33:0600(76)CA - - VA, Washington, DC and NFFE - - 1988 FLRAdec CA - - v33 p600



[ v33 p600 ]
33:0600(76)CA
The decision of the Authority follows:


33 FLRA No. 76

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VETERANS ADMINISTRATION

WASHINGTON, D.C.

(Respondent)

and

NATIONAL FEDERATION OF

FEDERAL EMPLOYEES, INDEPENDENT

(Charging Party)

3-CA-50147

(27 FLRA 159)

DECISION AND ORDER ON REMAND

October 28, 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. 87-1341 (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 May 29, 1987, The Authority issued its decision and order in Veterans Administration, Washington, D.C., 27 FLRA 159 (1987) (VA, Washington). In VA Washington the Authority held that the Respondent violated section 7106(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to afford the National Federation of Federal Employees, Independent (the Charging Party or Union) adequate prior notice and an opportunity to consult regarding a decision to withhold a comparability pay increase from employees for whom the Union held national consultation rights under section 7113 of the Statute.

The Respondent contended before the Authority that its decision not to grant the annual comparability pay increase to nurses covered by 38 U.S.C. § 4107(g) did not give rise to an obligation to consult with the Union under section 7113 of the Statute. The Respondent maintained that nurses' pay is provided for by 38 U.S.C. § 4107(g) and that the VA Administrator had no discretion under that provision to increase their pay. The Respondent asserted that the decision to withhold the comparability increase did not concern a condition of employment. The Respondent also argued that pay adjustments under section 4107(g) are committed to the exclusive authority of the VA Administrator and that the authority may be exercised without regard to any provision of the Statute.

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 contentions. 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 found that since the Union had national consultation rights under section 7113(b) of the Statute, the Respondent was obligated to notify the Union prior to changing the policy and practice of automatically granting nurses the annual Government-wide comparability pay increase and permit it a reasonable time to present its views and recommendations regarding the change. The Authority concluded that the Respondent, by failing to consult with the Union pursuant to section 7113(b), violated section 7106(a)(1), (5), and (8) of the Statute.

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) (Colorado Nurses Association v. FLRA). 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 leave of absences of" DM&S professional employees. The court found that the "purpose of this language is clear: when the Administrator prescribes regulations concerning conditions of employment, he is to be unhampered by the range of federal personnel statutes and regulations that might otherwise constrain his authority." Colorado Nurses Association v. FLRA at 1489. The court also 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 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 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. 87-1341 (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 or consult regarding the conditions of employment of professional medical employees of the DM&S. We have reexamined the Authority's analysis and conclusions in VA, Washington. We have determined that the determination that the VA violated section 7106(a)(1), (5), and (8) was premised on the failure of the Respondent to notify and afford the Union adequate prior notice and an opportunity to consult regarding a change in the conditions of employment of its nurses pursuant to section 7113(b) of the Statute.

The change in the condition of employment which the Authority previously determined gave rise to the notification and consultation requirements of section 7113(b)(1)(A) and (B) involved professional medical DM&S employees. Consistent with the decision of the U.S. Court of Appeals for the District of Columbia Circuit, we conclude that conditions of employment of professional medical employees of the DM&S may be determined unilaterally by the Agency. The court found that the independent personnel system under the direct control of the Administrator created by 38 U.S.C. § 4108(a) "is exempt from all laws governing the terms and conditions of federal employment except as otherwise explicitly provided in the DM & S Statute." Colorado Nurses Association v. FLRA at 1489.

Therefore, in light of the court's decision in Colorado Nurses Association v. FLRA, we conclude that the Respondent had no obligation to notify the Union concerning a decision to change a condition of employment and give it an opportunity to consult on that decision. Accordingly, we find that the Respondent did not violate section 7116(a)(1), (5), and (8) of the Statute by refusing to afford the Union notice and an opportunity to consult regarding a change in the conditions of employment of unit employees. Consistent with the court's decision in Colorado Nurses Association v. FLRA, we will dismiss the Union's complaint in VA, Washington.

IV. Order

The Union's complaint in 27 FLRA 1