 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT




Argued November 9, 2012              Decided March 8, 2013

                       No. 11-5359

   AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
               AFL-CIO, LOCAL 3669,
                     APPELLEE

                             v.

ERIC K. SHINSEKI, SECRETARY FOR THE U.S. DEPARTMENT OF
        VETERANS AFFAIRS AND ROBERT A. PETZEL,
                      APPELLANTS



        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:08-cv-01722)



    Andrea McBarnette, Assistant U.S. Attorney, argued the
cause for appellants. With her on the briefs were Ronald C.
Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.

    Martin R. Cohen argued the cause and filed the brief for
appellee. David A. Borer entered an appearance.
                              2
   Before: HENDERSON and GRIFFITH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

     SENTELLE, Senior Circuit Judge:          The American
Federation of Government Employees, AFL-CIO, Local 3669
(“the Union”), asserted unfair labor practice charges against
the Department of Veterans Affairs (“VA”) on behalf of two
nurses at a VA medical center. The VA determined that the
charges were covered by the nurses’ statutory right of
“collective bargaining” but that they “ar[ose] out of . . .
professional conduct or competence” within the meaning of
38 U.S.C. § 7422(a)–(b). Therefore, the VA decided that the
charges were excluded from review by the Federal Labor
Relations Authority (“FLRA”). The Union brought suit,
alleging that the VA misread its statutory authority. The
district court granted summary judgment in the Union’s favor,
and the VA appeals. Because we agree with the district court
that the VA’s decision erroneously interpreted its statutory
authority, we affirm.

                     I.   BACKGROUND

   A. Statutory Framework

     The Federal Service Labor-Management Relations
Statute (“FSLMRS”) governs federal labor relations and is
codified in title 5, chapter 71 of the U.S. Code. See 5 U.S.C.
§§ 7101–35. FSLMRS gives federal employees various labor
rights, including the right “to form, join, or assist any labor
organization . . . freely and without fear of penalty or
reprisal,” the right “to act for a labor organization in the
capacity of a representative,” and the right “to engage in
                               3
collective bargaining.” Id. § 7102. To protect these rights,
FSLMRS authorizes the FLRA to adjudicate unfair labor
practice complaints based on rights protected by FSLMRS.
See id. §§ 7104, 7118.

     A separate statutory scheme governs the labor rights of
VA medical professionals, including “[r]egistered nurses.” 38
U.S.C. § 7421(b)(5); see id. §§ 7401–74. Under this scheme,
“[n]otwithstanding any law, Executive order, or regulation,
the Secretary shall prescribe by regulation the hours and
conditions of employment and leaves of absence of” VA
medical professionals. Id. § 7421(a). In Colorado Nurses
Ass’n v. FLRA, we held that this statute gave the VA
Secretary “unfettered discretion to issue regulations
concerning the working conditions of” VA medical
professionals and released the VA from any mandatory
collective bargaining obligation. 851 F.2d 1486, 1492 (D.C.
Cir. 1988). Following Colorado Nurses, Congress passed the
Department of Veterans Affairs Labor Relations Improvement
Act of 1991, Pub. L. No. 102-40, title II, § 202, 105 Stat. 187,
200 (“VA Act”), which provides in relevant part:

       Except as otherwise specifically provided in this title,
       the authority of the Secretary to prescribe regulations
       under section 7421 of this title is subject to the right of
       Federal employees to engage in collective bargaining
       with respect to conditions of employment through
       representatives chosen by them in accordance with
       chapter 71 of title 5 (relating to labor-management
       relations).

38 U.S.C. § 7422(a). Thus, Congress extended a right of
collective bargaining to VA medical professionals, but it
imposed three limitations on this bargaining right:
                               4
       Such collective bargaining (and any grievance
       procedures provided under a collective bargaining
       agreement) in the case of [VA medical professionals]
       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). The VA Act gives the Secretary of Veterans
Affairs exclusive authority to decide whether one of these
limitations applies, see id. § 7422(d), though the Secretary can
delegate this authority to the Under Secretary for Health, as
he did here. This appeal turns on the meaning of the phrase
“collective bargaining” in the VA Act.

   B. Factual and Procedural Background

     This case arose following a December 12, 2007,
arbitration hearing in which the Union challenged the
termination of a VA respiratory therapist. During the hearing,
a VA nurse named Anita Krehnke testified in support of VA
management. Two VA nurses and Union members, Barbara
Galle and Karen Rafter, then allegedly testified that
Krehnke’s performance as a nurse was substandard. A VA
Medical Center (“VAMC”) staff attorney reported to the
VAMC’s Nurse Executive, Christine Lund, that Galle and
Rafter so testified. After receiving this report, Lund began an
investigation into whether Galle and Rafter violated VAMC
policy by failing to notify VAMC management that another
nurse was providing substandard care. On December 18,
2007, Lund sent letters to Galle and Rafter advising them of
their VAMC and state law reporting obligations and asking to
discuss their allegations against Krehnke.          The letters
informed Galle and Rafter “that failure to report [substandard
                               5
practice] is grounds for disciplinary action.” Lund later met
with both Galle and Rafter and sent them a follow-up letter
stating that she had “no substantive findings” regarding their
allegations about Krehnke’s conduct.

     On January 10 and 11, 2008, the Union filed two unfair
labor practice charges (“ULPs”) with the FLRA against the
VAMC, alleging that Lund’s requests to meet and her
references to disciplinary action constituted reprisal for Galle
and Rafter’s testimony on behalf of the Union during the
arbitration hearing. VAMC responded to the ULPs, arguing
that it had a duty to investigate allegations of substandard
patient care. VAMC also requested that the VA Under
Secretary for Health issue a 38 U.S.C. § 7422(d)
determination that the ULPs arose out of “professional
conduct or competence” and were thus excluded from
collective bargaining under § 7422(b). In response, the Union
offered three arguments: First, the Union claimed that the VA
Under Secretary lacked legal authority to make a § 7422(d)
ruling here because the ULPs did not involve a “collective
bargaining” or “grievance procedure” issue within the
meaning of § 7422(b). Instead, the Union argued, the ULPs
were based on the employees’ “right to form, join, or assist
any labor organization.” 5 U.S.C. § 7102. Second, the Union
argued that the arbitration matter did not involve
“professional conduct or competence” under § 7422(b).
Third, the Union attacked the factual basis for VAMC’s
request by providing a declaration from one of the Union’s
attorneys stating that Galle and Rafter’s testimony was
focused on Krehnke’s demeanor and work ethic, not on her
competence.

    The VA Under Secretary issued a decision on September
2, 2008, holding that the ULPs arose out of professional
conduct or competence. After the Union brought suit seeking
                               6
reversal of the Under Secretary’s decision, the district court
vacated that decision, concluding that “the Under Secretary
failed to address [the] threshold legal issue” of whether he had
“authority to apply any § 7422(b) exclusion in the first place.”
American Federation of Government Employees Local 3669
v. Shinseki, 648 F. Supp. 2d 87, 93 (D.D.C. 2009) (internal
quotation mark and brackets omitted). The court remanded to
the VA “for a determination as to whether the charges filed by
the [Union] with the [FLRA] qualify as ‘collective
bargaining’ or ‘grievance procedures provided under a
collective bargaining agreement’ within the meaning of
§ 7422(b).” Id. at 94–95.

     On remand, the Under Secretary determined that the
ULPs both qualified as collective bargaining and arose out of
professional conduct or competence, except to the extent that
VAMC management’s letters to and meetings with Galle and
Rafter addressed issues other than their and Krehnke’s
professional conduct. FLRA lacks authority to review the
VA’s determination or to exercise jurisdiction over ULPs that
the Under Secretary excludes from collective bargaining
pursuant to § 7422(d). See, e.g., United States Department of
Veterans Affairs, Veterans Affairs Medical Center, Asheville,
N.C., 57 F.L.R.A. 681, 683 (Jan. 31, 2002). Therefore, the
Union filed a complaint in the district court under the
Administrative Procedure Act (“APA”) alleging, among other
things, that the Under Secretary’s determination was outside
the scope of his statutory authority. See 5 U.S.C. § 706(2)(C).
The VA moved for dismissal, and the Union and the VA filed
cross motions for summary judgment.

     The district court granted summary judgment in favor of
the Union on the § 706(2)(C) count of its complaint,
concluding that “the Under Secretary erred in determining
that the Union’s unfair labor practice charges relate to matters
                              7
of ‘collective bargaining’ as that term is used in the FSLMRS
and 38 U.S.C. § 7422.” American Federation of Government
Employees Local 3669 v. Shinseki, 821 F. Supp. 2d 337, 350
(D.D.C. 2011) (“Local 3669”). The VA Act only permits the
Under Secretary to exclude certain matters from “collective
bargaining (and any grievance procedures provided under a
collective bargaining agreement).” 38 U.S.C. § 7422(b). The
court explained that “alleged violations of the right to form,
join, or assist a union without reprisal do not necessarily
implicate the right to engage in collective bargaining,” and in
this case, the ULPs were not based on a failure to engage in
collective bargaining. Local 3669, 821 F. Supp. 2d at 349.
The court granted summary judgment in the Union’s favor,
holding that the Under Secretary “exceeded his statutory
authority” by excluding the ULPs under § 7422(b). Id. at
350–51. The VA appeals.

                       II.   DISCUSSION

     We review de novo a district court’s grant of summary
judgment. Sherley v. Sebelius, 689 F.3d 776, 780 (D.C. Cir.
2012). Summary judgment is appropriate if the moving party
“shows that there is no genuine dispute as to any material
fact” and that it “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Here, the relevant facts are not in
dispute. The APA requires us to “hold unlawful and set aside
agency action, findings, and conclusions found to be . . . in
excess of statutory jurisdiction, authority, or limitations, or
short of statutory right.” 5 U.S.C. § 706(2). The VA
contends that the Under Secretary’s decision excluding the
ULPs was within his statutory authority because the phrase
“collective bargaining” should be read broadly to encompass
all labor rights. Because we agree with the district court that
“collective bargaining” has a narrower meaning and does not
include the ULPs at issue, we affirm.
                               8

    As always, we begin with the text of the statute. See
Milner v. Department of the Navy, 131 S. Ct. 1259, 1264
(2011). Because we conclude that “Congress has directly
spoken to the precise question at issue” and that the text is
unambiguous, our analysis also ends with the text. Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842–43 (1984). 38 U.S.C. § 7422(a) provides:

       Except as otherwise specifically provided in this title,
       the authority of the Secretary to prescribe regulations
       under section 7421 of this title is subject to the right of
       Federal employees to engage in collective bargaining
       with respect to conditions of employment through
       representatives chosen by them in accordance with
       chapter 71 of title 5 (relating to labor-management
       relations) [i.e., the FSLMRS].

Chapter 71 of title 5, in turn, defines “collective bargaining”
as

       the performance of the mutual obligation of the
       representative of an agency and the exclusive
       representative of employees in an appropriate unit in
       the agency to meet at reasonable times and to consult
       and bargain in a good-faith effort to reach agreement
       with respect to the conditions of employment affecting
       such employees and to execute, if requested by either
       party, a written document incorporating any collective
       bargaining agreement reached.

5 U.S.C. § 7103(a)(12). We do not accord Chevron deference
to the VA’s interpretation of the FSLMRS because the VA
does not administer that statute. See Chevron, 467 U.S. at
842. The VA does not dispute that the ULPs at issue are
                               9
outside the scope of the FSLMRS’s definition of collective
bargaining: the Union’s filing of ULPs based on the right to
assist a labor union, 5 U.S.C. § 7102, does not fall within
FSLMRS’s right to bargain.

     Instead, the VA asserts that § 7422(a) does not import by
reference FSLMRS’s definition of collective bargaining.
Citing the “rule of the last antecedent,” the VA argues that “in
accordance with chapter 71 of title 5” only relates to how
employee representatives are chosen. See Barnhart v.
Thomas, 540 U.S. 20, 26 (2003) (“[A] limiting clause or
phrase . . . should ordinarily be read as modifying only the
noun or phrase that it immediately follows . . . .”). We note
initially that the VA failed to raise this argument until its
reply brief. Thus, the VA waived any challenge to the district
court’s determination that “§ 7422 incorporates the term
‘collective bargaining’ as that term is used in the FSLMRS.”
Local 3669, 821 F. Supp. 2d at 346; see Wayneview Care
Center v. NLRB, 664 F.3d 341, 352–53 (D.C. Cir. 2011).

     Even were this argument not waived, the last antecedent
rule “is not an absolute and can assuredly be overcome by
other indicia of meaning.” Barnhart, 540 U.S. at 26; see also
2A Norman J. Singer & J.D. Shambie Singer, STATUTES AND
STATUTORY CONSTRUCTION § 47.33, at 491 (7th new ed.
2007) (“Where the sense of the entire act requires that a
qualifying word or phrase apply to several preceding . . .
sections, the word or phrase will not be restricted to its
immediate antecedent.”). Here, the better interpretation is
that § 7422(a)’s reference to the FSLMRS modifies the entire
description of the collective bargaining process. First, this
interpretation explains why Congress referenced the entirety
of “chapter 71 of title 5,” most of which has nothing to do
with how employee representatives are chosen. Cf. Ratzlaf v.
United States, 510 U.S. 135, 140–41 (1994) (stating that
                                10
“[j]udges should hesitate” to treat statutory language
“essentially as surplusage — as words of no consequence”).

     Second, the parenthetical that immediately follows the
reference to the FSLMRS, “(relating to labor-management
relations),” likewise suggests that the reference should be read
to encompass the entire description of the collective
bargaining process. Third, Congress could have placed a
comma before “through representatives” if it wanted the
FSLMRS reference to qualify only how representatives are
chosen. Fourth and finally, our past cases have uniformly
treated § 7422(a)’s reference to the FSLMRS as modifying its
entire collective bargaining description.         See American
Federation of Government Employees Local 446 v.
Nicholson, 475 F.3d 341, 345 (D.C. Cir. 2007) (“38 U.S.C.
§ 7422(a) gives VA medical professionals the right to bargain
according to the rules set out in chapter 71 of title 5, subject to
limitations specifically provided in title 38.” (internal
quotation marks omitted)); National Federation of Federal
Employees Local 589 v. FLRA, 73 F.3d 390, 392–93 (D.C.
Cir. 1996) (“In 1991 Congress granted [VA medical
professionals] the right ‘to engage in collective bargaining’ in
accordance with chapter 71 of title 5.”).

     The VA points to no statute, dictionary, case, or other
source of meaning that defines collective bargaining as
encompassing all labor rights. Even if § 7422(a) had no
explicit reference to the FSLMRS, including its definition of
collective bargaining, we consider it highly unlikely that
Congress intended to create ambiguity in light of the clear
definition of collective bargaining elsewhere in labor law.
For example, the National Labor Relations Act defines
collective bargaining in a manner similar to the FSLMRS,
calling collective bargaining
                              11
       the performance of the mutual obligation of the
       employer and the representative of the employees to
       meet at reasonable times and confer in good faith with
       respect to wages, hours, and other terms and
       conditions of employment, or the negotiation of an
       agreement, or any question arising thereunder, and the
       execution of a written contract incorporating any
       agreement reached if requested by either party.

29 U.S.C. § 158(d); see 5 U.S.C. § 7103(a)(12). This
definition accords with the semantic meaning of “collective
bargaining”: “negotiation for the settlement of the terms of a
collective agreement between an employer . . . and a union,”
or “any union-management negotiation.” WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 445 (1981).

    We have consistently distinguished between the limited
collective bargaining right provided by § 7422 and labor
rights more broadly. In Local 589, we stated that “Congress
has gradually extended some of the protections in chapter 71
of title 5 to VA medical personnel, for example . . . by
granting all VA medical personnel limited collective
bargaining rights in 1991.” 73 F.3d at 395 (emphases added).
Similarly, in United States Department of Veterans Affairs,
Washington, D.C. v. FLRA, we differentiated the “right to
negotiate collective bargaining agreements, or to administer
such agreements through grievance arbitration procedures”
from “other rights protected by the FSLMRS, including ‘the
right to form, join, or assist a labor organization without fear
of penalty or reprisal.’” 1 F.3d 19, 21 & n.1 (D.C. Cir. 1993)
(quoting United States Department of Veterans Affairs,
Veterans Administration Medical Center, San Francisco,
Cal., 40 F.L.R.A. 290, 301 (April 19, 1991)); cf. FLRA v.
United States Department of the Treasury, Financial
Management Service, 884 F.2d 1446, 1449 (D.C. Cir. 1989)
                               12
(referring to “collective bargaining” as a “process” of
“contract negotiation”); id. at 1461 (Sentelle, J., concurring)
(distinguishing between “collective bargaining” and “other
representational activities”). Finally, the VA’s interpretation
does violence to the statutory text. It would be nonsensical to
read the phrase “engage in collective bargaining with respect
to conditions of employment,” 38 U.S.C. § 7422(a), as
“engage in labor rights with respect to conditions of
employment.”

        Given the clear definition of collective bargaining, we
hold that the district court correctly held that the VA Under
Secretary lacked authority under § 7422(d) to exclude these
ULPs from the FLRA’s jurisdiction. The VA acknowledges
— indeed, argues — that the phrase “collective bargaining”
should be read the same in § 7422(a) and § 7422(b). As we
have shown, “collective bargaining” in § 7422(a) has a
narrow definition focused on negotiating a labor agreement,
so “collective bargaining” in § 7422(b) has the same narrow
meaning. The VA also relies on legislative history, but that
reliance is fundamentally flawed. Legislative history cannot
create ambiguity in a clear statutory text. See Milner, 131 S.
Ct. at 1267.

        Congress’s intent is clear. “If the intent of Congress is
clear, that is the end of the matter.” Chevron, 467 U.S. at
842. A necessary predicate to holding that a § 7422(b)
exception to collective bargaining applies is that collective
bargaining is at issue. Filing ULPs based on an alleged
violation of the right to assist a labor organization does not
inherently implicate the right to bargain collectively.
Therefore, the Under Secretary’s decision excluding the ULPs
exceeded his statutory authority. See 5 U.S.C. § 706(2)(C).
                             13
        We emphasize the limited scope of our holding. We
are not ruling on the merits of the Union’s claim on behalf of
the two nurses. Our decision bears only on the Secretary’s
authority under 38 U.S.C. § 7422(d). Many issues remain
unresolved. For example, it remains possible that VA
medical professionals are not entitled to the full panoply of
labor rights protected by the FSLMRS, but like the district
court, we express no opinion on that issue. Local 3669, 821
F. Supp. 2d at 350 n.8; see also Local 589, 73 F.3d at 394
n.11 (“[W]e have no occasion to address whether VA medical
personnel would have title 5 rights in the absence of a
regulation.”). Our holding today neither prohibits the VA
from litigating this issue when the FLRA adjudicates these
ULPs nor prevents us from deciding the issue in an
appropriate case.

                     III. CONCLUSION

    For the foregoing reasons, the decision of the district
court is

                                                    Affirmed.
