Nurses Union Nets Win |in Agency Overtime Flap

     (CN) – Calling the agency’s stance “arbitrary and capricious,” a federal judge set aside a decision that prevented the Department of Veterans Affairs from negotiating with unionized registered nurses over mandatory overtime.
     U.S. District Judge Rudolph Contreras, in Washington, D.C., said the decision not to bargain with the union exceeded the authority of VA Secretary Robert McDonald, in violation of the Administrative Procedure Act.
     The judge vacated McDonald’s decision Tuesday, but stopped short of ordering the VA to engage in collective bargaining with the National Federation of Federal Employees, a labor union representing about 100,000 public employees in the federal government.
     A group of registered nurses in Texas asked the union to intercede on their behalf after the Thomas E. Creek VA Medical Center in Armarillo began experiencing staffing shortages in one of its units.
     The number of registered nurses in the unit dropped 24 percent in September 2012, from 21 to 16, prompting the medical center to mandate overtime for all registered nurses. The mandatory overtime extended through three pay periods and required all nurses to work an additional 12-hour shift each pay period, according to court documents.
     Shortly after the mandatory overtime policy was adopted, union leaders made several unsuccessful attempts to bargain with the medical center, emphasizing in a third demand to bargain that it “sought only ‘to negotiate the impact and implementation’ of mandatory overtime, rather than to ‘interfere with the agency’s right’ to implement mandatory overtime.”
     In reaching out to the medical center, union leaders requested that management administer overtime shifts in a fair and balanced manner, provide employees at least two days advance notice of scheduled overtime, and that mandatory overtime “not become the norm” but be used only in emergency cases “where patient care needs are paramount.”
     While the medical center orally agreed to all but one of the proposals, the union filed an unfair labor practice charge with the Fair Labor Relations Authority, claiming the Amarillo VA failed to engage in collective bargaining.
     Subsequently, the medical center sought a determination from the VA Secretary as to whether it has the right to exclude the union’s proposal from the VA’s collective bargaining obligation.
     At the crux of the complaint is whether the VA Secretary has the authority under 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.'”
     Secretary McDonald issued a decision finding that the union’s demands to bargain were moot 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.
     Judge Contreras found McDonald’s decision in violation of the Administrative Procedure Act, writing that the staffing shortage did not leave the medical center unable to meet with and informally agree with the union on the majority of its proposals.
     “Upon review of the administrative record and applicable authorities, the court concludes that because the §7422 decision fails to reflect ‘reasoned decision-making,’ it is arbitrary and capricious and deserving of no deference.”
     “The VA’s attorneys attempt to save the §7422 decision by explaining that §7422 authorizes the agency to refuse to engage in collective bargaining whenever an emergency situation implicating direct patient care arises,” Contreras wrote in his 21-page ruling. “But nowhere does the §7422 decision invoke any such emergency situation rule, and ‘lawyers’ post-hoc rationalizations’ have no place in the court’s review under the APA.”
     Contreras remanded the case back to McDonald, who “will be free to articulate his preferred decisional rule, drawing upon the text of §7422, the 2010 Decision Document, relevant precedents, or applicable policy arguments, among other sources.”

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