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The decision of the Authority follows:
26 FLRA No. 33 VETERANS ADMINISTRATION WASHINGTON, D.C. Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case No. 3-CA-50461 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority, in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on an August 4, 1986 stipulation of facts by the parties, who have agreed that no material issue of fact exists. Briefs for the Authority's consideration were filed by the Respondent, the Charging Party and the General Counsel. The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to comply with an order of the Federal Service Impasses Panel (the Panel), and thereby also refusing to negotiate in good faith with the Charging Party (AFGE/the Union). II. Facts AFGE is the exclusive representative of certain of the Respondent's professional employees of the Department of Medicine and Surgery (DM&S) who are appointed under Chapter 73 of Title 38, United States Code, and are engaged in health care related duties in a nationwide bargaining unit. During the course of bargaining for an initial master agreement, the parties failed to reach agreement on 11 proposals. The Respondent took the position that the proposals were nonnegotiable. AFGE invoked the services of the Panel. The Panel initially declined to assert jurisdiction on the grounds that the issues posed unresolved negotiability matters. Subsequently, acting on the Union's request for reconsideration, the Panel asserted jurisdiction as to the one proposal here in issue, the proposed grievance procedure. The Panel stated that, with respect to the grievance procedure, "proposals on this subject are negotiable at least to the extent that they exclude disputes covered by 38 U.S.C. 4110. (Veterans Administration Medical Center, Minneapolis, Minnesota v. Federal Labor Relations Authority, 705 F.2d 953 (8th Cir. 1983))." Panel letter of August 8, 1984 (Joint Exhibit No. 11). The Panel accordingly amended its earlier determination declining to assert jurisdiction over the grievance procedure issue and directed that the issue be resolved. The Respondent entered a limited appearance before the Panel to argue that the Panel had no jurisdiction because the matter involved a negotiability issue. It asserted that all employees appointed under Title 38 are excluded from the coverage of the Statute, and the matter is therefore not negotiable. On February 5, 1985, the Panel issued its Decision and Order in Veterans Administration, Washington, D.C. and National Council of VA Locals, American Federation of Government Employees, AFL-CIO, Case No. 84 FSIP 49. With respect to the issue of the Panel's jurisdiction, the Panel stated: As a threshold issue, the Employer asserts that the Panel does not have jurisdiction over this dispute because Management has raised a 'legitimate negotiability question.' In this regard, the FLRA held in (Vermont Air National Guard, Burlington, Vermont, 9 FLRA 737 (1982)) that the scope of the grievance procedure is a matter affecting working conditions and, 'as a condition of employment, is a mandatory subject for collective bargaining under the Statute.' The Panel, as an entity within the FLRA, must follow decisions of the Authority until reversed by the FLRA itself or the U.S. Supreme Court. In the circumstances of this case, the Employer has not demonstrated that Vermont is inapplicable. Moreover, the record before us indicates that the parties have engaged in negotiations over the scope of the grievance procedure and agreed to exclude incentive awards in addition to the mandatory exclusions set forth in section 7121(c) of the Statute. Id., slip op. at 8-9. As to the merits, the Panel ordered the parties to withdraw their separate proposals and to adopt certain language in their contract regarding the grievance procedure. On April 19, 1985, the Panel issued a corrected copy of its Decision and Order, stating that "the Panel intended its Order to encompass personnel actions involving Title 38 employees (and that such) actions, of course, include 'disciplinary measures.'" Joint Exhibit No. 5. As corrected, the Panel's Decision and Order directed the parties to adopt the following language in the contract provision regarding the grievance procedure: A complaint shall not include a grievance over personnel actions, including disciplinary measures, concerning the performance or conduct of employees appointed under title 38, where such performance or conduct is directly related to the provision of health care and under the provisions of title 38 the decision of the Administrator in such matters is to be final. Id., slip op. at 10. On July 2, 1985, the Panel issued a clarification of its intent in correcting the language. The Panel stated that it was its intent "that the personnel actions described in its Order be based on charges of inaptitude, inefficiency or misconduct as set forth in 38 U.S.C. Section 4110(a)." Joint Exhibit No. 6. Since on or about July 22, 1985, the Respondent has refused to sign the negotiated agreement which includes the language ordered by the Panel, on the grounds that the Panel exceeded its jurisdiction by making a negotiability determination with respect to the applicability of the grievance procedure to individual grievances filed by Title 38 employees. III. Positions of the Parties A. The Respondent The Respondent contends that it had no obligation to sign the agreement including the language imposed by the Panel (1) because the Panel was without authority to make such a determination and (2) because the Panel's order is contrary to law. As to (1), it argues that the Panel's decision is a negotiability determination, and the Authority has found that the Panel is without authority to make such determinations. Interpretation and Guidance, 11 FLRA 626 (1983). Further, while the Panel relied upon the Authority's finding in Vermont Air National Guard that the scope of the grievance procedure "is a mandatory subject for collective bargaining under the Statute," the Respondent argues that the Authority there also specifically held that the grievance procedure may only cover matters which lawfully could be covered. The Respondent argues that the courts' decisions in Veterans Administration Medical Center, Minneapolis, Minnesota v. FLRA, 705 F.2d 953 (8th Cir. 1983) (VA Minneapolis), and Veterans Administration Medical Center, Northport, New York v. FLRA, 732 F.2d 1128 (2d Cir. 1984) (VA Northport), did not determine the question of negotiability here involved. As to (2), the Respondent argues that because Chapter 73 of Title 38 provides a separate and distinct personnel system for employees appointed under that Chapter, those employees can not lawfully be included in any grievance procedure negotiated under the Statute. According to the Respondent, the Panel's order is therefore contrary to law and is unenforceable through the unfair labor practice procedures. Respondent argues that the Authority's negotiability appeal procedure is the only proper procedure for resolving the conflict, and notes that there are numerous appeals pending before the Authority on the matter. B. The Union and the General Counsel The Union argues that the Panel was correct in asserting jurisdiction on the grounds that the negotiability of the grievance procedure is a matter already decided by the Authority. It contends that the courts in VA Minneapolis and VA Northport also determined that grievance procedures were negotiable at least as to all non-disciplinary matters. Further, the Union cites cases in which the Authority made unfair labor practice findings involving Title 38 employees' working conditions. In view of these decisions, the Union argues that the Panel was required to take jurisdiction, that the Panel lawfully issued an order to execute an agreement with regard to the grievance procedure, and that the Respondent therefore violated section 7116(a)(1), (5) and (6) of the Statute by refusing to do so. The General Counsel argues that the Panel did not make a negotiability determination, and that the Panel's Decision and Order comports with the Authority's rulings in this area. Therefore, the General Counsel contends that the Respondent's refusal to execute the negotiated agreement as directed by the Panel constitutes an improper refusal to bargain in good faith and to cooperate in impasse procedures and decisions. Additionally, the General Counsel notes that the language ordered by the Panel specifically excludes from the grievance procedure those matters encompassed within section 4110 of Title 38. IV. Analysis As to the Respondent's first contention, we find that the Panel did not exceed its authority in asserting jurisdiction over the issue in dispute. In asserting jurisdiction, the Panel cited VA Minneapolis, in which the court stated that its "decision does not preclude proposals concerning grievance procedures, which could include binding arbitration, to be used in employment disputes not covered by section 4110." Panel letter of August 8, 1984 (Joint Exhibit No. 11). The Panel also concluded that it was bound by the Authority's determination in Vermont Air National Guard that the scope of the grievance procedure is a mandatory subject for bargaining, and it therefore considered the merits of the proposal at impasse. See American Federation of Government Employees, Locals 225, 1504 and 3723 v. FLRA, 712 F.2d 640 (D.C. Cir. 1983), affirming the Authority's determination first made in Vermont Air National Guard. Therefore, the Panel did not make an independent negotiability determination, but rather asserted jurisdiction on the basis of existing precedent in this area. In these circumstances, the Panel's jurisdiction was unaffected by the fact that other negotiability cases on this subject were pending at the time before the Authority. Accordingly, we find that the Panel did not err in asserting jurisdiction. We also find no merit in the Respondent's contention that the Panel's order is contrary to law. The Respondent's arguments in this connection are similar to those we considered and rejected in Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987), petition for review filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C. Cir. Feb. 25, 1987). /1/ In Ft. Lyons, the initial question before us was whether the Agency has a duty to bargain over the conditions of employment of DM&S professional employees. The same basic arguments are raised in this case. We find here, as we did in Ft. Lyons, that a conflict does not exist between the authority of the VA Administrator under section 4108(a) of Title 38 and the duty to bargain under section 7117 of the Statute, and that nothing in Title 38 operates to remove the conditions of employment of DM&S professional employees from the VA's duty to bargain under the Statute, except those disciplinary matters exclusively provided for by section 4110 of Title 38. Accordingly, we find that the subject matter before the Panel was a matter about which the Respondent had a duty to bargain and further find that the Panel's Decision and Order was not contrary to law. By not complying with the Panel's decision, the Respondent assumed a risk that if its position did not prevail, it would be found to have committed an unfair labor practice. See Department of the Treasury and Internal Revenue Service, 22 FLRA No. 89 (1986), slip op. at 10-11, petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 86-1475 (D.C. Cir. Aug. 25, 1986). We so find. /2/ V. Conclusion We have considered all the facts and circumstances of this case, including the positions of the parties. We conclude that the Respondent has violated section 7116(a)(1) and (6) of the Statute by failing and refusing to comply with the Decision and Order of the Panel. In view of this finding, we find it unnecessary to pass on whether the Respondent's conduct also violated section 7116(a)(5) of the Statute. See U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA 456 (1984). We shall grant the remedial order requested by the General Counsel. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Veterans Administration, Washington, D.C., shall: 1. Cease and desist from: (a) Failing and refusing to comply with the Decision and Order of the Federal Service Impasses Panel in Case No. 84 FSIP 49 by failing and refusing to adopt the language with regard to the grievance procedure ordered by the Panel. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Comply with the Decision and Order of the Federal Service Impasses Panel in Case No. 84 FSIP 49 by adopting the language with regard to the grievance procedure ordered by the Panel. (b) Post at all its facilities where there are DM&S employees represented by the American Federation of Government Employees, AFL-CIO, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Administrator, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply with it. IT IS FURTHER ORDERED that the complaint, insofar as it alleges a violation of section 7116(a)(5) of the Statute, is dismissed. Issued, Washington, D.C., March 17, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) See Ft. Lyons, slip op. at 1, where we noted that we had granted the Respondent's motion for consideration of common issues in pending cases. This case was included within that motion. (2) If the Respondent's position had been sustained, however, we would not have found it in violation of the Statute. See Office of Personnel Management, Washington, D.C., 17 FLRA 302 (1985). NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to comply with the Decision and Order of the Federal Service Impasses Panel in Case No. 84 FSIP 49 by failing or refusing to adopt the language with regard to the grievance procedure ordered by the Panel. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute. WE WILL comply with the Decision and Order of the Federal Service Impasses Panel in Case No. 84 FSIP 49 by adopting the language with regard to the grievance procedure ordered by the Panel. (Agency) Dated: . . . By: (Signature) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500.