American Federation of Government Employees, Local 3669 and Veterans Administration Medical Center, Minneapolis, Minnesota (Authority decision, April 28, 1982)

Final FLRA decision. The Authority denied the agency's request to reconsider its negotiability ruling, leaving the ruling that the union's discipline proposals were within the duty to bargain in place. An aggrieved person may petition an appropriate United States court of appeals for review of a final Authority order within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 3669 proposed rules for disciplinary and adverse actions involving employees at the Veterans Administration Medical Center in Minneapolis. The Authority had held that the proposals did not conflict with the Title 38 disciplinary process and were within the medical center's duty to bargain. The agency requested reconsideration based on a 1980 amendment protecting the Title 38 personnel system from inconsistent civil service laws. The Authority found that its earlier ruling had identified no inconsistency with Title 38, so the amendment gave no reason to change the result. It denied reconsideration, leaving the negotiability ruling in place. The decision imposed no penalty.

Decision snapshot

• Authority: 5 U.S.C. § 7121; 38 U.S.C. §§ 4110 and 4119.
• Outcome: Reconsideration denied; the union's discipline proposals remained within the duty to bargain.
• Key point: The 1980 amendment did not alter the Authority's finding that bargaining over these proposals was consistent with Title 38.

Full text (FLRA public release)

[ v04 p3 ]

04:0003(1)AR

The decision of the Authority follows:

04 FLRA No. 1

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
LOCAL 3669, AFL-CIO
Union

and

VETERANS ADMINISTRATION
MEDICAL CENTER,
MINNEAPOLIS, MINNESOTA
Activity

Case No. O-NG-142
4 FLRA NO. 53

DECISION ON MOTION FOR RECONSIDERATION

THIS MATTER IS BEFORE THE AUTHORITY ON A REQUEST FILED BY THE AGENCY
FOR RECONSIDERATION OF THE AUTHORITY'S DECISION IN THE ABOVE-ENTITLED
CASE. THE UNION FILED AN OPPOSITION.

THE QUESTION BEFORE THE AUTHORITY IN THE SUBJECT CASE WAS WHETHER THE
UNION PROPOSALS CONCERNING DISCIPLINARY AND ADVERSE ACTIONS WERE
INCONSISTENT WITH FEDERAL LAW, SPECIFICALLY, 38 U.S.C. 4110, AND
THEREFORE NOT WITHIN THE DUTY BARGAIN. THE AGENCY CONTENDED THAT THE
PROPOSALS CONFLICTED WITH THE STATUTORY PROCEDURE PROVIDED BY SECTION
4110 FOR DISCIPLINARY MATTERS RELATING TO VETERANS ADMINISTRATION (VA)
DEPARTMENT OF MEDICINE AND SURGERY (DM&S) EMPLOYEES. THE AGENCY ALSO
CONTENDED THAT THE SPECIFIC STATUTORY SYSTEM OF DISCIPLINE ESTABLISHED
FOR THESE EMPLOYEES BY TITLE 38 IS EXCLUSIVE AND PRECLUDES DISCIPLINARY
GRIEVANCES OF DM&S EMPLOYEES FROM THE PERMISSIBLE COVERAGE OF A
GRIEVANCE PROCEDURE NEGOTIATED UNDER SECTION 7121 OF THE STATUTE.

IN 4 FLRA NO. 53 (1980), THE AUTHORITY REJECTED BOTH OF THE AGENCY'S
CONTENTIONS. THE AUTHORITY EXPRESSLY DETERMINED THAT THE PROPOSALS DID
NOT CONFLICT WITH THE DISCIPLINARY PROCEDURES PROVIDED BY TITLE 38 FOR
DM&S EMPLOYEES. THE AUTHORITY FURTHER DETERMINED THAT CONGRESS INTENDED
FOR THE PERSONNEL SYSTEM ESTABLISHED BY TITLE 38, INCLUDING ITS
PROVISIONS RELATING TO DISCIPLINE, TO BE ENCOMPASSED BY THE PROVISIONS
OF THE STATUTE AND DID NOT INTEND THE EXCLUSIVITY SOUGHT BY THE AGENCY
WITH RESPECT TO THE DISCIPLINE OF THESE EMPLOYEES. THEREFORE, THE
AUTHORITY FOUND THE PROPOSALS TO BE WITHIN THE ACTIVITY'S DUTY TO
BARGAIN UNDER THE STATUTE.

THE AGENCY SEEKS RECONSIDERATION PRIMARILY ON THE BASIS OF
LEGISLATION WHICH WAS ENACTED SHORTLY BEFORE ISSUANCE OF THE AUTHORITY'S
DECISION. THUS, THE AGENCY REASSERTS THE EXCLUSIVITY OF THE TITLE 38
PERSONNEL SYSTEM FOR DM&S EMPLOYEES ON THE BASIS OF THE VETERANS
ADMINISTRATION HEALTH-CARE AMENDMENTS OF 1980, PUB. L. NO. 96-330, 94
STAT. 1030. SPECIFICALLY, THE AGENCY ARGUES THAT SECTION 116(A)(1) OF
THE AMENDMENTS STATES "IN THE BROADEST POSSIBLE TERMS THE INDEPENDENCE
OF THE DM&S PERSONNEL SYSTEM" FROM PROVISIONS OF TITLE 5 OF THE U.S.
CODE, WHICH INCLUDES THE STATUTE.

SECTION 116(A)(1), 94 STAT. 1039 (CODIFIED AT 38 U.S.C. 4119),
PROVIDES:

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

SUBCHAPTER SHALL BE CONSIDERED TO SUPERSEDE, OVERRIDE, OR OTHERWISE
MODIFY SUCH PROVISION OF

THIS SUBCHAPTER 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
SUBCHAPTER, FOR SUCH

PROVISION TO BE SUPERSEDED, OVERRIDDEN, OR OTHERWISE MODIFIED.

THE AGENCY MAINTAINS THAT THIS SECTION WAS DRAFTED WITH THE CIVIL
SERVICE REFORM ACT OF 1978 SPECIFICALLY IN MIND. CONSEQUENTLY, THE
AGENCY REQUESTS THAT THE AUTHORITY RECONSIDER ITS DECISION IN THIS CASE
IN LIGHT OF THE VETERANS ADMINISTRATION HEALTH-CARE AMENDMENTS OF 1980.

THE AUTHORITY FINDS NO BASIS HAS BEEN ESTABLISHED FOR RECONSIDERING
ITS DECISION. BY ITS OWN TERMS, SECTION 116(A)(1) OF THE AMENDMENTS
PERTAINS ONLY TO PROVISIONS OF TITLE 5 THAT ARE "INCONSISTENT WITH ANY
PROVISION OF THIS SUBCHAPTER." /1/ CLEARLY, THE POSITION OF THE AGENCY
IN THIS CASE HAS BEEN, AND REMAINS, THAT THE UNION PROPOSALS ARE
INCONSISTENT WITH RELEVANT PROVISIONS OF TITLE 38 AND THAT TO THE EXTENT
THAT PROVISIONS OF THE STATUTE REQUIRE BARGAINING ON SUCH PROPOSALS AND
PRECLUDE THE EXCLUSIVITY OF THE DISCIPLINARY PROCEDURES OF SUBCHAPTER 1
OF CHAPTER 73 OF TITLE 38 FOR DM&S EMPLOYEES, SUCH PROVISIONS OF THE
STATUTE ARE LIKEWISE "INCONSISTENT WITH . . . PROVISION(S) OF THIS
SUBCHAPTER." HOWEVER, THE INCONSISTENCIES ALLEGED BY THE AGENCY WERE
SPECIFICALLY ADDRESSED BY THE AUTHORITY IN 4 FLRA NO. 53 AND IT WAS
DETERMINED THAT THE AGENCY'S POSITION COULD NOT BE SUSTAINED. THE
AUTHORITY EXPRESSLY DETERMINED THAT THE PROPOSALS WERE IN NO MANNER
INCONSISTENT WITH TITLE 38. LIKEWISE, THE AUTHORITY EXPRESSLY REJECTED
THE AGENCY'S CLAIM THAT THE PERSONNEL SYSTEM ESTABLISHED BY TITLE 38 FOR
DM&S EMPLOYEES WAS TO BE EXCLUSIVE OF PROVISIONS OF THE STATUTE. THUS,
THE AGENCY'S REQUEST FOR RECONSIDERATION CONSTITUTES NOTHING MORE THAN A
REASSERTION OF ITS PREVIOUS STATEMENT OF POSITION, WHICH HAS ALREADY
BEEN REJECTED, WITH THE SOLE ADDITION OF A CITATION TO A PROVISION OF
LAW THAT IS PERTINENT ONLY IF PROVISIONS OF THE STATUTE ARE INCONSISTENT
WITH A PROVISION OF SUBCHAPTER I OF CHAPTER 73 OF TITLE 38. BECAUSE THE
AUTHORITY RULED THAT A DETERMINATION THAT THE UNION PROPOSALS WERE
WITHIN THE ACTIVITY'S DUTY TO BARGAIN WAS NOT INCONSISTENT WITH TITLE
38, IT FOLLOWS THAT SECTION 116(A)(1) OF THE VETERANS ADMINISTRATION
HEALTH-CARE AMENDMENTS OF 1980 DOES NOT COMMAND RECONSIDERATION.
FURTHERMORE, CONTRARY TO THE SUGGESTION OF THE AGENCY THAT THIS
PROVISION WAS INTENDED TO PRECLUDE SUCH MATTERS AS THE DISCIPLINE OF
DM&S EMPLOYEES FROM BEING SUBJECT TO COVERAGE BY SECTION 7121 OF THE
STATUTE, THE LEGISLATIVE HISTORY OF THE AMENDMENTS SPECIFICALLY
INDICATES THAT THE COLLECTIVE BARGAINING RIGHTS OF TITLE 38 EMPLOYEES
WERE RECOGNIZED AND PRESERVED BY CONGRESS IN THE ENACTMENT OF THE
AMENDMENTS. /2/ SIMILARLY, NO PROVISIONS OF THE STATUTE ARE EXPRESSLY
ENUMERATED AS NOT APPLYING TO DM&S EMPLOYEES AS ARE SPECIFIC PROVISIONS
OF OTHER CHAPTERS OF TITLE 5. /3/

THE AGENCY'S REQUEST FOR RECONSIDERATION THUS AFFORDS NO ADDITIONAL
SUPPORT TO THE AGENCY'S POSITION THAT THE UNION PROPOSALS ARE
INCONSISTENT WITH TITLE 38 AND CONSEQUENTLY PROVIDES NO BASIS FOR THE
AUTHORITY TO ALTER OR MODIFY ITS DECISION IN THIS CASE. ACCORDINGLY,
THE REQUEST FOR RECONSIDERATION IS DENIED.

ISSUED, WASHINGTON, D.C., APRIL 28, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ THE SUBCHAPTER REFERRED TO IS SUBCHAPTER I OF CHAPTER 73 OF TITLE
38 AND INCLUDES 38 U.S.C. 4110 WHICH, AS NOTED, RELATES TO DISCIPLINARY
MATTERS FOR DM&S EMPLOYEES.

/2/ THE EXPLANATORY STATEMENT OF COMPROMISE AGREEMENT ON THE 1980
AMENDMENTS EXPRESSLY STATES:

IT WAS THE SENATE'S INTENTION, AS EXPRESSED IN THE SENATE COMMITTEE
REPORT, IN INCLUDING

THE CONSULTATION PROVISIONS, TO ASSURE THAT NOTHING IN THE BILL COULD
BE CONSTRUED AS NEGATING

RECOGNIZED COLLECTIVE BARGAINING RIGHTS, INCLUDING CONSULTATION
RIGHTS. THOSE PROVISIONS ARE

NOT INCLUDED IN THE COMPROMISE BILL IN RECOGNITION OF THE COMMITTEES'
AGREEMENT THAT SUCH A

SPECIFIC REFERENCE TO SUCH RIGHTS IS UNNECESSARY AND COULD ENGENDER
CONFUSION. IN DELETING

THOSE PROVISIONS, THE COMMITTEES WISH TO MAKE CLEAR THAT THEY DO NOT
INTEND THAT ANY OF THE

CHANGES MADE BY THE LEGISLATION TO THE VA'S HEALTH-CARE PERSONNEL
AUTHORITIES DETRACT IN ANY

WAY FROM EMPLOYEE RIGHTS UNDER EXISTING COLLECTIVE BARGAINING
AGREEMENTS BETWEEN THE VA AND

ITS EMPLOYEES. EXPLANATORY STATEMENT OF COMPROMISE AGREEMENT ON H.R.
7102/S. 2534, 126

CONG.REC. H6850 (DAILY ED. JULY 31, 1980), REPRINTED IN (1980), U.S.
CODE CONG. & AD. NEWS

2557, 2563.

/3/ FOR EXAMPLE, SPECIFIC PROVISIONS OF TITLE 5 RELATING TO THE
SENIOR EXECUTIVE SERVICE ARE EXPRESSLY ENUMERATED AS NOT APPLYING TO
DM&S EMPLOYEES. SECTION 105(A) OF THE AMENDMENTS, 94 STAT. 1036
(CODIFIED AT 38 U.S.C. 4101(E)). LIKEWISE, SECTION 116(B) EXPRESSLY
PROVIDES THAT CHAPTER 34 OF TITLE 5 SHALL NOT APPLY TO PART-TIME
APPOINTMENTS. 94 STAT. 1039 (CODIFIED AT 38 U.S.C. 4114(G)).