[ v15 p948 ]
The decision of the Authority follows:
15 FLRA No. 176 VETERANS ADMINISTRATION, WASHINGTON, D.C. AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3669, AFL-CIO Charging Party Case No. 5-CA-902 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record, including the stipulation of facts, accompanying exhibits, and the parties' contentions, the Authority finds: The amended complaint alleges that the Respondent, Veterans Administration, Washington, D.C. (the Agency) and Veterans Administration Medical Center, Minneapolis, Minnesota (the Activity), violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by failing and refusing to consult and negotiate in good faith with American Federation of Government Employees, Local 3669, AFL-CIO (the Union), and by breaching an Interim Agreement entered into between the Agency and the American Federation of Government Employees, National Veterans Administration Council (the Council). Specifically, the complaint alleges that the Respondent violated the Statute by failing to publish and put into effect a locally negotiated contract provision following its untimely disapproval by the Agency head. The Activity and the Union, negotiating for a new collective bargaining agreement, disagreed on proposals concerning disciplinary and adverse actions. The Activity took the position that the Union's proposal was nonnegotiable, and the Union filed a negotiability appeal with the Authority. /2/ The Activity and the Union thereupon executed a new collective bargaining agreement which included a grievance and arbitration procedure, the disciplinary and adverse action provision from their previous contract, and an agreement to amend the disciplinary and adverse action provision when their negotiability differences were resolved by either the Authority or the Federal Services Impasses Panel. Meanwhile, the Council was certified as the exclusive representative of a consolidated unit of the Agency's professional employees, including those at the Activity in the unit concerned herein. Subsequently, the Council and the Agency entered into an "Interim Agreement" permitting local negotiations on matters already at the bargaining table, for the purpose of completing a contract. The Interim Agreement imposed a deadline for the completion of such negotiations, including the resolution of negotiability issues before the Authority, after which such issues not "concluded" would be considered moot and would be mutually withdrawn. With the deadline imposed by the Interim Agreement almost at hand, the Union acceded to the Activity's proposal which covered both disciplinary and adverse actions, and which included a sentence reading as follows: No unit employee will be the subject of a disciplinary action except for just and sufficient cause. This locally agreed upon provision (Article XXIV, Disciplinary Actions) was submitted to the Agency head for approval under section 7114(c) of the Statute. /3/ While the Agency head was reviewing that provision, the Authority issued its negotiability decision in Case No. O-NG-142, /4/ finding that the Union's proposal concerning disciplinary and adverse actions was negotiable. Thereafter, although not within the period specified in section 7114(c)(3) of the Statute, /5/ the Agency head informed the Union that the provision was approved except for the above-quoted sentence, which was disapproved as not conforming with law, regulations or agency policy, with the following comment: Article XXIV, Section 1. The last sentence must be modified to bring it into conformance with 38 U.S.C. 4110(a). 38 U.S.C. 4119 is also cited. These provisions are set out below. /6/ It is undisputed that the Activity never gave effect to the cited sentence of Article XXIV, Section 1. Both the Agency head's disapproval and the Activity's refusal to publish and make effective the disputed provision were based on the Agency head's conclusion that the provision conflicted with section 4110 of title 38 of the U.S. Code. That contention had been raised by the activity in Veterans Administration, supra, and was specifically rejected by the Authority in that case. However, the Authority's decision in that case has since been set aside by the Court of Appeals for the Eighth Circuit. The court held that the Veterans Administration was not required by the Statute to bargain about disciplinary and adverse action proposals insofar as those proposals related to disputes regarding alleged professional misconduct. The court reasoned that the Veterans Administration Law, and specifically 38 U.S.C. 4110, providing for peer disciplinary boards to determine professional misconduct, was intended to be the exclusive remedy for discipline, and was not superseded by the Statute's grievance and arbitration procedures. /7/ Subsequently, on April 19, 1984, the Second Circuit reached the same conclusion on this issue. In doing so, the Court added that if the Statute's enactment in 1978 impliedly ended the exclusivity of the Veterans Administration peer review board procedures set forth at 38 U.S.C. 4110, the 1980 enactment of 38 U.S.C. 4119, which provided that a title 38 section can be overridden by an inconsistent title 5 section (including those of the Statute) only by specific reference in the text of the title 5 Statute, reaffirmed that exclusivity. /8/ The instant case requires the Authority to address once again the issue of whether the Veterans Administration was required by the Statute to bargain about disciplinary and adverse action proposals insofar as those proposals related to disputes regarding alleged professional misconduct, or whether such matters were within the exclusive purview of sections 4110(a) and 4119 of title 38 of the United States Code. Based upon the rationale and conclusions of the courts of appeals as set forth above, the Authority now finds that the Respondent was under no obligation to bargain concerning disciplinary and adverse action proposals insofar as those proposals relate to disputes regarding alleged professional misconduct, as such matters are exclusively controlled by the above-cited sections of the Veterans Administration Law. Since the provision at issue herein is not limited in any way, it conflicts with that law. Thus, as the provision conflicts with "other applicable law," pursuant to section 7114(c)(3) of the Statute, the Respondent did not violate the Statute by failing to publish, effectuate, or abide by the disputed agreement. The Authority notes that the Agency head's disapproval of the disputed provision was tardy, but concludes that such tardiness does not alter the result in the circumstances of this case, since section 7114(c)(3) of the Statute /9/ requires that a provision must be in accordance with "applicable law, rule, or regulation" whether approved, disapproved or neither. /10/ ORDER IT IS ORDERED that the complaint in Case No. 5-CA-902 be, and it hereby is, dismissed. Issued, Washington, D.C., August 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) and (5) of the Statute provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.) /2/ American Federation of Government Employees, Local 3669, AFL-CIO and Veterans Administration Medical Center, Minneapolis, Minnesota, 4 FLRA 391 (1980), set aside in part sub nom. Veterans Administration Medical Center, Minneapolis, Minnesota v. Federal Labor Relations Authority, 705 F.2d 953 (8th Cir. 1983), discussed further, infra. /3/ Section 7114(c) provides: Sec. 7114. Representation rights and duties . . . . (c)(1) An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency. (2) The head of the agency shall approve the agreement within 30 days from the date the agreement is executed if the agreement is in accordance with the provisions of this chapter and any other applicable law, rule, or regulation (unless the agency has granted an exception to the provision). (3) If the head of the agency does not approve or disapprove the agreement within the 30-day period, the agreement shall take effect and shall be binding on the agency and the exclusive representative subject to the provisions of this chapter and any other applicable law, rule, or regulation. (4) A local agreement subject to a national or other controlling agreement at a higher level shall be approved under the procedures of the controlling agreement or, if none, under regulations prescribed by the agency. /4/ American Federation of Government Employees, Local 3669, AFL-CIO and Veterans Administration Medical Center, Minneapolis, Minnesota, 4 FLRA 391 (1980), supra, n. 2. /5/ Supra, n. 3. /6/ 38 U.S.C. 4110(a) and 4119 provide: Sec. 4110. Disciplinary boards (a) The Chief Medical Director, under regulations prescribed by the Administrator, shall from time to time appoint boards to be known as disciplinary boards, each such board to consist of not less than three nor more than five employees, senior in grade, of the Department of Medicine and Surgery, to determine, upon notice and fair hearing, charges of inaptitude, inefficiency, or misconduct of any person employed in a position provided in paragraph (1) of section 4104 of this title. The majority of employees on a disciplinary board shall be employed in the same category of position as the employee who is the subject of the charges. Sec. 4119. Relationship between this subchapter and other provisions of law 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. /7/ Veterans Administration Medical Center, Minneapolis, Minnesota v. Federal Labor Relations Authority, 705 F.2d 953 (8th Cir. 1983), setting aside in part 4 FLRA 391 (1980). /8/ Veterans Administration Medical Center, Northport, New York v. Federal Labor Relations Authority, 732 F.2d 1128 (2nd Cir. 1984), denying enforcement of 10 FLRA 675 (1983). /9/ Supra, n. 3. /10/ See e.g., American Federation of Government Employees, Local 1753 and Department of the Air Force, Myrtle Beach Air Force Base, South Carolina, 8 FLRA 152 (1982); National Federation of Federal Employees, Local 1332 and Department of the Army, Headquarters, U.S. Army Materiel Development and Readiness Command, 5 FLRA 599 (1981). See also Interpretation and Guidance, 15 FLRA No. 120 (1984).