36:0175(21)NG - - NAGE Local R1-109 and VA, VA Medical Center, Newington, CT - - 1990 FLRAdec NG - - v36 p175



[ v36 p175 ]
36:0175(21)NG
The decision of the Authority follows:


36 FLRA No. 21

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-109

(Union)

and

VETERANS ADMINISTRATION

VETERANS ADMINISTRATION MEDICAL CENTER

NEWINGTON, CONNECTICUT(*)

(Agency)

0-NG-1598

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The Union seeks review of the allegation by the Agency that two proposals are nonnegotiable.

Proposal 1 states that whenever the Agency appoints an employee pursuant to 38 U.S.C.  4111(b), the rate at which that employee is hired will become the lowest rate of pay for all unit employees in that grade at that location. Proposal 5 requires the Agency to retroactively adjust the pay for all unit employees who are affected by the exercise of section 4111(b) appointment authority.

For the following reasons, we find that both proposals are nonnegotiable.

II. Proposals

Proposal 1

When the Employer exercises authority granted under 38 USC 4111(b), and establishes a rate of pay above the minimum entrance rate for any given grade, that rate will be the lowest rate of pay which may be paid by the Employer to any employee in that grade, at the location concerned.

Proposal 5

The Employer will retroactively adjust the pay of unit employees impacted by the exercise of 38 USC 4111(b) authority.

III. Positions of the Parties

A. The Agency

The Agency asserts that the subject matter of Proposal 1 concerns the appointment of individuals at above-minimum rates under 38 U.S.C.  4111(b). The Agency contends that this subject matter is "specifically provided for by Federal statute" and, therefore, is excluded from the definition of conditions of employment under section 7103(a)(14)(C) of the Statute and is nonnegotiable. Agency's Statement of Position at 5-7.

The Agency also argues that Proposal 1 is nonnegotiable under section 7117(a)(1) of the Statute because it is "contrary to law." The Agency asserts that the proposal violates 38 U.S.C.  4111(b) because section 4111(b): (1) requires separate assessments of individuals' qualifications in order for them to receive above-minimum rates; and (2) does not provide for appointments at above-minimum rates of individuals already employed. Agency's Statement of Position at 8-10.

The Agency further argues that Proposal 1 is nonnegotiable because negotiations over a proposal regarding "unilateral pay increases would be inconsistent" with the decision in Department of the Navy, Military Sealift Command v. FLRA, 836 F.2d 1409 (3d Cir. 1988) (Department of the Navy). Id. at 11. According to the Agency, that decision states that the pay of Federal employees is not negotiable. Id.

The Agency contends that Proposal 5 is nonnegotiable because it is contrary to the Back Pay Act, 5 U.S.C.  5596. Id. at 12. The Agency asserts that Proposal 5 would allow employees to receive retroactive pay increases without meeting the requirements of the Back Pay Act.

By an order dated April 24, 1989, and amended on May 5, 1989, the Authority directed the parties to submit supplemental information on: (1) whether there were any employees in the bargaining unit who were appointed under title 38, United States Code or title 5, United States Code and, if so, what positions they occupied; (2) whether any employees appointed under title 38, United States Code were subject to the Administrator's discretion under 38 U.S.C.  4108(a); (3) whether any unit employees were paid under the General Schedule; and (4) what effect 5 U.S.C.  5305 and 38 U.S.C.  4107(g) had on the proposed adjustment of wages paid to unit employees.

In its supplemental submission, the Agency states that the bargaining unit includes employees appointed under title 5, United States Code and employees appointed under title 38, United States Code. The Agency states that the unit employees appointed under title 5 include pharmacy technicians, nursing assistants, and secretaries and that they are paid pursuant to the General Schedule. With respect to the unit employees appointed under title 38, the Agency states that: (1) they are "[n]on-professional" licensed practical nurses and registered respiratory therapists; (2) they are appointed under section 4104(3) of title 38 for "the limited purposes of . . . advancements, qualifications determinations, and pay"; and (3) they are not subject to the Administrator's authority under 38 U.S.C.  4108(a). Agency's Supplemental Submission, Appendix A at 2-4.

B. The Union

The Union contends that Proposals 1 and 5 "are arrangements for bargaining unit employees adversely impacted by the exercise of Management['s] reserved rights in the application of 38 USC 4111(b)[.]" Union's Petition for Review at 1. The Union asserts that the proposals are intended to provide relief from the Agency's "dual pay system," which negates many of the employees' career advantages by allowing "less tenured and less experienced employees to eclipse the pay, and step position . . . of more tenured and more experienced employees[.]" Id.

In its response to the Authority's request for supplemental information, the Union stated that it:

takes the position that (a) there have been some limited yet unverified title 38, United States Code appointments, in to [sic] an otherwise title 5, United States Code unit, or (b) there are no title 38, United States Code appointments to positions in the bargaining unit.

Union's Supplemental Submission at 2. The Union contends that in either case "such employees would not be subject to the Administrator's discretion under section 4108(a) of title 38, United States Code." Id. The Union states that all of the bargaining unit employees are paid under the General Schedule, except "those who are paid pursuant to the prevailing rate (WG), and (VCS) Veterans Canteen Services employees." Id. at 3.

The Union further argues that neither 5 U.S.C.  5305 nor 38 U.S.C.  4107(g) prevents the type of pay adjustment proposed by the Union. The Union contends that the Agency has damaged "tenured employees" by "establishing a dual pay system" and by introducing "these discretionary pay authorities on a limited basis into an otherwise statutory pay system." Id. at 4.

The Union requested a hearing in this case. We deny the Union's request for a hearing because there is sufficient evidence in the record on which to base a reasoned decision. See National Federation of Federal Employees and General Services Administration, 24 FLRA 430 (1986).

IV. Analysis and Conclusions

The bargaining unit to which the proposals are intended to apply consists of Department of Medicine and Surgery (DM&S) employees who were appointed either under title 5, United States Code or under title 38, United States Code. The proposals are intended to raise unit employees' pay rates prospectively and retroactively whenever the Agency appoints an individual to a position at an above-minimum rate pursuant to its authority under 38 U.S.C.  4111(b). Section 4111(b) of title 38 provides:

Notwithstanding any other provision of law, the Administrator, after considering an individual's existing pay, higher or unique qualifications, or the special needs of the Veterans' Administration, may appoint the individual to a position in the Department of Medicine and Surgery providing direct patient-care services or services incident to direct patient-services at a rate of pay above the minimum rate of the appropriate grade.

We conclude that the proposals are nonnegotiable because they: (1) concern a matter which is excluded from the definition of conditions of employment under section 7103(a)(14)(C); and (2) are inconsistent with law under section 7117(a)(1) of the Statute.

A. The Proposals are Nonnegotiable under Section 7103(a)(14)(C) of the Statute

The duty to bargain under the Statute extends to the conditions of employment of bargaining unit employees. See Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986). Under section 7103(a)(14)(C) of the Statute, matters which are specifically provided for by Federal statute are excluded from the definition of conditions of employment and, therefore, are outside the duty to bargain. See American Federation of Government Employees, Council of Federal Grain Inspection Locals v. FLRA, 653 F.2d 669 (D.C. Cir. 1981).

The wage rates of title 5 employees who are subject to the General Schedule are established by 5 U.S.C.  5332 and may be adjusted pursuant to 5 U.S.C.  5305. Proposals which would require an agency to "negotiate a system of adjusting salaries and would require the establishment of salary rates based on such adjustments" for employees subject to 5 U.S.C.  5332 and 5305 are nonnegotiable under section 7103(a)(14)(C) because they concern matters which are specifically provided for by Federal statute. National Treasury Employees Union and Pension Benefit Guaranty Corporation, 9 FLRA 692, 694 and 699 (1982) (NTEU), affirmed order sub nom. National Treasury Employees Union v. FLRA, 711 F.2d 420 (D.C. Cir. 1983).

Some of the unit employees involved in this case hold appointments under title 5, United States Code and are paid pursuant to the General Schedule. Proposals 1 and 5 would require the adjustment of wage rates for these unit employees. Proposal 1 requires the Agency to adjust prospectively the pay rate for unit employees in a specific grade every time the Agency appoints an employee in that grade pursuant to its authority under 38 U.S.C.  4111(b). Proposal 5 requires the Agency to adjust retroactively the pay rates for all unit employees who are affected by the exercise of that title 38 authority.

Proposals 1 and 5 require the adjustment of wage rates for unit employees who are appointed under title 5 and are subject to the General Schedule. The adjustment of wage rates for employees who are appointed under title 5 and are subject to the General Schedule is a matter which is specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C) of the Statute. Therefore, to the extent that the proposals apply to the title 5 unit employees who are subject to the General Schedule, they concern matters which are excluded from the definition of conditions of employment and are nonnegotiable.

B. The Proposals are Nonnegotiable under Section 7117(a)(1) of the Statute

Some unit employees involved in this case are appointed under title 38, United States Code. Under section 4108(a) of title 38, the Administrator of the Veterans Administration (VA) has discretion, "[n]otwithstanding any other provision of law," to determine the conditions of employment of professional medical employees of the DM&S. The VA, therefore, has no duty to bargain under the Statute over the conditions of employment of professional medical employees. See Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988); National Federation of Federal Employees, Local 1798 and Veterans Administration Medical Center, Martinsburg, West Virginia, 33 FLRA 290 (1988).

The Agency states, however, that the title 38 unit employees involved in this case are nonprofessional and are not subject to the Administrator's authority under 38 U.S.C.  4108(a). Agency's Supplemental Submission, Appendix A at 4. Consequently, the VA is obligated to bargain over proposals which concern the conditions of employment of these title 38 DM&S employees unless the proposals are nonnegotiable under the Statute. In this regard, we note the Agency's argument that the pay of Federal employees is not negotiable based on the Third Circuit's decision in Department of the Navy. Agency's Statement of Position at 11. The court in that case found that Congress did not intend for wages to be conditions of employment as defined in section 7103(a)(14) of the Statute. Department of the Navy, 836 F.2d at 1420. However, in Fort Stewart Schools v. FLRA, 58 U.S.L.W. 4624 (U.S. May 29, 1990), affirming 860 F.2d 396 (11th Cir. 1988), the U.S. Supreme Court upheld the Authority's determination that wages are conditions of employment within the meaning of section 7103(a)(14) of the Statute. Therefore, we reject the Agency's argument.

Section 7117(a)(1) of the Statute provides that the duty to bargain does not extend to proposals which are inconsistent with Federal law. For the following reasons, we find that the proposals conflict with 38 U.S.C.  4107, which governs the adjustment of pay rates of both the title 38 and the title 5 unit employees. Therefore, the proposals are inconsistent with Federal law within the meaning of section 7117(a)(1) and are nonnegotiable.

Under 38 U.S.C.  4107(g)(1)(B)(ii), the VA Administrator may adjust the pay of employees appointed pursuant to 38 U.S.C.  4104(3) and certain GS employees who were appointed pursuant to title 5 of the United States Code. Specifically, 38 U.S.C.  4107(g)(1)(B)(ii) provides that "[n]otwithstanding any other provision of law," the Administrator may increase the minimum, intermediate, or maximum rates of basic pay of employees appointed pursuant to 38 U.S.C.  4104(3) and health-care personnel who are paid under the General Schedule pursuant to 5 U.S.C.  5332.

The Administrator's authority to increase wages is limited by section 4107(g)(2), (3), and (4) of title 38. Section 4107(g)(2) states that rate increases may be made only to: (1) provide pay that is competitive with pay at comparable non-Federal facilities; (2) achieve adequate staffing; or (3) recruit personnel with specialized skills, especially those with skills which are difficult or demanding. Section 4107(g)(3) limits the amount by which the Administrator may increase the rates. Section 4107(g)(4) provides that the Administrator must notify the President not less than 90 days before any proposed wage increase in a category of personnel not appointed under title 38, and that the President has the opportunity to disapprove the increase within that 90-day period.

Proposals 1 and 5 would require salary adjustments without regard to the statutory limitations on adjustments in 38 U.S.C.  4107(g). Consequently, the proposals are inconsistent with 38 U.S.C.  4107(g) and are outside the duty to bargain under section 7117(a)(1). See Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 949 (1988) (a proposal which is inconsistent with law is outside the duty to bargain under section 7117(a)(1)).

The Union's supplemental submission indicates that the unit also includes wage grade and Veterans Canteen Service employees. The proposals, however, apply to all unit employees and the Union's statement of intent indicates that the proposals are intended to apply to the entire bargaining unit. Because the proposals apply to the unit as a whole and because the proposals are nonnegotiable as to parts of that unit (unit employees appointed under titles 5 and 38), it is unnecessary to consider the application of the proposals to the wage grade and canteen service employees. Even if the adjustment of wage rates of wage grade and canteen service employees is negotiable, the proposal is nonnegotiable because it would also require negotiations over matters concerning which the Agency cannot be required to bargain. See Overseas