**57 FLRA No. 9**

NATIONAL FEDERATION OF FEDERAL\
EMPLOYEES, LOCAL 1904\
(Union)

and

UNITED STATES DEPARTMENT OF VETERANS\
AFFAIRS, MEDICAL CENTER\
NEW ORLEANS, LOUISIANA\
(Agency)

0-NG-2544

[\_\_\_\_\_]{.underline}

DECISION AND ORDER ON A\
NEGOTIABILITY ISSUE

March 28, 2001

[\_\_\_\_\_]{.underline}

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and
Carol Waller Pope, Members.

# I.     Statement of the Case 

      This case is before the Authority on a negotiability appeal filed
by the Union under § 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and concerns the
negotiability of one proposal. For the reasons which follow, we find
that the proposal is a negotiable appropriate arrangement under §
7106(b)(3).

# II.     Background 

      The proposal in this case was submitted to the Agency in response
to a change in policy with respect to patient accountability. *See*
Agency Memorandum NE-4 attached to Union Petition for Review.
Specifically, the revised policy was designed to improve patient
accountability on the part of the hospital staff and to \"facilitate the
early detection of missing patients.\" *Id.* at 1. To this end, under
the policy, nurses are responsible for verifying the location of
patients admitted to their assigned ward during their tour of duty.
*Id.* The policy prescribes procedures to be followed that enable nurses
to account for patients, including patients that are assessed as \"high
risk for wandering.\" *Id.* at 2-3. The Union states, and the Agency
does not dispute, that \"\[h\]igh risk patients (HR) are usually
mentally impaired either due to some physical or mental condition and
need someone in authority to look out for their best interests because
they are mentally unable to do
so.\" [**\[n1\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21295) Union\'s
supplemental submission at 2. In addition, these patients have a
propensity to wander off. *Id*.

      Wander guard bracelets are monitoring devices that are attached to
high risk patients and electronically notify nurses when a patient
leaves the ward or unit to which they have been assigned. According to
the Union, high risk patients were previously assigned to the
transitional care unit (TCU) and were all equipped with wander guards.
More recently, however, high risk patients have been assigned to the
acute care ward (ACW) which is not equipped with wander guards. Because
the typical ACW patient is seriously ill, and consequently needs a high
degree of care and attention, ACW nurses, according to the Union, cannot
necessarily provide the needed additional attention to high risk
patients required to keep them from leaving the unit. As a result,
nurses in the ACW consider that they are at an increased risk of
liability for failing to properly monitor the location of these high
risk patients under the Agency\'s policy.

# III.     Proposal 

> High risk patients on acute wards who wander without staff knowledge
> should be given wander guard bracelets to eliminate the adverse effect
> of adding security responsibilities to other nursing staff
> duties. [**\[n2\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21301) 

# IV.     Positions of the Parties 

## A.     Union 

      The Union \"recognizes \[the\] security of \[the A\]gency to be a
management right under 5 USC 7106\[a\],\" and does not dispute that the
proposal affects this management right. Petition at 5. The Union,
however, contends that the proposal is negotiable as an appropriate
arrangement for employees adversely affected by the Agency\'s patient
accountability policy **\[ v57 p29 \]** and management\'s decision to
assign high risk patients to the
ACW. [**\[n3\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21310) Union
Memo dated February 14, 2000, attached to petition.

      According to the Union, the patient accountability policy means
nurses are \"solely accountable for patient accountability.\" Petition
at 5. The Union argues that the policy adversely affects nurses because
it creates additional liability if they fail to sufficiently monitor
high risk patients assigned to the ACW. The Union claims that patient
care demands in the ACW are often exacerbated by short staffing and
changes in staff rotation, which make it impossible for nurses to give
adequate attention to high risk patients. The Union argues, therefore,
that the proposal is an appropriate arrangement as it reduces potential
liability by increasing the ability of ACW nurses to monitor high risk
patient location.

## B.     Agency 

      According to the Agency, the Union does not dispute that the
proposal affects its right to determine its internal security practices
by establishing a patient accountability policy. SOP at 2. The Agency
states that the proposal concerns a \"performance issue.\" *Id*. In this
regard, the Agency argues that the proposal would require management to
\"forfeit\" its right to determine internal security policies because it
would eliminate the accountability of the nursing staff for monitoring
patient location. *Id.*

      The Agency also states that under its policy nurses need to assess
the status of patients on a continuous basis and, where warranted,
\"initiate nursing interventions such as 1:1 or close observation.\"
*Id.* at 1*.* The Agency maintains that all that is needed for nurses to
act responsibly, when a patient is missing, is to activate the
procedures contained in the policy.

# V.     Analysis and Conclusion 

## A.     Meaning of the Proposal 

      The parties agree that the proposal would require the Agency to
install a wander guard system for high risk patients in the ACW.

## B.     The Proposal Affects Management\'s Right to Determine Internal Security Practices Under § 7106(a). 

      The Agency asserts, and the Union does not dispute, that the
proposal affects the Agency\'s right to determine its internal security
policies and practices under § 7106(a)(1) of the Statute. Accordingly,
we find that the proposal affects that right. *See AFGE, Council of GSA
Locals, Council 236*, 55 FLRA 449, 452 (1999) *petition for review
denied as to other matters*, No. 99-1244 (Mar. 7, 2000). As the Union
has not argued that this proposal constitutes a procedure within the
meaning of § 7106(b)(2), we will determine whether the proposal
constitutes an appropriate arrangement under § 7106(b)(3) of the
Statute.

## C.     The Proposal is an Appropriate Arrangement. 

### 1.     Applicable Framework 

      In determining whether a proposal is an appropriate arrangement,
the Authority uses the analysis set forth in *NAGE, Local R14-87*,
21 FLRA 24 (1986) (*KANG*). The Authority first determines whether the
proposal is intended to be an arrangement for employees adversely
affected by the exercise of a management right. *See United States
Dep\'t of the Treasury, Office of the Chief Counsel, IRS v. FLRA*, 960
F.2d 1068, 1073 (D.C. Cir. 1992); *AFGE, Local 1900*, 51 FLRA 133, 141
(1995).

      The claimed arrangement must also be sufficiently \"tailored\" to
compensate employees suffering adverse effects attributable to the
exercise of management\'s rights. *See id* at 184*.* As the Authority
has explained, relying on *United States Dep\'t of the Interior,
Minerals Mgmt. Serv., New Orleans, Louisiana v. FLRA*, 969 F.2d 1158,
1162 (D.C. Cir. 1992), § 7106(b)(3) brings within the duty to bargain
proposals that provide a balm only to the hurts arising as a consequence
of the management actions under section 7106 giving rise to a bargaining
obligation. *AFGE, Nat\'l Border Patrol Council*, 51 FLRA 1308, 1319
(1996). *See also NAGE, Local R14-23*, 53 FLRA 1440, 1443 (1998).

      If a proposal is determined to be an arrangement pertaining to the
exercise of management\'s rights, then the Authority determines whether
it excessively interferes with the relevant management right. The
Authority reaches this determination by weighing the \"competing
practical needs of employees and managers.\" *KANG*, 21 FLRA at 31-32.

### 2.     The Proposal is an Arrangement and is Sufficiently Tailored. 

      Applying the *KANG* framework to the proposal in this case, it is
clear that the proposal constitutes an arrangement for nurses adversely
affected by the application **\[ v57 p30 \]** of the patient
accountability policy to the care of high risk patients in the ACW. In
particular, the Union\'s description of the nursing environment in the
ACW is not disputed. Thus, the 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. In
this regard, although the Agency states that it schedules and assigns
nurses consistent with patient care needs, it does not dispute the
Union\'s contention that the ACW is often short staffed. As the Union
points out, such 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. [**\[n4\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21330) 
Consequently, the risk of such a patient leaving the ward and the
possibility that nurses will not detect their leaving, is increased. As
a result, nurses face increased liability under the patient
accountability policy. The Agency states that patient accountability is
a \"performance issue.\" This, at a minimum, suggests that nurses are
vulnerable to lowered 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). *See,
e.g.*, *NTEU*, 45 FLRA 339, 370 (1992). Moreover, it is clear that this
increased potential is a result of the application of the patient
accountability policy, which constitutes the exercise of a management
right, to nurses who have the burden of caring for high risk patients in
addition to the demands of caring for the seriously ill patients in the
ACW. Thus, because the use of wander guards under the proposal is
designed to mitigate against that increased potential for lowered
performance appraisals, it constitutes an arrangement for employees
adversely affected by the exercise of a management right within the
meaning of § 7106(b)(3). *Id.*

      Further, because the proposal would benefit only nurses in the ACW
who have been assigned care of high risk patients, the proposal is
sufficiently tailored to constitute an arrangement. *See, e.g.*, *NTEU*,
47 FLRA 705, 728 (1993) (*Member Armendariz dissenting in part,
concurring in part*).

### 3.     The Proposal is an Appropriate Arrangement. 

      The next question is whether the burden imposed by the proposal
outweighs the benefit afforded nurses by the proposal. Stated
differently, the question is whether the proposal excessively interferes
with management\'s right so as to not be appropriate under § 7106(b)(3).

      It is clear that the use of wander guard bracelets on high risk
patients in the ACW would make it easier for nurses to provide the level
of care required by those seriously ill patients and monitor the
location of high risk patients who are also assigned to the ACW. As a
result, those nurses would benefit significantly from the proposal,
because they would be less vulnerable to lowered performance appraisals
under the Agency\'s policy.

      In contrast, the burden on the Agency\'s internal security policy
is slight. The purpose of that policy, insofar as it pertains to
patients, is to ensure the safety of those patients. The Agency already
uses wander guard bracelets in the TCU for that purpose. Accordingly,
rather 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 assigned to the ACW.

      Moreover, the use of wander guard bracelets in the ACW does not
preclude the Agency from holding nurses in that ward accountable for
monitoring high risk patient location under its policy. In this respect,
rather than undermining the policy, the proposal simply makes it easier
for nurses to comply with that policy.

      Weighing the reduced risk of lowered performance appraisals to
nurses caring for high risk patients on the ACW, that results from the
use of wander guards, against the burden on the Agency\'s ability to
establish and implement its patient accountability policy, it is clear
that the benefit afforded nurses under the proposal outweighs the burden
of the proposal on management\'s right to determine its internal
security policies. Thus the proposal does not excessively interfere with
that right, and is an appropriate arrangement within the meaning of §
7106(b)(3). [**\[n5\]**](http://www.flra.gov/search?NS-search-page=document&NS-rel-doc-name=/decisions/v57/#21341) 

# VI.     Order 

      The Agency shall, upon request, or as otherwise agreed to by the
parties, negotiate over the proposal.

**Footnote \# 1** for 57 FLRA No. 9

   The Agency describes high risk patients as, \"cognitively impaired.\"
Statement of Position (SOP) at 2.

**Footnote \# 2** for 57 FLRA No. 9

   The Union\'s original proposal read:

> High Risk patients who wander without staff knowledge should be given
> special clothing or wander guard bracelet or some alternative to help
> identify them to nursing staff.

Petition at 5.

However, in the post-petition conference, held pursuant to § 2424.23 of
the Authority\'s Regulations, the Union clarified the proposal to read
as set forth above. In the absence of any objection by the Agency, the
proposal will be considered as clarified. *See* *ACT, Inc., Heartland
Chap.,* 56 FLRA 236, 236 n.1 (2000).

**Footnote \# 3** for 57 FLRA No. 9

   Specifically, the Union states that its proposal is intended to
eliminate the \"adverse affect\" \[sic\] of the Agency\'s policy on the
nursing staff. Petition at 5; Union Memo dated February 14, 2000,
attached to petition. The Authority construes this language, along with
the Union\'s argument as a whole, to constitute a claim that the
proposal is an appropriate arrangement under § 7106(b)(3).

**Footnote \# 4** for 57 FLRA No. 9

   We note that the Agency argues that nurses who are confronted with a
patient who demonstrates a propensity to wander should conduct close
surveillance, even one to one monitoring of the patient. However, in
giving that guidance, the Agency fails to address how the nurse would be
able to complete other assigned tasks in this situation.

**Footnote \# 5** for 57 FLRA No. 9

   Although the Agency stated in the post petition conference report
that the proposal would be costly, it made no further argument in that
regard in its SOP. In any event, as the Authority has made clear, \"when
considering cost arguments in contexts other than management\'s budget
right under section 7106(a)(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).