U.S. Federal Labor Relations Authority

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Service Employees International Union, Local 200-C (Union) and United States Department of Veterans Affairs, Western New York, V.A. Health Care System, Buffalo, New York (Agency)

[ v56 p1080 ]

56 FLRA No. 190







January 31, 2001

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and involves the negotiability of one proposal. For the following reasons, we find that the proposal is outside the duty to bargain.

II.     Proposal

Adverse Actions. Part-time Hybrid Title 38's, not having statutory appeal rights, will be afforded adverse action appeal rights under the negotiated grievance procedures and arbitration procedures defined in Article___.

III.     Positions of the Parties

A.     Agency Statement of Position

      The Agency asserts that because part-time hybrid title 38 employees are appointed without regard to civil service laws, rules, or regulations under 38 U.S.C. § 7405, and because the negotiated grievance procedure is a part of the civil service laws, a proposal providing those employees the right to appeal adverse actions through the negotiated grievance procedure is inconsistent [ v56 p1081 ] with law. [n1] The Agency also asserts that part-time title 38 employees are "temporary" employees.

B.     Union Response

      The Union argues that although part-time hybrid title 38 employees cannot appeal adverse actions to the Merit Systems Protection Board (MSPB), there is nothing prohibiting them from "fill[ing] the gap" by utilizing negotiated grievance procedures for such appeals. Response at 1. The Union also asserts that part-time title 38 employees are permanent, not "temporary," employees.

IV.     Meaning of the Proposal

      The parties agree that the proposal provides that part-time hybrid title 38 employees, who do not have the statutory right to appeal adverse actions to MSPB, may appeal adverse actions that are not based solely on unacceptable performance through the negotiated grievance and arbitration procedures set forth in the parties' agreement.

V.     The proposal is inconsistent with the Civil Service Reform Act of 1978 (CSRA)

      The Authority has consistently held that affording employees adverse action appeal rights and procedural protections through the negotiated grievance procedure that those employees are specifically denied under the CSRA is inconsistent with that Act. See NTEU, 52 FLRA 1265, 1271-72 (1997); Panama Canal Comm'n, Balboa Republic of Panama, 43 FLRA 1483, 1502-05 (1992); AFGE, Council of Marine Corps Locals, Council 240, 39 FLRA 839, 844-47 (1991). The Authority's holding is based on the determination of several United States Courts of Appeals that Congress, in enacting the CSRA, established a comprehensive scheme of rights and remedies for federal employees that would be undermined if employees who were expressly denied adverse action appeal rights in the CSRA were afforded those rights through negotiated grievance procedures. See Federal Employees Metal Trades Council (Mare Island), 38 FLRA 1410, 1429-30 (1991) (citing HHS, Region IX, San Francisco, Cal. v. FLRA, 894 F.2d 333 (9th Cir. 1990); Dep't of the Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467, 1472 (D.C. Cir. 1989), cert. denied, 493 U.S. 1055 (1990); HHS v. FLRA, 858 F.2d 1278, 1284 (7th Cir. 1988)).

      The parties agree, and the proposal explicitly provides, that the employees covered by the proposal do not have statutory adverse action appeal rights under the CSRA. The parties' positions in this regard are consistent with Exum v. Dept' of Veterans Affairs, 62 M.S.P.R. 344 (1994), and 38 U.S.C. § 7405. Further, 5 U.S.C. § 7511(b)(10) generally denies adverse action rights under chapter 75 to those employees of the Veterans Health Administration whose positions have been excluded from the competitive service under title 38. [n2] Contrary to the Union's argument, whether or not the employees at issue are temporary is not relevant because they are specifically excluded from the coverage of title 5, chapter 75 under 38 U.S.C. § 7405 and, therefore, are denied adverse action rights under 5 U.S.C. § 7511(b)(10).

      The proposal would afford part-time hybrid title 38 employees the right to grieve disciplinary and performance actions that they are not entitled to appeal under chapter 75 of title 5. Consistent with Authority precedent and with the decisions of numerous circuit courts, the proposal is inconsistent with the CSRA. See HHS, Region IX v. FLRA, 894 F.2d 333; Dep't of Treasury v. FLRA, 873 F.2d 1467; HHS v. FLRA, 858 F.2d 1278; NTEU, 52 FLRA at 1271-72; Mare Island, 38 FLRA at 1428-1430. Accordingly, we find that the proposal is outside the duty to bargain.

VI.     Order

      The petition for review is dismissed.

Footnote # 1 for 56 FLRA No. 190

   38 U.S.C. § 7405(a)(1)(B) provides that hybrid title 38 employees may be employed on a part-time basis "without regard to civil service . . . laws, rules, or regulations[.]"

Footnote # 2 for 56 FLRA No. 190

   5 U.S.C. § 7511(b)(10) provides that chapter 75, subchapter II, does not apply to an employee "who holds a position within the Veterans Health Administration which has been excluded from the competitive service by or under a provision of title 38, unless such employee was appointed to such position under section 7401(3) of such title." While hybrid employees are generally appointed under 38 U.S.C. § 7401(3), part-time hybrid employees are appointed under 38 U.S.C. § 7405, not § 7401(3). See 38 U.S.C. § 7405(a)(1)(B).