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51:1741(147)CA - - VA Medical Center, Hampton, VA and AFGE Local 2328 // [ Veterans Affairs ] - - 1996 FLRAdec CA - - v51 p1741

[ v51 p1741 ]
The decision of the Authority follows:

51 FLRA No. 147











(Charging Party/Union)


(51 FLRA 84 (1995))



July 31, 1996

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This case is before the Authority on the Respondent's motion for reconsideration of the Authority's decision in 51 FLRA 84 (1995). The General Counsel filed an opposition to the Respondent's motion. The Union did not file a brief.

Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of the Authority decision. For the reasons that follow, we conclude that extraordinary circumstances exist warranting reconsideration of certain aspects of our original decision. On reconsideration, we reaffirm our earlier determination.

II. The Decision in 51 FLRA 84

In 51 FLRA 84, the Authority decided, over Respondent's objections, that the Authority had jurisdiction to review whether the Department of Veterans Affairs (VA) had violated section 7114(a)(2)(B) of the Federal Service Labor-Management Relations Statute (the Statute) (5 U.S.C. § 7101, et seq.). In reaching this conclusion, the Authority noted that pursuant to 38 U.S.C. § 7421 (VA Statute, section 7421) the Secretary of Veterans Affairs may prescribe regulations that override rights granted by the Statute. However, unlike a previous case reviewed by the Authority,(1) the Authority found no assertion by the VA that the Secretary had exercised this authority in this instance. 51 FLRA at 88. Second, the Authority noted that the Union had not sought to bargain over the Secretary's section 7421 right to prescribe such a regulation. As a result, contrary to the VA's argument, the Authority concluded that 38 U.S.C. § 7422 (section 7422) was not implicated and the limitation on the Authority's jurisdiction in section 7422(d) was not applicable. Id.

On consideration of the merits of the case, the Authority adopted the Administrative Law Judge's conclusion that the Respondent had violated section 7114(a)(2)(B) (also known as the "Weingarten" provision) of the Statute by not allowing an employee's representative to speak or otherwise actively participate in a "board of investigation" conducted by the Respondent. The Authority found that the VA had thus committed an unfair labor practice (ULP) and violated section 7116(a)(1) and (8) of the Statute. An appropriate remedy was ordered. Id.

III. Motion for Reconsideration

A. Respondent's Contentions

The VA filed a timely request for reconsideration, wherein it raises arguments that relate to both the interpretation of the VA Statute and to the existence and content of its regulations. The VA's argument concerning the VA Statute is that the Authority erred in concluding that the VA was obliged to have prescribed a regulation in this case. The VA argues that under section 7422(b) "collective bargaining" may not apply to matters involving professional conduct or competence and under section 7422(d) the VA Secretary has exclusive authority to determine whether a matter involves professional conduct or competence. Because, in the VA's view, the Weingarten right and the unfair labor practice provisions of the Statute are part of collective bargaining, the issuance of a regulation is not required in order for the Secretary to exercise his authority under section 7422.

With respect to its regulations, the VA makes two arguments. First, while continuing to maintain that the issuance of a regulation is unnecessary, the VA argues that it did assert that it had issued regulations concerning its quality assurance investigations in a motion to dismiss filed prior to the hearing conducted by the Administrative Law Judge. Second, the VA points out that in the same motion to dismiss it argued that the Weingarten right was inapplicable in this case because discipline cannot result from quality assurance investigations and a condition of the Weingarten right is that the affected employee reasonably fear discipline. The VA asserts that the Authority erred in failing to acknowledge or address this objection.

B. General Counsel's Opposition

In the response to the VA's request for reconsideration, Counsel for the General Counsel (hereinafter, General Counsel) asserts that the VA's argument that the issuance of a regulation is unnecessary and that the Statute is inapplicable in this case constitute mere disagreement with and an attempt to relitigate the Authority's interpretation of the VA Statute and precedent interpreting the VA Statute. As such, the General Counsel argues that these contentions do not establish extraordinary circumstances.

With respect to the quality assurance regulations, the General Counsel argues that the VA mischaracterizes the finding in this case. According to the General Counsel, the Authority found "no assertion by the Respondent that it has exercised its authority under section 7421 to prescribe a regulation overriding unit employees' rights to union representation at quality assurance investigations." (citation omitted) (emphasis in text). General Counsel's Response at 2. The General Counsel notes that the VA's regulations provide for bargaining unit employees to have union representation when being questioned at quality assurance investigations. As for the VA's argument that the Weingarten right is inapplicable because discipline cannot result, the General Counsel asserts that this was not raised as an exception to the Judge's decision and, thus, under 5 C.F.R. § 2423.27, has been waived. The General Counsel also asserts that the VA has failed to establish that the employee knew of any provision in the quality assurance regulation protecting the employee from discipline as a result of participation in a quality assurance investigation. Given this lack of knowledge, the General Counsel argues that despite the existence of the regulation, an employee might reasonably fear disciplinary action and thus be entitled to representation under 5 U.S.C. § 7114(a)(2)(B).

IV. Analysis and Conclusions

A. Extraordinary Circumstances Warranting Reconsideration

Under the Authority's Regulations, a party seeking reconsideration bears a heavy burden of establishing that extraordinary circumstances exist warranting reconsideration of the Authority's earlier decision. U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 50 FLRA 84, 85 (1995) (Scott Air Force Base). Mere disagreement with or attempts to relitigate conclusions reached by the Authority are insufficient to satisfy the extraordinary circumstances requirement. U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Stockton, California and American Federation of Government Employees, Local 1857, 48 FLRA 543, 545 (1993). In this case, for reasons discussed below, we find that the VA has failed to establish extraordinary circumstances with respect to its arguments concerning the interpretation of 38 U.S.C. §§ 7421 and 7422. On the other hand, we grant reconsideration of the VA's arguments concerning its regulations.

1. Respondent's Statutory Arguments

The arguments that the VA advances concerning the interpretation of the VA Statute are the same arguments that the VA previously made to the Authority. As noted above, the VA contends that the Authority is without jurisdiction in this case because, under section 7422, the rights at issue -- Weingarten and the ULP provisions in the Statute -- involve "collective bargaining" and the matter at issue -- a "board of investigation" -- involves professional conduct and competence. The Authority previously rejected these objections to the Authority's jurisdiction. 51 FLRA at 86-87.

In its reconsideration request, the VA continues to argue that the rights at issue involve collective bargaining and that the case begins and ends in section 7422. The Authority, however, rejected these assertions in concluding that section 7422, by its terms,(2) is inapplicable unless the Secretary exercises his regulatory authority, pursuant to section 7421, to override rights under the Statute.(3) 51 FLRA at 88. The United States Court of Appeals for the D.C. Circuit has recognized that, even prior to Congress enacting specific legislation codifying the "right to negotiate collective bargaining agreements, . . . [Title 38 employees] had and retain other rights protected by the [Statute]." U.S. Department of Veterans Affairs v. FLRA, 1 F.3d 19, 21 (D.C. Cir. 1993).(4) In its earlier decision, the Authority adverted to this determination by the Court. 51 FLRA at 88 n.4. Thus, the effect of the Authority's decision is to reject the VA's argument that the Weingarten and ULP provisions of the Statute exist only in the context of "collective bargaining" under 7422(a) and to conclude instead that the rights at issue in this case are among those rights retained and protected by the Statute. In our view, those rights, and our jurisdiction to enforce them, are extant unless the VA Secretary, pursuant to section 7421, prescribes a regulation to the contrary as he did in VAMC II. 49 FLRA at 175. Thus, this portion of the VA's motion for reconsideration constitutes mere disagreement with and an attempt to relitigate an issue already decided by the Authority; as such, the VA has failed to establish extraordinary circumstances warranting reconsideration.

In denying reconsideration of the Respondent's statutory arguments, we note that in an exhibit to its motion to dismiss filed with the Judge, the VA included a letter from its Under Secretary for Health responding to the unfair labor practice complaint in this case. In the letter, the Under Secretary declares that because the ULP involves professional conduct and competence, it is outside the scope of collective bargaining under 38 U.S.C. § 7422. Notwithstanding the existence of this letter, we do not perform a deference analysis(5) because the VA has not asked the Authority to defer to the Under Secretary's response to the ULP and did not refer to this letter in its motion for reconsideration.

Even if we had been asked to accept the Under Secretary's interpretation, we would be reluctant to defer to a letter which, as evidenced by its opening sentence ("I am responding to the issues raised concerning the enclosed Unfair Labor Practice (ULP) charge filed by the American Federation of Government Employees (AFGE) local union."), is proffered for the sole purpose of supporting the VA's litigating position in this case. See U.S. Department of Justice, Federal Bureau of Prisons, Medical Facility for Federal Prisons and American Federation of Government Employees, Local 1612, 51 FLRA 1126, 1136 (1996), citing Nordell v. Heckler, 749 F.2d 47, 48 (D.C. Cir. 1984); but cf. General Services Administration v. FLRA, No. 95-1498, slip op. at 6 (D.C. Cir. June 14, 1996) (noting that court has deferred to agency litigating positions). Moreover, a review of the letter discloses that it addresses neither the interrelationship between sections 7421 and 7422 nor whether the prescribing of a regulation is necessary to override rights under the Statute; instead, the Under Secretary advances an argument that does not appear to be in dispute, i.e., that the quality assurance board of investigation in this case involved professional conduct and competence.

2. Respondent's Regulatory Arguments

With respect to its regulatory arguments, we find that the Respondent did assert, in the motion to dismiss filed with the Administrative Law Judge, the existence of its quality assurance regulations and also advanced the argument that the Weingarten right is inapplicable in this case because there could have been no reasonable fear of disciplinary action. Although the VA did not except to the Judge's decision in accordance with 5 C.F.R. § 2423.27 of the Authority's Regulations, we conclude that these arguments, which have not been addressed by either the Judge or the Authority, should be addressed. In this regard, the Authority has previously held that the VA Secretary may prescribe regulations overriding rights set forth in the Statute. VAMC II, 49 FLRA at 175. Accordingly, in light of the potential effect such regulations could have on the Authority's previous findings and conclusions, we find extraordinary circumstances and consider the VA's regulatory arguments.(6)

B. Reconsideration of Respondent's Regulatory Arguments

The Authority previously concluded that the Authority was not divested of jurisdiction in this case because the VA had not asserted that the Secretary had exercised section 7421 authority to override unit employees' rights under the Statute. 51 FLRA at 88. However, in light of the assertion on reconsideration that the VA has prescribed a regulation concerning quality assurance investigations, we examine the regulation to determine if it overrides the Statute.

1. The VA Regulation Does Not Override Rights Under Section 7114(a)(2)(B) of the Statute

As the VA noted in its motion to dismiss, VA quality assurance investigations are authorized and conducted pursuant to 38 C.F.R. § 17.508(c). The following provision is contained in the first subsection of the same section of the regulation upon which the VA relies:

An administration employee who is being questioned in the course of a quality assurance investigation and who is a bargaining unit member who requests union representation is entitled to it. This right arises as the result of labor law considerations.

38 C.F.R. § 17.508(c)(1)(7) The VA's regulation reaffirms the right to representation at quality assurance investigations. We note that the VA has neither referred to this provision, nor suggested how it should be interpreted.(8) Absent an explanation from the VA, we have no basis upon which to conclude that the right to representation under the VA regulation should be interpreted differently from the right to representation under the Statute. In light of the phraseology in the VA's regulation ("[t]his right arises as the result of labor law considerations"), it is both reasonable and logical to conclude that the VA has adopted section 7114(a)(2)(B) of the Statute as interpreted by the Authority. It further follows, and again in the absence of any explanation to the contrary, that the VA has adopted the right to representation as it is enforced by the Authority.(9) We thus agree with the General Counsel and conclude that even though the VA has prescribed a regulation, the regulation does not "overrid[e] unit employees' rights to union representation at quality assurance investigations." 51 FLRA at 88. Consequently, the Authority's earlier rationale and conclusion concerning this argument remain valid.

2. The Weingarten Right is Applicable

The VA regulations provide that:

Quality assurance investigation records and documents cannot be used by Department employees as evidence, or relied upon in a manner which could require them to be treated as evidence so that they would be subject to mandatory disclosure in an administrative, statutory or judicial process.

38 C.F.R. § 17.508(c)(5). Because of this provision, VA argues that information obtained in a quality assurance investigation cannot be used as evidence in a personnel action. Motion to Dismiss at 2-3. As a result, in VA's view, a necessary precondition to the invocation of the Weingarten right -- a reasonable belief that discipline may result from the investigation -- is missing.

The VA is correct that under the Statute, a requirement for the exercise of the Weingarten right is that "the employee reasonably believe[] that the examination may result in disciplinary action against the employee." 5 U.S.C. § 7114(a)(2)(B)(i). However, the VA has failed to establish that this precondition on the exercise of the Weingarten right is not present in this case.

First, and as the General Counsel argues, the VA has not asserted that the employee was advised or otherwise knew of the provision in the regulation placing limits on the use of information obtained during the investigation. The Weingarten right applies "whenever the circumstances surrounding an investigation make it reasonable for the employee to fear that his answers might lead to discipline. The possibility, rather than the inevitability, of future discipline determines the employee's right to union representation." American Federation of Government Employees, Local 2544 v. FLRA, 779 F.2d 719, 723 (D.C. Cir. 1986) (Local 2544) (emphasis in text).

Second, although the cited provision in the regulation would place limits on the use of quality assurance investigation records and documents, the VA fails to mention a qualification on this provision in the immediately preceding sentence in the same subsection of the regulation:

VA employees with an official need to know may have access to quality assurance investigation records and documents for nonquality assurance purposes, in order to ascertain sufficient background information to conduct a separate and independent nonquality assurance investigation, e.g., personnel action. . . .

38 C.F.R. § 17.508(c)(5). Through this provision the VA clearly contemplates that a quality assurance investigation could prompt an investigation which would result in disciplinary action against the employee. In an analogous context, the Authority has determined that the Weingarten right applies. Internal Revenue Service, Washington D.C. and Internal Revenue Service, Hartford District Office, 4 FLRA 237, 250-51 (1980), enforced sub nom. Internal Revenue Service, etc. v. FLRA, 671 F.2d 560 (D.C. Cir. 1982) (Weingarten violation found despite the fact that employee being interviewed was not the subject of the investigation and anything he revealed, which would have rendered him liable for discipline, would not have been directly pursued, but, instead would have been forwarded to other agency officials); see also Local 2544, 779 F.2d at 724 (right to representation applies "even if employer does not contemplate taking any disciplinary action at the time of the interview").

Third, the VA ignores the provision in its own regulation (38 C.F.R. § 17.508(c)(1)), discussed in the preceding section, specifically authorizing bargaining unit employees the right to representation during quality assurance investigations. We would have difficulty in construing the VA's regulation as specifically acknowledging the Weingarten right during an investigation and, at the same time, nullifying the right previously acknowledged through a general provision placing limits on the use of information obtained in the investigation.

In sum, the VA has not asserted that the employee was aware of the regulatory provision placing limits on the use of evidence obtained at quality assurance investigations. Nor has the VA explained why an employee would not reasonably believe discipline could result when the VA's own regulation provides that information revealed during a quality assurance investigation can lead to a second investigation for the purpose of taking a personnel action. Lastly, the VA has failed to explain how a right expressly acknowledged by one provision in its regulations has been inferentially denied by a different provision in its regulation. For these reasons, we reject the VA's argument that the Weingarten right is inapplicable because this argument is inconsistent with the VA's own regulation. United States v. Larionoff, 431 U.S. 864, 872 (1977) (agency's interpretation of its regulations is given "controlling weight unless it is plainly erroneous or inconsistent with the regulation," quoting Bowles v. Seminole Rock Co., 325 U.S. 410, 414 (1945)). We conclude that the Respondent's regulations reaffirm rather than negate that the Statute's Weingarten right was applicable at the time the employee was questioned at the quality assurance investigation.

V. Order

On review we determine that the prior order of the Authority remains appropriate.

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

1. Department of Veterans Affairs, Veterans Affairs Medical Center, Jackson, Mississippi, 49 FLRA 171 (1994) (VAMC II), reconsideration denied, 49 FLRA 701 (1994), affirmed sub nom. National Federation of Federal Employees, Local 589 v. FLRA, 73 F.3d 390 (D.C. Cir. 1996) (NFFE, Local 589).

2. "[T]he authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment . . . ." 38 U.S.C. § 7422(a) (emphasis added).

3. The Respondent correctly asserts (see section III A., supra) that the VA Secretary has prescribed a regulation pursuant to section 7421. However, our jurisdiction is unaffected because we conclude that the regulation does not override rights guaranteed under the Statute (see section IV.B.1., infra).

4. Subsequent to the issuance of the decision in 51 FLRA 84, in affirming the Authority's decision in VAMC II, the Court declined to address whether Title 38 employees would have Weingarten rights under the Statute in the absence of a VA regulation to the contrary. NFFE, Local 589, 73 F.3d at 394 n.11.

5. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (Chevron).

6. We have previously noted that erroneous conclusions of law or fact are an appropriate basis for reconsideration. Scott Air Force Base, 50 FLRA at 87.

7. Effective January 23, 1995, the section was deleted from the regulations. 59 Fed. Reg. 53,354 (1994). However, the provision was in effect when the employee involved appeared before the board of investigation on August 20, 1992. 55 Fed. Reg. 13,532 (1990). Therefore, we will apply the provision in this case.

8. For this reason, we do not perform a Chevron analysis concerning this provision.

9. The phrase "labor law considerations" infers, in both the private and public sectors, that there will be neutral third party adjudicators (arbitrators and administrative agencies such as the National Labor Relations Board, 29 U.S.C. § 153; the National Mediation Board, 45 U.S.C. § 154; and the FLRA, 5 U.S.C. § 7104) who will interpret and enforce rights, as well as recourse to the courts upon appeal. We are aware of nothing in the VA's regulation establishing a different dispute resolution system.