[ v42 p1059 ]
The decision of the Authority follows:
42 FLRA No. 74
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority on exceptions filed by the General Counsel and the Union to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the exceptions.
The complaint(1) alleges that the Respondent violated section 7116(a)(1), (2), and (4) of the Federal Service Labor-Management Relations Statute (the Statute) by issuing notices of proposed discharge to two registered nurses. The Judge concluded that the Respondent did not violate the Statute and recommended that the complaint be dismissed.
Pursuant to section 2423.29 of the Authority's Rules and Regulations, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed. After consideration of the entire record, we find, for the following reasons, that the complaint must be remanded to the Judge.
The American Federation of Government Employees, AFL-CIO (AFGE), represents nationwide, consolidated bargaining units of professional and nonprofessional employees of the Department of Veterans Affairs. The Union is AFGE's agent for the purposes of representing employees at the Medical Center in Canandaigua, New York.
The Respondent's published policies concerning abuse of patients in Respondent's facilities define "patient abuse" as including "assault upon or injury to a patient; teasing a patient; speaking harshly, rudely or irritably to a patient; laughing at or ridiculing a patient; and indifference." Judge's Decision at 4. The policies require all employees to make prompt and accurate reports of alleged patient abuse to their supervisors. A particular document, VA Form 10-2633, must be filed if an employee witnesses patient abuse or receives a report of an incident involving patient abuse. Specifically, a "professional employee in charge at the time of the alleged abuse" must file the form "by the end of the work shift" involved. Id. An employee who fails to promptly report alleged patient abuse is subject to disciplinary action.
B. William Ward
William Ward, a registered nurse appointed pursuant to 38 U.S.C. § 4104, began employment with the Respondent in 1981.(2) Ward became a Union official in 1986 and, in October 1989, became the Union's president. During the time period relevant here, Ward engaged in Union activities, with the knowledge of the Respondent, on behalf of unit employees. Among other things, Ward filed a grievance regarding certain activities of the Head Nurse and requested, as a remedy, his reassignment to another nursing unit. On April 11, 1989, the Chief Nurse agreed to transfer Ward to another unit.
On April 12, 1989, the Head Nurse submitted three VA Forms 10-2633 regarding three instances of alleged patient abuse by Ward on March 31, 1989. The Head Nurse reported that she witnessed one of the incidents and that the other two were reported to her on March 31. At the time of the unfair labor practice hearing in this case, no disciplinary action had been taken against the Head Nurse or others for failing to submit the allegations of patient abuse earlier.
The Medical Center Director appointed an investigative team that concluded that the three incidents constituted patient abuse and, on July 25, 1989, the Chief Nurse recommended Ward's discharge. The recommendation was forwarded to the Department of Veterans Affairs in Washington, D.C. and, on September 25, 1989, Ward was issued a notice of proposed discharge under 38 U.S.C. § 4110.(3) The notice advised Ward of his right to request a hearing before a disciplinary board appointed by the Chief Medical Director.
Pursuant to Ward's request, a disciplinary board hearing was held on March 19-21, 1990. In responding to the charges of patient abuse, Ward argued "that such charges were brought against him as retaliation for his activity as an official of the Union." Id. at 10. Prior to the notice of proposed discharge, Ward had never been disciplined by the Respondent.
C. David Bellomo
David Bellomo, a registered nurse appointed pursuant to 38 U.S.C. § 4104, worked at the Canandaigua facility for 13 years. Bellomo became an active Union representative in 1987. At times relevant here, Bellomo engaged in various Union activities, with the knowledge of the Respondent, on behalf of unit employees.
On June 16, 1989, a patient alleged that he had been abused by Bellomo on June 10. The Medical Center Director appointed an investigative team that issued a report finding that Bellomo's action constituted patient abuse. On September 1, the Chief Nurse reviewed the investigative team's report and recommended, with the Chief of Staff's concurrence, that Bellomo's "'continued retention' be reviewed." Id. at 12. The Acting Medical Center Director forwarded a recommendation that Bellomo be discharged to the Department of Veterans Affairs in Washington, D.C. and, on December 6, 1989, Bellomo was issued a proposed notice of discharge, pursuant to 38 U.S.C. § 4110, for alleged patient abuse on June 10. Bellomo requested a hearing before a disciplinary board. The hearing was held on May 16-17, 1990.
III. Judge's Decision
The Judge concluded that "Respondent's proposals to discharge Ward and Bellomo [were] not substantively reviewable" in an unfair labor practice proceeding and recommended that the complaint be dismissed. Judge's Decision at 2. The Judge also stated, however, that if "Ward and Bellomo were deemed to be protected by the Statute, [he] would find that Respondent's conduct violated the Statute." Id.
The Judge noted that the notices of proposed discharge were issued pursuant to procedures promulgated under 38 U.S.C. § 4110. Citing the Authority's decision in U.S. Department of Veterans Affairs, Veterans Administration Medical Center, San Francisco, California, 40 FLRA 290 (1991) (VA Medical Center), among others, the Judge stated that such procedures are exclusive for resolving disputes regarding discipline of professional employees for misconduct. The Judge stated that an Authority finding that the Respondent violated section 7116(a) of the Statute would "supersede, override, or otherwise modify the provisions of 38 U.S.C. § 4110." Judge's Decision at 19. Such a result, according to the Judge, is "barred by 38 U.S.C. § 4119."(4) Id.
The Judge also stated that the "law is somewhat unsettled in this area[.]" Id. at 19. In particular, the Judge stated that the Authority's decision in VA Medical Center addressed "final determinations" whereas the instant case involved "proposed removals . . . ." Id. (emphasis in original). Accordingly, the Judge considered "the record . . . to avoid the possible necessity of a remand." Id.
Based on the record, the Judge concluded, as relevant here, that Ward and Bellomo were engaged in activities protected by the Statute, that these activities were known to the Respondent, and that "Union animus motivated in some part the decision to propose their dismissal[s]." Id. at 24. The Judge concluded further that even if the Respondent had established legitimate justification for taking disciplinary actions again Ward and Bellomo, the Respondent "failed to demonstrate by a preponderance of the evidence that it would have proposed the same action . . . in the absence of protected activity." Id. Based on the Judge's examination of disciplinary actions proposed against other registered nurses at the Canandaigua facility for alleged patient abuse, the Judge concluded that "the alleged patient abuse of Ward and Bellomo was not sufficiently distinguishable from that of other nurses to merit the harsher discipline of proposed discharge." Id.
The Judge summarized his decision as follows:
[I]f this proceeding were not barred by the provisions of title 38 and the activities of Ward and Bellomo were deemed protected by section 7102 of the Statute, I would conclude that the General Counsel has established by a preponderance of the evidence that the proposed discharges of Ward and Bellomo were motivated by their protected activity. Further, even assuming that the Respondent had legitimate justification for taking some form of disciplinary action against Ward and Bellomo, I would conclude that the Respondent has failed to demonstrate by a preponderance of the evidence that it would have proposed the same action . . . in the absence of protected activity. Accordingly, if these circumstances had prevailed, violations of section 7116(a)(1), (2), and (4) would have been found.
Id. at 26.
IV. The Positions of the Parties
A. The General Counsel's Exceptions
The General Counsel excepts only to the Judge's "conclusion that the Respondent's proposals to discharge two title 38 employees are not substantively reviewable by the Authority in this proceeding." General Counsel's Exceptions at 1. According to the General Counsel, the Authority's decision in VA Medical Center establishes that professional employees of the Department of Veterans Affairs are entitled to exercise rights under section 7102 of the Statute and that a respondent's unlawful interference with the exercise of such rights violates section 7116 of the Statute. The General Counsel argues that it must have an opportunity to demonstrate that a respondent's asserted lawful reasons for taking an action are unlawful. The General Counsel contends that it established that "the lawful reasons asserted by Respondent are not the real reasons why it proposed these discharges and that the real reason was unlawful . . . ." Id. at 6 (emphasis omitted).
B. The Union's Exceptions
The Union excepts to the Judge's conclusion that the notices of proposed discharge are not substantively reviewable in this proceeding. According to the Union, the Respondent did not assert a lawful reason for "the choice of the issuance of the proposals to removal [sic] as opposed to a lesser penalty in conformity with what was done in other cases of alleged patient abuse . . . ." Union's Exceptions at 3-4 (footnote omitted). The Union claims further that an Authority order rescinding the proposed removals would not interfere with the Respondent's authority under title 38 because such order would leave the Respondent free to propose lesser discipline against Ward and Bellomo.
C. Respondent's Opposition
The Respondent argues that the Judge's dismissal of the complaint was proper because the "merits" of the proposed discharges are "within VA's exclusive authority." Respondent's Opposition at 7. The Respondent also argues that the Authority should sustain only that portion of the Judge's decision dismissing the complaint. According to the Respondent, the Judge's alternative findings are "gratuitous and incompetent." Id. The Respondent notes that, after disciplinary board hearings, Ward was discharged and Bellomo was suspended.(5)
V. Analysis and Conclusions
A. Analytical Framework
In VA Medical Center, the Authority established the framework for resolving complaints alleging violations of section 7116(a)(2) of the Statute in connection with a professional employee appointed to a position in the Department of Veterans Affairs under the provisions of title 38 of the United States Code. For reasons fully set forth in that decision, the Authority concluded, as an initial matter, that as such an employee "may exercise rights pursuant to section 7102 of the Statute, and as interference with or discrimination based on the exercise of those rights constitutes an unfair labor practice under section 7116(a) of the Statute, the Authority has statutory jurisdiction" to resolve complaints alleging violations of section 7116(a)(2) of the Statute. 40 FLRA at 297.
In VA Medical Center, the Authority noted that complaints alleging violations of section 7116(a)(2) of the Statute are resolved on the basis of the analytical framework set forth in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny). Specifically, the General Counsel must establish in such cases that an affected employee was engaged in protected activity and that consideration of such activity was a motivating factor in a respondent's treatment of the employee in connection with the employee's conditions of employment. VA Medical Center, 40 FLRA at 197 (citing Letterkenny, 35 FLRA at 118). If the General Counsel makes this showing, a respondent may seek to establish, by a preponderance of the evidence, the affirmative defense that there was legitimate justification for its action and that the same action would have been taken even if protected activity had not been considered. Id. (citing Letterkenny, 35 FLRA at 123).
The Authority held, however, that it was unable to apply the Letterkenny framework in VA Medical Center. The Authority noted, as relevant here, that the authority of the Department of Veterans Affairs to make determinations regarding professional misconduct or incompetence under 38 U.S.C. § 4110 is exclusive. The Authority concluded, for the reasons set forth in VA Medical Center, that:
[T]he [Department of Veterans Affairs'] exclusive authority to determine working conditions and make decisions regarding inaptitude, inefficien[cy], and misconduct under title 38 must be observed. If as here, a respondent asserts a lawful reason for a disputed action, and such assertion is consistent with action taken pursuant to its exclusive authority under title 38 of the United States Code and is final, the determination made pursuant to that authority is not substantively reviewable in an unfair labor practice proceeding.
40 FLRA at 302.
B. Application of the Analytical Framework
We find no reason to depart from our conclusion regarding the Authority's jurisdiction in VA Medical Center. Accordingly, insofar as the Judge's decision may be read as holding either that the Authority lacks jurisdiction to resolve the complaint in this case(6) or that Ward and Bellomo were not entitled to exercise rights under section 7102 of the Statute,(7) we reject those holdings.
We also find no reason, and none is urged, for applying a different framework for resolving complaints alleging violations of section 7116(a)(4) of the Statute, especially where, as here, such alleged violation is based on the same conduct alleged to have violated section 7116(a)(2).(8) Accordingly, we conclude that, consistent with VA Medical Center, a respondent's asserted lawful reason for taking action which is alleged to violate section 7116(a)(2) or (a)(4) of the Statute is not substantively reviewable in an unfair labor practice proceeding if that asserted lawful reason is consistent with final action taken pursuant to exclusive authority under title 38 of the United States Code.
Applying the framework set forth in VA Medical Center we conclude that the complaint must be remanded to the Judge. We note two things at the outset.
First, the Authority stated in VA Medical Center, that a respondent's asserted lawful reason for taking a disputed action must be evaluated "with due regard for the . . . exclusive authority to . . . make decisions regarding inaptitude, inefficiency, and misconduct under title 38." 40 FLRA at 300. Based on this exclusive authority, the Authority held that a respondent's asserted lawful reason for taking an action is not substantively reviewable if "such assertion is consistent with action taken . . . under title 38 . . . and is final[.]" Id. at 302.
The Authority did not elaborate on the meaning of "final" action in VA Medical Center, which involved the separation of a probationary employee following review of the employee's qualifications by a Nurse Professional Standards Board under 38 U.S.C. § 4106.(9) We now hold that "final" action, within the meaning of VA Medical Center, encompasses a final administrative determination made pursuant to the exercise of exclusive authority under title 38. That is, an action taken under title 38 is final, for purposes of unfair labor practice proceedings, at such time as that action is accorded administrative finality under title 38 or regulations issued pursuant to title 38. We find no reason, however, and none is asserted, for holding that any subsequent judicial review of title 38 proceedings affects administrative finality for our purposes.(10)
Second, the "due regard" for exclusive authority under title 38 would be rendered meaningless, in our view, if we were to hold that a respondent's asserted lawful reasons for taking a disputed action were substantively reviewable in unfair labor practice proceedings provided such review occurred during the pendency of, rather than after conclusion of, title 38 proceedings. As such, the finality of administrative action under title 38 is a prerequisite to adjudication of complaints alleging violations of section 7116(a)(2) and (4). Put simply, until such time as title 38 proceedings are administratively final, it is impossible to determine whether action which allegedly is unlawful under the Statute is, in fact, consistent with the exclusive authority of the Department of Veterans Affairs under title 38. Accordingly, insofar as the Judge's alternative findings regarding the complaint are based on the fact that the complaint involved proposed, rather than final, actions, we reject those findings.(11)
This case involves disciplinary proceedings under 38 U.S.C. § 4110. Subsection (d) of that section provide that "[t]he decision of the [Secretary] shall be final." See n.3. Subsection (e) provides that although the Secretary's authority may be delegated to the Chief Medical Director, "[a]ny person against whom disciplinary action is taken . . . shall have the right to appeal such action to the [Secretary.]" Id. Subsection (e) also provides that in the absence of an appeal, the Chief Medical Director's decision "shall have the same force and effect as a decision of the [Secretary]." Id. The record before us does not disclose whether the Department of Veterans Affairs has issued regulations under section 4110. It appears from the plain wording of the section, however, that an action taken under 38 U.S.C. § 4110 is accorded administrative finality when: (1) no appeal is taken from a decision by the Chief Medical Director, or (2) a decision is rendered by the Secretary, pursuant to an appeal of such decision. See also Veterans Administration Medical Center, Northport, New York v. FLRA, 732 F.2d 1128, 1131 (2d Cir. 1984) (court stated that under section 4110, "peer review boards hold hearings, determine facts, and recommend disciplinary action to the Veteran's Administrator, whose decision is final.").
Applying the foregoing, we are unable to determine from the record before us whether the disputed proposed notices of discharge are consistent with final determination made by the Department of Veterans Affairs under title 38. It is undisputed that the complaint in this case issued, and the unfair labor practice hearing occurred, at a time when disciplinary proceedings under title 38 were pending.(12) Consistent with the record developed at the unfair labor practice hearing, the Judge's decision makes no reference to events subsequent to the disciplinary board hearings.
The Respondent asserts, without elaboration, that subsequent to the disciplinary board hearings, the Respondent "discharged nurse Ward and suspended nurse Bellomo." Opposition at 2. These assertions are undisputed. However, the Respondent further asserts that at the time its opposition was filed, Ward had "appealed his discharge to the VA Secretary[.]" Id. Although it is possible to infer from the Respondent's opposition that no appeal was filed regarding suspension and that, accordingly, that action is final, we are unwilling to make that finding in the absence of further information in the record.
As we are unable, on the basis of this record, to resolve the complaint, we will remand the complaint to the Judge. On remand, absent settlement, the Judge must determine, consistent with this decision and VA Medical Center, whether the disputed proposed discharges are consistent with final action taken by the Respondent pursuant to its exclusive authority under title 38.(13) If the proposed discharges are consistent with such final action, the complaint must be dismissed. If the proposed discharges are not consistent with such final action, the Judge must resolve the merits of the complaint.
The complaint is remanded to the Judge for further proceedings consistent with this decision.
(If blank, the decision does not have footnotes.)
1. A single complaint issued consolidating separate charges.
2. 38 U.S.C.§ 4104 provides, in pertinent part:
There shall be appointed by the Administrator . . . personnel as the Administrator may find necessary . . . as follows:
(1) Physicians . . . nurses . . . and expanded-function dental auxiliaries[.]
3. 38 U.S.C.§ 4110 provides, in pertinent part:
§ 4110 Disciplinary boards
(a) The Chief Medical Director . . . shall from time to time appoint boards to be known as disciplinary boards . . . to determine, upon notice and fair hearing, charges of inaptitude, inefficiency, or misconduct . . . .
. . . .
(d) A disciplinary board . . . shall recommend . . . suitable disciplinary action . . . which shall include . . . discharge from the Department of Medicine and Surgery of such person. The Administrator shall . . . approve . . . or disapprove such recommendation. . . . The decision of the Administrator shall be final.
(e) The Administrator . . . may delegate to the Chief Medical Director the authority vested in the Administrator by subsection . . . (d) . . . . Any person against whom disciplinary action is taken under authority delegated pursuant to this subsection shall have the right to appeal such action to the Administrator, but in the absence of such an appeal the decision of the Chief Medical Director shall have the same force and effect as a decision of the Administrator.
4. 38 U.S.C. § 4119 provides:
Notwithstanding any other provision of law, no provision of title 5 or any other law pertaining to the civil service system which is inconsistent with any provision of this subchapter shall be considered to supersede, override, or otherwise modify such provision of this subchapter except to the extent that such provision of title 5 or of such other law specifically provides, by specific reference to a provision of this subchapter, for such provision to be superseded, overridden, or otherwise modified.
5. The record contains no details regarding Bellomo's suspension. Although the Respondent notes that Ward appealed his discharge to the Secretary of Veterans Affairs, the record does not disclose the results of that appeal.
6. Although it is not clear that the Judge dismissed the complaint because of a finding that the Authority lacked jurisdiction, the Respondent so interprets the decision. See Respondent's Opposition at 1 ("VA urges the Authority . . . to sustain . . . that part of the ALJ's ruling that the Authority lacks jurisdiction[.]").
7. See Judge's Decision at 2 (Judge stated that he would find a violation of the Statute "[i]f . . . Ward and Bellomo were deemed to be protected by the Statute[.]").
8. Section 7116(a)(2) provides that it is an unfair labor practice for an agency "to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment[.]" Section 7116(a)(4) makes it an unfair labor practice for an agency "to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under this chapter[.]"
9. 38 U.S.C. § 4106 provides, in relevant pert:
(a) Appointments of physicians, dentists, podiatrists, optometrists, and nurses shall be made only after qualifications have been satisfactorily established . . . .
(b) Such appointments . . . shall be for a probationary period of two years and the record of each person serving under such appointment . . . shall be reviewed from time to time by a board, appointed in accordance with regulations of the Administrator, and if said board shall find such person not fully qualified and satisfactory such person shall be separated from the service.
10. Compare Giordano v. Roudebush, 617 F.2d 511, 517 (8th Cir. 1980) ("The summary procedures of [38 U.S.C. §] 4106 governing probationary employees was obviously intended to provide review by a peer committee and upon the Board's recommendation, summary discharge without further review.") with Gilbert v. Johnson, 601 F.2d 761, 766 (5th Cir. 1979) (court stated that in reviewing action taken under 38 U.S.C. § 4110, the "only question . . . is whether the administrative record demonstrates that the [employee] had adequate notice and opportunity to be heard and a decision in accord with the charges made and whether the decision was arbitrary or capricious.").
11. We do not hold that a complaint alleging a violation of section 7116(a)(2) or (a)(4) may not issue until the administrative conclusion of title 38 proceedings. We hold only that such a complaint may not be adjudicated until that time.
12. The unfair labor practice hearing took place shortly after Ward's and Bellomo's disciplinary board hearings.
13. In determining such consistency, we find no basis on which to conclude, and none is urged for concluding, that mitigation of penalty, standing alone, would demonstrate that the proposed discharges are unlawful under the Statute.