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National Federation of Federal Employees v. McDonald

United States District Court, District of Columbia

September 8, 2015

ROBERT MCDONALD, in his official capacity as Acting Secretary of Veterans Affairs, Defendant.




Although registered nurses employed by the Department of Veterans Affairs generally enjoy collective bargaining rights, these rights are limited by the Secretary of Veterans Affairs' authority under 38 U.S.C. § 7422 to determine that certain demands are not subject to bargaining because they implicate "professional conduct or competence"- defined to encompass "direct patient care." In the instant case, after a VA hospital in Texas faced with staffing shortages decided to implement mandatory overtime for registered nurses, the nurses' union sought to bargain about certain procedures governing the overtime measures. The hospital refused to bargain, and the Secretary ultimately sided with the hospital, finding that the union's proposals concerned "direct patient care" within the meaning of § 7422. The union brought this action under the Administrative Procedure Act challenging the Secretary's § 7422 decision, and the parties have filed cross-motions for summary judgment. The Court concludes that because the § 7422 decision does not reflect reasoned decisionmaking, it is arbitrary and capricious. Accordingly, the Court grants the union's motion for summary judgment, vacates the § 7422 decision, and remands the matter to the Acting Secretary for further proceedings.


A. Statutory Framework

In 1978, Congress extended collective bargaining rights to federal employees as part of the Civil Service Reform Act ("CSRA"). See CSRA of 1978, Pub. L. No. 95-454, title VII, § 701, 92 Stat. 1111, 1192 (1978), codified at 5 U.S.C. § 7102(2). In provisions now codified in chapter 71 of title 5 of the United States Code, the CSRA prohibits various "unfair labor practices" that interfere with those collective bargaining rights, 5 U.S.C. § 7116, and delegates enforcement to the Federal Labor Relations Authority ("FLRA"), see id. §§ 7104-05, 7118. The General Counsel of the FLRA, upon investigation of an alleged unfair labor practice, may issue a complaint against the relevant agency or labor organization. See id. § 7118(a)(1). Thereafter, the FLRA must conduct a hearing on the complaint, see id. § 7118(a)(6), and, if it finds that an unfair labor practice occurred, issue a written decision awarding appropriate relief, see id. § 7118(a)(7).

Congress subsequently decided to clarify and calibrate the collective bargaining rights of certain healthcare professionals employed by the Department of Veterans Affairs ("VA"), following the D.C. Circuit's determination that the existing statutory framework did not provide for such rights. See Am. Fed'n of Gov't Emps., AFL-CIO Local 2152 v. Principi, 464 F.3d 1049, 1051 (9th Cir. 2006) (explaining Congress's concerns in the wake of Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988)). To this end, Congress enacted the Department of Veterans Affairs Labor Relations Improvement Act of 1991. See Pub. L. No. 102-40, title II, § 202, 105 Stat. 187, 200 (1991), codified at 38 U.S.C. §§ 7421 et seq. The Act authorizes the Secretary of Veterans Affairs to "prescribe by regulation the hours and conditions of employment and leaves of absences" of specific classes of VA employees, 38 U.S.C. § 7421(a), (b), but also provides that this general authority is "subject to" the collective bargaining rights of those employees, as provided in chapter 71 of title 5 of the United States Code, id. § 7422(a).

The Act goes on, however, to establish three limitations on the scope of VA healthcare professionals' collective bargaining rights. As codified at subsection (b) of § 7422, the Act provides that collective bargaining involving covered employees

may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title.

Id. § 7422(b). Subsection (c) explains that "[f]or purposes of this section, the term professional conduct or competence' means any of the following: (1) Direct patient care. (2) Clinical competence." Id. § 7422(c). Subsection (d) provides that the applicability of the subsection (b) limitations in any given case "shall be decided by the Secretary and is not itself subject to collective bargaining." Id. § 7422(d). These decisions are reviewable in the first instance by federal district courts. See Am. Fed'n of Gov't Emps., AFL-CIO, Local 446 v. Nicholson, 475 F.3d 341, 348-50 (D.C. Cir. 2007) (" AFGE Local 446 ") (holding that the district court had subject-matter jurisdiction under 28 U.S.C. § 1331 over a challenge to a § 7422 decision).

B. Factual Background

In September 2012, the Thomas E. Creek VA Medical Center in Amarillo, Texas ("Amarillo VAMC" or "Medical Center"), began experiencing staffing shortages in one of its units. See A12. Eventually, the number of registered nurses in the unit dropped 24 percent, from twenty-one to sixteen. Id.; see also A5. After various efforts to ameliorate the shortage proved unsuccessful, the Medical Center decided in late November 2012 to mandate overtime for all registered nurses covered by title 38. See A12-13. The mandatory overtime spanned three pay periods from December 2012 to January 2013; all nurses were required to work one additional twelve-hour shift during each pay period. See id. On November 29, 2012, the Nurse Executive met with the National Federation of Federal Employees ("the Union"), which represented the affected nurses, to explain the mandatory overtime requirement. See id. [1]

In December 2012, the Union made several attempts to bargain with Amarillo VAMC. On December 3, the Union filed its initial demand to bargain with Amarillo VAMC regarding management's implementation of mandatory overtime. A16. On December 11, the Nurse Executive declined to bargain on the basis that the Union's demand "involve[d] direct patient care and competency matters" under 38 U.S.C. § 7422(b). A17. On December 13, the Union filed a second demand to bargain, which explained that the Union was "exercising its right to negotiate the procedures Management will use in implementing mandatory overtime for Nurses and to negotiate the appropriate arrangements for employees who will be adversely affected." A18. Attached to the demand was a list of eleven "proposals for negotiation." A19-20. The Union requested, among other things, that management provide compensation to nurses who report for overtime shifts but are no longer needed (proposal 3), consider "other options" prior to mandating overtime (proposal 4), allow for voluntary shift substitutions among nurses (proposal 5), balance the "personal needs" of staff with patient care demands (proposal 6), grant employees exemptions from mandatory overtime under certain conditions (proposal 7), maintain accurate records of all overtime worked (proposal 9), and provide at least two days' advance notice for scheduled mandatory overtime (proposal 10).[2]

On December 18, the Union submitted a third demand to bargain, which emphasized that "[t]his matter is appropriate for negotiations" and that the Union sought only "to negotiate the impact and implementation" of mandatory overtime, rather than to "interfere with the Agency's right" to implement mandatory overtime. A21-22. Attached to this third demand was a revised list of ten proposals largely consistent with the previous list; the Union made non-substantive changes to certain proposals and combined proposals 6 and 7. A22-23; see also A7 n.5 (summarizing changes).

On December 20, the Medical Center management met with the Union to discuss its proposals. A13. Management orally agreed to all proposals except for one, but the parties did not memorialize their agreement in writing or decide when any changes would take effect. See id. Following the meeting, management continued to move forward with implementing mandatory overtime. See id.

In January 2013, the Union filed an unfair labor practice charge with the FLRA alleging that Amarillo VAMC's failure to engage in collective bargaining violated 5 U.S.C. § 7116(a).[3] See A24. In July 2013, the FLRA issued a complaint and notice of hearing, alleging that Amarillo VAMC's refusal to bargain on December 11 over the Union's various ...

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