U.S. Federal Labor Relations Authority

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49:0171(23)CA - - VA Medical Center, Jackson, MS and NFFE, Local 589 - - 1994 FLRAdec CA - - v49 p171

[ v49 p171 ]
The decision of the Authority follows:

49 FLRA No. 23











(Charging Party/Union)



(48 FLRA 787 (1993))



February 28, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on the Respondent's motion for reconsideration of the Authority's decision in 48 FLRA 787 (1993). The Respondent also requests a waiver of the time limit set forth in section 2429.17 of our Rules and Regulations within which to file its request. The General Counsel filed an opposition to the motion.

Section 2429.17 of our Rules and Regulations permits a party that can establish extraordinary circumstances to request reconsideration of an Authority decision. For the following reasons, we conclude that extraordinary circumstances exist warranting our waiver of the time limit set forth in section 2429.17. In addition, we find that extraordinary circumstances exist warranting our grant of the Respondent's request for reconsideration.

II. The Decision in 48 FLRA 787

In 48 FLRA 787, the Authority concluded that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it permitted a Union representative to attend, but not to speak or otherwise participate in, two separate meetings with two probationary bargaining unit employees. The meetings encompassed Nurses Professional Standards Board (NPSB) peer reviews, conducted under the pertinent provisions of title 38 of the United States Code.(1) The two employees were terminated on the recommendation of the NPSB.

The Authority found that the NPSB reviews constituted investigatory examinations entitling the two affected employees to the representation rights provided in section 7114(a)(2)(B) of the Statute. Accordingly, we concluded that, by allowing a Union representative to attend but not speak or otherwise participate in the formal proceedings, the Respondent violated section 7114(a)(2)(B). To remedy the unfair labor practice, the Authority ordered, among other things, the Respondent to allow Union representatives to participate in professional standards board peer reviews for probationary employees.

In reaching these conclusions, the Authority rejected the Respondent's argument that 38 U.S.C. § 7422 precluded collective bargaining over regulations governing peer reviews. We stated that the rights set forth in section 7114(a)(2)(B) of the Statute are not dependant on collective bargaining. We further found that the Respondent could not, through issuance of VA Manual MP-5, Part II, Chapter 4.06(4), limit the rights granted to unit employees by the Statute.(2) We also found that nothing in title 38 excluded unit employees from coverage under section 7114(a)(2)(B) and that the Respondent failed to demonstrate that section 7114(a)(2)(B) was inconsistent with its authority to terminate probationary employees.

III. Motion for Reconsideration

A. Respondent

The Respondent contends that the Authority's decision in 48 FLRA 787 is inconsistent with the subsequently issued decision in U.S. Department of Veterans Affairs v. FLRA, 9 F.3d 123 (D.C. Cir. 1993) (Veterans Affairs v. FLRA). In this regard, the Respondent asserts that, although Veterans Affairs v. FLRA concerned the Respondent's authority to prescribe regulations regarding working conditions for "hybrid" employees, the court found that such authority was derived from the Respondent's authority to prescribe regulations governing the working conditions of "non-hybrid" employees.(3) Motion at 3. According to the Respondent, the court found that Respondent's authority to prescribe regulations existed "'[n]otwithstanding any law, Executive [O]rder, or regulation[.]'" Id. at 5 (quoting Veterans Affairs v. FLRA, 9 F.3d at 127).

The Respondent also argues that the Authority's determination that section 7114(a)(2)(B) rights are not tied to collective bargaining is erroneous and "gives a 'miserly' construction to 'collective bargaining.'" Id. at 7. The Respondent asserts that the Authority has previously construed "'collective bargaining' to include all labor-management activities affecting working conditions, as well as the union's status as exclusive representative." Id. Respondent alleges that, as section 7114(a)(2)(B) rights involve collective bargaining and, under 38 U.S.C. § 7422, collective bargaining does not extend to peer review matters, the representation rights set forth in section 7114(a)(2)(B) of the Statute do not apply to peer review proceedings.

B. General Counsel

The General Counsel argues that the Respondent's request for reconsideration does not establish extraordinary circumstances, within the meaning of section 2429.17 of the Authority's Rules and Regulations, and that the request is an attempt "to reargue the case in a . . . different manner." Response at 2. The General Counsel further argues that the Respondent has not established that extraordinary circumstances exist to warrant granting the Respondent's motion to waive the time limit set forth in section 2429.17 of our Regulations.

IV. Analysis and Conclusions

In Veterans Affairs v. FLRA, the court held, as relevant here, that the Respondent was free to prescribe regulations governing peer review procedures for nonhybrid employees without regard to bargaining obligations set forth in the Statute. 9 F.3d at 129. The court noted that, although Congress amended certain provisions of title 38 in 1991, the Respondent remained free, after the 1991 amendments, to "prescribe, without negotiating, regulations governing, for example, peer review procedures with respect to nonhybrid employees." Id. The court observed that the Respondent's "absolute" power in this regard was underscored by 38 U.S.C. § 7421(a), which authorizes the Respondent to "prescribe by regulation the . . . conditions of employment" of nonhybrid employees "[n]otwithstanding any law, Executive [O]rder, or regulation." Id. at 127, 129. Moreover, the court held that, under 38 U.S.C. § 7425, such regulations could override rights set forth in the Statute other than those statutory rights which specifically reference title 38 employees.(4) See id. at 131.

We have decided to adhere to and will henceforth follow the court's decision in Veterans Affairs v. FLRA. Consistent with that decision, the Respondent is authorized to prescribe regulations governing, among other things, probationary peer review proceedings for nonhybrid employees without regard to the bargaining and representational rights and obligations set forth in the Statute. Also consistent with the court's decision, such regulations may override statutory rights other than those specifically referencing title 38 employees. Nothing in section 7114(a)(2)(B) of the Statute specifically references title 38 employees. Therefore, we reverse our finding in 48 FLRA 787 that the Respondent could not, by regulation, limit or override those rights by regulation.

As noted previously, the Respondent has promulgated a regulation, VA Manual MP-5, Part II, Chapter 4.06(4), which precludes Union representation in probationary peer review hearings. The Respondent acted consistent with that regulation in refusing to permit Union representatives to participate in the disputed peer reviews. Accordingly, those actions do not constitute a violation of the Statute.

In this situation, noting particularly the intervening court decision in Veterans Affairs v. FLRA, we find that extraordinary circumstances have been established under section 2429.23(b) of our Rules and Regulations warranting a waiver of the time limit within which to file a request for reconsideration and warranting our grant of the Respondents' request for reconsideration.(5) Accordingly, we will grant the Respondent's request and dismiss the consolidated unfair labor practice complaint.

V. Order

The consolidated complaint in Cases Nos. 4-CA-10814 and 4-CA-10816 is dismissed.

(If blank, the decision does not have footnotes.)

1. The applicable portions of 38 U.S.C. § 7401 et seq. are set forth in 48 FLRA 787.

2. VA Manual MP-5, Part II, Chapter 4.06(4) provides that affected employees are entitled to notification of reviews by a professional standards board and that such notification must include, among other things:

Notification that the review is being conducted during the employee's probationary period and that he has no entitlement to legal or other representation. However, upon request, he will be given assistance in preparing his case, or he may seek assistance in his behalf from within the VA.

48 FLRA 787, Exhibit 21 attached to Stipulation.

3. 38 U.S.C. § 7401(3) provides that "hybrid" employees include non-medical professional employees such as licensed physical therapists, and pharmacists. 38 U.S.C. § 7403(a)(2) provides that "non-hybrid" employees include, among others, the nurses involved in this case.

4. 38 U.S.C. § 7425(b) provides in pertinent part:

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 chapter shall be considered to supersede, override, or otherwise modify such provision of . . . this chapter 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 chapter, or such provision to be superseded, overridden, or otherwise modified.

5. Although the General Counsel notes that the Respondent's request was not filed within 10 days after service of the Authority's decision in 47 FLRA 787 and opposes the request on that ground, the General Counsel does not contend that the Respondent did not file its request within a reasonable period of time after issuance of the court's decision in Veterans Affairs v. FLRA.