DEPARTMENT OF VETERANS AFFAIRS VETERANS AFFAIRS MEDICAL CENTER TULSA OUTPATIENT CLINIC TULSA, OKLAHOMA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2250

Other Files: 
Office of Administrative Law Judges

WASHINGTON, D.C.

DEPARTMENT OF VETERANS AFFAIRS VETERANS AFFAIRS MEDICAL CENTER TULSA OUTPATIENT CLINIC TULSA, OKLAHOMA Respondent









Case No. DA-CA-90322
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2250 Charging Party
Clifton L. Rowe Counsel for the Respondent Mary A. Larson Counsel for the General Counsel, FLRA Before: GARVIN LEE OLIVER Administrative Law Judge

DECISION


Statement of the Case

The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (5), by reassigning Anthony C. Gagliano, a bargaining unit employee, from Behavioral Medicine to Primary Care without providing the Charging Party (the Union) with notice and an opportunity to negotiate to the extent required by the Statute.


The Respondent contends that the reassignment was nonnegotiable as Gagliano is a Title 38 physician. Respondent claims that Gagliano's reassignment concerns professional conduct and competency based on the Under Secretary's determinations under 38 U.S.C. § 7422 in other cases. Therefore, according to the Respondent, the matter is excluded from the Authority's jurisdiction.


Subsequent to the filing of the complaint and the answer, Counsel for the Respondent moved to dismiss or for summary judgment. Counsel for the General Counsel filed a response to the motion and a cross-motion for summary judgment.

Considering all the pleadings and exhibits, it appears that there are no genuine issues of material fact and that the General Counsel is entitled to summary judgment as a matter of law. Accordingly, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact


The American Federation of Government Employees (AFGE) is the exclusive representative of a unit of employees appropriate for collective bargaining at the Respondent. The Union, AFGE, Local 2250, is an agent of AFGE for representing unit employees at Respondent's Tulsa Outpatient Clinic, Tulsa, Oklahoma.

Anthony C. Gagliano is an employee under 5 U.S.C. § 7103(a)(2) and a member of the bargaining unit. During all relevant times he was employed under 38 U.S.C. Chapter 74 as a permanent part-time physician. Dr. Gagliano was assigned as a staff psychiatrist in the Behavioral Medicine Service for some twenty-four years.

In January 1999, the Chief of Staff determined that, based upon a study of Dr. Gagliano's patient load, he would be better utilized performing duties as a psychiatrist in the Primary Care Service, also at the Tulsa Outpatient Clinic (Resp. Exh. A, E).

On or about January 29, 1999 Gagliano was notified that, due to his low workload, he would be reassigned for better utilization of his services from Behavioral Medicine to Primary Care effective February 8, 1999.

Upon learning of the reassignment, the Union contacted the Respondent and requested to negotiate the appropriate arrangements and procedures of the reassignment. The Respondent failed to respond to the Union's request to bargain.

On or about February 8, 1999 Gagliano was reassigned from Behavioral Medicine to Primary Care. Dr. Gagliano has since retired from the Department of Veterans Affairs.


Discussion and Conclusions
  • The Duty to Bargain Under the Statute

Before implementing a change in conditions of employment affecting bargaining unit employees, an agency is required to provide the exclusive representative with notice of, and an opportunity to bargain over, those aspects of the change that are within the duty to bargain. See Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas,

55 FLRA 848, 852 (1999)(FCI, Bastrop); U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 81 (1997). Absent a waiver of bargaining rights, the mutual obligation to bargain must be satisfied before changes in conditions of employment are implemented. Id.; National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395 (1990).

The nature of the change in conditions of employment that management proposes to make dictates the extent of its duty to bargain. If the change is substantively negotiable, a union may bargain over the actual decision whether the change should be made. See, e.g., Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 35 FLRA 153, 155 (1990). If the decision to change a condition of employment constitutes the exercise of a management right under section 7106 of the Statute, the substance of the decision to make the change is not negotiable, but the agency is nonetheless obligated to bargain over the impact and implementation of that decision if the resulting change will have more than a de minimis effect on conditions of employment. See Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-08 (1986). In such circumstances, an agency which fails to provide adequate prior notice of the change to the affected employees' exclusive representative or rejects the union's timely request for negotiations pursuant to section 7106(b)(2) and (3) of the Statute will be found to have violated section 7116(a)(1) and (5) of the Statute. See FCI, Bastrop, 55 FLRA at 852, and cases cited.

  • 38 U.S.C. § 7422

38 U.S.C. § 7422 provides, in pertinent part:


(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 . . . .

(b) Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) . . . 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.

(c) For purposes of this section, the term "professional conduct or competence" means any of the following:

(1) Direct patient care.

(2) Clinical competence.

(d) An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation . . . shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency.

38 U.S.C. § 7421, referenced in 38 U.S.C. § 7422, provides, in pertinent part:

(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. . . .

There is no dispute that this case involves "collective bargaining" within the meaning of 38 U.S.C. § 7422, that Dr. Gagliano is a physician within the meaning of 38 U.S.C. § 7421(b)(1), that the reassignment of Dr. Gagliano involved the right of the Respondent to assign work pursuant to section 7106(a)(2)(B) of the Statute, and that the Union asserted the right to bargain pursuant to section 7106(b)(2) and (3) of the Statute concerning the appropriate arrangements and procedures of the reassignment.

The Respondent does not argue that the reasonably foreseeable impact of such reassignment was de minimis. As noted, it only contends that the reassignment was outside the scope of collective bargaining under 38 U.S.C. § 7422 as Gagliano is a Title 38 physician and his reassignment concerns professional conduct and competency. Therefore, according to the Respondent, the matter is excluded from the Authority's jurisdiction.


There is no assertion by the Respondent that it has exercised its authority under section 7421 to prescribe a regulation overriding the right of a labor organization to negotiate over the appropriate arrangements and procedures of a physician's reassignment, thus divesting the Authority of jurisdiction. Cf. Department of Veterans Affairs, Veterans Affairs Medical Center, Washington, DC, 53 FLRA 822 (1997)(VA); Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, 51 FLRA 1741 (1996). Nor has the Secretary made a determination pursuant to 38 U.S.C. § 7422(d), that the issue raised in this case is a matter concerning or arising out of professional conduct or competence, which would also not be reviewable by the Authority.(1) VA, 53 FLRA at 831; 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, 913 (1993); Veterans Administration, Long