16:0364(58)NG - NFFE Council of Consolidated VA Locals and VA, Washington Office -- 1984 FLRAdec NG

[ v16 p364 ]
The decision of the Authority follows:

 16 FLRA No. 58
                                            Case No. O-NG-773
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and presents issues
 concerning the negotiability of the following Union proposal.
                                 ARTICLE 7
                            GRIEVANCE PROCEDURE
          Section 1-- COMMON GOALS
          The Employer and the Union recognize the importance of settling
       disagreements and disputes promptly, fairly, and in an orderly
       manner that will maintain the self respect of the employee and be
       consistent with the principles of good management.  To accomplish
       this, every effort will be made to settle grievances expeditiously
       and at the lowest level of supervision.
          Section 2-- SCOPE
          Grievance means any complaint-- by any employee concerning any
       matter relating to the employment of the employee;  by the union
       concerning any matter relating to the employment of any employee;
       or by any employee, the union, or agency concerning-- the effect
       or interpretation, or a claim of breach, of a collective
       bargaining agreement including Supplemental Agreement;  or any
       claimed violation, misinterpretation, or misapplication of any
       law, rule, or regulation affecting conditions of employment.
          This grievance procedure does not apply to:
          a) any claimed violation of 5 USC, Chapter 73, subchapter III,
       relating to prohibited political activities;
          b) retirement, life insurance, or health insurance;
          c) a suspension or removal under 5 USC 7532;
          d) any examination, certification, or appointment;
          e) the classification of any position which does not result in
       the reduction in grade or pay of an employee.
          Employees have the option of raising the following matters
       under a statutory appeals procedure or the negotiated grievance
       procedure but not both;  adverse actions (5 USC 7512), actions
       based on unacceptable performance (5 USC 4303), and discrimination
       (5 USC 2302(b)(1)).  An employee shall be deemed to have exercised
       his option under this section to raise the matter under either a
       statutory procedure or the negotiated procedure at such time as
       the employee timely initiates an action under the applicable
       statutory procedure or timely files a grievance in writing, in
       accordance with the negotiated procedure, whichever event occurs
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determination.
 The Union asserts that the specific intent of its proposal is to provide
 "title 38 employees" with the option of raising a grievance either under
 the negotiated procedure or under procedures established by title 38 of
 the United States Code.  The Agency alleges that the proposal is
 nonnegotiable to the extent that it is intended to cover professional
 Department of Medicine and Surgery (DM&S) employees appointed under
 authority of title 38, U.S.C. and contends that 38 U.S.C. 4110 provides
 the exclusive procedure for resolving charges of "inaptitude,
 inefficiency or misconduct" against DM&S professionals.
    The Authority has previously held that the Veterans Administration is
 under no obligation to bargain concerning proposals covering
 disciplinary and adverse actions insofar as these proposals relate to
 disputes regarding discipline imposed on DM&S professional employees for
 "inaptitude, inefficiency or misconduct," as such matters