26:0264(33)CA - VA, Washington, DC and AFGE -- 1987 FLRAdec CA



[ v26 p264 ]
26:0264(33)CA
The decision of the Authority follows:


 26 FLRA No. 33
 
 VETERANS ADMINISTRATION 
 WASHINGTON, D.C.
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-50461
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority, in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations, based on an August 4, 1986 stipulation of facts by the
 parties, who have agreed that no material issue of fact exists. Briefs
 for the Authority's consideration were filed by the Respondent, the
 Charging Party and the General Counsel.
 
    The complaint alleges that the Respondent violated section
 7116(a)(1), (5) and (6) of the Federal Service Labor-Management
 Relations Statute (the Statute) by refusing to comply with an order of
 the Federal Service Impasses Panel (the Panel), and thereby also
 refusing to negotiate in good faith with the Charging Party (AFGE/the
 Union).
 
                                II.  Facts
 
    AFGE is the exclusive representative of certain of the Respondent's
 professional employees of the Department of Medicine and Surgery (DM&S)
 who are appointed under Chapter 73 of Title 38, United States Code, and
 are engaged in health care related duties in a nationwide bargaining
 unit.  During the course of bargaining for an initial master agreement,
 the parties failed to reach agreement on 11 proposals.  The Respondent
 took the position that the proposals were nonnegotiable.  AFGE invoked
 the services of the Panel.  The Panel initially declined to assert
 jurisdiction on the grounds that the issues posed unresolved
 negotiability matters.
 
    Subsequently, acting on the Union's request for reconsideration, the
 Panel asserted jurisdiction as to the one proposal here in issue, the
 proposed grievance procedure.  The Panel stated that, with respect to
 the grievance procedure, "proposals on this subject are negotiable at
 least to the extent that they exclude disputes covered by 38 U.S.C.
 4110.  (Veterans Administration Medical Center, Minneapolis, Minnesota
 v. Federal Labor Relations Authority, 705 F.2d 953 (8th Cir. 1983))."
 Panel letter of August 8, 1984 (Joint Exhibit No. 11).  The Panel
 accordingly amended its earlier determination declining to assert
 jurisdiction over the grievance procedure issue and directed that the
 issue be resolved.
 
    The Respondent entered a limited appearance before the Panel to argue
 that the Panel had no jurisdiction because the matter involved a
 negotiability issue.  It asserted that all employees appointed under
 Title 38 are excluded from the coverage of the Statute, and the matter
 is therefore not negotiable.
 
    On February 5, 1985, the Panel issued its Decision and Order in
 Veterans Administration, Washington, D.C. and National Council of VA
 Locals, American Federation of Government Employees, AFL-CIO, Case No.
 84 FSIP 49.  With respect to the issue of the Panel's jurisdiction, the
 Panel stated:
 
          As a threshold issue, the Employer asserts that the Panel does
       not have jurisdiction over this dispute because Management has
       raised a 'legitimate negotiability question.' In this regard, the
       FLRA held in (Vermont Air National Guard, Burlington, Vermont, 9
       FLRA 737 (1982)) that the scope of the grievance procedure is a
       matter affecting working conditions and, 'as a condition of
       employment, is a mandatory subject for collective bargaining under
       the Statute.' The Panel, as an entity within the FLRA, must follow
       decisions of the Authority until reversed by the FLRA itself or
       the U.S. Supreme Court.  In the circumstances of this case, the
       Employer has not demonstrated that Vermont is inapplicable.
       Moreover, the record before us indicates that the parties have
       engaged in negotiations over the scope of the grievance procedure
       and agreed to exclude incentive awards in addition to the
       mandatory exclusions set forth in section 7121(c) of the Statute.
 
    Id., slip op. at 8-9.  As to the merits, the Panel ordered the
 parties to withdraw their separate proposals and to adopt certain
 language in their contract regarding the grievance procedure.
 
    On April 19, 1985, the Panel issued a corrected copy of its Decision
 and Order, stating that "the Panel intended its Order to encompass
 personnel actions involving Title 38 employees (and that such) actions,
 of course, include 'disciplinary measures.'" Joint Exhibit No. 5.  As
 corrected, the Panel's Decision and Order directed the parties to adopt
 the following language in the contract provision regarding the grievance
 procedure:
 
          A complaint shall not include a grievance over personnel
       actions, including disciplinary measures, concerning the
       performance or conduct of employees appointed under title 38,
       where such performance or conduct is directly related to the
       provision of health care and under the provisions of title 38 the
       decision of the Administrator in such matters is to be final.
 
    Id., slip op. at 10.  On July 2, 1985, the Panel issued a
 clarification of its intent in correcting the language.  The Panel
 stated that it was its intent "that the personnel actions described in
 its Order be based on charges of inaptitude, inefficiency or misconduct
 as set forth in 38 U.S.C. Section 4110(a)." Joint Exhibit No. 6.
 
    Since on or about July 22, 1985, the Respondent has refused to sign
 the negotiated agreement which includes the language ordered by the
 Panel, on the grounds that the Panel exceeded its jurisdiction by making
 a negotiability determination with respect to the applicability of the
 grievance procedure to individual grievances filed by Title 38
 employees.
 
                      III.  Positions of the Parties
 
                            A.  The Respondent
 
    The Respondent contends that it had no obligation to sign the
 agreement including the language imposed by the Panel (1) because the
 Panel was without authority to make such a determination and (2) because
 the Panel's order is contrary to law.  As to (1), it argues that the
 Panel's decision is a negotiability determination, and the Authority has
 found that the Panel is without authority to make such determinations.
 Interpretation and Guidance, 11 FLRA 626 (1983).  Further, while the
 Panel relied upon the Authority's finding in Vermont Air National Guard
 that the scope of the grievance procedure "is a mandatory subject for
 collective bargaining under the Statute," the Respondent argues that the
 Authority there also specifically held that the grievance procedure may
 only cover matters which lawfully could be covered.  The Respondent
 argues that the courts' decisions in Veterans Administration Medical
 Center, Minneapolis, Minnesota v. FLRA, 705 F.2d 953 (8th Cir. 1983) (VA
 Minneapolis), and Veterans Administration Medical Center, Northport, New
 York v. FLRA, 732 F.2d 1128 (2d Cir. 1984) (VA Northport), did not
 determine the question of negotiability here involved.
 
    As to (2), the Respondent argues that because Chapter 73 of Title 38
 provides a separate and distinct personnel system for employees
 appointed under that Chapter, those employees can not lawfully be
 included in any grievance procedure negotiated under the Statute.
 According to the Respondent, the Panel's order is therefore contrary to
 law and is unenforceable through the unfair labor practice procedures.
 Respondent argues that the Authority's negotiability appeal procedure is
 the only proper procedure for resolving the conflict, and notes that
 there are numerous appeals pending before the Authority on the matter.
 
                   B.  The Union and the General Counsel
 
    The Union argues that the Panel was correct in asserting jurisdiction
 on the grounds that the negotiability of the grievance procedure is a
 matter already decided by the Authority.  It contends that the courts in
 VA Minneapolis and VA Northport also determined that grievance
 procedures were negotiable at least as to all non-disciplinary matters.
 Further, the Union cites cases in which the Authority made unfair labor
 practice findings involving Title 38 employees' working conditions.  In
 view of these decisions, the Union argues that the Panel was required to
 take jurisdiction, that the Panel lawfully issued an order to execute an
 agreement with regard to the grievance procedure, and that the
 Respondent therefore violated section 7116(a)(1), (5) and (6) of the
 Statute by refusing to do so.
 
    The General Counsel argues that the Panel did not make a
 negotiability determination, and that the Panel's Decision and Order
 comports with the Authority's rulings in this area.  Therefore, the
 General Counsel contends that the Respondent's refusal to execute the
 negotiated agreement as directed by the Panel constitutes an improper
 refusal to bargain in good faith and to cooperate in impasse procedures
 and decisions.  Additionally, the General Counsel notes that the
 language ordered by the Panel specifically excludes from the grievance
 procedure those matters encompassed within section 4110 of Title 38.
 
                               IV.  Analysis
 
    As to the Respondent's first contention, we find that the Panel did
 not exceed its authority in asserting jurisdiction over the issue in
 dispute.  In asserting jurisdiction, the Panel cited VA Minneapolis, in
 which the court stated that its "decision does not preclude proposals
 concerning grievance procedures, which could include binding
 arbitration, to be used in employment disputes not covered by section
 4110." Panel letter of August 8, 1984 (Joint Exhibit No. 11).  The Panel
 also concluded that it was bound by the Authority's determination in
 Vermont Air National Guard that the scope of the grievance procedure is
 a mandatory subject for bargaining, and it therefore considered the
 merits of the proposal at impasse.  See American Federation of
 Government Employees, Locals 225, 1504 and 3723 v. FLRA, 712 F.2d 640
 (D.C. Cir. 1983), affirming the Authority's determination first made in
 Vermont Air National Guard.  Therefore, the Panel did not make an
 independent negotiability determination, but rather asserted
 jurisdiction on the basis of existing precedent in this area.  In these
 circumstances, the Panel's jurisdiction was unaffected by the fact that
 other negotiability cases on this subject were pending at the time
 before the Authority.  Accordingly, we find that the Panel did not err
 in asserting jurisdiction.
 
    We also find no merit in the Respondent's contention that the Panel's
 order is contrary to law.  The Respondent's arguments in this connection
 are similar to those we considered and rejected in Colorado Nurses
 Association and Veterans Administration Medical Center, Ft. Lyons,
 Colorado, 25 FLRA No. 66 (1987), petition for review filed sub nom.
 Colorado Nurses Association v. FLRA, No. 87-1104 (D.C. Cir. Feb. 25,
 1987).  /1/ In Ft. Lyons, the initial question before us was whether the
 Agency has a duty to bargain over the conditions of employment of DM&S
 professional employees.  The same basic arguments are raised in this
 case.  We find here, as we did in Ft. Lyons, that a conflict does not
 exist between the authority of the VA Administrator under section
 4108(a) of Title 38 and the duty to bargain under section 7117 of the
 Statute, and that nothing in Title 38 operates to remove the conditions
 of employment of DM&S professional employees from the VA's duty to
 bargain under the Statute, except those disciplinary matters exclusively
 provided for by section 4110 of Title 38.
 
    Accordingly, we find that the subject matter before the Panel was a
 matter about which the Respondent had a duty to bargain and further find
 that the Panel's Decision and Order was not contrary to law.  By not
 complying with the Panel's decision, the Respondent assumed a risk that
 if its position did not prevail, it would be found to have committed an
 unfair labor practice.  See Department of the Treasury and Internal
 Revenue Service, 22 FLRA No. 89 (1986), slip op. at 10-11, petition for
 review filed sub nom. Department of the Treasury, Internal Revenue
 Service v. FLRA, No. 86-1475 (D.C. Cir. Aug. 25, 1986).  We so find.
 /2/
 
                              V.  Conclusion
 
    We have considered all the facts and circumstances of this case,
 including the positions of the parties.  We conclude that the Respondent
 has violated section 7116(a)(1) and (6) of the Statute by failing and
 refusing to comply with the Decision and Order of the Panel.  In view of
 this finding, we find it unnecessary to pass on whether the Respondent's
 conduct also violated section 7116(a)(5) of the Statute.  See U.S. Army
 Corps of Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA
 456 (1984).  We shall grant the remedial order requested by the General
 Counsel.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Veterans Administration,
 Washington, D.C., shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to comply with the Decision and Order of the
 Federal Service Impasses Panel in Case No. 84 FSIP 49 by failing and
 refusing to adopt the language with regard to the grievance procedure
 ordered by the Panel.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Comply with the Decision and Order of the Federal Service
 Impasses Panel in Case No. 84 FSIP 49 by adopting the language with
 regard to the grievance procedure ordered by the Panel.
 
    (b) Post at all its facilities where there are DM&S employees
 represented by the American Federation of Government Employees, AFL-CIO,
 copies of the attached Notice on forms to be furnished by the Federal
 Labor Relations Authority.  Upon receipt of such forms, they shall be
 signed by the Administrator, and shall be posted and maintained for 60
 consecutive days thereafter in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  Reasonable steps shall be taken to ensure that said
 Notices are not altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply with it.
 
    IT IS FURTHER ORDERED that the complaint, insofar as it alleges a
 violation of section 7116(a)(5) of the Statute, is dismissed.
 
    Issued, Washington, D.C., March 17, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) See Ft. Lyons, slip op. at 1, where we noted that we had granted
 the Respondent's motion for consideration of common issues in pending
 cases.  This case was included within that motion.
 
    (2) If the Respondent's position had been sustained, however, we
 would not have found it in violation of the Statute.  See Office of
 Personnel Management, Washington, D.C., 17 FLRA 302 (1985).
 
 
                          NOTICE TO ALL EMPLOYEES
 
  AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
 EFFECTUATE
 THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to comply with the Decision and Order of
 the Federal Service Impasses Panel in Case No. 84 FSIP 49 by failing