National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration (Authority decision, October 26, 1988)

Final FLRA decision. On remand from a federal appeals court, the Authority dismisses a petition seeking review of proposals concerning professional medical employees. 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).

Plain-English summary

The Council of Veterans Administration Locals sought bargaining over assignments, leave, ratings, discipline, schedules, and other conditions for VA professional medical employees. The Authority had earlier found some proposals negotiable. A federal appeals court then ruled in a related case that the VA Administrator's statutory authority left the VA with no duty to bargain over these employees' conditions of employment. On remand, the Authority found that every proposal at issue concerned those conditions and dismissed the union's petition for review.

Decision snapshot

• Authority: VA Administrator's authority under 38 U.S.C. § 4108(a).
• Outcome: Negotiability petition dismissed on remand.
• Key point: The VA had no duty to bargain over the disputed conditions for its professional medical employees under the appeals court's ruling.

Full text (FLRA public release)

[ v33 p349 ]
33:0349(45)NG

The decision of the Authority follows:

33 FLRA No. 45

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES

COUNCIL OF VETERANS ADMINISTRATION
LOCALS

and

VETERANS ADMINISTRATION

0-NG-1273

(31 FLRA 360)

DECISION AND ORDER ON NEGOTIABILITY ISSUES ON
REMAND

October 26, 1988

Before Chairman Calhoun and Member
McKee.

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. Sept. 27, 1988). The court granted the Authority's motion to remand the case to allow the Authority to further consider its decision in light of the court's decision in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988).

II. Background

On February 23, 1988, the Authority issued its decision and order on negotiability issues in National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360 (1988) (Veterans Administration). The collective bargaining proposals at issue in Veterans Administration concerned, among other things, promotions and assignments, annual and sick leave, excused absences, proficiency ratings, disciplinary actions, tours of duty, overtime, staffing adjustments, and training relating to professional medical employees in the Department of Medicine and Surgery (DM&S).

The Veterans Administration (VA) contended that the proposals were not subject to the duty to bargain under the Federal Service Labor-Management Relations Statute (the Statute) because title 38 of the United States Code provides the Administrator of the VA with statutory authority to regulate conditions of employment of professional medical employees in the DM&S. Based on its decision in Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA 803 (1987) (VAMC, Ft. Lyons), the Authority found that the Statute applies to DM&S employees and that as a general matter the VA has a duty to bargain over the conditions of employment of those employees. As to the specific proposals in dispute, the Authority found some to be negotiable and others to be nonnegotiable.

Both the Colorado Nurses Association and the Veterans Administration petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the Authority's decision in VAMC, Ft. Lyons. The court reversed the Authority's ruling that the VA is obligated to bargain over conditions of employment of DM&S employees and concluded that the VA need not bargain over any of the contested proposals. Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988). The court found that the Statute's authorization of collective bargaining over conditions of employment for those employees conflicts with the authority of the VA Administrator under 38 U.S.C. 4108(a). Section 4108(a) provides that "[n]otwithstanding any law, Executive order, or regulation" the VA Administrator "shall prescribe by regulation the hours and conditions of employment and leaves of absence of" DM&S professional employees. The court stated that "[i]n enacting section 4108, Congress intended to give the Administrator unfettered discretion to issue regulations concerning the working conditions of DM & S employees." Id. at 1492.

On September 6, 1988, the Authority petitioned the court for the remand of cases involving DM&S employees of the VA, including Veterans Administration, which the court had held in abeyance pending its resolution of Colorado Nurses Association v. FLRA. The Authority asked that the cases be remanded "for disposition in the first instance" consistent with that decision and "to resolve any issues which may remain in the instant case in light of [the] Court's decision in Colorado Nurses Ass'n v. FLRA." FLRA Motion for Remand at 2 (footnote omitted). On September 27, 1988, the court granted the Authority's motion and remanded the cases to the Authority. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. Sept. 27, 1988).

III. Discussion

Based on the rationale and conclusions of the U.S. Court of Appeals for the District of Columbia Circuit, we find that, under 38 U.S.C. 4108(a), the VA has no obligation to bargain over the conditions of employment of professional medical employees of the DM&S. We have reexamined the proposals at issue in Veterans Administration and have determined that all of the proposals concern conditions of employment of DM&S employees whose conditions of employment are within the discretion of the VA Administrator under 38 U.S.C. 4108(a). In light of the court's decision in Colorado Nurses Association v. FLRA, we conclude that the VA has no obligation to bargain over the proposals. Accordingly, consistent with the court's decision in Colorado Nurses Association v. FLRA, we will dismiss the petition for review as to those proposals.

IV. Order

The petition for review in 31 FLRA 360 is
dismissed.

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