27:0159(31)CA - VA, Washington, DC and NFFE -- 1987 FLRAdec CA
[ v27 p159 ]
27:0159(31)CA
The decision of the Authority follows:
27 FLRA No. 31
VETERANS ADMINISTRATION
WASHINGTON, D.C.
Respondent
and
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, INDEPENDENT
Charging Party
Case No. 3-CA-50147
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice base is before the Authority on exceptions
filed by the Respondent to the attached decision of the Administrative
Law Judge. The General Counsel and the Charging Party (the Union) filed
oppositions to the Respondent's exceptions. /*/ The complaint alleged
that the Respondent violated section 7116(a)(1), (5) and (8) of the
Federal Service Labor-Management Relations Statute (the Statute) by
failing and refusing to afford the Union adequate prior notice and an
opportunity to consult regarding a decision to withhold a comparability
pay increase from employees for whom the Union held national
consultation rights (NCR) under section 7113 of the Statute. For the
reasons stated below, we find that the Respondent violated section
7116(a)(1), (5) and (8) of the Statute as alleged.
II. Background
The Union holds national consultation rights under section 7113 of
the Statute for some of the Respondent's employees, including nurses and
other employees who provide direct patient care services or services
related to direct patient care, and who are paid pursuant to Title 38 of
the United States Code, specifically 38 U.S.C. Section 4107. Under
section 4107(g) of Title 38, as amended in 1980, the Administrator of
the Veterans Administration (VA) may adjust the pay of nurses when
necessary in order to match the pay of similar employees outside the VA
to achieve adequate staffing at particular facilities, or to recruit
personnel with specialized skills.
Since the amendment of Title 38 in 1980, and for about 10 years
before that, nurses had received the annual comparability wage increases
granted to federal employees. The Respondent's policy of automatically
granting nurses any annual comparability increase was reflected in its
December 1983 administrative manual. The manual provided that the
general pay increase would be passed on to special rate employees, that
is, employees paid under 38 U.S.C. Section 4107(g), on the effective
date of the increase.
On December 28, 1984, the Respondent notified the Union that nurses
would not receive the Government-wide comparability wage increase
scheduled to take effect on January 6, 1985, and that the Respondent's
administrative manual had been amended to provide that any revision of
general schedule pay would no longer have any effect on pay rates under
38 U.S.C. Section 4107(g). Previously, the Respondent had normally
provided the Union with at least 30 days notice of changes in personnel
practices and conditions of employment for national consultation
purposes.
The Union official responsible for handling NCR matters did not
return to work until January 6, 1985. On January 7, she advised the
Respondent that the Union wanted to exercise its consultation rights
regarding the decision to withhold the pay increase prior to the
decision taking effect or the Union would consider the change an unfair
labor practice. The Respondent informed the Union that it had no
obligation to consult on the substance of its decision, but that it
would consider Union comments on the impact and implementation of the
decision. The Union indicated that it wanted to consult on the decision
itself and did not submit any comments regarding impact and
implementation.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent failed to provide the Union
with its national consultation rights as required by section 7113 of the
Statute and thereby violated section 7116(a)(1), (5) and (8) of the
Statute. In reaching that conclusion, the Judge found, contrary to the
Respondent's position, that the decision to withhold the 1985
comparability increase for nurses concerned a condition of employment
within the meaning of section 7103(a)(14) of the Statute. The Judge
found that while the basic compensation of nurses is provided for in
title 38, the Administrator of the VA is authorized to modify those
rates within the guidelines set forth in 38 U.S.C. Section 4107(g). The
Judge further found that the Administrator was vested with substantial
discretion in increasing the basic pay rates for nurses. The Judge
therefore rejected the Respondent's argument that the decision to
withhold the nurses' pay increase was required by section 4107(g) and
that the Administrator was without discretion to do otherwise.
The Judge also rejected the Respondent's argument that decisions
concerning the adjustment of pay rates under section 4107(g) were within
the exclusive authority of the Administrator and, therefore, that the
authority may be exercised without regard for any provisions of the
Federal Service Labor-Management Relations Statute. Additionally, the
Judge rejected the Respondent's contentions that consulting on the
withholding of the pay increase would interfere with its rights under
section 7106 of the Statute to determine its budget and staffing
patterns.
As to the Respondent's argument that there was no change because the
pay of employees was not changed or decreased, the Judge found that the
Respondent's established practice prior to January 1985 was to
automatically grant the yearly Government-wide comparability pay
increase to nurses and that the decision not to grant the nurses the
1985 increase was a substantive change in a condition of the nurses'
employment.
The Judge also rejected the Respondent's assertion that the Union was
afforded sufficient time to consult on the matter but failed to submit
any comments. The Judge determined that the Respondent's decision was
made prior to notifying the Union and that the Union was not given any
opportunity to consult before the Respondent finalized its decision.
The Judge found that when the Union was notified of the decision on
December 28, 1984, the decision, which was effected by the Respondent's
amendment of the administrative manual and notification to the managers
of the change, had already been made. The Judge therefore concluded
that the Respondent had committed an unfair labor practice, as alleged
by the General Counsel, by failing to afford the Union an opportunity to
consult concerning the change. However, the Judge also concluded,
contrary to the General Counsel, that the Respondent had afforded the
Union an adequate opportunity to consult regarding the impact and
implementation of the decision.
IV. Positions of the Parties
The Respondent first contends that its decision not to grant the
annual comparability pay increase to nurses covered by 38 U.S.C. Section
4107(g) did not give rise to an obligation to consult with the Union
under section 7113 of the Statute. In support of that contention, the
Respondent in essence argues that the decision had little effect on the
Union because of the number of nurses represented by the Union in
comparison to the total number of nurses covered by section 4107(g).
Additionally, the Respondent argues that the Judge erred in
concluding that the Respondent was required to consult with the Union
concerning the decision not to grant the comparability wage increase to
nurses. The Respondent contends that section 7113(b) of the Statute
only requires that an agency must consult concerning changes in
"conditions of employment" and that in defining that term, section
7103(a)(14) of the Statute excludes matters which are "specifically
provided for by Federal statute." The Respondent maintains that since
nurses' pay is provided for by 38 U.S.C. Section 4107(g) and the VA
Administrator had no discretion under that provision to increase their
pay, the comparability increase is not a condition of employment.
Further with regard to the question of the Administrator's discretion,
the Respondent argues that section 4107(g) empowers the Administrator to
increase the pay rates of covered employees only if an increase is
necessary to recruit or retain such employees. The Respondent argues
that the statutory requirements for a pay increase for the nurses were
not met in this case and that the Administrator therefore had no
discretion to grant them an increase.
Additionally, the Respondent contends that pay adjustments under
section 4107(g) are committed to the exclusive authority of the
Administrator of the VA and that the Union had no right to be included
in the decision-making process. The Respondent also argues that the
Administrator's authority is an integral part of the exclusive personnel
system established for Title 38 employees. The Respondent maintains
that personnel matters and working conditions of Title 38 employees are
within the exclusive authority of the Respondent and that allowing the
Union to consult on pay adjustments under 38 U.S.C. Section 4107(g)
would compromise the Title 38 personnel system.
The Respondent further contends that there was no change in the
conditions of employment of the affected employees because their basic
salary rates did not change. The Respondent also argues that there was
no change in the past practice of determining whether to grant the
affected employees the annual comparability increase. The Respondent
reiterates its argument that its practice was to make the determination
in a yearly review process. The Respondent maintains that the practice
was not changed; only the result of the annual review was different.
Finally, the Respondent contends that it did not violate the Union's
national consultation rights because the Union did not submit any
proposals, but rather, decided to file an unfair labor practice charge.
The Respondent argues that the decision to withhold the pay increase had
to be implemented on January 6, 1985, and that it notified the Union as
soon as the decision was made. The Respondent asserts that the Union
waived its rights to consult on the impact and implementation of the
decision when it chose to challenge the Respondent's position that it
was not required to consult on the substance of the pay determination
rather than submitting any proposals concerning the impact and
implementation of the determination. The Agency maintains that its
actions did not constitute an unfair labor practice.
The General Counsel contends that the Judge correctly concluded that
the Respondent's established practice prior to January 1985 was to
automatically grant comparability increases to the affected employees
and that the decision not to grant them the January 1985 increase
constituted a substantive change in a condition of employment. The
General Counsel argues that the record does not support the Respondent's
argument that previous increases occurred as a result of a yearly review
process. The General Counsel also contends that the Respondent
implemented the change in conditions of employment without affording the
Union time to present its views and recommendations in accordance with
section 7113 of the Statute. The General Counsel argues that the record
supports the Judge's findings that the Respondent's decision was made
prior to notifying the Union and that there was a past practice for the
Respondent to provide the Union with 30 days notice of proposed changes
in conditions of employment for NCR purposes.
In its opposition to the Respondent's exceptions, the Union contends
that the Judge properly found that the Respondent changed a condition of
employment. The Union argues that annual comparability increases are
not specifically provided by 38 U.S.C. Section 4107(g) and that section
4107(g) provides substantial discretion to the VA Administrator in pay
matters. The Union also contends that 38 U.S.C. Section 4107(g) does
not exempt the Respondent from its obligation to consult under section
7113 of the Statute. The Union notes that the Respondent's
administrative manual required that any Government-wide comparability
pay increase would automatically be passed on nurses. The Union argues
that the Respondent's decision to amend that regulation and not grant
the employees the 1985 increase without consulting with the Union was an
unfair labor practice. The Union further contends that the Respondent's
argument that it did not violate the Union's national consultation
rights because the Union did not submit any proposals is without merit.
The Union maintains that the Judge correctly found that on December 28,
1984, the Union was notified of a decision, not a proposed change. The
Union notes that the parties stipulated that the Union had national
consultation rights under section 7113 of the Statute and that merely
informing the Union of a decision does not meet the requirements of that
provision.
V. Analysis
Section 7113(b) of the Statute requires an agency to inform a labor
organization with national consultation rights of any substantive
changes in conditions of employment proposed by the agency and to
provide the labor organization with reasonable time to present its views
and recommendations regarding the changes and to consider such views and
recommendations before taking final action.
In order for the consultation obligation set forth in section 7113(b)
of the Statute to apply, there must be a substantive change in
conditions of employment. See General Services Administration, 6 FLRA
430 (1981); National Guard Bureau, 22 FLRA No. 90 (1986). Section
7103(a)(14) defines conditions of employment as "personnel policies,
practices, and matters, whether established by rule, regulation or
otherwise, affecting working conditions . . . ."
In this case, it is clear that the Respondent's decision to deny
nurses the 1985 comparability pay increase was a change in a personnel
policy and practice of automatically granting them the annual
Government-wide increase. We agree with the Judge that the record
establishes that the Respondent's practice for 3 years under Title 38,
as amended in 1980, and for a longer period prior to 1980, was to
automatically pass on any comparability pay increase to its nurses.
Moreover, the Respondent's practice was clearly established as a
published policy in its 1983 administrative manual. This situation is
therefore distinguishable from that in Office of Personnel Management
and National Federation of Federal Employees, 18 FLRA 659 (1985), where
the Authority found that the agency was not required to consult with the
union under section 7116(d) of the Statute when it issued an installment
to the Federal Personnel Manual (FPM). The Authority concluded in that
case that the FPM installment merely restated the provisions of
applicable regulations and did not effect a substantive change in
conditions of employment.
Additionally, we find, in agreement with the Judge that while the
basic compensation for nurses is provided for in Title 38, comparability
pay increases are not specifically provided for and, further, the
Respondent has substantial discretion under 38 U.S.C. Section 4107(g) to
adjust the pay of nurses. In agreement with the Judge, we also reject
the Respondent's arguments that the decision to withhold the 1985
increase was required by section 4107(g) and that the Respondent was
without discretion to do otherwise.
We therefore agree with the Judge's conclusion that automatically
granting annual comparability pay increases to nurses had become a
condition of employment. We conclude, therefore, that the Respondent
was obligated to consult with the Union concerning its substantive
change in that condition of employment. In reaching that conclusion, we
reject as without merit the Respondent's argument that it was not
required to consult because the change would have only a minimal impact
on the Union. It is undisputed that the Union had national consultation
rights under section 7113 of the Statute. The Respondent was not
relieved of its concomitant responsibilities under that provision
because of the asserted extent of impact of the change on the Union.
We also reject as without merit the Respondent's arguments that since
any determination concerning nurses' pay was within the exclusive
authority of the Respondent under the Title 38 personnel system, it
could act without regard for provisions of the Federal Service
Labor-Management Relations Statute, and that allowing the Union to
consult on the pay determination in this case would compromise the Title
38 system. In Colorado Nurses Association and Veterans Administration
Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987), petition for
review filed, No. 87-1104 (D.C. Cir. Feb. 25, 1987), we specifically
held that Title 38 employees are covered by the Statute. We determined
that no conflict exists between the provisions of Title 38 and the
provisions of the Statute, except with regard to disciplinary and
adverse actions for alleged professional inaptitude, inefficiency, or
misconduct by Title 38 employees. Slip op. at 4-8. Since the dispute
in this case concerns a failure to consult regarding a change in the
Respondent's pay policy and practice there is no conflict between the
Respondent's authority under Title 38 and its obligation to consult with
the Union under the Statute.
Since the Union had national consultation rights under section
7113(b) of the Statute, the Respondent was obligated to comply with that
provision prior to changing the policy and practice of automatically
granting nurses the annual Government-wide comparability pay increase.
The Respondent was required to notify the Union of its intention to
change that condition of employment and provide the Union with the
opportunity to present its views and recommendations before finalizing
its decision. The Respondent failed to do so. The Respondent presented
the Union with a decision and denied the Union any opportunity to
formulate and present views and recommendations for consultation with
the Respondent. Therefore, we conclude that the Respondent failed to
comply with section 7113(b) of the Statute. Under these circumstances,
and noting that section 7113 establishes a labor organization's right
simply "to present its views and recommendations regarding the changes"
in conditions of employment proposed by the agency, we do not find any
basis for distinguishing consultation regarding the substance of the
change and consultation on the impact and implementation of the change.
We therefore do not adopt the Judge's holdings regarding the Union's
right to consult on the impact and implementation of the change. In
addition, our decision should not be construed to make any ruling
regarding rights to negotiate impact and implementation matters flowing
from the change. That issue was not presented to or decided by the
Judge.
VI. Conclusion
We conclude that the Respondent failed to fulfill its obligation to
consult with the Union pursuant to section 7113(b) of the Statute prior
to notifying the Union of its decision not to grant nurses the 1985
Government-wide comparability pay increase. By so doing, the Respondent
violated section 7116(a)(1), (5) and (8) of the Statute.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Authority and section 7118 of the Statute, the Veterans Administration
shall:
1. Cease and desist from:
(a) Failing to timely inform the National Federation of Federal
Employees (NFFE), pursuant to NFFE's national consultation rights under
section 7113 of the Statute, of proposed substantive changes in
conditions of employment, and failing to provide NFFE with a reasonable
period of time to present its views and recommendations regarding the
proposed changes.
(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) Provide the National Federation of Federal Employees, pursuant to
its national consultation rights under section 7113 of the Statute, a
reasonable period of time to present its views and recommendations
concerning the determination not to grant nurses the comparability wage
increase granted to other government employees as of January 6, 1985,
including any views and recommendations concerning retroactively
granting such increase; and thereafter, comply with the requirements of
section 7113(b)(2) of the Statute.
(b) Post at all of its facilities where unit employees are located
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 Administrator 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 said
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, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with this Order.
Issued, Washington, D.C., May 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to timely inform the National Federation of Federal
Employees, pursuant to NFFE's national consultation rights under section
7113 of the Statute, of proposed substantive changes in conditions of
employment, and to provide NFFE with a reasonable period of time to
present its views and recommendations regarding the proposed changes.
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
Statute.
WE WILL provide the National Federation of Federal Employees,
pursuant to its national consultation rights under section 7113 of the
Statute, a reasonable period of time to present its views and
recommendations concerning our decision not to grant nurses the
comparability wage increase granted to other Government employees as of
January 6, 1985, including NFFE's views and recommendations concerning
retroactively granting nurses the increase, and thereafter, comply with
the requirements of section 7113(b)(2) of the Statute.
(Agency)
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, Region III, Federal Labor Relations Authority, whose address
is: 1111 - 18th Street, NW., 7th Floor, P.O. Box 33758, Washington,
D.C. 20033-0758 and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-50147
VETERANS ADMINISTRATION, WASHINGTON, D.C.
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INDEPENDENT
Charging Party
Thomas J. McKeever, Jr., Esq.
For the Respondent
G. Phillip Boyer, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case arose under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101,
et. seq.
Upon an unfair labor practice charge filed by the National Federation
of Federal Employees, Independent (herein referred to as the Union)
against the Veterans Administration, Washington, D.C. (herein referred
to as Respondent or the VA), the General Counsel of the Authority, by
the Regional Director for Region III, issued a Complaint and Notice of
Hearing alleging Respondent violated the Statute by failing and refusing
to consult in good faith with the Union regarding Respondent's decision
to withhold a comparability pay increase from various employees for
which the Union held national consultation rights under section 7113 of
the Statute. /1/
A hearing on the Complaint was conducted in Washington, D.C. at which
Respondent and the General Counsel were represented by counsel and
afforded full opportunity to adduce evidence, call, examine and
cross-examine witnesses and argue orally. Briefs were filed by
Respondent, /2/ the Union and the General Counsel and have been
carefully considered.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor and from my evaluation of the evidence, I
make the following:
Findings of Fact
At all times material herein the Union has held national consultation
rights in accordance with section 7113 of the Statute for various of
Respondent's employees including various nurses and other employees
providing services related to patient care who are paid under the
provisions of 38 U.S.C. 4107(g) (herein referred to Title 38 employees).
/3/ While the rates of pay of Title 38 employees are set by that
statute, section 4107(g) of Title 38 essentially provides that
"notwithstanding any other provision of law", when the Administrator of
the Veterans Administration (the Administrator herein) determines it to
be necessary in order to obtain or retain the services of certain
employees including nurses, he may increase the authorized pay rates for
covered health personnel fields on an nationwide, local or other
geographic basis. However, such authority is granted under section
4107(g):
". . . only in order --
"(A) to provide pay in an amount competitive with, but not
exceeding, the amount of the same type of pay paid to the same
category of personnel at non-Federal facilities in the same labor
market;
"(B) to achieve adequate staffing at particular facilities; or
"(C) to recruit personnel with specialized skills, especially
those with skills which are especially difficult or demanding."
The above authority granted the Administrator under section 4107(g)
was provided pursuant to a law passed in 1980 amending Title 38. Since
that time, and indeed for at least the past ten years, nurses and nurse
anesthetists, employees encompassed under section 4107(g), received the
annual comparability wage increase granted government-wide every year
until January 1985. /4/
In the afternoon of Friday, December 28, 1984, Respondent hand
delivered to the Union correspondence which essentially notified the
Union that section 4107(g) special rate employees would not receive the
government-wide comparability wage increase scheduled to take effect
January 6, 1985. Part of the correspondence to the Union was a copy of
a telegram to Respondent's facilities modifying the agency's
administrative manual and notifying managers, inter alia, ". . . that a
general revision of the general schedule . . . will no longer have any
effect on above-minimum entrance rates or special salary rate ranges
approved under 38 U.S.C. 4107(g)". The Veterans Administration Manual,
MP-5, Part II, Chapter 3, Section D, 8 d., dated December 1983, a
revision of a prior agency regulation, essentially provided that for
nurses, nurse anesthetists and other named classifications, general pay
increases would be passed on to the special rate employees on the
effective date of the increase. According to the manual revision, that
provision was deleted and inserted in lieu thereof was, inter alia, the
statement, "A general revision of pay schedules under 5 U.S.C. 5303 will
have no effect on rates approved under this section."
According to the testimony of Howard Steinwandel, Respondent's
Director of Labor-Management Relations, on December 28, prior to
delivering the correspondence to the Union, the Union was telephoned and
told of the policy announced in the correspondence. Steinwandel
testified that the Union's response was that Elayne Tempel, a Labor
Relations Specialist for the Union who normally deals with Respondent on
matters concerning national consultation, was not present but the policy
would be conveyed to her and if the Union had any comments it would
contact Respondent.
The record reveals that Respondent normally provides the Union 30 day
notice of changes in personnel practices or conditions of employment for
national consultation purposes and Tempel testified she could recall no
instance since 1981 when less than 30 days notice was provided. /5/
However, Steinwandel testified:
"There are times that the NFFE will ask us for more time then
(sic) the 30-days that we've given them; and there are times when
we ask them to review the documents in less time. Even in those
instances when in the letter we say that there is 30-days, there
are times when we call the union in advance of that 30-days and
ask for their comments . . ." /6/
Tempel testified she was not present in the Union office from
December 28, 1984 until Monday, January 7, 1985. On January 7, she
telephoned Al Wagner, Respondent's Labor Relations Specialist with whom
Tempel dealt on matters involving national consultation rights, and
advised him that unless the Union was given an opportunity to respond or
comment on the substance of the change prior to it taking effect, she
would consider the change to constitute an unfair labor practice.
Wagner indicated he'd "get back" to Tempel but did not. On that same
day, or the following day, Tempel had a telephone conversation with
Director of Labor-Management Relations Steinwandel. During their
conversation Steinwandel took the position that Respondent had no
obligation to consult on the decision to not grant the comparability
wage increase but he would entertain comments on impact and
implementation since the decision would not impact on employees until
paychecks were distributed on January 29, 1985. /7/ Tempel indicated
the Union wished to consult on the substance of the decision and was not
interested in consulting on impact and implementation. Tempel also
indicated that she considered Respondent's actions to constitute an
unfair labor practice.
A 3.5 percent government-wide comparability wage increase became
effective on January 6, 1985 and Title 38 employees, of whom 5 to 6,000
were in the collective bargaining unit, did not receive the increase.
/8/
With regard to the decision not to grant Title 38 employees the
comparability wage increase, Respondent's Director of Salary and Wage
Administration, Charles Kelley, testified that between mid-October and
mid-November 1984 his office began to receive data which brought into
question the need to continue passing on the general comparability wage
increase to nurses. Kelley testified that this information was
ultimately "passed on" through his supervisor to the Administrator "the
day before or the same day" the Administrator concluded that the 3.5
percent government-wide comparability wage increase effective in January
1985 would not be granted to nurses and nurse anesthetists. /9/
Although neither the Administrator nor anyone privy to what the
Administrator specifically considered in coming to his decision
testified at the hearing, a letter in response to an inquiry by
Honorable Alan Cranston, Ranking Minority Member, Committee on Veterans
Affairs, United States Senate, signed by the Administrator, stated,
inter alia: /10/
"The Veterans Administration (VA) reviewed its policy of
automatically passing on Federal comparability pay increases to
nurses receiving special salary rates authorized under 38 United
States Code 4107(g). There was concern that our policy of
automatically passing on the increases, without fully justifying
them based on actual pay-related staffing needs, was not in
compliance with the intent of the law . . . .
"We concluded that our practice could, in certain instances,
result in the VA paying nurses rates which exceed the competitive
levels paid to nurses in the community. This concern became
greater as the changing local and national patterns of employment
in both the Federal and non-Federal sectors continued. There were
clear indications that the severe national nurse shortage had
abated and private sector salary increases had moderated.
"After a briefing by my top staff and after carefully
considering all factors, including potential employee morale
problems, I determined that it was inappropriate to annually
increase nurse special rates automatically without examining the
continued need and justification for them. This decision was
concurred in by the Office of the General Counsel. The policy
change was implemented on December 27, 1984, and resulted in the
exclusion of nurses being paid special rates from receiving the
3.5 percent comparability increase effective January 1985."
The Administrator's letter further stated, inter alia:
A full-scale review of all nurse special rate authorizations is
now being expedited in Central Office to assure that salary rates
are sufficient for maintaining well-qualified nurse staffing
levels. In the review process, increases will only be granted if
there is evidence of specific pay-related staffing problems.
Decreases in special rates will be made in those situations where
data submitted show that VA rates are higher then surveyed
community rates. Terminations of special rates, generally, are
being made at the specific request of a Medical Center. The
initial evaluation has already been completed on over 100 of the
115 current nurse authorizations with staff recommendations for
approximately 26 percent of the authorizations to be increased, 63
percent to continue at current rates, 4 percent to be decreased,
and 7 percent to be terminated. Final action on each
authorization has already been or shortly will be determined by
the Chief Medical Director. Current plans call for completion of
the review by mid-April 1985. /11/
"The special rate review of the VA's General Schedule
health-care authorizations has been completed. Results of the
review included 30 special rate authorizations increased, 61
continued at current rates, and 4 terminated. Twelve of the
increased authorizations are subject to up to a 90-day Office of
Personnel Management review before the rates may become effective.
"Veterans Administration policy provides that where special
rates for either nurses or General Schedule health-care
occupations are decreased or terminated, employees on the rolls
shall not have their pay reduced; the reduced rates apply only to
new hires.
"Any increases resulting from either review will have
prospective effect only. 38 United States Code 4107(g) does not
provide specific authority to adjust rates of basic pay on a
retroactive basis. The Comptroller General has ruled in several
decisions that increases in basic pay resulting from
administrative action may not have retroactive effect unless
expressly authorized by statute."
Supplemental Findings, Discussion and Conclusions
The General Counsel and the Union essentially contend that
Respondent's December 28, 1984 decision to withhold the 1985
government-wide comparability wage increase constituted a substantive
change in an established condition of employment and therefore, there
was a duty to consult with the Union on the decision pursuant to section
7113 of the Statute and Respondent failed to provide the Union
reasonable time to present its views and recommendations prior to
implementation of the change. The Union further urges that an
appropriate remedy herein should include a back-pay order.
Respondent contends it was under no obligation to consult with the
Union concerning the decision to withhold the comparability wage
increase since the decision concerned a matter specifically provided for
by law and under section 7103(a)(14)(C) of the Statute, the decision did
not concern a "condition of employment"; the decision not to grant the
comparability increase was required by the terms of 38 U.S.C. 4107(g)
and the Administrator was without discretion to do otherwise; the
decision involved a subject which directly affected the agency's budget
and had a significant effect on staffing, matters concerning which
Respondent under section 7106 of the Statute is not obligated to consult
with a labor organization before acting; no employee's pay was
decreased or changed; the Union was provided sufficient notice to
consult; and the Union waived its right to consultation when it failed
to make any proposals. Respondent also argues that any award for
backpay would violate the "but for" requirement of the Back Pay Act, 5
U.S.C. Section 5596.
Section 7103(a)(14)(C) of the Statute states:
"'conditions of employment' means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions, except that such term
does not include policies, practices, and matters --
. . . . .
"(C) to the extent such matters are specifically provided for
by statute . . ."
It is true that the basic compensation of nurses is specifically
provided for by a statute, 38 U.S.C. Section 4107, and that basic
compensation set forth might not normally be a condition of employment
within the meaning of section 7103(a)(14)(C) of the Statute. Cf.
National Treasury Employees Union and Pension Benefit Guarantee
Corporation, 9 FLRA 672 (1982). However, the Administrator is
authorized by Title 38 to modify those rates, albeit within the
guidelines enumerated in section 4801(g) of Title 38, i.e., in order to
provide pay competitive with non-Federal facilities in the same labor
market; to achieve adequate staffing at particular facilities; or to
recruit personnel with specialized, difficult or demanding skills. It
would appear therefore that with regard to increasing the basic rates of
nurses, the Administrator is vested with substantial discretion since
the guidelines set forth in 4801(g), above, embrace numerous significant
non-quantitative terms requiring the exercise of subjective judgment.
For example, the Administrator must ascertain what is an "amount
competitive" with pay at non-Federal facilities; what constitutes the
"same labor market"; what constitutes "adequate" staffing; and what
skills are "specialized" and "especially difficult and demanding".
Accordingly I reject Respondent's argument that since the Administrator
is constrained by the express criteria set forth in section 4107(g), he
has no discretion in this matter.
The legislative history of the Statute addresses the element of
agency discretion when determining whether a Federal statute exists
within the meaning of section 7103(a)(14)(C) of the Statute.
Congressman William Clay had the following comments to make regarding
this matter:
"Section 7103(a)(14)(D), /12/ removing from subjects of
bargaining those matters specifically provided for by Federal
statute, was adopted by the committee and retained in the Udall
substitute with the clear understanding that only matters
specifically provided for by statute would be excluded under this
subsection. Thus, where a statute merely vests authority over a
particular subject with an agency official with the official given
discretion in exercising the authority, the particular subject is
not excluded by this subsection from the duty to bargain over
conditions of employment." /13/
Congressman Morris K. Udall, expressed a similar understanding,
stating:
"Section 7103(a)(14)(D) removes from the definition of
'conditions of employment' those policies, practices and matters
to the extent such matters are specifically provided for by
Federal statute. The committee print of title VII contained the
word 'specifically', also found in the compromise version, in
order to clarify the intention of the committee on the scope of
this exception to condition of employment. Where a Federal
Statute specifically establishes procedures and standards for a
condition of employment, section 7103(a)(14)(D) bars negotiations
in contravention of those procedures and standards. On the other
hand, where a statute merely provides particular authority for an
agency official (with that authority to be exercised at the
official's discretion and in such manner as the official deems
appropriate), that authority and its exercise is not included
within the definition in section 7103(a)(14)(D) because it is not
'specifically provided for by Federal statute.'" /14/
On numerous occasions the Authority has applied the test of
discretion in deciding negotiability issues and held that although
limited by statute or regulation, a matter is within the duty to bargain
to the extent an agency has discretion with respect to a matter
affecting the working conditions of its employees. Fort Bragg Unit of
North Carolina Association of Educators, National Education Association,
12 FLRA 519 (1983) and cases cited therein; National Treasury Employees
Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
769 (1980); and Defense Contract Administration Services Region,
Boston, Massachusetts, et al., 15 FLRA No. 143 (1984). Thus it is clear
that where, as herein, an agency has discretion in the decision and
manner of effectuating a pay increase under a statute, the "Federal
statute" does not serve to remove the matter from being a "condition of
employment" within the meaning of the Statute. Accordingly, based upon
the foregoing and in view of my evaluation of the extent of the
Administrator's discretion under 38 U.S.C. 4107(g), I conclude the
decision to withhold the 1985 comparability wage increase from nurses
concerned a "condition of employment" over which the Administrator had
discretion within the meaning of the Statute.
Respondent contends that the adjustment of pay rates under 38 U.S.C.
Section 4107(g) is committed to the sole discretion of the Administrator
and such discretion may be exercised without regard to the obligations
imposed by the Federal Labor-Management Relations Statute. Counsel for
Respondent relies on the introductory language of section 4107(g)(1)
which states "Notwithstanding any other provision of law . . ." to
support this position and argues:
". . . this authority is an integral part of the exclusive
personnel system established by Congress for VA health care
professional(s) in chapter 73 of title 38, United States Code.
Under that exclusive system, personnel matters and working
conditions, including pay matters, are within the exclusive
authority of the Veterans Administration. See also VA Medical
Center, Northport, New York v. FLRA, 732 F.2d 1128 (2d Cir. 1984);
VA Medical Center, Minneapolis, Minnesota v. FLRA, 705 F. 2d 953
(8th Cir. 1983)."
To begin, the cases cited by counsel for Respondent do not support
his position. Indeed, in VA Medical Center, Northport, the Court
stated: "The VA concedes that, pursuant to the Civil Service Reform
Act, it must bargain collectively with its DM&S (Department of Medicine
and Surgery) personnel." In VA Medical Center, Minneapolis, the Court
stated: "The Veterans Administration does not dispute the proposition
that DM&S professionals are generally covered by the Civil Service
Reform Act."
Moreover, the legislative history of section 4107(g) is contrary to
Respondent's position. Thus, the Senate Report of May 15, 1980
accompanying S. 2534 states:
"In the area of pay for nursing personnel, including both basic
pay and additional pay for work outside of the normal workday or
work week, such as overtime work or work on a Sunday or holiday,
the Committee bill, in provisions in section 104, would give the
Administrator new authority to modify such rates of pay. With
reference of basic pay, the new authority would give the
Administrator the ability, after such consultation with exclusive
representatives of the employees in appropriate collective
bargaining units in a facility as is required under applicable
collective bargaining agreement, to modify minimum, intermediate,
and maximum rates of pay for nursing and other title 38
health-care personnel . . ." /15/
Although the precise language used in the Senate bill was not
included in the statute which was enacted, the Explanatory Statement of
Compromise Agreement on H.R. 7102/S. 2534 of July 31, 1980 contains the
following statement:
"The Committees note that sections 104, 110, and 111 of the
Senate amendment contained provisions requiring "such
consultation" with exclusive representatives of employees "as
required under any applicable collective bargaining agreements" as
part of various amendments made by those sections relating to
personnel issues. These provisions for such consultation are not
included in the relevant sections of the compromise agreement.
"It was the Senate's intention, as expressed in the Senate
Committee report, in including the consultation provisions to
assure that nothing in the bill could be construed as negating
recognized collective bargaining rights, including consultation
rights. Those provisions are not included in the compromise bill
in recognition of the Committee's agreement that such a specific
reference to such rights is unnecessary and could engender
confusion. In deleting those provisions, the Committees wishes to
make clear that they do 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." /16/
Accordingly, in view of the foregoing, I conclude that the language
relied on by counsel for Respondent does not have the meaning Respondent
ascribes to it and I reject Respondent's contention. /17/
I also conclude that the obligation to consult on the decision to
discontinue automatically granting the government-wide comparability pay
raises to nurses is not inconsistent with the right of Respondent to
determine its budget under section 7106(a)(1) of the Statute. /18/ In
American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604
(1980), enforced as to other matters sub nom. Department of Defense v.
Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert.
denied, 455 U.S. 945 (1982), the Authority, when dealing with the
negotiability of a union proposal for a child care center, articulated
its view on the approach to be used when resolving an issue where
"budget" is raised as a defense. The Authority held, inter alia, at
607, 608:
"The agency next alleges that Union Proposal 1 violates the
right to determine its budget under section 7106(a)(1) of the
Statute because it would require the agency to bear the cost of
the space and facilities provided for day care center. The
underlying assumption of this position appears to be that a
proposal is inconsistent with the authority of the agency to
determine its budget within the meaning of section 7106(a)(1) if
it imposes a cost upon the agency which requires the expenditure
of appropriated agency funds. Such a construction of the Statute,
however, could preclude negotiation on virtually all otherwise
negotiable proposals, since, to one extent or another, most
proposals would have the effect of imposing costs upon the agency
which would require the expenditures of appropriated agency funds.
Nothing in the relevant legislative history indicates that
Congress intended the right of management to determine its budget
to be so inclusive as to negate in this manner the obligation to
bargain.
"There is no question but that Congress intended that any
proposal which would directly infringe on the exercise of
management rights under Section 7106 of the Statute would be
barred from negotiation. Whether a proposal directly affects the
agency's determination of its budget depends upon the definition
of "budget" as used in the Statute. The Statute and legislative
history do not contain such a definition. In the absence of a
clearly stated legislative intent, it is appropriate to give the
term its common or dictionary definition. As defined by the
dictionary, "budget" means a statement of the financial position
of a body for a definite period of time based on detailed
estimates of planned and expected expenditures during the period
and proposals for financing them. In this sense, the agency's
authority to determine its budget extends to the determination of
the program and operations which will be included in the estimate
of proposed expenditures and the determination of the amounts
required to fund them. Under the Statute, therefore, an agency
cannot be required to negotiate those particular budgetary
determinations. That is, a union proposal attempting to prescribe
the particular programs or operations the agency would include in
its budget or to prescribe the amount to be allocated in the
budget for them would infringe upon the agency's right to
determine its budget under section 7106(a)(1) of the Statute.
"Moreover, where a proposal which does not by its terms
prescribe the particular programs or amounts to be included in an
agency's budget, nevertheless is alleged to violate the agency's
right to determine its budget because of increased cost,
consideration must be given to all the factors involved. That is,
rather than basing a determination as to the negotiability of the
proposal on increased cost alone, that one factor must be weighed
against such factors as the potential for improved employee
performance, increased productivity, reduced turnover, fewer
grievances, and the like. Only where an agency makes a
substantial demonstration that an increase in costs is significant
and unavoidable and is not offset by compensating benefits can an
otherwise negotiable proposal be found to violate the agency's
right to determine its budget under section 7106(a) of the
Statute." (Footnotes omitted).
In the case herein the issue does not concern a negotiability
proposal but a right of consultation prior to implementation of an
agency decision. However, approaching the issue at bar as an analog to
a negotiability situation, using the test laid down by the Authority, I
conclude the decision not to pass on the comparability wage increase
does not affect the agency's right to determine its budget under section
7106(a) of the Statute. Thus, comparability wage increases have not
been shown to be a new item by program or amount to be included in
Respondent's budget and it does not appear that a specific budget
appropriation is necessary for the Administrator to take action under
section 4107(g) of Title 38. Rather, the Administrator's authority in
this matter was a currently existing pay practice which existed for a
number of years and statutory discretion to utilize it remains with the
Administrator. In determining whether granting the comparability
increase to nurses would involve increased cost to Respondent, as stated
by the Authority in Wright-Patterson, "consideration must be given to
all the factors involved." Further, the agency must make a substantial
demonstration that an increase in costs is significant and unavoidable
and not offset by compensating benefits. The only record fact present
in this case bearing on such consideration consists of testimony that a
pass-through of the 3.5 percent comparability wage increase would result
in a cost of six and three-quarter million dollars if given to all Title
38 employees. But the record is silent as to what the cost would amount
to regarding only those nurses for which the Union has consultation
rights, the total amount of Respondent's budget nor the cost to
Respondent of its subsequent increase in nurses' rates. In addition,
the record does not address the other factors the Authority noted in
Wright-Patterson which might satisfy Respondent's "substantial
demonstration" burden.
In view of the foregoing and considering the nature of the
obligations and limitations which attach to the right of consultation
under section 7113 of the Statute, I reject Respondent's contention that
it was not obligated to consult on the substance of its pay adjustment
determination since such a determination affects its budget. Cf. Fort
Bragg Unit of North Carolina Association of Educators, supra.
Counsel for Respondent also takes the position that a six and
three-quarter million dollar pass-through of the comparability increase
". . . would clearly have a significant effect on the VA's staffing
which is critical to its medical care mission" and accordingly,
Respondent's only obligation was to consult on the impact and
implementation of its decision. Absent record evidence and legal
argument to support this position, I reject Respondent's contention.
/19/
The record clearly establishes that Respondent's established practice
prior to January 1985 was to automatically grant the yearly
government-wide comparability increase to nurses without regard to the
specific requirements of section 4107(g) of Title 38. The record also
clearly establishes that the decision not to pass on the increase was
made prior to notifying the Union and affording it an opportunity to
request consultation on the matter as prescribed in section 7113 of the
Statute. Accordingly, I conclude that since the matter involved a
substantive change in a condition of nurses' employment and the Union
was not accorded an opportunity to consult with Respondent before it
finalized its decision which was effectuated by the manual change and
notification to managers (and the Union) on December 28, 1984,
Respondent violated section 7116(a)(1)(5) and (8) of the Statute.
National Guard Bureau, 18 FLRA No. 62 (1985); Cf. General Services
Administration, 6 FLRA 430 (1981).
Respondent takes the position that the Union was provided with
sufficient notice to consult but failed to make any proposals thereby
precluding any finding that an unfair labor practice occurred. The
first notice the Union received that section 4107(g) employees would not
receive the comparability increase was on December 28, 1984. The notice
was in the form of a copy of a telegraphic message dispatched that same
day to Respondent's managers changing Respondent's manual which, in
effect, prevented the increase from taking effect. Thus, on December 28
the Union was notified of a fait accompli. The decision had already
been made, hence a demand to consult, even if made immediately upon
being notified of the Administrator's decision, would have come
subsequent to the decision. The violation herein was Respondent's
finalizing the decision supra, prior to consultation. The Union's
failure to make proposals thereafter can have no effect on the fact that
a violation of the Statute had already occurred.
Nevertheless, I do not conclude it has been established that
Respondent violated the Statute by failing to provide the Union with
sufficient opportunity to consult on the impact and implementation of
the decision. On December 28, 1984 the Union was notified of the
decision which was to be effectuated on January 6, 1985 and on January 7
or 8, the Union clearly disavowed any desire to bargain on the impact
and implementation of the decision. In these circumstances I conclude
the Union's conduct removed this issue from consideration as an unfair
labor practice.
I further reject the Union's contention that a back-pay order would
be appropriate in this case. /20/ Since there has been no showing that
nurses would have received the comparability wage increase had the Union
been accorded consultation before the decision not to grant the increase
was put into effect, it cannot be concluded that the increase would have
been granted "but for" Respondent's conduct found herein to have
violated the Statute. Accordingly, I conclude back-pay is not warranted
herein. Social Security Administration, 16 FLRA No. 148 (1984);
Picatinny Arsenal, U.S. Army Armament Research and Development Command,
Dover, New Jersey and National Federation of Federal Employees, Local
1437, 7 FLRA 703 (1982). However, I shall recommend that Respondent be
required to consult with the Union on the decision not to grant the
January 1985 government-wide comparability wage increase, including
considering any Union views and recommendations which might be made
relative to granting retroactive effect to the January 1985
comparability increase to the extent consonant with law. Cf. Veterans
Administration, Veterans Administration Regional Office (Buffalo, New
York), 10 FLRA 167 (1982). In my view, retroactivity is not precluded
by the Authority's holding in situations involving bargaining order
cases since, in the case herein, no "impasse" resolvable by recourse to
the Federal Service Impasses Panel can occur. See Federal Aviation
Administration, Washington, D.C., 19 FLRA No. 59 (1985).
In view of the entire foregoing, I conclude Respondent, by the
conduct described herein, failed to provide the Union with consultation
rights required by section 7113 of the Statute and thereby violated
section 7116(a)(1)(5) and (8) of the Statute and recommend the Authority
issue the following:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Veterans Administration shall:
1. Cease and desist from:
(a) Failing to inform the National Federation of Federal
Employees (NFFE), pursuant to NFFE's national consultation rights
under section 7113 of the Statute, of proposed substantive changes
in conditions of employment, and failing to provide NFFE with a
reasonable period of time to present its views and recommendations
regarding the proposed change.
(b) In any like or related manner interfering with,
restraining, or coercing 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) Provide the National Federation of Federal Employees
(NFFE), pursuant to its national consultation rights under section
7113 of the Statute, a reasonable period of time to present its
views and recommendations concerning providing nurses with the
government-wide comparability wage increase effective January 6,
1985 as required by section 7113 of the Statute, including
considering any NFFE views and recommendations concerning granting
retroactive effect to the January 1985 government-wide
comparability wage increase to the extent consonant with law.
(b) Post at all of its 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 Veterans
Administration Administrator, or a designee, and shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous
places, including bulletin boards and other places where notices
to employees are customarily posted. Reasonable steps shall be
taken by the Veterans Administration to insure 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, Region III, Federal
Labor Relations Authority, in writing, within 30 days of the date
of this Order, as to what steps have been taken to comply
herewith.
/s/ SALVATORE J. ARRIGO
Administrative Law Judge
Dated: September 13, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) The Respondent also filed a motion to strike portions of the
General Counsel's opposition. The Respondent contends that the General
Counsel incorrectly asserts that the Respondent did not make certain
arguments before the Administrative Law Judge and is raising those
arguments for the first time in its exceptions. While we do not agree
with those disputed assertions of the General Counsel, we do not find a
basis for striking the assertions from the General Counsel's submission.
The Respondent's motion is therefore denied.
(1) Section 7113 provides:
"(a)(1) If, in connection with any agency, no labor
organization has been accorded exclusive recognition on an agency
basis, a labor organization which is the exclusive representative
of a substantial number of the employees of the agency, as
determined in accordance with criteria prescribed by the
Authority, shall be granted national consultation rights by the
agency. National consultation rights shall terminate when the
labor organization no longer meets the criteria prescribed by the
Authority. Any issue relating to any labor organization's
eligibility for, or continuation of, national consultation rights
shall be subject to determination by the Authority.
"(b)(1) Any labor organization having national consultation
rights in connection with any agency under subsection (a) of this
section shall --
"(A) be informed of any substantive change in conditions of
employment proposed by the agency, and
"(B) be permitted reasonable time to present its views and
recommendations regarding the changes.
"(2) If any views or recommendations are presented under
paragraph (1) of this subsection to an agency by any labor
organization --
"(A) the agency shall consider the views or recommendations
before taking final action on any matter with respect to which the
views or recommendations are presented; and
"(B) the agency shall provide the labor organization a written
statement of the reasons for taking the final action.
"(c) Nothing in this section shall be construed to limit the
right of any agency or exclusive representative to engage in
collective bargaining."
(2) Counsel for Respondent also filed an errata to the brief.
(3) Some nurses and other employees paid under this authority are not
in the bargaining unit.
(4) In addition to nurses and nurse anesthetists, Title 38 includes
two other groups of health care employees receiving special pay rates.
However, both of those groups were not brought under Title 38 authority
until sometime between March and August 1984 and had not previously
received comparability wage increases under the authority of section
4107(g). Accordingly, as acknowledged by Counsel for the General
Counsel, this case does not concern comparability pay raises for these
other health care employees.
(5) Tempel made a random examination of Union files and presented 27
examples of notices given to the Union of various proposed changes, all
of which requested Union comments "within 30 days".
(6) Steinwandel did not support his testimony with any specifics.
(7) The pay increase effective January 6 would not show up in
employees pay until January 29.
(8) Respondent employs approximately 10,000 employees whose wages are
controlled by the application of Title 38, the majority of whom are
nurses. A witness for Respondent testified that a 3.5 percent wage
increase, if granted to Title 38 special rate employees, would have cost
six and three-quarter million dollars. However, the record does not
reveal the amount of Respondent's total budget nor did the witness
testify specifically how much of the six and three-quarters million
dollars would have been passed on only to nurses and nurse anesthetists
represented by the Union, the subject of this controversy. A witness
for the General Counsel testified that approximately 5,000 employees
represented by NFFE received special rates under Title 38 but no figure
was given as to the number of nurses and nurse anesthetists within that
group.
(9) Various other unit employees encompassed within the provisions of
Section 4107(g), supra, were included in the group of employees not
granted comparability pay increases at this time.
(10) Director of Salary and Wage Administration Kelley testified that
the letter dated April 12, 1985 and received in evidence at the hearing,
represents a fair summary of the considerations which went into the
decision not to pass on the comparability increase.
(11) Testimony revealed that based upon this review, approximately
one-half of these "authorizations" were continued at their current
level; the rates to nurses in 25 or 30 "authorizations" were increased;
about 9 were decreased; and five were cancelled. However, no one then
currently employed received a rate decrease.
(12) Subsequently enacted as section 7103(a)(14)(C).
(13) Legislative History of the Federal Service Labor-Management
Relations Statute, Title VII of the Civil Service Reform Act of 1978, p.
933 (September 13, 1978).
(14) Id. at 956-957.
(15) 1980 U.S. Code Cong. & Ad. News, 2511, 2512.
(16) Id. at 2563.
(17) Although not raised by Respondent, I further conclude that
section 4119 of Title 38 is inapplicable to the matter at issue herein
in view of the above legislative history and my conclusion that the
right of consultation in this case is not inconsistent with nor does it
supercede, override or modify the Administrator's authority under
section 4107(g) of Title 38.
(18) Section 7106(a)(1) of the Statute is directed towards management
rights and provides:
"(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency --
"(1) to determine the mission, budget, organization, number of
employees, and internal security practices of the agency . . ."
(19) I similarly reject Respondent's arguments that no unfair labor
practice occurred since no employee's pay was decreased or changed. The
change herein was Respondent's failure to automatically pass through the
government-wide comparability increase which would have inured to the
benefit of Title 38 nurses represented by the Union.
(20) A full "status quo ante" remedy would be tantamount to a "back
pay" order in that reverting to conditions in existence prior to the
unlawful change, i.e., automatically passing through the comparability
increase, would have the effect of granting unit nurses the 3.5 percent
increase effective January 6, 1985.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to inform the National Federation of Federal
Employees (NFFE), pursuant to NFFE's national consultation rights under
section 7113 of the Statute, of proposed substantive changes in
conditions of employment, or fail to provide NFFE with a reasonable
period of time to present its views and recommendations regarding the
proposed changes.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Statute.
WE WILL provide the National Federation of Federal Employees (NFFE),
pursuant to its national consultation rights under section 7113 of the
Statute, a reasonable period of time to present its views and
recommendations concerning providing nurses with the government-wide
comparability wage increase effective January 6, 1985 as required by
section 7113 of the Statute, including considering any NFFE views and
recommendations concerning granting retroactive effect to the January
1985 government-wide comparability wage increase to the extent consonant
with law.
(Agency)
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 any of its provisions, they may communicate directly
with the Regional Director, Region III, Federal Labor Relations
Authority, whose address is: P.O. Box 33758, 1111 18th Street, N.W.,
7th Floor, Washington, D.C. 20033-0758, and whose telephone number is:
(202) 653-8500.