38:0211(23)NG - - NAGE Local R1-109 and VA Medical Center, Newington, CT - - 1990 FLRAdec NG - - v38 p211
[ v38 p211 ]
The decision of the Authority follows:
38 FLRA No. 23
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
November 16, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns three proposals which affect the pay and scheduling of three part-time Licensed Practical Nurses (LPN's) and a part-time Nursing Assistant.
For the following reasons, we conclude that Proposal 1 is nonnegotiable because it conflicts with a Government-wide regulation. We find that Proposals 2 and 3 are negotiable.
The proposals in this case concern four part-time employees in the Agency's Nursing Service. The employees are assigned to replace full-time employees when shortages of full-time personnel exist.
Three of the part-time employees are licensed practical nurses (LPN's). The three LPN's, who are paid under provisions of title 38, United States Code, receive Sunday premium pay for Sunday tours of duty. The fourth employee, a part-time nursing assistant, is not paid under provisions of title 38. The part-time nursing assistant does not receive Sunday premium pay.
III. Preliminary Matter
It is clear from attachments to the Petition for Review that the Union's proposals are aimed solely at part-time employees who do not receive Sunday premium pay. See, for example, Attachment 1 to Petition for Review (Union stated that as part-time Nursing Service personnel were "denied premium pay" for work performed on Sundays, the proposals were developed "in recognition of this discrepancy . . . ."). It is uncontroverted in the record before us, however, that the three LPN's currently receive Sunday premium pay for work performed on Sundays. Accordingly, we will analyze the Union's proposals solely as they relate to the part-time nursing assistant who does not receive Sunday premium pay.
IV. Proposal 1
Part-time bargaining unit employees in nursing service who are assigned to perform an eight hour shift, on [S]unday, as part of their regularly scheduled tour of duty, shall receive 25% [S]unday premium pay.
A. Positions of the Parties
1. The Agency
The Agency argues that Proposal 1 is nonnegotiable because it conflicts with Federal Personnel Manual (FPM) chapter 550, subchapter 1, paragraph 1-10.
2. The Union
The Union did not file a response to the Agency's Statement of Position. In its Petition for Review, the Union stated only that its proposals constitute "appropriate arrangements for employees adversely effected by the exercise of management's reserved rights." Petition for Review at 1.
B. Analysis and Conclusions
FPM chapter 550, subchapter 1, paragraph 1-10.c., provides that "[o]nly full-time employees are entitled to premium pay for Sunday work." There is no dispute in the record before us that this provision applies to the part-time nursing assistant. FPM chapter 550, subchapter 1, paragraph 1-10 constitutes a Government-wide regulation within the meaning of section 7117(a) of the Statute because it is applicable to the Federal civilian work force in general. Therefore, as Proposal 1 is inconsistent with a Government-wide regulation, within the meaning of section 7117(a)(1), it is outside the duty to bargain. See, for example, Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 534-35 (1990).
Because Proposal 1 is inconsistent with a Government-wide regulation, we do not address the Union's contention that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Section 7106(b)(3) applies only where an agency exercises a management right set out in section 7106. Section 7106(b)(3) does not apply to a proposal which is inconsistent with a Government-wide regulation. See, for example, American Federation of Government Employees, AFL-CIO, Local 3232 and Department of Health and Human Services, Social Security Administration, Region II, 31 FLRA 355, 359 (1988).
V. Proposals 2 and 3
If part-time employees as described in item 1., cannot receive [S]unday premium pay, the employer shall make every effort first to assign full-time employees to perform tours of duty which include [S]unday work.
During the pend[e]ncy of any third party review of item 1. above the parties shall negotiate in good faith regarding proposal 2.
A. Positions of the Parties
1. The Agency
As to Proposal 2, the Agency argues that "requiring the VA to make 'every effort' to assign tours of duty first to full-time employees, interferes with management's right to assign work." Statement of Position at 6. The Agency contends that requiring it to make every effort to assign full-time employees to Sunday tours of duty "defeats the medical center's underlying purpose for having a part-time Nursing Assistant in the first place." Id. at 8.
Second, the Agency argues that Proposal 2 interferes with its "right to determine the types of employees assigned to a particular tour of duty." Id. The Agency asserts that the proposal "integrally relates to the types of employees that are assigned to a tour of duty." Id. at 10. The Agency argues that "[m]anagement specifically uses part-time employees for the purpose of filling in for full-time employees in such instances as those that the Union's proposal would eradicate." Id.
The Agency argues that because Proposal 2 directly interferes with its rights to assign work and determine the types of employees who are assigned to a tour of duty, Proposal 3, which requires the Agency to negotiate over Proposal 2, also directly interferes with its rights.
2. The Union
Like Proposal 1, the Union asserts only that Proposals 2 and 3 are appropriate arrangements for employees adversely affected by the exercise of management's rights.
B. Analysis and Conclusions
1. Right To Assign Work
Management's right to assign work under section 7106(a)(2)(B) includes the right to determine the particular qualifications and skills necessary to perform the work and the right to make judgments in determining whether particular employees meet those qualifications. See, for example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 513, 519-20 (1990) (VA, Newington).
There is no basis in the record of this case on which to conclude that the qualifications or duties of the part-time nursing assistant differ in any way from those of full-time nursing assistants. There also is no basis on which to conclude that the duties performed by nursing assistants on Sundays differ from the duties performed on other days. In fact, the part-time employee is "assigned to perform duties in the place of full-time employees . . . ." Statement of Position at 1. As the qualifications and duties of the part-time and full-time employees do not differ, Proposal 2 affects only the particular shifts, or tours of duty, on which qualified employees will perform the duties already assigned to their positions.
In this regard, the proposal is like proposals addressing assignments of qualified employees to overtime or shifts. In both situations, proposals identifying the employees to be assigned to overtime, or identifying the shifts to which employees will be assigned, do not directly interfere with an agency's right to assign work. See, for example, National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1506-08 (1987) (BLM) (proposal requiring agency to make every reasonable effort to ensure that overtime was "shared equally among employees who are normally assigned to the work" did not directly interfere with right to assign work), enforced in part and rev'd in part as to other matters sub nom. Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989); Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686, 687-89 (1984) (DLA) (proposal providing that qualified employees would be assigned to various shifts on the basis of seniority did not interfere with the agency's right to assign work).
Like the proposals in BLM and DLA, the proposal here does not interfere with the Agency's rights to establish and assess qualifications to perform work, determine the work to be assigned to various positions, or determine when necessary work will be performed. The proposal addresses only the assignment of qualified employees to perform the work already assigned to them. It does not, therefore, directly interfere with the Agency's right to assign work.
2. Numbers, Types, and Grades of Employees Assigned to a Tour of Duty
Section 7106(b)(1) of the Statute provides that an agency may, but is not required to, negotiate over the "numbers, types, and grades of employees" assigned to an organizational subdivision, work project, or tour of duty. The Agency asserts that part-time employees are a "type" of employee, within the meaning of section 7106(b)(1) and, accordingly, it may not be required to bargain over Proposal 2. We reject this assertion.
The Authority has not expressly defined "types" of employees. The Authority has in many cases, however, discussed, in general, management's right to determine numbers, types, and grades of employees, and in particular, the right to determine types of employees. Examination of those cases supports a conclusion that management's right to determine the "types" of employees assigned to organizational subdivisions, work projects, or tours of duty, encompasses the right to make determinations based on work or job-related differences between employees. For example, in National Federation of Federal Employees, Local 1332 and U.S. Army Materiel Development and Readiness Command (DARCOM), 3 FLRA 200 (1980), the Authority found that two proposals prescribing the training, experience and qualifications necessary for employees identified as program counselors were nonnegotiable under section 7106(b)(1). The Authority held, as relevant here, that:
The clear intent and effect of the union's proposals is to determine by bargaining the "types" of employees who could be assigned by the agency as Counselors. That is, only employees possessing precise backgrounds of education and experience . . . could be assigned. Moreover, as a practical matter, the nature of the qualifications prescribed by the proposals would impact on the grade levels the agency must assign to the positions involved. . . . Thus, the proposals would affect both the types and grades of employees or positions engaged in . . . counseling.
Id. at 201-02.
It is clear from the foregoing that the Authority's finding that the proposals interfered with the agency's right to determine the types of employees related to the agency's right to determine the necessary qualifications, including training and experience, for employees to perform certain work. Accord National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1063 (1988), decision on remand, 33 FLRA 436 (1988), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA 936 (1990) (proposal addressing the qualifications and certifications of certain employees held to conflict with the agency's right to determine the types of employees); American Federation of Government Employees AFL-CIO, Local 1770 and Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 17 FLRA 752, 753-54 (1985) (proposal specifying qualifications for certain appointments held to conflict with agency's right to determine types of employees).
Similarly, in American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990, 1015-17 (1987) (Danbury), rev'd as to other matters sub nom. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution Danbury, Conn. v. FLRA, No. 87-1762 (D.C. Cir. Aug. 9, 1990), the Authority found, as relevant here, that a proposal requiring the Agency to assign probationary employees to rotating shifts interfered with the agency's right to determine the types of employees assigned to a tour of duty. The Authority noted, in this regard, that as used in the proposal, "probationary" employees were "entry level" or "entry grade" employees. Id. at 1016. The Authority concluded that as the proposal would have prevented the agency from assigning all entry-grade employees to the day shift, on which they could be more closely supervised, the proposal conflicted with the agency's right to determine both the grades and the types of employees assigned to a tour of duty. Like the cases discussed above, therefore, it is clear that in Danbury the agency's right to determine the "types" of employees related to the agency's right to determine necessary qualifications and experience for work assignments. Accord American Federation of Government Employees, AFL-CIO, National Immigration & Naturalization Service Council and U.S. Department of Justice, Immigration & Naturalization Service, 8 FLRA 347, 379-81 (1982), rev'd as to other matters sub nom. U.S. Department of Justice v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (proposal requiring the agency to assign a journeyman or supervisory officers to tours of duty where the agency ordinarily would assign only a trainee officer held to conflict with agency's right to determine the types of employees assigned to a tour of duty).
We note that in National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041, 1051 (1987) (HHS), the Authority held that a proposal requiring the agency, in certain circumstances, to convert full-time employees to part-time status was nonnegotiable because "determinations as to use of part-time employees to perform the work of the Agency is a matter directly related to the numbers, types and grades of employees or positions assigned to its organizational subdivisions, work projects and tours of duty and is outside the duty to bargain pursuant to section 7106(b)(1)." See also National Federation of Federal Employees, Local 1650 and U.S. Forest Service, Angeles National Forest, 12 FLRA 611, 613 (1983) (Forest Service) (proposal requiring agency to "work all WAE employees for as many of non-guaranteed pay periods as available financing [would] allow" held to interfere with the agency's right to determine the numbers, types, and grades of employees). Compare National Treasury Employees Union and Department of the Treasury and U.S. Customs Service, 31 FLRA 181, 194 (1988) enforced as to other matters sub nom. Department of the Treasury, United States Customs Service v. FLRA, 873 F.2d 1473 (D.C. Cir. 1989) (a proposal that set forth a procedure for the agency to evaluate requests to convert employees from full-time to part-time status did not infringe on the agency's discretion to use part-time employees). It is not apparent from HHS or Forest Service whether the respective proposals interfered with the right to determine the "types" of employees or whether the proposals affected the "numbers" or "grades" of employees, however.
The intended meaning of "types" of employees, within the meaning of section 7106(b)(1) of the Statute, is not discussed extensively in the legislative history of the Statute. We note, however, that, in discussing the provision that was to become section 7106(b)(1), the Senate referred to "numbers, types, and grades of positions or employees" as "the agency's staffing patterns, including job content[,]." S. Rep. No. 95-969, 95th Cong. 2d Sess. 105 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print No. 96-7, at 765 (1979). The reference to staffing patterns is consistent with decisions of the Federal Labor Relations Council interpreting "numbers, types, and grades" of employees under section 11(b) of Executive Order 11491, as amended. (1) In International Association of Fire Fighters, Local F-111 and Griffiss Air Force Base, Rome, N.Y., 1 FLRC 323, 330-32 (1973), for example, the Council discussed the meaning of section 11(b). The Council first noted that in section E.1. of the Report accompanying E.O. 11491, the drafters of the Order explained that section 11(b) was intended to encompass an agency's right to establish staffing patterns for its organization. The Council then held as follows:
[T]he phrase "staffing patterns" of the agency, as used in the Report in explaining the clause in 11(b) "numbers, types, and grades of positions or employees assigned to an organizational unit, work project or tour of duty," embraces the content of the individual jobs. While the phrase, in context, relates largely to position structures and manpower complements for the various organizations units . . . , these organizational allocations of positions and people are integrally related to and dependent on the duties that will be performed by the individual positions involved.
Id. at 331. See also, for example, American Federation of Government Employees, Local 3632 and Corpus Christi Army Depot, 6 FLRC 1072, 1095-97 (1978) (Corpus Christi) (proposal requiring the agency to provide unit employees "with the assistance of 'particular types of positions of employees,' e.g., technicians, equipment specialists, aides, etc.[,]" held to be nonnegotiable under section 11(b) because it required the agency to negotiate "over its staffing patterns"); Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 6 FLRC 585, 587 (1978) (OEA) (proposal relating to certain classification standards was nonnegotiable because the standards had a "direct impact upon and determine[d] both the types (i.e., classes) and the grades" of positions and were "integrally related to and thereby determinative of the staffing patterns of the activity, i.e., the types and grades of positions of the activity.").
Consistent with the foregoing, we find, in the circumstances of this case, that Proposal 2 does not directly interfere with the Agency's right to determine the types of employees assigned to a tour of duty. In all the foregoing cases, the disputed proposals which were held to interfere with an agency's right to determine the types of employees assigned to a tour of duty related, in some way, to the assignment of employees with different job-related characteristics to perform certain work.
In this case, by contrast, it appears that the sole difference between the part-time and the full-time nursing assistants is the number of hours they work. In particular, the Agency does not assert, and there is no other basis on which to conclude, that the part-time nursing assistant holds a different grade or position, in terms of either duties or classification, from the full-time nursing assistant. Moreover, as noted previously, it is clear that the part-time and the full-time nursing assistants are equally qualified to perform and do perform the same duties. Finally, the proposal does not require the Agency to create part-time positions and does not, in any way, appear to change or determine the Agency's decisions with respect to the numbers of employees or positions assigned to any organizational subdivision, work project, or tour of duty.
We do not believe that employees may be "typed" solely on the basis of the number of hours they work. Accordingly, we conclude that Proposal 2 does not directly interfere with the Agency's right under section 7106(b)(1) of the Statute. As Proposal 2