Labor-management relations with Title 38 health care professionals
present unique issues not involved in standard Title 5 labor matters.
These issues may arise in:

-   Negotiations between VHA facilities and labor unions representing
    title 38 employees;

-   *Grievances* filed by or on behalf of title 38 employees under
    negotiated grievance procedures;

-   Disciplinary actions (other than major adverse actions) in which a
    title 38 employee's appeal rights depend upon whether the misconduct
    was a matter of professional conduct or competence;

-   ULPs brought by health care professionals' unions; or

-   Litigation before FLRA, FSIP, arbitrators, or courts.

Regional Counsel Attorneys and other field personnel whose
responsibilities include labor relations with title 38 employees should
familiarize themselves with these issues so as to effectively assist VHA
facilities in dealing with these specialized problems.

**OVERVIEW OF THE LAW**

Prior to the 1990s, Title 38 health care workers had no right to engage
in collective bargaining at all. In 1991, Congress granted non-hybrid
title 38 employees \-- physicians, dentist, podiatrists, optometrists,
registered nurses, physician assistants, and expanded-duty dental
assistants \-- limited collective bargaining rights, but specifically
excluded collective bargaining over certain issues: namely, ***matters
arising out of (1) professional conduct or competence (meaning direct
patient care and clinical competence); (2) peer review; and (3)
compensation***. These exemptions are often referred to as "7422
matters," a reference to the statute -- 38 U.S.C. § 7422 -- that
provides the specific exclusions.

Under section 7422, issues involving direct patient care, clinical
competence, peer review, and establishment, determination, or adjustment
of compensation for health care workers are not subject to negotiation
with labor unions, nor can such matters be grieved under negotiated
grievance procedures. On the other hand, proposals for procedures that
are peripheral to an exempted issue may not be subject to the
exemptions; the particulars of a given proposal determine whether it
falls inside or outside the 7422 exemptions.

Arbitrators and third parties such as the Federal Labor Relations
Authority (FLRA) have no jurisdiction to review matters falling within
one of the 7422 exemptions. The statute gives the Secretary of Veterans
Affairs the sole authority to determine whether an issue falls within
the statutory exemptions. The Secretary has delegated that authority to
the Under Secretary for Health (USH). If the USH finds a matter to be
non-negotiable under section 7422, then the issue is *absolutely*
outside the scope of collective bargaining -- there is no bargaining
over impact and implementation and no jurisdiction to involve
arbitrators, FLRA, or Federal Service Impasses Panel (FSIP) in resolving
the dispute. In general, the only review of a USH decision under the law
is a petition for judicial review or enforcement with the United States
Court of Appeals for the District of Columbia Circuit.

Specific examples of issues that have been found to fall within the 7422
exemptions can be found on VA's Office of Labor Management Relations
(LMR) website, which posts prior USH decisions. Go to
[www.va.gov/lmr](http://www.va.gov/lmr), click on "Title 38 § 7422" on
the menu at the left of the screen, then scroll down to find the prior
decisions toward the bottom of the main webpage. In addition, OHRM's
website has an internet-based course for HRM specialists that give
general information on 7422 issues. Go to
<http://vaww.ees.aac.va.gov/t38/default_two.htm> and click on *[Section
VI: Labor Management Relations]{.underline}* on the menu on the left.

### THE 38 U.S.C. §7422 PROCEDURE

# 

The procedure for obtaining an USH determination must be initiated as
soon as a potential 7422 issue arises. The VA should not assert a 7422
exemption before FLRA, FSIP, or another external authority unless and
until the USH has actually determined the matter to be exempt. Only when
the USH has determined, in writing, an issue to be non-negotiable or
non-grievable do the exemptions and prohibition against external
administrative review attach. FLRA, FSIP, and arbitrators should,
however, be notified that a 7422 decision request has been forwarded to
the USH, and such authorities should be asked to suspend proceedings
pending the USH's decision in the case.

The first step in the 7422 decision process should be a consultation
with Regional Counsel and/or with a General Counsel (GC) attorney in PSG
III who specializes in labor relations law and/or a member of the
Central Office LMR group staff. These specialists' names and contact
information are listed below. In consultation with the local Regional
Counsel attorney handling the matter, GC and LMR specialists will help
the facility frame the issue and determine whether it is, in fact,
appropriate for USH review. If a union has merely made a proposal or
threatened action but has not yet filed a negotiability appeal or ULP
claim, then the issue may not yet be ripe for decision by the USH. On
the other hand, the determination process must not be put off, as FLRA
and other external agencies generally require a finalized, signed USH
decision to terminate a case under section 7422. It may be helpful to
review the prior 7422 decisions posted on LMR's website
([www.va.gov/lmr](http://www.va.gov/lmr)) to see whether the USH has
determined similar or analogous issues to be 7422-exempt in the past.

If, after consultation with PSG III and LMR and reviewing prior USH
decisions, the issue seems to require a decision by the USH, the union
should be notified and efforts should be made to resolve the issue that
gave rise to the need for a 7422 determination. If those efforts fail
and the union disagrees with your belief that the issue or matter
involves a 7422 exemption, then the Director of the affected VHA
facility should send a written request to the USH for a 7422
determination. (Please see the attached sample request, discussed more
fully below.) At a minimum, the request must provide:

-   the underlying facts giving rise to the 7422 issue, including copies
    of any pertinent documents;

-   the procedural posture of the case necessitating the USH's decision
    (e.g. grievance, ULP, or negotiability appeal filing), including
    copies of any pertinent documents;

-   citations to any pertinent VA regulations;

-   if there is a prior USH decision on point, a reference to that
    decision.

    A sample of a completed request is attached for your reference.
    Please note the parenthetical bold language is merely for
    identification of the above-mentioned requirements and should not be
    contained in the final request.

    The request for a decision must be signed by the facility director
    and submitted to the USH through LMR. In addition, the request
    should state what efforts have been taken to resolve the issue
    informally with the union in the spirit of collaboration. A copy
    shall be provided to the local union and they should be advised that
    they are free to submit their views on the issue(s) to the USH
    through LMR. To avoid unnecessary delays, the request should be sent
    via Federal Express or other overnight courier (using the
    correspondence code LMR). Once the request is received in VACO, LMR
    and PSG III specialists will work together to prepare a decision
    paper for the USH. That paper will be reviewed for GC concurrence
    and then submitted to the USH for his consideration. This process
    can take as little as two weeks or as long as eight weeks to
    complete, depending upon the complexity of the issues involved.

    Once the USH decides that an issue is subject to one of the 7422
    exemptions, that decision divests the FLRA, FSIP, or arbitrator of
    jurisdiction to resolve the matter. At this point the third party
    authority (FLRA, FSIP, etc.) should be provided with a copy of the
    decision paper and reminded of the case law precluding third-party
    jurisdiction over matters deemed exempt by the Under Secretary
    (e.g., *VAMC Asheville and AFGE Local* 446, 57 FLRA No. 137 (2002)
    (ULP case); *Dep\'t of Veterans Affairs, Veterans Affairs Med. Ctr.,
    Wash., D.C.*, 53 FLRA 822 (1997) (ULP case); *Wis. Fed\'n of Nurses
    & Health Prof\'ls, Veterans Admin. Staff Nurses Council, Local
    5032*, 47 FLRA 910, 913-14 (1993) (negotiability case). If an issue
    has been briefed for the Under Secretary but no decision has yet
    been rendered, management should request that proceedings before the
    FLRA, FSIP, etc. be stayed pending the issuance of the Under
    Secretary's decision.

# CONTACTS FOR FURTHER GUIDANCE

Questions regarding section 7422 matters should be directed to one or
more of the following:

[OGC (023) Attorneys:]{.underline}

Thomas J. McKeever, Jr. Gia Chemsian

Email:<thomas.mckeever@mail.va.gov> Email: <Gia.Chemsian@va.gov>

Phone: (202) 461-7694 Phone: (202) 461-7642

Fax: (202) 273-6403 Fax: (202) 273-6403

[Office of Labor Management Relations (LMR) Specialists:]{.underline}

Doug Katcher Denise Biaggi-Ayer

Email: <douglas.katcher@va.gov> Email: <Denise.Biaggi-Ayer@va.gov>

Phone: 828-298-7911 X13500 Phone: (202) 461-4129

> Fax: (202) 461-4075

Karen Kormelink **Bonnie Kerber**

Email: [**Karen.Kormelink@va.gov**](mailto:tammy.lesane@mail.va.gov)
**Email: <bonnie.kerber@med.va.gov>**

Phone: (202) **461-4123 Phone: (712) 256-5863**

Larry Bennett

Email: [Larry.Bennett@va.gov](../john.haltigan@mail.va.gov)

Phone: (202) 461-4126

SAMPLE

**Department of Memorandum**

**Veterans Affairs**

Date:

From: Medical Center Director, VAMC, Anytown, USA

# 

# Subj: Request for 38 U.S.C. § 7422(b) Determination

To: Under Secretary for Health, Washington, DC (10)

Thru: Office of Labor Management Relations, VACO (LMR)

1\. I am writing to request a determination by the Under Secretary for
Health that the actions and issues described below involve issues
excluded from collective bargaining under 38 U.S.C. § 7422(b).

***\[Provide factual background of the issue to be determined (attaching
any pertinent documents), e.g.:\]***

2\. On January 3, 2002, at a Strategic Planning Meeting, management of
VAMC Anytown determined that a change in the staff mix of the Primary
Care Clinic and the Urgent Care unit was required to improve patient
care. More specifically, management determined that the Primary Care
Clinic was overstaffed with Registered Nurses (RNs), while RN staffing
at the Urgent Care unit was inadequate. (Attachment A) As a result,
management reassigned three (3) RNs from the Primary Care Clinic to the
Urgent Care unit.

***\[Explain the clinical basis for specific management decision(s)
(attaching any pertinent documents), e.g.:\]***

3\. The RNs who were reassigned \-- Alice Apple, RN, Betty Ball, RN, and
Candace Cook, RN -- were chosen for their experience in Urgent Care,
which was more recent and more substantial than the Urgent Care
experience of the other RNs assigned to the Primary Care Clinic. Ms.
Apple worked in the Urgent Care unit at VAMC Smallsville from January
1996 through November 1999, when she relocated to Anytown. Ms. Ball was
detailed to the Anytown Urgent Care unit for six (6) months in 2000. Ms.
Cook is an experienced Urgent Care and Acute Care nurse whose most
recent Urgent Care assignment ended in June 1999.

***\[Explain the management and/or union actions that have ripened the
issue for determination (attaching any pertinent documents), e.g.:\]***

4\. On January 10, 2002, management gave Ms. Apple, Ms. Ball and Ms.
Cook written notice of their reassignments to the Urgent Care unit, with
such reassignments to take effect on January 30, 2003. (Attachment B)

5\. On January 11, 2002, the ABC union, Local 1234, which represents
registered nurses at the Anytown VAMC, requested to bargain over the RN
reassignments. (Attachment C) More specifically, the union proposed that
management first solicit volunteers to be reassigned from the Primary
Care Clinic to the Urgent Care unit, and if there were not enough
volunteers to fill the three (3) slots, that the least senior nurses
from the Primary Care Clinic be chosen for the reassignment.

6\. On January 20, 2002, management notified the union in writing that
it considered the union's January 11, 2003 proposals to be
non-negotiable. (Attachment D)

7\. On January 28, 2002, the union filed an Unfair Labor Practice (ULP)
complaint with the Federal Labor Relations Authority (FLRA), charging
that management had failed to negotiate in good faith over the RN
reassignments. (Attachment E)

8\. On that same date, the union filed a grievance (Attachment F) under
the parties' negotiated grievance procedure (Attachment G), asserting
that management had violated a March 22, 1987 Memorandum of
Understanding (MOU) (Attachment H) between the parties that provided, in
pertinent part, that "in the event reassignments are made from one unit,
volunteers will be solicited first \[, and i\] f there are no
volunteers, then the least senior nurse will be reassigned." (Attachment
I) In the grievance, the union requested as a remedy that Nurses Apple,
Ball and Cook be reassigned back to the Primary Care Clinic.

9\. On March 3, 2002, VAMC management denied the grievance, stating that
the issues raised in the grievance were a matter of professional conduct
or competence. (Attachment J).

***\[Provide dates of scheduled events that impact the timeliness of the
Under Secretary for Health's determination (attaching pertinent
documents), e.g.:\]***

10\. On March 15, 2002, the union invoked arbitration in connection with
its grievance. (Attachment K) The arbitration is set for hearing on May
25, 2002.

11\. On March 20, 2002, FLRA issued a complaint and notice of hearing in
connection with the union's ULP filing. (Attachment L) The hearing is
set for May 27, 2002.

***\[Cite VA regulations, if any, pertinent to the issue:\]***

12\. VA has promulgated regulations relating to the assignment and
reassignment of RNs. These regulations are set forth in VA Directive and
Handbook 5005, Part IV, Ch. 3, § B.

***\[Cite any prior USH decisions of which you are aware that govern the
same subject matter:\]***

13\. In several prior cases involving involuntary or directed
reassignments of Registered Nurses, the Under Secretary for Health has
determined that such assignments involve professional competence and
conduct within the meaning of 38 U.S.C. § 7422(b). These include:
Fayetteville, N.C. VAMC on July 10, 1992, White River Junction, VT, VAMC
on July 7, 1994 and West Haven VAMC on October 24, 2002.

***\[State with precision the issue you would like the Under Secretary
for Health to decide:\]***

14\. We believe that the issue grieved, including the union's requested
relief, is outside the scope of collective bargaining and not subject to
the negotiated grievance procedure. Moreover, we believe that the MOU
between the parties, requiring that RN reassignments from one unit to
another be made on a voluntary or seniority basis, is outside the scope
of collective bargaining.

***\[Provide contact information:\]***

15\. If I can provide additional assistance, please contact me at
123-456-7890, or the HR Manager, Peter Persons, at 123-456-7899.

***\[Have the facility director sign the request:\]***

*Donna D. Director*

Donna D. Director, MA, ACHE

Director, VAMC Anytown