48:0787(83)CA - - VA Medical Center, Jackson, MS and NFFE, Local 589 - - 1993 FLRAdec CA - - v48 p787



[ v48 p787 ]
48:0787(83)CA
The decision of the Authority follows:


48 FLRA No. 83

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF VETERANS AFFAIRS

VETERANS AFFAIRS MEDICAL CENTER

JACKSON, MISSISSIPPI

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES,

LOCAL 589

(Charging Party/Union)

4-CA-10814

4-CA-10816

_____

DECISION AND ORDER

October 29, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority in accordance with section 2429.2 of the Authority's Rules and Regulations based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel, Respondent, and Charging Party filed briefs with the Authority.

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to allow a Union representative to speak or otherwise participate in two separate meetings with two probationary, bargaining unit employees. The complaint further alleges that the Respondent's actions constituted a failure to comply with section 7114(a)(2)(B) of the Statute (section 7114(a)(2)(B)).(1) According to the complaint, the purpose of each meeting was to conduct an examination into each employee's work record to determine whether the employees should be retained. For the following reasons, we find that the Respondent violated the Statute as alleged in the complaint.

II. Background

Professional medical employees, including registered nurses, are hired by the Respondent pursuant to 38 U.S.C.§ 7401(1), which provides generally for the appointment of those employees by the Secretary of the Department of Veterans Affairs (the Secretary). Medical professionals hired under this provision must serve a 2-year probationary period. See 38 U.S.C. § 7403(b)(1). Title 38 further provides that the records of employees appointed under section 7401(1) shall be reviewed periodically during the probationary period by a board, established by the Secretary, to determine if the employees are fully qualified and their performance is satisfactory. Employees must be separated if the board determines that they are not fully qualified and their performance is not satisfactory. See 38 U.S.C. § 7403(b)(2).

III. Facts

The Union is the exclusive representative of a unit of Respondent's employees who are hired pursuant to 38 U.S.C. § 7401(1).(2) Prior to the end of their probationary periods, the Respondent, in separate written notices, informed two registered nurses that a Nurses Professional Standards Board (NPSB) would conduct a summary review of specific aspects of their work records in accordance with 38 U.S.C. § 7403 and Agency regulation DM&S Supplement, MP-5, Part II, 4.05, which limits summary reviews to situations in which an employee's summary separation from the service may be justified. Each notice stated that the purpose of the review was to evaluate the employee's retention as a registered nurse. The notices further stated that, although appearance at the reviews was not mandatory, the employees could submit oral and/or written statements. Additionally, the notices indicated that the board would review all of the facts in each case, as well as information provided by persons who may be called by the NPSB to provide pertinent information. The notices also informed the employees that they could seek assistance in preparing their cases. Both employees notified the Respondent that they wished to have a Union steward represent them.

The Respondent allowed the designated Union representative to accompany each of the employees to her respective NPSB review, and permitted the Union steward to confer with the employee off the record. In one case, the Union representative was permitted, off the record, to make a brief statement in the employee's defense. However, the Respondent refused to allow the Union steward to participate in the proceedings while on the record. At each review, the employee was asked to make an oral statement to the board concerning the charges against her. One employee was excused from the proceeding after making her statement, while the other was questioned by the board members concerning the circumstances relating to the charges against her. The information elicited during the taped proceedings was summarized and forwarded to the Medical Center director, along with the NPSB recommendations that the Respondent terminate the employees during their probationary periods. The director accepted the board's recommendations.

IV. Positions of the Parties

A. Respondent

The Respondent first contends that the Authority has no jurisdiction to determine whether the conduct alleged in the consolidated complaint violated section 7114(a)(2)(B). In this regard, the Respondent asserts that, pursuant to 38 U.S.C. § 7422(d)(3), the Respondent's Secretary has exclusive authority "to decide . . . whether a matter or question concerns or arises out of the peer review process." Respondent's Brief at 13. According to the Respondent, NPSB proceedings "are clearly matters concerning or arising out of professional conduct or competence within the meaning of . . . 38 U.S.C. § 7422[.]" Id. at 3. The Respondent further contends that "[i]n the instant case, the Secretary has determined that . . . union representation during a probationary period summary review proceeding is a matter which concerns or arises out of peer review . . . ." Id. at 13. According to the Respondent, the Secretary's determination is "not subject to review by any other agency." Id.

The Respondent also argues that section 7114(a)(2)(B) is inconsistent with title 38 and, pursuant to 38 U.S.C. § 7425(b),(4) "any . . . law pertaining to the civil service system which is inconsistent with the provisions of Chapter 74 of [t]itle 38," shall not take precedence over title 38. Id. at 11. In this connection, the Respondent maintains that 38 U.S.C. § 7403 mandates the separation of any person found, by a reviewing board, not fully qualified or whose performance is unsatisfactory for permanent appointment. The Respondent contends that "Congress did not specify the . . . procedures . . . to effectively implement this mandate," and, instead, gave the Secretary the "exclusive and unfettered discretion" to prescribe those procedures. Id. at 10. The Respondent asserts that it has prescribed applicable procedures in VA Manual MP-5, Part II, Chapter 4, and the Secretary has determined that title 38 employees have no entitlement to legal or other representation.(5)

The Respondent next argues that an NPSB review is not an examination in connection with an investigation, within the meaning of section 7114(a)(2)(B), and that a probationary separation is not a disciplinary action, within the meaning of that section. In this connection, the Respondent asserts that the separation of a title 38 probationary employee is an extension of the appointment process, in which peer review by a professional standards board is used to determine whether a probationary employee is suitable for a permanent appointment in the Agency. The Respondent further contends that, under Authority precedent, the Authority has no jurisdiction to substantively review the Respondent's final determinations regarding the professional misconduct or incompetence of probationary title 38 employees.

B. General Counsel

The General Counsel first argues that the Authority has jurisdiction to determine whether the conduct alleged in the complaint constituted a ULP. The General Counsel maintains that the Union's representation rights under section 7114(a)(2)(B) are separate from its collective bargaining rights, and therefore, the representation rights continue to be protected by the Statute, even though certain limitations have been placed on the Union's collective bargaining rights by title 38.

The General Counsel, in reliance on American Federation of Government Employees, Local 1941, AFL-CIO v. FLRA, 837 F.2d 495 (D.C. Cir. 1988) (AFGE v. FLRA), next argues that NPSB proceedings constitute an examination within the meaning of section 7114(a)(2)(B) of the Statute. The General Counsel contends that the purpose of the proceedings was to gather evidence to make a recommendation regarding the employees' continued employment and, that each employee had a reasonable belief that her employment would be terminated. The General Counsel further contends that the Union's representation rights under section 7114(a)(2)(B) include the right to take an "'active part'" in the employees' defense. G.C.'s brief at 17. The General Counsel asserts that the Respondent violated section 7116(a)(1) and (8) of the Statute (section 7116(a)(1) and (8)) by refusing to allow the Union representative to speak at, or otherwise participate in the board proceedings.

C. Union

The Union asserts that title 38 employees share the same "fundamental rights" under the Statute as other Federal employees, except, as relevant here, the right to bargain collectively about conditions of employment relating to professional conduct or competence or peer review. Union's Brief at 12. The Union further contends that no collective bargaining has occurred in this case, and therefore, 38 U.S.C. § 7422 does not bar the Authority from determining whether the Respondent's refusal to allow a union representative to participate in NPSB proceedings constituted a violation of section 7116(a)(1) and (8).

The Union also argues that representation rights under section 7114(a)(2)(B), are separate from collective bargaining rights. In this connection, the Union maintains that the representation rights created by section 7114(a)(2)(B) are a codification of the Supreme Court's decision in National Labor Relations Board v. Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten). The Union alleges that the Respondent's refusal to allow the representative to take an active part in the proceedings constitutes an unfair labor practice.

V. Analysis and Conclusions

At the outset, we reject the Respondent's contentions that the Authority does not have jurisdiction to determine whether the Respondent failed to comply with section 7114(a)(2)(B) and thereby violated section 7116(a)(1) and (8). In this connection, we find that the Respondent's reliance on 38 U.S.C. § 7422(d) is misplaced.

38 U.S.C. § 7422, entitled "Collective bargaining," states that "the authority of the Secretary to prescribe regulations . . . is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment." See 38 U.S.C. § 7422(a). See also, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 44 FLRA 356, 364 (1992) (VAMC, Newington), petition for review filed sub nom. U.S. Department of Veterans Affairs v. FLRA, No. 92-1213 (D.C. Cir. May 12, 1992). 38 U.S.C. § 7422(b) prohibits collective bargaining over matters or questions concerning or arising out of professional conduct or competence, or peer review, and section 7422(d) gives the Secretary the exclusive authority to determine, whether a matter arises out of the prohibited subjects. See, for example, Wisconsin Federation of Nurses and Health Professionals, Veterans Administration Staff Nurses Council, Local 5032 and U.S. Department of Veterans Affairs, Clement J. Zablocki Medical Center, Milwaukee, Wisconsin, 47 FLRA 910, 913-14 (1993).

However, the rights contained in section 7114(a)(2)(B) are not tied to collective bargaining. Indeed, there is no duty to bargain with any union representative who attends an investigatory interview. Weingarten, 420 U.S. at 259. The purpose of section 7114(a)(2)(B) is to create representational rights for Federal employees similar to the rights provided to private sector employees by the National Labor Relations Board (NLRB) in interpreting the National Labor Relations Act and the Supreme Court's decision in Weingarten. See 124 Cong. Rec. 29184 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, H.R. Comm. Print No. 7, 96th Cong., 1st Sess. 926 (1979) (Legislative History), where Congressman Udall explained that the purpose of the House bill provisions which led to the enactment of section 7114(a)(2)(B) was to reflect the Supreme Court's decision in Weingarten. See also United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 439 (1990) (Safford).

We also reject the Respondent's assertion that section 7114(a)(2)(B) is inconsistent with title 38. There is nothing in title 38 which indicates that employees are excluded from coverage of the representation rights under section 7114(a)(2)(B). Further, the Respondent has not demonstrated how section 7114(a)(2)(B) is inconsistent with its authority under 38 U.S.C. § 7403 to terminate probationary employees. In this connection, we agree with the Respondent that title 38 does not specify the procedures that a reviewing board must follow in reviewing and/or recommending the termination of a probationary employee who is not fully qualified and satisfactory. Nonetheless, the Respondent argues that, under title 38, it has exclusive authority to prescribe regulations governing the termination of its probationary employees.(6) However, nothing in title 38 supports the Respondent's assertion here. Thus, no conflict with title 38 exists.

In addition, the Respondent asserts that it has prescribed regulations governing probationary terminations and, in doing so, has determined that employees have no entitlement to union representation at professional standards board proceedings. To the extent that the Respondent is arguing that its Agency regulations take precedence over the representation rights accorded to Federal employees in section 7114(a)(2)(B), we disagree. An agency cannot, through internal regulation, unilaterally limit the rights granted to bargaining unit employees by the Statute. See U.S. Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service, National Office, 41 FLRA 402, 412 (1991).

Moreover, the representation rights created by section 7114(a)(2)(B) do not interfere with the Respondent's ability, pursuant to 38 U.S.C. § 7403, to summarily terminate probationary employees through peer reviews. The Supreme Court in Weingarten recognized that union representation at investigatory interviews or examinations could contribute to preventing unjust discipline. See Weingarten, 420 U.S. at 260-61. The Court stated that "[a] single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors." Id. at 262-63. The Court concluded that "[a] knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview." Id. at 263. Indeed, the Respondent acknowledges that "the principal function of the [professional standards] board . . . [in] reviewing . . . the employee during the probationary period is to obtain all of the facts . . . to arrive at a sound recommendation[]" regarding the employee's continued employment. Respondent's Brief at 7. Further, whether or not a union representative participates in the proceeding, management remains free to terminate the employment of a probationer for whatever reason it deems appropriate. In our view, therefore, the representation rights found in section 7114(a)(2)(B) are compatible with the purpose of the probationary peer reviews at issue in this case.

Finally, we turn to the Respondent's arguments that the NPSB review is not an examination within the meaning of section 7114(a)(2)(B), and that a probationary separation is not a disciplinary action within the meaning of section 7114(a)(2)(B). The General Counsel argues, and we agree, that the circumstances in this consolidated case are analogous to those presented in AFGE v. FLRA.

In AFGE v. FLRA, a physician requested union representation when he appeared before a credentials committee which was investigating information regarding his professional competence. The agency refused the request, and the union filed a ULP charge, alleging that the agency failed to comply with section 7114(a)(2)(B). On review of the charge, the Authority held that the Agency did not violate the Statute because the credentials committee hearing did not constitute an examination under section 7114(a)(2)(B).(7) The Authority determined that the committee hearing, which was convened to review an audit report concerning the physician's competence and to make recommendations based on that review, would take place whether or not the physician attended or participated in the hearing. The Authority held that the fact that the employee was given an option to attend and participate in the hearing did not alter the nature of the hearing and concluded that the hearing was not an examination.

On appeal, the court disagreed with the Authority and determined that the hearing constituted an examination for purposes of section 7114(a)(2)(B), and that union representation should have been allowed. The court noted that, as in Weingarten, the decisive factors governing the affected employee's right to union representation were that the employee desired union representation, and that, as stipulated by the parties, he reasonably believed he faced disciplinary sanctions. The court stated that the statutory right to have a representative present attached where the physician was willing to attend the hearing, and, "as a practical matter, he [had] no choice but to attend." AFGE v. FLRA, 837 F.2d at 499. The court determined that, in reality, the physician was "compelled to attend[]" the hearing if he wished to be heard on the issues relating to his continued career. Id.

We agree with the court's decision in AFGE v. FLRA. Like the physician in AFGE v. FLRA, the nurses were, in reality, compelled to attend the NPSB hearings if they wished to be heard. Although neither employee in this case was required to attend the hearings, one was informed that the board would review her clinical practice, and the other was informed that the board would review AWOL charges she incurred. Each was notified that she could appear before the board to "present [her] side of the case . . . ." Exhibits 1 and 10. Additionally, each employee was informed that she could request assistance "in preparing [her] case . . . ." Id. Each NPSB hearing was taped and transcribed, and, at the start of the proceedings, the board chairperson stated that the board would gather "as much factual information as possible, relevant to the alleged charge." Exhibits 5 and 14.

As part of that fact-gathering process, both employees provided oral statements to the board, and one employee was required to answer questions from the board members. Further, the results of each hearing were summarized and submitted to the Medical Center director, along with the board's recommendation regarding each employee's continued employment. In addition to the statements given by each employee, the board called additional witnesses, including supervisory officials, who provided information bearing on the circumstances under review. The record reflects that the affected employees' only opportunity to be heard on those issues was to attend the NPSB hearing.

In sum, the employees knew the specific reasons for the NPSB reviews, and they were informed that the information obtained during the reviews would have a direct impact on their employment. Further, each had requested Union representation. Based on those circumstances and consistent with the court's decision in AFGE v. FLRA, we find that the NPSB hearing constituted an examination in connection with an investigation within the meaning of section 7114(a)(2)(B). Moreover, we note in this connection that, in Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 32 FLRA 222, 231 (1988) (Charleston Naval Shipyard), we held that "the right of representation at an examination is not contingent on the subject matter of the examination" and we concluded that "Congress intended that the focus of the right under section 7114(a)(2)(B) be on the timing of the examination and, more particularly, the employee's need for protection due to the confrontational nature of the examination." Further, as we stated earlier, the Court in Weingarten noted that an employee who is confronted by an employer may be too fearful or inarticulate to raise extenuating factors, and a knowledgeable union representative could assist the employer by eliciting favorable facts and save time by getting to the bottom of the incident occasioning the interview. See Weingarten, 420 U.S. at 263.

Whether or not a probationary separation is part of the appointment process, we find that section 7114(a)(2)(B) applies. According to the Respondent, its regulations permit the imposition of an admonishment or reprimand during the probationary period, in lieu of separation, for an employee's "violation of . . . specified responsibility which is not serious enough to justify separation from service." Respondent's Brief at 11. The Respondent states that these "[p]enalty actions may be imposed as a result of a review of an employee's service by a [p]rofessional [s]tandards [b]oard . . . ." Id. Thus, the board can impose sanctions that traditionally are considered disciplinary in nature for performance-related, as well as conduct-related, matters. At a minimum, the employees were put on notice that their jobs were in jeopardy, although at the time of the examination the employees could not reasonably have anticipated the outcome of the NPSB review. In light of these factors, we agree with the General Counsel that the employees had a reasonable belief that disciplinary action may have occurred as a result of the hearings. In this regard, the intent of section 7114(a)(2)(B) is to afford protection to an employee who is confronted by his or her employer at an examination in connection with an investigation, when the employee reasonably believes that disciplinary action may result. See Charleston Naval Shipyard, 32 FLRA at 230.

We find no basis on which to conclude that the employees' status as probationers affects their statutory rights as Federal employees under section 7114(a)(2)(B). Nothing in the Statute or legislative history indicates that the rights afforded by section 7114(a)(2)(B) are based on an employee's tenure status. Moreover, probationary employees are not deprived of other statutory rights which are available to Federal employees, such as the right to challenge certain discriminatory actions, or the right to engage in union activity. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Detroit Teleservice Center, Detroit, Michigan, 42 FLRA 22, 54-55 (1991). Thus, we conclude that each of the employees was entitled to have the assistance of her Union representative, as requested.

As we have determined that the NPSB hearing is an examination covered by section 7114(a)(2)(B), we also agree with the General Counsel and the Charging Party that the Union must be allowed to actively participate in the examination in order for the Respondent to comply with that section. As we stated in Safford,(8) the "purposes underlying section 7114(a)(2)(B) and the benefits intended for the various parties cannot be achieved if the union representative is prohibited from taking an active role in assisting an employee in presenting facts at an examination." Safford, 35 FLRA at 440. Further, the Court in Weingarten stated that the role of the union representative at examinations "is to assist the employee, and [the representative] may attempt to clarify the facts or suggest other employees who may have knowledge of them." Weingarten, 420 U.S. at 260 (quoting brief of the National Labor Relations Board (NLRB)).

Here, although the Respondent permitted the Union representative to attend the NPSB reviews and to confer with each employee off the record, the Respondent would not allow the representative to either address the board while the proceedings were on the record or otherwise participate in the proceedings. As noted earlier, the information elicited during the taped proceedings was summarized and forwarded to the Medical Center director, along with the NPSB recommendation regarding the employees' continued employment. According to the record, the taped NPSB proceeding was the only opportunity for the employees to make a statement regarding the charges under investigation by the NPSB, and, consequently, was the only opportunity to present their position to the person who made the final decision regarding their continued employment. If the employees did not appear, or at least submit a written statement, there is no indication in either title 38 or the Respondent's regulations that any other avenue existed which would allow the employees to offer an explanation or proffer a defense to the charges against them.

We have long held that for the right to representation to be meaningful, the representative must have freedom to assist, and consult with, the affected employee. In our view, precluding the Union representative from speaking or otherwise participating on the record in the formal proceedings does not equate to meaningful representation. See, for example, U.S. Customs Service, Region VII, Los Angeles, California, 5 FLRA 297 (1981).

To summarize, the NPSB proceedings were the only opportunity for the employees to be heard with respect to the specific issues bearing on their employment. The Respondent refused to allow the designated Union representative to speak or otherwise participate on the record in assisting the employees when they presented their cases before the NPSB. According to the Respondent, the board's recommendation is based solely on the board's review of the records and facts of each case, and on the information furnished by each employee and others who may be called by the board. There is no indication in the record that any Union statements made off-the-record are, or would be, considered by the board. Consequently, we conclude that the Respondent violated section 7116(a)(1) and (8).

VI. Remedy

We have previously determined that the policies of the Statute are best effectuated by ordering agencies to repeat examinations and reconsider actions taken against employees when agencies have failed to comply with section 7114(a)(2)(B). Safford, 35 FLRA at 447-49. In our view, such a remedy is appropriate in this case.

The Respondent argues that its authority under 38 U.S.C. § 7403 to make final determinations regarding the employment of probationary employees is not substantively reviewable in an unfair labor practice proceeding. We agree, and our order to repeat the examination and reconsider its decision is not inconsistent with the Respondent's authority. We are not reviewing the Respondent's determination that the employees in question were unsuitable for permanent appointment. The Respondent is free to consider any additional information introduced by the Union representative as it chooses, and make whatever final determination it deems necessary.

As in other cases involving failure to comply with section 7114(a)(2)(B), this remedy will, among other things, protect employee rights and deter future violations of section 7114(a)(2)(B). See Safford, 35 FLRA at 448. Should the Respondent conclude that termination was unwarranted, the employees will be made whole for any losses suffered to the extent consistent with the Respondent's decision on reconsideration.

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of Veterans Affairs, Veterans Affairs Medical Center, Jackson, Mississippi, shall:

1. Cease and desist from:

        (a) Refusing to allow the participation of a union representative at peer review or professional standards board proceedings for probationary employees where such representation has been requested by the employee, and where the employee reasonably believes that the proceedings may result in disciplinary action against him or her.

        (b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

        (a) On request of the National Federation of Federal Employees, Local 589, and Ms. Linda Geoghegan and Ms. Betty J. Chamness, repeat the examinations that occurred on March 6, 1991 and May 8, 1991. In repeating the examinations, afford these employees their right to union representation by allowing the union representative to actively participate in the proceedings. After repeating the examinations, reconsider the actions taken against these employees. On reconsideration, as appropriate, make Ms. Geoghegan and/or Ms. Chamness whole for any losses suffered to the extent consistent with the decision on reconsideration.

        (b) Post at the Veterans Affairs Medical Center, Jackson, Mississippi, copies of the attached Notice on forms furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of the Veterans Affairs Medical Center, Jackson, Mississippi and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered by any other material.

        (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse