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49 FLRA No. 66

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF VETERANS AFFAIRS

VETERANS AFFAIRS MEDICAL CENTER

JACKSON, MISSISSIPPI

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 589

(Charging Party/Union)

4-CA-10814

4-CA-10816

(48 FLRA 787 (1993))

(49 FLRA No. 23 (1994))

_____

ORDER DENYING MOTION FOR RECONSIDERATION

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 in VA v. FLRA and the relationship between title 38 and the Statute. In this regard, the Union asserts that the Statute guarantees all Federal employees, including the employees involved in this case, certain rights in addition to the right to bargain collectively. The Union also maintains that the legislative history to the amended provisions of title 38⁽⁵⁾ confirms that Congress intended to accord title 38 employees the same fundamental rights as other Federal employees with respect to labor-management relations. The Union asserts that, if Congress intended to exclude title 38 employees from coverage of section 7114(a)(2)(B) of the Statute, it would have included that provision in 38 U.S.C. § 7425(a).⁽⁶⁾ According to the Union, 38 U.S.C. § 7425(b) does not override the rights contained in the Statute. The Union also argues that title 38 contains no provision which renders representation rights inapplicable to title 38 employees.

IV. Analysis and Conclusions

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. We conclude that the Union has not established extraordinary circumstances within the meaning of section 2429.17. Rather, the Union's arguments are the same as those we considered in 48 FLRA 787 and 49 FLRA No. 23.

Our decision in 49 FLRA No. 23 was based on, among other things, the court's holding in VA v. FLRA that the Respondent is authorized to promulgate regulations governing working conditions of non-hybrid employees without regard to contrary requirements in the Statute. We noted, as did the court, that such interpretation of the Respondent's authority was consistent with 38 U.S.C. § 7421(a), which authorizes the Respondent to "'prescribe by regulation the . . . conditions of employment" of non-hybrid employees "'[n]otwithstanding any law, Executive [O]rder, or regulation.'" 49 FLRA No. 23, slip op. at 4.

Here, the Union asserts that 38 U.S.C. § 7425 does not override the statutory rights provided to Federal employees by the Statute. However, the Union cites no authority to support its assertion. Nothing in the Union's arguments, therefore, establish that reconsideration of the Authority's decision and order in 49 FLRA No. 23 is warranted. For example, U.S. Department of the Treasury, United States Customs Service and National Treasury Employees Union, 46 FLRA 1433 (1993) reconsideration denied 47 FLRA 475, 479 (1993) petition for review filed, No. 93-1388 (D.C. Cir. June 16, 1993).

We conclude that the Union's arguments constitute mere disagreement with our findings and conclusions in 49 FLRA No. 23 and that the Union has failed to establish that extraordinary circumstances exist which would warrant reconsideration of our decision in 49 FLRA No. 23. Accordingly, we will deny the Union's motion for reconsideration.

V. Order

The Union's motion for reconsideration is denied.

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

1. The applicable provisions of 38 U.S.C. § 7401 et seq. are set forth in 48 FLRA 787 and 49 FLRA No. 23.

2. VA Manual MP-5, Part II, Chapter 4.06(4) provides that affected employees are not entitled to legal or other representation at professional standards board reviews. See

49 FLRA No. 23, slip op. at 2 n.2.

3. As noted by the Union in its motion for reconsideration, the Respondent's request for reconsideration was untimely filed. However, as discussed in 49 FLRA No. 23, the Respondent requested, and the Authority granted, a waiver of the time limit under section 2429.23(b) of the Authority's Rules and Regulations.

4. 38 U.S.C. § 7403(a)(2) provides that "non-hybrid" employees include, among others, the nurses involved in this case.

5. As noted in 48 FLRA 787, Title 38 was amended in May 1991. See 48 FLRA 787, 788 n.2.

6. 38 U.S.C. § 7425(a) sets forth the portions of title 5 that do not apply to title 38 employees.

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