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29 FLRA NO. 50

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, NATIONAL COUNCIL OF VA LOCALS

     Union

     and

VETERANS ADMINISTRATION

     Agency

Case No. O-NG-1088

DECISION AND ORDER OF NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute), and concerns the negotiability of 11 proposals. 1 For the reasons set forth below we find Proposal 3 in part; Proposal 4 in part; Proposal 7; Proposal 8 in part; Proposal 9; Proposal 10, and Proposal 11 in part to be outside the duty to bargain. We find Proposal 1; Proposal 2; Proposal 3 in part; Proposal 4 in part; Proposal 5; Proposal 8 in part and Proposal 11 in part to be negotiable.

II. Preliminary Matters

The Veterans Administration (VA or Agency) raises one common issue with respect to the negotiability of Proposals 3-11 in this case, namely: Title 38 of the United States Code provides the Administrator of 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. For the following reasons, we reject the Agency's contention.

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. 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 decision that the Statute applies to DM&S employees for the reasons stated in VAMC, Ft. Lyons, Colorado.

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

III. Proposals I & 2

Proposal 1

Article 4, Section 1C(4) - Mid term Negotiations

The Agency agrees that it is in the primary interest of the government to provide travel and per diem for VA Council representatives under C (2) and (3) above.

Proposal 2

Article 5, Section 3 - Labor Management Committee

The Agency agrees that it is in primary interest of the government to provide travel and per diem for professional unit representatives, professional unit VP and professional unit safety officer attending meetings of the joint labor management committee specified above. 

A. Positions of the Parties

The Agency first claims that the Union also has filed unfair labor practice charges concerning the payment of travel and per diem expenses in the circumstances described in Proposals 1 and 2. Thus, the Agency argues the Union is required by section 2423.5 and 2424.5 of the Authority's rules to select whether to proceed with the negotiability appeal or the unfair labor practice charges.

As to the substance of these proposals, the Agency contends that by requiring the negotiation of what is in the primary interest of the Government, the proposals are inconsistent with the Federal Travel Expense Act, 5 U.S.C. SS SS 5701-5709 and the Federal Travel Regulations. In addition, the Agency argues that these proposals interfere with its right under section 7106(a)(1) to determine its budget. The Agency also claims that a specific appropriation is necessary in order for it to pay the travel expenses of Union representatives. Thus, according to the Agency, since no such appropriation exists, an obligation to pay the travel expenses of union representatives violates 31 U.S.C. SS 1301 which requires appropriations to be applied only to the objects for which the appropriations were made. Further, the Agency argues that even if the payment of travel expenses of Union representatives was authorized, the amount of the expenditure required by these proposals could be in excess of the appropriation, thus violating 31 U.S.C. SS 1341 which prohibits the expenditure or obligation of funds in excess of the amount appropriated.

Finally, the Agency argues that these proposals do not concern conditions of employment within the meaning of section 7103(a)(14) of the Statute because: 1) the payment of travel expenses is specifically provided for by law and 2) travel by Union representatives is a union institutional matter rather than a personnel policy, practice or matter affecting unit employee working conditions.

The Union argues that the proposals are mandatory subjects of bargaining under section 7131(d) of the Statute, and are not otherwise inconsistent with regulation. The Union further argues that, since the Agency has discretion to determine whether certain travel is primarily in the interest of the Government, that discretion is properly exercised through negotiations. 

B. Analysis and Conclusion

I. The Proposals are Properly Before the Authority

Since the Union expressly elected in its Reply Brief to proceed with the negotiability appeal process, the requirements of section 2423.5 and 2424.5 of the Rules have been satisfied. These Proposals, therefore, are properly before the Authority.

2. The Proposals Concern a Condition of Employment

In National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for review filed sub nom. Department of the Treasury, U.S. Customs Service v. FLRA No. 86-1198 (D.C. Cir. March 27,1986), the Authority rejected the same argument the Agency presents here. In rejecting this argument, the Authority found that a proposal relating to travel and per diem for employee union representatives concerned a condition of employment of bargaining unit employees. For the reasons expressed in that decision, we find that these proposals concern conditions of employment of bargaining unit employees.

3. The Proposals are Not Inconsistent with Federal Law and Government-wide Rules and Regulations Governing the Payment of Travel and Per Diem Expenses

In Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF), the Supreme Court held that payment of travel and per diem expenses for employees engaged in union representational activities was not required by the Statute. The Supreme Court, however, did not hold that agencies and unions were precluded by law from negotiating over the payment of such expense.

In Customs Service, the Authority rejected the argument which the Agency makes here, namely, that payment of travel and per diem expenses for union representatives is inconsistent with law and regulation and, therefore, nonnegotiable. The Authority found that under Travel Expense Act, 5 U.S.C. SS SS 5701-5709 and the Federal Travel Regulations (FTRs), 41 CFR Part 101-7, as interpreted by the Comptroller General, 46 Comp. Gen. 21 (1966), agencies have discretion to make determinations that travel in the context of union activity is sufficiently within the interest of the Government to constitute official business. Following this determination, otherwise proper travel and per diem expenses may be paid from agency funds. This necessary determination need not be  made unilaterally by management and only on a case-by-case basis. An agency may determine that travel in the context of labor relations activities is sufficiently within the interest of government to constitute official business. Following this determination, otherwise proper travel and per diem expenses may be paid. Nothing in these authorities requires that this necessary determination be made on a case-by-case basis. See also National Labor Relations Board Union and National Labor Relations Board, 22 FLRA No. 55, slip op. at 4 n.2 (1986), petition for review filed sub nom. National Labor Relations Board v. FLRA, No. 86-1504 (D.C. Cir., Sept. 8, 1986).

Moreover, the Authority has consistently held that, in the absence of a showing to the contrary, proposals providing for the payment of travel and per diem expenses for union representatives would not prevent management from making individual case-by-case determinations as to the propriety under the FTRs of authorizing particular payments. See National Labor Relations Board. Compare National Association of Agriculture Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 22 FLRA No. 45 (1986) (Proposal 2) (Authority unable to conclude based on the record that the provision would allow for compliance with law and regulation.) Based on the record in this case and noting that the Union intends the disputed proposals to comport with all travel regulations, we find nothing in Proposals 1 and 2 which would prevent the Agency from complying with the requirements of law and regulations.

Based on the foregoing analysis, we find that Proposals 1 and 2 are not inconsistent with law or Government-wide regulations.

4. The Proposals are not Inconsistent with Federal Law Governing Appropriations

Contrary to the Agency's claim, specific authorization to pay travel and per diem expenses of Union representatives is not necessary. Rather, as we noted in Customs Service, the general authorization to pay travel expenses of employees supports the disbursement of funds for such travel by Agency employees acting as Union representatives as may occur under the Union's proposals in this case. The Agency does not claim that it is unique among Federal agencies in that it is without any authorization to pay travel expenses of Agency employees. Accordingly, we find that the disbursement of funds for travel expenses of Union representatives in the circumstances  covered by these proposals does not violate 31 U.S.C SS 1301. In addition, we find that the Agency's claim that these proposals contemplate the expenditure of funds in excess of any appropriation in violation of 31 U.S.C. SS 1341 to be entirely speculative and without merit. There is nothing in the record which indicates that these proposals could require expenditure of funds in excess of any appropriation.

5. The Proposals Do Not Interfere with the Agency's Right to Determine Its Budget.

The Authority has previously held that interference with the right of an agency to determine its budget under section 7106 insulates a proposal from the negotiation process in two fundamental respects. First, an agency cannot be required to negotiate particular budgetary matters relating to the determination of the programs and operations to be included in its estimation of proposed expenditures and the amounts required to fund them. Second, where an agency makes a substantial demonstration that a significant and unavoidable increase in costs, not offset by compensating benefits, will result, an otherwise negotiable proposal may be found to violate this section 7106(a) right of the Agency. American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604, 608 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1982), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).

The Agency claims that these proposals would entail significant and unavoidable increased costs attendant to the payment of travel and per diem expenses of union representatives not offset by compensating benefits. In support, the Agency alludes to a claimed total cost of approximately $250,000 for travel and per diem expenses for union representatives engaged in collective bargaining for a different bargaining unit. However, even assuming the correctness of the cost involved in those negotiations, there is nothing in the record to establish any particular amount of costs estimated to result from these two proposals. Consequently, the Agency's allegation that these proposals are inconsistent with its right to determine its budget cannot be sustained.

For all the foregoing reasons, proposals 1 and 2 are within the duty to bargain. 

IV. Proposal 3

Article 9 - Recognition of Professional Standards of Practice, Ethical Guidelines and Licensure/Certification Requirements

In general, Agency policies and regulations are in agreement with the professional standards of practice, ethical guidelines and licensure/certification requirements of most professional bodies. Should the Agency direct an employee to take an action which the employee believes conflicts with the professional standards of practice, ethical guidelines and/or licensure certification required of his/her profession the Agency shall consider the employees (sic) views. The Agency will make reasonable efforts when directing employees so as not to jeopardize the employees' licensure certification or professional standing.

A. Positions of the Parties

The Agency argues that this proposal does not concern conditions of employment of bargaining unit employees. The Agency also argues that this proposal violates management rights under section 7106(a) to determine its mission, to assign work, and to direct employees; and its right under section 7106(b)(1) to determine the means and technology of accomplishing its mission. Finally, the Agency contends that this proposal is inconsistent with Agency regulations for which a compelling need exists.

The Union argues that the proposal does not prevent the Agency from acting at all but merely requires the Agency to consider orders or directions to employees in light of professional standards. In addition, the Union argues that the proposal offers a procedure for management to follow and an appropriate arrangement designed to alleviate the adverse impact of the exercise of management's rights.

B. Analysis and Conclusion

1. The Proposal Concerns Conditions of Employment of Bargaining Unit Employees

The Agency argues that this proposal concerns professional standards, ethics and licensure matters as they relate to Agency policies and procedures concerning patient care and treatment. The Agency claims that since such matters relate to patient care, they are clinical matters  which are not working conditions under the Statute. In support, the Agency relies on Veterans Administration Medical Center, Bath, New York, 4 FLRA 563 (1980).

Contrary to the Agency's position, however, we find this proposal concerns conditions of employment of bargaining unit employees. The proposal expressly applies to unit employees who are required to be licensed or certified and refers to actions which would potentially adversely effect those employees' licenses or certifications. Obviously, actions which could jeopardize an employee's license or certification could jeopardize the employee's continued employment. Finally, the Agency's reliance on Veterans Medical Center, Bath, New York is misplaced. In that case, the Authority adopted an Administrative Law Judge's opinion that the removal of a bargaining unit employee from an Agency committee established to assure quality patient care did not violate the Statute because that committee dealt with matters affecting patient care and not working conditions. However, the focus of this proposal is on bargaining unit employees and on actions which directly affect them. Thus, we conclude this proposal affects conditions of employment of bargaining unit employees.

2. The First Two Sentences are Negotiable

The first sentence constitutes nothing more than a general statement of the scope of Agency regulations concerning ethical guidelines. There is nothing in this sentence which in any manner binds the Agency to adopt any ethical guideline or licensure/certification requirement of any professional body. Thus, we conclude that the first sentence does not interfere with any of the management rights relied upon by the Agency. Consequently, it is negotiable.

The second sentence merely requires the Agency to consider an employee's view in circumstances where the Agency has directed the employee to take an action which the employee believes is inconsistent with professional standards of practice, ethical guidelines and/or licensure/ certification requirements. This sentence of the proposal constitutes nothing more than a vehicle by which employees can offer their nonbinding views on carrying out a particular management directed action. As such, this sentence of the proposal would not require the Agency to take any action inconsistent with its rights under section 7106 of the Statute. See American Federation of Government Employees, AFL - CIO, Local 1738 and Veterans Administration Medical Center, Salisbury, North Carolina, 27 FLRA No. 13 (1687) (Proposal 10). Thus, it is negotiable. 

3. The Last Sentence is not Specific and Delimited

The last sentence of the proposal expressly requires management to "make reasonable efforts" to not direct an employee in a manner which could jeopardize the employee's "licensure/certification or professional standing." The Union claims that under this sentence an employee could not refuse to carry out orders. Rather, the Union argues that it is attempting to "guard against unethical or unlawful requirements under the guise of an exercise of the 'management right' to 'direct' or 'assign work.'" Reply Brief at 32.

As a general matter, the Authority has consistently held that general provisions requiring management to exercise its statutory rights under section 7106 in compliance with law are within the duty to bargain. See National Federation of Federal Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, Colo., 9 FLRA 151 (1982) (Proposal 2). See also American Federation of Government Employees, AFL - CIO, National Council of EEOC Locals and Equal Opportunity Commission, 10 FLRA 3 (1982) (Proposal 1), enforced sub nom. Equal Employment Opportunity Commission v. Federal Labor Relations Authority, 744 F.2d 842 (1984), cert. dismissed, 106 S. Ct. 1678 (1986) (per curiam).

On the other hand, proposals seeking to restrict the assignment of duties characterized as non-professional duties to professional employees in the VA have consistently been found nonnegotiable. See Illinois Nurses Association and Veterans Administration Medical Center North Chicago, Illinois, 27 FLRA No. 79 (1987) (Proposal 11); VAMC Ft. Lyons, Colorado, 25 FLRA No. 66 (Proposal 4); New York Nurses Association and Veterans Administration Medical Center Bronx, New York, 11 FLRA 578 (1983). Compare Illinois Nurses' Association and Veterans Administration Medical Center, Hines, Illinois, 28 FLRA No. 35 (1987) (Proposal 4) (Proposal found negotiable because it merely set forth a mutual statement that certain non-professional tasks are not ordinarily a part of a nurses' normal work activity and did not restrict the assignment of particular duties nor impose any criterion under which management must justify its action in assigning non-professional duties to professional employees).

In this case however, the Union did not indicate what management directed actions it viewed as jeopardizing an employee's "licensure/certification or professional standing." Thus, it is unclear in what manner management is expected act under this sentence. In 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 (Proposal 5) The Authority dismissed a petition as to a proposal which was not sufficiently specific and delimited to provide a basis upon which to determine its negotiability. In that case the purpose and effect of the proposed language was not sufficiently clear to permit a determination as to whether its negotiation would be consistent with applicable laws and regulations. Likewise, the purpose and effect of this sentence are not clear enough to permit us to assess its impact on the management rights with which the Agency asserts it interferes. In view of this we have no basis on which to make any judgements as to its negotiability. Therefore, the Agency has no obligation to bargain over it.

V. Proposal 4

Article 19A - Advancements - Title Employees

Proposal 4 is set forth in the Appendix to this decision and concerns promotion procedures.

A. Position of the Parties In addition to the arguments disposed of in Section II of this decision, the Agency contends that, because matters concerning promotions are specifically provided for in 38 U.S.C. Chapter 73, Proposal 4 is excluded from the definition of "conditions of employment" by section 7103(a)(14)(C) of the Statute. Further, the Agency argues that Proposal 4 generally conflicts with 38 U.S.C. 4106, 4108, 4115 and implementing regulations of the VA for which a compelling need is claimed to exist.

As to the specific sections of Proposal 4, the Agency contends that by providing for various notice periods section 3 conflicts with management's right under section 7106(a)(2)(A) to assign and with portions of VA regulations which do not require notice periods. Further, the Agency argues that because section 3 only requires an employee to have a current rating of satisfactory, it is inconsistent with 38 U.S.C. 4106(a), 4106(c) and VA regulations which provide that examination and qualification requirements must be also met.

According to the Agency, by placing restrictions on the organization and membership of Professional Standards Boards (PSBs), Section 5 interferes with management's rights under section 7106(a) to hire, assign, assign work, retain, promote and remove employees and with management's right under section 7106(b) to determine the methods and means of accomplishing the VA mission. Further, the Agency argues that section 5 is also inconsistent with VA regulations for which a compelling need exists.

The Union argues that Proposal 4 is a negotiable procedure under section 7106(b)(2) or a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

1. The Obligation to Negotiate Promotion Procedures Under 38 U.S.C. Chapter 75 and Agency Regulations

It is well established that where an agency has discretion over a matter affecting conditions of employment, the agency is obligated under the Statute to exercise that discretion through bargaining unless the governing law or regulation specifically limit the exercise of discretion to the agency. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-760 (1980). Contrary to the Agency's claim, we find that promotion procedures for the employees in this case are not specifically provided for in 38 U.S.C. Chapter 75 so as to be excluded from the definition of conditions of employment under section 7103(a)(14)(C). Rather, the sections cited by the Agency, specifically, sections 4106, 4108 and 4115, all provide the Agency with discretion to regulate appointment and promotion (section 4106), conditions of employment (section 4108) and administration of the Department of Medicine and Surgery (DM&S) (section 4115). Thus, unless the proposal is otherwise nonnegotiable, the Agency must bargain on it.

Further, since we determined in VAMC Ft. Lyons that the Agency's personnel regulations are not "legislative regulations" which have the force and effect of law, such regulations will not bar negotiation of this proposal unless the Agency establishes that a compelling need exists for any of such regulations. The Agency has made no such argument. Thus, we reject the Agency's claim that because such regulations concern promotion this provision is nonnegotiable.

2. Sections 1, 2, 4, and 6

Section 1 provides that the promotion procedure will apply to specified employees. Section 2 requires that all promotions will be without discrimination and will be consistent with law, selection guidelines and the collective bargaining agreement. Section 4 is a general statement that the purpose of the promotion article is to assure that the best qualified candidates are recognized and provided opportunity to develop their potential. Section 6 states that the criteria for promotion will be fairly and equitably applied.

It is quite clear that the parties bear the burden of creating a record upon which the Authority can make its decision. See National Federation of Federal E 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g National Federation of Federal Employees Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). In this case, the Agency makes no specific claim that any of these sections violates a specific law, rule or regulation, including an Agency regulation for which a compelling need exists. In the absence of any Agency claim to the contrary, we find these sections concerning the general applicability and purpose of the promotion procedures to be negotiable.

3. Section 3

For the following reasons we find subsections A, B and C(2) to be nonnegotiable and subsection C(1) negotiable.

a) Subsection A

Subsection A of section 3 provides that in order to be eligible for promotion an employee must have a current proficiency rating of satisfactory and have served the required time in grade. In agreement with the Agency, we find that subsection A of section 3 is inconsistent with 38 U.S.C. 4106(a) which provides that appointments "shall be made only after qualifications have been satisfactorily established" and 38 U.S.C. 4106(c) which states that promotions "shall be made only after examination." The right to determine qualifications is also, of course, a management right under section 7106(a)(2)(C) to select. See, for example, National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC) Lowry Air Force Base, Colorado, 11 FLRA 565 (Proposals 1 and 2) in which the Authority found that determination of the skills, knowledge and abilities needed to perform the work of a position is an integral part management's right under 7106(a)(2)(C) to select employees for appointment). Since subsection A of section 3 makes no reference to these  requirements, it is inconsistent with law and, thus, nonnegotiable. In view of this determination it is unnecessary to address the Agency's additional claims. Further, since we find subsection A to violate law, it is unnecessary for us to address the Union's claim that subsection A constitutes a "procedure" under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3). See National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, Corps of Engineers, 21 FLRA No. 31 (1986).

b) Subsection B

Subsection B provides that 90 days prior to an employee completing the time-in-grade requirement, the "appropriate service chief" will notify the employee of the preliminary promotion recommendation. The Agency claims that providing such a notice period is inconsistent with an Agency regulation which contains no provision for notice to an employee in these circumstances. Without specific reference to any of the compelling need criteria set out in section 2424.11 of the Authority's Rules, the Agency argues that its regulation is "needed in order to accomplish the patient-care mission of DM&S(.)" Statement of Position at 72.

In order to establish that a proposal is nonnegotiable on the basis of a compelling need, 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 Authority's illustrative standards set forth in section 2424.11 of the Authority's Rules (5 C.F.R 2424.11). Generalized and conclusionary reasoning does not support a finding of a compelling need. American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation Madison Region, 21 FLRA No. 104 (1986) (Proposal 7).

The Agency has not referenced a specific compelling need criterion, although it did refer to its mission as a basis for the regulation. Thus, we conclude that the Agency, in effect, is claiming that its regulation is essential, as distinguished from helpful or desirable, to the accomplishment of its mission in a manner which is consistent with the requirements of an effective and efficient government. In our view, however, the Agency has not demonstrated how not providing an employee with notice of that employee's eligibility and consideration for a promotion  is necessary to the accomplishment of its mission. Thus, we reject the Agency's claim that a compelling need exists for its regulation to bar negotiation of subsection B.

Nevertheless, we find subsection B nonnegotiable. Subsection B requires a particular management official, the "appropriate service chief," to inform an employee of a promotion recommendation. Subsection B, therefore, interferes with management's right under section 7106(a)(2)(B) to assign what work will be performed and by whom. See For example, American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement and Diagnostic Equipment Support Group, the U.S. Army Information System Command, Redstone Arsenal Commissary, 27 FLRA No. 14, slip op. at 12 (1987) (Provision 6), petition for review filed sub nom. U.S. Army Missile Command, U.S. Army Test, Measurement Diagnostic Equipment Support Group, U.S. Army Information Systems Command - Redstone Arsenal Commissary v. FLRA, No. 87-7445 (11 Cir. July 17, 1987). Thus, subsection B is not a negotiable "procedure" under section 7106(b)(2). However, this defect is easily cured by eliminating the reference to a specific management official. See U.S. Army Missile Command, slip op. at 13. We also find that this subsection does not constitute an "appropriate arrangement" under section 7106(b)(3). That is, we find that the Union has not demonstrated that designating someone other than the "appropriate service chief" adversely affects unit employees in any manner or, conversely, that designating only the "appropriate service chief" would benefit employees in any way.

c) Subsection C

Subsection C provides that 60 days before an employee completes the time-in-grade requirement the appropriate management official's promotion recommendation will be forwarded to the appropriate Professional Standards Board (PSB). Subsection C(1) grants an employee 45 days to respond to a negative recommendation before action is taken and subsection C(2) requires that the employee and the union representative will have access to all material the Professional Standards Board is using in its deliberations.

The Agency relies on the same argument it made with respect to subsection B to support a claim that a compelling need exists for its regulation which contains no notice periods or time to respond. Thus, based on our reasoning with respect to subsection B, we find that the Agency has not  established that a compelling need exists for its regulation to bar negotiation of subsection C. The agency has made no other arguments, nor are any apparent to us, as to the non-negotiability of Subsection C(1) Accordingly, subsection C(1) is within the duty to bargain.

However, we find subsection C(2) to be nonnegotiable. This subsection expressly requires access to all material the PSB is using in its deliberations. Accordingly, subsection C(1) is to the same effect as Proposal 4 found nonnegotiable in Overseas Education Association, Inc. and Department of Defense Dependents Schools, 22 FLRA No. 34 (1986). aff'd sub nom. Overseas Education Association, Inc. v. FLRA, No. 86-1491 (D.C. Cir. Aug. 28, 1987). Proposal 4 in that case required unrestricted access to any and all records used in a manner to negatively affect employees. Among other things, the Authority determined that insofar as the proposal permitted access to the records of other employees the proposal was inconsistent with section 7117 because it did not allow for observing legal and regulatory restrictions on the disclosure of records. For example, in a promotion action under that proposal a nonselected employee seeking to challenge the outcome could, under that proposal, demand access to the records of the competing employees. Since the language of subsection C(2) requires access to all information, we find, based on the reasons and cases cited in Department of Defense Dependent Schools, that subsection C(2) is nonnegotiable. As with subsection A, since subsection C(2) violates law, it is unnecessary for us to address the Union's claim that the subsection is a "procedure" or an 'appropriate arrangement.'

4. Section 5

Subsection A of Section 5 concerns the membership of the PSB and requires Union membership and a Union observer at all PSB proceedings. Subsection B involves PSB operation procedures. Subsection C permits an employee to choose the particular PSB to review his/her records in certain circumstances. Subsection D requires a written decision with reasons to be provided to an employee within 7 days of the decision. For the reasons which follow, we find subsection A, B, and C to be nonnegotiable and subsection D negotiable.

It is by now well established that proposals seeking union participation in the deliberative process leading to the exercise of rights reserved to management by section 7106 of the Statute are nonnegotiable. See National Treasury Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982) and the  cases cited therein. In VA Medical Center, East Orange the Authority observed that "when management establishes formal organizational structures to undertake such deliberations as in integral part of its substantive decision-making process, a proposal which would require union participation would have the effect of directly interfering with management's statutory right to make decisions involved." 9 FLRA at 999.

The Authority determined in VA Medical Center East Orange, that PSBs in the Veterans Administration are (1) a statutorily mandated decision-making process by which management through professional peer review exercises its authority under section 7106 of the Statute to hire and retain or remove employees; and (2) an integral part of the process by which management decides and acts under that authority. Because the proposal there required union membership on a PSB, it interfered with management's rights under section 7106 of the Statute.

Since subsection A also requires union membership on a PSB, for the reasons stated in VA Medical Center, East Orange, it directly interferes with management's rights under section 7106(a)(2) and is outside the duty to bargain. See also National Union of Hospital and Health Care Employees, AFL - CIO, District 1199 and Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA No. 65 (1987) (Proposal 2). Further, to the extent that subsection A only provides for a Union observer to attend deliberations of a PSB it would still interfere with management's rights under section 7106 of the Statute. See American Federation of Government Employees, AFL - CIO, Local 2298 and Department of the Navy, Navy Exchange Charleston, South Carolina, 22 FLRA No. 37 (1986), petition for review filed sub nom. American Federation of Government Employees, AFL - CIO, Local 2298 v. FLRA No. 86-1497 (D.C. Cir. Sept. 4, 1986).

Subsection B also would interfere with management's right to discuss and deliberate concerning the exercise of its rights under section 7106(a) by mandating a specified procedure which management will follow in its deliberations.

Subsection C permits employees to choose which PSB will consider a particular personnel action. It, therefore, interferes with the Agency's right under section 7106(a)(1) to determine its organization, that is, the particular structures by which it makes it decisions under section 7106(a). See Hawaii Federal Employees Metal Trades Council AFL - CIO, and Pearl Harbor Naval Shipyard, 23 FLRA No. 24 (1986). 

We reject the Union's unsupported claim that these subsections are either negotiable "procedures" or "appropriate arrangements." That is, even assuming that subsection A, B and C were intended as "procedures" or "arrangements" as claimed by the Union, each of these subsections, by conditioning the operation of a PSB, effectively abrogates management's right to act. That is, they would prevent management from engaging in discussion and deliberation without union participation and from determining which organizational structure is to be utilized. We believe that the chilling effect on management's right to deliberate with respect to the exercise of the rights reserved to it by section 7106 resulting from the Union's presence on a PSB outweighs any benefits to unit employees. Thus, these subsections excessively interfere with management's rights and are nonnegotiable.

Subsection D, however, to which the Agency did not specifically object, merely requires an employee to be notified in writing, with reasons, in a specified time after the PSB made its decision. Such a requirement imposes no limitation on management's rights to deliberate and act. Rather, it constitutes nothing more than a procedure by which management informs an employee of its decision. As such, it is negotiable under section 7106(b)(2) of the Statute. See, for example, Veterans Administration Medical Center Dayton, Ohio, 26 FLRA No. 65 (Proposal 7, section 5).

VI. Proposal 5

Article 26A, section 3 - Periodic Step Increase

The required waiting period for each PSI shall be 52 weeks.

A. Position of the Parties

In addition to the arguments disposed of in section II of this decision, the Agency claims that the matter of step increases is specifically provided for by law and, thus, excluded from the definition of conditions of employment by section 7103(a)(14)(C) of the Statute. Specifically, the Agency argues that 38 U.S.C. 4106, 4108(a) provide exclusive discretion to the Agency to establish waiting periods for periodic step increases.

The Union argues that 38 U.S.C. 4106(c) does not specifically provide for periodic step increases, but rather, leaves the determination of the waiting period to the  Agency's discretion. Thus, according to the union, such discretion must be negotiated.

B. Analysis and Conclusions

Contrary to the Agency's claim, there is nothing in 38 U.S.C. 4106(c) or 4108(a) which reserves exclusively to the Agency the right to establish the waiting periods for periodic step increases. Rather, 38 U.S.C. 4106(c) merely provides that advancement within grade may be made in increments "in accordance with regulations prescribed by the (Agency)." Further, 38 U.S.C. 4108(a) merely provides that the Agency may "prescribe by regulation the conditions of employment" for Agency employees. Thus, since we find that the cited provisions of law do not specifically limit the Agency's discretion, the proposal is not excluded from the duty to bargain by section 7103(a)(14)(C) of the Statute. See Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-760 (1980). See also American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 8).

Further, since the agency has made no claim that a compelling need exists for its regulations to bar negotiation, of this proposal it is within the duty to bargain.

VII. Proposal 6

The FLRA Members have reached differing conclusions concerning Proposal 6. The decision and order on Proposal 6 and Chairman Calhoun's separate opinion immediately follow this decision.

VIII. Proposal 7

Article 30 - Uniforms

Section 3 - (Title 38 Only) Employees shall receive an initial uniform allowance of $500. The per annum allowance thereafter shall be $250.

A. Position of the Parties

The Agency argues that because the proposal provides for a uniform allowance of $500 for the first year and $250 per year thereafter it is contrary to 5 U.S.C. 5901-5902 which  establishes the rate at $125 per year. The Agency also argues that because this matter is specifically provided for by law it is not a condition of employment under section 7103(a)(14)(C) of the Statute. The Agency also claims that this proposal violates management's right under section 7106(a)(1) to determine its budget.

The Union contends that the intention behind this proposal is to update the current uniform allowance to a realistic amount. The Union also claims that this proposal is a negotiable appropriate arrangement under section 7106(b)(3).

B. Analysis and Conclusion

Subchapter I of 5 U.S.C. chapter 59, which includes section 5901 cited by the Agency, expressly provides for annual appropriations by Congress to agencies which require employees to wear a prescribed uniform in the performance of official duties and which do not furnish that uniform. The subchapter was originally enacted as the Federal Employees Uniform Allowance Act of 1954, Pub. L. No. 83-763, 68 Stat. 1114 (1954). The legislative history of this provision indicates that the allowance was appropriated for both the purchase and "upkeep" of the prescribed uniform. S. Rep. No. 1992, 83rd Cong., 1954 U.S. Code Cong. & Admin. News 3816, 3826.

From our examination of this provision, we conclude that 5 U.S.C. chapter 59, subchapter I, deals comprehensively with the payment of a uniform allowance by an agency. See Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA No. 84 (1987) (Proposal 1); National Association of Government Employees, SEIU, AFL - CIO and National Guard Bureau, Adjutant General, 26 FLRA No. 62 (1987) (Proposal 9).

Therefore, we find that the proposal pertains to a matter which is specifically provided for by Federal statute. According, it is unnecessary for us to address the Union's claim that the proposal is an appropriate arrangement under section 7106(b)(3). See National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, Corps of Engineering, 21 FLRA No. 31 (1986). The proposal concerns a matter which is excluded from those "conditions of employment" over which an agency can be required to bargain under section 7103(a)(14)(C) of the  Statute. In view of this conclusion, it is unnecessary for us to address the Agency's other arguments concerning the negotiability of the proposal.

IX. Proposal 8

Article 33 - Proficiency Rating System - Title 38 Employees

This article is set out in its entirety in the Appendix to this decision.

A. Positions of the Parties

The Agency argues that matters addressed by this proposal are specifically provided for by law and thus are excluded from the definition of conditions of employment by section 7103(a)(14)(C) of the Statute. The Agency also argues that section 1, 2 and 3F of Proposal 8 violate management's rights under section 7106(a)(2) of the Statute to assign employees and to assign work. In addition, without referring to any specific section, the Agency claims that Proposal 8 as a whole interferes with management's right under section 7106(b)(1) to determine the methods, means and technology of performing work. The agency also claims various portions of this proposal are inconsistent with Agency regulations for which a compelling need exists.

The Union claims that this proposal constitutes either a negotiable "procedure" under section 7106(b)(2) or a negotiable "appropriate arrangement" under section 7106(b)(3).

B. Analysis and Conclusions

1. The Proposal is not Excluded From the Definition of Conditions of Employment by Section 7103(a)(14)(C) of the Statute

As we previously stated at Proposal 4 in this decision, 38 U.S.C. 4106, 4108 and 4115 provide the Agency with the discretion to regulate various matters concerning employee working conditions. Thus, since the cited provisions of law do not limit the Agency's discretion, this proposal is not excluded from the definition of conditions of employment by section 7103(a)(14)(C) of the Statute. See Internal Revenue Service, New Orleans, District, at 759-560. 

2. The Proposal Does Not Violate Management's Right Under Section 7106(b)(1) to Determine the Methods, Means and Technology of Performing Work.

The Agency claims, without any supporting argument that Proposal 8 violates its right to determine the methods, means and technology of performing work. However, since the Agency has not demonstrated in what manner specific portions of this proposal interfere with the Agency's right we reject this claim.

3. No Compelling Need for Agency Regulations

The Agency relies on the same argument to support its claim that a compelling need exists for its regulations to bar negotiation of this proposal that it made at Proposal 4 in this case. That is, the Agency argues, without any explanation whatever, that its regulations are "needed in order to accomplish the patient-care mission of (the Agency)." As we stated at Proposal 4, however, such conclusionary reasoning does not support a finding of compelling need. Thus, even assuming that portions of this proposal are inconsistent with Agency regulations, we find that the Agency has not demonstrated that a compelling need exists for those regulations to bar negotiation of the inconsistent portions of the proposal.

4. Section 1

This section requires that rating elements be job-related, accurate and measurable and that abstract subjective elements not be used. Therefore, it is like the proposals found nonnegotiable in American Federation of Government Employees, Local 3748, AFL - CIO and Agriculture Research Service, Northern States Area, 20 FLRA 495 (1985) aff'd sub nom. American Federation of Government Employees, Local 3748 v. FLRA, 797 F.2d 612 (8th Cir. 1986). The proposals in that case also require that job standards be objective, job-related and measurable. In finding the proposals to be inconsistent with management's rights under section 7106(a)(2)(A) and (B) to assign work and direct employees the Authority determined that the proposals would have the net effect of permitting arbitral review of management's determination of the content of performance standards. Accordingly, based on Agricultural Research service, we find section 1 to be nonnegotiable. See also Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29 (1987) slip op. at 12-13, petition for review filed sub nom. 

Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 26, 1987).

Because we find that section I directly interferes with management's rights to direct employees and to assign work, the section cannot be a negotiable procedure under section 7106(b)(2). See our analysis at Proposal 3 in this decision. In addition, we reject the Union's claim that this section is negotiable as an "appropriate arrangement" under section 7106(b)(3). We stated in Patent and Trademark Office that, since the establishment of performance standards does not by itself adversely affect employees, proposals concerning the content of performance standards do not qualify for consideration under section 7106(b)(3). Slip op. at 13. Thus, based on Patent and Trademark Office, section 1 also does not qualify for consideration under section 7106(b)(3).

5. Section 2

The first two sentences essentially require that employees in like assignments will be rated on the like elements. The last two sentences provide that employees will be informed in writing prior to the beginning of the rating period of the elements in their rating and given an explanation of the requirements for each level of achievement for each rating element.

The first sentences are to the same effect as section 3.E found nonnegotiable in Patent and Trademark Office. Section 3.E in that case required management to establish the same performance standards and rating levels for employees performing the same job function. Relying on earlier Authority precedent, we found section 3.E violated management's rights under section 7106(a)(2)(A) and (B) because it would substantially restrict the establishment of standards. Thus, based on the reasoning and cases cited in Patent and Trademark Office, the first sentences of section 2 also directly interfere with management's rights to direct employees and to assign work. See also U.S. Army Missile Command (Proposal 5). Further, in view of this determination, based on our reasoning at section I above, the first two sentences are neither negotiable "procedures" under 7106(b)(2) nor negotiable "appropriate arrangement" under section 7106(b)(3).

We find the last two sentences of section 2 to be negotiable. These two sentences in no way restrict management in the exercise of its rights under section 7106(a). Rather, they merely require the Agency to provide  employees with information concerning performance standards and ratings. Thus, they are within the duty to bargain. See 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 3A)

6. Section 3

Subsection A requires annual appraisals and, in circumstances where the employee intends to leave the VA facility, an appraisal within 5 days of the notice of intent to leave. Subsection B requires the rater to communicate and explain to employees the elements and standards. Subsection C(1) requires the supervisor to keep the employee informed on a daily basis of his/her performance through use of commendations and counseling. Subsection C(2) requires at least one formal rating conference 180 days prior to the annual appraisal. Subsection C(2) also provides for counseling of the employee on his/her performance, the opportunity to respond and to submit additional information and self-evaluations and a formal written summary of the meetings. Sub-section D permits professional employees to self-evaluate their performance. Subsection E provides that after the annual rating is issued a formal meeting will be held between the employees and the rating official. In addition, subsection E provides that where the employee disagrees with the annual rating, the employee will be permitted a reason-able amount of time to respond to the rating and to submit any material the employee deems pertinent to be considered by the PSB. Subsection F permits an employee to select a PSB at a different VA facility when the employee feels that the local PSB will not be fair. Subsection F also requires that employees be provided with all documents submitted to the alternate PSB. For the reasons which follow, we find subsections A, B, C(2), D and E to be negotiable. We find subsections C(1) and F to be nonnegotiable.

The Agency provides no arguments concerning the negotiability of the subsection A other than the general claims disposed of above. The agency argues that the proficiency rating system specifically is provided for by law and that a compelling need exists for its regulations to bar negotiation of conflicting portions of the proposal. In our view, matters concerning the frequency of performance appraisals are within the duty to bargain. See For example, American Federation of Government Employees, Local 1923 AFL - CIO and Department of Health and Human Services, Office  of the Secretary, Headquarters, Office of the General Counsel, Social Security Division, 21 FLRA No. 28 (1986) (Proposals 4 and 5) aff'd sub nom. American Federation of Government Employees, AFL - CIO, Local 1923 v. FLRA, No. 86-1297 (D.C. Cir. May 19, 1987).

As with subsection A, the Agency provided no specific arguments concerning subsection B. This subsection merely requires that an employee will be provided relevant information concerning performance standards and ratings. Like the last two sentences of section 2 of this proposal which we found negotiable, subsection B is within the duty to bargain.

Insofar as subsection C requires the Agency to in-formally keep an employee informed about the his/her performance, it would be negotiable. However, subsection C(1) expressly requires the supervisor to perform tasks which management may want other management officials to perform. It is well established that requiring an agency to assign specific tasks to supervisors and management officials violates management's right under section 7106(a)(2)(B) to assign work. See, for example, U.S. Army Missile Command, (Proposals 6, 8 and 10). Thus, subsection C(1) is nonnegotiable. This defect, however, is easily curred. See U.S. Army Missile Command, slip op at 13.

As with the previous subsections, the Agency has provided no specific argument concerning subsection C(2) which requires a performance rating conference 180 days before a formal rating is due. In our view, subsection C(2) merely requires the Agency to appraise an employee's performance halfway through the performance appraisal cycle for the obvious purpose of affording the employee an opportunity to improve any substandard performance. As such, it does not in any manner interfere with management's rights and is negotiable.

Subsection D permits an employee to provide a self-evaluation. The Agency made no specific claim with respect to subsection D. In light of the absence of anything in the record to indicate otherwise, we find that the self-evaluation referred to in subsection D is not intended to be substituted for a formal appraisal. Rather, reading subsection D in conjunction with the balance of this proposal, the self-evaluation constitutes nothing more than additional material to be considered by the PSB in its deliberation. As such, it is negotiable. 24]

Subsection E essentially requires that, if an employee believes that his/her annual rating does not accurately reflect all of his/her accomplishments, the employee will be given a reasonable period of time to submit to the PSB for consideration any additional material deemed pertinent. Since this subsection in no way obligates the Agency to do anything more than consider the additional material submitted by the employee, it is within the duty to bargain. See Veterans Administration Medical Center, Salisbury, North Carolina, (Proposal 10, Paragraph C).

Subsection F leaves to an employee the discretion to determine which Agency organizational structure, that is, which PSB, will consider the employee's performance. In this respect, it is to the same effect as section 5 C of Proposal 4 in this decision which also permitted an employee to choose the PSB to review his/her records and which we found to interfere with the Agency's right under section 7106(a)(1) to determine its organization. Thus, subsection F is nonnegotiable. In view of this determination, it is unnecessary to address the Agency's additional arguments. In addition, based on our reasoning at section 5 C of Proposal 4 we reject the Union's unsupported claims that subsection F is a negotiable "procedure" or a negotiable "appropriate arrangement."

7. Section 4

Subsection A requires that an employee receive counseling 90 days prior to the issuance of an unsatisfactory rating with a right to union representation. Subsection B requires a 90 day performance improvement period to improve unsatisfactory performance. In addition, subsection B provides that the employee will receive a 90 day warning notice which includes a performance improvement plan addressing training, counseling, short-term job assignment with measurable goals. Further, under subsection B a supervisory conference will be held at 30 day intervals and if, at any point, the rater finds the employee's performance to be satisfactory a new rating will be provided. Subsection C applies if the employee's performance does not improve during the 90 day period. In such a situation, the employee will be offered a reassignment or an additional 60 days to improve. If, after 30 days, the employee still has not improved the employee will be provided a 30 day advance notice of a proposed action with an opportunity to appear before the PSB the employee chooses. Subsection D notes a number of listed actions which the PSB may consider.  Subsection E provides for Union representation at all meetings and hearings. Subsection F requires PSB action to be stayed pending final resolution of appeal/negotiated decisions.

For the reasons which follow, we find subsection A, the first and fifth sentences of subsection B, subsection D, subsection E and subsection F to be negotiable. We find the second, third and fourth sentences of subsection B and subsection C to be nonnegotiable.

The Agency did not specifically refer to subsection A in its arguments. In the absence of any indication to the contrary, we find this subsection merely requires that the Agency provide 90 days advance warning before an unsatisfactory rating is given to an employee. As such, it is a negotiable procedure under section 7106(b)(2) of the Statute. See, for example, American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, 15 FLRA 825 (1984) (Proposal 2). Further, insofar as this section provides for union representation, the Authority has held that an agency's duty to negotiate concerning such representation is not limited to the rights given such employees under section 7114(a)(2) of the Statute. See American Federation of Government Employees, AFL - CIO, National Immigration and Naturalization Service Counsel and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347, 354-57 (1982), reversed as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983). Thus, this portion of subsection A is also negotiable.

Subsection B also was not specifically referred to in the Agency's arguments. The first sentence of this subsection which provides employees with a 90-day period to improve performance is to the same effect as similar proposals providing a performance improvement period which have been held negotiable. See Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (1987) (Proposal 7, Section 4) and cases cited therein. Thus, the first sentence is negotiable.

The second and third sentences of subsection B, when read together, require that as a part of the 90-day advance notice the Agency will include a "Performance Improvement Plan" consisting of, among other things, the provision of training. In our view, these two sentences are to be the  same effect as Proposal 1B found nonnegotiable in Social Security Administration, Baltimore Maryland, 25 FLRA No. 2. In that case, Proposal 1B required the Agency to provide training to employees whose performance appraisal identified certain performance deficiencies. We determined that such a requirement excessively interfered with management's right under section 7106(a) and, therefore, did not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. Based on our reasoning in that case, we find the second and third sentences of subsection B also nonnegotiable.

The fourth sentence of subsection B requires supervisory conferences every 30 days during the 90-day improvement period to address the employees performance. The Authority consistently has held that the designation of a particular management official to perform specified tasks is inconsistent with an agency's right to assign work under section 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). For the reasons stated in that case, the fourth sentence of subsection B is nonnegotiable. This defect is easily cured by removing reference to a specific management official. See U.S. Army Missile Command, slip op. at 13.

The fifth sentence of subsection B, merely requires that if the rating official finds the employee's performance has reached the satisfactory level during the improvement period a new performance appraisal will be provided to the employee. As such, it does not in any manner interfere with the exercise of management's rights.

Subsection C, read as a whole, provides an employee, whose performance has not improved during the 90-day period set out in subsection B, will have the option to request a reassignment or an additional 60 days to improve his/her performance. If the employee's performance remains unsatisfactory at the end of the 60-day period, the employee will be permitted the opportunity to appear before the PSB of the employee's choice as set out in subsection F of section 3 above. Insofar as this subsection would require the Agency to reassign an employee whose performance is unsatisfactory rather than taking action against the employee based on the unsatisfactory performance, it is to the same effect as Proposal 6 found nonnegotiable in Social Security Division, 21 FLRA No. 28 (Proposal 6). The Authority determined in that case that requiring an agency to reassign an employee prior to terminating or demoting that employee for unacceptable performance excessively interfered with  management's rights under section 7106(a)(2)(A) to remove employees or reduce them in grade. Thus, based on Social security Division, the first portion of subsection C is also nonnegotiable.

The last portion of subsection C essentially permits an employee to appear before the PSB of his/her choice. As we previously stated with respect to subsection 3F of this proposal, such option interferes with management's right under section 7106(a)(1) to determine its organization by totally preventing management from determining which organizational structure, that is, which PSB will consider the employee's performance. Furthermore, the last sentence is not an "appropriate arrangement" within the meaning of 7106(b)(3) of the Statute. See our reasoning at section 5. C of Proposal 4.

Subsection D provides that should a PSB sustain the employee's unsatisfactory performance, the PSB may consider a number of listed options. Since subsection D does not require a PSB to do anything other than consider various options, it is within the duty to bargain. See VAMC, Salisbury, North Carolina. (Proposal 10 paragraph C).

Subsection E provides for employees' entitlement to Union representation at all hearings and meetings. Read in conjunction with the rest of Proposal 4, subsection E, in our opinion, only involves meetings and hearings concerning performance evaluation as provided elsewhere in the Proposal. Thus, we find that it is to the same effect as the last portion of subsection A above which we found negotiable. Compare Congressional Research Employees Association and Library of Congress, Congressional Research Association, 25 FLRA No. 21 (1987) (Proposal 17) (proposal requiring union representation in any meeting or any discussion regardless of the subject found to excessively interfere with management's rights).

The effect of Subsection F, would be to stay any action taken by management pending the resolution of any appeal/ negotiated grievance procedure. It is like the first sentence of Proposal 2 found to be negotiable in Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 SEIU, AFL - CIO and U.S. Department of the Navy, Naval Underwater Systems Center, 25 FLRA No. 79 (1987). Thus, subsection F is within the duty to bargain. 

X. Proposal 9

Article 39 - Staff - Patient Ratio

Section I - The Agency shall maintain reasonable staffing levels to insure employee health and safety.

A. Positions of the Parties

The Agency argues that matters regarding staffing of personnel are solely under the authority of the Administrator and the Chief Medical Director pursuant to 38 U.S.C. 4104. The Agency also argue that the staff-patient ratio does not concern a condition of employment, and that it violates management's right under section 7106(a)(2)(A) to assign employees, and under section 7106(b)(1) to determine the number of employees assigned to organizational subdivisions, work projects or tours of duty.

The Union argues that the proposal is not intended to interfere with management rights, but that it is merely a procedure or an appropriate arrangement to avoid damage to the health and safety of employees due to an assignment of excessive workloads.

B. Analysis and Conclusion

1. The proposal concerns working conditions of unit employees but directly interferes with management's right under section 7106(b)(1) to determine the numbers, types and grades of employees assigned.

This proposal addresses the working conditions of employees in the bargaining unit. It involves the number of employees assigned, which impacts the amount of work assigned. Thus, it involves a condition of employment.

However, to the extent that this proposal concerns "adequate staffing", it is to the same effect as Proposal 1 in veterans Administration Medical Center, Dayton, Ohio, 28 FLRA No. 65 (1987) (Proposal 1). There we held that proposals which relate to the staffing of a tour of duty concern management's determination of the numbers, types, and grades of employees or positions assigned to that tour of duty. Where such proposals are integrally related so as to be determinative of the numbers, types, or grades of employees assigned to a tour of duty, they are negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. See also VAMC, Salisbury, North Carolina, 27 FLRA No. 13 (Proposal 8). 

This proposal would subject the Agency's decision as to what constitutes reasonable staffing levels to a substantive criterion. Thus, the Agency's decision on those matters would, if challenged by the Union, be subjected to a determination by an arbitrator as to whether the Agency had maintained reasonable staffing levels. The proposal would authorize an arbitrator to substitute his or her judgment as to adequate staffing. Hence, the arbitrator would be determining the numbers, types and grades of employees assigned to a tour of duty. Therefore, this proposal is outside the duty to bargain.

2. The Proposal interferes with management's right under section 7106(a)(2)(B) to assign work

The Union also argues that this proposal "is a legitimate limitation on assignment of the amount of workload." To the extent that this proposal is intended as a limitation on work assignments, it is also outside the duty to bargain. It is well established that management's right to assign work under section 7106(a)(2)(B) of the statute includes the right to determine what particular duties will be assigned, when work assignments will occur and to whom or to what positions duties will be assigned. See National Association of Government Employees, Local Rl-109, AFL - CIO and Veterans Administration Medical Center, Newington, Connecticut, 26 FLRA No. 63 (1987) (Proposal 1). See also VAMC, Dayton, Ohio, 28 FLRA No. 65 (Proposal 19) (where the Authority found nonnegotiable a proposal which restricted management's right to assign work for "health and safety," reasons.)

3. The proposal does not involve procedures within the meaning of section 7106(b)(2)

This proposal directly interferes with management's rights under sections 7106(a)(2)(B) and 7106(b)(1) of the Statute. Accordingly, it does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See Air Force Logistics Command Wright - Patterson Air Force Base, Ohio. See also National Federation of Federal Employees, Local 1454 and Veterans Administration, 26 FLRA No. 99 (1987).

4. The proposal is not in arrangement within the meaning of section 7106(b)(3).

The Union claims that this proposal is an appropriate arrangement which seeks to guard the health and safety of employees due to the physical and psychological stress of management's assignment of excessive workloads. We find that, even assuming that the proposal constitutes an "arrangement" within the meaning of section 7106(b)(3) for employees adversely affected by the exercise of a management right, it is not an "appropriate" arrangement. Although the Union's proposal would alleviate the workload, it would do so by requiring management to recruit additional personnel and to make specific work assignments. Thus, we find that this proposal excessively interferes with the Agency's right to determine the numbers, types and grades of employees, and also with its right to assign work. Accordingly, we find it outside the duty to bargain. See VMAC, Ft. Lyons, Colorado, 25 FLRA No. 66 (Proposal 2).

XI. Proposal 10

Article 42 - Relations with Teaching Institutions

Section 3 - The Administration shall appoint one member designated by the union to each committee (advisory body established pursuant to 38 U.S.C. 4112(b)).

A. Positions of the Parties

The Agency contends that 38 U.S.C. 4112(b) specifically provides for the establishment of "Deans Committees" and for their membership. Thus, the Agency argues that the proposal is excluded from the definition of conditions of employment by section 7103(a)(14)(C) of the Statute. The Agency also argues that because "Deans Committees" are concerned with making recommendations on training programs with medical schools for medical and dental residents and interns the proposal does not concern working conditions of bargaining unit employees. The Agency argues further that because medical training is part of the VA patient care mission, the proposal violates management's rights under section 7106(a) to determine its mission and to assign. Finally, the Agency claims that a compelling need exists for its regulations concerning "Deans Committees" to bar negotiation of the proposal.

The Union merely states "(w)e reiterate our previous arguments in support of our position that this proposal is a condition of employment, is not specifically determined by statute, and is an appropriate arrangement." Reply Brief at 44. 

B. Analysis and Conclusion

Committees established under 38 U.S.C. 4112(b) are concerned with making recommendations on training programs for medical and dental residents and interns with medical schools and other outside entities. 38 U.S.C. 4112(b) describes membership on such committees and covers, as determined by the Administrator of the VA, the number of members, including Agency personnel, and their terms of membership.

Contrary to the Agency's claim, however, there is nothing in the language of 38 U.S.C. 4112(b) which specifically limits the Agency's discretion as to the particular Agency personnel to appoint to such committees. Thus, this proposal is not excluded from the definition of conditions of employment by section 7103(a)(14)(C).

Nevertheless, we find this proposal nonnegotiable. The Union has not established in this case that these committees, on which the Union seeks membership in any manner pertain to bargaining unit employees' working conditions. Rather, these committees are expressly concerned with non-bargaining unit matters, the training programs with medical schools for medical and dental residents and interns. Consequently, we find that because this proposal does not concern conditions of employment of bargaining unit employees within the meaning of section 7103(a)(14) of the Statute it is nonnegotiable. See Antilles Consolidated Education Association and Antilles Consolidated School Systems, 22 FLRA No. 23 (1986) slip op. at 2-4.

In view of this determination, it is unnecessary to address the Agency's additional arguments concerning the negotiability of this proposal. Further, since section 7106(b)(3) applies only when management exercises a management right under section 7106, it is unnecessary to address the Union's claim that this proposal constitutes an "appropriate arrangement." See Department of the Army, Kansas City District, Corps of Engineers, 21 FLRA No. 31 (1986).

XII. Proposal 11

Section 1 - The Union will be informed in writing of any upcoming visits by Accrediting Bodies a reasonable amount of time prior to the visit. 

Section 2 - If requested, a copy of any review and evaluation by an accrediting body shall be provided the Union in a timely manner if the release of such material is not prohibited by law and impacts on the bargaining unit.

Section 3 - The Union shall have the opportunity to be present at any summary critique by an accrediting body.

A. Positions of the Parties

The Agency argues that this proposal does not concern conditions of employment, and that it violates management's right under section 7106(a)(1) to determine the Agency's mission and management's right under section 7106(b)(1) to determine the technology, methods and means of accomplishing work.

The Union states, without any specific argument concerning this proposal, that its intent is clear on its face.

B. Analysis and Conclusions

Sections I requires the Union to be notified in writing of any upcoming visits by Accrediting Bodies prior to the visit. Section 2 provides that, unless prohibited by law, a copy of any review and evaluation by an accrediting body will be provided to the union if the review and evaluation affects the bargaining unit. Section 3 provides that the union will have the opportunity to be present at any summary critique by an accrediting body. For the reasons which follow, we find sections 1 and 3 nonnegotiable and section 2 negotiable.

Like Proposal 10 there is nothing in the record to establish that sections 1 and 3 of Proposal 11 in any manner pertain to bargaining unit employees. Thus, based on the reasons expressed as to Proposal 10, we find that since sections 1 and 3 of Proposal 11 also do not concern conditions of employment of bargaining unit employees within the meaning of section 7103(a)(14) of the Statute, they are outside the duty bargain.

We find section 2, however, to be negotiable. Contrary to the Agency's position, since this proposal expressly applies only to reviews and evaluation affecting the bargaining unit, it does concern conditions of employment of bargaining unit employees. Further, the proposal expressly limits management's obligation to provide only such information as is not prohibited by law. Thus, we find that the Agency has not established that this proposal interferes in any manner with the management rights relied upon by the Agency. Consequently, Proposal 11 is within the duty to bargain. Compare Veterans Administration Medical Center, Salisbury, North Carolina, (Proposal 5) (Proposal requiring the results of investigations affecting unit employees to be provided to the union immediately after the results are known found to violate management's right to determine internal security practices under section 7106(a)(1) because there was nothing in the express language of the proposal which limited the nature and extent of the information which would be disclosed) .

XIII. Order

Proposal 3 the third sentence, Proposal 4 sections 3A, B and C(2), and sections 5A, B and C, Proposal 7, Proposal 8 section 1, the first two sentences of section 2, section 3C(1) and F, the second, third and fourth sentences of section 4B, section 4C, Proposal 9, Proposal 10, and Proposal 11 sections 1 and 3 are dismissed. The Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning Proposals I and 2, Proposal 3 the first two sentences, Proposal 4 sections 1, 2, 3 C(l), 4, 5D and 6, Proposal 5, Proposal 8 the third and fourth sentences of section 2, sections 3A, B, C(2), D and E, section 4A, the first and fifth sentences of section 4B, sections 4D, E and F, Proposal 9, Proposal 10 and Proposal 11 section 2. 2

Issued, Washington, D.C., September 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member 

DECISION AND ORDER ON PROPOSAL 6

I. Proposal 6

Article 27 - Overtime

Section 5 - Compensatory Time

C. Compensatory Time may be accumulated for one (1) year. If an employee does not use their (sic) compensatory time within one (1) year, he/she will be paid for the remaining compensatory time at the applicable overtime rates.

D. Compensatory Time will be accrued at the rate of 2:1 for Title 38 employees.

Section 6 - Administrative Leave

A. Employees prohibited by law or regulation from receiving overtime will receive administrative leave for all time worked in excess of 8 hours a day or 40 hours a week at the rate of 2:1.

B. Title 5 employees will receive one (1) hour of administrative leave for each hour of compensatory time earned.

II. Positions of the Parties

The Agency contends that this proposal is outside the duty to bargain because these matters are specifically provided for by law. The Agency argues that for Title 5 employees, overtime compensation, including compensatory time is specifically governed by 5 U.S.C. 5541-5543 and 5546-5548, and its implementing regulations at 5 C.F.R. 550.105, 550.111, 550.114, 530.131-.132, 550.151-.164. The Agency argues that Title 38 employees are specifically governed by 38 U.S.C. 4107 and chapters 3 and 7 of the VA Personnel Policy, MP-5, Part II and the DM&S Supplement.

The Union contends that Proposal 6 is within the duty to bargain with respect to Title 5 and Title 38 employees. 

III. Analysis and Conclusion

1. Section 5c, first sentence

The first sentence of section 5c provides that compensatory time may be accumulated for one year. The Agency makes three arguments in support of its contention that this sentence is outside the duty to bargain. First, with respect to Title 5 employees, the Agency argues that this sentence is contrary to 5 C.F.R. 550.114 which provides that the head of an agency may fix a time limit for the use of compensatory time off and may provide that compensatory time not taken within the time limit is lost. Second, with respect to nurses, physician assistants, and expanded function dental assistants appointed under Chapter 73 of Title 38, the Agency argues that this sentence is contrary to its legislative regulation, VA Personnel Policy, MP-5, Part II, Chapter 3, Section A, paragraph 4g(9)(c)(1), which provides that compensatory time off will be taken no later than the end of the seventh pay period following the pay period in which it was earned. Third, with respect to physicians, dentists, podiatrists, and optometrists appointed under Chapter 73 of Title 38 the Agency argues that this sentence is contrary to its legislative regulations, VA Personnel Policy, MP-5, Part II, Chapter 3, Section A, paragraph 4e, which provides that these employees "are employed on the basis of availability for duty 24 hours a day, seven days a week" and that they are not entitled to compensation in excess of their annual rate. The Agency argues that a compelling need exists for its legislative regulations and that they have the force and effect of law. The Union contends that this sentence of its proposal is within the duty to bargain.

For the reasons which follow, we find that the first sentence of section 5c is within the duty to bargain.

a) Title 5 Employee

The Agency does not refer to any law or regulation, Government-wide or internal, which limits the period in which compensatory time may be utilized by Title 5 employees. 5 C.F.R. 550.114 gives agency heads the discretion to establish a time frame in which compensatory time may be taken. It does not establish a specific time frame nor does it bar negotiations.

This sentence is substantially similar to Proposal 2 found within the duty to bargain in American Federation of  Government Employees, Local 3488 and Federal Deposit Insurance Corporation, 12 FLRA 532 (1983). The proposal in that case provided that compensatory days were to be treated the same as annual leave subject to use within 1 year from the date earned. The Authority reasoned that although the FPM recognized the discretion of agency heads to "fix a time within which compensatory time off is to be requested or taken," such discretion was not sole and exclusive so that it could not be exercised through negotiations. Moreover, although the agency had promulgated an internal regulation requiring the use of compensatory time in a period shorter than the year proposed by the union, the Authority found that the agency had not established a compelling need for its regulation and that it was, therefore, not a bar to negotiations over the proposal. See also National Treasury Employees Union and Federal Deposit Insurance Corporation 14 FLRA 179 (1984). Therefore, for the reasons set out in FDIC, 12 FLRA 532 we find the first sentence of section 5c within the duty to bargain for Title 5 employees.

b) Title 38 Employees

The Agency has established by regulation a policy that compensatory time should be taken within seven pay periods after it is earned by nurses, physician, assistants, and expanded function dental assistants. The effect of the union's proposal is to expand the seven pay period limitation to 1 year. Absent the existence of a compelling need for the Agency's regulation, the first sentence of section 5c is within the duty to bargain for nurses, physician assistants, and expanded function dental assistants.

As to physicians, dentists, podiatrists, and optometrists the Agency argues that they are not entitled to compensatory time off because they are considered to be on duty 24 hours a day, 7 days a week. In support of its argument the Agency cites to its internal regulations and refers to 38 U.S.C. 4107. Section 4107 merely sets out the grades and pay scales for professional employees of the VA and is silent regarding payment of overtime or compensatory time off to physicians, dentists, podiatrists, and optometrists. The Agency has not established that this category of employees is precluded by law or regulation, other than its own internal regulation, from receiving compensatory time off. In our view, therefore, physicians, dentists, podiatrists and optometrists are entitled to earn compensatory time, unless there is a compelling need for the Agency's regulation. 

The Agency contends that the first sentence of section 5c is inconsistent with its regulation limiting the period in which compensatory time may be used by nurses, physician assistants, and expanded function dental assistants and its regulation precluding physicians, dentists, podiatrists, and optometrists from receiving overtime pay or compensatory time. The Agency argues that a compelling need exists for its regulations, thus, barring negotiations. The Agency does not specifically reference any of the compelling need criteria set out in section 2424.11 of the Authority's Rules and Regulations but only argues that its regulations are "essential to accomplishment of the mission of the Agency ... to ensure that quality medical care is provided to veterans." Agency Statement of Position at 78.

We assume that the Agency is claiming that its regulations are essential, as distinguished from helpful or desirable, to the accomplishment of its mission in a manner which is consistent with the requirement of an effective and efficient government. In our view, however, the Agency has not demonstrated how limiting the time period for nurses, physician assistants and expanded function dental assistants to use compensatory time to seven pay periods after it is earned is essential to the accomplishment of its mission, nor has the Agency demonstrated how prohibiting physicians, dentists, podiatrists, and optometrists from receiving and utilizing compensatory time off within 1 year is essential to the accomplishment of its mission.

Nothing in the first sentence of section 5c precludes the Agency from scheduling these employees to extended tours of duty or limits the Agency's ability to call them back to work in circumstances where their services are needed. Rather, the first sentence only requires that they be allowed to utilize any compensatory time earned within 1 year.

Moreover, the Agency has not established that there is any regulation, much less one for which a compelling need exists, to bar negotiations with respect to Title 5 employees. The Agency has failed to establish that a compelling need exists for its regulations so as to bar negotiation on the first sentence of section 5C and it is within the duty to bargain.

2. Section 5C, Second sentence

The second sentence of section 5C provides that if an employee does not use his compensatory time within one year, he will be paid at the applicable overtime rate. 

a) Title 5 Employees

The Agency contends that this sentence of section 5C is contrary to 5 C.F.R. 550.114 with respect to Title 5 employees. 5 C.F.R. 550.114(c), gives the Agency head the discretion to fix a time limit for an employee to request or take compensatory time off and to provide that an employee who does not take the time off within the time period shall lose the right to the compensatory time off and to overtime time. The Agency has not cited to any Government-wide regulations which preclude Title 5 employees from receiving overtime payment if they are unable to use the overtime within the established time frame. The Agency has failed to establish that the second sentence of section 5C is outside the duty to bargain with respect to Title 5 employees.

b) Title 38 Employees

With respect to nurses, physician assistants, and expanded function dental assistants appointed under Chapter 73 of Title 38, the Agency contends that the procedure to utilize compensatory time off in lieu of overtime pay, including whether an employee who is unable to utilize the compensatory time off within prescribed time limits will be paid, is outside the duty to bargain because it is specifically provided for by law through the VA's legislative regulations. The Agency argues that under 38 U.S.C. 4108(a) the Administrator of the VA is authorized to promulgate regulations concerning hours and conditions of employment which have the force of law. Therefore, according to the Agency, because the Administrator has exercised his authority to regulate the use of compensatory time off in VA Personnel Policy, MP-5, Part II, Chapter 3, Section A, paragraph 4g(9), the second sentence of section 5C, which conflicts with the VA's regulations, is outside the duty to bargain. 3

We find the Agency's argument to be without merit. In VAMC, Ft. Lyons, 25 FLRA No. 66, we held that no direct conflict exists between the provisions of section 4108 authorizing the Administrator of the VA to prescribe hours 

The Agency further argues that to the extent the Authority finds the proposal concerns a bargainable condition of employment, a compelling need exists for its regulation barring negotiation. The Agency argues without specific reference to any of the compelling need criteria set out in section 2424.11 of the Authority's Rules and Regulations, that its regulation is "essential to accomplishment of the mission of the Agency ... to ensure that quality medical care is provided to veterans." Agency Statement of Position at 78. Thus, we can only assume that the Agency is claiming that its regulation is essential, as distinguished from helpful or desirable, to the accomplishment of its mission in a manner which is consistent with the requirement of an effective and efficient government.

In our view, however, the Agency has not demonstrated how requiring employees to forfeit compensatory time off and overtime pay if they have failed to use their compensatory time off within a prescribed period is essential to the accomplishment of its mission. Generalized and conclusionary reasoning does not support a finding of compelling need. FDIC, Madison Region, 12 FLRA 532. The Agency has failed to demonstrate that a compelling need exists to bar negotiation on the second sentence of section 5C with respect to nurses, physician assistants, and expanded function dental assistants.

With respect to physicians, dentists, podiatrists, and optometrists appointed under Chapter 73 of Title 38, the Agency contends that these employees are not entitled to any overtime compensation or compensatory time off because under the regulations promulgated by the Administrator of the VA, they are considered to be on duty 24 hours a day, seven days a week. The Agency argues that under 38 U.S.C. 4108(a) the Administrator of the VA is authorized to promulgate regulations concerning hours and conditions of employment which have the force of law. 

As noted, we have specifically 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. 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. VAMC, Ft. Lyons. Thus, since the Agency's regulations apply only within the VA itself, they are not Government-wide regulations within the meaning of section 7117(a)(1) of the Statute and can bar negotiation on a conflicting proposal only if a compelling need exists for that regulation.

The Agency argues, again without reference to any of the compelling need criteria set out in section 2424.11 of the Authority's Rules and Regulations, that its regulation is "essential to accomplishment of the mission of the Agency ... to ensure that quality medical care is provided to veterans." Agency Statement of Position 78. Thus, we again assume that the Agency is arguing that its regulation is essential to the accomplishment of the mission in a manner which is consistent with the requirement of an effective and efficient government. The Agency has not demonstrated how considering physicians, dentists, podiatrists, and optometrists to be on duty 24 hours a day, 7 days a week without allowing them compensatory time off or payment for unused compensatory time is essential to the accomplishment of its mission. The second sentence of section 5C does not preclude the Agency from scheduling these employees to extended tours of duty nor does it limit the Agency's ability to call these employees back to work in circumstances in which their services are required. Rather, it merely provides that if an employee does not utilize his compensatory time within 1 year, he/she will be paid at the applicable overtime rate. The Agency has not established that law or regulation precludes payment of overtime or compensatory time off to this category of employees. Accordingly, the second sentence of section 5C is within the duty to bargain.

2. Section 5D

Section 5D provides that compensatory time will be accrued at a rate of 2:1 for Title 38 employees. The Agency contends that section 5D concerns a matter which is specifically provided for by 38 U.S.C. 4107(e)(5) and is therefore outside the duty to bargain. The Agency also argues that section 5D is contrary to VA regulations for  which a compelling need exists under section 7117(a) and (b) of the Statute. The Union contends that the broad authority to grant compensatory time in lieu of overtime allows for any reasonable formula in crediting compensatory time.

We find section 5D to be within the duty to bargain. Section 4107(e)(5) of Title 38 sets forth the work for which overtime pay must be granted. It further provides that compensatory time in lieu of overtime shall not be permitted, except as voluntarily requested. 38 U.S.C. 4107(e)(5) does not address the formula for crediting compensatory time if requested in lieu of overtime pay. Accordingly, the matter involved in section 5D is not specifically provided for by 38 U.S.C. 4107(e)(5) so as to be excluded from the duty to bargain under section 7103(a)(14)(C) of the Statute nor is section 5D otherwise inconsistent with Title 38.

The Agency has not established that allowing accrual of compensatory time on a 2 for 1 basis is contrary to Title 38 or any other provision of law. Accordingly, section 5D is within the duty to bargain unless a compelling need exists for the VA regulation.

The VA policy, MP-5, Part II, Chapter 3, paragraph 4g(9)(a) provides that the "amount of compensatory time off will equal the amount of time spent in overtime work." The Agency makes the same arguments in support of its assertion that a compelling need exists for this regulation as it did for the regulations in section 5C. Accordingly, for the reasons set out in our resolution of that section, we find that a compelling need does not exist barring negotiation on section 5D. We find that section 5D is within the duty to bargain.

3. Section 6

Section 6A of Proposal 6 requires that those employees prohibited by law or regulation from receiving overtime pay will receive administrative leave for the time worked in excess of their normal tour of duty. Section 6B provides that Title 5 employees will receive 1 hour of administrative leave for each hour of compensatory time earned. The Agency contends with respect to Title 5 employees that section 6 is contrary to 5 U.S.C. 5543. The Agency contends that section 6 is contrary to law and its regulation because it provides administrative leave to Title 38 employees who are not eligible for overtime. Further, the Agency argues its regulations do not provide for administrative leave in lieu of compensatory time. The Union argues that "the broad discretion given to agencies in Subchapter S 11-5 of FPM Supplement 990-2, Book 630 is sufficient authority for the (Agency) to grant administrative leave to employees in the amount proposed. Union Reply Brief at 38.

a) Section 6A

Section 6A of Proposal 6 provides that employees who are prohibited by law or regulation from receiving overtime will receive administrative leave for those hours worked beyond their normal tour of duty. The Agency argues that section 6A is contrary to 38 U.S.C. 4107 and to the regulations promulgated by the Administrator of the VA because under those authorities, physicians, dentists, podiatrists and optometrists are considered to be on duty 24 hours a day, seven days a week and are not entitled to any overtime compensation or compensatory time off. As noted previously, section 4107 is silent regarding payment of overtime or compensatory time off to physicians, dentists, podiatrists, and optometrists. The Agency has not established that these employees are precluded from receiving compensatory time off or from receiving administrative leave in lieu of compensatory time. Moreover, the Agency's regulations are likewise silent regarding whether these DM&S employees may receive administrative leave in lieu of compensatory time off. Thus, we find that the matter involved in section 6A is not specifically provided for by 38 U.S.C. 4107 or the Agency's regulations so as to be excluded from the duty to bargain nor is it otherwise inconsistent with Title 38. Accordingly, section 6A is within the duty to bargain.

b) Section 6B

With regard to Title 5 employees, the Federal Personnel Manual provides authority to agencies in certain situations to grant brief periods of excused absence without charge to leave or loss of pay, commonly referred to as administrative leave. FPM Supplement 990-2, Book 630, Subchapter 11. Administrative leave only can be granted for brief periods of time and for limited purposes, not including personal business. See American Federation of Government Employees AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 15). It is not appropriate to grant administrative leave in lieu of compensatory time. See FDIC, Madison, American Federation of Government Employees, AFL - CIO, National Council of SSA  Field Operations Locals and Social Security Administration, 25 FLRA No. 50 (1987) (Proposal 3) petition for review filed sub nom. American Federation of Government Employees, AFL - CIO, National Council of SSA Field Operations Locals v. FLRA, No. 87155 (D.C. Cir. April 9, 1987): Social Security Administration and American Federation of Government Employees, AFL - CIO, 19 FLRA 887 (1985). Accordingly, we find that section 6B of Proposal 6 is contrary to law and regulation and is not within the duty to bargain.

IV. Order

Section 6B is dismissed. The Agency shall upon request, or as otherwise agreed to by the parties bargain on sections 5 and 6A. 4

Issued, Washington D.C., September 30, 1987

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

Separate Opinion of Chairman Calhoun on Proposal 6

Proposal 6 concerns the accrual, use, and payment for overtime, compensatory time, and administrative leave for unit employees. The first sentence of section 5, subsection C provides that compensatory time may be accumulated for 1 year. I agree with my colleagues that the Agency has discretion under applicable Government-wide and Agency regulations to implement this sentence. Accordingly, I concur in their finding that this sentence is negotiable. My colleagues also conclude that section 6, subsection B conflicts with applicable law and regulation. I agree with that conclusion as well.

The rest of Proposal 6 prescribes the rates at which overtime, compensatory time, and administrative leave will be accrued and provides that employees may be paid for unused compensatory time at overtime rates. These sentences are like Provisions 9 and 10 in American Federation of Government Employees, AFL - CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 26 FLRA No. 66 (1987), petition for review filed sub nom. Department of the Army, Fort Bragg Dependent Schools v. FLRA, No. --- (6th Cir. Sept. 22, 1987). In my separate opinion in that case, I stated that for the reasons given in my dissent in American Federation of Government Employees, AFL - CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986), I would find that proposals concerning the accrual and use of leave concern a money-related fringe benefit and, in the absence of a clear expression of congressional intent to the contrary, I would find them to be outside the duty to bargain. See also my opinion in Service Employees International Union, Local 556, AFL - CIO and Department of the Navy, Marine Corps Exchange 0911, Marine Corps Air Station, Kaneohe Bay, Hawaii, et al., 26 FLRA No. 47 (1987), petition for review filed sub nom. Department of the Navy, Marine Corps Exchange, Pearl Harbor v. FLRA, No. 87-7220 (9th Cir. May 21, 1987).

In this case, as in the others cited above, I find no indication that Congress intended these matters to be negotiable. Further, unlike Proposals 8 and 9 in National Union of Hospital and Health Care Employees, AFL - CIO, District 1199 and Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA No. 65 (1987), these portions of Proposal 6 do not incorporate applicable parts of the Agency's regulations. Accordingly, I would find all except the first sentence of Proposal 6 to be nonnegotiable.

Issued, Washington, D.C., September 30, 1987

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY 

APPENDIX

Proposal 4:

Article 19A - Advancements - Title 38 Employees

Section 1 - Scope This article shall apply to physicians, dentists, podiatrists, optometrists, nurses, physician assistants, expanded-function dental auxiliaries appointed under Title 38.

Section 2 - EEO All actions under this article will be job-related without discrimination and consistent with law, applicable selection guidelines and this agreement.

Section 3 - Procedures

A. To be eligible for promotion to the next higher grade an employee must:

(1) have a current proficiency rating of satisfactory or better; and

(2) have served the required time in grade.

B. No less than 90 days prior to the time the employee meets the time in grade requirements, the appropriate service chief shall inform the employee of the preliminary recommendation with respect to promotion.

C. No less than 60 days prior to the completion of the time in grade requirements the appropriate management official's recommendation shall be forwarded to the appropriate Professional Standards Board.

(1) If the management official forwards a negative recommendation to the PSB, the employee shall have 45 days to respond to such recommendation. No action shall be taken by the PSB until the employee's response is received.

(2) The employee and the union representative shall have access to all of the material the PSB is using in its deliberations.

Section 4 - Purpose

The purpose of this Article is to assure that the best qualified and most capable professional candidates are recognized and given every opportunity to fully develop their potential contribution to benefit the overall mission of the VA. 

Section 5 - Professional Standards Board

A. To assure that qualified professional candidates for advancement will receive the most objective, impartial consideration possible, all Board Members must be rotated annually, with new appointees who are jointly selected by the Union and Management. An equal number of peers/management Board members will be selected who, after having served for one year, will not normally be eligible for reappointment for two years. A union observer will be present for all PSB proceedings.

B. The candidates' total record will be sanitized of identification and presented to the Board, in order to preserve anonymity and insure objectivity. The record will be considered and examined by the Board members which will include any documents, data or addenda to Proficiency Reports, which will show evidence of accomplishment.

C. If there is any indication that a local Professional Standards Board cannot be properly constituted at the local VA facility, the candidate's total record will be forwarded to an alternate Professional Standards Board at another VA facility of his/her choice.

D. Candidates will be informed in writing of the Board's decision within 7 calendar days. The employee will be given written the specific rationale for the decision, and copies of Appeal Rights and Procedures.

Section 6 - The criteria for advancements will be fairly and equitably applied.

Proposal 8

Article 33A: Proficiency Rating System - Title 38 Employees

Section 1 - the Proficiency Rating System will provide for an objective, systematic, accurate and measurable job related evaluation of professional performance which impacts on improved patient care and benefits the VA in its mission. Abstract, unmeasurable, subjective types of elements and concepts will not be used in rating employees. The system will be based on facts rather than opinions.

Section 2 - Elements upon which employees are rated may vary depending on the professional assignment (position). Employees in like assignments shall be rated on like elements. Employees shall be informed in writing of the elements used in their rating prior to the beginning of each rating period. Requirements for each level of achievement on each element shall be fully explained to each employee.

Section 3 - Procedure for supplying the Proficiency Rating.

A. Employees will be rated annually, on the anniversary date of employment. Those employees who give notice of intent to transfer to another VA Facility, or resign from their present positions must be given a current Proficiency Rating within 5 days of giving their notice of intent to leave.

B. At the beginning of each rating period, the rater will clearly communicate and explain to the employees all of the elements to be used in rating the employee, and what is expected of the employee.

C. The rater will keep the employee informed about the level of his/her performance, both formally and informally, through-out the rating period.

(1) The supervisor will informally apprise the employee of his/her performance in the course of day to day activities, commending for good work and counseling where improvement is needed.

(2) At least one formal rating conference shall take place 180 days prior to the due date of the annual issuance of the Proficiency Rating. The employee shall be counselled on the strong and weak points in his/her performance, and will be given the opportunity to respond and submit self-evaluation information and materials which have not been mentioned or recognized. A written summary of the meeting shall be made, and a copy shall be furnished to the employee.

D. Professional employees shall have the right to self-evaluation if they so desire.

E. When the annual rating is issued, a formal meeting will be held between the employee and the rating official. If the employee believes that the Proficiency Report does not comprehensively or accurately reflect all of his/her accomplishments, (e.g. personal, professional contributions which have improved patient care and the VA mission), he/she will be given a reasonable amount of time to respond by attaching an addendum to the Proficiency Report, including any documents or data to package will be considered by the Professional Standards Board. F. If, for any reason, an employee feels that he/she cannot be fairly considered by the local facility Professional Standards Board, he/she will be allowed to be considered by an alternative Professional Standards Board of her/his choice at another VA Facility. The employee shall be allowed to see all of the documents, including the cover letter, which is being sent to the alternate Professional Standards Board and copies of all such material will be given to the employee.

Section 4 - Unsatisfactory Performance/Questions of Professional Competency.

A. An employee who receives an unsatisfactory rating must have received a formal counseling 90 days prior to issuance of the rating, and he/she will be informed of the right to union representation.

B. An employee who receives an unsatisfactory rating is entitled to a 90 day period prior to any formal action being proposed in which to improve his/her performance. A written 90 day warning notice will be given to the employee and will include a Performance Improvement Plan. This Plan will include specific provisions, for such things as bona filed training, counseling coaching and setting of short-term specific job assignments with measurable realistic goals. Mandatory scheduled supervisory conference will be held to review objectives and performance at 30 days intervals. If at any point, the rater believes that the performance has reached satisfactory levels, a new revised Proficiency Report will be immediately written and a copy given to the employee.

C. If there has not been objectively measured improvement at the end of the 90 day period, the rater will provide written documented evidence of the employee's unmet goals and the employee will be given the option to request a reassignment or be given an additional 60 days to meet the goals. If after the next 30 days objectively measured improvement is still not evident, the employee will be given a 30 day advance written notice of proposed action. When this period has ended, the employee shall reply and be afforded the opportunity to appear before an appropriate Professional Standards Board. The employee will have the option of being presented at either the local PSB or an alternate PSB at another VA facility.

D. Should the PSB sustain the charges based on objectively measured criteria of unsatisfactory performance, the Board shall consider and recommend action, which may include but not be limited to reprimand, re-training, suspension, re-assignment to positions utilizing different aptitudes and abilities, reduction in grade and discharged. 

E. Employees will have the right of Union representation at all meetings and hearings.

F. Any PSB action will be stayed pending final resolution of appeal/negotiated grievance decisions. 

 

FOOTNOTES

Footnote 1 The Agency's motion for a hearing pursuant under section 2424.9 of the Authority's Rules and Regulations is denied because there is sufficient evidence in the record upon which to base a reasoned decision. National Federation of Federal Employees and General Services Administration, 24 FLRA No. 45 (1986).

Footnote 2 In finding these matters to be within the duty to bargain, we make no judgment as to their respective merits.

Footnote 3 The VA's regulation provides in pertinent part that nurses, physician assistants, and expanded function dental assistants who are unable to use their compensatory time off within the prescribed time limit lose their right to compensatory time and overtime pay for the duty. and conditions of employment and the provisions of the Statute permitting collective bargaining concerning conditions of employment unrelated to disciplinary and adverse actions. VAMC, Ft. Lyons, slip op. at 4. We specifically rejected the VA's contention that its personnel regulations were legislative regulations having the force of law and found that they were no different from regulations promulgated by other employing Federal agencies. VAMC, Ft. Lyons, slip op. at 8. Accordingly, for the reasons set forth in VAMC. Ft. Lyons, we find that the VA's regulations do not bar negotiations concerning compensatory time off by nurses, physician assistants, and expanded function dental assistants.

Footnote 4 In finding these matters to be within the duty to bargain, we make no judgment as to their merits.

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