44:0356(29)NG - - NAGE Local R1-109 and VA Medical Center, Newington, CT - - 1992 FLRAdec NG - - v44 p356



[ v44 p356 ]
44:0356(29)NG
The decision of the Authority follows:


44 FLRA No. 29

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-109

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

NEWINGTON, CONNECTICUT

(Agency)

0-NG-1964

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 13, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of twelve proposals regarding the procedures to be used when promoting "hybrid" employees appointed under title 38 of the U.S. Code.(1)

For the following reasons, we find that the proposals are negotiable.

II. Proposals

The proposals are listed in the Appendix to this decision.

III. Positions of the Parties

A. Agency

The Agency argues that the Union's petition for review should be dismissed under 5 C.F.R. § 2424.5 because the Union has filed both an unfair labor practice charge and a negotiability appeal, but has failed to "select under which procedure to proceed[.]" Agency's Statement of Position at 15. The Agency also argues that the Authority should dismiss the petition for review because the Union "has waived its right to bargain during the contract term." Id. at 13.

With respect to the Union's proposals, the Agency contends that title 38 of the U.S. Code precludes bargaining over the proposals because section 7403(c) and section 7403(f)(1) of title 38 grant the Secretary of the U.S. Department of Veterans Affairs (the Secretary) independent, exclusive authority to prescribe promotion procedures and requirements concerning "hybrid" employees. The Agency also contends that Congress "preserved the Secretary's authority to prescribe promotion requirements for hybrids" through the "limiting language in § 7403(f)(3)." Id. at 9, 10. The Agency maintains that by specifying in section 7403(f)(3) that only matters relating to adverse actions, disciplinary actions, and grievance procedures affecting "hybrid" employees "are to be covered under title 5, Congress made it clear that the Secretary's authority covering promotions for hybrids does not fall under title 5." Id. at 10 (emphasis in original). The Agency notes that it "does not concede that under the interplay between title 38 authority and title 5 obligations, promotions are grievable under title 5." Id. at n.3.

The Agency further argues that Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) (Colorado Nurses Association) precludes bargaining in this case. According to the Agency, Colorado Nurses Association held that "the Secretary's duty to prescribe working conditions for title 38 employees . . . exempted title 38 employees from bargaining." Id. at 12. The Agency maintains that because the employees in this case are "professional employees appointed under title 38, who, by the very nature of their appointments are intended to fall under the exclusive personnel system prescribed by the Secretary[,]" Colorado Nurses Association precludes bargaining over proposals affecting these "hybrid" employees. Id. at 12-13.

The Agency also argues that bargaining is precluded by title 5 of the U.S. Code because the subject of promotions for "hybrid" employees is specifically provided for by title 38 of the U.S. Code and, therefore, under 5 U.S.C. § 7103(a)(14), is not a condition of employment.

B. Union

The Union states that its proposals are intended as procedures to be used by Professional Standards Boards (PSB's) when reviewing eligible bargaining unit employees for career ladder promotions. The Union notes that a copy of its unfair labor practice charge relating to the proposals "clearly indicates on the reverse side . . . the required election" to proceed with its negotiability appeal. Union's Response at 1. Therefore, the Union argues that its petition for review fulfills the requirements of the Authority's Rules and Regulations and should not be dismissed.

The Union further argues that it "is not estopped from bargaining during the contract on the instant proposals" and that the "record fails to demonstrate a 'clear and unmistakable waiver' by the Union of its bargaining rights regarding PSB's." Id. at 1, 3 (emphasis omitted).

The Union contends that the Authority should reject the Agency's arguments regarding title 38 of the U.S. Code for the reasons noted in VAMC, Newington. According to the Union, title 38 "does not preclude bargaining regarding establishment of peer review mechanisms or grievance rights regarding the same, when such bargaining involves" "hybrid" employees. Id. at 5. Further, the Union argues that Colorado Nurses Association does not apply to the "hybrid" employees in this case and, therefore, that the Agency's reliance on Colorado Nurses Association "is misplaced[.]" Id. at 4.

IV. Analysis and Conclusions

For the following reasons, we conclude that the Union's petition for review is properly before us and that the proposals are negotiable.

A. Preliminary Matters

Section 2424.5 of the Authority's Rules and Regulations provides that where a labor organization files an unfair labor practice charge which involves a negotiability issue and also files a petition for review of the same negotiability issue, the Authority and the General Counsel "will not process the unfair labor practice charge and the petition for review simultaneously." In such circumstances, section 2424.5 requires that "the labor organization must select under which procedure to proceed" and that "[u]pon selection of one procedure, further action under the other procedure will ordinarily be suspended." Section 2424.4(a)(4) of the Authority's Rules and Regulations provides that the petition for review shall contain notification by the petitioning labor organization whether the negotiability issue is also involved in an unfair labor practice charge that has been filed by the labor organization and is pending before the General Counsel.

We note the Agency's argument that the Union's petition for review should be dismissed under section 2424.5 of the Authority's Rules and Regulations because the Union filed both an unfair labor practice charge and a negotiability appeal, but failed to "select under which procedure to proceed[.]" Agency's Statement of Position at 15. We reject the Agency's argument because, as noted by the Union, the unfair labor practice charge attached to the Union's petition for review clearly indicates that the Union elected to proceed with the negotiability appeal. Accordingly, we find that the petition for review is properly before us.

We also note the Agency's contention that the Union waived its right to bargain over the proposals at issue in this case. On a union's petition for review, the Authority decides only the negotiability issues presented under section 7105(a)(2)(D) and (E) of the Statute. The Authority does not determine, in a negotiability decision, whether a union waived its right to bargain over the proposals at issue in a particular case. To the extent that there are issues in dispute between the parties regarding the duty to bargain in the specific circumstances of this case, these issues may be pursued in other appropriate proceedings, such as unfair labor practice proceedings. See International Federation of Professional and Technical Engineers, Local 12 and Department of the Navy, Puget Sound Naval Shipyard, 24 FLRA 178, 179 (1986); and American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984). Accordingly, in this decision, we will not consider the Agency's argument that the Union waived its right to bargain.

B. The Proposals Are Negotiable

1. The Proposals Are Not Inconsistent with Title 38

As we noted previously, the proposals in this case affect "hybrid" employees appointed pursuant to section 7401(3) of title 38.(2) The Agency argues that 38 U.S.C.A. § 7403(f)(1) and 38 U.S.C.A. § 7403(c) preclude bargaining over the proposals in this case because those statutory provisions provide the Secretary with the exclusive authority to prescribe promotion procedures for "hybrid" employees. The Agency further argues that section 7403(f)(3) of title 38 does not permit matters relating to the promotions of "hybrid" employees to be resolved under the provisions of title 5. For the following reasons, we reject the Agency's arguments.

Section 7403(f)(1) of title 38 provides, in part:

[T]he Secretary may--(A) use the authority in subsection (a) to establish the qualifications for and . . . to appoint individuals to positions listed in section 7401(3) of this title, and (B) use the authority provided in subsection (c) for the promotion and advancement of Department employees serving in such positions.

Section 7403(c) provides, in part, that "[p]romotions . . . shall be made only after examination given in accordance with regulations prescribed by the Secretary."

With respect to employees appointed under section 7401(3) (that is, "hybrid" employees), section 7403(f)(3) of title 38 provides:

Notwithstanding any other provision of this title or other law, all matters relating to adverse actions, disciplinary actions, and grievance procedures involving individuals appointed to such positions . . . shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.

Because section 7403(f)(3) states that it is to apply "[n]otwithstanding any other provision of this title[,]" we find that section 7403(f)(3) of title 38 takes precedence over the provisions of section 7403(f)(1) with respect to matters relating to adverse actions, disciplinary actions, and grievance procedures involving individuals appointed under section 7401(3). See Illinois National Guard v. FLRA, 854 F.2d 1396, 1401-02 (D.C. Cir. 1988) and Colorado Nurses Association, 851 F.2d at 1489 (where a statutory provision states that it is to apply "notwithstanding . . . any other provision of law," it is interpreted to mean that it takes precedence over other laws). Accordingly, matters relating to adverse actions, disciplinary actions, and grievance procedures involving individuals appointed under section 7401(3) of title 38 must be resolved under the provisions of title 5. See VAMC, Newington.

We must consider whether the proposals in this case relate to adverse actions, disciplinary actions, or grievance procedures involving "hybrid" employees within the meaning of 38 U.S.C.A. § 7403(f)(3). There is no assertion in this case that the proposals relate to adverse actions or disciplinary actions involving "hybrid" employees. With respect to grievance procedures, the Agency states that it "does not concede that under the interplay between title 38 authority and title 5 obligations, promotions are grievable under title 5." Agency's Statement of Position at 10 n.3. According to the Agency, section 7403(f)(3) of title 38 does not apply in this case because that section does not specifically refer to promotions. The Union maintains that the Authority rejected such arguments in VAMC, Newington. Moreover, the Union asserts that title 38 "does not preclude bargaining regarding establishment of . . . grievance rights" regarding peer review mechanisms of "hybrid" employees. Union's Response at 5. Peer review mechanisms in the Department of Veterans Affairs include PSB's. See, for example, National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360, 368 (1988) (Proposal 2), remanded as to other matters sub nom. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. order Sept. 27, 1988). Accordingly, it appears from the record, and it is acknowledged by the Agency, that the Union's proposals are intended to establish the right of "hybrid" employees to grieve promotion procedures used by PSB's in career ladder promotion actions.

For the reasons stated below, we find that, consistent with VAMC, Newington and the pertinent legislative history to title 38, a matter relates to grievance procedures involving "hybrid" employees under 38 U.S.C.A. § 7403(f)(3) if that matter is within or pertains to the scope of the parties' negotiated grievance procedure.

We found in VAMC, Newington that if promotions of "hybrid" employees are covered by a negotiated grievance procedure, then 38 U.S.C. § 4106(g)(3) (now 38 U.S.C.A. § 7403(f)(3)) takes precedence over the provisions of title 38 relating to the promotion of "hybrid" employees and requires that matters involving promotions of "hybrid" employees instead be resolved under the provisions of title 5 of the U.S. Code. See VAMC, Newington, 37 FLRA at 115-17. In essence, we found that under that provision of title 38, a matter "relates to" grievance procedures involving "hybrid" employees if that matter is within the scope of the parties' negotiated grievance procedure.

The legislative history of 38 U.S.C. § 4104(3) (now 38 U.S.C.A. § 7401(3)) indicates that a broad interpretation of 38 U.S.C. § 4106(g)(3) (now 38 U.S.C.A. § 7403(f)(3)) is consistent with the purposes for which the category of "hybrid" employees was first created. In creating the category of "hybrid" employees in the Department of Medicine and Surgery (DM&S) in 1983, the House and the Senate Committees on Veterans' Affairs stated:

The Committees note that it is not the intent of the provisions of this legislation relating to the three DM&S occupations involved to diminish or impair in any way the rights and protections guaranteed the employees in those occupations under the express provisions of chapter 71 of the title 5, United States Code, relating to federal labor management relations.

Explanatory Statement of House Bill, Senate Amendment, and Compromise Agreement, reprinted in 1983 U.S. Code Cong. & Ad. News 1459, 1468.

Subsequently, during a 1987 hearing conducted by the Senate Committee on Veterans' Affairs, the Committee noted concerns from witnesses representing the American Federation of Government Employees and the National Federation of Federal Employees that "employees in occupations in the hybrid category were not being accorded protection[s] that were available to title 5 employees in grievance and disciplinary matters." S. Rep. No. 215, 100th Cong., 1st Sess. 144 (1987). According to the Committee report, title 38 would be amended to "reaffirm the Committee and the Congress' original intent with reference to the employees in the occupations in the hybrid category[.]" Id. at 145. The Committee report further stated that pursuant to the amendment, 38 U.S.C. § 4106(g)(3), "these individuals will have the full panoply of rights available to title 5 employees for the resolution of grievance and disciplinary matters including, for those in recognized bargaining units, access to negotiated grievance procedures involving outside arbitration." Id.

The legislative history of 38 U.S.C. §§ 4104(3) and 4106(g)(3) (now 38 U.S.C.A. §§ 7401(3) and 7403(f)(3)) clearly indicates that Congress did not intend to deny "hybrid" employees the collective bargaining rights and protections enjoyed by employees appointed pursuant to title 5. Rather, even though "hybrid" employees were appointed and paid pursuant to title 38, they were to "have the full panoply of rights available to title 5 employees for the resolution of grievance and disciplinary matters . . . ." S. Rep. No. 215, 100th Cong., 1st Sess. 145 (1987). In order to have the "full panoply of rights available to title 5 employees for the resolution of grievance" matters, "hybrid" employees must be permitted to resolve matters pertaining to the scope of the grievance procedure under the provisions of title 5. Id. Accordingly, proposals addressing matters that are within or pertain to the scope of the grievance procedure are matters relating to the grievance procedures involving "hybrid" employees within the meaning of 38 U.S.C.A. § 7403(f)(3).

This interpretation of 38 U.S.C.A. § 7403(f)(3), based on both VAMC, Newington and the pertinent legislative history to title 38, is consistent with the 1991 amendments to title 38. In those amendments, Congress provided in relevant part that, "[e]xcept as otherwise specifically provided in this title," the authority of the Secretary to prescribe regulations concerning the hours and conditions of employment and leaves of absence of employees appointed under 38 U.S.C.A. § 7401(1) is:

subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5 (relating to labor-management relations).

38 U.S.C.A. § 7422(a). As a result of the 1991 amendments to title 38, doctors, nurses, and other professional medical title 38 employees appointed under 38 U.S.C.A. § 7401(1) were guaranteed collective bargaining rights.

To interpret "all matters relating to . . . grievance procedures" involving "hybrid" employees in 38 U.S.C.A. § 7403(f)(3) to mean something less than matters within or pertaining to the scope of the parties' negotiated grievance procedure would create an anomalous distinction between "hybrid" employees and title 38 professional medical employees. Specifically, "hybrid" employees, who, as reflected in the legislative history, are to be covered by title 38 for limited matters and are not to have their rights under title 5 diminished in any way, would have fewer title 5 collective bargaining rights than professional medical employees appointed pursuant to 38 U.S.C.A. § 7401(1), who are generally covered by title 38. Accordingly, consistent with VAMC, Newington and the pertinent legislative history to title 38, we will interpret 38 U.S.C.A. § 7403(f)(3) to mean that a matter relates to grievance procedures involving "hybrid" employees if that matter is within or pertains to the scope of the parties' negotiated grievance procedure.

The proposals at issue concern the "establishment of [certain] . . . grievance rights" for "hybrid" employees. Union's Response at 5. Specifically, the proposals are procedures for PSB's to follow in determining career ladder promotion actions and would allow grievances under the parties' agreement concerning the procedures used in making such promotion determinations. We find that because the proposals address matters that may be grieved under the parties' agreement, the proposals are matters relating to the grievance procedures involving "hybrid" employees. Accordingly, under section 7403(f)(3) of title 38, the negotiability of the proposals must "be resolved under the provisions of title 5" without regard to any other provisions of title 38. 38 U.S.C.A. § 7403(f)(3). See VAMC, Newington. Therefore, we reject the Agency's argument that section 7403(c) and section 7403(f)(1) of title 38 preclude the Agency from negotiating over the proposals.

We note the Agency's argument that Colorado Nurses Association precludes bargaining in this case because the employees in this case are "professional employees appointed under title 38, who, by the very nature of their appointments are intended to fall under the exclusive personnel system prescribed by the Secretary." Agency's Statement of Position at 12-13. In Colorado Nurses Association, the U.S. Court of Appeals for the District of Columbia Circuit held that under 38 U.S.C. § 4108(a), the Veterans Administration had no duty to bargain over the conditions of employment of those professional medical employees identified in 38 U.S.C. § 4108(a); that is, physicians, dentists, podiatrists, optometrists, nurses, physician assistants, and expanded-function dental auxiliaries. These are employees appointed pursuant to 38 U.S.C. § 4104(1) (now 38 U.S.C.A. § 7401(1)). However, "hybrid" employees are employees appointed pursuant to 38 U.S.C. § 4104(3) (now 38 U.S.C.A. § 7401(3)). Colorado Nurses Association applied only to professional, medical employees appointed pursuant to 38 U.S.C. § 4104(1) and not to "hybrid" employees appointed pursuant to 38 U.S.C. § 4104(3). As Colorado Nurses Association did not apply to "hybrid" employees, we reject the Agency's argument. Further, we note that the effect of Colorado Nurses Association on the employees to whom the decision did apply has been changed by the 1991 amendments to title 38. See 38 U.S.C.A. §§ 7421 and 7422(a). As we noted above, the authority of the Secretary to prescribe by regulation the conditions of employment of employees appointed under section 7401(1) is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment. See 38 U.S.C.A. § 7422(a).

In summary, we conclude that the proposals in this case address promotion procedures of "hybrid" employees appointed under 38 U.S.C.A. § 7401(3) and concern matters relating to the grievance procedures involving such "hybrid" employees. Accordingly, consistent with 38 U.S.C.A. § 7403(f)(3), the negotiability of the proposals is determined under title 5, without regard to any other provisions of title 38. Therefore, we conclude that title 38 does not preclude the Agency from negotiating over the proposals.

2. The Proposals Are Not Inconsistent with Title 5

As we noted above, we will resolve the negotiability of the Union's proposals under the provisions of title 5, without regard to the provisions of section 7403(c) and section 7403(f)(1) of title 38. We note the Agency's argument that bargaining is precluded by title 5 because the subject of promotions for "hybrid" employees is specifically provided for by title 38 of the U.S. Code and, therefore, under 5 U.S.C. § 7103(a)(14), the subject is not a condition of employment. As we noted previously, the provisions of title 38 specifically providing for the Secretary's authority to prescribe promotion procedures for "hybrid" employees do not apply in this case because the proposals constitute a matter relating to the grievance procedures involving "hybrid" employees. Therefore, we reject the Agency's argument that the proposals concern a matter which is specifically provided for by title 38.

The Agency has alleged no law, rule, or regulation, other than title 38, to support its argument that the proposals are nonnegotiable. See 5 U.S.C. § 7117. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. For example, Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 820-821 (1991) (Provisions 5, 6, and 7); National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril. For example, U.S. Department of Defense, Office of Dependents Schools and Overseas Education Association, 40 FLRA 425, 441 (1991) (Proposal 3). Accordingly, as the Agency has failed to cite any law, rule, or regulation with which the proposals conflict and as none is apparent to us, we conclude that the proposals are negotiable.

V. Order

The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning the proposals.(3)

APPENDIX

AGREEMENT

This agreement is entered into by and between the parties, the National Association of Government Employees, Local R1-109, hereinafter referred to as the Union, and the United States Department of Veterans Affairs Medical Center, Newington, Connecticut, hereinafter referred to as the Employer.

The purpose of this agreement is to outline procedures to be utilized by Professional Standards Boards (PSB's) when reviewing eligible bargaining unit employees for promotions.

It is the intention of this agreement to assure that the best qualified and most professional candidates are recognized and given every opportunity to fully develop their potential contribution to benefit the overall mission of the VA.

It is understood that promotions taken by PSB's are career ladder promotions, this means, these promotions are non competitive in nature. These promotions are based on the employees meeting time in grade, and qualification requirements determined by the U.S. Department of Veterans Affairs. The PSB's act as an examining body in applying the aforementioned criteria.

It is not the intention of this agreement to determine criteria for examination, but to insure that all employees effected [sic] or impacted by such exercise of authority are afforded those rights and protections guaranteed them by the expressed provisions of statute, rule and or regulation, and the terms of this, and other collective bargaining agreements entered into by and between the parties.

The Parties hereby agree as follows:

1. This agreement shall apply to all bargaining unit employees whose promotions are subject to Professional Standards Boards.

2. All actions taken under this agreement will be job related, without any discrimination, and shall be consonant with law, applicable selection guidelines, and this agreement.

3. To be eligible for promotion to the next higher grade, an employee must:

a. have served the required time in grade; and

b. have met the established qualifications/criteria, as determined by the examining board.

4. To insure equal treatment of individuals the criteria for promotions shall be standardized to the extent possible, and shall be sufficiently specific to prevent subjective application. A copy of this criteria shall be given to employees upon entering the review period, for example, upon attaining a GS-3, the employee will receive the criteria for achieving the GS-4, upon attaining a GS-4, the employee will receive the criteria for achieving the GS-5, and so on.

5. No less than 90 days prior to the time the employees meet the time in grade requirement, they shall be appraised [sic] by the appropriate management official, of the preliminary recommendation with respect to promotion.

6. No less than 60 days prior to the completion of the time in grade requirements, the preliminary recommendation shall be forwarded to the PSB, by the appropriate management official.

7. If the management official forwards a negative recommendation to the Board, the employee shall have 45 days to respond to the recommendation. No action shall be taken by the PSB until the employees [sic] response is received.

8. Candidates for promotion will be informed in writting [sic] of the Board's decision within 7 calendar days. The employee shall be given written and specific rationale for the decision and copies of appeal rights, including the right to utilize the parties [sic] negotiated grievance procedure.

9. The employer shall endeavor to make promotion actions effective at the start of the first pay period following the notice of the PSB, and in any case the employer shall not unreasonably delay the promotion action.

10. The employee through the union, shall have access to any and all records maintained by the PSB, pursuant to the terms of 5 USC § 7114(b)(4).

11. Employees who have met the time in grade requirement may be reviewed by the PSB periodically, but not less than every 6 months.

12. The Employer shall give consideration to Union nominations of eligible and qualified employees to serve as members of the PSB's.




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