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File 2: Opinion of Member Wasserman

[ v55 p553 ]


Member Wasserman, dissenting

      I write in dissent because I do not believe the record supports a determination that the proposals affect management's rights under the Statute. Instead, I would find that the proposals are fully negotiable and order the Agency to bargain, on request of the Union.

      The facts giving rise to this case show that the Agency decided to assign "patient triage assessments" to RNs, rather than the LPNs who previously performed such work, in order to meet the accreditation requirements of the Joint Commission on the Accreditation of Healthcare Organizations. Statement of Position at 2-3. As a result, the Agency placed additional RNs in the ambulatory care area and took action to reassign the LPNs to other areas of the medical facility. The Union sought to bargain over the retention of LPNs in their former work areas. The Agency responded that the proposals would affect the exercise of section 7106(a) rights in several ways. The Agency argued that the proposals constitute "work preservation" proposals, which affect the rights to assign work, assign employees and determine the personnel by which agency operations will be conducted. Id. at 2.

      It seems to me that the Agency's reasons for not bargaining over the proposals are based on a misapprehension of their effect. The Agency is of the view that the proposals would prevent it from assigning triage duties to RNs and would, instead, require the assignment of such duties to LPNs. However, the Union quite clearly states that the proposals do not prevent the Agency from assigning triage duties to RNs and nothing in the wording of the proposals suggests otherwise. Indeed, the record indicates that the Agency has already assigned RNs to perform triage duties and the Agency concedes that there is work that the LPNs can perform in their present work locations. [n1] 

      Under these circumstances, I would find that the proposals do not affect the exercise of management's rights. [n2] Because the proposals are fully negotiable, it is unnecessary for me to decide whether the proposals would be electively negotiable under section 7106(b)(1) of the Statute.


File 1: Authority's Decision in 55 FLRA No. 96
File 2: Opinion of Member Wasserman


Footnote # 1 for 55 FLRA No. 96 - Opinion of Member Wasserman

   Since the Agency concedes this point, its claim that there is not "sufficient, efficient work" for the LPNs to perform in their present work locations, strikes me as somewhat contradictory.


Footnote # 2 for 55 FLRA No. 96 - Opinion of Member Wasserman

   My colleagues read too much into the Agency's contentions. Since the Agency claims that the proposals affect management's rights in only a limited way, I do not believe that it is appropriate for the Authority to substitute its judgment for that of the Agency in assessing precisely what those effects are, thereby adding weight to them.