United States District Court, D. Columbia.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, FD1, IAMAW, AFL--CIO, Plaintiff,
ROBERT MCDONALD, in his official capacity as Acting Secretary of Veterans Affairs, Defendant
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, FD1, IAMAW,
AFL-CIO, Plaintiff: Stefan P. Sutich, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, Washington, DC.
ROBERT MCDONALD, in his official capacity as ACTING SECRETARY
OF VETERANS AFFAIRS, Defendant: Peter C. Pfaffenroth, LEAD
ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division,
Document Nos.: 10, 12
CONTRERAS, United States District Judge.
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
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).
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, 271 U.S. App.D.C. 259 (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).
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
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, 374 U.S. App.D.C. 332
(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).
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. 
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).
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
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.
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). 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 proposals constituted
an unfair labor practice under 5 U.S.C. § 7116(a)(1) and
Amarillo VAMC sent a memorandum to the Secretary of Veterans
Affairs seeking a determination as to whether § 7422
excluded the Union's proposals from the VA's
collective bargaining obligation. See A12-15. The
Union filed a response asking the Secretary to deny Amarillo
VAMC's request and to allow the FLRA to pursue the
complaint. See A67-71.
January 2014, the Secretary issued a decision finding that
the Union's demands to bargain were excluded from
collective bargaining under § 7422(b) (" §
7422 Decision" ). See A4-11. The § 7422
Decision based its analysis on a decision document approved
in 2010 by VA officials (" 2010 Decision Document"
), which the Secretary read for the proposition that where a
matter falls within a § 7422 exclusion, any demands to
bargain about procedures related to that matter are
also excluded. See A8-9; see also A74-77
(2010 Decision Document). Applying this rule, the Secretary
then concluded that because the mandatory overtime
requirement was excluded from collective bargaining under
§ 7422 as related to " direct patient care,"
and because the Union's proposals pertained to procedures
related to the mandatory overtime, the Union's demands
were necessarily excluded as well. See
A9-10. In light of the § 7422 Decision,
the FLRA dismissed the unfair labor practice charge for lack
of jurisdiction. See Compl. ¶ 43.
2014, the Union brought this action against the Acting
Secretary of Veterans Affairs under the Administrative
Procedure Act (" APA" ), 5 U.S.C. § 706.
See Compl., ECF No. 1. The two-count complaint
alleges that the § 7422 Decision exceeded the
Secretary's statutory authority in violation of 5 U.S.C.
§ 706(2)(C), and that it was arbitrary and capricious
under 5 U.S.C. § 706(2)(A). See id. ¶
¶ 44-54 (Count I), ¶ ¶ 55-71 (Count II). By
way of relief, the Union asks the Court to vacate the §
7422 Decision, to order the VA to engage in collective
bargaining with the Union, and to order the FLRA to reinstate
the Union's unfair labor practice charge. See
id. ¶ ¶ 72-75.
parties have filed cross-motions for summary judgment.
See ECF Nos. 10, 12. Both ...