[ v27 p239 ]
27:0239(37)NG
The decision of the Authority follows:
27 FLRA No. 37
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1798
Union
and
VETERANS ADMINISTRATION
MEDICAL CENTER
MARTINSBURG, WEST VIRGINIA
Agency
Case No. 0-NG-1183
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute), and concerns the
negotiability of 12 proposals. /1/
II. Preliminary Matters
The Veterans Administration (VA or Agency) raises two common issues
with respect to the negotiability of each proposal in this case, namely
that: (1) Title 38 of the United States Code provides the Administrator
of the VA with statutory authority to regulate conditions of employment
of professional medical employees in the Department of Medicine and
Surgery (DM&S) and therefore the Agency has no duty to bargain under the
Statute; and (2) that the proposals are barred from negotiations by its
"legislative regulations" which have the force and effect of law. For
the following reasons we reject the Agency contentions.
In Colorado Nurses Association and Veterans Administration Medical
Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987), petition for review
filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C.
Cir. Feb. 25, 1987), we held that the Statute applies to DM&S employees
and that as a general matter the Agency has a duty to bargain over their
conditions of employment. /2/ In so holding, we rejected the Agency's
contentions that certain sections of Title 38 barred negotiations under
the Statute of DM&S employees' conditions of employment and that the
Agency's personnel regulations constitute "legislative regulations"
which have the force and effect of law. To the extent that similar
issues are presented here, we reaffirm our holdings for the reasons
stated in VAMC, Ft. Lyons.
In addition, since the Agency's personnel regulations apply only
within the VA itself, they are not Government-wide regulations within
the meaning of section 7117(a)(1) of the Statute. See VAMC, Ft. Lyons,
25 FLRA No. 66, slip op. at 8 (19Q7). An agency's regulation can bar
negotiations on a conflicting Union proposal, therefore, only if a
compelling need exists for that regulation under section 7117(a)(2) of
the Statute and section 2424.11 of our Regulations. In American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986),
the Authority stated that in order to show a compelling need for an
agency regulation, an agency must: (1) identify a specific agency-wide
regulation; (2) show that there is a conflict between its regulation
and the proposal; and (3) demonstrate that its regulation is supported
by a compelling need with reference to the standards in section 2424.11
of our Regulations. Although the Agency claims that the proposals in
this case conflict with its regulations, the Agency has not made any
claim of a compelling need for those regulations to bar negotiation on
any of the proposals under section 7117(a)(2). See the Appendix to this
decision for the specific regulations alleged by the Agency to bar
negotiations on the Union's proposals. Therefore, the Agency's
regulations cannot serve to bar negotiations on the proposals in this
case.
Accordingly, we find that there is no conflict between Title 38 of
the United States Code and the duty to bargain under section 7117 of the
Statute. We also find that the proposals are not barred from
negotiations under section 7117(a)(2) by agency regulations for which a
compelling need exists. To the extent that the Agency raises those same
general arguments as to each proposal at issue, we will not restate
those contentions and we will not further consider those issues. We now
turn to the specific proposals and the other issues involved in this
case.
III. Proposal 1
Section 1.
(A) An employee is accountable for the performance of official
duties and compliance with standards of conduct for Federal
employees. Within this context, the Facility affirms the right of
the employee to conduct his or her private life as he or she deems
fit. Employees shall have the right to engage in outside
activities of their own choosing without being required to report
to the Facility on such activities, except as required by law or
regulation of higher authority. The Facility will not coerce or
in any manner require employees to invest their money, donate to
charity, or participate in activities, meetings or undertaking not
related to their performance of official duties. The Facility
will in no way preclude the employee from engaging in outside
employment as long as it does not interfere with the employee's
performance of his or her duty, except as prescribed by law or
regulation.
A. Positions of the Parties
According to the Agency, this proposal provides that an employee has
an absolute right to outside employment, and thus conflicts with 38
U.S.C. Section 4108 and certain parts of the Agency's regulations which
require prior approval for all remunerated, outside, professional
activities.
The Union contends that the proposal is negotiable. The Union states
that although employees' actions in their private lives must take into
account the requirements of their official duties and compliance with
standards of conduct, it intends the proposal to require the Agency to
refrain from needlessly involving itself in the private lives of its
employees. As to the Agency's claim that its regulations and 38 U.S.C.
Section 4108 restrict certain types of outside employment or
professional activities of these employees, the Union states that the
proposal takes into account the exact concerns of the Agency. According
to the Union, the "scope of the outside activities or employment would
be in accordance with the provisions of law and . . . regulations."
Union's Response at 17.
B. Analysis and Conclusion
We disagree with the Agency's contentions. The proposal subjects an
employee's off-duty conduct to standards of conduct for Federal
employees and subjects that conduct to requirements of law and
regulation, including the Agency's internal regulations. Consistent
with the plain wording of the proposal, the Union states that "the scope
of the outside activities or employment would be in accordance with the
provisions of 38 U.S.C. Section 4108 and the prescribed regulations."
Union's Response at 17. Compare Defense Logistics Agency, Council of
AFGE Locals, AFL-CIO and Department of Defense, Defense Logistics
Agency, 24 FLRA No. 40 (1986), where a provision relating to off-duty
conduct was found to be nonnegotiable because it conflicted with
Government-wide regulations and directly interfered with management's
right to discipline by placing substantive limitations on the agency's
right to take disciplinary actions based on off-duty conduct. Here the
proposal specifically provides that outside activities shall be in
accordance with prescribed law or regulation. We therefore find
proposal 1 to be within the duty to bargain.
IV. Proposal 2
Leave. /3/
Section 1.
(A) Annual leave shall be earned in accordance with appropriate
statutes and regulations. The Facility shall urge employees to
schedule at least two consecutive weeks of vacation leave every
year in order to allow the employee rest and recreation away from
the work site. Annual leave will be scheduled at six month
increments. The first leave period will be January 1 to June 30,
and the second leave period will be July 1 to December 31.
Employees' leave requests for annual vacation purposes will be
scheduled and approved for each leave period two months prior to
the beginning of the next leave period. The scheduling of summer
vacation weeks, June 1 to August 31, and weeks containing major
holidays, New Year's, Memorial Day, Independence Day, Labor Day,
Thanksgiving and Christmas, shall be equitably distributed
consistent with provisions of Paragraph C of this section. The
Facility shall strive to allow the maximum number of employees off
for summer vacation weeks and major holiday weeks as staffing and
workload requirements permit.
(B) The employee shall be allowed annual leave as necessary for
personal emergencies and other matters. The employee requiring
emergency annual leave shall be personally responsible for
notifying his or her supervisor. This requirement may be waived
because of special or unusual circumstances that preclude such
notification. Management will make every effort to grant
emergency annual leave.
(C) If the supervisor determines that not all employees who
have indicated a preference for a given week or weeks of leave can
be excused, the conflict between employees shall be resolved by
preference being given in the following order:
(1) Whether the employee was employed by the Facility the
previous year;
(2) Whether the employee had summer vacation or had the holiday
the previous year;
(3) Seniority based on length of service at this station.
(D) An employee's annual leave schedule will not be altered due
to being moved within departments, unless it has been fully
discussed with the employee and he or she agrees to the change and
other arrangements are made to meet with the employee's
satisfaction.
A. Positions of the Parties
The Agency contends that the proposal conflicts with its regulations
because the proposal (1) would limit management's discretion to schedule
employees and (2) fails to mention that the primary consideration in
scheduling leave must be to provide patient care.
The Union contends that its proposal is intended to set guidelines
for leave approval and a procedure for requesting leave. With regard to
the Agency's position, the Union argues that the absence of a specific
reference to an agency's mission does not provide a basis for
challenging the negotiability of the proposal. The Union contends that
its proposal (1) is procedural in nature; (2) does not prohibit
management from meeting its staffing needs; and (3) does not violate
any management rights. The Union also notes that the Agency has not
claimed a compelling need for its regulations.
B. Analysis and Conclusion
For the reasons stated in Section II of this decision, we reject the
Agency's contention thta Proposal 2 is barred from negotiations by Title
38 or the Agency's "legislative regulations." Moreover, as stated in
Section II, the Agency has not alleged that a compelling need exists for
its internal regulations under section 7117(a)(2) of the Statute and
section 2424.11 of our regulations. Nor has the Agency raised any other
grounds for finding this proposal nonnegotiable. We find this proposal,
with the exception of Sections 1(B) and (D), addressed below, to be
within the duty to bargain. We find Sections 1(B) and (D) to be
nonnegotiable for reasons other than those argued by the Agency.
Section 1(B)
Section 1(B) would allow an employee to use annual leave as necessary
for personal emergencies and other matters and would require the Agency
to "make every effort" to grant this leave. Requiring the Agency to
"make every effort" to grant this leave would impose a substantive
condition on management's right to assign work. Like Proposal 4 in
VAMC, Ft. Lyons, which required the agency to make every attempt to
avoid assigning non-professional duties to staff nurses, Section 1(B)
would impermissibly condition management's right to assign work and
therefore is outside the duty to bargain under section 7106(a)(2)(B) of
the Statute. We therefore find Section 1(B) to be nonnegotiable.
Section 1(D)
Section 1(D) would prevent the Agency from denying leave to an
employee who has been assigned to a new department, unless the employee
agreed. The granting of an employee's leave request would rest on the
decision of the employee without consideration of the Agency's need to
perform its work. The Agency would be required to grant the employee's
leave request (unless the employee agreed not to take the leave) without
regard to the necessity for the employee's services in the assigned
department during the period covered by the request. This would
restrict the Agency's ability to determine when assigned work will be
performed. See National Federation of Federal Employees, Local 15 and
U.S. Army Armament Munitions and Chemical Command, Rock Island Arsenal,
Illinois, 19 FLRA 48 (1985), and American Federation of Government
Employees, AFL-CIO, Local 2263 and Department of the Air Force,
Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force Base, New
Mexico, 15 FLRA 580 (1984). Section 1(D) thus is nonnegotiable because
it would interfere with management's right to assign work under section
7106(a)(2)(B) of the Statute.
V. Proposal 3
Performance Appraisals.
Section 1.
(A) A copy of the performance appraisal, both mid-cycle and end
of cycle, will be given to the employee by the supervisor at least
three days in advance of the appraisal review. A signature by the
employee on the appraisal form represents an acknowledgment that
the review has taken place, and does not infringe on the
employee's right to proceed through steps as provided in the NFFE
Master Contract.
(B) At the mid-cycle appraisal, the supervisor will point out
each employee's strengths and weaknesses, and give specific
suggestions for improvement. The supervisor will identify in
writing any weakness, with supporting data, that may leave to an
unsatisfactory performance appraisal. In cases in which such
deficiencies are identified, a reevaluation of the deficiencies
will be made at least 90 days before the end of the appraisal
cycle.
(C) The appropriate supervisor will discuss with each employee
the completed approved performance appraisal of that employee.
The report, as reviewed, will be included in the employee's
official personnel folder. The employee will be given a copy of
the performance appraisal in its final form at the time it is
reviewed.
(D) If the rating official or the approving official makes a
comment in the appraisal which was not discussed with the employee
in the precounseling, a notation will be made in the appraisal
that the comment was not discussed with the employee and the
rationale for the omission.
(E) When an eligible employee is not promoted, and the employee
requests it, the immediate supervisor or designee will discuss the
promotion action with that employee and will give the employee
specific information on the qualifications the employee failed to
meet, with suggestions for improvement in order to meet the
qualifications for promotion.
(F) The use of negative performance standards is discouraged.
A negative standard is one which requires the absence of an event
in order to achieve a given level of performance. Such ratings
require a subjective inference as to the quality of the employee's
performance. In cases in which negative standards are used to
evaluate, the supervisor will provide the employee a justification
for the use in writing. The employee has the right to request an
investigation of complaints from colleagues/patients by a board
composed of one employee appointed by management, one elected by
the employee, and one designated by the Union.
(G) Employees will be included in the formulation of
performance standards by being provided copies of proposed
standards at least two weeks in advance of a formal meeting to
discuss the standards with the supervisor. Employees may submit
in writing questions with respect to proposeed changes in
performance standards, at any time there is a modification to the
existing standards. The supervisor will respond to questions in
writing, indicating which suggestions by employees are accepted
and which rejected, providing a rationale in either case.
A. Positions of the Parties
The Agency objects to Sections 1(A) and (B) because they refer to a
"mid-cycle" appraisal which the Agency argues is not provided for in its
regulations. The proposal therefore, according to the Agency, seeks to
add to VA policy, which only the Administrator has been granted the
authority to formulate. The Agency also contends that Section 1(B) is
nonnegotiable because it provides for a reevaluation of deficiencies,
which is not provided for in its regulations. With respect to Sections
1(C) and (D), the Agency made no assertions other than the general
contentions which we rejected in Section II of this decision.
Section 1(E), in the Agency's view, conflicts with VA policy by
stating that the employee's supervisor will discuss the promotion action
with the employee. The Agency asserts that the supervisor would not be
able to discuss this action since under its regulations the Professional
Standards Board (Board) is responsible for advancements. According to
the Agency, Section 1(F), which provides that "the use of negative
performance standards is discouraged," is nonnegotiable because it
contains a requirement not found in the VA regulations and would
infringe on the Administrator's authority to formulate VA regulations.
Finally, the Agency contends that Section 1(G), which provides for
employee participation in formulating performance standards, is not
contemplated by any VA regulation and therefore infringes on the
Administrator's authority to formulate VA policy.
The Union asserts that Section 1(A) is negotiable as a procedural
requirement under section 7106(b)(2) of the Statute and further states
that nothing prevents the Agency from having mid-cycle reviews. The
Union also states that Section 1(B) is similar to other proposals found
negotiable by the Authority which required a discussion of performance
appraisals with employees. As to Sections 1(C) and (D), the Union
contends that these are procedural requirements as well. In its view,
Section 1(D) does not interfere with the Agency's right to appraise the
performance of its employees, but simply requires that if the rating or
reviewing official makes a comment on the appraisal that was not
discussed with the employee during the precounseling session, prior to
finalizing the appraisal, the employee will be informed and will be told
why such an omission occurred. According to the Union, this does not
prevent the Agency from acting or from making an omission which is later
documented on the appraisal form.
The Union contends that Section 1(E) is a procedure which merely
requires the supervisor or designee to discuss an employee's
non-promotion and provide specific information and suggestions for
improvement on the qualifications which the employee failed to meet.
The Union acknowledges that the Board is responsible for making
recommendations on advancements but contends that Section 1(E) does not
address this aspect of the VA's regulations. Rather, it provides a
procedure for an employee to discuss a promotion with management.
Section 1(F) is negotiable, according to the Union, because it does not
prevent the supervisor from setting a performance standard. As to the
portion of Section 1(F) dealing with investigations, the Union states
that it is an appropriate arrangement for adversely affected employees
under section 7106(b)(3) of the Statute. According to the Union, this
investigation, which is not an appraisal, would give the employee a
forum for investigating complaints. Finally, as to Section 1(G), the
Union asserts that while the proposal may not be contemplated by Agency
regulations it is nonetheless negotiable because it provides a procedure
for the employee to review standards and make suggestions about their
content.
B. Analysis and Conclusion /4/
For the reasons stated in Section II of this decision, we reject the
Agency's contention that Proposal 3 is barred from negotiations by Title
38 or the Agency's "legislative regulations." Moreover, as stated in
Section II, the Agency has not alleged that a compelling need exists for
its internal regulations under section 7117(a)(2) of the Statute and
section 2424.11 of our regulations. Nor has the Agency raised any other
grounds for finding this proposal nonnegotiable. We find this proposal,
except for Section 1(E) and certain portions of Section 1(F), addressed
below, to be within the duty to bargain. We find Section 1(E) and
certains portions of Section 1(F) to be nonnegotiable for reasons other
than those argued by the Agency.
Section 1(E)
Section 1(E) would require the immediate supervisor or the
supervisor's designee to discuss a promotion action with an employee.
Section 1(F) would require the supervisor to provide an employee with a
written justification for the use of negative performance standards.
The Authority has consistently held that proposals prescribing specific
duties to be performed by particular non-bargaining unit personnel in an
agency directly interfere with management's right to assign work under
section 7106(a)(2)(B) of the Statute by eliminating the discretion
inherent in that right. The proposal in this case would require the
immediate supervisor to perform duties which he/she otherwise would not
be required to perform or would dictate that the supervisor designate an
individual to perform those functions, and would have the same effect as
the provisions held nonnegotiable in National Treasury Employees Union
and Department of the Treasury, 21 FLRA No. 123 (1986) (Provisions 2, 3,
4 and 5). See also American Federation of Government Employees,
AFL-CIO, Local 32 and Office of Personnel Management, 14 FLRA 278
(1984), aff'd mem. sub nom. Local 32, American Federation of Government
Employees v. FLRA, 762 F.2d 138 (D.C. Cir. 1985). Therefore, we
conclude that Section 1(E) would directly interfere with the exercise of
the right to assign work and as a raesult is not a negotiable matter.
Were it not for the proposal's defect requiring that counseling
functions be performed by the immediate supervisor or his/her designee,
which appears to be subsidiary to the basic intent of the proposal, we
would conclude that the proposal is negotiable. See American Federation
of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile
Command, The U.S. Army Test, Measurement, and Diagnostic Equipment
Support Group, the U.S. Army Information Systems Command-Redstone
Arsenal Commissary, 27 FLRA No. 14, slip op. at 13 (1987).
Section 1(F)
Section 1(F) defines a negative performance standard and requires the
Agency to provide the employee with a written justification when this
type of standard is used in an employee's evaluation. Section 1(F) does
not specify how negative standards should be applied; it determines
when an employee's performance should be subject to such a standard. It
concerns the establishment of performance standards and therefore is
substantive rather than procedural in nature. See Patent Office
Professional Association and Patent and Trademark Office, 25 FLRA No.
29, slip op. at 22-23 (1987), petition for review filed sub nom. Patent
Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 26,
1987).
Further, that portion of Section 1(F) requiring the Agency to provide
the employee with a written justification when a negative standard is
used is to the same effect as Sections 3.E. and 3.F. found nonnegotiable
in Patent and Trademark Office. There we found that a requirement that
management provide adequate written justification to vary performance
standards from proposed criteria directly interfered with management's
right to establish performance standards and rating levels. We stated
that the requirement for "adequate written justification" would
authorize an arbitrator to review the reasons given by management for
establishing its performance standards and rating levels and to preclude
those which did not, in the arbitrator's judgment, meet the requirement.
The arbitrator therefore would be required to substitute his judgment
for that of management in establishing performance standards.
The portion of Section 1(F) which would require the Agency to provide
an employee with a written justification when a negative standard is
used would have the same effect. It would authorize an arbitrator to
review the reasons given by management for establishing and applying a
negative performance standard in the evaluation of an employee and thus
permit an arbitrator to intrude in the exercise of management's right to
develop performance standards. In view of the above, we find that the
portion of Section 1(F) which concerns negative performance standards to
be outside the duty to bargain.
We find that the portion of Section 1(F) which involves an employee's
right to request an investigation of complaints concerning the employee
is negotiable. According to the Union, "standards are set which address
complaints received from colleagues and/or patients." Union's Response
at 26. Section 1(F) would create a joint labor-management board to
investigate such complaints if an employee so requested. The Union
states that the investigation, "which is not an appraisal," would
"provide a forum for such complaints to be explored" but only at the
employee's request. Union's Response at 26. In our view, this portion
of Section 1(F) stands on its own and has nothing to do with the use of
negative performance standards. Rather, this portion of the proposal
appears to deal solely with complaints from other employees or patients
which might be lodged against an employee. The effect of Section 1(F)
is two-fold. It would: (1) require the establishment, at the request
of an employee, of an ad hoc board; and (2) authorize the board to
investigate complaints against the employee.
This portion of Section 1(F) is similar to Proposal 6 in American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217
(1981). There, the Authority found negotiable a proposal to create a
joint labor-management committee to recommend changes in the performance
appraisal system; the Agency could accept or reject any of the
committee's recommendation. Like that case, the proposal here would not
interfere with the Agency's appraisal process but would provide a forum
whereby complaints against an employee could be investigated if the
employee so requested. More particularly, this portion of the proposal
does not involve the assignment of work since the responsibilities of
the committee do not involve official prescribed duties. The committee
would only "explore" complaints. Union's Response at 26. It would have
only a factfinding function. Its activities would not be binding on
management. Instead, it would, at most, only make recommendations which
the Agency could accept or reject. Compare American Federation of
Government Employees, AFL-CIO, Local 1760 and Department of Health and
Human Services, Social Security Administration, Baltimore, Maryland, 25
FLRA 2 (1987) (Proposal 4), where we found the proposal which created a
joint union-management comittee to be nonnegotiable because it subjected
management's determination concerning an employee's performance
requirements to review by the committee.
Based on the above, we find that the portion of Section 1(F) which
pertains to investigations concerns a procedure in connection with the
Agency's performance appraisal system, and therefore is within the duty
to bargain. In view of this determination, it is unnecessary to address
the Union's contention that this portion of the proposal constitutes an
appropriate arrangement for adversely affected employees under section
7106(b)(3) of the Statute.
VI. Proposal 4
Quality of Worklife Program
Section 7.
All union representatives, including stewards, will receive
appropriate training in the operation of the qualify of worklife
program and the duties of the steering committee(.)
Section 13.
Substantive changes in employee duties/assignments as a result
of suggestions from quality of worklife activities will be
reflected as necessary in the employee's position description,
performance standards, and related documents in accordance with
the performance appraisal system(.)
Section 14.
A pair of labor management facilitators will be selected and
trained, management selects the management facilitator and the
union will elect the union facilitator, additional teams of
facilitators may be selected as the need occurs; facilitators
will train quality of worklife participants in such topics as
group process and problem solving.
B. Positions of the Parties
The Agency withdrew its allegations of nonnegotiability as to
Proposal 4, with the exception of the sections set forth above. It
contends that Sections 7 and 14 are contrary to management's right to
assign work under section 7106(a)(2)(B) of the Statute. Citing National
Association of Air Traffic Specialists and Department of Transportation
Federal Aviation Administration, 6 FLRA 588 (1981), it states that those
sections would "mandate negotiations on substantive matters, namely the
specific type of training to be provided to bargaining unit employees
during duty hours, which would directly interfere with management's
right to assign work." Agency's Statement at 31. It contends that
Section 13 would require management to include changes and suggestions
as a result of the worklife program in the employee's position
description and performance standard and therefore is inconsistent with
management's right to direct employees and assign work.
The Union contends that the proposal is intended to make it possible
for the Agency and the Union to cooperate in implementing a
labor-management tool for resolving difficulties in the workplace before
they become major problems. Citing American Federation of Government
Employees, AFL-CIO, Local 2761 and U.S. Department of the Army, U.S.
Army Adjutant General Publications Center, St. Louis, Missouri, 14 FLRA
438 (1984), it asserts that Section 7, concerning training for a joint
labor-management quality of worklife program, is negotiable because it
is a joint labor-management committee that does not involve the
assigment of work. The Union made no assertions with regard to Section
14. Finally, it contends that Section 13 is negotiable because it does
not require the Agency to set specific performance standards or to
establish critical or noncritical elements, but rather simply requires
the employee's position description to be accurate.
C. Analysis and Conclusion
The Agency has withdrawn its allegation of nonnegotiability as to
that part of the proposal which established a Quality of Worklife
Committee. That committee would consist of an equal number of union and
management representatives whose participation would involve "activities
related to planning, development, implementation and evaluation of all
quality of worklife activities." See proposal originally referred to as
Proposal 11, Section 1 and 3; Union Petition for Review at 3-4.
Section 7 would provide union representatives with training in the
operation of the quality of work life program and the duties of the
committee; Section 14 would provide for the selection and training of
labor-management facilitators who would train quality of worklife
participants in such topics as group process and problem solving.
Section 13 would require that substantive changes in an employee's
duties/assignments resulting from suggestions from the quality of
worklife activities be reflected as necessary in the employee's position
description, performance standards, and related documents in accordance
with the performance appraisal system.
Sections 7 and 14
The Authority has previously found a proposal to establish a
committee to study the possibility of using quality circles in the work
place to be a negotiable procedure under section 7106(b)(2) of the
Statute and therefore within the duty to bargain. See American
Federation of Government Employees, Local 12, AFL-CIO and Department of
Labor, 17 FLRA 674 (1985) (Union Proposal 3). Here the Agency does not
dispute the negotiability of the establishment of a Quality of Worklife
Committee whose activities only relate to the quality of worklife
program. The participation of Union representatives in the activities
of this committee would not concern official prescribed duties bur
rather would concern matters related to the tasks of the committee. See
National Federation of Federal Employees, Local 541 and Veterans
Administration Hospital, Long Beach, California, 12 FLRA 270 (1983).
The Union representatives' participation in this committee therefore
does not involve the assignment of work within the meaning of section
7106(a)(2)(B) of the Statute.
Sections 7 and 14 are distinguishable from Proposals I and II in
Department of Transportation, Federal Aviation Administration, which
required the Agency to provide job training on duty time. See American
Federation of Government Employees, AFL-CIO, Local 2761 and U.S.
Department of the Army, U.S. Army Adjutant General Publication Center,
St. Louis, Missouri, 14 FLRA 438 (1984). See also VA Hospital, Long
Beach, at 274. Rather, activities in connection with the functioning of
this committee would involve labor-management contacts for which
official time may appropriately be negotiated under section 7131(d) of
the Statute. See National Association of Government Employees, SEIU,
AFl-CIO and Veterans Administration Medical Center, Brockton/West
Roxbury, MA, 23 FLRA No. 74 (1986). We therefore find Sections 7 and 14
to be within the duty to bargain.
Section 13
The Agency contends that Section 13 is inconsistent with its rights
to direct employees and assign work because it would require the Agency
to include changes in duties which result from the worklife program in
an employee's position description and performance standards. The Union
disputes this contention and states that Section 13 does not require the
Agency to set specific performance standards or require the
establishment of critical or noncritical elements; rather, the proposal
would only require, where management has decided to make changes in an
employee's duties and assignments, the inclusion of these changes in the
employee's performance standards. Further, the Union acknowledges that
"negotiation of standards" is not within the duty to bargain. Union's
Response at 29 and 30.
In American Federation of Government Employees, AFL-CIO, Local 2841
and Office of Personnel Management, 7 FLRA 571 (1982) (Proposal 1), the
Authority considered a proposal which required performance standards and
critical elements to be consistent with the duties and responsibilities
contained in a properly classified position description. The Authority
determined that although the proposal required consistency between
position descriptions on the one hand, and critical elements identified
and performance standards established for a position on the other hand,
the proposal would not limit the agency's choice of critical elements or
performance standards. Rather, the Authority held, the agency could
always achieve the required consistency merely by amending the position
description. Thus, under that proposal, the right of the agency to
assign work and to direct employees through establishing such elements
and standards remained unaffected, subject to the procedural requirement
that the position description involved accurately reflected the work
assigned. Therefore, the Authority concluded that the proposal was
within the duty to bargain under section 7106(b)(2) of the Statute.
Section 13 is similar in effect to the proposal considered in Office
of Personnel Management. Section 13 requires the Agency to amend
employees' position descriptions when it makes substantive changes in
their duties as a result of suggestions from the quality of worklife
program and then to revise their performance standards to reflect that
more accurate position description. The determination to change
employees' duties remains solely the Agency's decision. Therefore, for
the reasons set forth in Office of Personnel Management and noting the
Union's stated intent, as indicated above, we find that Section 13 would
not interfere with management's right to direct employees and assign
work under section 7106(a)(A) and (B) of the Statute and therefore is
within the duty to bargain. See also American Federation of Government
Employees, Council of Social Security District Office Locals and
Department of Health and Human Services, Social Security Administration,
11 FLRA 608 (1983) (Proposal 2).
VII. Proposals 5 through 10
Work Week, Hours of Work, and Flexitime /5/
Section 2. Shift Tour Work
(Proposal 5)
(B) When changs are made in the employee work tour, a minimum
of two weeks advance notice will be given, except in cases of an
emergency.
(Proposal 6)
(D) Only one shift will be scheduled for each employee per work
period (two weeks) and employees will not be required to work
different shifts or change shift during this work period, except
in cases of emergencies.
(Proposal 7)
(E) The shift schedule will be planned in blocks of six (6)
weeks (three pay periods) and will be posted on the unit at least
six (6) weeks in advance of the first day of the schedule.
Exchange of tours of duty will be permitted when it is agreeable
with the employees concerned and the supervisor approves.
(Proposal 8)
(F) Except where mutually agreed, administrative non-duty days
for weekends (Saturday and Sunday) will be scheduled in an
equitable manner for all employees in each unit.
(Proposal 9)
(G) An employee may request a permanent shift or shift relief
and such request will be granted if staffing permits and if the
employee has demonstrated competence and reliablility in
performing duties with minimal supervision.
(Proposal 10)
(H) When a new employee is hired, no employee's schedule will
be disrupted for the sole purpose of giving the new employee a
preferable duty schedule. All employees will rotate on all shifts
except when, at their request, they are assigned to afternoons or
nights on an indefinite assignment or when the supervisor and the
employee on a given unit agrees to a different rotation plan to
cover all tours of duty of the unit.
A. Positions of the Parties
The Agency contends that Section 2 (that is, Proposals 5-10) is
outside the duty to bargain because it is (1) contrary to the Agency's
right to assign work pursuant to section 7106(a)(2)(A) and (B) of the
Statute and (2) integrally related to the numbers, types and grades
assigned to a tour of duty so as to be negotiable only at its election
under section 7106(b)(1) of the Statute. More specifically, the Agency
argues that each subparagraph of Section 2 would substantively interfere
with management's exercise of its right to assign work under section
7106(a) of the Statute. Additionally, the Agency contends that Proposal
8 may require it to hire additional employees to comply with the
proposal; consequently, Proposal 8 is determinative of the numbers,
types and grades assigned to a tour of duty and thus is negotiable only
at the Agency's election.
The Union contends that the intent of all of the subparagraphs of
Section 2 is to outline a procedure for scheduling work shifts.
Proposal 5 is intended to require a time period for notifying an
employee before changing the tour of duty to which an employee is
assigned. The Union argues that the proposal merely provides a notice
period and does not prevent management from exercising its rights.
The Union states that Proposal 6 requires that employees already
assigned to a tour remain on that tour for two weeks without a change.
The Union argues that its proposal does not affect the assignment of
work to employees already assigned to a shift, but merely involves the
procedural requirement that when scheduling employees, the Agency
schedule employees to the same shifts for at least one pay period. The
Union also asserts that by providing that changes can be made "in cases
of emergencies," the proposal builds enough flexibility into scheduling
so that it would not require the Agency to hire additional staff.
The Union contends that Proposal 7 also concerns the scheduling of
shifts and that a requirement to have schedules planned in advance does
not prevent management from exercising any of its reserved rights.
Rather, it contends that based upon its other proposals, the intent of
this proposal is merely to require management to plan employees'
schedules in advance and that this proposal does not prevent management
from making a change in that schedule consistent with the other
requirements of its agreement.
The Union asserts that Proposal 8 requires fair and equitable
scheduling of the administrative non-duty days for weekends (Saturday
and Sunday) and thus involves the "fair and equitable" administration
for all employees similarly situated. It claims that the proposal does
not guarantee a Saturday or Sunday off for any employee and essentially
establishes a general nonquantitative requirement by which the
application of management's right to assign work can be evaluated.
The Union contends that Proposal 9 allows an employee to request
permanent shift relief which will be granted subject to staffing and the
employee's competency and thus is a procedure. It argues that the
proposal protects management's rights because the decision is subject to
both staffing and the employee's competency to perform on the requested
shift.
Finally, the Union contends that Proposal 10 concerns equitable
treatment in the scheduling of shifts. The Union claims that the first
sentence of the proposal does not prevent management from making a
change in hours providing it has legitimate reasons; it only prevents
management from making the change based solely on the new employee's
preference. The Union states that it intends the last sentence to set
out the requirement that employees will rotate shifts subject to certain
defined limitations. The Union claims that the proposal is procedural
because it merely concerns the rotation of employees already assigned to
shifts and that the Agency has not demonstrated that a procedure
concerning the rotation of shifts involves the numbers, types and grades
of employees assigned to a shift.
B. Analysis and Conclusion
The Agency states generally that because of the continuous nature of
services rendered at hospitals, employee tours of duty must ensure
adequate professional medical care and treatment of patients. Agency
Statement at 34. In Colorado Nurses Association and Veterans
Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66
(1987), petition for review filed sub nom. Colorado Nurses Assocation v.
FLRA No. 87-1104 (D.C. Cir. Feb. 25, 1987), we noted that the
requirements of patient care may vary throughout a day and during a
week. The particular tasks which must be performed to meet those
responsibilities therefore may vary from day to day and week to week.
Because those tasks often involve specialized skills and knowledge of
particular procedures and techniques not shared by all employees, we
held that proposals which would restrict management's ability to assign
employees to the particular shift or tour of duty on which those skills
are needed would directly interfere with management's right to assign
work. For example, we held Proposal 2 in that case, which would have
required the establishment of regular tours of duty and precluded the
use of split shifts and split days off, to be nonnegotiable. On the
other hand, we held that Proposal 3, which specifically referenced the
Agency's patient care needs, was negotiable.
Proposals 5, 6 and 7
Based on our decisiqon in VAMC, Ft. Lyons, we find that Proposals 5,
6 and 7 directly interfere with management's right to assign work under
section 7106(a)(2)(B) of the Statute. Proposal 5 would prevent
management from changing an employee's assignment from one tour of duty
to another tour of duty during the two week notice period, except in an
emergency. Proposal 6 would prescribe a fixed tour of duty for an
employee during a two week period, except in the case of an emergency.
Proposal 7 is intended to establish employees' tours of duty for a six
week period, which may only be changed for reasons of an emergency under
the exception set forth in Proposal 6. Union's Response at 33. Under
the limitations imposed by these proposals, therefore, as with Proposal
2 in VAMC, Ft. Lyons, management would be unable to assign the employee
who can perform the particular work which must be done to the tour of
duty on which that work is required. Moreover, the fact that these
proposals provide an exception in the case of an emergency is not
sufficient to render them negotiable. See VAMC, Ft. Lyons, Proposal 4.
Finally, Proposal 5 in this case is distinguishable from Proposal 2 in
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, 15 FLRA 825, 826-27 (1984) and Proposal
11 in American Federation of Government Employees, AFL-CIO, Local 2272
and Department of Justice, U.S. Marshals Service, District of Columbia,
9 FLRA 1004, 1020 (1982). In those cases, the agencies did not
demonstrate, nor was it otherwise apparent, how the notice period would
prevent management from exercising its rights to assign work or assign
employees. Proposal 5, as found above, would prevent management from
making changes in the assignment to a tour of duty during the two week
notice period, thereby placing a limitation on management's right to
assign work in a manner consistent with its patient care needs. /6/
Proposal 10
Proposal 10 similarly would establish a limitation on management's
ability to determine the work schedules of its employees; namely, it
would require the rotation of all employees through all shifts, except
when, at their request, they are indefinitely assigned to a particular
shift or management agrees with employees that there should be a
different rotation plan. Management would therefore be required to
adopt a rotation system of shift assignment. By requiring the rotation
of all employees, the proposal would dictate to management the
particular shift to which an employee must be assigned and would prevent
management from scheduling employees with specialized skills to perform
specific tasks on the particular shift where that work must be done.
See VAMC, Ft. Lyons, Proposal 2. Although the proposal establishes an
exception to the rotation policy for employees who request a particular
shift assignment, that exception would require management to make that
shift assignment without being able to take into account its patient
care needs. For the reasons discussed above, we find that Proposal 10
directly interferes with management's right to assign work under section
7106(a)(2)(B) and is outside the duty to bargain.
Proposal 8
Proposal 8 would require management to schedule administrative
non-duty days for weekends in an equitable manner. By providing for
such an equitable distribution, the proposal has the same effect as
Proposal 6 in VAMC, Ft. Lyons. In that case we held that a proposal
requiring an equitable assignment of relief for a P.M. and night duty
established a negotiable procedure which did not prevent management from
exercising its right to assign work. Because Proposal 8 similarly
requires an equitable distribution of particular scheduling assignments,
we find that it does not interfere with management's right to assign
work and is within the Agency's duty to bargain. Proposal 8 is
distinguishable from Proposal 10 above. That proposal would require
management to assign employees to particular work schedules without
regard to the Agency's requirements concerning the need for certain
skills on a particular shift and thus would violate management's right
to assign work. Requiring that assignments be made "equitably" does not
mandate such an order of distribution, since it permits management to
take into account its work needs.
Proposal 9
We conclude that Proposal 9, like Proposal 8 above, does not
interfere with management's right to assign work and is within the duty
to bargain. Unlike Proposals 5, 6 and 7 found nonnegotiable above,
Proposal 9 provides management with the flexibility to assign the
employee with the particular skill needed on a particular shift. The
proposal does not require management to grant the request unless
staffing permits and the employee has demonstrated competence and
reliability in performing duties with minimal supervision. In providing
an exception for "staffing" and employee competence and reliability, the
Union indicates that under the proposal, management would not be
required to grant a request for a shift change unless there were
sufficient numbers, types, and grades of employees with the requisite
skills and qualifications available on all its shifts.
Therefore, because the proposal provides for the patient care needs
of the Agency and thus permits the Agency to consider the skills
necessary to ensure adequate professional medical care and treatment of
patients, we conclude that Proposal 9 is a negotiable procedure. See,
for example, Proposal 3 in National Association of Government Employees,
Local R14-8 and Veterans Administration Medical Center, Topeka, Kansas,
24 FLRA No. 17 (1986) and Proposal 4 in National Association of
Government Employees, SEIU, AFL-CIO and Veterans Administration Medical
Center, Grand Junction, Colorado, 24 FLRA No. 21 (1986), where the
Authority found similar proposals to be negotiable because the proposals
did not prevent management from scheduling employees consistent with
actual work requirements and patient care needs.
VIII. Proposal 11
Overtime
Section 1. Scheduling of Overtime
(A) A fair and equitable system of assigning overtime duties
will be assured employees who work in units in which overtime is
used for emergencies. In units which require overtime duty, the
assignment of such duties will be fair and equitable. A list of
the employees who have worked overtime will be posted in the unit
at the end of the pay period. The supervisor will compute
averages of overtime duty for each employee and make assignments
in a fair and equitable manner.
A. Positions of the Parties
The Agency argues that the proposal is inconsistent with management's
right to assign work under section 7106(a)(2)(B) of the Statute because
it requires the supervisor to compute averages of overtime duty for each
employee and to assign work based on these computations. The Union
claims that the proposal's intent is to create a fair and equitable
rotation of overtime assignments to employees already assigned to
positiong requiring overtime work and that the rosters are mechanical
means to track such overtime assignments.
B. Analysis and Conclusion
We conclude that Proposal 11 constitutes a negotiable procedure
concerning the scheduling and assignments of overtime work that does not
interfere with the Agency's right to assign work under section
7106(a)(2)(B) of the Statute. In reaching this conclusion, we rely on
the Union's statement of the intent of its proposal to require the
Agency to assure a fair and equitable distribution of overtime. Union's
Response at 36. The Union also states that the proposal should not be
considered as forcing management to assign work indiscriminately without
regard to the duties of the positions already assigned employees. Union
Response at 37. Rather, the Union states that the proposal requires the
Agency to assign overtime fairly and equitably to employees who are
already assigned to positions that require the performance of overtime
work, taking into consideration that assignments are not
interchangeable. Union's Response at 38.
In sum, the Union states that the intent of the proposal is to create
an equitable rotation of employees already assigned to positions
requiring overtime work and that the lists referred to in the proposal
are only mechanical means to track such assignments. Union's Response
at 38. As we read the intent of the Union, therefore, the list of
computed averages is only one factor and not the sole basis to be used
by management in reaching its determination of which employee, among
those required to perform overtime, will be assigned the overtime
needed. Read in this manner, the proposal is like Proposal 6 found
negotiable in VAMC, Ft. Lyons because it permits management to give
consideration to special skills needed to assure proper patient care.
Therefore, Proposal 11 is within the Agency's duty to bargain.
IX. Proposal 12
Reassignment
Section 1.
(A) Full-time probationary and full-time permanent employees
will not be transferred to another facility unless negotiations
have been completed between the Union and the Facility. Notices
of vacancies at other facilities will be made available to
employees thirty (30) days pror to any outplacement of Title 38
employees.
A. Positions of the Parties
The Agency argues that the proposal violates management's right to
assign employees. The Union argues that the proposal is negotiable
because it constitutes impact and implementation bargaining over the
exercise of management's right to make reassignments, and that the
proposal merely confirms that negotiations will be complete before the
Agency transfers employees.
B. Analysis and Conclusion
Proposal 12 requires management to complete negotiations between the
Union and the Facility prior to transferring employees to another
facility. The Union states that the proposal is intended to require
that negotiations will be completed as required by the Statute. Union's
Response at 38. Based on the Union's stated intent, the proposal
requires that management complete its statutory obligation to negotiate
prior to transferring unit employees. The Authority has previously held
that the Statute requires an agency to meet its obligation to bargain
prior to making changes in established conditions of employment and to
adhere to established personnel policies and working conditions to the
maximum extent possible until it has fulfilled its obligation. See
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18
FLRA 466, 468-469 (1985). In our view, the proposal simply requires the
Agency to fulfill its statutory obligation to bargain and does not
preclude the Agency from exercising its management rights consistent
with that obligation.
Moreover, we reject the Agency's contention that by requiring
bargaining on unit employees' reassignment to another facility the
proposal would affect conditions of employment of employees outside the
bargaining unit. Neither the plain language of the proposal nor the
Union's stated intent places any obligation on the Agency to bargain
over conditions of employment for employees outside the bargaining unit.
Rather, the proposal simply requires that negotiations on the impact of
the reassignment on bargaining unit employees be completed prior to
their transfer.
X. Order
The Agency must upon request (or as otherwise agreed to by the
parties) bargain on Proposal 1; Proposal 2, Sections 1(A) and 1(C);
Proposal 3, Sections 1(A), 1(B), 1(C), 1(D), 1(F) (that portion which
relates to investigations) and 1(G); Proposal 4, Sections 7, 13, and
14; Proposal 8; Proposal 9; Proposal 11; and Proposal 12. /7/ The
Union's petition for review as to Proposal 2, Sections 1(B) and 1(D);
Proposal 3, Sections 1(E) and 1(F) (that portion which concerns negative
performance standards); Proposals 5-7; and Proposal 10 is dismissed.
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
--------------- FOOTNOTES$ ---------------
(1) We will not consider in this decision the following proposals
contained in the petition for review but which were subsequently
withdrawn by the Union: Proposal 13; Proposal 14, Section 2(A), (C),
and (I); and Proposal 16, Section 1(B). In addition, we will not
consider Proposal 2, Sections 3 and 4; and Proposal 11, Sections 1, 2,
3, 4, 5, 6, 8, 9, 10, 11 and 12, for which the Agency withdrew its
allegations of nonnegotiability. The remaining proposals have been
renumbered consecutively.
(2) On October 27, 1986, we granted the VA's motion for Consideration
of Common Issues in Pending Cases, including this case. The common
issue as raised by the Agency concerned the applicability of the Statute
to VA professional medical employees in the DM&S appointed under Title
38 of the United States Code.
(3) Only those portions of Proposal 2 set forth here are in dispute.
See the Union's Response at 2 and 19, and the Agency's Statement of
Position at 2 and 4-7.
(4) The employees involved in this case are not subject to the
performance appraisal system set forth in Chapter 43, Title 5, United
States Code or the regulations issued by the Office of Personnel
Management at 5 C.F.R. Part 430. See 5 U.S.C. Section 4301(2)(C).
(5) Only those subparagraphs set forth are in dispute. See Union's
Response at 2 and 30-35, and the Agency's Statement at 2 and 33-37.
(6) Professional medical employees of the Agency's Department of
Medicine and Surgery are not subject to 5 C.F.R. Section 610.121. See 5
C.F.R. Sections 610.101, 550.101(b)(12). The negotiability of this
proposal is therefore not subject to our decision in National
Association of Government Employees, Local R7-23 and Department of the
Air Force, Scott Air Force Base, Illinois, 23 FLRA No. 97 (1987).
(7) In finding these proposals to be negotiable, we make no judgment
as to their merit.
APPENDIX
Proposal 2
The Agency claims that Proposal 2 conflicts with VA Manual MP-5, Part
II, Chapter 7 (Duty and Leave) and DM&S Supplement, Chapter 7, Paragraph
7.04, because the proposal does not take into account that aspect of its
regulations which provides for the proper care and treatment of patients
to be the primary consideration in the scheduling of leave. The Agency,
however, has neither alleged nor demonstrated that a compelling need
exists for these regulations under section 7117(a)(2) of the Statute and
section 2424.11 of our Regulations to bar negotiations on Proposal 2.
Proposal 3
The Agency claims generally that Proposal 3 conflicts with VA Manual
MP-5, Part II, Chapter 6 (Proficiency Rating System) and DM&S
Supplement, Chapter 6. In particular, the Agency claims that Sections
1(A) and (B) of Proposal 3 conflict generally with VA Manual MP-5, Part
II, Chapter 6 and DM&S Supplement, Chapter 6 because the sections of the
proposal establish a mid-cycle appraisal which is not provided for in
the Agency's regulations. The Agency also asserts that Section 1(B) of
the proposal conflicts with Paragraphs 6.06(c)(5) and (e) of DM&S
Supplement, Chapter 6, because the proposal would add a requirement for
a reevaluation which is not provided for in the Agency's regulations.
Section 1(E) is alleged to conflict with VA Manual MP-5, Chapter 2
(Appointments) and DM&S Supplement, Chapter 2, Paragraph 2.05, because
the proposal concerns Professional Standards Board activities governed
by those regulations. The Agency claims that Section 1(F) and (G) of
this proposal also conflict with Chapter 6 of both the Manual and the
Supplement because it adds a requirement not contained in those
regulations. The Agency, however, has neither alleged nor demonstrated
that a compelling need exists for these regulations under section
7117(a)(2) of the Statute and section 2424.11 of our Regulations to bar
negotiations on Proposal 3.
Proposals 5-10
The Agency claims that Proposals 5-10 conflict with VA Manual MP-5,
Part II, Chapter 7 (Duty and Leave), Paragraph 3.b and DM&S Supplement,
Chapter 7, Paragraph 7.04, because these proposals do not take into
account that aspect of its regulations which provides for the proper
care and treatment of patients to be the primary consideration in the
scheduling of hours of duty. The Agency, however, has neither alleged
nor demonstrated that a compelling need exists for these regulations
under section 7117(a)(2) of the Statute and section 2424.11 of our
Regulations to bar negotiations on Proposals 5-10.
Proposal 11
The Agency claims that Proposal 11 conflicts with VA Manual MP-5,
Part II, Chapter 7 (Duty and Leave), Paragraph 3.6. and DM&S Supplement,
Chapter 7, Paragraph 7.04, because the proposal does not take into
account that aspect of its regulations which provides for the proper
care and treatment of patients to be the primary consideration in the
scheduling of hours of duty. The Agency, however, has neither alleged
nor demonstrated that a compelling need exists for these regulations
under section 7117(a)(2) of the Statute and section 2424.11 of our
Regulations to bar negotiations on Proposal 11.
Proposal 12
The Agency claims that Proposal 12 conflicts with VA Manual MP-5,
Part II, Chapter 11 (Recruitment and Placement) and DM&S Supplement,
Chapter 11, Paragraph 11B-03, because the proposal does not take into
account that aspect of its regulations which provides for transfers and
reassignments to be based primarily on patient care needs. The Agency,
however, has neither alleged nor demonstrated that a compelling need
exists for these regulations under section 7117(a)(2) of the Statute and
section 2424.11 of our Regulations to bar negotiations on Proposal 12.