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28 FLRA NO. 35

ILLINOIS NURSES' ASSOCIATION

              Union

         and

VETERANS ADMINISTRATION
MEDICAL CENTER
HINES, ILLINOIS

              Agency

Case Nos. O-NG-1212
          O-NG-1234

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

These cases are before the Authority because of negotiability appeals filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and concern the negotiability of 13 multi-sectioned proposals.

II. Preliminary Matters

The Veterans Administration (VA or Agency) raises two common issues with respect to the negotiability of each proposal 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 barred from negotiations by its "legislative regulations' which have the force and effect of law. For the following reasons we reject the Agency's contentions.

In Colorado Nurses Association and veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987), petition for review filed sub nom. Colorado Nurses Association v. FLRA, No. 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. 1 In so holding, we rejected the Agency's contentions that certain sections of Title 38 barred negotiations under the Statute of DM&S employees' conditions of employment and 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 holdings for the reasons stated in VA Medical Center, Ft. Lyons.

In addition, since the Agency's personnel regulations apply only within the VA itself, they are not Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. See VA Medical Center, Ft. Lyons. An agency's regulation can bar negotiations on a conflicting Union proposal, therefore, only if a compelling need exists for that regulation under section 7117(a)(2) of the Statute and section 2424.11 of our Regulations. In American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986), the Authority stated that 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.

The Agency does not make any claim that a compelling need exists for those regulations which are asserted to bar negotiations on Proposals 3, 11, 12 and 13. Therefore, the Agency's regulations cannot serve to bar negotiations on these proposals.

Accordingly, 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 those same general arguments as to each proposal at issue, we will not restate those contentions and we will not further consider those issues. We now turn to the specific proposals and the other issues involved in this case.  

III. Proposal 1 2

Article VI. PROFICIENCY REPORTS AND PROMOTIONS

Section 3. The Proficiency Rating Official will counsel the marginal (Numerical Score 39 to 59) or unsatisfactory (Numerical Score 38 or below) nurse approximately 90 days prior to the due date of the Proficiency Report. Counseling as provided in this section is not discipline.

It shall not be part of an employee's official Personnel Folder nor shall such counseling be used by the Rating Supervisor unless the employee has been advised that counseling has occurred.

At the time of the orientation conducted in Nursing Service, the Hospital will provide copies of Nursing Service Memorandum Covering the "Nurse Professional Standards Board" and the VA "Nurse Qualification Standards" and Hospital memorandum covering "Probationary Period." These memoranda will be discussed as part of the orientation procedure. Upon assignment to their nursing unit, the immediate supervisor will discuss with new employees the goals and expectations of the hospital and the supervisor which may be utilized in the proficiency rating process.

Upon assignment to the management position in a nursing unit, the immediate supervisor will conduct a group meeting of the professional nurses assigned to such unit for the purpose of reviewing her interpretation of the Qualification Standards. This meeting will be conducted within 90 days of the new supervisor's appointment. (Only underlined portions are in Dispute.)  

A. positions of the Parties

The Agency asserts that paragraph 1 of Proposal 1 con-flicts with management's rights to direct employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) because it specifies the levels for marginal and unsatisfactory ratings. The Agency also contends that paragraphs 3 and 4 restrict management's right? to assign employees and to assign work because they require orientation training for new employees or when there is a new supervisor. Additionally, the Agency argues that paragraphs 1, 3 and 4 are nonnegotiable under section 7106 (a)(2)(B) because they mandate that specific management officials perform counseling duties, meet with unit employees, and review Agency memoranda concerning professional standards. Finally, the Agency claims that Proposal 1 conflicts with VA Manual MP-5, Part I, Chapter 410, paragraph 7b and Part II, Chapters 5 and 6; VA Manual M-8, Part IV, Chapters 1 and 2 and DM&S Supplement, by requiring certain orientation training irrespective of patient care needs. The Agency asserts that a compelling need exists for these regulations to bar negotiations on Proposal 1.

The Union asserts that paragraph 1 provides a procedure to be followed when management determines that an employee's performance is marginal or unsatisfactory. It states that the VA has determined by its own rules that a score of 38 or below is equivalent to an unsatisfactory rating. The Union explains that the intent of that paragraph is to assure that those employees are provided with notice of their status and are counseled. The Union contends that the third paragraph provides new employees with (1) copies of Agency policies and statements relating to the proficiency review process and the probationary period and (2) an opportunity to review with supervisors specific proficiency rating procedures and other relevant information which an employee would need to know in meeting the expectations of the Nursing Service Department and the particular supervisor. The Union states that the purpose of the final paragraph of Proposal 1 is to assure that employees know the performance requirements of the supervisor who is to rate them.

B. Analysis and Conclusions

In Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29 (1987), petition for review filed sub.nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C Cir.  March 26, 1987), we reviewed the negotiability of matters pertaining to performance appraisal system. Generally, proposals concerning application of performance standards are negotiable and proposals Concerning content of performance standards are outside the duty to bargain. Id., slip op. at 2-4.

The first paragraph of Section 3 provides that the Proficiency Rating Official will counsel the employee who is performing at a marginal or unsatisfactory level 90 days prior to the due date of the Proficiency Report. The Union asserts that the proposal is intended as a procedure to be followed when the Agency determines that an employee's proficiency falls within the marginal or unsatisfactory proficiency falls within the marginal or unsatisfactory levels. While we agree that paragraph 1 of Section 3 provides procedures for employee counseling, we nevertheless find that because paragraph 1 determines the numerical standard or "score" for "marginal" and "unsatisfactory" ratings it is nonnegotiable. We held in Patent and Trademark Office that a proposal which establish s a criterion for determining the level of performance needed to justify an unacceptable rating, restricted management's discretion to determine the levels of performance sufficient for certain ratings and directly interfered with management's rights to direct employees and assign work. See id., slip op. at 21. Section 3, paragraph 1 is outside the duty to bargain inasmuch as it determines the levels of performance (by numerical score) sufficient for certain ratings.

We note that the numerical score for an unsatisfactory rating, as set forth in the first paragraph of section 3, is a restatement of a portion of VA Manual MP-5, Part II, Ch. 6 and the DM&S Supplement. As we stated in sections 4.H and 4.I in Patent and Trademark Office, slip op. at 19, if a particular matter is otherwise negotiable, the matter is not rendered nonnegotiable strictly on the basis that it is a part of the Agency's appraisal system. However, if a particular subject matter contained in the Agency's performance appraisal system is an exercise of management's rights under section 7106(a) of the Statute, the parties cannot bargain about including that aspect of the system in a collective bargaining agreement because management would be bound by the provision for the life of the contract and would be precluded from discontinuing or modifying it. See also Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA No. 79 1987) (Proposal 7, Section 4).

Paragraphs 3 and 4 of the proposal require the immediate supervisor to conduct an orientation of new employees in the   proficiency rating system and new supervisors to explain their interpretation of that system. We have held that a proposal specifying which personnel within the Agency will provide instructions to bargaining unit employees implicitly prevents assigning those functions to other personnel and thus is outside the duty to bargain because it is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. American Federation of Government Employees, AFL - CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440, 443 (1982). See also National Treasury Employees Union and Department of the Treasury, 21 FLRA of Section 3 are nonnegotiable to the extent that they specify particular Agency personnel (immediate supervisor) to perform certain job functions and restrict the Agency's discretion to assign those duties to other employees.

Although we have found Proposal I nonnegotiable for the reasons stated, we note that the proposal as a whole concerns counseling of employees who are bordering on unsatisfactory performance and providing notice to employees of the criteria and procedures which will be used to appraise them. We have held that a proposal which provides for a 90-day counseling period prior to the issuance of a performance rating is a negotiable procedure. VA Medical Center, North Chicago, 27 FLRA No. 79 (Proposal 7). We have also held that proposals, like the first sentence of paragraph 3, which require management to give notice to employees of the job elements which (1) will be subject to performance evaluation and (2) are deemed by management to be critical are negotiable as procedures. See American Federation of Government Employees, AFL - CIO, General Committee of AFGE for SSA Locals and Social Security Administration, 23 FLRA No. 43 (1986) (Proposal 5), application for enforcement filed sub nom. FLRA v. Social Security Administration, No, 87-1118 (D.C. Cir. March 9, 1987). See also American Federation of Government Employees, AFL - CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 25 FLRA No. 2 (1987) (Proposal 3). If the last sentence of the third paragraph and the fourth paragraph of Proposal 1 were revised to be consistent with this precedent, they too would not be barred from negotiations by management's rights under the Statute. See American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Missile Command, Command, the U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command - Redstone Arsenal Commissary, 27 FLRA No. 14 (1987), slip op. at 13.  Although we have found Proposal 1 to be nonnegotiable, we will address the Agency's claim that a compelling need exists for its regulations which provide that nurse assignments be made on the basis of patient care needs. The Agency makes no specific showing as to how Proposal 1 concerning counseling of employees would conflict with those objectives. If this proposal were revised consistent with our discussion so as to render it negotiable, the Agency's regulations would not bar negotiation under section 7117(a)(2) of the Statute, absent a specific showing that the proposal conflicts with patient care objectives.

IV. Proposal 2

Article VI. PROFICIENCY REPORTS AND PROMOTIONS

Section 5. Nurses will be notified of all actions of the Hines Nurse Professional Standards Board within a reasonable time not to exceed 30 days after the Board meeting. A negative Board Recommendation will be discussed with the Nurse by the Chief Nurse or designee. If the Nurse meets educational, experience, and time-in-grade requirements for promotion, she/he will be considered annually.

Section 6. If a Nurse believes that the Hospital is not complying with the provisions of MP-5, Part II, Chapter 5 and 6 (Proficiency Rating System and Advancements) she/he may submit a memorandum to her/his supervisor and receive an explanation within ten (10) work days.

A. Positions of the Parties

The Agency contends that Proposal 2 conflicts with its rights to assign, promote, select and determine the method and means of accomplishing its mission. According to the Agency, the proposal would require the Professional Standards Board to consider certain employees for promotion and advancement and would require the Agency to notify employee-applicants of their decision and meet with non-selected employees. The Agency also asserts that the proposal interferes with its right to make specific work assignments to particular employees. The Agency further argues that the procedures used for promoting employees constitute a "method and means of performing work" under section 7106(b)(1) and are not within the duty to bargain. The Agency also claims that Proposal 2 conflicts with VA Manual MP-5, Part II, Chapter 5, paragraphs 6, 71 8 and DM&S Supplement, paragraphs 5.05,  5.07, 5.10 and 5.11, because it concerns promotions to higher-level, more responsible positions. The Agency argues that since these promotions have a direct bearing on the quality of patient care, its regulations are supported by a compelling need.

The Union describes Section 5 as a procedure that offers employees who are denied promotions an opportunity to know the basis for non-promotion. The Union contends that the second sentence is consistent with the Agency's practice and assures annual consideration for promotion when experience and educational standards are already met. It also argues that Section 5 only assures the opportunity for review, but does not require that the Agency promote the employee. The Union states that Section 6 allows employees to raise procedural questions if the employees believe that the supervisor is not following the Agency's rating process. The Union asserts that the requirement will help employees understand the Agency's complicated procedures and requirements relating to rating, promotion and advancement.

B. Analysis and Conclusions

The first sentence of Section 5 requires the Agency to provide employees with information about Board actions which affect them. The clear language of the first sentence of Section 5 does not restrict management in the exercise of its rights under section 7106(a) of the Statute. Further, the Agency does not assert that the notification requirement, itself, infringes on any management right. See social Security Administration, Baltimore, Maryland, 25 FLRA No. 2 (1987) (Proposal 2, paragraph A). The first sentence of Section 5 is within the duty to bargain.

We find the second sentence of Section 5 of Proposal 2 to be nonnegotiable. That sentence seeks to designate a particular individual within the Agency who will discuss negative Board recommendations with the affected employee. We have consistently held that the designation of a particular management official to perform specified tasks is inconsistent with an agency's right to assign work under 7106(a)(2)(B) of the Statute. National Treasury Employees Union and Department of the Treasury, 21 FLRA No. 123 1986) (Provisions 2, 3, 4 and 5). See also Joint Council of Unions, GPO and United States Government Printing Office, 25 FLRA No. 86 (1987) (Proposal 4). However, the proposal would be negotiable if it preserved management's right to designate the individual within the Agency to perform the specified tasks. See U.S. missile Command, 27 FLRA No. 14 (1987).  

We find that the third sentence of section 5 of Proposal 2 is within the duty to bargain because it would only require the Agency to consider unit employees for promotion on an annual basis. The proposal does not violate the Agency's rights to make appointments or selections for promotion under section 7106(a)(2)(c) of the Statute by determining when or if an employee will be promoted. The proposal only requires the Agency to give consideration to, but not promote, unit employees. It does not prevent the Agency from considering other employees for promotion nor does it require that the Agency promote any particular employee. See National Treasury Employees Union and Internal Revenue service 21 FLRA No. 91 (1986). See also National Federation of Federal Employees, Local 29 and Kansas City District, Corps of Engineers, Kansas City, Missouri, 23 FLRA No. 79 (1986) (Proposal 1); National Federation of Federal Employees, Local 1332 and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, Virginia, 6 FLRA 361, 365-66 (1981). Further, the Agency has not demonstrated how Section 5 would interfere with its right to determine the method and means of accomplishing or furthering the Agency's work. The proposal does not concern how the appraisal will be done, nor does it dictate the tools or techniques which the Agency must use to conduct the appraisal. Rather, the proposal merely provides for notification and explanation of performance appraisal results. See National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270 (1983).

Section 6 of Proposal 2 is a negotiable procedure by which nurses may raise questions regarding the application of the proficiency and advancement process to individual employees. The Union has specifically stated that the intent of this proposal is to help employees understand the Agency's complicated procedures and requirements relating to rating, promotion and advancement. Petition for Review at 5; Memorandum In Support of Petition for Review at 33-34. The proposal allows employees to raise procedural questions when they believe that the supervisor is not following the Agency's rating process.

Based on the record, we find nothing in Section 6 that would prevent the Agency from establishing elements and standards for promotion and advancement pursuant to its statutory rights to direct employees and assign work. Section 6 only provides a procedure by which employees may bring procedural disputes concerning the application of performance elements and standards to a reviewing official within the Agency. See  National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region 25 FLRA No. 90 (1987) (Proposal 3); petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 87-1166 (D.C. Cir. April 15, 1987). Additionally, section 6 does not concern the methods and means of performing the Agency's work. Even assuming that the promotion and advancement of employees is Agency work within the meaning of section 7106(b)(1), Section 6 does not concern how that work will be performed, but only sets forth a procedure by which employees may question an action on the grounds that it is not in accordance with procedure.

We also find that the Agency has not demonstrated that the portions of Proposal 2 found to be otherwise negotiable conflict with any provision of its regulations. Under VA Manual MP-5, Part II, chapter 5 and the DM&S Supplement, employees are considered "periodically" for promotion in their particular profession. Additionally, the Agency has not shown how the procedures of Proposal 2 will affect its ability to deliver quality patient care. We conclude, therefore, that the VA regulations cited by the Agency do not bar negotiations on the portions of Proposal 2 which we have found to be otherwise negotiable. Additionally, if the second sentence of the proposal were revised to preserve management's rights, the VA regulations cited by the Agency would not bar negotiations in the absence of a specific showing that the proposal conflicts with the regulations or affects the quality of patient care.

V. Proposal 3

Article VIII. PROFESSIONAL STANDARDS BOARD

The local unit may submit suggestions of Registered Nurse employees qualified for serving on the the Nurse Professional Standards Board. The Hospital agrees to include four (4) qualified Unit employees in the nominations forwarded to the Hospital Director for appointment to the Professional Standards Board.

A. Positions of the Parties

The Agency contends that the proposal provides for Union participation in the organization and makeup of the Professional Standards Board and therefore interferes with the Agency's right to make personnel decisions concerning employees.   The Union contends that Proposal 3 is a procedure by which the Union may submit names of qualified bargaining unit nurses to the Chief Nurse. It asserts that Proposal 3 does not obligate the Chief Nurse to use the Union's recommendations, nor does it limit or mandate who is appointed to the Board. The Union states that the proposal only obligates the Chief Nurse to include at least four bargaining unit nurses in her recommendations to the Hospital Director.

B. Analysis and Conclusions

This proposal would permit the Union to submit suggestions regarding nurses qualified to serve on the Board. The proposal would require the Agency to include four (4) unit employees among the nominations forwarded for appointment to the Board. The proposal does not require the Agency to use any of the names suggested by the Union. Likewise, the proposal does not require the appointment of any unit employees to the Board. The Agency's contentions concerning its right to make personnel decisions, therefore, lack merit since the selection and appointment of Board members is completely within the Agency's discretion. See National Federation of Federal Employees, Local 2059 and U.S. Department of Justice, U.S. Attorney's Office, Southern District of New York, New York, New York, 22 FLRA No. 13 (1986). Therefore, Proposal 3, which is identical to Proposal 8, Section 2 in VA Medical Center, North Chicago, 27 FLRA No. 79, is within the Agency's duty to bargain proposal is distinguishable from the proposal found non-negotiable in National Federation of Federal Employees 1431 and Veterans Administration Medical Center East Orange, New Jersey, 9 FLRA 998, 1000-02 (1982). That proposal would have mandated appointments of a union representative to the Professional Standards Board and did not preserve the agency's discretion to make those appointments.

VI. Proposal 4

Article X. ASSIGNMENTS, DISPLACEMENT AND TOURS OF DUTY

Section 1. The parties recognize and accept the principles of management's rights as described in 5 U.S.C. 7106(a)(2)(A) and (B). The parties further agree that Registered Nurses are professional employees whose ability to effectively perform direct patient care functions is affected by assignments to the following tasks:  

a. Stripping, cleaning and remaking of discharge units.

b. Preparing, passing and collecting food trays.

c. General housekeeping - cleaning of furniture, floors, etc.

d. Transporting of patients and patient related data, such as x-rays, medical records, and specimens.

e. Secretarial duties during routine absence of a secretary.

Therefore, the parties agree that the tasks cited above are not ordinarily intended to be a normal part of a registered nurses' activities.

A. Positions of the Parties

The Agency contends that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) by limiting the assignment of non-professional duties to nurses. The Agency also asserts that the proposal conflicts with VA Manual MP-5, Part II, Chapters 7, 11 and DM&S Supplement which are supported by a compelling need.

The Union contends that Proposal 4 is a statement of general intent regarding the utilization of registered nurses at the Hospital. The Union asserts that the proposal expressly recognizes that its provisions cannot restrict the Hospital's ability to assign duties to the bargaining unit nurses. The Union further states that Proposal 4 is used as a basis for continuing labor-management discussions regarding conditions of work of the registered nurse that arise when the tasks described in the proposal are performed by unit employees either by direct assignment or because other employees are not available to perform the work.

B. Analysis and Conclusion

The Union characterizes Proposal 4 as a statement of general intent regarding the utilization of registered nurses at the Hospital. It states that the proposal expressly recognizes that its provisions cannot restrict the Hospital's ability to assign duties to unit nurses. The Authority has found that a proposal which restricts an agency's ability to assign non-professional duties to nurses is outside the duty to bargain. New York State Nurses Association and Veterans   Administration Medical Center, Bronx, New York, 11 FLRA 578 (1983). Likewise, a proposal which imposed a substantive condition on management's ability to make assignments to nurses was found nonnegotiable because it restricted the exercise of management's right by establishing a criterion under which management must justify its action in assigning non-professional duties to staff nurses. VA Medical Center Ft. Lyons, 25 FLRA No. 66 (Proposal 4).

In our view, Proposal 4 merely sets forth a mutual statement that certain tasks are not "ordinarily" a part of the nurses' normal work activity. The language of the proposal does not restrict the assignment of the tasks nor does it impose any criterion whereby management must make attempts to avoid certain assignments or is limited to making assignments only where specified conditions exist. Compare the proposal in New York Nurses Association, 11 FLRA 578, which was found nonnegotiable because it prevented the agency from assigning from assigning certain duties to nurses unless the circumstances described in the proposal existed. See also VA Medical Center, North Chicago, 27 FLRA No. 79 (Proposal 11) (proposal prevented assignment of certain duties except in "urgent needful situations").

Further, while the proposal would require the Agency to agree to a policy or goals, of not assigning certain duties as a normal part of the nurses' work activity, the specific language of the proposal and the union's statement of position both recognize that "the language simply cannot be used to restrict the Agency's ability to assign duties and work to the nurses." Memorandum In Support of Petition for Review at

37. Proposal 4 is within the duty to bargain.

As to the Agency's assertion that Proposal 4 conflicts with VA regulations which are supported by a compelling need, we find that the Agency has not identified any provision of its regulation which conflicts with Proposal 4. In the absence of specific evidence of a conflict, we conclude that the Agency's regulation does not serve as a bar to negotiation under section 7117 (a) (2) of the Statute.

VII. Proposal 5

Article X. ASSIGNMENTS, DISPLACEMENTS AND TOURS OF DUTY

Section 4. The schedules will be posted in the work area covering a period of not less than four (4) weeks. Once the time is posted, it will be changed only because of emergency.   "Emergency" in this section means a situation requiring a change in the posted schedule due to an event outside of the control of the Hospital which the Hospital could not reasonably have foreseen or planned to avoid.

When a schedule has to be changed because of an emergency, the Hospital will first change the schedule for nurses who volunteer for such changes and then equitably distribute involuntary changes among other nurses who regularly perform the same work. The Hospital and the Association agree that equitable distribution of involuntary work caused by schedule change might constitute a hardship for a particular nurse, and the Hospital will attempt to make allowances for demonstrated hardship wherever possible.

The Hospital agrees to inform the nurse of changes in her work schedule.

Section 5. Each nursing unit should have a pattern of time worked out that would provide safe practice with a fair and equitable distribution of time. Nurses will not be scheduled to work for more than six (6) consecutive days except by mutual agreement in writing. Every effort Will be made to give nurses every third weekend off. For purposes of this Agreement, a weekend is considered to be Saturday or Sunday. When it is necessary to utilize nurses for other than regularly scheduled tours of duty, efforts will be made to distribute such assignments equally in keeping with patient care needs.

Section 7. The immediate supervisor may excuse nurses from duty for up to 59 minutes for special circumstances as the needs of the service permit with no charge to leave.

Section 8. Administrative nonduty days for weekends and holidays will be scheduled in an equitable manner among the nurses in a scheduling unit. military reserve duty will be considered in scheduling as a nonduty weekend. Employees are expected to provide as much advance notice as possible of planned military leave (i.e., by securing letter from commanding Officer of unit).   Section 9. Individual nurses may request and be assigned to evening or night tours of duty indefinitely. Such nurses may be returned to daytime tours of duty for the purpose of closer supervision, training or development. The remaining nurses assigned to the Nursing Unit will rotate from days to evenings or nights but not more than two (2) tours within a one (1) week period.

A. Positions of the Parties

The Agency contends that all of the provisions of Proposal 5 interfere with the Agency's right under section 7106(a)(2)(B) to assign specific work to particular employees at specific times, by preventing certain assignments or by placing preconditions on the assignments. The Agency also claims that Proposal 5 conflicts with VA Manual MP-5, Part II, Chapter 7, paragraphs 3, 4, and 5 and DM&S Supplement, paragraph 7.04.b, c, and d. The Agency further argues that the regulations are supported by a compelling need.

The Union argues that Proposal 5 concerns hours of work and work schedules and does not address assignment of work or duties. The Union essentially asserts that Proposal 5 merely involves guidelines and procedures for notification of hours of work and the equitable distribution of employer-required changes in work schedules which are disruptive to employees.

B. Analysis and Conclusions

Section 4

The first sentence of the first paragraph of Section 4 provides for the posting of schedules covering a period of at least 4 weeks. That provision, standing alone, would not restrict the exercise of management's right to change work schedules, but merely provides a procedure for the posting of work schedules. See Proposal 2, Section 5, above. See also National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA No. 97 (1986) (Proposal 1). The second sentence of that paragraph, however, would prohibit the Agency from changing nurses work schedules once they have been posted, except for emergencies. The second sentence of the first paragraph of Section 4 is not a negotiable procedure since it directly interferes with management's right to assign work by conditioning the Agency's ability to alter employees' work schedules upon the existence of an emergency.  

In VA Medical Center, Ft. Lyons, 25 FLRA No. 66, we noted that the requirements of patient care may very throughout a day and during a week. The particular tasks to be performed to meet those requirements, therefore, must vary consistent with patient care needs. Because these tasks often involve specialized skills and knowledge of Special procedures and techniques not shared by all nurses, we held that proposals which would restrict management's ability to assign nurses to the particular shifts or tours of duty where those particular skills are needed, would directly interfere with management's right to assign work. id., slip op. at 12-13 (Proposal 2).

The Agency states that the tours of duty to which nurses are assigned do not involve the same work because, for example, on the night tour, certain specialized nursing experience might be needed. Agency Response to Union Petition for Review at 57. This case therefore, is distinguishable from National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 14 FLRA 243 (1984), where the Authority found that a provision which concerned the assignment of employees from the second or third shift to the "prime shift," did not involve different positions or different duties, but only involved employees' performing the duties of their positions during a different shift of work. The Authority held that the provision was negotiable because it solely concerned which employee, among those in the bargaining unit to whom management in its discretion had already assigned the work involved, would be selected to perform such work during a particular shift. Id. at 252-53. Section 4 is also distinguishable from Proposal 6 in VA Medical Center, Ft. Lyons because that proposal recognized and provided for consideration of the particular skills and qualifications of nurses required for patient care.

The fact that the proposal would permit management to change nurses' work schedules in an emergency renders the proposal consistent with management's right to take action in an emergency under section 7106(a)(2)(D) of the Statute. The proposal nevertheless directly interferes with management's right to assign work, because it would prohibit management from changing working schedules, once they have been posted, in situations which are not "emergencies."

Additionally, the first paragraph of Section 4 is not an "appropriate" arrangement for employees adversely affected by the exercise of a management right. It would prevent management from changing nurses, work schedules in situations which may not be considered "emergencies" and therefore   excessively interferes with management's right to assign work so as to meet patient care requirements. See VA Medical Center, Ft. Lyons, slip op. at 17-18.

The second paragraph of Section 4 defines the term "emergency." This provision is similar to provision 2 in U.S. Attorney's Office. Southern District of New York, New York, New York, 22 FLRA No. 13 (1986). In that case the Authority found that a union proposal defining "emergency" would limit the exercise of management's section 7106(a)(2)(D) right to those situations falling within the union's definition of "emergency." The second paragraph of Section 4, like provision 2 in U.S. Attorney's Office, Southern District of New York, is nonnegotiable because it would preclude the Agency from independently assessing whether an emergency situation exists.

The third paragraph of Section 4 concerns the equitable distribution of involuntary work caused by schedule changes. See VA Medical Center, Ft. Lyons (Proposal 6) (proposal requiring equitable distribution of night duty constituted a negotiable procedure to ensure fairness and equity in the assignment of duties). This proposal, however, states that where a system of equitable distribution is incorporated management will "attempt to make allowances for demonstrated hardship (of individual nurses) wherever possible." We find that the third paragraph of Section 4 is nonnegotiable because it would require the Agency to "attempt to make allowances" before assigning involuntary work to a particular nurse. The provision, therefore, imposes a substantive condition on management's right to assign work. The language restricts the exercise of that right by establishing a criterion under which management must justify its action; that is, the Agency must show that it assessed whether assignments would cause hardships for particular nurses and that it attempted to make allowances before making involuntary work assignments to staff nurses. See VA Medical Center, Ft. Lyons, slip op. at 18. See also National Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477, 479-80 (D.C. Cir. 1986), affirming National Federation of Federal Employees, Local 615 and National Park Service, Sequaia and Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA 318 (1985). For the reasons sated above, we find that the third paragraph of Section 4 is outside the Agency's duty to bargain.  

The last paragraph of Section 4 provides that the Agency shall inform nurses of changes in their work schedules. That provision does not restrict the exercise of any management right and merely provides a notice procedure so that nurses are aware of the hours they will be required to work. See Proposal 2, Section 5, above. See also National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air force Base, Illinois, 23 FLRA No. 97 (1986) (Proposal 1). The last paragraph of Section 4 is within the duty to bargain.

Section 5

The first sentence of Section 5 of this proposal indicates that there should be a fair and equitable distribution of time in the scheduling of nurses' tours of duty. This portion of Proposal 5 is to the same effect as the first sentence of Proposal 6 in VA Medical Center, Ft. Lyons, which we found to be within the duty to bargain. The proposal provided that evening and night duty would be distributed as equitably as possible. We found that the proposal was a procedure to ensure fairness and equity in the assignment of duties and was not concerned with whether employees will or will not be required to perform such duties. It is well established that proposals which accomplish a distribution "fairly and equitably" are negotiable. See Social Security Administration, 23 FLRA No. 43 (1986) (Proposals 4 and 7); American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784, 792-94 (1980). A provision to fairly and equitably assign overtime was found to be negotiable in American Federation of Government Employees, AFL - CIO, Local 1631 and Veterans Administration Medical Chillicothe, Ohio, 25 FLRA No. 26 (1987). Section 5 is distinguishable from American Federation of Government Employees, Local 3669, AFL - CIO and Veterans Administration Medical Center, Minneapolis, Minnesota, 2 FLRA 641 (1980), because that proposal guaranteed that nurses would have every other weekend off. Section 5 merely establishes a goal of equitable distribution and does not guarantee particular duty assignments. Therefore, the first sentence of Section 5 of the proposal is within the duty to bargain.

The second sentence of Section 5 of Proposal 5 limits the ability of the Agency to schedule nurses for more than six (6) consecutive days. That section prevents management from changing nursing schedules to meet its patient care needs. Further, it makes no provision for staffing requirements to meet the skills and qualifications for patient care needs. This sentence is therefore distinguishable from Proposal 6 in   VA Medical Center, Ft. Lyons, because that proposal recognized and provided for the skills and qualifications of nurses needed for patient care. Thus, section 5 of this proposal is to the same effect as Proposal 2 in VA Medical Center, Ft. Lyons. In that case, the proposal would have restricted management's right to determine employee work schedules by, for example, prescribing regular tours of duty and precluding split shifts and split days off. We found that the proposal directly interfered with management's right to assign work pursuant to section 7106(a)(2)(B) of the Statute by preventing management from scheduling an employee to perform particular duties on a specific shift consistent with the agency's patient care requirements. Because the second sentence of Section 5 would similarly interfere with management's right to assign work, it is not a negotiable procedure and is outside the Agency's duty to bargain.

The third and fourth sentences of Section 5 would require the Agency to make "every effort" to give nurses every third weekend off, weekends being defined as Saturday and Sunday. In Proposal 4 of VA Medical Center, Ft. Lyons, we found that language which required t e agency o make 'every attempt" constituted a substantive condition which interfered with management's right to assign work. The term "every effort" as used in Section 5 creates the same substantive limitation as that in VA Medical Center, Ft. Lyons. We find, therefore, that the third and fourth sentences Section 5 impose a substantive condition on management's right to assign work to employees. Rather than preserving management's right to assign work, the language restricts the exercise of that right by placing an obligation on the Agency to make every effort to guarantee nurses every third weekend off. The proposal fails to take into account the need of the Agency to vary nurses' work schedules and assign nurses with specialized skills as patient care needs dictate. If nurses were guaranteed every third weekend off, the Agency would not have the flexibility to make assignments to nurses on weekends which were not consistent with that schedule and would not be able to determine when work assignments would occur. We find that the third and fourth sentences of Section 5 directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute, and are nonnegotiable. See also VA Medical Center, North Chicago, 27 FLRA No. 79 (Proposal 3, Section 3).

The final sentence of Section 5 is within the duty to bargain. That sentence requires that assignments for other than regularly scheduled tours of duty be distributed equally among nurses "in keeping with patient care needs." The sentence is not inconsistent with management's rights and would not prevent the agency from scheduling employees  consistent with actual work requirements. The proposal expressly states that the non-regular assignments should be distributed equally among nurses only where it is in keeping with patient care needs. See National Association of Government Employees, SEIU, AFL - CIO and Veterans Administration Medical Center, Grand Junction, Colorado, 24 FLRA No. 21 (1086) (Proposal 4); National Association of Government Employees, Local R14-8 and Veterans Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17 (1986) (Proposal 3).

Section 7

Section 7 provides for the release of nurses from duty for up to 59 minutes for special circumstances with no charge to leave. The proposal does not restrict the Agency's ability to assign employees or assign work since it is free to determine the special circumstances which warrant release from duty. The proposal also expressly states that any grant of release time must be subject to "the needs of the service." Because the proposal does not mandate the grant of release time upon request, we do not find that it is inconsistent with management rights and, therefore, this section is negotiable. See, for example, VA Medical Center, Topeka, Kansas 24 FLRA No. 17 (1986) (Proposal 1) ; American Federation of Government Employees, Local 2094, AFL - CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA No. 81 (1986) (Proposal 7), petition for review filed sub nom. American Federation of Government Employees, AFL - CIO, Local 2094 v. FLRA, No. 86-1521 (D.C. Cir. Sept. 22, 1986). We note that while the proposal provides that the immediate supervisor may grant the employee's request, management has the discretion to designate additional officials or supervisors to perform that function. Compare paragraphs 3 and 4 of Proposal 1 of this decision.

Section 8

We find that Section 8 of Proposal 5 constitutes a negotiable procedure by which the Agency will exercise its right to assign work. The proposal is a procedure to ensure fairness and equity in the assignment of administrative nonduty days for weekends and holidays. The proposal is not concerned with whether employees will or will not be required to work on weekends and holidays. Rather, the proposal provides that, once the Agency has decided to schedule administrative nonduty days for weekends and holidays, it will schedule nonduty week-ends and holidays in an equitable manner among nurses in a scheduling unit. See VA Medical Center, Ft. Lyons, 25 FLRA No. 66 (Proposal 6). 

Section 9

The first portion of Section 9 of Proposal 5 would allow nurses to request and be assigned to evening or night tours of duty "indefinitely." The proposal provides that the Agency may return nurses to daytime duty for the purpose of closer supervision, training or development. The effect of this portion of the proposal, therefore, is to prevent the reassignment of certain nurses to perform duties on daytime shifts except for the reasons stated in the proposal. By preventing the reassignment of nurses to daytime shifts, the proposal would specifically prescribe the tour of duty of nurses who have been indefinitely assigned, per their request, to a night tour of duty. We found in VA Medical Center, Ft. Lyons, that a similar proposal (Proposal 2) was nonnegotiable because it directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. That proposal prevented the Agency from scheduling an employee to perform particular duties on a specific shift in a manner consistent with its patient care requirements. Consequently, because the first portion of Section 9 would prevent the reassignment of certain nurses for reasons other than closer supervision, training or development, it would interfere with management's right to assign work to nurses, consistent with patient care requirements. The first portion of Section 9 is outside the duty to bargain because it directly interferes with management rights under section 7106(a)(2)(B) of the Statute. Compare Proposal 9 in National Federation of Federal Employees, Local 1798 and Veterans Administration Medical Center, Martinisburg, West Virginia, 27 FLRA No. 37 (1987). The proposal in that case provided that employees may request and be granted a permanent shift that employees permits and if the employee is competent and reliable. We found the proposal negotiable because it required the grant of the employee's request only where the agency determined that the assignment was consistent with staffing needs and the employee was competent to perform the duties on the permanent shift and the employee was reliable. The proposal therefore allowed the agency the flexibility to deny a request and assign the employee to particular shifts consistent with its patient care needs. The proposal in this case, however, would add limitations on management's ability to change an assignment once the request is granted.

The remaining portion of Section 9 of the proposal would require the Agency to rotate certain nurses from the day shift to the evening or night shift within the limitation stated in the proposal. The Union asserts that nurses in the unit perform the same work on all three shifts. Consequently,  this portion of the proposal presumes that no special skills or qualifications are necessary to perform nursing duties on the different shifts and that all nurses are equally qualified to perform those duties. The effect of this portion of Section 9 is, therefore, to preclude consideration of factors which the Agency might choose to consider important in exercising its discretion to assign nurses to different shifts. For example, the Agency might choose to consider the varying degrees of skill and the individual specialties of the unit nurses. This portion of Proposal 5 is to the same effect as the proposal in Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA No. 95 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3395 (6th Cir. April 7, 1987), which required the agency to assign certain duties to volunteers or to all teachers on a rotational basis. We found that proposal to be inconsistent with management's rights under section 7106(a)(2) to assign employees and to assign work, because it removed the discretion of the agency to determine which employees were qualified to perform specific work. This portion of Section 9 likewise removes the discretion of the Agency to determine which employees are qualified to perform specific work. For the reasons stated in Fort Knox Dependent Schools, we find that this portion of Section 9 is not within the Agency's duty to bargain. Proposal 5 is distinguishable from Proposal 3 which we found to be negotiable as a "procedure" in VA Medical Center, Ft. Lyons, 25 FLRA No. 66. The parties in that case specifically acknowledged, and thereby protected, the Agency's exercise of its discretion with regard to its unique patient care needs. See also VA Medical Center, North Chicago, 27 FLRA No. 79 (Proposal 3, Section 4).

The Union claims that Section 9 is intended as an arrangement for employees adversely affected by the exercise of management's right to assign nurses to multiple tours of duty in one week. The Union asserts that since the Agency cannot assign nurses to work 24 hours a day, 7 days a week, the shift assignment restrictions are appropriate to minimize the adverse consequences of multiple tours of duty in a given workweek. Even assuming, however, that Section 9 constitutes an "arrangement" for employees adversely affected by management's right to assign work, it would not be an appropriate' arrangement within the meaning of section 7106(b)(3). Limiting management to one change in an employee's tour of duty in a workweek would excessively interfere with management's right to assign work so as to meet the requirements for patient care needs. Therefore, we cannot find that Section 9 is an appropriate arrangement under section 7106(b)(3) of the Statute. See VA Medical Center, North Chicago, slip op. at 10-11.  

 1. Numbers, Types, and Grades of Employees Assigned to a Tour of Duty

The Agency argues that in order to comply with Proposal 5, it would have to hire additional nurses and place related scheduling concerns above its concerns with the individual professional care skills and experience of individual nurses. The Agency asserts that Proposal 5, like the proposal in VA Medical Center, Minneapolis, Minnesota, 2 FLRA 640 (1980), bears a direct and integral relationship to the numbers or positions assigned to tours of duty, and is, therefore, beyond the duty to bargain. Agency Response at 58. In VA Medical Center, Minneapolis, Minnesota, the agency demonstrated, through the results of a survey and evaluation of the hospital's operations, that it could not comply with the requirement in the union's proposal of every other weekend off for all RNs in all areas because there was an insufficient number of full-time registered nurses qualified to assume overall ward responsibilities. The Union acknowledged that there was a direct and integral relation-ship between the proposal and the agency's staffing patterns. The Authority held that the proposal was determinative of the numbers, types or grades of employees or positions assigned to a tour of duty, and thus was negotiable at the election of the agency. The Agency has not demonstrated that it would be required to hire additional personnel in order to comply with the provisions of Proposal 5, nor has it shown that there is a direct and integral relationship between the proposal and the numbers, types, or grades of employees or positions assigned to a tour of duty. We find, therefore, that Proposal 5 is not determinative of the numbers, types, and grades of employees assigned to a tour of duty.

2. Compelling Need

The Agency claims generally that a compelling need exists for its regulations because they are essential to the VA patient care mission. It asserts that the VA must have control of the personnel system in order to deliver quality patient care. The Agency, however, makes no specific showing as to how the portions of Proposal 5 which we have found to be otherwise negotiable would conflict with its objective to deliver quality patient care. Further, the Agency has not shown that without the specific provisions of its regulations it would be unable to accomplish its patient care mission in a manner consistent with the requirements of an effective and efficient government. The Agency's generalized and conclusory claims regarding its patient care needs are not sufficient 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 No. 104 (1986) (Proposal 7). We conclude that the regulations cited by the Agency are not "essential" within the meaning of section 2424.11 of the Statute. We do not reach the question of compelling need as to the portions of this proposal which we have found to be nonnegotiable.

VIII. Proposal 6

Article X. ASSIGNMENT, DISPLACEMENT AND TOURS OF DUTY

Section 10. Notice of all professional nurse vacancies within bargaining unit will be maintained on the Nursing Service Bulletin Board, 1st Floor, Building 200, by the elevator. Notices will be posted promptly when the Hospital becomes aware of the vacancy. Preference will be given to qualified nurses presently employed when a vacancy is available. All applicants will be considered and interviewed, provided the applicant meets the required qualifications and is reasonably available for interview. All applicants will be notified in writing of the decision.

A. Positions of the Parties

The Agency contends that the part of this proposal which provides for preference to be given to qualified nurses presently employed interferes with its right to hire and select employees because it requires the Agency to favor currently employed nurses. The Agency also contends that the proposal's requirements of employee consideration, interviews and written notification, dictate that it include these management responsibilities as duty assignments of the responsible personnel and would interfere with management's right to assign work to employees.

The Agency also claims that Proposal 6 conflicts with VA Manual MP-5, Part II, Chapters 2, 5 and 11 and the DM&S Supplement, which provide for the appointment and placement of nurses consistent with patient care needs. The Agency asserts that a compelling need exists for these regulations to bar negotiations on this proposal.

The Union contends that the proposal does not involve the assignment of work, but concerns procedures providing for notice to employees of job openings and an opportunity to  apply and be considered. The union asserts that while no limit is placed on the Agency by the proposal, vacancies should be filled by qualified candidates in the bargaining unit.

B. Analysis and Conclusions

We find that the third sentence of Proposal 6 is within the duty to bargain. As we held in VA Medical Center, North Chicago, 27 FLRA No. 79 (Proposal 3, Section 5), this portion of the proposal is distinguishable from Proposal 5 in VA Medical Center, Ft. Lyons, 25 FLRA No. 66, requiring that preference will be given to nurses currently employed. We found that proposal to be nonnegotiable based upon the Union's statement as to the intended effect of the proposal. The Union stated that the proposal in that case permitted management to select a candidate from outside the Agency where there were no internal candidates. Because it limited the sources from which management would make selections to fill bargaining unit vacancies, namely, promotion or reassignment from within the Agency, we found that the proposal directly interfered with management's rights under section 7106(a)(2)(C).

The Union in this case, however, states that the purpose of Proposal 6 is primarily to provide procedures for notice of openings and a mechanism that assures that employees have a reasonable opportunity to apply and be considered. This portion of the proposal therefore has the same effect as the first paragraph of Proposal 2 in National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 26 FLRA No. 60 (1987). That portion of Proposal 2 provided that unit employees be given priority consideration filling vacancies and we held that it was negotiable. Based on the intent of Proposal 6 that unit employees have the opportunity to be considered, but not necessarily be selected, we find that it is within the duty to bargain.

The remainder of Proposal 6 constitutes procedures for informing employees of existing vacancies and notifying them of management's decision. As such, the remainder of this proposal is negotiable under section 7106(b)(2) of the Statute. See VA Medical Center, North Chicago (Proposal 3, Section 5).

Finally, the Agency claims generally that a compel-ling need exists for its regulation regarding selection of employees. The Agency has not shown that priority consideration and the procedures set forth in Proposal 6 in   any manner conflict with the patient care requirements of its regulations. We conclude, therefore, that the regulations cited by the Agency do not constitute a bar to negotiations on the remaining portions of Proposal 6.

IX. Proposal 7

Article X. ASSIGNMENTS, DISPLACEMENT AND TOURS OF DUTY

Section 11. Before making a decision to reassign a nurse from one ward to another for one (1) tour of duty, the appropriate immediate supervisor will evaluate all staffing options. The rationale for the decision will be discussed with the nurse in charge. If the charge nurse does not agree with the decision of the supervisor, on request, the supervisor shall review with the charge nurse the unit's staffing and patient acuity before a final decision is made.

A. Positions of the Parties

The Agency contends generally that this proposal contravenes management's right under section 7106 of the Statute to assign work and that it conflicts with Agency regulations for which a compelling need exists. The Union contends that this proposal provides a procedure for nurses to raise important considerations regarding the Agency's decision to loan a nurse to another unit for one shift. The Union argues that this procedure does not restrict the Agency from ultimately reassigning the nurse.

B. Analysis and Conclusion

We find that this proposal is not within the duty to bargain because it would require the assignment of certain duties to specified nonunit personnel. For example, it provides that the immediate supervisor of a nurse being considered for reassignment to another ward will evaluate all staffing options and the supervisor will review with the charge nurse the unit's staffing and patient acuity before a final decision is made. It therefore has the same effect as the proposal in Hawaii Federal Employees National Trade Council, AFL - CIO and Pearl Labor Naval Shipyard, 22 FLRA No. 73 (1986), where we held that the proposal directly interfered with management's right to assign work because it required nonunit personnel to perform specific duties. For the reasons set forth in Pearl Harbor Naval Shipyard,   therefore, we find the proposal in this case similarly interferes with management's right to assign work by prescribing certain duties to nonunit personnel. Thus, it is outside the duty to bargain. We note, however, that if the proposal were reworded to remove the designation of particular nonunit personnel, it would simply provide a procedure for considering the advisability of reassigning an employee. See U.S. Missile Command, 27 FLRA No. 14 (1987).

Although we have found Proposal 7 to be nonnegotiable, we will address the Agency's general claim that a compelling need exists for its regulations. The Agency makes no specific showing as to how Proposal 7 would conflict with its regulations. If this proposal were revised consistent with our discussion so as to render it negotiable, the Agency's regulations would not bar negotiation under section 7117 (a) (2) of the Statute, absent a specific showing that the proposal conflicts with its regulations.

X. Proposal 8

Article XII. ANNUAL LEAVE

Section 2. When more nurses than are allowed to be on planned leave choose the same weeks, preference shall be given to nurses with greater length of service as indicated by their service computation date. Employees may exercise seniority for a single vacation request of one week or more per twelve months (April 1 to April 1). Employees may not exercise seniority for the same vacation period for more than two (2) consecutive twelve-month periods.

Section 3. Once Annual Leave periods have been scheduled and approved, they will not be changed by the employees or Nursing service except as follows:

a. When granting approved leave would severely jeopardize the mission of the Hospital or the care of the patients.

b. Where the nurse requests a leave change that does not adversely affect the selection made by another nurse.

c. When a nurse transfers to another unit at her request, and her originally scheduled leave presents irresolvable conflict.  

 A. Positions of the Parties

The Agency contends that this proposal would pre-vent the Agency from determining when to assign particular employees to perform certain duties, or would impermissibly condition such determinations. The Agency also claims that Proposal 8 conflicts with VA Manual MP-5, Part II, Chapter 7 and its DM&S Supplement, because it is directly contrary to the patient care criteria for scheduling duty and leave. The Agency asserts that a compelling need exists for these regulations to bar negotiations on Proposal 8.

The Union contends that this proposal is consistent with the Agency's regulations. The Union argues that Section 2 provides an equitable procedure using revolving seniority to resolve conflicts in the scheduling of annual leave. The Union also takes the position that Section 3 addresses the process of granting annual leave once the Agency approves it and limits management's ability to change approved annual leave to emergency situations.

B. Analysis and Conclusions

Section 2

We find that Section 2 is within the duty to bargain. Section 2 provides an equitable procedure of granting annual leave according to seniority when there are scheduling conflicts. The Agency would retain complete discretion to grant or deny particular annual leave requests. Proposal 6, Section 3 (fifth and sixth sentences) in VA Medical Center, North Chicago 27 FLRA No. 79, provided for conflicts in scheduling leave to be resolved by service computation dates and rotated thereafter. We found the procedure to be negotiable. Consequently, Section 2 is within the duty to bargain. See also National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 4 FLRA No. 7

Section 3

We find that Section 3 is not within the duty to bar-gain. This proposal sets forth substantive criteria which would limit management in the exercise of its rights. The clear language of the proposal would prevent the Agency from changing approved annual leave unless it met the specified criteria. The Authority has found that a proposal which would require management to grant an employee's annual leave request without regard to the necessity for that employee's  services during the period covered by the request would effectively nullify the Agency's ability to determine when assigned work will be performed. See National Federation of Federal Employees, Local 15 and U.S. Army Armament Munitions and Chemical Command, Rock Island Arsenal, Illinois, 19 FLRA 48 (1985) (Proposal 1). While subsection 3(a) takes into account the need for an employee's services, it requirement that approved leave could not be changed unless it would severely jeopardize the mission of the Agency improperly restricts management's right to assign work. Therefore, because this proposal would prevent management from changing an employee's leave, we find that it would directly interfere with management's right under section 7106(a)(2)(B) of the Statute to assign work and is outside the duty to bargain. See also VA Medical Center, North Chicago, 27 FLRA No. 79 (Proposal 6, Section 4).

Finally, the Agency claims that Proposal 8 is barred by regulations for which a compelling need exists. Because Section 3 has been found to be nonnegotiable, we need not reach the issue of whether a compelling need exists for the Agency's regulations to bar negotiations on that Section.

With regard to Section 2, which we find otherwise negotiable, the Agency makes no specific showing as to how it would conflict with its objective to deliver quality patient care. Further, the Agency has not shown that without the specific provisions of its regulations it would be unable to accomplish it? patient care mission in a manner consistent with the requirements of an effective and efficient government. The Agency's generalized and conclusory claims regarding its patient care needs are not sufficient to support a finding of compelling need. See FDIC Madison Region, 21 FLRA No. 104 (1986).

XI. Proposal 9

Article XVII. NURSING EDUCATION

Section 1. The Nursing Education Staff will provide opportunities for Staff inservice and development by maintaining a current schedule of programs on a monthly basis which are available to all unit nurses on all tours of duty. The individual nurse must assume the initiative for attending these programs, and the Hospital will make every effort to provide release time for such attendance.  A. Position of the Parties

The Agency contends that Proposal 9 interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. Specifically, the Agency argues that this proposal requires it to make training assignments to nurses and release them to attend the training. The Agency also claims that Proposal 9 conflicts with VA Manual MP-5, Part I, Chapter 410 in that it would permit factors other than the best interests of patient care to dictate the assignment of employees. The Agency asserts that a compelling need exists for these regulations to bar negotiations on this proposal. The Union contends that this proposal only provides that nurses on all shifts be given the opportunity for training. The Union takes the position that the Agency has always provided some educational programming for unit nurses.

B. Analysis and Conclusion

We find that Proposal 9 is not within the duty to bargain. Proposal 9 requires the Agency to maintain a program of nursing education during duty hours and to release nursing employees to attend those training sessions. The Authority has consistently held that proposals which would obligate an agency to provide specific formal training or to assign employees to specific training programs 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) of the Statute. See Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL - CIO, 23 FLRA No. 33 (1987); VA Medical Center, North Chicago, 27 FLRA No. 79 (Proposal 5). Thus, this proposal is outside the duty to bargain because it is contrary to section 7106(a)(2)(B) of the Statute.

Finally, the Agency claims that Proposal 9 is barred by regulations for which a compelling need exists. Because Proposal 9 has been found to be nonnegotiable, we need not reach the issue of compelling need for the Agency's regulations to bar negotiations on Proposal 9.

XII. Proposal 10

Article XVIII. DISCIPLINE

Section 1. No registered nurse covered by this Agreement will be disciplined by admonishment, reprimand, suspension, demotion or discharge except for reasons of professional misconduct,  inaptitude or inefficiency, personal misconduct, or unwillingness to comply with instructions, policies(,) rules or regulation. Examples of personal misconduct include, but are not limited to: disorderly conduct, destruction of government records, use of narcotic drugs, intoxication, insubordination, theft of government property and falsehood. Errors of professional nursing judgement when negligence is not involved, or cases of difference of professional nursing opinion, will not be the basis of any form of discipline. Nurses will receive a copy of all formal counseling memoranda which are placed in their files. Section 2. At any hearing before a Disciplinary Board, the nurse involved may request and be granted the right to be represented by the Association or by legal counsel.

A. Position of the Parties

The Agency contends that this proposal places conditions on its right to discipline employees under section 7106 of the Statute by limiting the circumstances in which management can take disciplinary action against employees. The Agency also claims that Proposal 10 conflicts with VA Manual MP-5, Part II, Chapters 4, 8, and 9 and the DM&S Supplement because disciplinary actions involving a section 4110 Disciplinary Board are outside the duty to bargain. The Agency further asserts that this proposal conflicts with Agency regulations for which there is a compelling need. The Union contends that Section I merely restates the language of the Agency's regulations concerning discipline of employees and, while giving examples of personal misconduct, it does not limit the grounds on which the Agency can take disciplinary action. The Union also argues that Section 2 assures employees subject to disciplinary proceedings the right to choose a Union representative or other counsel.

B. Analysis and Conclusion

Section 1

This proposal describes the bases on which the Agency may discipline nurses. This section is similar to and has the same effect as Proposal 9 in VA Medical Center, North Chicago, 27 FLRA No. 79, which we found to be within the duty to bargain. Therefore, for the reasons stated in that case, we find that Section 1 is also within the duty to bargain.  Finally, the Agency claims that Proposal 10 is barred by Agency regulations for which a compelling need exists. The Agency has not shown that this proposal would limit the full range of discipline that it already has under law and regulation. We conclude, therefore, that no bar to negotiations of Proposal 10 exists.

Section 2

We find Section 2 of this proposal to be within the duty to bargain. This proposal provides that employees may choose to be represented by a Union representative or by legal counsel of the employee's own choosing at a Disciplinary Board hearing. The Agency has not specifically argued that Section 2, allowing employees to choose their own representative at a hearing, would be contrary to section 4110 of Title 38. Neither has the Agency shown that Section 2 conflicts with its regulations. In fact, VA Regulation MP-5, Part II, Chapter 8, Disciplinary Actions, Grievances and Hearings, Section C, Part 4, provides that an employee may be represented by counsel or other person of his choice. Since the Agency has not demonstrated any basis for finding Section 2 to be nonnegotiable and no basis is readily apparent, we find that it is within the duty to bargain.

XIII. Proposal 11

Proposal 11, Grievances and Arbitration Procedures, is set forth in the Appendix to this decision.

A. Positions of the Parties

The Agency contends that Proposal 11 is inconsistent with the DM&S personnel system established under Title 38 and by the Agency's "legislative regulations," issues previously addressed in Section II of this decision. The Agency also claims that Proposal 11 conflicts with VA Manual MP-5, Part II, Chapters 7 and 8 and DM&S Supplement. The Agency contends that because Section 2 provides for selecting alternatives to the grievance procedure pursuant to section 7121(d) and (e), and no grievances of employees covered by Chapter 73 of Title 38 may be raised under a negotiated grievance procedure, there are no matters which could be covered by section 7121(d) or (e). The Agency also contends that because Section 3 of the proposal provides that an employee may be represented by a non-union representative it is contrary to: (1) section 7114(a)(1) and (5) of the  Statute, which provides that the union is the exclusive representative, except that an employee may choose to be represented by an attorney or other representative; and (2) section 7121(b)(3)(B) of the Statute, which provides that an employee is entitled to be represented by the exclusive representative in grievances. The Agency further contends that because Section 7.d would require the Agency to implement arbitration decisions in all cases where no exceptions are taken, it fails to exclude awards which are contrary to law. The Agency argues that sections 9 and 10 concerning official time for grievants and representatives are contrary to VA leave and duty regulations in MP-5, Part IV, Chapter 7 and its DM&S Supplement that require leave and duty determinations to be based solely on the needs of patient care.

The Union disputes the Agency's contentions that a negotiated grievance and arbitration procedure is precluded by Title 38. The Union argues that Section 3 does not allow employees to choose representatives other than the Union, but only requires the Union to identify to the Agency the names of its staff/attorney representatives and those employees approved by the Union to serve as grievance representatives. Finally, the Union argues that Section 7 is consistent with the requirements of section 7121(b)(3)(C) of the Statute.

B. Analysis and Conclusions

Proposal 11 establishes a negotiated grievance procedure which, as provided in Section 1, would exclude "any action taken by (the) Chief Medical Director on (the) basis of Disciplinary Board recommendation." This exclusion relates to disciplinary actions and adverse action procedures for disputes over alleged professional misconduct or incompetence. These matters are covered by the appeals procedures established under 38 U.S.C. 4110. This proposal is , therefore, to the same effect as Proposal 1 in VA Medical Center, Ft. Lyons, 25 FLRA No. 66. In that case we found the proposal, requiring the establishment of a grievance and arbitration procedure which excluded matters covered under 4110 of Title 38, was within the duty to bargain. For the reasons set forth in VA Medical Center, Ft. Lyons, Proposal 1, which likewise establishes a negotiated grievance procedure excluding matters covered by 38 U.S.C. 4110, is within the duty to bargain.

Section 8 is not in dispute and the only arguments made by the Agency concerning Sections 4, 5, 6, 7.a, 7.b, and 7.c were the general contentions which we rejected in Section II of this decision. For the reasons stated in Section II, we  reject the Agency's contention that sections 4, 5, 6, 7.a, 7.b, and 7.c are barred from negotiations by Title 38 and the Agency's "legislative regulations."

Section 2

Section 2 provides that the grievance procedure set forth in Proposal 11 is the exclusive procedure for resolving employee grievances, except for matters covered by sections 7121(d) and (e) of the Statute. For those matters, employees would have the option of pursuing their complaints through either the negotiated grievance procedure or any applicable appeals procedures. In essence, the Agency's objection to Section 2 is that it permits employees the option prescribed by section 7121(e) of taking disciplinary matters through the negotiated grievance procedure and therefore, is contrary to the exclusive appeals procedures for such matters set forth in 38 U.S.C. 4110.

However, Section 2 defines the "grievances" which are subject to the negotiated grievance procedure in terms of the matters set forth in Section 1 of Proposal 11. As we discussed above, that portion of the proposal specifically excludes disciplinary matters covered by 38 U.S.C. 4110 from the negotiated grievance procedure. Contrary to the Agency's assertion, whatever the options available to employees under Section 2 of the proposal, they would not include the right to pursue disciplinary matters through the negotiated grievance procedure. Moreover, the Agency's other contentions as to the nonnegotiability of Section 2 are merely a restatement of its arguments to the effect that conditions of employment of professional medical employees can not be subject to a negotiated grievance procedure. We rejected that position in VA Medical Center, Ft. Lyons, 25 FLRA No. 66 (Proposal 1). The Agency raises no other basis for finding Section 2 to be nonnegotiable. We find, therefore, that section 2 is negotiable.

Section 3

Section 3 of this proposal is similar to Section 3 of Proposal 1 in VA Medical Center, Ft. Lyons where we held that it is within the discretion of both agency management and labor organizations holding exclusive recognition to designate their respective representatives when fulfilling their responsibilities under the Statute. Therefore, for the reasons stated in that case, we find that Section 3 of this proposal is not inconsistent with section 7114(a)(1) and (5) or section 7121(b)(3) of the Statute.  

Section 7

The Agency objects to Section 7.d because it requires the Agency to implement arbitration decisions in all cases where no exceptions are taken, even though it may be contrary to law. The Authority found in United States Customs Service, New York Region, New York, New York, 21 FLRA No. 119 (1986) that if a party seeks to challenge the propriety of an arbitration award because it is contrary to law, rule, or regulation, it must file exceptions to that award under the procedure established by Congress in section 7122(a) of the Statute or the award will become final and binding, notwithstanding claims that the award is contrary to law. Consequently, this portion of Section 7.d is not contrary to law and is within the duty to bargain.

Sections 9 and 10

As interpreted by the Agency and not disputed by the Union, Sections 9 and 10 provide for official time on matters related to grievance and arbitration processing. We found in Military Entrance Processing Station, Los Angles, California, 25 FLRA No. 57 (1987) that in section 7131(s) of the Statute, Congress provided that agencies and unions should jointly determine through negotiations the amount of official time to be available to employees during any given time period that is reasonable necessary, and in the public interest. The Agency's generalized objection to these sections cannot displace a specific congressional provision providing for the negotiability of official time proposals. Id., slip op. at 4. Therefore, Sections 9 and 10 are clearly consistent with the requirements of section 7131(d) of the Statute.

We also find that Sections 9 and 10 do not conflict with the Agency's regulations and do not interfere with management's right to assign work so as to provide for patient care. In Military Entrance Processing Station, we found that Section 7131(d) carves out an exception to management's right to assign work; otherwise, that right would preclude any negotiation of official time provisions, since official time always affects an agency's ability to assign work. Consequently, Sections 9 and 10 are within the duty to bargain.  

 XIV. Proposals 12 and 13

Proposal 12

Article XX. CONSULTATIONS AND NEGOTIATIONS

Section 4. All nurses covered by this Agreement shall be protected in the exercise of the right, freely and without fear of penalty or reprisal, to join and assist the Association or to refrain from such activity; to designate representatives for the purpose of processing grievances, consulting and bargaining with Management officials on their behalf; to hold office in, act as representatives of, and participate in the management of the Association; and to engage in other lawful activities for the purpose of collective bargaining or for the purpose of implementing any other rights provided under Chapter 71, Title 5, U.S.C. the provisions of this Agreement, or agency policy as appropriate.

Section 7. Negotiation and consultations may take place on any subject that is agreeable to the parties which is in the discretionary authority of the Hospital Director except the Hospital shall not be required to consult or negotiate on the mission of the VAH; its budget; its organization; the number of employees; the number, types and grades of employees assigned to an organization unit, work project or tour of duty; the technology of performing its work; or its internal security practices. This does not preclude the parties from negotiating agreements for the purpose of making appropriate arrangements for employees affected by the impact of realignment of work forces or technological change, nor is it intended to preclude the parties from discussing any matter of mutual interest and concern.

Section 8. Both parties acknowledge that individual grievances and complaints are properly handled within the grievance procedure in Article XX of the Agreement or the VA Grievance procedure, as appropriate and are not appropriate subjects for consultation or negotiation.  

 Proposal 13

Article II. PURPOSE

Section 3. it is also the purpose of the Agreement to provide the opportunity to negotiate at reasonable times with respect to personnel policies, practices, and other matters affecting their working conditions. Any new agreements reached shall be consistent with Title 38 and any Government wide rules and regulations.

A. Positions of the Parties

The Agency takes the position that Proposals 12 and 13 concern bargaining on the working conditions, personnel policies and practices, and grievances of Chapter 73 employees and that therefore they are contrary to law. The Union contends that Section 4 of Proposal 12 only reiterates the statutory rights of employees and the Union as exclusive representative and that Section 7 restates the exclusion of matters from the duty to bargain by section 7106(a) (1) of the Statute. The Union also contends that other statutory exclusions continue to apply to Section 7.

B. Analysis and Conclusions

Proposals 12 and 13 essentially restate employees' collective bargaining rights under the Statute. They also incorporate the limitations on bargaining provided by the Statute. The Agency's sole objection to these proposals is that they provide for bargaining on conditions of employment of professional medical employees and thus, that they are inconsistent with Chapter 73 of Title 38 of the United States Code, which grants the Administrator of the VA the exclusive authority to determine the conditions of employment of those employees. We have rejected that argument for the reasons set forth in Section II of this decision. The Agency has alleged no other basis for finding these proposals nonnegotiable. Consequently, because the Agency has raised no other grounds for finding the proposals to be outside the duty to bargain, and because there is no basis in the record for concluding that they are intended to be implemented in a manner which is inconsistent with law or regulation, including those management rights not enumerated in these proposals, we find that Proposals 12 and 13 are negotiable. See VA Medical Center, North Chicago, 27 FLRA No. 79 (Proposal 1).  

 XV. Order

The Agency must upon request (or as otherwise agreed to by the parties) bargain concerning the first sentence of paragraph three of Proposal 1, the first and third sentences of Section 5 of Proposal 2, Section 6 of Proposal 2, Proposal 3, Proposal 4, the first sentence of the first paragraph and the last sentence of Section 4 of Proposal 5, the first and last sentence of Section 5 of Proposal 5, Section 7 and Section 8 of Proposal 5, Proposal 6, Section 2 of Proposal 8, Proposal 10, Proposal 11, Proposal 12, and Proposal 13. 3 The Union's petition for review as to Proposal 1 (excluding the first sentence of paragraph three), the second sentence of Section 5 of Proposal 2, Section 4 (excluding the first sentence of the first paragraph and the last sentence of the Section) of Proposal 5, the second and third sentences of Section 5 of Proposal 5, Section 9 of Proposal 5, Proposal 7, Section 3 of Proposal 8, and Proposal 9 is dismissed.

Issued, Washington. D.C., July 29. 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY  

APPENDIX

Article XIX. GRIEVANCES AND ARBITRATION PROCEDURES

Section 1. Grievances, within the meaning of the Article, include any dispute over the interpretation or application of this Agreement, or an employee's claim of dissatisfaction arising out of a work related situation or a management decision affecting the employee, The procedures set forth in this Article are available to all nurses as a way of seeking adjustment of such grievances. The procedures do not apply to: (1) any claimed violation of subchapter III of Chapter 73, Title 5 (relating to prohibited political activities); (2) retirement, life insurance, or health insurances; (3) a suspension or removal under Section 7532 of Title 5; (4) any examination, certificate, or grade of initial appointment; (5) the classification of any position which does not result in the reduction in grade or pay of an employee; (6) any action taken by Chief, Medical Director on basis of Disciplinary Board recommendation; (7) any action or recommendation resulting from competency reviews by the Professional Standards Board; (8) complaints arising from actions taken due to the individual's physical condition (are subject to appeal under provisions of Chapter 9, Part II of said Manual); (9) complaints arising from failure to receive within grade advancement or promotion (are subject to the Promotion Review Procedure).

Section 2. This grievance procedure is the exclusive procedure for resolving above grievances, except as provided in 5 U.S.C. 7121(d) and 5 U.S.C. 7121(e). An aggrieved employee affected by a matter which falls within the coverage of this negotiated grievance procedure and above cited sections may raise the matter under either this grievance procedure or the appellate procedure, but not both. An employee shall be deemed to have exercised his/her option under this section when that employee timely files a notice of appeal under the appellate procedure or timely files a grievance in writing under this negotiated procedure, whichever occurs first. 

Section 3. Employee representative under this Article is the Association or someone approved by the Association. Nothing herein shall prevent any nurse from handling her own grievance. If there is a formal hearing under MP-5, Part II, Chapter 8, Section C, for Registered Nurse in the unit and the Association is not chosen by the grievant as her representative, the Hospital will notify the Association so that an observer may be present if the Association desires.

Section 4. Every attempt will be made by Nurses, the Association, and the Hospital to adjust problems informally and promptly as close to the source of the problems as possible in the interest of sound employee/management relations and the mission of the Hospital. In the event that such attempts at resolution are unsuccessful, the following procedures will be utilized.

Section 5.

The procedure and time limits shall be as follows:

Step One

a. within thirty (30 calendar days of its occurrence, an employees(s) or Association having a grievance shall present it in writing to the appropriate Assistant Chief Nurse.

b. The Assistant Chief Nurse or his/her designee, will discuss the grievance with the employees(s) and Association representative and attempt to resolve the issue. A conference for this purpose will be convened at a mutually convenient duty time, within five (5) calendar days of receipt of the written grievance.

c. The Assistant Chief Nurse or his/her designee will render a decision in writing to the grievant(s) within ten (10) calendar days following the conference.  

Step Two

a. If the grievant(s) is not satisfied with the answer at Step one, and desire to pursue the grievance further, the grievance may, within ten (10) calendar days after the answer in Step One, Be presented in writing to the Chief of Service.

b. The Chief of Service, or his/her designee, shall meet within ten (10) calendar days with the grievant(s) and Association representatives. If INA representation has not been requested, the Chief of service will notify the local unit so that an observer may be present. After consideration of all facts, the Chief of Service shall render a decision in writing within ten (10) calendar days following the discussion.

Three

a. If the decision of the Chief of Service is unacceptable to the grievants(s), the grievance may be appealed through the Personnel Officer to the Hospital Director within fifteen (15) calendar days after receipt of the decision at Step Two.

b. If such an appeal is filed, the Hospital Director or his/her designee, shall meet promptly with the grievant(s) and their representatives, if any. He/she or his/her designee shall render a decision, in writing, within (10) calendar days after close of the grievance conference.

Section 6. If the decision of the Hospital Director r his/her designee does not resolve the grievance to the satisfaction of the grievant(s) involved, either the Hospital or the Association may submit the issue in dispute to arbitration.

Section 7. The following procedures shall apply to arbitration:

a. The request for arbitration shall be in writing and shall be submitted to the other party within fifteen (15) calendar days of a receipt of   the decision of the Hospital Director. Both parties are expected to continue efforts to resolve the grievance.

b. If no agreement is made within ten (10) administrative work days after receipt of request for arbitration, the parties shall jointly request the Federal Mediation and Conciliation Service to submit a list of five (5) names from which the impartial arbitrator shall be selected in the following manner: The order of striking names shall be determined by lot. Each side shall alternately strike one name from the list and the remaining name shall be selected and the FMCS shall be promptly notified of his selection.

c. The arbitrator shall conduct a hearing at which the Association and the Hospital will be permitted to be represented by counsel, present evidence, examine, and cross-examine witnesses, present argument and otherwise participate in a full and fair hearing on the issues in dispute, subject to arbitrator's judgment.

d. As promptly as possible after the hearing record is closed, the impartial arbitrator shall issue his/her decision, which shall be mailed to the Association and the Hospital. The decision shall be put into effect within thirty (30) days after receipt unless either party notified the other that it is filing exception to the decision with the Federal Labor Relations Authority. Such exceptions must be filed within the same thirty (30) days in accordance with the regulations prescribed by the Authority.

Section 8. All time limits specified in this Article over which the parties have control may be extended by mutual agreement of the parties.

Section 9. The Hospital agrees that the Association representative designated to represent Unit members in Step One, Two and Three of the grievance procedure shall be permitted a reasonable amount of time to consult and prepare the grievance during on-duty hours. Such consultations shall be arranged with notification and approval of the respective  supervisors, and shall not interfere with work responsibilities of the nurses involved. When grievance conferences with management are held during scheduled duty hours of grievants, grievants will not lose any time or pay.

Section 10. Expenses of arbitration, including the compensation and expenses of the compensation and expenses of the arbitrator but excluding the counsel fee and any other expenses incurred by a party in the preparation and presentation of its case, will be equally shared by the Hospital and the Association. Neither party shall be required to pay for a court reporter or transcript unless both agree to such requirements. All employees participants and representatives may be present at the arbitration hearing without loss of pay (in duty status) for the time spent in arbitration if the hearing occurs during the employee's assigned duty time. Observers at arbitrations may be present by mutual agreement. 

 

FOOTNOTES

Footnote 1 On October 27, 1986, we granted the VA's motion for Consideration of Common Issues in Pending Cases, including this case. The common issue as raised by the Agency concerned the applicability of the Statute to VA professional medical employees in the DM&S appointed under Title 38 of the United States Code.

Footnote 2 The third paragraph of Proposal 1 was submitted as a separate proposal and was the subject of a separate appeal in Case No. O-NG-1234. That case has been consolidated with Case No. O-NG-1212.

Footnote 3 In finding these sections negotiable, we make no judgment as to their merit.

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