40:0290(30)CA - - VA Medical Center, San Francisco, CA and Karen O'Rourke - - 1991 FLRAdec CA - - v40 p290



[ v40 p290 ]
40:0290(30)CA
The decision of the Authority follows:


40 FLRA No. 30

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

VETERANS ADMINISTRATION MEDICAL CENTER

SAN FRANCISCO, CALIFORNIA

(Respondent)

and

KAREN O'ROURKE

(Charging Party)

9-CA-80315

9-CA-80473

DECISION AND ORDER ON INTERLOCUTORY APPEAL

April 19, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

These consolidated cases are before the Authority pursuant to the Authority's Order granting the Respondent's request, in which the General Counsel joined, for special permission to appeal an Administrative Law Judge's denial of the Respondent's motion for summary judgment in Case No. 9-CA-80473.(1) Pursuant to the Authority's order, the Respondent and the General Counsel filed briefs.

For the following reasons, we conclude that the Respondent's motion for summary judgment must be granted in part. We will dismiss part of the complaint in Case No. 9-CA-80473 and remand the remaining portions of that complaint, as well as the complaint in Case No. 9-CA-80315, to the Judge for proceedings consistent with this decision.

II. Facts

In August 1987, the Charging Party was appointed by the Respondent under the provisions of 38 U.S.C. § 4104 as a staff registered nurse. The appointment was subject to a 2-year probationary period.

On April 27, 1988, the Charging Party filed an unfair labor practice charge (Case No. 9-CA-80315) alleging that the Respondent violated the Statute by (1) interrogating an employee about efforts to organize a labor organization, and (2) telling an employee that union organizational material could not be distributed at the Respondent's facility.(2)

On June 15, the Charging Party received a proficiency report, prepared by the Head Nurse of the Intensive Care Unit, rating the Charging Party's performance as a staff registered nurse as unsatisfactory. The Head Nurse recommended that the Charging Party's probationary period not be continued and that a Nurse Professional Standards Board (NPSB) consider her termination. The Chief of Nursing Service concurred in the recommendation. On July 14, the NPSB convened to review the Charging Party's professional record. The NPSB found that the Charging Party's performance was unsatisfactory and did not recommend her retention in a probationary status.

On July 15, the complaint was issued in Case No. 9-CA-80315, alleging that the Respondent violated section 7116(a)(1) of the Statute by interrogating an employee about efforts to organize a labor organization and by promulgating an overly broad no-solicitation, no-distribution rule.

By letter dated July 22, the NPSB recommended that the Respondent's Chief Medical Director take action to remove the Charging Party from her position for failing to perform satisfactorily during her probationary period. On July 26, the Charging Party filed a second unfair labor practice charge (Case No. 9-CA-80473) alleging, in part, that the NPSB's action was based on consideration of the Charging Party's activities protected by section 7102 of the Statute. The charge alleged that the NPSB met and terminated the Charging Party's employment on July 14.

By letter to the Charging Party dated August 11, the Medical Center Director stated that the Charging Party had been absent without leave (AWOL) for all scheduled duty days since July 14. The letter stated that if a satisfactory explanation of the absence was not received by August 24, a second NPSB would be convened to determine whether the Charging Party should be recommended for separation on the ground of abandonment of position. The Charging Party did not respond to the letter and, on August 25, the NPSB convened, determined that the Charging Party had abandoned her position, and recommended her removal on that basis. By letter dated August 25, the Medical Center Director notified the Charging Party that she had been removed from her position, effective that date, because she had abandoned her position.

On February 28, 1989, the Charging Party amended the charge in Case No. 9-CA-80473 to include, as relevant here, the allegation that the Respondent removed her from her position because she had engaged in activities protected by the Statute, including filing an unfair labor practice charge with the Authority. On that same date, a complaint issued in that case alleging that the Respondent's actions were based on consideration of the Charging Party's protected activities and, as such, violated section 7116(a)(1) and (2) of the Statute. Subsequently, the two complaints now before us were consolidated by the Regional Director.

III. The Motion for Summary Judgment

The Respondent filed a motion for summary judgment in Case No. 9-CA-80473 with the Chief Administrative Law Judge. In support of its motion, the Respondent argued first that, as the Charging Party was appointed to and separated from her position under the provisions of title 38 of the United States Code, the Authority lacked jurisdiction to resolve the complaint involving her separation. The Respondent argued also that as the separation was effected on August 25, 1988, the allegations as to the separation in the amended charge filed on February 28, 1989, were not timely.

The General Counsel opposed the Respondent's motion for summary judgment, arguing that the Charging Party's status as an employee appointed under the provisions of title 38 did not deprive her of rights protected by section 7102 of the Statute. The General Counsel argued further that the amended charge in Case No. 9-CA-80473 was timely filed because it merely corrected the incorrect alleged date of termination contained in the original charge.

The Judge, who was referred the motion by the Chief Administrative Law Judge, denied the motion. The Judge concluded that as Case No. 9-CA-80473 involved allegations of interference with and discrimination based on consideration of rights protected by section 7102 of the Statute, the Respondent had not demonstrated that the Authority lacked jurisdiction over the complaint. The Judge concluded further that genuine issues of material fact existed with regard to the timeliness of the amended charge and denied the motion for summary judgment on that basis also.

Subsequently, the Respondent filed a request with the Authority for permission to appeal the Judge's denial of its motion for summary judgment. The Respondent argued that the Authority lacked jurisdiction over Case No. 9-CA-80473, and asserted that as the issue was of paramount importance to the Respondent and the Authority, it should be resolved before a hearing on the merits of the case. The General Counsel filed a motion to join the Respondent's request. The Authority granted the parties' request and provided them an opportunity to file briefs, and responses to the briefs, on the issue of the Authority's jurisdiction. The Respondent and the General Counsel filed briefs and the General Counsel filed a response to the Respondent's brief.(3)

IV. Positions of the Parties

A. The Respondent

The Respondent argues, based on Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) (Colorado Nurses) and American Federation of Government Employees v. FLRA, 850 F.2d 782 (D.C. Cir. 1988), that the Authority "lacks jurisdiction over matters involving working conditions of title 38 employees . . . ." Respondent's Brief at 3. The Respondent asserts that although the Department of Veterans Affairs' (Agency's) "exclusive authority over working conditions does not divest FLRA of jurisdiction to determine [unfair labor practice complaints] involving title 38 health care professionals[,]" the Authority may not "substantively review VA's determination that the employee engaged in misconduct or that his/her performance is deficient." Id. at 4.(4)

B. The General Counsel

The General Counsel argues that the Respondent's reliance on Colorado Nurses is misplaced. According to the General Counsel, this case does not involve bargaining rights or rights obtained during the bargaining process. Instead, the General Counsel asserts that the case "involves rights protected by section 7116(a)(1)[,] (2) [and] (4) of the Statute, . . . the right to engage in union organizing and the right to file an unfair labor practice charge without fear of threat or reprisal." Attachment to General Counsel's Brief (Opposition to Motion for Summary Judgment at 2).

In its response to the Respondent's brief, the General Counsel asserts that there is no "rational basis" for concluding that the Authority may not inquire "into the legitimacy and adequacy of Respondent's grounds for terminating [the Charging Party's] employment." Response at 2. The General Counsel argues that, consistent with established precedent in similar cases, the Respondent must demonstrate by a preponderance of the evidence that it would have removed the Charging Party from her position even in the absence of consideration of protected activity.

V. Analysis and Conclusions

Section 7102 of the Statute provides, in pertinent part:

Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right--

(1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and

(2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this Chapter.

It is clear, and not contested by the Respondent, that the Charging Party is an "employee," within the meaning of section 7102. See 5 U.S.C. § 7103(a)(2)(A), defining "employee," with exceptions not relevant here, as an individual "employed in an agency[.]" It is also clear, however, that as a professional medical employee appointed pursuant to 38 U.S.C. § 4104 (5), the Charging Party does not have a right to bargain collectively, through representatives chosen by employees under the Statute, over conditions of employment. See Colorado Nurses, 851 F.2d at 1491 (court held that, pursuant to 38 U.S.C. § 4108, Congress granted the Secretary of Veterans Affairs "exclusive authority to determine the working conditions" of professional medical employees).(6) See also American Federation of Government Employees, Local 3884 and U.S. Department of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, 34 FLRA 199, 201-02 (1990), petition for review filed sub nom. American Federation of Government Employees, Local 3884 v. FLRA, No. 90-1379 (8th Cir. Mar. 9, 1990). Compare U.S. Department of Veterans Affairs, Medical Center, Danville, Illinois and American Federation of Government Employees, Local 1963, 34 FLRA 131, 134-36 (1990), aff'd mem. sub nom. American Federation of Government Employees, Local 1963 v. FLRA, No. 90-2080 (C.D. Ill. Aug. 14, 1990) (Medical Center, Danville) (Secretary's authority to establish working conditions of such employees is not subject to negotiated grievance procedures, including arbitration, under section 7121 of the Statute); U.S. Department of Veterans Affairs, Washington, D.C. and U.S. Department of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, 34 FLRA 182 (1990), petition for review filed sub nom. American Federation of Government Employees v. FLRA, No. 90-1380 (8th Cir. Mar. 9, 1990) (union is not entitled under section 7114(b)(4) of the Statute to information necessary to process grievances involving working conditions of professional medical employees).

Consistent with the foregoing, the Charging Party is not entitled to exercise the right, under section 7102(2) of the Statute, to "engage in collective bargaining with respect to conditions of employment through representatives chosen by employees . . . ." We have no basis on which to conclude, however, and it is not asserted, that the absence of rights under section 7102(2) affects the other rights encompassed by section 7102. Accordingly, we hold, as relevant here, that the Charging Party has the right to form, join, or assist a labor organization without fear of penalty or reprisal under section 7102 of the Statute.

Unlawful interference by the Respondent with the Charging Party's right to form, join, or assist a labor organization without fear of penalty or reprisal would constitute an unfair labor practice under section 7116(a)(1) of the Statute. For example, Equal Employment Opportunity Commission, 24 FLRA 851, 855 (1986), aff'd as to other matters sub nom. Martinez v. FLRA, 833 F.2d 1051 (D.C. Cir. 1987). Moreover, unlawful discrimination against the Charging Party on the basis of her exercise of rights under section 7102 would constitute a violation of section 7116(a)(2) of the Statute. For example, Letterkenny Army Depot, 35 FLRA 113, 117-26 (1990) (Letterkenny).

The Respondent asserted in its motion for summary judgment that the Authority lacked jurisdiction over Case No. 9-CA-80473 because of the Charging Party's status as a professional medical employee. Motion for Summary Judgment at 2. The Respondent has abandoned that claim, however. In particular, the Respondent now asserts that the Respondent's "exclusive authority over working conditions does not divest FLRA of jurisdiction to determine [unfair labor practice complaints] involving title 38 health care professionals." Respondent's Brief at 4.

Although this matter does not now appear to be in dispute, we confirm that as the Charging Party is covered by and may exercise rights pursuant to section 7102 of the Statute, and as interference with or discrimination based on the exercise of those rights constitutes an unfair labor practice under section 7116(a) of the Statute, the Authority has statutory jurisdiction to resolve the consolidated unfair labor practice complaints in this case. Stated simply, as conceded by the Respondent, the Charging Party's status as a professional medical employee subject to title 38 of the United States Code does not deprive the Authority of jurisdiction to resolve complaints alleging violations of section 7116(a) of the Statute.

The complaint in Case No. 9-CA-80473 alleges that the Respondent violated section 7116(a)(1) and (2) of the Statute by, among other things, separating the Charging Party from her position as a staff registered nurse in reprisal for her exercise of rights protected by section 7102 to form, join, or assist a labor organization. In other cases alleging such violations, the General Counsel must establish that the employee against whom the alleged discriminatory action was taken was engaged in protected activity and that consideration of such activity was a motivating factor in the respondent's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. Letterkenny, 35 FLRA at 118. If the General Counsel makes this required prima facie showing, the respondent may seek to establish, by a preponderance of the evidence, the affirmative defense that there was a legitimate justification for its action and that the same action would have been taken even in the absence of the consideration of protected activity. Id. at 123.

In this case, however, we are unable to apply the framework set forth in Letterkenny for determining whether the Respondent violated section 7116(a)(1) and (2) by separating the Charging Party. We find, instead, that as the Respondent has exclusive authority under title 38 to determine to separate the Charging Party, the Letterkenny framework does not apply and, as a matter of law, the Respondent's motion for summary judgment must be granted insofar as it relates to the allegations in Case No. 9-CA-80473 regarding the separation of the Charging Party.

The Charging Party was separated, during her 2-year probationary period, by the Respondent's Medical Center Director on the grounds that she had abandoned her position. The Medical Center Director's decision was based on a recommendation of the Nurse Professional Standards Board. The NPSB is established pursuant to 38 U.S.C. § 4106, which provides, in relevant part:

(a) Appointments of . . . nurses shall be made only after qualifications have been satisfactorily established in accordance with regulations prescribed by the Administrator, without regard to civil-service requirements.

(b) Such appointments . . . shall be for a probationary period of two years and the record of each person serving under such appointment in the . . . Nursing Service[] shall be reviewed from time to time by a board, appointed in accordance with regulations of the Administrator, and if said board shall find such person not fully qualified and satisfactory such person shall be separated from the service.

The regulations, referred to in 38 U.S.C. § 4106(b), pursuant to which the NPSB's action in this case were taken, are contained in Department of Medicine and Surgery (DM&S) Supplement MP-5, Part II, Chapter 9, Paragraph 9.10, entitled "Abandonment of Position." Attachment to Respondent's Motion for Summary Judgment. Paragraph 9.10 sets forth the procedures applicable to actions proposed as a result of alleged abandonment of position and provides for the convening of a Professional Standards Board to review such actions. Paragraph 9.10(b) provides that cases involving probationary employees will be processed by the Board in accordance with regulations contained in DM&S Supplement MP-5, Part II, Chapter 4, entitled "Probationary Period." Attachment to Respondent's Motion for Summary Judgment. Those regulations similarly set forth procedures governing Board deliberations and recommendations. In particular, a recommendation that an employee be separated during his or her probationary period is transmitted to the Medical Center Director who, under MP-5, Part II, Chapter 9, Paragraph 9.13(b), has authority to approve such recommendation. As noted above, 38 U.S.C. § 4106(b) provides that if a Board finds that an employee is "not fully qualified and satisfactory such person shall be separated from the service."

It is clear and undisputed that the Charging Party's separation for abandonment of her position was effected pursuant to the foregoing statutory and regulatory provisions. Further, although no violations of these provisions are alleged in this case, it is clear also that any such allegations would not be reviewable pursuant to grievance and arbitration procedures negotiated under the Statute. See Medical Center, Danville, 34 FLRA at 134. Indeed, apart from the Agency's "unfettered" discretion to issue regulations concerning general working conditions, Colorado Nurses, 751 F.2d at 1492, the Authority has long held that the Agency has exclusive authority to make determinations regarding alleged professional misconduct or incompetence. See, for example, Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Minneapolis, Minnesota, 15 FLRA 948, 952 (1984). See also Veterans Administration Medical Center, Northport, New York v. FLRA, 732 F.2d 1128 (2d Cir. 1984) (VA, Northport); Veterans Administration Medical Center, Minneapolis, Minnesota v. FLRA, 705 F.2d 953 (8th Cir. 1983) (VA, Minneapolis). (7)

Although previous decisions regarding the Agency's authority to make determinations regarding professional misconduct or incompetence addressed 38 U.S.C. § 4110, which is not involved in this case, we have no basis on which to conclude that the Agency's authority to make determinations regarding the separation of probationary employees under 38 U.S.C. § 4106 should be treated any differently than the Agency's authority under section 4110. Therefore, consistent with the Agency's authority to issue regulations regarding working conditions under 38 U.S.C. § 4108 as well as its authority to take action resulting from recommendations of disciplinary boards established under 38 U.S.C. § 4110, we conclude that the Agency's authority to separate, or take other actions affecting the employment status of, probationary employees under 38 U.S.C. § 4106 is exclusive.

As the Agency's and Respondent's authority under 38 U.S.C. § 4106 to make determinations regarding the employment status of probationary employees is exclusive, we conclude that final determinations made pursuant to that authority are not substantively reviewable in an unfair labor practice proceeding. To hold otherwise, in our view, would be inconsistent with Congress' intent "to grant the Administrator exclusive authority to determine the working conditions of DM&S employees." Colorado Nurses, 851 F.2d at 1491. See also VA, Minneapolis, 705 F.2d at 956 (court held 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.").

Based on the foregoing, we hold that, in resolving unfair labor practice complaints alleging violations of section 7116(a)(2) of the Statute involving professional medical employees of the Department of Veterans Affairs, a respondent's asserted lawful reasons for taking the allegedly unlawful action must be evaluated with due regard for the Agency's exclusive authority to determine working conditions and make decisions regarding inaptitude, inefficiency, and misconduct under title 38. To the extent that a respondent asserts a lawful reason for taking a disputed action, and that reason is consistent with a final determination made pursuant to the exercise of the Agency's exclusive authority under title 38, review of such action may be sought only pursuant to the procedures, if any, set forth in title 38 and/or Agency regulations issued pursuant to title 38. A final determination made pursuant to such exclusive authority will not be substantively reviewable in an unfair labor practice proceeding.

In Case No. 9-CA-80473, the Respondent asserts a lawful reason for separating the Charging Party from her position, the Respondent's separation action was taken pursuant to its exclusive authority under 38 U.S.C. § 4106, and the determination is final. As such, the Respondent's determination to separate the Charging Party for abandonment of her position is not substantively reviewable in this unfair labor practice proceeding. As the Respondent's determination to separate the Charging Party is not substantively reviewable, the Letterkenny framework, requiring a determination as to whether a respondent has established by a preponderance of the evidence a legitimate justification for its action, does not apply. Stated otherwise, the Respondent has established a lawful reason for separating the Charging Party from her position as a staff registered nurse. As such, it would be meaningless to determine whether, for example, the General Counsel established a prima facie case that the Respondent violated the Statute. Even if the General Counsel established a prima facie case, the General Counsel could not, as a matter of law, prove the allegations in the complaint by a preponderance of the evidence. Accordingly, to the extent that the complaint in Case No. 9-CA-80473 encompasses the Charging Party's separation, the complaint must be dismissed.(8)  

Although the portion of the complaint in Case No. 9-CA-80473 challenging the Respondent's separation of the Charging Party must be dismissed, other allegations in the complaint may properly be adjudicated. In particular, portions of the complaint in Case No. 9-CA-80473 allege that the Respondent violated the Statute by making certain statements to the Charging Party. Similarly, the complaint in Case No. 9-CA-80315 alleges that the Respondent violated the Statute by impermissibly interrogating an employee and by promulgating an allegedly improper no-solicitation, no-distribution rule. No reason is asserted, or otherwise apparent to us, that these allegations in the two complaints may not be processed further. We will, therefore, remand these aspects of the complaints to the Administrative Law Judge for action consistent with this decision.

In sum, we conclude that the Charging Party, and other professional medical employees, are entitled to exercise rights pursuant to section 7102 of the Statute, including the right to form, join, or assist a labor organization without fear of penalty or reprisal. Unlawful interference with such rights constitutes a violation of section 7116(a)(1) and, in certain circumstances, section 7116(a)(2) of the Statute. The Authority has, and will exercise, statutory jurisdiction to resolve complaints alleging such violations.

In resolving such complaints, however, the Agency's exclusive authority to determine working conditions and make decisions regarding inaptitude, inefficient, and misconduct under title 38 must be observed. If as here, a respondent asserts a lawful reason for a disputed action, and such assertion is consistent with action taken pursuant to its exclusive authority under title 38 of the United States Code and is final, the determination made pursuant to that authority is not substantively reviewable in an unfair labor practice proceeding. If, however, a respondent does not make such assertion, the respondent will be found to have violated the Statute.(9)

VI. Order

The portions of the complaint in Case No. 9-CA-80473 alleging that the Respondent violated section 7116(a)(1) and (2) of the Statute by separating the Charging Party from her position as a staff registered nurse are dismissed. The r