24:0009(3)CA - VA, Washington, DC and VA Medical and Regional Office Center,Fargo, ND and AFGE -- 1986 FLRAdec CA
[ v24 p9 ]
24:0009(3)CA
The decision of the Authority follows:
24 FLRA No. 3
VETERANS ADMINISTRATION
WASHINGTON, D.C.
and
VETERANS ADMINISTRATION MEDICAL
AND REGIONAL OFFICE CENTER
FARGO, NORTH DAKOTA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 7-CA-40438
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
Veterans Administration, Washington, D.C. and Veterans Administration
Medical and Regional Office Center, Fargo, North Dakota (the
Respondents). This case involves the Respondents' alleged failure and
refusal to bargain in good faith with the American Federation of
Government Employees, AFL-CIO (Union) and Respondents' unilateral
implementation of policy guidelines for the safe handling of
chemotherapeutic agents by bargaining unit employees in violation of
section 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (the Statute). For the reasons stated below, we find
that the Respondents violated section 7116(a)(1) and (5) of the Statute
by failing to fully bargain with the Union.
II. Facts
On February 2, 1984, the Respondents forwarded to the Union a
proposed policy guideline for the safe handling of chemotherapeutic
(chemo) agents that the Union had been seeking for over one year.
Immediately thereafter, on February 3, the Union requested bargaining on
these guidelines. The parties met in a 45-minute bargaining session on
February 21, 1984, at which time the Union presented and explained 18
proposals. The Respondent Medical Center made brief comments and
objections as to some of the proposals and declared only one
nonnegotiable. The Respondents' representative requested the Union to
submit its proposals in writing and stated that another bargaining
session would be arranged. No further bargaining took place, however,
and on March 2, the Respondent Medical Center forwarded the revised
policy to the Union stating that the majority of the Union's proposals
did not address the policy and that it had incorporated some of the
Union's wording. On March 5, 1984, the Respondent Medical Center sent
the Union a memorandum saying, in effect, that it would not discuss the
proposals further. Finally, on April 2, 1984, the Respondents
implemented the new policy that incorporated some of the Union's
suggested wording made at the February 21 meeting.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondents failed and refused to
bargain in good faith with the Union and unilaterally implemented policy
guidelines on the safe handling of chemo agents in violation of section
7116(a)(1) and (5) of the Statute. She found that the Union had
negotiable proposals on the bargaining table at the time the alleged
failure to bargain and the unilateral implementation occurred. She also
found that while the Union did have "great impact in formulating" the
policy guidelines and that some bargaining took place, such bargaining
fell short of the statutory obligation imposed upon management. The
Judge's cease-and-desist Order included retroactive application of any
agreement reached pursuant to a bargaining request made by the Union.
IV. Exceptions to the Judge's Decision
The Respondents excepted to the Judge's finding that they did not
meet their bargaining obligation. They took the position that they were
not required to bargain as to the substance of proposals concerning the
guideline because they involved the exercise of management rights and
did not fail or refuse to bargain concerning the impact and
implementation of the guidelines. The Respondents also took the
position that they had no obligation to negotiate with the Union
regarding union-initiated midterm proposals concerning the handling of
chemo agents. Finally, they argue that it was inappropriate for the
Judge to order retroactive relief.
V. Analysis
We find in agreement with the Judge and based on her rationale that
the Respondents violated section 7116(a)(1) and (5) of the Statute by
failing and refusing to bargain in good faith with the Union and by
unilaterally implementing guidelines on the safe handling of chemo
agents. In so finding, we have not considered the Respondents'
negotiability contentions as to the Union's proposals because they were
raised for the first time in the Respondents' exceptions to the Judge's
Decision. In accordance with section 2429.5 of the Authority's Rules
and Regulations, "the Authority will not consider evidence by a party,
or any issue, which was not presented in the proceeding before the
Regional Director, Hearing Officer, Administrative Law Judge or
arbitrator." Accordingly, as this issue was not previously raised before
the Judge in this proceeding it will not be considered. Immigration and
Naturalization Service, Washington, D.C., 4 FLRA 787 (1980).
Further, we find no merit to the Respondents' argument presented in
the exceptions that they had no obligation to bargain over
union-initiated midterm proposals. While the Respondents have no duty
to bargain on union-initiated midterm proposals, once the Respondents
forwarded to the Union a proposed policy guideline for the safe handling
of chemo agents and changed working conditions of unit employees by
subsequently issuing them, a duty to bargain was created. See Internal
Revenue Service, 17 FLRA 731 (1985), petition for review filed sub nom.
National Treasury Employees Union v. FLRA, No. 85-1361 (D.C. Cir. June
14, 1985).
VI. Remedy
We disagree with that part of the Judge's Order giving retroactive
application to any agreement reached by the parties pursuant to a
bargaining request by the Union. In the circumstances of this case, a
prospective bargaining order will best effectuate the purposes and
policies of the Statute. It is neither inadequate nor inherently
restrictive of the parties' rights to address the effects on unit
employees of changes already made. Rather, it allows the parties the
flexibility to bargain freely with regard to how past actions may have
affected employees and the opportunity to agree to retroactive
application of the agreement. Environmental Protection Agency, 21 FLRA
No. 98 (1986).
VII. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision, the positions of the parties and the entire
record, and adopts the Judge's findings, conclusions, and recommended
Order for the reasons discussed above.
Therefore, the Authority concludes that the Respondents violated
section 7116(a)(1) and (5) of the Statute by failing to fully bargain
with the Union and by implementing guidelines on the safe handling of
chemotherapeutic agents.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Veterans Administration, Washington, D.C. and Veterans
Administration Medical and Regional Office Center, Fargo, North Dakota,
shall:
1. Cease and desist from:
(a) Failing and refusing to bargain upon request of the American
Federation of Government Employees, AFL-CIO, or its authorized
representative, American Federation of Government Employees, Local 3884,
concerning the safe handling of chemotherapeutic agents by bargaining
unit employees.
(b) Implementing a change in conditions of employment of bargaining
unit employees represented by the American Federation of Government
Employees, AFL-CIO, without first bargaining, upon request, with the
American Federation of Government Employees, AFL-CIO, or its authorized
representative, American Federation of Government Employees, Local 3884,
concerning guidelines for the safe handling of chemotherapeutic agents.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the American Federation of Government Employees, AFL-CIO,
or its authorized representative, American Federation of Government
Employees, Local 3884, of any proposed change in conditions of
employment concerning the safe handling of chemotherapeutic agents by
bargaining unit employees, and, upon request, bargain concerning such
change to the extent it is not inconsistent with any Federal law or any
Government-wide rule or regulation.
(b) Post at its facility at Fargo, North Dakota, copies of the
attached Notice To All Employees on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms, they shall be
signed by the Director of the Veterans Administration Medical and
Regional Office Center, Fargo, North Dakota, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
inclduing all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
ensure that such Notices are not altered, defaced, or covered by other
material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with the Order.
Issued, Washington, D.C. November 12, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to bargain upon request of the American
Federation of Government Employees, AFL-CIO, or its authorized
representative, American Federation of Government Employees, Local 3884,
concerning the safe handling of chemotherapeutic agents by bargaining
unit employees.
WE WILL NOT implement a change in conditions of employment of
bargaining unit employees represented by the American Federation of
Government Employees, AFL-CIO, without first bargaining, upon request,
with the American Federation of Government Employees, AFL-CIO, or its
authorized representative, the American Federation of Government
Employees, Local 3884, concerning guidelines for the safe handling of
chemotherapeutic agents.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, or its authorized representative, the American Federation of
Government Employees, Local 3884, of any proposed change in conditions
of employment concerning the safe handling of chemotherapeutic agents by
bargaining unit employees, and, upon request, bargain concerning such
change to the extent it is not inconsistent with any Federal law or any
Government-wide rule or regulations.
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
Statute.
(Activity)
Dated: By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VII, Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose
telephone number is: (303) 837-5224 or FTS 8-564-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 7-CA-40438
VETERANS ADMINISTRATION, WASHINGTON, D.C.
and
VETERANS ADMINISTRATION MEDICAL AND
REGIONAL OFFICE CENTER, FARGO, NORTH DAKOTA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party/Union
Branson H. Moore,
For the Respondents
Cathy A. Auble and
Joseph Swerdzewski,
For the General Counsel,
Federal Labor Relations Authority
Larney Werth,
For the Charging Party
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the Statute, and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
Pursuant to a charge of unfair labor practices under the Statute,
filed on May 3, 1984, and amended on July 23, the Regional Director for
Region VII of the Federal Labor Relations Authority (hereinafter, the
Authority) investigated and, on July 31, issued the complaint initiating
this proceeding.
The complaint alleges that the Veterans Administration, Washington,
D.C. (hereinafter, VA DC) and the Veterans Administration Medical and
Regional Office Center, Fargo, North Dakota (hereinafter VA Fargo) have
engaged in, and are engaging in, unfair labor practices within the
meaning of Section 7116(a)(1) and (5) of the Statute. /1/ The complaint
specifically alleges that on or about March 5, 1984, Respondents through
its agent David C. Engstrom at Respondents' Fargo, North Dakota
facility, failed or refused, and have continued to refuse to bargain,
upon request, with the Union concerning the Respondents' proposed
guidelines for the safe handling of chemotherapeutic agents. The
complaint further specifically alleges that on or about April 2, 1984,
Respondents, through their agent F.E. Gathman, at Respondents' Fargo,
North Dakota facility, unilaterally implemented policy guidelines
concerning the safe handling of chemotherapeutic agents by bargaining
unit employees without bargaining with the Union over such changes in
conditions of employment.
On or about August 13, 1984, Respondents filed an answer to the
complaint, substantially denying its allegations of unfair labor
practices.
On September 20, 1984, a hearing was held in Fargo, North Dakota.
The parties appeared, introduced documentary evidence and examined
witnesses. Briefs were filed on November 9 by the Respondents and the
General Counsel pursuant to an order of October 18 extending the
briefing time to said date, for good cause shown and upon the unopposed
request of Respondents. Based upon the record made in this case, my
observation of the demeanor of the witnesses, and the briefs, I enter
the following findings of fact and conclusions of law, and recommend the
entry of the following order.
Findings of Fact /2/
1. At all times material herein, the Union has been, and is a labor
organization within the meaning of section 7103(a)(4) of the Statute,
and Local 3884 has been, and is its affiliate and agent.
2a. On February 28, 1980, the Union was certified as the exclusive
representative of a national consolidated union consisting of certain
professional employees of Respondent Washington, D.C.
b. On July 23, 1981, registered nurses, among others, employed at VA
Fargo were included in the unit.
3a. At all times material herein, VA DC and the Union have been
parties to a national Interim Memorandum of Agreement covering the
employees in the unit described in finding 2, above.
b. At all times material herein, VA Fargo, and the Union, have been
subject to the terms and conditions of a collective bargaining agreement
covering the employees in the unit described in finding 2b, above,
(effective July 3, 1974 and amended on December 30, 1976) between VA
Fargo and the North Dakota Nurses' Association, the Union's predecessor,
as the exclusive representative of the Unit described in finding 2b,
above. This agreement provides for grievance and arbitration
procedures.
4a. At all times material herein, Respondents are, and have been
agencies within the meaning of Section 7103(a)(3) of the Statute.
b. At all times material herein F. E. Gathman has occupied the
position of Center Director, at Respondents' facility located in Fargo,
North Dakota, and has been, and is now, a management official or
supervisor within the meaning of Sections 7103(a)(10) and/or (11) of the
Statute, and an agent of Respondents.
c. At all times material herein, Dr. David C. Engstrom has occupied
the position of Chief of Staff, at Respondents' facility located in
Fargo, North Dakota, and has been, and is now, a management official or
supervisor within the meaning of Sections 7103(a)(10) and/or (11) of the
Statute, and an agent of Respondents.
5. Chemotherapy is the treatment of cancer by means of a family or
drugs known as chemotherapeutic or antineoplastic agents and referred to
as "chemo." Although physicians occasionally give chemo, registered
nurses (RNs) have been responsible for administering chemo on a
continuous basis since 1976. Of the 80 RNs at VA Fargo's facility who
might have an opportunity to give chemo, 20 to 25 administer chemo on a
regular basis. While 16 different kinds of chemo are used at VA Fargo's
facility, 7 types are most frequently administered, such as Cytoxan.
Chemo can be administered either orally, or with a syringe and needle
into a patient's vein or muscle, or under a patient's skin.
6. While chemo may cure a patient's cancer, chemo can later cause
other problems for the same patient. Recent research has shown that
health hazards also exist for the person who administers chemo. Such
health hazards include defects in unborn babies (such as malformed
skulls and hearts), miscarriages, premature births, as well as
complaints of itching, facial flushing, hair loss, headaches, nausea,
and vomiting. A test was developed (Ames Test) to measure mutagenic
changes (permanent, inheritable chromosomal changes) detected in the
urine of persons who have handled chemo. Two separate studies were
conducted using the Ames Test. One study involves RNs who administered
chemo without any safety precautions; the other study concerned
pharmacists who prepared chemo for administration but who wore
protective gloves, gowns and goggles. None of the pharamacists had any
mutagenic changes in their urine; but all of the nurses studied showed
such mutagenic changes. The January 1984 issues of The Lancet Medical
Journal reported that a so-called Hirst Study demonstrated that Cytoxan
is absorbed through the skin, causing mutagenic changes in the
administrator's urine, with the long-term effects from repeated exposure
be the handler to Cytoxan being the development of bladder cancer.
7. In 1982, Larney Werth, President of Local 3884, first learned of
health hazards to RNs who administer chemo and asked VA Fargo's Chief of
Staff, Dr. Engstrom, to address the health and safety aspects of RN
administration of chemo, which Dr. Engstrom agreed to do. Subsequently,
Dr. Engstrom went to the Environmental Control Committee (ECC) at VA
Fargo's facility and asked its chairman to look for other policies in
other hospitals which could be used as a starting point to develop a
policy for VA Fargo. Dr. Engstrom also talked about the problem with
Anne Doyle, who is an RN who administers chemo and has been the
out-patient oncology (cancer) nurse since May 1982. Dr. Engstrom
furnished literature on the subject to Ms. Doyle. Ms. Doyle is
Treasurer of Local 3884.
8. On September 13, 1983, Ms. Doyle sent a letter to the ECC
expressing her concerns, as an Oncology Nurse, regarding the need for a
policy concerning the safe handling and administration of chemo. See R.
Exh. 1(a). /3/ Receiving no response, she sent a letter to Dr. Engstrom
on November 22, raising the same concerns and signing both as "Oncology
Nurse" and "Union Treasurer." Dr. Engstrom responded and informed her
that her concerns would be forwarded to the ECC for consideration.
9. In a letter dated December 7, 1983, to Dr. Engstrom, signed by
Mr. Doyle as both "Oncology Nurse" and "Union Treasurer," she requested
bargaining over her concerns expressed in her earlier letters. She
claimed they should be viewed "as Union mid-term bargaining proposals."
See R. Exh. 1(a) and also G.C. Exh. 17(a), para. 3 and Tr. 12, 139 and
140.
10. Ms. Doyle became a member of the Ad Hoc Committee of ECC and, on
December 8, 1983, attended a committee meeting, along with a Union
steward. At the outset, she and the steward indicated that they were
attending as Union officials, in the event the committee intended to
finalize any guidelines over the safe handling of chemo. Both Union
officials were allowed to present and discuss fully their concerns on
the matter at the meeting.
11. On December 13, 1983, the Union requested bargaining over its
proposals on the safe handling of chemo by RNs. See G.C. Exh. 17(a).
On December 15, the request was denied by Dr. Engstrom, claiming that
union-initiated proposals for midterm bargaining were not negotiable.
Referring apparently to the Ad Hoc Committee of ECC and its meeting on
December 8, Dr. Engstrom stated that Ms. Doyle was not invited as a
representative of the Union, but as an interested party in terms of
being an RN who was "the author of the proposal" considered by the
committee (G.C. Exh. 17(a)). Dr. Engstrom denied that the referral by
him to the committee was to bury the subject; that the committee had no
authority to sign off on a policy; and that "(s)hould a policy evolve
out of the present proposal, it will be sent to the Union for comment"
(G.C. Exh. 17(b).
12. Eventually the ECC adopted most of Ms. Doyle's proposals and
sent them to Dr. Engstrom, who, in turn sent the proposed policy to the
Clinical Executive Board (CEB) and asked for its support. The CEB did
not support it. From the CEB, the proposed policy went to Director
Gathman, who "put (it) out" (Tr. 124). It was "an almost exact replica
of the Union's proposals" (R. Exh. 2(a).
13. On or about February 2, 1984, VA Fargo, through Dr. Engstrom,
forwarded the proposed policy guidelines for the safe handling of chemo
to Local 3884. On or about February 3, Local 3884 requested bargaining
on the proposed guidelines. Several dates for bargaining suggested by
Local 3884, February 6 and 13, were apparently not satisfactory to
management. See R. Exh. 2.
14. On February 21, 1984, the parties met in a bargaining session
that lasted from about 3:30 p.m. to about 4:15 p.m. Representing
Respondent were Dr. Engstrom, Ray Johnson, the Chief of Personnel
Services, and Irene Bloom, Chief of Nursing Services. Representing
Local 3884 were Mr. Werth, Ms. Doyle, and Sue Flom, a steward in the
unit which has the most chemo on it. At this meeting, Local 3884 made
18 proposals and explained them. Of the 18 proposals, the General
Counsel asserts that "9 of the proposals are negotiable" (Tr. 10). The
9 are set forth in findings 15 through 23, inclusive. See Tr. 10 and
G.C. 9.
15. Local 3884's proposal 1(A) provides that:
The employee shall, consistent with the provisions contained in
Section 19 of the Occupational Safety and Health Act 1970,
Executive Order 12196, 29 CFR 1960, and all applicable laws, rules
and regulations be responsible for furnishing to and maintaining
for his employees places and conditions of employment that are
free of hazards that are causing or are likely to cause an
accident, injury or illness to the employee.
See. G.C. 9(a). The intent of Local 3884, in making this proposal
was just to make management's proposed policy "a little bit stronger"
(Tr. 32). Respondents do not allege that the proposal was
non-negotiable, only that it was "unnecessary" and "serve(d) no purpose"
(R. Br. 8). This proposal was discussed at the February 21 meeting of
the parties. Dr. Engstrom objected that "you really can't make any
working environment hazard-free" and he "object(ed) to the strength of
(the) language" (Tr. 33). Local 3884's team replied that "you've got to
strive towards making it as safe as possible" and "take every
precaution" (Tr. 34 and see also Tr. 76-77) Dr. Engstrom agreed that
safety was "an ideal we should pursue certainly. He pointed out that
the facility was already subject to the standards by Federal law. He
stated that "we d(o) not feel we needed to write it into our policy in
the institution" (Tr. 127).
16. Local 3884's proposal 1(B) provides that:
The union has the right to advise management concerning safety and
health problems.
See G.C. 9(a). The intent of Local 3884 in proposing this was to
"give (it) the right to meet with management if (it) felt there was a
problem" and to "implement a procedure" for so doing (Tr. 34).
Respondents do not allege that this proposal is non-negotiable, only
that Union has the right and obligation to bring such matters to the
attention of management and has a representative on the Health and
Safety Committee who may bring such matters to the attention of
management. See R. Br. 8. Ms. Doyle was denied the right about a year
and a half ago, asa union representative. See Tr. 78-79. Counsel for
Respondents conceded that he knew of no written agreement giving the
Union the right to advise management concerning safety problems. See
Tr. 80. Local 3884 explained this proposal. There is no evidence that
management made any comments about this proposal at the February 21
meeting. See Tr. 35, 110 and 127.
17. Local 3884's proposal 1(C) provides that:
When a workplace inspection is conducted by the employer's safety
representative or by an outside agency such as OSHA or NIOSH, the
union shall be invited and encouraged to participate. During the
course of any such inspection, any employee(s) may bring to the
attention of the inspectors any unsafe or unhealthful working
conditions.
See G.C. Exh. 9(a). The intent of Local 3884 was to have the ability
to meet with these inspectors when they are onsite and to bring concerns
to their attention. See Tr. 35-38. Respondents do not allege that this
proposal is non-negotiable. See R. Br. 7-9. Dr. Engstrom stated, at
the February 21 meeting that VA Fargo was already subject to OSHA /4/
and NIOSH /5/ standards so he "did not feel that (VA Fargo) needed to
write it into (its) policy in the institution" (Tr. 127). /6/
18. Local 3884's proposal 1(D) provides that:
When an investigation is made of an occupational accident by
anyone, the union shall be invited and encouraged to participate.
See G.C. Exh. 9(a). The intent of Local 3884 in making this proposal
was for it to be "a kind of trigger mechanism" making management notify
it of any accidents to one of the bargaining-unit employees while using
chemo, and encouraging it to participate in the investigation (Tr.
38-39). Respondents do not allege that this is non-negotiable, only
that a "procedure is already established to investigate accidents and
works quite well," and to "invite additional participation could quite
possibly result in delay and confusion" (R. Br. 8). There is no
evidence that management made any comments concerning this proposal at
the February 21 meeting.
19. Local 3884's proposal 3, first sentence, provides that:
The employer shall acquire, maintain and require the use of
approved safety equipment, approved personal protective equipment,
and other devices necessary to provide protection of employees
from hazardous conditions encountered during the performance of
official duties.
See G.C. 9(b). The intent of Local 3884 in proposing this was to
insure that management maintain the safety equipment management had
agreed to acquire, to have it ready for use on the units that give
chemo, and to require needles and syringes to be discarded intact and
placed in a leak and puncture proof biohazard container. See Tr. 42.
Respondents do not allege that this proposal is non-negotiable, only
that "protective clothing is already being provided" and that it is
"clear that if management provides, it will maintain" (R. Br. 8). Local
3884 explained, at the February 21 meeting, that a "lot of the hazard
occurs" in the disposal of items used to administer chemo (Tr. 42).
Protective equipment is currently available in the wards; but Local
3884 has no signed agreement that management will maintain it, or keep
it there. See Tr. 90. At the time of the February 21 meeting, Local
3884 proposed a date by which protective equipment would be provided;
and Dr. Engstrom commented that he would have "trouble with the specific
date because (he) didn't know if the policy was going to be into its
approved form by a specific date because there was potential not only
for (him) to have to bargain this policy with (Local 3884's) bargaining
unit but another bargaining unit" (Tr. 128). Local 3884's team
indicated they "understood that aspect of it" (Tr. 128).
20. Local 3884's proposal 4(B) provides that:
Management agrees to provide the where withal (sic.) to implement
these proposals regarding antineoplastics no later than 3/15/84.
See G.C. Exh. 9(c). The intent here was to obtain an implementation
date on a matter Local 3884 had been pursuing with management since
November 1982. See Tr. 45. Respondents do not now question the
negotiability of this proposal, although an indication of such a
question was raised at the hearing. Compare R. Br. 7-9 with Tr. 13-14.
Proposal 4(B) was mentioned at the February 21 meeting. Local 3884 said
it wanted "implementation just as soon as possible" (Tr. 46).
Management raised no budgetary or financial matters regarding this
proposal. Dr. Engstrom again explained his problem with meeting the
specific implementation date because of bargaining obligations to
another union.
21. Local 3884's proposal 4(I) provides that:
The employer shall grant official time to a designated Union
official for purposes of further research on the subject of safe
administration of antineoplastics for purpose of educating
bargaining unit employees to their safe uses. Training programs
will be coordinated between the A.C.N.S.E. and the Union designee.
Official time shall be limited to 8 hours per week for
effectuating these programs. Tuition, official time and per diem
shall be provided for said Union designee to attend "outside"
workshops or courses to further knowledge and expertise on the
subject of safe handling of antineoplastics.
See G.C. Exh. 9(d) and Tr. 82. The intent of Local 3884 in making
this proposal was to elaborate and implement management's proposal that
personnel would receive special training in the handling of chemo and
also refresher courses, with documentation being given that training had
taken place. See Tr. 46-48. Also, Local 3884 wanted official time to
do research and advise unit employees. Dr. Engstrom made the following
comment on union proposal 4(I) at the February 21 meeting:
I specifically -- this is an issue involving official time for
further research in education on the subject. This was an area
where I pointed out that we do have an education committee and I
pointed out any of the employees of the facility can request
educational time and also financial support in terms of tuition
and per diem and based on availability of resources the education
committee does provide those types of things and I felt this would
be delving into setting up or splitting the responsibilities of
the education committee as such. I also stated that in handling,
since the subject of the policy was to be handling, that I had
hoped to avoid discussion on on (sic.) official time as such which
is an area we discussed briefly.
See Tr. 129. Although Mr. Werth could not recall any concerns raised
by management as to proposals 4(I), he did not seem sure. See Tr. 48.
Dr. Engstrom, on the other hand, appeared confident of this
recollection.
22. Local 3884's proposal 4(J) provides that:
As new technology develops in the area of antineoplastics
safety, management and the Union shall meet at the call of either
party to discuss such developments and plan together to obviate
any hazards identified. This agreement shall be modified to
incorporate any changes arrived at following such discussions.
See G.C. Exh. 9(e). The intent of Local 3884 was to provide a
mechanism to come back to the bargaining table, if needed, as new
technology developed. See Tr. 48-49. Respondents suggest that this
proposal "may be a possible area which is non-negotiable under 5 U.S.C.
7106(b)(1). /7/ See R. Br. 9. Respondents argue that management has
the option of negotiating technology, methods, and means of performing
work and that "(t)o incorporate this proposal would require negotiations
every time management wished to adopt any advances made in this field,"
which it declined to do (R. Br. 9). As to proposal 4(J) Dr. Engstrom
testified:
I pointed out to them that regarding this issue at any time that
there was a hazard identified any employee has responsibility to
notify their supervisor and if the supervisor can't correct it
then they have the right to go to a higher level. I felt that did
not need to be contained in this policy as such because I would
expect it of any such employee who recognized a hazard.
See Tr. 129-30.
23. Local 3884's proposal 4(K) is as follows:
Introduction or use of any new or different antineoplastic agent
will be reported to the Union before use of said chemical is
begun. (New as different to this Institution).
See G.C. Exh. 9(e). The intent of this proposal was to put a
mechanism in place so that, should a new hazardous substance be
introduced into the RNs workplace, management would first confer with
the Union and tell them if its introduction, so that the Union "would
have time to do a database, search library works, whatever is necessary
to find out what the hazards are before that drug is used" (Tr. 49).
Local 3884 would seek this notice after the facility's Pharmacy and
Therapeutics Committee (P&TC) approved the new drugs for use at the
facility. See Tr. 52-53. Local 3884 did not seek "veto power" over the
introduction of new drugs into the hospital (Tr. 83-84). It did want a
report before those chemicals were begun, in order to prepare for any
hazard. Respondents argue, as to this proposal that:
The hospital has a pharmacy and therapeutic committee which has a
responsibility to pass on new drugs coming into use in the Medical
Center. The union proposal would erode and abrogate a portion of
the function of that committee.
See R. Br. 9. Dr. Engstrom discussed the fact that, in his view, he
was in no position to negotiate away the responsibility of the P&TC in
determining whether or not we would put a drug in the "formulary," which
is a list of drugs available for use on a regular basis. See Tr. 130.
24. At the February 21, 1984, meeting the union representatives
expressly stated that: "We wanted biohazard bags" and all equipment
contaminated with chemo placed in that bag (Tr. 109 and see also Tr.
42). Management's proposal, at the time of the February 21 meeting,
provided for disposal in bio-hazard bags. See G.C. Exh. 5(c), para C2.
25. After the discussions set forth in findings 15-24 inclusive, and
before the February 21, 1984 meeting ended, Dr. Engstrom asked for a
copy of the union proposals. See Tr. 28 and 130. Mr. Werth replied
that it was "a partial proposal, that there would probably be more" (Tr.
130). Ms. Doyle stated that she wished to put the union proposals in a
typewritten format because she felt that it was "not well structured and
not completed at that time" (Tr. 130). The union representatives told
Dr. Engstrom he would have "a typewritten copy of their proposals by the
following Tuesday" (Tr. 131). (February 21, 1984, fell on a Tuesday.)
No proposals were signed or initialed off at this meeting. See Tr. 28
and 111. Dr. Engstrom concluded the meeting by stating that "he would
arrange for the next negotiating session, he would let the Union know
the time and place for the next session" (Tr. 28).
26. On Tuesday, February 28, 1984, Local 3884 forwarded a copy of
its proposals to Dr. Engstrom, with the caveat: "Not necessarily bound
to all these proposals at this time;" and "Partial List of Proposals
Including Most Substantive Matters." (G.C. 9(e)). The copy appears to
be patched-up compilation of typed and handwritten material. Dr.
Engstrom saw the caveat at the February 21 meeting. See Tr. 163. He
had expected to see new proposals, but found none in the copy forwarded
to him on February 28. See Tr. 131-132 and 162-163.
27. Dr. Engstrom compared Local 3884's proposals with the original
proposed policy, and made what he called "relatively minor changes" (Tr.
132). One change was to delete the adjective "bio-hazard" from the
original proposed policy. See Tr. 149 and compare paragraph C2 of G.C.
Exh. 5(c), the management proposal discussed at the February 21 meeting,
with the same paragraph in G.C. Exh. 10(c), the alteration made by Dr.
Engstrom after receiving the copy of Local 3884's proposals in February
28, and with the same paragraph of G.C. Exh. 13(b), the policy finally
implemented. As found in finding 24, above, Local 3884 explicated the
need for "bio-hazard" bags at the February 21 meeting and never proposed
that this word be removed from the policy. See Tr. 54 and 110. Other
changes made were minor in nature, at least one having been proposed by
Local 3884 at the February 21 meeting. See Tr. 150.
28. By a March 2, 1984, cover memorandum, Dr. Engstrom forwarded the
revised policy to Local 3884. Dr. Engstrom stated that a majority of
the Local's proposals did not address the policy and that Respondent VA
Fargo had incorporated some of the Local's "suggested wording" (G.C.
10). That same day, Local 3884 responded by memorandum asking Dr.
Engstrom to either counter-propose, or to declare the Local's proposals
non-negotiable, and stating that Local 3884 awaited Dr. Engstrom's
suggestion for the next bargaining session. See G.C. Exh. 11.
29. On March 5, 1984, Dr. Engstrom sent the following memorandum to
Ms. Doyle:
1. Your comment was solicited and considered regarding the
policy for "Guidelines for Safe Handling of Chemotherapeutic
Agents."
2. Once your written proposal was provided it was reviewed and
the policy was altered in its wording where the policy was
addressed.
3. Sections 1, 2, 3 are considered to be midterm bargaining
and are not appropriate.
4. The views and recommendations from Section 4 have been duly
noted and incorporated, where applicable. It is not within the
scope of the proposed policy to discuss such things as (a)
official time, (b) AFGE continuing education and its funding, (c)
abrogation of the P&T Committee or education committees, (d) or
employees right to refuse duties.
5. In closing, proposed policies and changes are submitted to
Local 3884 for review and comment in accordance with CSRA 7117d 1,
2, and 3.
6. Views and recommendations should be confined to the
proposed policy, circular, etc. At this time the revised
"Guidelines for Safe Handling of Chemotherapeutic Agents" will be
forwarded to NFFE Local 225 for review and comment in accordance
with the above and following that, will be forwarded to the
Director for issuance.
See G.C. 12. Use of the term "not appropriate" by management has, in
the past, been a signal to Local 3884 that management refuses to discuss
the matter any further; and this was the intent of Dr. Engstrom here.
See Tr. 57-59 and 156-157. Mr. Werth understood the use of the terms
"views and recommendations" being "noted" as meaning that management
would listen to Local 3884, but was not obligated to bargain over its
proposals. Use of the citation to "CSRA 7117d 1, 2, and 3" reinforced
this view of Local 3884, since that portion of the Statute deals with
"consultation rights" of labor organizations which are not certified as
the exclusive bargaining representative of a majority of the employees
(as is the Union here) and does limit the labor organization to
presenting only "views and recommendations" which an agency shall merely
"consider" before taking final action. See 5 U.S.C. 7117(d)(1), (2) and
(3). Dr. Engstrom testified that he later discovered he had cited the
wrong statutory provision, but he did not so inform Local 3884, even
though he realized that Local 3884 probably understood this wrong
citation to demonstrate that VA Fargo was willing only to consult. See
Tr. 155-156. Local 3884 did so construe the memorandum and also
understood that no further bargaining would occur. See Tr. 65. It
therefore did not seek further bargaining on the proposed policy. Dr.
Engstrom testified that he did, indeed, intend no further bargaining
with the union team "(u)nless they came up with another issue" (Tr.
161).
30. On April 2, 1984, VA Fargo implemented the policy at its
facility. See G.C. Exh. 3. Other than the addition of "Purpose" and
"Procedures" headings, the implemented policy was no different from the
March 2 revision of the proposed policy.
Discussion and Conclusions
The General Counsel has established, by a preponderance of the
evidence, /8/ that Respondents have failed and refused to bargain in
good faith with the Union over negotiable proposals and unilaterally
implemented policy guidelines on the safe handling of antineoplastics
agents (chemo) by bargaining-unit employees.
1. Respondents content only the negotiability of one union proposal
at issue here. See R. Br. 7-9. Putting that particular proposal aside,
all the rest concern the health and safety of bargaining-unit employees,
RNs, while performing their duties -- namely the safe handling of chemo
in administering it to cancer patients. See findings 15-21, inclusive
and 23, above. Undisputedly, chemo that is not safely handled presents
serious health hazards to RNs. See finding 6, above. Thus, the
proposals "concern matters directly affecting 'the work situation and
employment relationship' of bargaining unit employees (and are) within
the duty to bargain." See National Federation of Federal Employees,
Local 1363, 12 FLRA 635, 636 (1983). None appear, or are claimed to
infringe upon any management right. Thus, the union had some negotiable
proposals on the bargaining table at the time the alleged failure to
bargain in good faith, and unilateral implementation occurred, as will
be now discussed. /9/
2. Whether there has been a failure of good faith bargaining is
measured by certain criteria set by the Statute and established by case
precedent. First of all, "the totality of the evidence" is considered,
and the actions of the parties viewed in the context in which the
negotiations arose. See Division of Military and Naval Affairs, State
of New York (Albany, New York), 7 FLRA 321, 338 (1981, hereinafter
referred to as DMN). Considered also is whether the parties approached
the negotiations with a sincere resolve to reach a collective bargaining
agreement; were represented by duly authorized representatives prepared
to discuss and negotiate on any condition of employment; met as
frequently as was necessary; and avoided unnecessary delays. See DMN,
id. at 321 and Section 7114(b) of the Statute, defining the bargaining
obligations of the parties in these terms. Exploring and discussing
each others' positions "embodies the very essence of negotiations as
envisioned by the Statute." See Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, North Atlantic Region, (New York, New
York), 8 FLRA 296, 304 (1982, hereinafter DOT). Requirements for
stylized forms of communication are to be eschewed. See DOT, ibid,
referring to no requirement that a union "must make a specific proposal
and that discussions must somehow always lead to a written contract . .
. ." An employer's failure to submit counterproposals is not generally
regarded as a per se violation of the duty to bargain in good faith.
See N.L.R.B. v. Arkansas Rice Growers Cooperative Ass'n, 400 F.2d 565,
571 (8th Cir. 1968), a decision by the Federal agency which resolves
labor disputes in the private sector. The fact that intra-agency
memorandums may speak in terms of "an obligation to consult, rather than
negotiate" is not controlling, if the totality of the agency's conduct
indicates that it did, in fact, bargain. See Department of Health and
Human Services, Social Security Administration, Baltimore, Maryland, 16
FLRA 217, 228-229 (1984), hereinafter DHHS).
3. The record in this case has been reviewed using the above-stated
criteria. It reveals the following indications that bargaining as to
the concerns at issue fell short of the statutory obligation imposed
upon management.
First of all, management proceeded at a snail's pace in formulating a
solution to the serious concerns raised by the Union. The Union first
broached these concerns with the Chief of Staff at VA Fargo in November
1982 and asked that the matter be addressed. Management referred the
matter to a committee, where it apparently languished. By September
1983, the matter was still dragging on; and the Union Treasurer prodded
the committee. Upon receiving no response, the Union prodded the Chief
Staff, on November 22, and set forth its concerns. The Chief of Staff
referred the concerns to the same committee. Again, on December 7, the
Union raised the matter with the Chief of Staff, requested bargaining
over the concerns, which it delineated as proposals. Finally, a union
representative was invited to a meeting of the committee, held on
December 8. There the union representative pressed for a resolution of
union concerns. On December 13, the Union again sought to bargain over
its proposals. This request was denied, on December 15, on the ground
that union-initiated proposals for mid-term bargaining were not
negotiable and that "(s)hould a policy evolve out of the present
proposals, it (w)ould be sent to the Union for comment." See finding 11,
above. Eventually, a policy did evolve out of the committee, and was
sent to another committee, which did not support it. It was not until
February 2, 1984, that management forwarded the proposed policy
guidelines to the Union -- over a year after the Union broached the
subject to the Chief of Staff at VA Fargo. The proposed policy was
almost an exact replica of what the Union had proposed some three months
earlier, on November 22, 1983. Management then had trouble finding a
satisfactory date to meet with the Union, and did not finally meet with
the Union until February 21, 1984.
The February 21, 1984, meeting was the only face-to-face "bargaining"
session of the parties; and it was more in the nature where the Union
explained its proposals and management made brief comments and
objections as to some of the proposals, but none as to two of the
negotiable ones. See findings 16 and 18, above. No give-and-take
negotiations typical of bargaining sessions occurred. No written
agreements were entered. The meeting concluded in less than an hour
with both parties expecting management to set another meeting after the
Union had submitted its proposals in a typewritten format.
No such meeting was ever set because, when management received the
Union's typewritten proposals, it found no new ones. And as to old
ones, "the basic objections of management were that the bulk of (them)
were addressed in other policies or by committees already in place and
functioning" (R. Br. 8). Here, Respondents display a basic
misunderstanding of the meaning of the collective bargaining process.
True, policies and committees may be in place today; but without an
agreement between the parties that they stay in place, they could be
gone tomorrow. With an agreement, the union is assured that they will
remain in place for the life of the agreement, and that any dispute
concerning the agreed-upon policies and committees will be subject to
the grievance and arbitration procedures of the collective bargaining
agreement that binds the parties. The parties here have such an
agreement. See finding 3b, above.
After the February 21, 1984, meeting, management made some admittedly
"(m)inor changes in its proposed policy guidelines on the safe handling
of chemo" (R. Br. 7); but it also dropped the word "biohazard" as the
type of bag into which contaminated material would be placed -- not at
all a "minor" change, but one on which the Union had explicated the need
at the February 21, 1984, meeting. See findings 24 and 27, above.
These changes were forwarded to the Union on March 2 and drew an
immediate Union response demanding counter-proposals or a declaration of
non-negotiability and stating that the Union awaited the next bargaining
session.
On March 5, 1984, management sent the Union a letter clearly
indicating that management had considered all the Union's comments, had
made such changes as it intended to make, and would implement the policy
as soon as another union had had a chance to review and comment on the
policy guidelines. See finding 29, above. Management's miscitation, in
the letter, of the section of the Statute under which it stated that it
submitted proposed policies to the Union, admittedly led the Union to
believe that management would listen to the Union, but did not feel
obligated to bargain with it. At this point, the Jnion gave up and
sought no further bargaining.
On April 2, 1984, VA Fargo implemented the policy guidelines without
ever discussing some of the Union's proposals, and without bargaining
over the dropping of the requirement for biohazard bags from the
management proposals it had met with the Union about on February 21.
While an agency is "free to impose changes not exceeding its proposals
after bargaining to impasse with the union" (DHHS, 16 FLRA at 229), it
is not free to change the proposals which were the subject of the
bargaining effort. And the fact that the Union did have "great impact
in formulating" the policy guidelines does not mean that some of its
negotiable proposals may be ignored, as Respondents seem to think. See
R. Br. 6.
4. In addition to the usual cease-and-desist, bargaining, and
notice-posting order, the General Counsel seeks an order that
Respondents give retroactive application to any agreements reached. See
G.C. Br. 21. The General Counsel stresses the fact that the Union
proposals made were specific and, thus, their retroactive effect capable
of discernment. For example, the Union has been denied the right to
notice of safety inspections and accident investigations and the right
to participate therein. See findings 17 and 18, above. Notification to
the Union, even months after safety inspections and accident
investigations, would allow it to identify matters it could address on
behalf of unit employees and to monitor compliance procedures. The
Union has also been denied the right to official time, tuition costs,
and per diem for researching and training in chemo-related matters. See
finding 21, above. This could all be restored. The Union has also been
precluded from learning of the institution of new chemo. See finding
23, above. It is not too late for Respondents to advise the Union of
this so that it can research any related health and safety problems to
determine what action, if any, it should pursue in representing the best
interests of unit employees. Under these circumstances, retroactive
relief is deemed to be appropriate, and in the public interest, and the
complete relief sought by the General Counsel should be granted.
Compare, Department of the Treasury, U.S. Customs Service, Region VIII,
San Francisco, California and National Treasury Employees Union, 9 FLRA
606, 608, fn. 3 (1982), which denied retroactive application where the
effects would be "speculative" in terms of identifying employees
entitled to lost overtime. Compare also Environmental Protection
Agency, 16 FLRA 602 (1984) where retroactive application was denied in a
case where the union had submitted only ground rules, and no specific
substantive proposals. See 16 FLRA at 611. Compare also Internal
Revenue Service, 16 FLRA 845, 846, 863 (1984) where retroactive relief
was denied apparently because the unilateral change and failure to
bargain involved only a temporary program. Compare also, Internal
Revenue Service, 16 FLRA 907 (1984), affirming a decision of
Administrative Law Judge Salvatore J. Arrigo, that the parties might
find themselves before the Federal Services Impasses Panel (FSIP) to
which the parties had already been (16 FLRA at 915-917), and therefore
an order requiring retroactive application "would limit the requisite
flexibility and impair the broad range of options the FSIP necessarily
requires to execute its statutory functions" (16 FLRA at 924). These
cited cases are all distinguishable from the one here at issue.
Ultimate Findings and Recommended Order
Respondents have violated, and are violating Sections 7116(a)(1) and
(5), as alleged in the complaint.
Accordingly, and pursuant to 5 CFR 2423.29 and Section 7118 of the
Statute, the Authority hereby orders that the Veterans Administration,
Washington, D.C. and Veterans Administration Medical and Regional Office
Center, Fargo, North Dakota, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain upon request of the
American Federation of Government Employees, AFL-CIO or its
authorized representative, American Federation of Government
Employees, Local 3884, concerning the safe handling of
chemotherapeutic agents by bargaining unit employees.
(b) Implementing a change in conditions of employment of
bargaining unit employees represented by the American Federation
of Government Employees, AFL-CIO, without first bargaining, upon
request, with the American Federation of Government Employees,
AFL-CIO, or its authorized representative, American Federation of
Government Employees, Local 3884, concerning guidelines for the
safe handling of chemotherapeutic agents.
(c) 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 Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the American Federation of Government Employees,
AFL-CIO, or its authorized representative, American Federation of
Government Employees, Local 3884, of any proposed change in
conditions of employment concerning the safe handling of
chemotherapeutic agents by bargaining unit employees, and, upon
request, bargain concerning such change.
(b) Apply retroactively to April 2, 1984, any agreement reached
pursuant to a bargaining request made by the American Federation
of Government Employees, AFL-CIO, or its authorized
representative, American Federation of Government Employees, Local
3884, concerning the safe handling of chemotherapeutic agents by
bargaining unit employees.
(c) Post at its facility at Fargo, North Dakota, copies of the
attached Notice To All Employees on forms to be furnished by the
Regional Director, Region VII, Federal Labor Relations Authority.
Upon receipt of such forms they shall be signed by the Director of
the Veterans Administration Medical and Regional Office Center,
Fargo, North Dakota and shall be posted and maintained by him for
sixty (60) consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The Director shall take all
reasonable steps to insure that such Notices are not altered,
defaced, or covered by other material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal
Labor Relations Authority, in writing within 30 days from the date
of this Order, as to what steps have been taken to comply
herewith.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: March 27, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Section 7116 provides, in pertinent part, that:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency --
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter . . . .
(2) The following abbreviations will be used herein. "Tr." refers to
the transcript. "G.C. Exh." refers to the exhibits of the General
Counsel and "R. Exh." to those of Respondents. "G.C. Br." refers to the
brief of the General Counsel and "R. Br." to that of Respondents.
Corrections to the transcript appear in Appendix A to this decision.
They are made pursuant to 5 C.F.R. 2423.19(r) and the unopposed motion
of the General Counsel
(3) R. Exh. 1 was received into evidence without objection. See Tr.
5. It is a letter to Mr. Werth from the Authority's Region VII
Director, in which she refused to issue a complaint on a charge filed by
him because it was deemed to be "premature." (R. Exh. 1(b)). The facts
in findings 8, 9, and 10 are based on the investigation made by Region
VII and as stated in this letter. No evidence disputing those facts was
presented at the hearing.
(4) "OSHA" refers to the Occupational Safety and Health
Administration, Department of Labor.
(5) "NIOSH" refers to the National Institute of Occupational Safety
and Health Center for Disease Control, Department of Health and Human
Services.
(6) Dr. Engstrom's testimony as to what transpired at the February 21
meeting was given in an honest, straightforward manner. While he needed
to refresh his memory, as to the date (Tr. 124-125), his recollection of
what transpired seemed sure; and I have credited his account of
management's participation at the meeting.
(7) 5 U.S.C. 7106(b) provides that:
Nothing in this section (Management rights) shall preclude any
agency and any labor organization from negotiating --
(1) at the election of the agency on the numbers, types, and
grades of employees on positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work . . . .
(8) This is the statutory burden of proof. See Sections 7118(a)(7)
and (8) of the Statute.
(9) The one proposal questioned by Respondent is number 4(J), which
would require the parties to "plan together" over any new "technology"
developed in the area of chemo safety, in order to "obviate any hazards
identified." See finding 22, above. Respondents argue that this
proposal interferes with their right to bargain over "the technology of
performing work" only at their election. See R. Br. 9 and Section
7106(b) of the Statute, quoted in footnote 7, above. As the proposal is
presently worded, this objection appears to be valid.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to bargain, upon request of the American
Federation of Government Employees, AFL-CIO, or its authorized
representative, American Federation of Government Employees, Local 3884,
concerning the safe handling of chemotherapeutic agents by bargaining
unit employees.
WE WILL NOT implement a change in conditions of employment of
bargaining unit employees represented by the American Federation of
Government Employees, AFL-CIO, without bargaining, upon request, with
this representative or its authorized representative, the American
Federation of Government Employees, Local 3884, concerning guidelines
for the handling of chemotherapeutic agents.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, or its authorized representative, American Federation of
Government Employees, Local 3884, of any proposed change in conditions
of employment concerning the safe handling of chemotherapeutic agents by
bargaining unit employees, and, upon request, bargain concerning such
change.
WE WILL apply retroactively, to April 2, 1984, any agreement reached
pursuant to a bargaining request made by the American Federation of
Government Employees, AFL-CIO, or its authorized representative,
American Federation of Government Employees, Local 3884, concerning the
safe handling of chemotherapeutic agents by bargaining unit employees.
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 Statute.
(Agency or Activity)
Dated: By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
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, Region VII,
whose address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202
and whose telephone number is: (303) 837-5224 or FTS-8-564-5224.