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

 



[ v02 p855 ]
02:0855(106)CA
The decision of the Authority follows:


 2 FLRA No. 106
 
 VETERANS ADMINISTRATION REGIONAL OFFICE,
 DENVER, COLORADO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1557
 Complainant
 
                                            Assistant Secretary
                                            Case No. 61-4255(CA)
 
                            DECISION AND ORDER
 
    ON SEPTEMBER 25, 1979, ADMINISTRATIVE LAW JUDGE SAMUEL A.  CHAITOVITZ
 ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
 PROCEEDING FINDING THAT THE VETERANS ADMINISTRATION REGIONAL OFFICE,
 DENVER, COLORADO, HAD ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN
 THE COMPLAINT.  THEREAFTER, THE RESPONDENT 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 RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
 THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.
  /1A/
 
                                 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 IN REGARD TO HIRE,
 TENURE, PROMOTION OR OTHER CONDITIONS OF EMPLOYMENT WILLIAM BLEAU, MARK
 HILGEFORT AND OTHER EMPLOYEES FOR ENGAGING IN CONDUCT WHICH IS PROTECTED
 BY EXECUTIVE ORDER 11491, AS AMENDED, ON BEHALF OF AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 OR OTHER LABOR
 ORGANIZATIONS.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
 COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    WE WILL RESCIND AND REMOVE FROM THE PERSONNEL FILES OF AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 SHOP STEWARDS
 WILLIAM BLEAU AND MARK HILGEFORT THE SEPTEMBER 27 REPRIMANDS ISSUED TO
 THEM.
 
                           (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, AND WHOSE TELEPHONE NUMBER IS (816) 374-2199.
 
                                   ORDER
 
    PURSUANT TO SEC. 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL
 LABOR RELATIONS AUTHORITY AND SEC. 7135 OF THE FEDERAL SERVICES
 LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY DISMISSES THE
 ALLEGATIONS IN THIS MATTER THAT THE VETERANS ADMINISTRATION, DENVER
 REGIONAL OFFICE VIOLATED SEC. 19 (A)(4) OF EXECUTIVE ORDER 11491, AS
 AMENDED, AND ORDERS THAT THE VETERANS ADMINISTRATION, DENVER REGIONAL
 OFFICE SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REPRIMANDING OR OTHERWISE DISCRIMINATING IN REGARDS TO HIRE,
 TENURE, PROMOTION OR OTHER CONDITIONS OF EMPLOYMENT WILLIAM BLEAU, MARK
 HILGEFORT AND OTHER EMPLOYEES FOR ENGAGING IN CONDUCT WHICH IS PROTECTED
 BY EXECUTIVE ORDER 11491, AS AMENDED ON BEHALF OF AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 OR OTHER LABOR ORGANIZATIONS.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING 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 EXECUTIVE ORDER:
 
    (A) RESCIND AND REMOVE FROM THE PERSONNEL FILES OF AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 SHOP STEWARDS
 WILLIAM BLEAU AND MARK HILGEFORT THE SEPTEMBER 27 REPRIMANDS ISSUED TO
 THEM.
 
    (B) POST AT ITS FACILITIES IN DENVER, COLORADO, 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 DIRECTOR OF THE DENVER REGIONAL OFFICE AND SHALL
 BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN
 CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE REGIONAL OFFICE OF THE VA SHALL TAKE ALL
 REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR
 COVERED BY ANY OTHER MATERIAL.
 
    ISSUED, WASHINGTON, D.C., MARCH 14, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    DOUGLAS DOANE, ESQ.
 
    DISTRICT COUNSEL'S OFFICE
 
    VETERANS ADMINISTRATION REGIONAL OFFICE
 
    DENVER FEDERAL CENTER
 
    DENVER, COLORADO 80225
 
                            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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, KANSAS
 CITY REGION, 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 21, 1978 AND AN AMENDED COMPLAINT FILED ON JANUARY 10, 1979 BY
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1557, AFL-CIO (HEREIN
 CALLED COMPLAINANT OR LOCAL 1557 AFGE) AGAINST THE VETERANS
 ADMINISTRATION, DENVER REGIONAL OFFICE, (HEREIN CALLED RESPONDENT AND
 ACTIVITY).  THE SAID AMENDED COMPLAINT ALLEGES THAT RESPONDENT VIOLATED
 SECTIONS 19(A)(1), (2) AND (4) OF THE ORDER BY REPRIMANDING TWO UNION
 STEWARDS, MR. WILLIAM BLEAU AND MR. MARK HILGEFORT, FOR ATTEMPTING TO
 REPRESENT EMPLOYEES WHO WERE MEMBERS OF THE BARGAINING UNIT REPRESENTED
 BY LOCAL 1557 AFGE.
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES.  THEREAFTER BRIEFS WERE FILED 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 THE TESTIMONY AND EVIDENCE ADDUCED AT
 THE HEARING, I MAKE THE FOLLOWING RECOMMENDED FINDINGS OF FACT,
 CONCLUSIONS OF LAW AND ORDER.
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN LOCAL 1557 AFGE, A LABOR
 ORGANIZATION, HAS BEEN THE COLLECTIVE BARGAINING REPRESENTATIVE FOR A
 UNIT OF RESPONDENT'S PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES
 INCLUDING VETERANS REPRESENTATIVES (VET REPS).
 
    2.  ON SEPTEMBER 22, 1978 ROBERT ZIEGENHEIN, VETERANS SERVICE OFFICER
 FOR THE ACTIVITY, TELEPHONICALLY NOTIFIED LOCAL 1557 AFGE STEWARD MARK
 HILGEFORT THAT HE, ZIEGENHEIN, WAS GOING TO HAVE A CONFERENCE TELEPHONE
 WITH ALL VET REPS.  /1/ MR. ZEIGENHEIN CALLED STEWARD HILGEFORT TO
 ADVISE HILGEFORT, AS UNION STEWARD, THAT THE VET REPS WOULD BE ADVISED
 OF A PROPOSED PRECISE SCHEDULE FOR REDUCTION OF THE NUMBER OF VET REPS
 ON THE VARIOUS CAMPUSES, /2/ THAT THERE WOULD BE NO REDUCTION-IN-FORCE
 (RIF) OF VA EMPLOYEES, AND THAT IF ANY ONE WISHED TO TRANSFER INTO
 RESPONDENT'S REGIONAL OFFICE, HE SHOULD SO ADVISE THE REGIONAL OFFICE.
 
    3.  MR. ZIEGENHEIN CONVERSATION WITH STEWARD HILGEFORT WAS SHORT AND
 INVOLVED MR. ZIEGENHEIN INFORMING STEWARD HILGEFORT OF THE IMPENDING
 CONFERENCE CALL AND OF THE PROPOSED CHANGES.
 
    4.  A FEW MINUTES (2 TO 5 MINUTES) AFTER HANGING UP THE TELEPHONE,
 STEWARD HILGEFORT, AS A VET REP, RECIEVED A TELEPHONE CALL AS PART OF
 THE CONFERENCE CALL BETWEEN MR. ZIEGENHEIN AND ALL THE VET REPS.
 
    5.  MR. ZIEGENHEIN ADVISED THE VET REPS OF ALL THE INFORMATION SET
 FORTH IN PARAGRAPH 2 ABOVE INCLUDING THE PROPOSED CHANGES.
 
    6.  MR. ZIEGENHEIN DID NOT ADVISE STEWARD HILGEFORT OR ANY THE VET
 REPS, IN EITHER TELEPHONE CALL DESCRIBED ABOVE, THAT THE INFORMATION
 CONCERNING THE PROPOSED SCHEDULE FOR REDUCING THE NUMBER OF VET REPS
 WAS
 CONFIDENTIAL OR SHOULD NOT BE COMMUNICATED TO OUTSIDE PARTIES.
 
    7.  MR. ZIEGENHEIN AND THE OTHER SUPERVISORS OF THE VET REPS USED
 CONFERENCE TELEPHONE CALLS REGULARLY TO ADVISE VET REPS OF VARIOUS
 RELEVANT INFORMATION AND THE VET REPS ROUTINELY PASSED MUCH OF THIS
 INFORMATION ON TO NON-VA OFFICIALS ON THE VARIOUS COLLEGE AND UNIVERSITY
 CAMPUSES.
 
    8.  AFTER THE CONFERENCE CALL STEWARD HILGEFORT CONTACTED MR.
 WILLIAM BLEAU, AT THAT TIME A LOCAL 1557 AFGE STEWARD IN THE VETERANS
 SERVICES DIVISION, AND ADVISED STEWARD BLEAU OF THE CONTENT OF THE TWO
 TELEPHONE CONVERSATIONS.
 
    9.  AS A RESULT OF THE CONVERSATION BETWEEN STEWARDS HILGEFORT AND
 BLEAU, STEWARD BLEAU PREPARED A LETTER DEMANDING TO NEGOTIATE THE
 PROPOSED CHANGES IN WORKING CONDITIONS OF THE VET REPS.  THE LETTER
 DATED SEPTEMBER 22, 1978 WAS SIGNED BY BOTH STEWARDS HILGEFORT AND BLEAU
 IN THEIR CAPACITY AS UNION STEWARDS, WAS SENT TO MR. ZIEGENHEIN, AND
 COPIES WERE SENT TO THE VARIOUS COLLEGES AND UNIVERSITIES SERVICED BY
 THE VET REPS, TO THE VET REPS, TO VARIOUS VETERANS' SERVICE
 ORGANIZATIONS AND TO VARIOUS CONGRESSMEN.  OF THE ABOVE, ONLY THE VET
 REPS ARE EMPLOYEES OF RESPONDENT AND IN THE UNIT REPRESENTED BY
 COMPLAINANT.
 
    10.  THE SEPTEMBER 22 LETTER DESCRIBED ABOVE WRITTEN ON BEHALF OF
 LOCAL 1557 AFGE FIRST ASKED THE RESPONDENT TO NEGOTIATE CONCERNING THE
 NOTIFICATION TO THE VET REPS THAT THE ACTIVITY'S INTENTION TO BRING THE
 VET REPS INTO THE REGIONAL OFFICE.  THE LETTER LISTED SOME 10 ITEMS FOR
 THE ACTIVITY'S CONSIDERATION CONCERNING THE IMPACT ON EMPLOYEES.  THE
 LETTER THEN LISTED TWO QUESTIONS CONCERNING "IMPACT" AND THEN WENT ON TO
 STATE, "CALL IT WHAT YOU MAY, BUT THE END RESULT OF ALL THESE CHANGES
 WILL UNDOUBTEDLY BE THE SUBSEQUENT LOSS OF PERSONNEL -- AND THAT SPELLS
 RIF." FINALLY THE LETTER POSED SOME ADDITIONAL QUESTIONS WHICH ALTHOUGH
 "OUT OF THE SCOPE OF THE EXECUTIVE ORDER -- SHOULD BE CONSIDERED BY YOU
 SINCE THEY WILL ARISE ANYWAY." FINALLY THE LETTER REQUESTED THAT
 RESPONDENT RESPOND TO THE DEMAND TO NEGOTIATE NO LATER THAN OCTOBER 15,
 1979.
 
    11.  WRITTEN REPRIMANDS DATED SEPTEMBER 27 WERE GIVEN BY MR.
 ZIEGENHEIN TO BOTH STEWARDS BLEAU AND HILGEFORT BECAUSE THE SEPTEMBER 22
 LETTER ALLEGEDLY CONTAINED MISSTATEMENTS OF FACTS IN CORRECT CONCLUSIONS
 ABOUT A REDUCTION IN FORCE, QUESTIONS ABOUT THE VA'S RESPONSIBILITY TO
 COLORADO INSTITUTIONS ABOUT WHICH NO FINAL AGENCY DECISION HAD BEEN
 MADE, BECAUSE IT WAS UNAUTHORIZED USE OF AGENCY INFORMATION, WAS
 DISSEMINATED TO THE PUBLIC AND BECAUSE THESE ACTIONS VIOLATED VA
 REGULATIONS 812(A) (3) (4) (5) AND 815 (B).
 
    12.  THE RELEVANT PORTIONS OF VA REGULATIONS 812 AND 815 STATE AS
 FOLLOWS:
 
             812(SEC. 735-12).  OUTSIDE EMPLOYMENT ACTIVITY OR
 
                               COMPENSATION
 
    (A) AN EMPLOYEE SHALL NOT ENGAGE IN OUTSIDE EMPLOYMENT OR OTHER
 OUTSIDE ACTIVITY NOT
 
    COMPATIBLE WITH THE FULL AND PROPER DISCHARGE OF THE DUTIES AND
 RESPONSIBILITIES OF HIS
 
    GOVERNMENT EMPLOYMENT.  INCOMPATIBLE ACTIVITIES INCLUDE BUT ARE NOT
 LIMITED TO THOSE WHICH:
 
    (1) . . .
 
    (2) . . .
 
    (3) BRING DISCREDIT UPON, ARE DISADVANTAGEOUS TO, EMBARRASS, OR CAUSE
 OR MAY CAUSE
 
    UNFAVORABLE AND REASONABLE (SIC) CRITICISM OF THE FEDERAL GOVERNMENT
 OR THE VA;
 
    (4) CONFLICT WITH THE INTERESTS OF THE VA OR THE FEDERAL GOVERNMENT
 OR CAN POSSIBLY BE
 
    CONSTRUED BY THE PUBLIC TO BE OFFICIAL ACTS OF THE VA;
 
    (5) INVOLVE THE USE OF INFORMATION OBTAINED AS A RESULT OF EMPLOYMENT
 IN THE VA, TO THE
 
    DETRIMENT OF THE VA OR THOSE SERVED BY IT;
 
          815(SEC. 735-15).  DISCLOSURE OR MISUSE OF INFORMATION
 
    (A) . . .
 
    (B) AN EMPLOYEE SHALL NOT, EXCEPT AS SPECIFICALLY AUTHORIZED,
 DISCLOSE ANY OFFICIAL
 
    INFORMATION WHICH REPRESENTS A MATTER OF CONFIDENCE OR TRUST OR ANY
 OTHER OFFICIAL INFORMATION
 
    OF SUCH CHARACTER THAT ITS DISCLOSURE OR USE WOULD BE CONTRARY TO THE
 BEST INTEREST OF THE
 
    GOVERNMENT, THE VA, OR THE VETERANS BEING SERVED BY VA.  (APR.  15,
 1966).
 
    13.  AN ARTICLE IN THE "STARS AND STRIPES" OF SEPTEMBER 22, 1978
 DESCRIBES A PENDING REDUCTION IN THE NUMBER VET REPS.
 
                            CONCLUSIONS OF LAW
 
    THE ORDER AFFORDS EMPLOYEES THE RIGHT, WITHOUT INTERFERENCE, TO
 EFFECTIVE REPRESENTATION BY THE LABOR ORGANIZATION OF THEIR CHOICE.
 ACCORDINGLY, THE LABOR ORGANIZATION MUST BE FREE TO TAKE ALL STEPS AND
 ACTIONS THAT IT DEEMS NECESSARY TO EFFECTIVELY REPRESENT THE EMPLOYEES,
 EXCEPT THOSE STEPS AND ACTIONS SPECIFICALLY FORBIDDEN BY THE ORDER.  TO
 CONCLUDE OTHERWISE WOULD MAKE THE RIGHT TO BE REPRESENTED BY A UNION
 COMPLETELY ILLUSORY AND MEANINGLESS.  ONE OF THE CLASSICAL METHODS FOR
 LABOR ORGANIZATIONS TO EFFECTIVELY REPRESENT EMPLOYEES IS TO SEEK AID,
 SUPPORT AND INFORMATION FROM OUTSIDE, YET INTERESTED, PARTIES.  THE
 ORDER DOES NOT LIMIT SUCH A RESORT TO SUCH OUTSIDE ASSISTANCE EXCEPT
 INSOFAR AS SECTIONS 19(B) (4) FORBIDS STRIKES AND WORK STOPPAGES.  IN
 FACT THE ASSISTANT SECRETARY OF LABOR SPECIFICALLY RECOGNIZED THE RIGHT
 OF A LABOR ORGANIZATION AND EMPLOYEES TO ENGAGE IN INFORMATIONAL
 PICKETING DIRECTED AT THE GENERAL PUBLIC, INCLUDING ORGANIZED LABOR, SO
 LONG AS SUCH PICKETING DOES NOT INTERFERE WITH THE OPERATION OF THE
 AFFECTED GOVERNMENT AGENCY.  THE ASSISTANT SECRETARY HELD SUCH
 INFORMATIONAL PICKETING IS NOT FORBIDDEN BY SECTIONS (19(B) (4) OF THE
 ORDER AND THEREFORE WAS PERMITTED.  TIDEWATER VIRGINIA FEDERAL
 EMPLOYEES, MTC, A/SLMR NO. 867;  REVIEW DENIED BY THE FLRA, 77A-93,
 REPORT NO. 139, CF.  INTERNAL REVENUE SERVICE, A/SLMR NO. 783.  THE
 APPEAL BY LOCAL 1557 AFGE TO THE COLLEGES, UNIVERSITIES AND VETERANS
 GROUPS IS ANALOGOUS TO INFORMATIONAL PICKETING AND THUS IS NOT
 PROSCRIBED BY THE ORDER.
 
    RESPONDENT, HOWEVER, CONTENDS THAT IT IS NOT LIMITING THE RIGHT OF
 LOCAL 1557 AFGE TO APPEAL AND COMMUNICATE WITH OUTSIDE PARTIES, BUT
 RATHER IT IS DISCIPLINING TWO EMPLOYEES FOR ENGAGING IN SUCH CONDUCT,
 WHICH IS FORBIDDEN BY RESPONDENT. THIS CONTENTION MUST BE REJECTED.
 SECTION 1 OF THE ORDER GRANTS EACH EMPLOYEE THE RIGHT TO JOIN AND ASSIST
 A LABOR ORGANIZATION.  IF THE EMPLOYEES ARE TO HAVE THE RIGHT TO JOIN
 AND ASSIST A LABOR ORGANIZATION AND TO BE EFFECTIVELY REPRESENTED BY
 SUCH A LABOR ORGANIZATION, THE EMPLOYEES MUST BE FREE FROM INTERFERENCE
 TO MANAGE THE LABOR ORGANIZATION AND TO ENGAGE IN ALL CONDUCT WHICH IS
 PERMISSIBLE FOR THE LABOR ORGANIZATION.  IT WOULD SEEM STRANGE, IN
 EFFECT, TO REQUIRE THAT FOR LABOR ORGANIZATIONS TO ENGAGE IN PROTECTED
 ACTIVITIES IT MUST USE NON-EMPLOYEES.  SUCH A RESULT WOULD TOTALLY
 FRUSTRATE THE EMPLOYEES' RIGHTS TO EFFECTIVE REPRESENTATION WHICH THEY
 THEMSELVES COULD CONTROL.  THUS IN THE INSTANT CASE THE TWO EMPLOYEES IN
 QUESTION WERE NOT ACTING AS EMPLOYEES, BUT RATHER WERE ACTING IN THEIR
 CAPACITY AS UNION STEWARDS AND THUS SHOULD NOT HAVE BEEN REPRIMANDED.
 
    HAVING CONCLUDED THAT EMPLOYEE-UNION OFFICIALS, WHEN ACTING IN THEIR
 UNION REPRESENTATIVE CAPACITY, MUST BE FREE TO ENGAGE IN ANY ACTIVITY
 THE UNION IS PRIVILEGED TO ENGAGE IN, IT MUST BE FURTHER CONCLUDED THAT
 THIS DOES NOT GIVE EMPLOYEES LICENSE, BECAUSE THEY MAY ALSO BE UNION
 OFFICIALS, TO ENGAGE IN ANY CONDUCT THEY WISH, AND BE INSULATED FROM
 DISCIPLINE.  RATHER IT IS CONCLUDED, IN THE CIRCUMSTANCES HERE PRESENT,
 THAT THE EMPLOYEES ARE PROTECTED WHEN ENGAGING IN REASONABLE CONDUCT AS
 UNION REPRESENTATIVES BECAUSE THEY WERE ENGAGING IN UNION CONDUCT WHICH
 WAS PROTECTED BY THE ORDER.  CF. TIDEWATER VIRGINIA FEDERAL EMPLOYEES,
 MTC, SUPRA.
 
    IT IS CONTENDED BY RESPONDENT THAT THE INFORMATION DISSEMINATED WAS
 SOMEHOW PRIVILEGED AND DISTORTED OR MISSTATED.  AGAIN, THESE CONTENTIONS
 MUST BE REJECTED AS GROUNDS FOR PERMITTING THE REPRIMANDING OF THESE TWO
 EMPLOYEES.  UNION STEWARD BLEAU FIRST RECEIVED THE INFORMATION IN HIS
 CAPACITY AS UNION STEWARD AND WAS NEVER ADVISED IN ANYWAY THAT THE
 INFORMATION WAS PRIVILEGED AND SHOULD NOT BE COMMUNICATED TO PERSONS
 OUTSIDE THE AGENCY.  FURTHER THE RECORD ESTABLISHED THAT MUCH
 INFORMATION NORMALLY COMMUNICATED BY CONFERENCE CALL IS ROUTINELY
 RELAYED BY THE VET REPS TO THE INTERESTED COLLEGES, UNIVERSITIES AND
 VETERANS ORGANIZATIONS.  THUS WITHOUT A CLEAR INDICATION FROM RESPONDENT
 THAT INFORMATION WAS NOT TO BE COMMUNICATED TO THE OUTSIDE /3/ AND
 BECAUSE THE INFORMATION, NEITHER HISTORICALLY NOR ON ITS FACE, SO
 SENSITIVE THAT IT WAS CLEAR IT SHOULD NOT BE COMMUNICATED TO THE OUTSIDE
 /4/, THE TWO UNION STEWARDS WERE FREE TO COMMUNICATE IT TO THE OUTSIDE
 ORGANIZATIONS.
 
    WITH RESPECT TO THE CONTENTION THAT THE SEPTEMBER 22 LETTER DISTORTED
 AND MISSTATED THE SITUATION, RESPONDENT RELIES ALMOST EXCLUSIVELY ON THE
 USE OF THE PHRASE, "RIF" WHEN IN FACT NO ACTUAL "RIF" WAS CONTEMPLATED
 AND THAT THIS WAS MADE QUITE CLEAR.  THE LETTER ITSELF STATED THAT EVEN
 THOUGH NO ONE WOULD BE FIRED THERE WOULD BE AN ULTIMATE REDUCTION IN THE
 NUMBER OF EMPLOYEES AND THAT WAS IN EFFECT A "RIF".  ALTHOUGH THIS MIGHT
 BE AN INARTFUL AND SOMEWHAT INACCURATE USE OF "RIF", IT CAN HARDLY BE
 SAID TO BE SUCH A DISTORTION OR MISSTATEMENT OF FACT TO JUSTIFY LOSING
 THE PROTECTION OF THE ORDER.  AS PART OF COLLECTIVE BARGAINING THE
 PARTIES MUST BE FREE TO COMMUNICATE AND TALK BETWEEN THEMSELVES, AND
 WITH THE PUBLIC, WITHOUT THE FEAR THAT IF THEY USE A WORD OR PHRASE
 IMPROPERLY THEY ARE SUBJECT TO DISCIPLINE.  TO REACH A CONTRARY
 CONCLUSION WOULD BE TO REDUCE NEGOTIATION AND COMMUNICATION TO SOME
 STYLIZED DANCE THAT WOULD HAVE AN EFFECT CONTRARY TO THE POLICY VISIONED
 IN THE ORDER.  CF.  U.S. SMALL BUSINESS ADMINISTRATION, CENTRAL OFFICE,
 A/SLMR NO. 631. SIMILARLY THE MERE FACT THAT THE SEPTEMBER 22 LETTER
 MIGHT HAVE BEEN CRITICAL AND EVEN UNCOMPLIMENTARY TOWARDS RESPONDENT
 DOES NOT JUSTIFY REMOVING THE PROTECTION OF THE ORDER.  IN SUCH
 SITUATIONS, IF THERE IS TO BE MEANINGFUL NEGOTIATIONS AND BARGAINING,
 THE RESPONDENT CANNOT BE SO SENSITIVE TO CRITICISM BY THE UNION.  MAKING
 UNCOMPLIMENTARY AND CRITICAL COMMENTS ABOUT MANAGEMENT, AFTER ALL, IS
 ONE OF A LABOR ORGANIZATION'S TECHNIQUES FOR GAINING SUPPORT.  /5/
 FINALLY AN ARGUMENT MIGHT BE MADE THAT SECTION 1(A) OF THE ORDER ONLY
 PROTECTS A UNION OFFICIALS COMMUNICATIONS WITH "OFFICIALS OF THE
 EXECUTIVE BRANCH, THE CONGRESS OR OTHER APPROPRIATE AUTHORITY * * * "
 AND NOT WITH THE PUBLIC.  SUCH AN INTERPRETATION MUST BE REJECTED AS AN
 UNREASONABLE AND OVERLY RESTRICTIVE INTERPRETATION.  RATHER IT IS CLEAR
 THAT SECTION 1(A) IS MEANT TO PROTECT UNION COMMUNICATIONS TO THE
 EXECUTIVE BRANCH THE CONGRESS AND APPROPRIATE AUTHORITY EVEN IN
 SITUATIONS WHERE THE INFORMATION IS PRIVILEGED OR OF SUCH A NATURE THAT
 COMMUNICATION TO THE GENERAL PUBLIC WOULD NOT BE PERMITTED.
 
    IT IS THUS CONCLUDED THAT RESPONDENT VIOLATED SECTION 19(A) (2) AND
 (1) OF THE ORDER BECAUSE ITS REPRIMAND OF STEWARDS BLEAU AND HILGEFORT
 FOR ENGAGING IN PROTECTED ACTIVITY CONSTITUTED UNLAWFUL DISCRIMINATION
 AND INTERFERENCE.  /6/
 
    THE RECORD, HOWEVER, FAILS TO ESTABLISH THAT THE REPRIMANDS HAD
 ANYTHING TO DO WITH FILING AN UNFAIR LABOR PRACTICE COMPLAINT OR THE
 GIVING TESTIMONY UNDER THE ORDER AND, THUS, IT IS CONCLUDED RESPONDENT
 DID NOT VIOLATE SECTION 19(A) (4) OF THE ORDER.
 
    HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTION 19(A) (4) OF THE
 ORDER BUT HAS ENGAGED IN OTHER CONDUCT WHICH IS VIOLATIVE OF THE
 SECTIONS 19(A) (1) AND (4) ORDER, I RECOMMEND THAT THE FEDERAL LABOR
 RELATIONS AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO SECTION 2400.2
 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FR NO. 147, JULY 30, 1979)
 AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215):
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY
 DISMISSES THE ALLEGATIONS IN THIS MATTER THAT THE VETERANS
 ADMINISTRATION, DENVER REGIONAL OFFICE VIOLATED SECTION 19(A) (4) OF
 EXECUTIVE ORDER 11491, AS AMENDED AND ORDER THAT THE VETERANS
 ADMINISTRATION, DENVER REGIONAL OFFICE SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REPRIMANDING OR OTHERWISE DISCRIMINATING IN REGARDS TO HIRE,
 TENURE, PROMOTION OR OTHER CONDITIONS OF EMPLOYMENT WILLIAM BLEAU, MARK
 HILGEFORT AND OTHER EMPLOYEES FOR ENGAGING IN CONDUCT WHICH IS PROTECTED
 BY EXECUTIVE ORDER 11491, AS AMENDED ON BEHALF OF AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 OR OTHER LABOR ORGANIZATIONS.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING 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 EXECUTIVE ORDER:
 
    (A) RESCIND AND REMOVE FROM THE PERSONNEL FILES OF AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 SHOP STEWARDS
 WILLIAM BLEAU AND MARK HILGEFORT THE SEPTEMBER 27 REPRIMANDS ISSUED TO
 THEM.
 
    (B) POST AT ITS FACILITIES IN DENVER, COLORADO 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 DIRECTOR OF THE DENVER REGIONAL OFFICE AND SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
 PLACES, INCLUDING ALL WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
  THE REGIONAL OFFICE OF THE VA SHALL TAKE ALL REASONABLE STEPS TO INSURE
 THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER
 MATERIAL.
 
                           SAMUEL A. CHAITOVITZ
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  SEPTEMBER 25, 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 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 IN REGARD TO HIRE,
 TENURE, PROMOTION OR OTHER CONDITIONS OF EMPLOYMENT WILLIAM BLEAU, MARK
 HILGEFORT AND OTHER EMPLOYEES FOR ENGAGING IN CONDUCT WHICH IS PROTECTED
 BY EXECUTIVE ORDER 11491, AS AMENDED, ON BEHALF OF AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 OR OTHER LABOR
 ORGANIZATIONS.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
 COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491,AS AMENDED.
 
    WE WILL RESCIND AND REMOVE FROM THE PE