15:0948(176)CA - VA, Washington, DC and VA Medical Center, Minneapolis, MN and AFGE Local 3669 -- 1984 FLRAdec CA

[ v15 p948 ]
The decision of the Authority follows:

 15 FLRA No. 176
 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 wa