American Federation of Government Employees, Local 3669 (Union) and Veterans Administration Medical Center, Minneapolis, Minnesota (Activity) (Authority decision, February 4, 1980)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A Minneapolis Veterans Administration hospital union proposed that nurses receive two consecutive days off each week and every other weekend off. The hospital said the proposal affected staffing choices reserved for bargaining only at the agency's election. The Authority found that guaranteeing alternate weekends off would determine the numbers and types of nurses assigned to weekend tours regardless of patient needs and nursing specialties. It held the proposal outside the hospital's mandatory duty to bargain under section 7106(b)(1) and sustained the agency's position. The decision did not rule on the agency's separate regulatory objection.

Decision snapshot

• Authority: 5 U.S.C. § 7105(a)(2)(E); 5 U.S.C. § 7106(b)(1).
• Outcome: Agency's nonnegotiability allegation sustained; proposal negotiable only at the agency's election.
• Key point: A fixed alternate weekend guarantee would control staffing assignments for continuous patient care.

Full text (FLRA public release)

[ v02 p641 ]

02:0641(78)NG

The decision of the Authority follows:

2 FLRA No.

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3669, AFL-CIO
(Union)

and

VETERANS ADMINISTRATION MEDICAL
CENTER, MINNEAPOLIS, MINNESOTA
(Activity)

Case No. 0-NG-47

DECISION ON NEGOTIABILITY ISSUE

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).

UNION PROPOSAL

ARTICLE XV, HOURS OF WORK, SECTION 3

NURSES SHALL HAVE THEIR TOURS OF DUTY ARRANGED TO PERMIT EACH PERSON
TO HAVE TWO CONSECUTIVE DAYS OFF IN EACH CALENDAR WORK WEEK. ANY NURSE
MAY REQUEST TO WAIVE THE RIGHT IN WRITING. DAYS MAY BE SPLIT PRECEDING
OR FOLLOWING A WEEKEND OFF. SATURDAY AND SUNDAY WILL NOT NORMALLY BE
SCHEDULED OFF UNLESS BOTH ARE SCHEDULED OFF. NURSES WILL HAVE EVERY
OTHER WEEKEND OFF.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS A MATTER WITHIN THE
AGENCY'S DUTY TO BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE) OR IS A MATTER WITHIN THE SCOPE OF
SECTION 7106(B)(1) OF THE STATUTE, I.E., NEGOTIABLE ONLY "AT THE
ELECTION OF THE AGENCY," /1/ AS ALLEGED BY THE AGENCY. /2/

OPINION

CONCLUSION: THE PROPOSAL CONCERNS A MATTER WHICH IS NEGOTIABLE ONLY
AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND
REGULATIONS (44 FED.REG. 44740 ET SEQ.(1979)), THE AGENCY'S ALLEGATION
THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS
SUSTAINED.

REASONS: IN NATIONAL TREASURY EMPLOYEES UNION CHAPTER 66 AND
INTERNAL REVENUE SERVICE, KANSAS CITY SERVICE CENTER, CASE NO. O-NG-19,
2 FLRA NO. 106(SEPT. 13, 1979), REPORT NO. . . . , THE AUTHORITY
RECENTLY STATES, WITH REGARD TO THE MEANING AND INTENT OF SECTION
7106(B)(1) OF THE STATUTE, AS FOLLOWS:

UNDER THE PLAIN LANGUAGE OF SECTION 7106(B)(1) OF THE STATUTE (AND IN
THE ABSENCE OF ANY

CONTRARY INDICATION IN THE LEGISLATIVE HISTORY OF SUCH LANGUAGE) THE
CLEAR MEANING OF THIS

SECTION IS TO RENDER THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
ASSIGNED TO A TOUR OF DUTY

NEGOTIABLE AT THE AGENCY'S ELECTION. A PROPOSAL OTHERWISE CONSISTENT
WITH THE STATUTE, WHICH,

BY ITS DIRECT OR INTEGRAL RELATIONSHIP TO THE NUMBERS, TYPES, OR
GRADES OF EMPLOYEES OR

POSITIONS ASSIGNED TO A TOUR OF DUTY, WOULD BE DETERMINATIVE OF SUCH
NUMBERS, TYPES, OR

GRADES, LIKEWISE WOULD BE NEGOTIABLE AT THE ELECTION OF THE AGENCY.
(FOOTNOTES OMITTED.) /3/

IN THE PRESENT CASE, WHILE THE LANGUAGE OF THE PROPOSAL DOES NOT
EXPLICITLY RELATE TO THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
ASSIGNED TO A TOUR OF DUTY OR TO THE ORGANIZATIONAL SUBDIVISION HEREIN,
SO AS TO COME WITHIN THE LITERAL LANGUAGE OF SECTION 7106(B)(1), IT IS
NEVERTHELESS SO DIRECTLY AND INTEGRALLY RELATED TO THE NUMBERS, TYPES,
AND GRADES OF EMPLOYEES ASSIGNED THERETO AS TO BE DETERMINATIVE OF SUCH
NUMBERS, TYPES AND GRADES AND THEREFORE IS NEGOTIABLE AT THE ELECTION OF
THE AGENCY. /4/

THE RECORD INDICATES THAT THE ACTIVITY HEREIN IS RESPONSIBLE FOR THE
MEDICAL CARE AND TREATMENT OF VETERANS. IN ORDER TO MEET THIS
RESPONSIBILITY, THE ACTIVITY MUST HAVE PROFESSIONAL MEDICAL PERSONNEL IN
CONTINUOUS ATTENDANCE. THUS, THE ACTIVITY MUST ESTABLISH TOURS OF DUTY
WITH SUFFICIENT NUMBERS AND TYPES OF PROFESSIONAL MEDICAL PERSONNEL TO
PROVIDE THE REQUISITE ROUND-THE-CLOCK SERVICES TO ITS PATIENTS. IN
DETERMINING THE NUMBER AND TYPES OF SUCH PERSONNEL TO BE ASSIGNED TO
EACH TOUR OF DUTY, MANAGEMENT MUST CONSIDER SUCH FACTORS AS THE NUMBER
AND TYPES OF PERSONNEL ACTUALLY IN ITS EMPLOY; THE ADDITIONAL NUMBER,
IF ANY, IT IS AUTHORIZED TO HIRE; THE NUMBER AND TYPES OF MEDICAL
PERSONNEL REQUIRED TO PROVIDE QUALITY MEDICAL CARE DURING EACH TOUR OF
DUTY; AND THE QUALIFICATIONS AND ABILITIES OF INDIVIDUAL EMPLOYEES.

THE INSTANT PROPOSAL GUARANTEEING THAT "(N)URSES WILL HAVE EVERY
OTHER WEEKEND OFF," WOULD NEGATE THE ACTIVITY'S DISCRETION TO TAKE INTO
ACCOUNT THE MEDICAL CARE NEEDS OF THE PATIENTS AND THE PROFESSIONAL
SKILLS OF THE NURSES INVOLVED, WHEN ASSIGNING INDIVIDUAL NURSES TO
WEEKEND TOURS OF DUTY. THAT IS, REGARDLESS OF THE PARTICULAR NURSING
SKILLS AND SPECIALIZATIONS REQUIRED DURING THE WEEKENDS IN ORDER TO
ENSURE QUALITY MEDICAL CARE AND TREATMENT OF PATIENTS, /5/ MANAGEMENT
WOULD BE REQUIRED TO MAKE SUCH ASSIGNMENTS SOLELY ON THE BASIS OF WHICH
NURSES HAD NOT RECEIVED THE PREVIOUS WEEKEND OFF. UNDER THESE
CIRCUMSTANCES, AS THE AGENCY'S STATEMENT OF POSITION ASSERTS AND THE
UNION DOES NOT CONTRADICT, THE ACTIVITY WOULD BE FORCED TO HIRE
ADDITIONAL NURSES WITH THE NECESSARY QUALIFICATIONS IN ORDER TO
ACCOMPLISH ITS MISSION AND COMPLY WITH SUCH AN AGREEMENT. /6/ IN LIGHT
OF THE ABOVE, THE AUTHORITY CONCLUDES, IN THE BARGAINING UNIT OF THIS
CASE, THAT THE UNION'S PROPOSAL, REQUIRING THAT NURSES IN THE BARGAINING
UNIT BE ASSURED ALTERNATE WEEKENDS OFF, IS INTEGRALLY RELATED TO, AND
CONSEQUENTLY DETERMINATIVE OF, THE NUMBERS, TYPES, OR GRADES OF
EMPLOYEES ASSIGNED TO A WORK PROJECT OR TOUR OF DUTY AND, ACCORDINGLY,
NEGOTIABLE AT THE ELECTION OF THE AGENCY UNDER SECTION 7106(B)(1) OF THE
STATUTE.

THEREFORE, THE PROPOSAL AT ISSUE IS NOT WITHIN THE AGENCY'S DUTY TO
BARGAIN UNDER THE STATUTE, AND THE AGENCY'S ALLEGATION THAT THE PROPOSAL
IS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY MUST BE SUSTAINED.

ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ SECTION 7106 OF THE STATUTE (92 STAT. 1198) PROVIDES, IN
PERTINENT PART:

SEC. 7106. MANAGEMENT RIGHTS

(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM

NEGOTIATING--

(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR

POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE

TECHNOLOGY, METHODS AND MEANS OF PERFORMING WORK(.)

/2/ IN VIEW OF THE AUTHORITY'S DECISION HEREIN, IT IS UNNECESSARY TO
REACH THE AGENCY'S ADDITIONAL ALLEGATION THAT THE UNION'S PROPOSAL IS
INCONSISTENT WITH AN AGENCY REGULATION FOR WHICH A COMPELLING NEED
EXISTS AND IS THEREFORE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
7117(A)(2) OF THE STATUTE.

/3/ IN THIS REGARD, THE AUTHORITY NOTED THAT PROPONENTS OF THE BILL
ENDORSED THIS APPROACH TOWARDS NEGOTIATION ON THESE SUBJECTS AS
MANDATED
BY THE FINAL VERSION OF TITLE VII, CITING THE FOLLOWING REMARKS OF REP.
FORD (AT 124 CONG.REC. H 9649(DAILY ED. SEPT. 13, 1978)):

IN ADOPTING THIS COURSE, IN THE UDALL COMPROMISE, WE IMPLEMENT THE
RATIONALE OF SEVERAL

DECISIONS OF RELEVANT OVERSIGHT AGENCIES FOR FEDERAL SECTOR LABOR
RELATIONS. THE FEDERAL

LABOR RELATIONS COUNCIL, FOR EXAMPLE, HAS RULED THAT A PROPOSAL MUST
DIRECTLY RELATE TO THE

"NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES" BEFORE THAT
PROPOSAL CAN BE RULED

NONNEGOTIABLE BECAUSE IT INFRINGES ON THE MANAGEMENT RIGHT UNDER THE
EXECUTIVE ORDER TO

DETERMINE THOSE MATTERS.

. . . .

AS THE SECTIONAL ANALYSIS MAKES CLEAR, THE UDALL SUBSTITUTE IS
DRAFTED SO AS TO EMBODY IN

THE STATUTE THE APPROACH OF THESE AND SIMILAR DECISIONS. . . .

SEE ALSO, 124 CONG.REC. H 9638(DAILY ED. SEPT. 13, 1978) (REMARKS OF
REP. CLAY).

/4/ WHILE THE TERMS OF THE PARTIES' EXPIRING AGREEMENT PROVIDED THAT
"EVERY EFFORT WILL BE MADE TO PROVIDE 1 WEEKEND OFF OUT OF EVERY 3 OR
MORE IF POSSIBLE" AND THE ACTIVITY MAY HAVE PROPOSED TO CONTINUE THAT
ASSURANCE DURING THE NEGOTIATIONS HEREIN, IT IS CLEAR FROM THE
LEGISLATIVE HISTORY OF SECTION 7106(B) THAT THE ACTIVITY HAD NOT THEREBY
MADE AN IRREVOCABLE "ELECTION" TO NEGOTIATE A PROVISION CONCERNING
NURSES' WEEKENDS OFF. THUS, DURING THE FLOOR DEBATE ON THE FINAL
VERSION OF SECTION 7106, REP. FORD STATED IN RESPONSE TO QUESTIONS AS TO
THE NATURE OF MANAGEMENT'S DUTY TO BARGAIN ON THE "NUMBERS, TYPES, AND
GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT,
WORK PROJECT, OR TOUR OF DUTY," AS FOLLOWS:

I MIGHT SAY THAT NOT ONLY ARE (AGENCIES) UNDER NO OBLIGATION TO
BARGAIN, BUT IN FACT THEY

CAN START BARGAINING AND CHANGE THEIR MINDS AND DECIDE THEY DO NOT
WANT TO TALK ABOUT IT ANY

MORE, AND PULL IT OFF THE TABLE. IT IS COMPLETELY WITHIN THE CONTROL
OF THE AGENCY TO BEGIN

DISCUSSING THE MATTER OR TERMINATE THE DISCUSSION AT ANY POINT THEY
WISH WITHOUT A CONCLUSION,

AND THERE IS NO APPEAL OR REACTION POSSIBLE FROM THE PARTIES ON THE
OTHER SIDE OF THE TABLE.

SEE 124 CONG.REC. H9646(DAILY ED. SEPT. 13, 1978).

/5/ IN A SURVEY AND EVALUATION OF HOSPITAL OPERATIONS CONDUCTED BY
THE ACTIVITY'S CHIEF OF NURSING SERVICE IN 1978 AND 1979, THE RESULTS OF
WHICH WERE ATTACHED TO THE AGENCY'S STATEMENT OF POSITION, "EVERY
WARD/UNIT HAD BEEN ABLE TO MAINTAIN A 'WEEKEND OFF' FREQUENCY OF BETTER
THAN ONE-THIRD, BUT 19 OUT OF 23 AREAS WERE UNABLE TO ACHIEVE THE HOPED
FOR AVERAGE OF 50%," BECAUSE OF A NEED FOR BUT AN INSUFFICIENT NUMBER OF
FULL-TIME REGISTERED NURSES (RNS) QUALIFIED TO ASSUME OVERALL WARD
RESPONSIBILITIES. THE SURVEY CONCLUDED THAT "THERE IS NO MEANS BY WHICH
50% OF THE WEEKENDS CAN BE SCHEDULED OFF DUTY FOR ALL RNS IN ALL AREAS."

/6/ THE AGENCY ALLEGES, WITHOUT CONTRADICTION, THAT THERE IS A
FEDERALLY-IMPOSED PERSONNEL CEILING IN EFFECT WHICH RESTRICTS
MANAGEMENT'S AUTHORITY TO HIRE THE DESIRED NUMBER OF NURSES. HOWEVER,
EVEN IF THERE WERE NO CEILING ON HIRING ADDITIONAL QUALIFIED NURSES, AS
THE AGENCY ASSERTS, THE REQUIREMENT TO HIRE ADDITIONAL PERSONNEL IN
ORDER TO COMPLY WITH THE TERMS OF THE UNION'S PROPOSAL UNDERSCORES THE
DIRECT AND INTEGRAL RELATIONSHIP BETWEEN SUCH PROPOSAL AND THE
ACTIVITY'S STAFFING PATTERNS-- I.E., THE NUMBERS, TYPES, AND GRADES OF
EMPLOYEES OR POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK
PROJECT, OR TOUR OF DUTY." THE UNION TACITLY ACKNOWLEDGES THIS DIRECT
RELATIONSHIP IN ITS RESPONSE TO THE AGENCY'S STATEMENT OF POSITION, BUT
MERELY STATES THAT " . . . MANAGEMENT HAS ALREADY AGREED TO THE PORTION
OF THE (PROPOSAL) THAT IS INTEGRALLY RELATED TO AND INTERFERES WITH
MANAGEMENT'S RIGHT TO ESTABLISH STAFFING PATTERNS THAT ARE NECESSARY FOR
THE PROPER OPERATION OF THE HOSPITAL WHEN THEY AGREED TO ARRANGING THE
NURSES' TOUR OF DUTY TO PERMIT EACH PERSON TO HAVE TWO CONSECUTIVE DAYS
OFF EACH CALENDAR WORK WEEK."