United States Department of Veterans Affairs, Veterans Affairs Medical Center, Asheville , North Carolina (Respondent) and American Federation of Government Employees, Local 446, AFL-CIO (Charging Party/Union)

[ v57 p681 ]

57 FLRA No. 137

UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS, VETERANS AFFAIRS
MEDICAL CENTER, ASHEVILLE
NORTH CAROLINA
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 446, AFL-CIO
(Charging Party/Union)

WA-CA-00547

_____

DECISION AND ORDER

January 31, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to the decision of the Administrative Law Judge (Judge) filed by the General Counsel (GC). The Respondent filed an opposition to the GC's exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to comply with an arbitrator's award. The Judge found that the Authority lacks jurisdiction over this matter, and he dismissed the complaint.

      Upon consideration of the Judge's decision, the GC's exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

II.     Background and Judge's Decision

      The Charging Party (Union) filed a grievance alleging that the Respondent failed to provide premium pay to certain nurses appointed under title 38 of the U.S. Code (title 38 nurses). When the grievance was unresolved, it was submitted to arbitration. The Arbitrator found that the Respondent violated the parties' agreement and directed the Respondent to provide premium pay. The Respondent filed exceptions to the award with the Authority, which were dismissed as untimely.

      Subsequently, the Respondent failed to comply with the Arbitrator's award, and the GC issued the unfair labor practice (ULP) complaint involved here. Before the Judge, the GC moved for summary judgment. The Respondent filed a response to the GC's motion and moved to dismiss the complaint. The Respondent argued that the Under Secretary for Health of the Veterans Administration (Under Secretary) made a determination under 38 U.S.C. § 7422(d) (§ 7422(d) determination) that the alleged ULP involved employee compensation. [n1]  To support its argument, the Respondent attached a letter (the Under Secretary's letter) signed by an individual "for" the Under Secretary. [n2]  March 5, 2001 Letter at 2. Subsequently, the Respondent provided the Judge with a letter (the confirming letter) signed by the Under Secretary, confirming that the signatory of the previous letter had authority to sign on the Under Secretary's behalf.

      The GC filed a "motion to deny consideration," in which it challenged the admissibility of both the Under Secretary's letter and the confirming letter. See GC Motion to Deny Consideration of the Memorandum Submitted by Respondent on March 30, 2001 at 1. The GC argued that both letters lacked sufficient authentication, and that the confirming letter was not timely submitted as a response to the GC's summary judgment motion. The Judge denied the motion, finding that the Under Secretary's letter was timely submitted and that the GC provided no basis for questioning the authenticity of the confirming letter.

      Reviewing the letters, the Judge found that, based on the Under Secretary's § 7422(d) determination, the Authority lacks jurisdiction over this matter. "Treating the Respondent's request to dismiss with supporting exhibits as a cross-motion for summary judgment, and considering all the pleadings and exhibits," the Judge found that there were no genuine issues of material fact and that the Respondent was entitled to summary judgment as a matter of law. Judge's Decision at 2. Accordingly, the Judge dismissed the complaint. [ v57 p682 ]

III.     Positions of the Parties

A.     GC's Exceptions

      The GC argues that, by admitting and considering the confirming letter, the Judge "effectively converted" the Respondent's motion to dismiss into a motion for summary judgment without giving the GC notice. Exceptions at 14 (citing Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687 (2nd Cir. 1990)). The GC also argues that the confirming letter was not timely filed. Further, the GC contends that the Judge improperly required the GC to prove that the Under Secretary's letter and confirming letter are inauthentic, rather than requiring the Respondent to prove their authenticity. While acknowledging that the Federal Rules of Evidence do not govern Authority proceedings, the GC maintains that "some elementary authentication of documents submitted in response to a motion for summary judgment should be required," especially where the documents would deprive employees of Statutory rights. Exceptions at 13. Citing Federal Rule of Evidence 901(a), the GC also maintains that the Under Secretary's letter had to be authenticated at the time it was submitted, not subsequently via the confirming letter. [n3]  According to the GC, the lack of authentication of the confirming letter is significant because if the Respondent's motion is treated as a motion for summary judgment, then the evidence must be interpreted in favor of the GC.

      With regard to the Authority's jurisdiction, the GC contends that the Authority should establish a principle that, in a ULP proceeding regarding failure to comply with a final and binding arbitration award, parties may not raise any arguments (including jurisdictional arguments) that could have been raised in exceptions to the arbitration award. The GC also contends that the Judge erred by finding that the Under Secretary made a binding § 7422(d) determination, because a § 7422(d) determination "must ultimately rest on a regulation prescribed by the Secretary that is contrary to the right under Statute [sic] at issue." Id. at 15. In support of its argument, the GC cites: Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Wash., D.C., 53 FLRA 822 (1997); Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Hampton, Va., 51 FLRA 84 (1996), aff'd on reconsideration, 51 FLRA 1741 (1996); and Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Jackson, Miss., 49 FLRA 701 (1994) (VAMC Jackson), aff'd sub nom. NFFE, Local 589 v. FLRA, 73 F.3d 390 (D.C. Cir. 1996).

B.     Respondent's Opposition

      The Respondent claims that the Under Secretary's letter and confirming letter were sufficiently authenticated, and the GC's reply to its motion to dismiss provided no basis for finding them inauthentic. The Respondent also claims that challenges to the Authority's jurisdiction may be raised at any time, and that the Under Secretary has made a § 7422(d) determination that precludes the Authority from exercising jurisdiction. Finally, the Respondent argues that the Under Secretary's § 7422(d) determination need not be made pursuant to a regulation.

IV.     Preliminary matters

      The GC argues that, for several reasons, the Judge should not have admitted the Under Secretary's letter and confirming letter.

      With regard to the GC's assertion that the Judge converted the Respondent's motion to dismiss into a motion for summary judgment, although the Authority is not bound by the Federal Rules of Civil Procedure, it has stated that summary judgment motions that are filed with administrative law judges serve the same purpose and have the same requirements as summary judgment motions filed with United States District Courts pursuant to Rule 56 of the Federal Rules of Civil Procedure. See United States Equal Employment Opportunity Comm'n, 51 FLRA 248, 252-53 (1995) (EEOC). [n4]  In Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687 (2nd Cir. 1990) (Krijn), cited by the GC, the court held that courts may treat a motion to dismiss as a motion for summary judgment, without advance notice to the non-movant, when the non-movant "should reasonably have recognized the possibility that the motion might be converted into one for summary judgment" and was not "taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings." Krijn, 896 F.2d at 689 (internal quotations omitted).

      The documents submitted by the Respondent to support its motion to dismiss were introduced to demonstrate that the Under Secretary made a § 7422(d) determination. As the Judge addressed and resolved the GC's motion to deny consideration of the documents, [ v57 p683 ] the GC was not taken by surprise and was given a reasonable opportunity to "meet facts outside the pleadings." Thus, the GC's argument is without merit.

      With regard to the GC's assertion that the confirming letter was untimely filed, § 2423.27(b) of the Authority's Regulations provides, in pertinent part, that responses to summary judgment motions "must be filed within 5 days after the date of service of the motion," and "must show, by documents, affidavits, applicable precedent, or other appropriate materials, that there is a genuine issue to be determined at the hearing." The Respondent's motion to dismiss, and the attached Under Secretary's letter, were timely filed. The confirming letter was subsequently filed solely to demonstrate that the signatory of the Under Secretary's letter had the authority to sign on the Under Secretary's behalf. Nothing precludes a judge from considering additional documents submitted after the five-day deadline for responses to summary judgment motions, especially where the evidence is introduced solely to demonstrate the validity of documents that were timely filed. Thus, the GC's argument does not demonstrate that the Judge erred by considering the confirming letter.

      With regard to the GC's assertion that the Under Secretary's letter and confirming letter were not authenticated, it is well established that the determination of matters to be admitted into evidence is within the discretion of an Administrative Law Judge. See 5 C.F.R. § 2423.31. See also Indian Health Serv., Winslow Serv. Unit, Winslow, Ariz., 54 FLRA 126, 127 (1998) (Indian Health Serv.). [n5]  In this regard, the GC is not actually challenging the "authentication" of the documents, because the GC does not assert that the letters are anything other than letters signed by the individuals who purport to have signed them. Rather, the GC challenges whether the individual who signed the Under Secretary's letter had the authority to make the § 7422(d) determination contained therein. This challenge ignores that the Respondent has provided evidence -- the confirming letter -- that the signatory of the Under Secretary's letter had such authority. Further, the Judge found that, "other than bare assertions, the [GC] has provided no reason to question" the authority of the signatory of the Under Secretary's letter. Judge's Decision at 3 n.2. The Judge did not place the burden on the GC to demonstrate that the signatory had such authority; rather, the Judge found that the Respondent had provided evidence that the signatory had such authority, and that the GC provided no evidence to rebut such evidence. Further, the GC's assertion that the Under Secretary's letter had to be authenticated at the time it was submitted is supported only by its citation to Federal Rule of Evidence 901(a), which does not apply here. See 5 U.S.C. § 7118(a)(6) (in ULP proceedings, "the parties shall not be bound by rules of evidence, whether statutory, common law, or adopted by a court.").

      Finally, contrary to the GC's assertion, the Judge did not fail to interpret the evidence in the light most favorable to the GC. In this connection, the only evidence concerning whether the Secretary made a § 7422(d) determination supported a conclusion that such a determination was made. The Judge examined this evidence and concluded that the Under Secretary made a § 7422(d) determination. The GC's argument assumes that, for summary judgment purposes, a judge is required to find a moving party's evidence inauthentic even where there is no evidence indicating its inauthenticity. The GC's assumption is unsupported and does not demonstrate that the Judge erred in granting the Respondent's motion.

      For the foregoing reasons, the GC has not demonstrated that the Judge erred by admitting the Under Secretary's letter and the confirming letter.

V.     Analysis and Conclusion

      Parties may raise arguments regarding the Authority's jurisdiction at any stage of the Authority's proceedings. See United States Dep't of the Interior, Nat'l Park Serv., Golden Gate Nat'l Recreation Area, San Francisco, Cal., 55 FLRA 193, 195 (1999). As the Respondent's argument challenges the Authority's jurisdiction, it is properly raised here.

      Once the Secretary or designee has made a § 7422(d) determination concerning a matter, the Authority is deprived of jurisdiction over that matter. See, e.g., Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Wash., D.C., 53 FLRA 822 (1997) (ULP case); Wis. Fed'n of Nurses & Health Prof'ls, Veterans Admin. Staff Nurses Council, Local 5032, 47 FLRA 910, 913-14 (1993) (Wis. Fed'n of Nurses) (negotiability case). As the Under Secretary -- the Secretary's designee -- has made a § 7422(d) determination, the Authority lacks jurisdiction over this matter.

      The GC argues that the Under Secretary's § 7422(d) determination is invalid because it is not supported by a regulation. However, nothing in the wording of § 7422 or Authority precedent, including the [ v57 p684 ] cases relied on by the GC, requires the issuance of a regulation before the Secretary may make a valid § 7422(d) determination regarding the scope of grievance procedures under § 7422(b). [n6]  In particular, none of the cases relied on by the GC involve the scope of collective bargaining or grievance procedures as they relate to professional conduct or competence; peer review; or the establishment, determination, or adjustment of employee compensation. The limitations as to those three matters are set forth exclusively in § 7422(b) and (d). See Wis. Fed'n of Nurses, 47 FLRA at 913-14 (Authority found Secretary made valid § 7422(d) determination with respect to matters included in § 7422(b), despite absence of a regulation). By contrast, the Secretary's authority to limit the Statutory rights involved in the cases relied on by the GC is set forth in § 7421(a), which authorizes the Secretary to prescribe regulations "[n]otwithstanding any law."

      For the foregoing reasons, the Authority lacks jurisdiction over this matter. Accordingly, we dismiss the complaint.

VI.     Order

      The complaint is dismissed.


APPENDIX

38 U.S.C. § 7421.     Personnel administration: in general

(a)     Notwithstanding any law, Executive order, or regulation, the Secretary shall prescribe by regulation the hours and conditions of employment and leaves of absence of employees appointed under any provision of this chapter in positions in the Veterans Health Administration listed in subsection (b).
(b)     Subsection (a) refers to the following positions:
. . . .
(5)     Registered nurses.

38 U.S.C. § 7422.      Collective bargaining

(a)     Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5 (relating to labor-management relations).
(b)     Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) in the case of employees described in section 7421(b) of this title may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title.
. . . .
(d)     An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency.
. . . .


File 1: Authority's Decision in 57 FLRA No. 137 and Appendix
File 2: ALJ's Decision


Footnote # 1 for 57 FLRA No. 137 - Authority's Decision

   Relevant portions of title 38 are set forth in the Appendix.


Footnote # 2 for 57 FLRA No. 137 - Authority's Decision

   The Under Secretary's letter provides, in pertinent part, that "[t]he Secretary has delegated to my office the authority to make any [§ 7422(d)] determinations, which are not subject to administrative review under any law. . . . Acting pursuant to the authority in 38 USC 7422(d), I have determined that this arbitrator's decision and subsequent ULP concerns the establishment, determination, or adjustment of employee compensation. . . ." March 5, 2001 Letter at 1.


Footnote # 3 for 57 FLRA No. 137 - Authority's Decision

   Federal Rule of Evidence 901(a) provides, in pertinent part, that authentication is "a condition precedent to admissibility." 28 U.S.C. § 901(a).


Footnote # 4 for 57 FLRA No. 137 - Authority's Decision

   Although EEOC involved 5 C.F.R. § 2423.19, the predecessor to § 2423.27 (the current regulation governing motions for summary judgment), there is no basis for concluding that the pertinent regulatory revisions invalidate this precedent.


Footnote # 5 for 57 FLRA No. 137 - Authority's Decision