Lead Opinion
Opinion for the Court filed by District Judge GESELL.
Dissenting opinion filed by Circuit Judge STARR.
This is a Petition for Review of an Order of the Federal Labor Relations Authority (“FLRA”).
Background
The underlying facts are largely stipulated and none is in dispute. Administration of medical practitioners at Noble Army Hospital, Fort McClellan, Alabama, is guided by the provisions of Army Regulation (“AR”) 40-66, entitled Medical Record and Quality Assurance Administration. The Regulation outlines, among other things, a procedural system for convening a credentials committee to review and act upon information regarding the lack of professional conduct, substandard medical practice, or incompetence of any physician detrimental to patient health or safety.
A meeting of the committee may be called by the chairperson of the committee, the hospital commander, or the chief of the department to which the practitioner is assigned. The committee consists of management officials, supervisors and chiefs of various medical departments. The credentials committee has authority to recommend to the commander modifications or withdrawal of clinical privileges. When adverse recommendations of the committee are forwarded to the commander, who has final authority, he may place limits on the practitioner’s medical services or terminate his employment. In addition, the commander in his discretion may summarily suspend or limit a practitioner’s clinical privileges pending inquiry by the committee.
Once convened, the credentials committee is authorized to conduct investigations or appoint an officer to investigate if more information is needed. The committee then reviews the adverse information gathered to determine whether or not to take action. If the committee determines action should be taken, then it may either initiate summary action to suspend or reduce clinical privileges, or a hearing committee may be called to review the adverse information prior to final recommendation.
When it is determined that information warrants convening a hearing committee, the Army regulation requires that the practitioner under investigation be notified of the hearing. The practitioner is then entitled, although not required, to attend the hearing. If the practitioner chooses to attend he has the right to present evidence, call witnesses, cross-examine witnesses and consult his legal counsel, although legal counsel may not actively participate in the
Dr. Hanna, an ophthalmologist employed at Noble Army Hospital, came under review through this process. In late September 1984, during an ongoing audit of Dr. Hanna’s inpatient and outpatient medical records, Colonel Hood, the commander at the hospital, advised him orally to stop treating patients. Dr. Hanna did not perform surgery at Noble Army Hospital after August 3, 1984, and did not work between September 10, 1984 and November 20, 1984.
On October 1, 1984, the hospital scheduled a meeting of its credentials committee to review the preliminary findings of the audit. The auditing ophthalmologist reported the following conclusions: Dr. Hanna had used outdated treatment techniques; he had rendered poor medical care in general; and the majority of case records audited contained deficient evaluation and documentation. As a result of these preliminary determinations, the committee decided to continue suspension of Dr. Hanna’s surgical privileges and scheduled a meeting of the hearing committee on October 17 to make a final recommendation to the commander.
On October 3, Dr. Hanna was notified of the committee’s scheduled review hearing and of the specific allegation brought against him. Dr. Hanna indicated he would attend with his lawyer and asked to have a representative of his union, American Federation of Government Employees, Local 1941, AFL-CIO (“AFGE”), petitioner here, attend with him. His request to be accompanied by his union representative was denied. The hearing went forward.
The hearing committee consisted of management officials and military officers who were supervisors and chiefs of various hospital departments, as well as the ophthalmologist who had conducted the audit. At the hearing on October 17, 1984, Dr. Hanna cross-examined the physician who had conducted the unfavorable audit. He also made an opening statement, testified, called witnesses on his own behalf, and answered the hearing committee’s questions. The next day the hearing committee issued its findings, recommended that Dr. Hanna’s privileges be restricted, and commented on various aspects of his deficiencies, while acknowledging Dr. Hanna had partially rebutted some of the allegations brought against him.
On December 12, 1984, Colonel Hood adopted the committee’s recommendations and advised Dr. Hanna that he had the right to appeal to the Health Services Command and ultimately to the Office of the Surgeon General of the Army. Dr. Hanna did not appeal. He resigned in January 1985, and died later the same year.
Dr. Hanna’s union, AFGE, the petitioner here, is the exclusive representative of medical practitioners at the Noble Army Hospital. Alleging that the hospital’s rejection of Dr. Hanna’s request to have a representative of that union with him at the hearing committee meeting constituted an unfair labor practice under the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7116(a)(1), -(8), 7114(a)(2)(B) (1982 and Supp. Ill 1985), AFGE complained to the Authority but was denied relief. The resulting Order of the
Discussion
The standard for judicial review of FLRA orders is prescribed by the Administrative Procedure Act, 5 U.S.C. § 706. See 5 U.S.C. § 7123(c). Under this standard, the Court must set aside decisions of the FLRA found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 706(2)(A). While the Authority’s decision should be given the deference properly owed to an expert tribunal interpreting its enabling statute, reviewing courts must not “rubber-stamp ... administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” Bureau of Alcohol, Tobacco & Firearms v. FLRA,
Cognizant of these principles, the Court turns to an examination of the FLRA’s construction of § 7114(a)(2)(B). Section 7114(a)(2)(B) reads as follows:
(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at—
(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if—
(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and
(ii) the employee requests representation.
Thus, four conditions must be met before a statutory right to union representation vests in a federal employee: (1) the meeting between the employee and management must be an examination; (2) the examination must be in connection with an investigation; (3) the employee must reasonably believe that disciplinary action may result from the meeting; and, (4) the employee must request representation. Since it is undisputed and stipulated that Dr. Hanna had the requisite belief and requested representation, the sole issue is whether or not the above-described committee process involves an examination of Dr. Hanna in connection with an investigation. While it was apparent that the committee hearing constituted an investigation into the results of the audit, a factor the Authority’s General Counsel considered decisive in requiring representation, if requested, the Authority held that the hearing did not involve an examination within the meaning of § 7114(a)(2)(B) because it would have been held anyway — whether or not Dr. Hanna attended — and he was not required to attend.
Examination is not a term defined by the statute. A hearing was scheduled after an investigation by audit of Dr. Hanna’s practice, which led to a temporary suspension. The commander had already suggested he resign and the chairman of the committee informed him he should be present. What followed was questioning during an inquiry in search for the truth.
Counsel for the Authority, both in their written submissions and during oral argument, focused their attention upon a single decision of the United States Supreme Court. Respondent’s brief stated that “the legislative history of section 7114(a)(2)(B) discloses that it was enacted in response to the decision of the Supreme Court in National Labor Relations Board v. J. Weingarten, Inc.,
Weingarten involved different, less formalized circumstances that arose in a store where the employee was summoned to an interview with the store manager concerning a possible theft of $1.98. This opinion and its companion decision, Garment Workers v. Quality Mfg. Co.,
Conclusion
After affording the Authority “considerable deference” we are nonetheless obliged to hold that its Order under review is not in accord with the plain meaning of the statute and contravenes the intent of Congress. Accordingly, the Petition for Review of a Final Order of the Federal Labor Relations Authority is granted and said Order is set aside as inconsistent with § 7114(a)(2)(B).
Reversed. '
Notes
. Department of the Army, U.S. Army Medical Department Activity (Noble Army Hospital) Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, AFL-CIO, Case No. 4-CA-50151, 24 FLRA 487 (24 FLRA No. 53) (December 15, 1986).
. This controversy is not mooted by Dr. Hanna’s death. As exclusive representative of Dr. Hanna’s bargaining unit, AFGE has a derivative right to be present, on the employee's request, at an examination reasonably believed by the employee potentially to result in disciplinary action. 5 U.S.C. § 7114(a)(2)(B). Thus the Union itself has standing to contest the denial of representation as an unfair employment practice. Available remedies may include a cease and desist order or the posting of an unfair labor practice notice. See, e.g., AFGE v. FLRA,
. Cf. National Treasury Employees Union v. FLRA,
. The Authority mischaracterizes Dr. Hanna's role in the decredentialing process. Dr. Hanna’s participation is portrayed by the Authority as that of a "passive observer" whose impact on the results of the hearing is incidental and insignificant and whose presence is "purely optional” —like an extra water pitcher. This view is blind both to the reality of what occurred and the process mandated by the regulations. Far from structuring a minor role for the practitioner in the hearing process, the Army regulations: provide that a hearing committee may be convened at the request of the practitioner (AR 40-66, para. 9-17(c)(l)); vest the practitioner with the right to present his side of the story (AR 40-66, para. 9-17(d)(2)); provide that if the practitioner fails to request a hearing or fails to appear at the hearing, he or she waives all appeal rights (AR 40-66, para. 9-17(a)); require the commit
. The dissent argues that Dr. Hanna had no need for union representation because the hearing procedures afforded him the right to consult with an attorney. See infra dissent at 502. That analysis wholly undercuts the union’s independent, though derivative, right to monitor employer practices. See Weingarten,
. Some courts have held that “[c]ompelled participation by the employee is ... necessary before the right to representation is implicated under Weingarten." See, e.g., Alfred M. Lewis, Inc. v. NLRB,
. The employees in Weingarten and in the instant case faced different alternatives in deciding whether or not to attend the meeting with their employer, albeit the possible result of their non-attendance was the same — loss of their job. The employee in Weingarten, if given the choice whether to attend without union representation or not attend at all, still could rely on her statutory right to a grievance proceeding if she felt she was improperly discharged. Weingarten,
Dissenting Opinion
dissenting:
I respectfully dissent. The statutory provision in question, 5 U.S.C. § 7114(a)(2)(B) (1982), was designed to accord federal employees the right recognized by the Supreme Court in National Labor Relations Board v. Weingarten, Inc.,
I
The parties (and my colleagues) are in accord that the underlying purpose of section 7114(a)(2)(B) is to protect the right of a federal employee to have a union representative present at an investigatory confrontation with the employer. A review of the facts in Weingarten illustrates the nature of such right-triggering confrontations. Id. at 254-56,
The interview, however, did not in fact conclude. Bursting into tears, the employee blurted out that she had never taken anything from the store without paying for it, save for the free lunches to which she was entitled under company policy. At that point, the store manager and security officer, believing Weingarten’s “free lunch” policy to be inapplicable to this particular store, resumed the interrogation. Once again, the employee requested union representation, but once again the request was denied. Based on the employee’s responses, the security officer prepared a written statement, which included his computation of the money owed by the employee for her supposedly “free” lunches. The employee refused to sign the statement. Only when the security officer learned by telephone communication with Weingar-ten’s headquarters that it was uncertain whether free lunches were permitted at that particular store did the officer terminate the interview.
II
Needless to say, the situation that gave us the Weingarten rule is far removed from the circumstances presented by Dr. Hanna’s relationships with his fellow physicians at Noble Army Hospital. In contrast to the informal, involuntary interview in Weingarten, the hearing at issue in this case was a structured, formal proceeding complete with written findings and a record. In the present case, Dr. Hanna received advance notice of the hearing, to be conducted by his professional colleagues. The notice included both the specific areas of inquiry and the names of witnesses who would testify. Critically, Dr. Hanna was neither required to attend the hearing nor, if he chose to attend, to participate in the proceeding,
Paralleling the striking procedural dissimilarity of the Weingarten setting and that involved here is the complete difference in the nature of the proceedings. The committee hearing in this case involved a professional performance review conducted by Dr. Hanna’s peers, including, as required, a member of his medical specialty. The hearing was designed to examine and evaluate the report prepared by one of Dr. Hanna’s fellow ophthalmologists in order to determine whether Dr. Hanna’s medical techniques were acceptable. The panel was not convened to uncover facts, much less elicit a confession. Indeed, since attendance by Dr. Hanna at the hearing was voluntary, the committee of physicians could scarcely have anticipated relying on him as a source of information.
Viewed through the prism of Weingar-ten,
What is more, the term “examination” does not stand alone. The statute refers to an “examination ... in connection with an investigation.” The employer, in the midst of an inquiry, zeroes in on a particular employee. These terms, taken together, conjure up in the objective reader’s mind an employment analogue to custodial interrogation in the criminal justice setting. Again, that is a far cry from Dr. Hanna’s circumstances.
Ill
It may well be that there exists a middle category of situations that implicate Wein-garten concerns, but nonetheless fail to partake of the specific attributes of a custodial-type interrogation by an employer. My views should not be taken to suggest any prejudgment on my part as to situations that might fit within that conceivable (and possibly broad) category. But Dr. Hanna’s situation at Noble Army Hospital strikes me as the polar opposite on the Weingarten spectrum. Indeed, it is as far removed from Weingarten and the values that the Court was seeking there to vindicate as any case we are likely to encounter. Today’s holding, therefore, dramatically expands the reach of an important procedural safeguard far beyond anything which Congress intended.
In consequence, today’s result does violence not only to Congress’ intent, but to the Supreme Court’s teachings that the judiciary is not to impose its own views on the agency which Congress has seen fit to create and charge with the administration of a statute. See Chevron U.S.A. Inc. v. Natural Resources Defense Council,
. It will not do to suggest that Dr. Hanna had, as a practical matter, no choice but to appear and participate in the hearing. Weingarten was addressed to the type of situation where the employee became duty bound to participate in and respond to the employer’s investigation. Failure by a Weingarten-type employee to respond could obviously be viewed, and reasonably so, by an employer as an act of insubordination. Here, in contrast, it could not be clearer that Dr. Hanna would in no wise be committing an act of insubordination if he had availed himself of his right not to participate at all. Indeed, nothing has been suggested to indicate that Dr. Hanna could not have made his views known to his reviewing colleagues in writing had he so desired and thus avoided the unpleasantness of a hearing about his own competence.
On a related point, any notion that employees have the right to attend investigatory hearings is simply incorrect. It is entirely permissible for a federal employer to present an employee with the unhappy choice of attending an interview without a union representative or not being interviewed at all. See United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base,
. Lest there be any confusion, I am by no means suggesting that section 7114(a)(2)(B) is limited to Weingarten's facts. I am simply attempting to discern from Weingarten the type of situation Congress intended to encompass in creating what Congress itself envisioned as Weingarten -typ e rights. As I see it, Weingarten circumstances involve an employee, confronted by his employer with charges of misconduct, who is questioned without a reasonable opportunity to have advice and support.