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

 16 FLRA No. 58
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, COUNCIL OF CONSOLIDATED
 VETERANS ADMINISTRATION LOCALS
 Union
 
 and
 
 VETERANS ADMINISTRATION,
 WASHINGTON OFFICE
 Agency
 
                                            Case No. O-NG-773
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    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
       first.
 
    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 are
 exclusively controlled by 38 U.S.C. 4110.  Veterans Administration,
 Washington, D.C. and Veterans Administration Medical Center,
 Minneapolis, Minnesota and American Federation of Government Employees,
 Local 3669, AFL-CIO, 15 FLRA 176 (1984).
 
    Consequently, consistent with Authority precedent and judicial
 determinations that a negotiated grievance procedure may not include
 within its scope and coverage matters related to the disciplining, based
 on inaptitude, inefficiency or misconduct, of title 38 DM&S professional
 personnel, and in light of the Union's expressed intent that such
 personnel be covered by the disputed grievance procedure herein, the
 Authority concludes that the Union's proposal is inconsistent with
 applicable law and outside the duty to bargain pursuant to section 7117
 of the Statute.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and it
 hereby is, dismissed.  Issued, Washington, D.C., October 31, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY