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

• Decision Date: 02 November 2011
• Docket Number: Civil Action No. 08–1722(RBW).
• Citation: 191 L.R.R.M. (BNA) 3326,821 F.Supp.2d 337
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Afl–Cio, Local 3669, Plaintiff, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, and Robert A. Petzel, Under Secretary for Health, Department of Veterans Affairs, Defendants.
• Court: U.S. District Court — District of Columbia

191 L.R.R.M. (BNA) 3326

821 F.Supp.2d 337

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Afl–Cio, Local 3669, Plaintiff,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs, and Robert A. Petzel, Under Secretary for Health, Department of Veterans Affairs, Defendants.

Civil Action No. 08–1722(RBW).

United States District Court, District of Columbia.

Nov. 2, 2011.

Martin Rosenberg Cohen, Elkins Park, PA, for Plaintiff.

Marian L. Borum, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

The plaintiff in this civil lawsuit, the American Federation of Government Employees, AFL–CIO, Local 3669 (the “Union”), seeks reversal of a decision issued by the Under Secretary for Health of the Department of Veterans Affairs (the “Under Secretary”) on behalf of the Secretary of Veterans Affairs (the “Secretary”) pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 (2006). First Amended Complaint for Injunctive and Declaratory Relief (“Am. Compl.”) ¶¶ 48–63. Currently before the Court is the Secretary's motion to dismiss or, in the alternative, his motion for summary judgment (“Def.'s Mot.”), and the Union's cross-motion for summary judgment. Upon careful consideration of the first amended complaint, the parties' cross-motions, all memoranda of law and exhibits relating to those motions, and the administrative record,¹ the Court concludes that it must deny the Secretary's motions and grant in part and deny in part the Union's cross-motion for summary judgment.

I. BACKGROUND

A. Statutory Framework

This case concerns the interplay between two statutory schemes: the Federal Sector Labor Management Relations Statute (“FSLMRS”), 5 U.S.C. §§ 7101–7135 (2006), which governs federal employees' labor relations generally, and chapter 74 of title 38 of the United States Code, which governs the terms and conditions of employment of Veterans Health Administration (“VHA”) personnel,² 38 U.S.C. §§ 7401– 7474 (2006) (“VHA personnel statute”). The FSLMRS authorizes the Federal Labor Relations Authority (“FLRA”) to adjudicate “unfair labor practice” complaints stemming from alleged violations of labor rights provided by the FSLMRS, 5 U.S.C. § 7118, including the right of collective bargaining, see id. § 7116(a). Those labor rights do not necessarily apply with full force to VHA medical professionals, however, as the VHA personnel statute makes clear that “[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 employees appointed under any provision of this chapter in positions in the Veterans Health Administration listed in subsection (b).” ³ 38 U.S.C. § 7421(a).

In 1998 in Colorado Nurses Ass'n v. FLRA, 851 F.2d 1486 (D.C.Cir.1988), the District of Columbia Circuit construed § 7421(a) of the VHA personnel statute as granting the Secretary “unfettered discretion” to establish regulations regarding the working conditions of VHA medical professionals, and consequently held that such employees had no collective bargaining rights under the FSLMRS. Id. at 1492. Congress thereafter passed legislation in 1991 declaring that VHA medical professionals would, in fact, have largely the same rights of collective bargaining as other federal employees. See Department of Veterans Affairs Health–Care Personnel Act, Pub.L. No. 102–40, title II, § 202, 105 Stat. 187, 200 (1991), codified at 38 U.S.C. § 7422(a). As the statute now provides:

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) [i.e., the FSLMRS].

38 U.S.C. § 7422(a). The VHA personnel statute does, however, impose the following three limitations on the FSLMRS collective bargaining rights accorded to VHA medical professionals:

Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) in the case of employees described in section 7421(b) of this title 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). Pursuant to 38 U.S.C. § 7422(d), the Secretary has exclusive authority to determine whether a matter falls under one of § 7422(b)'s collective bargaining exceptions:

An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency.

Id. § 7422(d). The Secretary has delegated his § 7422(d) authority to the Under Secretary. Am. Fed'n of Gov't Employees, Local 446 v. Nicholson, 475 F.3d 341, 345 (D.C.Cir.2007).

B. Factual and Procedural Background

The following facts are not in dispute and are taken from either the Union's first amended complaint or the administrative record (“A.R.”) filed in this case. The Union is designated as the exclusive labor organization representative for registered nurses at the Department of Veterans Affairs' Medical Center in Minneapolis, Minnesota (the “Medical Center”). Am. Compl. ¶ 4. In December 2007,⁴ a labor arbitration hearing was held concerning the potential termination of Belinda Savage, a respiratory therapist employed by the Medical Center. Id. ¶ 9; A.R., Attachment (“Attach.”) L (September 2, 2008 decision paper) at 2. Three registered nurses testified at the arbitration hearing: Anita Krehnke, Barb Galle, and Karen Rafter. Am. Compl. ¶¶ 10–11. Krehnke testified that Savage had failed to follow proper procedures in providing medical care to patients. Id. ¶ 10. Galle and Rafter, both members of the Union, provided testimony regarding Krehnke's performance as a nurse at the Medical Center. Id. ¶¶ 12, 14. According to Jason Rudie, the attorney who represented the Medical Center at the hearing, Galle testified that Krehnke “was lazy and not a good nurse, or words to that effect,” and Rafter said that “in her opinion” Krehnke “practices below the standard of care.” A.R., Attach. B (Declaration of Jason Rudie) ¶¶ 1–3; Am. Compl. ¶ 16.

Rudie reported his observations concerning the nurses' testimony to the Medical Center's “Nurse Executive,” Christine Lund, who thereafter issued two identical memoranda to Galle and Rafter. Am. Compl. ¶¶ 16–17. Both memoranda contained the subject line “[r]eporting obligations” and stated that “[d]uring an arbitration session last week, I understand that you made several statements that called into question the clinical practice of a fellow nurse.” A.R., Attach. C (December 18, 2007 Memorandum to Rafter); id., Attach. D (December 18, 2007 Memorandum to Galle). The memoranda went on to recite the “requirement[s] for reporting licensed nurses,” which Nurse Executive Lund summarized as follows: “If you have knowledge that a RN is incompetent, unprofessional, unethical or unable to practice safely, you have an obligation to report that information to [the Nurse Executive] or a manager so that the procedures outlined in VHA Handbook 1100.18 Reporting and Responding to State Licensing Boards may be initiated.” Id. Nurse Executive Lund concluded by stating that “I will be scheduling some time with you to discuss your specific allegations. Please be advised that failure to report practice as noted above is grounds for disciplinary action.” Id.

On January 11, 2008, the Union filed two unfair labor practice charges with the FLRA against the Medical Center based on the statements made by Nurse Executive Lund in her memoranda. Am. Compl. ¶ 22. Emphasizing that Nurse Executive Lund “demanded to meet” with Rafter and Galle and “stated that [they] could be subject to disciplinary action,” the Union's unfair labor practice charges asserted that “management's actions” constituted unlawful “reprisal” for Rafter's and Galle's “testimony on behalf of the Union [at the arbitration hearing] and [was] an attempt to intimidate all employees.” A.R., Attach. E (FLRA Charge Against Agency for Rafter); id., Attach. F (FLRA Charge Against Agency for Galle).

While the Union's charges were pending before the FLRA, the Medical Center requested that the Under Secretary issue a ruling under 38 U.S.C. § 7422(d) that the Union's unfair labor practice charges fell into the collective bargaining exclusion for matters concerning “professional conduct or competence.” Am. Compl. ¶ 28; see 38 U.S.C. § 7422(b)(1) (excluding from “collective bargaining” and “any grievance procedures provided under a collective bargaining agreement ... any matter or question concerning or arising out of ... professional conduct or competence”). The Union submitted an opposition to the Medical Center's request, contending, among other things, that because the charges raised neither “an issue of ‘collective bargaining’ ” nor “a matter of ‘grievance procedure’ coverage” within the meaning of § 7422(b), the Under Secretary had no statutory authority under § 7422(d) “to apply any of the [§ ]7422(b) exclusions.” A.R., Attach. J (Memorandum in Opposition to Request of VAMC Minneapolis (“Pl.'s Admin. Opp'n”)) at 2. Rather than relating to collective bargaining, the Union argued that its charges concerned whether the Medical Center “interfered with the statutory right of unit employees to support their union in a labor arbitration by issuing threatening memos to those employee.” Id.; see 5 U.S.C. § 7102 (providing...