Veterans Admin. Medical Center, Minneapolis, Minn. v. Federal Labor Relations Authority, AFL-CIO

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before HEANEY and JOHN R. GIBSON; HEANEY
• Citation: 705 F.2d 953
• Parties: 112 L.R.R.M. (BNA) 2701 VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. American Federation of Government Employees,(AFGE), Intervenor- Respondent.
• Docket Number: No. 80-2081,AFL-CIO
• Decision Date: 29 March 1983

Page 953

705 F.2d 953 112 L.R.R.M. (BNA) 2701 VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS,
MINNESOTA, Petitioner,
v.
FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
American Federation of Government Employees, AFL-CIO (AFGE),
Intervenor- Respondent. No. 80-2081. United States Court of Appeals,
Eighth Circuit. Submitted Nov. 12, 1982.
Decided Feb. 8, 1983.
Rehearing and Rehearing En Banc Denied March 29, 1983.

Page 954

J. Paul McGrath, Asst. Atty. Gen., William Kanter, Linda Jan S. Pack, Attys., Appellate Staff Civ. Div., Dept. of Justice, Washington, D.C., for petitioner.

Charles A. Hobbie, Staff Counsel, James R. Rosa, Gen. Counsel, Washington, D.C., for American Federation of Government Employees, AFL-CIO.

Steven H. Svartz, Acting Sol., William R. Tobey, Atty., Federal Labor Relations Authority, Washington, D.C., for respondent.

Before HEANEY and JOHN R. GIBSON, Circuit Judges, and DUMBAULD, ^* Senior District Judge.

HEANEY, Circuit Judge.

The Veterans Administration Medical Center, Minneapolis, Minnesota [Veterans Administration], petitions this Court to reverse the decision of the Federal Labor Relations Authority [FLRA] ¹ which requires the Veterans Administration to bargain over certain disciplinary and adverse action proposals allegedly in conflict with the discipline procedures prescribed for medical professionals in 38 U.S.C. Sec. 4110 (1976). For the reasons expressed in our opinion in State of Nebraska, Military Department, Office of the Adjutant General v. Federal Labor Relations Authority, 705 F.2d 945 (8th Cir.1983), the decision of the FLRA is set aside insofar as it requires bargaining over proposals creating grievance and arbitration procedures for disputed matters covered by section 4110 of Title 38.

During contract negotiations between the American Federation of Government Employees, Local 3669, AFL-CIO [union], and the Veterans Administration, the union submitted the following proposals:

ARTICLE XXIV DISCIPLINARY ACTIONS

Section 2. If the employer proposes to suspend an employee for 14 calendar days or less, the following procedures will apply:

(a) The employer will provide the employee with 10 workdays advance written notice of the proposed action;

(b) the notice must state the reasons for the proposed discipline specifically and in detail so as to delineate specifics to which the employee can respond, and must clearly state the employee's right to make a response to the proposal and his/her right to be represented by the union;

(c) The employee may file a written response and/or make an oral response to the notification prior to the end of the 10 workday notice period;

(d) after receipt of the written and/or oral response or the termination of the notice period, management will issue a final written decision to the employee which shall include a statement of the employee's appeal and/or grievance rights.

ADVERSE ACTION

Section 2.

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(c) The written notice must state the reasons for the adverse action specifically and in detail, so as to delineate specifics to which the employee can respond, and must clearly state the employee's right to make a response to the proposal and his/her right to be represented by the union.

(d) The employee may file a written response and/or make an oral response to the proposed notice within 10 workdays after receipt of the written notice.

(e) Within 10 workdays of receipt of the written and/or oral response or the termination of the notice period, the employer will issue a final written decision to the employee which shall include a statement of the employee's right to appeal to the Veterans Administration and/or the employee's right to file a grievance in accordance with this Agreement.

Section 3.

(a) An employee will in any adverse action, be furnished a copy of all written documents which contain material and/or evidence relied on by the employer as a basis for the reasons and specifications.

(b) If the adverse action is based on an investigation report, those portions of all written documents from the investigation report which relate to the specifications will be furnished to the employee.

(c) The documentations specified in (a) and (b) above will be attached to the notice of decision of adverse action.

The Veterans Administration alleged that these proposals were nonnegotiable because they conflicted with the discipline procedures provided in 38 U.S.C. Sec. 4110 (1976) for certain Department of Medicine and Surgery employees (hereafter DM & S professionals). ² The union petitioned the FLRA to review this allegation and the FLRA decided that the proposals were negotiable because they provided for alternative dispute resolution procedures as permitted by the Civil Service Reform Act of 1978, 5 U.S.C. Sec. 7121(e)(1) (Supp. IV 1980). The FLRA affirmed its decision in April of 1982 by denying the Veterans Administration's motion for reconsideration.

The legal questions raised in this appeal are identical to those in our State of Nebraska, Military Department, Office of the Adjutant General case. Based on that decision, we hold that the standard of review applicable to the FLRA order now under consideration is one of respect, but not deference. Furthermore, we again start with the proposition that the Civil Service Reform Act mandates good faith bargaining over the proposals at hand, absent other overriding provisions of law. Thus, our task in the present case is first, to determine whether section 4110 of the Veterans Administration law, Title 38, actually conflicts with the duty to bargain under the Civil Service Reform Act, and second, to resolve that conflict if it exists. See State of Nebraska, Military Department, Office of the Adjutant General v. Federal Labor Relations Authority, supra, 705 F.2d at 948.

The conflict between section 4110 and the Civil Service Reform Act is not as apparent as the conflict which we found between the statutes in State of Nebraska, Military Department, Office of the Adjutant General. In that case, the conflict existed by virtue of the express language of the statutes. Id. at 949-50 & n. 6.

In contrast, the section of the Veterans Administration law at issue in the present case provides for "peer" disciplinary boards "to determine, upon notice and fair hearing, charges of inaptitude, inefficiency, or misconduct" of DM & S professionals. 38 U.S.C. Sec. 4110(a) (1976). The disciplinary boards investigate these charges and make recommendations for agency action, which

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could include "reprimand, suspension without pay, reduction in grade, [or] discharge." Id. Sec. 4110(d). The Administrator of Veterans' Affairs, or the Chief Medical Director if delegated this authority, acts on the recommendations of the boards. Id. Secs. 4110(d) & (e). The statute provides that the decision of the Administrator "shall be final." Id. Sec. 4110(d).

The FLRA correctly asserts that, on its face, this section...