33:0417(56)CA - - VA, VA Medical Center, Muskogee, OK and AFGE Local 2250 - - 1988 FLRAdec CA - - v33 p417
[ v33 p417 ]
The decision of the Authority follows:
33 FLRA No. 56
FEDERAL LABOR RELATIONS AUTHORITY
VETERANS ADMINISTRATION MEDICAL CENTER
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 2250
(25 FLRA 875)
DECISION AND ORDER ON REMAND
October 27, 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. See Veterans Administration, Veterans Administration Medical Center, Oklahoma v. FLRA, No. 87-1693 (D.C. Cir. Sept. 27, 1988). The court granted the Authority's motion to remand the case in light of the court's decision in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988).
On February 20, 1987, the Authority issued its decision and order in Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 25 FLRA 875 (1987) (VAMC, Muskogee). In VAMC, Muskogee, the Authority held that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to give the American Federation of Government Employees, AFL-CIO, Local 2250 (the Union) notice of and an opportunity to bargain over the change in clinical privileges of two physicians in the bargaining unit. The Authority ordered the Respondent to negotiate upon request with the Union over the procedures and appropriate arrangements for employees affected by the change in conditions of employment.
The Respondent had contended before the Authority that the Authority should consider whether the Statute applies to professional employees of the Department of Medicine and Surgery (DM&S) of the Veterans Administration who are appointed under chapter 73 of title 38 of the United States Code. The Respondent argued that chapter 73 provides a separate and distinct personnel system for employees appointed under that chapter by the Administrator of the VA, who has exclusive statutory authority to regulate the 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 rejected the Respondent's contention, and found that "as a general matter, the [VA] has a duty to bargain" over the conditions of employment of professional medical employees of the DM&S. 25 FLRA at 876.
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 remand of cases involving DM&S employees of the VA, including VAMC, Muskogee, 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 Association v. FLRA." FLRA Motion for Remand at 2 (footnote omitted). On September 27, 1988, the court granted the Authority's motion and remanded the cases to the Authority. Veterans Administration, Veterans Administration Medical Center, Oklahoma v. FLRA, No. 87-1693 (D.C. Cir. Sept. 27, 1988).
Based on the rationale and conclusions of the U.S. Court of Appeals for the District of Columbia Circuit, we find that, under 38 U.S.C. § 4108(a), the VA has no obligation to bargain over the conditions of employment of professional medical employees of the DM&S. It follows, therefore, that the VA has no obligation to bargain over changes in the conditions of employment of DM&S employees or to bargain over the procedures to be observed in implementing the changes or appropriate arrangements for employees adversely affected by those changes.
We have reexamined the Authority's analysis and conclusions with regard to the VA's duty to bargain in VAMC, Muskogee, and we have determined that the changes in clinical privileges of the two physicians concerned changes in the conditions of employment of DM&S employees whose conditions of employment are within the discretion of the VA Administrator under 38 U.S.C. § 4108(a). Therefore, in light of the court's decision in Colorado Nurses Association v. FLRA, we conclude that the Respondent had no obligation to bargain over those matters.
Accordingly, we find that the Respondent did not violate the Statute by failing to give notice to the Union of the changes in the employees' clinical privileges and an opportunity for the Union to bargain over the procedures to be observed in implementing the changes or over approp