49:0171(23)CA - - VA Medical Center, Jackson, MS and NFFE, Local 589 - - 1994 FLRAdec CA - - v49 p171
[ v49 p171 ]
The decision of the Authority follows:
49 FLRA No. 23
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF VETERANS AFFAIRS
VETERANS AFFAIRS MEDICAL CENTER
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
(48 FLRA 787 (1993))
DECISION AND ORDER ON RECONSIDERATION
February 28, 1994
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on the Respondent's motion for reconsideration of the Authority's decision in 48 FLRA 787 (1993). The Respondent also requests a waiver of the time limit set forth in section 2429.17 of our Rules and Regulations within which to file its request. The General Counsel filed an opposition to the motion.
Section 2429.17 of our 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 extraordinary circumstances exist warranting our waiver of the time limit set forth in section 2429.17. In addition, we find that extraordinary circumstances exist warranting our grant of the Respondent's request for reconsideration.
II. The Decision in 48 FLRA 787
In 48 FLRA 787, 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 permitted a Union representative to attend, but not to speak or otherwise participate in, two separate meetings with two probationary bargaining unit employees. The meetings encompassed Nurses Professional Standards Board (NPSB) peer reviews, conducted under the pertinent provisions of title 38 of the United States Code.(1) The two employees were terminated on the recommendation of the NPSB.
The Authority found that the NPSB reviews constituted investigatory examinations entitling the two affected employees to the representation rights provided in section 7114(a)(2)(B) of the Statute. Accordingly, we concluded that, by allowing a Union representative to attend but not speak or otherwise participate in the formal proceedings, the Respondent violated section 7114(a)(2)(B). To remedy the unfair labor practice, the Authority ordered, among other things, the Respondent to allow Union representatives to participate in professional standards board peer reviews for probationary employees.
In reaching these conclusions, the Authority rejected the Respondent's argument that 38 U.S.C. § 7422 precluded collective bargaining over regulations governing peer reviews. We stated that the rights set forth in section 7114(a)(2)(B) of the Statute are not dependant on collective bargaining. We further found that the Respondent could not, through issuance of VA Manual MP-5, Part II, Chapter 4.06(4), limit the rights granted to unit employees by the Statute.(2) We also found that nothing in title 38 excluded unit employees from coverage under section 7114(a)(2)(B) and that the Respondent failed to demonstrate that section 7114(a)(2)(B) was inconsistent with its authority to terminate probationary employees.
III. Motion for Reconsideration
The Respondent contends that the Authority's decision in 48 FLRA 787 is inconsistent with the subsequently issued decision in U.S. Department of Veterans Affairs v. FLRA, 9 F.3d 123 (D.C. Cir. 1993) (Veterans Affairs v. FLRA). In this regard, the Respondent asserts that, although Veterans Affairs v. FLRA concerned the Respondent's authority to prescribe regulations regarding working conditions for "hybrid" employees, the court found that such authority was derived from the Respondent's authority to prescribe regulations governing the working conditions of "non-hybrid" employees.(3) Motion at 3. According to the Respondent, the court found that Respondent's authority to prescribe regulations existed "'[n]otwithstanding any law, Executive [O]rder, or regulation[.]'" Id. at 5 (quoting Veterans Affairs v. FLRA, 9 F.3d at 127).
The Respondent also argues that the Authority's determination that section 7114(a)(2)(B) rights are not tied to collective bargaining is erroneous and "gives a 'miserly' construction to 'collective bargaining.'" Id. at 7. The Respondent asserts that the Authority has previously construed "'collective bargaining' to include all labor-management activities affecting working conditions, as well as the union's status as exclusive representative." Id. Respondent alleges that, as section 7114(a)(2)(B) rights involve collective bargaining and, under 38 U.S.C. § 7422, collective bargaining does not extend to peer review matters, the representation rights set forth in section 7114(a)(2)(B) of the Statute do not apply to peer review proceedings.
B. General Counsel
The General Counsel argues that the Respondent's request for reconsideration does not establish extraordinary circumstances, within the meaning of section 2429.17 of the Authority's Rules and Regulations, and that the request is an attempt "to reargue the case in a . . . different manner." Response at 2. The General Counsel further argues that the Respondent has not established that extraordinary circumstances exist to warrant granting the Respondent's motion to waive the time limit set forth in section 2429.17 of our Regulations.
IV. Analysis and Conclusions
In Veterans Affairs v. FLRA, the court held, as relevant here, that the Respondent was free to prescribe regulations governing peer review procedures for nonhybrid employees without regard to bargaining obligations set forth in the Statute. 9 F.3d at 129. The court noted that, although Congress amended certain provisions of title 38 in 1991, the Respondent remained free, after the 1991 amendments, to "prescribe, without negotiating, regulations governing, for example, peer review procedures with respect to nonhybrid employees." Id. The court observed that the Respondent's "absolute" power in this regard was