United States, Department of Veterans Affairs, Washington, D.C. (Agency) and American Federation of Government Employees, AFL-CIO (Union)

[ v60 p749 ]

60 FLRA No. 143

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
WASHINGTON, D.C.
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO
(Union)

DE-RP-04-0021

_____

ORDER
DENYING APPLICATION FOR REVIEW

March 18, 2005

_____

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

I.      Statement of the Case

      This case is before the Authority on an application for review of the Acting Regional Director's (ARD's) decision filed by the Agency. The Union did not file an opposition.

      The Union filed a petition seeking to clarify the bargaining unit to include an Administrative Officer of the Day (AOD), GS-9, position. [n1]  The Agency argued that the position should be excluded from the unit on the grounds that the incumbent is a management official within the meaning of § 7103(a)(11) of the Federal Service Labor-Management Relations Statute (Statute).

      The ARD found that the incumbent of the disputed AOD position is not a management official under § 7103(a)(11). Therefore, the ARD clarified the unit to include the position. The Agency seeks review of the ARD's decision.

      For the following reasons, we deny the Agency's application for review.

II.      Background and ARD's Decision

A.      Background

The Carl T. Hayden Veterans Affairs Medical Center, Phoenix, Arizona (Phoenix VAMC) provides health care and administrative services to eligible veterans. These services are divided into nine "product lines," including Ambulatory Care Services, which provides "nursing care, social service care, pharmacy care, clinical care, and general medical care on an outpatient basis[.]" ARD's Decision at 2. The Phoenix VAMC employs six AODs, including the incumbent of the position that is the subject of the petition. The AODs are organizationally located in the Program Management Unit within, and are supervised by the Program Manager of, Ambulatory Care Services. During their respective shifts, AODs take direction from the Medical Officer of the Day (MOD) and the Nursing Supervisors on duty.

      According to the ARD, the testimony of the incumbent of the position indicates that he "carries out a number of administrative functions for MODs in the Life Support Unit, always acting within the policies and guidelines established by the [Agency] Central Office and the Phoenix VAMC." Id. at 3. Specifically, he: (1) admits incoming patients, entering their data into the computer and maintaining a log of admissions, discharges, and diagnoses; (2) determines whether an incoming patient is a veteran, eligible for treatment under Agency policies, and if the patient is not eligible, has the authority to refuse admission; (3) if the patient is admitted, takes the patient's personal possessions and locks them away for security; (4) selects the doctor and treating specialty; and (5) attempts to locate a bed, but if one cannot be located, he has no authority to assign one.

      In addition, he: (1) handles requests for patient information from other medical facilities; (2) arranges transportation for patients out of the Phoenix VAMC as requested by medical staff, but has no authority to arrange transportation other than that requested; (3) handles matters related to the death of a patient, for example, prepares the death certificate and arranges for the body to be picked up.

      The ARD noted that AODs may draft policies for the Program Management unit at the Phoenix VAMC. More specifically, these policies are protocols or procedures for implementing policy directives from the Agency's Central Office. Any such protocol is reviewed by the Program Manager and then by the administrator of the Ambulatory Care unit. The ARD found that the incumbent of the disputed position had not conducted a systematic policy review and had only [ v60 p750 ] been involved in one discussion concerning procedures to be followed in implementing an Agency directive. His role in that discussion amounted to making suggestions for handling persons who sought admission complaining of cardiac symptoms. Some of his suggestions were adopted.

      Finally, the ARD indicated that, in carrying out these responsibilities, the incumbent of the position followed Agency and Phoenix VAMC policies and guidelines. He also noted that all AODs, including the incumbent of the position, are the representatives of the Medical Center Director for administrative matters during periods when the Director and other senior staff are not on duty. He found, however, that the incumbent had "little discretion" in carrying out his duties. ARD's Decision at 6. He also found that the incumbent was still in training and had "not drafted any policy documents." Id.

B.      ARD's Decision

      Citing Dep't of the Navy, Automatic Data Processing Selection Office, 7 FLRA 172 (1981), the ARD set forth the Authority's criteria for determining whether an individual constitutes a "management official" within the meaning of § 7103(a)(11) of the Statute. Specifically, the phrase "management official" includes those individuals who: (1) create, establish, or prescribe general plans or courses of action for an agency; (2) decide upon or settle upon general principles, plans, courses of action for an agency; or (3) bring about or obtain as a result as to the adoption of general principles, plans, or courses of action for an agency.

      The ARD also noted that the Authority has held that "an employee whose actions assist in merely implementing an activity's policies as opposed to shaping them is not a management official." ARD's Decision at 6 (citing United States Dep't of Defense, Defense Logistics Agency, Defense Contract Management Command, Defense Contract Mgt. Dist. N. Central, 48 FLRA 285, 290 (1993) (Defense Logistics Agency); United States Air Force, Eglin AFB, Eglin AFB, Fla., 10 FLRA 402, 404 (1982)). Further, the ARD noted that the Authority has held that individuals who: (1) are valuable and knowledgeable resource persons; (2) do not prescribe, establish, determine or bring about the adoption of activity policy; and (3) interpret and apply already established policy and standards, operating within the regulatory and policy framework of the activity, are not management officials.

      Applying these principles to the facts of this case, the ARD determined that the incumbent of the disputed position is not a management official within the meaning of § 7103(a)(11) of the Statute. In this regard, the ARD found that the incumbent's "primary responsibilities consist of administrative duties, primarily related to patient admissions, patient releases, and record keeping." ARD's Decision at 7. Further, according to the ARD, the incumbent does not establish policies or courses of action for the activity, but carries out his duties "in accordance with instructions from the medical staff and in compliance with already established [Agency]" and Phoenix VAMC policies. Id.

      Finally, with respect to the protocol for expediting the admission of individuals with cardiac symptoms, which the Agency claims shows that the incumbent developed a policy for the activity, the ARD found that the incumbent merely agreed with suggestions made by other AODs to the Program Manager and Nursing Supervisor concerning a particular procedure by which an Agency policy could be implemented. The ARD specifically found that the involvement of the AODs, including the incumbent, "did not rise to the level of policy making." Id.

      Accordingly, the ARD concluded that the incumbent of the disputed position is not a management official within the meaning of § 7103(a)(11) and that he should be included in the unit represented by the Union.

III.      Agency's Application for Review

      The Agency claims that the ARD failed to give appropriate weight to Personnel Circular Letter No. 05-93-9, dated April 20, 1993, which described the duties of the AOD. Specifically, the Agency asserts that the ARD did not take into account that the AOD is designated by the Medical Center Director as his representative during other than normal duty hours. In this regard, the Agency explains that an AOD "provides administrative direction to physicians and other staff members on non-medical treatment issues based upon their knowledge of laws, rules, and regulations governing the administration of the medical center." Application for Review at 1.

      The Agency maintains that, because the AODs have signature authority, for example, to arrange patient transportation, they exercise "administrative discretion and judgment" that influences "the policy of the agency in the expenditure of its funds." Id. at 2. In this regard, the Agency claims that the ARD did not give "sufficient weight" to the AODs' "use of discretion and judgment" in the "practical application of the laws, rules, and regulations governing a wide range of potential actions involving medical administration matters." Id. The [ v60 p751 ] Agency acknowledges, however, that AODs are required to "perform these activities within existing laws, regulations, and policies." Id. at 3. As to the incumbent in particular, the Agency states that he "will eventually be responsible for developing protocols based upon overall [Agency] directives." Id.

IV.      Analysis and Conclusions

      The Agency does not, in its application for review, cite to any of the grounds for review set forth in § 2422.31(c) of the Authority's Regulations. The Agency essentially argues that, in determining that the incumbent of the disputed position is not a management official, the ARD did not give appropriate weight to the discretion and judgment exercised by the incumbent, as an AOD, in implementing delegated authority from the Medical Center Director when carrying out the administrative functions of the position. It is not clear from the Agency's argument, whether the Agency is claiming that review is warranted: (1) under § 2422.31(c)(3)(iii) of the Authority's Regulations because the ARD erred, as a matter of fact, in determining the nature and amount of the incumbent's discretion as an AOD; or (2) under § 2422.31(c)(3)(i) because the ARD erred, as a matter of law, in determining that the discretion the incumbent possesses as an AOD is not sufficient to make him a management official within the meaning of § 7103(a)(11). [n2] 

      In either event, the Agency's arguments do not demonstrate that review of the ARD's decision and order is warranted under § 2422.31(c) of the Authority's Regulations. In the first instance, the Agency challenges the the ARD's findings concerning the extent of the discretion exercised by AODs, including the incumbent, in implementing the administrative authority delegated by the Medical Director. To the extent that the Agency contends that the ARD made factual errors, we note that arguments as to the weight assigned particular facts do not establish that the ARD made clear and prejudicial errors in findings as to those facts. See United States Dep't of Justice, Executive Office of Immigration Review, Office of the Chief Immigration Judge, 56 FLRA 616, 621 (2000).

      Moreover, to the extent that the Agency argues that the ARD erred in his legal analysis of the effect of the incumbent's discretion, we note that the ARD specifically determined that the discretion granted to the incumbent is exercised in accordance with applicable laws, regulations, and policies. Consequently, he concluded that such discretion did not rise to the level of the formulation of policy sufficient to establish that he is a management official within the meaning of § 7103(a)(11) of the Statute. See National Credit Union Administration, 59 FLRA 858, 862 (2004) (NCUA). The ARD found, rather, that the incumbent essentially implements Agency and Phoenix VAMC policies. Based on that finding, the ARD appropriately found, consistent with Authority precedent, that the incumbent should be included in the bargaining unit. See, e.g., Defense Logistics Agency, 48 FLRA at 290 (the fact that employees "interpret regulatory and policy guidance and have decision-making authority within this framework does not establish that these employees make or effectively make or shape such policy.") The record supports the ARD's findings and conclusions. See Transcript at 43-44, 47-48, 54. We conclude, therefore, that the ARD properly applied established law and find that the Agency has not demonstrated grounds warranting review of the application under § 2422.31(c)(3)(i) of the Authority's Regulations. [n3] 

V.      Order

      The application for review is denied.



Footnote # 1 for 60 FLRA No. 143 - Authority's Decision

   The unit certification describes the unit as follows:

All non-supervisory, non-professional employees at the Veterans Administration Hospital, Phoenix, Arizona, excluding all professional employees, supervisors, management officials, and personnel engaged in Federal personnel work in other than a purely clerical capacity, and employees on temporary limited appointments.

ARD's Decision at 1.


Footnote # 2 for 60 FLRA No. 143 - Authority's Decision

   § 2422.31(c) of the Authority's Regulations provides, in relevant part, as follows:

(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
. . . .
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
. . . .
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.

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