25:0803(66)NG - Colorado Nurses Association and VA Medical Center, Ft. Lyons, CO -- 1987 FLRAdec NG
[ v25 p803 ]
25:0803(66)NG
The decision of the Authority follows:
25 FLRA No. 66
COLORADO NURSES ASSOCIATION
Union
and
VETERANS ADMINISTRATION MEDICAL
CENTER, FT. LYONS, COLORADO
Agency
Case No. 0-NG-1104
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed by the Union under section 7105(a)(2)(D) and (E) of the Federal
Service Labor-Management Relations Statute (the Statute). The case
presents issues concerning the negotiability of six proposals.
The Veterans Administration (Agency or VA), in this and other cases
involving professional employees of the Department of Medicine and
Surgery (DM&S), contends that as a general matter the duty to bargain
over conditions of employment under the Statute does not apply to
professional medical employees appointed under Chapter 73 of Title 38,
United States Code. On October 27, 1986, we granted the Agency's Motion
for Consideration of Common Issues in which the VA requested that the
Authority resolve the issue of the VA's general duty to bargain with
DM&S professional employees by considering the record in all cases in
which the issue is raised. Parties were given until January 15, 1987 to
file submissions. We have considered the filings of the parties in
these cases as well as additional submissions filed with and in response
to the Agency's motion. /1/
For the reasons discussed in Section II, we find that as a general
matter the Veterans Administration has a duty to negotiate over
conditions of employment of DM&S professional employees. In Section III
of this decision, we address the specific proposals at issue in this
case.
II. Whether the Agency has a Duty to Bargain over
Conditions of Employment of DM&S Professional Employees
A. Background: Grievances Concerning Disciplinary and
Adverse Actions
In Veterans Administration, Washington, D.C. and Veterans
Administration Medical Center, Minnespolis, Minnesota, 15 F.RA 948
(1984), the Authority held that the Veterans Administration had no duty
to bargain with DM&S professional medical employees on proposals
relating to disciplinary actions and adverse action procedures for
disputes over alleged professional misconduct or incompetence. The
Authority relied on the reasoning of the U.S. Courts of Appeals in
Veterans Administration Medical Center, Minneapolis, Minnesota v. FLRA,
705 F.2d 953 (8th Cir. 1983) (VA Minneapolis), and Veterans
Administration Medical Center, Northport, New York v. FLRA, 732 F.2d
1128 (2d Cir. 1984) (VA Northport), in finding that disciplinary and
adverse actions were to be resolvedexclusively through the peer review
system established under section 4110 of the DM&S statute, 38 U.S.C.
Sections 4101-4119. The courts found that allowing disciplinary and
adverse action cases to be resolved under a negotiated grievance
procedure would conflict with the VA's exclusive peer review system, and
that the conflict between the two procedures must be resolved in
accordance with section 4119 of Title 38, which provides:
S. 4119. Relationship between this subchapter and other
provisions of law
Notwithstanding any other provision of law, no provision of
title 5 or any other law pertaining to the civil service system
which is inconsistent with any provision of this subchapter shall
be considered to supersede, override, or otherwise modify such
provision of this subchapter except to the extent that such
provision of title 5 or of such other law specifically provides,
by specific reference to a provision of this subchapter, for such
provision to be superseded, overridden, or otherwise modified.
Both courts held that because the Federal Service Labor-Management
Relations Statute makes no specific reference to Title 38 with respect
to disciplinary and adverse action cases, the conflict must be resolved
in favor of the peer review system set forth in section 4110 of Title
38.
A number of unions who are parties to these cases contend that the
Authority should reconsider the holding in Veterans Administration,
Washington, D.C. /2/ They claim that the legislative history of the
1980 amendments to the DM&S statute, which added section 4119, shows
that Congress intended those amendments to improve working conditions
and enhance recruitment of nurses and other DM&S professionals, and that
the Authority's decision is inconsistent with this legislative intent.
However, we find that the holding in Veterans Administration,
Washington, D.C. is consistent with the Congressional intent of section
4119 and we reaffirm that holding.
B. The Parties' Contentions
The Agency contends that it has no obligation to bargain over
conditions of employment of DM&S professionals because a conflict exists
between the Statute and 38 U.S.C. Section 4108(c), which provides:
Section 4108. Personnel administration
(a) Notwithstanding any law, Executive order, or regulation,
the Administrator shall prescribe by regulation the hours and
conditions of employment and leaves of absence of physicians,
dentists, podiatrists, optometrists, nurses, physician assistants,
and expanded-function dental auxiliaries appointed to the
Department of Medicine and Surgery(.)
The VA argues that section 4108(a) demonstrates Congress' intent to
establish a DM&S personnel system that is entirely independent of the
civil service restrictions of the Title 5 personnel system. It contends
that its mission requires that any review of conditions of employment of
DM&S professional employees be through peer review administered by
officials directly responsible and accountable for the delivery and
quality of patient care, rather than review by "inexpert arbitrators."
Agency's Statement in Support of Allegations of Nonnegotiability (Case
No. 0-NG-1104) at 11. The Agency further argues that its internal
regulations are "legislative regulations having the full force and
effect of law" and that collective bargaining may not "concern, change,
alter, modify, subyract from or add to the VA's nationwide Title 38
personnel regulations." Agency's Brief in Response to Negotiability
Appeal (Case Nos. 0-NG-1209 and 0-NG-1224) at 12. The VA also argues
that, because Title 38 and the VA's "legislative regulations"
specifically provide for the exclusive DM&S personnel system, working
conditions of DM&S professionals are excluded under section
7103(a)(14)(C) of the Statute from the meaning of "conditions of
employment" to which the duty to bargain extends.
The Union disputes these contentions and takes the position that
Congress did not intend to deprive DM&S employees of collective
bargaining rights established by the Civil Service Reform Act of 1978.
Rather, the Union argues, the legislative history of the 1980 amendments
to Title 38 demonstrates that Congress specifically intended to preserve
existing collective bargaining rights for those employees.
C. Analysis and Conclusions
Section 4119 requires the provisions of Title 5 to yield to the
provisions of Title 38 where a direct conflict exists between those
statutes. VA Minneapolis, 705 F.2d at 956 n.3. We conclude that no
direct conflict exists between the provisions of section 4108
authorizing the Administrator to prescribe hours and conditions of
employment and leaves of absence and the provisions of the Statute
permitting collective bargaining concerning conditions of employment
unrelated to disciplinary and adverse actions. We base this conclusion
on Congress' intent as expressed in the legislative history of the 1980
amendments to Title 38, as well as on the Statute and its legislative
history; the history of collective bargaining between the parties; and
the interpretation of the courts in VA Minneapolis and VA Northport.
Accordingly, we reject the VA's assertion that sections 4108 and 4119 of
Title 38, read in conjunction, remove conditions of employment of DM&S
employees from the VA's duty to bargain established by the Federal
Service Labor-Management Relations Statute.
(1) Legislative History of the DM&S Statute
As discussed by the courts, the legislative history of the DM&S
Statute contains many references to the need of the VA to have a free
hand in removing incompetent DM&S professionals without the "red tape"
of civil service restrictions. See VA Minneapolis, 705 F.2d at 956-57;
VA Northport, 732 F.2d at 1131. See also, H. Rep. No. 138, 79th Cong.,
1st Sess. 2 ("such legislation should . . . incorporate authority to
dispense with the services of unsatisfactory or disqualified employees
in certain categories without regard to the restrictions of the laws and
regulations pertaining to civil service . . . . "). Another theme
discussed throughout the legislative history is that the VA should have
flexibility to hire DM&S professionals without regard to civil service
requirements. See S. Rep. No. 858, 79th Cong., 1st Sess. 1, reprinted
in 1945 U.S. Code Cong. Serv. 956; H. Rep. No. 79-1238 at 2. Congress
responded to this concern by providing in section 4106 of the DM&S
Statute that professionals shall be appointed in accordance with
regulations prescribed by the Administrator "without regard to
civil-service requirements."
However, the legislative history does not show a similar
Congressional intent that VA exercise exclusive control over other
conditions of employment of DM&S professionals. Both the Senate and
House reports accompanying the DM&S legislation merely paraphrase the
language of section 4108(a) without further discussion. S. Rep. No.
79-858 at 3, 1945 U.S. Code Cong. Serv. at 958; H. Rep. No. 79-1238 at
3. The only reference to that section in the House debate is the
following statement by Representative Scrivner:
(W)e know that people do not get sick by the clock. We found
in many of these (VA) hospitals under civil-service regulations
doctors practice 40 hours a week. As we have gone through
hospitals and seen 4:30 come around, we have seen doctors put on
their hats and walk out, because if they had worked a few minutes
overtime, compensatory time would have had to be given them, and
it would have taken a great deal of complicated figuring and
bookkeeping to straighten it out. In section (7)(b), we provide
that notwithstanding any law, Executive order, or regulation, the
Administrator shall prescribe by regulation the hours and working
conditions and leaves of absence of doctors, dentists, and nurses.
91 Cong. Rec. H11662-63 (Rep. Scrivner). Thus the legislative
history demonstrates a recognition by Congress that with respect to
"conditions of employment," DM&S needed flexibility to assure provision
of patient care services.
We cannot conclude, however, that the existence of that flexibility
and discretion automatically operates to remove all DM&S professionals
from coverage of the Statute or otherwise serves to preclude all
collective bargaining about their conditions of employment. To the
contrary, the legislative history of the 1980 amendments to Title 38
states that Congress did not "intend that any of the changes made by the
legislation to the VA's health care personnel authorities detract in any
way from employee rights under existing collective bargaining agreements
between the VA and its employees." Explanatory Statement of Compromise
Agreement on H.R. 7102/S. 2534, 126 Cong. Rec. H6850 (1980), reprinted
in 1980 U.S. Code Cong. & Ad. News 2463, 2557, 2563. We interpret this
language to be an express recognition by the Congress of a past practice
of collective bargaining between the VA and its professional employees,
and a manifestation of an intent that the practice continue.
Furthermore, had Congress intended negotiations over conditions of
employment under the Statute not to apply to DM&S professionals, it
could have done so expressly by excluding them from the Statute as it
did with certain other categories of employees. See 5 U.S.C. Section
7103(a)(2) and (3). It did not do so. To the contrary, as explicitly
stated in the Senate Report's discussion of the Statute, Title 38
employees are covered by the Statute. S. Rep. No. 969, 95th Cong. 2d
Sess. 110, reprinted in 1978 U.S. Code Cong. & Ad. News 2723, 2832.
(2) Past Bargaining History and the Application of VA Minneapolis and
VA Northport
Although the courts in VA Minneapolis and VA Northport found that
Congress intended the peer review procedures in disciplinary and adverse
action matters to be an exclusive remedy, nothing in those decisions
indicates that section 4119 bars negotiations on all matters affecting
DM&S employees. In VA Northport, at 1132, the court stated that:
At the time of its (section 4119's) enactment, the DM&S
professionals at issue here had no "rights existing under existing
collective bargaining agreements" pertaining to discipline because
the VA has consistently refused to bargain over this issue. As to
other matters, the VA has not refused to bargain with DM&S
professionals, and does not argue here that it has no duty to do
so.
Among the matters over which the VA previously has not refused to
bargain is the grievance and arbitration of conditions of employment of
DM&S professional employees other than disciplinary and adverse actions.
See, for example, American Federation of Government Employees, AFL-CIO,
Local 3669 and Veterans Administration Medical Center, Minneapolis,
Minnesota, 3 FLRA 311 (1980) (VA objected to union proposal for broad
scope grievance procedure only insofar as proposal did not expressly
exclude grievances over separation of probationary employees, actions
resulting from competency reviews by supervisors or nurse professional
standards boards, and actions taken by Chief Medical Director based on
disciplinary board recommendations).
Additionally, the court in VA Minneapolis limited its holding,
finding that the union proposals specifically conflicted with 38 U.S.C.
Section 4110 only insofar as they created alternative grievance
procedures and allowed binding arbitration of disputes regarding alleged
"inaptitude, inefficiency, or misconduct" of DM&S professionals. The
court, at 958, stated that:
Section 4110 covers these explicit matters of professional
performance, but does not create procedures for the resolution of
disputes over other personnel decisions common to all employment
situations, such as vacation assignments or working conditions.
We hold, therefore, that the union proposals before us are
nonnegotiable insofar as they offer DM&S professionals
alternatives to the exclusive section 4110 procedures for the
resolution of disputes covered by that section. Our decision does
not preclude proposals concerning grievance procedures, which
could include binding arbitration, to be used in employment
disputes not covered by section 4110.
Accordingly, the past bargaining history of the parties and the
application of VA Minneapolis and VA Northport support the conclusion
that section 4108 of Title 38 does not operate to remove DM&S employees
from coverage under the Statute. /3/
(3) The Effect of the Agency's Regulations on the Negotiability of the
Conditions of Employment of DM&S Professional Employees
The Agency contends that its personnel regulations constitute
"legislative regulations" having the same status as the relevant
sections of Title 38 of the U.S. Code. We find no support for this
assertion in the DM&S statute or its legislative history. Although the
Administrator is granted authority to promulgate regulations which
prescribe the conditions of employment for DM&S professionals, there is
no indication that the exercise of discretion by the Administrator is in
any way different from that involved when regulations are promulgated by
other employing Federal agencies. Thus the grievance procedure set
forth in VA Manual MP-5, Part II, Chapter 8, Section B is promulgated
pursuant to section 4108, but is not expressly created by Title 38
itself. These regulations differ from the peer review procedures of
section 4110 in that they are not expressly created by statute.
Section 7117(a) of the Statute provides that negotiations over union
proposals may be barred by a conflicting regulation only where that
regulation is either a Government-wide regulation or an internal agency
regulation for which the agency has demonstrated a compelling need.
Since the Agency's personnel regulations apply only within the VA
itself, they are not Government-wide regulations. The VA has not
demonstrated that taken as a whole its regulations are supported by a
compelling need. Of course, the VA is not precluded from contending
that a compelling need exists for any of its personnel regulations which
would bar negotiations on a specific conflicting proposal.
(4) Summary
We find that requiring the Agency to negotiate over conditions of
employment of DM&S professional employees is not inconsistent with the
Administrator's authority under section 4108(a). The VA's broad reading
of section 4108(a) to preclude all such collective bargaining must be
rejected.
For the reasons set forth, we find that a conflict does not exist
between 38 U.S.C. Section 4108(a) and the duty to bargain under section
7117 of the Statute. Consequently, section 4119 of the DM&S Statute
does not apply, and thus does not remove all conditions of employment of
DM&S professional employees from the VA's duty to bargain. We now turn
to the specific proposals and contentions presented in this case.
III. Proposal 1
Proposal 1 would establish a grievance and arbitration procedure.
The text of the proposal is set forth in an appendix to this decision.
A. Positions of the Parties
The Agency contends that Proposal 1 is inconsistent with the DM&S
personnel system established under Title 38 for the reasons discussed in
Section II of this decision. The Agency also contends that, because
section 3 of the proposal provides that an employee may be represented
by "someone approved by the Association," it is contrary to (1) section
7114(a)(1) and (5) of the Statute, which provides that the union is the
exclusive representative except that an employee may choose to be
represented by an attorney or other representative; and (2) section
7121(b)(3)(B) of the Statute, which provides that an employee is
entitled to be represented by the exclusive representative in
grievances.
The Union disputes the Agency's contentions that a negotiated
grievance and arbitration procedure is precluded by Title 38.
Additionally, the Union argues that section 3 of the proposal is not
inconsistent with the Statute because the Union has a right to designate
representatives of its own choosing in fulfilling its representational
functions.
B. Analysis and Conclusions
For the reasons discussed in section II, we reject the Agency's
contention that a proposal establishing a negotiated grievance and
arbitration procedure is inconsistent with Title 38. /4/
As to section 3 of Proposal 1, the Authority has held that "it is
within the discretion of both agency management and labor organizations
holding exclusive recognition to designate their respective
representatives when fulfilling their responsibilities under the
Statute." American Federation of Government Employees, AFL-CIO, 4 FLRA
272, 274 (1980). Contrary to the Agency's contention, the Authority's
decision in National Federation of Federal Employees, Local 1001 and
Department of the Air Force, Vandenberg Air Force Base, California, 15
FLRA 804 (Provision 1) does not require a finding that the proposal here
is nonnegotiable. In Vandenberg Air Force Base, the Authority held that
if an employee chooses to be represented in a grievance under a
negotiated grievance procedure, the employee may be represented only by
the exclusive representative. However, this limitation on the right of
an employee to designate his or her own representative does not also
limit the right of the union to designate its own representative in a
grievance under a negotiated grievance procedure. Consequently, section
3 of the proposal is not inconsistent with section 7114(a)(1) and (5) or
section 7131(b)(3)(B) of the Statute.
Accordingly, we conclude that Proposal 1 is within the duty to
bargain.
IV. Proposal 2
Article XI -- Tours of Duty
Section 1. The schedules of nurses will be established as
regular tours of duty consisting of eight consecutive hours per
day, exclusive of 1/2 hour on-duty meal time where the schedule
provides time for a meal.
Section 2. Five consecutive days will be the normal tour of
duty followed by two consecutive days off. This tour of duty may
be extended to not more than six consecutive days with two
consecutive days off. Management will consider nurses' requests
for exceptions to this policy. Split days off and split shifts
will not be scheduled without the employee's consent, with the
following exception:
Where sick leave requests, emergency vacancies, or emergency
leave require the Employer to have fill-in coverage, the Employer
will first seek the consent of the employee involved and/or
attempt to find replacements before requiring compliance with the
split day schedule.
Section 3. Time schedules will be planned to provide for 15 or
more hours of non-duty time between the completion of one tour and
the beginning of the next tour of duty except at the nurses
specific request or agreement for less than 15 hours.
A. Positions of the Parties
The Agency contends that Proposal 2 concerning tours of duty of
nurses is outside the duty to bargain because it is (1) contrary to
"Agency legislative regulations" in the VA personnel manual and the
right of the Administrator under sections 4108(a) and 4119 of Title 38
to establish conditions of employment for DM&S professional employees as
discussed in section II of this decision; (2) integrally related to,
and determinative of, the numbers and types of employees assigned to a
tour of duty so as to be negotiable only at its election under section
7106(b)(1) of the Statute; and (3) contrary to internal agency
regulations making care and treatment of patients the primary
consideration in scheduling of nurses. The VA claims that there is a
compelling need under the Authority's regulations because the VA's
regulations are essential to the accomplishment of its mission. The
Agency also argues that the proposal is (1) inconsistent with the
Agency's discretion under section 4107(h)(1) of the DM&S Statute to
establish a "Baylor plan" in which nurses are paid for a full
administrative work week by working two 12 hour shifts on the weekend;
and (2) contrary to the Agency's right under section 7106(a)(2)(B) of
the Statute to assign work.
The Union disputes the Agency's contentions as to a conflict with its
legislative regulations or with Title 38 and states that the legislative
history of the 1980 amendments to the DM&S Statute shows that Congress
intended VA to negotiate over conditions of employment, including tours
of duty. The Union states that its proposal is consistent with laws
concerning work schedules and with the VA regulations, and that the
sections of the proposal are negotiable procedures and appropriate
arrangements under section 7106(b)(2) and (3) of the Statute. The Union
also contends that its proposal is not inconsistent with the Agency's
patient care mission and does not prevent the Agency from establishing a
Baylor plan.
B. Analysis and Conclusions
For the reasons discussed at section II above, we reject the Agency's
contention that it has no duty to bargain over the proposal because it
is inconsistent with "Agency legislative regulations" or because
conditions of employment are removed from the duty to bargain by Title
38.
Proposal 2 establishes limitations on management's ability to
determine the work schedules of its nursing employees, namely, it
prescribes regular tours of duty and precludes split shifts and split
days off. Union Statement of Intent as to Article IX, Attachment to
Union Petition for Review. The effect of those limitations is to
prevent management from changing nursing schedules to meet its patient
care needs. In particular, the Agency states, and the Union does not
dispute, that "nurses perform different duties during different shifts.
Individual nurses have specialized skills and responsibilities which are
not necessarily interchangeable." Agency Statement of Position at 54.
See also Agency Statement of Position at 48-49. In practical terms this
means that the nature of the work which needs to be done may vary with
the shift and that the nursing skills required may likewise vary with
the shift. Under the restrictions imposed by the proposal, therefore,
management would be unable to assign the nurse who can perform the
particular work which must be done to the shift on which that work is
required. That is, the Agency would be unable to schedule nurses with
specialized skills to perform specific tasks on the particular shift
where that work must be done.
For this reason, we find that the proposal has the same effect as
Proposal 2 in National Association of Government Employees, Local R14-8
and Veterans Administration Medical Center, Topeka, Kansas, 24 FLRA No.
17 (1986). In that case, the proposal would have restricted
management's right to determine employee work schedules by, for example,
precluding management from scheduling two different tours of duty in the
same week, regardless of the agency's work requirements and whether a
particular employee's skills were needed on a particular shift. We
found that the proposal in that case directly interfered with
management's right to assign work pursuant to section 7106(a)(2)(B) of
the Statute by preventing it from scheduling an employee to perform
particular duties on a specific shift consistent with the agency's
patient care requirements. Because Proposal 2 here would similarly
interfere with management's right to assign work, it is not a negotiable
procedure and is outside the Agency's duty to bargain.
This proposal is distinguishable from cases in which the Authority
has held that proposals prescribing criteria for the assignment of
employees to shifts are negotiable. See, for example, International
Plate Printers, Die Stampers and Engineers Union of North America,
AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and
Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provision 4). The
proposal in that case concerned shift assignments of employees whose
work remained the same regardless of the shift and who were all equally
qualified to perform that work. As noted above, the record in this case
indicates that not all nurses are qualified to perform the various
specialized medical procedures required for adequate patient care and
the times at which that expertise may be needed may also differ from day
to day and week to week.
The Union states that its proposal is consistent with the Agency's
staffing needs with regard to its patient care mission (Memorandum in
Support of Petition for Review at 55-56). Section 17 of the Tours of
Duty Article states that exceptions may be made to the article's
requirements when required by the Agency's patient care needs only with
respect to Sections 4, 5, 6, 7, 9, 14 and 16. However, neither the
language of the Union's proposal nor the record indicates that a similar
exception is provided for Sections 1-3. In this respect, therefore, the
proposal here is distinguishable from Proposal 3 in VA Medical Center,
Topeka, In that case, we found that the use of the word "ordinarily" in
the proposal protected the Agency's right to vary employees' days off in
order to provide for its patient care needs. As noted above, no such
protection is present in Proposal 2 in this case.
Additionally, the Union's contention that 5 U.S.C. Section 6101
requires the Agency to establish a regular work schedule as proposed by
the Union is without support. Even assuming that professional medical
employees of the DM&S are subject to 5 U.S.C. Section 6101, the proposal
makes no allowance for the Agency's right under that statutory provision
to make exceptions from its requirements where the Agency would
otherwise be seriously handicapped in carrying out its functions. The
proposal in this case, therefore, is like Proposal 3 in Tidewater
Virginia Federal Employees Metal Trades Council and Department of the
Navy, Navy Public Works Center, Norfolk, Virginia, 25 FLRA No. 1 (1987)
and distinguishable from Union Proposal 3 in VA Medical Center, Topeka
and Union Proposal 4 in National Association of Government Employees,
SEIU, AFL-CIO and Veterans Administration Medical Center, Grand
Junction, Colorado, 24 FLRA No. 21 (1986). In Navy Public Works Center,
we found that the proposals in the Topeka and Grand Junction cases
expressly permitted management to take into account actual work
requirements when deciding employee work schedules and thereby
incorporated the statutory and regulatory requirements.
As to whether Proposal 2 constitutes an appropriate arrangement,
after this case was filed the Authority issued National Association of
Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA No. 4 (1986). In that case, the Authority stated that it would
determine whether a proposed "arrangement" for employees adversely
affected by the agency's exercise of its section 7106 rights is
"appropriate" for negotiation within the meaning of section 7106(b)(3),
or whether it is inappropriate because it would "excessively interfere"
with the exercise of management's rights. We find that even assuming
that the proposal constitutes an "arrangement" for employees adversely
affected by the exercise of a management right within the meaning of
section 7106(b)(3), it is not an "appropriate" arrangement. Although
the Union's proposal would substantially benefit employees by providing
them with regular schedules, it would do so at the cost of management's
flexibility to schedule nurses on irregular tours of duty to fulfill its
patient care mission. Since the Union's proposal would eliminate that
flexibility, we find that Proposal 2 would excessively interfere with
the Agency's right to assign work and is not an appropriate arrangement.
Accordingly, for the reasons set forth, Proposal 2 is outside the
duty to bargain. In view of this determination, we need not decide
whether the proposal also violates the Agency's right to determine the
number of employees assigned to a tour of duty, prevents it from
establishing a Baylor plan, or conflicts with an internal regulation
which is supported by a compelling need.
V. Proposal 3
Article XI -- Tours of Duty
Section 5. Management will take responsibility for planning
time schedules so employees will not have more than two different
tours of duty within a period of seven consecutive days beginning
with Sunday. One of these tours of duty will be the day tour
unless requested otherwise by the nurse. The rotating nurse will
work the day shift prior to rotating to the night tour of duty.
Changes to an irregular tour other than these approved will be
discussed with the individual nurse or nurses.
(The underscored portion of this proposal is at issue.)
A. Positions of the Parties
The Agency contends that Proposal 3 prohibits the Agency from
assigning nurses to more than two major tours of duty in a seven day
period in violation of its rights to assign employees under section
7106(a)(2)(A) and to determine the numbers, types, and grades of
employees assigned to a work project or tour of duty under section
7106(b)(1) of the Statute.
The Union contends that its proposal constitutes a negotiable
procedure and an appropriate arrangement.
B. Analysis and Conclusions
Proposal 3, like Proposal 2 discussed above, restricts management's
ability to schedule nurses so as to assign particular nurses to perform
specific duties on particular shifts, namely, by precluding management
from assigning nurses to a third tour of duty during a workweek. Unlike
Proposal 2, however, the proposal here takes into account the Agency's
patient care needs. Section 17 of the Tours of Duty Article provides
that in implementing section 5, among other sections, "the Association
recognizes the unique problems of staffing and patient care at the Fort
Lyon VA and agrees to work with Nursing Service to develop and accept
exceptions to the aforementioned sections when the needs of the hospital
dictate." By thus protecting management's right to determine which
nurses will perform specific duties on particular shifts, the proposal
does not directly interfere with management's right to assign work and
is within the Agency's duty to bargain. See National Association of
Government Employees, Local R14-8 and Veterans Administration Medical
Center, Topeka, Kansas, 24 FLRA No. 17 (1986) (Union Proposal 3) and
National Association of Government Employees, SEIU, AFL-CIO and Veterans
Administration Medical Center, Grand Junction, Colorado, 24 FLRA No. 21
(1986) (Union Proposal 4).
We disagree with the Agency's contention that the proposal violates
its right under section 7106(b)(1) of the Statute to determine the
numbers, types, and grades of employees assigned to a tour of duty.
Unlike American Federation of Government Employees, Local 3669, AFL-CIO
and Veterans Administration Medical Center, Minneapolis, Minnesota, 2
FLRA 640 (1980), cited by the Agency, the Agency here has not shown how
the Union's proposal would require it to hire additional nurses to meet
its staffing needs.
Because we find that Proposal 3 does not directly interfere with
management's rights, we do not need to reach the question of whether
Proposal 3 constitutes an "appropriate arrangement" within the meaning
of section 7106(b)(3) of the Statute.
VI. Proposal 4
Article IX -- Tours of Duty
Section 11. Reassignments from one ward to another for relief
will be made only in emergencies and after evaluation by the
appropriate supervisor and with consultation with the staff nurse
or nurses involved. Every attempt will be made to avoid replacing
nonprofessional employees with staff nurses.
A. Positions of the Parties
The Agency contends that Proposal 4 violates its rights under section
7106(a)(2)(B) to assign work and determine the personnel by which agency
operations shall be conducted. The Union contends that the proposal
constitutes a negotiable procedure and an appropriate arrangement. The
Union states that the last sentence of the proposal does not prevent the
Agency from assigning duties to nurses since it merely provides that
"(e)very attempt will be made to avoid replacing nonprofessional
employees with staff nurses."
B. Analysis and Conclusions
The first sentence of Proposal 4 would prohibit the Agency from
reassigning nurses from one ward to another for relief except in
emergencies. This proposal is not a negotiable procedure since it
directly interferes with management's right to assign work by
conditioning the Agency's ability to assign work by conditioning the
Agency's ability to reassign employees to other duties upon the
ex-stence of an emergency. See National Labor Relations Board Union,
Local 19 and National Labor Relations Board, Region 19, 2 FLRA 775
(1980) (proposal establishing a condition on management's ability to
assign specified duties to a particular employee directly interferes
with management's right to assign work). While the fact that the
proposal would permit management to make reassignments in an emergency
renders the proposal consistent with management's right to take action
in an emergency under section 7106(a)(2)(D) of the Statute, it directly
interferes with management's right to assign work because it would
prohibit management from making such reassignments in situations which
are not "emergencies." Management's right to assign work to employees
under section 7106(a)(2)(B) is not limited to emergencies. If it were,
section 7106(a)(2)(B) and section 7106(a)(2)(D) would be redundant. For
these reasons, we find that Proposal 4 directly interferes with
management's right to assign work and is outside the Agency's duty to
bargain.
As to whether the first sentence of the proposal constitutes an
appropriate arrangement, we note that neither the Union nor the Agency
makes any specific arguments concerning the manner in which the
limitation on reassigning nurses between wards would either benefit
employees or interfere with the Agency's ability to fulfill its patient
care mission. However, even assuming that the proposal constitutes an
"arrangement" for employees adversely affected by the exercise of a
management right, we find that it is not an "appropriate" arrangement
within the meaning of section 7106(c)(3). Because the proposal would
prevent management from reassigning nurses from one ward to another in
situations which may not be considered "emergencies" for purposes of the
proposal, it would totally abrogate management's right to assign work.
We conclude, therefore, that the first sentence of Proposal 4
excessively interferes with management's right to assign work and is
outside the duty to bargain.
The second sentence of the proposal would require the Agency to make
"every attempt" to avoid assigning non-professional duties to staff
nurses. We find that the sentence therefore imposes a substantive
condition on management's right to assign work to employees. Rather
than preserving management's right to assign work, the language
restricts the exercise of that right by establishing a criterion under
which management must justify its action in assigning non-professional
duties to staff nurses. For this reason, we find that the second
sentence of Proposal 4 directly interferes with management's right to
assign work. See National Federation of Federal Employees, Local 615 V.
Federal Labor Relations Authority, 801 F.2d 477, 479-80 (D.C. Cir.
1986), affirming National Federation of Federal Employees, Local 615 and
National Park Service, Sequoia and Kings Canyon National Parks, U.S.
Department of Interior, 17 FLRA 318 (1985).
Moreover, we find that the second sentence of Proposal 4 does not
constitute an "appropriate arrangement" within the meaning of section
7106(b)(3) of the Statute. Even assuming that the sentence constituted
an "arrangement" for employees adversely affected by the exercise of a
management right, because it would totally abrogate management's right
to assign work, it would excessively interfere with that right so as not
to be an "appropriate" arrangement. For this reason, the second
sentence of Proposal 4 is outside the Agency's duty to bargain.
VII. Proposal 5
Article XI -- Tours of Duty
Section 13. Notices of Professional Nurse vacancies within the
VA System will be maintained in a folder and available around the
clock in the Nursing Service Conference Room. Notices of
in-hospital vacancies will show on the Nursing Service Staffing
Board. Notices will be posted promptly when the employer becomes
aware of the vacancy. Preference will be given to nurses
presently employed when a vacancy is available.
(Underscored portion of section is at issue.)
A. Positions of the Parties
The Agency contends that Proposal 5 is contrary to the VA's
legislative regulations and, for the reasons set forth in section II of
this decision, that it has no duty to bargain over the proposal. The
Agency also argues that the proposal violates management's right under
section 7106(a)(2)(C) to make selections in filling vacancies.
The Union states that Proposal 5 is consistent with the intent of the
1982 amendments to the DM&S Statute which were designed to improve
recruitment and retention of nurses. The Union also contends that its
proposal constitutes a procedure which allows the Agency to hire the
most qualified nurse applying from within the DM&S system, hire from
outside if there are no applicants from within, or choose not to fill a
vacancy at all. The Union also contends that the Agency has not
demonstrated a compelling need for its internal regulations.
B. Analysis and Conclusions
For the reasons set forth at section II of this decision, we reject
the Agency's contention that it has no obligation to bargain because the
proposal is inconsistent with Agency legislative regulations.
We find, however, that Proposal 5 would directly interfere with
management's right to make selections for positions from any appropriate
source and is not a negotiable procedure. The Union states that
Proposal 5 would not preclude a selection from outside the Agency.
Memorandum in Support of Petition for Review at 65. That is, the Agency
must select a candidate applying from within the Agency, unless there
are no internal applicants. By limiting the sources from which
management will make selections to fill bargaining unit vacancies,
namely, to promotion or reassignment from within the Agency, Proposal 5
directly interferes with management's rights under section 7106(a)(2)(C)
and is outside the duty to bargain. See American Federation of
Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA
674 (1985) (Proposal 1). Because it dictates a source for selection,
Proposal 5 is distinguishable from proposals requiring an agency to
consider unit employees for vacancies prior to seeking outside
applicants. See, for example, National Federation of Federal Employees,
Local 1332 and Headquarters, U.S. Army Materiel Development and
Readiness Command, Alexandria, Virginia, 6 FLRA 361 (1981), finding
negotiable the first sentence of Proposal IV. We do not need to reach
the issue of a compelling need for the Agency's regulation.
VIII. Proposal 6
Article XI -- Tours of Duty
Section 16. Relief p.m. and night duty will be distributed as
equitably as possible. Every consideration will be given to a
nurse's desire to relieve exclusively on either the p.m. or night
tour of duty, among staff nurses, provided that skills,
qualifications and performance meet the needs of the assigned
area.
(Underscored portion of section is at issue.)
A. Positions of the Parties
The Agency contends that Proposal 6 violates its rights under section
7106(a)(2)(A) and (B) of the Statute to assign employees and assign
work. The Union disputes the Agency's contentions and argues that
Proposal 6(1) is a negotiable procedure, and (2) establishes a general
standard by which the Agency's application of performance standards to
employees could be evaluated in a subsequent grievance.
B. Analysis and Conclusions
We find that this proposal constitutes a negotiable procedure by
which the Agency will exercise its right to assign work. Proposal 6 is
to the same effect as the second paragraph of the proposal in
Association of Civilian Technicians and State of Georgia National Guard,
2 FLRA 580, 583-85 (1980), which the Authority found within the duty to
bargain. The proposal in Association of Civilian Technicians provided
that general cleanup duties were to be assigned on an equitable basis.
The Authority found that the proposal was a procedure to ensure fairness
and equity in the assignment of duties and was not concerned with
whether employees will or will not be required to perform such duties.
Similarly, the Agency has not shown that the proposal here would prevent
it from assigning relief p.m. and night duty to nurses. Rather, the
proposal provides that, once the Agency has decided to assign such
duties to nurses, such assignments will be made in a fair and equitable
manner. Additionally, the Agency has not demonstrated that the proposal
concerns its right to assign employees. Consequently, for the reasons
set forth more fully in Association of Civilian Technicians, Proposal 6
is within the duty to bargain.
IX. Order
The Union's petition for review as to Proposals 2, 4, and 5 is
dismissed. The Agency shall upon request, or as otherwise agreed to by
the parties, bargain concerning Proposals 1, 3, and 6. /5/
Issued, Washington, D.C., February 20, 1987.
/s/ Jerry L.Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In its response to the Agency's motion, the Union in this case
requested that the Authority hold an oral argument concerning the
threshold issue in these cases. We find, however, that the issue may be
resolved based on the parties' written submissions and that oral
argument is unnecessary. Accordingly, the Union's request is denied.
(2) See, for example, Memorandum of Petitioner in Support of Petition
for Review (Case Nos. 0-NG-1209 and 0-NG-1224) at 10-27; New York State
Nurses Association Response to Veterans Administration Position
Statement (Case No. 0-NG-1187) at 7-12; Memorandum of Petitioner in
Support of Petition for Review (Case No. 0-NG-1104) at 5-42.
(3) We note that our predecessor agency, the Federal Labor Relations
Council, had not interpreted section 4108 as barring collective
bargaining on a range of subjects under Executive Order 11491. See
American Federation of Government Employees, Local 1739 and Veterans
Administration Hospital, Salem, VA, 6 FLRC 208 (1978). See also
Memorandum Opinion No. 79-11, 3 Op. Off. Legal Counsel 74 (1979).
(4) Our decision that Proposal 1 is negotiable is based on an
interpretation of the language of the proposal to exclude matters
covered by appeals procedures established under 38 U.S.C. Section 4110.
See our discussion of VA Minneapolis and VA Northport at pp. 2-3 above.
(5) In finding these proposals to be within the duty to bargain, we
make no judgment as to their merits.
APPENDIX
Union Proposal 1
Article X -- Grievances and Arbitration Procedures
Section 1. Grievances, within the meaning of the Article, include
any dispute over the interpretation or application of this Agreement.
This Article does not cover any other matters, including matters for
which statutory appeals exist, and shall be the exclusive procedure
available to the parties and the employees in the Unit for resolving
such grievances. It is understood that grievances on matters other than
the interpretation or application of the Agreement may be processed
under any procedure available for the purpose. Where the parties have
decided, for purpose of information, understanding, or otherwise, to
incorporate in this Agreement by paraphrase reference or repetition,
provisions of law or higher level policies or regulations, such
provisions will not be within the scope of this Article.
Section 2. Every attempt will be made by nurses, the Association,
and the Hospital to adjust grievances informally and promptly as close
to the source of the grievances as possible in the interest of sound
employee-management relations and the mission of the Hospital. The
parties agree to make every effort to produce all the facts in relation
to the grievances at the first step.
Section 3. Employee representative under this Article is the
Association or someone approved by the Association. If there is a
formal grievance hearing for a registered nurse in the Unit and the
Association is not chosen by the grievant as his representative, the
Hospital will notify the Association so that an observer may be present
if the Association desires.
Section 4. The procedure and time limits shall be as follows:
Step One
(a) An employee, or group of employees covered by this
Agreement may present a grievance verbally to the grievant's
immediate supervisor.
(b) The supervisor will discuss the grievance in private, in
good faith, and after full and fair consideration of all the
facts, will attempt to resolve the issue.
(c) The request for such informal adjustment must be made as
soon as possible after the event has occurred or after the
grievant(s) has become aware of the event that gave rise to the
grievance, but in no case later than five (5) calendar days after
the incident or circumstances occurred about which he is
concerned.
(d) The supervisor will render a decision verbally to the
grievant(s) within five (5) calendar days following the
discussion.
Step Two
(a) If the grievant(s) is not satisfied with the results
obtained in Step One, and desires to pursue the grievance further,
the grievant(s) may request that the Association assist him in
filing with the Chief of Service a formal written grievance on his
behalf. Such formal written grievance must be filed within ten
(10) calendar days after receipt of the decision in Step One.
(b) If such grievance is filed, the Chief of Service, or his
designee, shall meet within ten (10) calendar days with the
grievant(s) and the Association may have an individual designated
by the Association present. After consideration of all facts, the
Chief of Service shall render a decision in writing within ten
(10) calendar days following the discussion.
Step Three
(a) If the decision of the Chief of Service is unacceptable to
the grievant(s), the grievance may be appealed through the
Personnel Officer to the Hospital Director within fifteen (15)
calendar days after receipt of the decision in Step Two.
(b) If such appeal is filed, the Hospital Director or his
designee shall meet promptly with the grievant(s) and their
representative, if any. He shall render his decision, in writing,
within ten (10) calendar days after close of the grievance
conference.
Section 5. If the decision of the Hospital Director or his designee
does not resolve the grievance to the satisfaction of the grievant(s)
involved, the Association may submit the issue in dispute to
arbitration. Either party may take a case to arbitration and the other
party will be advised.
Section 6. Arbitration shall extend to grievances over the
interpretation or application of this Agreement, but may not extend to
other matters. The following procedures shall apply to arbitration:
(a) The request for arbitration shall be in writing and shall
be submitted to the Hospital within fifteen (15) calendar days of
receipt of the decision of the Hospital Director. If the Hospital
desires arbitration of a dispute it shall notify the Association
Chairman in writing within 15 days after receipt of appeal filed
in Section 4.
(b) If no agreement is made within ten (10) administrative work
days after receipt of request for arbitration, the parties shall
jointly request the Federal Mediation and Conciliation Service to
submit a list of five (5) names from which the impartial
arbitrator shall be selected in the following manner. The order
of striking names shall be determined by lot. Each side shall
alternate striking one name from the list and the name shall be
selected and the FMCS shall be promptly notified of his selection.
(c) The arbitrator shall conduct a hearing at which the
Association and the Hospital will be permitted to be represented
by counsel, present evidence, examine, and cross-examine
witnesses, present argument and otherwise participate in a full
and fair hearing on the issues in dispute, subject to arbitrator's
judgment.
(d) (Withdrawn by Union.)
Section 7. All time limits specified in this Article over which the
parties have control may be extended by mutual agreement of the parties.
Section 8. The Hospital agrees that the Association representative
designated to represent Unit members in Step One, Two, and Three of the
grievance procedure shall be permitted a reasonable amount of time to
consult and prepare the grievance during on-duty hours. Such
consultations shall be arranged with notification and approval of the
respective supervisors and shall not interfere with work
responsibilities of the nurses involved.
Section 9. All expenses of arbitration, including the compensation
and expenses of the arbitrator but excluding the counsel fees and other
expenses incurred by a party in the preparation and presentation of its
case, will be equally shared by the Hospital and the Association.