25:0803(66)NG - Colorado Nurses Association and VA Medical Center, Ft. Lyons, CO -- 1987 FLRAdec NG
[ v25 p803 ]
The decision of the Authority follows:
25 FLRA No. 66 COLORADO NURSES ASSOCIATION Union and VETERANS ADMINISTRATION MEDICAL CENTER, FT. LYONS, COLORADO Agency Case No. 0-NG-1104 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). The case presents issues concerning the negotiability of six proposals. The Veterans Administration (Agency or VA), in this and other cases involving professional employees of the Department of Medicine and Surgery (DM&S), contends that as a general matter the duty to bargain over conditions of employment under the Statute does not apply to professional medical employees appointed under Chapter 73 of Title 38, United States Code. On October 27, 1986, we granted the Agency's Motion for Consideration of Common Issues in which the VA requested that the Authority resolve the issue of the VA's general duty to bargain with DM&S professional employees by considering the record in all cases in which the issue is raised. Parties were given until January 15, 1987 to file submissions. We have considered the filings of the parties in these cases as well as additional submissions filed with and in response to the Agency's motion. /1/ For the reasons discussed in Section II, we find that as a general matter the Veterans Administration has a duty to negotiate over conditions of employment of DM&S professional employees. In Section III of this decision, we address the specific proposals at issue in this case. II. Whether the Agency has a Duty to Bargain over Conditions of Employment of DM&S Professional Employees A. Background: Grievances Concerning Disciplinary and Adverse Actions In Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Minnespolis, Minnesota, 15 F.RA 948 (1984), the Authority held that the Veterans Administration had no duty to bargain with DM&S professional medical employees on proposals relating to disciplinary actions and adverse action procedures for disputes over alleged professional misconduct or incompetence. The Authority relied on the reasoning of the U.S. Courts of Appeals in Veterans Administration Medical Center, Minneapolis, Minnesota v. FLRA, 705 F.2d 953 (8th Cir. 1983) (VA Minneapolis), and Veterans Administration Medical Center, Northport, New York v. FLRA, 732 F.2d 1128 (2d Cir. 1984) (VA Northport), in finding that disciplinary and adverse actions were to be resolvedexclusively through the peer review system established under section 4110 of the DM&S statute, 38 U.S.C. Sections 4101-4119. The courts found that allowing disciplinary and adverse action cases to be resolved under a negotiated grievance procedure would conflict with the VA's exclusive peer review system, and that the conflict between the two procedures must be resolved in accordance with section 4119 of Title 38, which provides: S. 4119. Relationship between this subchapter and other provisions of law Notwithstanding any other provision of law, no provision of title 5 or any other law pertaining to the civil service system which is inconsistent with any provision of this subchapter shall be considered to supersede, override, or otherwise modify such provision of this subchapter except to the extent that such provision of title 5 or of such other law specifically provides, by specific reference to a provision of this subchapter, for such provision to be superseded, overridden, or otherwise modified. Both courts held that because the Federal Service Labor-Management Relations Statute makes no specific reference to Title 38 with respect to disciplinary and adverse action cases, the conflict must be resolved in favor of the peer review system set forth in section 4110 of Title 38. A number of unions who are parties to these cases contend that the Authority should reconsider the holding in Veterans Administration, Washington, D.C. /2/ They claim that the legislative history of the 1980 amendments to the DM&S statute, which added section 4119, shows that Congress intended those amendments to improve working conditions and enhance recruitment of nurses and other DM&S professionals, and that the Authority's decision is inconsistent with this legislative intent. However, we find that the holding in Veterans Administration, Washington, D.C. is consistent with the Congressional intent of section 4119 and we reaffirm that holding. B. The Parties' Contentions The Agency contends that it has no obligation to bargain over conditions of employment of DM&S professionals because a conflict exists between the Statute and 38 U.S.C. Section 4108(c), which provides: Section 4108. Personnel administration (a) Notwithstanding any law, Executive order, or regulation, the Administrator shall prescribe by regulation the hours and conditions of employment and leaves of absence of physicians, dentists, podiatrists, optometrists, nurses, physician assistants, and expanded-function dental auxiliaries appointed to the Department of Medicine and Surgery(.) The VA argues that section 4108(a) demonstrates Congress' intent to establish a DM&S personnel system that is entirely independent of the civil service restrictions of the Title 5 personnel system. It contends that its mission requires that any review of conditions of employment of DM&S professional employees be through peer review administered by officials directly responsible and accountable for the delivery and quality of patient care, rather than review by "inexpert arbitrators." Agency's Statement in Support of Allegations of Nonnegotiability (Case No. 0-NG-1104) at 11. The Agency further argues that its internal regulations are "legislative regulations having the full force and effect of law" and that collective bargaining may not "concern, change, alter, modify, subyract from or add to the VA's nationwide Title 38 personnel regulations." Agency's Brief in Response to Negotiability Appeal (Case Nos. 0-NG-1209 and 0-NG-1224) at 12. The VA also argues that, because Title 38 and the VA's "legislative regulations" specifically provide for the exclusive DM&S personnel system, working conditions of DM&S professionals are excluded under section 7103(a)(14)(C) of the Statute from the meaning of "conditions of employment" to which the duty to bargain extends. The Union disputes these contentions and takes the position that Congress did not intend to deprive DM&S employees of collective bargaining rights established by the Civil Service Reform Act of 1978. Rather, the Union argues, the legislative history of the 1980 amendments to Title 38 demonstrates that Congress specifically intended to preserve existing collective bargaining rights for those employees. C. Analysis and Conclusions Section 4119 requires the provisions of Title 5 to yield to the provisions of Title 38 where a direct conflict exists between those statutes. VA Minneapolis, 705 F.2d at 956 n.3. We conclude that no direct conflict exists between the provisions of section 4108 authorizing the Administrator to prescribe hours and conditions of employment and leaves of absence and the provisions of the Statute permitting collective bargaining concerning conditions of employment unrelated to disciplinary and adverse actions. We base this conclusion on Congress' intent as expressed in the legislative history of the 1980 amendments to Title 38, as well as on the Statute and its legislative history; the history of collective bargaining between the parties; and the interpretation of the courts in VA Minneapolis and VA Northport. Accordingly, we reject the VA's assertion that sections 4108 and 4119 of Title 38, read in conjunction, remove conditions of employment of DM&S employees from the VA's duty to bargain established by the Federal Service Labor-Management Relations Statute. (1) Legislative History of the DM&S Statute As discussed by the courts, the legislative history of the DM&S Statute contains many references to the need of the VA to have a free hand in removing incompetent DM&S professionals without the "red tape" of civil service restrictions. See VA Minneapolis, 705 F.2d at 956-57; VA Northport, 732 F.2d at 1131. See also, H. Rep. No. 138, 79th Cong., 1st Sess. 2 ("such legislation should . . . incorporate authority to dispense with the services of unsatisfactory or disqualified employees in certain categories without regard to the restrictions of the laws and regulations pertaining to civil service . . . . "). Another theme discussed throughout the legislative history is that the VA should have flexibility to hire DM&S professionals without regard to civil service requirements. See S. Rep. No. 858, 79th Cong., 1st Sess. 1, reprinted in 1945 U.S. Code Cong. Serv. 956; H. Rep. No. 79-1238 at 2. Congress responded to this concern by providing in section 4106 of the DM&S Statute that professionals shall be appointed in accordance with regulations prescribed by the Administrator "without regard to civil-service requirements." However, the legislative history does not show a similar Congressional intent that VA exercise exclusive control over other conditions of employment of DM&S professionals. Both the Senate and House reports accompanying the DM&S legislation merely paraphrase the language of section 4108(a) without further discussion. S. Rep. No. 79-858 at 3, 1945 U.S. Code Cong. Serv. at 958; H. Rep. No. 79-1238 at 3. The only reference to that section in the House debate is the following statement by Representative Scrivner: (W)e know that people do not get sick by the clock. We found in many of these (VA) hospitals under civil-service regulations doctors practice 40 hours a week. As we have gone through hospitals and seen 4:30 come around, we have seen doctors put on their hats and walk out, because if they had worked a few minutes overtime, compensatory time would have had to be given them, and it would have taken a great deal of complicated figuring and bookkeeping to straighten it out. In section (7)(b), we provide that notwithstanding any law, Executive order, or regulation, the Administrator shall prescribe by regulation the hours and working conditions and leaves of absence of doctors, dentists, and nurses. 91 Cong. Rec. H11662-63 (Rep. Scrivner). Thus the legislative history demonstrates a recognition by Congress that with respect to "conditions of employment," DM&S needed flexibility to assure provision of patient care services. We cannot conclude, however, that the existence of that flexibility and discretion automatically operates to remove all DM&S professionals from coverage of the Statute or otherwise serves to preclude all collective bargaining about their conditions of employment. To the contrary, the legislative history of the 1980 amendments to Title 38 states that Congress did not "intend that any of the changes made by the legislation to the VA's health care personnel authorities detract in any way from employee rights under existing collective bargaining agreements between the VA and its employees." Explanatory Statement of Compromise Agreement on H.R. 7102/S. 2534, 126 Cong. Rec. H6850 (1980), reprinted in 1980 U.S. Code Cong. & Ad. News 2463, 2557, 2563. We interpret this language to be an express recognition by the Congress of a past practice of collective bargaining between the VA and its professional employees, and a manifestation of an intent that the practice continue. Furthermore, had Congress intended negotiations over conditions of employment under the Statute not to apply to DM&S professionals, it could have done so expressly by excluding them from the Statute as it did with certain other categories of employees. See 5 U.S.C. Section 7103(a)(2) and (3). It did not do so. To the contrary, as explicitly stated in the Senate Report's discussion of the Statute, Title 38 employees are covered by the Statute. S. Rep. No. 969, 95th Cong. 2d Sess. 110, reprinted in 1978 U.S. Code Cong. & Ad. News 2723, 2832. (2) Past Bargaining History and the Application of VA Minneapolis and VA Northport Although the courts in VA Minneapolis and VA Northport found that Congress intended the peer review procedures in disciplinary and adverse action matters to be an exclusive remedy, nothing in those decisions indicates that section 4119 bars negotiations on all matters affecting DM&S employees. In VA Northport, at 1132, the court stated that: At the time of its (section 4119's) enactment, the DM&S professionals at issue here had no "rights existing under existing collective bargaining agreements" pertaining to discipline because the VA has consistently refused to bargain over this issue. As to other matters, the VA has not refused to bargain with DM&S professionals, and does not argue here that it has no duty to do so. Among the matters over which the VA previously has not refused to bargain is the grievance and arbitration of conditions of employment of DM&S professional employees other than disciplinary and adverse actions. See, for example, American Federation of Government Employees, AFL-CIO, Local 3669 and Veterans Administration Medical Center, Minneapolis, Minnesota, 3 FLRA 311 (1980) (VA objected to union proposal for broad scope grievance procedure only insofar as proposal did not expressly exclude grievances over separation of probationary employees, actions resulting from competency reviews by supervisors or nurse professional standards boards, and actions taken by Chief Medical Director based on disciplinary board recommendations). Additionally, the court in VA Minneapolis limited its holding, finding that the union proposals specifically conflicted with 38 U.S.C. Section 4110 only insofar as they created alternative grievance procedures and allowed binding arbitration of disputes regarding alleged "inaptitude, inefficiency, or misconduct" of DM&S professionals. The court, at 958, stated that: Section 4110 covers these explicit matters of professional performance, but does not create procedures for the resolution of disputes over other personnel decisions common to all employment situations, such as vacation assignments or working conditions. We hold, therefore, that the union proposals before us are nonnegotiable insofar as they offer DM&S professionals alternatives to the exclusive section 4110 procedures for the resolution of disputes covered by that section. Our decision does not preclude proposals concerning grievance procedures, which could include binding arbitration, to be used in employment disputes not covered by section 4110. Accordingly, the past bargaining history of the parties and the application of VA Minneapolis and VA Northport support the conclusion that section 4108 of Title 38 does not operate to remove DM&S employees from coverage under the Statute. /3/ (3) The Effect of the Agency's Regulations on the Negotiability of the Conditions of Employment of DM&S Professional Employees The Agency contends that its personnel regulations constitute "legislative regulations" having the same status as the relevant sections of Title 38 of the U.S. Code. We find no support for this assertion in the DM&S statute or its legislative history. Although the Administrator is granted authority to promulgate regulations which prescribe the conditions of employment for DM&S professionals, there is no indication that the exercise of discretion by the Administrator is in any way different from that involved when regulations are promulgated by other employing Federal agencies. Thus the grievance procedure set forth in VA Manual MP-5, Part II, Chapter 8, Section B is promulgated pursuant to section 4108, but is not expressly created by Title 38 itself. These regulations differ from the peer review procedures of section 4110 in that they are not expressly created by statute. Section 7117(a) of the Statute provides that negotiations over union proposals may be barred by a conflicting regulation only where that regulation is either a Government-wide regulation or an internal agency regulation for which the agency has demonstrated a compelling need. Since the Agency's personnel regulations apply only within the VA itself, they are not Government-wide regulations. The VA has not demonstrated that taken as a whole its regulations are supported by a compelling need. Of course, the VA is not precluded from contending that a compelling need exists for any of its personnel regulations which would bar negotiations on a specific conflicting proposal. (4) Summary We find that requiring the Agency to negotiate over conditions of employment of DM&S professional employees is not inconsistent with the Administrator's authority under section 4108(a). The VA's broad reading of section 4108(a) to preclude all such collective bargaining must be rejected. For the reasons set forth, we find that a conflict does not exist between 38 U.S.C. Section 4108(a) and the duty to bargain under section 7117 of the Statute. Consequently, section 4119 of the DM&S Statute does not apply, and thus does not remove all conditions of employment of DM&S professional employees from the VA's duty to bargain. We now turn to the specific proposals and contentions presented in this case. III. Proposal 1 Proposal 1 would establish a grievance and arbitration procedure. The text of the proposal is set forth in an appendix to this decision. A. Positions of the Parties The Agency contends that Proposal 1 is inconsistent with the DM&S personnel system established under Title 38 for the reasons discussed in Section II of this decision. The Agency also contends that, because section 3 of the proposal provides that an employee may be represented by "someone approved by the Association," it is contrary to (1) section 7114(a)(1) and (5) of the Statute, which provides that the union is the exclusive representative except that an employee may choose to be represented by an attorney or other representative; and (2) section 7121(b)(3)(B) of the Statute, which provides that an employee is entitled to be represented by the exclusive representative in grievances. The Union disputes the Agency's contentions that a negotiated grievance and arbitration procedure is precluded by Title 38. Additionally, the Union argues that section 3 of the proposal is not inconsistent with the Statute because the Union has a right to designate representatives of its own choosing in fulfilling its representational functions. B. Analysis and Conclusions For the reasons discussed in section II, we reject the Agency's contention that a proposal establishing a negotiated grievance and arbitration procedure is inconsistent with Title 38. /4/ As to section 3 of Proposal 1, the Authority has held that "it is within the discretion of both agency management and labor organizations holding exclusive recognition to designate their respective representatives when fulfilling their responsibilities under the Statute." American Federation of Government Employees, AFL-CIO, 4 FLRA 272, 274 (1980). Contrary to the Agency's contention, the Authority's decision in National Federation of Federal Employees, Local 1001 and Department of the Air Force, Vandenberg Air Force Base, California, 15 FLRA 804 (Provision 1) does not require a finding that the proposal here is nonnegotiable. In Vandenberg Air Force Base, the Authority held that if an employee chooses to be represented in a grievance under a negotiated grievance procedure, the employee may be represented only by the exclusive representative. However, this limitation on the right of an employee to designate his or her own representative does not also limit the right of the union to designate its own representative in a grievance under a negotiated grievance procedure. Consequently, section 3 of the proposal is not inconsistent with section 7114(a)(1) and (5) or section 7131(b)(3)(B) of the Statute. Accordingly, we conclude that Proposal 1 is within the duty to bargain. IV. Proposal 2 Article XI -- Tours of Duty Section 1. The schedules of nurses will be established as regular tours of duty consisting of eight consecutive hours per day, exclusive of 1/2 hour on-duty meal time where the schedule provides time for a meal. Section 2. Five consecutive days will be the normal tour of duty followed by two consecutive days off. This tour of duty may be extended to not more than six consecutive days with two consecutive days off. Management will consider nurses' requests for exceptions to this policy. Split days off and split shifts will not be scheduled without the employee's consent, with the following exception: Where sick leave requests, emergency vacancies, or emergency leave require the Employer to have fill-in coverage, the Employer will first seek the consent of the employee involved and/or attempt to find replacements before requiring compliance with the split day schedule. Section 3. Time schedules will be planned to provide for 15 or more hours of non-duty time between the completion of one tour and the beginning of the next tour of duty except at the nurses specific request or agreement for less than 15 hours. A. Positions of the Parties The Agency contends that Proposal 2 concerning tours of duty of nurses is outside the duty to bargain because it is (1) contrary to "Agency legislative regulations" in the VA personnel manual and the right of the Administrator under sections 4108(a) and 4119 of Title 38 to establish conditions of employment for DM&S professional employees as discussed in section II of this decision; (2) integrally related to, and determinative of, the numbers and types of employees assigned to a tour of duty so as to be negotiable only at its election under section 7106(b)(1) of the Statute; and (3) contrary to internal agency regulations making care and treatment of patients the primary consideration in scheduling of nurses. The VA claims that there is a compelling need under the Authority's regulations because the VA's regulations are essential to the accomplishment of its mission. The Agency also argues that the proposal is (1) inconsistent with the Agency's discretion under section 4107(h)(1) of the DM&S Statute to establish a "Baylor plan" in which nurses are paid for a full administrative work week by working two 12 hour shifts on the weekend; and (2) contrary to the Agency's right under section 7106(a)(2)(B) of the Statute to assign work. The Union disputes the Agency's contentions as to a conflict with its legislative regulations or with Title 38 and states that the legislative history of the 1980 amendments to the DM&S Statute shows that Congress intended VA to negotiate over conditions of employment, including tours of duty. The Union states that its proposal is consistent with laws concerning work schedules and with the VA regulations, and that the sections of the proposal are negotiable procedures and appropriate arrangements under section 7106(b)(2) and (3) of the Statute. The Union also contends that its proposal is not inconsistent with the Agency's patient care mission and does not prevent the Agency from establishing a Baylor plan. B. Analysis and Conclusions For the reasons discussed at section II above, we reject the Agency's contention that it has no duty to bargain over the proposal because it is inconsistent with "Agency legislative regulations" or because conditions of employment are removed from the duty to bargain by Title 38. Proposal 2 establishes limitations on management's ability to determine the work schedules of its nursing employees, namely, it prescribes regular tours of duty and precludes split shifts and split days off. Union Statement of Intent as to Article IX, Attachment to Union Petition for Review. The effect of those limitations is to prevent management from changing nursing schedules to meet its patient care needs. In particular, the Agency states, and the Union does not dispute, that "nurses perform different duties during different shifts. Individual nurses have specialized skills and responsibilities which are not necessarily interchangeable." Agency Statement of Position at 54. See also Agency Statement of Position at 48-49. In practical terms this means that the nature of the work which needs to be done may vary with the shift and that the nursing skills required may likewise vary with the shift. Under the restrictions imposed by the proposal, therefore, management would be unable to assign the nurse who can perform the particular work which must be done to the shift on which that work is required. That is, the Agency would be unable to schedule nurses with specialized skills to perform specific tasks on the particular shift where that work must be done. For this reason, we find that the proposal has the same effect as Proposal 2 in National Association of Government Employees, Local R14-8 and Veterans Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17 (1986). In that case, the proposal would have restricted management's right to determine employee work schedules by, for example, precluding management from scheduling two different tours of duty in the same week, regardless of the agency's work requirements and whether a particular employee's skills were needed on a particular shift. We found that the proposal in that case directly interfered with management's right to assign work pursuant to section 7106(a)(2)(B) of the Statute by preventing it from scheduling an employee to perform particular duties on a specific shift consistent with the agency's patient care requirements. Because Proposal 2 here would similarly interfere with management's right to assign work, it is not a negotiable procedure and is outside the Agency's duty to bargain. This proposal is distinguishable from cases in which the Authority has held that proposals prescribing criteria for the assignment of employees to shifts are negotiable. See, for example, International Plate Printers, Die Stampers and Engineers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provision 4). The proposal in that case concerned shift assignments of employees whose work remained the same regardless of the shift and who were all equally qualified to perform that work. As noted above, the record in this case indicates that not all nurses are qualified to perform the various specialized medical procedures required for adequate patient care and the times at which that expertise may be needed may also differ from day to day and week to week. The Union states that its proposal is consistent with the Agency's staffing needs with regard to its patient care mission (Memorandum in Support of Petition for Review at 55-56). Section 17 of the Tours of Duty Article states that exceptions may be made to the article's requirements when required by the Agency's patient care needs only with respect to Sections 4, 5, 6, 7, 9, 14 and 16. However, neither the language of the Union's proposal nor the record indicates that a similar exception is provided for Sections 1-3. In this respect, therefore, the proposal here is distinguishable from Proposal 3 in VA Medical Center, Topeka, In that case, we found that the use of the word "ordinarily" in the proposal protected the Agency's right to vary employees' days off in order to provide for its patient care needs. As noted above, no such protection is present in Proposal 2 in this case. Additionally, the Union's contention that 5 U.S.C. Section 6101 requires the Agency to establish a regular work schedule as proposed by the Union is without support. Even assuming that professional medical employees of the DM&S are subject to 5 U.S.C. Section 6101, the proposal makes no allowance for the Agency's right under that statutory provision to make exceptions from its requirements where the Agency would otherwise be seriously handicapped in carrying out its functions. The proposal in this case, therefore, is like Proposal 3 in Tidewater Virginia Federal Employees Metal Trades Council and Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 25 FLRA No. 1 (1987) and distinguishable from Union Proposal 3 in VA Medical Center, Topeka and Union Proposal 4 in National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration Medical Center, Grand Junction, Colorado, 24 FLRA No. 21 (1986). In Navy Public Works Center, we found that the proposals in the Topeka and Grand Junction cases expressly permitted management to take into account actual work requirements when deciding employee work schedules and thereby incorporated the statutory and regulatory requirements. As to whether Proposal 2 constitutes an appropriate arrangement, after this case was filed the Authority issued National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). In that case, the Authority stated that it would determine whether a proposed "arrangement" for employees adversely affected by the agency's exercise of its section 7106 rights is "appropriate" for negotiation within the meaning of section 7106(b)(3), or whether it is inappropriate because it would "excessively interfere" with the exercise of management's rights. We find that even assuming that the proposal constitutes an "arrangement" for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3), it is not an "appropriate" arrangement. Although the Union's proposal would substantially benefit employees by providing them with regular schedules, it would do so at the cost of management's flexibility to schedule nurses on irregular tours of duty to fulfill its patient care mission. Since the Union's proposal would eliminate that flexibility, we find that Proposal 2 would excessively interfere with the Agency's right to assign work and is not an appropriate arrangement. Accordingly, for the reasons set forth, Proposal 2 is outside the duty to bargain. In view of this determination, we need not decide whether the proposal also violates the Agency's right to determine the number of employees assigned to a tour of duty, prevents it from establishing a Baylor plan, or conflicts with an internal regulation which is supported by a compelling need. V. Proposal 3 Article XI -- Tours of Duty Section 5. Management will take responsibility for planning time schedules so employees will not have more than two different tours of duty within a period of seven consecutive days beginning with Sunday. One of these tours of duty will be the day tour unless requested otherwise by the nurse. The rotating nurse will work the day shift prior to rotating to the night tour of duty. Changes to an irregular tour other than these approved will be discussed with the individual nurse or nurses. (The underscored portion of this proposal is at issue.) A. Positions of the Parties The Agency contends that Proposal 3 prohibits the Agency from assigning nurses to more than two major tours of duty in a seven day period in violation of its rights to assign employees under section 7106(a)(2)(A) and to determine the numbers, types, and grades of employees assigned to a work project or tour of duty under section 7106(b)(1) of the Statute. The Union contends that its proposal constitutes a negotiable procedure and an appropriate arrangement. B. Analysis and Conclusions Proposal 3, like Proposal 2 discussed above, restricts management's ability to schedule nurses so as to assign particular nurses to perform specific duties on particular shifts, namely, by precluding management from assigning nurses to a third tour of duty during a workweek. Unlike Proposal 2, however, the proposal here takes into account the Agency's patient care needs. Section 17 of the Tours of Duty Article provides that in implementing section 5, among other sections, "the Association recognizes the unique problems of staffing and patient care at the Fort Lyon VA and agrees to work with Nursing Service to develop and accept exceptions to the aforementioned sections when the needs of the hospital dictate." By thus protecting management's right to determine which nurses will perform specific duties on particular shifts, the proposal does not directly interfere with management's right to assign work and is within the Agency's duty to bargain. See National Association of Government Employees, Local R14-8 and Veterans Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17 (1986) (Union Proposal 3) and National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration Medical Center, Grand Junction, Colorado, 24 FLRA No. 21 (1986) (Union Proposal 4). We disagree with the Agency's contention that the proposal violates its right under section 7106(b)(1) of the Statute to determine the numbers, types, and grades of employees assigned to a tour of duty. Unlike American Federation of Government Employees, Local 3669, AFL-CIO and Veterans Administration Medical Center, Minneapolis, Minnesota, 2 FLRA 640 (1980), cited by the Agency, the Agency here has not shown how the Union's proposal would require it to hire additional nurses to meet its staffing needs. Because we find that Proposal 3 does not directly interfere with management's rights, we do not need to reach the question of whether Proposal 3 constitutes an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. VI. Proposal 4 Article IX -- Tours of Duty Section 11. Reassignments from one ward to another for relief will be made only in emergencies and after evaluation by the appropriate supervisor and with consultation with the staff nurse or nurses involved. Every attempt will be made to avoid replacing nonprofessional employees with staff nurses. A. Positions of the Parties The Agency contends that Proposal 4 violates its rights under section 7106(a)(2)(B) to assign work and determine the personnel by which agency operations shall be conducted. The Union contends that the proposal constitutes a negotiable procedure and an appropriate arrangement. The Union states that the last sentence of the proposal does not prevent the Agency from assigning duties to nurses since it merely provides that "(e)very attempt will be made to avoid replacing nonprofessional employees with staff nurses." B. Analysis and Conclusions The first sentence of Proposal 4 would prohibit the Agency from reassigning nurses from one ward to another for relief except in emergencies. This proposal is not a negotiable procedure since it directly interferes with management's right to assign work by conditioning the Agency's ability to assign work by conditioning the Agency's ability to reassign employees to other duties upon the ex-stence of an emergency. See National Labor Relations Board Union, Local 19 and National Labor Relations Board, Region 19, 2 FLRA 775 (1980) (proposal establishing a condition on management's ability to assign specified duties to a particular employee directly interferes with management's right to assign work). While the fact that the proposal would permit management to make reassignments in an emergency renders the proposal consistent with management's right to take action in an emergency under section 7106(a)(2)(D) of the Statute, it directly interferes with management's right to assign work because it would prohibit management from making such reassignments in situations which are not "emergencies." Management's right to assign work to employees under section 7106(a)(2)(B) is not limited to emergencies. If it were, section 7106(a)(2)(B) and section 7106(a)(2)(D) would be redundant. For these reasons, we find that Proposal 4 directly interferes with management's right to assign work and is outside the Agency's duty to bargain. As to whether the first sentence of the proposal constitutes an appropriate arrangement, we note that neither the Union nor the Agency makes any specific arguments concerning the manner in which the limitation on reassigning nurses between wards would either benefit employees or interfere with the Agency's ability to fulfill its patient care mission. However, even assuming that the proposal constitutes an "arrangement" for employees adversely affected by the exercise of a management right, we find that it is not an "appropriate" arrangement within the meaning of section 7106(c)(3). Because the proposal would prevent management from reassigning nurses from one ward to another in situations which may not be considered "emergencies" for purposes of the proposal, it would totally abrogate management's right to assign work. We conclude, therefore, that the first sentence of Proposal 4 excessively interferes with management's right to assign work and is outside the duty to bargain. The second sentence of the proposal would require the Agency to make "every attempt" to avoid assigning non-professional duties to staff nurses. We find that the sentence therefore imposes a substantive condition on management's right to assign work to employees. Rather than preserving management's right to assign work, the language restricts the exercise of that right by establishing a criterion under which management must justify its action in assigning non-professional duties to staff nurses. For this reason, we find that the second sentence of Proposal 4 directly interferes with management's right to assign work. See National Federation of Federal Employees, Local 615 V. Federal Labor Relations Authority, 801 F.2d 477, 479-80 (D.C. Cir. 1986), affirming National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA 318 (1985). Moreover, we find that the second sentence of Proposal 4 does not constitute an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. Even assuming that the sentence constituted an "arrangement" for employees adversely affected by the exercise of a management right, because it would totally abrogate management's right to assign work, it would excessively interfere with that right so as not to be an "appropriate" arrangement. For this reason, the second sentence of Proposal 4 is outside the Agency's duty to bargain. VII. Proposal 5 Article XI -- Tours of Duty Section 13. Notices of Professional Nurse vacancies within the VA System will be maintained in a folder and available around the clock in the Nursing Service Conference Room. Notices of in-hospital vacancies will show on the Nursing Service Staffing Board. Notices will be posted promptly when the employer becomes aware of the vacancy. Preference will be given to nurses presently employed when a vacancy is available. (Underscored portion of section is at issue.) A. Positions of the Parties The Agency contends that Proposal 5 is contrary to the VA's legislative regulations and, for the reasons set forth in section II of this decision, that it has no duty to bargain over the proposal. The Agency also argues that the proposal violates management's right under section 7106(a)(2)(C) to make selections in filling vacancies. The Union states that Proposal 5 is consistent with the intent of the 1982 amendments to the DM&S Statute which were designed to improve recruitment and retention of nurses. The Union also contends that its proposal constitutes a procedure which allows the Agency to hire the most qualified nurse applying from within the DM&S system, hire from outside if there are no applicants from within, or choose not to fill a vacancy at all. The Union also contends that the Agency has not demonstrated a compelling need for its internal regulations. B. Analysis and Conclusions For the reasons set forth at section II of this decision, we reject the Agency's contention that it has no obligation to bargain because the proposal is inconsistent with Agency legislative regulations. We find, however, that Proposal 5 would directly interfere with management's right to make selections for positions from any appropriate source and is not a negotiable procedure. The Union states that Proposal 5 would not preclude a selection from outside the Agency. Memorandum in Support of Petition for Review at 65. That is, the Agency must select a candidate applying from within the Agency, unless there are no internal applicants. By limiting the sources from which management will make selections to fill bargaining unit vacancies, namely, to promotion or reassignment from within the Agency, Proposal 5 directly interferes with management's rights under section 7106(a)(2)(C) and is outside the duty to bargain. See American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA 674 (1985) (Proposal 1). Because it dictates a source for selection, Proposal 5 is distinguishable from proposals requiring an agency to consider unit employees for vacancies prior to seeking outside applicants. See, for example, National Federation of Federal Employees, Local 1332 and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia, 6 FLRA 361 (1981), finding negotiable the first sentence of Proposal IV. We do not need to reach the issue of a compelling need for the Agency's regulation. VIII. Proposal 6 Article XI -- Tours of Duty Section 16. Relief p.m. and night duty will be distributed as equitably as possible. Every consideration will be given to a nurse's desire to relieve exclusively on either the p.m. or night tour of duty, among staff nurses, provided that skills, qualifications and performance meet the needs of the assigned area. (Underscored portion of section is at issue.) A. Positions of the Parties The Agency contends that Proposal 6 violates its rights under section 7106(a)(2)(A) and (B) of the Statute to assign employees and assign work. The Union disputes the Agency's contentions and argues that Proposal 6(1) is a negotiable procedure, and (2) establishes a general standard by which the Agency's application of performance standards to employees could be evaluated in a subsequent grievance. B. Analysis and Conclusions We find that this proposal constitutes a negotiable procedure by which the Agency will exercise its right to assign work. Proposal 6 is to the same effect as the second paragraph of the proposal in Association of Civilian Technicians and State of Georgia National Guard, 2 FLRA 580, 583-85 (1980), which the Authority found within the duty to bargain. The proposal in Association of Civilian Technicians provided that general cleanup duties were to be assigned on an equitable basis. The Authority found that the proposal was a procedure to ensure fairness and equity in the assignment of duties and was not concerned with whether employees will or will not be required to perform such duties. Similarly, the Agency has not shown that the proposal here would prevent it from assigning relief p.m. and night duty to nurses. Rather, the proposal provides that, once the Agency has decided to assign such duties to nurses, such assignments will be made in a fair and equitable manner. Additionally, the Agency has not demonstrated that the proposal concerns its right to assign employees. Consequently, for the reasons set forth more fully in Association of Civilian Technicians, Proposal 6 is within the duty to bargain. IX. Order The Union's petition for review as to Proposals 2, 4, and 5 is dismissed. The Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning Proposals 1, 3, and 6. /5/ Issued, Washington, D.C., February 20, 1987. /s/ Jerry L.Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) In its response to the Agency's motion, the Union in this case requested that the Authority hold an oral argument concerning the threshold issue in these cases. We find, however, that the issue may be resolved based on the parties' written submissions and that oral argument is unnecessary. Accordingly, the Union's request is denied. (2) See, for example, Memorandum of Petitioner in Support of Petition for Review (Case Nos. 0-NG-1209 and 0-NG-1224) at 10-27; New York State Nurses Association Response to Veterans Administration Position Statement (Case No. 0-NG-1187) at 7-12; Memorandum of Petitioner in Support of Petition for Review (Case No. 0-NG-1104) at 5-42. (3) We note that our predecessor agency, the Federal Labor Relations Council, had not interpreted section 4108 as barring collective bargaining on a range of subjects under Executive Order 11491. See American Federation of Government Employees, Local 1739 and Veterans Administration Hospital, Salem, VA, 6 FLRC 208 (1978). See also Memorandum Opinion No. 79-11, 3 Op. Off. Legal Counsel 74 (1979). (4) Our decision that Proposal 1 is negotiable is based on an interpretation of the language of the proposal to exclude matters covered by appeals procedures established under 38 U.S.C. Section 4110. See our discussion of VA Minneapolis and VA Northport at pp. 2-3 above. (5) In finding these proposals to be within the duty to bargain, we make no judgment as to their merits. APPENDIX Union Proposal 1 Article X -- Grievances and Arbitration Procedures Section 1. Grievances, within the meaning of the Article, include any dispute over the interpretation or application of this Agreement. This Article does not cover any other matters, including matters for which statutory appeals exist, and shall be the exclusive procedure available to the parties and the employees in the Unit for resolving such grievances. It is understood that grievances on matters other than the interpretation or application of the Agreement may be processed under any procedure available for the purpose. Where the parties have decided, for purpose of information, understanding, or otherwise, to incorporate in this Agreement by paraphrase reference or repetition, provisions of law or higher level policies or regulations, such provisions will not be within the scope of this Article. Section 2. Every attempt will be made by nurses, the Association, and the Hospital to adjust grievances informally and promptly as close to the source of the grievances as possible in the interest of sound employee-management relations and the mission of the Hospital. The parties agree to make every effort to produce all the facts in relation to the grievances at the first step. Section 3. Employee representative under this Article is the Association or someone approved by the Association. If there is a formal grievance hearing for a registered nurse in the Unit and the Association is not chosen by the grievant as his representative, the Hospital will notify the Association so that an observer may be present if the Association desires. Section 4. The procedure and time limits shall be as follows: Step One (a) An employee, or group of employees covered by this Agreement may present a grievance verbally to the grievant's immediate supervisor. (b) The supervisor will discuss the grievance in private, in good faith, and after full and fair consideration of all the facts, will attempt to resolve the issue. (c) The request for such informal adjustment must be made as soon as possible after the event has occurred or after the grievant(s) has become aware of the event that gave rise to the grievance, but in no case later than five (5) calendar days after the incident or circumstances occurred about which he is concerned. (d) The supervisor will render a decision verbally to the grievant(s) within five (5) calendar days following the discussion. Step Two (a) If the grievant(s) is not satisfied with the results obtained in Step One, and desires to pursue the grievance further, the grievant(s) may request that the Association assist him in filing with the Chief of Service a formal written grievance on his behalf. Such formal written grievance must be filed within ten (10) calendar days after receipt of the decision in Step One. (b) If such grievance is filed, the Chief of Service, or his designee, shall meet within ten (10) calendar days with the grievant(s) and the Association may have an individual designated by the Association present. After consideration of all facts, the Chief of Service shall render a decision in writing within ten (10) calendar days following the discussion. Step Three (a) If the decision of the Chief of Service is unacceptable to the grievant(s), the grievance may be appealed through the Personnel Officer to the Hospital Director within fifteen (15) calendar days after receipt of the decision in Step Two. (b) If such appeal is filed, the Hospital Director or his designee shall meet promptly with the grievant(s) and their representative, if any. He shall render his decision, in writing, within ten (10) calendar days after close of the grievance conference. Section 5. If the decision of the Hospital Director or his designee does not resolve the grievance to the satisfaction of the grievant(s) involved, the Association may submit the issue in dispute to arbitration. Either party may take a case to arbitration and the other party will be advised. Section 6. Arbitration shall extend to grievances over the interpretation or application of this Agreement, but may not extend to other matters. The following procedures shall apply to arbitration: (a) The request for arbitration shall be in writing and shall be submitted to the Hospital within fifteen (15) calendar days of receipt of the decision of the Hospital Director. If the Hospital desires arbitration of a dispute it shall notify the Association Chairman in writing within 15 days after receipt of appeal filed in Section 4. (b) If no agreement is made within ten (10) administrative work days after receipt of request for arbitration, the parties shall jointly request the Federal Mediation and Conciliation Service to submit a list of five (5) names from which the impartial arbitrator shall be selected in the following manner. The order of striking names shall be determined by lot. Each side shall alternate striking one name from the list and the name shall be selected and the FMCS shall be promptly notified of his selection. (c) The arbitrator shall conduct a hearing at which the Association and the Hospital will be permitted to be represented by counsel, present evidence, examine, and cross-examine witnesses, present argument and otherwise participate in a full and fair hearing on the issues in dispute, subject to arbitrator's judgment. (d) (Withdrawn by Union.) Section 7. All time limits specified in this Article over which the parties have control may be extended by mutual agreement of the parties. Section 8. The Hospital agrees that the Association representative designated to represent Unit members in Step One, Two, and Three of the grievance procedure shall be permitted a reasonable amount of time to consult and prepare the grievance during on-duty hours. Such consultations shall be arranged with notification and approval of the respective supervisors and shall not interfere with work responsibilities of the nurses involved. Section 9. All expenses of arbitration, including the compensation and expenses of the arbitrator but excluding the counsel fees and other expenses incurred by a party in the preparation and presentation of its case, will be equally shared by the Hospital and the Association.