Veterans Administration Medical Center, Muskogee, Oklahoma and American Federation of Government Employees, Local 2250 (Authority decision, October 27, 1988)

Final FLRA decision. After a court remand, the Authority reverses its earlier unfair labor practice conclusion and dismisses the consolidated complaint. 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 Muskogee VA medical center changed the clinical privileges of two physicians without notifying AFGE Local 2250 or bargaining over implementation and employee effects. The Authority initially found an unfair labor practice. A federal appeals court then held that 38 U.S.C. § 4108(a) gave the VA Administrator control over professional medical employees' working conditions, displacing the asserted bargaining duty. On remand, the Authority found that the VA had no duty to bargain over these changes or their implementation and dismissed both complaints.

Decision snapshot

• Authority: VA medical staff authority under 38 U.S.C. § 4108(a) and unfair labor practice provisions of 5 U.S.C. § 7116(a).
• Outcome: Earlier violation finding vacated; consolidated complaint dismissed.
• Key point: Under the cited court ruling, changes to these physicians' clinical privileges did not trigger the asserted bargaining duty.

Full text (FLRA public release)

[ v33 p417 ]
33:0417(56)CA

The decision of the Authority follows:

33 FLRA No. 56

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

VETERANS
ADMINISTRATION

VETERANS ADMINISTRATION MEDICAL
CENTER

MUSKOGEE, OKLAHOMA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

AFL-CIO, LOCAL 2250

(Charging Party)

6-CA-50105,
6-CA-50106

(25 FLRA 875)

DECISION AND ORDER ON
REMAND

October 27, 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. See Veterans Administration, Veterans Administration Medical Center, Oklahoma v. FLRA, No. 87-1693 (D.C. Cir. Sept. 27, 1988). The court granted the Authority's motion to remand the case 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 20, 1987, the Authority issued its decision and order in Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 25 FLRA 875 (1987) (VAMC, Muskogee). In VAMC, Muskogee, the Authority held that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to give the American Federation of Government Employees, AFL-CIO, Local 2250 (the Union) notice of and an opportunity to bargain over the change in clinical privileges of two physicians in the bargaining unit. The Authority ordered the Respondent to negotiate upon request with the Union over the procedures and appropriate arrangements for employees affected by the change in conditions of employment.

The Respondent had contended before the Authority that the Authority should consider whether the Statute applies to professional employees of the Department of Medicine and Surgery (DM&S) of the Veterans Administration who are appointed under chapter 73 of title 38 of the United States Code. The Respondent argued that chapter 73 provides a separate and distinct personnel system for employees appointed under that chapter by the Administrator of the VA, who has exclusive statutory authority to regulate the 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 rejected the Respondent's contention, and found that "as a general matter, the [VA] has a duty to bargain" over the conditions of employment of professional medical employees of the DM&S. 25 FLRA at 876.

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 remand of cases involving DM&S employees of the VA, including VAMC, Muskogee, 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 Association 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, Veterans Administration Medical Center, Oklahoma v. FLRA, No. 87-1693 (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. It follows, therefore, that the VA has no obligation to bargain over changes in the conditions of employment of DM&S employees or to bargain over the procedures to be observed in implementing the changes or appropriate arrangements for employees adversely affected by those changes.

We have reexamined the Authority's analysis and conclusions with regard to the VA's duty to bargain in VAMC, Muskogee, and we have determined that the changes in clinical privileges of the two physicians concerned changes in the 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). Therefore, in light of the court's decision in Colorado Nurses Association v. FLRA, we conclude that the Respondent had no obligation to bargain over those matters.

Accordingly, we find that the Respondent did not violate the Statute by failing to give notice to the Union of the changes in the employees' clinical privileges and an opportunity for the Union to bargain over the procedures to be observed in implementing the changes or over appropriate arrangements for the employees adversely affected by the changes.

IV. Order

The consolidated complaint in Case Nos. 6-CA-50105 and 6-CA-50106 is dismissed.

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