Veterans Administration Medical Center, Tucson, Arizona (Activity) and American Federation of Government Employees, Local 495, AFL-CIO (Petitioner) and Nurses' Commission on Collective Bargaining, Arizona Nurses Association (Intervenor) (Authority decision, September 19, 1980)

FLRA interlocutory decision. This representation order directs an election and does not resolve the representation question. Under 5 U.S.C. § 7123(a)(2), orders involving appropriate unit determinations under 5 U.S.C. § 7112 are excluded from judicial review.

Plain-English summary

Two unions sought to represent registered nurses at a Tucson VA medical center. A related case had clarified which nurse positions belonged in the unit. The Authority found the clarified unit appropriate and directed a secret-ballot election among eligible employees. This was an original election direction, so the outcome is classified as other; representation remained pending after the order.

Decision snapshot

• Authority: 5 U.S.C. § 7112, 5 U.S.C. § 7135(b).
• Outcome: Election directed in the clarified nurse unit.
• Key point: The eligible nurses would choose a representative or neither union.

Full text (FLRA public release)

[ v04 p229 ]

04:0229(35)RO

The decision of the Authority follows:

4 FLRA No. 35

VETERANS ADMINISTRATION MEDICAL CENTER,
TUCSON, ARIZONA
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 495, AFL-CIO
Petitioner

and

NURSES' COMMISSION ON COLLECTIVE BARGAINING,
ARIZONA NURSES ASSOCIATION
Intervenor

Case No. 72-7853(RO)

DECISION AND DIRECTION OF ELECTION

UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE A HEARING OFFICER OF THE
AUTHORITY. THE AUTHORITY HAS REVIEWED THE HEARING OFFICER'S RULINGS
MADE AT THE HEARING AND FINDS THAT THEY ARE FREE FROM PREJUDICIAL ERROR.
THE RULINGS ARE HEREBY AFFIRMED.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, IN
THE MATTER OF SUCH AS HERE INVOLVED WERE TRANSFERRED TO THE AUTHORITY
UNDER SECTION 304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43 F.R. 36040),
WHICH TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION 2400.2 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2400.2). THE AUTHORITY
CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS
PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (92 STAT. 1215). UPON THE ENTIRE RECORD IN THIS CASE,
INCLUDING BRIEFS SUBMITTED BY THE PARTIES, THE FEDERAL LABOR RELATIONS
AUTHORITY FINDS:

THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 495
FILED THE PETITION HEREIN, SEEKING TO REPRESENT A PREVIOUSLY RECOGNIZED
UNIT OF THE PROFESSIONAL REGISTERED NURSES. THE NURSES' COMMISSION ON
COLLECTIVE BARGAINING, ARIZONA NURSES ASSOCIATION, THE CURRENT EXCLUSIVE
REPRESENTATIVE OF THE UNIT, INTERVENED. AT THE HEARING, THE PARTIES
DISPUTED THE ELIGIBILITY OF CERTAIN NURSES WHO WERE EXCLUDED FROM THE
UNIT. THE DISPUTED CLASSIFICATIONS WERE: NURSING HOME CARE UNIT
SUPERVISOR, NURSING CASE SUPERVISORS, OPERATING ROOM HEAD NURSE, AND
WARD HEAD NURSE. THE REASON FOR THE DISPUTE IS THE CHANGED DEFINITION
OF SUPERVISOR IN SECTION 7103(A)(10) OF THE STATUTE.

THE ISSUE CONCERNING THE ELIGIBILITY OF THE DISPUTED EMPLOYEES WAS
SUBSEQUENTLY RESOLVED IN A RELATED CASE, VETERANS ADMINISTRATION MEDICAL
CENTER, TUCSON, ARIZONA, CASE NO. 8-CU-14, 4 FLRA NO. 21. IN THAT CASE,
THE UNIT WAS CLARIFIED SO AS TO INCLUDE WARD HEAD NURSES, AND EXCLUDE
THE NURSING HOME CARE UNIT SUPERVISOR, NURSING CARE SUPERVISORS AND HEAD
NURSES-OPERATING AND RECOVERY ROOM. AS CLARIFIED, THE UNIT IS NOW
DESCRIBED AS:

ALL PROFESSIONAL REGISTERED NURSES, INCLUDING WARD HEAD NURSES,
EMPLOYED AT THE VETERANS

ADMINISTRATION HOSPITAL, TUCSON, ARIZONA, EXCLUDING ALL OTHER
PROFESSIONAL

EMPLOYEES; NON-PROFESSIONAL EMPLOYEES; MANAGEMENT OFFICIALS;
SUPERVISORS; EMPLOYEES

CLASSIFIED AS NURSE ANESTHETIST, NURSING HOME CARE UNIT SUPERVISOR;
NURSING CARE

SUPERVISOR; HEAD NURSE-OPERATING AND RECOVERY ROOM; AND EMPLOYEES
DESCRIBED IN 5

U.S.C. 7112(B)(2), (3), (4), (6) AND (7).

NOTING THAT THE ONLY ISSUE RAISED BY THE PARTIES WAS THE ABOVE-NOTED
ELIGIBILITY ISSUE, AND THAT THE PARTIES STIPULATED THAT THE EXISTING
BARGAINING UNIT IS APPROPRIATE, THE AUTHORITY FINDS THE UNIT, AS
CLARIFIED, IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
THE EXECUTIVE ORDER. ACCORDINGLY, THE AUTHORITY WILL DIRECT AN
ELECTION. /1/

DIRECTION OF ELECTION

AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED BY EMPLOYEES IN THE
UNIT FOUND APPROPRIATE AS SOON AS POSSIBLE, BUT NOT LATER THAN 60 DAYS
FROM THE DATE BELOW. THE REGIONAL DIRECTOR SHALL SUPERVISE THE
ELECTION, SUBJECT TO THE AUTHORITY'S RULES AND REGULATIONS. ELIGIBLE TO
VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE PAYROLL PERIOD
IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT
WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON VACATION, OR ON
FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO APPEAR IN PERSON
AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR WERE
DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD AND WHO HAVE
NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE. THOSE ELIGIBLE
SHALL VOTE WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 495, BY THE NURSES' COMMISSION ON COLLECTIVE
BARGAINING, ARIZONA NURSES ASSOCIATION; OR, BY NEITHER LABOR
ORGANIZATION.

ISSUED, WASHINGTON, D.C., SEPTEMBER 19, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

CERTIFICATE OF SERVICE

COPIES OF THE DECISION AND DIRECTION OF ELECTION OF THE FEDERAL LABOR
RELATIONS AUTHORITY IN THE SUBJECT CASE PROCEEDING HAVE THIS DAY BEEN
SENT TO THE PARTIES BELOW:

MR. RICHARD H. WEBSTER

AFGE NATIONAL REPRESENTATIVE

P.O. BOX 14385

PHOENIX, ARIZONA 85063

MS. BETTY MCCARVER, R.N.

ARIZONA NURSES ASSOCIATION

4525 NORTH 12TH STREET

PHOENIX, ARIZONA 85104

G. V. MORTON

VETERANS ADMINISTRATION HOSPITAL

TUCSON, ARIZONA 85723

MR. ROBERT MCDONALD

810 VERMONT AVENUE (058B)

WASHINGTON, D.C. 20420

CONGRESSMAN MORRIS K. UDALL

235 CANNON HOUSE OFFICE BUILDING

WASHINGTON, D.C. 20515

ATTN: MS. BETHMINSTER

MR. GORDON E. BREWER

REGIONAL DIRECTOR

FEDERAL LABOR RELATIONS AUTHORITY

CITY CENTER SQUARE, SUITE 680

1100 MAIN STREET

KANSAS CITY, MISSOURI 64105

--------------- FOOTNOTES$ ---------------

/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND DIRECTION OF ELECTION DOES NOT PREJUDGE IN ANY MANNER
EITHER THE MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW
STATUTE OR THE RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE
CASE HAD ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.