Veterans Administration, Washington, D.C. A/SMLR No. 1131

 1 FLRA No. 17
                                             APRIL 9, 1979
 
 MR. JOHN P. HELM
 STAFF ATTORNEY
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES
 1016 16TH STREET, N.W.
 WASHINGTON, D.C.  20036
 
                             RE:  VETERANS ADMINISTRATION, 
                                  WASHINGTON, D.C., A/SLMR
                                  No. 1131, FLRC No. 78A-153
 
 DEAR MR. HELM:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
 THE ASSISTANT SECRETARY'S DECISION IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, AS FOUND BY THE ASSISTANT SECRETARY, NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES LOCAL 1631 (THE UNION) EXCLUSIVELY
 REPRESENTS A UNIT OF NURSES AT THE VETERANS ADMINISTRATION HOSPITAL IN
 AMARILLO, TEXAS.  THE NURSES BECAME CONCERNED ABOUT ALLEGED
 IRREGULARITIES IN PATIENT CARE AT THE HOSPITAL.  THE UNION'S PRESIDENT
 MET WITH THE HOSPITAL DIRECTOR TO DISCUSS THE PROBLEM AND WAS ADVISED
 THAT AN INVESTIGATION WOULD BE CONDUCTED.  THEREAFTER, THE UNION'S
 PRESIDENT SENT A LETTER TO THE NATIONAL OFFICE OF THE UNION EXPRESSING
 THE SAME CONCERN WITH RESPECT TO PATIENT CARE AND ENCLOSING A LIST OF
 PATIENTS' NAMES AND DIAGNOSES.  ON NOVEMBER 1, THE HOSPITAL'S PERSONNEL
 OFFICER CALLED THE UNION PRESIDENT TO A MEETING TO ASCERTAIN WHETHER SHE
 HAD DISCLOSED PATIENT INFORMATION TO THE UNION'S NATIONAL OFFICE, AND,
 IF SO, TO ADVISE HER THAT SUCH DISCLOSURE WAS IMPROPER.  HE THEN MADE A
 COMMENT TO THE EFFECT THAT PATIENT CARE WAS NOT A CONCERN OF THE UNION
 AND THAT BECAUSE THE UNION HAD ENGAGED IN UNPROTECTED ACTIVITY, HE WOULD
 EXPLORE THE POSSIBILITY OF FILING AN UNFAIR LABOR PRACTICE COMPLAINT.
 HE FURTHER ADDED THAT THERE HAD POSSIBLY BEEN A VIOLATION OF THE PRIVACY
 ACT BASED UPON THE DISCLOSURE OF CONFIDENTIAL INFORMATION.
 SUBSEQUENTLY, ON NOVEMBER 4, AN INVESTIGATOR FROM THE ACTIVITY'S CENTRAL
 OFFICE SPOKE WITH THE UNION'S PRESIDENT DURING THE COURSE OF HIS
 INVESTIGATION INTO THE IRREGULARITIES OF PATIENT CARE.  THE INVESTIGATOR
 QUESTIONED, AMONG OTHER THINGS, WHY THE NURSES HAD NOT GONE THROUGH
 PROPER AGENCY CHANNELS IN REPORTING SUCH IRREGULARITIES.
 
    THE UNION THEREAFTER FILED AN UNFAIR LABOR PRACTICE COMPLAINT
 ALLEGING THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) OF THE ORDER BY THE
 STATEMENTS MADE TO THE UNION'S PRESIDENT AT MEETINGS DURING WHICH
 PATIENT CARE WAS DISCUSSED.  /1/
 
    THE ASSISTANT SECRETARY FOUND, IN PERTINENT PART:
 
    (T)HE INFORMATION TRANSMITTED BY THE (UNION) TO ITS NATIONAL OFFICE
 WAS CONFIDENTIAL IN
 
    NATURE, AND ITS DISCLOSURE WAS, THEREFORE, NOT A PROTECTED ACTIVITY.
 THUS, IN MY VIEW, THE
 
    INFORMATION COMMUNICATED HEREIN BY THE (UNION'S) PRESIDENT WENT
 BEYOND THE BOUNDS OF THE
 
    LEGITIMATE CONCERN OF (THE UNION) IN DIVULGING THE CONFIDENTIAL
 MEDICAL HISTORY OF IDENTIFIED
 
    PATIENTS.
 
    HOWEVER, IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE, I FIND, IN
 AGREEMENT WITH THE (ALJ),
 
    THAT THE STATEMENT MADE ON NOVEMBER 1 BY THE PERSONNEL OFFICER TO
 (THE UNION'S) PRESIDENT,
 
    THAT PATIENT CARE WAS NOT HER CONCERN, INTERFERED WITH EMPLOYEE
 RIGHTS ASSURED BY THE ORDER
 
    AND WAS, THEREFORE, INDEPENDENTLY VIOLATIVE OF (S)ECTION 19(A)(1) OF
 THE ORDER.  SIMILARLY,
 
    THE STATEMENTS FOUND BY THE (ALJ) TO HAVE BEEN MADE BY AN (A)GENCY
 REPRESENTATIVE AT THE
 
    NOVEMBER 4 MEETING, WHICH WERE CRITICAL OF THE NURSES FOR HAVING
 SOUGHT THE ASSISTANCE OF
 
    THEIR EXCLUSIVE REPRESENTATIVE, WERE ALSO VIOLATIVE OF (S)ECTION
 19(A)(1) OF THE ORDER.  IN SO
 
    FINDING, I NOTE, AS DID THE (ALJ), THAT THE (ACTIVITY'S)
 REPRESENTATIVES MADE NO ATTEMPT, IN
 
    EITHER OF THE MEETINGS, TO RESTRICT THEIR COMMENTS ONLY TO THE
 ALLEGED VIOLATIONS OF THE
 
    PRIVACY ACT AND OTHER REGULATIONS COVERING CONFIDENTIALITY OF PATIENT
 RECORDS.  RATHER, ITS
 
    REPRESENTATIVES MADE BROAD, GENERAL REMARKS RESTRICTING THE (UNION'S)
 LEGITIMATE CONCERN WITH
 
    PATIENT CARE, WHICH IN MY OPINION HAD A RESTRAINING EFFECT ON THE
 EXERCISE OF THE (UNION'S)
 
    AND UNIT EMPLOYEES' RIGHTS AS GUARANTEED BY THE ORDER.  UNDER THESE
 CIRCUMSTANCES, I FIND
 
    THAT (THE ACTIVITY'S) CONDUCT VIOLATED (S) SECTION 19(A)(1) OF THE
 ORDER.  HOWEVER, CONTRARY
 
    TO THE (ALJ), I FIND NO BASIS UPON WHICH TO CONCLUDE THAT THE
 (ACTIVITY'S) STATEMENTS AT THE
 
    NOVEMBER 4 MEETING WERE VIOLATIVE OF (S)ECTION 19(A)(2) OF THE ORDER
 AS SUCH ALLEGATION WAS
 
    BEYOND THE SCOPE OF THE COMPLAINT HEREIN, AND WAS NOT PROPERLY BEFORE
 THE ASSISTANT SECRETARY.
 
    IN YOUR PETITION FOR REVIEW ON BEHALF OF THE UNION, YOU ALLEGE THAT A
 MAJOR POLICY ISSUE IS PRESENTED BY THE ASSISTANT SECRETARY'S CONCLUSION
 THAT THE INFORMATION TRANSMITTED BY THE UNION TO ITS NATIONAL OFFICE WAS
 CONFIDENTIAL IN NATURE, AND THAT ITS DISCLOSURE WAS THEREFORE NOT A
 PROTECTED ACTIVITY, CONTENDING THAT A BALANCING OF THE EXECUTIVE ORDER,
 THE PUBLIC'S RIGHT TO KNOW AND CONFIDENTIALITY REQUIREMENTS NECESSITATES
 A FINDING THAT THE PROVIDING OF INFORMATION BY A LOCAL TO ITS NATIONAL
 ORGANIZATION IN THE MANNER IN WHICH IT WAS DONE IN THIS INSTANCE IS A
 PROTECTED ACTIVITY.  IN ADDITION, YOU CONTEND THAT THE ASSISTANT
 SECRETARY'S DECISION THAT THE ALLEGED SECTION 19(A)(2) VIOLATION WAS
 BEYOND THE SCOPE OF THE COMPLAINT AND NOR PROPERLY BEFORE THE ASSISTANT
 SECRETARY "RAISES MAJOR POLICY CONSIDERATIONS AND IS ARBITRARY AND
 CAPRICIOUS."
 
    IN THE AUTHORITY'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET
 THE REQUIREMENTS OF SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES
 WHICH INCORPORATES BY REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES.
 THAT IS, THE DECISION OF THE ASSISTANT SECRETARY DOES NOT APPEAR
 ARBITRARY AND CAPRICIOUS OR PRESENT ANY MAJOR POLICY ISSUES.
 
    WITH RESPECT TO YOUR ALLEGATION THAT THE ASSISTANT SECRETARY'S
 DECISION PRESENTS A MAJOR POLICY ISSUE AS TO WHETHER THE INFORMATION
 TRANSMITTED BY THE UNION TO ITS NATIONAL OFFICE IN THE INSTANT CASE WAS
 CONFIDENTIAL IN NATURE, IN OUR VIEW NO BASIS FOR AUTHORITY REVIEW IS
 THEREBY PRESENTED.  THUS, YOUR CONTENTIONS IN THIS REGARD ESSENTIALLY
 CONSTITUTE MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S CONCLUSION
 THAT THE INFORMATION TRANSMITTED WAS CONFIDENTIAL IN NATURE.  NOTHING IN
 YOUR APPEAL PROVIDES SUPPORT FOR A CONTENTION THAT THE ASSISTANT
 SECRETARY'S CONCLUSION IS IN ANY MANNER INCONSISTENT WITH THE PURPOSES
 OF THE ORDER.  ACCORDINGLY, WITHOUT PASSING UPON THE ASSISTANT
 SECRETARY'S DICTUM CONCERNING "THE (UNION'S) LEGITIMATE CONCERN WITH
 PATIENT CARE," THE AUTHORITY CONCLUDES THAT NO MAJOR POLICY ISSUE IS
 PRESENTED WARRANTING REVIEW.  NOR DOES IT APPEAR THAT THE ASSISTANT
 SECRETARY'S DISMISSAL OF THE UNION'S SECTION 19(A)(2) ALLEGATION HEREIN
 IS ARBITRARY AND CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE, AS
 ALLEGED.  THUS, YOUR APPEAL FAILS TO CONTAIN ANY SUPPORT FOR A
 CONTENTION THAT THE ASSISTANT SECRETARY EITHER EXCEEDED HIS AUTHORITY BY
 DISMISSING THE SECTION 19(A)(2) ALLEGATION PURSUANT TO HIS REGULATIONS,
 BASED UPON A FINDING THAT SUCH ALLEGATION WAS BEYOND THE SCOPE OF THE
 COMPLAINT AND THEREFORE NOT PROPERLY BEFORE HIM, OR THAT HIS DISMISSAL
 WAS INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER.  MOREOVER,
 IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
 JUSTIFICATION IN REACHING HIS DECISION IN THE CIRCUMSTANCES OF THIS
 CASE.
 
    ACCORDINGLY, SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR
 ARBITRARY AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, YOUR APPEAL
 FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2400.2
 OF THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE
 SECTION 2411.12 OF THE COUNCIL'S RULES, AND IS HEREBY DENIED.  /2/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  K. ROLLINS
 
    VA
 
    /1/ AS NOTED BY THE ASSISTANT SECRETARY, THE COMPLAINT HEREIN, WHICH
 WAS LIMITED TO A SECTION 19(A)(1) ALLEGATION, WAS ORIGINALLY DISMISSED
 BY THE REGIONAL ADMINISTRATOR, BUT WAS SUBSEQUENTLY REMANDED BY THE
 ASSISTANT SECRETARY PURSUANT TO A REQUEST FOR REVIEW OF THE REGIONAL
 ADMINISTRATOR'S DISMISSAL ACTION.  ON REMAND, THE REGIONAL
 ADMINISTRATOR, FOR THE FIRST TIME, RAISED THE POSSIBILITY OF A SECTION
 19(A)(2) VIOLATION.  THE UNION SOUGHT TO AMEND ITS COMPLAINT IN THIS
 REGARD AT THE HEARING AND WAS SO PERMITTED BY THE ADMINISTRATIVE LAW
 JUDGE (ALJ).
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.