Veterans Administration Hospital, Temple, Texas (Respondent) and American Federation of Government Employees, AFL-CIO, Local Union 2109 (Complainant) 

 



[ v02 p737 ]
02:0737(94)CA
The decision of the Authority follows:


 2 FLRA No. 94
 
 VETERANS ADMINISTRATION HOSPITAL,
 TEMPLE, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL UNION 2109
 Complainant
 
                                            Case No. 6-CA-2
 
                            DECISION AND ORDER
 
    ON SEPTEMBER 6, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
 FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
 PRACTICES IN VIOLATION OF SEC. 19(A)(1) OF THE ORDER AND RECOMMENDING
 THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS
 AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER.  THE ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT THE
 RESPONDENT HAD NOT ENGAGED IN CERTAIN OTHER ALLEGED UNFAIR LABOR
 PRACTICES AND RECOMMENDED THAT THOSE PORTIONS OF THE COMPLAINT BE
 DISMISSED.  THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS WITH RESPECT 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 SEC.  304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SEC. 2400.2 OF THE AUTHORITY'S 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 SEC.  7135(B) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SEC. 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SEC. 7135(B) OF THE STATUTE, THE AUTHORITY HAS REVIEWED
 THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND
 FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
 CASE, INCLUDING THE COMPLAINANT EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
 THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.
  /1/
 
                                   ORDER
 
    PURSUANT TO SEC. 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL
 LABOR RELATIONS AUTHORITY AND SEC. 7135 OF THE FEDERAL SERVICE LABOR
 MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
 VETERANS ADMINISTRATION CENTER, TEMPLE, TEXAS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERROGATING ITS EMPLOYEES AS TO WHETHER THEY WILL FILE
 GRIEVANCES AGAINST THE ACTIVITY BASED UPON ANY ACTION TAKEN BY
 MANAGEMENT TOWARD THE EMPLOYEES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSE AND POLICIES OF THE ORDER:
 
    (A) POST AT ITS FACILITY AT THE OLIN TEAGUE VETERANS ADMINISTRATION
 CENTER, TEMPLE, TEXAS, 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 CHIEF OF THE
 LABORATORY SERVICE 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 CHIEF SHALL TAKE REASONABLE STEPS TO INSURE
 THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY OTHER
 MATERIAL.
 
    (B) PURSUANT TO SEC. 203.27 OF THE REGULATIONS, NOTIFY THE FEDERAL
 LABOR RELATIONS AUTHORITY, IN WRITING 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 PORTION OF THE COMPLAINT IN
 CASE NO. 6-CA-2 FOUND NOT TO BE VIOLATIVE OF THE EXECUTIVE ORDER BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 29, 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 INTERROGATE OUR EMPLOYEES AS TO WHETHER THEY WILL FILE
 GRIEVANCES AGAINST US BASED UPON ANY ACTION TAKEN BY MANAGEMENT TOWARD
 OUR EMPLOYEES.
 
    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 OF COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
 DOWNTOWN POST OFFICE STATION, BRYAN AND ERVAY STREETS, P.O. BOX 2640,
 DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS:  (214) 767-4996.
 
    D. KEITH ROLLINS, ESQ.
 
    LYNDA BECK FENWICK, ESQ.
 
    1400 NORTH VALLEY MILLS DRIVE
 
    WACO, TEXAS 76710
 
                            FOR THE RESPONDENT
 
    PETE EVANS
 
    NATIONAL REPRESENTATIVE
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES
 
    203 TIMOTHY TRAIL
 
    DUNCANVILLE, TEXAS 75137
 
                            FOR THE COMPLAINANT
 
    BEFORE:  WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON MAY 30, 1979
 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, THE
 DALLAS, TEXAS REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JULY
 10, 1979 AT TEMPLE, TEXAS.
 
    THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREIN CALLED THE ORDER).  A COMPLAINT WAS FILED ON JANUARY 5, 1978 BY
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2109 (HEREIN
 CALLED COMPLAINANT) AGAINST VETERANS ADMINISTRATION CENTER, TEMPLE,
 TEXAS (HEREIN CALLED RESPONDENT).  IT ALLEGED THAT RESPONDENT VIOLATED
 SECTIONS 19(A)(1) AND (2) OF THE ORDER BY ENGAGING IN THE FOLLOWING
 ACTS:  (A) ON MAY 10, 1978 INTERROGATING BILLYE L. WEAVER, CHIEF STEWARD
 OF COMPLAINANT AS TO HER UNION ACTIVITIES;  (B) DISCRIMINATED AGAINST
 THE SAID BILLYE L. WEAVER BECAUSE OF HER UNION ACTIVITIES BY DENYING HER
 A PROMOTION TO A GS-9 POSITION AND ENGAGING IN ACTS OF REPRISAL AND
 COERCION TOWARD HER.
 
    RESPONDENT DENIES THE COMMISSION OF ANY UNFAIR LABOR PRACTICES.  IT
 CONTENDS THAT WEAVER WAS NOT SELECTED FOR A PROMOTION SINCE ANOTHER
 EMPLOYEE WAS BETTER QUALIFIED.  MOREOVER, IT INSISTS THAT ANY
 QUESTIONING OF WEAVER'S UNIONISM WAS JOCULAR IN NATURE AND NOT IMPROPER
 UNDER THE ORDER.
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING.  EACH WAS AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES, AND TO FILE BRIEFS WITH THE UNDERSIGNED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, 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 FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2109 HAS BEEN, AND STILL IS, THE COLLECTIVE
 BARGAINING REPRESENTATIVE OF ALL NON-PROFESSIONAL AND NON-SUPERVISORY
 EMPLOYEES AT THE OLIN TEAGUE VETERANS ADMINISTRATION CENTER, IN TEMPLE,
 TEXAS.  BOTH COMPLAINANT UNION AND RESPONDENT ARE PARTIES TO A WRITTEN
 COLLECTIVE BARGAINING AGREEMENT, DATED JANUARY 21, 1975, WHICH COVERS
 THE AFORESAID UNIT AND CONTINUES IN EXISTENCE.
 
    2.  BILLYE L. WEAVER (HEREIN CALLED WEAVER), WHO IS A MEMBER OF THE
 BARGAINING UNIT, HAS BEEN EMPLOYED BY RESPONDENT IN THE LABORATORY
 SERVICE SINCE 1966.  FROM 1967 UNTIL 1975 SHE WAS HEAD OF THE CHEMISTRY
 DEPARTMENT.  IN 1975 ANOTHER WOMAN WAS BROUGHT IN TO THE SECTION AS
 SUPERVISOR.  WEAVER, WHO WAS A GS-7 AT THE TIME, FILED A GRIEVANCE AS A
 RESULT THEREOF, AND IT WAS AGREED WITH MANAGEMENT THAT SHE WOULD BE
 GIVEN THE NEXT GS-9 POSITION THEREIN.
 
    3.  IN 1976 WEAVER WAS PUT IN THE MICROBIOLOGY SECTION TO SUPPORT
 LOSSON ROGERS, SUPERVISOR OF THAT BRANCH.  SHE HAS CONTINUED TO WORK
 THEREAT, ALTHOUGH THE POSITION DESCRIPTION FOR THIS EMPLOYEE IS THAT OF
 A MEDICAL TECHNOLOGIST, CHEMISTRY GS-7.
 
    4.  SINCE APRIL 1976 WEAVER HAS BEEN THE CHIEF STEWARD OF COMPLAINANT
 UNION.  THERE ARE ALSO 10 UNION STEWARDS WHO ARE EMPLOYED AT THE CENTER.
  THEY MEET CONTINUALLY WITH WEAVER TO DISCUSS GRIEVANCES AND OTHER
 PERSONNEL MATTERS.  WEAVER, AS CHIEF STEWARD, CONFERS WITH MANAGEMENT
 DAILY IN THE PURSUANCE OF HER DUTIES AS THE REPRESENTATIVE OF THE UNIT
 EMPLOYEES.
 
    5.  BY LETTER DATED AUGUST 13, 1977 WEAVER WROTE TO ROGERS REQUESTING
 REASSIGNMENT FROM THE BACTERIOLOGY SECTION TO THE CHEMISTRY SECTION. SHE
 EMPHASIZED THAT HER ASSIGNMENT A YEAR AGO WAS MERELY TO RENDER SUPPORT,
 AND THAT HER SKILLS ARE FOR CHEMISTRY.
 
    6.  A REPLY LETTER DATED JANUARY 6, 1978 FROM ROGERS STATED HE HAD
 BEEN UNABLE TO MAKE THE REASSIGNMENT;  THAT HER PERFORMANCE IN
 MICROBIOLOGY IS EXCELLENT;  AND THAT HER PERFORMANCE THEREIN DID NOT
 VIOLATE HER POSITION DESCRIPTION.
 
    7.  IN MARCH 1978 WEAVER APPLIED FOR A GS-9, MEDICAL TECHNOLOGIST,
 SUPERVISORY POSITION WHICH BECAME AVAILABLE IN MICROBIOLOGY.  ON MAY 10,
 1978 DR. CARL F.  TESSMER, CHIEF OF THE LABORATORY SERVICE AT THE
 VETERANS ADMINISTRATION, INTERVIEWED WEAVER IN THE PRESENCE OF
 SUPERVISOR ROGERS.  NO DISCUSSION ENSUED RE THE DETAILS OF THE POSITIONS
 OR THE WORK ENTAILED, BUT TESSMER ASKED THE EMPLOYEE SEVERAL QUESTIONS
 DEALING WITH HER FUNCTIONS AS UNION STEWARD.  HE MENTIONED THAT WEAVER
 WOULD HAVE TO GIVE UP HER UNION ACTIVITIES IF SHE BECAME A SUPERVISOR,
 AND THEN TESSMER INQUIRED HOW SHE WOULD FUNCTION IN SUCH CAPACITY IF SHE
 WERE NOT PERFORMING UNION DUTIES.  WEAVER REMARKED THAT SHE HAD BEEN
 DEDICATED TO THE JOB OF CHIEF UNION BUT THAT EACH ONE WAS A DIFFERENT
 TASK.  WHEREUPON TESSMER ASKED THE EMPLOYEE HOW SHE WOULD DEFINE THE
 DIFFERENCE, AND SHE REPLIED THAT EACH HAD SPECIFIC JOBS TO DO AND THERE
 SHOULD BE BILATERAL COMMUNICATION.
 
    TESSMER ALSO ASKED WEAVER WHETHER SHE "WOULD FILE ON US LIKE YOU DID
 IN 1975" IF THE EMPLOYEE WAS NOT SELECTED FOR THE POSITION.  WHEREUPON
 WEAVER SAID SHE WOULD NOT BECAUSE, UNLIKE THE PRESENT SITUATION,
 MANAGEMENT TOOK AWAY SOMETHING SHE HAD IN 1975.
 
    8.  IN JUNE AND JULY 1978 WEAVER REPEATED HER WRITTEN REQUESTS TO BE
 REASSIGNED TO CHEMISTRY.  IN EACH INSTANCE TESSMER DENIED THE REQUEST
 AND STATED, IN WRITING, THAT WEAVER WAS NEEDED IN MICROBIOLOGY AND THAT
 SHE SHOWED INTEREST IN, AND DEVOTION TO, THAT SECTION.  THE RECORD
 ESTABLISHES THAT NO OPPORTUNITY EXISTED FOR WEAVER'S ADVANCEMENT IN
 MICROBIOLOGY EXCEPT TO A GS-9 SUPERVISOR, BUT THAT SHE COULD ADVANCE IN
 THE CHEMISTRY SECTION TO A GS-9 OR 11.
 
    9.  PRIOR TO THE SELECTION OF THE SUPERVISOR IN MICROBIOLOGY, GS-9,
 THE PERSONNEL DEPARTMENT COMPILED A LIST OF ELIGIBLE CANDIDATES FOR THE
 POSITION.  IT WAS PREPARED FROM THE INFORMATION CONTAINED IN MERIT
 PROMOTION FILES OF EMPLOYEES.  THERE WERE SIX INDIVIDUALS ON THIS LIST
 WHO COMPETED FOR THE JOB, AND WEAVER RANKED FOURTH THEREON.  HOWEVER,
 THE SCORES AND RANK OF EACH PERSONS WAS NOT SHOWN TO TESSMER.  PERSONNEL
 FIRST SENT HIM THE SIX NAMES IN ALPHABETICAL ORDER, AS WELL AS NAMES OF
 "REASSIGNMENT ELIGIBLES" WHO, ALTHOUGH QUALIFIED FOR THE OPENING, WERE
 NOT COMPETING AS THEY WERE ALL CLASSIFIED AS GS-9.  IN ADDITION, TESSMER
 WAS FURNISHED WITH THE PERSONNEL FOLDER FOR EACH CANDIDATE.  RECORD
 FACTS ALSO REFLECT THAT ALL SIX INDIVIDUALS WERE CONSIDERED HIGHLY
 QUALIFIED;  THAT, EXCEPT FOR WEAVER, THESE PERSONS RESIDED IN AREAS
 OUTSIDE TEMPLE, TEXAS.
 
    10.  IN SELECTING THE SUPERVISOR FOR MICROBIOLOGY IN 1978, TESSMER
 TESTIFIED HE CONSIDERED AS PARAMOUNT THE FACTORS OF ACADEMIC STANDING,
 EXPERIENCE, ABILITY, AND TRAINING OF THE INDIVIDUAL.  HE CHOSE ANN WOLF
 OF SAN DIEGO BASED ON HER EXPERIENCE AND EXCELLENCE IN THE FIELD OF
 INFECTIOUS DISEASE AND EPIDEMIOLOGY.  TESSMER MAINTAINS THAT WEAVER WAS
 RATED FIFTH BY HIM;  THAT SHE DID NOT HAVE THE COMPARABLE EXPERIENCE OR
 EDUCATION IN THE PARTICULAR FIELDS WHICH HE DEEMED MOST IMPORTANT FOR
 THE POSITION.  WHILE EACH CANDIDATE POSSESSED THE CIVIL SERVICE
 REQUIREMENTS AND HAD LAB EXPERIENCE, TESSMER EVALUATED THE INDIVIDUALS
 INDEPENDENTLY AND USED CRITERIA DERIVED OUT OF THE VA SYSTEM, ITS
 DIRECTIVES AND HIS OWN EXPERIENCE.  IN ADDITION TO SPEAKING WITH WEAVER,
 THE CHIEF OF THE LABORATORY SERVICE CONFERRED, VIA TELEPHONE, WITH TWO
 OR THREE OTHER PROSPECTIVE SELECTEES REGARDING THE POSITION.
 
    11.  THE RECORD ALSO REVEALS THAT, ALTHOUGH HE DID NOT SELECT THE
 INDIVIDUAL FOR THE JOB, ROGERS CONCURRED IN THE SELECTION;  THAT WOLF
 WAS CHOSEN BECAUSE OF HER ADDED SKILLS IN "TB" BACTERIOLOGY.
 
                                CONCLUSIONS
 
    IN ASSERTING THAT RESPONDENT HAS VIOLATED THE ORDER COMPLAINANT MAKES
 TWO PRINCIPAL CONTENTIONS:  (1) THE INTERROGATION BY DR. TESSMER OF
 BILLYE WEAVER ON MAY 10, 1978 WAS COERCIVE AND ILLEGAL;  (2) THE FAILURE
 OR REFUSAL TO PROMOTE WEAVER TO GS-9 SUPERVISOR IN MICROBIOLOGY, WAS
 BASED ON HER UNION ACTIVITIES AS CHIEF STEWARD AND THUS DISCRIMINATING
 HEREIN.
 
    (1) BOTH THE PRIVATE AND PUBLIC SECTORS HAVE OUTLAWED QUESTIONING OF
 EMPLOYEES BY AN EMPLOYER WHERE SUCH CONDUCT IS DEEMED TO BE INTIMIDATING
 OR COERCIVE.  INTERROGATION RE UNION ACTIVITIES OF AN INDIVIDUAL MAY
 WELL PRODUCE SUCH EFFECTS, AND, IN SUCH AN INSTANCE, IT CONSTITUTES A
 VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
 
    IN RESPECT TO THE QUESTIONS POSED BY TESSMER TO WEAVER ON MAY 10,
 1978 CONCERNING HER FUNCTIONING AS A STEWARD OF THE UNION IF SHE BECAME
 A SUPERVISOR, RESPONDENT MAINTAINS THIS IS LEGITIMATE CONDUCT WHEN
 OCCURRING DURING AN INTERVIEW OF AN APPLICANT FOR A SUPERVISORY
 POSITION.  I AGREE.  A SUPERVISOR MUST NECESSARILY BE ALLIED WITH, AND
 BE A PART OF, THE MANAGEMENT HIERARCHY.  AS SUCH, HE SHOULD NO LONGER
 PERFORM ANY FUNCTIONS EXERCISED PREVIOUSLY AS A REPRESENTATIVE OR
 OFFICIAL OF THE COLLECTIVE BARGAINING REPRESENTATIVE.  IN THE CASE AT
 BAR RESPONDENT QUESTIONED WEAVER IN THIS REGARD.  TESSMER INQUIRED AS TO
 HOW SHE WOULD FUNCTION AS A SUPERVISOR WITHOUT PERFORMING DUTIES OF A
 CHIEF STEWARD.  SINCE WEAVER MIGHT BE PROMOTED TO A SUPERVISORY
 POSITION, THE EMPLOYER HEREIN WAS ENTITLED TO ASCERTAIN WHETHER THE
 EMPLOYEE EXPECTED TO CONTINUE HER REPRESENTATIONAL DUTIES.  IN THE
 CONTEXT OF SUCH AN INTERROGATION I FIND NO RESTRAINT OR COERCION
 DIRECTED TOWARD THE APPLICANT.  NONE OF THE QUESTIONS IN THIS RESPECT
 SUGGESTED THAT TESSMER DESIRED TO INTERFERE WITH WEAVER IN THE
 PERFORMANCE OF HER JOB AS CHIEF STEWARD, NOR MAY IT BE REASONABLY
 CONCLUDED THAT THIS INTERROGATION CARRIED WITH IT IMPLIED COERCION.  I
 DEEM THESE PARTICULAR QUESTIONS AS PERMISSIBLE AND NOT VIOLATIVE OF
 19(A)(1).
 
    CONTRARIWISE, I DO NOT AGREE WITH RESPONDENT THAT IT WAS ENTITLED TO
 ASK WEAVER WHETHER SHE WOULD FILE A GRIEVANCE, AS CHIEF STEWARD IF THE
 EMPLOYEE WAS NOT SELECTED FOR THE SUPERVISORY POSITION.  SUCH
 QUESTIONING MAY WELL TEND TO IMPOSE A RESTRAINING INFLUENCE UPON THE
 CANDIDATE, FOR IT SUGGESTS THAT WEAVER MUST FOREGO HER RIGHTS UNDER THE
 CONTRACT, IN RESPECT TO GRIEVANCES, IN ORDER TO OBTAIN THE PROMOTION.
 THERE WAS, IN THIS INSTANCE, NO LEGITIMATE PURPOSE TO BE SERVED BY
 INTERROGATING THE EMPLOYEE AS TO HER INTENTIONS RE THE FILING OF
 GRIEVANCE.  IN FEDERAL AVIATION ADMINISTRATION ET. AL, A/SLMR NO. 920 AN
 EMPLOYER WAS HELD TO HAVE VIOLATED 19(A)(1) WHEN IT QUESTIONED AN
 EMPLOYEE RE HIS FILING OF A GRIEVANCE AND THE POSSIBLE EFFECTS THEREOF.
 WHILE THE INTERROGATION IN THE CITED CASE CONCERNED THE MOTIVE FOR
 FILING A GRIEVANCE, THE HOLDING THAT SUCH QUESTIONING CONSTITUTES
 INTERFERENCE UNDER THE ORDER IS APPOSITE HEREIN.  THE RIGHT TO FILE
 GRIEVANCES, WHICH STEMS FROM THE CONTRACT BETWEEN MANAGEMENT AND THE
 UNION, GIVES RISE TO UNION ACTIVITY WHICH IS PROTECTED.  ANY
 INFRINGEMENT THEREON IN THE FORM OF INTERROGATION AS TO WHETHER AN
 INDIVIDUAL WOULD FILE A GRIEVANCE UNDER THE CONTRACT MUST NECESSARILY
 EXERCISE A RESTRAINING INFLUENCE UPON SUCH PERSON.  IT CONSTITUTES, IN
 MY OPINION, A VIOLATION OF 19(A)(1) OF THE ORDER.
 
    (2) IT IS WELL ESTABLISHED THAT AN EMPLOYER MAY NOT DISCRIMINATE
 AGAINST ANY EMPLOYEE BECAUSE OF HIS UNION ACTIVITIES.  IN THE ABSENCE OF
 A MOTIVE, IN WHOLE OR IN PART, BASED ON ANTI-UNION CONSIDERATIONS,
 MANAGEMENT MAY WELL TAKE ACTION WHICH AFFECTS THE WORKING CONDITIONS OF
 ITS EMPLOYEES.  THUS IT MAY DENY A PROMOTION TO AN INDIVIDUAL IF SUCH
 DENIAL IS NOT PREDICATED UPON THE EMPLOYEE'S ACTIVITIES ON BEHALF OF THE
 UNION REPRESENTATIVE.  VETERANS ADMINISTRATION CENTER, SAN JUAN, PUERTO,
 RICO, A/SLMR NO. 1137.
 
    COMPLAINANT INSISTS THAT BILLYE WEAVER WAS NOT SELECTED FOR THE
 SUPERVISOR'S POSITION IN MICROBIOLOGY, GS-9, AS A RESULT OF HER
 ACTIVITIES AS CHIEF STEWARD OF THE UNION.  I DO NOT AGREE.
 
    RECORD FACTS REVEAL THAT DR. TESSMER CHOSE ANN WOLF FROM SAN DIEGO
 BECAUSE OF HER EXPERTISE AND TRAINING IN INFECTIOUS DISEASES AND
 EPIDEMIOLOGY.  IN UTILIZING THE STANDARDS OF ACADEMICS, EXPERIENCE,
 ABILITY AND TRAINING, TESSMER RATED THE SIX CANDIDATES FOR THE JOB IN
 ACCORDANCE THEREWITH.  WOLF RANKED FIRST AND WEAVER WAS FIFTH ON HIS
 LIST.  FURTHER, SUPERVISOR ROGERS AGREED WITH THE SELECTION, CONFIRMING
 THE FACT THAT WOLF HAD MORE EXPERIENCE AND TRAINING IN THE PARTICULAR
 AREAS WHICH MANAGEMENT DEEMED MOST IMPORTANT.  IN AN INDEPENDENT RATING
 CONDUCTED BY PERSONNEL-- WHICH WAS NOT BROUGHT TO TESSMER'S ATTENTION--
 WEAVER WAS RANKED FOURTH OUT OF THE SIX CANDIDATES.  NEVERTHELESS, THE
 INFORMATION, UPON WHICH PERSONNEL PREDICATED ITS RATINGS, WAS FURNISHED
 TO THE CHIEF OF THE LABORATORY TO ASSIST HIM IN CHOOSING THE INDIVIDUAL
 TO FILL THE OPENING.
 
    THE RECORD IS BARREN OF ANY UNION ANIMUS FOCUSED UPON WEAVER OR ANY
 OTHER REPRESENTATIVE OF THE LABOR ORGANIZATION.  NOWHERE DOES IT APPEAR
 THAT WEAVER WAS OBSTRUCTED OR FRUSTRATED BY MANAGEMENT IN THE PURSUANCE
 OF HER DUTIES AS CHIEF STEWARD.  MOREOVER, THE RECORD DOES NOT REFLECT
 HOSTILITY BY RESPONDENT TOWARD THIS EMPLOYEE, OR ANY OF THE 10 UNION
 STEWARDS BY REASON OF HER UNION ACTIVITIES.  WHILE I CONCLUDE THAT
 TESSMER'S QUESTIONING WHETHER WEAVER WOULD FILE A GRIEVANCE IF SHE WERE
 NOT SELECTED RAN AFOUL OF THE ORDER, IT DOES NOT PER SE GIVE RISE TO AN
 INFERENCE THAT THIS EMPLOYEE WAS DENIED THE PROMOTION BASED ON HER PAST
 ACTIVITIES AS CHIEF STEWARD OF THE UNION.  I CANNOT CONCLUDE, UNDER ALL
 THE CIRCUMSTANCES, THAT SUCH INTERROGATION REFLECTS THAT RESPONDENT WAS
 MOTIVATED BY ANTI-UNION CONSIDERATIONS IN MAKING ITS SELECTION.  RATHER
 AM I PERSUADED THAT TESSMER CHOSE THE INDIVIDUAL WHOM HE DEEMED MOST
 QUALIFIED BASED UPON THE FACTORS HEREINWHERE MENTIONED;  THAT THE
 REFUSAL BY HIM TO SELECT WEAVER WAS NOT PREDICATED ON HER ACTIVITIES AS
 CHIEF STEWARD OF THE UNION;  AND THAT MANAGEMENT TOOK NO STEPS TO EITHER
 DOWNGRADE THIS EMPLOYEE, OR HINDER HER ADVANCEMENT, AS A RESULT OF SUCH
 ACTIVITIES.  ACCORDINGLY, I CONCLUDE RESPONDENT DID NOT VIOLATE SECTION
 19(A)(1) OR (2) OF THE ORDER BY FAILING AND REFUSING TO PROMOTE BILLYE
 WEAVER TO THE GS-9 SUPERVISORY POSITION IN MICROBIOLOGY.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENT ENGAGED IN CERTAIN CONDUCT PROHIBITED BY
 SECTION 19(A)(1) OF THE ORDER, I RECOMMEND THAT THE FEDERAL LABOR
 RELATIONS AUTHORITY ADOPT THE FOLLOWING ORDER DESIGNED TO EFFECTUATE THE
 PURPOSES OF EXECUTIVE ORDER 11491, AS AMENDED.  IN RESPECT TO THE
 ALLEGED VIOLATIONS OF 19(A)(1) BASED UPON QUESTIONING BY DR. CARL
 TESSMER, CHIEF OF THE LABORATORY SECTION, OF BILLYE WEAVER RE HER
 ABILITY TO FUNCTION AS A SUPERVISOR WITHOUT PERFORMING THE FUNCTIONS OF
 A CHIEF STEWARD, IT IS RECOMMENDED THE COMPLAINT BE DISMISSED.  IN
 RESPECT TO THE ALLEGED VIOLATION OF 19(A)(2) BY RESPONDENT BASED UPON
 ITS FAILURE TO PROMOTE WEAVER TO A GS-9, SUPERVISOR, IN MICROBIOLOGY, OR
 ITS OTHERWISE RESTRICTING HER ADVANCEMENT OR EMPLOYMENT, IT IS
 RECOMMENDED THE COMPLAINT BE DISMISSED.
 
                             RECOMMENDED ORDER
 
    PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
 SECTION 203.26 OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS AUTHORITY
 HEREBY ORDERS THAT THE VETERANS ADMINISTRATION CENTER, TEMPLE, TEXAS,
 SHALL:
 
    1.  CEASE AND DESIST FROM
 
    (A) INTERROGATING ITS EMPLOYEES AS TO WHETHER THEY WILL FILE
 GRIEVANCES AGAINST IT BASED UPON ANY ACTION TAKEN BY MANAGEMENT TOWARD
 THE EMPLOYEES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF 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 ITS FACILITY AT THE OLIN TEAGUE VETERANS ADMINISTRATION
 CENTER, TEMPLE, TEXAS, 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 CHIEF OF THE
 LABORATORY SERVICE 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 CHIEF SHALL TAKE REASONABLE STEPS TO INSURE
 THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY OTHER
 MATERIAL.
 
    (B) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, 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.
 
                              WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  SEPTEMBER 6, 1979
 
    WASHINGTON, D.C.
 
        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 EXECUTIVE ORDER
 
            11491, AS AMENDED FEDERAL SERVICE LABOR-MANAGEMENT
 
                                 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INTERROGATE OUR EMPLOYEES AS TO WHETHER THEY WILL FILE
 GRIEVANCES AGAINST U