American Federation of Government Employees Local 3669, AFL-CIO (Union) and Veterans Administration Medical Center, Minneapolis, Minnesota (Activity) 

 



[ v04 p391 ]
04:0391(53)NG
The decision of the Authority follows:


 4 FLRA No. 53
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES
 LOCAL 3669, AFL-CIO
 Union
 
 and
 
 VETERANS ADMINISTRATION
 MEDICAL CENTER,
 MINNEAPOLIS, MINNESOTA
 Activity
 
                                            Case No. O-NG-142
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                              UNION PROPOSALS
 
                               ARTICLE XXIV
 
                           DISCIPLINARY ACTIONS
 
    SECTION 2.  IF THE EMPLOYER PROPOSES TO SUSPEND AN EMPLOYEE FOR 14
 CALENDAR DAYS OR LESS, THE FOLLOWING PROCEDURES WILL APPLY:
 
    (A) THE EMPLOYER WILL PROVIDE THE EMPLOYEE WITH 10 WORKDAYS ADVANCE
 WRITTEN NOTICE OF THE
 
    PROPOSED ACTION;
 
    (B) THE NOTICE MUST STATE THE REASONS FOR THE PROPOSED DISCIPLINE
 SPECIFICALLY AND IN
 
    DETAIL SO AS TO DELINEATE SPECIFICS TO WHICH THE EMPLOYEE CAN
 RESPOND, AND MUST CLEARLY STATE
 
    THE EMPLOYEE'S RIGHT TO MAKE A RESPONSE TO THE PROPOSAL AND HIS/HER
 RIGHT TO BE REPRESENTED BY
 
    THE UNION;
 
    (C) THE EMPLOYEE MAY FILE A WRITTEN RESPONSE AND/OR MAKE AN ORAL
 RESPONSE TO THE
 
    NOTIFICATION PRIOR TO THE END OF THE 10 WORKDAY NOTICE PERIOD;
 
    (D) AFTER RECEIPT OF THE WRITTEN AND/OR ORAL RESPONSE OR THE
 TERMINATION OF THE NOTICE
 
    PERIOD, MANAGEMENT WILL ISSUE A FINAL WRITTEN DECISION TO THE
 EMPLOYEE WHICH SHALL INCLUDE A
 
    STATEMENT OF THE EMPLOYEE'S APPEAL AND/OR GRIEVANCE RIGHTS.
 
                              ADVERSE ACTION
 
    SECTION 2.
 
    (C) THE WRITTEN NOTICE MUST STATE THE REASONS FOR THE ADVERSE ACTION
 SPECIFICALLY AND IN
 
    DETAIL, SO AS TO DELINEATE SPECIFICS TO WHICH THE EMPLOYEE CAN
 RESPOND, AND MUST CLEARLY STATE
 
    THE EMPLOYEE'S RIGHT TO MAKE A RESPONSE TO THE PROPOSAL AND HIS/HER
 RIGHT TO BE REPRESENTED BY
 
    THE UNION.
 
    (D) THE EMPLOYEE MAY FILE A WRITTEN RESPONSE AND/OR MAKE AN ORAL
 RESPONSE TO THE PROPOSED
 
    NOTICE WITHIN 10 WORKDAYS AFTER RECEIPT OF THE WRITTEN NOTICE.
 
    (E) WITHIN 10 WORKDAYS OF RECEIPT OF THE WRITTEN AND/OR ORAL RESPONSE
 OR THE TERMINATION OF
 
    THE NOTICE PERIOD, THE EMPLOYER WILL ISSUE A FINAL WRITTEN DECISION
 TO THE EMPLOYEE WHICH
 
    SHALL INCLUDE A STATEMENT OF THE EMPLOYEE'S RIGHT TO APPEAL TO THE
 (MERIT SYSTEMS PROTECTION
 
    BOARD) VETERANS ADMINISTRATION /1/ AND/OR THE EMPLOYEE'S RIGHT TO
 FILE A GRIEVANCE IN
 
    ACCORDANCE WITH THIS AGREEMENT. (FOOTNOTE ADDED.)
 
    SECTION 3.
 
    (A) AN EMPLOYEE WILL IN ANY ADVERSE ACTION, BE FURNISHED A COPY OF
 ALL WRITTEN DOCUMENTS
 
    WHICH CONTAIN MATERIAL AND/OR EVIDENCE RELIED ON BY THE EMPLOYER AS A
 BASIS FOR THE REASONS
 
    AND SPECIFICATIONS.
 
    (B) IF THE ADVERSE ACTION IS BASED ON AN INVESTIGATION REPORT, THOSE
 PORTIONS OF ALL
 
    WRITTEN DOCUMENTS FROM THE INVESTIGATION REPORT WHICH RELATE TO THE
 SPECIFICATIONS WILL BE
 
    FURNISHED TO THE EMPLOYEE.
 
    (C) THE DOCUMENTATION SPECIFIED IN (A) AND (B) ABOVE WILL BE ATTACHED
 TO THE NOTICE OF
 
    DECISION OF ADVERSE ACTION.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION PROPOSALS CONCERNING DISCIPLINARY
 AND ADVERSE ACTIONS ARE MATTERS OUTSIDE THE DUTY TO BARGAIN UNDER
 SECTION 7117 OF THE STATUTE BECAUSE THEY ARE INCONSISTENT WITH FEDERAL
 LAW (38 U.S.C. 4110), /2/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE SUBJECT PROPOSALS ARE WITHIN THE AGENCY'S
 DUTY TO BARGAIN UNDER THE STATUTE AND ARE NOT INCONSISTENT WITH 38
 U.S.C. 4110.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 F.R.
 48575), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE SUBJECT
 PROPOSALS.  /3/
 
    REASONS:  THE VETERANS ADMINISTRATION (VA) ALLEGES THAT THE PROPOSALS
 ARE NONNEGOTIABLE BECAUSE THEY CONFLICT WITH THE EXCLUSIVE STATUTORY
 PROCEDURE PROVIDED BY 38 U.S.C. 4110 FOR DISCIPLINARY MATTERS RELATING
 TO VA DEPARTMENT OF MEDICINE AND SURGERY (DM & S) EMPLOYEES, I.E.,
 DIRECT PATIENT CARE PROVIDERS.  THE AGENCY ARGUES THAT ANY PROPOSAL
 CONCERNING DISCIPLINE OF DM & S EMPLOYEES, AND SPECIFICALLY A PROPOSAL
 WHICH WOULD SUBJECT A DISCIPLINARY DECISION TO THIRD PARTY REVIEW,
 CONFLICTS WITH SECTION 4110 OF TITLE 38.  FURTHER, THE AGENCY ARGUES THE
 SPECIFIC STATUTORY SYSTEM OF DISCIPLINE PROVIDED FOR DM & S DIRECT
 PATIENT CARE PROVIDERS BY 38 U.S.C. 4110 MUST PREVAIL OVER THE MORE
 GENERAL PROVISIONS OF THE STATUTE RELATING TO THE DUTY TO BARGAIN OVER
 GRIEVANCE PROCEDURES.  THE AGENCY'S POSITION CANNOT BE SUSTAINED.
 CONTRARY TO THE AGENCY'S ASSERTIONS, THE UNION'S PROPOSALS DO NOT
 CONFLICT WITH THE DISCIPLINARY PROCEDURES MANDATED BY STATUTE FOR TITLE
 38 DM & S EMPLOYEES.  FURTHER, THE LEGISLATIVE HISTORY SHOWS THAT
 CONGRESS INTENDED THE DM & S PERSONNEL SYSTEM ESTABLISHED BY TITLE 38,
 INCLUDING ITS PROVISIONS RELATING TO DISCIPLINE, TO BE ENCOMPASSED BY
 THE PROVISIONS OF THE STATUTE.
 
    IN THIS REGARD, THE DEFINITIONS OF "AGENCY" AND "EMPLOYEE" FOR
 PURPOSE OF THE STATUTE INCLUDE THE VA AND DM & S EMPLOYEES UNDER 5
 U.S.C. 7103(A)(3) AND (2) RESPECTIVELY.  IN ADDITION, SECTION 7121 OF
 THE STATUTE PROVIDES FOR BROAD SCOPE GRIEVANCE PROCEDURES.  AS STATED
 WITH RESPECT TO SECTION 712, IN THE CONFERENCE REPORT ACCOMPANYING THE
 FINAL VERSION OF THE BILL WHICH WAS SUBSEQUENTLY ENACTED AND SIGNED INTO
 LAW:
 
    ALL MATTERS THAT UNDER THE PROVISIONS OF LAW COULD BE SUBMITTED TO
 THE GRIEVANCE PROCEDURES
 
    SHALL IN FACT BE WITHIN THE SCOPE OF ANY GRIEVANCE PROCEDURE
 NEGOTIATED BY THE PARTIES UNLESS
 
    THE PARTIES AGREE AS PART OF THE COLLECTIVE BARGAINING PROCESS THAT
 CERTAIN MATTERS SHALL NOT
 
    BE COVERED BY THE GRIEVANCE PROCEDURES.  JOINT EXPLANATORY STATEMENT
 OF THE COMMITTEE ON
 
    CONFERENCE, H.R. REP. NO. 1717, 95TH CONG., 2D SESS. 157 (1978)
 REPRINTED IN (1978) U.S. CODE
 
    CONG., & AD. NEWS 2860, 2891.  THE LIST OF MATTERS EXCLUDED FROM
 PERMISSIBLE COVERAGE BY NEGOTIATED GRIEVANCE PROCEDURES BY SECTION
 7121(C) OF THE STATUTE DOES NOT ADVERT TO DM & S EMPLOYEES' COMPLAINTS
 CONCERNING DISCIPLINARY ACTIONS.  THUS, ON THEIR FACE GRIEVANCE
 PROCEDURES NEGOTIATED UNDER THE STATUTE COVER SUCH MATTERS UNLESS THE
 PARTIES EXCLUDE THEM THROUGH BARGAINING.  MOREOVER, SECTION 7121(E)(1)
 OF THE STATUTE PROVIDES:
 
    (E)(1) MATTERS COVERED UNDER SECTIONS 4303 AND 7512 OF THIS TITLE
 WHICH ALSO FALL WITHIN
 
    THE COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE MAY, IN THE
 DISCRETION OF THE AGGRIEVED
 
    EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE PROCEDURES OF SECTION
 7701 OF THIS TITLE OR
 
    UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT BOTH.  SIMILAR
 MATTERS WHICH ARISE UNDER
 
    OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES COVERED BY THIS
 CHAPTER MAY, IN THE DISCRETION
 
    OF THE AGGRIEVED EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE
 PROCEDURES, IF ANY, APPLICABLE
 
    TO THOSE MATTERS, OR UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT
 NOT BOTH.  AN EMPLOYEE
 
    SHALL BE DEEMED TO HAVE EXERCISED HIS OPTION UNDER THIS SUBSECTION TO
 RAISE A MATTER EITHER
 
    UNDER THE APPLICABLE APPELLATE PROCEDURES OR UNDER THE NEGOTIATED
 GRIEVANCE PROCEDURE AT SUCH
 
    TIME AS THE EMPLOYEE TIMELY FILES A NOTICE OF APPEAL UNDER THE
 APPLICABLE APPELLATE PROCEDURES
 
    OR TIMELY FILES A GRIEVANCE IN WRITING IN ACCORDANCE WITH THE
 PROVISIONS OF THE
 
    PARTIES' NEGOTIATED GRIEVANCE PROCEDURE, WHICHEVER EVENT OCCURS
 FIRST.  5 U.S.C. 7121(E)(1).  THIS LANGUAGE AS REPORTED OUT OF THE
 SENATE-HOUSE CONFERENCE COMMITTEE IN THE FINAL VERSION OF THE BILL
 ENACTED AND SIGNED INTO LAW WAS IDENTICAL TO THAT IN THE BILL (S.  2640)
 REPORTED OUT OF THE SENATE COMMITTEE ON GOVERNMENT AFFAIRS AND
 SUBSEQUENTLY PASSED BY THE SENATE.  THE SENATE COMMITTEE REPORTED ON
 THIS SUBSECTION AS FOLLOWS:
 
    SUBSECTION (E) PROVIDES EMPLOYEES WITH AN OPTION, IN APPEALING
 MATTERS COVERED UNDER 5
 
    U.S.C. SECTION 4303 (DEMOTION OR REMOVAL FOR UNACCEPTABLE
 PERFORMANCE) OR 5 U.S.C. SECTION
 
    7512 (REMOVAL, SUSPENSION FOR MORE THAN 30 DAYS, REDUCTION IN GRADE,
 REDUCTION IN PAY OF AN
 
    AMOUNT EXCEEDING ONE STEP OF AN EMPLOYEE'S GRADE OR 3 PERCENT OF THE
 EMPLOYEE'S BASIC PAY,
 
    FURLOUGH FOR 30 DAYS OR LESS), OF USING THE STATUTORY APPEAL
 PROCEDURE UNDER 5 U.S.C. SECTION
 
    7701 OR THE NEGOTIATED GRIEVANCE PROCEDURE IF SUCH MATTERS HAVE BEEN
 NEGOTIATED INTO COVERAGE
 
    UNDER THE GRIEVANCE PROCEDURE.  IT ALSO PROVIDES THAT MATTERS SIMILAR
 TO THOSE LISTED ABOVE
 
    WHICH MAY ARISE UNDER OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES
 COVERED BY THIS
 
    SUBCHAPTER, SUCH AS THOSE PROVIDED IN TITLE 38, UNITED STATES CODE,
 MAY, IN THE DISCRETION OF
 
    THE AGGRIEVED EMPLOYEE, BE RAISED UNDER EITHER THE NEGOTIATED
 GRIEVANCE PROCEDURE OR UNDER ANY
 
    APPELLATE PROCEDURES WHICH WOULD OTHERWISE BE AVAILABLE TO THE
 EMPLOYEE IF THE MATTER WEREN'T
 
    COVERED BY THE GRIEVANCE PROCEDURE.  S. REP. NO. 95-969, 95TH CONG.,
 2D SESS. 110 (1978)
 
    REPRINTED IN (1978) U.S. CODE CONG., & AD. NEWS 2723, 2832.
 
    THIS CLEARLY STATES CONGRESS' INTENT THAT DISCIPLINARY MATTERS
 ARISING UNDER TITLE 38 WHICH ARE SIMILAR TO THE DISCIPLINARY AND ADVERSE
 ACTIONS DESCRIBED IN 5 U.S.C.  4303 AND 5 U.S.C. 7512 BE COVERED BY THE
 PROVISIONS OF SECTION 7121 OF THE STATUTE.  IT ALSO CLEARLY STATES
 CONGRESS' INTENT THAT TITLE 38 EMPLOYEES HAVE THE SAME OPTION AS
 EMPLOYEES COVERED BY TITLE 5 OF UTILIZING A NEGOTIATED GRIEVANCE
 PROCEDURE (IF THE PROCEDURE COVERS THE MATTER) OR AN AVAILABLE APPELLATE
 PROCEDURE WHEN THEY WISH TO CHALLENGE SUCH ACTIONS.
 
    THE UNION'S PROPOSAL, AS AMENDED, WOULD MAKE ADVERSE ACTIONS
 APPEALABLE TO THE VA OR UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.  THE
 SECOND SENTENCE OF SECTION 7121(E)(1) OF THE STATUTE PROVIDES THAT
 MATTERS SIMILAR TO TITLE 5 ADVERSE ACTIONS AND ACTIONS BASED ON
 UNACCEPTABLE PERFORMANCE WHICH ARISE UNDER OTHER PERSONNEL SYSTEMS MAY
 BE APPEALED UNDER ANY AVAILABLE APPELLATE PROCEDURES OR UNDER THE
 NEGOTIATED GRIEVANCE PROCEDURES.  THIS IS EXACTLY WHAT THE UNION
 PROPOSAL PROVIDES.
 
    THE PROCEDURES SET FORTH IN THE UNION PROPOSAL ON "DISCIPLINARY
 ACTIONS" BASICALLY TRACK THE PROVISIONS OF SUBCHAPTER I OF CHAPTER 75 OF
 TITLE 5 OF THE UNITED STATES CODE.  THE UNION PROPOSAL ON "ADVERSE
 ACTIONS" BASICALLY TRACKS SUBCHAPTER II OF THAT CHAPTER.  THERE IS
 NOTHING IN TITLE 38 WHICH IS INCONSISTENT WITH THE USE OF THE PROCEDURES
 PROPOSED BY THE UNION, I.E., ADVANCE WRITTEN NOTICE OF SPECIFIC CHARGES;
  THE OPPORTUNITY TO RESPOND AND TO PRESENT EVIDENCE;  A WRITTEN FINAL
 DECISION;  ETC., WHEN DISCIPLINARY ACTION IS CONTEMPLATED UNDER TITLE
 38.
 
    WHILE THE ADMINISTRATOR IS GRANTED BROAD AUTHORITY UNDER CHAPTER 73
 OF TITLE 38 TO PRESCRIBE REGULATIONS AND CARRY OUT THE FUNCTIONS OF THE
 DEPARTMENT OF MEDICINE AND SURGERY, THE "EXCLUSIVENESS" SOUGHT BY THE
 AGENCY WITH RESPECT TO DISCIPLINING TITLE 38 EMPLOYEES WOULD RESULT IN
 THE EXCLUSION OF DISCIPLINARY GRIEVANCES OF DM & S EMPLOYEES FROM
 COVERAGE BY SECTION 7121 OF THE STATUTE.  AS SHOWN ABOVE IT IS CLEAR
 THAT CONGRESS INTENDED THAT SUCH GRIEVANCES BE COVERED UNLESS
 SPECIFICALLY EXCLUDED BY THE PARTIES AND THAT THE NEGOTIATED PROCEDURE
 BE UTILIZED AT THE EMPLOYEE'S OPTION.  /4/
 
    IN VIEW OF THE FOREGOING, THE PROPOSALS AT ISSUE ARE MATTERS WITHIN
 THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE, AND THE AGENCY'S
 DETERMINATION OF NONNEGOTIABILITY MUST BE SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                         CERTIFICATION OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FLRA IN THE SUBJECT
 PROCEEDING HAVE THIS DAY BEEN MAILED TO THE PARTIES LISTED:
 
    MR. GUY MCMICHAEL III
 
    GENERAL COUNSEL
 
    VETERANS ADMINISTRATION
 
    1810 VERMONT AVENUE, N.W.
 
    WASHINGTON, D.C. 20420
 
    MR. RONALD D. KING, DIRECTOR
 
    CONTRACT AND APPEALS DIVISION
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
 
    1325 MASSACHUSETTS AVENUE, N.W.
 
    WASHINGTON, D.C. 20005
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN ITS RESPONSE TO THE AGENCY'S STATEMENT OF POSITION THE UNION
 AMENDED SECTION 2(E) OF ITS PROPOSAL DELETING THE REFERENCE TO THE
 "MERIT SYSTEMS PROTECTION BOARD" AND SUBSTITUTING THEREFOR THE WORDS
 "VETERANS ADMINISTRATION." THIS DECISION IS BASED ON THE PROPOSAL AS
 AMENDED.
 
    /2/ 38 U.S.C. 4110 PROVIDES:
 
    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.  WHEN SUCH CHARGES CONCERN A DENTIST, THE MAJORITY OF EMPLOYEES
 ON THE DISCIPLINARY BOARD SHALL BE DENTISTS.
 
    (B) THE ADMINISTRATOR SHALL APPOINT THE CHAIRMAN AND SECRETARY OF THE
 BOARD, EACH OF WHOM SHALL HAVE AUTHORITY TO ADMINISTER OATHS.
 
    (C) THE CHIEF MEDICAL DIRECTOR MAY DESIGNATE OR APPOINT ONE OR MORE
 INVESTIGATORS, TO ASSIST EACH DISCIPLINARY BOARD IN THE COLLECTION AND
 PRESENTATION OF EVIDENCE.  ANY PERSON ANSWERING TO CHARGES BEFORE A
 DISCIPLINARY BOARD MAY BE REPRESENTED BY COUNSEL OF HIS OWN CHOOSING.
 
    (D) A DISCIPLINARY BOARD, WHEN IN ITS JUDGMENT CHARGES ARE SUSTAINED,
 SHALL RECOMMEND TO THE ADMINISTRATOR SUITABLE DISCIPLINARY ACTION,
 WITHIN LIMITATIONS PRESCRIBED BY THE ADMINISTRATOR, WHICH SHALL INCLUDE
 REPRIMAND, SUSPENSION WITHOUT PAY, REDUCTION IN GRADE, AND DISCHARGE
 FROM THE DEPARTMENT OF MEDICINE AND SURGERY OF SUCH PERSON.  THE
 ADMINISTRATOR SHALL EITHER APPROVE THE RECOMMENDATION OF THE BOARD,
 APPROVE SUCH RECOMMENDATION WITH MODIFICATION OR EXCEPTION, APPROVE SUCH
 RECOMMENDATION AND SUSPEND FURTHER ACTION AT THE TIME, OR DISAPPROVE
 SUCH RECOMMENDATION.  HE SHALL CAUSE TO BE EXECUTED SUCH ACTION AS HE
 APPROVES.  THE DECISION OF THE ADMINISTRATOR SHALL BE FINAL.
 
    (E) THE ADMINISTRATOR, WITHIN SUCH LIMITATIONS AS HE MAY PRESCRIBE,
 MAY DELEGATE TO THE CHIEF MEDICAL DIRECTOR THE AUTHORITY VESTED IN HIM
 BY SUBSECTIONS (B) AND (D) OF THIS SECTION TO (1) APPOINT THE CHAIRMAN
 AND SECRETARY OF A