Under Secretary Sides with Union in Title 38 Nurse Case
A nurse recruiter at the VA Maryland Health Care System posted a vacancy announcement for an External Peer Review Program Coordinator in August of 2006. Due to a realignment of the position, a subsequent vacancy announcement was posted and applicants were sought.
A member of NAGE Local R3-19 who is a Title 38 Nurse applied for the vacancy. The member was determined to be qualified and her name was referred for consideration; however, she was not ultimately selected. Local R3-19 believed irregularities occurred in the recruitment/selection process and filed a grievance on behalf of the member and the local. The union received a positive ruling and the case will head to arbitration.
NAGE attorney James Dever, who handled the case said, “This was an important victory over the restrictive nature of 38 U.S.C. §7422 towards the hard working RNs throughout government service. We’re thrilled the Under Secretary agreed, albeit for somewhat different reasons, that the grievant's failure to be promoted was not because of her professional competence. Now she’ll have her day at arbitration.”
Concerns on behalf of Local R3-19 ranged from a delayed selection process in conjunction with pre-selection to management’s failure to conduct interviews—all in part violations of the bargaining unit's Master Agreement.
The grievance procedure did not result in a resolution and Local R3-19 moved to invoke arbitration. Before proceeding to arbitration, the Agency requested the Under Secretary for Health to make a 38 U.S.C. §7422 determination on whether the issue itself could be heard by an arbitrator.
38 U.S.C. §7422, grants collective bargaining rights to Title 38 Employees in accordance with Title 5 provisions but specifically excludes from the collective bargaining process matters or questions arising out of professional conduct or competence, peer review and compensation. It was the Agency’s belief that the grievant’s promotion bypass was of the nature that, by 38 U.S.C. §7422, was excluded from arbitration. The Union, and as it turns out, Under Secretary of Health did not agree.
Generally, as the Under Secretary ruled, 38 U.S.C. §7422 would bar grievances/arbitrations over selection determinations for nursing positions based on the applicants’ clinical competence. However, the Agency filed the instant position based upon the chosen candidate’s customer service skills, independent work ethic and her ability to interact with coworkers; not her respective clinical qualifications. Also, the External Peer Review Program Coordinator by its very nature has negligible impact on patient care. These two factors demonstrate the qualifications used in the selection process were not directly linked to clinical competence or patient care within the meaning of 38 U.S.C. §7422.
As such, the Under Secretary ruled that Local R3-19’s grievance was not excluded from collective bargaining and could proceed to arbitration.