24:0505(56)CA - VA and VA Medical Center, Lyons, NJ and AFGE Local 1012 -- 1986 FLRAdec CA
[ v24 p505 ]
24:0505(56)CA
The decision of the Authority follows:
24 FLRA No. 56
VETERANS ADMINISTRATION AND
VETERANS ADMINISTRATION MEDICAL
CENTER, LYONS, NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1012, AFL-CIO
Charging Party
Case No. 2-CA-50029
DECISION AND ORDER
The Administrative Law Judge issued the attached decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, The
General Counsel filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the findings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order. See Veterans
Administration and Veterans Administration Medical Center, Lyons, New
Jersey 24 FLRA No. 8 (1986).
ORDER
The complaint in Case No. 2-CA-50029 is dismissed.
Issued, Washington, D.C., December 17, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-50029
VETERANS ADMINISTRATION AND VETERANS ADMINISTRATION
MEDICAL CENTER, LYONS, NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1012, AFL-CIO
Charging Party
Leslie S. Vincent, Esquire
For the Respondent
Mr. Lee Whitaker
For the Charging Party
Susan M. Roche, Esquire
Edgar Allan Jones, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region II, Federal Labor Relations Authority, New
York, New York against the Veterans Administration and Veterans
Administration Medical Center, Lyons, New Jersey (Respondent), based on
an amended charge filed by the American Federation of Government
Employees, Local 1012, AFL-CIO (Charging Party or Union). The complaint
alleged, in substance, that Respondent violated sections 7116(a)(1) and
(5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.
Section 7101 et seq. (the Statute), by instituting a monthly schedule
for rotating certain unit employees into the position of Acting
Associate Chief of Nursing Service for Education, without first
affording the Charging Party an opportunity to negotiate concerning the
impact and implementation of the change.
Respondent's answer admitted the jurisdictional allegations of the
complaint, but denied any violation of the Statute.
A hearing was held in New York, New York. The Respondent, Charging
Party, and the General counsel were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. Based on the
entire record, /1/ including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
Findings of Fact
At all times material herein, the American Federation of Government
Employees, AFL-CIO (AFGE), has been, and is now, the exclusive
representative for a nationwide unit of certain professional nurse
employees of the Respondent, including professional registered nurses at
the Veterans Administration Medical Center, Lyons, New Jersey. The
professional registered nurses include nursing instructors supervised by
the Associate Chief of Nursing Services for Education (ACNSE).
At all times material herein, AFGE has delegated to the National
Veterans Administration Council, AFGE (Council) authority to act as its
representative for the purposes of collective bargaining for
Respondent's employees, including the professional registered nurse
employees of the Veterans Administration Medical Center, Lyons, New
Jersey, and the Council's delegation has been recognized by the
Respondent.
At all times material herein, the Charging Party has acted as the
agent of the Council for the purposes of collective bargaining on behalf
of the professional registered nurses at the Veterans Administration
Medical Center, Lyons, New Jersey, and the Charging Party's delegation
has been recognized by the Respondent.
On or about September 21, 1984, the ACNSE implemented a new system
whereby all six instructors under the ACNSE would serve in the capacity
of Acting ACNSE in the absence of the ACNSE on a rotating monthly basis.
The duties and responsibilities of the Acting ACNSE were to include
"attending meetings, responding to and assisting faculty from respective
schools, writing memos or other correspondence, if necessary, providing
guidance and/or assistance to other instructors, if necessary, and
checking incoming mail". The Acting ACNSE is expected to perform only
these duties and not all of the duties listed in the ACNSE position
description.
The Charging Party was not notified and afforded an opportunity to
negotiate concerning the impact and implementation of the change. /2/
The ACNSE has been absent ten to twelve times for a total of about
three to four weeks since the new schedule was placed in effect. Five
of the six nursing instructor have served as Acting ACNSE from one to
four days each. There is no change in an instructor's grade, step, or
hours of duty when an instructor serves as Acting ACNSE. Nor is there
any change in the employee's rating or approving official for purposes
of an employee's performance appraisal.
The ACNSE estimates that her absences from the Center in the coming
year will include five weeks of annual leave, approximately one week of
sick leave, and about two days of administrative leave for seminars.
She does not take her vacation at the same time each year. There was no
showing that there were some months of the year which would require that
an instructor serve as Acting ACNSE more than other months. However,
there are no guarantees that each nursing instructor will be able to
serve as ACNSE in a fair and equitable manner. Some nursing instructors
may be scheduled to be Acting ACNSE during a month when the ACNSE may be
away for several days or weeks, and other instructors may be scheduled
when the ACNSE is at work every day or absent only for a day or two.
The Acting ACNSE position provides the opportunity for a nursing
instructor to gain experience in a management position. In addition,
instructors are rated in their annual evaluations on several areas
dealing with supervisory and administrative abilities. Service as an
Acting ACNSE may be appropriately considered in such areas as well as
being mentioned in the narrative description of the employee's
performance. Evaluation of these areas may be helpful for promotional
opportunities. There are no other supervisory or administrative duties
involved in the nursing instructor position, so service as an Acting
ACNSE provides the only opportunity for experience and a rating in this
area.
The Acting ACNSE is expected to attend any committee meeting which
the ACNSE would attend. The instructors regard this as beneficial
experience which enables them to learn more about the Medical Center
operation and the opportunities for nurses.
Respondent was on notice that the Union desired bargaining on the
change at issue. Although the Union never had the opportunity to
specifically address its concerns, the Union wished to negotiate a fair
and equitable distribution of service as Acting ACNSE among the
instructors, the recording of the service as Acting ACNSE in employees'
personnel files, and a more specific identification of the duties of the
Acting ACNSE. Respondent took the position that the ACNSE is a
management position and that the selection of an Acting ACNSE is not
subject to negotiation.
The record reflects that from April through November 1983 bargaining
unit nursing instructors were rotated through the Acting ACNSE pursuant
to an agreement negotiated by the Chief, Nursing Service and the
Charging Party. Thereafter, in November 1983, June 1984, and on the
instant occasion, September 21, 1984, Respondent made unilateral changes
concerning procedures used to fill the position of Acting ACNSE.
Discussion, Conclusions, and Recommendations
In National Labor Relations Board Union, Local 21, 15 FLRA 798
(1984), the union submitted proposals regarding the substitution by unit
employees in supervisory positions on a long-term and short-term basis.
The period of time covered by such substitution by unit employees ranged
from four or fewer working days to eleven or more days. The proposals
dealth with such matters as the composition of selection lists, comments
concerning supervisory potential, and the performance of bargaining-unit
work during such assignments. The Authority declared the disputed
proposals to be outside the duty to bargain, stating, in part:
It is well established that a proposal concerning the filling
of supervisory positions, including temporary appointments, is
negotiable only at the election of the agency since it does not
concern a condition of employment of bargaining unit employees.
National Union of Compliance Officers, Ind. and U.S. Department of
Labor, Labor-Management Services Administration, 9 FLRA 735
(1982), International Association of Fire Fighters, Local F-61 and
Philadelphia Naval Shipyard, 3 FLRA 438 (1980) (proposal III) . .
.
Since the Respondent in this case has elected not to bargain, I am,
therefore, constrained to conclude that the procedures for filling the
ACNSE position, on a temporary basis, does not concern a condition of
employment of bargaining unit employees within the meaning of section
7103(a)(14), and that a unilateral change in such procedures does not
constitute a violation of section 7116(a)(1) or (5) of the Statute.
National Labor Relations Board Union, Local 21, supra; Nuclear
Regulatory Commission, 17 FLRA No. 132, 17 FLRA 972 (1985); United
States Department of the Treasury, U.S. Customs Service, 18 FLRA No. 1,
18 FLRA 1 (1985); Department of the Navy, Naval Underwater Systems
Center, Newport, Rhode Island, 11 FLRA 316 (1983).
In view of this disposition, it is unnecessary to apply the recent
criteria set forth in Department of Health and Human Services, Social
Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101,
19 FLRA 827 (1985) for determining whether the impact or reasonably
foreseeable impact of a change in unit employees' conditions of
employment was more than de minimis.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
It is hereby Ordered that the Complaint in Case No. 2-CA-50029 be,
and it hereby is, DISMISSED.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: October 9, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Counsel for the General Counsel's unopposed Motion to Correct the
Transcript is granted; the transcript is hereby corrected as set forth
therein.
/2/ The ACNSE, Patricia Ralston, testified that she notified the
instructors of the new rotation at a staff meeting on August 21, 1984
and that, to the best of her recollection, Ben Canete, Union
vice-president for the professional registered nurse unit, was present.
Canete testified that he had no knowledge of such a meeting. Based on
the entire record, I credit Canete's testimony on this point.