Indian Health Service, Crow Hospital, Crow Agency, Montana (Respondent) and Marcella A. Knaub, Individual (Charging Party) and Millie F. Stewart, Individual (Charging Party) (Authority decision, May 3, 2001)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair-labor-practice proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

Crow Hospital required two probationary nurses to resign or be terminated after they sought union help and pursued grievances. Management attributed its action to their sharing an unused medication dose, but the Authority found that explanation was a pretext for retaliation. Other medication errors had gone unpunished, and the forced resignations closely followed further protected activity. The Authority reversed the judge and found violations of the ban on interference and union discrimination. It ordered rescission of the resignations, offers to transfer to former or similar hospital positions, backpay with interest and appropriate differentials until their reemployment, restoration of lost benefits, and expungement of related records. Chairman Cabaniss dissented, favoring dismissal because of the medication rules and the nurses’ probationary status.

Decision snapshot

• Authority: Union discrimination and interference; the Letterkenny burden-shifting framework.
• Outcome: Dismissal reversed; transfer offers, make-whole relief, record expungement, and notice posting ordered.
• Key point: Probationary status does not permit termination in retaliation for protected union activity.

Full text (FLRA public release)

[ v57 p109 ]

57 FLRA No. 32

INDIAN HEALTH SERVICE

CROW HOSPITAL

CROW AGENCY, MONTANA

(Respondent)

and

MARCELLA A. KNAUB, INDIVIDUAL

(Charging Party)

and

MILLIE F. STEWART, INDIVIDUAL

(Charging Party)

DE-CA-90532

DE-CA-90639

_____

DECISION AND ORDER

May 3, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1]

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. No opposition to the exceptions was filed.

The complaint alleges that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by giving two employees notices of termination and the option to resign because they each engaged in activity protected by the Statute. The Judge dismissed the complaint.

Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision. We conclude that the Respondent's discharge of the two employees was because of their protected activity, in violation of § 7116(a)(1) and (2) of the Statute.

II. Background and Facts

The facts of this case are detailed extensively in the attached Judge's Decision and will be recited in [ v57 p110 ] abbreviated form, including pertinent facts found by the Judge. Two individual complainants, nurses Millie Stewart and Marcella Knaub, were given notices of termination during their probationary period of employment at the Indian Health Service Crow Hospital, the Respondent. The alleged reason was an infraction of medication administration rules.

A. Policy and Practice Regarding Wasting Unused Medicines

Agency policies require that after administration of a prescribed dose of a controlled substance to a patient, any amount remaining from a prepackaged minimum amount available from a computerized dispensing machine be disposed of, or "wasted." That means disposing of the medication in the presence of a witness and that records be kept. According to the policy, no partial doses are to be labeled and retained with intended later use. Judge's Decision at 3, 5.

Common practice known to the Respondent, on the other hand, was for a nurse to obtain a unit dose of some controlled substance and dispense the unit dose to the patient in multiple partial doses throughout the shift. Id. at 5. On occasion, the Respondent's pharmacy even instructed nurses to save unused portions of controlled substances for later administration. Id. Further, a nurse appointed by supervisor Hayes, who recommended the personnel actions at issue, had instructed nurses that the practice of not wasting medication, and preserving doses for later use, including controlled substances, was an acceptable practice. Id. The Respondent was aware of this practice, "since Hayes, the clinical nurse supervisor, also worked alongside the other nurses as a working nurse." Id. In addition, the area chief pharmacy officer acknowledged that the failure to follow proper wasting procedures occurs in all facilities. Id.

There was occasional passing of medications from one nurse provider to another, in addition to the common practice of single nurses preserving doses for later use. Id. at 6.

The Respondent did not discipline any employees who committed procedural and medication errors prior to this case. Id. at 19. At least one of these incidents involved errors serious enough to have potentially fatal consequences. Id. at 20.

B. Knaub and Stewart

Nurses Knaub and Stewart were well known by management to be "active and aggressive" in pursuing protected Union activity. Judge's Decision at 22. Their exclusive representative is National Federation of Federal Employees, Local 224. There was considerable Union activity by them and on their behalf in September and October, 1998, as well as after the medication errors described below.

On October 20-21, 1998, Knaub obtained a one-unit dose of a controlled substance for a patient, who was to receive one-half that amount. Knaub split the dose and placed the unused portion back in its original labeled package in the patient medication cart drawer. Knaub also initialed and attached to the patient's record a note, indicating that the half-tablet was available in the drawer.

Stewart, working the next shift, found the note and the unused half-tablet dose in the drawer, still in the labeled packet. She confirmed that the dose of medication was due the patient, and administered it to the patient.

On or about October 21, another nurse assigned to the ward prepared a Medication Error Report about these events, stating, incorrectly it turned out, that it appeared from the records that Stewart had not administered the prescribed drug to the patient.

On December 1, Hayes met separately with the two nurses. Hayes gave Stewart a "procedural note", Judge's Decision at 12, referring to Stewart's administration of medicine that had been saved for her use by Knuab. Hayes told Stewart that the procedural note about the incident would not be made part of her employment file. Hayes did not suggest that Stewart would receive any kind of disciplinary action based on her administration of the drug on October 21. The note stated that "progressive discipline [would] follow if this type of error occurs." Id.

In her meeting with Knaub, Hayes stated that Knaub would be on a performance improvement plan (PIP) for six months under the nurse educator. Like Stewart's note, Knaub's referred to progressive discipline, and also indicated that it would not be a permanent part of her record.

During the next two weeks, among other things, there was grievance activity in connection with the December 1 events, and the Union held meetings with the Respondent concerning the employees, filed two information requests in connection with the matter and told the Respondent it was considering filing an unfair labor practice charge.

On December 14, the Respondent gave termination notices to Stewart and Knaub, citing the medication procedure error on October 21 as the reason. The notice [ v57 p111 ] to Knaub indicated that she had failed to follow specific procedures in dispensing and administering the drug. Stewart's notice indicated that by accepting the drug from another nurse, instead of directly from the dispensing machine, she had failed to follow specific procedures, thus creating a patient safety issue, as she could not verify that the drug had not been tampered with or contaminated.

III. Judge's Decision

The Judge concluded that the General Counsel had established a prima facie case of § 7116(a)(2) violations under the standards of Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), which sets out the Authority's framework for resolving 7116(a)(2) allegations. The Judge stated that there was no dispute that Stewart and Knaub were involved in protected activity and that "their actions were well known to management." Judge's Decision at 22. The Judge also found that the General Counsel satisfied the threshold burden of showing that consideration of such activity was a motivating factor in Respondent's action. The Judge stated that this was shown by the closeness in time between the protected activity and management's decision. In addition, he based this finding on the fact that the two employees were "active and aggressive in pursuing their protected activity and could have been considered a thorn in management's side." Id. at 22.

However, the Judge concluded that the Respondent established, through credited testimony, an affirmative defense by showing that it had a legitimate, nondiscriminatory reason for its actions, and that it would have taken the action even absent the protected activity. Therefore, the Judge dismissed the complaint.

In reaching that conclusion, the Judge distinguished between the approved practice of ignoring wasting procedures by individual nurses, and the use by a nurse of unused medicine left by another nurse on the previous shift.

The Judge stated that the termination notices were issued during the employees' probationary periods

based on the uncontested fact that Ms. Knaub relinquished possession of a controlled substance, which was no longer definitively identifiable, to Ms. Stewart, who accepted the substance and administered it to a patient. The mishandling of the controlled substance was contrary to established procedures and potentially detrimental to the patient and the institution. Although management was aware of other medication errors by nurses, a preponderance of the evidence does not establish that management had knowledge of and acquiesced in comparable violations (transference of controlled medication between providers) by other probationary nurses and singled out Ms. Knaub and Ms. Stewart for release because of their protected activity.

Judge's Decision at 22-23.

Regarding another evidentiary issue, concerning subpoenaed material, the General Counsel had requested records about the dispensing machine to pursue an unfair labor practice charge after Knaub and Stewart were counseled. The General Counsel asserted that the records could help determine whether other errors such as those charged to the subject nurses had occurred, and what action the Respondent had taken in response. The Respondent declined on the basis of patient confidentiality, and when the Union asked for sanitized documents, management again declined.

The Judge found that additional subpoenaed information should have been provided by the Respondent. He declined the General Counsel's requested sanction for such misconduct, however, which was to draw an adverse inference that additional information exists in support of the instant unfair labor practice charge. The Judge found that "additional" information exists to support single nurses maintaining possession of drugs during their shift. Nevertheless, he declined to infer that additional information exists regarding one nurse relinquishing possession of a controlled substance to another nurse on a different shift who then accepts the substance and administers it to a patient.

IV. Exceptions

The General Counsel excepts to the Judge's reliance on credited testimony without "specifically identify[ing] the existence of any credibility disputes, the particular witness testimony he had credited, or the basis upon which he had determined the respective credibility of the witnesses." Exceptions at 5. The General Counsel maintains that the Judge's Decision was based on his interpretation of the evidence and application of legal principles, rather than the resolution of any "decisive" credibility disputes. Id.

Citing Dep't. of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 55 FLRA 1201, 1204 (2000) (Warner Robins), the General Counsel maintains that the Authority requires Judges to explain the basis for their credibility determinations, and that when considerations other than demeanor are implicated, "the Authority will review credibility issues based on a review of [ v57 p112 ] the record as a whole." Exceptions at 5. Therefore, the General Counsel requests that the Authority review the Judge's findings to the extent that they are based on credibility resolutions, "in view of [his] failure to state whether his findings were based on . . . demeanor." Id.

The General Counsel asserts that management had no legitimate basis for its action. The General Counsel notes that management knew of the alleged wrong-doing no later than November 12, 1998, and the employees received a non-disciplinary counseling on December 1. Management's "procedural notes" stated: "Progressive discipline will occur if this type of error occurs again," and indicated that one of the employees was being placed on a PIP for medication administration for 6 months. Exceptions at 6 quoting General Counsel Exh. 27, Moreover, argues the General Counsel, the employees were told that the notes would not become a permanent part of their records. According to the General Counsel, two weeks later, on December 14, however, management "inexplicably" revived the matter and terminated the two employees. Id. at 7. The General Counsel attributes management's actions to "the continuing and unrelenting acts of protected activity" by the two, including:

aggressive Union representation on behalf of the employees, Union data requests, meetings between Union and management representatives concerning the employees, grievance activity, insistence on Union representation by Knaub, and threats of ULP's against management by the Union.

Id. The General Counsel concludes that retaliation for protected activity is the only possible explanation for management's decision "to shift" from counseling the employees to terminating them. Id.

Although the Judge stated that the disciplining supervisor refrained from acting initially until she received further information, the General Counsel argues that there is "no explanation on the record concerning whether [the supervisor] actually received `further information', what this information might have been, or when [she might] have received it." Id. at 9.

The General Counsel cites a variety of evidentiary matters to demonstrate its claim that the facts do not support the Respondent's defense. For example, the General Counsel asserts that, contrary to the Judge, the record indicates that the substance was "identifiable" when it was transferred. Exceptions at 10-11. The General Counsel contends that this undercuts part of the Respondent's justification for the termination, and establishes that the rationale was a pretext.

The General Counsel emphasizes the Judge's finding that failing to waste excess medication was a common practice, and that the Respondent was aware of this practice. Moreover, the General Counsel asserts that not all instances involved a single nurse maintaining exclusive control and possession of the medication throughout the shift. Rather, the General Counsel argues, testimony established, through questioning pursued by the Judge, that even in cases where medications were saved and administered later by the same nurse, it was common practice to store unused portions of medication in medication drawers, which were not locked or secured. Consequently, according to the General Counsel, the potential hazards of storage by a lone nurse are indistinguishable from the those involved in transferring the substance from one nurse to another.

The General Counsel also contests the Judge's finding that a preponderance of the evidence does not establish that management had knowledge of and acquiesced in comparable violations of transferring controlled medication between providers. The General Counsel asserts that the Respondent must have known about the instances of relaying controlled substances between nurses that were on the record because supervisory personnel worked side by side with the nurses.

An additional example of medication errors, committed by a probationary employee, was dismissed by the Judge as not involving a controlled substance. The Judge stated that Percocet is not a controlled substance. To the contrary, the General Counsel argues, Percocet is a controlled substance. For authority, the General Counsel cites the Physician's Desk Reference. General Counsel's Exceptions at 17 n.17.

Finally, the General Counsel excepts to the failure of the Judge to draw an adverse inference based on the Respondent's improper withholding of subpoenaed information. The General Counsel asserts that the improperly withheld information would show that controlled substances are transferred from one nurse to another for administration to patients, with management's knowledge and acquiescence. [ v57 p113 ]

V. Analysis and Conclusions

Under the Authority's analytical framework for resolving complaints of alleged discrimination in violation of § 7116(a)(2) of the Statute, the General Counsel has, at all times, the overall burden to establish by a preponderance of the evidence that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. Letterkenny, 35 FLRA at 118. See also Department of the Air Force, Warner Robins Air Logistics Center, Warner Robins Air Force Base, Georgia, 52 FLRA 602, 605 (1996) (Warner Robins), and Federal Emergency Management Agency, 52 FLRA 486, 490 n.2 (1996). As a threshold matter, the General Counsel must offer sufficient evidence on these two elements to withstand a motion to dismiss. Warner Robins, 52 FLRA at 605. However, satisfying this threshold burden establishes a violation of the Statute only if the respondent offers no evidence in its defense. Id. The respondent has the burden to establish, by a preponderance of the evidence, as an affirmative defense that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken even in the absence of protected activity. Id.

In agreement with the Judge, we find that the General Counsel has established a prima facie case of § 7116(a)(2) violations under the standards of Letterkenny. Knaub and Stewart's protected activity clearly served as a motivating factor in management's decision to terminate them, for the reasons stated by the Judge.

Contrary to the Judge, however, we are persuaded that the Respondent has not shown that it would have taken the same action even in the absence of the protected activity. Rather, we conclude that the medical error was not the real basis, but was a pretext. We rely on several factors in reaching this conclusion.

First, we find that the Judge defined "comparable violations" too narrowly. Judge's Decision at 22. In particular, we conclude that "wasting" errors in both one-and two-nurse situations are relevant. [n2] In this regard, the record does not indicate that the Respondent's directives to ignore the excess medicine "wasting" policy were limited to "one-nurse" situations. In addition, although the Judge accepted the Respondent's assertion that most other instances of failing to waste unused portions of prepackaged medicines which it condoned were distinguishable because they involved a single nurse, we find them indistinguishable. The record discloses little or no difference between risks involved in one-nurse situations compared to two-nurse situations. And these risks were what allegedly made this instance a firing offense. Except when a single nurse would maintain exclusive possession and control of the extra dosages, which was not always the case in the instances cited by the Judge, the various risks attributed to the failure to waste extra medicines would be indistinguishable, whether handled by a single nurse or by two nurses. Although the Judge stated that the practice of not wasting medication, and preserving doses for later use "involves a single nurse maintaining exclusive control and possession of medication throughout the shift," Judge's Decision at 6, there is undisputed evidence to the contrary. For example, on one occasion a supervisory nurse discovered a partial dose of a controlled substance in a patient's drawer. Id. at 19. The record also contains evidence of numerous instances of nurses leaving partial doses of controlled substances in patients' medication drawers, Tr. 245, 262, or leaving them in other places such as the top of the medication chart, id., and these were common practices, Tr. 248. In each instance, the single nurse did not maintain control and possession of the excess doses, creating a risk of contamination or misidentification.

Thus, many of the risks cited as a reason for distinguishing the instant two-nurse case from those where a single nurse failed to waste excess medicine actually were present in the cited one-nurse instances. Contamination of the substance, infection control, poison prevention or misidentification of medicines would be no more or less likely in the case of a single nurse carrying over dosages except when the nurse maintained complete and exclusive control, which the record shows did not always happen. In addition, there is unrefuted evidence that partially used containers of medication occasionally were passed from one nurse provider to another. For example, Nurse Olsen testified about passing [ v57 p114 ] controlled medication from one shift/nurse to another. Tr. 246, 254. Nurse Long testified about similar instances. Tr. 263. We note that the Judge contradicted his own statement, Judge's Decision at 5 n.3, that none of the examples cited by Olsen depicted a nurse passing controlled medication from one shift/nurse to another: "Nurse Olsen testified that she would `occasionally' pass a controlled substance . . . to the next shift." Judge's Decision at 6.

Second, the parties stipulated that for the three years prior to this case there were no disciplinary or adverse actions, indeed no instances of personnel actions of any kind, for procedural or medication errors. Thus, whether or not errors were by single nurses, the Respondent took no action. The Respondent took severe action against these two employees allegedly for a single infraction, in contrast to condonation of numerous errors and policy violations. In fact, there is evidence of one probationary nurse who was not disciplined after at least two medication errors, one of which involved over-dosing a patient by administering a double dose of Percocet (which the Judge incorrectly stated is not a controlled substance) rather than the single dose prescribed. [n3]

Third, we find critical the timing of the discharges in relation to protected activity. In concluding that the General Counsel had established a prima facie case, the Judge relied on the closeness in time between the protected activity and the Respondent's decision to terminate the employees. This timing also indicates that the expressed reason for the discharges was pretextual. In this connection, we note considerable additional Union activity between the counseling sessions on December 1, when only training and PIPs were discussed, and the announcement two weeks later that both would be forced to resign. During the interim period there was grievance activity, meetings with management about these employees, and an information request based on the possibility of filing an unfair labor practice charge.

Finally, in regard to the Judge's reliance on credibility, the Authority recently stated that Judges must explain the basis for their credibility determinations, and when considerations other than demeanor are implicated, "the Authority will review [credibility issues] based on the record as a whole." Warner Robins, 55 FLRA at 1204. In view of the entire record as discussed above, the Judge's unexplained determination to credit testimony by the Respondent that it had a legitimate justification does not withstand scrutiny. Repeated procedural and medication errors went unaddressed by the Respondent until after the protected activity of nurses Knaub and Stewart.

This record clearly indicates disparate treatment that is unexplained other than as retaliation for the two nurses' protected activity, and both rebuts the Respondent's expressed, legitimate reason and establishes it as pretextual. The violation here involved discriminating against two employees--treating them differently--because of their protected activity. The fact that probationary employees can be terminated without cause does not permit the Respondent to terminate them in violation of the Statute. Good reason or even no reason at all would be permissible, so long as the reason is not illegal. [n4] But termination for reasons in violation of the Statute are unfair labor practices. The Respondent discharged the two probationary nurses on a pretext, when its real reason was to retaliate for their protected activity. As such, it violated § 7116(a)(1) and (2) by interfering with, restraining or coercing them in their exercise of protected rights, and it discouraged membership in a labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment. To remedy the violations we will order that they be offered retroactive reinstatement, be made whole, and have their records expunged of mention of the terminations, to the extent consistent with law and regulation. See U.S. Geological survey and Caribbean District Office, San Juan, Puerto Rico, 50 FLRA 548 (1995). [ v57 p115 ]

VI. Order

Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the Indian Health Service, Crow Hospital, Crow Agency, Montana, shall:

1. Cease and desist from:

(a) Terminating, or forcing the resignation of, or discriminating against, Millie F. Stewart and Marcella Knaub, or any other unit employee, because the employee engaged in protected activity.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Rescind the resignations of Millie F. Stewart and Marcella Knaub and offer them an opportunity to transfer to their former or similar positions with the Indian Health Service Crow Hospital.

(b) Make Millie F. Stewart and Marcella Knaub whole for any losses they incurred as a result of their terminations/forced resignations from the Crow Hospital by providing them with backpay, with interest and appropriate differentials, from December 14, 1998 until they were re-employed by the Indian Health Service, and providing them with all lost benefits and privileges, retroactive to December 14, 1998, consistent with applicable law and regulation.

(c) Expunge from all Indian Health Service records mention of the terminations/forced resignations of Millie F. Stewart and Marcella Knaub, or the incidents that gave rise to their terminations/forced resignations.

(d) Post at its facilities where bargaining unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Indian Health Service Crow Service Unit Director, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(e) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Denver Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Indian Health Service, Crow Hospital, Crow Agency, Montana, has violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by the Notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT terminate, or force the resignation of, or discriminate against, Millie F. Stewart and Marcella Knaub, or any other unit employee, because the employee engaged in activity protected by the Federal Service Labor-Management Relations Statute.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights assured them by the Statute.

WE WILL rescind the resignations of Millie F. Stewart and Marcella Knaub and offer them an opportunity to transfer to their former or similar positions with the Indian Health Service Crow Hospital.

WE WILL make Millie F. Stewart and Marcella Knaub whole for any losses they incurred as a result of their terminations/forced resignations from the Crow Hospital by providing them with backpay, with interest and appropriate differentials, from December 14, 1998 until they were re-employed by the Indian Health Service, and providing them with all lost benefits and privileges, retroactive to December 14, 1998, consistent with applicable law and regulation.

WE WILL expunge from all Indian Health Service records mention of the terminations/forced resignations of Millie F. Stewart and Marcella Knaub, or the incidents that gave rise to their terminations/forced resignations.

______

(Activity)

Dated:__ By:_______

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Denver Regional Office, Federal Labor Relations Authority, whose address is 1244 Speer Blvd., Suite 100, Denver, CO 80204, and whose phone number is (303) 844-5224. [ v57 p116 ]

Dissenting Opinion of Chairman Cabaniss:

I respectfully dissent from my colleagues. Taken from any viewpoint, the facts of this case are problematic. The local management officials and bargaining unit employees involved appear to have consciously condoned, to at least some extent, the violation of agency-wide (if not government-wide, as suggested by the Judge's reference to Drug Enforcement Administration requirements) regulations regarding the control of medications. From an equities standpoint, the two probationary employees have legitimate grounds for complaint. On the other hand, there is the matter of condoning a medical practice by them that, as noted by the Judge in his decision at 6 (and not challenged by either side), "could impact on the contamination of the substance, infection control, poison prevention, ability to positively identify the substance, and the status of the Drug Enforcement Administration license issued to the facility." That no patient has been apparently harmed yet by this practice does not ameliorate the devastating potential of such conduct identified by the Judge.

Given what appears to be the legal inability of local management to waive this "wasting" requirement, and its right to otherwise enforce this requirement (I note the General Counsel did not allege a § 7116(a)(5) violation), and given the probationary status of the employees, I would resolve the competing considerations by upholding the Judge's decision. However, I note expressly that the two employees involved are not the only individuals at fault, and I would hope that the Agency takes note of the fact that several other Agency personnel, including local managers and supervisors, have taken part in condoning conduct which could have disastrous consequences for those members of the public presenting themselves as patients at the medical facility.

In adjudicating this case, I would also apply a comparison pool comprised of just probationary employees, rather than all employees. The rules applicable to each are different, at least as to the merits and degree of proof necessary to justify a termination action, matters that become relevant in assessing whether the presumption in Letterkenny has been rebutted. I also note that the General Counsel does not challenge the Agency's underlying ability to remove probationary employees for this conduct, but only asserts that such removals must not be effected in a disparate manner. Moreover, the General Counsel does not allege that the employer changed conditions of employment by relying on this conduct to effect a personnel action.

Given that the General Counsel doesn't challenge the Agency's ability generally to take personnel actions based upon such misconduct in the absence of a violation of our Statute, the "disparate treatment" argument lacks merit. The General Counsel in effect asserts that since no one has been subjected to a personnel action for this same conduct in the past, doing so now constitutes disparate treatment. This argument amounts to nothing more than an allegation of a "past practice" of not removing employees for this conduct. That argument, however, is deflated by the General Counsel's failure to challenge the employer's ability, in the absence of a violation of the Statute, to terminate probationary employees for the same misconduct.

In the present case, given the case-specific nature of removal actions for probationary employees or otherwise, especially where the removal involves the application of a regulatory matter that the agency is not privileged to waive, an allegation of disparate treatment is undercut by the lack of a companion allegation of an improper change to conditions of employment. Thus, and in spite of the significant equities the two employees here bring to this matter, I would affirm the Judge's decision.

File 1: Authority's Decision in 57 FLRA No.
32 and Opinion of Chairman Cabaniss

File 2: ALJ's Decision

Footnote # 1 for
57 FLRA No. 32

• Authority's Decision

Chairman Cabaniss' dissent is attached.

Footnote # 2 for
57 FLRA No. 32

• Authority's Decision

In view of this finding, it is unnecessary to pass on the Judge's failure to draw an adverse inference from the Respondent's improper failure to provide subpoenaed information regarding additional cases of unpunished sharing of unused medications between two nurses. However, we note that the Judge offered no rationale to explain why he found it "appropriate to find that
additional' information exists in support of nurses maintaining possession of controlled medication throughout their shift . . . but not thatadditional' information exists of one nurse relinquishing possession of a controlled substance to another nurse on another shift," as here. Judge's Decision at 6 n.4. We also note that, even if the records would not have disclosed additional two-nurse errors, the additional information that the Judge inferred they would disclose about additional one-nurse errors would bolster the conclusion that the two probationary employees were treated discriminatorily.

Footnote # 3 for
57 FLRA No. 32

• Authority's Decision

We take administrative notice of the Physician's Desk Reference, Family Guide to Prescription Drugs, pp. 481-82; Three Rivers Press, New York, New York (1999), cited by the General Counsel, that, contrary to the Judge, Percocet is a controlled substance.

Footnote # 4 for
57 FLRA No. 32

• Authority's Decision

Contrary to the views of our dissenting colleague, we do not view the allegedly mandatory nature of the Drug Enforcement Administration requirements, regarding handling of a controlled substance, to be dispositive. It is the discriminatory and illegal enforcement of the regulation with which we are concerned. The General Counsel's prosecution of this matter as a discrimination case, instead of a failure to bargain case, does not affect our view. It is not uncommon in disparate treatment cases to acknowledge that an employer could legitimately take action on the asserted basis, if the action were not unlawfully aimed at a protected class of employees, such as union supporters. See N.L.R.B. v. Advance Transp. Co., 979 F.2d 569, 574 (7th Cir. 1992); Davis v. Henderson, Postmaster General, 1999 WL 173764 (E.E.O.C.). The question remains whether the employer took the action on the basis asserted, or whether the explanation was a pretext. Here, we find it to have been a pretext.

[ v57 p117 ]

Office of the Administrative Law Judges

INDIAN HEALTH SERVICE, CROW HOSPITAL

CROW AGENCY, MONTANA

Respondent

and

MILLIE F. STEWART, Individual

Charging Party

Case Nos. DE-CA-90532

DE-CA-90639

Kim Nicholson

Counsel for the Respondent

Michael Farley

Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER

Administrative Law Judge

DECISION

Statement of the Case

The consolidated unfair labor practice complaint alleges that Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1) and (2), on or about December 14, 1998, by giving Millie Stewart and Marcella Knaub notices of termination during their trial periods and the option to resign. The complaint alleges that such action was taken because they each engaged in activity protected by the Statute.

Respondent's answer denied any violation of the Statute. Respondent asserted that the two probationary employees voluntarily resigned instead of being terminated for committing a medication procedure error involving a controlled substance. Respondent's prehearing motion to dismiss on jurisdictional grounds was denied by the Chief Administrative Law Judge.

For the reasons explained below, I conclude that a preponderance of the evidence does not establish the alleged violations and recommend that the complaint be dismissed.

A hearing was held in Billings, Montana. The Respondent and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs. [n1] Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

The Charging Parties

Millie Stewart and Marcella Knaub are Indian preference nurses who were recipients of scholarships sponsored by the Indian Health Service. They were previously employed as Registered Nurses at the Crow Hospital, assigned to the Med/Surg ward under the supervision of Nora Hayes.

Millie Stewart began her employment at the Crow Hospital as a probationary employee on August 31, 1998, and her employment continued until her termination/resignation on December 14, 1998.

Marcella Knaub was a probationary employee beginning on approximately December 18, 1997, until her termination/ resignation on December 14, 1998.

Controlled Substance Procedures

Nurses at the Crow Hospital generally acquire medication, including controlled substances, by making use of an automatic medication-dispensing machine called a Pyxis machine. The Pyxis machine resembles a chest of drawers. There is a keyboard and computer screen located on the top surface of the machine. Nurses are each assigned access codes. By entering the access code and a patient's name and number, a menu of medications for that patient becomes available on the computer screen.

The nurse's request for a patient's particular medication will trigger the opening of a drawer in the Pyxis machine which contains the medication. The medication comes pre-packaged in a unit dose, which is the minimum amount available in that particular medication. When dispensing controlled substances, the computer screen on the Pyxis machine inquires whether the whole dose will be administered.

Agency policies and procedures require that any narcotic and/or controlled substance remaining after the initial administration of a fractionated dose of the unit dose must be disposed of ("wasted"). Wasting requires that the medication be disposed of in the presence of a witness and that records be annotated regarding the [ v57 p118 ] wasting. No fractionated doses of a drug are to be labeled with intended use for a patient during a shift.

Medication - Procedural Errors of Nurses Knaub and Stewart

On October 21, 1998 [n2] Knaub obtained for a patient from the Pyxis machine a one unit dose of Ativan, a mild, low-dose sedative, classified as a low-risk controlled substance. The machine dispensed 1 mg. of Ativan to her. The patient was scheduled to receive only 0.5 mg. during Knaub's shift, so Knaub split the 1 mg. unit dose of Ativan and placed the unused portion back in its original identified package in the patient's drawer in a medication cart maintained near the Pyxis. Knaub also initialed and attached a note, apparently to the patient's Medication Administration Record, indicating that the half-tablet of Ativan for the patient was available in the patient's medication cart drawer.

Millie Stewart was working the next shift. She discovered the note and the half-tablet in the drawer, still in the Ativan packet, confirmed that Ativan was the ordered medication, and administered it to the patient.

Notices of Separation

On December 14, Knaub and Stewart received notices of the termination of their employment during the probationary or trial period. The notices each indicated that the medication procedure error on October 21, demonstrated that "your performance has not been maintained at an acceptable level for retention beyond your trial period[.]"

The notice to Knaub indicated that by giving the additional dose of Ativan to another nurse to administer to a patient she failed to follow specific procedures in dispensing and administering this drug.

The notice to Stewart indicated that by accepting the dose of Ativan from another nurse, instead of directly from the Pyxis system, she had failed to follow specific procedures, thus creating a patient safety issue, as she could not verify that the drug had not been tampered with or contaminated.

Practice

As noted, Agency procedures require nurses to obtain a unit dose from the Pyxis for each single dose and waste any excess quantity immediately thereafter. The testimony of five nurses of the Respondent reveals that it was a common practice for a nurse to obtain a unit dose of some controlled substances from the Pyxis and dispense the unit dose in multiple doses throughout the shift. [n3] On occasion, the Pharmacy at the Crow Service Unit has instructed nurses to save for later administration the medication remaining in tubexes of controlled substances after the initial dose. Pharmacy did this when the supply of the medication was short or Pharmacy did not have time to restock the Pyxis. Janice Sauls, a nurse appointed by supervisor Nora Hayes to provide guidance and orientation for newly assigned nurses, has instructed nurses that the practice of not wasting medication, and preserving doses of medication for later use, including controlled substances, was an acceptable practice at the Crow Hospital because it saves time. I find that the Respondent was aware of this practice since Hayes, the clinical nurse supervisor, also worked alongside the other nurses as a working nurse. Area Chief Pharmacy Officer Albert Fisher also acknowledged that the failure to follow proper wasting procedures "does occur in all facilities."

Although the practice described by the various witnesses is not in compliance with established Agency procedures, it involves a single nurse maintaining exclusive control and possession of medication throughout the shift.

This case involves the situation in which one nurse (Knaub) relinquished possession of a controlled substance to another nurse (Stewart) on another shift who then accepted the substance and administered it to a patient. The record does not establish that the conduct of Nurses Knaub and Stewart was a common practice known to management. [n4] Nurse Susan Chase's testimony did not address passing medications from one nurse/shift to another. Nurse Olsen testified that she would "occasionally" pass a controlled substance, Tylenol with codeine elixir, to the next shift, but she did not pass solid controlled substances to other nurses. She stated that dividing doses for the use of her own patients did not compromise patient care, "Not when I didn't pass it to another nurse, I wasn't concerned." Knaub [ v57 p119 ] and Nurse Lucy Long cited single examples of passing a tubex of morphine to the next shift.

The record demonstrates that a practice of passing medications from one nurse provider to another could impact on contamination of the substance, infection control, poison prevention, ability to positively identify the substance, and the status of the Drug Enforcement Administration license issued to the facility.

Millie Stewart - Employment and Protected Activity

During her employment at the Crow Hospital, Millie Stewart was assigned to the night shift, which was 7:00 p.m. to 7:00 a.m. Within approximately one week of beginning her employment at the Crow Hospital, on September 8, Stewart submitted a memorandum to her supervisor, Nora Hayes, and requested that her days off be scheduled during the months of October, November, and December 1998 to accommodate her need to attend graduate classes at the University of Wyoming.

Supervisor Hayes indicated in response that Stewart would have to use an exchange system, annual leave, or leave without pay since she had not accrued sufficient annual leave for this period of time.

Stewart was concerned that Hayes was not supporting her efforts to attend the graduate-level classes, so she contacted a Union representative, Jerome White Hip, and discussed her scheduling conflicts. The Union, through White Hip, requested Stewart to document her complaint by preparing a memorandum so that the Union could then pursue further action with management on her behalf.

On September 25, members of the Med/Surg nursing staff, through a memorandum to Hayes, requested Hayes to meet with them in order to address "several concerns and complaints." The requested meeting took place on September 28, and it was held in a nurses' conference room. In attendance at the meeting were Hayes and most of the nurses assigned to the Med/Surg ward, including Stewart and Knaub. Hayes was the only manager who attended this meeting. Also in attendance at this meeting were Michael LaForge, President of NFFE, Local 224, and White Hip, Union representative. The Union representatives were there in order to represent the employees. Hayes had been the Union president from 1992 to 1995.

At the beginning of this meeting, the employees presented Hayes with a document dated September 27, which set forth "several concerns and complaints" which they believed needed to be addressed immediately. This document was a group grievance under the negotiated grievance procedure. The original document presented to Hayes was signed by most of the nurses assigned to the Med/Surg ward (about twelve). The complaints were categorized under the following headings: unfair scheduling, granting leave unfairly, unprofessional conduct as a supervisor, and supervisor unaccountable for time. The employees also spent considerable time discussing their problems with a fellow employee.

Within the employees' memorandum to Hayes, under the heading of "Unfair Scheduling," the following complaint was included: "You are uncooperative in arranging the schedule to allow staff members the opportunity to take training or classes to further their nursing skills and/or education, yet your schedule reflects several training/education days."

During the meeting, after reviewing the employees' memorandum, Hayes asked who had problems with scheduling. In response, Stewart stated that she had previously submitted a memorandum to Hayes indicating critical times that she needed to attend classes and had not received a response. Stewart also questioned why a co-worker had been accommodated by Hayes in order to attend classes, but that Stewart was not being given the same opportunity. Stewart also raised a complaint with Hayes over being assigned to the night shift and not being rotated to the day shift along with the other nurses.

Hayes was taking notes during the meeting and did not respond directly to these comments. When the employees mentioned at the end of the meeting that they were dissatisfied with its results, Hayes stated that they could take their concerns to the Union or, through the Director of Nursing, to the administration.

Hayes' demeanor during the meeting was described by Stewart as defensive, as evidenced by Hayes pointing at people and demanding additional details in a loud voice. However, Hayes subsequently recommended one of the employees, Georgia Buckingham, [ v57 p120 ] who raised an issue regarding the use of sick leave, for Employee of the Year, and Buckingham received the award.

Hayes subsequently made entries in the "communication book" which is a ledger notebook located at the nurses' station through which Hayes communicates with the nurses and the nurses communicate with each other. With respect to complaints raised by Stewart concerning the scheduling of leave and the rotation of shifts, Hayes made entries in the communication book concerning the method by which employees were to select holiday leave, and she stated that shifts are to be rotated every six weeks.

On or about October 5, Stewart submitted a "Request for Payroll Deductions for Labor Organization Dues" to LaForge, Union President.

On October 20-21, the medication errors occurred involving Stewart and Knaub, as described above.

On or about October 21, Karl Schlepp, a nurse assigned to the Med/Surg ward, prepared a Medication Error Report. The report reflected that it appeared from the records that Stewart had not administered the prescribed Ativan to the patient.

Approximately one week later Stewart was given a copy of the Medication Error Report. A note was attached from Hayes which indicated that the medication had not been given and cautioning Stewart to "check MAR [Medication Administration Record] frequently."

On November 12, Stewart delivered two memoranda to Hayes. The first memorandum was dated November 12, and was entitled "Scheduling Issues." Through this memorandum, Stewart complained about not being rotated from the night shift to the day shift. Stewart pointed out that she had been on the night shift since August 31, and that Hayes had previously promised to rotate nurses from one shift to the other every six weeks. Stewart also complained that the night shift was not adequately staffed, and she requested that an additional nurse be added to the shift. Stewart's memorandum to Hayes indicated that copies of the memorandum were provided to Robert Valandra, the Director of Nursing, and the Union.

The second memorandum, also dated November 12, was a reply to the Medication Error Report which Stewart had received. Stewart stated that she disagreed with the Medication Error Report, understood that the Pyxis could not be used to document medication errors, and asked for documentation to support the report.

On the morning of November 12, at the end of the night shift, Stewart met with Hayes at the work site. During this meeting, Stewart and Hayes discussed Stewart's complaint concerning shift rotation, and Hayes said that she would move Stewart to the day shift during January 1999. Stewart and Hayes also discussed the medication error. Stewart explained that she had administered the prescribed medication to the patient and had used the Ativan located in the patient's drawer.

Following this meeting, Stewart met with Oliver Half, Union Vice-President, and further discussed her complaint concerning scheduling. Around this same time, during mid-November 1998, LaForge spoke to Stewart concerning management not rotating her to the day shift. Following this discussion, LaForge contacted Valandra and discussed Stewart's complaint that she was not being rotated to the day shift. Valandra advised LaForge that Stewart would be rotated to the day shift at the next schedule change.

On November 13, Hayes delivered a detailed memorandum to Stewart, with copies to the Union, in response to Stewart's complaint concerning shift rotation, and she also delivered a detailed memorandum to Stewart in response to the alleged medication error of October 21. In response to Stewart's complaint concerning staffing, Hayes stated that the floor was not short of staff and that "[t]here WILL NOT be another nurse added to the night shift schedule" for some time. With respect to Stewart's scheduling, Hayes stated that Stewart had been informed when interviewed for the position that it would primarily be on nights; that "I informed you that I DO the scheduling. This means that I have decided NOT to rotate as I had written in the memo book. I had initially agreed to do the rotation, but have reviewed the issues and have decided that this would not be in the best interests of the floor. I will be rotating you to a six week period of days . . . . in excess of what others receive. You are the newest hire. . . . [A] GS 9-1 is expected to be an experienced nurse . . . . If you feel you do not qualify as a GS 9-1, please contact me immediately. I will inform the DON and the personnel specialist and see what we can do to get you into an appropriate level of nursing." (Emphasis in the original.)

With respect to the medication error, Hayes stated, in part, that the Pyxis can be used to document medication errors, that Stewart's reply was not timely, but "an angry rebuttal . . . that did not state what was done that night." Hayes stated that based on the information she had received, the error "was inappropriate and a violation of policy and procedure." [ v57 p121 ]

Stewart's scheduling came up again near the Thanksgiving holiday. Initially, she was not scheduled to work on Thursday, November 26, the Thanksgiving holiday. Pursuant to the supervisor's procedures, Stewart had requested the Thanksgiving holiday off, and her request had been granted. On November 24, however, Hayes provided Stewart with a memorandum directing her to work on Thanksgiving night.

Stewart met with Hayes that same day, November 24, in order to discuss this scheduling change. During this meeting, which was held in Hayes' office, Stewart was accompanied by Lucy Long, Union steward. Valandra, Director of Nursing, was also in attendance at this meeting. During this meeting, Stewart attempted to persuade Hayes to abide by the original schedule, and that Stewart not be required to work on Thanksgiving. Stewart presented Hayes with a copy of Article 21, Hours of Work and Tours of Duty from the collective bargaining agreement. Stewart argued that, pursuant to this contract provision, Hayes should have provided advance written notice of at least 10 work days prior to changing the Thanksgiving holiday schedule. Stewart stated that there was no emergency to justify the schedule change. In response, Valandra and Hayes stated that the contract provision did not apply to nurses, that Stewart had to work on Thanksgiving, and that if she did not work that day, she would be AWOL. Long inquired who the contract provision applied to if not to nurses. Valandra responded that he did not know, but it did not apply to nurses. Stewart subsequently worked on Thanksgiving as directed by management.

On November 20, Hayes requested the Director of Nursing to "release Millie Stewart . . . due to the judgment, the clinical thinking of giving an unknown substance to a patient." Hayes decided to give Stewart and Knaub a "procedural note" until she received further information from the Area Personnel Office and the Director of Nursing.

On November 30, Hayes approached Stewart who was working the night shift and said that she would like to discuss a "procedural note" with her. Stewart was uncertain what a procedural note was, but believed it involved a performance improvement plan, and refused to talk to Hayes unless she had Union representation. There were no Union representatives available at that time, so Hayes postponed the meeting until the following morning.

The next morning Stewart and Hayes met in Hayes' office. Stewart was accompanied by three Union representatives: LaForge, Union President; Half, Vice-President; and Long, Steward. At the outset of the meeting, Hayes presented Stewart with a procedural note and read the document to her. The document referred to Stewart's administration of 0.5 mg. of Ativan which had been saved for her use by Knaub. Hayes advised Stewart that, as a supervisory follow-up, she would have her shift changed to days and she would meet with a nurse educator concerning medication administration. Hayes also advised Stewart that she was to notify Hayes or the charge nurse when she dispensed any narcotic to a patient from the Pyxis machine. Hayes also advised Stewart that the procedural note would not be made a part of her employment file. Hayes did not suggest that Stewart would receive any form of disciplinary action based on her administration of the Ativan on October 21. The procedural note stated that "progressive discipline to follow if this type of error occurs."

During the meeting, Half asked Hayes to provide him with a copy of the procedural note, and Hayes said that he would have to submit a written data request in order to get a copy. The Union representatives advised Stewart that the use of procedural notes had been abolished through an agreement between the Service Unit Director and the Union, and Stewart was advised by the Union not to sign the document. Although Stewart subsequently signed the document, the Union representatives who were present refused to sign.

On December 2, Stewart submitted a memorandum to LaForge which outlined her complaints in connection with receipt of the procedural note and other related matters.

Pursuant to the complaints raised with the Union, on December 1, the Union, through LaForge, submitted a data request to management seeking the release of all records generated by the Pyxis machine for the one-year period of December 1, 1997 through December 1, 1998. This request was submitted by LaForge to Tennyson Doney, Service Unit Director. A second data request, also dated December 1, 1998 was submitted by LaForge to Doney at the same time. Through this second request the Union was seeking the release of the procedural notes that were prepared by Hayes and were dated December 1.

In addition to submitting data requests to management, on December 1, Half and LaForge notified Nora Hayes that the Union had a complaint and was requesting data, and they also requested to meet with Doney.

A meeting was subsequently held in Doney's office on December 2, and it was attended by Doney, LaForge, and Half. During this meeting, Doney asked why the Union had three representatives at the meeting [ v57 p122 ] on December 1, and why they had "ganged up" on Nora Hayes. LaForge and Half advised Doney that they were considering pursuing an unfair labor practice, and Doney responded that he could pursue an unfair labor practice against the Union, too. Doney stated that he could not release the information requested concerning Pyxis records due to patient confidentiality. LaForge and Half asked if the information could be provided without the patient's name. Doney replied that it was against the law.

On December 14, Hayes asked Stewart to meet with her in a conference room at the work site. In attendance at this meeting were Hayes, Valandra, Personnel Specialist Lori Old Bear, Stewart, and LaForge. Stewart was presented the letter of termination described above.

Hayes had signed the termination letter. Responsibility for the decision was shared with Valandra, the Director of Nursing. Crow Service Unit Director Tennyson Doney, Area Chief Pharmacy Officer Albert Fisher, and Area Nurse Consultant Rita Harding, were also consulted or engaged in discussions concerning the proper decision.

Stewart was advised that she could either resign or be terminated. Stewart attempted to speak to LaForge, but she was instructed not to speak to him. Stewart stood up to make a telephone call, but she was told by Valandra to sit down and not leave the room. Stewart asked if she could speak to LaForge privately, but her request was denied by Valandra. Stewart was presented with a form which she identified as a resignation form. Stewart turned to LaForge who indicated that she should sign the form. Stewart signed the form.

The next day, December 15, both Stewart and Knaub submitted similar letters to Doney indicating that they had been forced to resign. On December 16, Stewart and Knaub met with Sandy MacDonald, a Personnel Specialist, at the Billings Area Office. MacDonald discussed with them the option of resigning or being terminated. He explained that a voluntary resignation meant that there is no adverse inference regarding an employee's leaving in an employee's record. Termination, on the other hand, requires that the reason for leaving be stated and becomes a permanent part of the record. Following this discussion with MacDonald, both Stewart and Knaub confirmed that they would not rescind their resignations in lieu of termination. Stewart's and Knaub's resignations were effective on December 14.

Stewart was unemployed for six months following her resignation. She resumed employment with the Indian Health Service, at its Northern Cheyenne Service Unit, Lame Deer, Montana on June 21, 1999. The Northern Cheyenne Service Unit has a different nursing environment from the one Stewart was in at the Respondent.

Marcella Knaub - Employment and Protected Activity

Marcella Knaub was one of the nurses requesting the meeting with Hayes on September 28, 1998 and was a signatory of the group grievance, described above··Marcella Knaub··. During this meeting, Knaub complained that Hayes scheduled herself to work the floor when there was a staff shortage, and then would not report to work unless there were 10 or more patients.

Knaub complained about the manner in which "low census" annual leave was being handled by Hayes. A practice had developed at the work site whereby a nurse would be given the opportunity to take leave if the workload, as indicated by a low patient census, would permit the nurse to be absent. The nurses had developed a rotation system to determine whose turn it was to take the "low census" leave, when it became available. It was alleged that Hayes was disrupting this rotation system by scheduling herself to work a shift, and then electing not to report for work if the patient census was sufficiently low. During the meeting, Knaub asked Hayes if the other nurses would be permitted to follow the same practice and simply call in to discover if they had to report to work, and Hayes said that would not be permitted.

Hayes replied to Knaub's complaint with an entry in the communication book. Hayes' entry in the communication book indicated that a nurse must first report to work before requesting "low census" annual leave.

On October 20-21, the medication errors occurred involving Stewart and Knaub, as described above.

On October 30, Knaub called Hayes on the telephone and requested leave for the following day in the event that the workload, due to a low census of patients, would permit her absence. Knaub had discovered that a co-worker had been permitted to take leave due to a low census of patients on October 30, and Knaub, who was next in the rotation to request such leave, expected that the same conditions would permit her to take leave on October 31. Knaub wanted to be able to confirm whether there was a the low patient census over the telephone and did not want to drive in to work the following day unless it was necessary. In response, Hayes reminded Knaub that as a result of the nurses' grievance meeting, nurses would have to report to work before [ v57 p123 ] receiving leave due to low patient census. Knaub subsequently reported for work on the following day, October 31. After she reported for work, Kaub who was on the day shift, observed Hayes reporting for work later in the afternoon in order to relieve another nurse prior to the end of her shift.

On November 1, Knaub was assigned to work the day shift, and during her shift she received a report from the charge nurse that a counselor, Karl Schlepp, had telephoned and been granted leave due to a low patient census without having to report to work. Based on these events, Knaub concluded that she was being treated unfairly and that Hayes was giving preferential treatment to her co-workers.

On November 12, Hayes informed Knaub that Millie Stewart had reported that Knaub had given her half a tablet of Ativan for a patient. Knaub immediately acknowledged that this was true. In response, Hayes said that you know you are not supposed to do that, and Knaub said that all the other nurses did it too. Hayes said that you're just not supposed to do that, and that she could have Knaub's license taken away, but since she was a nice guy, she was not going to do that. According to Knaub, Hayes laughed and said not to do that again. Knaub agreed and said that she would not do it again, and the meeting came to an end.

On November 15, Knaub filed a written grievance against Hayes. The grievance was based on Knaub's efforts to receive leave on October 31 and November 1, and Hayes allegedly giving Knaub's co-workers preferential treatment in the administration of leave. On November 15, Knaub delivered a copy of the grievance to Valandra's mailbox at the work site, and personally delivered a copy to LaForge. Approximately two weeks after Knaub had delivered the grievance to Valandra's mailbox, she made efforts to retrieve the grievance from him. Knaub decided that Valandra was delaying a response to the grievance and wanted to send the grievance on to Duane Jeanotte, the Billings Area Director in Billings, Montana. When Knaub asked Valandra for the grievance back, he said he was in the process of preparing his response. (Valandra did finally provide a written response to Knaub's grievance, and delivered the response, which was dated November 17, 1998, to Knaub on December 14, 1998, the same day she resigned/was terminated.)

On December 1, following the conclusion of Hayes' meeting with Stewart, described above, Hayes met with Knaub for the purpose of discussing a procedural note with her. During this meeting, Knaub was accompanied by LaForge, Half, and Long as her Union representatives. At the outset of the meeting, Hayes handed Knaub a procedural note which addressed Knaub having received 1 mg. of Ativan from the Pyxis machine for a patient, and providing 0.5 mg. to Stewart for administration to the same patient. During this discussion, Hayes told Knaub that she was placing her on a performance improvement plan (PIP) for the alleged medication error. Knaub stated that she thought the matter had been resolved during their previous meeting on November 12. Hayes responded that Knaub was going to be on a PIP under the nurse educator for six months with respect to medication administration. Knaub's procedural note stated that progressive discipline would occur if this type of error occurred again, and that the procedural note would not be a permanent part of her record.

During this meeting, Half and LaForge again took the position that the use of procedural notes had been abolished through an agreement between the Service Unit Director and LaForge, and they advised Knaub not to sign the procedural note. Knaub's signature, however, appears on the procedural note.

Following these meetings, on December 1, Knaub submitted a written grievance to LaForge concerning her receipt of the procedural note. As noted above, based on the complaints of Knaub and Stewart, the Union submitted data requests, notified Hayes of the complaints, and met with Service Director Doney.

On December 8, Knaub was working the day shift when she was called by Hayes at the nurses' station and told that she was to leave work at 1:00 p.m. that afternoon, and then report for duty later that evening at 7:00 p.m. to work the night shift. In response, Knaub stated that she did not want to work the night shift. Hayes said that the other nurse also did not want to work the night shift, and that she would have to work the shift. Hayes also told Knaub that she would have to work two additional night shifts that week. Knaub told Hayes that this was the weekend when she usually visited her daughter. Hayes replied that if she had any problems, to come talk to her.

Knaub immediately attempted to contact Union President LaForge, but he was unavailable. In LaForge's absence, Knaub contacted Union steward Jerome White Hip, who accompanied Knaub to Hayes' office where they resumed discussing her complaint over being assigned to work the night shift. Hayes told Knaub that she had to do it. Knaub worked the night shifts as directed. [ v57 p124 ]

On December 14, Valandra, Director of Nursing, handed Knaub his response to the grievance that Knaub had filed on November 15. In his response, dated November 17, Valandra stated, "Not all situations will routinely generate the same conclusion and therefore, I support the decisions my supervisors make." Valandra also stated, "If this is disagreeable to the inpatient nursing staff, we can take the option of not allowing `low census' leave for anyone."

Later that same day, Hayes instructed Knaub to go to the conference room where she met with Hayes, Valandra, Personnel Specialist Old Bear, and LaForge. LaForge was acting as Knaub's Union representative.

During the meeting, Knaub was advised of the letter of her termination which had been signed by Hayes. As was the case with Stewart, responsibility for the termination decision was shared with Valandra. Doney, Fisher, and Harding were consulted or engaged in discussions concerning the proper decision.

Knaub was informed that she could either resign or be terminated. Knaub turned to LaForge and asked what she was supposed to do, and she asked if they could talk. Valandra said that they could not talk. LaForge advised Knaub to just sign the paper and she did. The meeting then came to an end, and Knaub left the room.

As noted above, on December 15, Knaub and Stewart submitted similar letters indicating that they had been forced to resign, but following a discussion with MacDonald at the Billings Area Office on December 16, Stewart and Knaub decided not to rescind their resignations in lieu of termination. Their resignations were effective on December 14.

Knaub was unemployed until January 5, 1999. At that time, she was again employed by the Indian Health Service at the Northern Cheyenne Service Unit in Lame Deer, Montana. The Northern Cheyenne Service Unit has a different nursing environment from the one Knaub was in at the Respondent.

Other Medication - Procedural Errors

The parties stipulated that during the 3-year period between November 22, 1996, and November 22, 1999, there have been no instances of any employee of the Indian Health Service, Billings Area (which includes the Billings Area Office and eight Indian Health Service facilities in the states of Montana and Wyoming, and which employs approximately 1000 employees, including employees assigned to the IHS, Crow Service Unit), receiving any personnel action in the form of any counseling, written reprimand, suspension, removal action, or any like or related action (with the exception of Marcella Knaub and Millie Stewart), based on an act or acts similar to that upon which the Crow Service Unit, based its decision to terminate employees Marcella Knaub and Millie Stewart on December 14. Furthermore, the parties also stipulated that during the 3-year period between November 22, 1996, and November 22, 1999, there have been no instances of any employees of the Indian Health Service, Crow Service Unit, receiving any medication error reports based on an act or acts similar to that upon which the Crow Service Unit, based its decision to terminate employees Marcella Knaub and Millie Stewart on December 14, 1998.

Doney, Fisher and Harding testified that they were not aware of any other instances where a health care provider had passed medication in the manner of Stewart and Knaub.

The record reflects other medication errors involving other nurses at the Crow Service Unit. On one occasion, on November 14, 1997, Hayes discovered a tubex of a controlled substance, morphine, in a patient's drawer. There were 6 mg. of unused morphine remaining in the tubex. The medication had been dispensed by the Pyxis machine to a nurse [n5] assigned to the Med/Surg ward. The nurse had received a 10 mg. tubex of morphine and had been administering it to a patient 2 mgs. at a time, every 2 hours, but had failed to waste the rest. After Hayes discovered that the morphine had been left in the patient's drawer, she sent a memorandum to two employees. Through the memorandum, Hayes inquired concerning the morphine, but there is no evidence that subsequent medication error reports, counseling sessions, or disciplinary actions occurred as a result of the morphine being left in the patient's drawer.

On or about December 1, a permanent nurse [n6] assigned to the Med/Surg ward at the Crow Hospital under the supervision of Hayes, committed a medication error that involved administering a medication intravenously that should have been administered through an intramuscular injection. This error could have caused kidney damage, liver damage, and a potentially fatal condition in which tiny clots form in the blood. In addition, on or about December 9, the same nurse committed another medication error that involved giving 4 doses of 15 cc's of Pediazole Suspension to an infant patient. The correct prescribed amount was 1.5 cc's, rather than [ v57 p125 ] the 15 cc's that was administered. This error raised the potential of extreme irreversible liver damage for the baby. The nurse involved has received more medication error reports than any of her co-workers, but has not received any disciplinary action such as a suspension from duty.

A probationary nurse assigned to the Med/Surg ward was involved in at least two medication errors during her probationary period. On or about February 23, 1999, the nurse over-dosed a patient by administering two Percocet tablets rather than the one tablet prescribed. Percocet is not a controlled substance. In addition, on or about November 16, 1999, the nurse was also involved in a medication error that resulted in an inability to account for 20 mgs. of Valium, a controlled substance. No disciplinary action, such as a suspension from duty, was taken against the nurse, a probationary employee, as a result of her actions.

Discussion and Conclusions

Section 7116(a)(1) of the Statute provides that it shall be an unfair labor practice for an agency to interfere with, restrain, or coerce any employee in the exercise of any right provided by the Statute. Consistent with the findings and purpose of Congress as set forth in section 7101, section 7102 of the Statute sets forth certain employee rights including the right to form, join, or assist any labor organization freely and without fear of penalty or reprisal and that each employee shall be protected in the exercise of such right. Section 7116(a)(2) of the Statute provides that it shall be an unfair labor practice for an agency to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment.

The Authority's Analytical Framework

Under the Authority's analytical framework for resolving complaints of alleged discrimination under section 7116(a)(2) of the Statute, the General Counsel has, at all times, the overall burden to establish by a preponderance of the evidence that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. As a threshold matter, the General Counsel must offer sufficient evidence on these two elements to withstand a motion to dismiss. However, satisfying this threshold burden also establishes a violation of the Statute only if the respondent offers no evidence that it took the disputed action for legitimate reasons. Where the respondent offers evidence that it took the disputed action for legitimate reasons, it has the burden to establish, by a preponderance of the evidence, as an affirmative defense that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken even in the absence of protected activity. United States Air Force Academy, Colorado Springs, Colorado, 52 FLRA 874, 878-89 (1997); Federal Emergency Management Agency, 52 FLRA 486, 490 n.2 (1996); Letterkenny Army Depot, 35 FLRA 113, 118 (1990).

There is no dispute that Stewart and Knaub were involved in protected activity and that their actions were well known to management. Both Millie Stewart and Marcella Knaub engaged in extensive protected activity in the form of seeking Union assistance, pursuing grievances, and having the Union deal with Crow hospital management on their behalf. The General Counsel also satisfied the threshold burden of showing that consideration of such activity was a motivating factor in the selection process. This was shown by: (1) the closeness in time between the protected activity and management's decision, which may support an inference of illegal anti-union motivation, although it is not conclusive proof of a violation. General Services Administration, Region IX, San Francisco, California, 40 FLRA 973, 982 (1991); (2) the fact that Stewart and Knaub were active and aggressive in pursuing their protected activity and could have been considered a thorn in management's side. United States Forces Korea/Eighth United States Army, 11 FLRA 434, 436 (1983).

Although the General Counsel satisfied the threshold burden, the Respondent established an affirmative defense for its actions. The Respondent established, through the testimony of Hayes, Valandra, Fisher, and Harding, whom I credit in this respect, that it had a legitimate, nondiscriminatory justification for its action and that it would have taken the action even in the absence of the protected activity. The termination notices, resulting ultimately in voluntary resignations, were issued during the employees' probationary periods based on the uncontested fact that Ms. Knaub relinquished possession of a controlled substance, which was no longer definitively identifiable, to Ms. Stewart, who accepted the substance and administered it to a patient. The mishandling of the controlled substance was contrary to established procedures and potentially detrimental to the patient and the institution. Although management was aware of other medication errors by nurses, a preponderance of the evidence does not establish that management had knowledge of and acquiesced in comparable violations (transference of controlled [ v57 p126 ] medication between providers) by other probationary nurses and singled out Ms. Knaub and Ms. Stewart for release because of their protected activity.

I conclude that a preponderance of the evidence does not establish that the Respondent violated section 7116(a)(1) and (2), of the Statute as alleged. Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:

ORDER

The consolidated complaint is dismissed.

Issued, Washington, DC, March 21, 2000.

______

GARVIN LEE OLIVER

Administrative Law Judge

File 1: Authority's Decision in 57 FLRA No. 32 and Opinion of Chairman Cabaniss

File 2: ALJ's Decision

Footnote # 1 for
57 FLRA No. 32

• ALJ's Decision

Counsel for the General Counsel filed a particularly thorough brief. While, based on my examination of the entire record, I am unable to agree with many of Mr. Farley's proposed findings and conclusions, his professional representation in this proceeding was indeed commendable.

Footnote # 2 for
57 FLRA No. 32

• ALJ's Decision

All dates are 1998, unless otherwise noted.

Footnote # 3 for
57 FLRA No. 32

• ALJ's Decision

Nurse Olsen also testified as an expert witness regarding documents which were provided by the Agency in response to a subpoena duces tecum. Olsen provided five examples from the documents which reflect nurses maintaining possession of medication throughout their shift without wasting the excess medication after the initial administration. None of the examples cited by Olsen depicts a nurse passing controlled medication from one shift/nurse to another. Olsen testified that she was prepared to present 21 additional examples sanctions Olsen did not provide any testimony that any of the 21 additional examples would show a passing of controlled medication from one shift/nurse to another.

Footnote # 4 for
57 FLRA No. 32

• ALJ's Decision

Counsel for the General Counsel established that additional subpoenaed information should have been provided by the Respondent. Counsel requested, as a sanction for such conduct, that an adverse inference be drawn that "additional" information in support of this unfair labor practice charge exists. Based on the record, I believe it would be appropriate to find that "additional" information exists in support of nurses maintaining possession of controlled medication throughout their shift without wasting the excess medication after the initial dose, but not that "additional" information exists of one nurse relinquishing possession of a controlled substance to another nurse on another shift who then accepts the substance and administers it to a patient.

Footnote # 5 for
57 FLRA No. 32

• ALJ's Decision

The nurse, not Stewart or Knaub, is identified in the hearing transcript.

Footnote # 6 for
57 FLRA No. 32

• ALJ's Decision

The nurse, not Stewart or Knaub, is identified in the hearing transcript.