34:0199(41)NG - - AFGE Local 3884 and Veterans Affairs, Medical and Regional Office Center, Fargo, ND - - 1990 FLRAdec NG - - v34 p199

[ v34 p199 ]
The decision of the Authority follows:

34 FLRA No. 41




LOCAL 3884








January 9, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

These cases are before the Authority on negotiability appeals filed by the American Federation of Government Employees, Local 3884 (the Union) under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). As both cases involve the same parties, arise out of the same negotiations, and present similar negotiability issues, we have consolidated them for decision. The cases concern the negotiability of seven proposals (five proposals in 0-NG-1697 and two proposals in 0-NG-1698) which the Department of Veterans Affairs (VA), Veterans Administration Medical and Regional Office Center, Fargo, North Dakota (the Agency) alleged to be nonnegotiable.

The proposals concern conditions of employment of professional medical employees of the Department of Medicine and Surgery (DM&S). As the Secretary of Veterans Affairs has exclusive discretion over the conditions of employment of DM&S employees under 38 U.S.C. º 4108(a), the Agency has no duty to bargain over the proposals. The Union's petitions for review are, therefore, dismissed.

II. Background

The Union represents a bargaining unit of registered nurses appointed under chapter 73 of title 38, United States Code. See Union Petition at 1; Agency Statement of Position (Agency Statement) at 2. The Union submitted bargaining proposals in response to changes made by the Agency in certain areas of policy and procedure.

In Case No. 0-NG-1697, the Union made five proposals relating to changes in the policy circular entitled "Reporting Procedure for Special Incidents Involving a Beneficiary." In Case No. 0-NG-1698, the Union made two proposals concerning nursing documentation involving entries on the "daily nursing progress note." See Union Petition at 2; Agency Statement at 4.

The Agency alleged that the Union's proposals in both instances were nonnegotiable because they conflict with management's rights.

III. Authority Jurisdiction

A. Positions of the Parties

The Agency contends that under the decision of the United States Court of Appeals for the District of Columbia Circuit in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) (Colorado Nurses Association), the Department of Veterans Affairs has exclusive authority over the working conditions of title 38 professional medical employees. The Agency argues that "[a]ny determination by the VA Secretary to engage in collective bargaining arises not under the mandatory provisions of the labor statute, but under the discretionary provisions of the VA statute." Agency Statement at 4. The Agency asserts that the Authority lacks jurisdiction to review the exercise of that discretion. Id.

The Union contends that its negotiability appeals should not be dismissed on the basis of the court's decision in Colorado Nurses Association. The Union maintains that the situation in this case differs from that in Colorado Nurses Association because, in this case, the parties are bound by an "Interim Memorandum of Agreement Between the National VA Council, AFGE, AFL-CIO and The Veterans Administration," dated April 21, 1980. See Union Petition, Exhibit 1. The Union asserts that this agreement has never been repudiated by the Agency.

The Union states that the Veterans Affairs Central Office (VACO) has directed its facilities to "continue the present posture of maintaining status quo in dealings with Union officials representing Title 38 employees until further VACO directive." Union Petition at 1. The Union asserts that this directive "has never been repudiated." Id. The Union contends that the parties have continued an active collective bargaining relationship and that this negotiability appeal "arises from a unit of employees working under an existing collective bargaining agreement." Id., emphasis in original. The Union contends that the court's decision in Colorado Nurses Association did not affect existing bargaining relationships. The Union states that "[l]awful contracts are binding and the Authority has exclusive jurisdiction of collective bargaining agreements among [f]ederal agencies[.]" Id.

B. Discussion

We conclude that the Agency is not obligated to bargain over the Union's proposals in this case.

Based on the rationale and conclusions of the court in Colorado Nurses Association, the Authority has found that under 38 U.S.C. º 4108(a), the VA has no obligation to bargain over the conditions of employment of professional medical employees of the DM&S. See, for example, Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 33 FLRA 284 (1988), aff'd order sub nom. Illinois Nurses Association v. FLRA, No. 88-1891 (D.C. Cir. Apr. 12, 1989).

It is undisputed that the bargaining unit employees involved in this case are registered nurses who are pr