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24:0487(53)CA - Army, Army Medical Deptartment Activity (Noble Army Hospital), Fort McClellan, AL and AFGE Local 1941 -- 1986 FLRAdec CA

[ v24 p487 ]
The decision of the Authority follows:

 24 FLRA No. 53
 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
    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
    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.
    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.