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

• Decision Date: 29 March 1983
• Docket Number: No. 80-2081,AFL-CIO,80-2081
• 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.
• Court: U.S. Court of Appeals — Eighth Circuit

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.

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.

* * *

* * * (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 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 does not conflict with the provision for alternative grievance and arbitration procedures in the Civil Service Reform Act, 5 U.S.C. Sec. 7121(e)(1) (Supp. IV 1980), nor with the proposals submitted to the Veterans Administration for bargaining in the present case. Section 4110 of the Veterans Administration law nowhere indicates that recommendation by a disciplinary board and final decision by the Administrator is the exclusive means of dispute resolution available to DM & S professionals. Contra State of Nebraska, Military Department, Office of the Adjutant General v. Federal Labor Relations Authority, supra, 705 F.2d at 949 (clear language of National Guard Technicians Act indicated that appeal to the state adjutant general was the exclusive final step in dispute resolution for matters listed in 32 U.S.C. Sec. 709(e) (1976)). Simply declaring the decision of the Administrator "final" is insufficient to produce conflict with the Civil Service Reform Act, ³ since Congress obviously contemplated other statutory appellate procedures, which had to end somewhere, when it created alternative grievance and arbitration procedures available at the employee's option in the Civil Service Reform Act, 5 U.S.C. Sec. 7121(e)(1) (Supp. IV 1980). Any other interpretation would render meaningless section 7121(e)(1) of the civil service reform legislation, which presupposed some nonexclusive statutory appellate procedures that could coexist with the alternative grievance and arbitration procedures made available under the Civil Service Reform Act.

Looking at the legislative history of section 4110, however, we find that Congress intended disciplinary review by "peer" boards with ultimate decision by the Administrator to be exclusive insofar as it concerned "inaptitude, inefficiency, or misconduct" of DM & S professionals. The House of Representatives' debate over the original version of section 4110, passed in 1946 and virtually unchanged today, is replete with indications that Congress intended the Veterans Administration to have ultimate authority in disciplining DM & S personnel because of professional misconduct. Congress designed the 1946 legislation to circumvent civil service regulations which made it difficult to remove incompetent DM & S professionals:

There were doctors who did not come up to what we thought they should and what chief medical officers thought they should; but in view of all the red tape and the difficulty of bringing charges and proving them under the civil-service regulations, the chief medical officer got to the point where he said, "I cannot do anything about it anyway," arranged for a transfer of the man, and by so doing the inefficient doctor simply changed the scene of his activities, but the evil was not remedied.

91 Cong.Rec. H 11663 (daily ed. Dec. 7, 1945) (statement of Rep. Scrivner). See also id. at 11682-11683 (colloquy between Reps. Eberharter and Allen indicating that a discharged person's right of appeal ends with the Administrator); S.Rep. No. 858, 79th Cong., 1st Sess.,...