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47 FLRA No. 85

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

WISCONSIN FEDERATION OF NURSES AND HEALTH PROFESSIONALS

VETERANS ADMINISTRATION STAFF NURSES COUNCIL

LOCAL 5032

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

CLEMENT J. ZABLOCKI MEDICAL CENTER

MILWAUKEE, WISCONSIN

(Agency)

0-NG-2055

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DECISION AND ORDER ON A NEGOTIABILITY ISSUE

June 16, 1993

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Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).⁽¹⁾ The appeal concerns a single provision of a negotiated agreement that was disapproved by the Secretary of Veterans Affairs.⁽²⁾ The Secretary determined that the provision was not within the scope of bargaining because it concerned or arose out of professional conduct or competence under 38 U.S.C. § 7422(b) and also because it was contrary to management's right to discipline under 5 U.S.C. § 7106(a)(2)(A).

For the reasons that follow, we conclude that the Authority has no jurisdiction to review the Secretary's negotiability determination under title 38 of the U.S. Code. In view of our conclusion, we will not address the Secretary's negotiability determination regarding title 5 at this time. Accordingly, we will dismiss the petition for review.

II. Authority's Jurisdiction to Resolve Negotiability Issue

A. Positions of the Parties

1. Agency

The Agency argues that the petition for review should be dismissed because the Authority lacks jurisdiction to review the Secretary's negotiability determination. In this regard, the Agency acknowledges that 38 U.S.C. § 7422(a) provides health care employees in the Department of Veterans Affairs medical centers with the right to engage in collective bargaining with respect to conditions of employment in accordance with chapter 71 of title 5. However, the Agency contends that under 38 U.S.C. § 7422(b), such collective bargaining may not cover any matter concerning or arising out of professional conduct or competence, peer review, or the establishment, determination or adjustment of employee compensation for positions described in 38 U.S.C. § 7421(b). In the Agency's view, the determination as to whether a matter concerns or arises out of a subject area that is nonnegotiable under section 7422(b) of title 38 is decided by the Secretary of Veterans Affairs under 38 U.S.C. § 7422(d). The Agency maintains that the Secretary's determination is not reviewable by any other agency, including the Authority.

In this case, the Agency contends that the Secretary delegated his authority under section 7422 to the Chief Medical Director, who then determined that the provision was nonnegotiable because it concerned the professional conduct or competence of bargaining unit employees and was contrary to the right to discipline under section 7106(a)(2)(A) of the Statute. The Agency maintains that the Authority may not review the Chief Medical Director's title 38 negotiability determination. The Agency further contends that although the Authority has jurisdiction to decide the negotiability of the provision under title 5, the Authority should not exercise its jurisdiction until the title 38 issues have been resolved. The Agency asserts that any decision by the Authority concerning negotiability issues under the Statute would be an advisory opinion because that decision would not resolve the Union's concerns with respect to the Secretary's negotiability determination under title 38. Accordingly, the Agency requests that the Authority grant its motion to dismiss the Union's petition for review.

2. Union

The Union concedes that the Authority does not have jurisdiction to review the Secretary's determination of nonnegotiability with respect to the matters excluded from collective bargaining under 38 U.S.C. § 7422(b). However, the Union contends that the provision in this case specifically excludes matters relating to the professional conduct or competence of bargaining unit employees.

The Union further asserts that the Authority can and should exercise its jurisdiction to review the Secretary's negotiability determination regarding matters arising under the Statute. The Union claims that the Agency's position that the Authority should consider the negotiability of a provision under section 7106 only after litigation of the Secretary's title 38 determination is completed would lead to delays in resolving the negotiability appeal. For this reason, the Union maintains that the Authority would be unable to review the Secretary's declaration of nonnegotiability on an expedited basis as required by section 7117(c)(6) of the Statute. Therefore, the Union argues that the Authority should exercise its jurisdiction under title 5 in this proceeding and review the negotiability of the provision in dispute.

B. Court Proceeding

In their submissions to the Authority, both parties advised the Authority that the Union was seeking judicial review of the Secretary's title 38 negotiability determination. Consequently, by Order dated December 23, 1992, the Authority directed the parties to furnish certain information concerning the petition for review. Based on the information provided by both parties, it appeared that the issues presented in the court proceeding could be dispositive of the issues raised in the negotiability proceeding before the Authority. Therefore, the Authority suspended processing of the Union's negotiability appeal until the court rendered a decision in the matter or took other dispositive action. On March 3, 1993, the United States Court of Appeals for the District of Columbia Circuit issued an Order in which it granted the Agency's motion to dismiss the petition for lack of jurisdiction. The court stated that the Union had failed to identify a final, reviewable order over which the court could assert jurisdiction and that the petition was not timely filed even assuming the Secretary's determination was a final order. Thereafter, by Order dated April 30, 1993, the Authority notified the parties that it would resume processing the negotiability appeal.

C. Analysis and Conclusions

For the following reasons, we conclude that the Authority is without jurisdiction to address issues pertaining to the Secretary's determination under title 38. In view of our conclusion, we will not address the Secretary's negotiability determination regarding title 5 at this time.

The authority of the Secretary to prescribe by regulation the hours and conditions of employment of bargaining unit employees is subject to their right to engage in collective bargaining in accordance with chapter 71 of title 5. 38 U.S.C. § 7422(a). However, 38 U.S.C. § 7422(b) provides that "[s]uch collective bargaining . . . may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title." The determination of whether a matter or question concerns or arises out of professional conduct or competence, peer review, or employee compensation "shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency." 38 U.S.C. § 7422(d). The legislative history of section 7422(d) states that:

[t]he reported bill places the final decision as to whether a matter involves professional conduct or competence with the Secretary, and the Secretary's decision is not subject to collective bargaining or review by any other agency, such as the Federal Labor Relations Authority . . . .

H.R. Rep. No. 466, 101st Cong., 2d sess. 29 (Apr. 26, 1990).⁽³⁾ Based on the language of the statute and the legislative history, it is evident that the Secretary's determination as to whether a proposal concerns a matter excluded from collective bargaining under section 7422(b) of title 38 is not reviewable by the Authority. Consequently, we are unable to address the Union's contention that the provision is not covered by 38 U.S.C. § 7422(b) because it specifically excludes issues concerning the professional conduct or competence of bargaining unit employees.

In light of our conclusion, we decline to exercise our jurisdiction to review matters arising under the Statute with respect to the provision in dispute. We are aware that where the conditions for review have been met, the Union is entitled to expedited review of a negotiability appeal under section 7117(c) of the Statute. However, even if we were to find that a provision is negotiable under the Statute, the Secretary's determination that a provision is nonnegotiable because it concerns or arises out of one of the areas excluded from collective bargaining under 38 U.S.C. § 7422(b) would remain a bar to negotiation. As we found above, section 7422 of title 38 precludes the Authority from resolving any dispute regarding the Secretary's title 38 negotiability determination. Therefore, any decision with respect to the negotiability of the provision under the Statute at this time would be advisory. Under section 2429.10 of the Authority's Rules and Regulations, the Authority may not issue advisory opinions. Accordingly, we will dismiss the petition for review.

Although we do not address the title 5 issue at this time, if judicial review of the Secretary's title 38 determination is available and, on review, it is found that the matter proposed to be bargained does not involve an area excluded from bargaining under title 38, we will consider a petition for review at that time, assuming the conditions for review have been met.

III. Order

The Union's petition for review is dismissed.

APPENDIX

Article VI, section 8

Verbal counseling shall be used constructively to encourage an employee's improvement and will be accomplished through private discussion between management and the concerned employee. A copy of any documentation regarding verbal counseling will be provided to the employee within one week of the counseling. Written counseling will be dealt with in the same manner and two copies of the counseling furnished to the employee. Unless other similar or other non-professional conduct issues arise, normally a written counseling will not be kept or used to support other personnel actions after six months of the date of counseling. The requirements of this section do not apply to verbal and[/]or written counseling dealing with issues of professional conduct or competency.

[Only the underscored sentence is in dispute.]

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. By Order dated July 30, 1992, the parties were granted permission to file supplemental pleadings. Because of the nature of the issues raised in this appeal, we have considered all of the submissions by the parties in rendering our decision.

2. The petition originally included several other provisions. Subsequently, the Union withdrew its appeal with regard to certain provisions and stated that only Article VI, section 8 remained before the Authority. The text of Article VI, section 8 is found in the Appendix to this decision.

3. The legislative history accompanied H.R. 4557, which was reintroduced in the subsequent session of Congress as H.R. 598 and, with some modifications not relevant here, was enacted into law.

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