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32 FLRA No. 66

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

VETERANS ADMINISTRATION AND
VETERANS ADMINISTRATION MEDICAL
CENTER, LYONS, NEW JERSEY
Respondent

and 

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1012, AFL-CIO
Charging Party

Case No. 2-CA-50029

(24 FLRA 505)

 

DECISION AND ORDER

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in American Federation of Government Employees, Local 1012, AFL-CIO v. FLRA, 841 F.2d 1165 (D.C. Cir. 1988) (AFGE Local 1012).

The issue is whether the Respondent violated section 7116(a)(1) and (5) of the Statute by instituting a monthly schedule for rotating certain unit employees into the position of Acting Associate Chief of Nursing Service for Education (Acting ACNSE), without first affording the Charging Party an opportunity to negotiate concerning the impact and implementation of the change.

For the following reasons, we have decided to remand this case to the Administrative Law Judge (ALJ) who originally heard the case for additional findings of fact.

II. Background

A. Facts

On September 21, 1984, the Associate Chief of Nursing Service for Education (ACNSE) implemented a new system whereby all six instructors under the ACNSE would serve in the capacity of Acting ACNSE on a rotating monthly basis in the absence of the ACNSE. The Charging Party was not notified of this change or afforded an opportunity to negotiate concerning the impact and implementation of the change.

The duties and responsibilities of the Acting ACNSE include "attending meetings, responding to and assisting faculty from respective schools, writing memos or other correspondence, if necessary, providing guidance and/or assistance to other instructors, if necessary, and checking incoming mail." The Acting ACNSE position provides the opportunity for a nursing instructor to gain experience in a management position.

B. The Administrative Law Judge's Decision

The Administrative Law Judge concluded that the filling of the ACNSE position on a temporary basis did not concern a condition of employment of bargaining unit employees within the meaning of section 7103(a)(14) of the Statute. Therefore, he found that the unilateral change in such procedures does not constitute a violation of section 7116(a)(1) and (5) of the Statue.

The Administrative Law Judge based his decision on Authority precedent that a proposal concerning the filling of supervisory positions, including temporary appointments, is negotiable only at the election of the agency since the proposal does not concern a condition of employment of bargaining unit employees. National Labor Relations Board Union, Local 21 and National Labor Relations Board, 15 FLRA 798 (1984). The hearing before the ALJ focused on whether or not the Respondent made a unilateral change in the method of rotating the Acting ACNSE rather than the nature of the duties performed by the Acting ACNSE.

C. The Authority's Decision

In our decision, Veterans Administration and Veterans Administration Medical Center, Lyons, New Jersey, 24 FLRA 505 (1986), we adopted the findings and conclusion of the Administrative Law Judge that the Respondent did not violate section 7116(a)(1) and (5) of the Statute.

D. The Court's Opinion

In AFGE, Local 1012, the court stated that it agreed with the Authority that "a proposal concerning the filling of supervisory positions, including temporary appointments, is negotiable only at the election of the Agency." 841 F.2d. at 1166. However, the court also found that the record and the findings of the ALJ did not indicate that the Acting ACNSE position included supervisory responsibilities. Therefore, the court remanded the case to us for consideration of whether the Acting ACNSE was a supervisor within the meaning of 5 U.S.C. º 7103(a)(10) of the Statute.

III. Analysis and Conclusion

Consistent with the court's decision, we must determine whether the Acting ACNSE is a supervisor within the meaning of section 7103(a)(10). The nature of the duties performed by the Acting ACNSE is determinative of whether that position is supervisory within the meaning of section 7103(a)(10). The Respondent is under no duty to bargain over a change in the method of rotating bargaining unit members into the position if the position is supervisory under section 7103(a)(10).

Upon review of the record, we conclude that the record does not contain sufficient evidence as to the duties actually performed by the Acting ACNSE. As recognized by the court, the nature of the duties actually performed by the Acting ACNSE was not litigated before the Administrative Law Judge or the Authority. Therefore, we are unable to determine whether the duties actually performed are supervisory pursuant to section 7103(a)(10) of the Statute.

We conclude that evidence regarding the duties actually performed by an Acting ACNSE should be developed before an Administrative Law Judge. Therefore, we remand this case to the Administrative Law Judge who originally heard it to reopen the proceedings in order to develop a factual record regarding the duties performed by the Acting ACNSE and to determine whether or not the Acting ACNSE is a supervisor within the meaning of section 7103(a)(10) of the Statute.

IV. Order

This case is remanded to the Administrative Law Judge for action consistent with our decision.

Issued, Washington, D.C.,

____________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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