34:0199(41)NG - - AFGE Local 3884 and Veterans Affairs, Medical and Regional Office Center, Fargo, ND - - 1990 FLRAdec NG - - v34 p199
[ v34 p199 ]
The decision of the Authority follows:
34 FLRA No. 41
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL AND REGIONAL OFFICE CENTER
FARGO, NORTH DAKOTA
DECISION AND ORDER ON NEGOTIABILITY ISSUES
January 9, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
These cases are before the Authority on negotiability appeals filed by the American Federation of Government Employees, Local 3884 (the Union) under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). As both cases involve the same parties, arise out of the same negotiations, and present similar negotiability issues, we have consolidated them for decision. The cases concern the negotiability of seven proposals (five proposals in 0-NG-1697 and two proposals in 0-NG-1698) which the Department of Veterans Affairs (VA), Veterans Administration Medical and Regional Office Center, Fargo, North Dakota (the Agency) alleged to be nonnegotiable.
The proposals concern conditions of employment of professional medical employees of the Department of Medicine and Surgery (DM&S). As the Secretary of Veterans Affairs has exclusive discretion over the conditions of employment of DM&S employees under 38 U.S.C. º 4108(a), the Agency has no duty to bargain over the proposals. The Union's petitions for review are, therefore, dismissed.
The Union represents a bargaining unit of registered nurses appointed under chapter 73 of title 38, United States Code. See Union Petition at 1; Agency Statement of Position (Agency Statement) at 2. The Union submitted bargaining proposals in response to changes made by the Agency in certain areas of policy and procedure.
In Case No. 0-NG-1697, the Union made five proposals relating to changes in the policy circular entitled "Reporting Procedure for Special Incidents Involving a Beneficiary." In Case No. 0-NG-1698, the Union made two proposals concerning nursing documentation involving entries on the "daily nursing progress note." See Union Petition at 2; Agency Statement at 4.
The Agency alleged that the Union's proposals in both instances were nonnegotiable because they conflict with management's rights.
III. Authority Jurisdiction
A. Positions of the Parties
The Agency contends that under the decision of the United States Court of Appeals for the District of Columbia Circuit in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) (Colorado Nurses Association), the Department of Veterans Affairs has exclusive authority over the working conditions of title 38 professional medical employees. The Agency argues that "[a]ny determination by the VA Secretary to engage in collective bargaining arises not under the mandatory provisions of the labor statute, but under the discretionary provisions of the VA statute." Agency Statement at 4. The Agency asserts that the Authority lacks jurisdiction to review the exercise of that discretion. Id.
The Union contends that its negotiability appeals should not be dismissed on the basis of the court's decision in Colorado Nurses Association. The Union maintains that the situation in this case differs from that in Colorado Nurses Association because, in this case, the parties are bound by an "Interim Memorandum of Agreement Between the National VA Council, AFGE, AFL-CIO and The Veterans Administration," dated April 21, 1980. See Union Petition, Exhibit 1. The Union asserts that this agreement has never been repudiated by the Agency.
The Union states that the Veterans Affairs Central Office (VACO) has directed its facilities to "continue the present posture of maintaining status quo in dealings with Union officials representing Title 38 employees until further VACO directive." Union Petition at 1. The Union asserts that this directive "has never been repudiated." Id. The Union contends that the parties have continued an active collective bargaining relationship and that this negotiability appeal "arises from a unit of employees working under an existing collective bargaining agreement." Id., emphasis in original. The Union contends that the court's decision in Colorado Nurses Association did not affect existing bargaining relationships. The Union states that "[l]awful contracts are binding and the Authority has exclusive jurisdiction of collective bargaining agreements among [f]ederal agencies[.]" Id.
We conclude that the Agency is not obligated to bargain over the Union's proposals in this case.
Based on the rationale and conclusions of the court in Colorado Nurses Association, the Authority has found that under 38 U.S.C. º 4108(a), the VA has no obligation to bargain over the conditions of employment of professional medical employees of the DM&S. See, for example, Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 33 FLRA 284 (1988), aff'd order sub nom. Illinois Nurses Association v. FLRA, No. 88-1891 (D.C. Cir. Apr. 12, 1989).
It is undisputed that the bargaining unit employees involved in this case are registered nurses who are professional medical employees of the DM&S appointed under title 38, United States Code. It is also undisputed that the matters over which the Union proposes to bargain concern the conditions of employment of those DM&S employees. The Agency, therefore, has no duty to bargain under the Statute over the Union's proposals.
The Union contends that, despite the court's decision in Colorado Nurses Association, the Authority has jurisdiction to determine whether the Union's proposals are within the scope of the duty to bargain because: (1) the parties have had a collective bargaining agreement since 1980; and (2) the VA has ordered all facilities to maintain the status quo in their relations with the unions representing their employees. We reject this contention.
The Authority has jurisdiction under section 7105(a)(2)(E) of the Statute to resolve disputes as to the scope of the duty to bargain through the procedures set forth in section 7117(c). As discussed above, however, because the VA has exclusive discretion under 38 U.S.C. º 4108(a) to determine the conditions of employment of DM&S professional medical employees, the VA has no duty to bargain over the conditions of employment of those employees. Because the VA has no duty to bargain over the conditions of employment of the employees represented by the Union in these cases, there can be no disputes as to which the Authority would have jurisdiction under section 7105(a)(2)(E) of the Statute.
The VA cannot, whether by past bargaining conduct or by a determination to maintain the status quo, incur a duty to bargain under the Statute which is otherwise precluded by law. See Colorado Nurses Association, wherein the court stated that it is not relevant to the determination of whether the VA has a duty to bargain under the Statute over the conditions of employment of employees covered by 38 U.S.C. º 4108(a) "that the VA has engaged in collective bargaining with its medical employees." Colorado Nurses Association at 1491. See also U.S. Department of Veterans Affairs, Washington, D.C. and U.S. Department of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, 34 FLRA No. 40 (1990) wherein the Authority held that "the decision of the Administrator, pursuant to his discretion under 38 U.S.C. º 4108(a), to comply with the parties' interim agreement . . . does not subject the Administrator to the Statute's mechanisms for enforcing the parties' rights and obligations under that agreement." Id., slip op. at 6.
The Authority has no jurisdiction under section 7105(a)(2)(E) of the Statute to reso