Colorado Nurses Ass'n v. Federal Labor Relations Authority

• Decision Date: 19 July 1988
• Docket Number: 87-1242,Nos. 87-1104,s. 87-1104
• Citation: 851 F.2d 1486
• Parties: 128 L.R.R.M. (BNA) 3115, 271 U.S.App.D.C. 259 COLORADO NURSES ASSOCIATION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. VETERANS ADMINISTRATION MEDICAL CENTER, FT. LYONS, COLORADO, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, Colorado Nurses Association, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1486

851 F.2d 1486

128 L.R.R.M. (BNA) 3115, 271 U.S.App.D.C. 259

COLORADO NURSES ASSOCIATION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

VETERANS ADMINISTRATION MEDICAL CENTER, FT. LYONS, COLORADO, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, Colorado Nurses Association, Intervenor.

Nos. 87-1104, 87-1242.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 27, 1987.

Decided July 19, 1988.

Christine R. Whittaker, Atty., U.S. Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., and Marc Richman, Atty., U.S. Dept. of Justice, Washington, D.C., were on the brief, for petitioner Veterans Admin. Medical Center. William Kanter, Atty., U.S. Dept. of Justice, Washington, D.C., also entered an appearance for petitioner.

George Kaufmann, with whom Joseph E. Kolick, Jr., Washington, D.C., was on the briefs, for petitioner/intervenor Colorado Nurses Ass'n.

Robert J. Englehart, Deputy Sol., Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., and William E. Persina, Deputy Sol., Federal Labor Relations Authority, Washington, D.C., were on the brief, for respondent. Arthur A. Horowitz, Atty., Federal Labor Relations Authority, Washington, D.C., also entered an appearance for respondent.

Patrick J. Riley, Washington, D.C., was on the brief for amicus curiae National Federation of Federal Employees, urging affirmance.

Before BUCKLEY and WILLIAMS, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

This case concerns the negotiability of six proposals presented by the Colorado Nurses Association to the Veterans Administration Medical Center in Fort Lyons, Colorado. The Federal Labor Relations Authority held that two of the six proposals are non-negotiable under the Federal Service Labor-Management Relations Act. Both parties petitioned for review. Because we find that Congress granted the VA Administrator exclusive discretion to establish regulations concerning the working conditions of its medical employees, we conclude that the Veterans Administration need not bargain over any of the contested proposals.

I. BACKGROUND

The Colorado Nurses Association ("union") represents a bargaining unit of the Department of Medicine and Surgery ("DM & S") at the Veterans Administration's Medical Center in Fort Lyons, Colorado. In the course of negotiating a collective bargaining agreement, the union offered six proposals that the Veterans Administration ("VA") declared to be non-negotiable. The first would establish a grievance and arbitration procedure for DM & S professional medical employees concerning conditions of employment unrelated to disciplinary and adverse actions; the remaining five would impose certain limits on the VA's flexibility in establishing work schedules.

The VA refused to negotiate these matters because of its claim that the statute establishing the DM & S, 38 U.S.C. Secs. 4101 et seq. (1982) ("DM & S Statute") had granted its Administrator exclusive authority to prescribe the working conditions of all DM & S medical employees. As a consequence, the VA declared that it was not required by the Federal Service Labor-Management Relations Act, 5 U.S.C. Secs. 7101 et seq. (1982) ("FSLRA") to engage in collective bargaining with its nurses. Accordingly, the union filed an appeal with the Federal Labor Relations Authority ("FLRA").

The FLRA rejected the VA's claim of exemption from the duty to negotiate because it found no conflict between the VA Administrator's authority to establish working conditions for medical personnel and the VA's obligation, as a federal employer, to negotiate with its employees. It reached this conclusion on the basis of its reading of the DM & S Statute, the existence of collective bargaining between the VA and its medical employees, and relevant legislative history--including the history of an amendment to the DM & S Statute adopted in 1980 ("1980 Amendment"). On the merits, the agency held that the VA must bargain over four of the six proposals, but concluded that two of the union's scheduling proposals were nevertheless non-negotiable because they would infringe upon certain rights specifically reserved to management under 5 U.S.C. Sec. 7106 (1982). Colorado Nurses Association and VA Medical Center, Ft. Lyons, Colorado ("FLRA Decision"), 25 F.L.R.A. 803 (Feb. 20, 1987).

Both parties petitioned for review.

II. DISCUSSION

A. The Statutory Framework

This case requires us to prescribe the reach of two statutes: the first governs the rights and terms of employment of VA medical professionals; the second, those of federal employees generally. While not denying that the FSLRA requires it to bargain with its non-professional employees, the VA contends that it is exempt from the obligation to engage in collective bargaining with its nurses because the DM & S Statute grants its Administrator the sole authority to determine their conditions of employment "[n]otwithstanding any law." 38 U.S.C. Sec. 4108 (1982).

The union argues that the case is controlled by the FSLRA, which was enacted as part of the Civil Service Reform Act of 1978. The FSLRA provides that federal employees "shall have the right.... to engage in collective bargaining with respect to conditions of employment...." 5 U.S.C. Sec. 7102 (1982). "[C]onditions of employment" are defined as "personnel policies, practices, and matters, whether established by rule, regulation or otherwise...." 5 U.S.C. Sec. 7103(a)(14) (1982). The matters raised in the union's proposals unquestionably fall within this category.

Our first task is to determine whether the Administrator's authority to prescribe the working conditions of DM & S employees "notwithstanding any law" is inconsistent with the VA's general obligation, under the FSLRA, to bargain with employees about working conditions. If we find it to be, our second task is to decide which statute prevails.

B. The Statutory Interplay

The FLRA found no conflict between the Administrator's authority under section 4108 and the VA's general responsibility under FSLRA to bargain over conditions of employment. It reached this conclusion because it saw no evidence that in enacting section 4108, Congress intended to give the Administrator "exclusive control" over the conditions of employment of DM & S employees. 25 F.L.R.A. at 806-10.

Because the FLRA's decision required it to reconcile its organic statute with a statute not within its area of expertise, we owe it no particular deference. See Professional Airways Sys. Specialists v. FLRA, 809 F.2d 855, 857 n. 6 (D.C.Cir.1987); United States Dep't of Justice v. FLRA, 709 F.2d 724, 729 n. 21 (D.C.Cir.1983). We accept the FLRA's premise that collective bargaining is not necessarily inconsistent with an agency's general power to implement personnel policy through the use of regulations, see, e.g., AFGE, Local 3488, 12 F.L.R.A. 532, 533 (1983). In this case, however, the language, structure, and history of the DM & S Statute demonstrate that Congress intended that the Administrator have exclusive authority to prescribe regulations concerning conditions of employment.

As always, our first duty is to examine the statutory language. Section 4108 asserts that "the Administrator shall prescribe by regulation the ... conditions of employment" of medical employees, including nurses. We believe that by directing the Administrator to prescribe regulations--rather than simply issue or promulgate them--Congress intended that the Administrator determine the content of those regulations. The union contends nevertheless that there is room for the Administrator to negotiate about the content of regulations and then prescribe the results.

While the union's reading of "prescribe" could be reasonable in other circumstances, it is not a permissible one in this case. Section 4108 underscores the exclusive nature of the Administrator's authority by exempting its exercise from "any law, Executive order, or regulation." The purpose of this language is clear: when the Administrator prescribes regulations concerning conditions of employment, he is to be unhampered by the range of federal personnel statutes and regulations that might otherwise constrain his authority.

This interpretation is consistent with the structure of the DM & S Statute. Section 4108 is part of the comprehensive personnel system provided by Congress when it created the Department of Medicine and Surgery in 1946. Various other sections establish the procedures by which medical employees are appointed (38 U.S.C. Secs. 4101 and 4106), trained (38 U.S.C. Sec. 4113), paid (38 U.S.C. Sec. 4107), and disciplined (38 U.S.C. Sec. 4110). Section 4108 comes into play with respect to those conditions of employment not covered in other parts of the law.

Thus, section 4108 is an integral part of an independent personnel system that Congress has placed under the direct control of the Administrator. As such, it is exempt from all laws governing the terms and conditions of federal employment except as otherwise explicitly provided in the DM & S Statute (e.g., VA medical personnel are made eligible for civil service retirement benefits. 38 U.S.C. Sec. 4109).

In its own analysis, the FLRA concedes that Congress intended certain sections of the DM & S Statute to be exclusive, but nevertheless concludes that no conflict exists between section 4108 and the provisions of the FSLRA. Furthermore, it asserts that this reading is supported by both "the Statute and its legislative history." FLRA Decision, 25 F.L.R.A. at 806. The agency then proceeds to infer the intent of section 4108 by attempting to drive an analytical wedge between it and other provisions of the law that are admittedly exclusive in their application.

Specifically, the FLRA cites "many references [in legislative history] to the need of the VA to have a free hand in removing incompetent...