30:0706(89)NG - New York State Nurses Association and VA Bronx Medical Center -- 1987 FLRAdec NG

30 FLRA NO. 89
30 FLRA 706

31 DEC 1987
  

NEW YORK STATE NURSES ASSOCIATION

     Union

     and

VETERANS ADMINISTRATION
BRONX MEDICAL CENTER

     Agency

Case No. 0-NG-1187

DECISION AND ORDER ON NEGOTIABILITY ISSUES 1

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 19 proposals. 2 For the reasons set
forth below, we find that Proposals 3, 15, and 19 are negotiable;
Proposals 2, 4, and 5 are nonnegotiable; and Proposals 2, 6, 7,
8, 9, 10, 11, 12, 13, 14, 16, 17, and 18 are in part negotiable
and in part nonnegotiable.

II. Preliminary Matters

     A. The Veterans Administration (VA or Agency) raises two
common issues with respect to the negotiability of the proposals
in this case, namely that: (1) Title 38 of the United States Code
provides the Administrator of the VA with statutory authority to
regulate conditions of employment of professional medical
employees in the Department of Medicine and Surgery (DM&S)
and therefore the Agency has no duty to bargain under the
Statute; and (2) the proposals are barred from negotiations by
its "legislative regulations" which have the force and effect of
law. For the following reasons, we reject the Agency's
contentions.

     In Colorado Nurses Association and Veterans Administration
Medical Center, Ft. Lyons, Colorado, 25 FLRA  803 (1987) (VA
Medical Center, Ft. Lyons), petitions for review filed sub nom.
Colorado Nurses Association v. FLRA,  Nos. 87-1422 and 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 VA Medical Center,
Ft. Lyons.

     Based on the analysis and the cases cited in Ft. Lyons, 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.

     B. Another preliminary matter concerns the technical defects
in many of the Union's proposals. We have held that management's
right to assign work includes the right to determine the
individuals who will perform particular tasks. This right
includes assignment to bargaining unit and nonbargaining unit
employees. Many of the Union's proposals require the assignment
of work to specific employees or portions of the Agency's
organization and are nonnegotiable on that basis. For example,
although on its face the fifth sentence in Proposal 1 appears
very reasonable, we are required to find it to be nonnegotiable,
consistent with a long line of Authority precedent, because it
requires unit employees to schedule official time "with their
immediate supervisor." This sentence would be negotiable if the
Union substituted "management" or "the Agency" for the reference
to the immediate supervisor. Similar requirements appear in
Proposals 8 through 11, 13, and 18. In most of the proposals
these defects would not permit management to exercise its
congressionally accorded discretion to assign the tasks 
involved to whomever it elects. These defects are easily cured.
In this decision, we have noted those proposals which are
nonnegotiable solely on the basis that they assign work to
particular individuals or organizational segments. We urge the
parties to work together to resolve these technical defects and
pursue agreement on the substantive issues involved in the
proposals.

     We now turn to the specific proposals involved in this case.
For the reader's convenience, we have numbered the sentences in
various proposals.

III. Proposal 1

     Section 3.06. (1) In order to fulfill its role in
representing its employees, the Association Chairperson and Co -
Chairperson will be assigned to a day shift Monday through
Friday. (2) Whenever the Chairperson and Co - Chairperson are
absent from work for an extended period of time, another
Association representative will be scheduled to work an
administrative work week. (3) The Association will be granted ten
(10) hours of official time per week to staff the association
office, conduct voluntary exit interviews, do on-site visits and
conduct other studies of general issues affecting employees. (4)
The time granted under this section will be used by the
Chairperson, Co - Chairperson or designee. (5) The exact time of
the day when the official time is scheduled will be arranged by
the Chairperson or designee with their immediate supervisor. (6)
Patient care needs will be considered when arranging the exact
schedule of official time. (7) If both the Chairperson and the Co
- Chairperson are from the same unit, it will be necessary to
reassign one of them to another unit.

     A. Positions of the Parties

     The Agency, argues that this proposal violates management's
right to assign work under section 7106(a) by requiring that
certain Union representatives be assigned only to the day shift
Monday through Friday. In addition, the Agency argues that
Proposal 1 is inconsistent with an Agency regulation for which
there is a compelling need. The Union makes no specific arguments
regarding this proposal. 

     B. Analysis and Conclusion

     For reasons set forth in our separate opinions, we conclude
that the first, second, and seventh sentences of Proposal 1 are
nonnegotiable.

     The third, fourth, and sixth sentences are within the
Agency's duty to bargain because they would provide the Union
representatives with official time for representational
activities. Section 7131(d) of the Statute allows the parties to
negotiate for official time. American Federation of Government
Employees, AFL - CIO, Council of Locals No. 214 v. FLRA,  798
F.2d 1525, 1530 (D.C. Cir. 1986).

     In connection with the use of official time, we find it is
unnecessary to address the Agency's compelling need argument. The
Agency argues only that its regulations demand that nurses be
assigned according to patient care needs. Since the sixth
sentence specifically states that patient care needs will be
considered when scheduling official time, the Agency's argument
has no basis.

     We find that the fifth sentence is nonnegotiable. This
sentence would require that Union officials arrange for the use
of official time with their immediate supervisors. Therefore, the
fifth sentence would require immediate supervisors to perform a
specified task. We have held consistently that the right to
determine who will perform specific tasks is part of management's
right to assign work under section 7106(a)(2)(B). See, for
example, National Union of Hospital and Health Care Employees,
AFL - CIO, District 1199 and Veterans Administration Medical
Center, Dayton, Ohio, 28 FLRA  435, 443-45 (1987) (Proposal 6,
Section 4) (VA Medical Center, Dayton), petition for review filed
sub nom. Veterans Administration Medical Center, Dayton, Ohio v.
FLRA,  No. 87-1521 (D.C. Cir. Sept. 28, 1987) (requiring chief of
nursing to serve on labor-management committee); Illinois Nurses'
Association and Veterans Administration Medical Center, Hines,
Illinois, 28 FLRA  212, 214-18 and 219-20 (1987) (VA Medical
Center, Hines), petition for review filed sub nom. Veterans
Administration Medical Center, Hines, Illinois v. FLRA,  No.
87-1514 (D.C. Cir. Sept. 23, 1987), (Proposals 1, 2, and 7)
(Proposal 1 requiring immediate supervisors to conduct
orientation, Proposal 2 requiring chief nurse to discuss negative
Nurse Professional Standards Board (NPSB) recommendation with
affected nurse, and Proposal 7 requiring immediate supervisor to
take certain actions with regard to nurses' reassignments);
National Federation of Federal Employees, Local 1798 and Veterans
Administration Medical Center, Martinsburg, West Virginia, 27
FLRA  239, 246-50 (1987) (VA Medical Center
Martinsburg), petition for review filed sub nom. Veterans
Administration Medical Martinsburg West Virginia v. FLRA,  No.
87-1342 (D.C. Cir. July 24, 1987) (Proposal 3, Sections 1(E) and
(F)) (requiring immediate supervisor to discuss a promotion
action with employee and provide employee with written
justification for using negative performance standard). Thus, we
find that the fifth sentence is nonnegotiable.

     We add, however, that if this sentence were redrafted to
preserve the Agency's right to assign work, it would be within
the duty to bargain. See 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 Systems Command - Redstone
Arsenal Commissary, 27 FLRA  69, 81 (1987) (U.S. Army Missile
Command), petition for review filed sub nom. U.S. Army Missile
Command, The U.S. Army Test, Measurement, and Diagnostic
Equipment Support Group, The U.S. Army Information Systems
Command - Redstone Arsenal Commissary v. FLRA,  No. 87-7445 (11th
Cir. July 17, 1987).

IV. Proposals 2, 4, and 5

     Sections 4.03, 4.05, and 4.06. The text of these proposals
concerning training is in the Appendix to this decision.

     A. Positions of the Parties

     The Agency makes several arguments with regard to sections
4.03, 4.05, and 4.06. First, the Agency argues that these
sections violate management's right to assign work and direct
employees under section 7106(a)(2)(B). The Agency states that
sections 4.03, 4.05, and 4.06 prevent management from assigning
other duties in lieu of training or education to nurses who
request training. Also, the Agency argues that section 4.05 would
require that particular employees, namely immediate supervisors,
make training assignments in violation of management's right to
direct employees. Second, the Agency argues that these sections
are barred from negotiations by Agency training regulations for
which there is a compelling need under section 7117(a)(2) of the
Statute. The Union makes no specific arguments regarding sections
4.03, 4.05, and 4.06.  

     B. Analysis and Conclusion

     1. The Requirement to Provide Training is Nonnegotiable

     Sections 4.03, 4.05, and 4.06 concern training and
orientation for nurses. Specifically, section 4.03 would require
the Agency to authorize nurses who request training to attend
various types of educational programs for a minimum of 2 days per
year. Section 4.05 would require management to assign nurses to
attend mandatory training sessions. Section 4.06 would require
that the Agency provide newly appointed registered nurses with an
orientation program.

     The Authority has held that proposals which require that an
agency provide training to nurses during duty hours are outside
the duty to bargain because the assignment of training
constitutes an assignment of work. For example, in Illinois
Nurses Association and Veterans Administration Medical Center,
North Chicago, Illinois, 27 FLRA  714, 728-30 (1987) (Proposal 5)
(VA Medical Center, North Chicago) petition for review filed sub
nom. Veterans Administration Medical Center, North Chicago,
Illinois v. FLRA,  No. 87-1405 (D.C. Cir. Aug. 17, 1987), we
found that a proposal requiring an agency to make inservice
training available to nurses was outside the duty to bargain as
it directly interfered with management's right to assign work.
See also VA Medical Center, Hines, 28 FLRA  212, 240-41 (Proposal
9).

     Similarly, proposals which require management to provide
orientation programs for employees are nonnegotiable. See, for
example, VA Medical Center, Dayton, 28 FLRA  435, 461-62 and
470-72. Therefore, we conclude that sections 4.03, 4.05, and 4.06
are outside the duty to bargain.

     2. The Requirement that the Supervisor make Training
Assignments is Nonnegotiable

     In addition to requiring the Agency to assign employees for
training, Section 4.05 would require that immediate supervisors
be responsible for making these assignments. However, as we
discussed in Proposal 1, we have held that management's right to
assign work includes the right to determine who shall perform
particular tasks. Thus, we find that section 4.05 is outside the
Agency's duty to bargain based on the reasoning and cases
discussed in Proposal 1.

     In agreement with the Agency, we conclude that sections
4.03, 4.05, and 4.06 violate management's rights under section
7106(a)(2)(B) and are nonnegotiable. Since we have  
determined that Proposals 2, 4, and 5 are outside the duty to
bargain, it is unnecessary to reach the Agency's argument that
these proposals conflict with its training regulations for which
there is a compelling need.

V. Proposal 3

     Section 4.04. In addition to requesting authorized absence
to attend an educational offering, employees may also request
that the employer assist in defraying the cost involved in
attending the course. The employer agrees to consider each
request for financial assistance and to notify the employee of
any financial support which is granted. Within budgetary
constraints, such assistance will not be unreasonably denied. The
Association, upon written request, will be granted access to the
records concerning financial assistance. (Only the underscored
sentences are in dispute.)

     A. Positions of the Parties

     The Agency argues that the disputed portion of section 4.04
does not concern conditions of employment and therefore is
nonnegotiable. According to the Agency, it would require that the
Agency reimburse employees for training for "purely personal
development" which does not affect the employment relationship.
Further, the Agency contends that its training regulations, which
include funding provisions, meet the Authority's requirements to
establish compelling need because they include "patient-care
oriented criteria." The Union does not make any specific
arguments concerning section 4.04.

     B. Analysis and Conclusion

     1. Proposal Concerns a Condition of Employment

     The Agency asserts that section 4.04 would require that it
reimburse nurses for training for "purely personal development"
and, thus, that this section does not concern a condition of
employment. The determination of whether a proposal pertains to a
condition of employment involves the application of two factors
set forth by the Authority in Antilles Consolidated Education
Association and Antilles Consolidated School System, 22 FLRA 
235, 236-37 (1986).  

     These factors are:

     (1) Whether the matter proposed to be bargained pertains to
bargaining unit employees; and

     (2) The nature and extent of the effect of the matter
proposed to be bargained on working conditions of those
employees.

     It is undisputed that section 4.04 is principally focused on
bargaining unit employees. Thus, the first factor in Antilles is
satisfied.

     In analyzing the second factor, we turn first to the Union's
statement of meaning concerning its training proposals, including
section 4.04. The Union states that the purpose of these sections
is "to improve nursing care at the (Bronx Medical) Center."
Petition for Review at 26. Furthermore, section 4.03 refers to
the relevancy of education programs to patient care needs and the
identification of service deficiencies as appropriate criteria
for approval of training requests. While section 4.04 does not
specifically define the education program for which a nurse may
seek reimbursement, we see no basis on which to conclude that
under this section financial assistance would be sought for
courses by nurses solely for personal development. Rather, we
find that the educational offerings referred to in section 4.04
concern lectures, courses, and training programs which relate to
patient care needs and service deficiencies. Thus, contrary to
the Agency's assertion, the financial assistance sought under
section 4.04 concerns the employment relationship of bargaining
unit employees.

     2. Compelling Need for Agency's Training Regulations is Not
Established

     The Agency also argues that section 4.04 conflicts with its
training regulations for which there is a compelling need.
According to the Agency, its training regulations are essential
to the Agency's patient care mission. In American Federation of
Government Employees, AFL - CIO, Local 3804 and Federal Deposit
Insurance Corporation, Madison Region, 21 FLRA  870, 880 (1986),
the Authority stated that in order to show a compelling need for
an agency regulation, an agency must: (1) identify a specific
agency-wide regulation, (2) show that there is a conflict between
its regulation and the proposal, and (3) demonstrate that its
regulation is supported by a compelling need with reference to
the standards in section 2424.11 of our Regulations. Furthermore,
 generalized reasoning merely stating conclusions is not
enough to support a finding of compelling need.

     The Agency submitted its training regulations, VA Manual,
MP-5, Part 1, Chapter 410, which include a section on "Funding of
Training." However, the Agency does not show there is a conflict,
and one is not apparent, between these regulations and section
4.04. The regulations concern, among other matters, the factors
management will consider in responding to requests for financial
assistance from employees. Furthermore, the Agency has not
pointed to any section of the regulations, nor is any apparent,
which conflicts with the proposal's requirement that the Agency
notify an employee of any financial support it grants to the
employee.

     Moreover, section 4.04 appears to be consistent with the
funding aspect of the regulations. It specifically limits
reimbursements to those feasible "within budgetary constraints,"
which is an aspect of the Agency's training regulations. We also
note that section 4.04 merely states that a nurse's request for
financial assistance will be considered. There is nothing in the
proposal to indicate that requests for financial assistance which
do not fully comply, with the Agency's regulations must be
approved. Hence, in our view the Agency has not established that
there is a conflict between its training regulations and section
4.04.

     In conclusion, we reject the Agency's arguments that section
4.04 does not concern the employment relationship and that it
conflicts with Agency training regulations for which there is a
compelling need. Furthermore, we note that the proposal does not
require that management assign employees to training in violation
of its right to assign work. Thus, we find that section 4.04 is
within the duty to bargain. Overseas Education Association, Inc.
and Department of Defense Dependents Schools, 29 FLRA  734,
810-11 (1987) (Proposal 57), petition for review filed sub nom.
Overseas Education Association v. FLRA,  No. 87-1576 (D.C. Cir.
Oct. 14, 1987).

VI. Proposal 6

     Section 7.01. Appointment to Position. The text of this
proposal is in the Appendix to this decision.

     A. Positions of the Parties

     The Agency asserts that section 7.01 is nonnegotiable since
appointments are specifically provided for in Title 38. 


     Furthermore, according to the Agency, placing conditions on
appointments interferes with management's exercise of its section
7106 rights. Specifically, the Agency argues that the proposal
violates management's right to assign work under section
7106(a)(2)(B) by requiring that the Personnel Officer sign
appointment letters. Additionally, the Agency argues that section
7.01 conflicts with Agency regulations for which there is a
compelling need. The Union makes no specific arguments regarding
section 7.01.

     B. Analysis and Conclusion

     We conclude that unless a specific sentence in section 7.01
is otherwise nonnegotiable, the Agency must bargain on this
section. 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, 759-60 (1980) (IRS,
New Orleans District). In this instance, appointment procedures
are not so specifically provided for in Title 38 as to exclude
them from the definition of conditions of employment under
section 7103(a)(14)(C). American Federation of Government
Employees, AFL - CIO, National Council of VA Locals and Veterans
Administration, 29 FLRA  515, 524-26 (1987) (Proposal 4),
(Veterans Administration), petition for review filed sub nom.
Veterans Administration v. FLRA,  No. 87-1727 (D.C. Cir. Nov. 27,
1987).

     1. The Requirement that Employees Be Notified of Management
Action is Negotiable

     The first paragraph of section 7.01 would require the Agency
to make appointments and furnish the terms of appointments to new
employees in writing. Specifically, management would be required
to inform a new hire in writing whether the appointment is
temporary or permanent, what the starting salary is, and whether
the employee is eligible for benefits. In addition, the last
sentence in the paragraph requires that a nurse receive a copy of
any applicable NPSB report.

     The Agency asserts that these requirements place
restrictions on its right to make appointments. Contrary to the
Agency's contention, we find that the first paragraph of section
7.01 merely requires that new employees be given written
notification of management's decisions concerning appointment and
the terms of appointment. It does not in any  manner
restrict the Agency in the exercise of its right to hire because
management has made its decisions concerning appointment before
the first paragraph of section 7.01 takes effect.

     We have held previously that proposals requiring that
employees receive notice of management action are within the duty
to bargain. For example, in VA Medical Center. Dayton, 28 FLRA 
435, 447 (Proposal 7), we found negotiable a proposal that
required that nurses be notified of board actions concerning
promotion. See also VA Medical Center, Hines, 28 FLRA  212, 219
(Proposal 2). Thus, we find the requirements that the Agency
furnish an employee written notice of appointment and the terms
of appointment and a copy of any board report relating to the
employee to be negotiable.

     2. The Requirement that the Personnel Officer or His
Designee Sign Appointment Letters is Negotiable

     The first paragraph, second sentence, in section 7.01 would
require that the Personnel Officer, or his designee, sign an
appointment letter sent to a new employee. Contrary to the
Agency's claim, we find that this sentence does not violate
management's right to assign work. The language of this sentence
specifically allows management to assign the task of signing
appointment letters to any Agency official. See American
Federation of Government Employees, AFL - CIO, Local 1738 and
Veterans Administration Medical Center, Salisbury, North
Carolina, 27 FLRA  52, 58 (1987) (Proposal 8) (VA Medical Center,
Salisbury) (proposal providing that employees may request leave
from immediate supervisors held not to assign particular duties
to supervisor).

     We also conclude that the fifth sentence in section 7.01 is
negotiable. That sentence refers to the Medical Center Director
signing a report from the NPSB. In our view, this sentence does
not assign a task to an Agency official. Rather, it merely
establishes the point in the hiring process when it is
appropriate for a nurse to receive a copy of an NPSB report
concerning the nurse.

     Thus, the second and the fifth sentences in section 7.01 are
within the duty to bargain.

     3. The Appointment Periods for Graduate Nurse Technicians is
Negotiable

     The second paragraph, first sentence, in section 7.01 would
require that graduate nurse technicians be appointed on 
a temporary basis for no more than one year. The conditions of
appointment for graduate nurse technicians are set forth in 38
U.S.C. 4114(a)(3)(A) (Supp. III 1985). That statute states that
"(t)emporary full-time appointments of persons who have
successfully completed a full course of nursing in a recognized
school of nursing, approved by the Administrator, and are pending
registration as a graduate nurse in a State, shall not exceed two
years." Since the length of the appointment period for graduate
nurse technicians set forth in the second paragraph, first
sentence, in section 7.0l is within the statutory limit, it is
negotiable.

     4. The Timing of Consideration for Conversion to Permanent
Appointment is Negotiable

     The second paragraph, second sentence, would require that a
Graduate Nurse Technician "will be considered for conversion
within a reasonable period of time" after the nurse obtains a
full unrestricted license. Initially, we note that this proposal
requires only that management consider fully licensed graduate
nurse technicians for permanent full-time appointments under 38
U.S.C. 4104(1) and 4106(a). The proposal does not prescribe that
management actually appoint those individuals.

     This proposal, therefore, is similar to the disputed
sentences in section 1 of Proposal 12 in VA Medical Center,
Dayton, 28 FLRA  435, 454-55, which committed management to
consider internal candidates when filling vacancies and making
assignments but did not preclude management from advertising
outside the agency or selecting an external candidate. In that
case, we found that the disputed sentences provided a negotiable
procedure under section 7106(b)(2) through which management would
solicit and consider candidates for selection. Similarly, we
conclude that this proposal does not interfere with management's
selection process. Rather, it is a negotiable procedure under
section 7016(b)(2), requiring only that management consider fully
licensed graduate nurse technicians for positions within a
reasonable period of time. Therefore, we conclude that the second
paragraph, second sentence, does not interfere with management's
rights under section 7106(a) and is within the duty to bargain.

     5. The Record is Insufficient for a Negotiability
Determination Concerning Nurses' Eligibility for Fringe
Benefits

     The second paragraph, third sentence, states that graduate
nurse technicians are not eligible for health benefits,
life insurance, or civil service retirement. The third paragraph,
second part of the first sentence, states that registered nurses
"will be eligible for health benefits and life insurance, and
will be covered under the Retirement System for which they are
eligible."For the reasons set forth in our separate opinions, the
Union's petition for review of these portions of Proposal 6 is
dismissed.

     6. The Appointment Period for Registered Nurses Is
Nonnegotiable

     The third paragraph of section 7.01, first sentence, first
part, would require that a registered nurse be appointed on a
"temporary basis for a year and a day pending action by, the
Nurse Professional Standards Board." Temporary full-time
appointments are limited to 1 year by statute. 38 U.S.C.
4114(a)(3)(A) (Supp. III 1985). Thus, the appointment period for
nurses in section 7.01 is inconsistent with legal requirements
and we find that the first part of the first sentence in the
third paragraph is outside the duty, to bargain under section
7117(a)(1) of the Statute.

     7. The Requirement that NPSB Consider Nurses for Permanent
Appointment is Nonnegotiable

     The third paragraph, second sentence, would require that the
Nurse Professional Standards Board (NPSB) consider nurses for
permanent appointment and determine the appropriate grade level
upon receipt of certain documents. In our view, this requirement
constitutes an assignment of work to a management body and,
therefore, violates management's right to assign work under
section 7106(a)(2)(B) of the Statute.

     In a prior case, the Authority found that a professional
standards board, such as the NPSB, is established by the VA to
review, recommend, and act with respect to matters involving the
exercise of management rights under section 7106 of the Statute.
National Federation of Federal Employees, Local 1431 and Veterans
Administration Medical Center, East Orange, New Jersey, 9 FLRA 
998, 1001 (1982) (VA Medical Center, East Orange).

     As we discussed in the analysis and conclusion of Proposal
1, we have held consistently that it is management's right under
section 7106(a)(2)(B) to determine the individual in management
who will perform specific tasks. Similarly, management has the
right to determine which group in management will be assigned
responsibilities. See Patent Office Professional Association and
Patent and Trademark Office, Department of Commerce, 29 FLRA  No.
116, slip op. at 26-28 (1987) (assigning waiver process
to solicitor's office held nonnegotiable); American Federation of
State, County, and Municipal Employees, AFL - CIO, Local 2910 and
Library of Congress, 11 FLRA  632 (1983) (Proposals 1 and 2)
(proposals specifically or implicitly assigning certain
responsibilities to organizational segments and/or agency
employees held nonnegotiable). Since the second sentence in the
third paragraph would require that the Agency assign the NPSB to
consider nurses for permanent appointment and determine the
appropriate grade level, we find that it is nonnegotiable. We
note, however, that if the sentence were revised to omit the
reference to the NPSB, it would be within the duty to bargain.
U.S. Army Missile Command, 27 FLRA  69, 81.

     8. Compelling Need for Agency's Regulations Is Not
Established

     The Agency argues that section 7.01 conflicts with an
Agency, regulation in the VA Manual, MP-5, Part II, Chapter 2 and
supplementing regulations by prescribing conditions for
appointments which vary and modify its regulations. According to
the Authority's requirements for showing a compelling need for an
agency regulation, which are fully stated in section 2 of the
analysis and conclusion on Proposal 3, an agency must show a
conflict between its regulation and the proposal. The Agency has
not shown that there is a conflict between section 7.01 and its
regulations. Thus, we find that the Agency has not established a
compelling need for the cited regulation.

     To summarize, we find that the first paragraph of section
7.01 is negotiable. In the second paragraph, the first and second
sentences are negotiable and the third sentence is dismissed. In
the third paragraph, the first part of the first sentence is
nonnegotiable, as it conflicts with statute, and the second part
is dismissed. The second sentence in the third paragraph is
nonnegotiable.

VII. Proposal 7

     Section 7.02. Classification: Employees may be classified as
full-time or part-time. (1) Full-time employees will be scheduled
to work 40 hours of duty time per week. (2) Part-time employees
will be scheduled to work no more than 35 hours of duty hours per
week. (3) Part-time employees may not average more than 35 hours
of duty time per week over a period of a year. (Only the
underscored sentences are in dispute.) 

     A. Positions of the Parties

     The Agency argues that the proposal does not concern a
bargainable condition of employment. The Agency notes that the
appointments of full-time and part-time nurses are specifically
provided for in Title 38. In addition, the Agency claims that the
proposal violates management's rights to hire and assign work
under section 7106(a) of the Statute. Specifically, the Agency
asserts that the 35-hour limitation on part-time appointments
interferes with management's right to assign work. The Agency
also argues that the 35-hour maximum limitation on part-time
appointments and the 40-hour limitation on full-time appointments
interfere with management's right to hire. The Union asserts that
this proposal merely describes the classification of registered
professional nurses at the Bronx Medical Center as full-time or
part-time employees.

     B. Analysis and Conclusion

     To the extent that the first disputed sentence applies to
"Baylor Plan" nurses, it is inconsistent with statute. Nurses on
the Baylor Plan are those who work two regularly scheduled
12-hour tours of duty within the period commencing at midnight
Friday and ending at midnight the following Sunday. Baylor Plan
nurses are to be considered full-time nurses. 38 U.S.C. 41O7(h).
Under this proposal, however, full-time nurses would be scheduled
for a 40-hour workweek and those nurses working under the Baylor
Plan would be considered part-time employees. Therefore, the
first disputed sentence in section 7.02 for nurses working under
the Baylor Plan conflicts with Title 38 and is nonnegotiable
under section 7117(a)(1) of the Statute.

     In addition, the Agency claims the requirement to schedule
employees for 40 hours in the first disputed sentence of section
7.02 interferes with its right to assign work. Initially, we note
that 38 U.S.C. 4108(a) gives the VA Administrator the authority
to determine nurses' hours of employment. In addition, Title 38
states that 40 hours is an administrative, or basic, workweek.
See 38 U.S.C. 4107(e)(5) and (h)(1) (1982). The Agency has
provided no support for its claim that scheduling an employee for
a 40-hour workweek interferes with its right to assign work.
Thus, regarding full-time employees who are not under the Baylor
Plan, the first disputed sentence restates applicable law without
specifically limiting the number of hours that a full-time
employee may be scheduled to work. Accordingly, the Agency has
not sustained its claim that the proposal restricts its
right to assign work to employees beyond 40 hours per week.

     We also conclude that the first disputed sentence does not
condition management's right to hire. Since we do not agree with
the Agency that the first disputed sentence limits the hours
management may schedule a full-time employee to work, we find
that it does not require that full-time appointments be limited
to a 40-hour workweek.

     Finally, as the first disputed sentence simply restates
Federal law, we find that it is within the duty to bargain except
for nurses working under the Baylor Plan. See Joint Council of
Unions, GPO and United States Government Printing Office 25 FLRA 
1033, 1034 (1987) (proposal providing changes in work assignments
are grievable held consistent with the Statute and negotiable);
International Federation of Professional and Technical Engineers,
Local 25 and Department of the Navy, Mare Island Naval Shipyard,
13 FLRA  433, 434-35 (1983) (proposal requiring use of
performance elements and standards in evaluations held consistent
with law and negotiable).

     The second and third disputed sentences expressly place a
limit on management to assign no more than 35 hours of work to
part-time employees. The Authority has found proposals to be
nonnegotiable which place a limitation on management's right to
assign work beyond a specified period of time. See American
Federation of Government Employees, AFL - CIO, Local 3186 and
Department of Health and Human Services, Office of Social
Security Field Operations, Philadelphia Region, 23 FLRA  230
(1986) (Proposal 1) (mandating reduced workload for less than
full-time employees). See also American Federation of Government
Employees, AFL - CIO, National Border Patrol Council and
Department of Justice, Immigration and Naturalization Service, 16
FLRA  251 (1984) (Proposal 1); American Federation of Government
Employees, AFL - CIO, Local 3632 and Environmental Protection
Agency, 11 FLRA  637 (1983). Thus, since management would be
prevented from assigning work beyond 35 hours per week to
part-time employees, the second and third disputed sentences in
section 7.02 violate management's rights to assign work under
section 7106(a)(2)(B) of the Statute.

     The first disputed sentence is negotiable except to the
extent that it concerns nurses working under the Baylor Plan. The
second and third disputed sentences in Proposal 7 expressly limit
the number of hours that can be assigned to employees, they
infringe on management's right to assign work under
section 7106(a)(2)(B) of the Statute and are outside the duty to
bargain.

VIII. Proposal 8

     Section 7.03. Probationary Period: (1) All newly appointed
full-time registered nurses who are appointed under Title 38,
United States Code 4104(l) must satisfactorily complete a two
year probationary period as required by Title 38, United States
Code 4106(b). (2) The immediate supervisor will meet with a
probationary employee every, four (4) months during the first
year of the probationary period to discuss the employee's
performance and expectations. (3) The time and date of issues are
raised during the discussion which indicate that the supervisor
should monitor the employee's progress, the supervisor will make
a written summary of the discussion. (sic) (4) The employee will
be given a copy. (5) During the second year of the probationary
period, the supervisor will periodically schedule discussions
with the employee if the employee's performance warrants
continued close monitoring.

     A. Positions of the Parties

     Initially, the Agency argues that since probationary periods
are set forth in Title 38, section 7.03 is outside the duty to
bargain. The Agency contends that the first sentence of section
7.03 is nonnegotiable because it includes full-time temporary
nurses for whom there is no probationary period under statute.
The remainder of this section, the Agency argues, interferes with
its right to assign work because it would require the immediate
supervisor to perform particular tasks. In addition, the Agency
argues that section 7.03 conflicts with Agency regulations
concerning the probationary period and that a compelling need
exists for those regulations. Finally, the Agency argues that if
section 7.03 were in the collective bargaining agreement, it
would permit a grievance concerning a probationer's separation
and, thus, interfere with management's right to fire. The Union
makes no specific arguments concerning section 7.03.

     B. Analysis and Conclusion

     The Agency argues that because probationary periods are
provided for in Title 38, section 7.03 does not concern
conditions of employment. We rejected this argument in the
analysis and conclusion on Proposal 6 concerning appointments which also are provided for in Title 38. We likewise
reject it here. Probationary procedures are not provided for so
specifically in Title 38 as to be excluded from the definition of
conditions of employment in section 7103(a)(14)(C).

     The first sentence in section 7.03 restates the statutory
provision concerning the probationary period for full-time
permanent employees in 38 U.S.C. 4106(b). To the extent that the
first sentence concerns full-time permanent employees, it mirrors
the statutory provision. We have held that proposals which
reiterate statutory requirements are within the duty to bargain.
Cases which illustrate this holding are discussed in the analysis
and conclusion on Proposal 7. Thus, we find the first sentence in
Proposal 8 to be negotiable insofar as it concerns full-time
permanent employees.

     As the Agency points out, full-time temporary employees are
not subject to a probationary period. See 38 U.S.C. 4114(a)(3)(A)
(Supp. III 1985). Therefore, to the extent that the first
sentence in section 7.03 concerns full-time temporary employees,
it is nonnegotiable under section 7117(a)(1) as the sentence
conflicts with Federal law.

     Section 7.03 also would require an immediate supervisor to
meet with an employee every 4 months during the first year of the
employee's probationary period to discuss the employee's
performance and expectations, raise the time and date of issues
which indicate the necessity of monitoring the employee's
progress, and make a written summary of the discussion. In
addition, the proposal requires the supervisor to meet with the
employee periodically in the second probationary year if the
employee's performance warrants close monitoring. Thus, specific
responsibilities would be assigned to the immediate supervisor by
the second, third, and fifth sentences in section 7.03.

     We previously have held proposals nonnegotiable which
require agency officials to perform particular tasks. See, for
example, the reasoning and cases cited in the analysis and
conclusion of Proposal 1. Therefore, based on our analysis and
the cases cited in Proposal 1, we find the second, third, and
fifth sentences of section 7.03 are not within the duty to
bargain. However, these sentences would be negotiable if they
preserved management's right to designate the individual within
the Agency to perform the specified tasks. U.S. Army Missile
Command, 27 FLRA  69, 81.

     Finally, section 7.03 in sentence four provides that a
probationary employee will be given a written summary of the
 discussion about the employee's performance. We have
held that proposals requiring notice to employees of management
actions are negotiable. See the cases cited in section 1 of the
analysis and conclusion on Proposal 6. In this instance, the
proposal merely requires that an employee be given a summary of
performance issues that management has discussed with the
employee. We find that this summary is similar to a notice of
management action because it advises the employee of aspects of
his/her performance that concern the Agency. Thus, we conclude
that the fourth sentence in section 7.03 is negotiable. We note,
however, that the fourth sentence derives its meaning from the
third sentence. Therefore, although the fourth sentence is
negotiable, it is meaningless unless the third sentence is
revised to be negotiable.

     We find to be unwarranted the Agency's concern that section
7.03 would permit an employee to grieve a termination during the
probationary period. First, as the Agency points out, Article 14
of the parties' agreement specifically excludes grievances
concerning "the separation of an employee serving a probationary
period." See Proposal 17 in the Appendix. Second, based on the
rationale and conclusion of the court in Department of
Justice,Immigration and Naturalization Service v. FLRA,  709 F.2d
724 (D.C. Cir. 1983), we have held that coverage under a
negotiated procedure of a grievance concerning the separation of
a probationary employee is precluded by governing law and
regulation. National Treasury Employees Union and U.S. Department
of Food and Nutrition Service, Midwest Region, 25 FLRA  1067,
1079 (1987) (Proposal 6), petition for review filed sub nom.
Department of Agriculture, Food and Nutrition Service, Midwest
Region v. FLRA,  No. 87-1178 (D.C. Cir. April 21, 1987).

     The Agency also argues that there is a compelling need for
its regulations concerning the purpose, form, and frequency of
counseling during the probationary period contained in the VA
Manual, MP-5, Part II, chapter 4, paragraphs 3 and 4 and the DM&S
Supplement, paragraphs 4.04 and 4.05. The Authority's
requirements for showing a compelling need for an agency
regulation are set out in section 2 of the analysis and
conclusion of Proposal 3. In support of its argument concerning
section 7.03, the Agency asserts that it must be free to
establish its own regulations to assure that the evaluation of
probationary employees results in the retention of employees who
will provide quality patient care. However, the Agency has not
shown a conflict between its regulations and the proposal. In
fact, section 7.03, as proposed, would facilitate the close
monitoring and evaluation of probationary employees which the
Agency asserts is necessary to meet its goal of quality
patient care. Accordingly, we conclude that the Agency has not
established that there is a conflict between its regulations and
section 7.03. Thus, the Agency has not shown a compelling need
for its cited regulation.

     In summary, we find that the first sentence, except to the
extent that it refers to full-time temporary employees, and the
fourth sentence in Proposal 8 are negotiable. The second, third,
and fifth sentences are nonnegotiable.

IX. Proposal 9

     Section 7.04. Promotions and Special Advancements. The text
of this proposal is in the Appendix.

     A. Positions of the Parties

     The Agency contends that since matters concerning promotions
and advancement are provided for by Title 38 they, are
nonnegotiable. According to the Agency, this proposal concerns
matters which are not bargainable conditions of employment. The
Agency argues that section 7.04 interferes with management's
right to assign work, select, and determine the methods and means
of accomplishing the VA mission. Specifically, the Agency makes
the following assertions: (1) management is required to make
assignments to the NPSB in violation of section 7106(a)(2)(B);
(2) management must assign work to employees in order to provide
them with opportunities to advance in violation of section
7106(a)(2)(B); (3) the section entitled "promotions" interferes
with management's right to make appointments or selections for
promotion under section 7106(a)(2)(C) of the Statute; (4) the
proposal provides for the Union's participation in management's
determinations on advancements, promotions, and selections; (5)
the procedures used by the Nurse Professional Standards Board
(NPSB) constitute methods and means of performing work; and (6)
section 7.04 conflicts with Agency regulations for which there is
a compelling need. The Union did not respond to these arguments
in its reply brief.

     B. Analysis and Conclusions

     We have considered previously the Agency's arguments that
matters set forth in Title 38 are nonnegotiable and do not
concern bargainable conditions of employment. For the same
reasons that we rejected these arguments in Section 11 of this
decision and order, we reject them as they pertain to promotions
and advancement. 

     1. The Proposal's Requirements Concerning the NPSB Interfere
with Management's Right to Assign Work

     The Agency asserts that since section 7.04 requires the NPSB
to consider employees for promotion and for special advancements,
it constitutes an assignment of work to that body. We conclude
that the requirement in section 7.04 that the NPSB consider
nurses for promotion and special advancement is nonnegotiable
because the Agency has the right under section 7106(a)(2)(B) of
the Statute to determine which management group will be assigned
responsibilities and tasks. See the cases cited in section 6 of
the analysis and conclusion on Proposal 6. We also note that this
defect in Proposal 9 could easily be cured. See U.S. Army Missile
Command, 27 FLRA  69, 81.

     2. The Proposal's Requirements Concerning Advancement
Opportunities Do Not Interfere with the Right to Assign Work

     The Agency argues that the first sentence in section 7.04
would require that management assign work to employees. This
sentence states that the Agency agrees to provide advancement
opportunities for employees "predicated upon the recognition of
quality of nursing service rendered, additional professional
experience and professional attainment." Advancement
opportunities are defined as promotion to higher grades and
special advancements for achievement and performance. According
to VA regulations, special advancements for achievement are
advancements within the grade which may be given if nurses have
achieved exceptional and recognized professional competence.
Special advancements for performance recognize a demonstrated
high level of performance and professional competence greater
than that normally expected of employees. See VA Manual, MP-5,
Part II, Chapter 5, paragraphs 7 and 8. On this record, we
conclude that the Agency has failed to support its argument that
the first sentence in section 7.04 would require management to
assign work. Rather, we find that this sentence is intended to
reward nurses for demonstrated competence in performing their
assigned duties and for superior achievement in their profession.
Thus, we find that the first sentence in section 7.04 does not
interfere with management's right to assign work under section
7106(a)(2)(B) and that it is negotiable.

     3. The Proposal Does Not Interfere with Management's Right
to Select

     The first section of section 7.04 states that employees who
meet the time-in-grade requirements for promotion shall 
be considered for promotion periodically by the NPSB based upon
the individual meeting the qualification requirements established
by the Agency. The Agency contends that this provision
constitutes interference with management's right to select for
promotion. We disagree.

     We find that the section on promotions is within the duty to
bargain because it merely requires the Agency to consider unit
employees for promotion. The proposal does not violate the
Agency's rights to make appointments or selections for promotion
under section 7106(a)(2)(C) of the Statute by determining when or
if an employee will be promoted. The proposal only requires the
Agency to give consideration to, but not promote, unit employees.
It does not prevent the Agency from considering other employees
for promotion nor does it require that the Agency promote any
particular employee. See National Treasury Employees Union and
Internal Revenue Service, 21 FLRA  730 (1986). See also National
Federation of Federal Employees, Local 29 and Kansas City
District, Corps of Engineers, Kansas City, Missouri, 23 FLRA  569
(1986) (Proposal 1); National Federation of Federal Employees,
Local 1332 and Headquarters, U.S. Army Materiel Development and
Readiness Command, Alexandria, Virginia, 6 FLRA  361, 365-66
(1981) (Proposal IV).

     4. The Proposal Does Not Provide for Union Participation in
Management Determinations

     The Agency contends that Proposal 9 allows the Union to
participate in management determinations on promotions and
advancements. We do not agree. First, the proposal merely
provides that the NPSB will consider employees for promotion and
special advancements. It does not give the Union any role in
these procedures.

     Second, we find that the addition of six factors to those
the NPSB uses to determine whether a nurse will be recommended
for special advancement within a grade does not constitute Union
participation in the Agency's deliberative processes. The
proposal merely requires the inclusion of six factors among those
used by the NPSB in making advancement recommendations. The
proposed criteria are not exclusive; the NPSB is free to consider
as many factors as it wishes in making its recommendations.
Furthermore, there is no requirement that management give
specific weight to the proposed factors. Thus, we conclude that
Proposal 9 does not permit the Union to participate in the
Agency's determinations concerning promotions and advancements in
violation of its management rights. 

     5. The Proposal Does Not Interfere with Management's Right
to Determine the Technology, Methods, and Means of Performing
Work

     The Agency argues that Proposal 9 interferes with the
Agency's right to determine its "methods, and means of performing
work" under section 7106(b)(1) of the Statute by negotiating NPSB
procedures for promoting employees. In our opinion, the proposal
does not seek to negotiate or establish procedures that the NPSB
must use. We also conclude that adding criteria for the NPSB to
use in recommending nurses for advancements does not constitute
the technology, methods, and means of performing work. Hence, we
find it unnecessary to consider further the Agency's argument
that the proposal violates section 7106(b)(1).

     6. Compelling Need for Agency Regulations is not
Established

     The Agency alleges that Proposal 9 conflicts with Agency
regulations for which there is a compelling need. The
requirements the Agency must meet to establish compelling need
are set out in section 2 of the analysis and conclusion of
Proposal 3. Regarding promotions, the Agency has failed to
establish in what manner the proposal concerning promotions
conflicts with Agency regulations. This proposal merely requires
that employees be considered for promotions periodically, based
on the individual meeting all of the Agency's qualification
requirements. Thus, it does not conflict with Agency regulations
which require that a nurse have a current proficiency rating of
satisfactory professional growth and fulfill any relevant
examination requirement prior to promotion.

     Concerning special advancements, the Agency states that
section 7.04 conflicts with the VA Manual, MP-5, Part II, Chapter
5, paragraphs 7 and 8 and the DM&S Supplement, paragraphs 5.10
and 5.11 because the proposed criteria are "substantially below
the level required by the criteria in the Agency's regulations."
However, as we discussed above, the proposed six factors are to
be included for use with management's criteria. Because the
factors are not exclusive and do not replace the Agency's
criteria, we do not find any conflict between this aspect of
Proposal 9 and the Agency's regulations.

     In conclusion, we hold that Proposal 9 is within the
Agency's duty to bargain except for the requirement that the NPSB
consider nurses for promotion and special advancement. 


X. Proposal 10

     Section 7.05. Vacancy Announcements. The text of this
proposal is set forth in the Appendix.

     A. Positions of the Parties

     The Agency claims that the proposal interferes with various
management rights by requiring that specific work assignments be
made to particular employees and interjecting the Union into the
decision-making process concerning what matters may be considered
in replacing an employee. The Agency also argues that the
proposal is inconsistent with various Agency regulations for
which a compelling need exists. The Union argues generally that
the regulations cited by the Agency do not remove the proposal
from the scope of negotiations.

     B. Analysis and Conclusion

     Section 7.05 pertains to the filling of positions and, more
particularly, to internal recruitment methods. The proposal
provides that the recruitment methods will be followed to the
maximum extent possible; that vacancies for staff nurse positions
and other positions of greater responsibility will be posted;
that copies of unit vacancy announcements will be provided to the
Union and the Union notified when vacancies are filled; that
consideration will be given to qualified currently employed
nurses; that all applicants will be notified of the selections
made; that meetings with non-selected employees be held at their
request to discuss the selection decision; that difficulty in
hiring a replacement be eliminated from consideration as a
selection factor; and that a selected employee be retained in his
or her current assignment until a replacement is found and
oriented.

     The Agency has made no specific arguments that any of these
portions of section 7.05 conflict with the exercise of
management's rights. Except for specific sentences which we
discuss below, we conclude that section 7.05 is a negotiable
procedure concerning the filling of positions. We find the
various portions of this section to be similar to proposals
previously found to constitute negotiable procedures under the
Statute. See VA Medical Center, Dayton, 28 FLRA  435, 452
(Proposal 12, sections I and 3) (section 1 - using internal
recruitment to the maximum extent possible when filling vacancies
or making assignments, section 3 - requiring posting of vacancy
announcements for a prescribed period of time and
setting a deadline by which requests for consideration must be
submitted); VA Medical Center, Hines, 28 FLRA  212, 235 (Proposal
6) (posting of unit vacancies, consideration and interviewing of
qualified applicants and providing written notification to all
applicants of the decision constitutes procedure for informing
employees of existing vacancies and notifying them of
management's decision).

     In holding these portions of the proposal to be negotiable,
we reject the Agency's assertion that a compelling need exists
for certain regulations so as to bar negotiations. The Agency
claims that the proposal contains "open competition" provisions
for recruitment that exceed the requirements of regulations in
the VA Manual, MP-5, Part II, Chapter 11, Section B, paragraphs 3
and 4, and the DM&S Supplement, paragraphs 11A.05b, 11B.03, and
11B.07. Further, the Agency argues that potential grievances over
matters contained in the proposal would conflict with the limited
review afforded by various other provisions of MP-5 and the DM& S
Supplement. Statement of Position at 72.

     As we previously stated, an agency must meet the Authority's
requirements, which are set out in section 2 of the analysis and
conclusion on Proposal 3 in this case, to show a compelling need.
Here, the regulations cited by the Agency deal with recruitment
and placement. The Agency has not demonstrated in what manner the
proposal is inconsistent with these regulations nor is any
inconsistency otherwise apparent. Therefore, we find no basis on
which to sustain the Agency's assertion of compelling need.

     The fifth sentence in section 7.05 would require that
employees be offered the opportunity to develop nursing skills by
performing a variety of progressively more responsible
assignments. Unlike other portions of section 7.05, this sentence
would require that management make work assignments that give
employees particular opportunities. In contrast to the first
sentence in section 7.04, the fifth sentence in section 7.05
prescribes that an employee will be offered a specific type of
work assignment. Therefore, it provides criteria for an
arbitrator to use in reviewing management decisions to assign or
not assign specific duties. By requiring that employees receive
certain types of opportunities, this sentence interferes with
management's right to assign work under section 7106(a)(2)(B).
See National Treasury Employees Union and Department of the
Treasury, U.S. Customs Service, 9 FLRA  983, 988 (1982) (proposal
obligating management to assign duties which would permit
evaluation of employee's ability to perform higher graded duties
found to violate right to assign work).

     The third sentence in subsection b vests the chief nurse, or
a designee, with the responsibility for considering applications
and notifying all applicants of the selection. Inasmuch as this
sentence leaves management free to designate the Agency official
who will consider applications and notify applicants of the
selection, we find it to be within the duty to bargain. See our
discussion of a similar proposal in the first section of the
analysis and conclusion on Proposal 6.

     The fifth and sixth sentences of subsection a of the
proposal require that the deciding official notify an employee of
a selection decision and meet with non-selected employees, at
their request, to discuss the decision. We have consistently
found that proposals which designate supervisors to perform
certain tasks are inconsistent with the right to assign. Cases
which discuss this holding are set forth in our discussion
concerning Proposal 1. However, we would find this portion of the
proposal to be negotiable if it were reworded to remove the
designation of an Agency official who is directed to perform
various tasks and preserved management's right to designate the
individual who will perform such duties. U.S. Army Missile
Command, 27 FLRA  69, 81.

     The fifth sentence in subsection b would eliminate
difficulty in hiring a replacement as a factor to be considered
in the selection process. We find that this portion interferes
with management's right to select. In prior cases, we have held
that the determination of selection factors to be used in filling
promotions is an integral aspect of the process of selection for
appointment under section 7106(a)(2)(C) of the Statute. See, for
example, VA Medical Center, Dayton, 28 FLRA  435, 453 (Proposal
12, Section 2, second and third sentences) (requiring agency to
make selections based on certain factors). By eliminating a
particular factor from the selection process, the fifth sentence
in section 7.05 interferes with management's right under section
7106(a)(2)(C) and is nonnegotiable.

     To summarize, we find Section 7.05 to be within the duty to
bargain except for the fifth sentence in section 7.05, which
requires management to assign work; the fifth and sixth sentences
in subsection a, which designate the deciding official to notify
employees of their selection and meet with non-selected
employees; and the fifth sentence in subsection b, which
eliminates difficulty in hiring as a selection factor. 

XI. Proposal 11

     Section 7.07. Corrective Actions. - General

     Section 7.10. Corrective Actions - Discipline

     The text of these sections appears in the Appendix.

     A. Positions of the Parties

     The Agency contends that the proposal is inconsistent with
the exclusive VA personnel system established under Title 38 for
the reasons set forth in Section II of this decision. The Agency
notes that the Authority has specifically ruled that disciplinary
actions involving a disciplinary board under 38 U.S.C. 4110 are
outside the duty to bargain, citing Veterans Administration,
Washington, D.C. and Veterans Administration Medical Center,
Minneapolis, Minnesota and American Federation of Government
Employees, Local 3669, AFL - CIO, 15 FLRA  948 (1984). In
addition, the Agency argues that the proposal places conditions
on its right under section 7106 to impose discipline.
Furthermore, it interferes with management's right to assign
duties insofar as it proposes certain responsibilities for
supervisors. The Union does not specifically address these
proposals.

     B. Analysis and Conclusion

     1. Section 7.07 - Corrective Actions - General

     a. Provision that Agency May Initiate Corrective Actions is
Negotiable

     The first two sentences in section 7.07 describe, in
general, the conduct that is required of employees and states
that management may take corrective action if an employee fails
to follow applicable rules, policies, and procedures or engages
in professional misconduct or acts of professional ineptitude or
inefficiency. These sentences have the same effect as the first
sentence of Proposal 9 found negotiable in VA Medical Center,
North Chicago, 27 FLRA  714, 741-42. The first sentence of
Proposal 9 in that case described the bases on which the VA might
discipline nurses. We found that the intent of the sentence was
simply to parallel the bases for agency discipline which are
established under applicable law and VA regulations. Further, we
found that the proposal did not in any way restrict the agency's
right to discipline as it provided the VA with the full range of
discipline that exists under law and regulation. 

     Therefore, for the reasons stated in North Chicago, we find
that the first two sentences in section 7.07 are within the duty
to bargain. Section 7.07, we find, is also consistent with the
full range of discipline already available to the Agency under
law and regulation. It does not restrict in any way the Agency's
right to discipline. See also VA Medical Center, Hines, 28 FLRA 
212, 241-43 (Proposal 10). We specifically note that the Agency
did not show how, if at all, the proposal was contrary to the
requirements of 38 U.S.C. 4110.

     b. Requirement that the Supervisor Perform Specified Tasks
is Nonnegotiable

     In two instances, section 7.07 requires that the supervisor
make certain decisions regarding discipline. Specifically, the
supervisor must consider the five listed factors prior to
deciding what corrective action is a proper response to an
incident or act. After so doing, the supervisor must consider
whether to initiate an oral or written counseling or recommend
disciplinary action. We have held consistently 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. See our
discussion and the cases cited concerning the fifth sentence of
Proposal 1. Therefore, we find that the assignment of tasks to
the supervisor in the third and fourth sentences of section 7.07
is nonnegotiable. These defects may be cured by deleting the
reference to a specific Agency official. Thus, the third and
fourth sentences would be negotiable if they reserved
management's right to designate the individual within the Agency
to perform the specified tasks. See U.S. Army Missile Command, 27
FLRA  69, 81.

     2. Section 7.10 - Corrective Actions - Discipline

     a. Requirement that Management Use a Table of Penalties is
Nonnegotiable

     The second sentence in section 7.10 would require that the
Agency use the Table of Penalties included in Proposal 11, which
is also in its regulations, as a guide in the administration of
disciplinary actions. By making the Table of Penalties part of
the parties' contract, the Agency would be compelled to follow
the table when management chose to take disciplinary action for
the listed offenses. Thus, this sentence interferes with
management's discretion to impose discipline by restricting
penalties depending on the type of offense and, in some cases,
whether an employee has previously committed the offense. See
West Point Elementary School Teachers Association, NEA
and The United States Military Academy Elementary School, West
Point, New York, 29 FLRA  No. 123, slip op. at 9-10 (1987)
(Proposal 4, sections I and 2) petition for review filed sub non.
West Point Elementary School Teachers Association v. FLRA,  No.
87-4149 (2d Cir. Nov. 18, 1987), (proposal which limited agency
in imposing discipline included requirement that management use
guide to disciplinary actions contained in its regulations, held
to directly interfere with agency's right to discipline);
International Plate Printers, Die Stampers and Engravers Union of
North America, AFL - CIO, Local 2 and Department of the Treasury,
Bureau of Engraving and Printing, Washington, D.C., 25 FLRA  113,
129-32 (1987) (Provision 22) (provision requiring management to
select the minimum discipline necessary "to achieve a proper
disciplinary objective" and use formal measures only "for more
serious offenses" or when less formal measures were unsuccessful
held non-negotiable).

     Based on the analysis above and the cited cases, we conclude
that the second sentence in section 7.10 is outside the duty to
bargain as it violates management's right in section
7O16(a)(2)(A) of the Statute to take disciplinary action.

     b. Requirement that Management Initiate Disciplinary Action
within Thirty Days is Nonnegotiable

     The last sentence in section 7.10 would require that
management take certain actions no later than 30  calendar days
from the date of the alleged act or its discovery unless an
investigation is requested by a VA official above the service
chief level or an investigation concerning a civil or criminal
offense is conducted. This contractual "statute of limitations"
would, in certain circumstances, prevent the Agency from acting
at all with respect to its right under section 7106(a)(2)(A) to
discipline employees when the 30-day period had passed.
Therefore, it is outside the duty to bargain. See American
Federation of Government Employees, AFL - CIO, Local 1931 and
Department of the Navy, Naval Weapons Station, Concord,
California, 24 FLRA  512 (1986) and the cases cited therein.

     C. Remainder of Section 7.10 is Negotiable

     We find that the remaining sentences of section 7.10 are
within the duty to bargain as they do not prevent the Agency from
exercising its right to discipline. Rather, they, constitute
negotiable procedures under section 7106(b)(2) of the
Statute. See Local 3, International Federation of Professional
and Technical Engineers, AFL - CIO and Naval Sea Systems Command
Detachment, Pera (Crudes), Philadelphia, 25 FLRA  714, 718-22
(1987) (Provisions 3, 4 and 5). We note, in this regard, our
holding that an agency's duty to negotiate concerning
representation of employees is not limited to the rights given
employees to such representation under section 7114(a)(2) of the
Statute. Congressional Research Employees Association and Library
of Congress. Congressional Research Service, 25 FLRA  306, 330-32
(1987) (Proposal 17).

     In summary, we find that section 7.07 is within the duty to
bargain except for the requirement in the third and fourth
sentences that a supervisor undertake certain responsibilities.
In section 7.10, we find the second and the last sentences are
outside the duty to bargain.

XII. Proposal 12

     Section 8.01. Normal -- Workweek and Normal Workday: (1) For
full-time employees, the normal workweek will be 40 hours of
scheduled duty time exclusive of meal periods if they are
provided. (2) The normal workday for full-time employees will be
8 hours of scheduled duty time exclusive of a meal period if one
is provided. (3) Part-time employees will be scheduled to work no
more than 35 hours of duty-time per week. (4) Part-time employees
may not average more than 35 hours of duty time per week over a
period of a year. (5) Part-timers may only be scheduled to work
other than the normal workday if they agree to do so.

     A. Positions of the Parties

     The Agency notes that because this proposal is virtually
identical to Proposal 7, the arguments in support of its
allegation of nonnegotiability as to Proposal 7 are also raised
as to this proposal. The Union does not specifically discuss this
proposal.

     B. Analysis and Conclusion

     The first two sentences in section 8.01 state that the
normal workweek is 40 hours and the normal workday in 8 hours
exclusive of meal periods. Title 38 recognizes 40 hours as an
administrative workweek and 8 hours as a regular workday. See 38
U.S.C. 4107(e)(5)(1982). Thus, we conclude, as we did concerning
the first disputed sentence in Proposal 7, that the
first two sentences in Proposal 12 are consistent with applicable
law except for nurses working under the Baylor Plan. Therefore,
based on our analysis and discussion of Proposal 7, we find that
the first and second sentences in section 8.01 are negotiable
except for nurses working under the Baylor Plan.

     The third, fourth, and fifth sentences would prevent
management from scheduling part-time employees to work more than
35 hours per week and limit the average number of hours annually
of part-time employees to 35. Management would, therefore, be
restricted in scheduling part-time employees for work. Thus, the
third, fourth, and fifth sentences in section 8.01 are outside
the duty to bargain under section 7106(a)(2)(B) of the Statute
based on the analysis and discussion of the second and third
disputed sentences in Proposal 7.

XIII. Proposal 13

     Sections 8.03, 8.05, and 8.07. Work Schedules, Permanent
Shift Assignments and Exceptions. These proposals are set forth
in the Appendix.

     A. Positions of the Parties

     The Agency argues that this proposal infringes on
management's rights to assign work and direct employees. The
Agency also argues that the proposal conflicts with an Agency
regulation for which a compelling need exists. The Union argues
that not one of its proposals restricts the VA's right to
schedule "as many nurses of whatever type and grade as it wishes
for any given subdivision and on any tour of duty." In addition,
the Union contends that its proposals are consistent with 5
U.S.C. 6101, which it views as controlling law.

     B. Analysis and Conclusions

     1. Introduction

     Contrary to the Union's assertions, we find that some of the
sentences in 8.03, 8.04, and 8.05 interfere with the Agency's
right to assign work under the Statute and are, therefore,
nonnegotiable. In the following sections of this analysis and
conclusion, we will discuss specifically the reasons these
sentences are outside the duty to bargain. The remaining
sentences are negotiable because they concern conditions of
employment under section 7103(a)(14) of the Statute and there is
no governing law or regulation which liimits the
Agency's discretion concerning their determination. IRS, New
Orleans District, 3 FLRA  748, 759-60.

     In support of its position that its scheduling proposals are
negotiable, the Union states that these proposals do not conflict
with the requirements of 5 U.S.C. 6101, concerning hours of duty.
However, the Code of Federal Regulations, which is the Office of
Personnel Management's interpretation and application of the
provisions of Title 5, excludes VA nurses from coverage under 5
U.S.C. 6101. See 5 C.F.R. 550.101(b)(12) and 610.101. Since 5
U.S.C. 6101 does not cover nurses, the Union's arguments
concerning that section are not relevant to this discussion.

     2. Assignment of Responsibilities to Supervisors

     The following sentences in section 8.03 assign
responsibilities to supervisors in connection with employee work
schedules: the first paragraph, first and second sentences;
subsection a, second sentence; subsection c, first sentence; and
subsection d, first and seventh sentences. In addition, the fifth
sentence in section 8.05 prescribes certain responsibilities for
supervisors. As we have previously stated, proposals which
designate particular Agency officials to perform tasks are
nonnegotiable because they violate management's right to assign
work under section 7106(a)(2)(B). For the reasons set forth in
our discussion of the fifth sentence in Proposal 1, the sentences
of section 8.03 listed above and the fifth sentence in section
8.05 are outside the duty to bargain because they interfere with
the right to assign work to nonunit personnel.

     However, the sentences listed above, except the first
sentence in subsection c and the seventh sentence in subsection d
of section 8.03, would be negotiable if they were revised so as
to preserve management's discretion to assign work to supervisory
personnel. See U.S. Army Missile Command, 27 FLRA  69, 81
(1987).

     3. Section 8.03 - Work Schedules

     Some sentences of subsections a, b, and c of section 8.03
are outside the duty to bargain. Subsection a, first sentence,
and subsection b establish limitations on management's ability to
determine the work schedules of nurses. Specifically, they
prescribe weekends off and preclude split days off, respectively.
The effect of these limitations is to prevent management from
changing nursing schedules to meet its patient care needs. Thus,
these sentences are to the same effect as Proposal 2 in VA
Medical Center, Ft. Lyons, 25 FLRA  803, 812. In Ft.
Lyons we held that a proposal which precluded split days off and
determined the work schedules of the agency's nursing staff was
outside the duty to bargain because it directly interfered with
management's right to assign work pursuant to section
7106(a)(2)(B) of the Statute. Thus, we find the first sentence in
subsection a and subsection b of section 8.03 to be outside the
duty to bargain.

     Subsection c of 8.03 provides that the employee will be
given sufficient time off between workdays to rest. Specifically,
it requires that a nurse have 15-1/2 hours off between the
completion of a scheduled workday. The requirement for a specific
amount of time between workdays is to the same effect as section
3 in Proposal 2 which we found to be outside the duty to bargain
in VA Medical Center Ft. Lyons, 25 FLRA  803, 812-16. We found
that this proposal in Ft. Lyons, which provided for 15 hours or
more of nonduty time between hours of duty, was outside the duty
to bargain, because it precluded management from assigning nurses
with specialized skills to perform duties at particular locations
and times required by patient care needs. For the same reasons,
we find subsection c of 8.03 outside the duty to bargain. See
also VA Medical Center, Dayton, 28 FLRA  435, 462-65 (Proposal
15).

     Subsection d of 8.03 in the second sentence requires that
rotation be distributed on an equitable basis. Based on prior
cases, this sentence is a negotiable procedure. See, for example,
VA Medical Center, Ft. Lyons, 25 FLRA  803, 822-23 (Proposal 6).
Therefore, the second sentence of 8.03 d is within the duty to
bargain.

     As to subsection d, the third, fourth, seventh, eighth, and
ninth sentences are nonnegotiable. Like the sentences in
subsections 8.03 a and b, these sentences place a limitation on
management's rights to determine work schedules. The third and
fourth sentences establish that nurses subject to rotation would
be assigned to either the day or night relief, but not to both,
and that during a 4-week block no nurses will be required to
rotate from the day to evening shift or the day to night shift on
more than three separate occasions. The seventh, eighth, and
ninth sentences would require that a nurse be allowed sufficient
time off between rotation periods for rest, that normally an
employee will get 23 1/2 hours off between shifts, and that on
request a nurse will be granted up to 47 1/2 hours off. None of
the these sentences allows consideration of staffing needs in
relation to the demands of patient care. VA Medical Center, Ft.
Lyons, 25 FLRA  803, 812-16. Thus, we find the third, fourth,
 seventh, eighth, and ninth sentences in subsection d
are nonnegotiable.

     In conclusion, in section 8.03 we find that the first
paragraph, first and second sentences are negotiable; subsection
a, first and second sentences are nonnegotiable; subsection b is
nonnegotiable; subsection c is nonnegotiable; and subsection d,
second, fifth, and sixth sentences are negotiable and the first,
third, fourth, seventh, eighth, and ninth sentences are
nonnegotiable.

     4. Section 8.05 - Permanent Shift Assignments

     Section 8.05 provides that employees may request evening and
night tours of duty as permanent assignments, and that requests
for such permanent tours may be granted subject to performance
and staffing needs. Section 8.05, therefore, does not interfere
with management's right to assign work and is within the duty to
bargain. This section expressly provides management with the
flexibility to assign the employee with the particular skill
needed on a particular shift. Management is not required to grant
the request unless staffing permits and the employee has
demonstrated competence and reliability in performing duties with
minimal supervision.

     Therefore, because this section provides for the patient
care needs of the Agency and permits the Agency to consider the
skills necessary to ensure adequate professional medical care and
treatment of patients, we conclude that it is a negotiable
procedure, except for the fifth sentence which assigns certain
tasks to supervisors. VA Medical Center, Martinsburg, 27 FLRA 
239, 256, 261-62 (Proposal 9).

     5. Section 8.07 - Exceptions

     Section 8.07, which provides that temporary exceptions to
sections 8.03 and 8.05 may be requested in writing, is also a
negotiable procedure. Like section 8.05, it takes into
consideration patient care needs, and it presents no interference
with management's right to assign work under the Statute.
Therefore, it is negotiable.

XIV. Proposal 14

     Section 9.07, Salary Surveys: (1) The Medical Center will
periodically survey the compensation rates paid to registered
nurses in private sector hospitals. (2) This survey will usually
be conducted along with the other VA Medical Centers in
New York City. (3) The Association will be offered the
opportunity to appoint one representative to be a member of this
Medical Center's data collection team. (4) The representative
will be on duty time for the time spent collecting the data.

     A. Positions of the Parties

     The Agency states that nurses' salaries and salary surveys
and adjustments are specifically set forth in 38 U.S.C.
4107(b)(1), 4107(e)(10), 4107(g), and 4107(h) and its
implementing regulations contained in the VA Manual, MP-5, Part
II, chapter 3, sections A, D, and E and in the DM&S Supplement,
sections A, D, and E. The Agency argues that since salaries,
salary surveys, and adjustments are expressly prescribed by law
and regulation, the matters are excluded from the definition of
conditions of employment under the Statute.

     The Agency also argues that the proposal is inconsistent
with management's rights to assign, direct, and determine the
personnel by which agency operations will be conducted. More
specifically, the Agency states that only the Administrator or
his designee is authorized to conduct salary surveys and that the
proposal instead would require management at the medical center
to undertake this responsibility. The proposal would also require
management to include a Union representative, presumably a
bargaining unit member, and thus prevent management from
otherwise directing or assigning work to that employee. The Union
indicates that the proposal is an information-gathering mechanism
which does not impose any obligation on the Agency to change
wages.

     B. Analysis and Conclusion

     1. Salary Surveys are Negotiable Procedures

     We find that the first two sentences in section 9.07 are
negotiable. Proposals that are analogous to section 9.07 were
presented in Veterans Administration Staff Nurses Council, Local
5032, WFNHP, AFT, AFL - CIO AND Veterans Administration Medical
Center, Wood, 29 FLRA  849, 868-70 (1987) (Proposal 12) (VA
Medical Center, Wood), petition for review, filed sub nom.
Veterans Administration Medical Center, Wood, Wisconsin v. FLRA 
No. 87-1740 (D.C Cir. Dec. 2, 1987) and VA Medical Center, North
Chicago, 27 FLRA  714, 726-28 (Proposal 4). In these cases, we
rejected the agencies' contentions that salary surveys are
outside the duty to bargain under section
7103(a)(14)(C) because they are specifically provided for by
Federal law. We explained that 38 U.S.C. 4107(g) provides that
the VA Administrator may increase the rates of basic pay of
nurses and other professional medical employees on a nationwide,
local, or other geographic basis. Such increases may be made to
provide pay which is competitive with the same category of
personnel at non - Federal facilities in the same labor market.
We explained further that under VA regulations, the facility
director is responsible for submitting requests for changes in
the rates of basic pay. See VA Manual, MP-5, Part II, Chapter
3-5d. Where such a request is approved by higher DM&S officials,
it is forwarded to the VA Administrator for concurrence.
Therefore, the VA Administrator retains the discretion under 38
U.S.C. 4107(g) not only to adjust rates of basic pay but to do so
based on information of salary rates surveyed at non - Federal
hospitals in a geographic area.

     Like the proposals in VA Medical Center, North Chicago and
VA Medical Center, Wood, we find that the first two sentences in
section 9.07 constitute a procedure for developing information
concerning salary rates. A salary survey is not a matter that is
specifically provided for by 38 U.S.C. 4107(g). Similarly, it is
not a matter specifically provided for by the other sections of
Title 38, 4107(b)(1), 4107(e)(10), and 4107(h), cited by the
Agency.

     Next, we address the Agency's arguments that the proposal
interferes with management's right to assign, direct, and
determine the personnel by which agency operations will be
conducted. We reject the Agency's argument that by requiring
management at the medical center to conduct salary surveys, the
proposal interferes with the enumerated management rights because
the tasks required by the proposal must be performed by someone.
The proposal does not specify the individual in management who
will conduct salary surveys. Instead, management retains the
discretion to determine how a salary survey will be conducted.
Moreover, it is well-established that the tasks imposed on
management by a proposal do not interfere with management's right
to assign work simply because some action must be undertaken by
management to comply with the proposal. See VA Medical Center,
Wood, 29 FLRA  849, 868-70 (Proposal 12); VA Medical Center,
North Chicago, 27 FLRA  714, 726-28 (Proposal 4).

     2. Union Appointment of a Representative for the Data
Collection Team is Nonnegotiable

     The third sentence would require that the Union be offered
the opportunity to appoint a representative to be a 
member of management's data collection team. We find that the
third sentence is nonnegotiable because it does not allow
management to consider patient care needs in assigning the
Union's representative. That is, management would be required to
permit the nurse selected as the Union's representative to
participate in the salary survey without regard to its staffing
needs or the specialized skills of the nurse selected by the
Union. In prior cases, we have found that the requirements of
patient care often involve specialized skills and knowledge of
special procedures and techniques which are not shared by all
nurses. Thus, we have held that the VA must be free to make
assignments according to its evaluation of where the skills of
its total nursing staff can best be utilized. See, for example,
VA Medical Center. Ft. Lyons, 25 FLRA  803, 814-16, 818-20
(proposals nonnegotiable which interfered with management's
ability to consider nurses' specialized skills in making work
assignments). Therefore, we find the third sentence is
nonnegotiable because it violates management's rights under
section 7106(a)(2)(A) and (B) of the Statute to assign employees
and work. We note that the third sentence would be negotiable if
it permitted the Agency to select a Union representative for the
data collection team from among Union nominees. This revision
would permit management to retain its right to make work
assignments according to patient care needs.

     3. Official Time for Union Representative on Data Collection
Team is Negotiable

     The fourth sentence would require that the Union's
representative on the data collection team be on official time
while working on the salary survey. It is within the duty to
bargain. Section 7131(d) of the Statute specifically provides
that negotiations are appropriate for the amount of official time
available to employees to conduct representational activities.
This section creates an exception to management's right to assign
work. Military Entrance Processing Station, Los Angeles,
California and American Federation of Government Employees, Local
2866, AFL - CIO, 25 FLRA  685, 688 (1987). Thus, we conclude that
the fourth sentence is negotiable.

     In sum, except for the third sentence, we find Proposal 14
to be within the duty to bargain.

XV. Proposal 15

     Sections 10.01 Holidays and 10.05, Rest Periods. The text of
these proposals is in the Appendix. 

     A. Positions of the Parties

     The Agency argues that section 10.01 violates management's
right to assign work and that it conflicts with Agency
regulations for which there is compelling need. The Agency also
argues that Proposal 15 in its entirety interferes with
management's right to determine the number, types, and grades of
employees assigned to a tour of duty as well as management's
right to assign work. The Union did not specifically address
sections 10.01 and 10.05.

     B. Analysis and Conclusions

     The Agency objects to the part of the proposal which
requires an equitable distribution of holidays. We find this
proposal to be to the same effect as a proposal in VA Medical
Center, Dayton, 28 FLRA  435, 449-50 (Proposal 10). In that case,
Proposal 10 provided that, once the agency had decided to
schedule administrative nonduty days for holidays, it would
schedule nonduty holidays in an equitable manner among nurses in
a scheduling unit. We held that the proposal was a procedure to
ensure fairness and equity in the assignment of administrative
nonduty days for holidays. See also VA Medical Center, Hines, 28
FLRA  212, 224, 231 (Proposal 5, Section 8); VA Medical Center,
Ft. Lyons, 25 FLRA  803, 822-23 (Proposal 6). Therefore, section
10.01 is within the duty to bargain.

     As for section 10.05 which provides for rest periods, we
find it also to be within the duty to bargain. The Authority has
consistently held that break periods are negotiable insofar as
they are on duty time and employees remain subject to the
assignment of work. See American Federation of Government
Employees, AFL - CIO, National Council of Social Security Field
Office Locals and Department of Health and Human Services, Social
Security Administration, 24 FLRA  842 (1987) (Proposal 1);
American Federation of Government Employees, AFL - CIO, Local
3511 and Veterans Administration Hospital, San Antonio, Texas, 12
FLRA  76, 84-88 (1983) (Proposal 30.i.).

     Section 10.05 provides that rest periods would be on duty
time. Furthermore, management would be able to call employees
back to work, should the need arise, because the proposal
requires that employees remain on the medical center grounds
during their rest periods. In this regard, we note that the last
sentence in section 10.05, which states that supervisors may not
schedule rest periods during the first or last half hour of a
workday, does not place any restrictions on management concerning
the assignment of work. Management may schedule
employees to work during any hour of the workday regardless of
when rest periods are scheduled. In these circumstances, we find
that section 10.05 does not interfere with management's right to
assign work under section 7106(a)(2)(B) of the Statute and is
within the duty to bargain.

     The Agency also has asserted that Proposal 15 interferes
with its right to determine the number, types, and grades of
employees. Specifically, the Agency states that the proposal
would limit the number of nurses that could be assigned to work
on holidays. However, as we noted, section 10.01 would not take
effect until management has determined the number, types, and
grades of nurses needed to work on a holiday. The Agency has not
explained how its right to determine staffing needs is affected
by section 10.05. In these circumstances, we find that the Agency
has not established that Proposal 15 interferes with its right to
determine the number, types, and grades of employees.

     The Agency also argues that there is a compelling need for
certain of its regulations which will bar negotiations on
sections 10.01 and 10.05. In order to show a compelling need for
its regulations, an agency must meet the Authority's requirements
as stated in section 2 of the analysis and conclusion on Proposal
3. Concerning Proposal 15, the Agency cites the VA Manual, MP-5,
Part II, Chapter 7, paragraphs 3, 4, and 5 and the DM&S
Supplement, paragraphs 7.04, b, c, and d and 11B.03b. However,
the Agency has not shown that there is a conflict between the
cited regulations and sections 10.01 and 10.05. Therefore, we
find that the Agency has failed to meet the Authority's
requirements to establish a compelling need for the regulations
it cited.

     In conclusion, we find that sections 10.01, concerning
holidays, and 10.05, concerning rest periods, are within the
Agency's duty to bargain.

XVI. Proposal 16

     Section 11.03. Leave of Absence: Return to Duty: The
employer will make every effort to allow an employee to return to
the same position and shift worked before the leave of absence.
(1) If there is no opening when the employee returns, the
employee will be assigned to a position which best utilizes his
or her skills. (2) As soon as an opening occurs in the employee's
previous position, the opening will be offered to the employee
provided the employee is qualified to perform the
duties of the position. (Only the underscored sentences are in
dispute.)

     A. Positions of the Parties

     The Agency argues that the proposal interferes with
management's rights to assign employees and make selections under
section 7106(a) by guaranteeing that qualified employees
returning from leaves of absence will be placed in their former
positions. The Agency also argues that the proposal is
inconsistent with Agency regulations for which a compelling need
exists. The Union states that the intent of the proposal is to
make every effort to allow an employee who is returning from a
leave of absence to return to the same position and shift on
which the employee worked prior to taking the leave.

     B. Analysis and Conclusion

     1. First Disputed Sentence

     We find the first disputed sentence is negotiable. It would
require that management assign an employee returning from a leave
of absence to a position which best utilizes the employee's
skills if there is no opening in the employee's former position
and shift. Contrary to the Agency's argument, we find that this
sentence does not require the Agency to make specific assignments
to particular employees. If a returning employee's former
position and shift are unavailable, management will be able to
decide where the employee's skills can best be utilized among the
available positions that management has decided to fill.
Therefore, wop conclude that the first disputed sentence does not
interfere with management's rights to assign employees and make
selections for appointments from any appropriate source under
section 7106(a)(2)(B) and (C)(ii).

     We also reject the Agency's argument that the proposal is
inconsistent with Agency regulations for which a compelling need
is asserted. As we have previously discussed in section 2 of the
analysis and conclusion of Proposal 3, an agency must meet the
Authority's requirements to show a compelling need for an agency
regulation. Specifically, the Agency asserts that the regulations
for which there is a compelling need are the VA Manual, MP-5,
Part II, Chapter 7, paragraphs 3, 4, and 5 and Chapter 11,
section B and the DM&S Supplement, paragraphs 7.04, 7.09c, and
11.B.03 b. The Agency argues that the disputed portion of section
11.03 conflicts with these regulations because it does not
require  consideration of patient care needs in making
duty assignments. However, the Agency has failed to demonstrate
how the proposal is inconsistent with the concern for patient
care. As we have stated, according to the first disputed sentence
the Agency retains the right to determine the placement of the
returning employee. Therefore, this first disputed sentence is
within the duty to bargain.

     2. Second Disputed Sentence

     We find that the second disputed sentence is nonnegotiable.
It would require that the Agency offer an employee returning from
a leave of absence the position he/she previously held, if the
position becomes vacant and management decides the employee is
qualified to perform the duties of the position. Thus, the
sentence prevents the Agency from filling the returning
employee's former position with applicants from any other
appropriate source. We have held that proposals which dictate a
source that an agency must use in filling vacancies interfere
with management's right to select in section 7106(a)(2)(C) of the
Statute. See, for example, Federal Employees Metal Trades Council
of Charleston and Department of the Navy, Charleston Naval
Shipyard, Charleston, South Carolina, 29 FLRA  117, slip op. at
4-5 (1987) (Proposal 2) (proposal prohibiting agency from filling
year-round vacancies with on-call employees before exhausting
certain other sources held nonnegotiable); VA Medical Center. Ft.
Lyons, 25 FLRA  803, 820-22 (1987) (Proposal 5) (proposal
requiring that management select internal applicant, if
available, held nonnegotiable).

     Furthermore, the second disputed sentence also restricts
management's right to determine whether to fill a position that
becomes vacant. The Authority has found such proposals to be
nonnegotiable. See Fort Knox Teachers Association and Fort Knox
Dependent Schools, 19 FLRA  878, 881 (1985) (Proposal 3)
(requirement that management honor an employee request for
reassignment and/or transfer held nonnegotiable because it
prevented agency from deciding not to fill vacancies or to fill
them with outside applicants). Therefore, because the second
disputed sentence interferes with the Agency's rights to decide
whether to fill vacancies and select from any appropriate source
it is nonnegotiable.

     In conclusion, we find that the first disputed sentence in
Proposal 16 is negotiable and the second disputed sentence is
nonnegotiable.

XVII. Proposal 17

     Section 14. Grievances. The text of this proposal is in the
Appendix.

     A. Positions of the Parties

     The Agency contends that Article 14 is inconsistent with the
exclusive VA personnel system established under Title 38 for the
reasons discussed in Section II of this decision. In addition,
the Agency also contends that the underscored sentence in section
14.05 violates management's reserved right to assign work. In the
Agency's view, the sentence would require management to change
the tour of arbitration witnesses so they would be in a duty
status while testifying.

     The Union urges the Authority to reject the Agency's
assertions that a negotiated grievance procedure is inconsistent
with the personnel system established in Title 38 of the U.S.
Code. The Union does not specifically address the requirement in
section 14.05 regarding the tour of duty of a witness called by
an arbitrator.

     B. Analysis and Conclusion

     The Agency argues that section 14 is barred from
negotiations by the provisions of 38 U.S.C. 4110. We discuss and
reject this argument in Section II of this decision. Furthermore,
in VA Medical Center, Ft. Lyons, 25 FLRA  803, 806-12, we held
that grievance and arbitration procedures for DM&S employees are
within the duty to bargain under the Statute to the extent that
the procedures cover matters which are not barred by 38 U.S.C.
4110. See Veterans Administration Medical Center, Minneapolis,
Minnesota v. FLRA,  705 F.2d 953, 958 (8th Cir. 1983). Based on
these cases, we conclude that section 14 is within the duty to
bargain except for section 14.01 B, which we discuss below.

     In reviewing section 14, we find that section 14.01 B, which
lists matters not covered by the negotiated grievance procedure,
is outside the duty to bargain. The Union begins subsection B by
listing the matters which are excluded by the Statute from
coverage under a negotiated grievance procedure. However, the
Union fails to state that a grievance concerning "the
classification of any position which does not result in the
reduction in grade or pay of an employee" is excluded from the
scope of a negotiated grievance procedure by section 7121(c)(5).
Since the Union has omitted one of the Statutory
exclusions, we conclude that section 14.01 B is nonnegotiable.
See National Treasury Employees Union and Department of the
Treasury, Financial Management Service, 29 FLRA  422, 431-32
(1987) (Provision 5, section 12).

     In addition, we specifically note that the first two
sentences in 14.01 B.9. are nonnegotiable. In Ft. Lyons, 25 FLRA 
803, 806-12, we reaffirmed the Authority's holding in VA Medical
Center, Minneapolis, 15 FLRA  948, that the VA is not obligated
to negotiate concerning grievance and arbitration procedures for
DM&S employees which include disciplinary actions covered by the
professional standards board system established under 38 U.S.C.
4110. In reviewing subsection B.9, we find that the first two
sentences would subject to arbitration a decision based on the
recommendations of the NPSB if an arbitrator finds there is "a
reasonable basis to believe" that the decision is "arbitrary,
capricious, discriminatory, or based on personal bias." In our
opinion, these sentences improperly subject to arbitration
matters which are subject to the disciplinary system established
under 38 U.S.C. 4110. Thus, these sentences are outside the duty
to bargain.

     Finally, we note that the designation of particular Agency
officials to act at various steps of the grievance procedure is
not a violation of management's right to assign work under
section 7106(a)(2)(B) of the Statute. We have held that the
requirement in section 7121 that the parties' negotiate the
structure of their grievance procedure carves out an exception to
management's right to assign work. National Federation of Federal
Employees, Local 29 and Department of Defense, HQ U.S. Military
Entrance Processing Command, 29 FLRA  726, 728 (1987) (Provision
1).

     The Agency also argues that the statement in section 14.05
that management and union "agree that it may be necessary to
change the tour of duty of an employee called as a witness by an
arbitrator" is nonnegotiable. Apparently, the Agency reads the
statement as requiring that it change a witness's tour of duty in
violation of its right to assign work. However, we disagree with
this interpretation. we find that the statement is merely
hortatory because it describes circumstances which may indicate a
change of tours is necessary to permit an employee to testify as
a witness at an arbitration hearing. Discretion remains with the
Agency, to determine how to handle the situation if an employee
is on a shift other than the one during which a hearing will be
held. Thus, contrary to the Agency, we conclude that this
statement does not interfere with the Agency's right to
assign work in section 7106(a)(2)(B). See American Federation of
Government Employees, AFL - CIO, International Council of
Marshals Service Locals and U.S. Marshals Service, 15 FLRA  333,
334-35 (1984) (Proposal 2).

     In conclusion, we find that Proposal 17 is within the duty
to bargain except for the first two sentences in section 14.01
B.9.

XVIII. Proposal 18

     Section 15. The text of this proposal is set out in the
Appendix.

     A. Positions of the Parties

     The Agency contends that the proficiency rating system is an
integral part of the personnel system promulgated by the
Administrator to advance the VA patient care mission and is,
therefore, outside the duty to bargain. The Agency also contends
that Proposal 18 violates its management's rights under the
Statute. Specifically, the Agency argues Proposal 18 violates its
rights under section 7106(a)(2) of the Statute to assign
employees and assign work and its right under section 7106(b)(1)
to determine the methods, means, and technology of performing
work. Finally, the Agency contends that Proposal 18 conflicts
with VA regulations in the VA Manual, MP-5, Part II, Chapters 2,
4, 6, 8, and 9 and the DM&S Supplement for which a compelling
need exists. The Union makes no specific arguments regarding
Proposal 18.

     B. Analysis and Conclusions

     1. Section 15 Establishes a Negotiable Procedure

     Section 15 establishes a negotiable procedure by which
nurses may raise questions regarding the application of the
proficiency rating and sets out procedural steps management will
follow before it makes a final appraisal of an employee. These
sentences present options and offer guidelines as to (1) the
types of information that should be included in the narrative
portion of management's report and in the employee's rebuttal to
that report and (2) the courses of action management may consider
if an employee does file a rebuttal to management's report. Since
management is not required to do anything other than consider
various options, section 15, except for the sentences discussed
below, is within the duty to bargain. 

     Contrary to the Agency's argument, we find that section 15
does not concern the methods and means of performing the Agency's
work within the meaning of section 7106(b)(1). Rather, this
section simply sets out the procedural steps management will
follow before it makes a final appraisal of an employee. See VA
Medical Center, North Chicago, 27 FLRA  714, 736; National
Federation of Federal Employees, Local 541 and Veterans
Administration Hospital, Long Beach, California, 12 FLRA  270,
272-73 (1983).

     The Agency also claims that section 15 is barred from
negotiation by the VA Manual MP-5, Part II, Chapter 6 and the
DM&S Supplement, regulations for which a compelling need exists.
The Authority's requirements for establishing a compelling need
for an agency regulation are set forth in section 2 of the
analysis and conclusion on Proposal 3. In this case, the Agency
argues that its regulations are essential to the VA patient care
mission." Statement of Position at 95-96. We assume that the
Agency is arguing that its regulations are essential to the
accomplishment of the mission in a manner which is consistent
with the requirement of an effective and efficient Government.
However, the Agency has not demonstrated how the portions of
section 15 concerning the procedural steps to be followed before
completion of a nurse's proficiency rating conflict with the
accomplishment of its mission. Therefore, we conclude that the
Agency's regulation does not serve as a bar to negotiations under
section 7117(a)(2) of the Statute.

     2. Assignment of Work is Nonnegotiable

     Although we find that section 15 is a negotiable procedure,
we find the second sentence nonnegotiable to the extent that it
requires an employee's immediate supervisor to perform work
assignments. Specifically, it requires "dialogue" between the
employee and the immediate supervisor prior to the employee
receiving a completed proficiency rating and makes the immediate
supervisor responsible for the proficiency rating. We have
consistently held that proposals prescribing specific duties to
be performed by particular nonbargaining unit personnel in an
agency directly interfere with management's right to assign work
under section 7106(a)(2)(B) of the Statute by eliminating the
discretion inherent in that right. See the cases cited and the
discussion concerning this issue in Proposal 1. Thus, to the
extent that the second sentence of section 15 requires that an
affected employee's immediate supervisor conduct a dialogue with
the employee and be responsible for the employee's proficiency
rating, we find it to be outside the duty to bargain. However, as
we have noted in previous proposals, this defect is
easily cured. U.S. Army Missile Command, 27 FLRA  69, 81.

     3. Fourth Sentence

     The fourth sentence in section 15 requires that if "the
supervisor anticipates that an employee's proficiency (rating)
will be unsatisfactory or marginal (below 60) documented meetings
will be held so as to give the employee an opportunity to improve
his/her performance." This sentence in effect establishes the
ratings of "unsatisfactory" and "marginal" and further prescribes
that the numerical rating of "below 60" corresponds to the
unsatisfactory and marginal ratings. It is to the same effect as
the first sentence of section 4 of Proposal 7 in VA Medical
Center, North Chicago, 27 FLRA  714, 734-36. Proposal 7 in that
case established the ratings of "marginal" and "unsatisfactory"
and prescribed the range of numerical scores which were to
correspond to those ratings. We held that by establishing the
level of performance which would be required to achieve a
particular summary rating, the proposal violated management's
rights under section 7106(a)(2)(A) and (B) of the Statute to
direct employees and assign work. Compare VA Medical Center,
Dayton, 28 FLRA  435, 447. For these reasons, we find the first
part of the fourth sentence of section 15 is outside the duty to
bargain.

     The second part of the fourth sentence provides that an
employee will be given an opportunity to improve his/her
performance prior to receiving an unsatisfactory or marginal
rating. Similar proposals which have provided a period for an
employee to improve performance or a notice period prior to
proposed action have been held negotiable. See, for example,
Veterans Administration, 29 FLRA  515, 940-41 (Proposal 8,
section 4, subsection B); VA Medical Center, North Chicago, 27
FLRA  714, 734-36 (Proposal 7, section 4). moreover, because this
part of the fourth sentence simply sets out a procedural step
management will follow before it makes a final appraisal of an
employee's performance, it does not concern the methods and means
of performing the Agency's work. Id. at 736. Thus, the second
part of the fourth sentence is negotiable.

     Finally, the Agency contends that negotiation on the fourth
sentence of section 15 is barred by regulation for which a
compelling need exists. Because the first portion is outside the
duty to bargain, it is unnecessary for us to reach the issue of
compelling need as it applies to the first portion of this
sentence. 

     As to the second portion of the fourth sentence, the Agency
claims that a compelling need exists because its regulation is
essential to its patient care mission. However, the Agency has
not demonstrated how providing an employee with an opportunity to
improve performance would conflict with its mission. We conclude,
therefore, that the Agency's regulation does not serve as a bar
to negotiation under section 7117(a)(2) of the Statute.

     In conclusion, the first part of the fourth sentence is
nonnegotiable and the second part is within the duty to
bargain.

     4. Seventh Sentence

     The seventh sentence of section 15 provides that an element
score of six on the current proficiency form is considered
average. This sentence is to the same effect as the first portion
of the fourth sentence of this proposal. Accordingly, for the
reasons set out in our discussion of that issue, we find this
sentence to be outside the duty to bargain.

     In conclusion, we find that Proposal 18 is negotiable except
for the second sentence, the first part of the fourth sentence
and the seventh sentence.

XIX. Proposal 19

     Section 17, Management Rights

     17. Management Rights: Except as limited in other sections
of this agreement, the employer has the right to:

     a. Determine the mission, budget, organization and internal
security practices of the Medical Center;

     b. Take whatever actions may be necessary to carry out the
mission of the Medical Center in emergencies;

     c. Direct, hire, promote, reassign, retain, discipline,
suspend, demote, reduce in grade or pay, remove, terminate or
retain employees;

     d. Maintain the efficient operations of the Medical Center;


     e. Determine the number, types and grades of employees
assigned to an organizational unit, work project, or tour of
duty;

     f. Determine the technology, methods and means of performing
work at the Medical Center;

     g. Assign work to employees;

     h. Relieve employees from duty because of a lack of work or
for any other legitimate reason;

     i. Contract out;

     j. Establish or modify personnel practices and policies
after consultation with the Association in accordance with
Article 18. (Only the underlined sentences are in dispute.)

     A. Positions of the Parties

     The Agency argues that section 17 conflicts with
management's section 7106 rights because it expressly provides
that the listed management rights are limited by other sections
of the collective bargaining agreement. Consistent with its view
that Title 38 establishes an exclusive personnel system for VA
employees, the Agency objects to the requirement in subsection j
that it must consult with the Union prior to changing personnel
policies and practices. The Union's only specific statement about
section 17 is that this section recognizes management rights
retained by the Agency under the party's agreement.

     B. Analysis and Conclusion

     After considering the limited record provided by the parties
and the proposal's language, we conclude that the only effect of
section 17 is to enumerate the management rights in section 7106
of the Statute. Although it refers to limitations imposed on
management rights by other sections of the party's contract,
section 17 does not impose any restrictions on management's
rights. Thus, we find that the first disputed portion of section
17 is negotiable. We note that under section 7106(a) of the
Statute, we would find proposals which directly interfere with
management's rights outside the duty to bargain, except as
limited by section 7106(b)(2) and (3). 

     The second disputed portion of section 17, subsection j,
would require that the Agency consult with the Union prior to
establishing or modifying personnel practices and policies. In
only requiring that the Agency consult with the Union, this
proposal is similar to one we held negotiable in VA Medical
Center, Salisbury, 27 FLRA  52, 62 (1987) (Proposal 10, Paragraph
C). In that case, the the agency was required to consult with the
union prior to determining the amount of time that would be
excused in certain emergency situations. We held that the
proposal enabled the union to offer its nonbinding views on the
granting of excused absences before the agency decided the
matter. Thus, based on the reasoning in VA Medical Center,
Salisbury, we find that subsection j is within the duty to
bargain. See also VA Medical Center, North Chicago, 27 FLRA  714,
716 (Proposal 1).

     In conclusion, we find that Proposal 19 is within the duty
to bargain.

XX. Order

     The following proposals or sentences are dismissed: Proposal
1, the first, second, fifth, and seventh sentences; Proposals 2,
4, and 5; Proposal 6, the third sentence in the second paragraph
and the third paragraph; Proposal 7, that portion of the first
disputed sentence which concerns nurses working under the Baylor
Plan and the second and third disputed sentences; Proposal 8,
that portion of the first sentence which concerns full-time
temporary employees, and the second, third, and fifth sentences,,
Proposal 9, that portion which requires the NPSB to consider
nurses for promotion and special advancement; Proposal 10, the
fifth sentence in section 7.05, the fifth and sixth sentences in
subsection a, and the fifth sentence in subsection b; Proposal
11, the third and fourth sentences in section 7.07 and the second
and last sentences in section 7.10; Proposal 12, those portions
of the first and second sentences which concern nurses working
under the Baylor Plan and the third, fourth, and fifth sentences;
Proposal 13, in section 8.03, the first paragraph, subsections a,
b, c, and subsection d, the first, third, fourth, seventh,
eighth, and ninth sentences, in section 8.05 the fifth sentence;
Proposal 14, the third sentence; Proposal 16, the second disputed
sentence; Proposal 17, section 14.01 B.; Proposal 18, the second
sentence, the first part of the fourth sentence, and the seventh
sentence.

     The Agency shall, upon request or as otherwise agreed to by
the parties, bargain on the following proposals or sections:
Proposal 1, the third, fourth, and sixth sentences; Proposal 3;
Proposal 6, the first paragraph and the first and
second sentences of the second paragraph; Proposal 7, the first
sentence except to the extent that the first disputed sentence
concerns nurses working under the Baylor Plan; Proposal 8, the
first sentence except to the extent it concerns full-time
temporary employees and the fourth sentence; Proposal 9, except
for the requirement that the NPSB consider nurses for promotion
and special advancement; Proposal 10, except for the fifth
sentence in section 7.05, the fifth and sixth sentences of
subsection a, and the fifth sentence of subsection b; Proposal
11, except for the third and fourth sentences of section 7.07 and
the second and last sentences of section 7.10; Proposal 12, the
first and second sentences except to the extent that they concern
nurses working under the Baylor Plan; Proposal 13, in section
8.03, the second, fifth, and sixth sentences of subsection d, and
in section 8.05, except the fifth sentence, and section 8.07;
Proposal 14, except the third sentence; Proposal 15; Proposal 16,
the first disputed sentence; Proposal 17, except for 14.01 B.;
Proposal 18, except for the second sentence, the first part of
the fourth sentence, and the seventh sentence; and Proposal 19.
3

     Issued, Washington, D.C., December 31, 1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY

Separate Opinion of Chairman Calhoun on Proposals 1 and 6

     The first, second, and seventh sentences in Proposal 1
concern the assignment of Union officials to specific shifts. I
agree with Member McKee that these sentences are nonnegotiable
because they conflict with the Agency's right to assign work.
Unlike Member McKee, however, I do not reach this conclusion
solely because these sentences preclude the Agency from
considering the specialized skills and experience of unit
employees in relation to its patient care needs. Rather,
consistent with my views in previous cases, I believe that
proposals which require the permanent assignment of particular
individuals to particular shifts--as opposed to proposals which
establish general procedures to assign employees as a whole to
various shifts--conflict with the right to assign work. See my
opinions in National Union of Hospital and Health Care Employees,
District 1199 and Veterans Administration Medical Center, Dayton,
Ohio, 28 FLRA  435, 486 (1987), petition for review filed sub
nom. Veterans Administration Medical Center v. FLRA,  No. 87-1521
(D.C. Cir. Sept. 28, 1987); National Association of Government
Employees, Local R1-109, AFL - CIO and Veterans Administration
Medical Center, Newington, Connecticut, 26 FLRA  532, 540 (1987);
International Plate Printers, Die Stampers and Engravers Union of
North America, AFL - CIO, Local 2 and Department of the Treasury,
Bureau of Engraving and Printing, Washington, D.C., 25 FLRA  113,
153 (1987). Accordingly, my conclusion in this case is not
dependent on the nature of the work performed by the unit
employees.

     I also agree that the Union's petition for review of
sentence 3 in paragraph 2, and the second clause of sentence 2 in
paragraph 3 of Proposal 6 should be dismissed. In particular, I
agree with Member McKee that the record in this case does not
provide a basis on which to determine whether and to what extent
these portions of the proposal are negotiable. Specifically,
neither party addresses the extent if any to which graduate nurse
technicians are currently eligible for health or retirement
benefits, or life insurance. I am unable, therefore, to determine
whether the Union's proposal that these technicians "are not
eligible" for these benefits is consistent with law. Similarly,
the record contains no information concerning the benefits
available to registered nurses. As a result, I am unable to
determine whether the Union's proposal that these nurses "will be
eligible" for health benefits and life insurance, and "will be
covered under the retirement system for which they are eligible"
is negotiable. I note, however, that if the proposal simply
recognizes existing benefits (or lack thereof for nurse
technicians), I would find it to be negotiable. On the other
hand, if the proposal contemplates negotiation of these benefits,
I would find it to be non-negotiable. See my opinions in American
Federation of Government Employees, AFL - CIO, Local 1897 and
Department of the Air Force, Eglin Air Force Base, Florida, 24
FLRA  377, 390 (1986); American Federation of Government
Employees, AFL - CIO, National Council of VA Locals and Veterans
Administration, 29 FLRA  515, 559 (1987), petition for review
filed sub nom. Veterans Administration v. FLRA  No. 87-1727 (D.C.
Cir. Nov. 27, 1987).

     Issued, Washington, D.C., December 31, 1987.

     Jerry L. Calhoun, Chairman

     FEDERAL LABOR RELATIONS AUTHORITY 

Separate Opinion of Member McKee on Proposal 1 and Part of
Proposal 6

     I agree that the first, second, and seventh sentences in
Proposal 1 are nonnegotiable; however, I reach this conclusion
only because the proposal precludes management from considering
the skills and experience of its total nursing staff in relation
to patient care needs. It compels the Agency to assign the
Union's Chairperson and Co - Chairperson, or their substitutes,
to a day shift Monday through Friday. In addition, if these
individuals work in the same unit, the proposal would obligate
management to reassign one of them to another unit. The Agency
states, without contravention by the Union, that the tours of
duty to which nurses are assigned do not involve the same work.
Furthermore, the VA claims that certain specialized experience is
needed on the night shift. To meet these needs, the Agency
asserts that it must be able to consider a nurse's experience,
skill, judgment, and alertness in making work assignments.
However, under Proposal 1, the Agency may not evaluate two
specifically designated nurses prior to making shift assignments.
Thus, Proposal 1 conflicts with the requirement that management
assign nurses without restriction to fulfill its mission of
providing quality patient care.

     I note that Proposal 1 differs from Proposal 3 in VA Medical
Center, Dayton, 28 FLRA  435, 482 which I found negotiable. In
this case, unlike VA Medical Center, Dayton, it is undisputed
that nurses' duties are not the same on all shifts. Moreover,
Proposal 3 in that case did not specifically designate which
union representative would be assigned to a permanent day shift.
Rather, one union representative from among those elected by the
union was to be assigned to the day shift in each of three
locations. In this case, management is obligated to assign on a
permanent basis specifically designated individuals to the day
shift. Unlike Proposal 3 in Dayton, management is unable to
consider whether the skills and experience of two particular
individuals on its nursing staff might best be utilized to
fulfill different duties on the evening or night shifts and in
the same unit. Therefore, I conclude that the first, second, and
seventh sentences of Proposal 1 interfere with the Agency's right
to assign work under section 7106(a)(2)(B).

     In view of my conclusion concerning the first, second, and
seventh sentences of Proposal 1, I find it unnecessary to reach
the Agency's contention that there is a compelling need for
certain VA regulations which bar negotiations on these sentences
in section 3.06. 

     Concerning Proposal 6, I agree that the second paragraph,
third sentence and the third paragraph, second part of the first
sentence must be dismissed. The Union has neither explained its
intent in including these statements in the collective bargaining
agreement nor offered any information to support their
negotiability. Furthermore, the Agency does not explain its
assertion that the eligibility proposals interfere with
management rights. Statement of Position at 59. Neither party has
provided any information concerning statutes or regulations which
relate to life insurance, health insurance and retirement
coverage for graduate nurse technicians and registered nurses.
Thus, it is unclear whether these sentences constitute an attempt
to bargain on life insurance, health insurance, and retirement
coverage for these employees or merely are intended to restate
the current legal and regulatory provisions governing such
coverage. See, for example, 38 U.S.C. 4109(a) (1982) (setting
forth retirement system coverage for Title 38 employees).

     It is well-established that the parties bear the burden of
creating a factual record sufficient for the Authority to make a
negotiability determination. They are also responsible for
directing the Authority's attention to the statutes and
regulations relating to an agency's duty to bargain. National
Federation of Federal Employees, Local 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 (1984). See also Veterans
Administration, 29 FLRA  515, 525-26 (Proposal 4, sections 1, 2,
4, and 6). As the Union has not provided any information
concerning nurses' eligibility for health benefits and life
insurance, the record is insufficient for the Authority to make a
negotiability determination. Therefore, the petition for review
as to the third sentence in the second paragraph of Proposal 6
and the second part of the first sentence in the third paragraph
must be dismissed.

     Issued, Washington, D.C., December 31. 1987.

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY 

APPENDIX

     (We have numbered some of the sentences in the following
proposals for the reader's convenience.)

     Proposal 2

     Section 4.03: The employer agrees to grant a reasonable
amount of authorized absence with a minimum of two days per year
to those nurses who request to attend workshops, seminars,
educational lectures and other continuing educational programs.
Approval of requests for authorized absence will be contingent
upon the relevancy of the educational offerings to the
administrative and patient care needs of Nursing Service,
identified service deficiencies and the identification by the
employee of an appropriate offering. The granting of authorized
absence will be done in such a manner as to insure as equitable a
distribution of time as administratively possible. Authorized
absence will be granted in accordance with current VA regulations
and Nursing Service instructions for implementation. The
Association, upon written request, will be granted access to the
records concerning the granting and denial and distribution of
authorized time to employees within the unit of recognition.

     Proposal 4

     Section 4.05: The immediate supervisor will assign employees
to attend mandatory sessions based upon patient care needs If a
nurse is unable to attend a scheduled mandatory training session
due to patient care needs, the nurse will be assigned to another
session by the immediate supervisor. The employee will be paid in
accordance with pay laws for the time spent in a training
session. (Only the underscored sentences are in dispute.)

     Proposal 5

     Section 4.06: Nursing Service will provide newly appointed
registered nurses with an organized orientation program. The
orientation will include classroom instruction, on-the-unit
orientation, and individualized orientation sessions based upon
Nursing Service's evaluation of the employee's past experience,
both within and outside of the VA and upon the identified needs
of the individual. Normally, the orientation period will be four
weeks. Nursing Service will also provide employees whose
area of practice is significantly changed an individualized
orientation program based upon Nursing Service's evaluation of
the employee's past experience and education. In designing the
orientation program for new employees and for employees whose
area of practice has changed significantly, Nursing Service will
consider the employee's assessment of his or her individual
needs.

     Proposal 6

     Section 7.01. Appointment of Position: (1) Appointments at
this Medical Center will be made in writing. (2) The appointment
letter will be signed by the Personnel Officer or his designee.
(3) The letter of appointment will indicate whether the initial
appointment is being made on a permanent basis or whether it is
being made on a temporary basis pending action by the Nursing
Professional Standards Board. (4) The appointment letter will
include the starting salary and a statement concerning
eligibility for health benefits and insurance. (5) Nursing
Service will give each nurse a copy of any Board Action report
after it is signed by the Medical Center Director.

     Appointment to Position: Graduate Nurse Technician (1)
Individuals appointed as Graduate Nurse Technicians will be
appointed on a temporary basis for no more than one year pending
active, current registration as a graduate professional nurse in
a state, territory, or commonwealth of the United States or in
the District of Columbia and pending action by the Nurse
Professional Standards Board as to whether the individual should
be retained. (2) Graduate Nurse Technicians will be considered
for conversion within a reasonable period of time after
presenting evidence of obtaining a full unrestricted license. (3)
Graduate Nurse Technicians are not eligible for health benefits,
life insurance, or Civil Service Retirement System coverage.

     Appointment to Position: Registered Nurse (1) Registered
Nurses will be appointed on a temporary basis for a year and a
day pending action by the Nurse Professional Standards Board, but
will be eligible for health benefits and life insurance, and will
be covered under the Retirement System for which they are
eligible. (2) The Nurse Professional Standards Board will
consider Registered Nurses for permanent appointment and
determine the appropriate grade level upon receipt of any letters
of reference and college transcripts and any other supporting
documents the Board feels are appropriate for this determination.


     Proposal 9

     Section 7.04: Promotions and Special Advancements: The
employer agrees to provide advancement opportunities for
employees predicated upon the recognition of quality of nursing
service rendered, additional professional experience and
professional attainment. The advancement opportunities will be:

     a. A promotion which is defined as an advancement to a
higher grade in recognition of substantially greater service to
the patient and the Veterans Administration.

     b. Special advancement for achievement.

     c. Special advancement for performance.

     PROMOTIONS: Full and part-time employees who meet the
time-in-grade requirements for promotion shall be considered
periodically for promotion by the Nurse Professional Standards
(sic) based upon the individual fully meeting the qualification
requirements established by the Veterans Administration.

     SPECIAL ADVANCEMENTS: Based upon the recommendation of the
appropriate supervisor, the Nurse Professional Standards Board
will meet to consider nurses for special advancement for
performance or achievement. The criteria used by the Nurse
Professional Standards Board to determine whether a person will
be recommended for a special advancement will include:

     1. Supervisory evaluations that clearly illustrate the
significant contribution the candidate has made directly or
indirectly to the services for the patient.

     2. There has been consistent and progressive professional
and/or administrative growth.

     3. There has been shown increasing professional
responsibility for patient welfare.

     4. There has been displayed the ability to communicate and
work effectively with others.

     5. There is demonstrated potential for further development
and professional attainment. 

     6. Their performance must have contributed sufficiently to
VA nursing to establish increased value to the VA and must show
evidence of continuously greater contributions to the service.

     Registered Nurses who publish articles related to Nursing
Practice in a professional journal or who receive appropriate
national certification in their major area of clinical or
administrative assignment will be considered by the Nurse
Professional Standards Board for a Special Advancement for
Achievement upon being notified by the nurse that the article has
been published and that the certification has been received. The
nurse must have a current proficiency which indicates high level
performance.

     Proposal 10

     Section 7.05. Vacancy Announcements: (1) The Association
recognizes the employer's right to fill vacant positions by
promotion, reassignment, appointment, transfer, or any other
method consistent with VA regulations and procedures. (2) The
employer has the right to select the method to be used and to
change methods at any time during the recruitment process. (3)
The employer may also use a number of methods concurrently. (4)
The employer does, however, recognize that many of the Medical
Center's current employees possess the skills necessary to
perform the duties of many vacant positions and the desire to
fully utilize those skills. (5) Many employees also have the
potential for advancement and will be offered the opportunity to
develop nursing skills by performing a variety of progressively
more responsible assignments. In order to effectively utilize the
skills of current employees and to develop employees for future
vacancies, Nursing Service will utilize the following internal
recruitment methods to the maximum extent possible.

     a. Staff Nurse Positions

     (1) A list of current openings for staff nurses will be
posted on the Nursing Service Bulletin Board. (2) The list will
be updated at least once a month. (3) Employees may submit
requests in writing for transfer to another clinical unit. (4)
Qualified currently employed nurses who have submitted a request
will be considered for the current opening. (5) The deciding
official of the employee's desired assignment will notify the
employee in writing of the decision. 

     (6) Upon request, the deciding official of the desired
clinical area will meet with any non-selected employee and
discuss the decision.

     b. Other Positions of Greater Responsibility

     (1) Nursing Service will continue to post vacancy
announcements for positions of greater responsibility. (2) The
announcement will be posted on the bulletin boards used by
Nursing Service for 12 Calendar days. Interested individuals may
apply in writing to the Chief, Nursing Service. (3) The Chief
Nurse or Designee will consider the applications and notify all
applicants of the individual selected. (4) Nursing Service will
give the Association a copy of each vacancy announcement for any
position in the unit of recognition and notify the Association
when any vacancy is filled. (5) Difficulty in hiring a
replacement will not be a factor in selecting an applicant for a
position. It may be necessary for the selected employee to remain
in his or her current assignment until a replacement is found and
oriented.

     Proposal 11

     Section 7.07. Corrective Actions - General: (1) Employees
are expected to provide willing and full compliance with the
employer's rules, policies and procedures, with supervisory
instructions and commonly accepted standards of personal and
professional conduct. (2) On occasion, an employee may fail to
comply with established rules, policies and procedures, or
supervisory instructions; or may commit acts of personal or
professional misconduct; or acts of professional ineptitude or
inefficiency. (3) Prior to deciding what corrective action is a
proper response to the incident or act, the supervisor will
consider the following factors:

     a. The degree of harm or interference that the act has
caused;

     b. The seriousness of the act in terms of the employee's
position and assignment in Nursing Service;

     c. Except in unusual cases which warrant severe penalties,
whether the penalty is fair, equitable and no more severe than
that which sincere judgment indicates is required to correct the
attitude or conduct of the employee or to correct the situation;


     d. Any past corrective action;

     e. Any mitigating circumstances.

     (4) After considering the factors cited above, the
supervisor must consider whether to initiate an oral or written
counseling or to recommend disciplinary action.

     Section 7.10. Corrective Actions - Discipline: (1)
Disciplinary Actions are formal letters of admonishment,
reprimand, suspension, demotion or removal. (2) The Table of
Penalties contained in DM&S Supplement MP-5, Part II, Chapter 8,
(see appendix) will be used as a guide in the administration of
disciplinary actions. If any supervisor or management official,
in advance or during the questioning of a bargaining unit
employee, contemplates the likelihood of disciplinary action, the
supervisor or management official will inform the employee of the
right to association representation prior to or before further
questioning of the employee. This is not intended to interfere
with the routine questions supervisors ask employees in the
normal course of a workday. If the employee requests that an
Association representative be present when a VA representative
questions the employee, the VA representative will stop the
meeting and give the employee an opportunity to call an
Association representative. The VA representative will also
inform the employee of the time for the rescheduled meeting. If
the Association is unable to provide the employee with
representation for the rescheduled meeting due to the
unavailability of all the local representatives, the Association
say request that the meeting be rescheduled. The rescheduled
meeting will be held at a mutually agreeable time within three
(3) calendar days after the time initially scheduled. If the
supervisor or management official who has or is contemplating
disciplinary action fails to inform the employee of the right to
representation, the information obtained by that supervisor or
management official in that meeting will be expunged from the
case file. The Association and the employer both agree that it is
imperative to conduct the investigatory meeting as soon as
possible after the incident to obtain accurate statements from
the parties involved and of any witnesses. The Association
recognizes that in cases involving a potential threat to
patients, visitors, employees and/or property, it may be
necessary for the employer to take non-disciplinary action to
protect patients, visitors, employees and property. Disciplinary
actions which fall within the scope of the negotiated grievance
procedure will be processed in accordance with that procedure.
Nursing Service will furnish the Association with a copy of its
internal procedures for processing disciplinary actions in  accordance with Section 18 of this agreement. The Association
will be given a copy of a disciplinary action and the related
supporting documentation after the Association presents the
Personnel Officer with a written release signed by the employee
involved. Disciplinary actions will be taken in a reasonably
timely manner. Timeliness will be based upon the circumstances
and complexity of each individual case. Except in cases where a
VA official organizationally above the service chief level
requests that an administrative investigation be conducted, or
unless an investigation is conducted concerning an alleged
criminal or civil offense, the employer will initiate
disciplinary action against an employee no later than 30 
calendar days following the employer's discovery that the
employee committed an act which may warrant disciplinary action.


TABLE OF DISCIPLINARY PENALTIES

TYPES OF OFFENSES         FIRST         SECOND        THIRD
                       INFRACTION     INFRACTION    INFRACTION

Attendance

1. Unauthorized        Admonishment   Admonishment   Reprimand
   Absence,                           or reprimand   or
   Failure to                                        discharge

e   report for work
   on the employee's
   scheduled
   day of work,
   without proper
   approval, or
   leaving work
   without authority
   during working
   hours.

Performance of Duty

1. Neglect of Duty.    Admonishment   Reprimand      Discharge
   Willful idleness,
   or discharge
   carelessness in
   rendering
   professional
   services, etc.

2. Violations of       Admonishment   Reprimand      Discharge
   Instructions.                    or discharge
   Deliberate
   failure or
   unreasonable
   delay in
   carrying out.

3. Abuse of patients    Discharge     --------         --------



Personal Conduct

1. Disorderly Conduct.     Admonishment  Reprimand   Discharge
   aiding or abetting      or Reprimand
   a fray, quarrel or
   disturbance of a
   contentious nature.

2. Destruction of          Reprimand     Discharge   -------
   Government Records.

3. Narcotic Drugs -        Discharge     -------     -------
   sale or unauthorized
   use of.

4. Intoxication.           Reprimand     Discharge   --------
   Under influence
   of intoxicating
   beverages while
   on the job.

5. Insubordination.        Reprimand     Discharge   --------
   Intentional
   disobedience;
   disrespectful,
   insulting, or
   abusive acts or
   language toward any
   superior authority.

6. Theft. Actual or        Discharge     ---------   ---------
   attempted theft
   of Government
   property.

7. Falsehood.              Reprimand     Discharge   ---------
   Intentional
   misstatement
   or concealment of
   material fact in
   connection with
   employment or any
   investigation,
   inquiry or other
   proceedings.

 

     Proposal 13

     Section 8.03. Work Schedules: (1) On the Friday before pay
day, supervisors will post an additional pay period work
schedule, so that nurses will know what their scheduled tour of
duty will be three to five weeks ahead of time. (2) Supervisors
in all units will establish work schedules for full and part-time
employees which comply with the following:

     a. (1) Except for those nurses who are assigned Monday
through Friday tours of duty, employees will normally be
scheduled two weekends off within a five week period. (2)
Supervisors will make a reasonable effort within the demands of
patient care needs to give each employee as many weekends off as
possible.

     b. If a nurse is scheduled to work on the Sunday and
Saturday of an administrative workweek, the nurse will be given
two consecutive non-duty days during the week.

     c. (1) Each supervisor will make a reasonable effort to
allow a sufficient amount of time between the completion of a
scheduled workday so that the employee will have time to go home
to obtain an adequate amount of rest to be able to return to
work. (sic) (2) Normally, the employee will be given at least
fifteen and a half (15-1/2) hours off between the completion of a
scheduled workday and the beginning of the next scheduled
workday.

     d. (1) Each supervisor will make a reasonable effort to
minimize rotation to the least amount necessary to meet patient
care needs. (2) Rotation will be distributed on an equitable
basis among the nurses who are not assigned to a permanent shift
in accordance with Article 8.05. (3) During a four week block,
nurses subject to rotation will be assigned to evening relief or
night relief, but not both. (4) During a four week block, no
nurses will be required to rotate from the day to evening shift
or the day to night shift on more than three separate occasions.
(5) The employee and supervisor say mutually agree to exceed
these restrictions. (6) Each occasion of rotation to an evening
or night shift may involve working that shift for more than one
consecutive workday. (7) Each supervisor will schedule sufficient
time off between rotation periods to allow an adequate amount of
time for rest to accommodate to the new shift. (8) Normally, the
employee will be given 23-1/2 hours off between shifts. 


     (9) However, a nurse will be granted up to 47-1/2 hours off
if requested.

     Section 8.05. Permanent Shift Assignments: (1) Employees may
request evening and night tour of duty as permanent assignments.
(2) Such requests may be honored as long as the nurse's
performance and dependability are satisfactory, requests do not
exceed the needs, and the skills of the nurses are commensurate
with the assignment. (3) Employees assigned to the evening and
night shifts will not rotate. (4) It may be necessary, however,
to occasionally assign them to work a different shift (e.g. for
educational purposes.) (5) If the employee's performance and/or
dependability are questionable, the supervisor will discuss the
problem with the employee. (6) The employee may be told that if
the employee's performance and/or dependability do not improve,
it may be necessary to reassign the employee to another shift.
Except in situations where the performance and/or dependability
could adversely affect patient care or safety, employees will be
given an opportunity to correct their performance and/or
dependability prior to reassignment to another shift. Nurses who
are not assigned to a permanent evening or night shift will
rotate between shifts in accordance with article 8.03.

     Section 8.07. Exceptions: Temporary exceptions to Sections
8.03 or 8.05 may be requested by individual nurses. The request
must be in writing to the immediate supervisor. Approval of such
request shall be consistent with patient care needs and whether
or not the change affects the rights of other nurses assigned to
the work unit and whether the request is consistent with the
provisions of this contract.

     Proposal 15

     Section 10.01. Holidays: The employer agrees to schedule
holidays off on an equitable basis and to consider the employee's
preference in scheduling holidays off. The nine federal holidays
currently established are:

      New Year's Day, January 1st
      Washington's Birthday, the 3rd Monday in February
      Memorial Day, the last Monday in May
      Independence Day, July 4th
      Labor Day, the 1st Monday in September
      Columbus Day, the 2nd Monday in October
      Veterans Day, November 11th
      Thanksgiving Day, the 4th Thursday in November
      Christmas Day, December 25th

 

     Martin Luther King's Birthday will be added as a Federal
holiday in 1986

     Section 10.05. Rest Periods: A rest period of fifteen
minutes will be scheduled for each nurse during each four hour
period of work including overtime. Upon the employees request,
supervisors nay schedule the rest periods together or in
conjunction with a scheduled meal period, if one is provided.
Employees are required to remain on the medical center grounds
during any rest period. Supervisors may not schedule rest periods
during the first or last half hour of a scheduled workday.

     Proposal 17

     Section 14. Grievances:

     14.01 Scope:

     A. Except for the exclusions specifically listed below, this
negotiated grievance procedure is the exclusive grievance
procedure available to the employer, the Association, and the
employees in the unit of recognition for any complaint:

     1. by an employee in the unit concerning any matter relating
to the employment of the employee;

     2. by the Association concerning any matter relating to the
employment of any employee in the unit; or

     3. by an employee, the Association or the employer
concerning:

     a. the interpretation, application or administration of this
contract;

     b. any claimed violation, misinterpretation, or
misapplication of any law, rule, or regulation affecting
conditions of employment:

     B. This procedure shall not apply to any grievance
concerning:

     1. any claimed violation relating to prohibited political
activities;

     2. retirement, life insurance, or health insurance; 


     3. a suspension or removal for national security reasons;

     4. any examination, certification, or appointment;

     5. any action taken based on the recommendation of a
disciplinary board;

     6. any action taken by an authority organizationally above
the Medial Center Director;

     7. the separation of a temporary employee;

     8. the separation of an employee serving a probationary
period;

     9. Except for cases excluded by 14.01B8, any decision based
on the recommendations of a Nurse Professional Standards Board
unless the decision is contended to be arbitrary, capricious,
discriminatory or involving personal bias. If the arbitrator
finds that there is a reasonable basis to believe that the
decision is arbitrary, capricious, discriminatory or based on
personal bias, the arbitrator will examine the merits of the
grievance. The Nurse Professional Standards Board will give each
nurse a copy of the Board Action report after it is signed by the
Medical Center Director.

     10. the employer's right to select an individual to fill a
vacant position;

     11. the establishment of performance requirements for
nursing duties and satisfactory performance evaluations which may
be addressed under article 15.

     14.02 General: The Association has the right in its own
behalf or in behalf of any employee in the unit of recognition to
present and process a grievance under this article. In addition,
any employee within the unit of recognition has the right to
present and process a grievance with or without Association
representation provided that the deciding official gives the
Association the opportunity to be present during any meeting to
present the grievance and a copy of any written decision. Only
the Association may represent employees under this procedure.
Only the Employer or the Association may invoke binding
arbitration. The grievant may terminate a grievance at any time
by notifying the Employer and the Association. The Employer and
the Association agree that grievances should be nettled
at the lowest possible level. In order to achieve this goal, the
Employer and the Association agree to facilitate and encourage
amicable settlements of disputes and to cooperate in reaching
viable solutions which contribute to the effective and efficient
conduct of public business.

     14.03 Procedures - General:

     a. Except for the procedural exceptions listed in 14.01b of
this article, all grievances will be processed through the
following four steps:

     Step 1: Any employee and/or the Association may present a
grievance concerning a particular act or occurrence within
fifteen (15) calendar days of the date of the act or occurrence
or within fifteen (15) calendar days after the employee or the
Association became aware of the act or occurrence. The grievance
will be presented either orally or in writing to the immediate
supervisor of the employee involved. The supervisor will provide
the employee and/or the Association an answer either orally or in
writing within eight (8) calendar days following receipt of the
grievance.

     Step 2: The employee or the Association may file the
grievance in writingto the Chief Nursing Service within ten (10)
calendar days after he answers in Step 1. The written grievance
must specifically state the issue being grieved, why the employee
and/or the Association believe that the issue is grievable, and
the corrective action desired. The Chief, Nursing Service will
send the employee and/or the Association a written answer within
ten (10) calendar days after receipt of the written grievance.

     Step 3: The employee or Association may file the written
grievance within ten (10) calendar days after receipt of the
answer in Stop 2. The written grievance must restate the issue
being grieved, why the employee and/or the Association believes
that the issue is grievable, and the corrective action desired.
The grievance will be sent to the Chief of Staff who will send
the employee and/or the Association a written answer within
twelve (12) calendar days following receipt of the written
grievance. If the written grievance contains an issue which was
not presented in Step 2, the COS will return the grievance to the
employee and/or the Association so that the grievance 
may be reprocessed through Step 2. New evidence clarifying an
issue already raised under the grievance procedure will be
accepted at any step of the procedure provided that the evidence
does not raise an issue not presented under Step 2.

     Step 4: The employee and/or the Association may file the
written grievance to the Medical Center Director or his/her
designee within ten (10) calendar days after receipt of the
answer in Step 3. The written grievance must re-state the issue
being grieved, why the employee and/or the Association believes
the issue is grievable, and the corrective action desired. The
Medical Center Director or his designee will send the employee
and/or the Association a written answer within twelve (12)
calendar days following receipt of the written grievance. If the
written grievance contains an issue which was not presented in
Step 2, or Step 3, the Medical Center Director will return the
grievance to the employee and/or the Association so that the
grievance may be reprocessed through Steps 2 and 3, or both 2 and
3 .

     b. Procedural Exceptions: In order to process grievances as
quickly as possible, grievances arising over the following two
issues will not be processed through all four (4) steps.

     1. Disciplinary Actions: If the Chief, Nursing Service signs
a disciplinary action, the grievance will be filed with the Chief
of Staff. If the Director signs a disciplinary action, the
grievance will go to arbitration. All grievances over
disciplinary actions must be filed within fifteen (15) calendar
days after the employee received the disciplinary action.

     2. Contract Violations and Other Issues Involving More than
One Employee: Grievances involving employees under more than one
supervisor will initially be filed with the Chief, Nursing
Service.

     14.04 Discrimination Complaints: An aggrieved employee
affected by discrimination may at his/her option raise the matter
under the statutory procedure or the negotiated procedure, but
not both. Under this negotiated procedure, the Association may
elect to invoke arbitration for resolution of the grievance. For
the purpose of this section and  pursuant of section
7121(d) of PL 94-454, an employee shall be deemed to have
exercised his/her option under this section only when the
employee timely initiates a formal discrimination complaint under
the statutory procedure or files a timely grievance in accordance
with Step 1 of the grievance procedure. Selection of the
negotiated procedure in no manner prejudices the right of an
aggrieved employee to request the Merit Systems Protection Board
to review the final decision pursuant to section 7702 of the Act
in the case of any personal action that could have been appealed
to the Board, or where applicable to request the Equal Employment
Opportunity Commission to review the final decision in any other
matter involving a complaint of discrimination of the type
prohibited by any law administered by the Equal Employment
Opportunity Commission.

     14.05 Binding Arbitration: Should the Employer and the
Association fail to resolve the issue, either Party may invoke
binding arbitration within fifteen (15) calendar days after the
Medical Center Director issues a decision. The Party invoking
arbitration will request that the Federal Mediation and
Conciliation Service furnish a list of seven (7) names from which
the arbitrator will be selected. Fifteen (15) calendar days after
the list of arbitrators is received, the Personnel Officer and
the Association, will meet to select an arbitrator. A flip of a
coin will determine which Party strikes the first name. Each
Party will strike one alternate name from the list of arbitrators
until there is only one name remaining. The remaining name shall
be the arbitrator for the issue. Within seven (7) calendar days
after the selection of the arbitrator, the Personnel Officer will
notify the Federal Mediation and Conciliation Service of the name
of the arbitrator selected. If the Association and the Personnel
Officer agree on a joint submission of the issue for arbitration
they then will jointly contact the arbitrator to arrange for a
hearing. If the Association and the Personnel Officer fail to
agree on a joint submission of the issue, each Party will submit
a separate submission so that the arbitrator may determine the
issue or issues for a decision. The arbitration hearing will be
conducted at the Bronx VA Medical Center during the day hours on
a date established at the convenience of the arbitrator. Both the
Employer and the Association will be permitted to be represented
at the hearing, to present documentary evidence, and to question
witnesses by the arbitrator shall be be excused from duty without
charge to leave if the employee is on duty status for the period
during which the employee will provide a statement at the
arbitration hearing. (sic) The Employer and Association agree
that it may be necessary to change the tour of duty of an
employee  called as a witness by an arbitrator. (This
disputed sentence was not underscored in the Petition for
Review.) it will be the responsibility of the Party requesting a
witness to produce the individual if that person is no longer an
employee of this Medical Center, is on approved leave, or is
absent without leave. The arbitrator will be requested to issue
his decision as quickly as possible. When the grievance involves
the interpretation of application of regulation issued by an
agency other than the Veterans Administration (e.g., OSHA,
Comptroller General, etc.), an interpretation will be obtained
from that authority concerning the effect of that regulation in
the specific instance. The arbitrator, in making his decision,
will be bound by that interpretation. The arbitrator's decision
must be consistent with applicable laws, government-wide rules
and regulations, VA regulations for which a compelling need
exists, and any higher level negotiated agreement. The arbitrator
shall not have the authority to substitute personal judgment for
that of the Employer and shall be limited to deciding whether the
facts established by either party justify the action to be within
the reasonable exercise for (sic) the rights of the Association
or of the Employer. The arbitrator will render a decision on each
case based solely on its merit and on the specific contract
language and will confine the ruling to approving or disapproving
the issue. Any dispute over the application or interpretation of
the arbitrator's award shall either be returned to the arbitrator
for settlement or shall be appealed to the Federal Labor
Relations Authority if either Party believes that the award is
contrary to any law, rule or regulation or on any other grounds
similar to those applied by Federal Courts in private sector
Labor/Management relations.

     14.06 Time Limits: The time limits specified for resolving
grievances at any step may be extended only by mutual agreement
of the parties involved. The reprocessing of a grievance through
Steps 2, 3 or both 2 and 3, due to the introduction of a new
issue which is within the scope of the grievance procedure and
which is raised in a timely manner, will automatically extend the
time limits to allow for processing of the new issue through
Steps 2, 3 or both 2 and 3. Failure on the part of the Employer
to observe the state (sic) or extended time limits for any step
in the grievance procedure, will entitle the grievant to advance
the grievance to the next step. Failure by the grievant to
observe the stated or extended time limits will constitute a
withdrawal of the grievance.

     14.07 Cost of Arbitration: The cost of arbitration will be
borne equally by the Employer and the Association. 

     Proposal 18

     Section 15: (1) The VAs Proficiency Rating System will be
used to provide feedback to employees concerning their expected
and achieved levels of performance and to provide Management with
evidence of the employee's potential for promotions,
advancements, assignments and any other employment decision based
on work performance. (2) Dialogue will take place between the
employee and the immediate supervisor, who is responsible for the
proficiency, prior to the employee being presented with a
completed proficiency. (3) An employee will receive his/her
proficiency within fifteen (15) calendar days of the employee's
anniversary date. (4) If the supervisor anticipates that an
employee's proficiency will be unsatisfactory or marginal (below
60) documented meetings will be held so as to give the employee
an opportunity to improve his/her performance. (5) The narrative
portion of the report should briefly describe any especially
important aspects of the employee's performance in accordance
with grade criteria and assignment and objectively identify the
employee's strong qualities and weak points. (6) The narrative
should contain specific facts and related actions to support any
numerical rating which would indicate that the employee is below
average in a specific element. (7) An element score of six (6) on
the current proficiency form is considered average. Nursing
Service will provide a copy of the completed proficiency to the
employee at the time the supervisor meets with the employee to
discuss the rating. If the employee disagrees with any of the
point values assigned to a specific element or with a statement
in the narrative portion of the evaluation, the employee may
submit a written statement to the Chief, Nursing Service. This
statement shall be made part of the permanent record. The
employee's statement should specifically identify the point
values or the narrative statement with which the employee
disagrees, and should provide verifiable specifics which
contradict the specific numerical elements or comments made by
the rater or reviewer. After reviewing the employee's statement,
the rater of the element or the individual who wrote the
narrative entry in question may modify the proficiency if
appropriate. The Chief, Nursing service may indicate on the
proficiency that the original report did not take into
consideration the facts as presented by the employee; or the
Chief, Nursing Service may forward the proficiency and the
employee's statement to Personnel Service for inclusion in the
employee's Official Personnel Folder. If the employee submits a
statement and if no change is made on the proficiency report
itself, the proficiency report will be stamped by Nursing Service
to indicate that a rebuttal statement was submitted and is
attached. Nursing Service will provide a  copy of the
completed proficiency to the employee. When VA Central Office
issues a revised proficiency form, the Employer and the
Association will meet to discuss the implementation of the new
form. 

FOOTNOTES

     Footnote 1 Our separate concurring opinions on Proposal 1
and   portions of Proposal 6 immediately follow this decision.

     Footnote 2 The Agency withdrew its allegation of
nonnegotiability   as to Article 16. It is, therefore, not before
us in this proceeding.

     Footnote 3 In finding these matters to be within the duty to
bargain, we make no judgment as to their respective merits.