National Federation of Federal Employees, Council of Consolidated Veterans Administration Locals and Veterans Administration (Authority decision, October 31, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability case. 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

The NFFE council proposed a negotiated grievance procedure that it intended to cover professional VA medical employees appointed under title 38. The Authority held that discipline for inaptitude, inefficiency, or misconduct involving those employees was governed exclusively by 38 U.S.C. § 4110. Because the proposal would place those matters in the negotiated grievance procedure, the Authority found it inconsistent with law and dismissed the petition.

Decision snapshot

• Authority: 5 U.S.C. § 7117 and 38 U.S.C. § 4110.
• Outcome: Grievance proposal outside the duty to bargain; petition dismissed.
• Key point: The title 38 disciplinary procedure controlled these professional employees' cases.

Full text (FLRA public release)

[ v16 p364 ]

16:0364(58)NG

The decision of the Authority follows:

16 FLRA No. 58

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, COUNCIL OF CONSOLIDATED
VETERANS ADMINISTRATION LOCALS
Union

and

VETERANS ADMINISTRATION,
WASHINGTON OFFICE
Agency

Case No. O-NG-773

DECISION AND ORDER ON NEGOTIABILITY ISSUE

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and presents issues concerning the negotiability of the following Union proposal.

ARTICLE 7

GRIEVANCE PROCEDURE

Section 1-- COMMON GOALS

The Employer and the Union recognize the importance of settling disagreements and disputes promptly, fairly, and in an orderly manner that will maintain the self respect of the employee and be consistent with the principles of good management. To accomplish this, every effort will be made to settle grievances expeditiously and at the lowest level of supervision.

Section 2-- SCOPE

Grievance means any complaint-- by any employee concerning any matter relating to the employment of the employee; by the union concerning any matter relating to the employment of any employee; or by any employee, the union, or agency concerning-- the effect or interpretation, or a claim of breach, of a collective bargaining agreement including Supplemental Agreement; or any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.

This grievance procedure does not apply to:

a) any claimed violation of 5 USC, Chapter 73, subchapter III, relating to prohibited political activities;

b) retirement, life insurance, or health insurance;

c) a suspension or removal under 5 USC 7532;

d) any examination, certification, or appointment;

e) the classification of any position which does not result in the reduction in grade or pay of an employee.

Employees have the option of raising the following matters under a statutory appeals procedure or the negotiated grievance procedure but not both; adverse actions (5 USC 7512), actions based on unacceptable performance (5 USC 4303), and discrimination (5 USC 2302(b)(1)). An employee shall be deemed to have exercised his option under this section to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the negotiated procedure, whichever event occurs first.

Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. The Union asserts that the specific intent of its proposal is to provide "title 38 employees" with the option of raising a grievance either under the negotiated procedure or under procedures established by title 38 of the United States Code. The Agency alleges that the proposal is nonnegotiable to the extent that it is intended to cover professional Department of Medicine and Surgery (DM&S) employees appointed under authority of title 38, U.S.C. and contends that 38 U.S.C. 4110 provides the exclusive procedure for resolving charges of "inaptitude, inefficiency or misconduct" against DM&S professionals.

The Authority has previously held that the Veterans Administration is under no obligation to bargain concerning proposals covering disciplinary and adverse actions insofar as these proposals relate to disputes regarding discipline imposed on DM&S professional employees for "inaptitude, inefficiency or misconduct," as such matters are exclusively controlled by 38 U.S.C. 4110. Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Minneapolis, Minnesota and American Federation of Government Employees, Local 3669, AFL-CIO, 15 FLRA 176 (1984).

Consequently, consistent with Authority precedent and judicial determinations that a negotiated grievance procedure may not include within its scope and coverage matters related to the disciplining, based on inaptitude, inefficiency or misconduct, of title 38 DM&S professional personnel, and in light of the Union's expressed intent that such personnel be covered by the disputed grievance procedure herein, the Authority concludes that the Union's proposal is inconsistent with applicable law and outside the duty to bargain pursuant to section 7117 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. Issued, Washington, D.C., October 31, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY