43:0385(39)NG - - Federal Professional Nurses Association, Local 2707 and HHS, Division of Federal Employee Occupational Health, Region III - - 1991 FLRAdec NG - - v43 p385



[ v43 p385 ]
43:0385(39)NG
The decision of the Authority follows:


43 FLRA No. 39

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL PROFESSIONAL NURSES ASSOCIATION

LOCAL 2707

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

DIVISION OF FEDERAL EMPLOYEE OCCUPATIONAL HEALTH

REGION III

(Agency)

0-NG-1801

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

December 11, 1991

Before Chairman McKee and Members Talkin and Armendariz.1/

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).(1) It concerns the negotiability of a proposal pertaining to the Agency's Resource Nurse Proposal. For the reasons stated below, we find that the proposal excessively interferes with management's right to assign work. Therefore, the proposal is nonnegotiable.

II. The Proposal

In compliance with the directions of the Appropriations Committee of the United States Senate and the House of Representatives, Management agrees to refrain from the reassigning, transferring, detailing, or otherwise removing the full-time Federal nurses from the health units in which they now serve in the Washington, D.C. area, in order to implement its Resource Nurse Proposal.

III. Background

The Agency explains that over the course of several years, the role of Federal nurses in the Federal Employee Occupational Health (FEOH) program has changed from providing primarily direct service care to clinical management support. The Agency states that the FEOH program has reduced the number of full-time Federal employees and replaced them with contract personnel, while at the same time increasing the volume of service. The Agency notes that in May 1989, it proposed to reassign some of the Federal nurses to serve as resource nurses to better utilize their expertise. As a part of its proposal, the Agency sought to assign nurses to multiple health unit sites, rather than to a single location, "to provide a Federal presence in all health unit sites[,] . . . [and because] there are more service provision sites than Federal staff nurses." Statement of Position at 4.

The Agency also explains that in the report of the Senate Committee on Appropriations, S. Rep. No. 101-127, 101st Cong., 1st Sess. 60 (1989), accompanying the Departments of Labor, Health and Human Services, and Education and Related Agencies Appropriations Act, 1990, Public Law 101-166, 1989 U.S. Code Cong. & Admin. News (103 Stat.) 1159, 1166, the Public Health Service was directed to submit a report discussing the impact of the Agency's proposed nurse reassignment.(2) Specifically, the report was to address the impact on health care provided to Federal employees and the effect of the proposal on the rights of the full-time nurses. The Agency notes that at the time of the filing of its statement of position in this case, the requested report was under review by the Department of Health and Human Services (HHS) and the Office of Management and Budget and that no legislation had been passed concerning FEOH staffing patterns.

IV. Positions of the Parties

A. The Agency

The Agency contends that it is the Union's proposal, rather than the Agency's Resource Nurse Proposal, that is inconsistent with the Senate Appropriations Committee Report. The Agency disputes the Union's claim that the Report contains language restricting the Agency's ability to implement its proposal, arguing, instead, that the Report does not direct suspension of the proposed nurse reassignments. The Agency also states that there is no prohibition or restriction in the Labor-HHS Appropriations Act of 1990 that would prevent management from exercising its rights to determine its organization, assign employees, and assign work. Alternatively, the Agency contends that the petition for review should be dismissed "because there are factual issues in dispute concerning the mandatory language established by the committee report or the law." Statement of Position at 14, n.5.

In terms of the exercise of management's rights, the Agency argues that the Union's proposal would directly interfere with and place substantive limitations on its rights to determine the Agency's organization, to assign employees, and to assign work. As to its organization, the Agency argues that the Union's proposal would prevent the Agency from reorganizing its programs to give nurses responsibility for multiple health unit sites, rather than a single health unit site, despite the fact that the number of servicing sites is greater than the number of Federal nurses in the FEOH program. The Agency asserts that the effect of the Union's proposal is to prohibit the Agency from eliminating single site duty station responsibility. As to the rights to assign work and assign employees, the Agency cites various Authority decisions for the proposition that proposals involving assignments or transfers of employees directly interfere with the rights to assign employees and assign work. Finally, the Agency argues that the Union's proposal would require the Agency "to comply with a substantive limitation even if the limitation was not in accordance with applicable external requirements[.]" Id. at 13.

B. The Union

The Union contends that its proposal is designed to require the Agency "to comply with the repeated directions of the Appropriations Committees of both the United States Senate and the House of Representatives and to refrain from the removal of Federal full-time nurses from the health units in which they now serve in the Washington, D.C. area[.]" Petition for Review at 4. The Union explains that the Agency's decision to replace full-time FEOH nurses with contract personnel led the Appropriations Committees of the Senate and the House, in their 1988 and 1989 Committee Reports, to object to such activity and to urge the Agency to continue staffing health units with full-time Federal nurses. The Union further notes that the 1990 Senate Appropriations Committee Report specifically directed the Agency to suspend implementation of the nurse reassignments and, further, that statements made by members of the Senate Appropriations Committee following passage of the 1990 appropriations bill advised the Agency that implementation of the Resource Nurse Proposal would contravene the express direction of that Committee. The Union argues that these directives of the Appropriations Committees are law and that the Resource Nurse Proposal is inconsistent with that law.

The Union also contests the Agency's assertion that the Union's proposal directly interferes with the exercise of management's rights. According to the Union, its proposal would simply require management "to comply with applicable law . . . ." Union Response at 4. Finally, the Union claims that the petition is properly before the Authority because "the Union alleges that Management's proposal violates applicable law and where the Union calls for Management to comply with that law." Id. at 5.

V. Analysis and Conclusions

We conclude that the proposal is nonnegotiable because it directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Before reaching that result, we address the parties' contentions concerning the language and effect of various congressional committee reports and committee member statements.(3)

A. Neither the Language of the Appropriations Committee Reports Nor Committee Member Statements Constitute Applicable Law Under Section 7106(a)(2) of the Statute

The Union argues that the directives of the Appropriations Committees, including the House and Senate Appropriations Committee Reports and the statements by members of those committees, are law, and that the Resource Nurse Proposal is inconsistent with that law.(4) The Agency argues that the Union is attempting to require the Agency to comply with a limitation on the exercise of its management rights that is not in accordance with applicable external requirements. Given these contentions, it is necessary to determine whether House and Senate Appropriations Committee Reports and statements by members of those committees are "applicable laws" that may be enforced by a union as an "external limitation" on the exercise of management's rights under section 7106(a)(2) of the Statute.

Initially, we note that section 7106(a)(2) of the Statute states that, subject to section 7106(b), nothing in the Statute shall affect the authority of any management official of any agency, "in accordance with applicable laws[,]" to take various actions enumerated therein. The Supreme Court has held that the Statute does not empower unions to enforce all external limitations on management rights, but only limitations that are contained in "applicable laws," and that "the term applicable laws refers to laws outside the [Statute]." Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922, (1990) (emphasis omitted).

On remand following the Supreme Court's decision, we held that the term "applicable laws" in section 7106(a)(2) includes "rules, regulations and other agency pronouncements having the force and effect of law . . . ." National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 388 (1991) (Treasury). We found, more specifically, that the term included, but was not limited to, relevant provisions in the United States Code and other lawfully enacted statutes; the United States Constitution; controlling judicial decisions, judgments, and decrees; and certain Presidential executive orders issued pursuant to express statutory authorization. Id. at 389-90 (citations omitted). In reaching this result, we expressed the view that in enacting section 7106(a)(2) of the Statute, "Congress intended to require management officials to exercise their enumerated rights in a manner that complies with law in its generic sense; that is, 'the rules of action or conduct duly prescribed by controlling authority, and having binding legal effect.'" Id. at 389 (citation omitted). Contrary to the Union's assertion in this case, we find that the House and Senate Appropriations Committee Reports and committee member statements relied on are not "applicable laws" within the meaning of section 7106(a)(2) of the Statute. That is, they do not constitute rules or regulations having the force and effect of law.

Of particular relevance to the issue before us is the Supreme Court's position regarding the effect of legislative history in connection with appropriations measures. In Tennessee Valley Authority v. Hill, 437 U.S. 153, 190 (1978) (Tennessee Valley Authority), the Court stated that "[e]xpressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by Congress[.]" Subsequently, in passing on whether an appropriation constituted congressional authorization as required under law, the United States Court of Appeals for the Ninth Circuit, relying on Tennessee Valley Authority, stated that it was "hesitant . . . to interpret isolated remarks in committee hearings or reports as expressions of the intent or knowledge of Congress." Libby Rod and Gun Club v. Poteat, 594 F.2d 742, 746 (9th Cir. 1979). See also Associated Electric Cooperative, Inc. v. Morton, 507 F.2d 1167, 1174 (D.C. Cir. 1974), cert. denied, 423 U.S. 830 (1975) (in interpreting whether congressional appropriation of funds constituted ratification of committee directives so as to give such directives the force of law, the court stated that "no cases hold that legislative histories carry the force of law.").

In commenting more generally on the use of committee reports as an expression of congressional intent and the weight to be accorded such reports, various courts have held that committee reports do not have the force of law. See, for example, General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1570 n.13 (D.C. Cir. 1984), cert. denied sub nom. General Motors Corp. v. Thomas, 471 U.S. 1074 (1985), quoting Jordan v. U.S. Department of Justice, 591 F.2d 753, 767 (D.C. Cir. 1978) (en banc) ("'[C]ommittee reports are not the law; they are only aids in interpreting statutory language and are useful only to the extent they fairly reflect congressional intent.'" (footnote omitted)); In Re Evans, 452 F.2d 1239, 1245 (D.C. Cir. 1971), cert. denied sub nom. U.S. v. Evans, 408 U.S. 930 (1971) ("While [committee] reports are unquestionably entitled to weight in determining the purpose of a statute, they are neither enacted by Congress nor signed by the President, and thus they do not have the force of legislation."). Similarly, statements made by congressional committee members, though providing guidance in interpreting legislative history, are not controlling for purposes of establishing legislative intent. See Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979) ("The remarks of a single legislator, even the sponsor, are not controlling in analyzing legislative history."). Accord Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980) ("[O]rdinarily even the contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history.") See also Multnomah Legal Services Workers Union v. Legal Services Corp., 936 F.2d 1547, 1555 (9th Cir. 1991) (post-enactment statements and isolated remarks in committee reports are not clear indications of congressional intent).

Based on the foregoing, we conclude that the term "applicable laws" in section 7106(a)(2) does not include either the House and Senate Appropriations Committee Reports relied on by the Union or the statements of members of those committees.(5) With regard to the Union's argument that committee member statements are law, we note that the record indicates that such statements were personal letters from congressmen expressing their off-the-record views concerning the staffing of the health units and that there is no indication that Congress as a whole was aware of those views. See Montana Wilderness Ass'n v. U.S. Forest Service, 655 F.2d 951, 956, n.10 (9th Cir. 1981), cert. denied, 455 U.S. 989 (1982) ("In general, off-the-record views of congressmen are not attributed to Congress as a whole.").

This is not to say that legislative committee reports are not to be accorded proper weight in appropriate circumstances. The Authority has held that, for purposes of determining whether a compelling need exists for agency rules and regulations under section 7117(a)(2) of the Statute, congressional committee reports constitute "outside authority" within the meaning of section 2424.11(c) of the Authority's Rules and Regulations. See National Federation of Federal Employees, Local 561 and Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 17 FLRA 759, 767 (1985); National Federation of Federal Employees, Local 1669 and Arkansas Air National Guard, 13 FLRA 176 (1983), enf'd sub nom. National Federation of Federal Employees, Local 1669 v. FLRA, 745 F.2d 705 (D.C. Cir. 1984). We simply find here that congressional committee reports and member statements do not constitute "applicable laws" within the meaning of section 7106(a)(2) of the Statute.

B. The Union's Proposal Directly Interferes With the Agency's Right to Assign Work Under Section 7106(a)(2)(B) of the Statute

It is well established that management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned. See National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399 (1990).

The Agency states that it has proposed the reassignment of Federal nurses to support Federal agencies in the delivery of occupational health services because the escalating demand for services and the limited supply of Federal positions does not permit the Agency to provide occupational health services assistance to Federal managers and also provide full-time coverage by Federal personnel at each health unit site. The Agency also states that, because the 55 health units in the Washington D.C. area are served by only 25 full-time Federal staff nurses, the Agency must utilize the 25 nurses at more than one location to assure that adequate program and professional knowledge and expertise are available at all times.

The Agency contends that the Union's proposal violates management's right to assign work by preventing the Agency from assigning nurses where their services are needed. We agree. The proposal would preclude the Agency, pursuant to its Resource Nurse Proposal, from reassigning, transferring, detailing, or removing any full-time Federal nurses from the health units in which they presently serve in the Washington D.C. area. As the Agency notes, unless it can expand the responsibilities of the nurses, the Agency cannot have a Federal presence at all the health units sites. Thus, whether the Agency chooses to reassign its existing workforce or detail Federal nurses to meet its expanding needs, the Union's proposal would prevent the Agency from doing so. Consequently, we find that the Union's proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable.

This finding does not end our inquiry, however. Although the Union did not specifically state that its proposal was intended as an arrangement, where, as here, a proposal is clearly designed to offer benefits or protections to employees adversely affected by the exercise of management's rights, we will assess whether the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 42 FLRA 542, 561 (1991). To determine whether a proposal constitutes an appropriate arrangement, we must decide whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right, and whether the proposal is appropriate because it does not excessively interfere with the exercise of a management right. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986). For the reasons set forth below, we conclude that the proposal excessively interferes with the exercise of management's right to assign work.

Clearly, the Union's proposal is designed to ensure that full-time Federal nurses will remain, and continue to perform duties in, their present health unit sites and will not be subject to relocation to other sites, either through reassignment, transfer, detail or removal from their present sites. We find that the Union's proposal thus constitutes an arrangement for employees adversely affected by management's right to assign work.

We further find, after balancing the competing interests of the Agency in being able to assign work at various locations and the interests of the employees in ensuring that they are not placed in multiple locations, that the Union's proposal would excessively interfere with the exercise of management's right to assign work. There are apparent benefits to employees in remaining in their present single site locations, such as regularity in commuting, familiarity with the personnel and work processes at the single site, and the absence of disruption to the workday that multiple site responsibilities might engender. On the other hand, the Union's proposal would impose an absolute restriction on the Agency's ability to place employees where there is a need for their services consistent with the purposes of the Agency's Resource Nurse Proposal. The inability to assign work to the employees at multiple sites would seriously impair the Agency's ability to provide quality health care at all the locations at which the Agency provides health services. On balance, therefore, we conclude that the proposal excessively interferes with the Agency's right to assign work.

Although the record in this case is sufficient for the Authority to determine both that the Union's proposal was intended as an arrangement and that certain benefits would inure to the employees, such is not always the case. See, for example, National Association of Government Employees, Local R5-82 and U.S. Department of the Navy, Navy Exchange, Naval Air Station, Jacksonville, Florida, 43 FLRA 25, 32 (1991); National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Western Region, 42 FLRA 964, 976 (1991). The Authority takes this opportunity to reiterate that the parties are responsible for creating a record upon which the Authority can make a negotiability determination and that they act at their peril when they fail to do so. Id. See, for example, National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 596 (1990).

As we have found that the proposal directly and excessively interferes with management's right to assign work, we need not address the Agency's additional contentions that the proposal interferes with other management rights.

VI. Order

The petition for review is dismissed.

APPENDIX

The Senate Appropriations Committee Report accompanying the Labor-HHS appropriation bill for fiscal year 1990 states, in pertinent part:

The Committee believes that the Public Health Service proposal to reassign Division of Federal Employee Occupational Health Nurses in the Washington, D.C., area and to designate these nurses as resource nurses, contravenes the express direction of this Committee that Government health units be staffed with full-time Federal occupational health professional positions. Therefore, the Committee directs the Public Health Service to submit a report within 90 days explaining the impact of the proposal on the quality of health care provided Federal employees and its effect on the rights of the full-time nursing staff.

S. Rep. No. 101-127, 101st Cong., 1st Sess. 60 (1989).

The House Appropriations Committee Report accompanying the Labor-HHS appropriation bill for fiscal year 1988 states, in pertinent part:

No funds are included in this appropriation for the Federal employee occupational health program. This program is operated on a reimbursable basis, including both direct services at health clinics and consultation services to agencies. The Committee is concerned that the Public Health Service, in its rush to phase out its federally staffed health unit program and restructure these programs as contract operations, will be unable to maintain services and protect the rights of the career employees who staff these units. The Committee intends to maintain oversight of this program to satisfy itself that neither the rights of health unit staff or the quality of health care available at the Federal workplace suffers under this phase-out. No career employees should be involuntarily separated or downgraded as a result of this organizational change.

H.R. Rep. No. 100-256, 100th Cong., 1st Sess. 41-42 (1987).

The Senate Appropriations Committee Report accompanying the Labor-HHS appropriation bill for fiscal year 1988 states, in pertinent part:

The Committee concludes that it is in the best interest of Federal employees for the Public Health Service to continue to operate health clinics throughout the Government under reimbursable agreements and to staff those health units with full-time Federal occupational health professional positions. The Committee does not approve the staffing of these units with contract positions. The Committee believes that the revised report submitted in March 1987 fails to provide an adequate plan for the maintenance of these reimbursable services and for the protection of the rights of the career employees who staff these units and directs that a further report be submitted by January 31, 1988.

S. Rep. No. 100-189, 100th Cong., 1st Sess. 49 (1987).

The House Appropriations Committee Report accompanying the Labor-HHS appropriation bill for fiscal year 1989 states, in pertinent part:

The Committee remains concerned that the Public Health Service in its efforts to restructure its federally staffed occupational health program as a contract operation will be unable to provide quality service to federal employees and to protect the rights of the career employees who staff these units. The Committee intends to maintain oversight of this program to satisfy itself that neither the rights of the full-time health unit staff or the quality of health care available at the Federal workplace suffers. The Committee encourages the Public Health Service to provide at least one full-time federal/career employee at each health unit.

H.R. Rep. No. 100-689, 100th Cong., 2d Sess. 30-31 (1988).

The Senate Appropriations Committee Report accompanying the Labor-HHS appropriation bill for fiscal year 1989 states, in pertinent part:

The Committee concludes that it is in the best interest of Federal employees for the Public Health Service to continue to operate health clinics throughout the Government under reimbursable agreements and to staff those health units with full-time Federal occupational health professional positions, whenever possible. The Committee understands that Federal personnel staffing has been reduced through a planned retraining and attrition process even though 10 additional health units have been acquired in the past 4 years. In order to avoid a reduction-in-force and personnel and program disruptions and to assure quality health care for Federal employees, the Committee expects that the U.S. Public Health Service will make every effort to maintain and hire qualified occupational health professionals whenever possible.

S. Rep. No. 100-399, 100th Cong., 2d Sess. 51 (1988).




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

1. In its petition for review, the Union requests that the Authority consider its submissions in Federal Professional Nurses Association and U.S. Department of Health and Human Services, Federal Employees Occupational Health, Region III, 34 FLRA 71 (1989). The Agency did not oppose the Union's request. To the extent the submissions are applicable to the disposition of the proposal in this case, the Union's request is granted. The Union's further request for a hearing under section 7117 of the Statute is denied because there is sufficient evidence in the record and Authority precedent on which to base a reasoned decision.

2. The text of the relevant provision of the Senate Report, as well as of the pertinent parts of the 1988 and 1989 reports of the House and Senate Appropriations Committees, referenced by the Union below, is set forth in the Appendix to this decision. We are aware that several of the reports accompanied appropriations bills that were not enacted. However, later appropriation committee reports accompanying the subsequently enacted bills specifically incorporated the earlier reports. For example, S. Rep. No. 101-27 accompanied H.R. 2990, which was vetoed on October 21, 1989. In its place, H.R. 3566 was introduced and subsequently enacted. The House Report (H.R. Rep. No. 101-354, 101st Cong., 1st Sess. 3 (1989)) accompanying H.R. 3566 stated that the "Executive Branch is directed to follow precisely the reports of the House and Senate Committees on Appropriations and the Joint Committee of Conference as well as related floor debates (see House Reports 101-17