Indian Health Service, Crow Hospital, Crow Agency, Montana (Respondent) and Marcella A. Knaub, Individual (Charging Party) and Millie F. Stewart, Individual (Charging Party)

[ v57 p109 ]

57 FLRA No. 32

INDIAN HEALTH SERVICE
CROW HOSPITAL
CROW AGENCY, MONTANA
(Respondent)

and

MARCELLA A. KNAUB, INDIVIDUAL
(Charging Party)

and

MILLIE F. STEWART, INDIVIDUAL
(Charging Party)

DE-CA-90532
DE-CA-90639

_____

DECISION AND ORDER

May 3, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1] 

I.     Statement of the Case

      This consolidated unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. No opposition to the exceptions was filed.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by giving two employees notices of termination and the option to resign because they each engaged in activity protected by the Statute. The Judge dismissed the complaint.

      Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision. We conclude that the Respondent's discharge of the two employees was because of their protected activity, in violation of § 7116(a)(1) and (2) of the Statute.

II.     Background and Facts

      The facts of this case are detailed extensively in the attached Judge's Decision and will be recited in [ v57 p110 ] abbreviated form, including pertinent facts found by the Judge. Two individual complainants, nurses Millie Stewart and Marcella Knaub, were given notices of termination during their probationary period of employment at the Indian Health Service Crow Hospital, the Respondent. The alleged reason was an infraction of medication administration rules.

A.     Policy and Practice Regarding Wasting Unused Medicines

      Agency policies require that after administration of a prescribed dose of a controlled substance to a patient, any amount remaining from a prepackaged minimum amount available from a computerized dispensing machine be disposed of, or "wasted." That means disposing of the medication in the presence of a witness and that records be kept. According to the policy, no partial doses are to be labeled and retained with intended later use. Judge's Decision at 3, 5.

      Common practice known to the Respondent, on the other hand, was for a nurse to obtain a unit dose of some controlled substance and dispense the unit dose to the patient in multiple partial doses throughout the shift. Id. at 5. On occasion, the Respondent's pharmacy even instructed nurses to save unused portions of controlled substances for later administration. Id. Further, a nurse appointed by supervisor Hayes, who recommended the personnel actions at issue, had instructed nurses that the practice of not wasting medication, and preserving doses for later use, including controlled substances, was an acceptable practice. Id. The Respondent was aware of this practice, "since Hayes, the clinical nurse supervisor, also worked alongside the other nurses as a working nurse." Id. In addition, the area chief pharmacy officer acknowledged that the failure to follow proper wasting procedures occurs in all facilities. Id.

      There was occasional passing of medications from one nurse provider to another, in addition to the common practice of single nurses preserving doses for later use. Id. at 6.

      The Respondent did not discipline any employees who committed procedural and medication errors prior to this case. Id. at 19. At least one of these incidents involved errors serious enough to have potentially fatal consequences. Id. at 20.

B.     Knaub and Stewart

      Nurses Knaub and Stewart were well known by management to be "active and aggressive" in pursuing protected Union activity. Judge's Decision at 22. Their exclusive representative is National Federation of Federal Employees, Local 224. There was considerable Union activity by them and on their behalf in September and October, 1998, as well as after the medication errors described below.

      On October 20-21, 1998, Knaub obtained a one-unit dose of a controlled substance for a patient, who was to receive one-half that amount. Knaub split the dose and placed the unused portion back in its original labeled package in the patient medication cart drawer. Knaub also initialed and attached to the patient's record a note, indicating that the half-tablet was available in the drawer.

      Stewart, working the next shift, found the note and the unused half-tablet dose in the drawer, still in the labeled packet. She confirmed that the dose of medication was due the patient, and administered it to the patient.

      On or about October 21, another nurse assigned to the ward prepared a Medication Error Report about these events, stating, incorrectly it turned out, that it appeared from the records that Stewart had not administered the prescribed drug to the patient.

      On December 1, Hayes met separately with the two nurses. Hayes gave Stewart a "procedural note", Judge's Decision at 12, referring to Stewart's administration of medicine that had been saved for her use by Knuab. Hayes told Stewart that the procedural note about the incident would not be made part of her employment file. Hayes did not suggest that Stewart would receive any kind of disciplinary action based on her administration of the drug on October 21. The note stated that "progressive discipline [would] follow if this type of error occurs." Id.

      In her meeting with Knaub, Hayes stated that Knaub would be on a performance improvement plan (PIP) for six months under the nurse educator. Like Stewart's note, Knaub's referred to progressive discipline, and also indicated that it would not be a permanent part of her record.

      During the next two weeks, among other things, there was grievance activity in connection with the December 1 events, and the Union held meetings with the Respondent concerning the employees, filed two information requests in connection with the matter and told the Respondent it was considering filing an unfair labor practice charge.

      On December 14, the Respondent gave termination notices to Stewart and Knaub, citing the medication procedure error on October 21 as the reason. The notice [ v57 p111 ] to Knaub indicated that she had failed to follow specific procedures in dispensing and administering the drug. Stewart's notice indicated that by accepting the drug from another nurse, instead of directly from the dispensing machine, she had failed to follow specific procedures, thus creating a patient safety issue, as she could not verify that the drug had not been tampered with or contaminated.

III.     Judge's Decision

      The Judge concluded that the General Counsel had established a prima facie case of § 7116(a)(2) violations under the standards of Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), which sets out the Authority's framework for resolving 7116(a)(2) allegations. The Judge stated that there was no dispute that Stewart and Knaub were involved in protected activity and that "their actions were well known to management." Judge's Decision at 22. The Judge also found that the General Counsel satisfied the threshold burden of showing that consideration of such activity was a motivating factor in Respondent's action. The Judge stated that this was shown by the closeness in time between the protected activity and management's decision. In addition, he based this finding on the fact that the two employees were "active and aggressive in pursuing their protected activity and could have been considered a thorn in management's side." Id. at 22.

      However, the Judge concluded that the Respondent established, through credited testimony, an affirmative defense by showing that it had a legitimate, nondiscriminatory reason for its actions, and that it would have taken the action even absent the protected activity. Therefore, the Judge dismissed the complaint.

      In reaching that conclusion, the Judge distinguished between the approved practice of ignoring wasting procedures by individual nurses, and the use by a nurse of unused medicine left by another nurse on the previous shift.

      The Judge stated that the termination notices were issued during the employees' probationary periods

based on the uncontested fact that Ms. Knaub relinquished possession of a controlled substance, which was no longer definitively identifiable, to Ms. Stewart, who accepted the substance and administered it to a patient. The mishandling of the controlled substance was contrary to established procedures and potentially detrimental to the patient and the institution. Although management was aware of other medication errors by nurses, a preponderance of the evidence does not establish that management had knowledge of and acquiesced in comparable violations (transference of controlled medication between providers) by other probationary nurses and singled out Ms. Knaub and Ms. Stewart for release because of their protected activity.

Judge's Decision at 22-23.

      Regarding another evidentiary issue, concerning subpoenaed material, the General Counsel had requested records about the dispensing machine to pursue an unfair labor practice charge after Knaub and Stewart were counseled. The General Counsel asserted that the records could help determine whether other errors such as those charged to the subject nurses had occurred, and what action the Respondent had taken in response. The Respondent declined on the basis of patient confidentiality, and when the Union asked for sanitized documents, management again declined.

      The Judge found that additional subpoenaed information should have been provided by the Respondent. He declined the General Counsel's requested sanction for such misconduct, however, which was to draw an adverse inference that additional information exists in support of the instant unfair labor practice charge. The Judge found that "additional" information exists to support single nurses maintaining possession of drugs during their shift. Nevertheless, he declined to infer that additional information exists regarding one nurse relinquishing possession of a controlled substance to another nurse on a different shift who then accepts the substance and administers it to a patient.

IV.     Exceptions

      The General Counsel excepts to the Judge's reliance on credited testimony without "specifically identify[ing] the existence of any credibility disputes, the particular witness testimony he had credited, or the basis upon which he had determined the respective credibility of the witnesses." Exceptions at 5. The General Counsel maintains that the Judge's Decision was based on his interpretation of the evidence and application of legal principles, rather than the resolution of any "decisive" credibility disputes. Id.

      Citing Dep't. of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 55 FLRA 1201, 1204 (2000) (Warner Robins), the General Counsel maintains that the Authority requires Judges to explain the basis for their credibility determinations, and that when considerations other than demeanor are implicated, "the Authority will review credibility issues based on a review of [ v57 p112 ] the record as a whole." Exceptions at 5. Therefore, the General Counsel requests that the Authority review the Judge's findings to the extent that they are based on credibility resolutions, "in view of [his] failure to state whether his findings were based on . . . demeanor." Id.

      The General Counsel asserts that management had no legitimate basis for its action. The General Counsel notes that management knew of the alleged wrong-doing no later than November 12, 1998, and the employees received a non-disciplinary counseling on December 1. Management's "procedural notes" stated: "Progressive discipline will occur if this type of error occurs again," and indicated that one of the employees was being placed on a PIP for medication administration for 6 months. Exceptions at 6 quoting General Counsel Exh. 27, Moreover, argues the General Counsel, the employees were told that the notes would not become a permanent part of their records. According to the General Counsel, two weeks later, on December 14, however, management "inexplicably" revived the matter and terminated the two employees. Id. at 7. The General Counsel attributes management's actions to "the continuing and unrelenting acts of protected activity" by the two, including:

aggressive Union representation on behalf of the employees, Union data requests, meetings between Union and management representatives concerning the employees, grievance activity, insistence on Union representation by Knaub, and threats of ULP's against management by the Union.

Id. The General Counsel concludes that retaliation for protected activity is the only possible explanation for management's decision "to shift" from counseling the employees to terminating them. Id.

      Although the Judge stated that the disciplining supervisor refrained from acting initially until she received further information, the General Counsel argues that there is "no explanation on the record concerning whether [the supervisor] actually received `further information', what this information might have been, or when [she might] have received it." Id. at 9.

      The General Counsel cites a variety of evidentiary matters to demonstrate its claim that the facts do not support the Respondent's defense. For example, the General Counsel asserts that, contrary to the Judge, the record indicates that the substance was "identifiable" when it was transferred. Exceptions at 10-11. The General Counsel contends that this undercuts part of the Respondent's justification for the termination, and establishes that the rationale was a pretext.

      The General Counsel emphasizes the Judge's finding that failing to waste excess medication was a common practice, and that the Respondent was aware of this practice. Moreover, the General Counsel asserts that not all instances involved a single nurse maintaining exclusive control and possession of the medication throughout the shift. Rather, the General Counsel argues, testimony established, through questioning pursued by the Judge, that even in cases where medications were saved and administered later by the same nurse, it was common practice to store unused portions of medication in medication drawers, which were not locked or secured. Consequently, according to the General Counsel, the potential hazards of storage by a lone nurse are indistinguishable from the those involved in transferring the substance from one nurse to another.

      The General Counsel also contests the Judge's finding that a preponderance of the evidence does not establish that management had knowledge of and acquiesced in comparable violations of transferring controlled medication between providers. The General Counsel asserts that the Respondent must have known about the instances of relaying controlled substances between nurses that were on the record because supervisory personnel worked side by side with the nurses.

      An additional example of medication errors, committed by a probationary employee, was dismissed by the Judge as not involving a controlled substance. The Judge stated that Percocet is not a controlled substance. To the contrary, the General Counsel argues, Percocet is a controlled substance. For authority, the General Counsel cites the Physician's Desk Reference. General Counsel's Exceptions at 17 n.17.

      Finally, the General Counsel excepts to the failure of the Judge to draw an adverse inference based on the Respondent's improper withholding of subpoenaed information. The General Counsel asserts that the improperly withheld information would show that controlled substances are transferred from one nurse to another for administration to patients, with management's knowledge and acquiescence. [ v57 p113 ]

V.     Analysis and Conclusions

      Under the Authority's analytical framework for resolving complaints of alleged discrimination in violation of § 7116(a)(2) of the Statute, the General Counsel has, at all times, the overall burden to establish by a preponderance of the evidence that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. Letterkenny, 35 FLRA at 118. See also Department of the Air Force, Warner Robins Air Logistics Center, Warner Robins Air Force Base, Georgia, 52 FLRA 602, 605 (1996) (Warner Robins), and Federal Emergency Management Agency, 52 FLRA 486, 490 n.2 (1996). As a threshold matter, the General Counsel must offer sufficient evidence on these two elements to withstand a motion to dismiss. Warner Robins, 52 FLRA at 605. However, satisfying this threshold burden establishes a violation of the Statute only if the respondent offers no evidence in its defense. Id. The respondent has the burden to establish, by a preponderance of the evidence, as an affirmative defense that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken even in the absence of protected activity. Id.

      In agreement with the Judge, we find that the General Counsel has established a prima facie case of § 7116(a)(2) violations under the standards of Letterkenny. Knaub and Stewart's protected activity clearly served as a motivating factor in management's decision to terminate them, for the reasons stated by the Judge.

      Contrary to the Judge, however, we are persuaded that the Respondent has not shown that it would have taken the same action even in the absence of the protected activity. Rather, we conclude that the medical error was not the real basis, but was a pretext. We rely on several factors in reaching this conclusion.

      First, we find that the Judge defined "comparable violations" too narrowly. Judge's Decision at 22. In particular, we conclude that "wasting" errors in both one-and two-nurse situations are relevant. [n2] In this regard, the record does not indicate that the Respondent's directives to ignore the excess medicine "wasting" policy were limited to "one-nurse" situations. In addition, although the Judge accepted the Respondent's assertion that most other instances of failing to waste unused portions of prepackaged medicines which it condoned were distinguishable because they involved a single nurse, we find them indistinguishable. The record discloses little or no difference between risks involved in one-nurse situations compared to two-nurse situations. And these risks were what allegedly made this instance a firing offense. Except when a single nurse would maintain exclusive possession and control of the extra dosages, which was not always the case in the instances cited by the Judge, the various risks attributed to the failure to waste extra medicines would be indistinguishable, whether handled by a single nurse or by two nurses. Although the Judge stated that the practice of not wasting medication, and preserving doses for later use "involves a single nurse maintaining exclusive control and possession of medication throughout the shift," Judge's Decision at 6, there is undisputed evidence to the contrary. For example, on one occasion a supervisory nurse discovered a partial dose of a controlled substance in a patient's drawer. Id. at 19. The record also contains evidence of numerous instances of nurses leaving partial doses of controlled substances in patients' medication drawers, Tr. 245, 262, or leaving them in other places such as the top of the medication chart, id., and these were common practices, Tr. 248. In each instance, the single nurse did not maintain control and possession of the excess doses, creating a risk of contamination or misidentification.

      Thus, many of the risks cited as a reason for distinguishing the instant two-nurse case from those where a single nurse failed to waste excess medicine actually were present in the cited one-nurse instances. Contamination of the substance, infection control, poison prevention or misidentification of medicines would be no more or less likely in the case of a single nurse carrying over dosages except when the nurse maintained complete and exclusive control, which the record shows did not always happen. In addition, there is unrefuted evidence that partially used containers of medication occasionally were passed from one nurse provider to another. For example, Nurse Olsen testified about passing [ v57 p114 ] controlled medication from one shift/nurse to another. Tr. 246, 254. Nurse Long testified about similar instances. Tr. 263. We note that the Judge contradicted his own statement, Judge's Decision at 5 n.3, that none of the examples cited by Olsen depicted a nurse passing controlled medication from one shift/nurse to another: "Nurse Olsen testified that she would `occasionally' pass a controlled substance . . . to the next shift." Judge's Decision at 6.

      Second, the parties stipulated that for the three years prior to this case there were no disciplinary or adverse actions, indeed no instances of personnel actions of any kind, for procedural or medication errors. Thus, whether or not errors were by single nurses, the Respondent took no action. The Respondent took severe action against these two employees allegedly for a single infraction, in contrast to condonation of numerous errors and policy violations. In fact, there is evidence of one probationary nurse who was not disciplined after at least two medication errors, one of which involved over-dosing a patient by administering a double dose of Percocet (which the Judge incorrectly stated is not a controlled substance) rather than the single dose prescribed. [n3] 

      Third, we find critical the timing of the discharges in relation to protected activity. In concluding that the General Counsel had established a prima facie case, the Judge relied on the closeness in time between the protected activity and the Respondent's decision to terminate the employees. This timing also indicates that the expressed reason for the discharges was pretextual. In this connection, we note considerable additional Union activity between the counseling sessions on December 1, when only training and PIPs were discussed, and the announcement two weeks later that both would be forced to resign. During the interim period there was grievance activity, meetings with management about these employees, and an information request based on the possibility of filing an unfair labor practice charge.

      Finally, in regard to the Judge's reliance on credibility, the Authority recently stated that Judges must explain the basis for their credibility determinations, and when considerations other than demeanor are implicated, "the Authority will review [credibility issues] based on the record as a whole." Warner Robins, 55 FLRA at 1204. In view of the entire record as discussed above, the Judge's unexplained determination to credit testimony by the Respondent that it had a legitimate justification does not withstand scrutiny. Repeated procedural and medication errors went unaddressed by the Respondent until after the protected activity of nurses Knaub and Stewart.

      This record clearly indicates disparate treatment that is unexplained other than as retaliation for the two nurses' protected activity, and both rebuts the Respondent's expressed, legitimate reason and establishes it as pretextual. The violation here involved discriminating against two employees--treating them differently--because of their protected activity. The fact that probationary employees can be terminated without cause does not permit the Respondent to terminate them in violation of the Statute. Good reason or even no reason at all would be permissible, so long as the reason is not illegal. [n4] But termination for reasons in violation of the Statute are unfair labor practices. The Respondent discharged the two probationary nurses on a pretext, when its real reason was to retaliate for their protected activity. As such, it violated § 7116(a)(1) and (2) by interfering with, restraining or coercing them in their exercise of protected rights, and it discouraged membership in a labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment. To remedy the violations we will order that they be offered retroactive reinstatement, be made whole, and have their records expunged of mention of the terminations, to the extent consistent with law and regulation. See U.S. Geological survey and Caribbean District Office, San Juan, Puerto Rico, 50 FLRA 548 (1995). [ v57 p115 ]

VI.     Order

      Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the Indian Health Service, Crow Hospital, Crow Agency, Montana, shall:

      1.     Cease and desist from:

           (a) Terminating, or forcing the resignation of, or discriminating against, Millie F. Stewart and Marcella Knaub, or any other unit employee, because the employee engaged in protected activity.

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

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

           (a) Rescind the resignations of Millie F. Stewart and Marcella Knaub and offer them an opportunity to transfer to their former or similar positions with the Indian Health Service Crow Hospital.

           (b) Make Millie F. Stewart and Marcella Knaub whole for any losses they incurred as a result of their terminations/forced resignations from the Crow Hospital by providing them with backpay, with interest and appropriate differentials, from December 14, 1998 until they were re-employed by the Indian Health Service, and providing them with all lost benefits and privileges, retroactive to December 14, 1998, consistent with applicable law and regulation.

           (c) Expunge from all Indian Health Service records mention of the terminations/forced resignations of Millie F. Stewart and Marcella Knaub, or the incidents that gave rise to their terminations/forced resignations.

           (d) Post at its facilities where bargaining unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Indian Health Service Crow Service Unit Director, 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 such notices are not altered, defaced, or covered by any other material.

           (e) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Denver Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Indian Health Service, Crow Hospital, Crow Agency, Montana, has violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by the Notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT terminate, or force the resignation of, or discriminate against, Millie F. Stewart and Marcella Knaub, or any other unit employee, because the employee engaged in activity protected by the Federal Service Labor-Management Relations Statute.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights assured them by the Statute.

WE WILL rescind the resignations of Millie F. Stewart and Marcella Knaub and offer them an opportunity to transfer to their former or similar positions with the Indian Health Service Crow Hospital.

WE WILL make Millie F. Stewart and Marcella Knaub whole for any losses they incurred as a result of their terminations/forced resignations from the Crow Hospital by providing them with backpay, with interest and appropriate differentials, from December 14, 1998 until they were re-employed by the Indian Health Service, and providing them with all lost benefits and privileges, retroactive to December 14, 1998, consistent with applicable law and regulation.

WE WILL expunge from all Indian Health Service records mention of the terminations/forced resignations of Millie F. Stewart and Marcella Knaub, or the incidents that gave rise to their terminations/forced resignations.

      ________________________
(Activity)

Dated:___________ By:______________________

      (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Denver Regional Office, Federal Labor Relations Authority, whose address is 1244 Speer Blvd., Suite 100, Denver, CO 80204, and whose phone number is (303) 844-5224. [ v57 p116 ]


Dissenting Opinion of Chairman Cabaniss:

      I respectfully dissent from my colleagues. Taken from any viewpoint, the facts of this case are problematic. The local management officials and bargaining unit employees involved appear to have consciously condoned, to at least some extent, the violation of agency-wide (if not government-wide, as suggested by the Judge's reference to Drug Enforcement Administration requirements) regulations regarding the control of medications. From an equities standpoint, the two probationary employees have legitimate grounds for complaint. On the other hand, there is the matter of condoning a medical practice by them that, as noted by the Judge in his decision at 6 (and not challenged by either side), "could impact on the contamination of the substance, infection control, poison prevention, ability to positively identify the substance, and the status of the Drug Enforcement Administration license issued to the facility." That no patient has been apparently harmed yet by this practice does not ameliorate the devastating potential of such conduct identified by the Judge.

      Given what appears to be the legal inability of local management to waive this "wasting" requirement, and its right to otherwise enforce this requirement (I note the General Counsel did not allege a § 7116(a)(5) violation), and given the probationary status of the employees, I would resolve the competing considerations by upholding the Judge's decision. However, I note expressly that the two employees involved are not the only individuals at fault, and I would hope that the Agency takes note of the fact that several other Agency personnel, including local managers and supervisors, have taken part in condoning conduct which could have disastrous consequences for those members of the public presenting themselves as patients at the medical facility.

      In adjudicating this case, I would also apply a comparison pool comprised of just probationary employees, rather than all employees. The rules applicable to each are different, at least as to the merits and degree of proof necessary to justify a termination action, matters that become relevant in assessing whether the presumption in Letterkenny has been rebutted. I also note that the General Counsel does not challenge the Agency's underlying ability to remove probationary employees for this conduct, but only asserts that such removals must not be effected in a disparate manner. Moreover, the General Counsel does not allege that the employer changed conditions of employment by relying on this conduct to effect a personnel action.

      Given that the General Counsel doesn't challenge the Agency's ability generally to take personnel actions based upon such misconduct in the absence of a violation of our Statute, the "disparate treatment" argument lacks merit. The General Counsel in effect asserts that since no one has been subjected to a personnel action for this same conduct in the past, doing so now constitutes disparate treatment. This argument amounts to nothing more than an allegation of a "past practice" of not removing employees for this conduct. That argument, however, is deflated by the General Counsel's failure to challenge the employer's ability, in the absence of a violation of the Statute, to terminate probationary employees for the same misconduct.

      In the present case, given the case-specific nature of removal actions for probationary employees or otherwise, especially where the removal involves the application of a regulatory matter that the agency is not privileged to waive, an allegation of disparate treatment is undercut by the lack of a companion allegation of an improper change to conditions of employment. Thus, and in spite of the significant equities the two employees here bring to this matter, I would affirm the Judge's decision.


File 1: Authority's Decision in 57 FLRA No. 32 and Opinion of Chairman Cabaniss
File 2: ALJ's Decision


Footnote # 1 for 57 FLRA No. 32 - Authority's Decision

   Chairman Cabaniss' dissent is attached.


Footnote # 2 for 57 FLRA No. 32 - Authority's Decision

   In view of this finding, it is unnecessary to pass on the Judge's failure to draw an adverse inference from the Respondent's improper failure to provide subpoenaed information regarding additional cases of unpunished sharing of unused medications between two nurses. However, we note that the Judge offered no rationale to explain why he found it "appropriate to find that `additional' information exists in support of nurses maintaining possession of controlled medication throughout their shift . . . but not that `additional' information exists of one nurse relinquishing possession of a controlled substance to another nurse on another shift," as here. Judge's Decision at 6 n.4. We also note that, even if the records would not have disclosed additional two-nurse errors, the additional information that the Judge inferred they would disclose about additional one-nurse errors would bolster the conclusion that the two probationary employees were treated discriminatorily.


Footnote # 3 for 57 FLRA No. 32 - Authority's Decision

   We take administrative notice of the Physician's Desk Reference, Family Guide to Prescription Drugs, pp. 481-82; Three Rivers Press, New York, New York (1999), cited by the General Counsel, that, contrary to the Judge, Percocet is a controlled substance.


Footnote # 4 for 57 FLRA No. 32 - Authority's Decision

   Contrary to the views of our dissenting colleague, we do not view the allegedly mandatory nature of the Drug Enforcement Administration requirements, regarding handling of a controlled substance, to be dispositive. It is the discriminatory and illegal enforcement of the regulation with which we are concerned. The General Counsel's prosecution of this matter as a discrimination case, instead of a failure to bargain case, does not affect our view. It is not uncommon in disparate treatment cases to acknowledge that an employer could legitimately take action on the asserted basis, if the action were not unlawfully aimed at a p