33:0426(58)CA - - VA, Washington, DC and AFGE - - 1988 FLRAdec CA - - v33 p426
[ v33 p426 ]
The decision of the Authority follows:
33 FLRA No. 58
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(26 FLRA 264)
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. FLRA v. Veterans Administration, Washington, D.C., No. 87-1209 (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).
On March 17, l987, the Authority issued its decision and order in Veterans Administration, Washington, D.C., 26 FLRA 264 (1987) (VA, Washington). In VA, Washington, the Authority held that the Respondent (VA) violated section 7116(a)(1) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to comply with a Decision and Order of the Federal Service Impasses Panel (the Panel). The Panel's Decision and Order directed the Respondent to include a grievance procedure in its negotiated agreement with the Charging Party, the exclusive representative of certain of the Respondent's professional employees of the Department of Medicine and Surgery (DM&S). The Authority ordered the Respondent to comply with the Panel's order.
The Respondent had contended before the Authority that the Panel's order was contrary to law because chapter 73 of title 38 of the United States Code 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 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. 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. The Authority further stated that "[i]f the Respondent's position had been sustained, however, we would not have found it in violation of the Statute." 26 FLRA at 269 n.2.
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 VA, Washington, 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. FLRA v. Veterans Administration, Washington, D.C., No. 87-1209 (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. We have reexamined the Authority's analysis and conclusions with regard to the VA's duty to bargain in VA, Washington and have determined that the grievance procedure that was the subject of the Panel's order concerned 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). In light of the court's decision in Colorado Nurses