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24:0487(53)CA
The decision of the Authority follows:
24 FLRA No. 53
DEPARTMENT OF THE ARMY
U.S. ARMY MEDICAL DEPARTMENT ACTIVITY
(NOBLE ARMY HOSPITAL)
FORT McCLELLAN, ALABAMA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1941, AFL-CIO
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
care.
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
7114(a)(2)(B).
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.
ORDER
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.