and findings from research and/or studies to practice"
in order to promote a nurse to the intermediate grade at the
Togus, Maine, Regional Office Center.

WE WILL notify the American Federation of Government
Employees, Local 2610, AFL - CIO, the representative of our
employees at the Regional Office Center, Togus, Maine, of any
intention to change the criteria for clinical skills in the
qualification standards for promotion of full grade nurses to
intermediate nurses, and, upon request bargain in good faith as
to the procedures for implementing such change and concerning
appropriate arrangements for employees adversely affected by such
a change.

WE WILL, upon request reboard and reevaluate all nurses at
the Togus, Maine Regional Office Center who were denied a
promotion to the intermediate grade level since April 11, 1986,
based, in part or in whole, on the failure by said nurses to
comply with the requirements set forth in the April 11, 1986
memorandum to Head Nurses/Supervisors in respect to the criteria:
"Applies current concepts and findings from research and/or
studies to practice."

WE WILL make whole any nurses whose reboarding and
reevaluation results in their being promoted retroactively to the
intermediate grade after April 11, 1986 based on their having
satisfied the criteria as it existed prior to that date in
respect to "Applies current concepts and findings from research
and/or studies to practice."

_________________________________
(Activity)

Dated: _______________ By: _________________________________
(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by
any other material.

If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor
Relations Authority, Region I, whose address is: 10 Causeway
Street, Room 1017, Boston, MA 02222-1046, and whose telephone
number is: (617) 565-7280.

APPENDIX I

Veterans
Administration

MEMORANDUM

Date March 3, 1986

From Chief, Nursing Service (118)

Subj Definition of Mentor

To Head Nurses/Supervisors

1. The following is a composite of several sources, e.g. Central
Office, Regional N P S B members, N P S B chairpersons at other
V.A. field facilities.

a. Central Office stated "mentor means that this nurse is so
expert that when a new nurse comes on a unit, that is who is
going to take her under his/her wing and teach her how to do
nursing care of this particular group of patients. This is
because his/her expertise in some area of nursing."

b. The Regional N P S B, as did other N P S B's outside of
this region, stated they are accepting "preceptors" as a
substitute for the word mentor after the individual has been
through a preceptorship training program and is the only
individual on a unit to "precept" newly assigned nurses. In many
instances the preceptor rotates to the "off tours" to orient
newly assigned employees to those tours.

c. According to Greek mythology, mentor was the wise old men
to whom Ulysses entrusted the tutoring of his son Telemachus.

2. A mentor relationship is part of a developmental process
in which the primary concern is establishing and guiding the next
generation. The mentor guides and supports the neophyte toward
self-knowledge and independence. The relationship is
fueled by unselfish gifts of time, energy, and material support.
Mentor role goes beyond being a resource person which must be
approached for information or guidance.

3. The mentor relationship focuses on three major benefits
to the neophyte:

a. It assists the person in preparing for a leadership role
and developing leadership qualities such as: risk taking,
sharing, learning to relate to people and creativity.

b. It promotes career advancement and success.

c. It provides greater personal satisfaction, increased
self-confidence, and enhanced self-esteem.

4. The absolute requirements for a mentoring relationship
are attraction, action, and affect.

a. Attraction: The neophyte has a desire to emulate the
mentor in some way.

b. Action: The mentor invests time and energy on the
neophyte's behalf through teaching, guiding or helping in
professional development.

c. Affect: The mentor displays positive feelings toward the
neophyte in forms of respect, encouragement, support. These are
displayed in three basic mentoring roles:

(1) Inspires - the mentor is looked up to, values, admires,
emulates. The mentor communicates an image, goal, or vision of
the professional work and stimulates the mentee by personal
enthusiasm or dynamism.

(2) Investor - the mentor communicates belief in the mentee
and invests in the person through some type of action. 

(3) Supporter - provides emotional encouragement and
reassurance, instilling confidence and fostering risk-taking.

5. A mentor is then an older (to the profession), wiser and
more experienced person who actively guides, advises, and
nurtures a younger person. The mentor is critical to the younger
person's professional development, career success, and
satisfaction. It is more than a role model since it is the most
intense and "paternalistic" in shaping the careers of proteges. A
mentor generally refers to someone who acts as a:

a. Teacher - to enhance the young person's skills and
intellectual development.

b. Sponsor - to ease the neophyte's entry and advancement.

c. Host and guide to welcome the initiate into a new
occupational and social world with its' unique values, customs,
and resources.

d. Exemplar to serve as a personal example of values and
achievements.

e. Counselor to provide advice and moral support.

6. Consultant - a nurse with so much expertise in nursing
that other nurses come to her/him for guidance as to how to take
care of a particular patient. Consultant goes beyond interactions
between nurses during change of shift reports, team conferences,
and in-services. There has to be recognized expertise in nursing
so that other nurses seek that individual out. It goes above and
beyond basic and advanced nursing skills that everyone working in
a certain area is expected to have.

/s/ WILLIAM HARNESS, R.N. 

APPENDIX II

Veterans
Administration

MEMORANDUM

Date APRIL 11, 1986

From Chief, Nursing Service (118)

Subj Management Communication - R.N. Qualification
Standards

To Head Nurses/Supervisors

1. The following are interpretations of R.N. qualification
standards which may be beneficial to you when writing proficiency
reports.

2. Program: a sequence of operations to be performed; an
organized list of procedures or schedule; procedure for solving a
problem including data collection, processing and presentation of
results. A program is a wide range of activities or services,
although it may be in one area or one ward. It usually does touch
on other services. Examples of programs include PTSD, ADTP,
Infection Control, Day Treatment, Employee Health, Safety,
Quality Assurance. Criteria D states "professional nursing
practice which has been characterized by leadership and
accomplishment in developing and implementing programs to improve
the delivery of nursing care," therefore Professional Standards
Board should expect that nurses assess the need for new programs,
write the proposal for the program, implements and evaluates the
program. The nurse should also do the same evaluation of current
nursing programs to discern weaknesses and deficiencies, to
eliminate or revise obsolete programs.

3. Research: A scholarly or scientific investigation or
inquiry; investigation or experimentation aimed at discovery and
interpretation of facts; revision of accepted theories or laws.
Examples of research include a thesis at the graduate level or
research being done here on station through the Research
Department. Research includes the following elements: 

a. Hypothesis or question

b. A literature review (library search)

c. Explanation of the methodology which includes
(validity, reliability)

d. Data collection

e. Discussion of the results

At the Intermediate Grade level, the qualification standards
states "applies current concepts and findings from research
and/or studies to practice." For Senior Grade level, the
qualification standards states "initiates change in clinical
practice based on current concepts and findings from research
and/or studies."

4. Studies: to undertake a formal study of a subject.
Studies do not have the level of rigor that research does,
meaning that the patient population may not be as required for
research; that the library search is not as extensive; that the
number of hypotheses or questions to be considered are not as
extensive as in research. Library search or simply reading
several articles does not constitute a study for grade
qualifications. Eventhough we loosely use the terminology "I'm
going to go study," such as for an examination or for a class I'm
taking. That is not a "study." The rater under the Intermediate
grade indicates the application of current concepts from research
or studies to practice, must identify the research/study concept,
describe how it was applied, and tell something about the
outcome. Again if the individual is performing a study, it needs
to be a formalized study of a subject, meaning that the Chief
Nurse would expect some evidence of written documentation of the
study, why there was a problem, what was done to collect data,
what was changed and the evaluation after implementation of the
recommendations which came out of the studies. At the
Senior grade level, under the clinical standard - "initiates
changes in clinical practice based on current concepts and
findings from research/studies." This has to be based on the
systematic evaluation of current practice and the identification
of a problem. The nurse reviews the literature, has several
studies to support the desired change, pilots the changes,
evaluate the results and then implements on a broader scope.
Again it is pointed out that the qualification standards clearly
states that just doing the research or study is not enough. It is
the application of knowledge gained from the research or studies
at the Intermediate level or initiating changes in clinical
practice at the Senior level.

7. Take note that certain qualification standards appear at
different levels, specifically in Full, Intermediate, and Senior
grade, there is the qualification standard "demonstrated ability
to work effectively with patients, families, or significant
others." Obviously as the person attains different grades, the
expectations of the grade change, e.g. the interpersonal
relationships changing from ward, several wards, services, etc.,
therefore the criteria must be reviewed for that grade level.

/s/ WILLIAM HARNESS, R.N. 




FOOTNOTES:
(If blank, the decision does not have footnotes.)

Footnote 1 

Respondent also raised as a defense that the Complaint was not specific or did not contain a clear and
concise statement of facts. The undersigned finds such defense to be without merit since the allegations contain sufficient facts to apprise Respondent as to the nature thereof and the alleged unfair labor practices.

Footnote 2

 MP-5, Part II, Chapter 5, par. 5; DM&S Supp.  Chapter 5, par, 5104; MP-5, Part II, Chapter 6, par. 7; DM&S Supp. Chapter 6, par. 6.07 and 6.08.

Footnote 3 

After each clinical skill rating ("met" or "not met"), a space was provided for an example to be given.

Footnote 4 

The memo is hereinafter attached as Appendix I.

Footnote 5 

The memo is hereinafter attached as Appendix
II.

Footnote 6 

"Reboarded" means the Board again considers the  application for promotion to the next grade -- a return to the Board.

Footnote 7 

Vannah was denied a promotion on June 22, 1984 but the Board's action merely stated he did not meet the
criteria for intermediate grade. This nurse was not recommended for promotion on June 2, 1986 because of not meeting requirements of "research and study" as well as "mentor." He did meet the "research and study" criteria on November 12, 1986 but was again denied a promotion for not meeting other requirements.

Footnote 8 

While Respondent raises several other affirmative defenses in its Answer, the undersigned finds it unnecessary to rule on the merits thereof in view of the ultimate disposition herein.

Footnote 9 

Section 7118. Prevention of unfair labor practices (a)(4)(A) Except as provided in subparagraph (B)
of this paragraph, no complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority.

Footnote 10

 The Authority therein applied the same principle enunciated by the Supreme Court in Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231 (1959).

Footnote 11  

Respondent's contention that any change brought by the memos is de minimis is rejected. The extent of the
change becomes apparent when i