B-249168 July 30, 1992

B-249168 July 30, 1992

DIGEST

Robbie G. Exley Labor Relations Specialist National Federation of Federal Employees 1016 16th Street, N.W. Washington, D.C. 20548

Dear Ms. Exley:

We refer to your letter of June 8, 1992, concerning the issue of implementation of special salary rates and reconstruction of nurses' rates of pay for those nurses employed at the Northport Veterans Administration Medical Center who are members of the National Federation of Federal Employees (NFFE), Local 387.

Your request for a decision was sent to this Office in accordance with our regulations in 4 C.F.R. Part 22 (1992), concerning procedures for decisions on appropriated fund expenditures which are of mutual concern to agencies and labor organizations. However, 4 C.F.R. Part 22 has been repealed by final rule published at 57 Fed. Reg. 31272 (July 14, 1992). Therefore, we are unable to comply with your request for a decision under this part of our regulations.

As pointed out in your submission, however, the nurse positions were established under Title 38, United States Code, and under 38 U.S.C. Sec. 7422(d), issues concerning compensation are not subject to collective bargaining. Thus, our decision Cecil E. Riggs, et al., B-222926.3, Apr. 23, 1992, 71 Comp.Gen. , concerning the jurisdiction of the General Accounting Office when we are in receipt of a claim that is subject to a negotiated grievance procedure, is not applicable here. As you are aware, we held in Riggs, that we will no longer accept a request for a decision from members of a collective bargaining unit on a matter that is not specifically excluded from a negotiated grievance procedure in the collective bargaining agreement.

Although we have repealed 4 C.F.R. Part 22, we will still accept claims under 4 C.F.R. Part 31 with respect to federal employees who are not covered by a collective bargaining agreement. However, claims filed under Part 31 must comply with our regulations. We note in this particular case that the employees have not filed a formal claim with the agency but merely discussed the matter informally over 4 years ago. Therefore, assuming the parties have a claim cognizable by this Office under 4 C.F.R. Part 31, they must make a formal demand on the agency stating the legal and factual basis for their claim with the request that, if the claim is denied, it be sent to the General Accounting Office for settlement. We also point out that the burden of proof is on the claimant to prove the liability of the United States and its right to payment. 4 C.F.R. Sec. 31.7 (1992).

However, we believe that there is another matter that needs to be considered. We note that the statutory language in 38 U.S.C. Sec. 7422(d), that precludes the establishment, determination, or adjustment of employee compensation from the collective bargaining process, also states that such matters shall be decided by the Secretary and "may not be reviewed by any other agency." This statutory language appears to vest the Secretary of Veterans Affairs with the sole authority to set pay compensation, and appears to preclude other agencies, including the General Accounting Office, from reviewing such matters.

Accordingly, it will be necessary that any claim involving the issue of nurses' pay include legal arguments, reference to legislative history, etc., that would establish the General Accounting Office is not statutorily precluded from reviewing compensation matters decided by the Secretary of Veterans Affairs.

We are returning the enclosures to your submission, and we are closing our file on this matter.

Sincerely yours,

Robert L. Higgins Associate General Counsel

Enclosures

cc: William H. Manley Director Veterans Administration Medical Center Northport, New York 11768

Georgiana Kachura President, Local 387 NFFE 207 Little Plains Road