U.S. Dept. of Veterans Affairs v. Federal Labor Relations Authority, 92-1213

• Decision Date: 12 November 1993
• Docket Number: No. 92-1213,92-1213
• Citation: 9 F.3d 123
• Parties: 144 L.R.R.M. (BNA) 2683 U.S. DEPARTMENT OF VETERANS AFFAIRS, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 123

9 F.3d 123

144 L.R.R.M. (BNA) 2683

U.S. DEPARTMENT OF VETERANS AFFAIRS, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 92-1213.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 18, 1993.

Decided Nov. 12, 1993.

Petition for Review of an Order of the Federal Labor Relations Authority.

Jonathan R. Siegel, Atty. U.S. Dept. of Justice, argued the cause for petitioner. On the briefs were William Kanter and E. Roy Hawkens, Attys., U.S. Dept. of Justice.

William R. Tobey, Deputy Sol., Federal Labor Relations Authority, argued the cause for respondent. With him on the brief were David M. Smith, Sol., Federal Labor Relations Authority, and Pamela P. Johnson, Atty., Federal Labor Relations Authority. William E. Persina and Wendy B. Bader Attys., Federal Labor Relations Authority, entered appearances.

Mark D. Roth, Gen. Counsel, and Kevin M. Grile, Asst. Gen. Counsel, American Federation of Government Employees, AFL-CIO, were on the brief for amicus curiae.

Before: WALD, EDWARDS, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

The Department of Veterans Affairs ("Petitioner" or "VA") challenges a determination by the Federal Labor Relations Authority ("FLRA" or "Respondent") that certain collective bargaining proposals submitted to the VA by the National Association of Government Employees, Local R1-109 ("Union") are negotiable.

The Union is the exclusive bargaining representative for, inter alia, "hybrid" employees of the Veterans Health Administration ("VHA") at the VA's Newington, Connecticut Medical Center. ¹ During mid-term negotiations over the parties' collective bargaining agreement, the Union submitted to the VA twelve proposals concerning procedures to be followed by Professional Standards Boards in reviewing their peers for promotion. ² The VA refused to negotiate over the proposals on the grounds that they infringed upon the exclusive authority of the Secretary of Veterans Affairs to "prescribe[ ]" regulations for the "promotion and advancement" of hybrid VHA employees. See 38 U.S.C. Sec. 7403(f)(1)(B) (Supp. III 1991) (incorporating by reference 38 U.S.C. Sec. 7403(c)). ³ The Union filed a negotiability appeal and the FLRA ultimately concluded that the proposals were negotiable because they concerned "matters relating to ... grievance procedures" within the meaning of Sec. 7403(f)(3)'s exception to the Secretary's exclusive authority over promotions. See National Ass'n of Gov't Employees, Local R1-109, 44 F.L.R.A. No. 29 (Mar. 13, 1992) ("NAGE, Local R1-109 "). The VA challenges this determination.

In reviewing the FLRA's determination that the Union's proposals are negotiable under Sec. 7403(f)(3), we examine more generally chapter 74 of title 38, 38 U.S.C. Secs. 7401-7474, governing VHA personnel administration, and its relation to chapter 71 of title 5, 5 U.S.C. Secs. 7101-7135, governing collective bargaining rights of civil service employees generally. While we analyze the interlocking provisions of title 38, our interpretive approach is ultimately quite simple: we seek to give meaning to Sec. 7403(f)(3)'s express limitation of negotiability to "matters relating to adverse actions, disciplinary actions, and grievance procedures." Because we agree with the VA that proposals relating to peer review promotion procedures rather than grievance procedures are nonnegotiable under Sec. 7403, we remand to the FLRA for a determination of the negotiability of the Union's proposals in light of the interpretation of Sec. 7403 set forth in this opinion.

I. STATUTORY BACKGROUND

The Department of Medicine and Surgery, now the Veterans Health Administration, ⁴ was created in 1946 "to provide a complete medical and hospital service for the medical care and treatment of veterans." 38 U.S.C. Sec. 7301(b). See Veterans' Administration, Department of Medicine and Surgery, Pub.L. No. 79-293, 59 Stat. 675 (1946). Because at that time Congress was concerned that the civil service system was insufficiently flexible to accommodate the swift hiring necessary to satisfy the medical needs of returning World War II veterans, it created an independent personnel system for the VHA under title 38. Pub.L. No. 79-293, Secs. 2-15, 59 Stat. at 675-79 (codified as amended at 38 U.S.C. Secs. 7401-7474). See S.REP. NO. 858 (1945), reprinted in 1945 U.S. CODE CONG. SERV. 956; S.REP. NO. 215, 100th Cong., 1st Sess. 145 (1987). The Secretary (then Administrator) of Veterans Affairs was authorized to "prescribe by regulation the hours and conditions of employment" of these employees without regard to "any law, Executive order, or regulation." Pub.L. No. 79-293, Sec. 7(b), 59 Stat. at 677 (codified as amended at 38 U.S.C. Sec. 7421(a)). The specified personnel employed under this independent system are consequently referred to as "nonhybrid" employees because their employment is almost exclusively governed by title 38. ⁵

In 1978 Congress passed the Federal Service Labor-Management Relations Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (codified at chapter 71 of title 5, 5 U.S.C. Secs. 7101-7135), providing for collective bargaining rights of civil service employees generally, and establishing the FLRA in order to "carry[ ] out the purpose of ... chapter [71 of title 5]." 5 U.S.C. Sec. 7105. Soon thereafter Congress amended title 38, adding Sec. 4119 (now Sec. 7425), to reemphasize that "where title 5 is 'inconsistent with' title 38, the latter governs." American Fed'n of Gov't Employees v. FLRA, 850 F.2d 782, 786 (D.C.Cir.1988) (quoting 38 U.S.C. Sec. 4119 (Supp.IV 1980) (recodified at 38 U.S.C. Sec. 7425)). See Veterans Administration Health-Care Amendments of 1980, Pub.L. No. 96-330, Sec. 116(a)(1), 94 Stat. 1030, 1039 (1980). Nonhybrid VHA employees were not to enjoy the collective bargaining rights conferred upon civil service employees under title 5. Id. at 786-87; see also Colorado Nurses Ass'n v. FLRA, 851 F.2d 1486, 1491-92 (D.C.Cir.1988).

In addition to these "nonhybrid" title 38 employees, Congress in 1983 created a new category of "hybrid" VHA employees who are subject to both title 38 and title 5. See Veterans' Health Care Amendments of 1983, Pub.L. No. 98-160, Secs. 201, 203(a), 97 Stat. 993, 1000 (codified as amended at 38 U.S.C. Secs. 7401(3), 7403(f)(1) & (f)(2)). In creating the category of "hybrid" personnel Congress sought to improve the VHA's ability to recruit and retain certain kinds of health care workers apart from the "nonhybrid" employees governed exclusively by the title 38 personnel system. ⁶ In 1988 Congress further amended the VHA personnel provisions expressly to provide greater collective bargaining rights for these hybrid employees. See Veterans' Benefits and Services Act of 1988, Pub.L. No. 100-322, Sec. 221, 102 Stat. 487, 531 (codified at 38 U.S.C. Sec. 7403(f)(3)). In 1991 Congress conferred, for the first time, certain collective bargaining rights upon nonhybrid employees as well. See Department of Veterans Affairs Health-Care Personnel Act of 1991, Pub.L. No. 102-40, Sec. 202, 105 Stat. 187, 200-01 (codified at 38 U.S.C. Sec. 7422). This case involves only the collective bargaining rights of hybrid employees as expressly set forth in Sec. 7403(f)(3).

II. DISCUSSION

The FLRA and the VA do not dispute that under Sec. 7403, the Secretary need not bargain over the substantive criteria governing appointment, promotion and advancement of hybrid employees, e.g., time-in-grade requirements or qualifications. Nor do they dispute that the Secretary must bargain over the mechanics of grievance procedures (i.e., the filing, processing, or resolving of grievances) even when the grievance procedures include the resolution of promotion-related grievances. See Respondent's Brief at 6-7; Petitioner's Brief at 15-18 ⁷; United States Dep't of Veterans Affairs Medical Center, Newington, CT, 37 F.L.R.A. 111 (1990) (arbitration of promotion-related grievance permissible under title 38). The parties do disagree, however, about whether promotion procedures themselves are negotiable, and more generally about the scope of the Secretary's obligation under Sec. 7403(f)(3) to bargain over "all matters relating to ... grievance procedures." 38 U.S.C. Sec. 7403(f)(3).

We note preliminarily that we owe no deference to the FLRA's statutory interpretation where it has endeavored to "reconcile its organic statute [i.e., chapter 71 of title 5--the Federal Service Labor-Management Relations Act] with a[nother] statute [i.e., title 38] not within its area of expertise." Colorado Nurses, 851 F.2d at 1488 (citations omitted). Accord Library of Congress v. FLRA, 699 F.2d 1280, 1286 n. 29 (D.C.Cir.1983). Consequently, our review of the FLRA's interpretation of the scope of Sec. 7403(f)(3) is de novo. See also Professional Airways Sys. Specialists, MEBA v. FLRA, 809 F.2d 855, 857-58 & n. 6 (D.C.Cir.1987) (FLRA's refusal to award back pay subject to de novo review where decision rested on interpretation of its organic statute and another general statute). In our interpretive exercise, we turn first to the language of the VHA personnel provisions. Because we find the text clear, we allude to the sparse legislative history only as necessary to evaluate arguments raised by the parties invoking its use.

A. Grievance Procedures for Hybrid Employees

As we explain below, under the VHA personnel provisions of title 38, the power of the Secretary of Veterans Affairs to prescribe regulations governing the promotion and advancement of hybrid employees derives from his power over nonhybrid employees. Therefore, we begin by briefly discussing the Secretary's powers over the promotion of nonhybrid employees.

1. Nonhybrid Employees

Until 1991 the Secretary had no obligation to negotiate any conditions of employment for nonhybrid employees. See 38 U.S.C. Secs. 4106, 4108(a) (1988) (amended and recodified as 38 U.S.C. Secs. 7403, 7421...