[ v15 p948 ]
15:0948(176)CA
The decision of the Authority follows:
15 FLRA No. 176
VETERANS ADMINISTRATION, WASHINGTON, D.C.
AND VETERANS ADMINISTRATION MEDICAL CENTER,
MINNEAPOLIS, MINNESOTA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3669, AFL-CIO
Charging Party
Case No. 5-CA-902
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record, including the stipulation of
facts, accompanying exhibits, and the parties' contentions, the
Authority finds:
The amended complaint alleges that the Respondent, Veterans
Administration, Washington, D.C. (the Agency) and Veterans
Administration Medical Center, Minneapolis, Minnesota (the Activity),
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) /1/ by failing and
refusing to consult and negotiate in good faith with American Federation
of Government Employees, Local 3669, AFL-CIO (the Union), and by
breaching an Interim Agreement entered into between the Agency and the
American Federation of Government Employees, National Veterans
Administration Council (the Council). Specifically, the complaint
alleges that the Respondent violated the Statute by failing to publish
and put into effect a locally negotiated contract provision following
its untimely disapproval by the Agency head.
The Activity and the Union, negotiating for a new collective
bargaining agreement, disagreed on proposals concerning disciplinary and
adverse actions. The Activity took the position that the Union's
proposal was nonnegotiable, and the Union filed a negotiability appeal
with the Authority. /2/ The Activity and the Union thereupon executed a
new collective bargaining agreement which included a grievance and
arbitration procedure, the disciplinary and adverse action provision
from their previous contract, and an agreement to amend the disciplinary
and adverse action provision when their negotiability differences were
resolved by either the Authority or the Federal Services Impasses Panel.
Meanwhile, the Council was certified as the exclusive representative
of a consolidated unit of the Agency's professional employees, including
those at the Activity in the unit concerned herein. Subsequently, the
Council and the Agency entered into an "Interim Agreement" permitting
local negotiations on matters already at the bargaining table, for the
purpose of completing a contract. The Interim Agreement imposed a
deadline for the completion of such negotiations, including the
resolution of negotiability issues before the Authority, after which
such issues not "concluded" would be considered moot and would be
mutually withdrawn. With the deadline imposed by the Interim Agreement
almost at hand, the Union acceded to the Activity's proposal which
covered both disciplinary and adverse actions, and which included a
sentence reading as follows:
No unit employee will be the subject of a disciplinary action
except for just and sufficient cause.
This locally agreed upon provision (Article XXIV, Disciplinary
Actions) was submitted to the Agency head for approval under section
7114(c) of the Statute. /3/ While the Agency head was reviewing that
provision, the Authority issued its negotiability decision in Case No.
O-NG-142, /4/ finding that the Union's proposal concerning disciplinary
and adverse actions was negotiable. Thereafter, although not within the
period specified in section 7114(c)(3) of the Statute, /5/ the Agency
head informed the Union that the provision was approved except for the
above-quoted sentence, which was disapproved as not conforming with law,
regulations or agency policy, with the following comment:
Article XXIV, Section 1. The last sentence must be modified to
bring it into conformance with 38 U.S.C. 4110(a). 38 U.S.C. 4119
is also cited.
These provisions are set out below. /6/
It is undisputed that the Activity never gave effect to the cited
sentence of Article XXIV, Section 1. Both the Agency head's disapproval
and the Activity's refusal to publish and make effective the disputed
provision were based on the Agency head's conclusion that the provision
conflicted with section 4110 of title 38 of the U.S. Code. That
contention had been raised by the activity in Veterans Administration,
supra, and was specifically rejected by the Authority in that case.
However, the Authority's decision in that case has since been set
aside by the Court of Appeals for the Eighth Circuit. The court held
that the Veterans Administration was not required by the Statute to
bargain about disciplinary and adverse action proposals insofar as those
proposals related to disputes regarding alleged professional misconduct.
The court reasoned that the Veterans Administration Law, and
specifically 38 U.S.C. 4110, providing for peer disciplinary boards to
determine professional misconduct, was intended to be the exclusive
remedy for discipline, and was not superseded by the Statute's grievance
and arbitration procedures. /7/ Subsequently, on April 19, 1984, the
Second Circuit reached the same conclusion on this issue. In doing so,
the Court added that if the Statute's enactment in 1978 impliedly ended
the exclusivity of the Veterans Administration peer review board
procedures set forth at 38 U.S.C. 4110, the 1980 enactment of 38 U.S.C.
4119, which provided that a title 38 section can be overridden by an
inconsistent title 5 section (including those of the Statute) only by
specific reference in the text of the title 5 Statute, reaffirmed that
exclusivity. /8/
The instant case requires the Authority to address once again the
issue of whether the Veterans Administration was required by the Statute
to bargain about disciplinary and adverse action proposals insofar as
those proposals related to disputes regarding alleged professional
misconduct, or whether such matters were within the exclusive purview of
sections 4110(a) and 4119 of title 38 of the United States Code. Based
upon the rationale and conclusions of the courts of appeals as set forth
above, the Authority now finds that the Respondent was under no
obligation to bargain concerning disciplinary and adverse action
proposals insofar as those proposals relate to disputes regarding
alleged professional misconduct, as such matters are exclusively
controlled by the above-cited sections of the Veterans Administration
Law. Since the provision at issue herein is not limited in any way, it
conflicts with that law. Thus, as the provision conflicts with "other
applicable law," pursuant to section 7114(c)(3) of the Statute, the
Respondent did not violate the Statute by failing to publish,
effectuate, or abide by the disputed agreement.
The Authority notes that the Agency head's disapproval of the
disputed provision was tardy, but concludes that such tardiness does not
alter the result in the circumstances of this case, since section
7114(c)(3) of the Statute /9/ requires that a provision must be in
accordance with "applicable law, rule, or regulation" whether approved,
disapproved or neither. /10/
ORDER
IT IS ORDERED that the complaint in Case No. 5-CA-902 be, and it
hereby is, dismissed.
Issued, Washington, D.C., August 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) of the Statute provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ American Federation of Government Employees, Local 3669, AFL-CIO
and Veterans Administration Medical Center, Minneapolis, Minnesota, 4
FLRA 391 (1980), set aside in part sub nom. Veterans Administration
Medical Center, Minneapolis, Minnesota v. Federal Labor Relations
Authority, 705 F.2d 953 (8th Cir. 1983), discussed further, infra.
/3/ Section 7114(c) provides:
Sec. 7114. Representation rights and duties
. . . .
(c)(1) An agreement between any agency and an exclusive
representative shall be subject to approval by the head of the
agency.
(2) The head of the agency shall approve the agreement within
30 days from the date the agreement is executed if the agreement
is in accordance with the provisions of this chapter and any other
applicable law, rule, or regulation (unless the agency has granted
an exception to the provision).
(3) If the head of the agency does not approve or disapprove
the agreement within the 30-day period, the agreement shall take
effect and shall be binding on the agency and the exclusive
representative subject to the provisions of this chapter and any
other applicable law, rule, or regulation.
(4) A local agreement subject to a national or other
controlling agreement at a higher level shall be approved under
the procedures of the controlling agreement or, if none, under
regulations prescribed by the agency.
/4/ American Federation of Government Employees, Local 3669, AFL-CIO
and Veterans Administration Medical Center, Minneapolis, Minnesota, 4
FLRA 391 (1980), supra, n. 2.
/5/ Supra, n. 3.
/6/ 38 U.S.C. 4110(a) and 4119 provide:
Sec. 4110. Disciplinary boards
(a) The Chief Medical Director, under regulations prescribed by
the Administrator, shall from time to time appoint boards to be
known as disciplinary boards, each such board to consist of not
less than three nor more than five employees, senior in grade, of
the Department of Medicine and Surgery, to determine, upon notice
and fair hearing, charges of inaptitude, inefficiency, or
misconduct of any person employed in a position provided in
paragraph (1) of section 4104 of this title. The majority of
employees on a disciplinary board shall be employed in the same
category of position as the employee who is the subject of the
charges.
Sec. 4119. Relationship between this subchapter and other
provisions of law
Notwithstanding any other provision of law, no provision of
title 5 or any other law pertaining to the civil service system
which is inconsistent with any provision of this subchapter shall
be considered to supersede, override, or otherwise modify such
provision of this subchapter except to the extent that such
provision of title 5 or of such other law specifically provides,
by specific reference to a provision of this subchapter, for such
provision to be superseded, overridden, or otherwise modified.
/7/ Veterans Administration Medical Center, Minneapolis, Minnesota v.
Federal Labor Relations Authority, 705 F.2d 953 (8th Cir. 1983), setting
aside in part 4 FLRA 391 (1980).
/8/ Veterans Administration Medical Center, Northport, New York v.
Federal Labor Relations Authority, 732 F.2d 1128 (2nd Cir. 1984),
denying enforcement of 10 FLRA 675 (1983).
/9/ Supra, n. 3.
/10/ See e.g., American Federation of Government Employees, Local
1753 and Department of the Air Force, Myrtle Beach Air Force Base, South
Carolina, 8 FLRA 152 (1982); National Federation of Federal Employees,
Local 1332 and Department of the Army, Headquarters, U.S. Army Materiel
Development and Readiness Command, 5 FLRA 599 (1981). See also
Interpretation and Guidance, 15 FLRA No. 120 (1984).