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49:1624(149)CA - - VA Medical Center, Leavenworth, KS and NFFE, Local 1765 - - 1994 FLRAdec CA - - v49 p1624

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The decision of the Authority follows:

49 FLRA No. 149










LOCAL 1765

(Charging Party)




July 21, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to afford representation to an employee at an examination in connection with an investigation under section 7114(a)(2)(B) of the Statute. Both the Respondent and the Charging Party filed exceptions to the Judge's decision. The General Counsel and the Charging Party filed oppositions to the Respondent's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommendations, only to the extent consistent with this decision.

II. Background and Judge's Decision

On February 21, 1992, a probationary registered nurse was separated from her employment with the Respondent. Prior to the employee's separation, a peer review hearing was held by a Nurse Professional Standards Board (NPSB) to discuss the incident that led to her termination. The employee was advised that she was not entitled to union representation at the hearing. The record shows that the employee appeared at the hearing without such representation.

The Judge found that the Authority's decision in Department of Veterans Affairs, Veterans Affairs Medical Center, Jackson, Mississippi, 48 FLRA 787 (1993) (VAMC I) was dispositive of the issues raised in this case. The Judge's decision was issued prior to the Authority's reconsideration of VAMC I in Department of Veterans Affairs, Veterans Affairs Medical Center, Jackson, Mississippi, 49 FLRA 171 (1994) (VAMC II), reconsideration denied, 49 FLRA 701 (1994) (VAMC III), petition for review filed, No. 94-40347 (5th Cir. Apr. 26, 1994). In VAMC I, the Authority found a violation of the Statute based on the refusal to allow a union representative to speak or otherwise participate in NPSB meetings involving probationary registered nurses. The Authority rejected a number of arguments advanced by the Department of Veterans Affairs (Department) in finding, among other things, that the NPSB meetings were examinations covered by section 7114(a)(2)(B) of the Statute.

In this case, the Judge concluded, for the reasons more fully expressed in VAMC I, that the Respondent violated section 7116(a)(1) and (8) of the Statute when it refused to allow a Union representative to participate at the employee's NPSB hearing. As a remedy, the Judge ordered the Respondent to repeat the NPSB review, on request of the Union, and to make the employee whole if warranted by the outcome of the hearing. The Judge rejected the Charging Party's request to reinstate the employee to her position.

III. Positions of the Parties

A. Charging Party's Exceptions

The Charging Party excepts only to the Judge's failure to order reinstatement of the employee. The Charging Party maintains that under the Fifth Amendment to the U.S. Constitution, a Federal employee whose removal is predicated on a failure to comply with procedural requirements contained in law or regulation is entitled to reinstatement with backpay. According to the Charging Party, the failure to comply with section 7114(a)(2)(B) of the Statute deprived the employee of due process and, essentially, created the entitlement to reinstatement. The Charging Party also requests the Authority to reverse its precedent holding that reinstatement orders are not appropriate remedies for violations of section 7114(a)(2)(B) of the Statute.

B. Respondent's Exceptions

The Respondent asserts that the Authority's decision in VAMC I was erroneous and, in support, incorporates the arguments it made in its request for reconsideration of VAMC I.

C. Oppositions to Respondent's Exceptions

1. General Counsel

The General Counsel maintains that the Respondent's arguments were rejected by the Authority in VAMC I and should be rejected here.

2. Charging Party

The Charging Party, whose opposition was filed after the Authority issued VAMC II, claims that the Authority committed "errors" in that decision. Charging Party's Opposition at 2. Essentially, the Charging Party argues that the right to representation is a fundamental right unrelated to collective bargaining and, as such, "is not constrained by any of the restrictions on the scope of bargaining--whether found in 38 U.S.C. § 7422(b) or 5 U.S.C. § 7106(a)." Id. at 11. The Union further argues that the Department has a mandate to respect the fundamental rights recognized in the Statute, including the right established by section 7114(a)(2)(B), and that "this specific mandate supersedes the . . . general right to prescribe regulations on matters affecting working conditions." Id. (footnote omitted). Accordingly, the Charging Party requests the Authority to affirm the Judge's decision, except for modifying the remedial order in accordance with the Charging Party's exceptions.

IV. Authority's Decision in VAMC II

In VAMC II, we reversed our finding in VAMC I that the Department could not, by regulation, limit or override the rights outlined in section 7114(a)(2)(B) of the Statute. In reaching that result, we took into account the decision of the United States Court of Appeals for the District of Columbia Circuit in U.S. Department of Veterans Affairs v. FLRA, 9 F.3d 123 (D.C. Cir. 1993). In that case, and as relevant here, the court found that the Department was free to prescribe regulations governing peer review procedures for "nonhybrid employees," i.e., professional medical employees, without regard to the bargaining and representational rights and obligations set forth in the Statute, other than those statutory rights specifically referencing title 38 employees. We stated that we would adhere to and henceforth follow the court's decision. We further found that the Department had promulgated a regulation, VA Manual MP-5, Part II, Chapter 4.06(4), precluding union representation in probationary peer review hearings and that nothing in section 7114(a)(2)(B) of the Statute specifically referenced title 38 employees so as to permit union representation.(1) As a result, we found that the refusal to permit union representatives to participate in the peer review hearings did not violate the Statute and we dismissed the consolidated unfair labor practice complaint.

V. Analysis and Conclusions

The complaint in this case alleged a violation of section 7116(a)(1) and (8) of the Statute based on the Respondent's refusal to permit union representation at a peer review hearing. Consistent with our decision in VAMC II, we find that the Respondent did not violate the Statute. In this connection, and as we stated in VAMC II, the Department was free to promulgate regulations precluding union representation at peer review hearings. Although the Respondent did not rely on a regulation in denying the employee's request for representation, the Respondent's opening statement at the unfair labor practice hearing explicitly referenced an agency regulation governing the employee's probationary period.(2) Specifically, the Respondent stated that the employee was "hired as a probationary employee under 38 USC 7403 with a two-year probationary period subject to review under Department of Veterans Affairs manual provision MP-5, Part 2, Chapter 4." Transcript at 51. Obviously, the referenced regulation is the same regulation that was found in VAMC II to contain a prohibition on union representation at professional standards board reviews. Consequently, and as explained more fully in VAMC II, the Respondent was under no obligation to permit the employee to have union representation at the NPSB hearing and its conduct in refusing to allow such representation did not violate the Statute.

In light of our conclusion, there is no basis on which to grant the relief requested by the Charging Party in its exceptions or to reconsider our precedent on remedial relief for violations of section 7114(a)(2)(B) of the Statute. We also find no merit to the Charging Party's arguments in its opposition that the right to representation is unconstrained by restrictions on the scope of bargaining and that Congress mandated the right to representation, which mandate supersedes the Department's right to promulgate regulations on working conditions. The Authority rejected essentially the same argument in VAMC III, 49 FLRA at 704, finding that the union had failed to support its assertion. Similarly here, the Union has failed to provide support for its contentions. Moreover, as we stated in VAMC II, the Department is authorized to prescribe regulations "without regard to" the representational rights set forth in the Statute, unless there is a specific reference to title 38 employees in the Statutory section at issue. 49 FLRA at 175. As noted in VAMC II, there is nothing in section 7114(a)(2)(B) of the Statute that specifically references title 38 employees.

In sum, we find that the Respondent did not violate the Statute when it denied union representation at the employee's NPSB hearing. Accordingly, we will dismiss the complaint in this case.

VI. Order

The complaint is dismissed.

(If blank, the decision does not have footnotes.)

1. As we noted in VAMC II, that regulation provides that affected employees are entitled to notification of reviews by a professional standards board and that such notification must include, among other things:

Notification that the review is being conducted during the employee's probationary period and that he has no entitlement to legal or other representation. However, upon request, he will be given assistance in preparing his case, or he may seek assistance in his behalf from within the VA.

2. In denying representation, the Respondent maintained that probationary employees have no right to appeal or grieve their separation during the probationary period, that separation during the probationary period is not covered by adverse action procedures contained in the parties' collective bargaining agreement, and that the grievant's termination involved a peer review matter that was exempt from coverage under the Statute.