National Association of Government Employees, Locals R5-136 and R5-150 and U.S. Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina

[ v55 p679 ]

55 FLRA No. 120

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCALS R5-136 AND R5-150
(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
(Agency)

0-NG-2424
0-NG-2425

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

July 31, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I.     Statement of the Case

      These cases are before the Authority on petitions for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). We have consolidated the cases for decision. [n1] 

      Each of the cases concerns one proposal. The proposal in 0-NG-2425 proposes to phase in an Agency reorganization through attrition. The proposal in 0-NG-2424 proposes that the Agency maintain the status quo pending resolution of bargaining over the reorganization. In each case, the Agency filed a statement of position, and the Union filed a reply.

      We conclude that the proposal in 0-NG-2424 is within the duty to bargain. Accordingly, in 0-NG-2424, we order the Agency to negotiate, on request. We conclude that the proposal in 0-NG-2425 is outside the duty to bargain and dismiss the petition for review pursuant to section 2424.10 of the Authority's Regulations. [n2] 

II.     Background and Union's Proposals

      The Agency informed the Union that pursuant to a reorganization, ward clerks and lead medical clerks were being moved organizationally from medical administration service to nursing service. In response, the Union submitted a number of proposals. After a mediation session with the Federal Mediation and Conciliation Service, the Union withdrew all of its submitted proposals and substituted the following single proposal, which is the subject of Case No. 0-NG-2425:

As current occupied Health Care Unit Coordinator positions (Ward Clerks & Lead Medical Clerks) are vacated in Health Administration Services, the positions will be converted to Health Care Technician positions in Nursing and Patient Care Services.

When the Agency declared that proposal not within the duty to bargain, the Union submitted the following proposal, which is the subject of Case No. 0-NG-2424:

Maintain the status quo pending resolution of all issues concerning reorganizations.

III.     Positions of the Parties in Case No. 0-NG-2424

A.     Agency

      The Agency contends that the proposal conflicts with management's rights to determine its organization under section 7106(a)(1), to assign work under section 7106(a)(2)(B), and to direct and assign employees under section 7106(a)(2)(A). In addition, the Agency contends that the proposal is not within the duty to bargain under the exception for proposals that delay the exercise of management rights pending completion of bargaining.

      The Agency maintains that management's right to determine its organization refers to the administrative and functional structure of the agency and encompasses the right to modify existing organizational structure. The Agency argues that the proposal directly and excessively interferes with management's right to determine to modify its existing organizational structure. The Agency asserts that the proposal would have "the effect of stopping implementation of the reorganization dead in its tracks." Statement of Position at 6. The Agency claims that the proposed status quo would have an [ v55 p680 ] immediate adverse impact on its ability to enhance and improve delivery of critical medical care to veteran patients.

      The Agency maintains that management's right to assign work includes the determination of what duties will be assigned, the particular employees to whom work will be assigned, when work assignments will occur, and when work that has been assigned will be performed. The Agency argues that this proposal excessively interferes with management's right to assign work to a specific group of employees at a specific time and place. In addition, the Agency argues that because the proposal prevents the Agency from using certain employees at specific times in another area of the hospital, the proposal directly and excessively interferes with management's right to direct and assign employees.

      Although the Agency acknowledges that proposals that delay implementation of management action pending completion of bargaining are within the duty to bargain, the Agency asserts that this proposal does not qualify and that the Union has never alleged that it does. The Agency asserts that the proposal does not qualify under the exception because it would prevent the Agency from acting until all negotiations are completed. In addition, the Agency argues that timing of a program's implementation is part of management rights.

B.     Union

      The Union argues that the intent of the proposal is to delay implementation of the reorganization pending resolution of the bargaining proposal, which is at issue in 0-NG-2425. The Union contends that the proposal is simply a procedure concerning the implementation of the reorganization. The Union argues it is no different from other proposals the Authority has found to be within the duty to bargain when the proposal is only intended to delay implementation pending completion of collective bargaining. The Union claims that the Agency has not established the necessity for an immediate reorganization. The Union maintains that the daily duties of the clerks are unaffected by the delay because the reorganization merely changes the organizational component to which they report.

IV.     Analysis and Conclusions in Case No. 0-NG-2424

A.     Meaning of the Proposal

      On its face, the proposal calls for maintaining the status quo until "issues concerning reorganizations" are resolved. Union's Response at 7 (emphasis added). The Union does not define "issues," but its stated intent is to delay the implementation of the reorganization until the completion of bargaining. Id. The Union's stated intent comports with the wording of the proposal. Moreover, the Union's explanation is consistent with the Agency's explanation of the meaning: "The Proposal here would hold-in-abeyance . . . the Agency's reorganization until negotiable proposals are bargained or impassed[.]" Statement of Position at 6. Accordingly, we adopt the Union's stated intent and interpret the proposal as proposing to delay implementation of the reorganization until completion of bargaining.

B.     The Proposal is a Procedure under Section 7106(b)(2) of the Statute

      Proposals that preclude an agency from exercising a management right unless or until other events occur are generally not within the duty to bargain. See, e.g., National Association of Government Employees,Local R1-109 and Department of Veterans Affairs Medical Center, Newington, Connecticut, 53 FLRA 403, 417-18 (1997) (VAMC, Newington); American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 174 (1993) (Ft. Carson). Exceptions to this general approach include proposals to delay management action pending completion of bargaining or applicable appellate processes. Such proposals are viewed to be within the duty to bargain as procedures within the meaning of section 7106(b)(2). See American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston Regional Office, 48 FLRA 232, 241-43 (1993). However, the exception does not apply when implementation of the management action to be delayed is necessary for the functioning of the agency. See VAMC, Newington, 53 FLRA at 420 (Proposal 11) (proposal to delay the detail of a nuclear medicine technician pending completion of bargaining was not within the duty to bargain because the agency had established that the detail was essential to its patient care function).

      Neither party in this case has requested the Authority to reexamine this precedent. Applying this precedent, we conclude that the proposal is within the duty to [ v55 p681 ] bargain as a procedure under section 7106(b)(2) of the Statute. We find that this proposal comes within the exception for proposed delays pending completion of bargaining, and the Agency does not establish that the exception is not applicable. The Agency also fails to demonstrate that the reorganization is essential to fulfilling its mission of patient care. Unlike Proposal 11 in VAMC, Newington, the Agency makes only conclusory claims, which are not sufficient to establish a direct connection between the reorganization and patient care.

V.     Positions of the Parties in Case No. 0-NG-2425

A.     Agency

      The Agency contends that the proposal conflicts with management's rights to determine its organization under section 7106(a)(1), to assign work and determine the personnel by which agency operations will be conducted under section 7106(a)(2)(B), and to direct and assign employees under section 7106(a)(2)(A). The Agency further contends that the proposal is not within the duty to bargain as a procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3).

      The Agency maintains that management's right to determine its organization refers to the administrative and functional structure of the agency and encompasses the right to modify existing organizational structure. The Agency argues that the proposal directly and excessively interferes with management's right to determine to modify its existing organizational structure.

      The Agency maintains that the proposal abrogates management's right to assign work and determine the personnel to conduct agency operations. The Agency argues that the right to assign work includes the determination of what duties will be assigned, the particular employees to whom work will be assigned, when work assignments will occur, and when work that has been assigned will be performed. The Agency asserts that this proposal excessively interferes with management's right to assign work to a specific group of employees and to determine when the work assignment will be made. In addition, the Agency argues that because the proposal prevents the Agency from using certain employees to perform their assigned duties, the proposal directly and excessively interferes with management's right to direct and assign employees.

      Contrary to the claim of the Union, the Agency argues that the proposal is neither a procedure nor an appropriate arrangement. The Agency claims that the Union's bare assertion that the proposal constitutes a procedure or an appropriate arrangement is insufficient to support such a finding by the Authority. The Agency maintains that at most, the Union has articulated a concern about the reorganization. Furthermore, the Agency asserts that even assuming that the proposal is an arrangement or procedure, it is not within the duty to bargain because it would directly and excessively interfere with the manner and means by which the Agency organizes its service lines and effectuates its unified team approach to the delivery of patient care. The Agency also asserts that it would have the effect of preventing management from assigning work to employees unless there was a loss in nursing service.

B.     Union

      The Union contends that the proposal is within the duty to bargain as a procedure and an appropriate arrangement under section 7106(b)(2) and (b)(3).

      The Union argues that the proposal is within the duty to bargain as a procedure because it does not prevent the Agency from implementing its reorganization with its product line and team concept. The Union notes that the proposal merely delays the portion of the reorganization that adversely affects employees--the change of ward clerks and lead medical clerks organizationally from medical administration service to nursing service. The Union explains that all other aspects of the reorganization are unaffected by the proposal.

      The Union argues that the proposal is within the duty to bargain under section 7106(b)(3) because it would minimize the adverse effect of the reorganization on clerks. The Union asserts that the reorganization adversely affects the clerks with respect to leave, performance appraisal, training, promotion, and morale.

      With respect to leave, the Union argues that the reorganization adversely affects the clerks in leave competition because they will no longer be in a single leave unit. With respect to performance appraisal, the Union argues that they will no longer be evaluated by supervisors knowledgeable in administrative services and that this could lead to lower evaluations. With respect to training, the Union argues that the training opportunities for the clerks will be diminished in nursing service. With respect to promotion, the Union argues that the diminished training opportunities will put the clerks at a disadvantage in competing for promotion with clerks remaining in medical administration service. With respect to morale, the Union argues that the clerks will be going to a service with problems and discontent that can only result in greater employment dissatisfaction and job-related stress. In sum, the Union contends that [ v55 p682 ] the proposed phase-in of the realignment will minimize these adverse effects.

      In addition, the Union contends that the proposal is sufficiently tailored and does not excessively interfere with management rights. The Union argues that the proposal is sufficiently tailored because it only applies to clerks affected by the reorganization. The Union argues that the proposal does not excessively interfere with management rights because it merely delays the reorganization while the clerks continue to perform the same assignments at the same duty station. In the Union's view, the benefits to affected employees by minimizing the adverse consequences of the reorganization through its phase-in by attrition outweighs the impact of any delay in converting a small number of clerical positions from medical administration service to nursing service.

VI.     Analysis and Conclusions in Case No. 0-NG-2425

A.     Meaning of the Proposal

      The Union states that the intent of the proposal is to phase in the reorganization through attrition. As the Union's statement of intent comports with the proposal's wording, we adopt this explanation and interpret the proposal as requiring the reorganization to be phased in by attrition--as currently occupied ward and lead medical clerk positions are vacated in medical administration service, the positions will be converted to health care technician positions in nursing and patient care service.

B.     The Proposal Affects Management's Right to Determine its Organization

      Management's right to determine its organization under section 7106(a)(1) of the Statute encompasses the right to determine the administrative and functional structure of the agency, including the relationship of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. In other words, this right includes the authority to determine how an agency will structure itself to accomplish its mission and functions. See, e.g., American Federation of Government Employees, Local 3807 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 54 FLRA 642, 647 (1998) (WAPA).

      The proposal delays the Agency from fully implementing its reorganization until, through attrition, existing clerks no longer encumber any ward and lead medical clerk positions. As such, the proposal affects the Agency's right to determine its organization. See id. (proposal that would require management to alter a reorganization plan affects management's right to determine its organization).

C.     The Proposal is not a Procedure under Section 7106(b)(2)

      As noted above with respect to the proposal in Case No. 0-NG-2424, under existing case precedent, proposals that preclude an agency from exercising a management right unless or until other events occur are generally not within the duty to bargain. Neither party in this case has requested the Authority to reexamine this precedent. Applying this precedent in this case, this proposal is not a procedure under section 7106(b)(2). The proposal delays the Agency from fully implementing its reorganization until, through attrition, existing clerks no longer encumber any ward and lead medical clerk positions. Conditioning full implementation on attrition will delay the reorganization for an indeterminate period of time. Accordingly, as the proposal does not come within the exception for proposed delays pending completion of bargaining, we conclude that the proposal is not within the duty to bargain as a procedure under section 7106(b)(2) of the Statute.

D.      The Proposal is not an Appropriate Arrangement under Section 7106(b)(3)

      The test for determining whether a proposal is within the duty to bargain under section 7106(b)(3) is set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under this test, the Authority initially determines whether the proposal is intended as an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement seeks to mitigate adverse effects "flowing from the exercise of a protected management right." See Department of the Treasury v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal constitutes an arrangement, a union must identify the effects, or reasonably foreseeable effects, on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address speculative or hypothetical concerns do not constitute arrangements. See, e.g., National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, Washington, D.C., 53 FLRA 967, 973 (1997).

      An arrangement must also be sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of management's [ v55 p683 ] rights. See, e.g., American Federation of Government Employees, Local 1164 and Social Security Administration District Office, New Bedford, Massachusetts, 54 FLRA 1327, 1333 (1998). Section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. See id. (quoting U.S. Department of the Interior v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992)). Section 7106(b)(3) does not bring within the duty to bargain proposals that are so broad in their sweep that the "balm" would be applied to employees indiscriminately without regard to whether the group as a whole is likely to suffer, or has suffered, adverse effects as the consequence of management action under section 7106. See id.

      If the proposal constitutes an arrangement that is sufficiently tailored, the Authority determines whether it is appropriate because it does not excessively interfere with any applicable management rights. See KANG, 21 FLRA at 31-33. In determining whether the proposal excessively interferes with a management right, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management rights. See id.

      Even assuming, without deciding, that the proposal in this case constitutes an arrangement under the first inquiry in the KANG analysis, we conclude that the proposed arrangement is not appropriate under the second inquiry in that analysis because it excessively interferes with management's right to determine its organization.

      The Agency's current organization aligns the administrative side of patient care and recordkeeping within medical administrative service. The reorganization implements a service line organization which incorporates a unified team approach to the delivery of patient care where the clerks are an integral part of the unified patient services team. The proposal restricts and burdens the Agency by requiring the Agency to implement its unified team approach to the delivery of patient care through attrition. See National Association of Government Employees, Local R3-76 and U.S. Department of Defense, Defense Logistics Agency, Defense Automated Printing Service, Philadelphia, Pennsylvania, 55 FLRA 509, 512 (1999) (DLA) (proposal that would significantly alter management's proposed reorganization placed severe restrictions on management's ability to establish an organizational structure that meets its needs); WAPA, 54 FLRA at 649 (proposal that would require management to alter a reorganization plan and prevent management from making its operations more efficient places a "heavy burden" on management); American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1606 (1993) (SSA, Greenwood) (proposal that would require management to alter the organizational placement of a position would result in a "significant negative impact" on management's right to determine its organization). Moreover, by requiring implementation of the reorganization through attrition, the delay is of an unknown duration. Without any indication of the extent of the temporal impact, the Authority cannot determine that on balance, the delay is reasonable.

      In somewhat similar circumstances, the Authority determined that a 6-year delay in implementing a qualification requirement excessively interfered with management's rights because the negative effect on management's right to determine qualifications outweighed the benefit to employees of allowing them 6 years to obtain the required certification. See National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1190 (1991). Earlier, when the same qualification requirement was proposed to be phased in through attrition by making it voluntary for current employees, the Authority determined that the proposal excessively interfered with management's right because it would preclude application of the requirement to current employees. See National Federation of Government Employees, Local 738 and Department of the Army, Headquarters, USA Medical Department Activity, Fort Leonard Wood, Missouri, 34 FLRA 809, 814 (1990). Similarly, the Authority determined that a proposal that would have grandfathered current employees from having to meet certain new certification requirements excessively interfered with management's rights by totally preventing management from implementing new qualification requirements for the grandfathered employees. See Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 806 (1987) (proposal 53), enforced as to other matters, 872 F.2d 1032 (D.C. Cir. 1988) (per curiam); 911 F.2d 743 (D.C. Cir. 1990) (en banc).

      The Union has described benefits to employees in the areas of leave, training, promotion, and performance evaluation by delaying the implementation of the reorganization. Although the proposal would afford current clerks meaningful benefits, these benefits would result from restrictions on the Agency's ability to establish an organizational structure that meets its needs. The indeterminate nature of the temporal impact of the Union's [ v55 p684 ] proposal raises the possibility of delaying the reorganization for many years. In weighing the burden, restrictions, and negative impact imposed by the proposal on management's right to determine its organization against the benefits afforded employees by the proposal, we find that the proposal excessively interferes with management's right to determine its organization under section 7106(a)(1) of the Statute. [n3]  See DLA, 55 FLRA at 512; WAPA, 54 FLRA at 649; SSA, Greenwood, 46 FLRA at 1606-07. Accordingly, we conclude that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute. [n4] 

VII.     Order

      In Case No. 0-NG-2424, the Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over the proposal. [n5] 

      In Case No. 0-NG-2425, the petition for review is dismissed.






Footnote # 1 for 55 FLRA No. 120

   We have consolidated the cases because both cases arose from the same negotiations, and the proposals are related. See, e.g., International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 55 FLRA 25 (1999).