33:0377(47)NG - - New York State Nurses Association and VA Medical Center, Bronx Medical Center - - 1988 FLRAdec NG - - v33 p377

[ v33 p377 ]
The decision of the Authority follows:

33 FLRA No. 47








(30 FLRA 706)


October 26, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. Veterans Administration Bronx Medical Center v. FLRA, No. 88-1150 (D.C. Cir. Sept. 27, 1988). The court granted the Authority's motion to remand the case to allow the Authority to further consider its decision in light of the court's decision in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988).

II. Background

On December 31, 1987, the Authority issued its decision and order on negotiability issues in New York State Nurses Association and Veterans Administration, Bronx Medical Center, 30 FLRA 706 (1987) (Bronx Medical Center). The collective bargaining proposals at issue in Bronx Medical Center concerned, among other things, work schedules, training, appointment to positions, promotions, proficiency ratings, leaves of absence, holidays and rest periods relating to professional medical employees in the Department of Medicine and Surgery (DM&S).

The Veterans Administration (VA) contended that the proposals were not subject to the duty to bargain under the Federal Service Labor-Management Relations Statute (the Statute) because title 38 of the United States Code provides the Administrator of the VA with statutory authority to regulate conditions of employment of professional medical employees in the DM&S. Based on its decision in Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA 803 (1987) (VAMC, Ft. Lyons), the Authority found that the Statute applies to DM&S employees and that as a general matter the VA has a duty to bargain over the conditions of employment of those employees. As to the specific proposals in dispute, the Authority found some to be negotiable and others to be nonnegotiable.

Both the Colorado Nurses Association and the Veterans Administration petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the Authority's decision in VAMC, Ft. Lyons. The court reversed the Authority's ruling that the VA is obligated to bargain over conditions of employment of DM&S employees and concluded that the VA need not bargain over any of the contested proposals. Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988). The court found that the Statute's authorization of collective bargaining over conditions of employment for those employees conflicts with the authority of the VA Administrator under 38 U.S.C. § 4108(a). Section 4108(a) provides that "[n]otwithstanding any law, Executive order, or regulation" the VA Administrator "shall prescribe by regulation the hours and conditions of employment and leaves of absence of" DM&S professional employees. The court stated that "[i]n enacting section 4108, Congress intended to give the Administrator unfettered discretion to issue regulations concerning the working conditions of DM & S employees." Id. at 1492.

On September 6, 1988, the Authority petitioned the court for the remand of cases involving DM&S employees of the VA, including Bronx Medical Center, which the court had held in abeyance pending its resolution of Colorado Nurses Association v. FLRA. The Authority asked that the cases be remanded "for disposition in the first instance" consistent with that decision and "to resolve any issues which may remain in the instant case in light of [the] Court's decision in Colorado Nurses Ass'n v. FLRA." FLRA Motion for Remand at 2 (footnote omitted). On September 27, 1988, the court g