OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF THE AIR FORCE, 56TH MEDICAL GROUP HOSPITAL, MACDILL AIR FORCE BASE, FLORIDARespondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 547
Case No. AT-CA-30958
Richard S. Jones, Esquire For the General Counsel
Before: BURTON S. STERNBURG Administrative Law Judge
Statement of the Case
This is a proceeding under the Federal Service
Labor-Management Relations Statute, Chapter 71 of Title 5 of the
U.S. Code, 5 U.S.C. 7101, etseq. and the
Rules and Regulations issued thereunder.
Pursuant to a charge filed on May 27, 1993, by American
Federation of Government Employees, Local 547, (hereinafter called
the Union), against the Department of the Air Force, 56th Medical
Group Hospital, MacDill Air Force Base, Florida, (hereinafter
called the Respondent), a Complaint and Notice of Hearing was
issued on December 1, 1993, by the Regional Director for the
Atlanta, Georgia Regional Office, Federal Labor Relations
Authority. The Complaint alleges that the Respondent violated
Sections 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute, (hereinafter called the Statute), by changing
the job duties of bargaining unit employee Elaine Konersman, a
Registered Nurse, without first notifying the Union and affording
it the opportunity to negotiate over the impact and manner of
implementation of the changes.
A hearing was held in the captioned matter on February 8, 1994, in Tampa, Florida. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. Counsel for the General Counsel and Counsel for Respondent filed post-hearing briefs on April 11 and April 7, 1994, respectively, which have been fully considered.
Upon the basis of the entire record, including my
observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions and recommendations.
Findings of Fact
The Union is the exclusive representative of a unit of Respondent's employees working at MacDill Air Force Base, Florida. The bargaining unit includes, among others, Registered Nurses and Nursing Assistants.(1)
In anticipation of the scheduled opening of an Ambulatory
Surgical Unit (ASU) for purposes of treating patients requiring
same-day surgery, Respondent on April 6, 1992, hired Ms. Elaine
Konersman, a Registered Nurse, to work in the ASU Gastroenterology
Clinic (GI). At approximately the same time, Respondent also hired
Mr. David Watts, a Nursing Assistant, to help Ms. Konersman. Mr.
Watts was hired as a GS-5 and Ms. Konersman was hired as a
Inasmuch as Ms. Konersman was hired to work in the GI
section and recovery room of ASU where No. IV sedations were
administered, she was required to be certified in Advanced Cardiac
Life Support (ACLS). Having been certified in Pediatric Advanced
Life Support (PALS), the pediatric version of ACLS, Respondent's
selecting official reasoned that Ms. Konersman would have no
trouble passing the ACLS. Accordingly, Ms. Konersman was hired with
the understanding that she would have to pass the ACLS in order to
perform the restricted GI and recovery room nursing duties.
Since Ms. Konersman, due to the lack of ACLS certification,
was not immediately available to perform the No. IV sedations and
recovery room duties for which she was hired, she performed, among
other general nursing duties, preadmission patient
assessments(2) on the individuals
who were scheduled for future surgery in the GI section of the ASU.
In this latter connection, while Ms. Konersman testified that prior
to October 7, 1992, when she went on sick leave which ended on
November 23, 1992, she performed all the preadmission patient
assessments for the GI unit, she did acknowledge that Nursing
Assistant Watts, following the opening of the GI section of the
ASU, underwent training by Respondent to perform preadmission
At the time that the ASU was established a position entitled
"assessment nurse" was created. This position, which appears to
have covered all preadmission assessments other than those for the
GI section, was manned by Major Pat Woods, a military nurse. Major
Woods left MacDill Air Force Base sometime during the period
October 7, 1992 - November 23, 1992, while Ms. Konersman was out on
sick leave. Her duties with respect to preadmission assessments
were assumed by Nursing Technicians.
On November 23, 1992, upon her return from sick leave, Ms.
Konersman was called into a "counseling session" wherein she was
reminded that she had not completed the ACLS training and also
informed about some changes in patient assessments which took place
during her absence. In this latter connec-tion Respondent's
representatives informed Ms. Konersman that Nursing Assistants had
been assigned the task of performing the preadmission patient
assessments throughout the entire ASU, including the GI
In connection with the above described meeting, Captain
Barbara Henning, Charge Nurse, ASU, GI section, one of Ms.
Konersman's superiors, wrote a "Record of Counseling" which reads
in pertinent part as follows:
The second concern was the restructuring of the GI section during her [Konersman]
absence. This was not counseling but instructional information. The role of the
assessment nurse in the hospital has changed from a nurse to a technician. This elimi-
nates part of the duties that Elaine was used to doing. I reviewed this with her and
asked her to assume call back activities for the ASU as well as help complete a quality
improvement monitoring test for this unit. She asked a few questions, then seemed
Thereafter, for the next several months, the preadmission
assessments were performed by the Nursing Assistants. However,
despite the fact that Ms. Konersman was not a party to the
assessments, she was required to co-sign or certify such
assessments. To the extent that she might have been troubled by any
particular assessment, she had the option of forwarding the
assessment to the ASU for the signature of another Registered
Although Ms. Konersman was assigned some new duties, i.e.
patient "call-backs" and a quality assurance project, to replace
the preadmission assessments, she was concerned that allowing the
Nursing Assistant to perform the assessments and requiring her to
co-sign such patient assessments was placing her nursing license in
jeopardy since the Operating Instructions did not provide for such
a procedure. When she conveyed her concerns to Captain Henning, her
"direct supervisor", she was informed that the Operating
Instructions were in the process of being changed.
Around January 1993, for one reason or another, the number
of patients arriving at the GI section of the ASU increased to such
an extent that patients undergoing preadmission assessments were
forced to wait hours for their scheduled appointments. As a result,
Ms. Konersman was directed to help out the Nursing Assistants and
again participate in the preadmission assessments. Ms. Konersman
proceeded to perform the preadmission assessments herself and also
continued to co-sign the assessments made by the Nursing
Assistants. The record indicates that out of 32 preadmission
assessments performed during the period January - March 1993, Ms.
Konersman performed only 18 herself.
According to Ms. Konersman, she became uncomfortable about
giving narcotics or other medicines to patients that she really
knew nothing about since she had not personally performed their
preadmission assessments and, in May 1993, complained to the Union
steward about the matter.
The General Counsel takes the position that Respondent
violated Sections 7116(a)(1) and (5) of the Statute by implementing
changes in its GI Clinic, including reassigning preadmission
patient assessment duties to Nursing Assistants and having Ms.
Konersman co-sign or certify the preadmission assessments made by
the Nursing Assistants, without first giving notice to the Union
and affording it the opportunity to bargain over the impact and
manner of implementation of such changes.
Respondent on the other hand denies that it violated the
Statute. According to Respondent, it was not obligated to bargain
with the Union since "the facts do not support an argument that a
change even occurred" with respect to Ms. Konersman performing
preadmission patient assessments. In support of its position
Respondent notes that after the November 1992 meeting Ms. Konersman
continued to perform pre- admission patient assessments.
Additionally, Respondent takes the position that it was under no
duty to bargain with the Union about the reassignment of the
preadmission patient assessments since the "right to assign work is
statutorily retained by management". Although not clear from the
record, it appears that in this latter connection, Respondent is
contending that management is entitled to determine the percentage
of time an employee spends on various duties falling within the
employee's job description. Finally, Respondent takes the position
that even if a change in a condition of employment occurred, it was
under no obligation to bargain with the Union over the change
because, at best, the impact on Ms. Konersman's working conditions
A reading of the General Counsel's post-hearing brief
indicates that the General Counsel has attempted to broaden the
scope of the Complaint to include the failure of Respondent to
bargain over the assignment of the preadmission assessments to the
Nursing Assistants. Inasmuch as the Complaint is limited to the
changes imposed upon Ms. Konersman, the record is devoid of any
probative evidence concerning whether Nursing Assistants had in the
past performed preadmission assessments, the absence of any notice
to Respondent of General Counsel's intention to make the assignment
of preadmission assessments to the Nursing Assistants a part of the
Complaint, my decision will be limited solely to whether there was
a change in Ms. Konersman duties and if so, whether such change
imposed a bargaining obligation upon Respondent which was not
Based primarily on the credited testimony of Ms. Konersman
and the November 23, 1992 "Record of Counseling", I find that
effective November 23, 1992 Ms. Konersman's daily nursing duties
were changed to eliminate the preadmission patient assessments. I
further find that henceforth such preadmission patient assessments
were to be performed by the Nursing Assistant and that the Nursing
Assistant's assessments were to be certified by a Registered
Nurse.(4) Ms. Konersman did retain
the right to refuse to certify any particular assessment made by
the Nursing Assistant and forward same to another Registered Nurse
for signature. However, do to the fact that she had recently
undergone counseling she was reluctant to do so. Additionally, Ms.
Konersman was concerned that allowing a Nursing Assistant to
perform the assessments put her professional license in jeopardy
because the existing Operating Instructions did not provide for
such delegation. Finally, Ms. Konersman, who was responsible for
administering narcotics and other powerful medications based upon
the information contained in the preadmission assessments, feared
that there might well be an error in the assessments which could
cause injury to the patients and jeopardize her license.
Based upon the above findings of fact, I conclude in
agreement with the General Counsel and contrary to the contention
of Respondent, that the change made with respect to the
preadmission assessments had more than a de
minimis impact on the working conditions of
Ms. Konersman. Anytime a licensed employee is forced to either
perform or delete a duty which could jeopardize her license there
can be no doubt that such change has a substantial impact on the
Accordingly, I find that Respondent by changing Ms.
Konersman's conditions of employment, i.e. imposing the requirement
that she certify the preadmission assessments made by the Nursing
Assistant, without first notifying the Union and affording it the
opportunity to bargain over the impact and manner of implementation
of such change, violated Sections 7116(a)(1) and (5) of the
Statute. See, U.S. Government Printing
Office, 13 FLRA 203; Department of Health
and Human Services, Social Security Administration, 24 FLRA
In view of the foregoing findings and conclusions, it is
hereby recommended that the Authority issue the following Order
designed to effectuate the purposes and policies of the
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that the Department of the Air Force, 56th
Medical Group Hospital, MacDill Air Force Base, Florida, shall:
1. Cease and desist from:
(a) Imposing on the Registered Nurses including
Ms. Elaine Konersman, the responsibility for certifying the
preadmission assessments made by Nursing Assistants without first
notifying the American Federation of Government Employees, Local
547, the exclusive representative of a unit of our employees,
including Registered Nurses, working at the 56th Medical Group
Hospital, MacDill Air Force Base, Florida, and affording it the
opportunity to bargain concerning the procedures which management
will observe in effecting such change and appropriate arrangements
for employees, i.e Registered Nurses, affected by such change.
(b) In any like or related manner, interfering
with, restraining or coercing its employees in the exercise of
their rights assured by the Federal Service Labor-Management
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Relieve the Registered Nurses, including Ms.
Elaine Konersman, of the responsibility for certifying the
preadmission assessments made by the Nursing Assistants.
(b) Notify the American Federation of Government
Employees, Local 547, prior to implementation, of any future
changes in conditions of employment, including making Registered
Nurses responsible for certifying the preadmission assessments made
by the Nursing Assistants, and upon request, negotiate in good
faith with the American Federation of Government Employees, Local
547 with respect to procedures which management will observe in
effecting such changes and appropriate arrangements for employees
adversely affected by such changes.
(c) Post at its facilities at the 56th Medical
Group Hospital, 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 Commanding Officer, 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 insure that such Notices are not
altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the
Authority's Rules and Regulations, notify the Regional Director of
the Atlanta Region, 1371 Peachtree Street, NE, Suite 122, Atlanta,
GA 30309-3102, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, September 13, 1994
BURTON S. STERNBURG
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR
WE WILL NOT implement changes in working conditions of
bargaining unit employees, by unilaterally imposing upon the
Registered Nurses the responsibility for certifying the
preadmission assessments made by the Nursing Assistants without
giving notice to the American Federation of Government Employees,
Local 547, the exclusive representative of certain of our
employees, and affording it the opportunity to bargain concerning
the impact and manner of implementation of the change.
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 Federal Service Labor-Management Relations
WE WILL cease requiring the Registered Nurses, including Ms.
Elaine Konersman, to certify the preadmission assessments made by
the Nursing Assistants.
WE WILL notify the American Federation of Government Employees,
Local 547, the exclusive representative of our employees, of any
intended changes in conditions of employment, including assigning
to Registered Nurses the responsibility for certifying the
preadmission assessments made by the Nursing Assistants, and, upon
request, afford it the opportunity to bargain over those
Date: _________________________ By: ____________________________________
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor Relations
Authority, Atlanta Region, 1371 Peachtree Street, NE, Suite 122,
Atlanta, GA 30309-3102, and whose telephone number is: (404)
1. A Nursing Assistant is a civilian employee within the bargaining unit. A Nursing Technician is an active duty position in the military. Throughout the record the Nursing Assistant is referred to at times as Nursing Technician since the Respondent uses the terms interchangeably.
The systemic collection and review of patient-specific data gathered from all appropriate and available sources. The assessment includes conducting appropriate physical observation and/or examination procedures and recording, reporting, and evaluating such data as necessary to establish each patient's nursing diagnosis(es) and/or patient problems or care needs. An admission assessment begins with the nurse's first encounter with the patient and continues through the formulation of the nursing diagnosis(es) and/or patient care needs or problems list.
only Registered Nurses were authorized to perform preadmission
patient assessments. While Nursing Assistants might have been
allowed to perform tasks not involving professional judgments, such
as taking temperatures, blood pressure readings and EKGs, etc., the
Registered Nurse was required to actually assess the physical
condition of the patient and ascertain the patient's medical
With respect to the training given Mr. Watts in connection with
preadmission patient assessments, Ms. Jack denied ever receiving
any notice from Respondent that such training was being
Ms. Jack's testimony in the above respect is supported by (1) Respondent's Operating Instructions, and (2) ASU admission criteria and procedures dated 1991 and 1992. The 1993 version of the admission criteria and procedures, which was published after the filing of the charge underlying the instant complaint, for the first time makes provision for Nursing Assistants to aid in the collection of the preadmission data.
commenced using the clinic, Respondent altered its original decision and reassigned Ms. Konersman to help out with the preadmission assessments does not change the fact that on November 23, 1992 a change was made in Ms. Konersman's conditions of employment.
6. Applying the criteria set forth by the Authority in Federal Correctional Institution, 8 FLRA 604, i.e. whether and when notice was given the Union, the willfulness of the activity's conduct in failing to discharge its bargaining obligations imposed by the Statute, the nature and extent of the impact experienced by the adversely affected employees, and whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the activity's operations, I find that the status quo ante remedy urged by the General Counsel is not in order. This is particularly true since the 7116(a)(5) violation is not predicated on the reassignment of the preadmission assessments to the Nursing Assistants but rather on the imposition of the certification requirements upon the Registered Nurses. However, I will order that the Respondent cease and desist from having the Registered Nurses co-sign or certify the accuracy of the preadmission assessments made by the Nursing Assistants until such time as the Union has been accorded the opportunity to negotiate over the impact of such change.