National Association of Government, Employees, Local R5-136 (Union) and U.S. Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina (Agency)

[ v56 p346 ]

56 FLRA No. 49

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-136
(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
(Agency)

0-NG-2365

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUE

May 5, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.

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), and part 2424 of the Authority's Regulations. [n1]  The appeal concerns the negotiability of a single proposal concerning wage surveys to be used for setting pay rates of Agency pharmacists. The Agency filed a statement of position and the Union filed a response.

      For the reasons that follow, we find that the proposal is within the duty to bargain and order the Agency to bargain.

II.     Proposal

All wage surveys involving Hybrid Title 38 Pharmacists will include the local retail sector, i.e., Pharmor, WalMart, Revco, etc., in addition to local hospitals. [n2] 

III.     Positions of the Parties

A.     Agency

      The Agency states that the Authority "lacks jurisdiction over a Union proposal concerning special salary rates for hybrid title 38 employees." Statement of Position at 3.

      According to the Agency, the Secretary of Veterans Affairs (the Secretary), the head of the Agency, "has absolute and exclusive discretion over hybrid title 38 employee working conditions which are covered by the personnel provisions of title 38." Statement of Position at 3. The Agency argues that in Veterans Affairs v. FLRA the court "ruled that the Secretary's absolute and exclusive discretion over hybrid working conditions derived from its absolute and exclusive discretion over non-hybrid working conditions recognized in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) [(Colorado Nurses)]." The Agency claims that: (1) hybrid employees are not covered by the limited bargaining rights of non-hybrid employees under 38 U.S.C. § 7422; and (2) therefore, the Agency retains its exclusive discretion over salary rates under 38 U.S.C. § 7455. In the alternative, the Agency claims that, to the extent that hybrid employees are covered by the limited bargaining rights afforded by 38 U.S.C. § 7422, the proposal would nevertheless be excluded from bargaining by the compensation exception to those rights under 38 U.S.C. § 7422(b)(3). [ v56 p347 ]

      The Agency claims that the proposal is inconsistent with the requirement in section 7455(b) that pay adjustments under that provision be made only if they are necessary to meet the wages paid by competing employers for the same category of employees. The Agency argues that an Agency regulation, VHA Directive 10-94-124, Attachment C, paragraph 6 (the Directive), [n3] authorizes the inclusion of retail establishments in wage surveys only to the extent that they "truly are competing employers" and retail pharmacist positions match Agency pharmacist positions. Statement of Position at 5. See also Attachment to Agency's Statement of Position.

B.     Union

      The Union contends that the Authority has jurisdiction to consider the proposal.

      According to the Union, the proposal "does not establish, determine or adjust the salary of Pharmacists." Response at 2. The Union also asserts that the proposal does not determine when a salary survey must be conducted, how the Agency must use the data collected, or how the Agency head determines the salary rates. The Union maintains that the proposal only requires that, in addition to the hospital pharmacies already surveyed, the Agency will also survey the specified retail pharmacies.

      The Union claims that the proposal "merely represents a procedure for collection of wage data as delegated by the Secretary to facility officials" under the Directive. Id. The Union argues that the local facility has discretion under this Agency regulation to agree to the proposal. According to the Union, the Authority has found salary survey proposals to be within the duty to bargain. The Union distinguishes Veterans Affairs v. FLRA on the ground that that case involved promotions and this case involves procedures for salary surveys.

IV.     Analysis and Conclusions

A.     Meaning of the Proposal

      On its face, the proposal prescribes the employers to be surveyed by the Agency whenever it conducts wage surveys for purposes of setting pay rates for pharmacists.

B.     The Authority Has Jurisdiction to Consider the Negotiability of the Proposal

      The Authority has stated its jurisdiction to resolve issues relating to the duty to bargain in good faith under section 7117(c)(1) as follows:

Under section 7117(c)(1) of the Statute, the exclusive representative may file an appeal with the Authority when an agency alleges that the duty to bargain in good faith does not extend to any matter proposed for bargaining. This agency allegation is the sole express requirement for filing an appeal under section 7117(c)(1) of the Statute.

American Federation of Government Employees, Council of Prison Locals, Local 171 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 1484, 1489 (1997). The Agency alleges that the proposal is outside the duty to bargain because it is inconsistent with section 7455 governing increases in the wages of hybrid employees. Under section 7117(c), the Authority has jurisdiction to resolve that allegation.

      This case is distinguishable from cases in which the Authority has concluded that it lacked jurisdiction to review the Secretary's determination as to a matter covered by title 38. See, e.g., Department of Veterans Affairs, Veterans Affairs Medical Center, Washington, D.C., 53 FLRA 822 (1997); U.S. Department of Veterans Affairs, Veterans Affairs Medical Center, Amarillo, Texas and National Federation of Federal Employees, Local 1138, 49 FLRA 1511 (1994); Wisconsin Federation of Nurses and Health Professionals, Veterans Administration Staff Nurses Council, Local 5032 and U.S. Department of Veterans Affairs, Clement J. Zablocki Medical Center, Milwaukee, Wisconsin, 47 FLRA 910 (1993). Each of those cases involved an unreviewable determination by the Secretary, or a delegatee, under 38 U.S.C. § 7422(d), that the subject of a proposal concerned a matter pertaining to the conditions of employment of non-hybrid employees covered by 38 U.S.C. § 7422(b). This case concerns hybrid employees who are not covered by section 7422. [ v56 p348 ]

C.     The Proposal is Not Inconsistent with Section 7455

      Under section 7455, [n4] the Secretary has authority to increase pay rates for, among others, employees covered by section 7401(1) and (3) in order to: (1) provide wages that are competitive in the local labor market; (2) achieve adequate staffing at specific facilities; or (3) recruit personnel with specialized skills which are difficult and demanding. Positions listed in section 7401(1) are non-hybrid positions. See footnote 2, supra. Positions listed in section 7401(3), including pharmacists, are hybrid positions. Id. Thus, the Secretary's authority to increase pay rates under section 7455 applies alike to non-hybrid and hybrid employees.

      Under section 7455, the Secretary has discretion to increase salary rates prescribed by law and regulation for the purposes set forth therein. Pay rates for employees covered by section 7401(1) are established, with certain exceptions not relevant here, in section 7404. Pay rates for employees covered by section 7401(3) are established by the General Schedule, 5 U.S.C. § 5332.

      In this regard, it is well-settled that matters concerning conditions of employment are subject to collective bargaining when they are within the discretion of an agency and are not otherwise inconsistent with law or applicable rule or regulation. See, e.g., National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C., 55 FLRA 839, 844 (1999). Where an agency's discretion is limited by law or regulation, however, it may only bargain to the limits of that discretion and a proposal exceeding those limits is inconsistent with law or regulation. Id. In addition, where an agency's discretion under law is intended to be "sole and exclusive," a proposal requiring an agency to exercise that discretion through bargaining is inconsistent with law. See, e.g., Association of Civilian Technicians, Mile High Chapter and U.S. Department of Defense, Colorado Air National Guard, 140th Fighter Wing, 53 FLRA 1408, 1412 (1998) (Colorado Air National Guard). In sum, if the disputed proposal herein is consistent with section 7455, and the Agency's discretion under that section is not "sole and exclusive," the proposal is not inconsistent with law. See also Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 625, 647-50 (1997) (PTO).

      As to whether the proposal is inconsistent with section 7455, we note that the proposal requires the Agency to survey the named employers only when it decides to conduct a survey pursuant to its discretion under section 7455. [n5]  Thus, the survey will only be conducted when the Agency has determined that it is necessary to increase pharmacists' wages for the purposes stated in section 7455. Moreover, the proposal only requires that the named employers be surveyed. It does not prescribe how the survey is to be conducted or what is to be done with the results of such a survey. Consequently, the proposal does not require that the Agency adopt pay rates derived from positions surveyed that are not comparable to Agency pharmacist positions. [n6]  We find, therefore, that the Agency has provided no support for its bare claim that the proposal is inconsistent with section 7455. See, e.g., PTO, 53 FLRA at 656-57.

      With respect to the Agency's arguments concerning the Secretary's "exclusive" discretion over hybrid employees' pay rates, to the extent that the arguments constitute a claim that the discretion is "sole and exclusive," we find that the Agency has not demonstrated that claim. Specifically, in resolving such claims, "the Authority examines the plain wording and the legislative history of the statute being relied on." Colorado Air National Guard, 53 FLRA at 1412, citing International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 691 (1995), aff'd mem. sub nom. Bureau of Engraving and Printing v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996).

      The Agency cites to nothing in the plain wording of section 7455 that would support the conclusion that it affords the Secretary sole and exclusive discretion with respect to pay rates of hybrid employees. Cf. National Federation of Federal Employees, Council of VA Locals and U.S. Department of Veterans Affairs, Washington, D.C., 49 FLRA 923, 933-34 (1994) (where plain wording of statute authorizes agency to exercise discretion notwithstanding other laws, Authority will find sole and exclusive discretion). The Agency has also provided no [ v56 p349 ] evidence in the legislative history of section 7455 to support that conclusion. [n7]  Cf. Colorado Air National Guard, 53 FLRA at 1412-16 (where plain wording of a statute does not include phrase "notwithstanding any other provision of law," legislative history may nevertheless demonstrate that Congress intended agency to possess sole and exclusive discretion with respect to a particular matter). See also Association of Civilian Technicians, Texas Lone Star Chapter 100 and U.S. Department of Defense, National Guard Bureau, State of Texas, Adjutant General's Department, 55 FLRA 1226, 1229 n.7 (2000).

      The Agency's argument, based on Veterans Affairs v. FLRA, that the exclusive discretion of the Secretary over pay rates of hybrid employees is derived from the Secretary's exclusive discretion over non-hybrid conditions of employment as recognized by the court in Colorado Nurses, is misplaced. [n8]  Veterans Affairs v. FLRA concerned the Secretary's discretion with respect to the promotion of hybrid employees, not their pay rates. The court found that the Secretary's exclusive discretion concerning the promotion of non-hybrid employees under section 38 U.S.C. § 7422(b)(2) was expressly made applicable to the promotion of hybrid employees through 38 U.S.C. §§ 7403(f)(1)(B) and 7403(c). However, section 7422 does not apply to hybrid employees and the Agency makes no attempt to demonstrate that the Secretary's exclusive discretion concerning pay rates of non-hybrid employees under section 7422(b)(3) has been expressly made applicable to hybrid employees. The Agency also makes no attempt to explain its claim that, even if hybrid employees are not covered by section 7422(b)(3), the Secretary has exclusive discretion over pay rates of hybrid employees under section 7455.

      We conclude, therefore, that the proposal is not inconsistent with law and is within the duty to bargain under the Statute.

V.     Order

      The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate on the proposal.


APPENDIX

1.     38 U.S.C. § 7401(1) and (3) provide as follows:

§ 7401.     Appointments in Veterans Health Administration
There may be appointed by the Secretary such personnel as the Secretary may find necessary for the medical care of veterans (in addition to those in the Office of the Under Secretary for Health appointed under section 7306 of this title), as follows:
(1)     Physicians, dentists, podiatrists, optometrists, registered nurses, physician assistants, and expanded-function dental auxiliaries.
. . . .
(3)     Clinical or counseling psychologists who hold diplomas as diplomates in psychology from an accrediting authority approved by the Secretary, certified or registered respiratory therapists, licensed physical therapists, licensed practical or vocational nurses, pharmacists, and occupational therapists.

2.     38 U.S.C. § 7403 provides, in relevant part, as follows:

§ 7403.     Period of appointments; promotions
(a)(1)     Appointments under this chapter of health-care professionals to whom this section applies may be made only after qualifications have been satisfactorily established in accordance with regulations prescribed by the Secretary, without regard to civil service requirements.
. . . .
(c)     Promotions of persons to whom this section applies shall be made only after examination given in accordance with regulations prescribed by the Secretary. Advancement within grade may be made in increments of the minimum rate of basic pay of the grade in accordance with regulations prescribed by the Secretary.
. . . .
(f)(1)     Upon the recommendation of the Under Secretary for Health, the 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. [ v56 p350 ]

3.     38 U.S.C. § 7421 provides as follows:

§ 7421.     Personnel administration: in general
(a)     Notwithstanding any law, Executive order, or regulation, the Secretary shall prescribe by regulation the hours and conditions of employment and leaves of absence of employees appointed under any provision of this chapter in positions in the Veterans Health Administration listed in subsection (b).
(b)     Subsection (a) refers to the following positions:
(1)     Physicians.
(2)     Dentists.
(3)     Podiatrists.
(4)     Optometrists.
(5)     Registered nurses.
(6)     Physician assistants.
(7)     Expanded-duty dental auxiliaries.

4.     38 U.S.C. § 7422 provides, in relevant part, as follows:

§ 7422.     Collective bargaining
(a)     Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title 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).
(b)     Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) in the case of employees described in section 7421(b) of this title may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title.

5.     38 U.S.C. § 7455 provides, in relevant part, as follows:

§ 7455.     Increases in rates of basic pay
(a)(1)     Subject to subsections (b), (c), and (d), when the Secretary determines it to be necessary in order to obtain, or retain the services of persons described in paragraph (2), the Secretary may increase the minimum, intermediate, or maximum rates of basic pay authorized under applicable statutes and regulations. Any increase in such rates of basic pay--
. . . .
(2)     Paragraph (1) applies to the following:
(A)     Individuals employed in positions listed in paragraphs (1) and (3) of section 7401 of this title.
. . . .
(b)     Increases in rates of basic pay may be made under subsection (a) only in order--
(1)     to provide pay in an amount competitive with, but not exceeding, the amount of the same type of pay paid to the same category of personnel at non-Federal facilities in the same labor market;
(2)     to achieve adequate staffing at particular facilities; or
(3)     to recruit personnel with specialized skills, especially those with skills which are especially difficult or demanding.

6.     38 U.S.C. § 4107(g) provided, in relevant part, as follows:

§ 4107.     Grades and pay scales
. . . .
(g)(1)     Notwithstanding any other provision of law but subject to paragraphs (2), (3), and (4) of this subsection, when the Administrator determines it to be necessary in order to obtain or retain the services--
(A)     of individuals employed in positions listed in paragraphs (1) and (3) of section 4104 of this title [section 7401(1) and (3)];
. . . .
the Administrator may increase the minimum, intermediate, or maximum rates of basic pay [ v56 p351 ] authorized under applicable statutes and regulations. Any increase in such rates of basic pay may be made on a nationwide, local, or other geographic basis, for one or more of the grades listed in subsection (b)(1) of this section, for one or more of the health personnel fields within such grades, or for one or more of the grades of the General Schedule under section 5332 of such title.
(2)     Increases in rates of basic pay may be made under paragraph (1) of this subsection only in order--
(A)     to provide pay in an amount competitive with, but not exceeding, the amount of the same type of pay paid to the same category of personnel at non-Federal facilities in the same labor market;
(B)     to achieve adequate staffing at particular facilities;
(C)     to recruit personnel with specialized skills, especially those with skills which are especially difficult or demanding.

7.     VHA Directive 10-94-124, Attachment C, paragraph 6 provides as follows:

6.     Use of Retail Survey Data for Pharmacists
     a.     Facility officials may survey the rates of pay for pharmacists employed by drug stores in the local labor market if there is evidence that competition for pharmacists by the retail stores is causing VA significant recruitment or retention problems.
     b.     When surveying drug stores, data collectors must be careful to make proper job matches. Some retail pharmacists serve as store managers and are compensated accordingly for this responsibility. These positions are not considered to correspond to VA pharmacists and, therefore, are not considered appropriate job matches. However, data for staff pharmacists may be used in the salary survey.
     c.     Data collectors should determine what, if any, premium pay the retail pharmacists receive to work their basic tour of duty. Retail pharmacists who work nights or weekends may not receive additional pay for these tours as VA pharmacists do. Differences in tour differentials should be taken into consideration when evaluating salary data and setting SSRs.



Footnote # 1 for 56 FLRA No. 49

   The Authority's Regulations governing negotiability appeals have been revised effective April 1, 1999. See Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As the petition for review in this case was filed before that date, we apply the prior regulations.


Footnote # 2 for 56 FLRA No. 49

   "Hybrid" employees are Agency employees "who are subject to both title 38 and title 5 [of the United States Code]." U.S. Department of Veterans Affairs v. FLRA, 9 F.3d 123, 126 (D.C. Cir. 1993) (Veterans Affairs v. FLRA). See also U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 37 FLRA 111, 112 (1990). It is uncontested that pharmacists are hybrid employees. See 38 U.S.C. §§ 7401(3) and 7403(f)(1), (2). "Non-hybrid" employees are Agency employees who are, with one exception, subject only to title 38. See 38 U.S.C. §§ 7401(1), 7421. See also Veterans Affairs v. FLRA, 9 F.3d at 125 n.5 (retirement of non-hybrid employees is subject to title 5). The Agency also hires employees who are subject only to title 5. Id. at 126 n.6.

      Relevant provisions of title 38 of the United States Code are set forth in the Appendix to this decision in the numerical order of the sections. It should be noted in this connection that, in 1991, title 38 was recodified. Provisions that, prior to the recodification, were in chapter 41 of title 38 were placed, subsequent to the recodification, for the most part without substantive change, in chapter 74 of title 38; for example, 38 U.S.C. § 4119 became 38 U.S.C. § 7425(b). Wherever in the body of this decision quoted material refers to a pre-1991 provision of title 38, the current provision will be noted in brackets. Moreover, once a provision of title 38 is given its full statutory citation in this decision, e.g., 38 U.S.C. § 7425(b), it will thereafter be cited only by its section number, e.g., section 7425(b).


Footnote # 3 for 56 FLRA No. 49

   The relevant text of the Directive is set forth at 7 of the Appendix to this decision.


Footnote # 4 for 56 FLRA No. 49

   The relevant text of section 7455 is set forth at 5 of the Appendix to this decision.


Footnote # 5 for 56 FLRA No. 49

   Wage surveys are prescribed under 38 U.S.C. § 7451 for certain other wage setting processes, see, e.g., section 7451(d)(3)(B), and apparently have been prescribed by regulation for pay setting under section 7455. In this regard, see the Directive cited by the Agency.


Footnote # 6 for 56 FLRA No. 49

   For this reason as well the proposal is not inconsistent with the Directive. In any event, the Agency does not allege that the proposal is outside the duty to bargain because it is inconsistent with an Agency regulation for which a compelling need exists within the meaning of section 7117(b) of the Statute and section 2424.11 of the Authority's Regulations.


Footnote # 7 for 56 FLRA No. 49

   In fact, the legislative history suggests that the Secretary's discretion under se