American Federation of Government Employees, AFL-CIO, Local 3884 v. Federal Labor Relations Authority, AFL-CI

• Decision Date: 16 April 1991
• Docket Number: Nos. 90-1379,P,90-1380,LOCAL,AFL-CI,s. 90-1379
• Parties: 137 L.R.R.M. (BNA) 2081 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,3884, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, The Department of Veterans Affairs, Intervenor. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,etitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, The Department of Veterans Affairs, Intervenor.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1315

930 F.2d 1315

137 L.R.R.M. (BNA) 2081

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL

3884, Petitioner,

v.

FEDERAL LABOR RELATIONS AUTHORITY, Respondent, The Department of Veterans Affairs, Intervenor.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, The Department of Veterans Affairs, Intervenor.

Nos. 90-1379, 90-1380.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 14, 1990.

Decided April 16, 1991.

Kevin M. Grile, Chicago, Ill., for petitioner.

Denise Morelli, Washington, D.C., for respondent.

E. Roy Hawkens, Washington, D.C., for intervenor.

Before LAY, Chief Judge, FAGG, Circuit Judge, and LARSON, ^* Senior District Judge.

LARSON, Senior District Judge.

Petitioner American Federation of Government Employees, Local 3884, represents registered nurses employed at the Veterans Administration Medical Center in Fargo, North Dakota. The union appeals from two adverse Federal Labor Relations Authority decisions, which have been consolidated before this Court for decision. In one case, officials at the Fargo VA Medical Center refused to bargain with the union over proposed changes in the frequency and methods of documentation required by nurses. In the other case, Fargo VA officials refused to provide the union with information the union had requested in order to determine whether the VA had acted contrary to an existing collective bargaining agreement, which required the VA to hire the best qualified nurses for certain specialty positions.

In both cases, the FLRA concluded it lacked jurisdiction to consider the union's contentions. The Authority reasoned that because the nurses were classified as medical professionals under Title 38, the VA was under no duty to bargain with them under the Civil Service Reform Act of 1978. The Authority further concluded that while the VA and the nurses' union could voluntarily enter into an agreement regarding the nurses' working conditions, any such agreement was not enforceable by the Authority. The FLRA's position stems from the agency's interpretation of a recent District of Columbia Circuit Court decision, Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C.Cir.1988), which interpreted 38 U.S.C. Sec. 4108 as granting the VA exclusive authority over the working conditions of medical professionals in VA hospitals.

The union argues on appeal that the FLRA has misconstrued the Colorado Nurses decision, which did not involve enforcement of an existing collective bargaining agreement. The union further contends that the Colorado Nurses decision conflicts with this Court's decision in Veterans Administration Medical Center, Minneapolis v. FLRA, 705 F.2d 953 (8th Cir.1983). The union maintains VA officials have a duty to abide by the collective bargaining agreement currently in effect and must bargain with professional nurses over proposed changes in their working conditions under the Civil Service Reform Act unless those proposals are inconsistent with specific provisions of Title 38 or specific regulations adopted by the Secretary of Veterans Affairs. The union urges this Court to reverse both FLRA decisions.

We agree with the Colorado Nurses court that the VA has no mandatory duty under the Civil Service Reform Act to bargain with nurses over working conditions, because Title 38 grants the Secretary the authority to prescribe the working conditions of medical professionals employed by the VA. Accordingly, we affirm the FLRA's dismissal of the union's negotiability appeals. We reverse the FLRA's dismissal of the union's unfair labor practice petition, however, because we find the collective bargaining agreement the VA voluntarily entered into with the union is enforceable under the Civil Service Reform Act.

I.

Consideration of the issues presented in these cases requires an understanding of two statutory schemes: chapter 73 of Title 38, 38 U.S.C. Secs. 4101-4119, which governs the activities of the Veterans Health Services and Research Administration, formerly the Department of Medicine and Surgery within the Veterans Administration, ¹ and chapter 71 of Title 5, 5 U.S.C. Secs. 7101-7135, which governs collective bargaining rights for federal employees generally.

A. Title 38 and the Department of Medicine and Surgery

The Department of Medicine and Surgery (DM & S) was created in 1946 to provide "a complete medical and hospital service ... for the medical care and treatment of veterans." Veterans' Administration--Department of Medicine and Surgery, Pub.L. No. 293, Sec. 1 (1946) (codified at 38 U.S.C. Sec. 4101(a)). The Department, now the Veterans Health Services and Research Administration, operates the largest single medical care delivery system in the United States. See H.R.Rep. No. 96-958, 96th Cong. 2d Sess. 2 (1980). When the DM & S was first created, there was no union activity on the part of any federal employees, who were hired, fired, and promoted under the civil service system established by Title 5. See generally 5 U.S.C. Secs. 3301, 3361, 4304, 5101, 6101. Concerned that the VA had been unable to attract qualified medical professionals under the civil service system's regulations and rates of pay, Congress enacted provisions specifically relating to the hiring, promotion, pay, hours and conditions of employment, retirement, and discipline of health care professionals employed by the DM & S. Pub.L. No. 293, Secs. 2-15; S.Rep. No. 858 (1945), reprinted in 1945 U.S.Code Cong. & Admin.News 956, 957-59. See 38 U.S.C. Secs. 4105-4110. The nurses represented by petitioner are among the health care professionals covered by Title 38 provisions. See id.

From the time of enactment in 1946, section 4108(a) of the DM & S statute had provided that

Notwithstanding any law, Executive order, or regulation, the Administrator [now the Secretary of Veterans Affairs] shall prescribe by regulation the hours and conditions of employment and leaves of absence of doctors, dentists, and nurses.

Pub.L. No. 293, Sec. 7(b) (1946), reprinted in 1945 U.S.Code Cong. & Admin.News 652, 654. ²

B. Collective Bargaining by Title 38 Professionals

The record in this case does not reveal when negotiations first began between VA officials and unions representing Title 38 employees. Collective bargaining rights for federal workers generally were first recognized in 1969 under Executive Order No. 11,491. Exec.Order No. 11,491, 3 C.F.R. 861 (1966-70), reprinted in 1969 U.S.Code Cong. & Admin.News 2948. See 5 U.S.C.A. Sec. 7101, Historical Note. The Order required federal agencies to bargain with a properly certified union over "personnel policies and practices and matters affecting working conditions, so far as may be appropriate under applicable laws and regulations." Exec.Order No. 11,491 Sec. 11(a), reprinted in 1969 U.S.Code Cong. & Admin.News at 2953-54.

In 1974, officials of the Fargo VA Medical Center entered into a collective bargaining agreement with the North Dakota State Nurses' Association, then the exclusive representative of the nurses now represented by petitioner herein. This agreement was amended on December 30, 1976, to provide in article XII as follows:

Vacancies in the positions of head nurse, supervisor, specialty positions and newly created positions will be filled from among the best qualified and available nurses. The Center agrees that such selection will not be based solely on educational achievement, and will take every means to insure that the principles of equal opportunity are strictly adhered to.

Fargo VA officials thus had already engaged in collective bargaining with professional nurses when Congress enacted the Civil Service Reform Act of 1978. Codified as the Labor-Management Relations chapter of Title 5, the purpose of the Act was "to lay the foundation for open and mutually beneficial labor-management relations throughout the federal sector." Veterans Administration Medical Center, Minneapolis, Minnesota v. FLRA, 705 F.2d 953, 957 (8th Cir.1983). The Act guarantees that "[e]ach employee shall have the right ... to engage in collective bargaining with respect to conditions of employment," 5 U.S.C. Sec. 7102, ³ but preserves the authority of federal agency management officials (1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency, and (2) to hire, assign, direct, layoff, or discipline employees. Id. Sec. 7106(a). The Act requires an agency ⁴ to recognize, bargain in good faith, and consult with a properly certified union in an effort to reach agreement with respect to conditions of employment. Id. Secs. 7114, 7117. The general duty to bargain is limited to matters "not inconsistent with any Federal law" or not "specifically provided for by Federal statute." Id. Secs. 7117; 7103(a)(14)(C). ⁵ See generally Fort Stewart Schools v. FLRA, --- U.S. ----, 110 S.Ct. 2043, 2046-49, 109 L.Ed.2d 659 (1990). The Federal Labor Relations Authority was created to administer the Act. 5 U.S.C. Secs. 7104-05.

On February 28, 1980, the Federal Labor Relations Authority certified the American Federation of Government Employees, AFL-CIO, as the exclusive representative of a national consolidated bargaining unit consisting of certain VA professional employees, including nurses. ⁶ In April 1980, the VA entered into an interim collective bargaining agreement with the union. Because no Master Agreement has ever been reached between the VA and the union, this Interim Agreement remains in effect and provides in article 4 that:

The terms of any local agreement which was in effect at the time of the consolidated unit certification shall remain in effect until final approval of the Master Agreement. ⁷

The same year the VA reached an interim agreement with the American Federation of Government Employees, Congress amended the DM & S statute in an effort to enhance the VA's ability "to recruit and retain...