U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

National Federation of Federal Employees and Department of Veterans Affairs, 0-NG-2544, March 28, 2001, 57 FLRA No. 9.

Although a proposal requiring that high risk (usually mentally impaired) patients asssigned to the acute care ward (ACW) be given wander guard bracelets affects management's right to determine internal security practices, it nonetheless is a negotiable appropriate arrangement. Because patients in the ACW are seriously ill and require significant time and attention and because the ACW is often short staffed, the risk of an ACW nurse not detecting a high risk patient leaving the ward is increased. This increased potential for lowered performance appraisals constitutes an adverse effect. Moreover, the proposal is sufficiently tailored and passes the excessive interference balancing test.

In response to a change in agency policy regarding patient accountability in which nurses are responsible for verifying the location of patients admitted to their assigned ward during their tour of duty, the union proposed that high risk patients assigned to the acute care ward (ACW) be equipped with wander guard bracelets (a monitoring device that electronically notifies nurses when a patient leaves the ward to which the high risk patient has been assigned). The high risk patients previously were assigned to the transitional care unit where they were equipped with wander guard bracelets. The ACW, on the other hand, wasn't equipped with wander guards.

In its negotiability appeal, the union didn't dispute that its proposal affected management's right to determine the agency's internal security practices. But it contended that its proposal is an appropriate arrangement because nurses in the ACW were at an increased risk of liability for failing to properly monitor the whereabouts of high risk patients given that ACW patients require a high degree of care and attention and the ACW often is short-staffed.

The Authority agreed that the proposal is an arrangement for employees adversely affected by the exercise of a management right. In the first place, it is intended to ameliorate an adverse affect.

[T]he record indicates patients in this ward are there because they are seriously ill and the care of these patients requires significant time and attention on the part of the nurses. . . . [Short] staffing only exacerbates patient care demands on the ACW nursing staff.

In such a situation, it is reasonable to conclude that nurses in the ACW would not have adequate time to pay attention to high risk patients assigned to their ward. Consequently, the risk of such a patient leaving the ward and the possibility that nurses would not detect their leaving is increased. As a result, nurses face increased liability under the patient accountability policy. . . . This, at a minimum, suggests that nurses are vulnerable to lower performance appraisals based on inadequate attention to patient location.

The increased potential for lowered performance appraisals constitutes an adverse effect within the meaning of § 7106(b)(3).

The Authority also found that the proposal, inasmuch as it "would benefit only nurses in the ACW who have been assigned care of high risk patients" is sufficiently tailored to constitute an arrangement.

After applying the excessive interference balancing test, FLRA concluded that the proposal is a negotiable appropriate arrangement because the benefit afforded the affected nurses outweighed the burden placed on management's right to determine internal security practices. It benefited the nurses by making it easier for them to provide the level of care required by the seriously ill and to monitor the location of high risk patients assigned to the ACW. The burden it placed on the agency's internal security policy, by contrast, was slight. The agency already used wander guard bracelets in the transitional care unit. "[R]ather than burdening the Agency's ability to ensure high risk patient safety, the proposal would enhance that objective by widening use to all high risk patients also assign to the ACW." Nor did the proposal preclude management from holding nurses in the ACW accountable for monitoring high risk patient location. It merely made it easier for nurses to comply with the agency's accountability policy.

In a footnote the Authority noted that although the agency stated in the post-petition conference report that the proposal would be costly, it made no further argument regarding cost in its statement of position. Moreover, cost arguments made in contexts other than those involving management's right to budget, had no bearing on negotiability.

In any event, as the Authority has made clear, "when considering cost arguments in contexts other than management's budget right under section 7106(b)(1), . . . an agency is not exempt from the obligation to bargain over a union proposal solely because th[e] proposal may result in some increase in costs." AFGE, Local 1122, 47 FLRA 272, 283 (1993).

Although the excessive interference balancing test is, at bottom, a merit test of negotiability, it doesn't necessarily follow that the Impasses Panel would impose a proposal that FLRA declared is negotiable as a § 7106(b)(3) appropriate arrangement. Although increased costs (unless sufficient to affect management's right to determine the budget of the agency) don't affect negotiability, they presumably would be taken into consideration by the Panel when resolving bargaining impasses--provided, of course, the agency can marshal convincing evidence on the cost consequences of a proposal and is able to come up with alternative, less costly, solutions to the problem addressed by the proposal.