United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of

DEPARTMENT OF HEALTH AND HUMAN

SERVICES

FEDERAL EMPLOYEE OCCUPATIONAL

HEALTH SERVICE

REGION III

PHILADELPHIA, PENNSYLVANIA

and

LOCAL 2707, AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES, AFL-CIO

Case No. 90 FSIP 14

DECISION AND ORDER

Local 2707, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of Health and Human Services, Federal Employee Occupational Health Service, Region III, Philadelphia, Pennsylvania (Employer).

After investigation of the request for assistance, the Panel directed the parties to meet informally with Staff Associate Joseph Schimansky for the purpose of resolving the issues at impasse. The parties were advised that if no settlement were reached, Mr. Schimansky would report to the Panel on the status of the dispute and his recommendations for resolving the issues. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse including the issuance of a binding decision. Mr. Schimansky met with the parties on February 6, 1990, in Washington, D.C., but the issues at impasse were not resolved. Mr. Schimansky reported to the Panel based on the record developed by the parties, including their post-conference written submissions. The Panel has now considered the entire record.⁽¹⁾

BACKGROUND

The Employer's mission is to provide health care to Federal employees in various Government offices. The current dispute involves a bargaining unit of 22 Federal nurses who work at 53 health-care units located in the Washington, D.C., metropolitan area. The parties negotiated a collective-bargaining agreement in 1976, which the Union asserts remains in effect, while the Employer states that because the bargaining unit was recertified in 1986 as a result of a reorganization, the parties must negotiate an initial collective-bargaining agreement.

ISSUES AT IMPASSE

This dispute arose during negotiations following the Employer's decision to reassign five bargaining-unit employees currently working as "charge nurses" to "resource nurse" positions .⁽²⁾ The issues at impasse involve: (1) the method for selecting resource nurses; (2) whether resource nurses should receive additional compensation to reflect additional duties and responsibilities; (3) whether those nurses affected by the reassignments should be provided with the option of discontinued service retirement; and (4) the nature and scope of the grievance procedure which is to apply to the bargaining unit.

1. Method of Selection

    a. The Union's Position

The Union proposes that: (1) prior to assigning any employee to a vacant resource nurse position, the Employer first announce the vacant position in writing at all locations where its nurses are now assigned in the Washington, D.C., metropolitan area, and fill the vacancy with a volunteer if one is forthcoming; and (2) in the event no volunteer is forthcoming for the position of resource nurse, the vacancy be filled with a nurse with the least seniority, based on service computation date. In this regard, the Employer hasstated that all of the bargaining-unit employees meet the qualifications for the resource nurse position, so its proposal is negotiable. On the merits, its proposal is a reasonable procedure which would insulate the senior members of the unit from having to fill what is perceived as a more onerous assignment, should there be an insufficient number of volunteers.

    b. The Employer's Position

The Employer proposes the following wording:

Management will ask for volunteers for each resource nurse assignment. Management will consider these volunteers based on prior experience, past performance, and least disruption to the Federal Employee Occupational Health (FEOH) program. If there is no demonstrated difference in the qualifications and suitability of these individuals the qualified volunteer with the greatest length of Department of Health and Human Services (DHHS) service will be selected. If there are no qualified volunteers all eligible employees in the commuting area will be considered based on prior experience, past performance, and least disruption to the FEOH program. If there is no demonstrated difference in qualifications and suitability, the qualified employee with the least length of DHHS service will be selected.

Although it intends to request volunteers, the needs of its clients vary from health-care unit to health-care unit, so the five positions to be filled will each require nurses with different skills and abilities. Its proposal, therefore, provides a reasonable mechanism for ensuring that each resource-nurse position is filled by the individual best suited to meet the specific requirements of the job.

2. Position Description/Job Classification

    a. The Union's Position

The Union proposes that resource nurses receive additional compensation to reflect the additional duties and responsibilities assigned them. In this regard, the position description which currently is applicable to the charge nurses in the bargaining unit does not take into account the substantially greater duties and responsibilities of the resource-nurse position, which the Union believes will include supervisory functions. In its view, therefore, management is required "to negotiate with the Union regarding job classification "

    b. The Employer's Position

The Employer offers to have its personnel office conduct a follow-up classification review of the duties assigned to resource nurses, 3 months after the initial reassignment actions, to ensure that the resource nurses have accurate position descriptions with any new and recurring duties included. A 3-month period is reasonable to ensure that the position description of resource nurses accurately reflects the duties they are required to perform. It believes that a follow-up review will not require any changes to position descriptions, however, because the charge-nurse position always has required a mix of skills, and it is not contemplated that the resource-nurse position will involve any additional duties and responsibilities, but merely will emphasize the managerial-administrative side of the mix. 

3. Discontinued Service Retirement

    a. The Union's Position

The Union proposes that all nurses in the competitive area potentially affected "by the abolishment of charge-nurse positions and the creation of resource-nurse positions" be provided the option of "discontinued service retirement," if the nurse meets the applicable age and years of service requirements. Such an option is appropriate because the Employer's permanent reassignment of full-time Federal nurses amounts to the abolishment of charge-nurse positions at each health-care unit affected.

    b. The Employer's Position

The Employer offers no counterproposal. In this regard, a primary condition for offering such an option has not been met because no one is losing employment as a result of the reassignment of employees to resource-nurse positions.

4. Grievance Procedure

    a. The Union's Position

Pending the negotiation of what it believes will be a successor to an existing contract, the Union proposes the adoption of an interim grievance procedure which essentially: (1) defines a grievance as any complaint by an employee or the Union concerning any matter relating to the employment of any employee, the effect, interpretation, or claim of breach of a collective bargaining agreement, or any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment; (2) sets forth the procedures and timetables under which any grievance would be reviewed by management; (3) provides for final and binding arbitration by a neutral if the grievance remains unresolved, and the assistance of the Federal Mediation and Conciliation Service (FMCS) in the selection of an arbitrator; and (4) requires the Employer to pay the arbitrator's fees and any other expenses.

The adoption of the Union's proposal is necessary because the Employer "denies the validity of the collective bargaining agreement" and seeks to impose upon it a grievance procedure which "is too restrictive." Moreover, given the Union's current financial situation, under the Employer's proposal, it could not afford to take even one grievance to arbitration.

b. The Employer's Position

The Employer, in essence, proposes a grievance procedure to resolve grievances in relation to the resource-nurse program which: (1) sets forth the procedures and timetables under which any grievance would be reviewed by management; (2) provides for final and binding arbitration by a neutral if the grievance remains unresolved, and the assistance of the FMCS in the selection of an arbitrator; and (3) requires the parties to share equally the arbitrator's fees and any other expenses and costs, including transcripts. Its proposal would resolve grievances promptly and equitably, should any arise as the result of the resource-nurse program. Moreover, it is a normal practice in the Federal sector for the parties to share the costs of arbitration equitably, and the Panel should continue that practice here by adopting its proposal.

CONCLUSIONS

Having considered the evidence and arguments in this case, we conclude that, on balance, the Employer's proposal provides a reasonable basis for resolving the issue of the method of selection of resource nurses. In this regard, the proposal provides the Employer with the flexibility it needs to ensure the best possible match between nurses with particular skills and abilities, and client agencies with specific health-care needs. It also reasonably restricts the Employer's discretion in making selections by requiring that there be a demonstrated difference in the qualifications and suitability of an employee should one be selected for reassignment who is not a volunteer or least senior in the bargaining unit. By contrast, we believe that the Union's proposal could result in an unacceptable situation where the best-suited employees are prevented from being assigned to resource-nurse positions.

We also shall order the parties to adopt the Employer's proposal on the issue of position description and job classification. Preliminarily, we note that matters relating to the classification of any position are not conditions of employment under the Statute. For this reason, the FLRA has held that proposals involving position classification are nonnegotiable, and that such matters are appropriately resolved through the classification appeals process.⁽³⁾Thus, insofar as the Union's proposal concerns position classification, the Employer is under no obligation to negotiate with respect to it. Moreover, on its merits, the proposal is speculative because it is unclear whether the resource-nurse position will require the performance of duties in addition to those in the position description currently applicable to charge nurses. The Employer's proposal, on the other hand, should address employees' concerns by providing for a classification review after the passage of a suitable and relatively short period of time to ensure that the position descriptions of resource nurses accurately reflect the duties they perform.

With respect to the issue of discontinued service retirement, we are persuaded that if the Employer's proposed reassignments meet the necessary statutory and regulatory criteria, their impact upon the bargaining unit would warrant offering eligible employees this option. A determination as to whether the reassignments meet such criteria, however, must he made by the Office of Personnel Management (OPM). In this regard, Appendix E. of the Federal Personnel Manual (FPM) states, among other things, that under 5 U.S.C. Section 8336(d)(2), authorizations of early optional retirements for employees of an agency or a segment of an agency are made by the OPM "when it is determined that a major RIF, reorganization, or transfer of function is underway." Moreover, 5 C.F.R. Section 831.108, specifies that such determinations will be made by OPM "only after receipt of written request to make the determinations from the agency, or his or her, designee." Thus, because the Employer would be without authority to implement the Union's proposal, we shall order it to: (1) submit a written request to OPM to make the requisite determinations, and, should OPM grant it the authority, (2) provide those employees serving in the geographic area designated by OPM⁽⁴⁾ with the early retirement option if all applicable legal requirements are met.

Finally, we conclude that the parties' dispute over the grievance-procedure issue should be resolved on the basis of the Employer's proposal. In our view, it is reasonable to limit the scope of the procedure only to grievances over the implementation of the Employer's proposed reassignments because this is the matter which gave rise to its bargaining obligation. In this regard, the record indicates that the Union officially was certified as exclusive representative of the bargaining unit in 1986, after losing its status as exclusive representative in 1985 following a reorganization. Because it appears that the bargaining unit currently is without a contract,⁽⁵⁾ the Employer's proposal would provide employees with some protections which they now do not have. Moreover, in contrast to the Union's proposal, its requirement that the parties share equally the costs of arbitration is consistent with most Federal sector contracts, and should encourage both parties to weigh carefully the merits of grievances before submitting them to arbitration. Further, we encourage the parties to explore the possible use of the grievance-mediation services of the Federal Mediation and Conciliation Service should grievances arise with respect to the reassignments.

ORDER

 

Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to section 2471.6(a)(2) of the Panel's regulations, the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:

 

1. Method of Selection

The parties shall adopt the Employer's proposal.

 

2. Position Description/Job Classification

The parties shall adopt the Employer's proposal.

 

3. Discontinued Service Retirement

The Employer shall: (1) submit a written request to the Office of Personnel Management (OPM) to make the requisite statutory and regulatory determinations regarding early optional retirement, and, should OPM grant it the authority, (2) provide those employees serving in the geographic area designated by OPM with the early retirement option once all applicable legal requirements are met.

4. Grievance Procedure

The parties shall adopt the Employer's proposal.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

March 26, 1990

Washington, D.C.

 

1. This includes the Union's statement in its post-conference brief that the Panel "should take notice of, and give proper deference to, the Senate Appropriations Committee Report language containing the express Congressional prohibition against management's plan to reassign full-time nurses in the Washington, D.C., area in order to implement its resource nurse proposal."

2. We note that the Union has requested the Panel to defer a decision in this case until the Federal Labor Relations Authority (FLRA) has ruled on the negotiability of a proposal requiring the Employer to refrain from implementing its proposed reassignments. The Panel denies the Union's-request because we find a negotiability ruling on the proposal to be unnecessary for us to reach a decision on the merits of the issues in this case.

3. See, for example, National Federation of Federal Employees Local 862 and Tooele Army Depot Tooele Utah, 3 FLRA 455 (1980).

4. This also is a requirement specified in 5 U.S.C. Section 8336(d)(2).

5. In accordance with FLRA precedent, a union has no institutional rights once it loses its status as exclusive representative. See, for example, United States Department of Transportation, Federal Aviation Administration, Southwest Region and Professional Air Traffic Controllers Organization, 11 FLRA 36 (1983).