Veterans Administration Hospital, Sheridan, Wyoming (Respondent) and American Federation of Government Employees, AFL-CIO, Local 1219 (Complainant) 

 

 1 FLRA No. 76
 
 VETERANS ADMINISTRATION HOSPITAL,
 SHERIDAN, WYOMING
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1219
 Complainant
 
                                            Assistant Secretary
                                            Case No. 61-3868(CA)
 
                            DECISION AND ORDER
 
    ON JANUARY 25, 1979, ADMINISTRATIVE LAW JUDGE STEVEN E. HALPERN
 ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
 PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR
 LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE
 COMPLAINT BE DISMISSED IN ITS ENTIRETY.  THE COMPLAINANT FILED
 EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1078 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S
 
    RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
 INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, /1/ CONCLUSIONS AND
 RECOMMENDATIONS.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 61-3868(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 29, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    DAN MCCARTHY
 
    ATTORNEY AT LAW
 
    VETERANS ADMINISTRATION
 
    DISTRICT COUNSEL OFFICE
 
    PHOENIX, ARIZONA 85012
 
                            FOR THE RESPONDENT
 
    KENNETH BULL
 
    NATIONAL REPRESENTATIVE, AFGE
 
    5001 SOUTH WASHINGTON
 
    ENGLEWOOD, COLORADO 80110
 
                            FOR THE COMPLAINANT
 
    BEFORE:  STEVEN E. HALPERN
 
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED WAS INITIATED
 BY COMPLAINT FILED JANUARY ..., 1978, WITH AN AMENDED COMPLAINT HAVING
 BEEN FILED MAY 22, 1978.  NOTICE OF HEARING WAS INITIALLY ISSUED ON
 AUGUST 15, 1978, BY THE REGIONAL ADMINISTRATOR OF THE UNITED STATES
 DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION, KANSAS
 CITY REGION.  PURSUANT TO A SUPPLEMENTAL NOTICE A HEARING WAS HELD AT
 SHERIDAN, WYOMING ON NOVEMBER 2, 1978.  THEREAFTER, BRIEFS OF THE
 PARTIES HAVING BEEN FILED, THE RECORD DULY CLOSED ON JANUARY 10, 1979.
 
    RESPONDENT IS CHARGED WITH HAVING VIOLATED SECTION 19(A)(1) AND (2)
 OF THE EXECUTIVE ORDER.  THE FACTUAL BASIS ON WHICH THE COMPLAINT IS
 PREMISED IS SET FORTH THEREIN AS FOLLOWS:
 
    THE CHIEF OF BUILDING MANAGEMENT SERVICE IS DISCOURAGING UNION
 MEMBERSHIP AND PARTICIPATION
 
    IN THE UNION BY SELECTING INDIVIDUALS FOR PROMOTION ON THE BASIS OF
 UNION OR UNION AFFILIATION
 
    AND WHETHER OR NOT THE INDIVIDUAL IS ACTIVE IN THE UNION.  WITNESSES
 ARE AVAILABLE TO TESTIFY
 
    THAT THE MANAGER STATES THAT SINCE A UNION MEMBER WAS SELECTED FOR
 PROMOTION IT IS PROPER THAT
 
    SHE COULD SELECT A NON UNION MEMBER FOR ANOTHER PROMOTION.  ONE
 INDIVIDUAL, MELVIN JAMES
 
    CROSBY, A UNION STEWARD HAS BEEN DISCRIMINATED AGAINST.  HE HAS BEEN
 INVOLVED IN MORE THAN 25
 
    CASES DURING THE PAST 16 MONTHS.  PREVIOUSLY, MANAGEMENT CONTENDED
 THAT SELECTION FROM A
 
    PROMOTION ROSTER HAD BEEN MADE BY SELECTING THE PERSON WITH THE
 HIGHEST POINTS.  WHEN
 
    MR. CROSBY APPEARED ON THE PROMOTION ROSTER WITH THE HIGHEST POINTS
 HE WAS NOT SELECTED.  THIS
 
    PROMOTION ACTION WAS DATED NOV. 1, 1977.
 
    THE PARTIES HAVE BEEN AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
 ADDUCE EVIDENCE, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO MAKE ORAL
 ARGUMENT AND TO FILE BRIEFS.  BASED UPON THE EVIDENCE OF RECORD, HAVING
 OBSERVED THE WITNESSES AND ASSESSED THEIR CREDIBILITY AND HAVING
 CONSIDERED THE ARGUMENTS OF THE PARTIES, I MAKE THE WITHIN:
 
                         FINDINGS AND CONCLUSIONS
 
    COMPLAINANT UNION WAS IN APPROPRIATE REPRESENTATIVE STATUS AT ALL
 TIMES MATERIAL HERETO.
 
    THE EVIDENCE DISCLOSES THAT UNION STEWARD MELVIN JAMES CROSBY, THAN A
 CLOTHING CLERK IN RESPONDENT'S EMPLOY, FILED APPLICATION FOR ONE OF TWO
 VACANT SUPERVISORY POSITIONS AS HOUSEKEEPING AID FOREMAN;  AND, OF NINE
 APPLICANTS EVALUATED BY A RANKING PANEL TO BE HIGHLY QUALIFIED FOR SAID
 POSITIONS MR. CROSBY WAS ASSIGNED THE HIGHEST NUMERICAL RATING, WHILE
 EACH OF THE TWO CANDIDATES ULTIMATELY SELECTED WERE RATED THREE POINTS
 LOWER.
 
    FINAL SELECTION FOR THE VACANT POSITIONS WAS THE EXCLUSIVE
 RESPONSIBILITY OF ESTELLA KLOETZEL, RESPONDENT'S CHIEF OF BUILDING
 MANAGEMENT SERVICES.  IT WAS WITHIN HER DISCRETION TO SELECT ANY TWO OF
 THE HIGHLY QUALIFIED INDIVIDUALS IRRESPECTIVE OF NUMERICAL RANKING AND
 IT WOULD HAVE BEEN CONTRARY TO THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT FOR HER TO HAVE SELECTED SOLELY ON THE BASIS THEREOF.
 
    IN THE COURSE OF THE SELECTION PROCESS, CHARLES FREEMAN, RESPONDENT'S
 THEN ASSISTANT HOSPITAL DIRECTOR, MS. KLOETZEL'S SUPERIOR, AND FRANK
 TERRY, THE THEN GENERAL FOREMAN, HER SUBORDINATE, BOTH SUGGESTED TO HER
 THE EFFICACY OF SELECTING MR. CROSBY INTO ONE OF THE VACANT SUPERVISORY
 POSITIONS SINCE AS A SUPERVISOR HE WOULD BE INELIGIBLE FOR UNION
 ACTIVITY-- APPARENTLY HE WAS CONSIDERED DIFFICULT TO DEAL WITH.  NO
 COMPLAINT HAS BEEN MADE AND NO ARGUMENT HAS BEEN PRESENTED THAT THE
 MAKING OF SUCH RECOMMENDATIONS TO HER IN PRIVATE WAS VIOLATIVE OF THE
 EXECUTIVE O