[ v34 p260 ]
34:0260(51)CA
The decision of the Authority follows:
34 FLRA NO. 51
U.S. DEPARTMENT OF VETERANS AFFAIRS
WASHINGTON, D.C.
AND
U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL AND REGIONAL OFFICE CENTER
TOGUS, MAINE
(Respondents)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2610
(Charging Party)
1-CA-70068
1-CA-70069
DECISION AND ORDER
January 12, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This consolidated unfair labor practice case in before the Authority on
exceptions filed by the Respondent to the attached decision of the
Administrative Law Judge. The General Counsel filed an opposition to the
Respondent's exceptions.
The issues are whether the Respondent violated section 7116(a)(1) and (5)
of the Federal Service Labor - Management Relations Statute (the Statute)
when it unilaterally changed conditions of employment of bargaining unit
employees by: (1) changing the definition of "mentor" in the
qualification standards for promotion of nurses of the Veterans
Administration Medical and Regional Office Center, Togus, Maine (VA Togus
Center), without notifying American Federation of Government Employees,
Local 2610, AFL - CIO (the Union) and providing it with an opportunity to
bargain over the impact and implementation of the change; and (2) changing
the definition of "research and study" in the qualification
standards for promotion of nurses at the VA Togus Center, without notifying
the Union and providing it with an opportunity to bargain over the impact
and implementation of the change.
Subsequent to the Judge's decision in this case, the United States Court of
Appeals for the District of Columbia Circuit reviewed the Authority's
decision in Colorado Nurses Association and Veterans Administration Medical
Center, Ft. Lyons, Colorado, 25 FLRA 803 (1987) (VAMC, Ft. Lyons). In VAMC,
Ft. Lyons, the Authority found that the obligation to bargain under the
Statute applies to the conditions of employment of professional medical
employees of the Department of Medicine and Surgery (DM& S) of the VA
who are appointed under chapter 73 of Title 38 of the United States Code
(title 38).
The court found that the VA is not obligated to bargain over the conditions
of employment of DM&S, title 38 employees and reversed the Authority's
ruling. Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988)
(Colorado Nurses). The court found that the Statute's provision for
mandatory collective bargaining over the conditions of employment of these
employees conflicts with the authority of the VA Administrator under 38
U.S.C. 4108(a). Section 4108(a) provides that "(n)otwithstanding any
law, Executive order, or regulation," the VA Administrator "shall
prescribe by regulation the hours and conditions of employment and leaves
of absence" of DM&S professional medical employees. The court
stated that "(i)n enacting section 4108, Congress intended to give the
Administrator unfettered discretion to issue regulations concerning the
working conditions of DM &S employees." Id. at 1492.
Consistent with the court's decision in Colorado Nurses, we conclude that
the Respondent did not violate section 7116(a)(1) and (5) of the Statute by
its failure to notify the Union of the Respondent's changes in the
qualification standards for promotion of nurses at the VA Togus Center and
afford the Union an opportunity to bargain over the impact and
implementation of the changes.
II. The Administrative Law Judge's Decision
Based on the Authority's decision in VAMC, Ft. Lyons, the Judge rejected
the Respondent's contention that under sections 4108 and 4119 of title 38,
the Authority has no jurisdiction over conditions of employment of
professional medical employees of the DM&S.
The Judge found that the Respondent had merely restated existing policy and
did not change conditions of employment by defining "mentor" in
the qualification standards for promotion of nurses. Consequently, he
recommended the dismissal of this allegation in the consolidated complaint.
(Case No. 1-CA-70069).
The Judge also concluded that the Respondent changed the requirements for
complying with the qualification standards of "research and
study" and that the change had more than a de minimis impact on the
bargaining unit. He found that by not notifying the Union and affording it
an opportunity to bargain over the impact and implementation of the change,
the Respondent violated section 7116(a)(1) and (5) of the Statute.
Consequently, the Judge recommended that the Respondent cease and desist
from the unfair labor practices and take certain affirmative action. (Case
No. 1-CA-70068.)
III. Positions of the Parties
The Respondent contends that: (1) based on the court's decision in Colorado
Nurses, the Respondent has no obligation to bargain over the conditions of
employment of professional medical employees of the DM&S; (2) this case
involves matters which are excepted from the definition of conditions of
employment under section 7103(a)(14) of the Statute because they are
"specifically provided for" by law; (3) the complaint was not
specific or did not contain a clear and concise statement of facts, as
required by FLRA regulations; (4) no change occurred in conditions of
employment; (5) the requested bargaining would interfere with management
rights under section 7106 of the Statute; and (6) any impact on the
bargaining unit was de minimis.
The General Counsel contends that the Authority should not follow the
court's decision in Colorado Nurses.
IV. Discussion
For the following reasons, we conclude that, under Colorado Nurses, the
Respondent was not obligated to bargain over any changes in the
qualification standards for promotion of nurses at the VA Togus Center.
Based on the rationale and conclusions of the U.S. Court of Appeals for the
D.C. Circuit in Colorado Nurses, the Authority has concluded that the VA
has no obligation to bargain over the conditions of employment of
professional medical employees of the DM&S. For example, Illinois
Nurses Association and Veterans Administration Medical Center, North
Chicago, Illinois, 33 FLRA 284 (1988), aff'd order sub nom. Illinois
Nurses Association v. FLRA, No. 88-1891 (D.C. Cir. Apr. 12, 1989).
Likewise, the VA has no obligation to bargain over the impact and
implementation of changes in the conditions of employment of those
employees. Veterans Administration, Veterans Administration Medical Center,
Muskogee, Oklahoma, 33 FLRA 417, 419 (1988).
It is undisputed that the nurses who are the subject of this consolidated
complaint are professional medical employees of the DM&S. VA nurses are
promoted under regulations prescribed by the Administrator in accordance
with the provisions of title 38. Brief for Respondent at 6-7. Under title
38, the Administrator has "unfettered discretion to issue regulations
concerning the working conditions of DM&S employees." Colorado
Nurses at 1492. The promotion process clearly is a working condition of
professional medical employees of the DM&S within the meaning of
Colorado Nurses.
Therefore, because the Respondent had no obligation to bargain over the
impact and implementation of changes in the conditions of employment of the
nurses involved, we find that the Respondent did not violate the Statute by
failing to notify the Union of any changes in the qualification standards
for promotion of nurses at the VA Togus Center and afford the Union an
opportunity to bargain over the impact and implementation of those changes.
Accordingly, we will dismiss the complaint. In view of our conclusion, it
is unnecessary to address the Respondent's alternative arguments.
V. Order
The consolidated complaint in Case Nos. 1-CA-70068 and
1-CA-70069 is dismissed.
_______________________________________________
VETERANS ADMINISTRATION
(WASHINGTON, D.C.) AND
VETERANS ADMINISTRATION
MEDICAL AND REGIONAL OFFICE
CENTER (TOGUS, MAINE)
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2610
Charging Party
Case Nos. 1-CA-70068
1-CA-70069
Timothy Ridge, Esq.
For the Respondent
Marilyn H. Zuckerman, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to an Order Consolidating Cases, Complaint and Notice of Hearing
issued on February 12, 1987 by the Regional Director, Federal Labor
Relations Authority, Region I, a hearing was held by the undersigned on
November 19, 1987 at Augusta, Maine.
The cases arose under the Federal Service Labor - Management Relations
Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). They are based
on charges filed on November 17, 1986 in Case No. 1-CA-70068, and in Case
No. 1-CA-70069, by American Federation of Government Employees, AFL - CIO,
Local 2610 (herein called the Union), against Veterans Administration,
Washington, D.C. and the Veterans Administration Medical and Regional
Office Center, Togus, Maine (herein collectively called Respondent).
The Complaint alleged, in substance, that on or about June 2, 1986
Respondent unilaterally changed conditions of employment by (a) changing
the definition of mentor in the qualification standards for promotion of
nurses of the VA Togus Center, without notifying the Union and providing it
with an opportunity to bargain re the impact the implementation of said
change; (b) changing the definition of research and study in the
qualification standards for promotion of nurses at the VA Togus Center,
without notifying the Union and providing it with an opportunity to bargain
re the impact and implementation of said change -- all in violation of
Section 7116(a)(1) and (5) of the Statute.
Respondent's Answer dated March 9, 1987 denies the aforesaid allegations as
well as the commission of any unfair labor practices. Several affirmative
defenses are raised by Respondent including (a) that the complaint is
untimely and barred under Section 7118(a)(4)(A) of the Statute; (b) that
policies, practices and matters re working conditions of nurses, including
promotion criteria, are provided for in Title 32 U.S.C. 4105 et seq., and
therefore they are outside the terms "condition of employment" in
Section 7102(a)(14) of the Statute; (c) the application of the
qualification standards requires professional judgment and cannot be
subject to negotiation; (d) the alleged violation is de minimis. 1
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed which have been duly
considered.
Upon the entire record herein, from my observation of the witnesses and
their demeanor, and from all of the testimony and evidence adduced at the
hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the American Federation of Government
Employees, AFL - CIO, has been, and still is, the exclusive representative
of all full time and regularly schedule part-time registered nurses
employed at the VA Medical and Regional Office Center, Togus, Maine, with
specified exclusives from said unit.
2. At all times material herein Respondent has recognized the Union as the
agent and representative of the American Federation of Government
Employees, AFL - CIO at the VA Medical and Regional Office Center, Togus,
Maine. 3. Promotions of nurses at the VA are dealt with by Statute (38
U.S.C. 4101 et seq.) as well as regulations and manual provisions. 2 A
preliminary step requires that head nurses prepare a proficiency report of
a nurse. This report is sent to the Nursing Professional Standards Board
for oreview and recommendations. This Board is composed of a special group
of nurses selected by the chief nurse. The Union has not been represented
thereon. The Board evaluates a proficiency report and then sends its
recommendations as to promotions to the Chief Nurse. The latter concurs or
disagrees, and the report is forwarded to the Director of the Center who
makes the final decisions.
4. The Nurse VA Qualification Standards, Department of Medicine and Surgery
(DM&S), dated May 18, 1983, set forth the criteria in clinical,
managerial, instructional and research skills which are necessary for a
nurse to be promoted to an Intermediate Grade (Joint Exhibit 3). Under
"clinical skills" it is provided inter alia, that the nurse
"functions as consultant and mentor to other nurses." Under
"research skills" it is provided: "under supervisory
guidance accepts responsibility for a scientific investigation expected to
result in a published addition to scientific knowledge; resolves problems
ordinarily entailed in the accomplishment of a project; interprets
findings; prepares reports and papers."
5. The Nursing Professional Standards Board (Board) worksheet for promotion
to Intermediate Nurses, in connection with the 1983 criteria provides:
"In Clinical Skills" 3
(a) Uses sound clinical judgment in assessing, planning, implementing,
documenting and evaluating nursing care: _______ MET ________ NOT MET
(b) Applies current concepts and findings from research and/or studies
to practice: (underscoring supplied) ________ MET _______ NOT MET
(c) Shares clinical expertise with professional and supportive nursing
personnel: _______ MET ________ NOT MET
(d) Accurately documents and reports care: _______ MET
_______ NOT MET
(e) Identifies, analyzes and resolves patient care problems whose
resolution results in the significant improvement of nursing care to
individuals and/or group of patients: _______ MET _______ NOT MET
(f) Functions as consultant and mentor to other nurses: _______ MET
_______ NOT MET (underscoring supplied)
6. A new Chief Nurse, William Harness came to the VA Medical Center in
1984. He took note of the fact that there were many comments from the staff
that the promotional process, based on the proficiency narratives, was not
understood. The Board advised him that the proficiencies set forth in the
report did not address the qualification standards and it was difficult to
determine whether nurses were meeting those standards. Further, the
Chairperson of the Board discussed the use of a worksheet, but members of
the staff stated it was not always possible to know what parts of the
qualification standards were not being met. Harness met with the Board to
discuss various examples of how a qualification standard could be met. They
asked him to reduce his opinions to writing and talk to the head
nurses and discuss it with them. The Board asked Harness to define in
writing the meaning of the terms "mentor" and "research and
study", which are two of the criteria for promotion to Intermediate
Nurse, and illustrate different ways of meeting them.
7. The record reflects that the definition of "mentor" had not
been a common problem in the past. Head nurses would advise their
registered nurses what to look for to satisfy that criteria. Cliff
Andreasen, personnel representative and Board advisor, would present ideas
on how to meet the criteria of "mentor."
8. Harness sent a written memo, dated March 3, 1986, to all Head
Nurses/Supervisors re the definition of "mentor." 4 In addition
to setting forth definitive explanations of the term by the Central Office,
Regional Board members, and chairpersons at other VA facilities, Harness
explained what is deemed a "mentor" relationship. He also stated
that the absolute requirements for a mentoring relationship are attraction,
action, and affect.
9. Harness also sent a written memo, dated April 11, 1986 to all Head
Nurses/Supervisors re "Management Communication -- R.N. Qualification
Standards." 5 This memo recited that "the following are
interpretations of R.N. qualification standards which may be beneficial to
you when writing proficiency reports." Under the terms
"Research" a definition is set forth, as well as examples of
research which include "a thesis at the graduate level or research
being done here in station through the Research Department." Elements
of research are also provided. Under the term "studies" Harness
describes what is deemed a study for grade qualifications. The study, he
notes, should be a formalized study of a subject -- some evidence of
written documentations of the study, why there was a problem, what was done
to collect data, what was changed, and the evaluation after recommendations
coming out of the study were implemented.
10. Agnes Cassidy, a registered nurse (Intermediate Grade) and chief
steward of the Union, testified she met with Harness in June, 1984. He
remarked that in August, 1983 the qualification standards has been changed,
and it required the nurses be reboarded 6 to determine if they met the new
criteria for promotion to intermediate grade. Harness stated that so
many nurses were promoted prior to his arrival and he felt the promotions
were automatic.
11. In October, 1986 Cassidy saw copies of the two memos pertaining to
"mentor" and "research and study" which Harness had
issued. On October 23 she wrote the Chief Nurse requesting that management
bargain thereon, stating that they impacted on the unit and demanded they
be withdrawn with no further implementation.
12. Under date of October 31 Harness replied to the request by stating they
did not constitute a change in policy or procedures. The Chief Nurse
mentioned that the statements in the memos were a composite from several
services which presented his interpretation of the standards; that they
were guidelines, giving head nurses and supervisors some examples of how
standards could be met. Harness explained that the head nurses and
supervisors must still interpret the qualification standards and describe
in proficiency reports how the nurse meets those standards.
13. Cassidy's testimony reflect that prior to the memos from Harness the
dictionary definition of mentor was followed, i.e. as instructor, teacher,
someone who guides others in areas where they are not familiar or
experienced. In respect to research and study, nurses were told that to
meet that requirement they must go out and do some special study and
research - get computer searches done on a particular subject that is
pertinent to the ward area.
14. Further testimony by Cassidy shows that, prior to the March 3, 1986
memo from management, no intermediate grade nurse was required to engage in
a formalized study to comply with the "research and study"
qualification. She testified that the requirements of some evidence of
written documentation of the study, why there was a problem, what was done
to collect data, and what was changed in the evaluation after implementing
recommendations from the study -- all those steps were changes initiated by
the Chief Nurse in respect to meeting this qualification standard.
15. Record facts show nurse Jerry Vannah was denied a promotion three times
during 1986. The first two denials were based on his failure to meet the
criteria of "mentor" and "research and study, "the
third was due to Vannah's failure to identify, analyze and resolve patient
care problems and his failure to function as a mentor. He did satisfy the
requirement as to research and study. Vannah was finally promoted on July
1,
1987. 7
16. Head nurses Betty Davis and Linnea Hemphill testified they considered
the memos issued by Harness re "mentor" and "research and
study" to be guidelines, and they did not consider the memos to be
directives. Associate Chief of Nursing Service for Education, Naomi McGyver,
testified she used the memos from Harness as a checklist. Staff nurse Harry
Bonish has been a Board member, each year since 1982. He testified that the
information contained in Harness' memos were no surprise; that it had been
talked about and discussed a lot, and he had assimilated it into the way he
looked at Board actions; that he considered the information in the memos to
be acceptable suggestions for supporting data which must be present.
Conclusions
The issue to be determined herein is as follows: Whether the Respondent
unilaterally changed conditions of employment by changing the definition of
"mentor" and "research and study" -two qualifications
criteria for promotion of registered nurses -without notifying the Union
and affording it an opportunity to bargain as to the impact and
implementation thereof.
Respondent contends, at the outset, that the Authority has no jurisdiction
over working conditions of DM&S employees since sections 4108 and 4119
of Title 38 provide for the personnel system and employment conditions.
Thus, it is argued that conditions of employment of DM&S employees are
removed from the
VA's duty to bargain under the Statute herein. This argument was rejected
by the Authority in Colorado Nurses
Association and Veterans Administration Medical Center, Ft. Lyons,
Colorado, 25 FLRA 803. The Authority found no conflict exists between
Section 4108, which authorized the VA Administrator to prescribe employment
conditions, and the Statute which permits collective bargaining re such
conditions.
Accordingly, the undersigned concludes there is no merit to this contention
and finds that jurisdiction does exist under the Statute with respect to
working conditions of DM&S employees. 8
Case No. 1-CA-70069
In respect to the term "mentor," which it is alleged was
redefined so as to constitute a change in working conditions, the record
reflects that prior to the March 3, 1986 memo from Harness the term was
given its dictionary meaning. While this mentorship was a criteria for
promotion, there was no definitive explanation of what was meant by it.
Thus, the Board sought some clarification or guidelines concerning the
term. It is thus essential to ascertain whether the March 3 memo actually
changed the criteria requiring the nurse to function as a mentor.
Note is taken if the dictionary's definition of the word
"mentor," which was generally followed by the head nurse issuing
a proficiency report for a nurse. Webster's third International Dictionary
defines the term as follows:
MENTOR
"1: a close, trusted, and experienced counselor or guide . . . who,
because he is detached and disinterested, can hold up a
mirror to us . . .
s 2: teacher, tutor, coach"
The definition of "mentor" set forth in the memo from Harness on
March 3 reveals that the primary concern of the individual so classified is
"establishing and guiding the next generation." As stated, this
individual guides and supports the neophyte toward self-knowledge and
independence. Further, the mentor is described as a "teacher,
sponsor, host and guide, exemplar and counselor."
In elaborating on what constitutes a mentor, I do not agree with General
Counsel that management was changing working conditions. No new
requirements on the part of nurses were imposed to qualify for this
criteria. No conditions were changed or altered which could affect the
promotional possibilities of nurses. The emphasis is clearly upon guiding a
less experienced nurse in professional development. The comments were, in
essence, guidelines issued by the chief nurse as to the term
"mentor" and a recitation of some of the indicia thereof. The
Authority has concluded that guidelines issued by management to supervisors
which, in effect, restate policy already established, do not require an
agency to bargain thereon. Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland, 17 FLRA 1011.
General Counsel adverts to the fact that a mentor is referred to as an
older man and thus it changes eligibility since a younger person would not
now meet the criteria. However, the superintendent makes it clear that
"older" refer to the profession and this is synonymous with
someone more experienced and mature. There is no indication that a
"mentor" could not be younger in age than one who is guided by
him. Further, the requirements for a mentoring relationship, i.e.
attraction, action, and affect, are merely part and parcel of the aforesaid
definition of a "mentor" as a teacher, tutor or coach to less
experienced persons. They do not change what was deemed necessary to occupy
such a title, but are descriptive in nature of the term. Hence, I conclude
Respondent did not unilaterally change a condition of employment by
defining this criteria. Its failure and refusal to bargain on the impact
and implementation thereof was not violative of 7116(a)(1) and (5) of the
Statute.
Case No. 1-CA-70068
Respondent raises as a defense herein that the charge was not filed within
six months of the alleged unfair labor practices as required by Section
7118(a)(4) of the Statute. 9 With respect to the alleged change in the
qualification: "Applies current concepts and findings from research
and/or studies to practice," management issued its memo to the head
nurses/supervisors on April 11, 1986. Since the charge concerning that
alleged change was filed on November 17, 1986, it is contended by
Respondent's Answer that it was not timely filed within six months of the
change and are barred by the Statute.
Record facts indicate that the April 11, 1986 memo was distributed only to
managerial personnel and was intended for use by the head nurses or
supervisors who issued proficiency reports. No notification thereof was
given to the Union, nor did the latter receive a copy thereof. It was not
until the Union steward, Agnes Cassidy, was approached by nurse Jerry
Vannah in October 1986 that the Union became aware of the directive
concerning the research and study qualifications. The foregoing persuades
me that the Union was never in a position to know about the newly defined
terms until Vannah showed the memo to Cassidy in October. No evidence
appears in the record that Vannah, the other nurses, or the Union
representatives, knew of it
beforehand.
While it may well be that no deliberate effort was made by management to
conceal the April 11 memorandum, it is also true that the Union was unable
to learn of it and to file charges within six months of that date. The
Authority has recognized that equitable reasons may well call for
suspending the running of the six month period under Section 7118(a)(4).
Where unique circumstances prevail, time limits imposed by statute may be
suspended, and nothing in the aforesaid statutory provision precludes the
application of equitable principles in computing the time period.
Department of the Air Force, Headquarters 83rd Combat Support Group, DPCE,
Luke Air Force Base, Arizona, 24 FLRA 1021. 10 The circumstances herein,
which resulted in the Union's having no knowledge of the definitive
qualification concerning research and/or studies until October 1986,
justify suspending the time period herein. In view of the fact that the
charge with respect to this alleged change was filed a month after the
Union learned of the memorandum, I conclude it was timely filed under
section 7118(a)(4) of the Statute.
In respect to the qualification standards of "research and
study," I conclude that the April 11, 1986, memo initiated a change in
the requirements for complying therewith to justify a promotion to,
intermediate nurse. The redefined terms called for five elements in regard
to "research." As an example, a thesis is mentioned in the memo.
With regard to "studies," Harness stated therein that it needs to
be a formalized study of a subject. The Chief Nurse "would expect some
evidence of written documentation of the study, why there was a problem,
what was done to collect data, what was changed and the evaluation after
implementation of the recommendation which came out of the studies."
The credible, and for the most part unrefuted evidence, as testified to by
nurse Cassidy reveals that no such formalized study was a prerequisite
beforehand. The expectations in this regard, as set forth in this memo,
were not imposed upon nurses in the past in order to fulfill this standard.
Cassidy's testimony, that the requirements which must be met for this
standard were a change, was not countered by other evidence to demonstrate
exactly what was required previously. Nor does the record reflect clearly
that the elements set forth in respect to "research and study"
were not a change. Accordingly, I conclude that, by not notifying the Union
and affording it an opportunity to bargain concerning the impact and
implementation of this change, Respondent violated Section 7116(a)(1) and
(5) of the
Statute. 11
Having found that Respondent violated section 7116(a)(1) and (5) of the
Statute by changing the requirements to meet the qualification standards,
"applies current concepts and findings from research and/or studies to
practice," it is recommended that the Authority issue the following
order designed to effectuate the purposes and policies of the Statute.
It is also recommended that the allegation of the Complaint in Case No.
1-CA-70069, that Respondent on June 2, 1986 unilaterally changed the
definition of "mentor" in the qualification standards for
promotion of nurses, be dismissed.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations Authority's
Rules and Regulations and section 7118 of the Statute, it is hereby ordered
that the Veterans Administration (Washington, D.C.) and Veterans
Administration Medical and Regional Office Center (Togus, Maine), shall:
1. Cease and desist from:
(a) Instituting changes in the criteria for clinical skills in the
qualification standards for promotion of full grade nurses to the
intermediate grade without affording American Federation of Government
Employees, Local 2610, AFL - CIO, the representative of its employees at
its Regional Office Center, Togus, Maine, the opportunity to bargain
concerning the procedures for implementing such changes and concerning
appropriate arrangements for employees adversely affected by such changes.
(b) In any like or related manner interfering with,
restraining or coercing employees in the exercise of their rights assured
by the Federal Service Labor - Management Relations
Statute.
2. Take the following affirmative action:
(a) Rescind the memorandum issued on April 11, 1986 to all Head
Nurses/Supervisors in respect to the requirements to comply with the
criteria: "applies current concepts and findings from research and/or
studies to practice" in order to promote a full grade nurse to the
intermediate grade at the Togus, Maine Regional Office Center.
(b) Return to the requirement existing prior to April 11, 1986 necessary to
comply with the criteria: "applies current concepts and findings from
research and/or studies to practice" in order to promote a nurse to
the intermediate grade at the Togus, Maine, Regional Office Center.
(c) Notify the American Federation of Government Employees, Local 2610, AFL
- CIO, the representative of its employees at the Regional Office Center,
Togus, Maine, of any intention to change the criteria for clinical skills
in the qualification standards for promotion of full grade nurses to
intermediate nurses, and, upon request bargain in good faith as to the
procedures for implementing such change and concerning appropriate
arrangements for employees adversely affected by such a change.
(d) Upon request, reboard and reevaluate all nurses at the Togus, Maine
Regional Office Center who were denied a promotion to the intermediate
grade level since April 11, 1986, based, in part or in whole, on the
failure by said nurses to comply with the requirements set forth in the
April 11, 1986 memorandum to Head Nurses/Supervisors in respect to the
criteria: "Applies current concepts and findings from research and/or
studies to practice."
(e) Make whole any nurses whose reboarding and reevaluation results in
their being promoted retroactively to the intermediate grade after April
11, 1986 based on their having satisfied the criteria as it existed prior
to that date in respect to "Applies current concepts and findings from
research and/or studies to practice."
(f) Post at its Togus, Maine facility copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the Superintendent of the
Togus, Maine Regional Office Center, or his designee, and shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous places,
including bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other material.
(g) Notify the Regional Director, Region I, Federal Labor Relations
Authority, 10 Causeway Street, Room 1017, Boston, MA 02222-1046, in
writing, within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
WILLIAM NAIMARK
Administrative Law Judge
Dated: July 6, 1988
Washington, D.C.
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute changes in the criteria for clinical skills
in the qualification standards for promotion of full grade nurses
to the intermediate grade without affording American Federation
of Government Employees, Local 2610, AFL - CIO, the
representative of our employees at our Regional Office Center,
Togus, Maine, the opportunity to bargain concerning the
procedures for implementing such changes and concerning
appropriate arrangements for employees adversely affected by such
changes.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
assured by the Federal Service Labor - Management Relations
Statute.
WE WILL rescind the memorandum issued on April 11, 1986 to
all Head Nurses/Supervisors in respect to the requirements to
comply with the criteria: "applies current concepts and findings
from research and/or studies to practice" in order to promote a
full grade nurse to the intermediate grade at the Togus, Maine
Regional Office Center.
WE WILL return to the requirement existing prior to April
11, 1986 necessary to comply with the criteria: "applies current
concepts and findings from research and/or studies to practice"
in order to promote a nurse to the intermediate grade at the
Togus, Maine, Regional Office Center.
WE WILL notify the American Federation of Government
Employees, Local 2610, AFL - CIO, the representative of our
employees at the Regional Office Center, Togus, Maine, of any
intention to change the criteria for clinical skills in the
qualification standards for promotion of full grade nurses to
intermediate nurses, and, upon request bargain in good faith as
to the procedures for implementing such change and concerning
appropriate arrangements for employees adversely affected by such
a change.
WE WILL, upon request reboard and reevaluate all nurses at
the Togus, Maine Regional Office Center who were denied a
promotion to the intermediate grade level since April 11, 1986,
based, in part or in whole, on the failure by said nurses to
comply with the requirements set forth in the April 11, 1986
memorandum to Head Nurses/Supervisors in respect to the criteria:
"Applies current concepts and findings from research and/or
studies to practice."
WE WILL make whole any nurses whose reboarding and
reevaluation results in their being promoted retroactively to the
intermediate grade after April 11, 1986 based on their having
satisfied the criteria as it existed prior to that date in
respect to "Applies current concepts and findings from research
and/or studies to practice."
_________________________________
(Activity)
Dated: _______________ By: _________________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by
any other material.
If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor
Relations Authority, Region I, whose address is: 10 Causeway
Street, Room 1017, Boston, MA 02222-1046, and whose telephone
number is: (617) 565-7280.
APPENDIX I
Veterans
Administration
MEMORANDUM
Date March 3, 1986
From Chief, Nursing Service (118)
Subj Definition of Mentor
To Head Nurses/Supervisors
1. The following is a composite of several sources, e.g. Central
Office, Regional N P S B members, N P S B chairpersons at other
V.A. field facilities.
a. Central Office stated "mentor means that this nurse is so
expert that when a new nurse comes on a unit, that is who is
going to take her under his/her wing and teach her how to do
nursing care of this particular group of patients. This is
because his/her expertise in some area of nursing."
b. The Regional N P S B, as did other N P S B's outside of
this region, stated they are accepting "preceptors" as a
substitute for the word mentor after the individual has been
through a preceptorship training program and is the only
individual on a unit to "precept" newly assigned nurses. In many
instances the preceptor rotates to the "off tours" to orient
newly assigned employees to those tours.
c. According to Greek mythology, mentor was the wise old men
to whom Ulysses entrusted the tutoring of his son Telemachus.
2. A mentor relationship is part of a developmental process
in which the primary concern is establishing and guiding the next
generation. The mentor guides and supports the neophyte toward
self-knowledge and independence. The relationship is
fueled by unselfish gifts of time, energy, and material support.
Mentor role goes beyond being a resource person which must be
approached for information or guidance.
3. The mentor relationship focuses on three major benefits
to the neophyte:
a. It assists the person in preparing for a leadership role
and developing leadership qualities such as: risk taking,
sharing, learning to relate to people and creativity.
b. It promotes career advancement and success.
c. It provides greater personal satisfaction, increased
self-confidence, and enhanced self-esteem.
4. The absolute requirements for a mentoring relationship
are attraction, action, and affect.
a. Attraction: The neophyte has a desire to emulate the
mentor in some way.
b. Action: The mentor invests time and energy on the
neophyte's behalf through teaching, guiding or helping in
professional development.
c. Affect: The mentor displays positive feelings toward the
neophyte in forms of respect, encouragement, support. These are
displayed in three basic mentoring roles:
(1) Inspires - the mentor is looked up to, values, admires,
emulates. The mentor communicates an image, goal, or vision of
the professional work and stimulates the mentee by personal
enthusiasm or dynamism.
(2) Investor - the mentor communicates belief in the mentee
and invests in the person through some type of action.
(3) Supporter - provides emotional encouragement and
reassurance, instilling confidence and fostering risk-taking.
5. A mentor is then an older (to the profession), wiser and
more experienced person who actively guides, advises, and
nurtures a younger person. The mentor is critical to the younger
person's professional development, career success, and
satisfaction. It is more than a role model since it is the most
intense and "paternalistic" in shaping the careers of proteges. A
mentor generally refers to someone who acts as a:
a. Teacher - to enhance the young person's skills and
intellectual development.
b. Sponsor - to ease the neophyte's entry and advancement.
c. Host and guide to welcome the initiate into a new
occupational and social world with its' unique values, customs,
and resources.
d. Exemplar to serve as a personal example of values and
achievements.
e. Counselor to provide advice and moral support.
6. Consultant - a nurse with so much expertise in nursing
that other nurses come to her/him for guidance as to how to take
care of a particular patient. Consultant goes beyond interactions
between nurses during change of shift reports, team conferences,
and in-services. There has to be recognized expertise in nursing
so that other nurses seek that individual out. It goes above and
beyond basic and advanced nursing skills that everyone working in
a certain area is expected to have.
/s/ WILLIAM HARNESS, R.N.
APPENDIX II
Veterans
Administration
MEMORANDUM
Date APRIL 11, 1986
From Chief, Nursing Service (118)
Subj Management Communication - R.N. Qualification
Standards
To Head Nurses/Supervisors
1. The following are interpretations of R.N. qualification
standards which may be beneficial to you when writing proficiency
reports.
2. Program: a sequence of operations to be performed; an
organized list of procedures or schedule; procedure for solving a
problem including data collection, processing and presentation of
results. A program is a wide range of activities or services,
although it may be in one area or one ward. It usually does touch
on other services. Examples of programs include PTSD, ADTP,
Infection Control, Day Treatment, Employee Health, Safety,
Quality Assurance. Criteria D states "professional nursing
practice which has been characterized by leadership and
accomplishment in developing and implementing programs to improve
the delivery of nursing care," therefore Professional Standards
Board should expect that nurses assess the need for new programs,
write the proposal for the program, implements and evaluates the
program. The nurse should also do the same evaluation of current
nursing programs to discern weaknesses and deficiencies, to
eliminate or revise obsolete programs.
3. Research: A scholarly or scientific investigation or
inquiry; investigation or experimentation aimed at discovery and
interpretation of facts; revision of accepted theories or laws.
Examples of research include a thesis at the graduate level or
research being done here on station through the Research
Department. Research includes the following elements:
a. Hypothesis or question
b. A literature review (library search)
c. Explanation of the methodology which includes
(validity, reliability)
d. Data collection
e. Discussion of the results
At the Intermediate Grade level, the qualification standards
states "applies current concepts and findings from research
and/or studies to practice." For Senior Grade level, the
qualification standards states "initiates change in clinical
practice based on current concepts and findings from research
and/or studies."
4. Studies: to undertake a formal study of a subject.
Studies do not have the level of rigor that research does,
meaning that the patient population may not be as required for
research; that the library search is not as extensive; that the
number of hypotheses or questions to be considered are not as
extensive as in research. Library search or simply reading
several articles does not constitute a study for grade
qualifications. Eventhough we loosely use the terminology "I'm
going to go study," such as for an examination or for a class I'm
taking. That is not a "study." The rater under the Intermediate
grade indicates the application of current concepts from research
or studies to practice, must identify the research/study concept,
describe how it was applied, and tell something about the
outcome. Again if the individual is performing a study, it needs
to be a formalized study of a subject, meaning that the Chief
Nurse would expect some evidence of written documentation of the
study, why there was a problem, what was done to collect data,
what was changed and the evaluation after implementation of the
recommendations which came out of the studies. At the
Senior grade level, under the clinical standard - "initiates
changes in clinical practice based on current concepts and
findings from research/studies." This has to be based on the
systematic evaluation of current practice and the identification
of a problem. The nurse reviews the literature, has several
studies to support the desired change, pilots the changes,
evaluate the results and then implements on a broader scope.
Again it is pointed out that the qualification standards clearly
states that just doing the research or study is not enough. It is
the application of knowledge gained from the research or studies
at the Intermediate level or initiating changes in clinical
practice at the Senior level.
7. Take note that certain qualification standards appear at
different levels, specifically in Full, Intermediate, and Senior
grade, there is the qualification standard "demonstrated ability
to work effectively with patients, families, or significant
others." Obviously as the person attains different grades, the
expectations of the grade change, e.g. the interpersonal
relationships changing from ward, several wards, services, etc.,
therefore the criteria must be reviewed for that grade level.
/s/ WILLIAM HARNESS, R.N.
FOOTNOTES:
(If blank, the decision does not have footnotes.)
Footnote 1
Respondent also raised as a defense that the Complaint was
not specific or did not contain a clear and
concise statement of facts. The undersigned finds such defense to be
without merit since the allegations contain sufficient facts to apprise
Respondent as to the nature thereof and the alleged unfair labor practices.
Footnote 2
MP-5, Part II, Chapter 5, par. 5; DM&S Supp.
Chapter 5, par, 5104; MP-5, Part II, Chapter 6, par. 7; DM&S Supp.
Chapter 6, par. 6.07 and 6.08.
Footnote 3
After each clinical skill rating ("met" or
"not met"), a space was provided for an example to be given.
Footnote 4
The memo is hereinafter attached as Appendix I.
Footnote 5
The memo is hereinafter attached as Appendix
II.
Footnote 6
"Reboarded" means the Board again considers the
application for promotion to the next grade -- a return to the Board.
Footnote 7
Vannah was denied a promotion on June 22, 1984 but the
Board's action merely stated he did not meet the
criteria for intermediate grade. This nurse was not recommended for
promotion on June 2, 1986 because of not meeting requirements of
"research and study" as well as "mentor." He did meet
the "research and study" criteria on November 12, 1986 but was
again denied a promotion for not meeting other requirements.
Footnote 8
While Respondent raises several other affirmative defenses
in its Answer, the undersigned finds it unnecessary to rule on the merits
thereof in view of the ultimate disposition herein.
Footnote 9
Section 7118. Prevention of unfair labor practices
(a)(4)(A) Except as provided in subparagraph (B)
of this paragraph, no complaint shall be issued based on any alleged unfair
labor practice which occurred more than 6 months before the filing of the
charge with the Authority.
Footnote 10
The Authority therein applied the same principle
enunciated by the Supreme Court in Glus v. Brooklyn Eastern District
Terminal, 359 U.S. 231 (1959).
Footnote 11
Respondent's contention that any change brought by the
memos is de minimis is rejected. The extent of the
change becomes apparent when it is seen that it could affect the promotion
of nurses and their grades. Such a vital concern gives rise to a bargaining
obligation. See and compare Department of Health and Human Services, Social
Security Administration, 24 FLRA 403. Respondent's further contends that
requiring it to bargain on a communication from the Chief Nurse to the
Board would interfere with reserved management rights. This argument is
rejected. Management is obligated to bargain re the impact and
implementation of a change in working conditions. No limitation is placed
on its "deliberative process" as urged by Respondent. See
Department of the Treasury, Internal Revenue Service, et. al. 32 FLRA
No. 38, where the Authority held the disclosure of documents is not barred
under Section 7114(b)(4) because they concern the "deliberative
process" under Section 7106.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)