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Office of Labor-Management Relations (LMR)


38 § 7422 Determinations

Special Issues in Collective Bargaining with Title 38 Medical Professionals

This web page is intended to provide a summary of the special issues involved in collective bargaining with non-hybrid Title 38 health care professionals - physicians, dentist, podiatrists, optometrists, registered nurses, physical assistants, and expanded duty dental assistants. These issues may arise in negotiations between VHA facilities and labor union representing Title 38 employees; in grievances filed on behalf of Title 38 employees under negotiated grievance procedures; in ULP's brought by health care professionals' unions; on in litigation before FLRA, FSIP, arbitrators, or courts. Management Officials, Regional Counsels, Personnel Specialists and Union Representatives may all benefit from a general understanding of the statutory limitations on Title 38 employees' collective bargaining rights and of the procedures that are used to resolve disputes regarding those limitations. It is hoped that the information contained here will allow field personnel to recognize issues and to submit requests to the Office of General Counsel and/or the Office of Labor-Management Relations for assistance in this specialized area.


7422 Secretary's Decision Document

7422 Resolution Process - Timeframes and Documents

7422 Determination Request Guidance

7422 Checklist

7422 Tracking System

Decision DateFacility/UnionSubject Matter'sIssue/Outcome
(Pending 508)
VA North Texas Health Care System Facility took various actions to enhance access to care and reduce patient wait times, without bargaining. Actions included temporarily reducing providers’ administrative time and temporarily standardizing primary care appointment times. Facility actions were non-negotiable – initiatives were matters concerning professional conduct or competence.
(Pending 508)
St. Cloud VA Health Care System Facility denied Community Living Center RNs’ requests to work compressed work schedules. Insufficient information to make a 7422 determination. Facility filed a request for reconsideration on December 22, 2015
08/23/2015 Wilmington/AFGE Multiple workplace adjusts due to decision to reduce facility's surgical complexity level from intermediate to standard ULPs, grievance, bypass claim involving adjustments resulting from reduction of facility's surgical complexity level not subject to collective bargaining-excluded as matters concerning professional conduct or competence. 
08/05/2015 Ann Arbor/AFGE RN Staffing Imbalances in VAMC Patient Care Services (PCS) ULP Charge claiming the Medical Center implemented schedule changes for PCS nursies without completing bargaining is a matter or question concerning or arising out of professional conduct or competence within the meaning of 38 U.S.C. 7422(b). The decision excludes the matter from collective bargaining.
05/11/2015 Mather/AFGE Suspension of Anesthesiologist priveleges for failure to properly monitor surgery patient.  ULP Charge claiming the Medical Center by passed union when directly notifying anesthesiologist some privileges suspended, schedule changes or assignments. Matter concerning the professional conduct or competence and peer review of a Title 38 medical professional.
04/15/2015 Long Beach/AFGE Administration of High Alert Medication Involves a matter or question concerning or arising out of professional conduct or competence within the meaning of 38 U.S.C. 7422(b).
04/03/2015 Phoenix/AFGE RN Proficiencies RN's rating in an annual proficiency report is a matter or question concerning or arising out of professional conduct or competence within the meaning of 38 U.S.C. 7422(b).
04/03/2015 Columbia/AFGE Physician Pay ULP Charge claiming the Medical Center failed to provide information relating to physician pay involves a matter or question concerning or arising out of peer review or the establishment, determination or adjustment of employee compensation within the meaning of 38 U.S.C. 7422(b) 
04/02/2015 Roseburg/AFGE Part-time Physician Schedule Involves a matter or question concerning or arising out of professional conduct or competence within the meaning of 38 U.S.C. 7422(b).
10/20/2014 Minneapolis/AFGE RN improperly boarded by an NPSB Matter or question concerning or arising out of peer review or the establishment, determination, or adjustment of employee compensation within the meaning of 38 U.S.C. 7422(b) and is thus excluded from collective bargaining
10/09/2014 Asheville/AFGE ULP VAMC modified Outpatient Psychiatrists schedules without bargaining Involves a matter or question concerning or arising out of professional conduct or competence withini the meaning of 38 U.S.C. 7422(b)
06/09/2014 Washington DC/AFGE Performance Reviews of T 38 Radiologist Involves a matter or question concerning or arising out of peer review or PCC.
04/16/2014  Wilminton/AFGE APNs Compensated for OT Work Involves a matter or question concerning or arising out of the establishment, determination, or adjustment of employee compensation within the meaning of 38 U.S.C. 7422(b)
04/09/2014  Biloxi/AFGE Restoration of Sick Leave & Weekend/Holiday Pay for RN Involves a matter or question concerning or arising out of PCC with the meaning of 38 U.S.C. Section 7422
01/31/2014  VACO HRM/AFGE Application of New Pay Caps in the Caregivers Act to CRNA Pay Schedules Excluded from collective bargaining as compensation
01/29/2014  Huntington/AFGE Duties and Responsibilities of ICU RNs (Integrated Rounds) Involves a matter or question concerning or arising out of PPC with the meaning of 38 U.S.C. Section 7422
01/23/2014  Amarillo/NFFE Mandatory Overtime for RNs Non-negotiable PCC
01/18/2014  St. Cloud/AFGE Reduction in Administrative Time for Primary Care Providers following return from AL Excluded from collective bargaining PCC
12/6/2013  Iron Mountain/AFGE 12 hour CWS for RNS in ICU & Emergency Department Excluded from collective bargaining  PCC
09/19/2013  Martinsburg/NFFE Patient Appt Scheduling during time previously used as Administrative Time Excluded from collective bargaining PCC
9/17/2013  Fargo/NFFE ULPs Medical Providers Administrative time Exluded from collective bargaining as PCC
09/13/2013 Louisville/AFGE Reduction Number of RNs allowed leave Non-negotiable or grievable as PCC
09/10/2013  Central Alabama Veterans HCS/AFGE Nurse Speciality Pay Scedule Exempt from collective bargaining and any grievance procedures/Compensation
08/30/2013  Alexandria/AFGE ULP concerning Termination CWS for Primary Care clinicians Exluded from collective bargaining PCC
08/29/2013  VA Northern California HCS/AFGE Assignment of Rotating On-Call Psychiatrists Non-negotiable PCC
08/29/2013  Tuscon/AFGE Grievance challenging Suspension of RN Excluded from collective bargaining PCC
08/16/2013  Sheridan/AFGE Reprimand Excluded from collective bargaining PCC
08/16/2013  Sheridan/AFGE Admonishment Physician Excluded from collective bargaining PCC
08/14/2013  Hampton/AFGE Retroactive Promotion of Physician Assistant Non-grievable Compensation
06/30/2013  Tuscon/AFGE Admonishment RN   Excluded from Collective Bargaining PCC
05/29/2013 West Palm Beach/AFGE CWS for RNs assigned to QMS Matter or question concerning or arising out of professional conduct or competence within the meaning of 38 U.S.C. 7422(b)
05/29/2013  Indianapolis/AFGE Scheduling of CWS RNs Matter or question concerning or arising out of professional conduct or competence within the meaning of 38 U.S.C. 7422(b)
05/29/2013  Anchorage/AFGE Restriction ICS RN Leave Matter or question concerning or arising out of professional conduct or competence within the meaning of 38 U.S.C 7422(b)
05/29/2013 Martinsburg/NFFE Title 38 Performance Award Amounts Non-negotiable Compensation
03/21/2013 Central Texas Veterans HCS/AFGE Overtime Compensation Title 38 Non-negotiable PCC/Compensation
12/17/2012 Fargo/NFFE ULP Physician Detail to CBOC Non-negotiable PCC/Compensation
07/01/2011 Hampton/AFGE Professional Standards Board (PSB) Right to union representation for witnesses appearing before PSB/Peer Review non-grievable
03/31/2010 Minneapolis/AFGE ULP ULP RN Reprisal Decision Overturned by DC Circuit Court
11/30/2009 Mountain Home/AFGE  ULP Change of Tour CLC Physicians Not PCC/Physicians placed in rotating on-call roster coverage of CLC patients after normal duty hours and weekends
05/22/2009 VA Caribbean Healthcare System/AFGE Compressed Work Schedules The decision to implement a CWS is PCC and not negotiable.  The notice and termination of the CWS was not for patient care reasons and is therefore negotiable.
11/19/2008 Erie/SEIU   RN Non-Selection PCC
10/09/2008 VA Connecticut HCS/AFGE  RN Reassignment  Non-negotiable PCC
09/30/2008 Boston HCS/AFGE and NAGE Policy on mandatory tuberculosis (TB) testing for all employees Non-negotiable PCC
09/26/2008 Minneapolis, MN/AFGE  Staffing Ratios for Nurses Non-negotiable PCC
09/26/2008 Ann Arbor, MI/AFGE Proficiency rating and step increase The issue related to the proficiency rating and step increase is non-grievable PCC.  The employee's participation in a Recruitment and Retention Committee is grievable, not-PCC. 
09/02/2008 Minneapolis/AFGE  Alleged reprisal for testimony on behalf of union Investigation over allegations of nurse professional competence is PCC and non-grievable.
09/02/2008 Hampton, AFGE  Nurse Locality Pay-Separate Pay Scales Grievable, not PCC and/or compensation
08/01/2008 West Haven, CT/AFGE Within Grade Increase, OWCP and leave status The OWCP and leave status issue is grievable.  The requested remedy of back pay with interest is compensation.
07/09/2008 Cleveland, OH/AFGE Compressed Work Schedules (CWS) Elimination of CWS is PCC/Non-grievable
07/07/2008 Spokane/NFFE  ULP Change of Tour for Physicians Non-negotiable PCC
06/03/2008 VA MD Health Care System/NAGE Suspension of RN There is insufficient information to make PCC determination therefore the matter is within the scope of collective bargaining.
05/19/2008 Louisville, KY/AFGE Overtime Compensation for RNs Non-grievable Compensation
05/19/2008 Fort Wayne, Indiana/AFGE  Proficiency Rating Grievance over proficiency rating is not PCC and is grievable/Remedies are PCC
05/19/2008 West Haven/AFGE  Funding for training and travel Reimbursement for training tuition and travel/Grievable Not PCC
05/19/2008 VA MD Health Care System/NAGE Non-Selection Non-Selection of RN for EPRPC Position/Grievance over non-selection is grievable/Requested remedy is non-grievable-Compensation/Selection Process is non-negotiable PCC
02/22/2008 Buffalo Saturday Premium Pay Non-grievable PCC
02/22/2008 Milwaukee RN Reassignment Non-grievable PCC and Compensation
01/23/2008 VA Tennessee Valley Healthcare System/AFGE  RN five day suspension, detail and pay Non-grievable PCC and Compensation
12/20/2007 Hampton, VA Implementation of 30 day notice requirement prior to cancellation of scheduled clinics Non-grievable PCC
10/02/2007 Washington, DC/AFGE VA Handbook 5011/9, "Hours of Duty and Leave" Non-negotiable PCC
10/02/2007 Canandaigua/AFGE  Re-privileging Non-grievable PCC
06/01/2007 Little Rock/AFGE  Specialized Skills Pay Entitlement of higher rate of Pay for Specialized Skills/Non-grievable Compensation
03/02/2007 Washington DC/AFGE Implementation of VA Health Care Personnel  Enhancement Act of 2004, Public Law 108-445 Non-grievable Compensation
10/11/2006 Richmond/AFGE RN Reassignment Non-grievable PCC
09/06/2006 Chillicothe/AFGE  Reassignment Non-negotiable PCC
01/24/2006 Biloxi/AFGE  Reassignment Reassignment to non-patient care duties/Non-negotiable PCC
01/06/2006 DC/AFGE Proficiency/Privileging Performance Concerns/Non-Grievable PCC
01/06/2005 Gainesville/AFGE  Request for Information Failure to provide 3rd party data used to establish nurse pay/Outside scope of Collective Bargaining Compensation
12/15/2005 Canandaigua/AFGE Reassignment Use of Official Time/Non-Grievable PCC
12/13/2005 National/NFFE Medical Staff Elections Bylaws Participation in Medical Staff Elections/ Non-Negotiable PCC
11/21/2005 Puget Sound HSC/AFGE Credentialing & Privileging Requirement to complete continuing education during privileging period/Non-Grievable
10/11/2005 Palo Alto HCS/AFGE Compressed Work Schedule Decision to discontinue CWS/Non-Grievable PCC
08/22/2005 Ashville/AFGE  Retention Allowance Improper Termination of Retention Allowance/Non-Grievable Compensation
08/22/2005 Anchorage/AFGE  Compressed Work Schedule Failure to Negotiate/Non-Negotiable PCC
05/27/2005 Charleston/NAGE  Change in MD's Work Assignments & Schedules Failure to Negotiate/Non-Negotiable PCC
03/15/2005 Columbia/AFGE  Physician Specialty Pay Disparate Treatment in Reducing Specialty Pay/Outside the Scope of Collective Bargaining & Compensation
03/15/2005 West Palm Beach/AFGE Termination of Compressed Wk Schedules for MD's Failure to Negotiate/Non-Negotiable PCC
02/08/2005 North Hampton/AFGE  Change in PA's Work Assignments Restructuring of Workload/Non-Grievable PCC
01/18/2005 Huntington/AFGE  Change of Nurse Schedules Failure to Bargain/Non-Grievable Non-Negotiable PCC
01/05/2005 VA Gulf Coast HCS/AFGE Reassignment of RN's Failure to Bargain/Non-Negotiable PCC
12/17/2004 VA Northern Indiana HCS Patient Scheduling Non-Grievable PCC
12/15/2004 Reno NV/AFGE Professional Standards Board (Reno) Failure to negotiate/Non-Grievable PCC/Peer Review
12/17/2004 Anchorage Professional Standards Board Non-Grievable Peer Review
12/03/2004 Richmond/AFGE Employee Suspension & Related Request for Information Failure to provide information/Grievable NOT PCC
09/16/2004 Salisbury/AFGE Reassignment/Seniority Alleged violation of local MOU/Non-Grievable PCC    
07/15/2004 Portland/AFGE Shift Differential  Alleged violation of Master Agreement/Non-Grievable  Compensation PCC
07/19/2004 Richmond/AFGE Physical Standards Board Alleged discrimination, timeliness.../Grievable NOT PCC 
05/11/2004 Black Hills HCS/AFGE Reassignment Alleged violation of Master Agreement/Non-Grievable PCC
03/02/2004 VA Northern Indiana HCS/AFGE Reassignment Alleged violation of Master Agreement/Non-Grievable PCC
02/24/2004 Indianapolis/AFGE Compressed Work Schedule Alleged violation of Master Agreement/ Non-Grievable PCC
01/16/2004 Dayton/AFGE Weekend Rotation Failure to Negotiate over tours of duty.../Non-Negotiable PCC
12/16/2003 San Juan/AFGE Nurse Work Schedules Failure to negotiate over change in RN's work schedule/Non-Negotiable PCC
12/11/2003 Miami/NFFE Nurse Locality Pay Request for information to show favored treatment/Non- Negotiable Compensation
10/28/2003 Memphis/AFGE Reassignment Failure to provide requested inf.Non-Negotiable PCC
10/16/2003 VA Gulf Coast HCS Compressed Work Schedule Non-Negotiable PCC
10/16/2003 Alexandria/AFGE Compressed Work Schedule (Alexandria) Non-Negotiable PCC
10/10/2003 Ashville/AFGE Fee Basis Union argues use of fee based RN violates policy/Non-Negotiable PCC
09/30/2003 Bronx/AFGE Fitness for Duty Order to report and cooperate in fitness for duty exam.../Non-Grievable PCC
08/15/2003 Ashville/AFGE Fee Basis Use of fee basis Nurses and impact on overtime comp/Non-Grievable PCC/Compensation
07/03/2003 San Juan/AFGE Fitness for Duty Fitness for duty and physical standards.../Non-Grievable PCC/Peer Review
02/12/2003 Poplar Bluff/AFGE Reassignment  Failure to bargain over reassignment.../Non-Negotiable PCC
02/04/2003 VA Maryland HCS/Professional Staff Nurses Assoc. of MD Reassignment Failure to bargain over reassignment.../Non-Negotiable PCC
12/16/2002 Miami/NFFE Scarce Medical Specialty Pay Non-Negotiable Compensation
11/06/2002 National/NAGE Staffing Adjustments Negotiability of proposal for RIF procedures to apply equally to T5 & T38 Employees/ Non-negotiable PCC
10/25/2002 VA Connecticut HCS/AFGE Reassignment Refusal to bargain over temporary detail of a Nurse/ Non-Negotiable PCC     
10/09/2002 Sheridan/AFGE Patient Discharge Instructions Failure to bargain over implementation of policy/ Non-Negotiable PCC
07/01/2002 Erie/SEIU Non-Selection Non-Selection of RN for promotional opportunity/ Non-Grievable PCC
05/06/2002 Reno/AFGE Reassignment Reassignment of MD with loss of eligibility for specialty pay/ Non-Grievable
01/22/2001 Biloxi/NFFE Reassignment MD Union official Special Pay Reduction/Non-Negotiable PCC and Compensation
03/05/2001 Asheville/AFGE Night Differential/Weekend Premium Pay Non-Negotiable Compensation
05/07/2001 Hampton/AFGE Union Observers on Nurse Professional Standards Boards (NPSB) Non Grievable-Peer Review
07/29/2001 Cincinnati/UAN Overtime Cancellation of Scheduled Overtime/Non-Grievable PCC
11/18/2001 Little Rock/AFGE Overtime Pay RN Overtime/Weekend Pay-Non-Grievable Compensation
12/04/2001 Wilmington/Prof. Staff Nurses Assoc. of MD Clinical Matters Negotiability:Panel size, staff/patient ratios, nurse advisory Committees, Non-Clinical duties, scheduling, staff assignments/Non-Negotiable PCC
08/31/1994 Long Beach/AFGE Timely Proficiency Failure to provide timely proficiency is negotiable-merely procedural-NOT PCC
08/24/1994 Brockton/NAGE Weekend Pay/Tour of Duty Not Grievable PCC/Compensation
08/16/1994 Albany NY/NYSNA Non-selection and reassignment Non-Grievable PCC
07/07/1994 White River Junction/AFGE Reorganization-Nurse Staffing Failure to bargain over decision to reduce nurse staffing in OR and transfer position to different unit-PCC non-negotiable
07/11/1994 Sheridan/AFGE Proficiency Rating Non-grievable PCC
05/16/1994 Fayetteville/AFGE Proficiency Rating Grievance over fairness of proficiency rating-Non-grievable PCC Peer Review
02/16/1994 Washington DC/DCNA Special Advancement Non-Grievable PCC, peer review and compensation
11/26/1993 Des Moines/Iowa Nurses Association Shift Rotation Non-Grievable PCC
09/03/1993 Sepulveda, CA/AFGE Non Selection of RN-reassignment Non-Grievable PCC
08/02/1993 Fayetteville/AFGE Proficiency Rating Non-grievable PCC
07/21/1993 Hampton/AFGE Conduct Non-grievable PCC
04/13/1993 Portland/AFGE Patient Abuse Counseling letter for verbal abuse-Non-grievable PCC
01/27/1993 Portland/AFGE Counseling letter RN's performance evaluation and counseling-Non grievable PCC
01/12/1993 Long Beach/AFGE Improvement Plan and transfer from night shift Non-grievable-PCC, peer review and compensation
01/04/1993 Hampton/AFGE QA investigation Failure to provide union rep during investigation of patient care incident-Non-negotiable PCC
11/24/1992 Leavenworth/NFFE Probationary Review Board Union rep participation in Summary Review Board-Non-negotiable PCC Peer Review
09/09/1992 San Antonio, TX/AFGE Keeping of nurse records and promotions Not grievable PCC, peer review and compensation
09/09/1992 Manchester/NAGE Proficiency Rating Discharge of part time nurse as a result of unsat proficiency rating-Non-grievable PCC
08/27/1992 Jackson/NFFE NPSB Union rep participation on NSPB-Non negotiable PCC, peer review
08/27/1992 Amarillo/NFFE Official Time Official time for union rep to represent RN at Summary Review Board-Non-grievable PCC
07/24/1992 Hampton/AFGE Sheduling Tours Determination to establish tours and assign employees Non-grievable PCC
07/20/1992 Hampton/AFGE Reassignment Reassignment of RN and performance appraisal-Non-grievable PCC
07/10/1992 Fayetteville/AFGE Nurse Reassignment Non-grievable PCC
07/07/1992 Omaha/AFGE Sleeping while on duty Non-grievable PCC
06/15/1992 National/AFGE Transfer Policy Non-negotiable PCC
05/13/1992 Leavenworth RN Tours Length of Tours and how coverage is provided-Non negotiable PCC
04/28/1992 Milwaukee/Wisconsin Federation of Nurses Pay issues Non-negotiable compensation


This overview is not intended to provide all the information necessary for field personnel to handle negotiations, grievances, or litigation in which issues of professional conduct or competence, peer review, or compensation of Title 38 medical professionals may arise. Further guidance should be requested from Regional Counsel, from the Office of General Counsel's (OGC) Professional Staff Group III (023), and/or from VACO's Office of Labor-Management Relations (LMR).