Veterans Administration Regional Office, Denver, Colorado (Respondent) and American Federation of Government Employees, Local 1557, AFL-CIO (Complainant) 

 



[ v02 p668 ]
02:0668(84)CA
The decision of the Authority follows:


 2 FLRA No. 84
 
 VETERANS ADMINISTRATION REGIONAL OFFICE,
 DENVER, COLORADO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1557, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 61-4246(CA)
 
                            DECISION AND ORDER
 
    ON OCTOBER 3, 1979, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
 ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
 PROCEEDING, FINDING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND
 (2) OF EXECUTIVE ORDER 11491, AS AMENDED, WHEN IT ISSUED A REPRIMAND TO
 JAMES E. ROSS, THE PRESIDENT OF AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1557, AFL-CIO, BASED ON THE LANGUAGE HE USED IN A
 GRIEVANCE FILED ON BEHALF OF A UNIT EMPLOYEE.  THE ADMINISTRATIVE LAW
 JUDGE FURTHER FOUND THAT SUCH CONDUCT BY THE RESPONDENT WAS NOT
 VIOLATIVE OF SECTION 19(A)(4) OF THE ORDER, AND, THEREFORE, HE
 RECOMMENDED DISMISSAL OF THAT PORTION OF THE COMPLAINT.  NO EXCEPTIONS
 WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 44741, JULY 30, 1979).  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 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, AND
 NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS /1/ AND
 RECOMMENDATIONS.  /2/
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REPRIMANDING OR OTHERWISE DISCRIMINATING AGAINST ANY EMPLOYEE IN
 ANY MANNER WITH REGARD
 
    TO HIRE, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT, IN
 ORDER TO DISCOURAGE
 
    MEMBERSHIP IN OR ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 
    LOCAL 1557, OR ANY OTHER LABOR ORGANIZATION.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES
 
    OF THE ORDER.
 
    (A) REMOVE OR EXPUNGE FROM ITS FILES ANY REFERENCE TO THE REPRIMAND
 GIVEN JAMES ROSS ON
 
    SEPTEMBER 26, 1978, AND ACKNOWLEDGE THE REMOVAL TO ROSS IN WRITING.
 
    (B) POST AT ALL VETERANS ADMINISTRATION, REGIONAL OFFICE, DENVER,
 COLORADO, FACILITIES AND
 
    INSTALLATIONS COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
 FORMS TO BE FURNISHED BY THE
 
    FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY
 SHALL BE SIGNED BY THE
 
    REGIONAL DIRECTOR AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS
 
    THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
 OTHER PLACES WHERE
 
    NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE REGIONAL DIRECTOR
 SHALL TAKE REASONABLE
 
    STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR
 COVERED BY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
 DAYS FROM THE DATE OF
 
    THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    IT IS HEREBY FURTHER ORDERED THAT THE SECTION 19(A)(4) ALLEGATION OF
 THE COMPLAINT BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 21, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
                                PURSUANT TO
 
                        A DECISION AND ORDER OF THE
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                AND IN ORDER TO EFFECTUATE THE POLICIES OF
 
                       CHAPTER 71 OF TITLE 5 OF THE
 
                            UNITED STATES CODE
 
                FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT REPRIMAND OR OTHERWISE DISCRIMINATE AGAINST ANY EMPLOYEE
 IN ANY MANNER WITH REGARD TO HIRE, TENURE, PROMOTION, OR OTHER
 CONDITIONS OR EMPLOYMENT, IN ORDER TO DISCOURAGE MEMBERSHIP IN OR
 ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 1557, OR ANY OTHER LABOR ORGANIZATION.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL REMOVE OR EXPUNGE FROM OUR FILES ANY REFERENCE TO THE WRITTEN
 REPRIMAND GIVEN JAMES ROSS ON SEPTEMBER 26, 1978, AND ACKNOWLEDGE THE
 REMOVAL TO ROSS IN WRITING.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE)
 
    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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
 CITY CENTER SQUARE, SUITE 680, 1100 MAIN STREET, KANSAS CITY, MISSOURI
 64105;  AND WHOSE TELEPHONE NUMBER IS:  (816) 374-2199.
 
    DOUGLAS DOAN, ESQ.
 
    VETERANS ADMINISTRATION
 
    DENVER FEDERAL CENTER
 
    DENVER, COLORADO
 
                            FOR THE RESPONDENT
 
    KENNETH BULL
 
    NATIONAL REPRESENTATIVE
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES
 
    5001 SOUTH WASHINGTON
 
    ENGLEWOOD, COLORADO 80110
 
                            FOR THE COMPLAINANT
 
    BEFORE:  SAMUEL A. CHAITOVITZ
 
                         ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON MAY 9, 1979 BY
 THE REGIONAL DIRECTOR, KANSAS CITY REGION, FEDERAL LABOR RELATIONS
 AUTHORITY, A HEARING WAS HELD BEFORE THE UNDERSIGNED IN DENVER,
 COLORADO.
 
    THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREIN CALLED THE ORDER).  IT WAS BASED ON A COMPLAINT FILED ON
 NOVEMBER 5, 1978 AND ON AN AMENDED COMPLAINT FILED ON JANUARY 10, 1979
 BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557
 (HEREIN CALLED COMPLAINANT AND LOCAL 1557 AFGE) AGAINST VETERANS
 ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO (HEREIN CALLED
 RESPONDENT AND VA).  THE SAID AMENDED COMPLAINT ALLEGES THAT RESPONDENT
 VIOLATED SECTIONS 19(A)(1)(2) AND (4) OF THE ORDER BY REPRIMANDING LOCAL
 1557 AFGE PRESIDENT, JAMES E. ROSS, FOR THE LANGUAGE HE USED IN A
 GRIEVANCE HE HAD FILED.
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AND
 CROSS-EXAMINE WITNESSES.  THEREAFTER BOTH PARTIES FILED BRIEFS WHICH
 HAVE BEEN DULY CONSIDERED BY THE UNDERSIGNED.
 
    UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
 AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
 AT THE HEARING, I MAKE THE FOLLOWING RECOMMENDED FINDINGS AND
 CONCLUSIONS.
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL LOCAL 1557 AFGE WAS THE EXCLUSIVE
 COLLECTIVE BARGAINING REPRESENTATIVES FOR A UNIT COMPOSED OF
 RESPONDENT'S PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES AND A
 COLLECTIVE BARGAINING AGREEMENT WHICH CONTAINED A GRIEVANCE PROCEDURE
 WAS IN EFFECT.
 
    2.  AT ALL TIMES MATERIAL MR. JAMES ROSS WAS PRESIDENT OF LOCAL 1557
 AFGE.
 
    3.  BY LETTER DATED SEPTEMBER 19, 1978, ON LOCAL 1557 AFGE
 LETTERHEAD, LOCAL 1557 AFGE PRESIDENT ROSS FILED A GRIEVANCE.  THE
 LETTER WAS ADDRESSED TO RESPONDENT'S DIRECTOR N. BALVERSON AND STATES
 THAT THE GRIEVANCE IS FILED IN ACCORDANCE WITH ARTICLE 23, SECTION 4 OF
 THE COLLECTIVE BARGAINING AGREEMENT, AND THAT THE GRIEVANCE IS DIRECTED
 AGAINST THE ACTIONS OF MR. JOHN ISAAC, IN DENYING A UNION STEWARD, WHILE
 PROCESSING AN EMPLOYEE GRIEVANCE, PERMISSION TO BE PRESENT AT A DESK
 AUDIT AND IN DENYING THAT THERE WAS A "TARGET GRADE" ON A SPECIFIC
 POSITION.
 
    4.  IN THE SEPTEMBER 19 GRIEVANCE LETTER LOCAL 1557 AFGE PRESIDENT
 ROSS REFERRED TO RESPONDENT'S PERSONNEL OFFICER CAFFEY'S /3/, "INABILITY
 TO EXPLAIN HIS CAPRICIOUS AND ARBITRARY ACTIONS IN DENYING THE EMPLOYEE
 PROMOTION." PRESIDENT ROSS STATED FURTHER "MR.  CAFFEY CONTINUES TO
 EVIDENCE A FUNDAMENTAL INABILITY TO CORRECTLY APPLY THE PROVISIONS OF
 THE FEDERAL PERSONNEL MANUAL . . . " AND THAT "MR. CAFFEY APPEARS TO
 BELIEVE THAT HE IS FREE TO TARGET CERTAIN INDIVIDUALS FOR DEMOTION
 WITHOUT CAUSE OR EXPLANATION.  . . . " FINALLY THE SEPTEMBER 19 LETTER
 STATES, "MR. ISAAC'S ACTIONS ONLY SERVE TO REINFORCE THE APPEARANCE OF
 AN INCOMPETENT PERSONNEL OFFICER ASSIGNING A PERSONNEL MANAGEMENT
 SPECIALIST TO COVER THE MALEVOLENT ACTIONS OF THE PERSONNEL OFFICER WITH
 REGARD TO ATTACKS NOT ONLY ON THE POSITION OF SELECTED EMPLOYEES BUT
 ALSO AGAINST THE EMPLOYEE'S RIGHT TO REPRESENTATION AND DUE PROCESS."
 
    5.  MR. ISING INVESTIGATED THE GRIEVANCE AND CONCLUDED THAT THE
 SUBJECT MATTER OF THE GRIEVANCE HAD BEEN HANDLED PROPERLY BY THE
 PERSONNEL OFFICER AND THAT MR. ROSS WAS NOT JUSTIFIED IN USING THE WORDS
 "INCOMPETENT" AND "MALEVOLENT" TO DESCRIBE MR. CAFFEY.
 
    6.  MR. ISING ISSUED A LETTER OF REPRIMAND DATED SEPTEMBER 26, 1978
 TO LOCAL 1557 AFGE PRESIDENT ROSS /4/ STATING, INTER ALIA, THAT MR.
 ROSS' ATTACK ON THE PERSONNEL OFFICER MEETS THE TEST OF "DELIBERATE AND
 RECKLESS UNTRUTH";  THAT THE ISSUE OF "INCOMPETENT" AND "MALEVOLENT"
 FALSELY ACCUSES MR. CAFFEY OF IMPROPERLY "TARGETING THE EMPLOYEE FOR AN
 UNJUSTIFIED CLASSIFICATION ACTION";  AND THAT SUCH AN ATTACK ON AN
 AGENCY EMPLOYEE IS BEYOND THE PROTECTION OF THE FEDERAL LABOR MANAGEMENT
 RELATIONS PROGRAMS AND VIOLATES VA REGULATION 820(B).  /5/
 
                            CONCLUSIONS OF LAW
 
    THE OBJECT OF THE ORDER WAS TO GRANT FEDERAL EMPLOYEES THE RIGHT, IF
 THEY CHOOSE, TO BE EFFECTIVELY REPRESENTED IN COLLECTIVE BARGAINING BY A
 LABOR ORGANIZATION.  IN ORDER TO ACHIEVE THIS OBJECTIVE A LABOR
 ORGANIZATION MUST BE FREE TO ACT RELATIVELY FREELY, WITHIN THE
 LIMITATIONS SPECIFICALLY OR IMPLIEDLY SET FORTH IN THE ORDER, SO THAT IT
 CAN, IN ITS BEST JUDGMENT, BEST REPRESENT ITS CONSTITUENTS.  THIS
 INVOLVES ACTING EFFECTIVELY IN ALL ASPECTS OF COLLECTIVE BARGAINING,
 INCLUDING ENFORCING AND ATTEMPTING TO POLICE A COLLECTIVE BARGAINING
 AGREEMENT THROUGH UTILIZATION OF A COLLECTIVELY BARGAINED GRIEVANCE
 PROCEDURE.
 
    UTILIZATION OF A GRIEVANCE PROCEDURE IS AN INTEGRAL AND FUNDAMENTAL
 PART OF A LABOR ORGANIZATION'S RIGHT TO EFFECTIVELY REPRESENT EMPLOYEES.
  A LABOR ORGANIZATION MUST BE FREE TO WRITE AND EXPRESS ITSELF IN A
 GRIEVANCE IN TERMS WHICH IT FEELS, CORRECTLY OR INCORRECTLY, WILL MOST
 SUCCESSFULLY ACCOMPLISH ITS ENDS.  TO SUBJECT A UNION REPRESENTATIVE TO
 DISCIPLINE BECAUSE HE RECORDS A GRIEVANCE IN A WAY THAT DISPLEASES
 MANAGEMENT, OR BECAUSE MANAGEMENT BELIEVES THE WORDING IS INCORRECT OR
 UNTRUTHFUL, WOULD BE TO UNREASONABLY LIMIT AND INTERFERE WITH A LABOR
 ORGANIZATION'S EFFECTIVENESS.  SUCH POTENTIAL DISCIPLINE WOULD
 NECESSARILY INHIBIT AN EMPLOYEE, WHEN ACTING IN THE CAPACITY OF A UNION
 OFFICIAL, FROM TAKING THOSE ACTIONS WHICH HE MIGHT FEEL WOULD MOST
 EFFECTIVELY REPRESENT THE EMPLOYEES.
 
    THE ASSISTANT SECRETARY RECOGNIZED THAT DURING COLLECTIVE BARGAINING
 NEGOTIATIONS A LABOR ORGANIZATION REPRESENTATIVE COULD USE "PROFANITY"
 AND "ABUSIVE LANGUAGE".  U.S. SMALL BUSINESS ADMINISTRATION, A/SLMR NO.
 631.  THE ASSISTANT SECRETARY RELIED ON OLD DOMINION BRANCH NO. 496,
 NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO V. AUSTIN, 461 US 264
 (1964) IN WHICH THE SUPREME COURT CONCLUDED THAT THE EXECUTIVE ORDER DID
 NOT INTEND TO RESTRICT, IN ANY WAY, THE "ROBUST DEBATE" WHICH HAS BEEN
 PROTECTED UNDER THE NATIONAL LABOR RELATIONS ACT.  THUS RESPONDENT'S
 REPRIMAND OF MR. ROSS BECAUSE OF THE LANGUAGE HE USED IN PRESENTING
 GRIEVANCE NECESSARILY INTERFERED WITH HIS RIGHT TO EFFECTIVELY ACT ON
 BEHALF OF THE COMPLAINANT AND CONSTITUTED UNLAWFUL DISCRIMINATION.
 ACCORDINGLY IT IS CONCLUDED THAT THE REPRIMAND CONSTITUTED A VIOLATION
 OF SECTION 19(A) (1) AND (2) OF THE ORDER.
 
    IN THE SUBJECT CASE THE UNION OFFICIAL, IN REFERRING TO THE PERSONNEL
 OFFICER AS "INCOMPETENT" AND "MALEVOLENT" WAS MERELY UTILIZING
 TRADITIONAL COLLECTIVE BARGAINING LANGUAGE IN CRITICIZING MANAGEMENT.
 THEY ARE DESCRIPTIVE TERMS WHOSE ACCURACY CANNOT BE PRECISELY MEASURED
 OR QUANTIFIED.  RATHER THEY ARE EXAMPLES OF CLASSICAL LABOR RELATIONS
 RHETORIC AND MANAGEMENT CANNOT BE SO THIN SKINNED AS TO TAKE OFFENSE AT
 SUCH TERMS.  /6/ THUS RESPONDENT CANNOT BE PERMITTED, IN APPLYING VA
 REGULATION 820(B), TO IMPROPERLY LIMIT THE ACTIONS OF AN EMPLOYEE WHEN
 THAT EMPLOYEE IS ACTING IN THE CAPACITY OF A UNION OFFICIAL.
 
    IN SO CONCLUDING THIS DECISION DOES NOT MEAN THAT AN EMPLOYEE, WHO IS
 A UNION OFFICIAL, IS FREE TO DO AND SAY WHAT HE WISHES WITH IMPUNITY.
 FIRST WHEN ACTING AS AN EMPLOYEE ONLY, HE IS UNDER EXACTLY THE SAME
 CONSTRAINTS AS OTHER EMPLOYEES.  WHEN ACTING OFFICIALLY IN HIS CAPACITY
 AS AN OFFICIAL OF A LABOR ORGANIZATION, A UNION OFFICIAL MUST HAVE VERY
 BROAD LATITUDE IN SPEECH AND ACTION.  HOWEVER, EVEN THEN THERE ARE SOME
 ACTIONS OR STATEMENTS THAT WOULD BE SO EXTREME AS TO BE UNPROTECTED.  IN
 THE INSTANT CASE, HOWEVER, THE LANGUAGE OF THE GRIEVANCE WAS RATHER
 STANDARD LABOR RELATIONS RHETORIC AND CLEARLY NOT SUCH AS TO BE
 UNPROTECTED.  FURTHER, ALTHOUGH MR. ROSS IS NO LONGER AN EMPLOYEE OF
 RESPONDENT, IT IS CONCLUDED THE MATTER IS NOT MOOT BECAUSE RESPONDENT
 CONTINUES TO CONTEND THAT ITS REPRIMAND OF MR. ROSS WAS PROPER AND
 JUSTIFIED AND THAT IT WOULD CONTINUE TO FOLLOW SUCH A POLICY.
 
    THE RECORD CONTAINS NO EVIDENCE THAT MR. ROSS' REPRIMAND HAD ANYTHING
 TO DO WITH THE FILING OF ANY UNFAIR LABOR PRACTICE COMPLAINT OR WITH
 TESTIFYING WITH RESPECT TO ANY SUCH COMPLAINT.  ACCORDINGLY, IT IS
 CONCLUDED THAT RESPONDENT DID NOT VIOLATE SECTION 19(A)(4) OF THE ORDER.
 
                              RECOMMENDATIONS
 
    HAVING FOUND THAT RESPONDENT ENGAGED IN CONDUCT WHICH IS VIOLATIVE OF
 SECTIONS 19(A)(1) AND (2) OF THE ORDER BUT NOT VIOLATIVE OF SECTION
 19(A)(4) OF THE ORDER, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS
 AUTHORITY ADOPT THE FOLLOWING ORDER WHICH IS DESIGNED TO EFFECTUATE THE
 POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE VETERANS ADMINISTRATION, DENVER REGIONAL OFFICE, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REPRIMANDING OR OTHERWISE DISCRIMINATING AGAINST ANY EMPLOYEE IN
 ANY MANNER WITH REGARD
 
    TO HIRE, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT, IN
 ORDER TO DISCOURAGE
 
    MEMBERSHIP IN OR ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 
    LOCAL 1557, OR ANY OTHER LABOR ORGANIZATION.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE ORDER.
 
    (A) POST AT ALL VETERANS ADMINISTRATION, REGIONAL OFFICE, DENVER,
 COLORADO, FACILITIES AND
 
    INSTALLATIONS COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
 FORMS TO BE FURNISHED BY THE
 
    FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY
 SHALL BE SIGNED BY THE
 
    REGIONAL DIRECTOR AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS
 
    THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
 OTHER PLACES WHERE
 
    NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE REGIONAL DIRECTOR
 SHALL TAKE REASONABLE
 
    STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR
 COVERED BY OTHER MATERIAL.
 
    (B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
 DAYS FROM THE DATE OF
 
    THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    IT IS HEREBY ORDERED THAT THE SECTION 19(A)(4) ALLEGATION OF THE
 COMPLAINT BE, AND IT HEREBY IS, DISMISSED.
 
                           SAMUEL A. CHAITOVITZ
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  OCTOBER 3, 1979
 
    WASHINGTON, D.C.
 
                                 APPENDIX
 
        NOTICE TO ALL EMPLOYEES A DECISION AND ORDER OF THE FEDERAL
 
         LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
             CODES FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT REPRIMAND OR OTHERWISE DISCRIMINATE AGAINST ANY EMPLOYEE
 IN ANY MANNER WITH REGARD TO HIRE, TENURE, PROMOTION, OR OTHER
 CONDITIONS OF EMPLOYMENT, IN ORDER TO DISCOURAGE MEMBERSHIP IN OR
 ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 1557, OR ANY OTHER LABOR ORGANIZATION.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:(SIGNATURE)
 
    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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  CITY CENTER SQUARE, 1100 MAIN STREET, SUITE 680, KANSAS
 CITY, MISSOURI 64105.
 
    /1/ DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON,
 WASHINGTON, 2 FLRA NO. 7 (1979).
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /3/ AT THE TIME OF THE LETTER MR. CAFFEY HAD BEEN THE RESPONDENT'S
 PERSONNEL OFFICER FOR ABOUT 4 MONTHS.
 
    /4/ THE LETTER WAS PLACED IN MR. ROSS' OFFICIAL PERSONNEL FILE BUT
 WAS REMOVED BECAUSE, SOON AFTER THESE INCIDENTS OCCURRED, MR. ROSS
 RESIGNED FROM RESPONDENT.
 
    /5/ VA REGULATION 820(B) PROHIBITS THE MAKING OF "FALSE OR UNFOUNDED
 STATEMENTS ABOUT EMPLOYEES WHICH ARE SLANDEROUS OR DEFAMATORY.  . . . "
 
    /6/ THEY ARE SOMEWHAT ANALOGOUS TO CHARACTERIZING AN ADMINISTRATIVE
 LAW JUDGE AS "ARBITRARY" AND "CAPRICIOUS".  AGA