Am. Fed'n of Gov't Emps. v. Shinseki

• Decision Date: 08 March 2013
• Docket Number: No. 11–5359.,11–5359.
• Citation: 709 F.3d 29
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL–CIO, LOCAL 3669, Appellee v. Eric K. SHINSEKI, Secretary for the U.S. Department of Veterans Affairs and Robert A. Petzel, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

709 F.3d 29

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL–CIO, LOCAL 3669, Appellee

v.Eric K. SHINSEKI, Secretary for the U.S. Department of Veterans Affairs and Robert A. Petzel, Appellants.

No. 11–5359.

United States Court of Appeals,

District of Columbia Circuit.

Argued Nov. 9, 2012.

Decided March 8, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:08–cv–01722).

Andrea McBarnette, Assistant U.S. Attorney, argued the cause for appellants. With her on the briefs were Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Martin R. Cohen argued the cause and filed the brief for appellee. David A. Borer entered an appearance.

Before: HENDERSON and GRIFFITH, Circuit Judges, and SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge SENTELLE.

SENTELLE, Senior Circuit Judge.

The American Federation of Government Employees, AFL–CIO, Local 3669 (“the Union”), asserted unfair labor practice charges against the Department of Veterans Affairs (“VA”) on behalf of two nurses at a VA medical center. The VA determined that the charges were covered by the nurses' statutory right of “collective bargaining” but that they “ar[ose] out of ... professional conduct or competence” within the meaning of 38 U.S.C. § 7422(a)-(b). Therefore, the VA decided that the charges were excluded from review by the Federal Labor Relations Authority (“FLRA”). The Union brought suit, alleging that the VA misread its statutory authority. The district court granted summary judgment in the Union's favor, and the VA appeals. Because we agree with the district court that the VA's decision erroneously interpreted its statutory authority, we affirm.

I. BACKGROUND

A. Statutory Framework

The Federal Service Labor–Management Relations Statute (“FSLMRS”) governs federal labor relations and is codified in title 5, chapter 71 of the U.S.Code. See5 U.S.C. §§ 7101–35. FSLMRS gives federal employees various labor rights, including the right “to form, join, or assist any labor organization ... freely and without fear of penalty or reprisal,” the right “to act for a labor organization in the capacity of a representative,” and the right “to engage in collective bargaining.” Id. § 7102. To protect these rights, FSLMRS authorizes the FLRA to adjudicate unfair labor practice complaints based on rights protected by FSLMRS. See id. §§ 7104, 7118.

A separate statutory scheme governs the labor rights of VA medical professionals, including “[r]egistered nurses.” 38 U.S.C. § 7421(b)(5); see id. §§ 7401–74. Under this scheme, “[n]otwithstanding any law, Executive order, or regulation, the Secretary shall prescribe by regulation the hours and conditions of employment and leaves of absence of” VA medical professionals. Id. § 7421(a). In Colorado Nurses Ass'n v. FLRA, we held that this statute gave the VA Secretary “unfettered discretion to issue regulations concerning the working conditions of” VA medical professionals and released the VA from any mandatory collective bargaining obligation. 851 F.2d 1486, 1492 (D.C.Cir.1988). Following Colorado Nurses, Congress passed the Department of Veterans Affairs Labor Relations Improvement Act of 1991, Pub. L. No. 102–40, title II, § 202, 105 Stat. 187, 200 (“VA Act”), which provides in relevant part:

Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5 (relating to labor-management relations).

38 U.S.C. § 7422(a). Thus, Congress extended a right of collective bargaining to VA medical professionals, but it imposed three limitations on this bargaining right:

Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) in the case of [VA medical professionals] may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title.

Id. § 7422(b). The VA Act gives the Secretary of Veterans Affairs exclusive authority to decide whether one of these limitations applies, see id. § 7422(d), though the Secretary can delegate this authority to the Under Secretary for Health, as he did here. This appeal turns on the meaning of the phrase “collective bargaining” in the VA Act.

B. Factual and Procedural Background

This case arose following a December 12, 2007, arbitration hearing in which the Union challenged the termination of a VA respiratory therapist. During the hearing, a VA nurse named Anita Krehnke testified in support of VA management. Two VA nurses and Union members, Barbara Galle and Karen Rafter, then allegedly testified that Krehnke's performance as a nurse was substandard. A VA Medical Center (“VAMC”) staff attorney reported to the VAMC's Nurse Executive, Christine Lund, that Galle and Rafter so testified. After receiving this report, Lund began an investigation into whether Galle and Rafter violated VAMC policy by failing to notify VAMC management that another nurse was providing substandard care. On December 18, 2007, Lund sent letters to Galle and Rafter advising them of their VAMC and state law reporting obligations and asking to discuss their allegations against Krehnke. The letters informed Galle and Rafter “that failure to report [substandard practice] is grounds for disciplinary action.” Lund later met with both Galle and Rafter and sent them a follow-up letter stating that she had “no substantive findings” regarding their allegations about Krehnke's conduct.

On January 10 and 11, 2008, the Union filed two unfair labor practice charges (“ULPs”) with the FLRA against the VAMC, alleging that Lund's requests to meet and her references to disciplinary action constituted reprisal for Galle and Rafter's testimony on behalf of the Union during the arbitration hearing. VAMC responded to the ULPs, arguing that it had a duty to investigate allegations of substandard patient care. VAMC also requested that the VA Under Secretary for Health issue a 38 U.S.C. § 7422(d) determination that the ULPs arose out of “professional conduct or competence” and were thus excluded from collective bargaining under § 7422(b). In response, the Union offered three arguments: First, the Union claimed that the VA Under Secretary lacked legal authority to make a § 7422(d) ruling here because the ULPs did not involve a “collective bargaining” or “grievance procedure” issue within the meaning of § 7422(b). Instead, the Union argued, the ULPs were based on the employees' “right to form, join, or assist any labor organization.” 5 U.S.C. § 7102. Second, the Union argued that the arbitration matter did not involve “professional conduct or competence” under § 7422(b). Third, the Union attacked the factual basis for VAMC's request by providing a declaration from one of the Union's attorneys stating that Galle and Rafter's testimony was focused on Krehnke's demeanor and work ethic, not on her competence.

The VA Under Secretary issued a decision on September 2, 2008, holding that the ULPs arose out of professional conduct or competence. After the Union brought suit seeking reversal of the Under Secretary's decision, the district court vacated that decision, concluding that “the Under Secretary failed to address [the] threshold legal issue” of whether he had “authority to apply any § 7422(b) exclusion in the first place.” American Federation of Government Employees Local 3669 v. Shinseki, 648 F.Supp.2d 87, 93 (D.D.C.2009) (internal quotation mark and brackets omitted). The court remanded to the VA “for a determination as to whether the charges filed by the [Union] with the [FLRA] qualify as ‘collective bargaining’ or ‘grievance procedures provided under a collective bargaining agreement’ within the meaning of § 7422(b).” Id. at 94–95.

On remand, the Under Secretary determined that the ULPs both qualified as collective bargaining and arose out of professional conduct or competence, except to the extent that VAMC management's letters to and meetings with Galle and Rafter addressed issues other than their and Krehnke's professional conduct. FLRA lacks authority to review the VA's determination or to exercise jurisdiction over ULPs that the Under Secretary excludes from collective bargaining pursuant to § 7422(d). See, e.g., United States Department of Veterans Affairs, Veterans Affairs Medical Center, Asheville, N.C., 57 F.L.R.A. 681, 683 (Jan. 31, 2002). Therefore, the Union filed a complaint in the district court under the Administrative Procedure Act (“APA”) alleging, among other things, that the Under Secretary's determination was outside the scope of his statutory authority. See5 U.S.C. § 706(2)(C). The VA moved for dismissal, and the Union and the VA filed cross motions for summary judgment.

The district court granted summary judgment in favor of the Union on the § 706(2)(C) count of its complaint, concluding that “the Under Secretary erred in determining that the Union's unfair labor practice charges relate to matters of ‘collective bargaining’ as that term is used in the FSLMRS and 38 U.S.C. § 7422.” American Federation of Government Employees Local 3669 v. Shinseki, 821 F.Supp.2d 337, 350 (D.D.C.2011) ( “Local 3669” ). The VA Act only permits the Under Secretary to exclude certain matters from “collective bargaining (and any grievance procedures provided under a collective bargaining agreement).” 38 U.S.C. § 7422(b). The court explained that “alleged violations of the right to form, join, or assist a union without reprisal do not necessarily implicate the right to engage in collective bargaining,” and in this case, the ULPs were not based on a...