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59 FLRA No. 18
DEPARTMENT OF VETERANS AFFAIRS
OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
September 5, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This case is before the Authority on the General Counsel's exceptions to the attached decision of the Administrative Law Judge, finding that the Respondent did not violate § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to provide the Union with notice and an opportunity to bargain over the Respondent's decision to admit certain patients to its facility. The Respondent filed an opposition to the General Counsel's exceptions.
Upon consideration of the Judge's decision, the General Counsel's exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent with this decision.
II. Background and Judge's Decision
The Respondent is the designated treatment center for severely ill psychiatric patients in the area serviced by the Veterans' Integrated Service Network 19 (VISN). In June 2001, the Respondent hosted a meeting of the VISN Mental Health Council, during which the Respondent marketed its ability to accept psychiatric patients with severe behavioral problems, referred to by the parties as "acute" patients. In July 2001, the Respondent began admitting a greater number of acute patients to its acute patient treatment facility, Unit 8.
The Union submitted requests to bargain over the impact and implementation of the increase in the number of patients admitted to Unit 8, claiming that the Respondent had changed its mission. The Respondent refused to bargain. The Union filed a charge, and the General Counsel issued a complaint, alleging that the Respondent violated § 7116(a)(1) and (5) of the Statute by implementing a change in its admission policy that resulted in an increase in patients to Unit 8 without providing the Union with notice and an opportunity to bargain over the impact and implementation of the change. Complaint at ¶ 12-18.
The Judge dismissed the complaint, finding that although the number of patients admitted to Unit 8 increased, there was "insufficient evidence of changes in the working conditions of bargaining unit employees in Unit 8." Decision at 5. In this connection, the Judge found that Unit 8 has been a locked treatment facility for acutely ill psychiatric patients since 1996 and that the mission of Unit 8 has not changed since that time. Id. at 3, 7. The Judge also found that the Respondent has been the designated treatment center for severely ill psychiatric patients since 1995. Id. at 3. According to the Judge, the witnesses "provided no details as to the precise nature of the changes[,]" and conceded that the nature of the patients being admitted to Unit 8 "did not change." Id. at 8. In addition, the Judge found that the Union had not "properly invoked" bargaining because the Union "did not articulate the alleged changes in working conditions and did not propose arrangements for alleviating the adverse effects of the changes." Id.
III. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel claims that the Judge erred in concluding that there was insufficient evidence of a change in conditions of employment, and that the Judge applied the wrong analytical framework in reaching that conclusion. In this regard, the General Counsel contends that the Judge considered evidence relating to the [ v59 p94 ] impact of the change, rather than evidence concerning the change itself. The General Counsel also claims that the Judge failed to apply the appropriate framework in concluding that the Union did not properly invoke its right to bargain.
B. Respondent's Opposition
The Respondent asserts that the Judge did not err in concluding that there was no change in conditions of employment. The Respondent argues that its renewed commitment to accepting acute patients may have resulted in an increase in patient turnover, but it did not change conditions of employment. In addition, the Respondent notes that to the extent that the Judge addressed matters relating to any alleged impact of a change -- hours of work and duties -- such observations were mere dicta.
IV. The Judge did not err in finding that the Respondent did not make a change in conditions of employment
In determining whether an agency has violated the Statute by failing to bargain over a change in conditions of employment, it must be established that the agency made a change in a policy or practice concerning unit employees' conditions of employment. United States Dep't of Labor, OSHA, Reg. 1, Boston, Mass., 58 FLRA 213, 215 (2002) (Chairman Cabaniss concurring); United States Immigration and Naturalization Serv., New York, N.Y., 52 FLRA 582, 585-86 (1996); United States Immigration and Naturalization Serv., Houston Dist., Houston, Tex., 50 FLRA 140, 143-44 (1995) (INS). The determination of whether a change in conditions of employment has occurred involves a case-by-case analysis, inquiring into the facts and circumstances regarding an agency's conduct and employees' conditions of employment. See 92 Bomb Wing, Fairchild Air Force Base, Spokane, Wash., 50 FLRA 701, 704 (1995); INS, 50 FLRA at 144.
In this case, the change alleged is a modification to the Respondent's policy concerning the "acuity" of the patients it will admit to Unit 8. The Judge concluded that there was no change in the Respondent's practice based on his findings that Unit 8 has been a locked treatment facility for acutely ill psychiatric patients since 1996 and that the mission of Unit 8 has not changed since that time. Id. at 3, 7. The Judge also based the conclusion on his finding that the Respondent has been the designated treatment center for severely ill psychiatric patients since 1995. Id. at 3. In addition, the Judge found that the witnesses "provided no details as to the precise nature of the changes[,]" and that the witnesses conceded that the nature of the patients being admitted to Unit 8 "did not change." Id. at 8.
The General Counsel claims that the Judge erred in concluding that there was no change because the record establishes that the Respondent "changed its guidelines, policies, and criteria regarding patient admission to Unit 8." Exceptions at 7. In support of its claim, the General Counsel relies on the increased number of patients admitted to Unit 8 after July 2001 -- from 10-15 patients to 15-20 patients -- and on the increase in acuity of those patients -- from approximately 1-2% to 50%.
Contrary to the General Counsel's claim, the fact that there were more acute patients admitted to Unit 8 after July 2001 does not establish that the Respondent made a change in its admission policy, practice, or standards concerning the acuity of patients admitted to Unit 8. As the Judge found, and the record demonstrates, the Respondent has historically been the facility for severely mentally ill patients and Unit 8, in particular, has admitted and treated acute care patients since 1996. See Decision at 3, 7; Tr. at 181; Respondent's Exhibits M-P (correspondence relating to Unit 8 1996 change in mission to an acute care unit). Consistent with its mission, prior to and after July 2001, the Respondent admitted and treated acute patients in Unit 8. As noted by the Judge, testimony established that although the number of patients admitted increased in July 2001, nothing changed about the type of patients admitted to Unit 8. Decision at 4; see Transcript at 75, 125, 132, 155, 181-82. In this regard, a Unit 8 nurse testified that the Unit 8 employees are "seeing the same types of patients [after July 2001]; it's just that [they] are seeing more of the acutely ill patients at one time." Tr. at 75. Similarly, when asked how the number and acuity of patients changed after July 2001, a Unit 8 social worker responded by referring only to the number of patients -- "[i]t's the volume of them" -- and did not assert that the patients were different or more acute than patients admitted prior to July 2001. Tr. 125.
In view of this testimony and the fact that Unit 8 has been responsible for the treatment of acute patients since 1996, the increase in the number and acuity of patients admitted to Unit 8 after July 2001 demonstrates that the Respondent had more admissions of the type of patients it has historically admitted. This increase is consistent with the evidence and testimony concerning the Respondent's efforts to market its facility and "reaffirm" its ability to care for the most acute patients. Tr. at 174-75. Standing alone, it does not --as the General Counsel asserts -- establish that there was a change [ v59 p95 ] in the Respondent's policy regarding the acuity of its patients.
Although the General Counsel's evidence and arguments support a finding that there was an increase in the number of acute patients admitted to Unit 8, nothing in the General Counsel's exceptions or the record supports a finding that the Respondent changed its policy regarding the acuity of patients admitted to Unit 8, as alleged in the complaint. As the only change alleged in the complaint is a change in policy regarding the acuity of patients, there is no basis for concluding that the Judge erred in finding that the General Counsel failed to establish that the Respondent made the alleged change. See United States Dep't of the Air Force, 6th Support Group, MacDill AFB, Fla., 55 FLRA 146 (1999); United States Dep't of Vet. Affairs, VAMC, Memphis, Tenn., 42 FLRA 712, 713-16 (1991).
Accordingly, we conclude that the Respondent did not violate the Statute, as alleged, and we adopt the Judge's conclusion to dismiss the complaint. [n2]
The complaint is dismissed.
Footnote # 1 for 59 FLRA No. 18 - Authority's Decision
Footnote # 2 for 59 FLRA No. 18 - Authority's Decision
In light of the foregoing, we do not resolve the General Counsel's additional exception claiming that the Judge confused the issue of whether the Union had a right to bargain with the issue of whether the Union properly requested bargaining. However, we note, as we recently reaffirmed in Pension Benefit Guar. Corp., 59 FLRA No. 11, slip op. at 8 (Aug. 20, 2003), in determining whether an agency committed an unfair labor practice by failing to bargain when making a change in conditions of employment, the first inquiry is whether the agency had an obligation to bargain at all. See United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 715 (1999); Dep't of HHS, SSA, 24 FLRA 403, 407-08 (1986). If it did, then a separate inquiry is whether the agency was relieved of, or otherwise satisfied, its bargaining obligation. In resolving the latter issue -- but not the former -- it is appropriate to focus on, among other things, whether and how the union requested bargaining, the adequacy of the agency's response to the union's request to bargain or, if the union submitted actual proposals for bargaining, the negotiability of the proposals and the agency's response to those proposals. See United States Dep't of HUD, 58 FLRA 33 (2002); United States DOJ, INS, 55 FLRA 892, 900 (1999); United States Dep't of HHS, SSA, Balt., Md., 39 FLRA 258, 262-63 (1991).