33:0472(62)NG - - AFGE, National Council of VA Locals and VA - - 1988 FLRAdec NG - - v33 p472



[ v33 p472 ]
33:0472(62)NG
The decision of the Authority follows:


33 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

NATIONAL COUNCIL OF VA LOCALS

and

VETERANS ADMINISTRATION

0-NG-1088

(29 FLRA 515)

DECISION AND ORDER ON NEGOTIABILITY ISSUES 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. Veterans Administration v. FLRA, No. 88-1727 (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 September 30, 1987, the Authority issued its decision and order on negotiability issues in American Federation of Government Employees, AFL-CIO, National Council of VA Locals and Veterans Administration, 29 FLRA 515 (1987) (Chairman Calhoun dissenting in part) (Veterans Administration). The collective bargaining proposals at issue in Veterans Administration concerned, among other things, professional standards, advancements, step increases, uniforms, proficiency ratings, compensatory time, and administrative leave 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 Veterans Administration, 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 granted the Authority's motion and remanded the cases to the Authority. Veterans Administration v. FLRA, No. 88-1727 (D.C. Cir. Sept. 27, 1988).

III. Discussion

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 proposals at issue in Veterans Administration. Excluding Proposals 1, 2 and 6, sections 5C and 6B, we find that the proposals in the instant case concern DM&S employees whose conditions of employment are within the discretion of the VA Administrator under 38 U.S.C. § 4108(a). Accordingly, consistent with the court's decision in Colorado Nurses Association v. FLRA, we will dismiss the petition for review in Veterans Administration as to those proposals which concern employment conditions of professional medical employees of the DM&S.

As noted above, Veterans Administration was remanded for disposition consistent with the c