[ v26 p264 ]
26:0264(33)CA
The decision of the Authority follows:
26 FLRA No. 33
VETERANS ADMINISTRATION
WASHINGTON, D.C.
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-50461
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority, in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations, based on an August 4, 1986 stipulation of facts by the
parties, who have agreed that no material issue of fact exists. Briefs
for the Authority's consideration were filed by the Respondent, the
Charging Party and the General Counsel.
The complaint alleges that the Respondent violated section
7116(a)(1), (5) and (6) of the Federal Service Labor-Management
Relations Statute (the Statute) by refusing to comply with an order of
the Federal Service Impasses Panel (the Panel), and thereby also
refusing to negotiate in good faith with the Charging Party (AFGE/the
Union).
II. Facts
AFGE is the exclusive representative of certain of the Respondent's
professional employees of the Department of Medicine and Surgery (DM&S)
who are appointed under Chapter 73 of Title 38, United States Code, and
are engaged in health care related duties in a nationwide bargaining
unit. During the course of bargaining for an initial master agreement,
the parties failed to reach agreement on 11 proposals. The Respondent
took the position that the proposals were nonnegotiable. AFGE invoked
the services of the Panel. The Panel initially declined to assert
jurisdiction on the grounds that the issues posed unresolved
negotiability matters.
Subsequently, acting on the Union's request for reconsideration, the
Panel asserted jurisdiction as to the one proposal here in issue, the
proposed grievance procedure. The Panel stated that, with respect to
the grievance procedure, "proposals on this subject are negotiable at
least to the extent that they exclude disputes covered by 38 U.S.C.
4110. (Veterans Administration Medical Center, Minneapolis, Minnesota
v. Federal Labor Relations Authority, 705 F.2d 953 (8th Cir. 1983))."
Panel letter of August 8, 1984 (Joint Exhibit No. 11). The Panel
accordingly amended its earlier determination declining to assert
jurisdiction over the grievance procedure issue and directed that the
issue be resolved.
The Respondent entered a limited appearance before the Panel to argue
that the Panel had no jurisdiction because the matter involved a
negotiability issue. It asserted that all employees appointed under
Title 38 are excluded from the coverage of the Statute, and the matter
is therefore not negotiable.
On February 5, 1985, the Panel issued its Decision and Order in
Veterans Administration, Washington, D.C. and National Council of VA
Locals, American Federation of Government Employees, AFL-CIO, Case No.
84 FSIP 49. With respect to the issue of the Panel's jurisdiction, the
Panel stated:
As a threshold issue, the Employer asserts that the Panel does
not have jurisdiction over this dispute because Management has
raised a 'legitimate negotiability question.' In this regard, the
FLRA held in (Vermont Air National Guard, Burlington, Vermont, 9
FLRA 737 (1982)) that the scope of the grievance procedure is a
matter affecting working conditions and, 'as a condition of
employment, is a mandatory subject for collective bargaining under
the Statute.' The Panel, as an entity within the FLRA, must follow
decisions of the Authority until reversed by the FLRA itself or
the U.S. Supreme Court. In the circumstances of this case, the
Employer has not demonstrated that Vermont is inapplicable.
Moreover, the record before us indicates that the parties have
engaged in negotiations over the scope of the grievance procedure
and agreed to exclude incentive awards in addition to the
mandatory exclusions set forth in section 7121(c) of the Statute.
Id., slip op. at 8-9. As to the merits, the Panel ordered the
parties to withdraw their separate proposals and to adopt certain
language in their contract regarding the grievance procedure.
On April 19, 1985, the Panel issued a corrected copy of its Decision
and Order, stating that "the Panel intended its Order to encompass
personnel actions involving Title 38 employees (and that such) actions,
of course, include 'disciplinary measures.'" Joint Exhibit No. 5. As
corrected, the Panel's Decision and Order directed the parties to adopt
the following language in the contract provision regarding the grievance
procedure:
A complaint shall not include a grievance over personnel
actions, including disciplinary measures, concerning the
performance or conduct of employees appointed under title 38,
where such performance or conduct is directly related to the
provision of health care and under the provisions of title 38 the
decision of the Administrator in such matters is to be final.
Id., slip op. at 10. On July 2, 1985, the Panel issued a
clarification of its intent in correcting the language. The Panel
stated that it was its intent "that the personnel actions described in
its Order be based on charges of inaptitude, inefficiency or misconduct
as set forth in 38 U.S.C. Section 4110(a)." Joint Exhibit No. 6.
Since on or about July 22, 1985, the Respondent has refused to sign
the negotiated agreement which includes the language ordered by the
Panel, on the grounds that the Panel exceeded its jurisdiction by making
a negotiability determination with respect to the applicability of the
grievance procedure to individual grievances filed by Title 38
employees.
III. Positions of the Parties
A. The Respondent
The Respondent contends that it had no obligation to sign the
agreement including the language imposed by the Panel (1) because the
Panel was without authority to make such a determination and (2) because
the Panel's order is contrary to law. As to (1), it argues that the
Panel's decision is a negotiability determination, and the Authority has
found that the Panel is without authority to make such determinations.
Interpretation and Guidance, 11 FLRA 626 (1983). Further, while the
Panel relied upon the Authority's finding in Vermont Air National Guard
that the scope of the grievance procedure "is a mandatory subject for
collective bargaining under the Statute," the Respondent argues that the
Authority there also specifically held that the grievance procedure may
only cover matters which lawfully could be covered. The Respondent
argues that the courts' decisions in Veterans Administration Medical
Center, Minneapolis, Minnesota v. FLRA, 705 F.2d 953 (8th Cir. 1983) (VA
Minneapolis), and Veterans Administration Medical Center, Northport, New
York v. FLRA, 732 F.2d 1128 (2d Cir. 1984) (VA Northport), did not
determine the question of negotiability here involved.
As to (2), the Respondent argues that because Chapter 73 of Title 38
provides a separate and distinct personnel system for employees
appointed under that Chapter, those employees can not lawfully be
included in any grievance procedure negotiated under the Statute.
According to the Respondent, the Panel's order is therefore contrary to
law and is unenforceable through the unfair labor practice procedures.
Respondent argues that the Authority's negotiability appeal procedure is
the only proper procedure for resolving the conflict, and notes that
there are numerous appeals pending before the Authority on the matter.
B. The Union and the General Counsel
The Union argues that the Panel was correct in asserting jurisdiction
on the grounds that the negotiability of the grievance procedure is a
matter already decided by the Authority. It contends that the courts in
VA Minneapolis and VA Northport also determined that grievance
procedures were negotiable at least as to all non-disciplinary matters.
Further, the Union cites cases in which the Authority made unfair labor
practice findings involving Title 38 employees' working conditions. In
view of these decisions, the Union argues that the Panel was required to
take jurisdiction, that the Panel lawfully issued an order to execute an
agreement with regard to the grievance procedure, and that the
Respondent therefore violated section 7116(a)(1), (5) and (6) of the
Statute by refusing to do so.
The General Counsel argues that the Panel did not make a
negotiability determination, and that the Panel's Decision and Order
comports with the Authority's rulings in this area. Therefore, the
General Counsel contends that the Respondent's refusal to execute the
negotiated agreement as directed by the Panel constitutes an improper
refusal to bargain in good faith and to cooperate in impasse procedures
and decisions. Additionally, the General Counsel notes that the
language ordered by the Panel specifically excludes from the grievance
procedure those matters encompassed within section 4110 of Title 38.
IV. Analysis
As to the Respondent's first contention, we find that the Panel did
not exceed its authority in asserting jurisdiction over the issue in
dispute. In asserting jurisdiction, the Panel cited VA Minneapolis, in
which the court stated that its "decision does not preclude proposals
concerning grievance procedures, which could include binding
arbitration, to be used in employment disputes not covered by section
4110." Panel letter of August 8, 1984 (Joint Exhibit No. 11). The Panel
also concluded that it was bound by the Authority's determination in
Vermont Air National Guard that the scope of the grievance procedure is
a mandatory subject for bargaining, and it therefore considered the
merits of the proposal at impasse. See American Federation of
Government Employees, Locals 225, 1504 and 3723 v. FLRA, 712 F.2d 640
(D.C. Cir. 1983), affirming the Authority's determination first made in
Vermont Air National Guard. Therefore, the Panel did not make an
independent negotiability determination, but rather asserted
jurisdiction on the basis of existing precedent in this area. In these
circumstances, the Panel's jurisdiction was unaffected by the fact that
other negotiability cases on this subject were pending at the time
before the Authority. Accordingly, we find that the Panel did not err
in asserting jurisdiction.
We also find no merit in the Respondent's contention that the Panel's
order is contrary to law. The Respondent's arguments in this connection
are similar to those we considered and rejected in Colorado Nurses
Association and Veterans Administration Medical Center, Ft. Lyons,
Colorado, 25 FLRA No. 66 (1987), petition for review filed sub nom.
Colorado Nurses Association v. FLRA, No. 87-1104 (D.C. Cir. Feb. 25,
1987). /1/ In Ft. Lyons, the initial question before us was whether the
Agency has a duty to bargain over the conditions of employment of DM&S
professional employees. The same basic arguments are raised in this
case. We find here, as we did in Ft. Lyons, that a conflict does not
exist between the authority of the VA Administrator under section
4108(a) of Title 38 and the duty to bargain under section 7117 of the
Statute, and that nothing in Title 38 operates to remove the conditions
of employment of DM&S professional employees from the VA's duty to
bargain under the Statute, except those disciplinary matters exclusively
provided for by section 4110 of Title 38.
Accordingly, we find that the subject matter before the Panel was a
matter about which the Respondent had a duty to bargain and further find
that the Panel's Decision and Order was not contrary to law. By not
complying with the Panel's decision, the Respondent assumed a risk that
if its position did not prevail, it would be found to have committed an
unfair labor practice. See Department of the Treasury and Internal
Revenue Service, 22 FLRA No. 89 (1986), slip op. at 10-11, petition for
review filed sub nom. Department of the Treasury, Internal Revenue
Service v. FLRA, No. 86-1475 (D.C. Cir. Aug. 25, 1986). We so find.
/2/
V. Conclusion
We have considered all the facts and circumstances of this case,
including the positions of the parties. We conclude that the Respondent
has violated section 7116(a)(1) and (6) of the Statute by failing and
refusing to comply with the Decision and Order of the Panel. In view of
this finding, we find it unnecessary to pass on whether the Respondent's
conduct also violated section 7116(a)(5) of the Statute. See U.S. Army
Corps of Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA
456 (1984). We shall grant the remedial order requested by the General
Counsel.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Veterans Administration,
Washington, D.C., shall:
1. Cease and desist from:
(a) Failing and refusing to comply with the Decision and Order of the
Federal Service Impasses Panel in Case No. 84 FSIP 49 by failing and
refusing to adopt the language with regard to the grievance procedure
ordered by the Panel.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Comply with the Decision and Order of the Federal Service
Impasses Panel in Case No. 84 FSIP 49 by adopting the language with
regard to the grievance procedure ordered by the Panel.
(b) Post at all its facilities where there are DM&S employees
represented by the American Federation of Government Employees, AFL-CIO,
copies of the attached Notice on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms, they shall be
signed by the Administrator, and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that said
Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with it.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges a
violation of section 7116(a)(5) of the Statute, is dismissed.
Issued, Washington, D.C., March 17, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) See Ft. Lyons, slip op. at 1, where we noted that we had granted
the Respondent's motion for consideration of common issues in pending
cases. This case was included within that motion.
(2) If the Respondent's position had been sustained, however, we
would not have found it in violation of the Statute. See Office of
Personnel Management, Washington, D.C., 17 FLRA 302 (1985).
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to comply with the Decision and Order of
the Federal Service Impasses Panel in Case No. 84 FSIP 49 by failing or
refusing to adopt the language with regard to the grievance procedure
ordered by the Panel.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL comply with the Decision and Order of the Federal Service
Impasses Panel in Case No. 84 FSIP 49 by adopting the language with
regard to the grievance procedure ordered by the Panel.
(Agency)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
number is: (202) 653-8500.