Service Employees International Union, Local 200-C (Union) and United States Department of Veterans Affairs, Western New York, V.A. Health Care System, Buffalo, New York (Agency)

[ v56 p1080 ]

56 FLRA No. 190

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 200-C
(Union)

and

UNITED STATES DEPARTMENT OF VETERANS
AFFAIRS, WESTERN NEW YORK
V.A. HEALTH CARE SYSTEM
BUFFALO, NEW YORK
(Agency)

0-NG-2556

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

January 31, 2001

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and involves the negotiability of one proposal. For the following reasons, we find that the proposal is outside the duty to bargain.

II.     Proposal

Adverse Actions. Part-time Hybrid Title 38's, not having statutory appeal rights, will be afforded adverse action appeal rights under the negotiated grievance procedures and arbitration procedures defined in Article___.

III.     Positions of the Parties

A.     Agency Statement of Position

      The Agency asserts that because part-time hybrid title 38 employees are appointed without regard to civil service laws, rules, or regulations under 38 U.S.C. § 7405, and because the negotiated grievance procedure is a part of the civil service laws, a proposal providing those employees the right to appeal adverse actions through the negotiated grievance procedure is inconsistent [ v56 p1081 ] with law. [n1] The Agency also asserts that part-time title 38 employees are "temporary" employees.

B.     Union Response

      The Union argues that although part-time hybrid title 38 employees cannot appeal adverse actions to the Merit Systems Protection Board (MSPB), there is nothing prohibiting them from "fill[ing] the gap" by utilizing negotiated grievanc