[ v24 p487 ]
The decision of the Authority follows:
24 FLRA No. 53 DEPARTMENT OF THE ARMY U.S. ARMY MEDICAL DEPARTMENT ACTIVITY (NOBLE ARMY HOSPITAL) FORT McCLELLAN, ALABAMA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1941, AFL-CIO Charging Party Case No. 4-CA-50151 DECISION AND ORDER I. Statement of the Case This matter is before the Authority, in accordance with section 2429.1(a) 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 and the Respondent have 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 failing to comply with section 7114(a)(2)(B) of the Statute when it conducted an examination in connection with an investigation in the absence of the employee's requested union representative. For the reasons stated below, we find no merit to this allegation. II. Facts In late September 1984, the Commander of the Noble Army Hospital orally advised the unit employee, an ophthalmologist at the hospital, that he should discontinue his treatment of patients pending a review of his medical procedures and proficiency. On October 1, 1984, the Respondent's Credentials Committee met to consider the results of audits conducted by another ophthalmologist of the employee's patient medical records. The purpose of this Committee was to make recommendations to the hospital commander regarding the admission to and retention of staff membership including the assignment, reduction or withdrawal of clinical privileges. The membership of the Committee, with one exception, consisted of supervisors, management officials, and the Chiefs of various departments within the hospital. The auditing ophthalmologist found that the employee was utilizing out-dated treatments, poor care, and that the majority of cases he reviewed were deficient in evaluation and documentation. Based on this preliminary report, the Committee voted to continue the suspension of the employee's surgical privileges until a hearing could be convened on October 17. On October 3, the employee was notified of the Committee's intention to hold a hearing to review the findings of the auditing physician and that he, the employee, would have an opportunity to respond to the allegations. The employee was informed that he would have the right to be present at the hearing, to present evidence, to cross-examine the ophthalmologist assigned to the Committee, and to call witnesses on his behalf. The employee was also informed that he had the right to consult legal counsel but that this did not include the right to be represented by counsel at the hearing. At the hearing, such counsel could only serve as an advisor and could not question witnesses or present legal argument. On October 5, the employee wrote the Chairman of the Committee notifying him that he had elected to attend the hearing and desired to defend himself against all allegations. In his letter, the employee notified the Chairman that he would have a legal advisor, that he intended to call witnesses, and that the President of the Local would also attend the hearing on his behalf. By letter dated October 9, the Chairman of the Committee informed the employee that the hearing was not subject to the negotiated agreement and that the presence of a union representative would not be allowed. By letter dated October 11, the employee protested the refusal of the Respondent to permit a union representative to be present, arguing that he was entitled to a union representative under the negotiated agreement and the Civil Service Reform Act. On October 17, the employee attended the hearing with counsel but without a union representative. During the hearing, he cross-examined the auditing physician (the witness called by the Committee), called witnesses on his behalf, presented evidence, made an opening statement, and testified. After his testimony the employee answered questions posed by the Committee. By letter dated October 18, the Respondent affirmed its original position that the employee was not entitled to union representation because the Credentials Committee proceedings were not considered, for labor relations purposes, to be formal meetings concerning general conditions of employment. The Respondent further maintained that the Committee makes recommendations to the hospital Commander who makes the decision as to what action to take, and advised the employee that he would have a right to appeal any action that resulted in a loss of credentials. The Respondent asserted that a decredentialing hearing was not a disciplinary action and characterized the Committee as an internal deliberative body responsible only for ensuring the quality of medical care. The Credentials Committee also issued its findings on October 18. The Committee recommended that the employee's privileges be restricted regarding certain surgical procedures based on its findings that the employee used outdated surgical techniques, kept inadequate documentation, and performed certain medical procedures infrequently. The Committee also concluded that the employee had rebutted certain deficiencies in his outpatient records. The recommendations of the Committee were adopted by the Respondent on December 12 and the employee was notified of his right to appeal. The employee did not exercise such rights and resigned from his position on January 3, 1985. The parties stipulated that the loss of clinical privileges by a health care practitioner could be the basis for removal under 5 U.S.C. Section 4301 et seq. or 5 U.S.C. Section 5701 et seq. from Federal service. III. The Positions of the Parties The parties do not contest the fact that the employee requested union representation; nor is there an issue concerning whether the employee had a reasonable belief that the hearing could result in discipline. Both facts have been stipulated. The Respondent argues that the term "examination" in section 7114(a)(2)(B) connotes situations wherein an employee is involuntarily called to explain or answer questions by management. Here, the Respondent argues, the employee was free to attend or not to attend the hearing. If he chose to attend, he was free also to choose whether or not to participate. For example, he need not have testified, nor was he obligated to answer questions. Thus, there was no "examination" within the meaning of section 7114(a)(2)(B) and the employee was not entitled to union representation. The Respondent also argues that the hearing was not a vehicle for the employee's removal. Removal (in light of any decredentialing), according to the Respondent, would be conducted separately under 5 U.S.C. Section 4301 et seq. based on a finding of unacceptable performance, a determination reserved to the hospital Commander. The Respondent argues that the hearing was not an "investigation," but rather a "review by a committee of peers" -- "fellow physicians reviewing the medical practice of another fellow physician." The General Counsel contends that the hearing met all the requirements of section 7114(a)(2)(B) of the Statute in that the hearing was an "examination" of an employee in connection with an investigation. The General Counsel argues that both private and public sector case law emphasizes the investigatory purpose of the meeting as being determinative of whether the meeting is an "examination" rather than whether the employee's presence was voluntary. Thus, the General Counsel argues, it is totally irrelevant that the unit employee voluntarily appeared at the hearing. In the General Counsel's view, the Respondent violated the Statute when Respondent refused to permit the employee to have union representation and proceeded with the hearing. Such a violation, argues the General Counsel, could not be cured by the subsequent decision of the employee to voluntarily appear at the hearing, without union representation, since the hearing would have taken place regardless of whether the employee appeared or waived the right to appear. IV. Analysis There is no question that the Respondent denied the employee union representation at the hearing. Thus, if the hearing met the definition of section 7114(a)(2)(B) of the Statute, that is, involves "any examination of an employee in the unit by a representative of the agency in connection with an investigation" the Respondent would be in violation of the Statute. We conclude that this hearing of the Credentials Committee was not an examination under section 7114(a)(2)(B). The Credentials Committee was scheduled to review the auditing ophthalmologist's report, review the employee's record, and make recommendations. The hearing was scheduled for the receipt of the auditing physician's testimony and was not dependent in any way on whether or not the employee attended the hearing. Like the situation in Department of the Treasury, Internal Revenue Service, 15 FLRA 360, 361 (1984), the hearing was not designed to "ask questions, elicit additional information, have the employee admit his alleged wrongdoing, or explain his conduct." In addition, the scheduled activities were to take place and would have taken place whether or not the employee attended or participated in the hearing. In these circumstances, we find that this hearing was not an examination under the Statute. The fact that the employee was given an option to attend and participate in the hearing and chose to do so does not alter, after the fact, the nature of the hearing. As the hearing was not an examination, we conclude that the Respondent had no obligation under the Statute to grant the employee's request for union representation. /1/ V. Conclusion The Authority has considered all of the facts and circumstances of this case, including the positions of the parties, and concludes, as noted above, that the Respondent has not violated the Statute as alleged in the General Counsel's complaint. ORDER The complaint in Case No. 4-CA-50151 is dismissed in its entirety. Issued, Washington, D.C., December 15, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY Member McKee's Dissenting Opinion 4 I disagree with the conclusion that the hearing conducted by the Respondent on October 17, 1984, was not an "examination" under section 7114(a)(2)(B) of the Statute. The hearing was a formal proceeding under Department of the Army Regulation AR 40-66. Prior to the hearing, the Respondent convened the Credentials Committee on October 1 to review the results of an audit of the employee's patient records and health care performance. At that meeting, the Committee considered the findings of the auditing ophthalmologist that the employee was utilizing out-dated treatments, poor care, management and understanding of treatment of patients and that the majority of cases reviewed were deficient in evaluation and documentation. Based on those findings, the Credentials Committee recommended that a Hearing Committee be convened and affirmed the earlier suspension of the employee's surgical privileges. The parties stipulated that the employee "would credibly state under oath" that he was advised by the Chairman of the Credentials Committee that he should be present at the hearing, that he could have an attorney accompany him and that he could bring other members of the medical staff to testify as witnesses on his behalf (Stipulation 10). The employee was subsequently served with a formal "Notification of Hearing Committee," which informed him that he had an opportunity to be present and that he would have an opportunity to respond to the allegations against him (Stipulation 11). The Notice also informed the employee that he had a right to have legal counsel present to advise him at the hearing. The parties have stipulated that the employee reasonably believed that the hearing could result in the restriction, suspension or termination of his clinical privileges which in turn could result in his separation from the civilian service (Stipulation 19). The employee twice requested in writing that he be allowed to have a representative of his union accompany him to the hearing, and both requests were denied by the Respondent. The employee attended the hearing. In accordance with AR 40-66, he cross-examined witnesses who testified against him, presented evidence and witnesses in his own behalf, testified in his own behalf, and was questioned by members of the Hearing Committee. As indicated above, the hearing was a very serious formal proceeding. The Hearing Committee was comprised of the following: Respondent's Chief of Professional Services, Chief of Surgery, Chief of Community Health Services, Chief of Internal Medicine and Chief of the General Surgery Service, all of whom were stipulated to as supervisors and/or management officials; and from another Army Hospital, the Chief of Ophthalmology Services. The purpose of the hearing was to consider the allegations against the employee that resulted from an investigation of his care of patients and to examine his record as an ophthalmologist. While the employee was not directly ordered to attend the hearing, his apparently credible and unrefuted claim is that he was told by the Chairman of the Credentials Committee, who was also Chief of Professional Services at the hospital, that he should attend. Moreover, his interests in being present at the hearing were vital. His position and professional reputation were in serious jeopardy. In those circumstances, the employee's attendance at the hearing was not "voluntary." Rather, the oral advice of the Credentials Committee Chairman, as well as the evident professional and economic consequences involved, compelled his attendance and participation in the proceeding to protect himself. The fact that the hearing would have proceeded whether or not the employee attended or participated is not controlling in this case. The employee did attend and participate and he was questioned by members of the Respondent's Hearing Committee. For those reasons, I find that the October 17 hearing conducted by the Respondent was an "examination of an employee . . . in connection with an investigation . . ." within the meaning of section 7114(a)(2)(B) of the Statute, and that the employee was entitled to have the assistance of his union representative at the hearing as he requested. I conclude that the Respondent violated section 7116(a)(1) and (8), as alleged in the complaint, when it conducted the hearing in the absence of the employee's requested union representative. Issued, Washington, D.C. December 15, 1986. /s/ Jean McKee, Member --------------- FOOTNOTES$ --------------- (1) Member McKee's dissenting opinion is set forth below.