49:0701(66)CA - - VA Medical Center, Jackson, MS and NFFE, Local 589 - - 1994 FLRAdec CA - - v49 p701

[ v49 p701 ]
The decision of the Authority follows:

49 FLRA No. 66











(Charging Party/Union)



(48 FLRA 787 (1993))

(49 FLRA No. 23 (1994))



April 8, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on the Union's motion for reconsideration of the Authority's decision and order on reconsideration in 49 FLRA No. 23 (1994). The Respondent did not file an opposition to the Union's motion.

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority decision. For the following reasons, we conclude that the Union has failed to establish that extraordinary circumstances exist which warrant reconsideration of our decision in 49 FLRA No. 23. Accordingly, we will deny the Union's request.

II. The Decisions in 48 FLRA 787 and 49 FLRA No. 23

A. 48 FLRA 787

In 48 FLRA 787 (1993) the Authority concluded that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it refused to permit a Union representative to participate in meetings with two probationary bargaining unit employees. The meetings were Nurses Professional Standards Board (NPSB) peer reviews, conducted pursuant to title 38 of the United States Code.(1) The two affected employees were terminated on the recommendation of the NPSB.

The Authority found that the two reviews constituted investigatory examinations, within the meaning of section 7114(a)(2)(B) of the Statute, and that as such, the affected employees' Union representatives were entitled not only to attend but also to participate in the reviews. Accordingly, we concluded that, by refusing to allow a Union representative to participate in the examinations, the Respondent failed to comply with section 7114(a)(2)(B) and, thereby, violated section 7116(a)(1) and (8) of the Statute. To remedy the unfair labor practice, the Authority ordered, among other things, the Respondent to allow Union representatives to participate in NPSB reviews.

In reaching these conclusions, the Authority found, among other things, that the Respondent could not, through issuance of VA Manual MP-5, Part II, Chapter 4.06(4),(2) limit the rights granted to unit employees by the Statute.

B. 49 FLRA No. 23

Subsequent to our decision in 48 FLRA 787, the United States Circuit Court of Appeals for the District of Columbia issued its decision in U.S. Department of Veterans Affairs v. FLRA, 9 F.3d 123 (D.C. Cir. 1993) (VA v. FLRA). Based on the court's decision in VA v. FLRA, the Respondent requested reconsideration of our decision.(3)

In 49 FLRA No. 23, we granted the Respondent's request for reconsideration of our decision in 48 FLRA 787. We relied on the court's holdings in VA v. FLRA that: (1) the Respondent was authorized to prescribe regulations governing peer review procedures for non-hybrid(4) employees without regard to the bargaining obligations set forth in the Statute; and (2) under 38 U.S.C. § 7425, such regulations could override rights set forth in the Statute other than those rights which specifically reference title 38 employees. We stated that we adopted the court's decision in VA v. FLRA, and, based on that decision, we reversed our finding in 48 FLRA 787 that the Respondent could not, by regulation, limit the Statutory rights of unit employees. We concluded that the Respondent acted consistent with its regulation, VA Manual MP-5, Part II, Chapter 4.06(4), when it refused to permit Union representatives to participate in the disputed peer reviews, and that Respondent's actions did not constitute a violation of the Statute. Accordingly, we dismissed the unfair labor practice complaint.

III. Motion for Reconsideration

The Union contends that the Authority's decision in 49 FLRA No. 23 is based on a misunderstanding of the court's decision