[ v31 p360 ]
31:0360(32)NG
The decision of the Authority follows:
31 FLRA NO. 32
31 FLRA 360
23 FEB 1988
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, COUNCIL OF VETERANS
ADMINISTRATION LOCALS
Union
and
VETERANS ADMINISTRATION
Agency
Case No. 0-NG-1273
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case This case is before the Authority
because of a negotiability appeal filed under section
7105(a)(2)(D) and (E) of the Federal Service Labor - Management
Relations Statute (the Statute). It concerns the negotiability of
14 articles which, for the reader's convenience, have been
divided into 26 proposals, as more fully explained below.
For the reasons set forth below, we find that the following
proposals are negotiable: Proposals 1, 3, 6, 9, 12, 13, 14, 15,
16 and 26. The following proposals are negotiable in part and
nonnegotiable in part: Proposals 2, 4, 5, 7, 8, 17, 18, 19, 20,
21, 22, 23 and 24. Proposal 25 is nonnegotiable. Portions of
Proposals 11 and 21 do not present bases on which the Authority
can resolve the negotiability issues raised. The petition for
review as to those portions will be dismissed.
Additionally, the Union has requested to withdraw the
following portions of the various proposals that are in dispute:
Article 14 (a), Section 6 of Annual Leave (Proposal 3); Article
14 (a), Section 7F of Sick Leave (Proposal 4); Article 14(a),
Section 2 of Teaching (Proposal 15); Article 17, Section 2
(Proposal 18); Article 20, Section 2 (Proposal 19); Article
24(a), Sections 3 and 9 (Proposal 21); Article 25, Sections 1, 2,
3, 7A and C, 12 and 13 (Proposal 22); Article 27, paragraphs 4
and 5 (Proposal 23); Article 30(a), Sections 1B, 2, 3B, 10
And 12 (Proposal 24); and Article 33(a), Sections 2, 3 and 4
(Proposal 25). The Union's request to withdraw is granted and we
will not consider these portions of the proposals further.
II. Preliminary Matters
A. The Veterans Administration (VA or Agency) raises two
common issues with respect to the negotiability of the proposals
in this case, namely that: (1) Title 38 of the United States Code
provides the Administrator of the VA with statutory authority to
regulate conditions of employment of professional medical
employees in the Department of Medicine and Surgery (DM&S) and,
therefore, the Agency has no duty to bargain under the Statute;
and (2) the proposals are outside the duty to bargain under
section 7103(a)(14) of the Statute since they concern matters
that are otherwise provided for by law. The Agency claims that
its regulations are legislative regulations which have the force
and effect of law and which, therefore, preclude bargaining over
the proposals. For the following reasons, we reject the Agency's
contentions.
In Colorado Nurses Association and Veterans Administration
Medical Center, Ft. Lyons, Colorado, 25 FLRA 803 (1987) (VA
Medical Center, Ft. Lyons), petitions for review filed sub nom.
Colorado Nurses Association v. FLRA Nos. 87-1242 and 87-1104
(D.C. Cir. Feb. 25, 1987), 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. We rejected the
Agency's contentions that certain sections of Title 38 barred
negotiations under the Statute of DM&S employees' conditions of
employment. We also rejected the Agency's arguments that the
Agency's personnel regulations constitute "legislative
regulations" which have the force and effect of law. To the
extent that similar issues are presented here, we reaffirm our
decision that the Statute applies to DM&S employees for the
reasons stated in VA Medical Center, Ft. Lyons.
Based on the analysis and the cases cited in Ft. Lyons, we
find that there is no conflict between Title 38 of the United
States Code and the duty to bargain under section 7117 of the
Statute. To the extent that the Agency raises the same general
argument as to each proposal at issue, we will not restate that
contention and we will not further consider the issue.
We also note that while the Agency has disputed all the
language in the proposals submitted by the Union, the Agency
has, in many instances, relied solely on its general
arguments rejected above. It is well established that the parties
bear the burden of creating a record upon which the Authority can
make a negotiability determination. National Federation of
Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C.
Cir. 1982), aff'g National Federation of Federal Employees, Local
1167 and Department of the Air Force, Headquarters, 31st Combat
Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA
574 (1981). A party failing to meet this burden acts at its
peril. In those instances where the Agency has raised no other
grounds on which to base a finding that particular language is
outside the duty to bargain, we will find such language to be
nonnegotiable only where the record otherwise indicates that the
language is inconsistent with law, rule or regulation, including
the Statute.
B. Another preliminary matter concerns the technical defects
in many of the Union's proposals. We have held that management's
right to assign work includes the right to determine the
individuals who will perform particular tasks. This right
includes assignment to bargaining unit and nonbargaining unit
employees. Many of the Union's proposals require the assignment
of work to specific employees or portions of the Agency's
organization and are nonnegotiable on that basis. In most of the
proposals, these defects would not permit management to exercise
its congressionally accorded discretion to assign the tasks
involved to whomever it elects. In this decision, we have noted
those proposals which are nonnegotiable solely on the basis that
they assign work to particular individuals or organizational
segments. These defects are easily cured. We urge the parties to
work together to resolve these technical defects and pursue
agreement on the substantive issues involved in the proposals.
We turn now to the specific proposals involved in this case.
For the reader's convenience, we have numbered the sentences or
paragraphs in various proposals. Also, because of their length,
the text of most of the proposals is reproduced in the attached
Appendix. Also because of its length, Article 14(a) has been
divided into separate proposals, numbered 3-17.
III. Proposal 1
Article 6 - Grievance Procedure
The text of this proposal appears in the Appendix. Proposal
1 would establish a grievance and arbitration procedure for
employees subject to the provisions of Title 38.
A. Positions of the Parties
The Agency argues that there is a compelling need for its
regulations which establish a grievance procedure.
The Union asserts that the Agency has not shown a compelling
need for the VA regulations establishing a grievance procedure.
Additionally, the Union states that Proposal 1 excludes
disciplinary actions subject to 38 U.S.C. 4110, that the Agency
has a duty to negotiate a grievance procedure under section
7121(a)(1) and (b)(3)(C), and that the objective of the Agency's
grievance procedure is the resolution of issues concerning
working conditions, not patient care.
B. Analysis and Conclusions
Proposal 1 would establish a negotiated grievance procedure
ending in binding arbitration.
In order to show a compelling need for an agency regulation,
an agency must: (1) identify a specific agency-wide regulation;
(2) show that there is a conflict between its regulation and the
proposal; and (3) demonstrate that its regulation is supported by
a compelling need with reference to the standards in section
2424.11 of our Regulations. Furthermore, generalized reasoning
merely stating conclusions is not enough to support a finding of
compelling need. See American Federation of Government Employees,
AFL - CIO Local 3804 and Federal Deposit Insurance Corporation,
Madison Region, 21 FLRA 870, 880 (1986) (FDIC, Madison
Region).
The Agency argues that grievances by DM&S professionals must
be addressed under the Agency's grievance procedure set forth in
the VA Manual, MP-5, Part II, Chapter 8, section B and DM&S
Supplement, Appendix A. However, the Agency does not demonstrate
that there is a conflict, and one is not apparent, between these
regulations and Proposal 1. Furthermore, while the Agency asserts
that arbitrators lack the expertise to decide grievances which
have an impact on patient care, the Agency has offered no
evidence to support its assertion. We conclude that the Agency
has not established that a conflict exists between the Agency's
grievance procedure and the proposed negotiated grievance
procedure. Since the Agency has not met the second requirement
necessary to establish a compelling need for an agency
regulation, we reject this Agency argument.
We find that Proposal 1, which would establish a negotiated
grievance procedure ending in binding arbitration, is within the
Agency's duty to bargain. As we discussed in Part II of this
decision, entitled "Preliminary Matters," the VA is obligated
under the Statute to negotiate concerning the conditions of
employment of DM&S employees. Furthermore, in VA Medical Center,
Ft. Lyons, 25 FLRA 803, 811-12 (Proposal 1), we specifically
held that grievance and arbitration procedures for DM&S employees
are within the duty to bargain under the Statute to the extent
that the procedures cover matters which are not barred by Title
38. See also Veterans Administration Medical Center, Minneapolis,
Minn. v. FLRA, 705 F.2d 953, 958 (8th Cir. 1983).
In this case, the proposed grievance procedure would not
apply to "disciplinary actions for Title 38 employees." See
Section 2(f) of Proposal 1. Therefore, the requirement in Title
38 that professional standards boards (PSBs) determine charges of
inaptitude, inefficiency, or misconduct for certain professional
employees would not be affected by the proposed grievance
procedure. Thus, we conclude that Proposal 1 is negotiable. VA
Medical Center, Ft. Lyons, 25 FLRA 803, 811-12 (proposal
establishing a negotiated grievance procedure which excludes
matters covered by 38 U.S.C. 4110 held negotiable).
Finally, we note that the designation of particular Agency
officials to act at various steps of the grievance procedure is
not a violation of management's right to assign work under
section 7106(a)(2)(B) of the Statute. We have held that the
requirement in section 7121 that the parties negotiate the
structure of their grievance procedure carves out an exception to
management's right to assign work. National Federation of Federal
Employees, Local 29 and Department of Defense, HQ U.S. Military
Entrance Processing Command, 29 FLRA 726, 728 (l987) (Provision
1).
In summary, we reject the Agency's arguments and find that
the negotiated grievance procedure is within the Agency's duty to
bargain.
IV. Proposal 2
Article 12 - Promotions and Assignments (for Title 38
Employees)
The text of this proposal is found in the Appendix.
This proposal pertains to promotions, advancements, awards
and leave for certification speciality tests in the medical
field.
A. Positions of the Parties
The Agency asserts that Proposal 2 interferes with
management's right to assign work under section 7106(a)(2)(B):
Specifically, the Agency claims that this proposal requires that
management assign certain responsibilities to PSBs. The Agency
also argues that Proposal 2 establishes criteria for special
advancements in violation of its right to assign work.
Furthermore, the Agency asserts that the procedures set forth in
Proposal 2 constitute methods and means of performing work under
section 7106(b)(1) and are nonnegotiable.
The Union responds that the procedures outlined for PSBs in
Proposal 2 are negotiable procedures under section 7106(b)(2) and
are not methods and means of performing the Agency's work. In
addition, the Union argues that its proposal merely references
existing provisions in Agency regulations concerning PSBs. The
Union also asserts that criteria for promotions and special
advancements are set out in the VA's regulations. According to
the Union, those portions of Proposal 2 which are in Agency
regulations are within the Agency's duty to bargain. Although the
Agency makes no specific arguments concerning Section 5, the
Union asserts that it is not inconsistent with law or
Government-wide regulation for the Agency to grant administrative
leave for examinations and that Section 5 should be found to be
negotiable.
B. Analysis and Conclusion
1. Assignment of Work to PSBs and Supervisors Interferes
with Management's Right to Assign work
The first sentence in Section 1 and the second sentence in
Section 4 would require PSBs to consider Title 38 employees for
promotions and special advancements, respectively. The Agency
contends that these requirements are nonnegotiable. We agree. We
have held previously that an agency has the right to determine
which management group will be assigned particular duties and
tasks. See New York State Nurses Association and Veterans
Administration, Bronx Medical Center, 30 FLRA 706, 718 and 726
(1987) (Proposals 6 and 9) (VA, Bronx Medical Center). See also
Patent Office Professional Association and Patent and Trademark
Office, Department of Commerce, 29 FLRA 1389, 1414-16 (1987)
(Proposal 14), petition for review filed sub nom. Patent Office
Professional Association v. FLRA, No. 87-1824 (D.C. Cir. Dec.
24, 1987); American Federation of State, County and
Municipal Employees, AFL - CIO, Local 2910 and Library of
Congress, 11 FLRA 632, 632-33 (1983) (Proposals 1 and 2).
Contrary to the Union's argument, the fact that the Agency's
regulations currently provide that PSBs will consider Title 38
employees for promotions and special advancements does not render
Proposal 2 negotiable. If the negotiated agreement were to
contain a provision designating PSBs as the management groups
responsible for considering Title 38 employees for promotion and
special advancement, the Agency's right to reassign this task
would be eliminated for the life of the collective bargaining
agreement. Clearly, such a provision would interfere with
management's rights to assign work under section 7106(a)(2)(B).
See American Federation of Government Employees, AFL - CIO, Local
1858 and U.S. Army Ordnance Missile and Munitions Center and
School (USAOMMCS), Redstone Arsenal, Alabama, 26 FLRA 102,
104-05 (1987) (Provision 2) (Redstone Arsenal, Alabama)
(inclusion of existing rating levels and definitions in contract
held nonnegotiable as interference with management's right to
change levels and criteria).
In Section 2, the third sentence would require immediate
supervisors to recommend employees for special advancements. The
fourth sentence in that section states that immediate supervisors
will forward petitions to the appropriate PSB. We have held
consistently that the right to determine who will perform
specific tasks is part of management's right to assign work under
section 7106(a)(2)(B) of the Statute. See, for example, National
Union of Hospital and Health Care Employees, AFL - CIO, District
1199 and Veterans Administration Medical Center, Dayton, Ohio, 28
FLRA 435, 443-45 (1987) (Proposal 6, Section 4) (VA Medical
Center, Dayton), petition for review filed sub nom. Veterans
Administration Medical Center, Dayton, Ohio v. FLRA, No. 87-1521
(D.C. Cir. Sept 28, 1987) (requiring chief of nursing to serve on
labor-management committee); Illinois Nurses' Association and
Veterans Administration Medical Center, Hines, Illinois, 28 FLRA
212, 214-18, 219-20 (1987) (Proposals 1, 2 and 7) (VA Medical
Center, Hines), petition for review filed sub nom. Veterans
Administration Medical Center, Hines, Illinois v. FLRA, No.
87-1514 (D.C. Cir. Sept. 28, 1987) (Proposal 1 requiring
immediate supervisor to conduct orientation, Proposal 2 requiring
chief nurse to discuss negative Nurse PSB recommendation with
affected nurse, Proposal 7 requiring immediate supervisor to take
certain actions with regard to nurses' reassignments); and
National Federation of Federal Employees, Local 1798 and Veterans
Administration Medical Center, Martinsburg, West Virginia, 27
FLRA 239, 246-50 (1987) (Proposal 3, Sections 1(E) and
(F)) (VA Medical Center, Martinsburg), petition for review filed
sub nom. Veterans Administration Medical Center, Martinsburg,
West Virginia v. FLRA, No. 87-1342 (D.C. Cir. July 24, 1987)
(requiring immediate supervisor to discuss a promotion action
with employee and provide employee with written justification for
using negative performance standard). Thus, we conclude that in
Section 2 sentences three and four are outside the Agency's duty
to bargain to the extent that they would require management to
assign duties to supervisors.
In Section 1 the first sentence, in Section 2 the third and
fourth sentences, and in Section 4 the second sentence would
assign duties and tasks to supervisors and the PSBs. To the
extent that these sentences assign work, they are inconsistent
with the right to assign work under section 7106(a)(2)(B) of the
Statute and are nonnegotiable. We note, however, that the defects
in these sentences could be cured by removing the references to
supervisors and PSBs. See 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 69, 81 (1987) (U.S. Army Missile
Command), petition for review filed sub nom. 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 v. FLRA, No. 87-7445 (11th
Cir. July 17, 1987).
2. The Remainder of Sections 1, 2, Constitute Negotiable
Procedures
We find that the following portions of Proposal 2 constitute
negotiable procedures: Section 1, sentences 2, 3 and 4; Section
2, sentences 1 and 2; Section 3; and Section 4, the first
sentence. These portions do not interfere with management's right
to act under section 7106(a), rather, they set forth procedures
by which management will act or not act. In Section 1, the second
sentence provides that employees will be considered for promotion
when they meet the requirements that the Agency establishes. The
third sentence in Section 1 states that management will consider
a waiver of experience and/or degree requirements where
appropriate. The fourth sentence in Section 1 states that
consideration for promotion shall be based on merit principles.
In Section 2 the first sentence states that management will
consider employees for advancement and the second sentence
provides that management may advance an employee from one to five
steps. The first sentence in Section 4 provides procedures
for processing an employee's petition. Section 3 states that
employees may be considered for a special advancement for
performance.
The Agency argues that Section 2 is nonnegotiable because it
establishes criteria which an employee must attain in order to
receive special advancement. However, the first sentence in
Section 2 merely states that employees will be considered for
special advancement. Management is not required to grant special
advancements to an employee who has achieved professional
recognition by the means described, nor is the Agency prevented
from considering any other employees for advancements within the
grade. If management decides to advance an employee, management
also determines the number of steps an employee will be advanced
according to the second sentence in Section 2. Similarly, Section
1, sentences 2 and 3, and Section 3 simply state that management
will consider employees for promotions and special advancements.
The fourth sentence in Section I merely recognizes the
applicability of merit principles in promotions. VA Bronx Medical
Center, 30 FLRA 706, 726-27 (Proposal 9) (proposal requiring
agency to consider employees for promotion held negotiable).
The Agency also argues that the procedures used by the PSBs
constitute methods and means of performing work under section
7106(b)(1) and are nonnegotiable. The Agency asserts that peer
review, which is performed by the PSBs, is an integral part of
the VA's exclusive chapter 73 personnel system. The Union
responds that the VA has not established the required nexus
between its patient care mission and the procedures set forth in
Proposal 2. We agree.
The Agency established PSBs to perform peer review functions
required by statute. See 38 U.S.C. 4106(b). However, the Agency
has not established how this proposal is inconsistent with the
peer review process or with the PSBs' method of operation.
Section 1, sentences 2, 3, and 4; Section 2, sentences 1 and 2;
Section 3; and the first sentence in Section 4 establish
procedures which employees will use in applying for promotions
and special advancements. They do not affect the Agency's right
to determine what the PSBs will consider or mandate the criteria
they will use, nor do they assign or not assign particular
responsibilities and tasks to PSBs. Thus, we reject the Agency's
argument that the PSBs' procedures constitute the Agency's
methods and means of performing work. American Federation of
Government Employees, Local 644, AFL - CIO and U.S. Department of
Labor, Mine Health and Safe Administration, Morgantown, West
Virginia, 15 FLRA 902, 903 (1984) (Proposal 1) (Mine
Health and Safety Administration, Morgantown); American
Federation of State, County and Municipal Employees, AFL - CIO,
Local 2477, et al. and Library of Congress, Washington, D.C., 7
FLRA 578, 583 (1982), aff'd sub nom. Library of Congress v.
FLRA, 699 F.2d 1280 (D.C. Cir. 1983).
We also note that Section 4, the first sentence, would
require that an employee receive notification when a petition for
special advancement is forwarded to the appropriate PSBs and a
copy of an immediate supervisor's recommendation concerning an
advancement request. We have held previously that proposals
requiring that employees receive notice of management action are
within the duty to bargain. Thus, we find the requirement that an
employee be notified when a special advancement petition is
forwarded to be negotiable. See VA, Bronx Medical Center, 30
FLRA 706, 718 (Proposal 6) (proposal requiring that notice of
appointment be sent to new employees held negotiable). See also
VA Medical Center, Dayton, 28 FLRA 435, 447 (Proposal 7)
(proposal requiring that nurses be notified of board actions on
promotions held negotiable).
3. Section 5 Interferes with Management's Right to Assign
Work and is Nonnegotiable
Section 5, the first sentence, provides that absences to
undergo examination by an approved speciality or certification
board will be authorized. The second sentence adds that the
amount of time authorized will include travel to and from the
place of examination.
The Union states that Section 5 authorizes administrative
leave for employees who undergo tests by speciality or
certification boards in the medical field. Reply Brief at 11-12.
The Union does not argue that Section 5 allows management
discretion to approve or disapprove an absence to undergo
examination. Rather, the language of the proposal states that
management must approve an absence for an employee who is "to
undergo examination" by an approved speciality or certification
board. Thus, the proposal mandates that the Agency grant leave.
Although the Agency may choose to provide this leave, it may not
be required to do so. We find, therefore, that Section 5
interferes with management's right to assign work in violation of
section 7106(a)(2)(B) of the Statute and is nonnegotiable. See VA
Medical Center, Hines, 28 FLRA 212, 238-40 (Proposal 8, section
3) (proposal preventing agency from changing employee's approved
annual leave held nonnegotiable).
In conclusion, we find that Section 5 in Proposal 2 is
nonnegotiable. The remainder of Proposal 2 is negotiable except
for Section 1, the first sentence; Section 2, the third and
fourth sentences; and Section 4, the second sentence.
V. Proposal 3
Article 14(a) - Leave as it Applies to Title 38
Annual Leave
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The Agency argues that the proposal is outside the duty to
bargain for the reasons discussed and disposed of in Part II of
this decision. The only specific argument the Agency makes
concerning Proposal 3 is that Section 1 of the proposal is
inconsistent with the right to assign work under section
7106(a)(2)(B) of the Statute. The Agency claims that the proposal
would prevent the Agency from changing leave once it is approved
except in cases of emergency. According to the Agency, this
restriction would have the effect of preventing management from
changing schedules in order to meet its patient care needs and,
more specifically, from determining the particular employee to
whom work would be assigned.
The Union states that Title 38 employees are covered under
the provisions of Chapter 63 of Title 5. Next, the Union argues
that this proposal constitutes a procedure for securing and
recording absences from work. As to the Agency's argument
concerning Section 1, the Union argues that this section would
not prevent the Agency from determining what work should be
performed or when it should be performed. Moreover, according to
the Union, Section I does not define what is meant by the term
"emergency." Further, the Union asserts that the emergency
criterion for rescinding annual leave approved by management is
an appropriate arrangement for employees adversely affected by
the exercise of management's right to assign work.
B. Analysis and Conclusions
Initially, we note that Title 5 sets forth that "a
physician, dentist, or nurse in the Department of Medicine and
Surgery, Veterans' Administration" is excluded from coverage
under the provisions of chapter 63, Annual and Sick Leave. See 5
U.S.C. 6301(2)(v). Accordingly, the Union's statement as to this
portion of Title 5 is incorrect.
1. Section 1
This section describes the use and scheduling of annual
leave. As noted above, the Agency claims that this section
violates the right to assign work by preventing the Agency from
changing leave once it is approved except in cases of emergency.
The Agency further claims that this restriction would prevent
management from taking into account patient care needs. We
disagree. The second sentence of the section provides
specifically that approval of leave is to be based on workload
and staffing needs. Therefore, determinations concerning leave
usage are made in the context of the Agency's patient care needs.
Section 1 is thus distinguishable from Proposal 6, Section 4 in
Illinois Nurses Association and Veterans Administration Medical
Center, North Chicago, Illinois, 27 FLRA 714, 730-33 (1987)
(Proposal 6, Section 4) (VA Medical Center, North Chicago),
petition for review filed sub nom. Veterans Administration
Medical Center, North Chicago, Illinois v. FLRA, No. 87-1405
(D.C. Cir. Aug. 17, 1987). In that case, we found nonnegotiable a
proposal which would have prohibited the agency from cancelling
approved annual leave except in cases of extreme emergency.
Unlike Section 1, which allows the Agency to take into account
workload and staffing needs, the proposal in VA Medical Center,
North Chicago did not permit the agency to consider its patient
care needs.
The provision for cancelling approved leave only in cases of
emergency, as stated in sentence 6 of Section 1, must be read in
conjunction with sentence 2 of the section. In other words, in
determining whether an emergency situation exists warranting the
disapproval of previously approved leave, Section 1 recognizes
that the Agency's workload and staffing needs will be taken into
account. The Union acknowledges that the section does not define
the tern emergency. The Agency is left with discretion to define
when an emergency exists and, therefore, the Agency may consider
its workload and staffing needs in deciding whether to disapprove
leave.
Accordingly, we find that Section I is within the duty to
bargain.
2. Sections 2, 3, 4, 5, 7, 8 and 9
These sections of Proposal 3 provide for the following:
Section 2 establishes the minimum charge for annual leave for
various types of employees; Section 3 sets forth the procedure
for requesting annual leave; Section 4 provides for the
advancement of annual leave; Section 5 addresses use of
annual leave when such leave coincides with travel while in a
duty status; Section 7 addresses accrual and use of annual leave
by career residents; Section 8 outlines the minimum charge and
method of charge of annual leave for full-time physicians,
dentists, podiatrists and optometrists; and Section 9 concerns
the disposition of leave on transfer, separation or retirement.
These sections concern a condition of employment, annual
leave. As noted, other than its general arguments discussed and
rejected in Part II of this decision, the Agency has made no
specific arguments with respect to any of these sections of
Proposal 3. Furthermore, the Agency has not established, and it
is not otherwise apparent that any section is contrary to law or
a Government-wide regulation, especially since this proposal
reflects provisions of the Agency's regulations.
In conclusion, we find that Proposal 3 is within the duty to
bargain.
VI. Proposal 4
Article 14 (a) - Leave as
Sick Leave
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The Agency makes specific arguments with regard to two
sections of this proposal concerning sick leave. The Agency
argues that both Sections 7 and 11 are inconsistent with
management's right to assign work since they would require the
assignment of specific duties to particular positions. Section 7
requires that the Chief Medical Director and facility directors
or their designees grant advanced sick leave. Section 11 requires
the appointing official to ascertain the date on which new
appointees are entering on duty. Furthermore, the Agency claims
that no duty to bargain exists since these sections involve the
assignment of work to nonbargaining unit employees.
The Union claims that the proposal does not interfere with
management's rights, is consistent with law, and constitutes a
negotiable procedure. In addition, the Union argues that Sections
8 and 10 of the proposal are appropriate arrangements for
adversely affected employees within the meaning of the Statute.
B. Analysis and Conclusions
1. Section 1
This section sets forth the circumstances for which sick
leave shall be granted. The Union states that this section is
consistent with Government-wide regulations which implement 5
U.S.C. 6301 et seq.
As we noted in connection with Proposal 3, physicians,
dentists and nurses in the Department of Medicine and Surgery are
specifically excluded by 5 U.S.C. 6301(2)(v), from the provisions
of 5 U.S.C. 6301 et seq. Therefore, the Union's reliance on this
portion of Title 5 is misplaced.
We find that Section 1 is outside the duty to bargain. This
section states that sick leave shall be granted in a variety of
circumstances. The granting or denial of specific leave requests
are matters left to management's discretion. The discretion to
grant or deny leave is a component of management's right to
assign work under section 7106(a)(2)(B) of the Statute. See, for
example, FDIC, Madison Region, 21 FLRA 870, 873-74 (Proposal 2).
Here, Section I would require management to grant sick leave
under the listed circumstances. By removing the discretion
inherent in management's right to assign work, the section is
violative of that right.
2. Section 3
This section establishes the reporting procedures and
requirements for incapacitated employees. Sentences I and 2
provide that an incapacitated employee will report the illness to
the supervisor, or designee, as soon as possible. Sentence 3
provides that if the employee expects to be absent more than one
day, the employee will advise the supervisor of the approximate
date of return, if possible. Where the employee so advises the
supervisor, sentence 4 states that daily reports will not be
necessary. Sentence 5 provides that an employee routinely will
not be required to reveal the nature of the illness as a
condition for approval. Sentence 6 states that failure to furnish
the nature of the illness will not, by itself, serve as a basis
for disapproval of the leave.
We find that sentences 5 and 6 of Section 3 are
nonnegotiable. It is well established that management's rights to
direct employees and to assign work under section 7106(a)(2)(A)
and (B) include the right to require employees to account for
their failure to meet standards of performance,
standards of conduct or for other derelictions which may result
in discipline. Tidewater Virginia Federal Employees Metal Trades
Council and Navy Public Works Center, Norfolk, Virginia, 15 FLRA
343, 344-45 (1984) (Provision 1); Navy Public Works Center, Pearl
Harbor, Honolulu, Hawaii v. FLRA, 678 F.2d 97 (9th Cir. 1982).
Proposals which permit employees the option to not answer
questions concerning their performance or conduct immunize
employees from discipline for refusing to account for their work
or conduct and, thus, directly interfere with management's rights
to direct employees and to assign work and also directly
interfere with management's right to discipline employees under
section 7106(a)(2)(A). Id.
Here, the employees would not have to account routinely the
basis of a sick leave request as a condition for having such sick
leave approved or disapproved. Sentences 5 and 6 would permit
employees to avoid being questioned about sick leave usage. As
such, these sentences violate management's rights to direct
employees, assign work and discipline employees under section
7106(a) of the Statute. See also American Federation of
Government Employees, AFL - CIO, Local 2052 and Department of
Justice, Bureau of Prisons, Federal Correctional Institution,
Petersburg, Virginia, 30 FLRA No. 94, slip op. at 4-6 (1987)
(Proposal 1) (proposal expressly precluding supervisor from
asking or ordering employees to provide reasons for sick leave
usage was found to be outside the duty to bargain).
We note, moreover, that sick leave is designed to be used
for certain purposes relating to employee illness, medical
appointments, or other medical situations. By allowing employees
not to be held accountable for the reasons for which sick leave
is being used, management would have no way of ascertaining
whether sick leave is being used appropriately--that is, in
connection with illness or medical matters. The need to ensure
that sick leave is being used properly is different from the use
of annual leave which was raised in Proposal 3. Specifically, in
Proposal 3, Section 1, which concerned the use and scheduling of
sick leave, sentence 5 provides that employees need not state the
reasons for leave requests when making routine requests for
annual leave (see Appendix for text of Proposal 3). Finding
Section 1 of Proposal 3 to be negotiable is not inconsistent with
our finding here because Section I of Proposal 3 also stated that
annual leave is to be earned in accordance with appropriate
statutes and regulations. By referencing the applicability of
statues and regulations, if any monitoring of annual leave was to
be deemed appropriate, the Agency would retain its discretionary
authority under section 7106(a) of the Statute.
Based on the foregoing, we find that sentences 5 and 6 of
Section 3 are outside the duty to bargain. Sentences 1 through 4,
however, are within the duty to bargain. These sentences merely
establish reporting procedures and requirements and, therefore,
constitute negotiable procedures within the meaning of section
7106(b)(2) of the Statute.
3. Sections 2, 4, 5, 6, 7, 9 and 10
Section 2 describes the circumstances under which a written
application (SF 71) or medical certification will or will not be
required to support the use of sick leave. The section also
establishes a procedure by which employees who are suspected of
sick leave abuse will be required to establish proof of sick
leave and will be counseled about the requirement. Section 4
describes the circumstances when sickness which occurs during a
period of annual leave will be charged to sick leave and not to
annual leave. Section 5 describes the circumstances under which
sickness occurring during a period of leave without pay (LWOP)
will be charged to sick leave. Section 6 describes charges to
sick leave for full-time physicians, dentists, podiatrists and
optometrists. Section 7 outlines the use of advanced sick leave.
Section 9 concerns the type of leave which will be authorized for
employees on prolonged absence, who are not expected to return to
work, and the type of leave to be granted to employees on
prolonged absence who are expected to return to work. Section 10
authorizes the use of sick leave for employees who are VA
claimants or beneficiaries and are ordered by the Agency to
undergo a medical examination.
These sections do not require any action on the part of
management. Further, the Agency only made general arguments that
the proposed matters are inconsistent with its internal
regulations which have the force and effect of law. We rejected
this argument in Part II of this decision. We note that much of
the language of these sections, including Sections 7 and 9A, are
taken virtually word-for-word from the Agency's regulation. The
Agency did not argue that a compelling need exists for these
regulations so as to bar negotiation of this proposal. In
addition, with the exception of Section 7F, which was withdrawn
by the Union, the Agency has not argued that the proposed matters
are inconsistent with the exercise of management's rights and no
such interference is otherwise apparent. In fact, we note that
Section 7 of the proposal does not require that leave be granted.
Rather it is within the Agency's discretion and subject to the
Agency's internal regulations.
Accordingly, we conclude that these sections are negotiable
procedures and are within the duty to bargain.
4. Section 8
This section describes the circumstances for use of
involuntary sick leave. Employees who are unable to perform their
duties may be placed on involuntary sick leave. Section 8 further
provides for the termination of involuntary sick leave when the
employee presents himself or herself for duty and competent
medical authority determines that the employee is able to perform
his or her duties. For the following reason, we find that Section
8 interferes with the right to assign work under section
7106(a)(2)(B) of the Statute.
In American Federation of Government Employees AFL - CIO,
Local 1625 and Department of the Navy, Naval Air Station, Oceana,
Virginia, 30 FLRA No. 122, slip op. at 15 (1988) (Provision 6)
(Naval Air Station, Oceana), we reexamined the relationship
between management's right to assign work under section
7106(a)(2)(B) and employees' health and safety. We stated that we
will examine proposals requiring an agency to assign--or not to
assign--particular duties for health and safety reasons to
determine whether they (1) require the agency to observe
restrictions which have been imposed by the agency's medical
authorities, or (2) impose restrictions independent of and/or
inconsistent with those of the agency's medical authorities. We
concluded that proposals which require the agency to assign work
consistent with restrictions imposed by its own medical
authorities would be found to be negotiable procedures under
section 7106(b)(2). On the other hand, proposals which impose
restrictions which are independent of and/or inconsistent with
those of the agency's own medical authorities would be found to
violate the agency's right to assign work under section
7106(a)(2)(B).
There is nothing in the language of Section 8 or in the
record which indicates that the term "competent medical
authority," was intended to be limited to the Agency's own
medical authorities. Thus, consistent with Naval Air Station,
Oceana, we find that Section 8 violates the right to assign work
by removing the Agency from the decision-making process as to
whether an employee is capable of returning to work and
performing his or her assigned duties.
We also find that Section 8 does not constitute an
appropriate arrangement within the meaning of section 7106(b)(3)
of the Statute. The Union claims that this section was designed
to minimize the adverse effect of an employee being placed on
involuntary sick leave--the adverse effect being the use by the
employee of sick leave and the possible depletion of
that employee's available sick leave. In our view, Section 8
directly interferes with management's right to determine whether
employees are capable of returning to work and performing their
duties by permitting decisions as to employee capability to be
made by non-Agency officials. Therefore, the section constitutes
an excessive interference with the exercise of a management right
and does not constitute an appropriate arrangement.
Based on the foregoing analysis, we conclude that Section 8
is outside the duty to bargain.
5. Section 11
This section concerns crediting and recrediting of sick
leave for employees who: (A) change employment within the
Department of Medicine and Surgery; (B) are reemployed by the
Agency after a break in service of not more than 3 years; or (C)
are reemployed by the Agency during a period covered by lump-sum
payments. Except for the second and fifth sentences of subsection
C, we find Section 11 to be within the duty to bargain.
The various portions of Section 11 are consistent with the
Agency's internal regulations. Again, since no compelling need
was asserted or established for such regulations so as to bar
negotiations and, with the one exception addressed below, the
section is not inconsistent with the exercise of any management
rights, Section 11 is within the duty to bargain.
Sentence 2 of subsection C prescribes that the appointment
officer will have the responsibility for ascertaining whether new
appointees are entering on duty prior to the expiration of leave
represented by a lump-sum payment. The Agency argues that the
assignment of a particular duty to the appointment officer is
outside the duty to bargain because it violates management's
right to assign work and because it involves the assignment of
work to nonbargaining unit employees. The Union argues that the
appointing officer does not refer to a specific individual but,
rather, that it is a generic term which allows the Agency to
appoint whomever it chooses.
We find that sentence 2 of subsection C is outside the duty
to bargain. As we stated in connection with Proposal 2, the right
to determine who will perform specific tasks is part of
management's right to assign work under section 7106(a)(2)(B). By
specifying that the appointment officer will perform a
specific task, the sentence violates management's right to assign
work.
Likewise, we find that sentence 5 of subsection C is outside
the duty to bargain since it assigns the task of making
arrangements for deductions to the Fiscal Officer. While the
Union claims, in the case of the appointing officer, that this
sentence is negotiable because no specific individual is named,
we find that it is the assignment of duties to particular
positions, not to particular individuals, that renders the
sentence, as well as sentence 5, nonnegotiable.
Finally, we note that if the second and fifth sentences of
subsection C were redrafted to preserve the Agency's right to
assign work, they would be within the duty to bargain. See U.S.
Army Missile Command, 27 FLRA 69, 81.
In conclusion, we find that Section 11 is within the duty to
bargain, except for the second and fifth sentences of subsection
C, which are not within the duty to bargain.
VII. Proposal 5
Article 14 (a) - Leave as it Applies to Title 38
Administrative Leave or Excused Absence
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The only arguments made by the Agency with regard to
Proposal 5 are the general arguments previously discussed and
rejected in Part II of this decision.
The Union claims that the proposal concerns negotiable
procedures which either preserve management's right to grant or
deny administrative leave or which would authorize leave after
management has already determined that employees are to be absent
from their duties.
B. Analysis and Conclusions
1. Section I
This section states that consistent with Agency policy,
management officials may grant absences from duty without charge
to leave. Section 1 lists examples of activities for which
excused absences may be authorized.
We find this section to be within the duty to bargain. As
the Union notes, this section preserves management's right to
decide whether or not to grant excused absences. Moreover, the
proposal clearly states that the granting of excused absences
will be consistent with Agency policy. See VA Medical Center,
Dayton, 28 FLRA 435, 448 (Proposals 8 and 9--proposals which
incorporate the accrual of various types of leave as established
in the agency's regulations are within the duty to bargain). But
see Fort Bragg Association of Educators, NEA and Department of
the Army, Fort Bragg Schools, 30 FLRA 508 (1987) (Fort Bragg
Schools), petition for review filed sub nom. Fort Bragg
Association of Educators, NEA v. FLRA, No. 87-1823 (D.C. Cir.
Dec. 24, 1987) (Chairman Calhoun concurring in part and
dissenting in part on other grounds) (Proposal 23 which required
administrative leave to be granted under various circumstances
did not preserve management's discretion to determine whether
anemployee's absence would conflict with the accomplishment of
work and therefore violated the right to assign work under
section 7106(a)(2)(B)).
2. Section 2
This section provides that the Chief Medical Director and
facility directors or their designees are authorized to approve
absences for employees who have been required to serve long hours
in the care and treatment of patients.
This section is within the duty to bargain because it
preserves management's right to determine whether or not to
approve absences. Moreover, to the extent that the section does
not specify a particular management official who is authorized to
approve absences but, rather, permits the named officials or
their designees to do so, Section 2 does not conflict with the
right to assign work. See Fort Stewart (Georgia) Association of
Educators and Fort Stewart Schools, 28 FLRA 547, 556 (1987)
(Proposal 3) (Fort Stewart Schools), petition for review filed
sub nom. Fort Stewart Schools v. FLRA, No. 87-8734 (llth Cir.
Sept. 22, 1987).
3. Section 3
Section 3 authorizes absences for employees who undergo
various types of professional examinations. We find this section
to be nonnegotiable for the same reason as Proposal 2, Section 5
(which would have required that administrative leave be granted
for employees to undergo examinations by an approved speciality
or certification board without regard to patient care needs). By
mandating that leave be granted to employees without regard to
the necessity for the services of such employees in
meeting patient care needs, Section 3 interferes with
management's right to assign work under section 7106(a)(2)(B).
4. Sections 4, 5, 6, 8 and 9
Section 4 authorizes absences for employees who are required
to undergo various types of medical examinations. Section 5
authorizes absences for medical treatment. Section 6 authorizes
absences for administratively required vaccinations and
immunizations. Section 8 authorizes absences for employees who
are required to appear before Federal Boards, VA Boards and
Committees. Section 9 authorizes absences for employees in
emergency suspension situations.
We find these sections to be within the duty to bargain.
They are consistent with the Agency's regulations and do not
require particular management officials to act. Moreover, various
portions of these sections indicate that leave will be authorized
only after management already has approved an employee's absence
from work. For example, Section 4 provides for no charge to leave
for employees who are designated by proper VA authority to
undergo or report for examinations and Section 6 provides no
charge to leave for employees who undergo "administratively
required vaccinations or immunizations." see our discussion of
Proposal 23, subsections d and h in Fort Bragg Schools, 30 FLRA
508, 527-31.
5. Section 7
Section 7 authorizes excused absences for examinations for
employees who are injured in the performance of their duties. The
Agency makes no specific claim that this section interferes with
its right to assign work. This section merely concerns the type
of leave that will be authorized--after the employee's absence
from work has been authorized--when an employee receives an
examination for work-related injuries. Accordingly, we find
Section 7 to be negotiable.
VIII. Proposal 6
Articles 14(a) - Leave as it applies to Title 38
Holidays
The text of the proposal is found in the Appendix.
A. Positions of the Parties
No specific arguments were made by the Agency to the various
sections of the proposal. The Agency's general arguments
concerning this proposal have been rejected in Part II of this
decision.
The Union claims that Proposal 6 constitutes a negotiable
procedure and does not violate any management rights. The Union
further argues that Sections 1 and 8 are consistent with law and
Government-wide regulations.
B. Analysis and Conclusions
We find that this proposal is within the duty to bargain.
Section I states that holidays for VA employees will be those
established by statute or Executive Order. Section 2 provides
that management acknowledges that more liberal leave approval may
be appropriate on days preceding and following holidays. Section
3 states that there will be no restrictions on unit employees in
applying for scheduled vacations which include both Christmas and
New Year's Day. Section 7 provides that an employee who works on
a holiday will be paid under controlling regulations and/or law.
Sections 8 states the Agency's policy concerning leave for the
observance of religious holidays and describes the circumstances
under which an employee may work compensatory tine rather than
use annual leave or LWOP in order to be absent on religious
holidays. Section 9 provides for authorized absences on state and
local holidays when "it is determined that Federal work" may not
be properly performed as provided in the Agency's regulations.
In reaching our conclusion that these sections are within
the duty to bargain, we find that Section 1 is consistent with
the Agency's regulation which, by its own terms, identifies
holidays as those designated by Federal statute or Executive
Order. Section 2 is negotiable because it does not require the
Agency to approve leave before and after holidays but merely
states that leave approval may be appropriate. Section 3 simply
allows employees to apply for scheduled leave which includes both
Christmas and New Year's Day. Management would be free to deny
the leave request. Therefore, Section 3 preserves management's
right to take into account its patient care needs when granting
leave for those particular holidays.
Section 4 provides initially for a grouping of holidays
where 24-hour, 7 day-a-week staff is necessary. The section
further provides that the scheduling of holidays off within
22 each group will be equitably distributed in accordance with
the provisions of Section 6 and as staffing and workload
requirements permit. Section 6 sets forth a method for resolving
conflicts in holiday scheduling. These sections are negotiable
because they allow for the scheduling of holidays off in
accordance with staffing and workload requirements.
Section 5 establishes a procedure by which employees may
request holidays off in connection with annual leave. It does not
require management to grant such leave.
Sections 7, 8 and 9 are negotiable because they each require
conformance with controlling laws and/or regulations. Thus,
section 7 provides that employees who work on holidays will be
paid under controlling regulations and/or laws. Section 8
contains a general statement as to the Agency's policy of
permitting employees, when practicable, to be absent from work in
order to observe religious holidays. It allows employees to work
compensatory overtime specifically in accordance with law and
applicable regulations. Section 9 provides that when a decision
is made to close a facility on a state or local holiday because
no Federal work can be properly performed, as determined under
Agency regulations, employee absences will not be chargeable to
leave. Since these sections allow management to act in a manner
that is consistent with law and regulations, the sections are
within the duty to bargain.
IX. Proposal 7
Article 14 (a) - Leave as it Applies to Title 38
Leave Without PAY
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The sole objections the Agency raises as to this proposal
are those rejected in Part II.
The Union states that the proposal concerns employee
requests for LWOP. The Union further contends that the proposal,
with the exception of part of Section 2 and Section 6, provides
for Agency approval or disapproval of the LWOP requests and,
consequently does not prevent management from acting at all. The
Union indicates that Section 2 covers disabled veterans who are
entitled to leave under Executive Order 5396 and reservists and
National Guardsmen who are entitled to LWOP, if
necessary, to perform military training, which is consistent with
38 U.S.C. SS 2024(d). The Union also contends that Section 6
provides for incremental charges of LWOP which was found
negotiable in American Federation of Government Employees, AFL -
CIO, Local 2875 and Department of Commerce, National Oceanic and
Atmospheric Administration, National Marine Fisheries Service,
Southeast Fisheries Center, Miami Laboratory, Florida, 5 FLRA
441, 446 (1981) (Proposal 4).
B. Analysis and Conclusions
Sections 1, 2, 4 and 7 concern the conditions for the
granting of LWOP. Section 2 states that the authorization of LWOP
is a matter of "administrative discretion" and thus an employee
cannot "demand LWOP except in the case of disabled veterans who
are entitled to LWOP if necessary for medical treatment under
Executive Order 5396; and reservists and National Guardsmen who
are entitled to LWOP if necessary to perform military training
duties." Section 4 states that employees who are disabled on the
job and file a claim with the Office of Workers' Compensation
Programs or who make application for disability retirement may be
granted LWOP without priorapproval of the Central Office for the
entire period of absence from duty.
With the exception of the special cases noted in Sections 2
and 4, the proposal does not require the Agency to grant LWOP
without consideration of its need to require an employee to
remain on duty to perform necessary work. In fact, Section 7
specifically addresses the Agency's patient care needs. Rather,
the proposal gives the Agency discretion as to whether or not to
grant LWOP. The two exceptions noted in Section 2 require that
disabled veterans must be granted LWOP consistent with Executive
Order 5396 and that reservists and National Guardsmen are
entitled to LWOP to perform military training duties which,
according to the Union, is consistent with 38 U.S.C. SS 2024(d).
In these situations, the Agency's discretion to grant LWOP is
limited by applicable law.
The exception in Section 4 grants LWOP to employees who have
made application for workmens' compensation or disability
retirement without prior Central Office approval. Section 4 does
not require that such leave be approved.
Since we find that section 2 is consistent with applicable
laws and that Sections 1, 4 and 7 do not interfere with
management's rights, we conclude that Sections 1, 2, 4 and 7 are
negotiable. See Veterans Administration Staff Nurses
Council, Local 5032, WFNHP, AFT, AFL - CIO and Veterans
Administration Medical Center, Wood, Wisconsin, 29 FLRA 849, 866
(1987) (Proposal 11) (VA Medical Center, Wood), petition for
review filed sub nom. Veterans Administration Medical Center,
Wood, Wisconsin v. FLRA, No. 87-1740 (D.C. Cir. Dec. 2, 1987)
and Fort Bragg Schools, 30 FLRA 508, 525-31 (Proposal 27).
Compare VA Medical Center, North Chicago, 27 FLRA 714, 730-32
(Proposal 6, Section 8 requiring the agency to grant LWOP pay to
union officials for up to 1 year regardless of work needs found
nonnegotiable because it did not leave any discretion with the
agency to deny such requests).
Section 3 states that LWOP for 30 days or less may be
approved by the Facility Directors or their designees and LWOP
for more than 30 days must be approved by the Chief Medical
Director or his designee. Section 3 does not designate a
particular Agency official to grant or refuse to grant LWOP but,
rather, permits the Agency to designate who will act. Therefore,
the proposal does not interfere with management's right to assign
work. See our discussion of Proposal 5, Section 2.
Section 5 describes the procedure that an employee must
follow to substitute LWOP for annual and sick leave or vice versa
after LWOP has been authorized in circumstances where the
employee is disabled on the job and files a claim for worker's
compensation or disability retirement. This section only concerns
the procedures used in substituting leave after management has
already approved an employee's absence from work. See Proposal 11
in VA Medical Center, Wood, 29 FLRA 849, 866. Accordingly, we
find Section 5 to be negotiable.
Section 6 sets forth the minimum amount of time that
employees may be charged for LWOP. It is consistent with the
Agency's regulations. The Agency made no specific claims
concerning this section and it is not otherwise apparent that
this section is inconsistent with any management rights under
section 7106 of the Statute. Accordingly, we find Section 6 to be
negotiable.
Section 8 requires the Chief of Service to inform employees
who have been on LWOP for more than 30 days what their rights
are on returning to work. We find this section to be outside the
duty to bargain for two reasons. First, to the extent the section
requires the Chief of Service to take certain action, the section
is inconsistent with management's right to assign work under
section 7106(a)(2)(B). See our discussion concerning Proposal 2.
Second, the section requires the Agency to make every effort to
return an employee coming back from a period of LWOP to the
facility which granted the LWOP. The only exception to
this would be when the employee requests reassignment to another
facility, there is a suitable vacancy, and both facilities agree
to the reassignment. This portion of Section 8 violates
management's right to assign work by requiring management to make
every effort to return an employee to the facility which granted
the LWOP, except under limited circumstances. Management would
thus be unable to reassign an employee returning from LWOP to
whatever facility management decides to place the employee.
Moreover, to the extent that management would have to make every
effort to return the employee, the section would impermissibly
impose a substantive condition on management's right to assign
work. See VA Medical Center, Ft. Lyons, 25 FLRA 803, 820.
X. Proposal 8
Article 14(a) - Leave as it Applies to Title 38
Tardiness and Brief Absences
Section 1. Brief absences from duty of less than one hour
and tardiness may be excused when the reasons are justifiable to
the supervisor. If not excused, the supervisor must determine a
proper action concerning the lost time. This would include
arranging for the time to be made up, an appropriate charge to
leave or AWOL, and possible disciplinary action as the
circumstances warrant.
Section 2. Tardiness or Absence for Part of the Day. A
full-time physician, dentist, podiatrist, or optometrist will be
charged a full day's leave for absence for a part of a day,
unless the absence is excused by officials authorized to approve
leave. This authority to approve absence for tardiness and
absence for portions of a day will be exercised only when such
absence from duty is of short duration and will not be
interpreted to cover absences of a major portion of the day
wherein annual or sick leave should be properly charged.
A. Positions of the Parties
The Agency made only general arguments that were rejected in
Part II of this decision. The Union claims that the decision as
to whether to excuse tardiness and brief absences would be
retained by the Agency by Section 1 and the section is,
therefore, negotiable. In support of its position, the Union
cites to the Authority's decision in National Labor Relations
Board, Region 5 and National Labor Relations Board Union, Local
5, 2 FLRA 328 (1979) (NLRB, Region 5). As to the negotiability
of Section 2, the Union indicates that it provides for
incremental charges to leave.
B. Analysis and Conclusions
For the reasons discussed below, we find that Section 1 is
outside the duty to bargain. Section 2, however, is within the
duty to bargain.
Section 1 provides that tardiness and brief absences from
duty may be excused when the reasons for such absences are
acceptable to the supervisor. The section further provides that
the supervisor take certain actions when brief absences or
tardiness are not excused. Since Section 1 designates the
supervisor as the management official who must perform these
tasks, the section violates management's right to assign work
under section 7106(a)(2)(B). See U.S. Army Missile Command, 27
FLRA 69, 81.
If this defect were cured, we would find Section I to be
within the duty to bargain. Similar proposals authorizing excused
absences for occasional periods have been found to be within the
duty to bargain. See, for example, NLRB, Region 5 (proposal
authorizing excused absence of up to 30 minutes per pay period
per employee for occasional and unavoidable tardiness in
reporting to work) and Overseas Education Association, Inc. and
Department of Defense Dependents Schools, 29 FLRA 734, 750
(1987), petition for review filed sub nom. Overseas Education
Association, Inc. v. FLRA, No. 87-1576 (D.C. Cir. Oct. 14, 1987)
(Proposal 10 - use of excused absences for brief, occasional
periods when various activities could not be accomplished outside
the duty day). But see Fort Bragg Schools, 30 FLRA 508, 546
(Proposal 42 -permitting employees to have up to 30 paid minutes
per day to engage in nonwork personal activities violates
management's right to assign work by requiring management to
assign specific duties to be accomplished during the last 30
minutes per day in order to prevent the employees from leaving
early).
Section 2 does not designate which management official is
authorized to approve leave. Rather, it simply states that
officials authorized to approve leave may grant excused absences
when they are of short duration. The Agency is free to determine
who those authorized officials will be. The Agency also retains
the discretion to grant or deny the excused absence in
the first instance. Accordingly, we find Section 2 to be within
the duty to bargain.
XI. Proposal 9
Article 14 (a) - Leave as it Applies to Title 38
Unauthorized Absence
Section 1. Unauthorized absence is any absence from duty
which has not been approved. An employee who is absent without
approval for any cause will explain to the person authorized to
approve leave, at the earliest practicable time, the cause of
this absence and the failure to ask for permission to be absent.
If it is found that the employee was absent without sufficient
cause, or that the failure to obtain permission to be absent is
not satisfactorily accounted for, the time lost will be counted
as unauthorized absence and pay will be forfeited in the
applicable amount.
Section 2. Charging Unauthorized Absence. The minimum charge
for unauthorized absence for full-time (nonphysician facility
Directors) physicians, dentists, residents, podiatrists, and
optometrists is 1 calendar day. The minimum charge for authorized
absence for full-time nurses, (nurse anesthetists) PAs and EFDAs
and part-time employees is 15 minutes and multiples thereof.
A. Positions of the Parties
The Agency made no specific arguments with respect to this
proposal. The Union argues that the proposal concerns a
negotiable procedure.
B. Analysis and Conclusions
We agree with the Union that the proposal is a negotiable
procedure concerning unauthorized absences. Section 1 merely
defines an unauthorized absence, the manner in which an employee
will report such absence and the consequences which flow from
such absence. Section 2 describes the incremental charges of
unauthorized absence for various types of employees. No argument
has been made that this proposal is inconsistent with any law,
rule or regulation and none is apparent to us.
Therefore, it is within the duty to bargain.
XII. Proposals 10 and 11
Article 14 (a) - Leave as it Applies to Title 38
Proposal 10
Military Leave - Employees will be granted military leave in
accordance with 5 USC 6323. Employees will be provided advice on
leave benefits by the Personnel Office upon request.
Proposal 11
Court Leave - Court Leave will be administered in accordance
with appropriate statutes and regulations.
On presentation, by a Veteran employee who has a service
connected disability or any other disability, of a Statement from
a medical authority that treatment is required, annual leave or
sick leave will be granted, if available; otherwise,
leave-without-pay will be granted. The granting of such leave is
mandatory provided that the Veteran gives prior notice of
definite days and hours of absence for medical treatment.
A. Positions of the Parties
The Agency made no specific arguments with respect to these
proposals. The Union argues that they do not interfere with the
exercise of any management rights and that they are consistent
with applicable laws and regulations.
B. Analysis and Conclusions
Except for the second paragraph of the proposal on court
leave, we find Proposals 10 and 11 to be within the duty to
bargain. The proposals by their terms are consistent with law and
regulation and are therefore within the duty to bargain.
The second paragraph of Proposal 11 refers to the granting
of leave to enable veterans with disabilities to obtain medical
treatment and not court leave. Neither party specifically
addresses the applicability of this paragraph to court
leave, the heading under which the paragraph appears. Thus, in
the absence of any arguments concerning (1) the applicability of
this paragraph to court leave or (2) the manner in which this
paragraph is intended to be implemented, we find that the record
does not establish a sufficient basis on which to make a
negotiability determination. Therefore, we dismiss the appeal as
to this paragraph.
XIII. Proposal 12
Article 14(a) - Leave as it Applies to Title 38
Approval/Disapproval of Leave Requests Employees will be
informed whether requested leave is approved or disapproved. Upon
request, employees will be furnished the reasons for disapproval
in writing.
The use of properly requested and approved leave shall not
be a negative factor in an employee's performance rating.
A. Positions of the Parties
The Agency argues that Proposal 12 violates management's
right to assign work by prescribing rating elements or factors to
be considered in an employee's rating.
The Union contends that Proposal 12 constitutes an
appropriate arrangement for employees adversely affected by the
exercise of management's right to assign work. More particularly,
the Union claims that the proposal would not prevent the Agency
from approving or disapproving leave or from using leave as a
factor in a performance rating. Rather, the proposal is simply
designed to prevent management from retaliating against an
employee, who has properly requested and been granted leave, by
rating that employee unsatisfactory because of the employee's use
of leave.
B. Analysis and Conclusions
The Agency raises no objection to the first paragraph of the
proposal and we find no basis for holding it to be nonnegotiable.
The paragraph imposes no burden on the Agency's right to assign
work. Rather, it merely obligates the Agency to inform affected
employees of its decision to grant or deny a leave request and,
upon an employee's request, to furnish in writing the reasons for
its decision. Hence, contrary to the Agency's view, the first
paragraph in no way interferes with the right to
assign work under section 7106(a)(2)(B) of the Statute, but,
rather, is a negotiable procedure under section 7106(b)(2).
The second paragraph provides that employees' performance
ratings will not be affected adversely by the use of officially
approved leave. As we stated in connection with Proposal 4,
Section 1, the granting or denial of specific leave requests are
matters left to management's discretion. The discretion to grant
or deny leave is a component of management's right to assign work
under section 7106(a)(2)(B) of the Statute. See, for example,
FDIC, Madison Region, 21 FLRA 870, 873-4, (Proposal 2). Here,
however, the paragraph's scope is limited to the ramifications
for an employee of management's decision to grant requested
leave. If management needs to have work performed during a period
for which an employee has requested leave, management may deny
the request or revoke a previously granted request. Therefore,
the second paragraph does not involve the right to assign work
because the Agency retains the unfettered discretion to grant or
deny leave applications.
The Agency claims that the second paragraph infringes on its
managerial authority to establish "rating elements or factors" to
be applied in evaluating employee performance. We find that the
Agency has not demonstrated that this paragraph interferes with
its right to establish rating elements or factors.
Performance standards are intended to establish the minimum
level of job performance required of an employee in carrying out
his or her assigned responsibilities. Critical elements are those
components of a job which are sufficiently important that failure
to attain the prescribed level of performance requires remedial
action. National Treasury Employees Union and Department of the
Treasury, Bureau of the Public Debt, 3 FLRA 769, 774 (1980),
(Bureau of the Public Debt), aff'd sub nom. National Treasury
Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). The
second paragraph does not prescribe the level of performance
necessary to perform assigned work adequately nor does it require
that any specified factors or elements be used in rating
performance. Rather, the paragraph applies only after management
has exercised its right to grant leave on request.
Accordingly, we find the proposal's second paragraph, and
the proposal as a whole, to be consistent with management's right
to assign work under section 7106(a) (2)(B). The proposal,
therefore, is within the duty to bargain.
XIV. Proposal 13
Article 14(a) - Leave as it Applies to Title 38
Use or Lose Leave
Management agrees to assist employees in scheduling leave in
an effort to avoid forfeiture of annual leave. Such assistance
will include a written notice to employees on or before June 1,
of each year. Such notice will advise employees of the importance
of requesting an adequate amount of leave to avoid the loss of
leave.
A. Positions of the Parties
The Agency makes no specific arguments with respect to this
proposal. The Union claims that the proposal is merely a
procedural requirement to notify employees of the importance of
requesting leave in order to avoid the loss of leave.
B. Analysis and Conclusion
We agree with the Union that this proposal constitutes a
negotiable procedure. The proposal simply requires the Agency to
notify employees of the potential for forfeiting annual leave and
to assist them in scheduling their use of annual leave so that
they will not forfeit such leave. The proposal does not require
any particular management official to act, nor does it require
the approval of annual leave. Since no basis for finding the
proposal nonnegotiable has been argued or established and since
none is otherwise apparent to us, we find Proposal 13 to be
within the duty to bargain.
XV. Proposal 14
Article 14(a) - Leave as it Applies to Title 38
Maternity/Paternity Leave
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The Agency's sole claims concerning this proposal have been
rejected in Part II of this decision.
The Union contends that this proposal provides the basis for
employees' receiving leave for maternity or paternity reasons.
According to the union, this proposal does not require the Agency
to approve leave for these reasons and the Agency is not
prevented from denying the leave requests.
B. Analysis and Conclusions
Section 1 of Proposal 14 merely provides that sick, annual
or LWOP may be granted as appropriate for maternity or paternity
reasons. Nothing in this section requires the Agency to grant
such leave. Rather, the Agency retains discretion to grant such
leave, or to rescind a prior authorization for such leave. Thus,
since the Agency has raised no objection to this section and no
violation of management's rights is otherwise apparent, we find
Section 1 to be negotiable.
Section 2 sets out general policy regarding the employment
of pregnant employees. The Agency has made no claim that this
section is in any manner inconsistent with law, rule or
regulation and since no inconsistency is otherwise apparent, we
find this section to be within the duty to bargain.
Section 3 imposes no obligation on management. Rather, it
concerns the manner in which a pregnant employee will inform the
Agency of her pregnancy and physical condition. Under Section 3,
the Agency is free to determine the employee's medical fitness
for continued duty. Finally, Section 3 recognizes that the
determination of continued fitness for duty varies from
individual to individual. We find that since the Agency has made
no claim that this section is inconsistent with any law, rule or
regulation and since no inconsistency is otherwise apparent, the
section is within the duty to bargain.
Section 4 provides that employees will be granted
accumulated and accrued sick leave consistent with medical need
due to pregnancy, when it has been established that the employee
is unable to perform her duties. Under this section the Agency
would not be required to grant sick leave in circumstances where
the employee was fit for duty. The section limits the
requirements to grant sick leave only where it has been
established that the employee is unable to perform work due to
pregnancy. Finally, the last sentence only indicates that
advanced sick and annual leave and LWOP may be authorized. There
is nothing in this sentence which requires the Agency to grant an
employee advanced leave or LWOP. Since the Agency has
made no claim that this section violates law, rule or regulation
and no violation is apparent, we find the section to be within
the duty to bargain.
Section 5 merely provides that employees be notified of
their right to use accumulated sick leave. Again, the Agency made
no specific claim that this section violates any law, rule or
regulation, and since no violation is apparent, we find this
section also to be within the duty to bargain.
Accordingly, Proposal 14 is within the duty to bargain.
XVI. Proposal 15
Article 14(a) - Leave as it Applies to Title 38
Teaching
Section 1.
Full-time employees may accept teaching responsibilities in
private and public colleges and universities, provided the
teaching obligations do not conflict with the performance of
their duties in DM&S. Absences resulting from such teaching
assignments if no remuneration is involved may be excused without
charge to leave.
A. Positions of the Parties
The Agency makes no specific arguments concerning leave for
the purpose of accepting teaching responsibilities, except for
its general arguments that the VA has the sole authority to
determine working conditions for DM&S employees and that its
regulations have the force and effect of law, which we rejected
in Part II of this decision.
The Union asserts that this proposal would allow full-time
employees to accept teaching responsibilities outside the VA if
there is no conflict with their duties for the VA. The Union
claims that the VA may authorize excused absences instead of
charging the employee with leave. Such excused absences could be
administrative leave, which is within the Agency's discretion to
grant. According to the Union, this proposal would not prevent
the Agency from exercising its rights. The Union relies upon
National Federation of Federal Employees, Local 1429 and U.S.
Department of the Army, Letterkenny Army Depot, 23 FLRA 117
(1986) in support of its contention.
B. Analysis and Conclusions
This proposal is negotiable. Based on the wording of the
proposal and the Union's explanation, the first sentence of the
proposal gives management the discretion to determine whether an
employee can accept a teaching assignment which would require the
employee to be released from work. The second sentence of the
proposal provides that an employee who has accepted such a
teaching assignment may have an absence incurred in connection
with that assignment excused without charge to leave if such
excused absence does not involve remuneration. The question of
whether an employee is entitled to excused absence arises only
after management has made a prior determination that the
employee's teaching assignment is consistent with its work
requirements. Thus, this proposal is negotiable. See VA Medical
Center, Wood, 29 FLRA 849, 866 (1987) (Proposal 11) (where we
found negotiable a proposal which provided employees with the
option of substituting sick leave or annual leave for time (off
work) which would otherwise be charged to LWOP, because the
employee's option arose after management had already made the
decision that the employee might be released from work).
XVII. Proposal 16
Article 14(a) - Leave as it Applies to Title 38
Vacations
Section 1. All employees are encouraged to plan vacations
each year. Management will make every effort to accommodate the
employee's desires, consistent with workload and staffing needs.
The procedures for scheduling requests for annual vacation leave
of five days or more will be left to local supplementary
bargaining.
Section 2. In areas where 24 hour, 7 day per week staffing
is necessary, Management agrees to make a reasonable effort to
honor an employee's request for two scheduled days off before and
after a vacation period.
Section 3. Any management directed movement of an employee
from one work location to another which results in a change in
leave group will not result in loss of an employee's use of
approved leave, where it is practical to make other arrangements.
A. Positions of the Parties
The only arguments advanced by the Agency concerning this
proposal were those discussed and rejected in Part II.
The Union contends that Proposal 16, allowing employees to
plan vacations with Agency approval, is procedural in nature and
does not prevent the Agency from acting.
B. Analysis and Conclusions
Section 1 of Proposal 16 encourages employees to plan
vacations each year and requires management to make every effort
to accommodate employees' decisions consistent with workload and
staff needs. This proposal is, therefore, distinguishable from
those involved in VA Medical Center, Dayton, 28 FLRA 435, 467
(Proposal 16), and VA Medical Center, Ft. Lyons, 25 FLRA 803,
818 (Proposal 4). In these cases we found that proposals that
included the phrase "management will make every effort" placed a
substantive condition on management's rights to assign work and
assign employees and thus were nonnegotiable. However, Section 1
requires management to make every effort to accommodate the
employee's desires consistent with workload and staffing needs.
Accordingly, management's rights to assign work and employees are
not infringed by Section 1. We, therefore, find Section 1 to be
negotiable.
Section 2 requires management to make "a reasonable effort"
to honor an employee's request to extend his or her vacation
period by adding two scheduled days off both before and after the
vacation leave. The section is applicable to employees working in
areas where 24 hour, 7 day per week staffing is necessary. We
find that Section 2 constitutes a negotiable procedure under
section 7106(b)(2) of the Statute to be followed by management in
granting or denying employees' requests that scheduled days off
occur at specific times. The section obligates management to
exert a reasonable effort to grant such requests in the context
of its around-the-clock operations. The section does not
interfere with management's scheduling of work, nor does it
require the granting of an employee's request if workload or
staffing needs dictate otherwise. Accordingly, Section 2 is
within the duty to bargain. See Tidewater Virginia Federal
Employees Metal Trades Council, AFL - CIO and Norfolk Naval
Shipyard, 31 FLRA No. 18 (1988) (Provisions 5 and 6).
Section 3 provides that when an employee has leave approved
and subsequently changes work locations and leave group, at the
direction of management, the leave will not be lost
when it is practical to make other arrangements. We find this
section to be negotiable because it does not require that the
leave be granted. Rather, the use of leave is dependent on
whether other arrangements practically can be made. The Agency
would, thus, be able to determine whether its workload and
staffing needs can be met by such other arrangements. Therefore,
we find Section 3 to be within the duty to bargain.
XVIII. Proposal 17
Article 14(a) - Leave as it Applies to Title 38
Disposition of Leave on Retirement
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The sole claims raised by the Agency concerning this
proposal have been rejected in Part II of the decision.
The Union argues that this proposal does not violate any
management rights and that the proposal is consistent with
Government-wide regulations.
B. Analysis and Conclusions
Except for the last sentence in the third paragraph of
Section 2B, Proposal 17 is within the duty to bargain. Subsection
1A of this proposal merely states that an employee's application
for disability retirement is not to be interpreted as the
employee's intention not to return to duty.
Subsection 1B only indicates that sick leave may be granted
to an employee pending a decision by the Office of Personnel
Management (OPM) on a claim for disability retirement.
Neither of these subsections, which are restatements of the
Agency's regulations, requires management to act in any manner
inconsistent with its section 7106 rights. Since the Agency has
made no claim that these subsections are otherwise inconsistent
with any law, rule or regulation and no inconsistency is
otherwise apparent, these subsections are within the duty to
bargain.
Section 2 of Proposal 17, also a restatement of the Agency's
regulations, describes the disposition of advanced and accrued
leave in various circumstances, including optional and
disability retirement, restoration after military service,
separation for advocating the overthrow of the Government, and
death. The Agency makes no claim that this section is
inconsistent with any law, rule or regulation, including the
Statute, and no inconsistency is otherwise apparent.
However, we note that the third paragraph of Section 2B,
headed "Indebtedness for Advanced Leave on Separation From the
Service," in its last sentence, prescribes a specific function to
be carried out by the "Fiscal Service." We previously have held,
in this decision and in other cases, that management retains the
right to determine which organizational element or group will be
assigned specified tasks and duties. See our discussion at Part
II of this decision. Therefore, the last sentence of that
paragraph, although its defect can readily be cured, is outside
the duty to bargain as currently written. With the exception of
the cited sentence, Section 2 is within the duty to bargain.
XIX. Proposal 18
Article 17 - Proficiency Ratings (For Title 38 Employees
The text of this proposal is found in the Appendix.
A. Positions of the Parties
In addition to the general arguments rejected in Part II of
this decision, the Agency argues that Section 2 is nonnegotiable
because it requires a particular management official to perform
work.
The Union argues that the proposal is negotiable as a
procedure for keeping employees informed of management's
expectations and management's assessments of employee
performance.
B. Analysis and Conclusions
Section 1 of the proposal sets forth the purposes of the
proficiency-rating system, which include informing employees of
management's expectations and assessments and providing
information to be considered in the granting of promotions.
Section 3 would provide that proficiency ratings be rendered
annually, unless delayed in accordance with the Agency's
regulations. Section 4 would require that new employees
be provided with the performance elements on which they are to be
rated, and would stipulate that all employees should be informed
if their performance elements change. Section 5 requires
supervisors to counsel employees regularly on their performance.
Section 6 provides for a 90-day notice and counseling period
before the annual rating for employees performing
unsatisfactorily.
We conclude that, except as noted below, the proposal
establishes a negotiable procedure, under section 7106(b)(2),
which management will follow before making a final appraisal of
an employee's performance. Section 1, which is a statement of
purpose of proficiency ratings, and Section 3, which provides for
annual ratings, essentially are the same as provisions of the
Agency's own regulations, and present no conflict with
management's section 7106(a) rights. Similar provisions have been
found to be negotiable as procedures under section 7106(b)(2).
See VA, Bronx Medical Center, 30 FLRA 706, 749 (Proposal 18).
The first sentence of Section 4, which would require that new
employees be told of the performance elements on which they are
to be rated, likewise presents no conflict with management
rights. We have found similar language to be within the duty to
bargain. See VA Medical Center, Dayton, 28 FLRA 435, 447
(Proposal 7). The second sentence of Section 4, which states that
all employees should be informed if their performance elements
change, also is negotiable, as the decision to change performance
elements would remain solely within the Agency's discretion. See
VA Medical Center, Martinsburg, 27 FLRA 239, 255 (Proposal 4).
Section 5 and the second sentence of Section 6 provide
explicitly that supervisors shall perform the counseling. We have
held consistently that proposals requiring an agency to assign
specific tasks to supervisors and management officials violate
management's section 7106(a)(2)(B) right to assign work. See our
discussion concerning Proposal 2. To the extent that Section 5
and the second sentence of Section 6 require supervisors to
counsel employees, they are outside the duty to bargain. However,
if the requirement that supervisors perform the counseling were
removed, we would find these sections to be within the duty to
bargain. Thus, as revised, they merely provide for the counseling
of employees before the final proficiency rating is rendered and,
therefore, are negotiable procedures. See American Federation of
Government Employees, AFL - CIO, National Council of VA Locals
and Veterans Administration, 29 FLRA 515, 538 (1987) (Proposal
8).
XX. Proposal 19
Article 20 - Disciplinary Action for Title 38 Employees
The text of this proposal appears in the Appendix.
A. Positions of the Parties
The Agency asserts that 38 U.S.C. 4110 establishes the
exclusive disciplinary and adverse action procedure for VA
employees. Thus, the Agency concludes that it is under no
obligation to bargain concerning such disciplinary and adverse
action appeals.
The Agency also made specific arguments concerning the
following sections of Proposal 19. The Agency claims that Section
I of the proposal directly conflicts with 38 U.S.C. 4110 by
limiting the types of disciplinary action which may be taken
against employees under law. The Agency argues that Sections 3,
4, 6, 7 and 8 add procedural requirements in disciplinary actions
which are not authorized in law or VA regulations. In addition,
the Agency argues that Section 7, by limiting the disciplinary
board membership to three members, is inconsistent with 38 U.S.C.
4110 which provides for three to five members. Further, the
Agency argues that by including probationary employees within its
coverage, Section 7 is also inconsistent with 38 U.S.C. 4101(1)
which provides coverage only for permanent employees. Finally,
the Agency argues that by mandating progressive discipline,
Section 7 is inconsistent with Agency regulations which provide
instead for like penalties for like offenses.
The Union asserts that Proposal 19 is consistent with the
requirements of 38 U.S.C. 4110. The Union notes that Proposal 1,
the proposed negotiated grievance procedure, specifically
excludes disciplinary actions for Title 38 employees from its
scope. The Union acknowledges that employees charged with
inaptitude, inefficiency, or misconduct must appeal through the
peer board review system established by 38 U.S.C. 4110. The Union
concludes that Proposal 19 does not present an alternative to 38
U.S.C. 4110, and that the implementing procedures in the proposal
are not inconsistent with the mandates of section 4110. The Union
also argues that the Agency has made no claim that a compelling
need exists for its regulations.
B. Analysis and Conclusions
This proposal establishes various procedural protections to
be afforded to employees who may be subject to discipline under
38 U.S.C. 4110. Among other things, 38 U.S.C. 4110 provides that
the "Chief Medical Director" shall appoint disciplinary boards
consisting of not less than three nor more than five employees,
senior in grade, "to determine upon notice and fair hearing,
charges of inaptitude, inefficiency, or misconduct.,
We find that the Agency has not established that 38 U.S.C.
4110 precludes the negotiation of procedures to be afforded to
employees in a "fair hearing." Nothing in 38 U.S.C. 4110 provides
that the VA Administrator has the sole right to determine the
procedures necessary to implement the requirements of 38 U.S.C.
4110. Thus, unless the particular procedure sought to be
negotiated conflicts with the requirements of 38 U.S.C. 4110 or
is otherwise inconsistent with law, rule or regulation, including
the Statute, the procedures are negotiable under section
7106(b)(2) of the Statute. See VA, Bronx Medical Center, 30 FLRA
706, 732 (Proposal 11) and the cases cited therein.
1. Section 1
Both sentences of Section I are nonnegotiable.
Regarding the first sentence of the proposal, 38 U.S.C.
4110(d) provides that disciplinary boards may recommend "suitable
disciplinary actions, within limitations prescribed by the
Administrator, which shall include reprimand, suspension without
pay, reduction in grade and discharge." Sentence 1 of the Union's
proposal, however, limits the Agency's right to take other
disciplinary actions which the Administrator deems to be
"suitable." For example, the Agency asserts, without
contravention, that the courts have upheld its right to use
transfers as a disciplinary action. See Moore v. Custis, 736 F.2d
1260 (8th Cir. 1984). Thus, by limiting the Agency's right to
impose disciplinary actions other than those listed, sentence 1
is inconsistent with 38 U.S.C. S 4110(d).
The second sentence of Section 1 provides that disciplinary
action will not be taken in cases of error of professional
judgment where negligence is not involved or in cases of
differences of professional opinion. We conclude that the second
sentence of Section I is outside the duty to bargain as it
violates management's right under section 7106(a)(2)(A) of the
Statute to take disciplinary action by placing
limitations on the scope of what constitutes employee activity
for which disciplinary action is suitable. See VA, Bronx Medical
Center at Proposal 11, part 2 and the cases cited therein.
2. Sections 3 and 4
Section 3 of the proposal includes requirements that an
employee who is alleged to have committed an offense is to be
questioned; that signed statements are to be obtained; that
additional evidence is to be developed to reconcile conflicting
statements; that there be documentation of all evidence;that all
action is to be initiated in a reasonable time after the
preliminary investigation; that supervisory notes would not be
admissible in a disciplinary proceeding unless they had been
shown to the charged employee in a timely manner; and that the
Union be given the opportunity to have a representative present
at any examination in an investigation that may result in a
disciplinary action. The first sentence of Section 3 provides
that a preliminary investigation ordinarily will be initiated by
the appropriate line supervisor. We find that this term leaves
management with the right to determine specifically which
management official will actually conduct such a preliminary
investigation.
Section 4 of the proposal specifies the content of letters
of admonishment and reprimand; provides that the employee will
have the right to be represented by a Union representative at any
discussion with the supervisor who conducted the preliminary
investigation provided for in Section 3 when the employee is
given a letter of admonishment or reprimand, with the Union being
given a reasonable opportunity to provide such a representative;
and provides options as to which official shall act upon the
appeal of an admonishment or reprimand. We find that the use of
the term "supervisor" in Section 4 refers back to the management
officials mentioned in Section 3 to conduct a preliminary
investigation.
The Agency's contention concerning Sections 3 and 4 is that
they add additional procedural requirements not found in 38
U.S.C. 4110 or the Agency's implementing regulations. However,
the Agency does not contend that there is a compelling need for
the regulations as written, that these sections of the proposal
interfere with any management right within the meaning of section
7106 of the Statute, or that the additional requirements are
otherwise contrary to law, rule or regulation.
We conclude that Sections 3 and 4 merely establish
procedures which further implement the requirements of 38 U.S.C.
4110, and that they do not conflict with any portions of 38
U.S.C. 4110 or with the Agency's right to discipline employees
pursuant to section 7106(a)(2)(A) of the Statute. Therefore,
Sections 3 and 4 of the proposal are negotiable procedures within
the meaning of section 7106(b)(2) of the Statute and are within
the duty to bargain.
3. Section 5
Section 5 provides that suspensions, demotions, or
discharges will be acted upon by a Central Office Screening Board
and a Disciplinary Board. By requiring that the Central Office
Screening Committee will act upon suspensions, demotions, or
discharges, Section 5 is outside the duty to bargain as it
assigns specific responsibilities to an arm of management,
thereby preventing the Agency from assigning such
responsibilities elsewhere if it so chooses. Therefore, Section 5
of the proposal is outside the duty to bargain because it is
inconsistent with the Agency's right to assign work under section
7106(a)(2)(B) of the Statute. The fact that the Agency's
regulations currently provide that the Central Office Screening
Committee will evaluate charges by a station head requesting the
removal, demotion, or suspension of an employee does not render
Section 5 negotiable. If the negotiated agreement contained a
provision specifically designating the Central Office Screening
committee as the management group responsible for this function,
the Agency's right to reassign this task would be eliminated for
the life of the collective bargaining agreement. Such an
agreement would interfere with mangement's right to assign work
under section 7106(a)(2)(B). See Redstone Arsenal, Alabama, 26
FLRA 102, 104-05.
It should be noted, however, that insofar as Section 5
assigns those responsibilities to the Disciplinary Boards which
are consistent with their statutory duties pursuant to 38 U.S.C.
4110, the assignment of such work to the Disciplinary Boards
would not render Section 5 nonnegotiable by itself. We have found
Section 5 to be nonnegotiable because it assigns specific
responsibilities to the Central Office Screening Committee.
4. Section 6
Section 6 defines the role of the Screening Committees as
evaluating all the evidence produced during preliminary
investigations. The section further provides for the contents of
a "Letter of Charges" to be prepared and issued by the
Screening Committee when it decides to prefer charges, and
prescribes the manner in which letters of charges and notices of
hearing are to be delivered.
The Agency's contention concerning Section 6 is that it adds
additional procedural requirements not found in 38 U.S.C. 4110 or
the Agency's implementing regulations. However, the Agency does
not contend that there is a compelling need for the regulations
as written, that this section of the proposal interferes with any
management right within the meaning of section 7106 of the
Statute, or that the additional requirements are otherwise
contrary to law, rule or regulation.
We conclude that, in general, Section 6 merely establishes
procedures which further implement the requirements of 38 U.S.C.
4110, and that it does not conflict with any portions of 38
U.S.C. 4110 or with the Agency's right to discipline employees
pursuant to section 7106(a)(2)(A) of the Statute. Therefore,
except for the specific portions of Section 6 which we find below
to be nonnegotiable, Section 6 is a negotiable procedure within
the meaning of section 7106(b)(2) of the Statute which is within
the duty to bargain.
The first sentence of Section 6 requires that the Central
Office Screening Committee will be responsible for evaluating all
evidence generated under preliminary investigations. This
sentence is outside the duty to bargain as it assigns specific
responsibilities to an arm of management, thereby preventing the
Agency from assigning such responsibilities elsewhere if it so
chooses. Therefore, the first sentence of Section 6 is outside
the duty to bargain because it is inconsistent with the Agency's
right to assign work under section 7106(a)(2)(B) of the Statute.
The Agency's regulations currently provide that the Central
Office Screening Committee will evaluate for the Chief Medical
Director charges preferred by suspension of an employee. The fact
that the first sentence of Section 6 is consistent with the
Agency's regulations does not render the sentence negotiable. If
the negotiated agreement contained a provision designating the
Central Office Screening Committee as the management group
responsible for reviewing either the preliminary investigations
or the charges as provided for in the Agency's regulations, the
Agency's right to reassign this task would be eliminated for the
life of the collective bargaining agreement. Such an agreement
would interfere with management's right to assign work under
section 7106(a)(2)(B).
The second sentence of Section 6 requires that the Screening
Committee will prepare and issue a "Letter of Charges." Because
this sentence assigns specific responsibilities to an arm of
management it, like the first sentence of Section 6, prevents the
Agency from assigning such responsibilities elsewhere if it so
chooses. Thus, the second sentence of Section 6 is also
inconsistent with management's right to assign work under section
7106(a)(2)(B).
5. Section 7
Section 7 outlines the role of the disciplinary boards in
greater detail than is set forth in 38 U.S.C. 4110. It provides
that the boards shall consist of three employees senior in grade
to the charged employee and be chosen in a certain manner; that
the Union will be allowed to have a representative attend board
meetings; that all members of the board shall have equal voting
rights; what are the procedures to be utilized by the board,
including the right of the Agency, the Union, and the board
itself to question witnesses; and the right to a copy of the
record of the board's proceedings, including closed meetings. The
section provides for standards of evidence upon which the board
could base it findings and recommendations. The section provides
that the charged employee, the witnesses and the Union's
representative shall be on official time for the hearing. The
section outlines the actions which the board may take in acting
upon the charges. The section outlines the prerogatives available
to the Chief Medical Director in acting upon a recommendation for
suitable disciplinary action directed by a disciplinary board.
Finally, the section provides standards for determining suitable
disciplinary actions.
We conclude that Section 7, in general, is negotiable
because, like the other portions of Proposal 19 which we have
found to be negotiable, it merely establishes procedures which
implement the requirements of 38 U.S.C. 4110, and it does not
conflict with any portion of 38 U.S.C. 4110 or with the Agency's
right to discipline employees pursuant to section 7106(a)(2)(A)
of the Statute. Therefore, except for the specific portions of
Section 7 which we find below to be nonnegotiable, we conclude
that Section 7 is a negotiable procedure within the meaning of
section 7106(b)(2) of the Statute which is within the duty to
bargain. We turn now to the specific portions of Section 7 which
we find to be nonnegotiable.
a. Disciplinary Boards to Consist
Section 7, the first sentence of the first paragraph
requires that disciplinary boards consist of three members senior
in grade to that of the affected employee. 38 U.S.C. 4110(a),
however, states that the disciplinary boards shall "consist of
not less than three nor more than five employees." Therefore,
under 38 U.S.C. 4110(a) and under section 7106(a)(2)(B) of the
Statute, the Agency has the right to assign three, four, or five
employees to perform the work of the disciplinary boards. Nothing
in the record indicates that this section is intended to be
limited to requiring that at least three of the three to five
board members be senior in grade to the affected employee.
Rather, the sentence both sets a limit on the number of board
members and requires that the board members be senior in grade to
the affected employee. We find, therefore, that the first
sentence of the first paragraph in Section 7, by limiting the
size of the disciplinary boards to a maximum of three members, is
contrary to the statutory requirements set forth at 38 U.S.C.
4110(a), violates the Agency's right to assign work, and is
outside the duty to bargain.
b. Union Representation for Probationary Employees
The second paragraph of Section 7 of the proposal provides
that probationary employees may be represented by the Union when
appearing before a professional standards board to contest a
proposed separation.
We find that the second paragraph of Section 7 is
nonnegotiable because it interferes with management's right to
hire under section 7106(a)(2)(A) of the Statute. The disciplinary
boards with which Proposal 19 is concerned are constituted under
the authority of 38 U.S.C. 4110. However, the performance of
probationary employees is reviewed by the Professional Standards
Boards (PSBs) which are constituted under the authority of 38
U.S.C. 4106. The Union included a proposal providing for
representation rights for probationary employees appearing before
PSBs in Proposal 25. Therefore, for a fuller discussion of the
rights of probationary employees, see our discussion at Proposal
25, which deals entirely with the rights of such employees. As we
conclude there, agencies are entitled to make summary judgments
regarding the performance of probationary employees, as such
employees are still within the initial hiring period provided for
in law and regulation. Therefore, a proposal which provides
probationary employees with rights other than any which are
provided by law or regulation interferes with the Agency's right
to hire under section 7106(a)(2)(A) of the Statute and
is outside the duty to bargain. Thus, the second paragraph of
Section 7, which would give probationary employees the right to
be represented by counsel before the PSBs, is outside the duty to
bargain.
C. Role of Chief Medical Director as Review Official
The eighth paragraph, in the third and fourth sentences, and
the ninth paragraph, in the second sentence, of Section 7 provide
that when any charges against an employee are sustained, the
disciplinary board will recommend suitable disciplinary action to
the Chief Medical Director, who will then decide what further
action is to be taken. Under 38 U.S.C. 4110(d), the authority to
take final action concerning an action initiated under 38 U.S.C.
4110 is granted to the VA Administrator, who has the discretion
under 38 U.S.C. 4110(e) to delegate this authority to the Chief
Medical Director. By assigning specific responsibilities to the
Chief Medical Director in a manner inconsistent with 38 U.S.C.
4110, which gives the VA Administrator the right to retain
certain authority or to delegate it to the Chief Medical
Director, those sentences of the eighth and ninth paragraphs
which specifically assign certain responsibilities to the Chief
Medical Director are outside the duty to bargain. See our
discussion concerning Proposal 2.
d. Progressive Discipline and the Use of the Table of
Penalties
Paragraph 10 of Section 7 provides that the "concept of
progressive discipline" should be followed when appropriate in
imposing remedies for disciplinary conduct and that the Table of
Penalties in the Agency's regulations should be used as a guide
in determining proper levels of discipline to be administered.
We find this paragraph to be nonnegotiable. As we noted
above in discussing Section 1 of this Proposal, 38 U.S.C. 4110(d)
requires the VA Administrator to impose "Suitable" discipline as
the result of a 38 U.S.C. 4110 action. The second and third
sentences of paragraph 10, by placing limitations on the right of
the Administrator or a designee to impose discipline, interfere
with the Administrator's statutory right to determine what
discipline is suitable in any particular situation. Thus, these
sentences are outside the duty to bargain because they are
inconsistent with the VA Administrator's right pursuant to 38
U.S.C. 4110(d) to impose a "suitable" penalty as the result of a
disciplinary action initiated under that statutory section.
Moreover, this paragraph would place limitations on
management's right to discipline employees in a manner
inconsistent with its rights pursuant to section 7106(a)(2)(A) of
the Statute. Either the Agency would be limited in its right to
impose discipline by the requirement that the concept of
progressive discipline must be applied or the Agency would be
compelled to follow the Table of Penalties in its regulations
when management chose to impose discipline pursuant to certain
actions under 38 U.S.C. 4110. Therefore, we also find paragraph
10 of Section 7 to be nonnegotiable because, under either
situation provided for in the paragraph, limits would be placed
on management's right to determine appropriate discipline which
would be inconsistent with its rights pursuant to section
7106(a)(2)(A) of the Statute. See VA, Bronx Medical Center, 30
FLRA 706, 733 and the cases cited therein.
e. Job Relatedness
Paragraph 11 of Section 7 provides that for certain
disciplinary actions "the employer must demonstrate job
relatedness." While neither party made any specific references as
to the meaning of this paragraph, we interpret it to mean that
the Agency would be precluded from taking disciplinary action
against an employee unless it could demonstrate that the conduct
for which the employee was being disciplined was directly or
indirectly related to the employee's performance on the job.
In Defense Logistics Agency, Council of AFGE Locals, AFL -
CIO and Department of Defense, Defense Logistic Agency 24 FLRA
367, 367 (1986) (Proposal 1) (Defense Logistics Agency), we held
that a proposal providing that an employee's private life was
his/her own affair was outside the duty to bargain because it
would prohibit the Agency from complying with 5 C.F.R. Part 735,
a Government-wide rule or regulation, which requires agencies to
prescribe and enforce standards of conduct which apply to an
employee's private life. We further found that the proposal, by
attempting to establish by contract that a particular
relationship between off-duty conduct and the employee's job
performance must exist in order to sustain a disciplinary action,
placed substantive limitations on the Agency's right to take
disciplinary actions based on off-duty conduct "in accordance
with applicable laws."
Paragraph 11 of Section 7 similarly limits the Agency's
prerogative to impose discipline for an offense not included in
the Agency's Table of Penalties or covered by statute unless the
Agency can demonstrate that the offense is job related.
By so doing, this portion of the proposal interferes with the
Agency's right to take disciplinary actions under section
7106(a)(2)(A) based on off-duty conduct. Thus, paragraph 11 of
Section 7 prohibits the Agency from complying with the
Government-wide rule or regulation at 5 C.F.R. Part 735 and is
outside the duty to bargain.
Paragraph 12 provides that disciplinary actions can be based
on matters covered by statute but not described in the Table of
Penalties. If a disciplinary action is based on a statute, then
the paragraph provides that the actual text of the statute will
be consulted and provided to the Union. Consequently, as
Paragraph 12 is not inconsistent with any law, rule, or
regulation, including the Statute, it is negotiable.
f. Imposition of Penalty by Administrator
Paragraph 13 of Section 7 provides that where specific
disciplinary penalty is not statutorily mandated, the decision as
to whether or not to take any disciplinary action will be left to
the VA Administrator. As we noted in our discussion at subpart c.
of Section 7 above, 38 U.S.C. 4110(d) grants the VA Administrator
the final right to determine what action shall be taken as the
result of an action initiated under section 4110. However, as we
noted in our earlier discussion, 38 U.S.C. 4110(e) also gives the
VA Administrator the discretion to delegate this authority to the
Chief Medical Director. Thus, by assigning specific
responsibilities to the VA Administrator in a manner inconsistent
with 38 U.S.C. 4110, which gives the VA Administrator the right
to retain certain authority or to delegate it to the Chief
Medical Director, Paragraph 13 of Section 7 is outside the duty
to bargain insofar as it specifically assigns certain
responsibilities to the VA Administrator. See our discussion
concerning Proposal 2.
6. Section 8
Section 8 of the proposal provides appellate procedures for
the various levels of discipline.
a. Part A
Part A of Section 8 pertains to the appeal of admonishments
and reprimands. It provides that such appeals may be sought
before the station directors (or designees) or before a hearing
officer selected by the Medical Director. It also provides that
the official designated to hear the appeal will perform other
functions as the process progresses.
We find Section 8, Part A to be negotiable. This section
preserves management's right to designate the appropriate
management official to whom admonishments and reprimands may be
appealed. In addition, this part preserves the right of the Chief
Medical Director to select a hearing officer to hear such
appeals. Finally, if a hearing officer is selected, subparts
A(l), (2) and (3) merely set out procedures that will apply to
such appeals.
b. Part B
The first paragraph of Part B of Section 8 provides that
appeals concerning the suspension, demotion, or removal will be
directed in writing to the Medical Director through the station
director. Disciplinary Boards established under 38 U.S.C. 4110
make recommendations to the Administrator on suitable
disciplinary action, which shall include reprimand, suspension
without pay, reduction in grade, and discharge. Unless the
Administrator has delegated the authority to receive and act on
Disciplinary Board recommendations to the Chief Medical Director,
the Administrator's decision is final. 38 U.S.C. 4110(d). On the
other hand, if the Administrator has delegated the authority to
receive and act on Disciplinary Board recommendations to the
Chief Medical Director, any decision of the Chief Medical
Director may be appealed to the Administrator. 38 U.S.C. 4110(e).
As the first paragraph of Part B of Section 8 provides that the
appeal of a decision concerning suspension, demotion, or removal
may be directed to the Chief Medical Director, the proposal is
outside the duty to bargain as it is inconsistent with 38 U.S.C.
4110, which provides either that a decision rendered by the
Administrator in such matters is final or that a decision
rendered by the Chief Medical Director in such matters may only
be appealed to the Administrator.
We conclude that the second and third paragraphs of Section
8 are negotiable because they merely establish procedures which
implement the requirements of 38 U.S.C. 4110 and they do not
conflict with any portion of 38 U.S.C. 4110 or with the
Agency's right to discipline employees pursuant to section
7106(a)(2)(A) of the Statute. We conclude that the second and
third paragraphs of Section 8 are negotiable procedures within
the meaning of section 7106(b)(2) of the Statute and that they
are within the duty to bargain.
7. Summary
In summary, we find that Sections 3 and 4 of Proposal 19 are
within the duty to bargain. We find that Section 6 of Proposal 19
is within the duty to bargain except for its first two sentences
which assign specific responsibilities to the Central Office
Screening Committee. We find that Section 7 of Proposal 19 is
within the duty to bargain except for: the requirement in the
first sentence of the first paragraph that disciplinary boards
consist of only three members; the second paragraph which would
give representation rights to probationary employees; the
requirement in the eighth and ninth paragraphs that the Chief
Medical Director be assigned certain responsibilities; the tenth
paragraph which requires the use of "progressive discipline" and
the Agency's Table of Penalties; the eleventh paragraph which
requires that job relatedness must be demonstrated in imposing
certain types of discipline; and the thirteenth paragraph insofar
as it delegates specific responsibilities to the VA
Administrator. We find that Part A and the second and third
paragraphs of Part B of Section 8 are within the duty to bargain.
We find that Sections 1, 5 and the first paragraph of Part B of
Section 8 of Proposal 19 are outside the duty to bargain.
XXI. Proposal 20
Article 21 - Employees Assistance Program
Section 2. Policy
B. The Employer will respect an individual's right to
privacy. The Employer will not take disciplinary or adverse
action against an employee based upon an employee's use of
alcoholic beverages or other drugs unless there is a nexus
(relationship) between such use and job performance or conduct.
Section 3.
Responsibilities and Guidelines
The following program provisions will apply:
E. Sick leave, annual leave, or leave without pay will be
granted for treatment or counseling sessions consistent with
practices for other illnesses or circumstances.
A. Positions of the Parties
The Agency's sole contentions concerning this proposal were
rejected in Part II of this decision.
The Union states that the subsections appearing above are
the only parts of the proposal currently in dispute. Reply Brief
at 32.
B. Analysis and Conclusion
1. Section 2B
This section is nonnegotiable under section 7117(a)(1) of
the Statute because it conflicts with the requirements of
Executive Order 12564 and with Government-wide regulation.
Executive Order 12564, entitled "Drug - Free Federal Workplace",
was issued by the President on September 15, 1986. Among the
reasons for issuing the Executive Order were the following:
The use of illegal drugs, on or off duty, by Federal
employees is inconsistent not only with the law-abiding behavior
expected of all citizens, but also with the special trust placed
in such employees as servants of the public.
The use of illegal drugs on or off duty by Federal employees
impairs the efficiency of Federal departments and agencies,
undermines public confidence in them, and makes it more difficult
for other employees who do not use illegal drugs to perform their
jobs effectively. The use of illegal drugs, on or off duty, by
Federal employees also can pose a serious health and safety
threat to members of the public and to other Federal employees.
(3 C.F.R. 225 (1987)) Section 3 of the Executive Order
directs the heads of Executive agencies to establish mandatory
and voluntary drug testing programs for agency employees and
applicants. Section 5 of the Executive Order requires agencies to
"initiate action to discipline any employee who is found to use
illegal drugs" unless the employee takes specified voluntary
steps to eliminate his or her illegal drug usage. Section 5(E) of
the Executive Order further states:
(1) The determination of an agency that an employee uses
illegal drugs can be made on the basis of any appropriate
evidence, including direct observation, a criminal conviction,
administrative inquiry, or the results of an authorized testing
program. Positive drugs test results may be rebutted by other
evidence that an employee has not used illegal drugs.
Clearly, Executive Order 12564 seeks to eliminate use,
either on or off duty, of illegal drugs by Federal employees. In
furtherance of that objective, the Executive Order requires the
disciplining of employees found to be using such drugs.
We previously have held that Executive Order 12564 "has the
force and effect of law." National Federation of Federal
Employees, Local 15 and Department of the Army, U.S. Army
Armament, Munitions and Chemical Command, Rock Island, Illinois,
30 FLRA No. 115 (1988), slip op. at 25 (U.S. Army Armament,
Munitions and Chemical Command).
Section 2B, however, would bar disciplining an employee
based on use of drugs unless the usage could be shown to affect
adversely the employee's job performance or behavior at work.
That section of the proposal, therefore, conflicts with the
requirements of the Executive Order and is outside the duty to
bargain under section 7117(a)(1). See U.S. Army Armament,
Munitions and Chemical Command, slip op. at 21-26, (Proposals 4
through 7).
We also note that OPM has issued regulations,
Government-wide in scope, requiring agencies to issue their own
regulations prescribing employee standards of conduct. The OPM
regulations establish minimum standards for agency regulations.
Among other things, the agency regulations must ensure that its
employees do not "engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct, or other conduct
prejudicial to the Government." 5 C.F.R. 735.209. An employee's
failure to comply with those standards is subject to remedial
action, including the imposition of discipline. Because we view
the OPM standard as applying to any conduct of the type
described, and not just that which adversely affects job
performance, Section 2B of the proposal conflicts with the
regulations. Section 2B would shield an employee from discipline
in circumstances where a criminal conviction resulted from drug
or alcohol use, but where that usage had no direct adverse effect
on performance or behavior on the job. Such a result is
inconsistent with the OPM regulations and places Section 2B
outside the duty to bargain because of its interference with the
Agency's right to discipline under section 7106(a)(2)(A) of the
Statute. See Defense Logistics Agency, 24 FLRA 367.
2. Section 3E
This section is negotiable because it preserves management's
authority to grant or deny sick leave, annual leave or leave
without pay. The section's objective is to assure that employees'
requests for leave to undergo treatment or counseling are not
treated differently from other requests for the same types of
leave. That is, under this section, management's obligation is to
act on these requests in a nondiscriminatory manner. The section
does not require management to grant leave when such action is
inconsistent with its workload or staffing requirements. Hence,
there is no interference with the right to assign work.
For the reasons stated, Proposal 20, Section 2B is outside
the duty to bargain and Section 3E is negotiable.
XXII. Proposal 21
Article 24(a) - Tours of Duty
The text of this proposal is found in the Appendix.
A. Section 1
1. Positions of the Parties
The Agency claims that Section I would limit its right to
determine the work schedules of the health care professionals
covered by Proposal 21. According to the Agency, it must be able
to schedule employees with specialized skills to perform specific
tasks on particular shifts consistent with patient care
requirements. The Agency states that there is extensive
specialization in the health care profession and that management
must have the flexibility to schedule a particular professional
to work when patient care requires that professional's skill and
expertise. Additionally, the Agency argues that all sections in
Proposal 21 conflict with an Agency regulation for
which there is a compelling need.
The Union claims that Section I is consistent with 5 C.F.R.
610.111(a)(1) and, therefore, there is no violation of
management's right to assign work. The Union responds to the
Agency's compelling need argument by asserting that the Agency
has failed to explain how its regulation is essential to provide
quality patient care.
2. Analysis and Conclusions
Initially, we note that the Union's reliance on 5 C.F.R.
610.111(a)(1) is misplaced. That section, which concerns the
establishment of the basic workweek of Federal employees, applies
only to Federal employees covered by 5 C.F.R. Part 550, Subpart
A. 5 C.F.R. 550.101(b)(12) expressly excludes DM &S employees
from coverage under 5 C.F.R. Part 550, Subpart A.
a. Sentence 1
Section 1, the first sentence, provides that the
administrative workweek, or basic workweek, will be 40 hours
Sunday through Saturday for full-time employees. Title 38
provides that full-time nurses may be employed under the "Baylor
Plan." Nurses on that plan work two regularly scheduled 12-hour
tours of duty within the period commencing at midnight Friday and
ending at midnight the following Sunday. 38 U.S.C. 4107(h)(1).
Therefore, to the extent that Section 1, the first sentence,
pertains to nurses working under the Baylor Plan, it conflicts
with Title 38 and is nonnegotiable under section 7117(a)(1) of
the Statute.
As to employees not working under the Baylor Plan, Title 38
states that 40 hours is an administrative, or basic, workweek.
See 38 U.S.C. 4107(e)(5)(1982). The Agency has not established
that sentence 1 would interfere with its right to determine work
schedules. For example, sentence 1 does not prevent management
from assigning work to employees beyond 40 hours per week.
Furthermore, it does not prevent the Agency from assigning
employees to tours of duty and schedules which will ensure that
there are employees with the appropriate specialized skills to
perform specific tasks on particular shifts. Rather, we conclude
that Section 1, the first sentence merely restates Federal law.
Proposals which merely restate applicable Federal law are
negotiable. See, for example, Joint Council of Unions, GPO and
United States Government Printing Office, 25 FLRA 1033, 1034
(1987) (proposal making changes in work assignments grievable
held consistent with the Statute and negotiable).
The Agency also argues that Proposal 21 conflicts with an
Agency regulation for which there is a compelling need. According
to the Agency, Proposal 21 mandates tours of duty and work
schedules without regard to the Agency's patient care mission.
Additionally, the Agency states that management must be able to
match the appropriate personnel with the needs of patients. The
Union responds that the Agency has failed to support its
compelling need assertions by explaining how the cited regulation
is essential to provide quality patient care.
As we have discussed in the analysis and conclusion of
Proposal 1, an agency must meet the Authority's requirements to
establish a compelling need for an agency regulation. The first
steps are that an agency must identify an agency regulation and
show a conflict between that regulation and the disputed
proposal.
In this case, the Agency asserts that the DM&S Supplement,
MP-5, Part II, chapter 7, paragraph 7.04 conflicts with Section
1. That section of the VA's regulations provides that the
facility Director, or his designee, has the authority to
prescribe tours of duty to insure adequate professional care and
treatment to patients.
We conclude that the Agency has not shown a conflict between
its regulation, DM&S Supplement, MP-5, Part II, chapter 7,
paragraph 7.04, and Section 1, the first sentence. That sentence
merely restates the statutory language concerning the
administrative, or basic, workweek. Thus, we conclude that
Section 1, the first sentence, does not conflict with the
Agency's cited regulation. Inasmuch as the Agency has not
established that its cited regulation conflicts with Section 1,
the first sentence, it is unnecessary for us to consider further
the Agency's compelling need argument.
Accordingly, the first sentence is within the duty to
bargain except for nurses working under the Baylor Plan. See VA,
Bronx Medical Center, 30 FLRA 706, 719-22 (Proposal 7)
(proposal stating that full-time employees will be scheduled to
work 40 hours per week held negotiable except for nurses under
Baylor Plan).
b. Sentences 2 and 4
Section 1, the second sentence, provides that the normal
tour of duty within the 40 hour basic workweek shall consist of
five 8-hour days, exclusive of the 30 minute lunch period.
Sentence 4 provides that the basic workweek may not extend over
more than 6 days.
In agreement with the Agency, we find that Section 1, the
second and fourth sentences, would limit the Agency's right to
schedule employees. For example, sentence 2 would prevent the
Agency from scheduling employees to work a varying number of
hours per day and sentence 4 would prevent the VA from scheduling
an employee for more than 6 consecutive days although patient
care needs might necessitate that particular professional skills
be available on an irregular basis. See, for example VA Medical
Center, North Chicago, 27 FLRA 714, 719-21 (Proposal 3, Section
2) (proposal providing for 8 consecutive duty hours per day for
nurses held nonnegotiable); VA Medical Center, Hines, 28 FLRA
212, 224-30 (Proposal 5, Section 5) (proposal providing nurses
will not be scheduled to work for more than 6 consecutive days
held nonnegotiable). Although the cited cases concerned nurses,
we conclude that in the medical field not all personnel in a
particular profession are equally qualified to perform the
various specialized medical procedures required for adequate
patient care. Thus, the VA may have a need for particular
expertise at differing times during the day and the week.
Therefore, we conclude that Section 1, the second and fourth
sentences, are outside the duty to bargain because they would
interfere with management's right to assign work. In view of our
conclusion that Section 1, the second and fourth sentences are
nonnegotiable, it is unnecessary to consider further the Agency's
compelling need argument.
C. Sentence 3
Section 1, the third sentence, provides that the Medical
Center Director "has the authority" to schedule basic workweeks
including Saturdays and Sundays if service needs so dictate. We
do not read the sentence as assigning the scheduling
responsibility exclusively to that Agency official. Rather, the
sentence merely notes that the Director retains the authority to
schedule workweeks to include Saturdays and Sundays. Nothing in
the sentence would preclude the Director's delegating the
authority to any subordinate member of his or her staff.
Therefore, the third sentence does not dictate which management
official or entity may assume scheduling responsibility.
In summary, we find that in Section 1, the first sentence,
to the extent it does not apply to nurses working under the
Baylor Plan and the third sentence are negotiable and the second
and fourth sentences are nonnegotiable.
B. Section 2
1. Positions of the Parties
Section 2 concerns shift and tour work. The first sentence
would require that shift and/or tour employees who work in
continuous operations shall rotate through the various shifts.
The second sentence states that rotation will be on a monthly
basis, unless specifically requested by an employee. The third
sentence provides that unnecessary rotation of employees from
shift to shift or tour to tour shall not be practiced. The fourth
sentence requires that management "make every effort" to insure
that those employees scheduled for evening and night tours shall
be those who have specifically requested such tours.
The Agency argues that Section 2, like Section 1, would
limit its right to determine the work schedules of its health
care professionals. The Agency also argues that Section 2
conflicts with an Agency regulation for which a compelling need
exists.
The Union responds that employees who work in continuous
operations, that is, operations which run 24 hours daily, perform
the same duties regardless of the shift or tour to which they are
assigned. The Union argues that Section 2, in the fourth sentence
gives management the flexibility to assign employees to night and
evening shifts if there are insufficient requests for those
shifts. According to the Union, since sentence 4 does not prevent
the Agency from acting, it is negotiable.
2. Analysis and Conclusion
In agreement with the Agency, we find that Section 2 would
restrict management in meeting its patient care needs. Each
sentence in Section 2 places a restriction on management in
scheduling health care professionals. The first and second
sentences would require that employees rotate through all shifts
on a monthly basis regardless of patient care needs. See VA
Medical Center, Martinsburg, 27 FLRA 239, 256, 259-60 (Proposals
7 and 10) (proposals establishing tours limited to a 6-week
period and requiring that employees rotate through all shifts
held nonnegotiable).
The third sentence would require that management ensure that
rotation was necessary. The fourth sentence would require that
the Agency make every effort to obtain volunteers for shifts.
Therefore, Section 2, the third and fourth sentences,
establish a substantive condition which interferes with
management's right to assign work. See VA Medical Center, Ft.
Lyons, 25 FLRA 803, 818-20 (Proposal 4) (proposal requiring
agency to make relief reassignments from one ward to another only
in emergencies held nonnegotiable).
In conclusion, we find that Section 2 is outside the
Agency's duty to bargain. As we find that Section 2 is
nonnegotiable, we find it unnecessary to consider the Agency's
compelling need argument with regard to this section.
C. Section 4
1. Positions of the Parties
Section 4 states that employees shall not be required to
arrange for their own relief or to make staffing arrangements for
any unit or tour of duty. The Agency argues that Section 4, like
Sections 1 and 2, would limit its ability to assign health care
professionals according to patient needs. Specifically, the
Agency claims that management has the right to assign employees
the task of arranging their own relief for staffing any unit or
tour of duty. The Agency also argues that there is a compelling
need for an Agency regulation which bars negotiations on Section
4.
The Union argues that Section 4 prevents bargaining unit
employees from performing a management function, that is, the
assignment of work. Additionally, the Union asserts that
professional health care employees have specific duties such as
nursing and dentistry, and, therefore, should not be assigned
supervisory tasks.
2. Analysis and Conclusion
We find that Section 4 is nonnegotiable because management
has the right to assign work, including the right to require
employees to find their own replacements for relief, a shift, or
a tour of duty. Section 4 would prevent management from
exercising its right to assign these tasks. See Overseas
Education Association, Inc. and Department of Defense, Dependents
Schools, 29 FLRA 628, 629 (1987) Education Association, Inc. v.
FLRA, No. 87-1575 (D.C. Cir. Oct. 14, 1987) (proposal
prohibiting agency from assigning teachers nonprofessional duties
held nonnegotiable); National Federation of Federal Employees,
Local 1622 and Department of the Army, Headquarters, Vint Hill
Farms Station, Warrenton, Virginia, 16 FLRA 578, 580-81 (1984)
(Proposal 2) (right to assign work includes the right to
determine the particular duties to be assigned). We
conclude that Section 4 is nonnegotiable because it would prevent
the Agency from exercising its right to assign work. In view of
our conclusion that Section 4 is outside the duty to bargain, it
is unnecessary to consider the Agency's compelling need argument
with regard to this section.
D. Section 5
1. Positions of the Parties
Section 5 provides that employees may exchange tours of duty
or a day within a tour with the supervisor's permission. The
Agency makes no argument concerning this section other than its
arguments which we considered and rejected in Part II of this
decision and its compelling need argument which was set out in
Section 1. The Union argues that Section 5 is negotiable because
the supervisor's permission is required before employees can
exchange tours or a day within a tour.
2. Analysis and Conclusion
Section 5 would require that the supervisor approve or
disapprove employees' requests to exchange tours or a day within
a tour. As we have stated previously, proposals which assign work
to supervisors are outside the duty to bargain. See our
discussion concerning Proposal 2. Therefore, the requirement that
supervisors give permission for employees to exchange tours or a
day within a tour is nonnegotiable. However, if the designation
of the supervisor to perform this task were removed from Section
5, this section would be negotiable. See U.S. Army Missile
Command, 27 FLRA 69, 81.
If the designation of the supervisor were removed, we would
also find that Section 5 would not interfere in any manner with
the Agency's right to assign work because exchanges in tours of
duty or a day within a tour cannot occur under this section
without management's permission. We would also find that there is
no conflict between the regulation cited by the Agency and
Section 5 because Section 5 would preserve management's authority
to assign work. Thus, we need not consider further the Agency's
compelling need argument with regard to Section 5.
E. Section 6
1. Positions of the Parties
The Agency makes no arguments on this section other than the
arguments that we considered and rejected in Part II of this
decision and that Section 6 conflicts with an Agency regulation
for which a compelling need exists. The Union asserts only that
Section 6 does not prevent the Agency from exercising its
rights.
2. Analysis and Conclusions
a. Sentence 1
Section 6, the first sentence, provides that employees will
not be asked to "double back," that is, to return to duty with
only one shift elapsing, unless there is an "absolute emergency"
or unless the employee requests to do so. The first sentence,
therefore, interferes with management's right to assign work. It
would preclude the Agency from calling an employee back to work
after only one shift had elapsed unless management could
establish that an "absolute emergency" existed. We conclude that
Section 6, the first sentence, is outside the duty to bargain
because it interferes with management's right to assign work
under section 7106(a)(2)(B) of the Statute. See VA, Bronx Medical
Center, 30 FLRA 706, 736-39 (Proposal 13, Section 8.03c.)
(proposal requiring agency to allow 15-1/2 hours between shifts
held nonnegotiable). See also VA Medical Center Ft. Lyons, 25
FLRA 803, 812-16 (Proposal 2, Section 3). As we find that
Section 6, the first sentence, is outside the duty to bargain, we
need not consider the Agency's compelling need argument with
regard to this section.
b. Sentences 2 and 3
In Section 6 the second sentence states that "employees will
not be asked to use their annual leave for the purpose of giving
another employee more time off between shifts." The third
sentence states that this practice may occur only at the
employee's request or in an emergency.
The Union has not explained the practice discussed in
sentences 2 or 3 or its intent in proposing these sentences. We
are unable to discern in what manner management is expected to
act under these sentences. Therefore, we find that these
sentences fail to meet the conditions for review prescribed in
section 7117(c) of the Statute and section 2424.1 of our Rules
and Regulations, and we conclude that the record is
insufficient for the Authority to make a negotiability
determination. NFFE, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C.
Cir. 1982). In these circumstances, the second and third
sentences in Section 6 must be dismissed.
F. Section 7
1. Positions of the Parties
The Agency does not specifically discuss Section 7. The only
arguments the Agency makes are those we discussed and rejected in
Part II of this decision and its argument that a compelling need
for an Agency regulation bars negotiations on Part 7. The Union
states that Section 7 refers to supplemental negotiations under
the provisions of a nationwide master agreement and that prior
notification and bargaining over changes in working conditions is
required by the Statute.
2. Analysis and Conclusion
Section 7 would require that the Agency notify the Union of
proposed changes in "the standard workweek" and bargain about
those changes pursuant to Article 9 of the parties' collective
bargaining agreement. It is unclear what the Union proposes to
bargain in Section 7. The Union offers no explanation of the term
"standard workweek." As we stated in our discussion of Section 1,
the administrative or basic workweek for the Agency is defined in
statute and, therefore, may not be the subject of negotiations. A
possible interpretation of Section 7 is that the Union seeks to
negotiate changes in employees' work schedules. However, many
matters relating to hours of work and tours of duty are
nonnegotiable. For example, in this proposal, we find that
Section 2 concerning shifts and tour work and the first sentence
in Section 6 concerning "doubling back" are nonnegotiable. The
Union does not state whether it intends the term "negotiations"
to encompass bargaining over the substance and/or the impact and
implementation of changes.
Inasmuch as the Union has not explained the meaning of
"standard workweek" or its intent in Section 7, we conclude that
this section fails to meet the conditions for review prescribed
in section 7117(c) of the Statute and section 2424.1 of our Rules
and Regulations. As we have insufficient information on which to
base a negotiability determination, Section 7 must be dismissed.
See our discussion and the case cited concerning Section 6, the
second and third sentences.
G. Section 8
1. Positions of the Parties
The Agency does not present any specific arguments
concerning Section 8 other than those that we discussed and
rejected in Part II of this decision and its argument that a
compelling need for an Agency regulation bars negotiations on
Section 8. The Union argues that Section 8 is consistent with
Government-wide regulations governing administrative leave and
cites 5 U.S.C. 6301(2)(v). Further, the Union asserts that the VA
may authorize administrative leave.
2. Analysis and Conclusion
Section 8 provides that the Medical Center Director will
authorize administrative leave in accordance with Agency
regulations where employees are absent from work due to extreme
weather conditions or public emergency situations and where it is
determined on an individual basis that it was impossible for all
practical purposes for an employee to get to work.
Initially, we note, as we did in connection with Proposals 3
and 4, that the provisions of 5 U.S.C. 6301-6326 concerning
annual and sick leave are not applicable to Title 38 employees.
See 5 U.S.C. 6301(2)(v). Therefore, the Union's reliance on these
provisions of law is misplaced.
Section 8 would require that the Medical Center Director
authorize administrative leave. Thus, it assigns a duty to a
management official. We have held frequently that a proposal
which assigns a task or responsibility to an employee is
nonnegotiable because it interferes with management's right to
assign work under section 7106(a)(2)(B). See our discussion and
the cases cited in Proposal 2. Thus, we find that Section 8 is
nonnegotiable because it assigns a duty to the Medical Center
Director. This aspect of Section 8 can be cured. U.S. Army
Missile Command, 27 FLRA 69, 81.
If the reference to the Medical Center Director were
removed, we would find that Section 8 is negotiable. The language
of Section 8 preserves management's discretion to determine
whether it was impossible for all practical purposes for an
employee to get to work in extreme weather conditions or a public
emergency situation. We note that Section 8 specifically states
that a determination regarding every absence be made in
conformance with VA regulations. Furthermore, under
Section 8 management would make the decision regarding whether an
employee was unable to get to work. Only if this determination
were made by management would an employee be granted
administrative leave. Fort Bragg Schools, 30 FLRA 508, 528-30
(Proposal 23, subsection d, sentence 2) (proposal which granted
employees administrative leave for attendance at professional
meetings after agency approved employee's absence from work found
not to interfere with management's right to assign work). See
also American Federation of Government Employees, AFL - CIO,
Local 1738 and Veterans Administration Medical Center, Salisbury,
North Carolina, 27 FLRA 52, 61-63 (Proposal 10) (VA Medical
Center. Salisbury) (proposal providing factors agency will
consider in granting administrative leave held negotiable).
As to the Agency's compelling need argument, we would also
find that no conflict exists between the Agency's cited
regulation and Section 8 because management would retain its
authority to determine whether administrative leave is
appropriate.
H. Section 10
1. Positions of the Parties
The Agency does not present any arguments concerning Section
10 other than those that we discussed and rejected in Part II of
this decision and its compelling need argument. The Union argues
that the Authority previously has found that proposals concerning
rest breaks are negotiable.
2. Analysis and Conclusion
Sentence 1 would provide that each employee have a 20 minute
rest break within each half of an employee's workday. Sentence 2
would require that management grant a 20 minute rest break for
each 4 hours of overtime worked. The third sentence states that
rest breaks may be taken away from the immediate worksite.
The Authority has held that break periods are negotiable,
because: (1) granting break periods is within an agency's
discretion; (2) employees remain in a duty status during their
break periods; and, (3) therefore, management retains the right,
under section 7106(a)(2)(B), to assign work to them during their
break periods. See, American Federation of Government Employees,
AFL - CIO, National Council of Social Security Field Office
Locals and Department of Health and Human Services Social
Security Administration 24 FLRA 842, 843 (1987) (Proposal 1) and
American Federation of Government Employees, AFL - CIO,
Local 3511 and Veterans Administration Hospitals, San Antonio,
Texas, 12 FLRA 76, 84-88 (1983) (Proposal 30.i).
The first two sentences of Section 10 concern the duration
and timing of rest breaks. In accordance with the cited cases,
these sentences are within the duty to bargain. However, the
third sentence of the section does not fall within the holding of
those cases. That sentence does not obligate employees on breaks
to hold themselves in readiness to return to work, if ordered to
do so. To the contrary, the third sentence reasonably could be
construed as allowing employees to be out of communication with
management during their break periods. Accordingly, the third
sentence is inconsistent with management's right to assign
work.
As to the compelling need argument, the Agency has not shown
how the scheduling of brief rest breaks would interfere with its
patient care responsibilities. Additionally, because we have
found that the third sentence of Section 10 interferes with
management's right to assign work, we need not consider the
applicability of the compelling need argument to that sentence.
In conclusion, we find that the following portions of
Proposal 21 are nonnegotiable: in Section 1, the first sentence
as it applies to nurses working under the Baylor Plan and
sentences 2 and 4; Section 2; Section 4; Section 5; in Section 6,
sentence 1; Section 8; and Section 10, sentence 3. We also
conclude that the second and third sentences in Section 6 and
Section 7 must be dismissed. The following portions of Proposal
21 we find to be negotiable: in Section 1, sentence 1, except for
nurses working under the Baylor Plan, and sentence 3; Section 10,
sentences 1 and 2.
XXIII. Proposal 22
Article 25 - Overtime (Not Applicable to Physicians,
Dentists, Optometrists or Podiatrists)
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The Agency alleges that the proposal conflicts with an
Agency regulation for which there is a compelling need. In
addition, the Agency contends that section 10 conflicts with 5
C.F.R. 550.114, which authorizes compensatory time off in lieu of
irregular or occasional overtime. Section 10, in the Agency's
view, would authorize compensatory time as a substitute for
regular overtime pay.
The union contends that the Government-wide regulation cited
by the Agency as barring negotiations on Section 10 is
inapplicable to Title 38 employees. The Union asserts that all
other parts of Proposal 22 are within the duty to bargain.
B. Analysis and Conclusions
Because the Agency argues that a compelling need exists for
its regulation concerning the scheduling of employee workhours to
bar negotiation on the entire proposal, we will examine that
argument before analyzing the individual sections of this
proposal. Without specifically citing any of the compelling need
criteria set out in section 2424.11 of our Rules and Regulations,
the Agency states that its regulation "is essential to the
performance of its mission to provide quality patient care to
veterans." Statement of Position at 55.
As we stated in connection with Proposal 1, in order to
establish that a proposal is nonnegotiable because it conflicts
with an agency regulation for which there is a compelling need,
an agency must: (1) identify the specific agency-wide regulation;
(2) demonstrate that there is a conflict between its regulation
and the proposal; (3) establish that its regulation is supported
by a compelling need with reference to the illustrative criteria
contained in section 2424.11 of the Authority's Rules and
Regulations (5 C.F.R. 2424.11). Generalized reasoning merely
stating conclusions is not sufficient to support a compelling
need finding. FDIC, Madison Region, 21 FLRA 870, 880.
As we noted, the Agency did not reference a specific
compelling need criterion, although it did refer to its mission
as a basis for the regulation. Thus, we will construe the
Agency's argument as a claim that its regulation is essential, as
distinguished from helpful or desirable, to the accomplishment of
its mission in a manner which is consistent with an effective and
efficient Government. The Agency not only has not demonstrated
that there is a conflict between the proposal and the regulation
but also has not demonstrated how the proposal is intended to be
implemented in a manner inconsistent with its regulations
concerning the health care needs of its patients. Accordingly, we
reject the Agency's claim that a compelling need exists for its
regulation to bar negotiation on this proposal. Consequently,
unless the individual sections of this proposal are otherwise
inconsistent with law, rule or regulation, including the Statute,
we will find them to be negotiable.
1. Section 4
Section 4 merely provides that the method of scheduling
overtime will be negotiated in "local supplemental agreements."
The section does not require the Agency to bargain in a manner
which is violative of its rights. Therefore, we find no basis in
its language for finding the section nonnegotiable.
The method of scheduling the distribution of overtime is
negotiable, as long as the method does not interfere with
management's determination of the qualifications necessary to
perform the work and with the decision whether or not to have
work performed on overtime. See American Federation of Government
Employees, AFL - CIO, Local 1770 and Department of the Army, Fort
Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA
493, 497 (1987) (Provision 2, section 4), petition for review
filed as to other matters sub nom. Department of the Army, Fort
Bragg Dependent Schools, Fort Bragg, North Carolina v. FLRA No.
87- 661 (4th Cir. Sept. 22, 1987) (provision requiring that
overtime opportunities be offered equitably to all qualified
employees within the trade or occupation within an organizational
element held to be negotiable because it only concerned which
unit employees already assigned certain work would be selected to
perform the same work on overtime when overtime was required).
See also International Plate Printer, Die Stampers and Engravers
Union of North American, AFL - CIO, Local 2 and Department of the
Treasury, Bureau of Engraving and Printing, Washington, D.C., 25
FLRA 113, 117-20 (1987) (Provisions 5 and 9), (Bureau of
Engraving and Printing) (provisions requiring, respectively, that
overtime work be assigned to qualified employees in inverse order
of senority and that an employee be permitted to refuse an
overtime assignment for "legitimate reasons" if management can
find an available and qualified replacement held to be negotiable
procedures under section 7106(b)(2) of the Statute). Accordingly,
since Section 4 concerns only the scheduling of overtime and in
no manner interferes with management's right to assign work, we
find this section to be negotiable.
2. Section 5
Section 5 obligates management to maintain records of
overtime assignments it has made. The section has no effect on
the Agency's authority to make overtime assignments. It,
therefore, does not violate management's statutory right to
assign work. Rather, it constitutes a procedure to be followed by
the Agency in exercising its reserved right to assign work under
section 7106(a)(2)(B) and is negotiable.
3. Section 6
The Union states that it inadvertently included sections
covering Title 5 employees in its petition for review of Proposal
22. The sections concerning Title 5 employees are among those it
has withdrawn. "The remaining sections," it asserts, "are
pertinent only to Title 38 employees." Reply Brief at 37.
The Union asserts that Section 6 is consistent with 38
U.S.C. 4107(e)(5) which concerns overtime pay for nurses employed
under Title 38. Therefore, we construe Section 6 as applying to
such nurses and agree, in such circumstances, that the section is
consistent with applicable law. 38 U.S.C. 4107(e)(5), in relevant
part, provides: "Any excess service performed under the
provisions of this paragraph on a day when service was not
scheduled for such nurse, or for which such nurse is required to
return to the nurses's place of employment, shall be deemed to be
a minimum of two hours in duration," Because Section 6 does no
more than incorporate the Agency's statutory obligation into the
parties' agreement, it is negotiable.
4. Section 7B
Although "on-call" is not defined in the record of this case
by either party, for purposes of our analysis we will assume,
because the same employer was involved, that the term has the
same meaning as was attached to it by the parties in VA Medical
Center, Wood, 29 FLRA 849, 862-63, (Proposal 8). In that case,
we found that "on-call" status required off-duty nurses to hold
themselves in readiness to return to work at management's
request, and that designating an employee to be on-call involved
the management right to assign work under section 7106(a)(2)(B)
of the Statute.
The proposal in VA Medical Center, Wood required that
on-call assignments be rotated equally among all employees in the
department. Our finding that the proposal conflicted with
management's right to assign work under section 7106(a)(2)(B) was
based principally on the agency's contention that on-call
assignments must be based on its judgment as to the nurses'
differing specialized skills and its estimate of the kind of work
required when the nurses are recalled to duty. Because the
proposal did not acknowledge those special considerations in
making on-call assignments, it was nonnegotiable.
Section 7B here, however, presents a different situation.
The section does not require that on-call assignments
be made to any particular employee or group of employees. It only
requires that volunteers be solicited as a step prior to making
on-call assignments, not that on-call assignments be made to
them. There is nothing in this section which seeks to dictate the
qualifications or occupational types required to perform work in
question. Rather, the section establishes a procedure for
management to follow in selecting from among employees it deems
qualified to perform the work. Thus, the section does not
interfere with management's right to assign work but is a
negotiable procedure under section 7106(b)(2) of the Statute. See
American Federation of Government Employees, Council of Social
Security District Office Locals and Department of Health and
Human Services, Social Security Administration 15 FLRA 545
(1984), where the Authority found a proposal requiring management
to solicit qualified volunteers before assigning employees to a
specified organizational element to be a negotiable procedure
under section 7106(b)(2).
5. Section 8
The Union asserts that this section is consistent with 38
U.S.C. 4107(e)(5) and further points out that the section
requires that overtime be paid for travel in accordance with
governing law and regulations. In view of these Union assertions
we will analyze Section 8 in terms of its application to nurses
in the bargaining unit.
38 U.S.C. 4107(e)(5), insofar as it concerns travel,
provides:
For the purposes of this paragraph, the period of a nurse's
officially ordered or approved travel away from such nurse's duty
station may not be considered hours of service unless--(A) such
travel occurs during such nurse's tour of duty; or
(B) such travel (i) involves the performance of services
while traveling, (ii) is incident to travel that involves the
performance of services while traveling, (iii) is carried on
under arduous conditions as determined by the Administrator, or
(iv) results from an event which could not be scheduled or
controlled administratively.
Because Section 8 is to be implemented in accordance with
applicable law and regulation, it does not require the
payment of overtime for travel unless statutory and regulatory
requirements so dictate.
The obligation in Section 8 to schedule travel during the
duty hours, "(i)nsofar as practicable," is similar to the
obligation imposed by Provision 2 in American Federation of
Government Employees, Local 1799 AFL - CIO and U.S. Army,
Aberdeen Proving Ground, Aberdeen Proving Ground, Maryland, 26
FLRA 926, 929 (1987). That provision required travel away from
employees' normal duty station to be scheduled during employees'
normal working hours, "(w)hen practicable." We held that the
provision did not interfere with management's right to assign
work because it did not confine travel strictly to employees'
duty hours. We found that the phrase, "(w)hen practicable,"
preserved management's discretion in the matter. Similarly,
Section 8 in this case includes a phrase, "(i)nsofar as
practicable," which preserves management's discretion to decide
when travel will be undertaken and, therefore, does not conflict
with the right to assign work under section 7106(a)(2)(B) of the
Statute.
Consequently, since Section 8 merely restates statutory and
regulatory requirements and preserves management's discretion to
assign work, it is negotiable.
6. Section 9
This section provides for a notice period before assigning
employees overtime work. The notice period would be "normally" at
least 2 days. It is well established that the authority to assign
overtime is encompassed within the right to direct employees
under section 7106(a)(2)(A) and to assign work under section
7106(a)(2)(B) of the Statute. See for example, Bureau of
Engraving and Printing, 25 FLRA 113, 117-20 (Provision 8)
(provision preventing assignment of overtime work in the absence
of "unusually" heavy, workload held to be nonnegotiable): In our
view, Section 9 limits management's right to assign overtime work
by requiring that management will provide notice "normally" 2
days in advance. The presence of the word "normally" does not
provide management with sufficient discretion to require
employees to work overtime with less than 2 days' notice when
necessary. Rather, the use of that word establishes a standard
and would obligate management to justify any deviation from the
established standard. See National Federation of Federal
Employees, Local 615 v. FLRA, 801 F.2d 477, 489 (D.C. Cir.
1986), aff'g 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, 320 (1985)
(Provision 2); and American Federation of Government
Employees, AFL - CIO Local 2029 and Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 30 FLRA
650, 652-54 (1987) (Proposal 2). Hence, because Section 9 limits
the Agency's right to assign overtime work without providing 2
days' notice, it directly interferes with the underlying rights
to direct employees and to assign work.
Section 9 is distinguishable from Proposal 3, held to be
negotiable in American Federation of Government Employees Local
85 and Veterans Administration Medical Center, Leavenworth,
Kansas, 30 FLRA 400, 402-03 (1988) (VA Medical Center,
Leavenworth). The proposal in VA Medical Center, Leavenworth,
which likewise required 2 days' advance notice of overtime work,
dealt exclusively with "Scheduled overtime," expressly excluding
from its coverage "all overtime not scheduled." We noted that, "
. . . there is nothing in the proposal or in the record which
indicates that the Agency would in any manner be limited in
assigning overtime in circumstances where the Agency did not
provide the 2 days' advance notice because the Agency did not
have knowledge of the need for overtime more that 2 days in
advance." 30 FLRA at 403. Section 9, however, makes no
distinction between scheduled overtime and other types of
overtime, for example, emergency, irregular or occasional. Hence,
the section's notification requirement would apply in
circumstances where management is unlikely to know 2 days in
advance that overtime work will be necessary, as well as to those
situations where management would know that such work is required
2 or more days prior to the assignment.
In addition, Section 9 requires that notification of
overtime work be made by "supervisors." By requiring that
specific management officials perform this task, the proposal
interferes with the Agency's reserved right to assign work and is
also nonnegotiable on that basis. see our discussion concerning
Proposal 2.
7. Section 10
As we noted when discussing Section 6 of this proposal,
Proposal 22 is intended to apply exclusively to Title 38
employees. Consequently, the regulation, 5 C.F.R. 550.114, cite
by the Agency as a bar to negotiations on this section, is
inapplicable to the employees involved. 5 C.F.R. 550.101(b)(12).
Under the governing law, 38 U.S.C. 4107(e)(5), the only
limitation on granting compensatory time off in lieu of overtime
pay is that compensatory time shall not be permitted ". . .
except as voluntarily requested in writing by the nurse in
question." Nothing in the proposed Section 10 is inconsistent
with statutory requirements. In fact, the section
specifically states that the employees involved are to receive
overtime compensation "in accordance with the law." Since the
section is fully consistent with legal requirements and merely
has the effect of incorporating those requirements into the
negotiated agreement, it is within the duty to bargain.
8. Section 11
The Agency raised no specific objections to this section
which provides, in its first sentence, for an unpaid lunch period
after 4 consecutive hours of work. We find no basis for holding
the proposed unpaid lunch break to be outside the duty to
bargain.
The second sentence merely requires that, if an employee
works in excess of 8 hours in a given day because he or she had
to work during the scheduled lunch period, the employee will
receive overtime compensation. This requirement is consistent
with 38 U. S. C. 4107(e)(5). That section provides: "A nurse
performing officially ordered or approved hours of service in
excess of forty hours in an administrative workweek, or in excess
of eight hours in a day, shall receive overtime pay for each hour
of such additional service . . . . " Accordingly, Section 11 is
within the duty to bargain.
9. Sections Concerning "Flexitime" (Sections 1 through 3)
and "Modified Workweek (Sections 1 through 6)
The Agency furnishes no specific reasons either in its
allegation or in the Statement of Position for its position that
these sections are nonnegotiable. The Agency appears again to
rely on the position, which has been addressed and rejected in
Part II of this decision, that it is not obliged to bargain over
the conditions of employment of unit employees. According to the
Union, its proposal is consistent with 5 U.S.C. 6120-6133 which
it contends provides the legal basis for the matters covered by
the proposal.
We find no grounds for concluding that the Agency is not
covered by the sections of law cited by the Union. In setting out
the coverage of 5 U.S.C. 6120-6133, entitled "Flexitime and
Compressed Work Schedules," section 6121 states, "(l) 'agency'
means any Executive agency, any military department, and the
Library of Congress(.)" The Agency here, therefore, is not
expressly excluded from coverage. In fact, a statement in section
6123 compels the conclusion that unit employees, specifically
nurses, are covered by sections 6120 to 6133. Section
6123 concerns "Flexible schedules; computation of premium pay,
and states, in pertinent part: "(1) the head of an agency may, on
request of the employee, grant the employee compensatory time off
in lieu of payment for such overtime hours whether or not
irregular or occasional in nature and notwithstanding the
provisions of . . . section 4107(e)(5) of title 38 . . . ." As we
have seen, 38 U.S.C. 4107(e)(5) governs the overtime pay for
Agency nurses. Similarly, 5 U.S.C. 6128, entitled "Compressed
schedules; computation of premium pay," provides: ". . . section
4107(e)(5) of the title 38, . . . or any other law, which relate
to premium pay for overtime work, shall not apply to the hours
which constitute a compressed schedule."
Because we find that the statutory sections cited by the
Union cover unitemployees and because our review of those
provisions of law reveals no conflict with the sections proposed
by the Union, we find that those disputed sections are
negotiable.
Accordingly, we find the following parts of Proposal 22 to
be within the duty to bargain: Sections 4, 5, 6, 7B, 8, 10, 11
and those sections under the headings "Flexitime" and "Modified
Workweek." For the reasons stated, we find Section 9 to be
nonnegotiable.
XXIV. Proposal 23
Article 27 - Staffing Adjustments for Title 38 Employees
(1) When a decision has been made to reduce the Title 38
staff affecting Unit employees, the Union at the local level will
be notified in writing as soon as the decision has been made or
at least 45 days prior to implementation. Notification will
include the proposed date of implementation, the number of
reductions to be made, and the positions affected. As soon as the
decision is made as to who will be affected, the local Union will
be notified in writing identify-ing those Unit members.
(2) Management will meet with the Union, if a meeting is
requested, to discuss the proposed adjustment and to negotiate
any adverse impact on employees.
(3) The decrease in staffing will first be accomplished by
offering retirement to those eligible. But no coercion
will be used by Management to force any retirement. The employee
will be allowed at least 3 months past the proposed date of
implementation to accomplish his/her retirement. Management will
also post a notice for 15 days, 40 days prior to implementation,
requesting volunteers who are willing to transfer to another VA
facility of their choice at Management's expense. Also, at least
2 days of AA and per diem, plus travel expenses, to that facility
to secure suitable housing for them and their families will be
granted. Management will exert every effort to transfer the
employee to the facility of his/her choice. If this cannot be
accomplished, the employee shall have the right to withdraw
his/her offer to transfer.
A. Positions of the Parties
The Agency contends that the proposal's method for reducing
staffing levels conflicts with an Agency regulation for which a
compelling need exists. The Agency also argues that paragraph 3
of the proposal interferes with its right to assign work and to
lay off employees. That paragraph, in the Agency's view, also is
inconsistent with law because it requires reimbursement for
relocation costs without meeting the requirements of 5 U.S.C.
5724(a) that the transfer be in the interest of the Government
and that the affected employee execute a written promise to
remain with the Government for 12 months after the transfer.
The Union contends that paragraphs 1 and 2 are consistent
with the requirements of sections 7114(b) and 7116(a)(5) of the
Statute. The Union describes paragraph 3 as an appropriate
arrangement for employees adversely affected by the exercise of
management's right to lay off.
B. Analysis and Conclusion
1. Paragraphs 1 and 2
The basic scope of the duty to bargain under the Statute
extends to matters affecting the working conditions of employees
in a certified bargaining unit provided the proposal is not
inconsistent with law, rule, or regulation. See, for example,
Bureau of the Public Debt, 3 FLRA 769, 771 (1980). Matters
relating to a reduction-in-force (RIF) concern the conditions of
employment of affected employees. See, for example, National
Treasury Employees Union and Department of Energy, 22
FLRA 131, 133 (1986), and the cases cited therein. Here, the
Union seeks notice that the Agency has decided to conduct a
RIF.
Paragraph 1 requires that notice be provided to the Union at
least 45 days prior to implementing a RIF. In American Federation
of Government Employees, Local No. 12 and U.S. Department of
Labor, 25 FLRA 987, 997-98 (1987) (Proposal 7) we found that a
proposal, requiring that a RIF action against an employee would
not be taken for at least 30 days after the employee's receipt
of a specific notice, was not inconsistent with the management
rights provisions of the Statute. Here, paragraph 1, in imposing
a 45-day notice period, does not prevent management from
conducting a RIF. Therefore, paragraph I is a negotiable
procedure under section 7106(b)(2).
As to paragraph 2, we noted above that a RIF affects
conditions of employment of bargaining unit employees. Although
the decision to conduct a RIF involves the exercise of management
rights under section 7106(a) of the Statute, the Agency is
obliged nonetheless to bargain over the impact attributable to
the exercise of those rights. See, for example, Internal Revenue
Service (District, Region and National Office Unit and Service
Center Unit), 10 FLRA 326 (1982) ("As previously noted by the
Authority, the Statute requires that, prior to effectuating a
change in established conditions of employment, an agency must
give the exclusive representative notice and an opportunity to
negotiate."). Thus, paragraph 2 merely reiterates a right
afforded to the Union by the Statute when it requires discussion
and bargaining over the adverse impact of an impending RIF.
Accordingly, paragraph 2 is negotiable.
2. Paragraph 3
The Union states that this paragraph should be interpreted
as applying to "employees occupying the types of positions (the
Agency) has identified as being subject to reductions." Reply
Brief at 40. Under this paragraph the Agency would be required to
reduce its staffing levels first by offering retirement to
eligible employees occupying the types of positions earmarked for
reduction and second by soliciting volunteers willing to transfer
to other Agency installations. Only after these steps had been
taken could the Agency conduct a RIF.
With regard to the steps prescribed by paragraph 3, the
Agency makes the following observations:
The specialization and skills of health care professionals
vary widely. certainly seniority or willingness to transfer are
not criteria for determining who should be retained to meet the
health care needs of a particular facility. Undoubtedly health
care will deteriorate if staffing decisions are made on a basis
other than quality health care. (Statement of Position at 58.)
The Authority has recognized the highly specialized and
individualized skills and abilities of nurses, and the critical
relationship of those skills and abilities to medical care and
treatment of the Agency's clientele. In National Association of
Government Employees, Local R14-8 and Veterans Administration
Medical Center, Topeka, Kansas, 24 FLRA 126, 128-29 (1986)
(Proposal 2), we found a proposal to be nonnegotiable which would
have prohibited management from scheduling an employee to work on
a shift if that employee had worked during the previous 11 hours
and assigning an employee to work more than two tours of duty in
a workweek unless the employee had 11 hours off between tours. In
so finding, we noted that the proposal failed to consider the
Agency's work requirements and whether the employee's particular
skills were needed on a particular shift. More recently, in VA
Medical Center, Wood, 29 FLRA 849, 862-63 (Proposal 8), we found
that a proposal requiring that on-call status be rotated equally
among all nurses in a department was nonnegotiable. Our finding
was based primarily on the agency's contention that such
assignments must be made in accordance with management's judgment
as to the nurses' differing specialized skills and on the
employer's estimate of the type of work required of the nurses
upon recall. See also VA Medical Center, Ft. Lyons, 25 FLRA 803,
812-16 (Proposal 2).
Consistent with these decisions, we find that, although the
Union urges that the paragraph be interpreted as applying to
employees in positions like those identified for abolishment,
paragraph 3 nonetheless interferes with management's rights. The
proposal's requirement that unit strength be reduced by
accommodating employees who would voluntarily leave the unit
through retirement or transfer prior to using any other staff
reduction method interferes with management's rights under
section 7106(a)(2)(A) of the Statute to determine which positions
will be abolished and which positions will be retained.
Association of Civilian Technicians, Montana Air Chapter and
Department of the Air Force, Montana Air National Guard,
Headquarters 120th Fighter Intercepteor Group (ADTAC), 11 FLRA
505 (1983), reversed and remanded as to other matters
sub nom. Association of Civilian Technicians, Montana Air Chapter
v. FLRA, 756 F.2d 172 (D.C. Cir. 1985).
We reject the Union's position that paragraph 3 constitutes
an appropriate arrangement under section 7106(b)(3) for employees
adversely affected by the exercise of a management right. In
National Association of Government Employees, Local R14-87 and
Kansas Army National Guard, 21 FLRA 24, 31-32 (1986) (Kansas
Army National Guard), the Authority explained how it would
analyze a proposal alleged by its proponent to be an "appropriate
arrangement." In support of such an allegation, the Authority
stated, the union making the proposal would have to identify the
management right or rights claimed to produce the adverse
effects, describe the effects or foreseeable effects on employees
attributable to the exercise of those rights and how those
effects are adverse. Only after these matters were established
adequately would the Authority inquire into whether the
arrangement is "appropriate."
To be "appropriate" an arrangement must not "excessively
interfere" with the affected management right or rights.
Determining the degree of interference involves weighing a number
of factors. Among those factors, as listed in Kansas Army
National Guard, is whether a proposal's adverse impact is
disproportionate to the benefits to be derived from the proposed
arrangement. 21 FLRA at 31-32.
The Union here identifies the management right producing the
adverse impact as the right to conduct a RIF. It describes the
main adverse effects resulting from the exercise of that right as
a loss of employment and income caused by separation from the
service. We agree that the paragraph concerns management's rights
under section 7106(a)(2)(A) of the Statute to lay off and retain
employees. We also agree that the foreseeable consequences
resulting from the exercise of those rights are as described by
the Union and that their impact is severe.
However, we do not find that the arrangement is an
appropriate one in the circumstances of this case. The paragraph
would require that unit strength first be reduced by using
volunteers either for retirement or for transfer. In this case,
however, management must structure its workforce to meet the
health care demands of its clients and must reduce its staffing
levels in a manner having the least detrimental effect on the
response to those demands. A careful evaluation of the skills,
knowledges and abilities of individual employees is an essential
consideration in minimizing the impact of staff
reductions. However, under Paragraph 3, management would be
required initially to reduce strength by means of volunteers
regardless of whether those volunteers have been identified as
critical to its health care objectives. Consequently, the Agency
could be left with vacancies in positions essential to its
requirements while positions deemed less essential to patient
care remain filled. In our view, the adverse impact on
management's right to retain or lay off employees in a RIF, on
which the Agency's ability to minister to the health needs of its
clientele depends, outweighs the benefits to employees to be
derived from the paragraph. Paragraph 3, therefore, excessively
interferes with management's right to retain and lay off
employees and is not an appropriate arrangement within the
meaning of section 7106(b)(3).
Because the paragraph's requirement that staffing levels be
reduced first by offering retirement to eligible employees does
not constitute an "appropriate arrangement," it is unnecessary to
consider whether allowing voluntary retirees under this proposal
to remain on the payroll for 3 months after the RIF likewise is
an appropriate arrangement. Similarly, it is unnecessary to
address the question of whether payment of travel, per diem,
moving expenses and granting administrative leave to voluntary
transferees are appropriate arrangements.
For the reasons stated above, paragraphs 1 and 2 of Proposal
22 are within the duty to bargain and paragraph 3 is outside the
duty to bargain.
XXV. Proposal 24
Article 30(a) - Training
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The Agency argues that Sections 4 and 5 would require the
Agency to grant authorized absence to attend training sessions in
violation of management's right to assign work. The Union
responds that Proposal 24 does not concern the assignment of
work. According to the Union, this proposal recognizes
management's responsibility to meet training needs once they are
identified and establishes negotiable procedures concerning
training. In Section 11, the Union seeks training as an
appropriate arrangement for employees adversely affected by the
exercise of management's rights under section 7106(a)(1).
B. Analysis and Conclusions
1. Sections 1A and 3A
Section 1A is a general statement that the parties recognize
that there may be a need for training. The second sentence in
section 1A requires that management remind employees of the
availability of training and the nominating procedure. Section 3A
states that management decides whether training needs exist and
then determines the appropriate methods to meet these needs.
While Section 3A states that training may be on-the-job or
through formal courses, management is not restricted to providing
a particular type of training by this proposal. Rather, sections
1A and 3A state that management is free to determine "the
appropriate methods" for meeting training needs.
Sections 1A and 3A do not restrict management's right to
determine the type, frequency, and duration of training programs
to which it will assign employees. The requirement in section 1A
that management notify employees of existing training
opportunities does not interfere with this management right. See
American Federation of Government Employees, Local 3231 and
Social Security Administration, 22 FLRA 868, 871 (1986)
(Proposal 2) (AFGE, Local 3231 and SSA) (proposal requiring
management to make appropriate notifications of changes in
workflow procedures held negotiable).
It is undisputed that Sections 1A and 3A concern a matter
affecting conditions of employment of bargaining unit employees.
Furthermore, the Agency makes no claim that these sections
violate law, rule, or regulation, including an Agency regulation
for which a compelling need exists. In these circumstances, we
find that Sections 1A and 3A are negotiable. National Treasury
Employees Union, chapter 6 and Internal Revenue Service New
Orleans District, 3 FLRA 748, 759-60 (1980) (IRS, New Orleans
District).
2. Section 4
a. Requirements that Agency Approve Absences Violated
Management's Rights to Assign Work and are Nonnegotiable
Section 4A and Sections 4B and 4D in the first sentences
would require the Agency to grant authorized absence if training
is required by the VA and that training is scheduled or offered
during working hours. We have held consistently that proposals
which obligate an agency to assign employees to
training during working hours are outside the duty to bargain
because they infringe on management's right to assign work under
section 7106(a)(2)(B). See, for example, VA Medical Center,
Hines, 28 FLRA 212, 240-41 (Proposal 9) (proposal requiring
agency to provide release time for attendance at inservice
development programs held nonnegotiable). Furthermore, contrary
to the Union's argument, a management requirement that an
employee take certain courses or training does not obligate an
agency to assign employees to pursue such training during working
hours. See AFGE Local 3231 and SSA, 22 FLRA 868, 872 (proposal
3) (proposal requiring training on duty time for adequate
performance held nonnegotiable). Therefore, we find Section 4A
and in Sections 4B and 4D, the first sentences, to be outside the
duty to bargain. We note here that the requirement in the first
sentence of Section 4D that management make "a reasonable effort"
to approve leave applications would not, standing alone, place
that sentence outside the duty to bargain. See our discussion of
Proposal 16, Section 2.
b. Requirements that Agency Consider Financial Aid to
Employees for Training are Negotiable
In Sections 4B and 4D, the second sentences would require
the Agency to consider paying training expenses for any employee
required by Federal or state regulations to complete certain
courses to maintain proficiency or certification. The Agency
asserts that Section 4 is nonnegotiable because it requires
management to assign work in violation of its rights under
section 7106(a)(2)(B). However, the second sentences in B and D
only require the Agency to consider financial aid to employees
for training without regard to whether employees would take the
courses during working hours. Therefore, we find in Sections 4B
and 4D that the second sentences do not interfere with
management's right to assign work and are negotiable. See VA,
Bronx Medical Center, 30 FLRA 706, 712 (Proposal 3) (proposal
requiring agency to consider employees' requests for financial
assistance for job-related courses held negotiable); VA Medical
Center Salisbury, 27 FLRA 52, 53-54 (Proposal 1) (proposal
requiring agency to consider appointing Union nominees to
investigatory committee held negotiable).
C. Employee Requests for Schedule Change are Negotiable
Section 4C would permit an employee to request a change in
his/her work schedule when the primary objective of
training is improvement of general skills, knowledge, and
abilities or career growth. This section states that an employee
"may request" a schedule change; management is not required to
grant the request. Therefore, as section 4C does not interfere
with any management right and the Agency makes no claim that it
violates any law, rule, or regulation, we conclude that it is
negotiable.
3. Section 5
a. Section 5A
Section 5A states that Facility Directors are authorized to
approve the absence of full-time employees to attend education
and training activities in accordance with Agency regulations
without charge to leave. We do not find that this statement
removes the section from the bargaining obligation. The sentence
does not assign a specific duty or responsibility to specified
management officials. Rather, the section merely acknowledges
that certain authority is vested in Facility Directors. Under the
section, Directors may decide to retain approval authority or may
delegate the approval function to any member of his or her
staff.
As we read Section 5A, it preserves management's right to
decide whether or not to approve employees' absences to attend
education and training activities. We also find that the
entitlement to administrative leave would arise after the Agency
has approved an employee's absence from work. In addition, we
note that this section states that approval of absences will be
consistent with Agency regulations. Thus, Section 5A is within
the Agency's duty to bargain. Fort Bragg Schools, 30 FLRA 508,
528-30, (Proposal 23, subsection d, second sentence and
subsection h) (where absence is approved by management,
proposal's requirement that employees receive administrative
leave held not to conflict with right to assign work). In
addition, see our discussion in Proposal 15.
b. Section 5B
Section 5B states that part-time staff "may" be granted
authorized absence to attend education and training activities.
In our opinion, this section clearly preserves management's right
to determine whether part-time employees should be assigned to
training. Thus, we find that this section preserves management's
discretion to assign work and is, therefore, within the Agency's
duty to bargain. See our discussion in Section 5A.
C. Section 5B(1)
In Section 5B(1), the first sentence states that the prior
approval of the Administrator, Deputy Administrator, Associate
Deputy Administrator, or Assistant Deputy Administrator is
required for employees to attend national conventions of
veterans' service organizations as an Agency representative. The
second sentence in 5B(1) states that such absences will be
without charge to leave.
Section 5B(1), the first sentence assigns the task of
approving or disapproving an employee's attendance at national
conventions of veterans' service organizations to various Agency
officials. This sentence would require that one of the Agency
officials listed perform a specific task. Therefore, we find that
this sentence is nonnegotiable.
However, the second sentence, which provides that employees
receive administrative leave to attend such conventions, is
negotiable because the entitlement to administrative leave would
arise after an Agency official approved an employee's absence
from work. See our discussion in Section 5A above.
d. Section 5B(2)
In Section 5B(2), the first sentence provides that Facility
Directors are authorized to approve full-time employees' absences
to attend professional meetings and conferences. This sentence
does not assign any specific function to Facility Directors. It
merely acknowledges that certain authority, which may be
delegated, resides in those management officials. Therefore, the
first sentence does not interfere with the right to assign work.
See our discussion of Section 5A of this proposal.
In Section 5B(2), the second sentence provides that absence
without charge to leave will be granted for travel to
professional meetings and conferences. The third sentence
specifies that the administrative leave allowed for travel
outside the continental United States will not exceed the time
required for air travel. As we have discussed previously, since
the Agency's right to determine whether employees may be absent
from work to attend professional meetings and conferences is
preserved, the requirement that employees be granted
administrative leave to attend is negotiable. See our discussion
in Section. 5A. Thus, we conclude that in Section 5B(2), the
first, second and third sentences are negotiable.
The next two sentences in section 5B(2) set forth procedures
for employees to follow for travel in connection with
professional meetings and conferences. Sentence 4 provides that
employees will obtain the approvals required by the Agency's
regulations in order to be granted authorized absence. Sentence 5
requires that requests for authorized absence to attend
activities outside the United States be submitted to the Agency's
Central Office at least 60 days in advance of the activity's
starting date. These sentences do not mandate that management
assign an employee to attend professional meetings. Rather, they
merely require employees to proceed in a certain manner in
seeking approval for absences to attend professional meetings and
conferences. Therefore, we find that the procedures set out in
Section 5B(2), the fourth and fifth sentences are negotiable
under section 7106(b)(2) of the Statute.
e. Section 5B(3)
Section 5B(3) states that part-time staff may be granted
authorized absence to attend national conventions of veterans'
service organizations and professional meetings and conferences
if employees' attendance will benefit the Agency. This section,
like 5B, preserves management's right to decide whether or not to
authorize part-time employees' absence from work. Thus, we
conclude that Section 5B(3) does not violate management's right
to assign work and is within the Agency's duty to bargain. See
our discussion in Section 5A.
4. Section 6
Section 6 requires that evidence of completed training
furnished by an employee will be recorded in the employee's
official personnel folder. This proposal does not require that
the Agency assign training in violation of its right to determine
what work will be performed under section 7106(a)(2)(B). Inasmuch
as the Agency has not alleged that Section 6 interferes in any
other manner with its rights nor that it conflicts with a law,
rule, or regulation, we find Section 6 is within the Agency's
duty to bargain. See Patent Office Professional Association and
Patent and Trademark Office, Department of Commerce, 25 FLRA
384, 411 (1987) (Section 9.D.), petition for review filed sub
nom. Patent Office Professional Association v. FLRA, No. 87-1135
(D.C. Cir. Mar. 26, 1987) (proposal requiring management to
record time spent by an employee on a particular application held
to be a negotiable procedure).
5. Section 7
a. Requirement that Agency Consider Financial Aid to
Employees for Training is Negotiable
In Section 7 the first sentence would require the Agency to
consider paying an employee's expenses for job-related training.
The second sentence states that such consideration will be
subject to the availability of funds and training priorities. The
third sentence states that reimbursement will be according to
existing policies and regulations. We have considered a proposal
to the same effect as these sentences in section 2b of the
Analysis and Conclusions on this proposal. Therefore, based on
the reasoning and cases cited in that section, we conclude that
the first three sentences in Section 7 are negotiable because
they only require management to consider paying for employees'
training.
b. Equipment Use with Management's Approval is Negotiable
In Section 7 the fourth sentence would provide that with
local management's approval employees enrolled in job-related
courses may use agency-owned items such as calculators and
typewriters during nonduty hours. Since this proposal clearly
provides that the Agency retains discretion to approve or
disapprove the use of its equipment, we find this sentence is
negotiable. compare Overseas Education Association, Inc. and
Department of Defense, Office of Dependents Schools, 22 FLRA
351, 370-71 (1986), aff'd sub nom. Overseas Education
Association, Inc. v. FLRA, 827 F.2d 814, 820-21 (D.C. Cir. 1987)
(Proposal 14) (proposal nonnegotiable which required agency to
provide school with telephone, as it concerned technology,
methods, and means of performing the agency's work).
6. Section 8
Section 8 would require that the Agency give employees
reasonable advance notice of training seminars, workshops, etc.
We previously have held proposals requiring an agency to notify
employees of management actions to be negotiable as procedures
under section 7106(b)(2) of the Statute. See, for example, VA,
Bronx Medical Center, Dayton, 28 FLRA 435, 447 (Proposal 6)
(requirement that agency furnish employee written notice of
appointment with terms of appointment held negotiable); VA
Medical Center, Dayton, 28 FLRA 435, 447 (Proposal 7)
(requirement that agency furnish employee notice of promotion
actions held negotiable). Thus, we find that Section 8
is negotiable under section 7106(b)(2).
7. Section 9
Section 9 would require that job-related reference material
will be maintained at a location reasonably accessible to unit
employees. In our view, access to materials needed by employees
to perform their work is a matter falling within the scope of
conditions of employment as defined in section 7103(a)(14) of the
Statute. Consequently, if the section does not otherwise
interfere with management rights, it is within the duty to
bargain.
The Agency has not identified any of its rights with which
the section may conflict, nor are we able to find any such
conflict. The section does not require that management furnish
any particular job-related reference materials. Rather, the
proposal concerns reference materials deemed by management to be
required for employees' performance of their work. As to the
location of the reference material, it is unclear from the record
whether adoption of the proposed section would require that those
materials be relocated. If relocation were unnecessary, the
Agency would be required to show how continuance of its current
practice would interfere with the accomplishment of its work. See
American Federation of Government Employees, Local 644, AFL - CIO
and U.S. Department of Labor, Occupational Safety and Health
Administration, 21 FLRA 658, 660 (1986) (Occupational Safety and
Health Administration). If, on the other hand, the section would
require relocating the reference material, the Agency would be
required to demonstrate that the current location bears a
technological relationship to the accomplishment and furtherance
of its work and that the proposed relocation would interfere with
those purposes. Compare Occupational Safety and Health
Administration (Proposal 5), where a proposed relocation of a
library/ conference room was held to be nonnegotiable only upon
the agency's showing that the proposal interfered with its
internal security practices. Here, because the Agency has failed
to demonstrate any interference with the accomplishment of its
work or with any other reserved right, we find Section 9 to be
negotiable.
8. Section 11
Section 11 would require that the Agency provide training to
any unit employee whose position is adversely affected by
reorganization or changes in mission, budget, or technology in
order to assist in the placement of the employee in a vacant
position. Section 11 interferes with management's right
to assign work to employees, as it would require that the Agency
train employees if a downgrade or reduction-in-force (RIF)
occurred. However, the proposal, in our view, would not require
that an employee be placed in a vacant position in the event the
employee was laid off. The language of Section 11 states only
that training would "assist" in the placement of employees, and
the Agency has not argued that the section requires that
management fill existing vacancies. We conclude that Section 11
is outside the duty to bargain as violative of management's right
to assign work unless, as the Union argues, it constitutes an
"appropriate arrangement" within the meaning of section
7106(b)(3) of the Statute.
The Agency does not present any arguments concerning the
negotiability of Section 11. The Union asserts that it is
intended to mitigate the adverse effects of either an Agency
decision to reorganize or the consequences of a change in the
Agency's mission, budget, or technology. Specifically, the Union
seeks training for employees who would be downgraded or laid off
as a result of these events. We conclude that the provision is a
proposed appropriate arrangement for employees adversely affected
by the exercise of management rights within the meaning of
section 7106(b)(3). Kansas Army National Guard, 21 FLRA 24,
31.
Under the standards set forth in Kansas Army National Guard,
we must consider whether Section 11 is an appropriate arrangement
under the Statute or whether it excessively interferes with the
Agency's right to determine its training needs and assign
employees accordingly. We recognize first that reorganizations
and changes in mission, budget, or technology are events beyond
employees' control. Moreover, the downgrades or RIFs which follow
these events have a severe impact on employees.
The Agency does not claim that Section 11 will excessively
interfere with its ability to assign work. Moreover, the plain
language of the proposal states that training will occur
"consistent with budget and staffing restrictions." Furthermore,
the record shows that the Union's intent is to preserve
management's discretion with regard to the training given to
adversely affected employees. The Union states specifically that
it does not intend to specify or limit the type of training that
the Agency will provide. Reply Brief at 45. Considering this
record, we conclude that the negative impact on management's
right to assign work is outweighed by the benefits to employees
adversely affected by a management reorganization or a change in
the Agency's mission, budget, or technology. See
American Federation of Government Employees, AFL - CIO, Local
2635 and Naval Communications Unit, Cutler, East Machias, Maine,
30 FLRA 41, 44-45 (1987) (Provision 1) (provision preserving
management's discretion to determine the extent and type of
training, the numbers and types of employees to be trained, given
available funding and training authority, and the methods and
means by which training will be accomplished held negotiable).
Accordingly, we find that Section 11 constitutes a negotiable
appropriate arrangement. See also Bureau of Engraving and
Printing, 25 FLRA 113, 140-43 (Provision 32).
In conclusion, we find the following portions of Proposal 24
nonnegotiable: Section 4A; in Sections 4B and 4D, the first
sentences; and in Section 5B(l), the first sentence. We also
conclude that the following portions are negotiable: Section 1A;
Section 3A; in Section 4B and 4D, the second sentences; Section
4C; Sections 5A and 5B; in Section 5B(1), the second sentence;
Section 5B(2); Section 5B(3); Section 6; Section 7; Section 8;
Section 9; and Section 11.
XXVI. Proposal 25
Article 33(a) - Probationary Employees - Title 38
The text of this proposal is found in the Appendix.
A. Positions of the Parties
The Agency argues that Sections 5, 6, 7, and 8 constitute
the assignment of work to professional standards board (PSBs) and
are, therefore, nonnegotiable. (We note that the proposal does
not include a Section 7 or 8.) Additionally, the Agency argues
that the proposal establishes procedures for the PSBs. In the
Agency's view, the boards' procedures constitute methods and
means of performing the VA's work. Thus, the Agency argues that
the Union's attempt to negotiate procedures for professional
standards boards interferes with its rights under section
7106(b)(1).
The Union argues that Section 1 simply defines the status of
a probationary employee and does not violate any management
right. Sections 5 and 6, according to the Union, constitute
negotiable procedures under section 7106(b)(2). The Union also
contends that the Agency has not shown the required nexus between
its patient care mission and procedures of the PSBs to establish
that the boards' procedures constitute methods and means of
performing the Agency's work. Finally, the Union states that the
notice required in Section 6(4) does not violate
management's right to assign work.
B. Analysis and Conclusion
Proposal 25 provides for a definition of the probationary
period and it further provides procedural protections for
employees whose performance during the probationary period is the
subject of a review by a PSB. We find that it would directly
interfere with management's right to "hire" under section
7106(a)(2)(A).
In United States Department of Justice, Immigration and
Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983),
the D. C. Court of Appeals held that the termination of
probationary employees could not be included within a negotiated
grievance procedure. The court found that in the Civil Service
Reform Act of 1978, Congress expressly preserved an agency's
discretion to remove summarily a probationary employee.
Congressional intent, according to the court, was to create a
scheme in which probationary employees would receive some minimal
due process, such as a limited explanation of the reasons for
discharge, while preserving from review an agency's decision to
remove a probationary employee.
In Service Employees' International Union, Local 556, AFL -
CIO and Department of the Navy, Marine Corps Exchange Kaneohe
Bay, Hawaii, 26 FLRA 801, 804-05 (1987), we found that the
probationary period serves the same purpose for non - Title 5,
non-appropriated fund employees that it does in the competitive
service. That is, the probationary period is a trial employment
period for the purpose of assessing a newly-hired individual's
conduct, reliability and actual ability to function in a
position. It is part of the process by which management
determines whether a newly-hired employee should be retained
permanently. It provides the agency with an opportunity to make
such judgment prior to affording employees procedural protections
established under agency regulation or collective bargaining
agreements to cover termination for unacceptable work performance
or conduct. We concluded that, as in the competitive service, the
probationary period for non - Title 5 employees is inextricably
linked with summary termination.
Similarly, we find that the Title 38 employees, for whom
this proposal is intended, are subject to summary termination
pursuant to the requirements of 38 U.S.C 4106, which provides
that such employees "shall be reviewed from time to time by a
board, appointed in accordance with regulations of the
Administrator, and if said board shall find him not fully
qualified and satisfactory he shall be separated from the
service." Because Title 38 employees serving in a probationary
period are subject to summary termination, the Agency's right to
hire an employee includes the right to terminate that employee
during the probationary period. That is, when an employee is
hired for a position which includes a probationary period, the
hiring process is not complete until that employee has completed
the probationary period and has demonstrated to management's
satisfaction the ability to perform in that position. Until that
time, the employee is subject to summary termination.
We find, therefore, that the probationary period, including
summary termination, constitutes an essential element of the
Agency's right to hire under section 7106(a)(2)(A).
Moreover, two Circuit Courts of Appeal have held that
Congress intended that 38 U.S.C. 4106 provide only limited review
prior to the termination of a probationary employee hired under
Title 38. In Giordano v. Roudebush, 617 F.2d 511, 517 (8th Cir.
1980), the 8th Circuit Court of Appeals held that "the limited
Board review of a probationary physician's professional
competency is the only procedure available to him . . . in
contrast to the plenary hearing in the case of a tenured employee
required under section 4110, a probationary physician is entitled
to only a summary procedure." In an earlier case, the 10th
Circuit Court of Appeals concluded that "it was the intent of
Congress by the words of the statute itself that a probationary
employee about to be separated from the service need only to be
given the summary hearing contemplated by 4106(b)." Kenneth v.
Schmoll, 482 F.2d 90, 94 (10th Cir. 1973).
Proposal 25 would directly interfere with the Agency's
exercise of its right to hire. It would provide a definition of
the probationary period and mandate that the PSBs follow certain
procedures in reviewing the performance of probationary employees
and, therefore, would require that the Agency grant the
probationary employees more than a summary review. While the
Agency may include in its regulations procedures for the PSBs to
follow, such as a statement to an employee as to why his services
are considered deficient and notice that he may present a
statement to the board, requiring the Agency to adhere to such
procedures is inconsistent with the Agency's right to hire under
section 7106(a)(2)(A) of the Statute.
XXVII. Proposal 26
Article 36 - Miscellaneous Provisions.
Section 5.
The VA will maintain an Official Personnel Folder on each
employee. An employee may review his/her Official Personnel
Folder upon request. A designated representative must have the
employee's written authorization to review the folder if not
accompanied by the employee. Management may require that a
management official or designee be present when the Official
Personnel Folder is being reviewed. A copy of any document in the
folder will be provided to the employee upon request if
permissible by law and regulation. If a document which is, or may
be considered to be derogatory to an employee (e.g., a memo for
record, warning letter, etc.) is placed in an employee's
personnel folder, the employee will be provided a copy at the
time the document is included in the Official Personnel Folder.
In this regard, an employee may make a written rebuttal to any
such document in his/her personnel folder and have it placed in
the folder. Copies of employee grievances shall not be filed in
an Official Personnel Folder. Proposed notices and decision
letters on suspensions and/or adverse action will be filed in an
Official Personnel Folder. In no case will an employee be denied
access to a record which is personally identifiable to him/her,
where the law provides for access; however, it is recognized that
the process for review of records may be governed by laws, rules,
regulations and/or policy.
A. Positions of the Parties
The Agency's sole claims concerning this proposal have been
rejected in Part II of this decision. The Union contends that the
proposal does not interfere with any management right under the
Statute and should be held to be negotiable.
B. Analysis and Conclusion
Section 5, the only disputed part of Article 36, provides
for the maintenance of, and access to Official
Personnel Folders. It also identifies certain items which will,
and will not be contained in the Folder. Subpart C, part 293 of
Title 5 of the Code of Federal Regulations concerns Official
Personnel Folders. Those regulations are applicable to "each
executive department and independent establishment of the Federal
Government, each corporation wholly owned or controlled by the
United States, and with respect to positions subject to civil
service rules and regulations, the legislative and judicial
branches of the Federal Government." 5 C.F.R. 293.301. The Agency
does not deny the applicability of these regulations to the
maintenance of its personnel files.
Furthermore, we find that these regulations are
"Government-wide" within the meaning of section 7117(a) of the
Statute. Government-wide regulations are those which are binding
upon most, but not necessarily all segments of the executive,
legislative and judicial branches of the Federal Government. That
is, the regulations apply to the Federal civilian workforce as a
whole, although they need not apply to every civilian employee.
IRS, New Orleans District, 3 FLRA 748. The cited regulations
meet this test and are Government-wide.
The issue, therefore, is whether the disputed proposal
complies with those regulations. 5 C.F.R. 293.302 and 306 require
agencies to establish and maintain Official Personnel Files for
their employees. Hence, Proposal 26 does not obligate the Agency
to undertake a responsibility not already assigned to it by the
regulation. Our review of subpart C of part 293 reveals no
apparent inconsistency between those regulations and the balance
of Proposal 26. Furthermore, we note that the proposal itself
requires that it be interpreted and applied in a manner
consistent with governing law, rules, regulations and policy.
Therefore, Proposal 26 is negotiable. See American Federation of
Government Employees Small Business Administration Council of
Locals and Small Business Administration, 6 FLRA 356 (1981).
XXVIII. Order
The petition for review as to the following proposals or
sentences is dismissed: Proposal 2, Section I (the first
sentence), Section 2 (the third and fourth sentences), Section 4
(the second sentence), and Section 5; Proposal 4, Section 1,
Section 3 (the fifth and sixth sentences), Section 8, Section 11
(the second and fifth sentences of subsection C); Proposal 5,
Section 3; Proposal 7, Section 8; Proposal 8, Section 1; Proposal
11 (the second paragraph); Proposal 17 (the last sentence in the
second unnumbered paragraph undeR Section 2B); Proposal
18, Section 5 and section 6 (the second sentence); Proposal 19,
Sections 1 and 5, Section 6 (the first and second sentences),
Section 7 (the first sentence of the first paragraph; the second
paragraph; the third and fourth sentences of the eighth
paragraph; the second sentence of the ninth paragraph; the tenth
paragraph; the eleventh paragraph; and the thirteenth paragraph);
and Section 8 (the first paragraph of Part B); Proposal 20,
Section 2B; Proposal 21, Section 1 (the first sentence, but only
as it applies to nurses working under the Baylor Plan, and the
third and fourth sentences), Sections 2, 4, 5, 6, 7 and 8 and
Section 10 (the third sentence); Proposal 22, Section 9; Proposal
23, the first and second paragraphs; Proposal 24, Section 4A,
Section 4B (the first sentence), Section 4D (the first sentence),
and Section 5B(1) (the first sentence); and Proposal 25.
The Agency shall, upon request or as otherwise agreed to by
the parties, bargain on the following proposals or sections:
Proposal 1; Proposal 2, Section 1 (the second, third and fourth
sentences), Section 2 (the first and second sentences), Section 3
and Section 4 (the first sentence); Proposal 3; Proposal 4,
Section 2, Section 3 (the first, second, third and fourth
sentences), Sections 4, 5, 6, 7, 9, and 10, Section 11 (except
for the second and fifth sentences of subsection C); Proposal 5,
Sections 1, 2, 4, 5, 6, 7, 8 and 9; Proposal 6; Proposal 7,
Sections 1, 2, 3, 4, 5, 6 and 7; Proposal 8, Section 2; Proposal
9; Proposal 10, Proposal 11 (except for the second paragraph);
Proposal 12; Proposal 13; Proposal 14; Proposal 15; Proposal 16;
Proposal 17 (except for the last sentence in the third paragraph
under section 2B); Proposal 18, Sections 1, 3 and 4, Section 6
(except for the second sentence); Proposal 19, Sections 3 and 4,
Section 6 (except for the first and second sentences), Section 7
(except for the first sentence of the first paragraph; the second
paragraph; the third and fourth sentences of the eighth
paragraph; the second sentence of the ninth paragraph; the tenth
paragraph; the eleventh paragraph; and the thirteenth paragraph),
and Section 8 (except for the first paragraph of Part B);
Proposal 20, Section 3E; Proposal 21, Section 1 (the first
sentence except as it applies to nurses working under the Baylor
Plan, and the third sentence), and Section 10 (the first and
second sentences); Proposal 22, Sections 4, 5, 6, 7B, 8, 10 and
11, including the sections concerning flexitime and modified
workweek; Proposal 23, the third paragraph; Proposal
24, Sections 1A and 3A, Section 4B (the second sentence), Section
4C, Section 4D (the second sentence), Sections 5A and 5B, Section
5B(1) (the second sentence), Sections 5B(2) and 5B(3), Sections
6, 7, 8, 9 and 11; and Proposal 26. 1
Issued, Washington, D.C., February 23, 1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
Proposal 1
Article 6 - Grievance Procedure
Section 1. Common Goals. The Employer and the Union
recognize the importance of settling disagreements and disputes
promptly, fairly, and in an orderly manner that will maintain the
self respect of the employee and be consistent with the
principles of good management. To accomplish this, every effort
will be made to settle grievances expeditiously and at the lowest
level of supervision.
Section 2. Scope. Grievance means any complaint --by any
employee concerning any matter relating to the employment of the
employee; by the Union concerning any matter relating to the
employment of any employee; or by any employee, the Union, or the
Agency concerning--the effect or interpretation, or a claim of
breach, of a collective bargaining agreement including
supplemental agreements; or any claimed violation,
misinterpretation, or misapplication of any law, rule, or
regulation affecting conditions of employment.
This grievance procedure does not apply to:
(a) any claimed violation of 5 USC, Chapter 73, subchapter
III, relating to prohibited political activities;
(b) retirement, life insurance, or health insurance;
(c) a suspension or removal under 5 USC 7532;
(d) any examination, certification, or appointment;
(e) the classification of any position which does not result
in the reduction in grade or pay of an employee.
(f) Disciplinary actions for Title 38 employees (Note: This
exclusion is included subject to any pursuit of this issue to
negotiability appeal or litigation. Should the Union prevail, the
contract will be reopened to reconsider this exclusion.).
Employees have the option of raising the following matters
under a statutory appeals procedure or the negotiated grievance
procedure but not both: adverse actions (5 USC 7512), actions
based on unacceptable performance (5 USC 4303), and
discrimination (5 USC 2302(b)(1)). An employee shall be deemed to
have exercised his option under this section to raise the matter
under either a statutory procedure or the negotiated procedure at
such time as the employee timely initiates an action under the
applicable statutory procedure or timely files a grievance in
writing, in accordance with the negotiated procedure, whichever
event occurs first.
Section 3. Discussions between an employee and an EEO
Counselor would not preclude an employee from opting to select
the negotiated grievance procedure if otherwise timely.
Section 4. A grievance may be undertaken by the NFFE
Veterans Administration Council, by an NFFE Local, by an employee
or a group of employees or management. Employees in such
grievances may be represented by a NFFE Local, the NFFE Council
or a NFFE representative, or (in the case of an employee) other
representative approved in writing by the Union.
Any employee or group of employees may personally present a
grievance and have it adjusted without representation by the
Union provided that the Union will be given an opportunity to be
present at all discussions with the employee and/or his
representative concerning the grievance. A reasonable amount of
time during working hours will be allowed for employees and the
union representative to prepare, discuss and present grievances
under this procedure, but no time for inter-facility travel or
travel or per diem expenses will be authorized for these
representational activities. Any such resolution must be
consistent with the terms of this agreement and supplemental
agreements. In exercising their rights to present a grievance,
employees and their representative(s) will be free from
restraint, coercion, discrimination or reprisal.
Section 5. Employees and/or their representative(s) are
encouraged to discuss issues of concern to them informally with
their supervisors at any time. Likewise, employees and/or their
representative(s) may request to talk with other appropriate
officials about items of concern without filing a formal
grievance if they choose.
Section 6. The following procedures are established for the
resolution of grievances by an employee or group of employees or
a NFFE Local:
A. Step One: The grievance shall first be taken up by the
grievant (and representative or steward, if he/she elects to have
one) with the employee's immediate supervisor or the lowest level
management official with authority to render a decision. The Step
One grievance will be initiated in writing within 30 calendar
days of the incident that gave rise to the grievance, unless the
grievant could not reasonably be expected to be aware of the
incident by such time. In that case, the grievance must be
initiated within 30 calendar days of the date that the grievant
became aware of the incident. A grievance concerning a continuing
practice or condition may be initiated at any time. In the case
of disciplinary or adverse action, a grievance must be initiated
within 30 calendar days of receipt of the written decision from
the deciding official. Either party may request that a meeting be
held on the matter. If the grievant wishes a meeting, the request
will be included in the written grievance. If such a meeting is
requested, it will be held prior to the decision. A decision will
be given to the grievant in writing within ten calendar days
after presentation of the grievance. Every effort shall be made
to insure that the decision is clearly communicated and
understood. Included with such decision shall be a written
statement indicating the grievant's right to submit a grievance
to Step Two.
B. Step Two: If the grievant is dissatisfied with the
decision given at Step One, the grievant (and/or his/her
representative) may submit the grievance under the second step.
Such notification will be in writing and must be submitted
within ten calendar days of receipt of the first step
decision. The grievance at Step Two will be submitted to the
Division Chief/Service Chief. If the Division Chief/Service Chief
is the immediate supervisor, the grievance will be submitted to
the next higher management official below the Director. Either
party may request that a meeting be held on the matter. If the
grievant wishes a meeting the request will be included in the
written grievance. If such a meeting is requested it shall be
held prior to the decision. The management official will provide
the employee with a written decision on the issue within ten
calendar days after receipt of the grievance. Included in such
decision shall be a written statement indicating the grievant's
right to submit a grievance to Step Three.
C. Step Three: If the grievant is dissatisfied with the
decision given in Step Two, the grievant (and/or his/her
representative) may submit the grievance in writing to the
Director of the Veterans Administration facility where the
grievance originated within ten calendar days after receipt of
the decision on the Step Two grievance. The Director or his/her
designee will furnish the employee with a written acknowledgement
of receipt. The Director will meet with the aggrieved employee if
requested and a written decision will be given to the grievant
within 14 calendar days after presentation of the grievance.
Included with such decision shall be the reasons for the decision
and a statement indicating the grievant's right to request the
Union to advance the grievance to arbitration.
Section 7. The parties may mutually agree to extend any time
limits of this procedure. If the due date at any stage falls on
Saturday, Sunday, or government holiday, the due date shall be
the next business day. Management agrees to respond to grievances
within the agreed to time period. However, if in any case
Management is unable to do so, the grievant will be notified of
the reasons for any delay and an extension of time will be
requested. The grievant will have the option of proceeding to the
next step of the grievance procedure or granting an extension of
time. If the next step is arbitration and Management
does not reasonably justify the delay, the remedy sought shall be
immediately granted if the employee has a written acknowledgement
of receipt and the remedy is legal and reasonable under the
circumstances of the grievance. If the grievant fails to pursue a
grievance within the prescribed or extended time limit, the
grievance may be considered resolved in the last step unless the
grievant is able to reasonably justify his/her failure to meet
the time limits.
Section 8. One or more steps of the grievance procedure may
be bypassed and the grievance initiated at a higher step (but no
higher than Step Three) if the substance of the grievance
directly concerns a specific action, directive, or decision made
at a higher level than the initial step(s) of the grievance
process. In cases where a grievance is initiated at Step Two or
Three, the time limits of Step One will apply.
Section 9. For VCS employees, Step Two will be eliminated at
those facilities where two levels of supervision are not present.
In Step Three, the Veterans Canteen Service Field Director, or
his/her designee, will be the deciding official.
For National Cemetery System employees where there are two
levels of supervision, the immediate supervisor will be the
appropriate official at Step One; Step Two will be eliminated and
Step Three will be the Cemetery Director. Where the Cemetery
Director is the only level of supervision, the time limits of
Step One will apply to grievances pursued to the Director and
his/ her decision may be pursued to arbitration in accordance
with Article 7.
Section 10. At any step of the negotiated grievance
procedure, when any management deciding official designates
someone to act on his/her behalf, that designee will have
complete authority to render a decision at that step and will
render the decision. The designee will never be someone who
decided the issue at any previous step.
Section 11. It is agreed that when a group has an identical
grievance, it will be considered in the same manner as an
individual complaint of one employee and the decision will be
binding on all identical cases.
Section 12.
A. A grievance affecting more than one facility may be
brought by the VA Council within 30 calendar days of an incident
(or awareness of an incident) which gave rise to the grievance. A
grievance concerning a continuing practice or condition may be
brought at any time.
B. The appropriate official for these grievances will be the
designated representative of VA Central Office from the
appropriate Departments or staff offices.
C. The VA Central Office designee will render a written
decision within 30 calendar days of receipt.
Section 13. VA Central Office may file a grievance with the
President of the NFFE Council. Facility Directors may file a
grievance with a local NFFE President. Grievances must be
initiated in writing within 30 calendar days of an incident
which gave rise to the grievance. A grievance concerning a
continuing practice or condition may be brought at any time. The
Veterans Administration NFFE Council or NFFE Local will have 30
calendar days from receipt of the grievance in which to render a
decision in writing.
Section 14. In the event either party should declare a
grievance non-grievable or non-arbitrable, the original grievance
shall be considered amended to include this issue. The employer
agrees to raise any question of grievability or arbitrability of
a grievance no later than the time the Step Three decision is
given. If arbitration is invoked, all disputes of grievability or
arbitrability shall be referred to the arbitrator as a threshold
issue in the related grievance.
Proposal 2
Article 12 - Promotion and Assignments (For Title 38
Employees)
Section 1. Promotion by Grade. (1) The Professional
Standards Boards, as established, will act on advancement for
grade promotions for all Title 38 USC employees. (2) Employees
will be considered for promotion to the next higher grade when
they meet the requirements specified in MP-5, Part II, Chapter 5,
paragraph 6. (3) Where appropriate, waiver of experience and/or
degree requirements will be considered. (4) The consideration for
promotion shall be based on merit principles.
Section 2. Special Advancement for Achievement. (1) Title 38
employees who have achieved excep-tional and recognized
professional attainment through speciality board, certification,
election to an office in a national professional organ-ization,
or professional attainments in research or contributions to the
advancement of medical sciences and patient care worthy of
national or international recognition will be considered for
advancement within the grade. (2) The advance may be from one to
five steps. (3) The recommendation shall be made by petition from
the employee or immediate professional administrative supervisor
to the Professional Standards Board. (4) Said petition will be
forwarded to the appropriate Board within 14 calendar days after
receipt by supervisor and notification to employee that said
petition was forwarded and date forwarded (sic).
Section 3. Advancement for Performance. Title 38 employees
who have demonstrated a sustained high level of performance and
professional com-petence over and above that normally expected of
employees in the particular grade and profession, or who have
made noted contribution in some phase of their profession, will
be considered for a special advancement for performance.
Section 4. (1) Title 38 employees will receive a copy of
immediate professional administrative supervisors recommendation
at same time as the Professional Standards Board (sic).
(2) All special advancement requests will be acted upon at the
first Professional Standards Board meeting after receiving
recommendation.
Section 5. Absences to undergo examinations by an approved
speciality or certification board will be authorized. The amount
of time author-ized will include travel to and from place of
examination.
Proposal 3 (Section 6 of this proposal was withdrawn by the
Union)
Article 14(a) - Leave as it Applies to Title 38
Annual Leave
Section 1. (1) Annual leave shall be earned in accordance
with appropriate statutes and regulations. (2) The Agency shall
allow each employee to schedule annual leave as she or he
desires, subject to approval by the appropriate official based on
workload and staffing needs. (3) Approving officials must give
special consideration to employees with emergency situations. (4)
Provisions concerning methods of resolving disputes involving
conflicts of leave schedules are matters for negotiation in local
supplemental agreements. (5) When making routine request for
annual leave, the employee need not state the reason for leave
requests. (6) It is understood that when leave is approved in
advance for extended periods (such as for vacations and the like)
such approved leave will not be changed except for emergencies.
(7) Management realizes the importance to employees to take their
leave once it has been scheduled or approved for other than
vacations. (8) Supervisors thus should attempt to avoid
cancelling or changing such leave.
Section 2. Full - Time Nurses, PAs, and EFDAs and Part -
Time Employees. The minimum charge of annual leave for these
employees is 1/4 hour and multiples thereof. When leave is
charged because of absence from duty or tardiness, the employee
will not be required to work during the period covered by the
leave.
Section 3. Procedure for Requesting Annual Leave.
A. Annual leave will be requested in advance by all
employees except when unusual or unforeseen circumstances prevent
the employee from making the request in advance. Under such
circumstances, the employee will notify, as soon as possible, the
person authorized to approve leave.
B. Requests for annual leave not in excess of 3 days may be
made verbally. If the request is approved, the employee will
report the amount of leave to be taken to the unit timeclerk who
will make proper posting daily on the time and attendance report.
Where practicable, the employee will be required to initial the
time and attendance report prior to the commencement of the leave
period. Requests for leave of more than 3 days will be made on SF
71, Application for Leave, and will be submitted in advance to
the person authorized to approve leave.
Section 4. Advanced Annual Leave.
A. Annual leave may be advanced at any time during the
calendar year.
B. All credits of annual leave which become due while there
is an indebtedness of annual leave will be applied to the
reduction of the indebtedness.
Section 5. Leave in Connection With Travel.
A. Employees traveling at Government expense are in a duty
status for the period required to perform the travel authorized
unless the total elapsed travel time is excessive. If travel is
interrupted or delayed for the convenience of the employee, leave
will be charged for the period of interruption or delay. When use
of privately owned conveyance is authorized or approved as being
advantageous to the Government, and the employee uses excessive
traveltime to enable the individual to be absent from assigned
duties for such purposes as the taking of leave or the
performance of circuitous travel, leave shall be charged for the
excessive time. The period to be charged to leave will be based
on the facts in each case.
B. Traveltime used to transfer from one facility to another,
when the transfer is arranged for reasons other than for the
convenience of the Government, will be charged to annual leave or
to leave without pay when annual leave is not available.
Section 7. Career residents accrue annual leave at the rate
of 30 days per leave year. However, they normally will not be
granted over 15 days of annual leave during each year of training
except under unusual or emergent (sic) circumstances.
Section 8. Full - Time Physicians, Dentists, Podiatrists and
Optometrists.
A. Minimum Charge. The charge of annual leave for these
employees is 1 calendar day. Charges for leave in excess of 1 day
will be in multiples of 1 calendar day. When a scheduled day's
work extends over portions of 2 calendar days, leave will be
charged for the day on which the greater part of the day's work
falls, or for the first day when the day's work is equally
divided between 2 calendar days.
B. Method of Charge. The conditions of duty, leave, and
administrative nonduty days which prevail during any one week
(Sunday through Saturday) will determine the nature of the charge
to annual leave which is made for absence during that particular
week in applying the provisions below, with the one exception as
indicated in subparagraph (3) below. It is immaterial for the
application of these provisions whether or not the administrative
nonduty days (a) fall on weekends, (b) are consecutive days of
the week, or (c) are consistently the same 2 days of each week.
(1) If no duty is performed during the workweek, the
employee will not be authorized any administrative nonduty days,
and the entire 7 days of the workweek (Sunday through Saturday)
will be charged to annual leave. If a holiday or an
in-lieu day occurs in the calendar week, that day will not be
charged to annual leave.
(2) If duty is performed on at least I or more days during
the workweek, any approved periods of annual leave during that
same week will be charged on a day-for-day basis, subject to the
conditions of subparagraph (3) below.
(3) All administrative nonduty days which fall wholly within
a period of approved annual leave will be charged to annual
leave. Holidays or in-lieu days will not be charged to annual
leave.
(4) Examples of Charge.
a. Employee "X" has a scheduled tour of duty Monday through
Friday and requests 2 weeks' annual leave. The first duty day
missed will be a Monday and the last duty day missed will be a
week from the following Friday. Applying subparagraph (1) above,
no duty being performed in either of the 2-week periods, then all
7 days (Sunday through Saturday) of each week is charged to
annual leave. Employee "X" therefore, is charged 14 days annual
leave.
b. Employee "Y" is scheduled to have Wednesday and Thursday
as administrative nonduty days during a particular week. Employee
works on a Sunday and takes annual leave Monday through Saturday
of that week. Applying subparagraph (3) above, the entire 6-day
period, Monday through Saturday, would be charged to annual
leave.
C. Employee "Z" has Sunday and Monday (the first 2 days of
the week) scheduled as administrative nonduty days. On Tuesday
morning, "Z" calls in by telephone and requests annual leave for
the remaining days of the week, Tuesday through Saturday. If this
request is granted, then no duty would be performed during that
workweek, and applying subparagraph (1) above, all 7 days of the
week would be charged to annual leave.
d. Employee "A" has a scheduled tour of duty Monday through
Friday and requests annual leave for the entire week. The first
duty day missed will be Monday and the last duty day missed will
be Friday, which is a national holiday. Since no duty is
performed during the workweek, Sunday through Saturday, the
charge to annual leave for employee "A" is 6 days (Sunday through
Thursday and Saturday) as provided in subparagraph (1) above. The
holiday will not be charged to annual leave.
Section 9. Disposition of Leave on Transfer, Separation, or
Retirement.
A. Lump - Sum Leave Payments. The provisions of 5 U.S.C. ch.
55, subch. VI, which provide for lump-sum payment for annual
leave, are for application to employees appointed under 38 U.S.C.
ch. 73. Lump-sum payments are based on the amount of annual leave
to the credit of the employee on the date of separation. There is
no authority to grant annual leave immediately prior to
separation when it is known in advance that the employee is to be
separated, except where the exigencies of the service require
such action (34 Comp. Gen. 61).
B. Recredit of Leave - Different Leave System. The OPM
(Office of Personnel Management) is authorized by 5 U.S.C. 6308
to regulate on the transfer and recredit of leave when different
leave systems are involved. Therefore, FPM Supplement 990-1, book
III, Civil Service Regulations 630.501 and 630.502, are
applicable to employees covered by this Chapter. (See DM&S Supp.,
MP-4, Part II, par. 1D.05 for conversion formula.)
C. Disposition of Annual Leave Account
(1) Changes During Employment in DM&S
a. When an employee is serving in an appointment which
provides for leave accrual, and is subsequently converted or
appointed without a break in service to another type of
appointment which also provides for leave accrual, accumulated
and accrued annual leave will be credited to the
employee's account irrespective of differences in accrual rates.
For example, an employee serving in an appointment under section
4104(1) who is converted to an appointment under section 4114(b)
as a resident will have the leave carried under the section
4104(1) appointment credited to the leave account under the
latter appointment.
b. An employee converted to a position in which no leave is
earned will be given a lump-sum payment as provided in
subparagraph A above.
C. Graduate nurse technicians employed in DM&S are covered
by 5 U.S.C. ch. 63. If the appointment of the graduate nurse
technician is converted to a full-time nurse in DM&S during the
biweekly pay period, the individual will be considered in a
graduate nurse technician status for leave purposes until the end
of such pay period. Annual leave will be credited under the leave
system for nurses from the beginning of the first complete
biweekly pay period under the appointment as a registered
nurse.
Proposal 4 (Section 7F of this proposal was withdrawn by the
Union)
Article 14(a) - Leave as
Sick Leave
Section 1. Sick leave shall be granted to employees for any
of the following reasons:
A. When the employee is incapacitated for the performance of
duty because of sickness, injury, or pregnancy and confinement;
B. For medical, dental, or optical examination or
treatment;
C. When a member of the employee's immediate family is
afflicted with a contagious disease and requires the personal
care and attendance of the employee; or
D. When, through exposure to contagious disease, the
presence of the employee at the place of duty would jeopardize
the health of others.
E. The use of sick leave for contagious disease is
authorized in connection with quarantine, isolation, and
restriction of movement by the patient or employee. The
determination that the disease is contagious will be made by
health authorities having jurisdiction, whether the employee or
patient is at home or in some other area.
Section 2. Application for leave (SF 71) and a medical
certificate or equivalent is not required for a sick leave period
of three consecutive work days or less unless an employee has
been advised in writing of such requirement. Any such notice will
be preceded by a formal counseling session in which the employee
is advised of the specific reasons why sick leave misuse is
suspected and what actions may be taken if no improvement is
shown. All written notices shall explain in detail why the
requirement has been established and what actions must be taken
in order to get it removed. In all cases, the written notice
shall be reviewed with the employee no later than 6 months
afterward. If no sick leave misuse is shown during the six month
period, the requirement shall be removed and the notice removed
from all records. If for any reason the notice is continued, the
employee will be notified in writing of the reason for the
continuance. Use of all available leave or absence on approved
leave on many occasions does not in itself constitute misuse of
sick leave. A written application for sick leave (SF 71) is
required for absences for more than 3 days and will be filed
within 2 days after the employee's return to duty. This
application will be supported by a medical certificate or other
evidence administratively acceptable, e.g., where a doctor is not
available or where the employee's illness does not require a
doctor, proper certification by the employee on SF 71 will be
accepted instead. Medical certificates or other evidence of
illness which may be required will be submitted within 15 days
after the employee's return to duty. (Emphasis in original.)
NOTE: Employees may be required to furnish evidence of
illness to support approval of sick leave for periods of less
than 3 days when Management has reasonable evidence that a "sick
out" has occurred.
Under these circumstances, Management will make a reasonable
attempt to notify employees prior to their return to work that
they may need to furnish satisfactory evidence to support sick
leave. The Union will be notified of the evidence for
Management's suspicion that a sick out has occurred as soon as
possible.
Section 3. (1) It is the responsibility of an employee who
is incapacitated for duty to report or to have some responsible
person report his or her illness as soon as possible to the
supervisor, or designee. (2) This must be accomplished as early
as practicable on the first day or as soon thereafter as
possible. (3) An employee who expects to be absent more than one
day shall inform the supervisor of the approximate date of return
to duty, if possible. (4) If he or she does so, daily reports
will not be required. (5) An employee will not routinely be
required to reveal the nature of illness as a condition for
approval. (6) Failure to furnish the nature of illness will not,
in itself, serve as a basis for disapproval.
Section 4. Sickness During Annual Leave. When sickness
occurs during a period of annual leave of any employee, the
period of illness may be charged as sick leave and the charge
against annual leave reduced accordingly. Application for such
substitution of sick leave for annual leave will be made promptly
and will be supported by a medical certificate or other evidence
determined to be acceptable.
Section 5. Sick Leave During LWOP. When sickness occurs
during an approved period of LWOP and lasts three or more
consecutive days, the period of illness may be charged to sick
leave of any employee in accordance with provisions set forth
below. It is incumbent on the facility to inform the employee
when approving LWOP of the provisions of these subparagraphs with
particular emphasis on the following subparagraph:
Sick leave may not be granted during LWOP, but on actual
return to duty, substitution will be made for the period of
illness providing foregoing requirements are met. Under no
circumstances will sick leave be advanced to cover illness which
has occurred during a period of LWOP.
Section 6. The minimum sick leave charge for full-time
physicians, dentists, podiatrists, and optometrists is I calendar
day and multiples thereof. When a scheduled day's work extends
over portions of 2 calendar days, sick leave will be charged for
the day on which the greater part of the day's work falls, or for
the first day when the day's work is equally divided between 2
calendar days. No charge to sick leave will be made for absence
of these employees on administrative nonduty days occurring
immediately prior to a period of approved sick leave or following
the termination of sick leave. Sick leave will be charged,
however, for any administrative nonduty days occurring wholly
within a period of approved sick leave. Holidays and in-lieu days
granted, therefore, will not be charged to sick leave.
Section 7. Advanced Sick Leave.
A. A request for advanced sick leave will be supported by a
medical certificate.
B. A full-time employee who is injured in line of duty and
who has exhausted accrued and accumulated sick leave, and who is
not in receipt of employees' compensation benefits, may, at the
discretion of the approving official, be advanced sick leave not
in excess of the maximum outlined in MP-5, Part II, Chapter 7.
Advanced sick leave for this purpose may not exceed the amount
that can be earned by the end of the leave year for part-time
employees.
C. All accruals of sick leave which become due while an
employee is indebted for sick leave will be applied to the
indebtedness. Advanced sick leave may also be liquidated, at the
employee's request, by a charge against an equivalent amount of
annual leave provided.
D. The annual leave is substituted prior to the time it
would be forfeited.
E. The approving official would have been willing to grant
the annual leave had the employee requested it.
Section 8. Involuntary Sick Leave. Employees who because of
illness (mental or physical) are unable to perform their duties
may be placed on involuntary sick leave. Such sick leave will be
terminated when the employee presents himself or herself for duty
and it is determined by competent medical authority that the
individual is able to perform his/her duties.
Section 9. Prolonged Illnesses.
A. Employees who are not expected to return to duty because
of prolonged incapacitation will be granted all available sick
leave and such annual leave that cannot be included in lump-sum
payment.
B. Employees who can reasonably be expected to return to
duty after a prolonged period of incapacitation may be advanced
sick leave and annual leave or granted LWOP.
Section 10. Medical Examination for Employees Who are VA
Claimants or Beneficiaries. Employees who are ordered by proper
authority in VA to report for physical examination or observation
as claimant or beneficiaries of the VA will be granted sick
leave. "Authorized Absence" will not be granted for this
purpose.
Section 11. Credit and Recredit of Sick Leave.
A. Changes During Employment in DM&S. An employee serving in
an appointment which provides for leave accrual who is
subsequently converted or appointed without a break in service to
another type of appointment which also provides for leave accrual
will be credited with sick leave to the employee's account
irrespective of any difference in accrual rates.
B. Recredit of Sick Leave. Sick leave will be recredited to
an employee on reemployment after a break in service of not more
than 3 years. Sick leave will also be recredited to an employee
after being changed from a leave-earning to non-leave-earning
status in the service and later being returned to a leave-earning
status without a break in the service of more than 3 years.
C. Reemployment During Period Covered by Lump-sum Payment.
(1) An employee who previously served under the DM&S leave system
and is reemployed in the VA under an appointment within the
purview of the leave provisions of this chapter during the period
covered by lump-sum payment will refund to the VA an amount equal
to the compensation covering the period between the date of
reemployment and the end of the period covered by the lump-sum
payment. (2) It is the responsibility of the appointment officer
to ascertain if new appointees are entering on duty prior to the
expiration of leave represented by lump-sum payment. (3)
Collection of required refunds will be made by the employing
facility prior to employment. (4) When a hardship would be
imposed on a prospective employee by requiring refund of lump-sum
payment in full prior to reemployment, the individual may be
placed on the rolls and installment collections made by payroll
deductions. (5) Arrangements for such deductions will be approved
by the Fiscal Officer. (6) Installment deductions will be large
enough to permit complete repayment at an early date, and in no
event later than 6 months from date of reemployment. (7) The
amount of leave represented by the required lump-sum payment
refund will not be credited to the employee until the entire
indebtedness has been liquidated. (8) The employee will be
entitled to take leave earned subsequent to the date of
reemployment.
Proposal 5
Article 14 (a) - Leave as it Applies to Title 38
Administrative Leave or Excused Absence
Section 1. Consistent with agency policy, management
officials may grant absences from duty without charge to leave.
Some examples of activity for which excused absences may be
authorized are blood donor programs and participation in
conferences. Management may also grant excused absence when the
operations of a facility are interrupted by unusual situations
which would preclude the continued operation of said facility.
Such examples include:
Absence for Congressional Medal of Honor holders.
Duty connected injury or illness.
Change in facility.
Civil Defense and disaster activities.
Funerals.
Meetings with labor organizations and other groups.
Parades, ceremonies, and civic organizations.
Participation in civic organizations.
Participation in military funerals.
Representing labor organizations.
Voting and registration.
Weather and emergency situations.
VA placement matters.
Section 2. Rest and Relaxation. The Chief Medical Director
and Facility Directors or the professional person acting for then
are authorized to approve absence for not to exceed 24
consecutive hours for rest and relaxation for full-time
physicians, dentists, podiatrists, and optometrists who have been
required to serve long hours in the care and treatment of
patients.
Section 3. Examinations. Absences of physicians, dentists
and residents to undergo an American Specialty Board examination,
podiatrists and optometrists to undergo examination by an
approved specialty board, nurses to undergo examination for
certification by an appropriate national certifying body, and
physician assistants to undergo the official Physician Assistant
Certification Examination prepared by the National Board of
Medical Examiners and graduate nurse technicians for
registration, will be authorized. The amount of absence
authorized will not exceed the time actually required for taking
the examination and for travel to and from the place of
examination. Any additional absence will be charged to annual
leave, or LWOP if annual leave is not available.
Section 4. Medical Examinations.
A. No charge for absence will be made against the leave of
an employee who is designated by proper VA authority to report to
a VA Medical Center or other VA facility with medical facilities
for medical examination or observation to determine fitness to
remain on duty or for the purpose of recommending retirement from
civil employment.
B. No charge will be made for necessary absences of an
employee who is required to report for annual physical
examination, chest x-ray, or other types of medical examinations
required in connection with VA employment.
C. Employees ordered to undergo physical examinations to
determine their fitness for extended active duty in the Armed
Forces, and who do not receive military pay and allowances from
the Armed Forces for this period, will be excused without charge
to leave for a period not to exceed 1 workday. Absence
in excess of 1 workday will be charged to annual leave, or LWOP,
if annual leave is not available. Employees who receive military
pay and allowances from the Armed Forces will be charged annual
leave, or LWOP if annual leave is not available, for the entire
period of absence for this purpose.
Section 5. Medical Treatment. Employees may be excused for
visits to the dispensary or other emergency facility for
treatment of a minor illness.
Section 6. Administratively Required Vaccinations and
Immunizations. Time used for administratively required
vaccinations or immunizations will not be charged against
employee's leave.
Section 7. Injury in Line of Duty. An employee injured in
the performance of duty will not be charged leave when absent for
examination or outpatient treatment at a recognized dispensary or
by a Government physician authorized to handle such cases,
provided the employee has actually performed duty during some
part of that day. This does not apply, however, to employees who
report for such examination or treatment during a workday when no
work is performed by the employee. In such cases, sick leave may
be granted. Sick leave may be granted for additional absence for
treatment because of the injury at other than a recognized
dispensary or by other than a Government physician.
Section 8. Hearings Before Federal Boards, VA Boards and
Committees. Absence of employees required to appear before
Federal boards, before DM&S boards, or before other VA boards or
committees as witnesses or as participants in the matter under
consideration will be approved without charge against leave.
Section 9. Pending Emergency Suspension. When the
appropriate supervisory official determines that an emergency
suspension is necessary for a probationary or permanent employee
under the provisions of Chapter 4 or 8, the employee will
be notified that the employee may request and be granted
appropriate leave. If leave is not requested, the employee may be
suspended from duty and pay. When circumstances require immediate
action pending a decision to effect emergency suspension, the
employee may be placed in a nonduty status with pay for a period
not exceeding 3 duty days.
Proposal 6
Article 14 (a) - Leave as it Applies to Title 38
Holidays
Section 1. Holidays for VA employees will be those
established by statute or Executive Order.
Section 2. Management acknowledges that more liberal annual
leave approval may be appropriate on days before and after
holidays.
Section 3. There will be no restrictions on unit employees
in applying for scheduled vacations which include both Christmas
and New Years Day.
Section 4. In areas where 24 hour, 7 day a week staff is
necessary, holidays shall be divided into three groups as
follows:
Group 1: Memorial Day, Independence Day, Labor Day
Group 2: Washington's Birthday, Columbus Day, Veterans Day,
Martin Luther King's Birthday
Group 3: Thanksgiving Day, Christmas Day, New Years
The scheduling of holidays off (or days observed as
holidays) within each of the individual groups listed above shall
be equitably distributed consistent with the provisions of
section 6. Management shall strive to allow the maximum number of
employees off on holidays as staffing and workload requirements
permit, without charge to leave.
Section 5. Requests for holidays off in connection with
annual leave will be considered as exercising an option for the
holiday. Employees shall notify their supervisor of their
preference of holidays in the following manner:
Group 1: Requests for these holidays are to be submitted at
the time that annual leave is requested for prime vacation
time.
Group 2 and 3: Requests are to be submitted no later than 6
weeks before any given holiday.
Employees will be promptly notified of the decision on their
requests.
Section 6. If a supervisor determines that not all employees
who have indicated a preference for a given holiday can be
excused on that holiday, the conflict between employees shall be
resolved by preference being given in the following order:
A. whether the employee had the holiday off the previous
year
B. whether the employee has not had one holiday from the
group, otherwise
C. seniority based upon service computation date.
Section 7. An employee who works on a holiday will be paid
under controlling regulations and/or laws.
Section 8. Religious Holidays. While there is no official
observance of religious holidays, except those which may also be
national holidays, it is the policy of VA to permit, when
practicable, absence from work for those employees who desire to
observe religious holidays. Employees may, under provisions of
Public Law 95-390, approved September 29, 1978, and applicable
regulations, elect to work compensatory overtime for the purpose
of taking time off without charge to leave when their personal
religious beliefs require that they abstain from work during
certain periods of the workday or workweek, thereby avoiding an
annual leave or leave without pay charge.
Section 9. state and Local Holidays. If a facility is closed
on a State or local holiday because it is determined that Federal
work may not be properly performed as provided in MP-5, Part I,
Chapter 610, absence on such day is not chargeable to leave for
an employee of the facility. Such approved time off is considered
authorized absence without charge to leave.
Proposal 7
Article 14(a) - Leave as it Applies to Title 38
Leave Without Pay
Section 1. Employees who do not have leave to their credit
and wish to take leave for emergencies or other necessities may
be granted leave without pay upon request. Employees may also be
granted leave without pay upon request if they have leave to
their credit but for some reason choose not to take it. Leave
without pay may be granted on an extended basis for educational
purposes, while awaiting action on a disability retirement or
OWCP claim, and may be granted while serving as an officer or
representative of NFFE or the VA Consolidated Council when
involved in matters other than those covered by official time.
Requests will be considered on an individual basis. Leave without
pay may be granted for other reasons consistent with agency
policy. The employer will notify each employee of the effect that
taking a period of extended leave without pay (more than 30
days) would have upon his/her employment status, promotion, and
benefits. This will be done prior to the time the leave is
scheduled to commence and is actually taken when the leave is
requested in advance.
Section 2. Leave without pay is a temporary nonpay status
and absence from duty to be granted only on the employee's
request. The authorization of LWOP is a matter of administrative
discretion. An employee cannot demand that LWOP be granted as a
matter of right except in the case of disabled veterans who are
entitled to
LWOP if necessary for medical treatment under Executive
Order 5396; and reservists and National Guardsmen who are
entitled to LWOP if necessary to perform military training
duties.
Section 3. Facility Directors, or their designees, may
approve LWOP for employees under their jurisdiction who occupy
noncentralized positions and LWOP for 30 days or less for
employees at their facilities who occupy centralized positions.
Requests for LWOP or extensions of LWOP which exceed the above
authorizations require approval of the Chief Medical Director or
designee, except as indicated in Section 4 below.
Section 4. Employees who are disabled on the job and file
claim with the OWCP (Office of Workers' Compensation Programs)
may be granted LWOP for the entire period of absence from duty,
without prior approval of Central Office. LWOP may also be
granted without prior approval in cases of employees who have
made application for disability retirement. LWOP in these
circumstances may be granted until it is judged that the employee
will not be able to return to duty and may be granted regardless
of whether or not the employee has annual leave. If the disabled
employee occupies a centralized position, the Chief Medical
Director will be apprised promptly of the facts of the case
including a recommendation for a replacement.
Section 5. Substitution of LWOP for Annual or Sick Leave. An
employee who has used sick leave or annual leave pending
adjudication of an OWCP claim, which is later approved, should be
informed by the personnel office about procedures for "buying
back" the leave. This can be accomplished by the employee's
election to be placed in a nonpay status for the period and by
the employee's authorization for the OWCP to reimburse the agency
for leave used based on compensation entitlement (with the
employee receiving or paying the difference). The substitution
should be made promptly and the OWCP will be notified of proposed
change in the employee's last day in pay status. For leave record
purposes, the request for substitution must be made within I year
of approval of the OWCP claim, unless it is
administratively determined that the employee was prevented from
exercising the employee's option because of the disability which
gave rise to the claim. In such case, the employee may exercise
the option within 1 year of the time it is determined that the
employee has sufficiently recovered from the disability to enable
the employee to make a reasoned decision. The employee's election
should be in writing and is not subject to revocation.
Section 6. The minimum charge for LWOP for full-time
physicians, dentists, podiatrists, and optometrists will be 1
calendar day and will be charged in the same manner as annual
leave. The minimum charge for full-time nurses, PAs and EFDAs and
part-time employees will be a quarter hour (15 minutes).
Section 7. Conditions Which Will be Met for Approval of
Leave Without Pay. Except for the employees indicated in Sections
2 and 4 above, LWOP will not be approved unless the conditions
set forth below are met.
A. There is expectation that the employee will return to
duty in the VA at the expiration of the LWOP period. At the
discretion of the facility Director, the employee may be required
to signify such intentions by submitting a signed statement to
that effect to be made a matter of record.
B. The needs of the service with respect to patient care
will not be unduly hampered by the employee's absence.
C. The contribution or service of the employee is such to
merit granting LWOP, as evidenced by supervisory evaluation.
D. It is clearly indicated that one or more of the following
advantages will accrue to the service:
(1) The value of the employee will be increased.
(2) Training of the employee in a specialty needed by the
VA.
(3) Retention of a capable employee in an area where
recruitment of qualified personnel is difficult.
(4) Protection or improvement of employee's health.
Section 8. Notice to Employee. Employees granted LWOP for
more than 30 days will be notified in writing by the Chief of
Service that there is no assurance of their assignment to their
former position or facility on the expiration of the approved
period of LWOP, although it will be the policy to make every
effort to return them to the facility which granted the LWOP,
except when the employee requests reassignment to another
facility and there is a suitable vacancy there and both
facilities concur in the transfer. Such transfers will be handled
by the facilities concerned, if the action normally does not
require prior approval of Central Office.
Proposal 14
Article 14 (a) - Leave as it Applies to Title 38
Maternity/Paternity Leave
Section 1. Sick leave, annual leave, or leave-without-pay
may be granted as appropriate to any employee who is pregnant
during delivery, confinement, and for care of the infant. Annual
leave or leave-without-pay may be granted to male employees in
order to aid or assist in care of his minor children or the
mother of the newborn child in relation to confinement for
maternity reason. Annual leave or leave-without-pay may also be
granted to any employee when adopting a child.
Section 2. The services of employees who are pregnant should
be utilized to the extent their health will permit. However, such
utilization may not extend beyond the period when an
employee fails to meet the physical requirements of the
assignment. Therefore, employees will be encouraged to report
pregnancy as soon as it is an established fact. The earliest
possible knowledge of such condition will provide the opportunity
to protect the employee's health and permit such planning as may
be necessary for staff adjustment during the employee's
prospective absence.
Section 3. Pregnancy and the physical condition incident
thereto will ordinarily be established from medical evidence
submitted by an employee's personal physician. However, in those
cases when there is any question as to an employee's physical
ability to perform her duties without hazard to the employee's
health, examination by a GYN will be conducted. The date during
an employee's pregnancy on which the employee reaches the point
of being incapacitated for duty will be determined medically
according to the circumstances of the individual case.
Section 4. Employees will be granted accumulated and accrued
sick leave consistent with the medical need, therefore, when it
has been established that they are unable to perform their duties
due to pregnancy. In addition, advanced sick leave, annual leave,
advanced annual leave, and LWOP may be authorized consistent with
the provisions of this chapter.
Section 5. An employee who expresses the intention to resign
because of pregnancy will be informed of entitlement to
accumulated and accrued sick leave, consistent with the medical
need therefore.
Proposal 17
Article 14(a) - Leave as it Applies to Title 38
Disposition of Leave on Retirement
Section 1. Disability Retirement.
A. The fact that an employee has executed SF-2801,
Application for Retirement, is not to be interpreted as the
employee's notice of intention not to return to duty.
B. Pending decision of OPM on a claim for disability
retirement, the employee may be granted currently credited leave
before being placed in a nonpay status. However, advanced sick
leave will not be granted pending such a claim.
Section 2. Optional Retirement.
A. The general rule that an employee retiring on an optional
basis may not be granted annual leave immediately prior to
separation (subpar. A above) applies to optional retirement.
B. Any unliquidated advanced leave will be adjusted to date
of separation, except when the employee's separation is also due
to disability, evidence of which will be supported by an
acceptable medical certificate. In such cases, no adjustment for
advanced leave will be required.
Restoration of Veterans After Military Service. The
provisions of MP-5, Part I, Chapter 353 will apply to employees
who are reemployed in positions which entitle them to the
benefits of this chapter.
Indebtedness for Advanced Leave on Separation From the
Service. An Employee will make refund for any unliquidated
advanced annual and sick leave on separation. This does not apply
in cases of death, retirement for disability, disability
supported by an acceptable medical certificate, or entering on
active duty in the military service, when such entry is without a
break in service from the civilian position. The Fiscal Service
will be responsible for initiating action to effect recovery of
the indebtedness.
Separation for Advocating Overthrow of the Government of the
United States. When separation of an employee is for advocating
or being a member of an organization that advocates the overthrow
of the Government of the United States by force or violence, no
lump-sum payment will be made for annual leave remaining to the
employee's credit (23 Comp. Gen. 677).
Death. On the death of an employee, compensation for all
accumulated and current accrued annual leave and sick leave will
be paid in an amount equal to the compensation the decedent would
have received had the employee remained in the service until the
expiration of the period of such annual leave and sick leave.
Proposal 18 (Section 2 of this proposal was withdrawn by the
Union)
Article 17 - Proficiency Ratings (For Title 38 Employees)
Section 1. The proficiency rating system shall be used to
provide a basis for keeping employees informed of what is
expected of them in their assignment, and keeping them informed
of the level of performance in their assignment. It will also be
used when considering advancements within the grade, promotion to
higher grade, action in cases where service is unsatisfactory,
and when identifying training needs and supporting outstanding
service.
Section 3. Regular proficiency ratings will be made annually
on or before the employee's anniversary date of employment unless
delayed as provided for in MP-5, Part II.
Section 4. (1) New employees shall be provided the
performance elements on which they will be evaluated at the
beginning of the rating period. (2) All employees should be
informed of their rating elements change.
Section 5. Employees shall be counseled by their supervisors
on a regular basis concerning their level of proficiency.
Section 6. (1) in cases involving unsatisfactory performance
for Title 38 employees, an employee will be given 90 days advance
notice of their deficiency. (2) If the employee's performance
does not improve during the ensuing 30-60 days the supervisor
will hold a counseling session and provide the employee with a
written memorandum indicating the reason for the conference, the
deficiencies and suggested solution. (3) During this 90 day
period, the employee will be given an opportunity to improve the
specific deficiencies and the Agency will assist the employee in
that effort.
Proposal 19 (Section 2 of this proposal was withdrawn by the
Union)
Article 20 - Disciplinary Action for Title 38 Employees
Section 1. (1) A disciplinary action is any action taken
against an employee for inaptitude, inefficiency, or misconduct
which causes an admonishment, reprimand, suspension, demotion or
discharge to result. (2) Disciplinary action will not be taken in
cases of error of professional judgment when negligence is not
involved nor in cases of differences of professional opinion.
Section 3. Preliminary Investigation. In every case, to
determine what action is warranted, inquiry will be made into the
incident or situation as soon as possible, ordinarily, this
inquiry will be made by the appropriate line supervisor. The
employee who is alleged to have committed the offense and any
other persons who may have pertinent information about the case
will be questioned and signed statements will be obtained.
Information will be developed impartially and a reasonable effort
will be made to reconcile conflicting statements by developing
additional evidence. In all cases, the information obtained will
be documented. All disciplinary actions will be initiated in a
reasonable time after investigation. Written material
such as supervisory notes may be used to support an action
detrimental to an employee if such material has been shown to the
employee in a timely manner after the occurrence of the act and a
copy provided to the employee upon request. The Union shall be
given the opportunity to be represented at any examination of a
unit employee by a management official in any investigation which
may result in disciplinary action being taken against the
employee.
Section 4. All Letters of Admonishment or reprimand shall
contain specific information indicate specifically why the letter
is being issued. The letter will also advise the employee of how
long and where the letter may be retained. The letter shall
inform the employee of their right to grieve or appeal as
appropriate. The supervisor shall discuss the letter with the
employee at the employee's request. If the discussion is held at
the time of issuance of the letter, the supervisor shall inform
the employee of his/her right to union representation. The
discussion will be delayed until the Union has a reasonable
opportunity to furnish a representative. (Emphasis in
original.)
Appeals of admonishments or reprimands will be acted upon by
a hearing officer who is senior in grade from a station other
than that of the employee or by Station Directors and/or their
designees. (Emphasis in original.)
Section 5. Actions of greater severity (suspension, demotion
or discharge) will be acted upon by a Central Office Screening
Committee, and a Disciplinary Board.
Section 6. (1) Screening Committees will evaluate for the
Chief Medical Director all evidence generated under preliminary
investigations. (2) When preferment of charges is appropriate,
the Screening Committee will have a "Letter of Charges" prepared
and issued to the employee. (3) All "Letters of Charges" will
include (A) cause upon which proposed disciplinary action is
based and (B) the employee's right to request and to attend any
hearings held by a Disciplinary Board. (4) All letters of charges
and hearings notices will be delivered personally to
the employee or, if not available, by certified mail. (5) The
parties recognize that delivery of such letters during normal
work shifts can have an adverse effect on the employee's ability
to perform his/her duties and upon patient care. (Emphasis in
original.)
Section 7. (1) Disciplinary Boards will consist of 3
employees senior in grade to the employee under charges, who are
selected from the panel of service members (from Professional
Standard Board) to be utilized on disciplinary boards, in
accordance with Section 5 above. When a disciplinary board is
convened to consider cases pertaining to unit employees, the
Union will be allowed to have a representative attend the board
meetings, and an employee has the right to be represented by the
Union when appearing before a disciplinary board.
(2) An employee may be represented by the Union when
appearing before a professional standards board to contest a
proposed separation during the probationary period.
(3) All members of the board will have equal voting rights.
All witnesses, attorneys and representatives will have no voting
rights since they are (sic)
(4) The charges and specifications contained in the letter
of charges will be read to the employee and representative at the
Board hearing. Additional charges, which the accused employee has
had no notice to defend, may not be introduced. Evidence
introduced and witnesses will be reviewed and questioned by
Management and the employee's representative, and be questioned
by the Board. Witnesses may be summoned and requests for further
inquiry can be made in an attempt to discover and produce
additional evidence leading to a resolution.
(5) The employee and/or his/her representative will be given
a copy of the hearing record, including the record of any closed
session, if a record is made, at the time the employee is given
the decision. If no record is to be made of the closed sessions,
then the employee's representative will be permitted to observe
during the closed session.
(6) The findings and recommendations of a disciplinary board
will be based solely on the evidence presented. To sustain a
charge, the board must find on all evidence that the employee has
committed the offense with which he/she is charged.
(7) The hearing will be conducted on official duty time
without charge to leave of the employee, the union representative
and the witnesses.
(8) Following deliberation and voting on the findings and
any penalty, VA Form 10-2543, Board Action, including any
recommendations for penalty, will be prepared by the disciplinary
board processing the case. If none of the charges are sustained,
the board will recommend dismissal of the charges and exoneration
of the employee. If charges are sustained, the board will
recommend to the Chief, Medical Director suitable disciplinary
action. The Chief Medical Director shall either:
(1) approve the recommendation of the Board,
(2) approve such recommendation with modification or
exception,
(3) approve such recommendation and suspend further action
at the time, or
(4) disapprove such recommendation.
(9) The employee will receive a Notice of the Decision and
any SF-50 Notification of Personnel Action. If the Chief Medical
Director is unable to reach a decision from the board's findings
and recommendations, he will return the case to the disciplinary
board which conducted the hearing for the development of
additional evidence. The employee and/or his/her
representative will be given a copy of the hearing record,
including the record of any closed session, if a record is made,
at the time the employee is given the decision.
(10) Disciplinary action should be consistent with the
seriousness of the infraction. The concept of progressive
discipline shall be followed when appropriate. The table of
penalties in MP-5, Part II, should be used as a guide in
determining proper levels of discipline to be administered.
(11) For offenses not included in the Table of Disciplinary
Penalties nor covered by statute for which disciplinary action by
the board is sought, the employer must demonstrate job
relatedness.
(12) For offenses not included in the Table of Disciplinary
Penalties but covered by statute can also be considered for
disciplinary action. Before imposing a disciplinary penalty, the
actual text of the statute which is applicable will be consulted.
A copy of the applicable text will be provided the Union and the
employee.
(13) Where the statute does not make mandatory the
imposition of a specific disciplinary penalty, the question
whether to take action or not will be left to the
Administrator.
Section 8. Appeals.
A. Admonishments and reprimands may be appealed before the
station directors (or designee) or before a hearing officer
selected by the Medical Director.
(1) When appeal before a hearing officer is sought, a
request for a hearing will be presented to the station director
or designee for processing to the Medical Director within 15 days
of receipt of the admonishment or reprimand.
(2) The written appeal will include evidence for
consideration on the basis of the record if decided by the
service director, or by a hearing officer if a hearing was
requested.
(3) When the discipline is to be decided by the station
director (or designee) when no hearing is requested, the written
evidence for consideration will be provided to the station
director 15 days after receipt of admonishment or reprimand. The
station director will decide on the basis of the record.
B. Appeals concerning suspension, demotion or removal will
be directed in writing to the Medical Director through the
station director.
Disciplinary boards, once determined to be necessary, will
convene within thirty (30) days after an employee's written
response to the charges has been filed. Evidence against an
employee shall be made available to the employee and his/her
representative, and both shall be given official time to review
such evidence to prepare a reply. Such responses shall be
received 15 days after notice is received by the employee.
Time limits for the employee's response may be extended upon
request by the station director.
Proposal 21 (Sections 3 and 9 of this proposal were
withdrawn by the Union)
Article 24(a) - Tours of Duty for Title 38
1. (1) Within each administrative workweek (Sunday thru
Saturday), the "basic workweek" for the full-time employees shall
be forty (40) hours in length. (2) The normal tour of duty within
the 40 hour basic workweek shall consist of five (5) eight (8)
hour days, exclusive of the thirty (30) minute lunch period,
Monday thru Friday. (3) Based on Service needs, the Medical
Center Director has the authority to schedule the 40-hour basic
workweek to include Saturday and Sunday. (4) However, the basic
workweek may not extend over more than six (6) days.
2. Shift and Tour Work. (1) Shift and/or tour employees who
work in Continuous opertions shall rotate through various shift
hours. (2) This rotation will be on a monthly basis, unless
specifically requested by employee. (3) Unnecessary rotation of
employees from shift to shift or tour to tour shall not be
practiced.
(4) The employer will make every effort to insure that those
employees scheduled for irregular tours of duty (evening and
night shift) shall be those who have specifically requested such
tours.
4. Employees shall not be required to arrange for their own
relief or to make staffing arrangements for any unit or tour of
duty.
5. Through mutual agreement of the employees concerned and
with the supervisor's permission, an employee may change tours of
duty or a day within a tour with another employee.
6. (1) Doubling back, or being scheduled to return to duty
with only one shift elapsing, will not be asked of employees
unless there is an absolute emergency, or at the request of the
employee. (2) Employees will not be asked to use their annual
leave for the purpose of giving another employee more time off
between shifts. (3) This practice must be at the request of the
employee or in emergency situations only.
7. If the Veterans Administration proposes to change the
standard workweek, it will provide the Local NFFE Union affected
with written notice, and negotiations will take place pursuant to
Article 9 of this Agreement, negotiations.
8. In case of absence due to extreme weather conditions of
public emergency situations, and where it is determined on an
individual basis that it was impossible for all practical
purposes for an employee to get to work, excused absence without
charge to leave will be authorized by the Medical Center Director
in conformance with the provisions of paragraph 21u, MP-5, Part
I, Chapter 630.
10. Rest Break. (1) Each employee is authorized one twenty
(20) minute rest break within each one-half (1/2) period of the
normal workday for that employee. (2) Additionally, one twenty
(20) minute rest break is authorized within each four (4) hour
period of overtime worked. (3) Employees shall be allowed to take
the rest break away from the immediate worksite.
Proposal 22 (Sections 1, 2, 3, 7A, 7C, 12 and 13 of this
proposal were withdrawn by the Union)
Article 25 - Overtime (Not Applicable to Physicians,
Dentists, Optometrists or Podiatrists)
Section 4. The method of scheduling distribution of overtime
will be subject to negotiations in local supplemental
agreements.
Section 5. Records showing the overtime distribution shall
be maintained. The employer will make available to the local
Union, upon request, available records of overtime assignments of
unit employees.
Section 6. Callback Overtime Work.
Irregular or occasional overtime work performed by an
employee on a day when work was not regularly scheduled for the
employee or for which the employee has been required to return to
the place of employment shall be considered to be at least two
hours in duration for the purpose of overtime compensation
regardless of whether the employee performs work for two hours.
Section 7.
B. Unless on-call is mandated for a particular occupation
and/or unit, Management agrees to solicit volunteers for on-call
in cases involving Title 38 employees not excluded under this
section before mandating on-call status.
Section 8. Insofar as practicable, travel during nonduty
hours shall not be required of an employee. When it is essential
that this be required, an employee will be compensated for any
overtime in accordance with appropriate law and regulation.
Section 9. supervisors shall provide employees as much
advance notice of overtime assignments as circumstances permit,
normally at least 2 days.
Section 10. Any employee who works with the approval or
knowledge of his/her Employer, more than forty (40) hours per
week or eight (8) hours per day, shall be compensated in
accordance with the law for such work by either receiving
overtime pay or compensatory time off for those hours in excess
of forty (40) per week or eight (8) per day, unless the work is
performed pursuant to a normal compressed workweek schedule. An
official authorized to approve overtime pay at the request of an
eligible employee, may grant compensatory time off in lieu of
overtime pay.
Section 11. (1) Where practicable, all employees who work
more than 4 consecutive hours shall be entitled to a non-paid
lunch period. (2) Employees required to work all or part of their
scheduled lunch period shall be paid overtime for such time
worked.
Flexitime
Section 1. Those Veterans Administration locations
participating in flexitime experiments will continue to operate
in accordance with the tours of duties so established.
Section 2. Where no such flexitime schedule for employees
may request adjustment of starting and stopping time, every
effort will be made to give the request consideration.
Section 3. No involuntary flexitime schedule will be imposed
upon employees.
Modified Workweek
Section 1. Participation in compressed workweek shall be
voluntary. Where every they are working in the modified workweek
will continue (sic).
Section 2. Those Veterans Administration locations
participating in compressed workweek will continue to operate in
accordance with the tours of duty so established.
Section 3. When working the compressed workweek, there will
be 80 hours of work performed in each pay period.
Section 4. Employees may opt to work 10 or 12 hour tours.
Section 5. Registered Nurses working 4 or more hours between
hours of 6 p.m. and 6 a.m. will receive night differential for
entire tour.
Section 6. When working on Sunday, Registered Nurses will
receive Sunday differential for each hour worked.
Proposal 24 (Sections 1B, 2, 3B, 10 and 12 of this proposal
were withdrawn by the Union)
Article 30(a) - Training - Title 38 Employees
Section 1.
A. (1) Although it is expected that employees are qualified
to perform the duties of their positions as a prerequisite to
employment, the parties recognize the possible need for
additional training, retraining or continuing education to
maintain the competence of the workplace. (2) Management will
remind employees, at least annually of the availability of
training, and the nomination procedure.
Section 3
A. Once job-related training needs are determined to exist,
appropriate methods for meeting those needs within available
resources will be the responsibility of Management. Training may
be conducted "on-the-job" or through formal training courses.
Section 4
A. When training is required by the VA for the primary
purpose of improving employee skills, knowledges and abilities
needed to perform competently in his/her position and the
required training is scheduled during work hours, he/she will be
granted excused absence to attend.
B. (1) Authorized absence shall be granted if the course is
not offered at any time other than the employee's regularly
scheduled duty hours. (2) Management agrees to consider requests
for payment of training expenses of any unit employee who is
required by Federal or state regulations to complete certain job
related courses in order to maintain proficiency or
certification.
C. When the primary objective of the training is improvement
of general skills, knowledges and abilities or career growth, the
employee may request a work schedule adjustment to accommodate
the education or training program.
D. (1) For employees who are required to obtain continuing
education in order to maintain their state board certification,
Management will make a reasonable effort to approve requests for
authorized absence if the course is not offered at any time other
than the employee's regularly scheduled duty hours. (2)
Management agrees to consider requests for payment of training
expenses of any unit employee who is required by Federal or state
regulations to complete certain job related courses in order to
maintain proficiency or certification.
Section 5.
A. Facility Directors are authorized to approve without
charge to leave the absence of full-time employees to attend
education and training activities (lectures, seminars, courses of
instruction, etc.) in accordance with the provisions of M-8, part
IV, Chapter 2.
B. Part-time staff appointed under section 4114(a)(1)(A) may
be similarly granted authorized absence from scheduled duty for
the purpose mentioned herein.
(1) (1) Prior approval of the Administrator, Deputy
Administrator, Associate Deputy Administrator, or Assistant
Deputy Administrator is required for attendance at national
conventions of veterans' service organizations as a
representative of the VA. (2) When approved, such absence will be
without charge to leave.
(2) (1) Facility Directors are authorized to approve the
absence of full-time employees to attend international, national,
sectional, state and local medical, dental, nursing, and
scientific meetings and conferences in accordance with the
provisions of M-8, part IV, Chapter 2. (2) Absences without
charge to leave will be authorized for the necessary time to
attend such meetings including the allowed traveltime. (3)
Traveltime authorized for travel outside the continental United
States will not exceed time required for air travel. (4) (Any
approvals required by M-8, part IV, Chapter 2, will be secured
before these absences can be authorized. (5) Requests involving
authorized absence to attend activities outside the United States
must be submitted to Central Office at least 60 days in advance
of the starting date.)
(3) Part-time staff appointed under section 4114(a)(1)(A)
may be granted authorized absence from scheduled duty for the
purposes mentioned above if considered of benefit to the VA in
the discharge of their duties, or significant to the VA training
they are undergoing.
Section 6. Evidence of completed training furnished by the
employee will be recorded in the employee's official personnel
folder.
Section 7. (1) The VA agrees to extend consideration to the
reimbursement of expenses incurred by an employee in attendance
at work-related courses on his/her own time. (2) Such
consideration will be subject to the availability of funds and
the priorities of training needs. (3) Partial or full
reimbursement, if approved, will be in accordance with existing
policies and regulations. (4) Subject to the approval of local
management, employees who are enrolled in such courses may use
items such as calculators and typewriters, at mutually agreeable
times for such course work, during their non-duty hours.
Section 8. Notice of training, seminars, workshops, etc.,
will be given a reasonable time in advance.
Section 9. Reference material related to the performance of
the duties of an employee's position will be maintained in a
location reasonably accessible to the employee.
Section 11. Consistent with budget and staffing
restrictions, management agrees to make every effort to provide
training to any unit employee whose position is adversely
affected by reorganization or changes in mission, budget or
technology, in order to assist in the placement of the employee
in existing or projected vacancies.
Proposal 25 (Sections 2, 3 and 4 of this proposal were
withdrawn by the Union)
Article 33(a) - Probational Employees - Title 38
Section 1. The parties agree the probationary period is an
extension of the appointment process. It provides the final test
that of actual performance on the job of an individual for
permanent appointment in the Department of Medicine and Surgery.
Section 5.
(1) (1) In conducting reviews, the Professional Standards
Board will have access to the entire employment record of the
employee, including proficiency ratings, counseling reports, and
evaluations by supervisory personnel. (2) The Board will
carefully consider all aspects of the employee's service,
including warning signs, such as may be evidenced by borderline
proficiency ratings, either in total element score or specific
element ratings.
(2) The results of each review by the Professional Standards
Board will be processed as follows:
(a) (1) If the employee's services are fully satisfactory or
no serious deficiencies are noted, the board need not take formal
board action, but may record its findings on the proficiency
rating report or prepare a separate memorandum report. (2) The
employee will be informed in writing of the results of the review
by his immediate supervisor. (3) The review record and copy of
the notification to the employee will be sent to the personnel
office for filing in the employee's folder.
(b) If serious deficiencies are noted, the procedures
outlined below will be followed.
Section 6. (1) The employee will be notified in writing of
the review by the Professional Standards Board. (2) The letter
will be prepared by the personnel office for the signature of the
Chairman, Professional Standards Board, and as a minimum will
contain the following:
(1) The time and date of the proposed review as well as a
statement of the reasons--brief, but in sufficient detail so that
the employee will clearly understand why his services are
considered deficient and/or the nature of the incident involved.
Reference will also be made to 38 U.S.C. 4106(b).
(2) A statement that the employee may appear in person
before the board to present his side of the case, or submit a
written statement in his behalf. He will be told that if he
elects to submit a written statement, the board's recommendation
will be based solely upon a careful review and analysis of the
records and facts in the case, the information furnished by the
employee and others who may be called by the board.
(3) Explanation that the purpose of the board is to conduct
an impartial review of his services and to make recommendations
to the Chief Medical Director ( ) or field station head, as
appropriate, whose decision is final (sic).
(4) Notification that the review is being conducted during
the employee's probationary period and that he may elect legal or
union representation.
(5) Notice that a reasonable time limitation will be set for
the employee's reply as to whether or not he desires to appear
before the board or submit a written statement.
Footnote 1 In finding these matters to be within the duty to
bargain, we make no judgment as to their respective merits.