U.S. Federal Labor Relations Authority

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National Federation of Federal Employees, Local 1904 (Union) and United States Department of Veterans Affairs, Medical Center, New Orleans, Louisiana (Agency)

[ v57 p28 ]

57 FLRA No. 9







March 28, 2001


Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members.

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. For the reasons which follow, we find that the proposal is a negotiable appropriate arrangement under § 7106(b)(3).

II.     Background

      The proposal in this case was submitted to the Agency in response to a change in policy with respect to patient accountability. See Agency Memorandum NE-4 attached to Union Petition for Review. Specifically, the revised policy was designed to improve patient accountability on the part of the hospital staff and to "facilitate the early detection of missing patients." Id. at 1. To this end, under the policy, nurses are responsible for verifying the location of patients admitted to their assigned ward during their tour of duty. Id. The policy prescribes procedures to be followed that enable nurses to account for patients, including patients that are assessed as "high risk for wandering." Id. at 2-3. The Union states, and the Agency does not dispute, that "[h]igh risk patients (HR) are usually mentally impaired either due to some physical or mental condition and need someone in authority to look out for their best interests because they are mentally unable to do so." [n1] Union's supplemental submission at 2. In addition, these patients have a propensity to wander off. Id.

      Wander guard bracelets are monitoring devices that are attached to high risk patients and electronically notify nurses when a patient leaves the ward or unit to which they have been assigned. According to the Union, high risk patients were previously assigned to the transitional care unit (TCU) and were all equipped with wander guards. More recently, however, high risk patients have been assigned to the acute care ward (ACW) which is not equipped with wander guards. Because the typical ACW patient is seriously ill, and consequently needs a high degree of care and attention, ACW nurses, according to the Union, cannot necessarily provide the needed additional attention to high risk patients required to keep them from leaving the unit. As a result, nurses in the ACW consider that they are at an increased risk of liability for failing to properly monitor the location of these high risk patients under the Agency's policy.

III.     Proposal

High risk patients on acute wards who wander without staff knowledge should be given wander guard bracelets to eliminate the adverse effect of adding security responsibilities to other nursing staff duties. [n2] 

IV.     Positions of the Parties

A.     Union

      The Union "recognizes [the] security of [the A]gency to be a management right under 5 USC 7106[a]," and does not dispute that the proposal affects this management right. Petition at 5. The Union, however, contends that the proposal is negotiable as an appropriate arrangement for employees adversely affected by the Agency's patient accountability policy [ v57 p29 ] and management's decision to assign high risk patients to the ACW. [n3] Union Memo dated February 14, 2000, attached to petition.

      According to the Union, the patient accountability policy means nurses are "solely accountable for patient accountability." Petition at 5. The Union argues that the policy adversely affects nurses because it creates additional liability if they fail to sufficiently monitor high risk patients assigned to the ACW. The Union claims that patient care demands in the ACW are often exacerbated by short staffing and changes in staff rotation, which make it impossible for nurses to give adequate attention to high risk patients. The Union argues, therefore, that the proposal is an appropriate arrangement as it reduces potential liability by increasing the ability of ACW nurses to monitor high risk patient location.

B.     Agency

      According to the Agency, the Union does not dispute that the proposal affects its right to determine its internal security practices by establishing a patient accountability policy. SOP at 2. The Agency states that the proposal concerns a "performance issue." Id. In this regard, the Agency argues that the proposal would require management to "forfeit" its right to determine internal security policies because it would eliminate the accountability of the nursing staff for monitoring patient location. Id.

      The Agency also states that under its policy nurses need to assess the status of patients on a continuous basis and, where warranted, "initiate nursing interventions such as 1:1 or close observation." Id. at 1. The Agency maintains that all that is needed for nurses to act responsibly, when a patient is missing, is to activate the procedures contained in the policy.

V.     Analysis and Conclusion

A.     Meaning of the Proposal

      The parties agree that the proposal would require the Agency to install a wander guard system for high risk patients in the ACW.

B.     The Proposal Affects Management's Right to Determine Internal Security Practices Under § 7106(a).

      The Agency asserts, and the Union does not dispute, that the proposal affects the Agency's right to determine its internal security policies and practices under § 7106(a)(1) of the Statute. Accordingly, we find that the proposal affects that right. See AFGE, Council of GSA Locals, Council 236, 55 FLRA 449, 452 (1999) petition for review denied as to other matters, No. 99-1244 (Mar. 7, 2000). As the Union has not argued that this proposal constitutes a procedure within the meaning of § 7106(b)(2), we will determine whether the proposal constitutes an appropriate arrangement under § 7106(b)(3) of the Statute.

C.     The Proposal is an Appropriate Arrangement.

1.     Applicable Framework

      In determining whether a proposal is an appropriate arrangement, the Authority uses the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). The Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. See United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992); AFGE, Local 1900, 51 FLRA 133, 141 (1995).

      The claimed arrangement must also be sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management's rights. See id at 184. As the Authority has explained, relying on United States Dep't of the Interior, Minerals Mgmt. Serv., New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), § 7106(b)(3) brings within the duty to bargain proposals that provide a balm only to the hurts arising as a consequence of the management actions under section 7106 giving rise to a bargaining obligation. AFGE, Nat'l Border Patrol Council, 51 FLRA 1308, 1319 (1996). See also NAGE, Local R14-23, 53 FLRA 1440, 1443 (1998).

      If a proposal is determined to be an arrangement pertaining to the exercise of management's rights, then the Authority determines whether it excessively interferes with the relevant management right. The Authority reaches this determination by weighing the "competing practical needs of employees and managers." KANG, 21 FLRA at 31-32.

2.     The Proposal is an Arrangement and is Sufficiently Tailored.

      Applying the KANG framework to the proposal in this case, it is clear that the proposal constitutes an arrangement for nurses adversely affected by the application [ v57 p30 ] of the patient accountability policy to the care of high risk patients in the ACW. In particular, the Union's description of the nursing environment in the ACW is not disputed. Thus, the record indicates patients in this ward are there because they are seriously ill and the care of these patients requires significant time and attention on the part of the nurses. In this regard, although the Agency states that it schedules and assigns nurses consistent with patient care needs, it does not dispute the Union's contention that the ACW is often short staffed. As the Union points out, such staffing only exacerbates patient care demands on the ACW nursing staff.

      In such a situation, it is reasonable to conclude that nurses in the ACW would not have adequate time to pay attention to high risk patients assigned to their ward. [n4]  Consequently, the risk of such a patient leaving the ward and the possibility that nurses will not detect their leaving, is increased. As a result, nurses face increased liability under the patient accountability policy. The Agency states that patient accountability is a "performance issue." This, at a minimum, suggests that nurses are vulnerable to lowered performance appraisals based on inadequate attention to patient location.

      The increased potential for lowered performance appraisals constitutes an adverse effect within the meaning of § 7106(b)(3). See, e.g., NTEU, 45 FLRA 339, 370 (1992). Moreover, it is clear that this increased potential is a result of the application of the patient accountability policy, which constitutes the exercise of a management right, to nurses who have the burden of caring for high risk patients in addition to the demands of caring for the seriously ill patients in the ACW. Thus, because the use of wander guards under the proposal is designed to mitigate against that increased potential for lowered performance appraisals, it constitutes an arrangement for employees adversely affected by the exercise of a management right within the meaning of § 7106(b)(3). Id.

      Further, because the proposal would benefit only nurses in the ACW who have been assigned care of high risk patients, the proposal is sufficiently tailored to constitute an arrangement. See, e.g., NTEU, 47 FLRA 705, 728 (1993) (Member Armendariz dissenting in part, concurring in part).

3.     The Proposal is an Appropriate Arrangement.

      The next question is whether the burden imposed by the proposal outweighs the benefit afforded nurses by the proposal. Stated differently, the question is whether the proposal excessively interferes with management's right so as to not be appropriate under § 7106(b)(3).

      It is clear that the use of wander guard bracelets on high risk patients in the ACW would make it easier for nurses to provide the level of care required by those seriously ill patients and monitor the location of high risk patients who are also assigned to the ACW. As a result, those nurses would benefit significantly from the proposal, because they would be less vulnerable to lowered performance appraisals under the Agency's policy.

      In contrast, the burden on the Agency's internal security policy is slight. The purpose of that policy, insofar as it pertains to patients, is to ensure the safety of those patients. The Agency already uses wander guard bracelets in the TCU for that purpose. Accordingly, rather than burdening the Agency's ability to ensure high risk patient safety, the proposal would enhance that objective by widening use to all high risk patients also assigned to the ACW.

      Moreover, the use of wander guard bracelets in the ACW does not preclude the Agency from holding nurses in that ward accountable for monitoring high risk patient location under its policy. In this respect, rather than undermining the policy, the proposal simply makes it easier for nurses to comply with that policy.

      Weighing the reduced risk of lowered performance appraisals to nurses caring for high risk patients on the ACW, that results from the use of wander guards, against the burden on the Agency's ability to establish and implement its patient accountability policy, it is clear that the benefit afforded nurses under the proposal outweighs the burden of the proposal on management's right to determine its internal security policies. Thus the proposal does not excessively interfere with that right, and is an appropriate arrangement within the meaning of § 7106(b)(3). [n5] 

VI.     Order

      The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over the proposal.

Footnote # 1 for 57 FLRA No. 9

   The Agency describes high risk patients as, "cognitively impaired." Statement of Position (SOP) at 2.

Footnote # 2 for 57 FLRA No. 9

   The Union's original proposal read:

High Risk patients who wander without staff knowledge should be given special clothing or wander guard bracelet or some alternative to help identify them to nursing staff.

Petition at 5.

However, in the post-petition conference, held pursuant to § 2424.23 of the Authority's Regulations, the Union clarified the proposal to read as set forth above. In the absence of any objection by the Agency, the proposal will be considered as clarified. See ACT, Inc., Heartland Chap., 56 FLRA 236, 236 n.1 (2000).

Footnote # 3 for 57 FLRA No. 9

   Specifically, the Union states that its proposal is intended to eliminate the "adverse affect" [sic] of the Agency's policy on the nursing staff. Petition at 5; Union Memo dated February 14, 2000, attached to petition. The Authority construes this language, along with the Union's argument as a whole, to constitute a claim that the proposal is an appropriate arrangement under § 7106(b)(3).

Footnote # 4 for 57 FLRA No. 9

   We note that the Agency argues that nurses who are confronted with a patient who demonstrates a propensity to wander should conduct close surveillance, even one to one monitoring of the patient. However, in giving that guidance, the Agency fails to address how the nurse would be able to complete other assigned tasks in this situation.

Footnote # 5 for 57 FLRA No. 9

   Although the Agency stated in the post petition conference report that the proposal would be costly, it made no further argument in that regard in its SOP. In any event, as the Authority has made clear, "when considering cost arguments in contexts other than management's budget right under section 7106(a)(1), . . . an agency is not exempt from the obligation to bargain over a union proposal solely because th[e] proposal may result in some increase in costs." AFGE, Local 1122, 47 FLRA 272, 283 (1993).