Veterans Administration, Washington, D.C. (Respondent) and National Federation of Federal Employees, Local 1631 (Complainant) 



[ 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 UNF