AFGE Local 933 and Veterans Administration Medical Center (Authority decision, November 14, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on a negotiability petition. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

AFGE Local 933 proposed that all candidates for General Schedule positions at a Veterans Administration medical center meet minimum qualification standards set by the Office of Personnel Management. The Authority found the proposal conflicted with a law allowing the Veterans Administration to set qualifications for certain medical and technical positions itself. It held that the proposal was outside the duty to bargain and dismissed the union's petition for review.

Decision snapshot

• Authority: Duty to bargain under 5 U.S.C. § 7117(a)(1) and VA qualification authority under 38 U.S.C. § 4105(a)(9).
• Outcome: Negotiability petition dismissed.
• Key point: The union's proposal could not replace the VA's statutory qualification standards with OPM standards for covered positions.

Full text (FLRA public release)

[ v20 p689 ]

20:0689(80)NG

The decision of the Authority follows:

20 FLRA No. 80

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 933
Union

and

VETERANS ADMINISTRATION
MEDICAL CENTER
Agency

Case No. 0-NG-1077

DECISION AND ORDER ON NEGOTIABILITY ISSUE

The petition for review in this case comes before the Federal Labor Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents an issue concerning the negotiabIlity of one Union proposal. Upon careful consideration of the entire record, /1/ including the parties' contentions, the Authority makes the following determination.
/2/

Union Proposal

All candidates for General Schedule Positions must meet the minimum requirements of qualification standards, as described in Handbook X-118, and established for the position by the job analysis panel. Additionally, all candidates must meet statutory and regulatory requirements (such as time-in-grade, service, etc.) in order to be eligible for consideration. Qualification standards and information on requirements are available in the Personnel Service for review. described in Handbook X-118, and established for the position by the job analysis panel. Additionally, all candidates must meet statutory and regulatory requirements (such as time-in-grade, service, etc.) in order to be eligible for consideration. Qualification standards and information on requirements are available in the Personnel Service for review.

This proposal by its express terms would require all candidates for General Schedule (GS) positions to meet, inter alia, minimum qualifications for such positions established by the Office of Personnel Management (OPM) and promulgated In OPM Handbook X-118. /3/ In this regard, however, 38 U.S.C. 4105(a)(9) authorizes the Administrator of the Veterans Administration to prescribe qualification standards for certain GS positions such as, for example, licensed vocational nurses which also exist within the Department of Medicine and Surgery of the Veterans Administration. /4/ The legislative history of this section clearly indicates that Congress intended the Administrator of Veterans Administration to set qualification standards for certified or registered respiratory therapists, licensed physical therapists and licensed practical or vocational nurses without regard to the standards established by OPM for such positions insofar as they exist in other agencies. /5/

Thus, in agreement with the Agency, the Authority concludes that this proposal violates law, namely 38 U.S.C. 4105(a)(9). That is, adoption of the proposal would result in candidates for certain GS positions in the Department of Medicine and Surgery being evaluated under OPM minimum qualifications standards instead of those established by the Administrator of the Veterans Administration. Consequently, as this proposal is inconsistent with law, it is outside the duty to bargain pursuant to section 7117(a)(1) of the Statute.

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed. /6/

Issued, Washington, D.C., November 14, 1985

(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ The Union did not file a Reply Brief in this case.

/2/ The Agency's contention that the Union's petition for review should be dismissed because it does not contain a proposal which is sufficiently specific and delimited in form and content to permit the Authority to render a negotiability decision cannot be sustained. That is, while the Union's statement of the intent of the proposal is inconsistent with the clear meaning of the language of the proposal, and thus will not be relied upon by the Authority, see, e.g., American Federation of Government Employees, Local 2761 and U.S. Army Adjutant General Publication Center, St. Louis, Missouri, 17 FLRA No. 118 (1985), at 5 n. 7 of the decision, the record in this case provides sufficient basis for a negotiability determination on the express language of the proposal.

/3/ OPM Handbook X-118 sets forth the minimum qualification standards for various GS positions which exist in more than one agency.

/4/ 38 U.S.C. 4105(a)(9) provides:

Section 4105. Qualifications of appointees

(a) Any person to be eligible for appointment to the following positions in the Department of Medicine and Surgery must have the applicable qualifications:

(9) Physician assistant, expanded-function dental auxiliary, certified or registered respiratory therapist, licensed physical therapist, licensed practical or vocational nurse, occupational therapist, dietitian, microbiologist, chemist, biostatistician, medical technologist, dental technologist, or other position-- have such medical, dental, scientific, or technical qualifications as the Administrator shall prescribe.

/5/ S. Rep. No. 145, 98 Cong., 1st Sess. 50 (1983), reprinted in 1983 U.S. CODE CONG. & AD. NEWS, 1344, 1377; Explanatory Statement of House Bill, Senate Amendment, and Compromise Agreement, 129 CONG. REC. S15355-60 (daily ed. Nov. 3, 1983) reprinted in 1983 U.S. CODE CONG. & AD. NEWS, 1344, 1467.

/6/ In view of the Authority's decision herein, it is unnecessary to consider the Agency's additional contentions as to the nonnegotiability of the proposal.