47:0910(85)NG - - WI Federation of Nurses and Health Professionals, VA Staff Nurses Council, Local 5032 and VA, Clement J. Zablocki Medical Center, Milwaukee, WI - - 1993 FLRAdec NG - - v47 p910

[ v47 p910 ]
The decision of the Authority follows:

47 FLRA No. 85






LOCAL 5032










June 16, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).(1) The appeal concerns a single provision of a negotiated agreement that was disapproved by the Secretary of Veterans Affairs.(2) The Secretary determined that the provision was not within the scope of bargaining because it concerned or arose out of professional conduct or competence under 38 U.S.C. § 7422(b) and also because it was contrary to management's right to discipline under 5 U.S.C. § 7106(a)(2)(A).

For the reasons that follow, we conclude that the Authority has no jurisdiction to review the Secretary's negotiability determination under title 38 of the U.S. Code. In view of our conclusion, we will not address the Secretary's negotiability determination regarding title 5 at this time. Accordingly, we will dismiss the petition for review.

II. Authority's Jurisdiction to Resolve Negotiability Issue

A. Positions of the Parties

1. Agency

The Agency argues that the petition for review should be dismissed because the Authority lacks jurisdiction to review the Secretary's negotiability determination. In this regard, the Agency acknowledges that 38 U.S.C. § 7422(a) provides health care employees in the Department of Veterans Affairs medical centers with the right to engage in collective bargaining with respect to conditions of employment in accordance with chapter 71 of title 5. However, the Agency contends that under 38 U.S.C. § 7422(b), such collective bargaining may not cover any matter concerning or arising out of professional conduct or competence, peer review, or the establishment, determination or adjustment of employee compensation for positions described in 38 U.S.C. § 7421(b). In the Agency's view, the determination as to whether a matter concerns or arises out of a subject area that is nonnegotiable under section 7422(b) of title 38 is decided by the Secretary of Veterans Affairs under 38 U.S.C. § 7422(d). The Agency maintains that the Secretary's determination is not reviewable by any other agency, including the Authority.

In this case, the Agency contends that the Secretary delegated his authority under section 7422 to the Chief Medical Director, who then determined that the provision was nonnegotiable because it concerned the professional conduct or competence of bargaining unit employees and was contrary to the right to discipline under section 7106(a)(2)(A) of the Statute. The Agency maintains that the Authority may not review the Chief Medical Director's title 38 negotiability determination. The Agency further contends that although the Authority has jurisdiction to decide the negotiability of the provision under title 5, the Authority should not exercise its jurisdiction until the title 38 issues have been resolved. The Agency asserts that any decision by the Authority concerning negotiability issues under the Statute would be an advisory opinion because that decision would not resolve the Union's concerns with respect to the Secretary's negotiability determination under title 38. Accordingly, the Agency requests that the Authority grant its motion to dismiss the Union's petition for review.

2. Union

The Union concedes that the Authority does not have jurisdiction to review the Secretary's determination of nonnegotiability with respect to the matters excluded from collective bargaining under 38 U.S.C. § 7422(b). However, the Union contends that the provision in this case specifically excludes matters relating to the professional conduct or competence of bargaining unit employees.

The Union further asserts that the Authority can and should exercise its jurisdiction to review the Secretary's negotiability determination regarding matters arising under the Statute. The Union claims that the Agency's position that the Authority should consider the negotiability of a provision under section 7106 only after litigation of the Secretary's title 38 determination is completed would lead to delays in resolving the negotiability appeal. For this reason, the Union maintains that the Authority would be unable to review the Secretary's declaration of nonnegotiability on an expedited basis as required by section 7117(c)(6) of the Statute. Therefore, the Union argues that the Authority should exercise its jurisdiction under title 5 in this proceeding and review the negotiability of the provision in dispute.

B. Court Proceeding

In their submissions to the Authority, both parties advised the Authority that the Union was seeking judicial review of the Secretary's title 38 negotiability determination. Consequently, by Order dated December 23, 1992, the Authority directed the parties to furnish certain information concerning the petition for review. Based on the information provided by both parties, it appeared that the issues presented in the court proceeding could be dispositive of the issues raised in the negotiability proceeding before the Authority. Therefore, the Authority suspended processing of the Union's negotiability appeal until the court rendered a decision in the matter or took other dispositive action. On March 3, 1993, the United States Court of Appeals for the District of Columbia Circuit issued an Order in which it granted the Agency's motion to dismiss the petition for lack of jurisdiction. The court stated that the Union had failed to ide