49:0622(58)NG - - NAGE, Local R1-109 and VA Medical Center, Newington CT - - 1994 FLRAdec NG - - v49 p622



[ v49 p622 ]
49:0622(58)NG
The decision of the Authority follows:


49 FLRA No. 58

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

(44 FLRA 356 (1992))

_____

DECISION AND ORDER ON REMAND

March 23, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

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 in U.S. Department of Veterans Affairs v. FLRA, 9 F.3d 123 (D.C. Cir. 1993) (Veterans Affairs v. FLRA). The case was filed by the Union 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 conclude, consistent with the court's decision in Veterans Affairs v. FLRA, that the proposals are nonnegotiable.(2)

II. History of the Case

A. Decision in 44 FLRA 356

In 44 FLRA 356, the Authority addressed whether the proposals were inconsistent with title 38, U.S. Code and, if not, whether the proposals were otherwise consistent with title 5, U.S. Code.

On the first issue, the Authority found that the proposals were not inconsistent with title 38, U.S. Code. The Authority noted that the proposals concerned promotion procedures for "hybrid" employees appointed pursuant to 38 U.S.C. § 7401(3) (Supp. III 1991).(3) The Authority examined 38 U.S.C. § 7403(f)(1), 7403(c), and 7403(f)(3) to determine whether those provisions of title 38 precluded bargaining over the promotion procedures of "hybrid" employees. The Authority noted that 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.

We further noted that 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 "hybrid" employees, we noted that 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.

Reading these provisions together, we found that section 7403(f)(3) of title 38 takes precedence over section 7403(f)(1) with respect to matters relating to adverse actions, disciplinary actions, and grievance procedures involving "hybrid" employees. Accordingly, we concluded that such matters must be resolved under the provisions of title 5.

We next examined whether the proposals related to adverse actions, disciplinary actions, or grievance procedures involving "hybrid" employees. We noted that there was no assertion that the proposals related to adverse actions or disciplinary actions.

As to whether the proposals related to grievance procedures, we interpreted the statutory phrase "all matters relating to . . . grievance procedures" to encompass any matter that is within or pertains to the scope of the parties' negotiated grievance procedure. Based on the parties' statements, we found that the proposals were intended to establish the right of "hybrid" employees to grieve promotion procedures used by Professional Standards Boards (PSB's) in career ladder promotion actions. We found that because the proposals addressed matters that may be grieved under the parties' agreement, the proposals were matters relating to the grievance procedures involving "hybrid" employees and, as such, the negotiability of the proposals must be resolved under the provisions of title 5.

Accordingly, we concluded that section 7403(c) and section 7403(f)(3) of title 38 did not preclude the Agency from negotiating over the proposals.

On the second issue of whether the proposals were otherwise consistent with title 5, we found that the Agency had alleged no law, rule, or regulation, other than title 38, to support its argument that the proposals were nonnegotiable under title 5. As the Agency cited no law, rule, or regulation with which the proposals conflicted and as none was apparent to us, we concluded that the proposals were negotiable.

B. Court's Decision in Veterans Affairs v. FLRA

In Veterans Affairs v. FLRA, the court rejected the Authority's interpretation of title 38, U.S. Code. The court noted that section 7403(f)(1)(B) of title 38 grants the Secretary of Veterans Affairs the power to prescribe regulations for the promotion and advancement of "hybrid" employees and concluded that such regulations "are generally nonnegotiable." Veterans Affairs v. FLRA, 9 F.3d at 129. The court found, however, that the Secretary's power over the promotion of "hybrid" employees is limited by section 7403(f)(3) of title 38. The court found that to resolve this case, it was necessary to determine whether proposals involving "procedures for the promotion of hybrid employees are 'matters relating to . . . grievance procedures' within § 7403(f)(3)'s exception to the general nonnegotiability of promotion regulations." Id.

As a general matter, the court found that section 7403(f)(3) "preserves not all title 5 collective bargaining rights for hybrid employees, but only some--namely those relating to grievance procedures" and that, therefore, "[h]ybrid employees have no general right to negotiate procedures governing management's exercise of its reserved rights." Id. at 131, 132 (emphasis in original). In particular, the court found that the following three issues were subject to negotiation under that section: (1) "the procedures for the filing and processing of a grievance"; (2) "questions about the binding arbitration of grievances that are 'not satisfactorily settled under the negotiated grievance procedure'"; and (3) "the scope of the grievance procedures[,] . . . i.e., which potential grievances shall be 'exclude[d] . . . from the application of the grievance procedures.'" Id. at 130 (quoting 5 U.S.C. § 7121(a)(2) and (b)(3)(C)). The court further found that, although the Secretary "need not negotiate about the criteria for promotions, including the procedures for determining promotions[,] . . . any promotion in violation of the Secretary's specified promotion criteria--whether procedural or substantive--may be grievable under applicable grievance procedures." Id. at 132.

The court remanded this case to the Authority to determine the negotiability of the proposals consistent with the interpretation of title 38 set forth in the court's decision.

III. Analysis and Conclusions

In Department of Veterans Affairs, Veterans Affairs Medical Center, Jackson, Mississippi and American Federation of Government Employees, Local 589, 49 FLRA 171, 175 (1994), the Authority stated that "[w]e have decided to adhere to and will henceforth follow the court's decision in Veterans Affairs v. FLRA." Consistent with Veterans Affairs v. FLRA, we find that the proposals in this case are nonnegotiable.

We found in 44 FLRA 356 that the proposals constituted procedures for PSB's to follow in determining promotion actions for "hybrid" employees. We further found, and the court agreed, that "hybrid" employees may not bargain over proposals relating to promotion procedures unless the proposals constitute a "matter[] relating to . . . grievance procedures" within the meaning of section 7403(f)(3) of title 38. Pursuant to the court's decision, proposals constitute a "matter[] relating to . . . grievance procedures" only if they concern: (1) "the procedures for the filing and processing of a grievance"; (2) "questions about the binding arbitration of grievances that are 'not satisfactorily settled under the negotiated grievance procedure'"; or (3) "the scope of the grievance procedures[,] . . . i.e., which potential grievances shall be 'exclude[d] . . . from the application of the grievance procedures.'" Veterans Affairs v. FLRA, 9 F.3d at 130.

None of the twelve proposals purport to concern any of the matters noted above by the court. The proposals provide specific procedures for PSB's to follow in determining promotion actions for "hybrid" employees and do not concern procedures for filing and processing a grievance, questions about binding arbitration of grievances, or which grievances shall be excluded from the application of the grievance procedures. Therefore, we conclude that the proposals in this case do not concern "matters relating to . . . grievance procedures" within the meaning of 38 U.S.C. § 7403(f)(3).

Moreover, we note that the court found that, although the Secretary "need not negotiate about the criteria for promotions, including the procedures for determining promotions[,] . . . any promotion in violation of the Secretary's specified promotion criteria--whether procedural or substantive--may be grievable under applicable grievance procedures." Id. at 132. The record shows that in 1985 the Agency promulgated regulations concerning promotion procedures for "hybrid" employees. There is no assertion or indication that the proposals seek to enforce those regulations under applicable grievance procedures. On the contrary, the proposals seek to establish promotion procedures for the Agency to use apart from those established by the regulations.

Accordingly, as the proposals do not concern "matters relating to . . . grievance procedures" within the meaning of 38 U.S.C. § 7403(f)(3) and do not seek to enforce the Agency's specified promotion criteria under applicable grievance procedures, we find, consistent with Veterans Affairs v. FLRA, that they are nonnegotiable.

IV. Order

The petition for review is dismissed.

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.




FOOTNOTES:
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