[ v55 p549 ]
55 FLRA No. 96
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-184
(Union)
and
U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
LEXINGTON, KENTUCKY
(Agency)
0-NG-2343
_____
DECISION AND ORDER ON
NEGOTIABILITY ISSUES
June 30, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of two proposals.
For the reasons that follow, we find that the proposals are negotiable at the election of the Agency under section 7106(b)(1) of the Statute. Accordingly, we dismiss the petition for review, pursuant to section 2424.10 of the Authority's Regulations. [n2]
II. Background
The Union's proposals were submitted in response to the Agency's decision to replace licensed practical nurses (LPNs)with registered nurses (RNs) in the emergency room, walk-in clinics and out-patient clinics in its facility and to reassign LPNs to other duties. [n3]
III. Proposals
Proposal 1
Walk-In-Clinic/Emergency Room:
Retain five (5) of the present nine (9) GS FTEE LPN positions. The positions would be replaced with RN positions through attrition or retirement.
Proposal 2
Out-Patient Clinic:
Retain two (2) of the three (3) GS FTEE LPN positions which include the mobile clinic position. The one (1) GS FTEE LPN position on the mobile clinic would be replaced with an RN position through attrition or retirement.
IV. Positions of the Parties [n4]
A. Agency
The Agency claims that the proposals affect management's rights to assign work, assign employees and determine the personnel by which agency operations will be conducted. Statement of Position at 2. The Agency argues that there is not sufficient work for LPNs to perform at the work locations specified in the proposals and that LPN services are needed in other areas of the medical center. Agency Comments on Summary of Telephone Conference at 1-2. The Agency adds that, in order to meet the accreditation requirements of the Joint Commission on the Accreditation of Healthcare Organizations, "patient triage assessments" can only be performed by RNs. Statement of Position at 2. As a consequence, the Agency states that it placed additional RNs in the ambulatory care areas, making the skills and services of LPNs no longer necessary in those areas. Id., Attachment 1 at 1.
The Agency also argues that the proposals are neither negotiable procedures under section 7106(b)(2) nor appropriate arrangements under section 7106(b)(3). As [ v55 p550 ] to the former, the Agency contends that the proposals would place substantive restrictions on the exercise of management rights. As to the latter, the Agency disputes the Union's claim that employees suffered any adverse effects as a result of their reassignment.
Finally, the Agency contends that, despite the Authority's ruling in National Association of Government Employees, Local R5-184 and Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington), the Agency continues to adhere to its view that a "violation of section 7106(a) renders a proposal nonnegotiable notwithstanding the possibility that section 7106(b)(1) also may encompass the proposal." [n5] Statement of Position at 6.
B. Union
The Union claims that the proposals are within the duty to bargain under section 7106(b)(1). More particularly, the Union states that the two proposals "directly concern the number, types, and grades of employees or positions (LPN's) assigned to an organizational subdivision, work project (walk-in-clinic/emergency room and out-patient clinic), or tour of duty, and the technology, methods and means of performing work." Response at 5. The Union explains that the intent of the proposals is to provide for the replacement of LPNs by RNs through attrition or retirement "with four (4) of the positions being converted to RN positions initially." Petition for Review at 2. [n6] The Union states that the proposals would not prevent the Agency from assigning various duties to RNs and do not limit the number of RNs assigned to any work area or organizational subdivision. The Union adds that there is sufficient work for the LPNs to perform at the locations specified in the proposals.
Alternatively, the Union asserts that the proposals are negotiable under either section 7106(b)(2) or section 7106(b)(3) of the Statute. According to the Union, the proposals "constitute a procedure for replacement of LPN's with RN's that minimizes adverse impact on the LPN's." Id. The Union further explains that the proposals are designed to alleviate adverse effects on employees since the LPNs reassigned to different locations work under different supervision, with different duties and potentially different work hours. As to the latter, the Union states that employees' established days off and leave schedules could be disrupted.
V. Analysis and Conclusions
A. Meaning of the Proposals
As explained by the Union and as set forth in the conference summary, each proposal requires the Agency to retain a certain number of LPN positions at their current locations until the positions are vacated through attrition, retirement or other means. The Agency is free to reassign the LPNs who would not be retained in their current locations. The Union's explanation comports with the language of the proposals and we adopt the explanation.
B. The Proposals Affect Management's Right to Assign Work Under Section 7106(a)(2)(B) of the Statute
Consistent with American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 177-78 n.10 (1998), the Authority first addresses whether a proposal affects a management right or rights under section 7106(a) of the Statute, and then whether the proposal concerns a matter over which an agency has a duty to bargain under sections 7106(b)(2) or (b)(3). If necessary, the Authority then addresses whether the proposal is negotiable at the election of the Agency under section 7106(b)(1). Id.
The right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See, e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 739 (1996). That management right also includes the right to determine the qualifications needed by employees to perform their work. See, e.g., International Federation of Professional and Technical Engineers, Local 89 and U.S. Department of the Interior, Bureau of Reclamation, Grand Coulee Project Office, 48 FLRA 516, 520 (1993). [ v55 p551 ]
The proposals in this case would require the Agency to continue to assign work to LPNs in the walk-in clinic, emergency room and out-patient clinic despite the fact that the Agency has determined it is not operationally efficient to do so. In addition, the proposals would require the Agency to retain LPNs in the areas specified by the proposals for an indeterminate period of time, without regard to either current or future work needs.
In these circumstances, we conclude that the proposals affect the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See, e.g., American Federation of Government Employees, Local 3807 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 54 FLRA 642, 646-47 (1998) (proposals that required agency to assign aviation work to two employees rather than one employee were found to affect management's right to assign work); Tidewater Virginia Federal Employees Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 42 FLRA 845, 853-54 (1991) (proposal effectively requiring agency to maintain existing number of employees on duty, without regard to periods of temporary shutdown or curtailment of operations affected right to assign work)
The Authority previously has held that proposals that are inconsistent with the exercise of a management right do not constitute procedures under section 7106(b)(2) of the Statute. See, e.g., National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 539, 569 (1997) (Department of Commerce). Neither party has requested the Authority to reexamine this precedent. See id., 53 FLRA at 569 n.12. Applying this precedent to our finding that the proposals affect the exercise of the right to assign work, we conclude that they do not constitute procedures under section 7106(b)(2) of the Statute.
C. The Proposals Are Not Appropriate Arrangements Under Section 7106(b)(3) of the Statute
In determining whether a proposal is an appropriate arrangement, the Authority follows the analysis set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. See also United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992); American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 141 (1995). To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of managements rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address purely speculative or hypothetical concerns, or that are unrelated to management's exercise of its reserved rights, do not constitute arrangements. See, e.g., National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base New London, Groton, Connecticut, 39 FLRA 762, 766 (1991).
The claimed arrangement must also be sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management's rights. See id. As the Authority has explained, relying on U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996). See also National Association of Government Employees, Local R14-23 and U.S. Department of Defense, Defense Commissary Agency, Kelly Air Force Base, Texas, 53 FLRA 1440, 1443 (1998) (Kelly Air Force Base).
Here, the Union states that the LPNs who would be reassigned out of the walk-in clinic, emergency room and out-patient clinic would be assigned to new departments, some of which operate on a 24-hour basis. As a result, the Union claims that the LPNs might be required to work nights and weekends, with their established days off and annual leave schedules disrupted. The Union also states that LPNs assigned to different departments would work under different supervision and would have different duties. The Agency disputes the Union's claims that employees have been, or will be, adversely affected.
Even assuming that the proposals are intended to be arrangements for employees who are adversely affected by the exercise of management's rights, the Union has failed to show that the proposals are tailored to those employees who are, or are likely to be, adversely affected by the reassignments. For example, while the Union states that employees may now be required to work on weekends and evenings, many of the LPNs were subject to such work schedules prior to their reassignment. Agency Comments on Summary of Telephone Conference at 2. The proposals are not limited to the employees who were not previously subject to weekend and evening work. Similarly, the proposals [ v55 p552 ] are not addressed to employees whose daily work schedules and leave plans may be disturbed but would apply to employees who might not be affected in this manner. Finally, even if we were to find that assignment to different duties with different supervisors had some adverse consequences for some employees, the proposals would apply to all the reassigned LPNs, including those for whom a change in duties or supervision could be beneficial.
Based on the foregoing, we conclude that the proposals are not sufficiently tailored. See, e.g., American Federation of Government Employees, Local 1164 and Social Security Administration, District Office, New Bedford, Massachusetts, 54 FLRA 1327, 1334-36, 1348-50 (1998) (even assuming there was increase in workload resulting from change in employee duties, proposals were not tailored to address those employees who would be assigned increased workload); Kelly Air Force Base, 53 FLRA 1440 (proposal allowing temporarily disabled employee to decline work assignments to certain tours of duty not limited and, therefore, not sufficiently tailored to employees who would suffer scheduling problems the proposal was designed to address). Cf. Department of Commerce, 53 FLRA at 543-47 (proposal establishing time frame for removing letters of reprimand and oral admonishments confirmed in writing from employee files was tailored to compensate employees who might suffer more severe progressive disciplinary action if the letters were not removed).
In sum, we conclude that the proposals do not constitute appropriate arrangements under section 7106(b)(3) of the Statute. [n7]
D. The Proposals Are Negotiable at the Election of the Agency Under Section 7106(b)
Under section 7106(b)(1) of the Statute, proposals relating to the "numbers, types, and grades of employees or positions assigned to any organizational subdivision" are negotiable at the election of the agency. This phrase applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. See National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1030 (1997) (VAMC). The determination of whether, and which, positions assigned to an organizational subdivision will be filled concerns the allocation of staff. See National Federation of Federal Employees, Local 2148 and U.S. Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, Albuquerque, New Mexico, 53 FLRA 427, 432 (1997).
As explained above, the proposals in this case would require that a certain number of LPN positions be retained at various locations. There is no dispute that LPN positions are a "type" of position within the meaning of section 7106(b)(1) and that the walk-in clinic, emergency room and out-patient clinic are organizational subdivisions. See VAMC, 52 FLRA at 1031, 1028 ("types" refers to "distinguishable classes, kinds, groups or categories of employees or positions that are relevant to the establishment of staffing patterns"; dental service is an example of an organizational subdivision). As to the meaning of "number" of positions in section 7106(b)(1), the Authority has held that "a proposal requiring bilateral agreement concerning the number of employees or positions to be assigned to an organizational subdivision, work project or tour of duty comes within the scope of section 7106(b)(1) regardless of whether the proposal would increase, decrease or maintain the number that the Agency proposes to assign or has assigned." Id. at 1034-35. While it is unclear whether the overall employee complement in the walk-in clinic, emergency room and out-patient clinic would remain unchanged, the proposals would require bilateral agreement with respect to the number of LPN positions in those areas. As the proposals concern the numbers and types of employees or positions assigned to an organizational subdivision within the meaning of section 7106(b)(1) of the Statute, we conclude that the proposals are negotiable at the election of the Agency.
Consistent with section 2424.10 of the regulations that we apply in this case, we dismiss the petition for review. See VAMC, Lexington, 51 FLRA at 394 n.12.
VI. Order
Pursuant to section 2424.10(b) of the Authority's Regulations, the petition for review is dismissed.
File 1: Authority's Decision in 55 FLRA No.
96
File 2: Opinion of Member Wasserman
Footnote # 1 for 55 FLRA No. 96 - Authority's Decision
Member Wasserman's dissenting opinion appears at the end of this decision.
Footnote # 2 for 55 FLRA No. 96 - Authority's Decision
This section of the Regulations, which was in effect at the time the Union filed its petition, has been modified and renumbered as section 2423.40 of the recently revised regulations. See 63 Fed. Reg. 66,413 (1998). As the revised regulations apply to petitions filed after April 1, 1999, we apply the prior regulations in this case.
Footnote # 3 for 55 FLRA No. 96 - Authority's Decision
The record indicates that the Union filed an unfair labor practice charge in Case No. CH-CA-61021, alleging that the Agency's unilateral reassignment of LPNs from the described areas to other Agency locations violated provisions of the Statute. The Union elected to have the petition for review processed first.
Footnote # 4 for 55 FLRA No. 96 - Authority's Decision
The Union filed a petition for review and a response to the statement of position that was filed by the Agency. In addition, the record was supplemented through a telephone conference among the parties and an Authority representative. Both a "conference summary" and a "supplemental conference summary" have been considered by the Authority, along with the Agency's proposed amendments to the conference summaries.
Footnote # 5 for 55 FLRA No. 96 - Authority's Decision
In VAMC, Lexington, the Authority addressed the relationship between sections 7106(a) and 7106(b) of the Statute in dealing with proposals that were asserted to be within the duty to bargain under section 7106(b)(1). Consistent with the decision of the United States Court of Appeals for the District of Columbia Circuit in Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150 (1994), the Authority concluded that section 7106(b) is an exception to section 7106(a).
Footnote # 6 for 55 FLRA No. 96 - Authority's Decision
As the conference summary states, the proposals would permit the Agency to fill positions that are created through retirement, resignation, or any other means that would result in a vacancy.
Footnote # 7 for 55 FLRA No. 96 - Authority's Decision
In view of this result, it is unnecessary to address whether the proposals affect the exercise of other management rights, as the Agency claims. Although we do not address the merits of those claims, we note that the Agency views the effects of the proposals as not limited to the assignment of work. See Part IV.A., supra. Furthermore, the proposals, by their terms, are not limited to the assignment of triage duties to RNs, but extend to all duties that the Agency wishes to assign to its employees. In these circumstances, and given these express Agency claims, our dissenting colleague's description of the Agency's arguments as limited to a claim that the proposals would prevent the Agency from assigning triage duties to RNs appears to have no basis.