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29 FLRA NO. 62


VETERANS ADMINISTRATION STAFF
NURSES COUNCIL, LOCAL 5032,
WFNHP, AFT, AFL-CIO

                  Union

       and

         VETERANS ADMINISTRATION MEDICAL
         CENTER, WOOD, WISCONSIN

                       Agency

Case No. O-NG-1012

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)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of 13 proposals. 1 The proposals concern the employment circumstances of nonsupervisory registered nurses within the Agency's Department of Medicine and Surgery (DM&S).

II. Proposals 1 and 2

Proposals 1 and 2, set forth in the Appendix of this decision because of their length, would establish grievance and arbitration procedures for registered nurses under the parties' collective bargaining agreement.

A. Positions of the Parties

The Agency asserts that it has no duty to bargain over Proposals 1 and 2 because the negotiation and implementation of grievance and arbitration procedures for registered nurses would conflict with (1) the authority of the Administrator of the Veterans Administration (VA) under title 38 of the U.S. Code to govern the conditions of employment of DM&S employees and (2) Agency "legislative regulations" which establish appeal procedures for these employees. The Agency also con-tends that the proposals are inconsistent with management's right to discipline employees under section 7106(a)(2)(A) of the Statute, because title 38 does not permit arbitral review of disciplinary actions concerning DM&S employees.

The Union argues that the grievance and arbitration procedures contemplated under its proposals are within the Agency's duty to bargain under the Statute.

B. Analysis

(1) Title 38 of the U.S. Code and Agency "Legislative Regulations"

On October 27, 1986, we granted the Agency's motion for Consideration of Common Issues in Pending Cases, which concerned proposals in this case--including Proposals I and 2--and negotiability issues to which the Agency was a party in other pending cases. As presented by the Agency's motion, the common issues concerned: (1) whether title 38 of the U.S. Code provides the Agency head (the Administrator) with authority to regulate conditions of employment for DM&S employees without bargaining concerning these matters under the Statute; and (2) whether the unions' proposals are barred from negotiations by Agency &legislative regulations' which have the force and effect of law.

In Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987) (VAMC, Ft. Lyons), petition for review filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C. Cir. Feb. 25 1987), one of the other pending cases which was subject to the Agency's motion, we held that the Statute applies to DM&S employees and that, as a general matter, the Agency has a duty to bargain over their conditions of employment. In so holding, we rejected the Agency's contentions that negotiations over conditions of employment for DM&S employees under the Statute were barred by either (1) title 38 of the U.S. Code, or (2) Agency regulations which the Agency claims have the status of "legislative regulations."

We recently reaffirmed these conclusions, concerning title 38 and the Agency's regulations, in National Federation of employees, Local 1798 and Veterans Administration Medical Center, Martinsburg, West Virginia, 27 FLRA No. 37 (1987) (VAMC, Martinsburg), petition for review filed sub nom. Veterans Administration Medical Center, Martinsburg, West Virginia v. FLRA 87-1342 (D.C. Cir. July 24, 1987). in that decision we further explained that since the Agency's personnel regulations are not Government-wide regulations, its regulations can bar negotiations on a conflicting union proposal only where the Agency shows that a compelling need exists for that regulation under section 7117(a)(2) of the Statute and section 2424.11 of our Regulations.

The Agency's arguments under title 38 and its "legislative regulations' concerning Proposals 1 and 2 in this case are the same arguments we addressed and rejected in VAMC, Ft. Lyons and VAMC, Martinsburq. Therefore, based on our reasoning and conclusions in those decisions, we reject the Agency's arguments that Proposals 1 and 2 are outside its duty to bargain under title 38 and its "legislative regulations." Further, since the Agency has not claimed that a compelling need exists for its regulations to bar negotiation of Proposals 1 and 2 under section 7117(a)(2) of the Statute, we conclude that Agency regulations do not bar negotiation of the proposals.

(2) The Right to Discipline Employees under Section 7106(a)(2)(A) of the Statute

The Agency's arguments concerning the negotiability of Proposals 1 and 2 under section 7106(a)(2)(A) of the Statute center on whether the procedures contemplated by the proposals are barred from negotiation under 38 U.S.C. 4110. In this regard, in VAMC, Ft. Lyons (Proposal 1) we reaffirmed the Authority's prior holding in Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Minneapolis, Minnesota, 15 FLRA 948 (1984), that the Agency is not obligated to negotiate over grievance and arbitration procedures for DM&S employees which extend to disciplinary and adverse actions which are covered by the peer review system established under 38 U.S.C. 4110. However, consistent with the court's decision in Veterans Administration Medical Center, Minneapolis, Minnesota v. FLRA, 705 F.2d 953, 958 (8th Cir. 1983), in VAMC, Ft. Lyons (Proposal 1) we also held that grievance and arbitration procedures for DM&S employees are within the Agency's duty to bargain under the Statute to the extent that the procedures cover other matters which are not barred by 38 U.S.C. 4110.

The grievance and arbitration procedures contemplated by Proposals 1 and 2 in this case explicitly exclude from  their coverage "any matter to which a method of review is prescribed by law, or to the termination of an employee's appointment during the probationary period, or a competency review, which might affect job retention, by a Professional Standards Board convened for a review of competency." Appendix, Proposal 2, "Article XII - Grievance Procedure, 2. Definitions." Based on this language and the Union's consistent explanation, we find that the procedures contemplated by Proposals 1 and 2 do not extend to matters which must be excluded under 38 U.S.C. 4110. Accordingly, we conclude that the proposals do not conflict with section 7106(a)(2)(A) of the Statute for this reason.

The Agency's other arguments under section 7106(a)(2)(A) of the Statute are concerned with whether the procedures contemplated by Proposals 1 and 2 might result in an arbitration decision which would conflict with management's rights. The procedures are not outside the duty to bargain for this reason. The Authority has consistently held that arbitrators may not substitute their judgement for that of management in the exercise of management's reserved rights. For example, Professional Air Traffic Controllers Organization and Federal Aviation Administration, 5 FLRA 763 (1981). If, therefore, such an occurrence should come to pass, the Agency has a remedy. It can file exemptions to the arbitrator's award under section 7122(a) of the Statute. United States Naval Ordnance Station, Louisville, Kentucky v. FLRA, 818 F.2d 545, 551 (6th Cir. 1987) (Naval Ordnance Station).

C. Conclusions

The grievance and arbitration procedures contemplated by Proposals 1 and 2 are not rendered nonnegotiable by title 38 of the U.S. Code, the Agency's "legislative regulations," or section 7106(a)(2)(A) of the Statute. Accordingly, we conclude that Proposals 1 and 2 are within the Agency's duty to bargain.

III. Proposal 3

Article X - Role of the Registered Nurse Section 1

The Medical Center recognizes that the Registered Nurse (RN) is responsible for the total nursing care of patients, and will support the nurse in providing such care. 

A. positions of the Parties

The Agency argues that this proposal is outside its duty to bargain under section 7103(a)(14) of the statute because it is concerned with the Agency's health care mission, rather than employees' conditions of employment. It also asserts that the proposal would require the Agency to assign to registered nurses responsibilities for nursing care which the Agency assigns to other personnel, including physicians. In this regard, the Agency argues that the proposal conflicts with the Agency's statutory responsibilities under 38 U.S.C. 4101(a), and management's rights under section 7106(a)(2)(B) and (D) of the Statute to assign work and to take actions in emergencies.

The Union asserts that the proposal is concerned with employees' conditions of employment within the meaning of section 7103(a)(14) of the Statute. It also asserts that the proposal merely restates the nursing care responsibilities which the Agency assigns to registered nurses and it is not intended to affect management's discretion to assign nursing care responsibilities to other personnel.

B. Analysis and conclusion

The petition for review as to this proposal must be dismissed. Because the proposal is concerned with the work situation of registered nurses, it is concerned with employees' conditions of employment within the meaning of section 7103(a)(14) of the Statute. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986) (Antilles). However, we are unable to discern the effect of this proposal as regards the parties' other contentions.

The first clause of the proposal states that the medical center recognizes that the registered nurse is responsible for the total nursing care of patients. Based on its wording and the Union's explanation, this clause merely restates the responsibilities the Agency already assigns to registered nurses. It does not affect management's discretion to determine the nursing care responsibilities which should be assigned to other personnel. Accordingly, when considered separately, independent of the second clause in the proposal, this clause is directly analogous to Proposal 4 in Illinois Nurses' Association and Veterans Administration Medical Center, Hines, Illinois, 28 FLRA No. 3 (1987), which we held to be negotiable. 

However, as presented in this proposal, the purpose and effect of the first clause is dependent on the meaning of the second clause, which states that the medical center will support the nurses in providing total nursing care to patients. As the Agency argues, this second clause could imply that the center must support the nurses in this regard even if this support would infringe on the assigned responsibilities of other personnel. Since the Union has not explained the second clause, in response to the Agency's argument, it is impossible to ascertain whether the proposal as a whole would adversely affect the exercise of management's rights.

Accordingly, we are unable to provide a negotiability determination concerning this proposal. See Overseas Education Association v. FLRA, No 86-1491,slip op. at 13 (D.C. Cir. Aug. 28 1987) ("it is for the Union, not the FLRA, to draft proposals that come fully within the Employer's duty to negotiate").

IV. Proposal 4

Article X - Role of the Registered Nurse Section 2

Management accepts full responsibility for its decisions in matters of staffing, and in assigning and directing Medical Center employees. The registered Nurse will withhold medications or procedures which she/he considers unsafe, and will seek advice and/or assistance form a physician, immediate supervisor, or other appropriate member of the treatment team. It is expected the RN will follow established procedures in resolving such instances. (The underscored language is in dispute.)

A. Positions of the Parties

Like Proposal 2, the Agency argues that the underscored language of this proposal is outside its duty to bargain because it is not concerned with conditions of employment within the meaning of section 7103(a)(14) of the Statute. It also asserts that the proposal would assign medication responsibilities to registered nurses which would interfere with the responsibilities of physicians. In this regard, the Agency argues that the proposal conflicts with the Agency's patient care responsibilities under 38 U.S.C. 4101 and management's rights--under section 7106(a)(2)(B) and (b)(1) of the Statute--to assign work and to determine the methods and means of performing its work. 

The union argues that the proposal is negotiable. In its view, the proposal is concerned with conditions of employment under section 7103(a)(14) of the Statute and the proposal does not conflict with the responsibilities which the Agency

B. Analysis

Like Proposal 2, this proposal is concerned with conditions of employment within the meaning of section 7103(a)(14) of the Statute, because it concerns the work situation of bargaining unit employees. Antilles, 22 FLRA No. 23. However, the proposal is nonnegotiable because it conflicts with (1) management's right to assign work under section 7106(a)(2)(B) of the Statute and (2) 38 U.S.C. 4110.

(1) The Right to Assign Work

As argued by the Agency, the responsibilities for medication of patients which the Agency assigns to its personnel directly concerns the right of Agency management to assign work under section 7106(a)(2)(B) of the Statute. See American Federation of Government Employees, Local 1822, AFL - CIO and veterans Administration Medical Center, Waco, Texas, 9 FLRA 709, 710 (1982). Further, the parties agree that the medication which is provided to patients by registered nurses is directed by physicians, who tailor their medication directions to the individual circumstances of patients.

In this regard, in our view the proposal would authorize registered nurses to withhold medication under general contract rules which, being general, cannot be tailored to the ever-changing conditions under which physicians provide medication directions. Further, we agree with the Agency that the procedures followed by nurses in providing or with-holding medication for patients--matters of utmost importance and delicacy in patient care--must always be governed by directions provided by individual physicians in particular cases, unencumbered by possibly conflicting rules of conduct in collective bargaining agreements. Accordingly, we conclude that the proposal would conflict with management's right to assign work because it would interfere with the medication responsibilities which the Agency assigns to physicians.

(2) 38 U.S.C. 4110

Implementation of the proposal would also conflict with the requirements of 38 U.S.C. 4110. In this regard,   as explained in connection with Proposals 1 and 2, above, disciplinary actions and adverse action procedures, which are exempt from negotiated grievance and arbitration procedures under the Statute for the Agency's title 38 employees, extend to issues relating to professional misconduct. VAMC, Ft. Lyons, 25 FLRA No. 66. If Proposal 4 were implemented, disputes concerning its application to the actions of registered nurses in withholding medication from patients would be resolved under the parties' negotiated grievance procedures.

In our view, the resolution of such disputes would center on whether such nurses had engaged in professional misconduct. Since such issues are barred from the coverage of the parties' negotiated grievance procedures under 38 U.S.C. 4110, we conclude that the implementation of this proposal would conflict with 38 U.S.C. 4110.

C. Conclusions

The proposal concerns employees' conditions of employment within the meaning of section 7103(a)(14) of the Statute. However, the proposal conflicts both with the right to assign work under section 7106(a)(2)(B) and with 38 U.S.C. 4110. In view of our conclusion that the proposal is outside the duty to bargain for these reasons, we need not consider whether the proposal is nonnegotiable on other grounds asserted by the Agency.

V. Proposal 5

Article XIV - Hours of Duty and Scheduling Section B-1 - Scheduling

Subject to unusual circumstances regarding the availability of Registered Nurses and patient care needs, the Medical Center agrees to:

a. Keep to a minimum the instances of scheduling less than fifteen (15) hours between shifts.

b. Make every effort to schedule consecutive days off.

c. Equitably distribute weekends off among employees of a unit.

d. Normally, not schedule employees on days with rotation to work more than two (2) different shifts (i.e. day/evening, day/night) in any one (1) week. Normally these days will be worked in succession. 

e. Schedule rotation to evenings and nights equitably and limit such rotation to maintaining the basic patient care needs of the unit.

A. Positions of the Parties

The Agency argues that this proposal is outside its duty to bargain under 38 U.S.C. 4108(a). It also asserts that the proposal would require work schedules for registered nurses which would conflict with patient care needs. On this basis, it argues that the proposal conflicts with management's rights to determine the number and types of employees who will be assigned to shifts and to assign work, under sections 7106(b)(1) and 7106(a)(2) of the Statute. For the same reasons, the Agency also argues that the proposal conflicts with an agency regulation for which a compelling need exists under section 7117(a)(2) of the Statute.

The Union argues that the proposal is not nonnegotiable under 38 U.S.C. 4108. It asserts that the proposal does not require work schedules for registered nurses which would conflict with patient care needs. Lastly, the Union asserts that the Agency has not supported its contention that a compelling need exists for its regulation.

B. Analysis and Conclusions

For the reasons discussed in connection with Proposals 1 and 2, above, we reject the Agency's contention that the proposal is outside its duty to bargain under 38 U.S.C. 4108(a). We also conclude, contrary to the Agency's other contentions, that subsections a-d and the first clause of subsection e of the proposal are negotiable. The second clause of subsection e is nonnegotiable.

(1) Subsections a-d and the First Clause of Subsection e

Based on the proposal's wording, the work schedule requirements of these parts of the proposal (concerning time-off between shifts, consecutive days-off, weekends-off, and rotations between shifts) are "(s)ubject to unusual circumstances regarding the availability of Registered Nurses and patient care needs," as provided in the proposal's preface. As explained by the Union, these qualifications are intended to be read in the disjunctive. That is, based on these qualifications, none of the work schedule arrangements of these parts of the proposal is required if management decides that (1) unusual circumstances regarding the  availability of registered nurses require differing arrangements, or (2) patient care needs require differing arrangements.

The Union's explanation is consistent with the proposal's wording. We adopt its explanation of the intent of the proposal for the purposes of this decision. so interpreted, the Agency's assertions that the work schedule arrangements of these parts of the proposal conflict with management's rights under the Statute and an Agency regulation are based on a misunderstanding. Unlike Proposal 2 in VAMC, Ft. Lyons, 25 FLRA No. 66, subsections a-d and the first clause of subsection e of this proposal do not require work schedules for registered nurses which would conflict with management's patient care needs.

Instead, these parts of the proposal contemplate that work schedules for registered nurses must always be consistent with patient care needs. Accordingly, we conclude that these parts of the proposal are negotiable. See National Association of Government Employees, SEIU, AFL - CIO and Veterans Administration Medical Center, Grand Junction, Colorado, 24 FLRA No. 21 (1986) (Proposal 4); National Association of Government Employees, Local R14-8 and Veterans Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17 (1986) (Proposal 3).

(2) Second Clause of Subsection e

The second clause of subsection e requires separate analysis. This clause provides that management shall limit rotations of registered nurses to evening and night work "to maintaining the basic patient care needs of the unit" (emphasis added).

In VAMC, Ft., Lyons, 25 FLRA No. 66 (Proposal 4), we considered proposal language which would have required management to make "every effort" to avoid assigning nonprofessional duties to staff nurses. We found that this requirement was nonnegotiable because it imposed a substantive condition on management's right to assign work and established a criterion by which management must justify its action in assigning work to nurses. See also New York State Nurses Association and Veterans Administration Medical Center, Bronx, New York, 11 FLRA 578 (1983) (VAMC, Bronx).

The second clause of subsection e of Proposal 5 here would impose a substantive condition on management's right to assign evening and night work to registered nurses; that such work shall be limited to maintaining "basic patient care  needs." Accordingly, we conclude that this clause directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is outside the duty to bargain.

VI. Proposal 6

Article XIV - Hours of Duty and Scheduling section B-4 - Scheduling

4. Registered Nurses will not normally be scheduled to replace employees in other classifications such as licensed practical nurses or nursing assistants.

A. Positions of the Parties

The Agency argues that under 38 U.S.C. 4108 and 4119 it is not obligated to bargain over this proposal. It also asserts that the proposal would interfere with management's discretion to determine the type of work which will be assigned to employees. In this regard, the Agency argues that the proposal conflicts with management's rights under section 7106(a)(2) to assign employees and assign work, as well as an Agency regulation for which a compelling need exists.

The Union disputes the Agency's contentions and argues that the proposal is negotiable. It asserts that the proposal is only concerned with nurses' hours and work schedules and it is not concerned with the type of work which can be assigned to employees.

B. Analysis and Conclusions

Based on our reasoning in connection with Proposals 1 and 2, this proposal is not outside the Agency's duty to bargain under 38 U.S.C. 4108 and 4119. However, the proposal is nonnegotiable under section 7106(a)(2) of the Statute.

It is well established that management's right to assign work under section 7106(a)(2)(B) encompasses the right to determine the type of work which will be assigned to employees. For example, VAMC, Ft. Lyons, 25 FLRA No. 66 (Proposal 4); VAMC, Bronx, 11 FLRA 578. This proposal conflicts with this right because, in requiring that registered nurses normally will not be scheduled to replace other employees, it would prevent management from assigning to registered nurses duties which are performed by other employees, such as licensed practical nurses and nursing assistants. Id.

The language "normally," which qualifies the requirement of the proposal, does not remove the limitation imposed on management's right to assign work. See, for example, American Federation of Government Employees, AFL - CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA No. 152 (1987) (Provision 8); Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (1987) (VAMC, North Chicago) (Proposal 5), petition for review filed sub nom. Veterans Administration Medical Center, North Chicago, Illinois v. FLRA# No. 87-1405 (D.C. Cir. Aug. 17, 1987). With this language, this portion of the proposal would permit arbitrators to substitute their judgment for management's on whether certain work should be assigned to registered nurses.

The Union's explanation, that the proposal is solely concerned with hours of work and scheduling, does not comport with the proposal's plain wording. We will not base a negotiability decision on a Union statement of intent which is clearly inconsistent with the language in dispute. For example, National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565, 574 (1983).

In view of our conclusion that the proposal is non-negotiable under section 7106(a)(2) of the Statute, we need not consider whether the proposal conflicts with an Agency regulation for which a compelling need exists.

VII. Proposal 7

Article XV - Overtime, Section 1

Overtime for nurses shall be used only under conditions wherein necessary functions cannot be performed through planned coverage during their regular basic workweek.

A. Positions of the Parties

The Agency argues that this proposal would determine when Agency work should be performed. On this basis, the Agency asserts that the proposal conflicts with management's right to assign work under 7106(a)(2)(B) of the Statute. The Union argues that the proposal is negotiable because it mirrors the restrictions on overtime assignments in the Agency's regulations and, in the Union's view, the proposal  does not prevent management from assigning work during overtime hours.

B. Analysis and Conclusion

This proposal is nonnegotiable. It is well established that management's right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to determine when assigned work is to be performed. For example, American Federation of Government Employees, Local 2094, AFL - CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA No. 81 (1986) (Proposal 4), petition for review filed as to other matters sub nom. American Federation of Government Employees, AFL - CIO, Local 2094 v. FLRA, No. 86-1521 (D.C. Cir. Sept. 22, 1986). This proposal conflicts with this right.

By providing that registered nurses will not be assigned overtime unless 'necessary functions' cannot be performed through planned coverage during the nurses' regular workweek, the proposal implicitly requires that certain Agency work will be performed at certain times--that work on &necessary functions' should be performed during the hours of the regular workweek. Accordingly, the proposal conflicts with the right to assign work under section 7106(a)(2)(B) of the Statute and is outside the duty to bargain.

The Union's interpretation--that the proposal does not affect management's discretion to assign work--does not comport with the proposal's plain wording. As we stated in connection with Proposal 6, above, we will not base a negotiability decision on a Union statement of intent which is clearly inconsistent with the language in dispute.

If the proposal does mirror the requirements of the Agency's regulations, as the Union claims, it is not rendered negotiable for this reason. Union proposals which are nonnegotiable because they impose limitations on the exercise of management's rights under section 7106(a) of the Statute do not become negotiable simply because an agency issues guidance to its supervisory and management personnel, by regulations or other means, on the manner in which such reserved rights should be exercised. See Overseas Education Association v. FLRA, No. 86-1491, slip op. at 9 (D.C. Cir. Aug. 28, 1987) (an agency cannot make negotiable, by regulation or otherwise, matters which are barred from negotiation by section 7106(a) of the Statute). Under sections 7103(a)(9) and 7121 of the Statute, the parties may negotiate a grievance procedure which encompasses disputes concerning the application of such regulations. 

However, when an agency initiates such guidance to its supervisors and management personnel, by regulations or other means, it may change the guidance at any time. Provisions negotiated into a collective bargaining agreement differ. Such provisions establish rules which are independent of an agency's regulations and remain in force for the life of the agreement. See, for example, Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA No 29 (1987) (Patent Office), at text under section "III, D, 7," petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 26, 1987).

VIII. Proposal 8

Article XV - Overtime; Section 7

Employees who are placed in on-call status will be paid the usual on-call rate in accord-ance with applicable law and regulations for all time spent in an on-call status. On-call status will be equally rotated among all employees in the Department. (The underscored language is in dispute)

A. Positions of tbe parties

The Agency asserts that the underscored language is outside its duty to bargain because its subject, the distribution of on-call assignments, is covered by 'legisla-tive regulations' which the Agency issues under the authority of 38 U.S.C. 4108. The Agency also asserts that this language would prevent management from assigning nurses to duties based on patient care needs and the differing skills and abilities of its nurses. In its view, for this reason the disputed language conflicts with management's rights under section 7106(a)(2) of the Statute and an Agency regulation for which a compelling need exists under section 7117(a)(2) of the Statute.

The Union argues that the underscored language is not outside the duty to bargain under 38 U.S.C. 410B and it does not conflict with management's rights under section 7106(a)(2) of the Statute. In its view, requiring equal rotations of nurses to on-call status does not affect management's right to assign work.

B. Analysis and Conclusions

The disputed language is nonnegotiable. For the reasons explained in connection with Proposals 1 and 2,  above, the disputed language of this proposal is not outside the duty to bargain under 38 U.S.C. 4108. However, we agree with the Agency that the proposal conflicts with management's rights under section 7106(a)(2) of the Statute.

In discussing Proposal 4 in VAMC, Ft. Lyons, 25 FLRA No. 66, we noted that the patient care requirements vary throughout a day and during a week. Therefore, the particular tasks which must be performed to satisfy these requirements can be expected to vary. These tasks also often involve specialized skills and knowledge of procedures and techniques which vary among nurses. Accordingly, in VAMC, Ft. Lyons we held that union proposals which would restrict management's ability to assign nurses to these tasks on particular shifts or tours of duty, without taking account of these differences, interfered with management's right to assign work. This proposal is deficient on these grounds.

It requires that registered nurses will be placed on "on-call" status--required to remain available when off work for being recalled to duty--"equally." The Agency contends that this requirement would preclude on-call assignments based on management's judgments as to nurses' differing specialized skills and its estimates of the work which will be required when the nurses are recalled to duty. Based on these Agency contentions, which are not disputed by the Union, and our reasoning in VAMC, Ft. Lyons, we conclude that this proposal conflicts with management's right to assign work under section 7106(a)(2)(B) of the Statute.

In view of this conclusion, it is unnecessary to consider whether the proposal also conflicts with an Agency regulation for which a compelling need exists.

IX. Proposal 9

Article XVII - Vacancies; section 4

Employees who are promoted outside the bargaining unit may return to their former position or a comparable one if their former position is not available without loss of seniority or benefits.

A. Positions of the Parties

The Agency asserts that this proposal concerns the entitlements of employees in nonunit positions and, therefore,  is nonnegotiable under section 7114 of the Statute. It also asserts that the proposal would create entitlements to Agency positions which conflict with management's rights, under section 7106(a)(1) and 7106(a)(2)(C) of the Statute, to determine its budget, to determine the number of Agency employees, and to select candidates for Agency positions.

The Agency asserts that the proposal does not constitute an appropriate arrangement which is negotiable under section 7106(b)(3) of the Statute because, in its view, (1) the proposal is concerned with the entitlements of promoted employees and (2) promoted employees cannot be viewed as having been adversely affected by the exercise of management rights.

The Union argues that the proposal is negotiable because it does not establish that employees shall have entitlements to Agency positions. It asserts that the proposal is only concerned with employees' entitlements after they return to unit positions.

B. Analysis and Conclusions

The Union explains that this proposal is not intended to create entitlements to Agency positions. Instead, the Union's intent is merely to require that employees will not lose seniority or benefits previously held when they return to their previous unit position or a comparable position.

The Union's explanation of the proposal's intended meaning does not conflict with the proposal's wording. We adopt that explanation for the purpose of this decision. So interpreted, the proposal does not create entitlements to any positions. It is only concerned with the conditions under which employees will occupy unit positions if they return to them. Accordingly, the proposal is not outside the duty to bargain under section 7114 of the Statute because, as claimed by the Agency, it concerns the entitlements of employees who occupy nonunit positions. For example, International Federation of Professional and Technical Engineers, Local 4, AFL - CIO and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 15 FLRA 802 (1984) (a proposal, concerned with the conditions under which persons are reemployed in bargaining unit positions is within the duty to bargain).

Further, because the proposal does not create entitlements to Agency positions, it does not affect the Agency's  rights, under section 71O6(a)(1) of the Statute, to determine its budget or the number of Agency employees. For the same reason, we find that the proposal also does not affect the Agency's right to select employees for positions under section 7106(a)(2)(C) of the Statute.

In view of our conclusion that the proposal does not affect management's rights under section 7106, we need not consider whether the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3). Further, since the Agency has not shown that the seniority or benefits requirements of the proposal are otherwise inconsistent with law, Government-wide regulation, or an Agency regulation for which a compelling need exists, we conclude that the proposal is negotiable.

X. Proposal 10

Article XVIII - Pulling, Floating and Temporary Vancancies; Section 1

1. Employees may be temporarily reassigned to wards or services other than those to which they are normally assigned. . . . When qualified employees are being considered for temporary reassignment, from a unit, such reassignments will be rotated, beginning with the least senior employee. Such rotation will be equitable. (The underscored language is in dispute.)

A. Positions of the Parties

The Agency asserts that the underscored language of this proposal would preclude selection of registered nurses for reassignment who are qualified to perform the required duties during reassignment. On this basis, it argues that the proposal conflicts with management's rights, under section 7106(a)(2) of the Statute, to assign employees and assign work. The Union asserts that the proposal allows management to determine which employees are qualified for reassignments. It argues that the proposal is negotiable because it only requires rotations of employees who are qualified for reassignments.

B. Analysis and Conclusions

The proposal is negotiable. The disputed language provides that when "qualified employees" are being considered for reassignment, such reassignments will be rotated and the  rotations will be equitable. This language and the Union's explanation are totally consistent in stating that management retains the discretion to determine which employees are qualified for reassignment under this proposal. The proposal merely requires that reassignments of registered nurses, who are qualified, shall rotate equitably in inverse seniority order.

Thus, the disputed language does not conflict with management's rights to assign employees or assign work under section 7106(a)(2) of the Statute. The language establishes a procedure, for designating qualified employees for reassignment, which is negotiable under section 7106(b)(2) of the Statute. See International Plate Printers, Die Stampers and Engravers 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) (Proposal 4).

The Authority precedent cited by the Agency in support of its position is inapposite. Unlike this proposal, the proposals which the Authority held nonnegotiable in American Federation of Government Employees, AFL - CIO, Local 916 and Tinker Air Force Base, Oklahoma, 7 FLRA 292 (1981) and American Federation of Government Employees, AFL - CIO, Local 695 and Department of the Treasury, U.S. Mint, Denver, Colorado, 3 FLRA 43 (1980) did not preserve management's discretion to determine which employees were qualified for reassignment.

XI. Proposal 11

Article XXI - Leave Without Pay and Authorized Absence, Section 2

LWOP may be granted in cases of employees who have applied for disability retirement. The employee shall have the option of using sick leave or annual leave as part of the leave or absence for disability, but such usage will not be required.

Section 4

Nurses on approved leave without pay will be re-instated without loss of seniority, in accordance with applicable laws and regulations (up to a maximum of six (6) months), upon returning from their leave. 

A. Positions of the Parties

The Agency asserts that this proposal is outside the Agency's duty to bargain because its subjects (approvals of leave and leave-without-pay (LWOP)) are governed by Agency "legislative regulations." The Agency also asserts that section 2 conflicts with the right to assign work under section 7106(a)(2)(B) of the Statute, because it requires approvals of leave requests regardless of the Agency's needs and whether an employee is capable of performing work.

The Union asserts that the proposal concerns matters which are within the duty to bargain under the Statute. it argues that-section 2 does not conflict with section 7106(a)(2)(B) of the Statute because section 2 does not require leave approvals. The Union asserts that tbe Agency's inter-pretation of section 2 does not comport with the proposal's wording or its intended meaning.

B. Analysis and Conclusions

This proposal is negotiable. As we explained in connection with Proposals 1 and 2, above, the proposal is not outside the duty to bargain because its subject matter is covered by Agency ,legislative regulations., Insofar as the proposal may conflict with the Agency's regulations, the Agency has not claimed or shown that a compelling need exists for its regulations to bar negotiation of the proposal under section 7117(a)(2) of the Statute. Accordingly, the proposal is not nonnegotiable on these grounds asserted by the Agency.

Further, we reject the Agency's contention that section 2 of the proposal interferes with management's rights under section 7106(a)(2)(B) of the Statute. Based on the wording of section 2 and the Union's explanation, management retains the discretion to determine whether an employee can be released from work under section 2. The proposal's option, which allows the substitution of sick leave or annual leave for time (off work) which otherwise would be charged to LWOP, arises after management has decided that the employee may be released from work. Compare section 8 of Proposal 6 in VAMC, North Chicago, 27 FLRA No. 79 (1987), which we found nonnego-tiable because it did require management to release employees from work on LWOP.

In sum, this proposal is not outside the duty to bargain on the grounds asserted by the Agency. It is not   apparent to us that either section of this proposal is non-negotiable on other grounds. Accordingly, we conclude that the proposal is negotiable.

XII. Proposal 12

Article XXII - Compensation; Section 2

The Medical Center will make an annual survey of salaries paid to registered nurses in the community. When information gathered through the survey demonstrates that salaries of registered nurses included in this Agreement are not competitive with registered nurse salaries paid in the community, the Medical Center will recommend adjustment of salaries.

A. Positions of the Parties

The Agency asserts that the proposal is outside the duty to bargain because: (1) it is concerned with compensation matters which are specifically provided for by Federal statute so as to be outside the duty to bargain under section 7103(a)(14)(C) of the Statute; (2) it would interfere with the discretion of the Agency's Administrator under 38 U.S.C. 4107 to determine compensation for registered nurses; (3) its requirement that local management shall conduct salary surveys conflicts with management's right under section 7106(a)(2)(B) to assign work; and (4) there is no legal authority for negotiations on such matters.

The Union asserts that the proposal is negotiable. It argues that the proposal does not cover a matter which is provided for by Federal statute within the meaning of section 7103(a)(14)(C) of the Statute. The Union also argues that this proposal does not conflict with management's right to assign work.

B. Analysis

The proposal provides that the local medical center shall undertake annual surveys of nurses' salaries in the local community. When the surveys demonstrate that the salaries of registered nurses at the center are not competitive with salaries in the community, the proposal requires the center to recommend adjustments for the salaries of its nurses.  

(1) Section 7103(a)(14)(C) of the Statute

As we explained in connection with Proposal 4 in VAMC, North Chicago, 27 FLRA No. 79, which contained provisions directly analogous to the proposal here in dispute, 38 U.S.C. 4107(g) provides that the VA Administrator may increase the rates of basic pay of nurses and other professional medical employees on a nationwide, local, or other geographic basis. Such pay increases may be made to provide pay rates for DM&S employees which are competitive with the rates of the same category of personnel at non - Federal facilities in the same labor market.

Under VA regulations, the Facility Director is responsible for submitting a request for a change in the rate of basic pay. VA Manual MP-5, Part II, Chapter 3-5d. If such a request is approved by higher DM&S officials, it is forwarded to the VA Administrator for concurrence. Therefore, the VA Administrator has discretion under 38 U.S.C. 4107(g) not only to adjust rates of basic pay but to do so based on information as to salary rates surveyed at non - Federal hospitals in a given area.

in this regard, as we explained in VAMC, North Chicago, the Agency's contention that this proposal is outside the duty to bargain under section 7103(a)(14)(C) is inapposite. The proposal concerns procedures for developing information on salary rates and developing recommendations on salary increases based on the results of surveys. Insofar as 38 U.S.C. 4107(g) contains related provisions, the proposal is not inconsistent with them.

(2) The Authority of the VA Administrator

The proposal does not interfere with the discretion of the VA Administrator in these matters as asserted by the Agency. Based on its plain wording, the proposal only requires the local medical center to recommend pay adjustments if the center determines, from its surveys, that adjustments are needed for its registered nurses. The proposal does not intrude upon the authority of the VA Administrator to decide whether pay rate increases should be implemented.

(3) The Right to Assign Work under Section 7106(a)(2)(B) of the Statute

We also reject the Agency's claim that the pay survey activities contemplated by the proposal conflict with the right to assign work under 7106(a)(2)(B) of the Statute. The Authority precedent which the Agency cites in support of this position--Association of Civilian Technicians, Inc., Pennsylvania State Council and The Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346, 355-57 (1981)--is inapposite. Unlike the proposal in that case, this proposal does not require management to assign wage survey tasks to particular personnel.

The Agency's argument that the proposal conflicts with the right to assign work because its tasks must be performed by someone are without merit. It is well established that a general requirement concerning conditions of employment is not inconsistent with the right to assign work simply by virtue of the fact that the requirement contemplates that some action be taken by management. See VAMC, North Chicago, 27 FLRA No. 79 (Proposal 4); American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command - Redstone Arsenal Commissary, 27 FLRA No. 14 (1987) (Proposals 6, 8, & 10), petition for review filed as to other matters sub non. U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group v. FLRA, No. 87-7445 (11th Cir. July 17, 1987).

(4) The Authority to Negotiate

As noted above, this proposal is concerned with employees' conditions of employment within the meaning of the Statute. The Agency has not shown that the proposal is inconsistent with Federal law, Government-wide regulation, or an Agency regulation for which a compelling need exists. Further, the Agency has not demonstrated that its discretion in this matter, discussed in part (1) of this analysis, may not be exercised through negotiations. Accordingly, we reject the Agency's contention that it lacks authority to negotiate concerning this proposal.

C. Conclusion

Proposal 12 is not outside the duty to bargain under section 7103(a)(14)(C) and it does not contain provisions which conflict with the authority of the VA Administrator. The proposal does not interfere with management's rights to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, as provided by the Statute, Proposal 12 is within the Agency's duty to bargain. 

XIII. Proposal 13

Article XXV - Miscellaneous, Section C - Orientation

1. All new employees, including transfers from other stations or agencies, will be given orientation to the Wood VA Medical Center, and to their specific assignment. Orientation will be based on objective standards uniformly presented to all new employees and transfers under normal conditions. Employees in orientation will not be included as part of the normal staffing pattern, and may not be in charge. (The underscored language is in dispute.)

A. Positions of the Parties

The Agency asserts that the underscored language of this proposal would prevent management from assigning work to employees during orientation periods. It argues that these parts of the proposal are nonnegotiable because they conflict with management's right to assign work under section 7106(a) (2)(B) of the Statute. The Union asserts that the disputed language does not conflict with the right to assign work and argues that the language is negotiable.

B. Analysis and Conclusions

The disputed language is nonnegotiable. The language requires that new employees will be given orientation and precludes management from assigning them to the normal staffing pattern or assigning them to be "in charge" when they are in orientation. As we interpret this language, it directly interferes with management's right under section 7106(a)(2)(B) to assign work, because it would preclude management from assigning certain work to employees until they have completed orientation. For example, National Federation of Federal Employees, Local 108 and U.S. Department of Agriculture, Arkansas State Office of the Farmers Home Administration, 14 FLRA 19, 20-21 (1984) (proposals which condition the assignment of work upon the completion of prescribed training conflict with management's right under section 7106(a)(2)(B) to assign work).

The Union's explanation, that the disputed language does not affect management's discretion to assign work, does not comport with the plain meaning of the proposed language. 

As we stated in connection with Proposals 6 and 7, above, we will not base a negotiability decision on a Union statement of intent which is clearly inconsistent with the language in dispute.

XIV. Order

The Agency must negotiate upon request or as otherwise agreed to by the parties concerning Proposals 1, 2, 5 excluding the second clause of subsection e), 9, 10, 11, and 12. 2 The petition for review is dismissed as to the remaining proposals.

Issued, Washington, D.C., October 5, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean Mckee, Member

FEDERAL LABOR RELATIONS AUTHORITY  

APPENDIX

Proposal 1

ARTICLE VI - EMPLOYEE RIGHTS, Section 2

Employees in the Unit shall have the right to seek resolution of matters in accordance with applicable law, regulations and/or VA policies. Employees are free to choose or not choose their own representation; however, any grievance action must be initiated and followed according to the Grievance Procedure set out in this Agreement. Nothing in this Agreement is intended to interrupt the day-to-day supervisor - employee communication. (The underscored language is in dispute.)

Proposal 2

ARTICLE XII - GRIEVANCE PROCEDURE

1. The Employer and the Union recognize the importance of settling disagreements and disputes promptly, fairly, and in an orderly manner. The parties will make every effort to settle grievances expeditiously and at the lowest level of supervision.

2. DEFINITIONS:

a. Grievance: A grievance shall mean any dispute, complaint or dissatisfaction concerning the interpretation and/or application of this Agreement, or conditions of employment or relationships with agency supervisors and officials and other matters under the jurisdiction and control of the Medical Center Director. The term "grievance" shall not apply to any matter to which a method of review is prescribed by law, or to the termination of an employee's appointment during the probationary period, or a competency review, which might affect job retention, by a Professional Standards Board convened for a review of competency.

b. Grievant: A grievant shall mean either an individual employee, a group of employees, or the Union. 

c. Days: The term "day" where used in this contract shall mean calendar day. If the expiration of any time limit, as prescribed, falls on a Saturday, Sunday or legal holiday, the time limit shall extend to the next Medical Center business work day.

d. Written Grievance: A clear concise statement of the grievance which shall set forth specifically the act(s) or conditions(s) giving rise to the grievance and the relief sought. Written grievances shall be presented on forms provided by the Union (see Appendix for sample form) unless the grievant choses to pursue a grievance without Union representation. In this case, all relevant information must be provided in writing. Failure to specify will be the basis for rejection, as well as failure of an employee to sign the grievance.

e. Multiple Grievances: By mutual agreement between the Union and Medical Center, identical grievances submitted by two or more employees may be consolidated into a single grievance. Grievances must be identical in all respects, including resolutions sought and legally permissible. No single grievance may be filed on two or more unrelated matters.

f. Processing grievances: Only the Union, or representatives approved by the Union, may represent employees in grievances. An employee may personally present a grievance and have it adjusted without representation by the Union, but the Union must be notified and given the opportunity to be present at any formal discussions concerning grievances. Any settlement or resolution must be consistent with the provisions of this Agreement. The Union must receive copies of all official correspondence relating to a grievance.

g. Released Time: An Employee(s) with a grievance desiring to contact a Union Steward shall request permission from the appropriate supervisors who shall allow the employee (s) necessary time, consistent with the needs of the Medical Center, and procedures of Article IX. 

h. Time limits: Such time limits as set forth in Section 3 on procedure may be adjusted by written mutual agreement. Failure by Management to respond within the stated time periods shall entitle the grievant to advance the grievance to the next step. Failure by the grievant to adhere to the specified time limits shall constitute withdrawal of the grievance. Failure by the Union to pursue to arbitrator the Step 3 decision of Management within the stated time period shall mean settlement of the grievance on the basis of the Step 3 answer.

i. continuing Grievances: The grievant has the right to file a grievance concerning a continuing practice or condition at any time; however, the grievance must contain evidence to support an allegation of the continuing practice or condition.

j. First Step Deciding Official: Immediate Supervisor or the lowest level management official who has authority to render a decision on the grievance in question.

3. Grievances shall be processed in the following manner by an Employee, group of Employees, or Union: (At each step, grievant(s) and/or representative(s) of the parties shall meet and attempt to resolve the grievance prior to the rendering of a decision.)

a. Step 1. Informal Procedure

The grievance must be presented to the immediate supervisor within fifteen (15) days from the date the grievant became aware of, or should have reasonably become aware of the existence of such grievance. The grievance at this step may be presented either orally, or in writing. The immediate supervisor, or lowest level management official who has authority to render a decision will render a decision within fifteen (15) days after presentation of the grievance. The decision rendered will be provided in the same manner in which the grievance was received (i.e., written for written, oral for oral). 

b. Step 2. Formal Procedure

Any grievance unresolved at Step One may be submitted in writing, as provided in section 2d, to the Chief, Nursing service within fifteen (15) days of the receipt of the Step One decision. The management official will render a decision, in writing, within fifteen (15) days of the receipt of the grievance.

c. Step 3: Formal Procedure

If the Step Two decision is unacceptable, the matter may be referred, in writing, to the Medical Center Director or his designee for a decision. The grievance must be presented within (15) days of the receipt of the Step Two decision and must state what was unacceptable in the Step Two decision. The Medical Center Director or designee shall render a decision in writing within fifteen (15) days of the receipt of the grievance. 

FOOTNOTES

Footnote 1 Based on the Union's initial petition, the Agency alleged that 23 Union proposals were nonnegotiable. However, in its response the Agency withdrew its allegations as to 10 proposals. Accordingly, those proposals need not be considered here.

Footnote 2 In deciding that these proposals are within the duty to bargain, we make no judgment as to their merits.

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