[ v01 p639 ]
01:0639(72)CA
The decision of the Authority follows:
1 FLRA No. 72
VETERANS ADMINISTRATION,
WASHINGTON, D.C.
Respondent
and
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1631
Complainant
Assistant Secretary
Case No. 63-8020(CA)
DECISION AND ORDER
ON JANUARY 22, 1979, ADMINISTRATIVE LAW JUDGE JOHN V. EVANS ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANT FILED TIMELY
EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
SUBJECT CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY
HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS /1/
AND RECOMMENDATIONS. /2/
ORDER /3/
IS IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 63-8020(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 19, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
D. KEITH ROLLINS
ATTORNEY AT LAW
OFFICE OF DISTRICT COUNSEL
VETERANS ADMINISTRATION
1400 NORTH VALLEY MILLS DRIVE
WACO, TEXAS 76710
FOR THE RESPONDENT
JOHN P. HELM
STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
1016 16TH STREET, N.W.
WASHINGTON, D.C. 20036
FOR THE COMPLAINANT
BEFORE: JOHN V. EVANS
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
THIS PROCEEDING ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED, AND
WAS INITIATED BY A COMPLAINT FILED DECEMBER 13, 1977, BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, ON BEHALF OF LOCAL 1631 AGAINST THE
VETERANS ADMINISTRATION. THE COMPLAINT ALLEGES VIOLATIONS OF SECTION
19(A), AND SUBSECTIONS (1), (2) AND (4) OF THE EXECUTIVE ORDER.
SPECIFICALLY THE VIOLATION IS STATED TO HAVE OCCURRED OCTOBER 3, 1977,
WHEN THE VETERANS ADMINISTRATION THROUGH ITS AGENT, THOMAS FITZGERALD,
M.D., ISSUED AN "INTENT TO REPRIMAND" LETTER TO MS. LENA HALL, PRESIDENT
OF LOCAL 1631, OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES.
THE MATTER WAS SET FOR HEARING ON OCTOBER 31, 1978, IN AMARILLO,
TEXAS, AND BY MAILGRAM DATED OCTOBER 20, 1978, COUNSEL FOR BOTH PARTIES
REQUESTED A CONTINUANCE AND LEAVE TO FILE A STIPULATION. ON DECEMBER 4,
1978, A STIPULATION OF FACTS AND EXHIBITS WAS FILED. BOTH SIDES
REQUESTED AN ADDITIONAL 15 DAYS FOR THE FILING OF BRIEFS. A BRIEF ON
BEHALF OF THE RESPONDENT WAS FILED DECEMBER 19, 1978. ON JANUARY 9,
1979, COUNSEL FOR COMPLAINANT FILED A LETTER IN LIEU OF A BRIEF.
A MOTION, BY THE RESPONDENT, TO DISMISS THE COMPLAINT WAS FILED ON
JULY 18, 1978. RESPONDENT BY ITS MOTION URGED THAT THE COMPLAINT BE
DISMISSED AS PROVIDED UNDER SECTION 19(D) OF THE EXECUTIVE ORDER, CITING
A GRIEVANCE HEARING OF APRIL 28, 1978, REQUESTED BY THE COMPLAINANT AS
BEING AN APPEALS PROCEDURE WHEREIN THE SAME ISSUES AS THIS COMPLAINT HAD
BEEN RAISED AND RESOLVED AGAINST THE EMPLOYEE MS. LENA HALL. IT IS
NOTED THAT VETERANS ADMINISTRATION NURSES ARE EMPLOYED UNDER TITLE 30 OF
THE UNITED STATES CODE. UNDER THE PROVISIONS OF SECTION 4110 OF TITLE
30 THE RECOMMENDATIONS OF THE DISCIPLINARY BOARD TO THE ADMINISTRATOR AS
TO SUITABLE DISCIPLINARY ACTION, IF APPROVED BY THE ADMINISTRATOR, IS A
FINAL DECISION.
IT HAS BEEN PREVIOUSLY HELD THAT THE TERM "APPEALS PROCEDURE" AS SET
FORTH IN SECTION 19(D) OF THE ORDER IS NOT INTENDED TO ENCOMPASS APPEALS
PROCEDURES WHICH DO NOT PROVIDE FOR THIRD PARTY REVIEW OF AN AGENCY
ACTION. REVIEW IS NOT PROVIDED FOR UNDER TITLE 30. VETERANS
ADMINISTRATION, NORTH CHICAGO VETERANS HOSPITAL, NORTH CHICAGO,
ILLINOIS, A/SLMR NO. 1024. ACCORDINGLY, SECTION 19(D) IS FOUND NOT TO
BE APPLICABLE IN THIS CASE AND RESPONDENT'S MOTION TO DISMISS IS
OVERRULED.
FACTS
THE STIPULATION OF FACTS AND EXHIBITS PROVIDES AS FOLLOWS:
1. THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES IS AND HAS BEEN
SINCE 1969 THE EXCLUSIVE REPRESENTATIVE OF THE NURSES AT THE AMARILLO,
TEXAS VETERANS HOSPITAL.
2. IN 1976 AND 1977, THE PRESIDENT OF NFFE LOCAL 1631 WAS LENA HALL.
3. DURING 1976, THE NURSES AT THE AMARILLO, TEXAS VA HOSPITAL BECAME
CONCERNED WITH THE SCHEDULING OF MEDICAL OPERATIONS AND THE QUALITY OF
PATIENT CARE AT THE HOSPITAL.
4. AFTER INITIAL ATTEMPTS BY INDIVIDUAL NURSES TO RESOLVE QUESTIONS
AND PROBLEMS ABOUT SCHEDULING AND PATIENT CARE, THE NURSES TURNED TO
THEIR RECOGNIZED EXCLUSIVE REPRESENTATIVE, NFFE LOCAL 1631, FOR
ASSISTANCE.
5. THE PRESIDENT OF NFFE LOCAL 1631, MS. LENA HALL, ACTING ON BEHALF
OF THE LOCAL MET WITH HOSPITAL REPRESENTATIVES IN OCTOBER 1976, TO
PRESENT THE POSITION OF THE NURSES WITH REGARD TO SCHEDULING AND PATIENT
CARE. SEE JOINT EXHIBIT 1, A MEMORANDUM FROM NFFE LOCAL 1631 TO LEON E.
EDMAN, DIRECTOR.
6. ON OR ABOUT OCTOBER 5, 1976, MS. HALL, AS LOCAL 1631 PRESIDENT,
SOUGHT THE ASSISTANCE OF THE NFFE IN AN EFFORT TO PRESENT THE NURSES'
POSITION ABOUT PATIENT CARE AT THE AMARILLO VA HOSPITAL.
7. IN WORKING WITH THE NFFE, MS. HALL, AS LOCAL UNION PRESIDENT,
PROVIDED THE NFFE NATIONAL PRESIDENT WITH A LIST OF PATIENT NAMES AND
SUMMARY DIAGNOSIS AS DEVELOPED FROM INFORMATION GATHERED FROM NURSES IN
THE BARGAINING UNIT TO DEMONSTRATE THE NEED FOR A REVIEW OF THE QUALITY
OF PATIENT CARE AT THE HOSPITAL. SEE JOINT EXHIBIT 2, A LETTER FROM
LENA HALL TO NFFE PRESIDENT WOLKOMIR DATED OCTOBER 15, 1976.
8. THE NFFE, IN TURN, PROVIDED THIS INFORMATION BY LETTER DATED
OCTOBER 20, 1976, TO THE VA CENTRAL OFFICE IN A REQUEST FOR A REVIEW OF
PATIENT CARE STANDARDS AT THE HOSPITAL. SEE JOINT EXHIBIT 2A, A LETTER
FROM NFFE PRESIDENT WOLKOMIR TRANSMITTING THE LETTER OF LENA HALL.
9. A PROMPT INVESTIGATION WAS CONDUCTED BY DR. HUGHES FROM THE VA
CENTRAL OFFICE. THE INVESTIGATION WAS CONDUCTED FROM NOVEMBER 2 THROUGH
NOVEMBER 4, 1916, AT THE HOSPITAL AS A RESULT OF THE LETTER FROM NFFE.
SEE COMPLAINANT'S EXHIBIT 1, A MEMORANDUM FROM DR. HUGHES DATED NOVEMBER
9, 1976, "SITE VISIT-- VAH AMARILLO, TEXAS-NOVEMBER 7, 1976," FROM DR.
CHASE TO THE NFFE NATIONAL PRESIDENT.
10. STATEMENTS MADE TO MS. HALL BY A VA CENTRAL OFFICE
REPRESENTATIVE AND A HOSPITAL REPRESENTATIVE DURING THE COURSE OF THE
INVESTIGATION LED TO THE FILING BY NFFE LOCAL 1631 OF AN UNFAIR LABOR
PRACTICE CHARGE AND COMPLAINT 63-7203(CA) HEARD BY ALJ WALLEY ON
NOVEMBER 11, 1977. SEE JOINT EXHIBIT 4, A LETTER DECISION BY THE
ASSISTANT SECRETARY DATED SEPTEMBER 2, 1977, DIRECTING THE REGIONAL
ADMINISTRATOR TO ISSUE A NOTICE OF HEARING; JOINT EXHIBIT 5, A LETTER
DATED SEPTEMBER 26, 1977, FROM THE REGIONAL ADMINISTRATOR NOTIFYING THE
PARTIES OF A HEARING; JOINT EXHIBIT 6, THE RECOMMENDED DECISION AND
ORDER OF ADMINISTRATIVE LAW JUDGE BEN H. WALLEY, DATED JUNE 21, 1978;
AND JOINT EXHIBIT 7, A LETTER DATED SEPTEMBER 27, 1978, FROM THE
DIRECTOR OF THE OFFICE OF FEDERAL LABOR-MANAGEMENT RELATIONS
TRANSMITTING THE DECISION AND ORDER OF THE ASSISTANT SECRETARY.
11. ON MONDAY, NOVEMBER 8, 1976, MR. EDMAN, THE AMARILLO VA HOSPITAL
DIRECTOR, ADVISED MS. HALL AND OTHERS PRESENT DURING A LABOR RELATIONS
MEETING THAT NO REPRISALS WOULD BE TAKEN AT THIS TIME OR ANY TIME IN THE
FUTURE, AS A RESULT OF REPORTING SITUATIONS THEY DEEMED IMPORTANT. SEE
JOINT EXHIBIT 8, "MINUTES OF MEETING BETWEEN LOCAL 1631 AND MANAGEMENT"
AND ATTACHED DRAFT OF MINUTES.
12. IN A LETTER DATED SEPTEMBER 26, 1977, THE LMSA REGIONAL
ADMINISTRATOR ISSUED A "NOTICE OF HEARING" IN 63-7203(CA). SEE JOINT
EXHIBIT 5.
13. MS. HALL WAS ISSUED A LETTER OF "INTENT TO REPRIMAND" DATED
OCTOBER 3, 1977, AND SIGNED BY MR. THOMAS J. FITZGERALD. SEE JOINT
EXHIBIT 9, A LETTER OF "INTENT TO REPRIMAND."
14. THE LETTER OF "INTENT TO REPRIMAND" WAS ISSUED BECAUSE OF MS.
HALL'S DISCLOSURE OF PATIENT INFORMATION TO THE PRESIDENT OF NFFE.
15. THE "INTENT TO REPRIMAND" LETTER WAS MADE THE SUBJECT OF AN
UNFAIR LABOR PRACTICE CHARGE FILED BY NFFE AGAINST THE ADMINISTRATOR OF
THE VA IN A MAILGRAM DATED 10/25/77.
16. ON DECEMBER 2, 1977, THE NFFE FILED THE COMPLAINT IN THIS CASE.
17. ON DECEMBER 20, 1977, THE VA PROVIDED MS. HALL WITH A COPY OF
THE DECISION TO REPRIMAND HER FOR HER ACTIONS IN OCTOBER 1976.
18. MS. HALL WAS THE ONLY EMPLOYEE REPRIMANDED IN THIS MATTER.
19. THE ATTACHED "INTERROGATORIES AND ANSWERS" OF DEXTER D. DIX ARE
SUBMITTED IN ACCORDANCE WITH THE PARTIES' AGREEMENT TO FOREGO A HEARING.
HAD THERE BEEN A HEARING, IT IS AGREED THAT MR. DIX WOULD HAVE
TESTIFIED AS REFLECTED BY THE ATTACHED ANSWERS.
20. BY AGREEMENT OF THE PARTIES, RESPONDENT SUBMITS R-1, MEMORANDUM
DATED DECEMBER 29, 1976, FROM THE CHIEF MEDICAL DIRECTOR TO VA GENERAL
COUNSEL; R-2 MEMORANDUM DATED JULY 5, 1977, FROM VA ASSISTANT GENERAL
COUNSEL TO CHIEF MEDICAL DIRECTOR; AND COMPLAINANT SUBMITS C-1, A
MEMORANDUM FROM DR. HUGHES DATED NOVEMBER 9, 1976.
ISSUE
DID RESPONDENT'S ACTION OF ISSUING AN "INTENT TO REPRIMAND" LETTER TO
MS. LENA HALL ON OCTOBER 31, 1977, CONSTITUTE AN UNFAIR LABOR PRACTICE
UNDER SECTIONS 19(A) (1), (2) AND (4) OF THE EXECUTIVE ORDER 11491, AS
AMENDED?
CONCLUSIONS
JOINT EXHIBIT 2 BEING A LETTER DATED OCTOBER 15, 1976, MS. LENA HALL
TO THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, NATIONAL HEADQUARTERS,
WASHINGTON, D.C., INCLUDED THE NAMES OF PATIENTS IN THE VETERANS
ADMINISTRATION HOSPITAL, AMARILLO, TEXAS.
PARAGRAPH 14 OF THE STIPULATION OF FACTS SETS FORTH THAT THE PARTIES
STIPULATE THAT THE LETTER OF "INTENT TO REPRIMAND" (JOINT EXH. 9) WAS
ISSUED BECAUSE OF MS. HALL'S DISCLOSURE OF PATIENT INFORMATION TO THE
PRESIDENT OF NFFE.
EXHIBIT R-2, DATED JULY 5, 1977, IS A LETTER FROM JOHN B. DE LEO,
ASSISTANT GENERAL COUNSEL OF THE VETERANS ADMINISTRATION, TO THE CHIEF
MEDICAL DIRECTOR SETTING FORTH VETERANS ADMINISTRATION REGULATION 576
WHICH SPECIFICALLY PROVIDES THAT THE VETERANS ADMINISTRATION WILL NOT
DISCLOSE ANY RECORDS CONTAINED IN A SYSTEM OF RECORDS BY ANY MEANS OF
COMMUNICATION TO ANY PERSON OR ANY OTHER AGENCY EXCEPT BY PRIOR WRITTEN
REQUEST OF THE INDIVIDUAL TO WHOM THE RECORDS PERTAIN. IT WAS THE
OPINION OF THE VETERANS ADMINISTRATION ASSISTANT GENERAL COUNSEL THAT
THE ACTIONS OF EMPLOYEE MS. LENA HALL IN DISCLOSING THE NAMES OF
PATIENTS IN HER LETTER OF OCTOBER 15, 1976 (JOINT EXH. 2) WERE A
VIOLATION OF THE PRIVACY ACT AND VETERANS ADMINISTRATION IMPLEMENTING
REGULATIONS AND MANUAL PROVISIONS.
IRRESPECTIVE OF WHAT MAY HAVE BEEN WELL INTENDED AND NOBLE MOTIVES IT
IS UNDISPUTED THAT LENA HALL DID IN FACT VIOLATE THE PRIVACY ACT AND THE
VETERANS ADMINISTRATION REGULATIONS REGARDING THE PRIVACY ACT IN
RELEASING THE NAMES OF PATIENTS IN HER LETTER OF OCTOBER 15, 1976 (JOINT
EXH. 2).
FOLLOWING THE JULY 15, 1977, LETTER OF VETERANS ADMINISTRATION
COUNSEL JOHN B. DE LEO, THE RESPONDENT ISSUED ITS OCTOBER 3, 1977,
LETTER OF "INTENT TO REPRIMAND." UNDER THE GIVEN FACTS AND THE
STIPULATION BY THE PARTIES THAT THE "INTENT TO REPRIMAND" WAS ISSUED
BECAUSE OF LENA HALL'S DISCLOSURE OF PATIENT INFORMATION TO THE
PRESIDENT OF NFFE, THERE DOES NOT APPEAR TO BE ANYTHING IN THE ACTIONS
OF THE RESPONDENT THAT CAN BE CONSTRUED AS AN UNFAIR LABOR PRACTICE.
UNDER THE CIRCUMSTANCES A FAILURE BY THE RESPONDENT TO HAVE ISSUED AN
INTENT TO REPRIMAND WOULD HAVE BEEN A DERELICTION OF ITS
RESPONSIBILITIES TOWARDS ITS PATIENTS AND OTHER EMPLOYEES.
NO UNFAVORABLE INFERENCES CAN BE DRAWN FROM THE TIME LAPSE BETWEEN
THE DATE OF MS. HALL'S OCTOBER 15, 1976, LETTER AND THE OCTOBER 3, 1977,
"INTENT TO REPRIMAND" LETTER. THE ANSWER OF DEXTER B. DIX, CHIEF
MANAGEMENT SUPPORT STAFF, TO INTERROGATORY 10 IS FOUND TO BE CREDIBLE
AND EXPLANATORY OF THE DATES INVOLVED.
THE ADMINISTRATIVE LAW JUDGE CONCLUDES THAT THE CONDUCT OF MS. LENA
HALL IN LISTING THE NAMES OF VETERANS ADMINISTRATION PATIENTS IN HER
LETTER OF OCTOBER 15, 1976, WAS IN VIOLATION OF THE PRIVACY ACT AND
VETERANS ADMINISTRATION REGULATIONS. IT IS FURTHER CONCLUDED THAT THE
ACTION OF THE RESPONDENT IN ISSUING A "INTENT TO REPRIMAND" LETTER ON
OCTOBER 3, 1977, WAS NOT AN UNFAIR LABOR PRACTICE AND DID NOT VIOLATE
SECTION 19(A) AND SUBSECTIONS (1), (2) OR (4) OF EXECUTIVE ORDER 11491.
ORDER
IT IS RECOMMENDED THAT THE COMPLAINT OF THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES LOCAL 1631 FILED HEREIN BE DISMISSED.
JOHN V. EVANS
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 22, 1979
SAN FRANCISCO, CALIFORNIA
/1/ IN VIEW OF THE DISPOSITION OF THE CASE HEREIN, THE AUTHORITY
FINDS IT UNNECESSARY TO PASS UPON THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSIONS WITH RESPECT TO THE APPLICABILITY OF SECTION 19(D) OF THE
ORDER IN THE INSTANT PROCEEDING.
/2/ IT IS NOTED THAT IN A/SLMR NO. 1131 (1978) THE TRANSMITTAL OF THE
PATIENT CARE INFORMATION, WHICH WAS THE SUBJECT OF THE "INTENT TO
REPRIMAND" LETTER IN THE INSTANT CASE, WAS FOUND BY THE ASSISTANT
SECRETARY TO BE CONFIDENTIAL IN NATURE, AND ITS DISCLOSURE WAS NOT A
PROTECTED ACTIVITY. THE AUTHORITY, IN 1 FLRA DEC. 17 (1979), DENIED
REVIEW OF THIS FINDING.
/3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.