34:0805(136)NG - - New York State Nurses Association and VA Medical Center, Bronx Medical Center - - 1990 FLRAdec NG - - v34 p805



[ v34 p805 ]
34:0805(136)NG
The decision of the Authority follows:


34 FLRA No. 136

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NEW YORK STATE NURSES ASSOCIATION

and

VETERANS ADMINISTRATION MEDICAL CENTER

BRONX MEDICAL CENTER (*)

0-NG-1187

(33 FLRA 377)

ORDER DENYING REQUEST FOR RECONSIDERATION

February 9, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on a request filed by the New York State Nurses Association (the Union) seeking reconsideration of the Authority's decision of October 26, 1988, in the above-entitled case. The Veterans Administration (VA) filed an opposition. For the reasons discussed below, the request is denied.

II. Background

The Union's request pertains to the Authority's decision and order on remand in New York State Nurses Association and Veterans Administration Medical Center, Bronx Medical Center, 33 FLRA 377 (1988) (Bronx Medical Center II) which was issued after the United States Court of Appeals for the District of Columbia Circuit remanded an earlier decision of the Authority.

In that earlier decision, New York State Nurses Association and Veterans Administration, Bronx Medical Center, 30 FLRA 706 (1987) (Bronx Medical Center I), the Authority found that, based on its decision in Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA 803 (1987) (VAMC Ft. Lyons), the Federal Service Labor-Management Relations Statute (the Statute) applies to Department of Medicine and Surgery (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 19 proposals which were in dispute in Bronx Medical Center I concerned various conditions of employment of professional medical employees in the DM&S. The Authority found some of the proposals to be negotiable and others to be nonnegotiable.

On February 25, 1988, the VA petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the Authority's decision in Bronx Medical Center I. While Bronx Medical Center I was pending before the court, the court reversed the Authority's ruling in VAMC Ft. Lyons regarding the VA's obligation to bargain over conditions of employment of DM&S employees. Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) (Colorado Nurses Association). The court found that, in enacting 38 U.S.C. º 4108, Congress intended to give the Administrator of the VA "unfettered discretion to issue regulations concerning the working conditions of DM&S employees." Id. at 1492. Thus, the court concluded that under 38 U.S.C. º 4108(a) the VA had no obligation to bargain over the conditions of employment of professional medical employees of the DM&S.

Subsequent to the court's decision in Colorado Nurses Association, and on the Authority's motion, the court remanded to the Authority the cases involving DM&S employees including Bronx Medical Center I, which the court had held in abeyance pending resolution of Colorado Nurses Association. In its decision on remand in Bronx Medical Center II, the Authority found that based on the rationale and conclusions of the court in Colorado Nurses Association, 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. The Authority reexamined the 19 proposals at issue in Bronx Medical Center I and determined that all of the proposals concerned conditions of employment of DM&S employees which are within the discretion of the VA Administrator under 38 U.S.C. º 4108(a). Thus, the Authority concluded that in light of Colorado Nurses Association, the VA had no obligation to bargain over the proposals. Accordingly, the Authority dismissed the petition for review as to those proposals. Bronx Medical Center II, 33 FLRA at 379.

III. Request for Reconsideration

In its request for reconsideration of Bronx Medical Center II, the Union argues that the Authority failed to consider the collective bargaining history between the Union and various VA medical centers represented by the Union since 1970. According to the Union, it was inappropriate for the Authority to issue its decision "without (1) considering the [Union's] collective-bargaining history or (2) giving the [Union] an opportunity to place that collective-bargaining history in the record." Request for Reconsideration at 2.

IV. Opposition

The VA contends that the Union previously raised its contention concerning bargaining history before the Authority in VAMC Ft. Lyons. The Agency argues that this attempt to relitigate the case does not constitute the "extraordinary circumstances" required for reconsideration.

The VA also argues that Colorado Nurses Association established that "the VA Administrator has completely 'unfettered' discretion with respect to title 38 working conditions, and VA actions concerning those working conditions, including any past bargaining history, are not reviewable under the labor statute." Opposition at 2-3. Thus, the VA argues that the Authority lacks jurisdiction to review any bargaining history under the Statute.

V. Analysis and Conclusion

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Union has not established "extraordinary circumstances" within the meaning of section 2429.17. Rather, the arguments presented by the Union in support of its request constitute nothing more than disagreement with the Authority's decision and an attempt to relitigate the case.

We note that in VAMC Ft. Lyons, the Authority relied, in part, on the collective bargaining history between the VA and professional medical employees in the DM&S to support its view that the Statute applied to DM&S employees and that as a general matter the VA had a duty to bargain over the conditions of employment of those employees. However, in Colorado Nurses Association, the court rejected this view, finding that it is not "relevant that the VA has engaged in collective bargaining with its medical employees. Section 4108 gave the Administrator authority to establish working conditions without regard to any other law." Colorado Nurses Association at 1491. The court found instead that the Statute's authorization of collective bargaining over conditions of employment of DM&S employees conflicts with the authority of the VA Administrator under 38 U.S.C. º 4108(a). Section 4108(a) provides that "[n]othwithstanding any law, Executive order, or regulation" the VA Administrator "shall prescribe by regulation the hours and conditions of employment and leaves of absence of" professional medical DM&S employees. Thus, the court concluded 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. Because this section does not leave room for mandatory collective bargaining over union proposals relating to working conditions, the VA need not bargain[.]" Id. at 1492.

In light of the court's decision rejecting the relevance of bargaining history between the VA and its professional medical employees and the Authority's subsequent decision on remand in this case, we find that the Union's request for reconsideration constitutes nothing more than an attempt to relitigate this issue. A request for reconsideration of an Authority decision which constitutes nothing more than disagreement with the Authority's decision and an attempt to relitigate an issue does not establish "extraordinary circumstances" within the meaning of section 2429.17 of the Authority's Rules and Regulations. See, for example, Letterman Army Medical Center, Nutrition Care Directorate and Independent Letterman Hospital Workers' Union, 31 FLRA 1292 (1988). Accordingly, we find that because the Union has not established that "extraordinary circumstances" exist to warrant reconsideration of the Authority's decision on remand in Bronx Medical Center II within the meaning of section 2429.17 of the Authority's Rules and Regulations, the Union's request must be denied.

VI. Order

The request for reconsideration is denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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