49:0361(31)CA - - Army Aeromedical Center, Fort Rucker, AL and HQ, Army Health Services Command, Fort Sam Houston, TX and AFGE, Local 1815 - - 1994 FLRAdec CA - - v49 p361

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[ v49 p361 ]
49:0361(31)CA
The decision of the Authority follows:


49 FLRA No. 31

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. ARMY AEROMEDICAL CENTER

FORT RUCKER, ALABAMA

and

HEADQUARTERS, U.S. ARMY HEALTH SERVICES COMMAND

FORT SAM HOUSTON, TEXAS

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1815

(Charging Party)

4-CA-10778

_____

DECISION AND ORDER

March 4, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge.

The complaint alleged that the U.S. Army Aeromedical Center, Fort Rucker, Alabama (Respondent Fort Rucker) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by engaging in a course of conduct that constituted bad faith bargaining concerning the Charging Party's efforts to bargain over on-call procedures and its attempts to invoke the services of the Federal Service Impasses Panel (the Panel). The complaint further alleged that the Headquarters, U.S. Army Health Services Command, Fort Sam Houston, Texas (Respondent Fort Sam Houston) violated section 7116(a)(1) and (6) of the Statute by refusing to approve, and declaring nonnegotiable, provisions that the Panel ordered Respondent Fort Rucker to adopt.(1) The Respondents did not file an answer to the complaint within 20 days after it was served on them, as prescribed in section 2423.13(a) of the Authority's Rules and Regulations. When no answer was filed, the General Counsel filed a motion for summary judgment under section 2423.13(b) of the Rules and Regulations.(2) In their response to the General Counsel's motion, the Respondents included an answer to the complaint, in which they admitted the factual allegations of the complaint and denied the legal allegations.

The Judge granted the motion for summary judgment as to Respondent Fort Rucker. The Judge found that there was no good cause for the Respondents' failure to timely file an answer to the complaint. Therefore, in accordance with section 2423.13(b) of the Rules and Regulations, the Judge found that the failure to timely answer the complaint constituted an admission that Fort Rucker had violated section 7116(a)(1) and (5) of the Statute. No exceptions were filed to this portion of the Judge's decision.

The Judge denied the motion for summary judgment as to Respondent Fort Sam Houston on the basis that summary judgment was inappropriate in the circumstances of this case. The Judge also recommended that the portion of the complaint alleging a violation of the Statute by Respondent Fort Sam Houston be dismissed. The General Counsel filed exceptions to the Judge's findings and conclusions with respect to Respondent Fort Sam Houston.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the Judge's decision and find that no prejudicial error was committed. Upon consideration of the Judge's decision and the entire record, and noting that no exceptions were filed in this regard, we adopt the Judge's findings and conclusion that Respondent Fort Rucker violated section 7116(a)(1) and (5) of the Statute. We further adopt the Judge's denial of the motion for summary judgment with respect to Respondent Fort Sam Houston and we agree, for the reasons set forth below, that the complaint against Respondent Fort Sam Houston must be dismissed.

In denying the motion for summary judgment, the Judge found that the failure to timely answer the complaint did not establish that Respondent Fort Sam Houston violated section 7116(a)(1) and (6) of the Statute. The Judge reasoned that, absent a determination by the Authority that the matter was negotiable, Respondent Fort Sam Houston "retained the right to contest the negotiability of the proposal ordered adopted by the [Panel]." Judge's decision at 7. The Judge noted that the complaint did not allege that there had been a prior negotiability determination on the same or substantially similar provision or that the Panel had "treated the negotiability of the Union's proposal." Id. at 8. According to the Judge, in these circumstances, a finding of negotiability is necessary in order to sustain a violation of the Statute, and, therefore, "admission of the factual allegations set forth in the Complaint does not support a legal conclusion that the Union's proposal was negotiable." Id.

The General Counsel excepts to the partial denial of the motion for summary judgment and the dismissal of the complaint against Respondent Fort Sam Houston. The General Counsel asserts that under section 2423.13(b)(2) of the Authority's Rules and Regulations, the failure to respond to the complaint constituted an admission of the allegations contained therein and the Authority is required to find the violations, as alleged, unless good cause to the contrary is shown. The General Counsel contends that because the Judge found that the Respondents' failure to timely answer the complaint was not for good cause, all the facts of the complaint, including the allegation concerning Respondent Fort Sam Houston, were deemed admitted as true. Therefore, the General Counsel asserts that it is entitled to summary judgment as a matter of law.

The General Counsel further maintains that the Judge incorrectly applied Authority precedent in concluding that a finding of negotiability was required before a violation of section 7116(a)(1) and (6) could be found. Rather, the General Counsel argues that in cases in which there has been no prior negotiability finding by the Authority, it is the responsibility of the Judge to make the necessary negotiability determination. In this regard, the General Counsel asserts that the Judge erroneously "appears to conclude[] that the complaint did not allege sufficient facts to show that the provision in question . . . was negotiable." Exceptions at 7. In the General Counsel's view, "the admitted facts and pleadings are sufficient, as a matter of law, to support the alleged violation of the Statute." Id. at 9.

The General Counsel also objects to what it views as the Judge's implication that the General Counsel should have specifically alleged that the Panel-imposed provision was negotiable. According to the General Counsel, the Judge was required to make a negotiability determination and the burden was on the Respondents to show that the Panel-imposed provision was nonnegotiable. However, even assuming that it bore the burden of proving the proposal's negotiability, the General Counsel claims that the admitted facts, as well as the Panel's decision and Authority case law, clearly establish that the proposal is negotiable.

Alternatively, the General Counsel argues that if the Authority concludes that the pleadings are insufficient to support the conclusion that the Panel-imposed provision was negotiable, the Judge erred in dismissing the complaint against Fort Sam Houston. According to the General Counsel, the Judge should have "remand[ed] the complaint to the Atlanta Region for a trial on the facts[.]" Id. at 3.

Initially, we find, contrary to the General Counsel's assertions, that the Judge correctly concluded that the Respondents' failure to timely answer the complaint is insufficient to support a conclusion that Respondent Fort Sam Houston violated section 7116(a)(1) and (6) of the Statute. As the Judge noted, the General Counsel did not allege in its complaint that the provision was negotiable or that the Authority previously had found a substantially similar provision negotiable. Therefore, the Respondents' failure to timely answer the complaint does not constitute an admission that the provision is, in fact, negotiable. Absent such an admission, a finding by the Authority that the Panel-imposed provision is negotiable is a prerequisite to a finding that Respondent Fort Sam Houston violated the Statute by disapproving the provision.

In this connection, the Authority previously has stated that the mere act of reviewing provisions imposed by the Panel does not constitute a violation of the Statute. See U.S. Department of the Army, Headquarters, and DARCOM HQ, 17 FLRA 84 (1985), aff'd in relevant part sub nom. National Federation of Federal Employees v. FLRA, 789 F.2d 944 (D.C. Cir. 1986). Rather, as relevant here, an agency commits an unfair labor practice by disapproving a provision imposed by the Panel that is not materially different from one previously found negotiable by the Authority or that the Authority finds, in either an unfair labor practice or a negotiability proceeding, is not contrary to the Statute or any other law, rule, or regulation. See U.S. Department of Health and Human Services, Public Health Service and Centers for Disease Control, National Institute for Occupational Safety and Health, Appalachian Laboratory for Occupational Safety and Health, 39 FLRA 1306, 1311 (1991); Department of the Treasury and Internal Revenue Service, 22 FLRA 821, 828 (1986). The General Counsel concedes that it "did not present [the Judge] with a case in which the Authority had already deemed a proposal negotiable." Exceptions at 7. Absent such a finding, it would be incorrect to conclude that Respondent Fort Sam Houston's conduct in disapproving the Panel-imposed provision violated section 7116(a)(1) and (6) of the Statute.

We also reject the General Counsel's assertions with respect to which party bears the burden of establishing the negotiability of the provision. In order for the Authority to determine that the provision is negotiable and, therefore, that Respondent Fort Sam Houston violated section 7116(a)(1) and (6) of the Statute, the General Counsel was required to allege and demonstrate that the matter was negotiable. As we noted, the General Counsel did not allege, let alone establish, that the provision is negotiable. As a result, the General Counsel has not met its burden of proof solely as a result of the Respondents' untimely answer to the complaint.

However, we agree with the General Counsel that the Judge erred in dismissing the complaint with respect to Respondent Fort Sam Houston, absent a finding that the Panel-imposed provision is nonnegotiable and, therefore, was properly disapproved. In other words, our conclusion that the General Counsel was not entitled to summary judgment as to this allegation of the complaint does not resolve the underlying issue of whether, in disapproving the Panel-imposed provision, Respondent Fort Sam Houston violated section 7116(a)(1) and (6) of the Statute. As noted, such a finding is contingent on whether the provision is negotiable.

Both the General Counsel, in its exceptions, and Respondent Fort Sam Houston, in its response to the motion for summary judgment, maintain that the Authority should remand this case for a determination as to the negotiability of the provision. Such a remand would be appropriate if the record contained insufficient evidence on which to resolve the issue. However, we find that the record provides a sufficient basis on which to assess the negotiability of the provision. In their pleadings filed with the Authority, as well as the supporting documentation, the parties presented sufficient arguments with respect to the merits of the provision to enable the Authority to resolve the matter. Consequently, in light of the Authority's role in resolving negotiability disputes, set forth in section 7105(a)(2)(E) of the Statute and the cases cited above, and in order to provide an expeditious resolution of this case, we will now address the negotiability of the Panel-imposed provision in order to determine whether Respondent Fort Sam Houston's conduct in disapproving the provision violated section 7116(a)(1) and (6) of the Statute.

The provision, fully set forth in the Appendix, relates to civilian nurses who work in an operating room and who are on call to return to duty. Among other things, the provision prescribes the length of time that these employees have to return to work. Specifically, the employees are provided 25 minutes to prepare themselves to start their drive to work and a reasonable amount of driving time to arrive at their duty location. The provision also states that the employees will not be required to meet stricter standards than those contained in the provision. For the following reasons, we conclude that the provision is nonnegotiable because it would excessively interfere with the right to assign work under section 7106(a)(2)(B) of the Statute.

The Authority previously has held that proposals or provisions that determine when work will be performed directly interfere with the right to assign work. See, for example, American Federation of Government Employees, AFL-CIO, Local 3769 and U.S. Department of Agriculture, Federal Grain Inspection Service, League City Field Office, Texas, 45 FLRA 92, 94-95 (1992) (portion of proposal guaranteeing 10 consecutive hours off duty between certain work assignments found to directly interfere with management's right to determine when certain work assignments would occur). See also National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA 479, 486 (1991) (elimination of overlap between shifts found to directly interfere with the right to assign work by preventing the agency from determining when the duties of the shift would be performed). The provision here would impermissibly affect management's ability to determine when work will be performed by preventing management from calling the nurses back to duty in a lesser period of time than allowed by the provision. For example, if there were an emergency situation necessitating the nurses' presence in the operating room, management would not be able to require the nurses to reduce their preparation time in order to arrive at work to perform their assigned duties. Accordingly, the provision directly interferes with the right to assign work.

The provision may nonetheless be negotiable if it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24 (1994) (Member Armendariz, concurring in part and dissenting in relevant part). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate, or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32.

Even assuming that the provision constitutes an arrangement for adversely affected employees, we find that the provision is nonnegotiable because it would excessively interfere with management's right to assign work. In reaching this result, we note that the provision would benefit employees by providing them a sufficient amount of time in which to make whatever adjustments are necessary to their schedules before reporting back to work. The provision would also provide employees with a reasonable driving time beyond that which the employees would have for preparation purposes. We view such benefits as significant. At the same time, however, the provision mandates that the employees can never be held to stricter requirements than the allowance of 25 minutes preparation time followed by a reasonable driving time. The provision thus contains an absolute prohibition against the assignment of duties in any lesser period of time than is authorized under the provision. As we stated above, the employees involved here are operating room nurses who may be called upon to respond to emergency situations. Management's inability to require the nurses to comply with a shorter response time would, in our view, seriously impair management's ability to meet patient care needs and provide quality medical care. On balance, therefore, we conclude that the provision would excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Insofar as the provision excessively interferes with the exercise of a management right, we find that Respondent Fort Sam Houston properly disapproved the provision. Consequently, its conduct in disapproving the Panel-imposed provision did not violate section 7116(a)(1) and (6) of the Statute. See Department of Defense Dependents Schools (Alexandria, Virginia), 33 FLRA 659, 662-64 (1988) (agency's disapproval of provision pertaining to academic freedom did not violate the Statute because the provision was inconsistent with section 7106(a)(2)(A) and (B) of the Statute). Accordingly, we will dismiss the allegations of the complaint with respect to Respondent Fort Sam Houston.

Finally, we agree with the Judge that a bargaining order is appropriate to remedy the violation of section 7116(a)(1) and (5) of the Statute by Respondent Fort Rucker for engaging in a course of bad faith bargaining. Such a remedy is also consistent with our view that where a provision is found to be nonnegotiable and properly disapproved by an agency head, the parties are obligated to return to the bargaining table with a sincere resolve to reach agreement. Department of Defense Dependents Schools (Alexandria, Virginia), 27 FLRA 586, 595 (1987), rev'd and remanded as to other matters sub nom. DODDS v. FLRA, 852 F.2d 779 (4th Cir. 1988), decision on remand, 33 FLRA 659.

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations, and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Army Aeromedical Center, Fort Rucker, Alabama, shall:

1. Cease and desist from:

(a) Failing and refusing to bargain in good faith with the American Federation of Government Employees, AFL-CIO, Local 1815, the exclusive representative of certain employees at Fort Rucker, Alabama, concerning on-call procedures to be followed by bargaining unit employees.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Upon request of the American Federation of Government Employees, AFL-CIO, Local 1815, the exclusive representative of certain employees at Fort Rucker, Alabama, bargain in good faith concerning on call procedures to be followed by bargaining unit employees.

(b) Post at its Fort Rucker facilities, 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 Commanding Officer of Fort Rucker, Alabama, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Atlanta Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The portion of the complaint alleging that Respondent Fort Sam Houston violated section 7116(a)(1) and (6) of the Statute is dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to bargain in good faith with the American Federation of Government Employees, AFL-CIO, Local 1815, the exclusive representative of our employees at Fort Rucker, Alabama, concerning on-call procedures to be followed by bargaining unit employees.

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

WE WILL, upon request of the American Federation of Government Employees, AFL-CIO, Local 1815, the exclusive representative of our employees at Fort Rucker, Alabama, bargain in good faith concerning on call procedures to be followed by bargaining unit employees.

_______________________________

(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 its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority whose address is: 1371 Peachtree Street, N.E., Suite 122, Atlanta, Georgia, 30309-3102, and whose telephone number is: (404) 347-2324.

APPENDIX

The employee on call agrees to make himself or herself available for duty at his or her duty station as quickly as possible; however, employees will not be required to meet more stringent requirements than stated below;

a. Employees will have 25 minutes to prepare themselves to start the drive to their duty location.

b. Employees will be allowed a reasonable driving time to their duty location, considering traffic laws and the location of residence or area from which the notification was received. This expected driving time will be communicated in writing to each employee by the Employer at the time they are placed in a position that will require them to be in an on-call status.




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

1. The Panel issued its decision in 91 FSIP 115 (May 30, 1991), directing the parties to adopt the Union's proposal regarding procedures to be followed by employees who are on call. The proposal is set forth in an Appendix to this decision.

2. Section 2423.13(b) of the Rules and Regulations provides, in relevant part:

Failure to file an answer or to plead specifically to or explain any allegation [of the complaint] shall constitute an admission of such allegation and shall be so found by the Authority, unless good cause to the contrary is shown.