Overseas Education Association (Union) and Department of Defense, Office of Dependents Schools (Agency) 

 04 FLRA No. 1
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES
 LOCAL 3669, AFL-CIO
 Union
 
 and
 
 VETERANS ADMINISTRATION
 MEDICAL CENTER,
 MINNEAPOLIS, MINNESOTA
 Activity
 
                                            Case No. O-NG-142
                                             4 FLRA NO. 53
 
                  DECISION ON MOTION FOR RECONSIDERATION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A REQUEST FILED BY THE AGENCY
 FOR RECONSIDERATION OF THE AUTHORITY'S DECISION IN THE ABOVE-ENTITLED
 CASE.  THE UNION FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IN THE SUBJECT CASE WAS WHETHER THE
 UNION PROPOSALS CONCERNING DISCIPLINARY AND ADVERSE ACTIONS WERE
 INCONSISTENT WITH FEDERAL LAW, SPECIFICALLY, 38 U.S.C. 4110, AND
 THEREFORE NOT WITHIN THE DUTY BARGAIN.  THE AGENCY CONTENDED THAT THE
 PROPOSALS CONFLICTED WITH THE STATUTORY PROCEDURE PROVIDED BY SECTION
 4110 FOR DISCIPLINARY MATTERS RELATING TO VETERANS ADMINISTRATION (VA)
 DEPARTMENT OF MEDICINE AND SURGERY (DM&S) EMPLOYEES.  THE AGENCY ALSO
 CONTENDED THAT THE SPECIFIC STATUTORY SYSTEM OF DISCIPLINE ESTABLISHED
 FOR THESE EMPLOYEES BY TITLE 38 IS EXCLUSIVE AND PRECLUDES DISCIPLINARY
 GRIEVANCES OF DM&S EMPLOYEES FROM THE PERMISSIBLE COVERAGE OF A
 GRIEVANCE PROCEDURE NEGOTIATED UNDER SECTION 7121 OF THE STATUTE.
 
    IN 4 FLRA NO. 53 (1980), THE AUTHORITY REJECTED BOTH OF THE AGENCY'S
 CONTENTIONS.  THE AUTHORITY EXPRESSLY DETERMINED THAT THE PROPOSALS DID
 NOT CONFLICT WITH THE DISCIPLINARY PROCEDURES PROVIDED BY TITLE 38 FOR
 DM&S EMPLOYEES.  THE AUTHORITY FURTHER DETERMINED THAT CONGRESS INTENDED
 FOR THE PERSONNEL SYSTEM ESTABLISHED BY TITLE 38, INCLUDING ITS
 PROVISIONS RELATING TO DISCIPLINE, TO BE ENCOMPASSED BY THE PROVISIONS
 OF THE STATUTE AND DID NOT INTEND THE EXCLUSIVITY SOUGHT BY THE AGENCY
 WITH RESPECT TO THE DISCIPLINE OF THESE EMPLOYEES.  THEREFORE, THE
 AUTHORITY FOUND THE PROPOSALS TO BE WITHIN THE ACTIVITY'S DUTY TO
 BARGAIN UNDER THE STATUTE.
 
    THE AGENCY SEEKS RECONSIDERATION PRIMARILY ON THE BASIS OF
 LEGISLATION WHICH WAS ENACTED SHORTLY BEFORE ISSUANCE OF THE AUTHORITY'S
 DECISION.  THUS, THE AGENCY REASSERTS THE EXCLUSIVITY OF THE TITLE 38
 PERSONNEL SYSTEM FOR DM&S EMPLOYEES ON THE BASIS OF THE VETERANS
 ADMINISTRATION HEALTH-CARE AMENDMENTS OF 1980, PUB. L. NO. 96-330, 94
 STAT. 1030.  SPECIFICALLY, THE AGENCY ARGUES THAT SECTION 116(A)(1) OF
 THE AMENDMENTS STATES "IN THE BROADEST POSSIBLE TERMS THE INDEPENDENCE
 OF THE DM&S PERSONNEL SYSTEM" FROM PROVISIONS OF TITLE 5 OF THE U.S.
 CODE, WHICH INCLUDES THE STATUTE.
 
    SECTION 116(A)(1), 94 STAT. 1039 (CODIFIED AT 38 U.S.C. 4119),
 PROVIDES:
 
    NOTWITHSTANDING ANY OTHER PROVISION OF LAW, NO PROVISION OF TITLE 5
 OR ANY OTHER LAW
 
    PERTAINING TO THE CIVIL SERVICE SYSTEM WHICH IS INCONSISTENT WITH ANY
 PROVISION OF THIS
 
    SUBCHAPTER SHALL BE CONSIDERED TO SUPERSEDE, OVERRIDE, OR OTHERWISE
 MODIFY SUCH PROVISION OF
 
    THIS SUBCHAPTER EXCEPT TO THE EXTENT THAT SUCH PROVISION OF TITLE 5
 OR OF SUCH OTHER LAW
 
    SPECIFICALLY PROVIDES, BY SPECIFIC REFERENCE TO A PROVISION OF THIS
 SUBCHAPTER, FOR SUCH
 
    PROVISION TO BE SUPERSEDED, OVERRIDDEN, OR OTHERWISE MODIFIED.
 
    THE AGENCY MAINTAINS THAT THIS SECTION WAS DRAFTED WITH THE CIVIL
 SERVICE REFORM ACT OF 1978 SPECIFICALLY IN MIND.  CONSEQUENTLY, THE
 AGENCY REQUESTS THAT THE AUTHORITY RECONSIDER ITS DECISION IN THIS CASE
 IN LIGHT OF THE VETERANS ADMINISTRATION HEALTH-CARE AMENDMENTS OF 1980.
 
    THE AUTHORITY FINDS NO BASIS HAS BEEN ESTABLISHED FOR RECONSIDERING
 ITS DECISION.  BY ITS OWN TERMS, SECTION 116(A)(1) OF THE AMENDMENTS
 PERTAINS ONLY TO PROVISIONS OF TITLE 5 THAT ARE "INCONSISTENT WITH ANY
 PROVISION OF THIS SUBCHAPTER." /1/ CLEARLY, THE POSITION OF THE AGENCY
 IN THIS CASE HAS BEEN, AND REMAINS, THAT THE UNION PROPOSALS ARE
 INCONSISTENT WITH RELEVANT PROVISIONS OF TITLE 38 AND THAT TO THE EXTENT
 THAT PROVISIONS OF THE STATUTE REQUIRE BARGAINING ON SUCH PROPOSALS AND
 PRECLUDE THE EXCLUSIVITY OF THE DISCIPLINARY PROCEDURES OF SUBCHAPTER 1
 OF CHAPTER 73 OF TITLE 38 FOR DM&S EMPLOYEES, SUCH PROVISIONS OF THE
 STATUTE ARE LIKEWISE "INCONSISTENT WITH . . . PROVISION(S) OF THIS
 SUBCHAPTER." HOWEVER, THE INCONSISTENCIES ALLEGED BY THE AGENCY WERE
 SPECIFICALLY ADDRESSED BY THE AUTHORITY IN 4 FLRA NO. 53 AND IT WAS
 DETERMINED THAT THE AGENCY'S POSITION COULD NOT BE SUSTAINED.  THE
 AUTHORITY EXPRESSLY DETERMINED THAT THE PROPOSALS WERE IN NO MANNER
 INCONSISTENT WITH TITLE 38.  LIKEWISE, THE AUTHORITY EXPRESSLY REJECTED
 THE AGENCY'S CLAIM THAT THE PERSONNEL SYSTEM ESTABLISHED BY TITLE 38 FOR
 DM&S EMPLOYEES WAS TO BE EXCLUSIVE OF PROVISIONS OF THE STATUTE.  THUS,
 THE AGENCY'S REQUEST FOR RECONSIDERATION CONSTITUTES NOTHING MORE THAN A
 REASSERTION OF ITS PREVIOUS STATEMENT OF POSITION, WHICH HAS ALREADY
 BEEN REJECTED, WITH THE SOLE ADDITION OF A CITATION TO A PROVISION OF
 LAW THAT IS PERTINENT ONLY IF PROVISIONS OF THE STATUTE ARE INCONSISTENT
 WITH A PROVISION OF SUBCHAPTER I OF CHAPTER 73 OF TITLE 38.  BECAUSE THE
 AUTHORITY RULED THAT A DETERMINATION THAT THE UNION PROPOSALS WERE
 WITHIN THE ACTIVITY'S DUTY TO BARGAIN WAS NOT INCONSISTENT WITH TITLE
 38, IT FOLLOWS THAT SECTION 116(A)(1) OF THE VETERANS ADMINISTRATION
 HEALTH-CARE AMENDMENTS OF 1980 DOES NOT COMMAND RECONSIDERATION.
 FURTHERMORE, CONTRARY TO THE SUGGESTION OF THE AGENCY THAT THIS
 PROVISION WAS INTENDED TO PRECLUDE SUCH MATTERS AS THE DISCIPLINE OF
 DM&S EMPLOYEES FROM BEING SUBJECT TO COVERAGE BY SECTION 7121 OF THE
 STATUTE, THE LEGISLATIVE HISTORY OF THE AMENDMENTS SPECIFICALLY
 INDICATES THAT THE COLLECTIVE BARGAINING RIGHTS OF TITLE 38 EMPLOYEES
 WERE RECOGNIZED AND PRESERVED BY CONGRESS IN THE ENACTMENT OF THE
 AMENDMENTS.  /2/ SIMILARLY, NO PROVISIONS OF THE STATUTE ARE EXPRESSLY
 ENUMERATED AS NOT APPLYING TO DM&S EMPLOYEES AS ARE SPECIFIC PROVISIONS
 OF OTHER CHAPTERS OF TITLE 5.  /3/
 
    THE AGENCY'S REQUEST FOR RECONSIDERATION THUS AFFORDS NO ADDITIONAL
 SUPPORT TO THE AGENCY'S POSITION THAT THE UNION PROPOSALS ARE
 INCONSISTENT WITH TITLE 38 AND CONSEQUENTLY PROVIDES NO BASIS FOR THE
 AUTHORITY TO ALTER OR MODIFY ITS DECISION IN THIS CASE.  ACCORDINGLY,
 THE REQUEST FOR RECONSIDERATION IS DENIED.
 
    ISSUED, WASHINGTON, D.C., APRIL 28, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE SUBCHAPTER REFERRED TO IS SUBCHAPTER I OF CHAPTER 73 OF TITLE
 38 AND INCLUDES 38 U.S.C. 4110 WHICH, AS NOTED, RELATES TO DISCIPLINARY
 MATTERS FOR DM&S EMPLOYEES.
 
    /2/ THE EXPLANATORY STATEMENT OF COMPROMISE AGREEMENT ON THE 1980
 AMENDMENTS EXPRESSLY STATES:
 
    IT WAS THE SENATE'S INTENTION, AS EXPRESSED IN THE SENATE COMMITTEE
 REPORT, IN INCLUDING
 
    THE CONSULTATION PROVISIONS, TO ASSURE THAT NOTHING IN THE BILL COULD
 BE CONSTRUED AS NEGATING
 
    RECOGNIZED COLLECTIVE BARGAINING RIGHTS, INCLUDING CONSULTATION
 RIGHTS.  THOSE PROVISIONS ARE
 
    NOT INCLUDED IN THE COMPROMISE BILL IN RECOGNITION OF THE COMMITTEES'
 AGREEMENT THAT SUCH A
 
    SPECIFIC REFERENCE TO SUCH RIGHTS IS UNNECESSARY AND COULD ENGENDER
 CONFUSION.  IN DELETING
 
    THOSE PROVISIONS, THE COMMITTEES WISH TO MAKE CLEAR THAT THEY DO NOT
 INTEND THAT ANY OF THE
 
    CHANGES MADE BY THE LEGISLATION TO THE VA'S HEALTH-CARE PERSONNEL
 AUTHORITIES DETRACT IN ANY
 
    WAY FROM EMPLOYEE RIGHTS UNDER EXISTING COLLECTIVE BARGAINING
 AGREEMENTS BETWEEN THE VA AND
 
    ITS EMPLOYEES.  EXPLANATORY STATEMENT OF COMPROMISE AGREEMENT ON H.R.
 7102/S. 2534, 126
 
    CONG.REC. H6850 (DAILY ED. JULY 31, 1980), REPRINTED IN (1980), U.S.
 CODE CONG. & AD. NEWS
 
    2557, 2563.
 
    /3/ FOR EXAMPLE, SPECIFIC PROVISIONS OF TITLE 5 RELATING TO THE
 SENIOR EXECUTIVE SERVICE ARE EXPRESSLY ENUMERATED AS NOT APPLYING TO
 DM&S EMPLOYEES.  SECTION 105(A) OF THE AMENDMENTS, 94 STAT. 1036
 (CODIFIED AT 38 U.S.C. 4101(E)).  LIKEWISE, SECTION 116(B) EXPRESSLY
 PROVIDES THAT CHAPTER 34 OF TITLE 5 SHALL NOT APPLY TO PART-TIME
 APPOINTMENTS.  94 STAT. 1039 (CODIFIED AT 38 U.S.C. 4114(G)).