Veterans Admin. Medical Center, Northport, N.Y. v. Federal Labor Relations Authority, Nos. 672

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before LUMBARD, OAKES and CARDAMONE; LUMBARD
• Citation: 732 F.2d 1128
• Parties: 116 L.R.R.M. (BNA) 2137 VETERANS ADMINISTRATION MEDICAL CENTER, NORTHPORT, NEW YORK, Petitioner, Cross-Respondent, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, Cross-Petitioner, and National Federation of Federal Employees, Local 387, Intervenor-Respondent. ockets 83-4026, 83-4170.
• Decision Date: 19 April 1984
• Docket Number: 682,Nos. 672,D

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732 F.2d 1128 116 L.R.R.M. (BNA) 2137 VETERANS ADMINISTRATION MEDICAL CENTER, NORTHPORT, NEW YORK,
Petitioner, Cross-Respondent,
v.
FEDERAL LABOR RELATIONS AUTHORITY, Respondent, Cross-Petitioner,
and
National Federation of Federal Employees, Local 387,
Intervenor-Respondent. Nos. 672, 682, Dockets 83-4026, 83-4170. United States Court of Appeals,
Second Circuit. Argued Feb. 3, 1984.
Decided April 19, 1984.

John S. Koppel, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Washington,

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D.C. (J. Paul McGrath, Asst. Atty. Gen., William Kanter, Atty., Civ. Div., Dept. of Justice, Washington, D.C., of counsel), for petitioner, cross-respondent.

Robert J. Englehart, Atty., F.L.R.A., Washington, D.C. (Ruth E. Peters, Sol., Steven H. Svartz, Deputy Sol., F.L.R.A., Washington, D.C., of counsel), for respondent, cross-petitioner.

Suzanne L. Kalfus, Nat. Federation of Federal Employees, Washington, D.C. (Catherine Waelder, Gen. Counsel, Nat. Federation of Federal Employees, Washington, D.C., of counsel), for intervenor-respondent.

Before LUMBARD, OAKES and CARDAMONE, Circuit Judges.

LUMBARD, Circuit Judge:

The Veterans Administration Medical Center, Northport, New York, challenges a decision of the Federal Labor Relations Authority requiring it to negotiate with the National Federation of Federal Employees, Local 387, over proposals for grievance procedures involving disciplinary and adverse actions against VA Department of Medicine and Surgery ("DM & S") professional employees. The Authority held that the general requirement of collectively bargained grievance procedures contained in the Civil Service Reform Act applies to disciplinary matters involving DM & S professionals, and that the VA's refusal to bargain constituted an unfair labor practice. VA Medical Center, Northport, 10 FLRA No. 114 (Dec. 23, 1982). We have jurisdiction to hear this appeal under 5 U.S.C. Sec. 7123(a). We read the provision in the DM & S statute, 38 U.S.C. Sec. 4110, authorizing peer review boards to conduct disciplinary proceedings against these employees, as exclusive, thereby relieving the VA of any duty to negotiate over this issue. Accordingly, we grant the VA's petition to review the FLRA's order, and deny the Authority's cross-petition to enforce the order.

I.

The union represents a bargaining unit of employees, including DM & S nurses, at the VA Medical Center in Northport, New York. In January, 1980, the union notified the VA that it wanted to amend the parties' existing collective bargaining agreement. In August of that year, after the rules for negotiations had been established, the union submitted, among other proposals, one for a "broad scope" ¹ negotiated grievance procedure to deal with disciplinary and adverse actions concerning employees.

On September 30, 1980, before negotiations began, the Authority issued its decision in American Federation of Government Employees, Local 3669, and Veterans Administration Medical Center, Minneapolis, 4 FLRA No. 53 ("VA Minneapolis"), holding that proposals to expand the scope of negotiated grievance procedures

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to include disciplinary and adverse actions taken against DM & S professional employees are negotiable.

In December, 1980, the VA informed the union that it would not negotiate the scope of the grievance procedure because, to the extent it covered DM & S nurses, the proposal violated 38 U.S.C. Secs. 4110 and 4119.

The union then filed charges with the FLRA, pursuant to 5 U.S.C. Sec. 7118, asserting that the VA's refusal to bargain on the scope of the grievance procedures, despite the Authority's determination in VA Minneapolis that the subject is negotiable, constituted an unfair labor practice. The VA contended that it was not bound by the VA Minneapolis decision because both a request to the Authority for reconsideration and an appeal to the Eighth Circuit were then pending.

On December 23, 1982, the Authority held that the VA had committed an unfair labor practice, in violation of 5 U.S.C. Sec. 7116(a)(1) and (a)(5), ² by refusing to consider itself bound by the Authority's VA Minneapolis decision. ³ The VA then filed a petition for review with this court.

On February 8, 1983, while the VA's petition was pending, the Eighth Circuit reversed the Authority's decision in the VA Minneapolis case. Veterans Administration Medical Center v. FLRA, 705 F.2d 953 (8th Cir.1983). The VA petitioned the Authority to reconsider its decision in this case, and moved this court to hold in abeyance consideration of its petition pending the Authority's disposition of its reconsideration request. On April 12, 1983, we suspended proceedings in the case.

After the Authority on June 2, 1983, denied the VA's reconsideration request as being time barred, the VA reinstated its petition for review in this court.

II.

This case requires us to consider two statutory schemes concerning federal employees. The Civil Service Reform Act of 1978, 5 U.S.C. Sec. 7101 et seq. (1976 & Supp. V 1981), declares that every collective bargaining agreement shall provide procedures for settling grievances, 5 U.S.C. Sec. 7121(a)(1), but it allows parties to negotiate over matters to be excluded from such procedures, 5 U.S.C. Sec. 7121(a)(2). All contractual grievances procedures must include a provision for binding arbitration. 5 U.S.C. Sec. 7121(b)(3)(C). 5 U.S.C. Sec. 7121(e)(1) provides that where grievances arise under other personnel systems applicable to an employee, that employee may, in his discretion, raise the grievance under "the appellate procedures, if any, applicable to those matters, or under the negotiated grievance procedure, but not both."

In 1946 Congress had established the Department of Medicine and Surgery (DM & S) as an arm of the Veteran's Administration, and designed a specific personnel system for DM & S employees. ⁴ Pub.L. No. 79-293, 59 Stat. 675, 38 U.S.C. Sec. 4101-4115 (1976). Of particular importance in

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this case is 38 U.S.C. Sec. 4110, which provides that charges of "inaptitude, inefficiency or misconduct" of any DM & S professional ⁵ shall be handled by peer review boards. The peer review boards hold hearings, determine facts, and recommend disciplinary action to the Veteran's Administrator, whose decision is final.

The relationship between these two statutory schemes is outlined in 38 U.S.C. Sec. 4119, enacted by Congress in 1980. Veterans Administration Health Care Amendments of 1980, Pub.L. No. 96-330, 94 Stat. 1030, Title I, Sec. 116(a)(1). That section declares that no provision of title 5 which is "inconsistent" with any provision of title 38 "shall be considered to supersede, override, or otherwise modify such provision of this subchapter except to the extent that ... [it] specifically provides, by...