Veterans Administration Hospital, Lexington, Kentucky (Respondent) and Local R5-185, National Association of Government Employees (Complainant) 



[ v02 p879 ]
02:0879(110)NG
The decision of the Authority follows:


 2 FLRA No. 110
 
 VETERANS ADMINISTRATION HOSPITAL
 LEXINGTON, KENTUCKY
 Respondent
 
 and
 
 LOCAL R5-185, NATIONAL ASSOCIATION
 OF GOVERNMENT EMPLOYEES
 Complainant
 
                                            Assistant Secretary
                                            Case No. 41-6178(CA)
 
                            DECISION AND ORDER
 
    ON AUGUST 23, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY
 ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
 PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT CEASE AND
 DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
 ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.  THE
 RESPONDENT FILED EXCEPTIONS.
 
    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 RULES AND REGULATIONS (45 F.R.
 3482, JANUARY 17, 1980).  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 2400.1 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,
 INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
 
    AUTHORITY FINDS IT UNNECESSARY TO RELY UPON THE FACT THAT THE
 EMPLOYEE WHO WAS SELECTED WAS FOURTH IN THE MERIT PROMOTION RATINGS.
 
                                   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 HOSPITAL, LEXINGTON, KENTUCKY, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFERRING, IN THE COURSE OF ANY INTERVIEWS FOR PROMOTION, TO ANY
 APPLICANT'S OR OTHER EMPLOYEE'S MEMBERSHIP IN THE NATIONAL ASSOCIATION
 OF GOVERNMENT EMPLOYEES OR ANY LOCAL THEROF, INCLUDING LOCAL R5-185 OR
 LOCAL R5-160.
 
    (B) ENCOURAGING OR DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY
 DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
 CONDITIONS OF EMPLOYMENT.
 
    (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ANY EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED, OR IN ANY LIKE OR RELATED MANNER ENCOURAGING OR
 DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN
 REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT,
 IN VIOLATION OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND PROVISIONS OF THE ORDER:
 
    (A) WITHDRAW, CANCEL AND RESCIND THE SELECTION FOR, AND PROMOTION TO
 THE POSITION OF, SUPERVISORY POLICE OFFICER, COMMONLY KNOWN AS CHIEF OF
 POLICE, OF MR. BURL CORNELIUS.
 
    (B) RE-POST AND RE-ADVERTISE THE POSITION OF SUPERVISORY POLICE
 OFFICER, GS-0830, UNDER APPROPRIATE ESTABLISHED PROCEDURES, INSURING,
 HOWEVER, THAT:  I) ELIGIBILITY AND/OR QUALIFICATIONS ARE NOT MADE MORE
 RESTRICTIVE THAN THOSE SET FORTH IN THE MARCH, 1978, PLACEMENT NOTICE
 NO. 17;  AND II) MR. BURL CORNELIUS BE GIVEN NO CREDIT FOR SUPERVISORY
 EXPERIENCE GAINED IN THE POSITION OF SUPERVISORY POLICE OFFICER FROM
 MARCH, 1978.
 
    (C) POST AT ITS FACILITIES AT ITS LEXINGTON, KENTUCKY, MEDICAL
 CENTER, AND SPECIFICALLY AT BOTH THE LEESTOWN DRIVE FACILITY AND THE
 COOPER DRIVE FACILITY, 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 HOSPITAL DIRECTOR 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 AT BOTH THE LEESTOWN DRIVE AND COOPER
 DRIVE FACILITIES.  THE HOSPITAL DIRECTOR SHALL TAKE REASONABLE STEPS TO
 INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    (D) 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.
 
    ISSUED, WASHINGTON, D.C., MARCH 14, 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 REFER, IN THE COURSE OF ANY INTERVIEW FOR PROMOTION, TO
 ANY APPLICANT'S OR OTHER EMPLOYEE'S MEMBERSHIP IN THE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, OR TO ANY ACTIVITY ON BEHALF OF THE
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES OR ANY LOCAL THEREOF,
 INCLUDING LOCAL R5-185 OR LOCAL R5-160.
 
    WE WILL NOT ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
 ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
 OR OTHER CONDITIONS OF EMPLOYMENT.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED, OR IN ANY LIKE OR RELATED MANNER
 ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
 DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
 CONDITIONS OF EMPLOYMENT IN VIOLATION OF EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    WE WILL WITHDRAW, CANCEL AND RESCIND THE SELECTION FOR, AND PROMOTION
 TO, THE POSITION OF SUPERVISORY POLICE OFFICER, COMMONLY KNOWN AS CHIEF
 OF POLICE, OF MR.  BURL CORNELIUS.
 
    WE WILL RE-POST AND RE-ADVERTISE THE POSITION OF SUPERVISORY POLICE
 OFFICER, GS-0830, UNDER APPROPRIATE ESTABLISHED PROCEDURES AND WE WILL
 INSURE THAT :  I) ELIGIBILITY AND/OR QUALIFICATIONS ARE NOT MADE MORE
 RESTRICTIVE THAN THOSE SET FORTH IN THE MARCH, 1978, PLACEMENT NOTICE
 NO. 17;  AND II) MR. BURL CORNELIUS RECEIVES NO CREDIT FOR SUPERVISORY
 EXPERIENCE GAINED IN THE POSITION OF SUPERVISORY POLICE OFFICER FROM
 MARCH, 1978.
 
                           (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 ANY EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR
 COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
 WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
 WHOSE ADDRESS IS:  1776 PEACHTREE STREET, N.W., SUITE 501, NORTH WING,
 ATLANTA, GEORGIA 30309;  AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.
 
    JAMES W. PRESSLER, JR. ESQUIRE
 
    ASSISTANT GENERAL COUNSEL
 
    EDWARD J. GILDEA, ESQUIRE
 
    ASSISTANT GENERAL COUNSEL
 
    NATIONAL ASSOCIATION OF GOVERNMENT
 
    EMPLOYEES
 
    2139 WISCONSIN AVENUE, NW.
 
    WASHINGTON, D.C.  20007
 
                            FOR THE COMPLAINANT
 
    JAMES KLEIN, ESQUIRE
 
    GENERAL COUNSEL'S OFFICE
 
    VETERANS ADMINISTRATION
 
    810 VERMONT AVENUE, NW.
 
    WASHINGTON, D.C.  20420
 
    ON BRIEF:  CHARLES M. JOHNSON, ESQUIRE
 
                         ASSISTANT GENERAL COUNSEL
 
                            FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREINAFTER ALSO REFERRED TO AS THE "ORDER").  ALTHOUGH THE NOTICE OF
 HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT
 SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, ALL
 PROCEEDINGS AFTER JANUARY 1, 1979, HAVE BEEN CONDUCTED BEFORE THE
 FEDERAL LABOR RELATIONS AUTHORITY, AND THIS DECISION IS ISSUED IN THE
 NAME OF THE AUTHORITY, PURSUANT TO TRANSITION RULES AND REGULATIONS,
 FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979 (5 C.F.R. SECTION
 2400.2).
 
    COMPLAINANT FILED A CHARGE ON JUNE 29, 1978, AND A COMPLAINT ON
 AUGUST 28, 1978 (ASS'T SEC. EXH. 1) /1/ ALLEGING VIOLATIONS OF SECTIONS
 19(A)(1) AND (2) OF THE ORDER AND ON NOVEMBER 29, 1978, COMPLAINANT
 FILED AN AMENDED COMPLAINT (ASS'T SEC. EXH. 2) INDENTICAL IN ALL
 RESPECTS TO THE ORIGINAL COMPLAINT EXCEPT THAT THE NAME OF PARTY FILING
 THE COMPLAINT WAS CHANGED FROM LOCAL RO5-160 NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES TO LOCAL R5-185 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES.  NOTICE OF HEARING ISSUED ON DECEMBER 4, 1978 (ASS'T SEC.
 EXH. 3) FOR A HEARING ON FEBRUARY 15, 1979;  ON FEBRUARY 9, 1979, A
 NOTICE RESCHEDULING THE HEARING FOR MARCH 20, 1979 WAS ISSUED (ASS'T
 SEC. EXH. 4) AND ON MARCH 16, 1979, A FURTHER ORDER RESCHEDULING THE
 HEARING FOR APRIL 24, 1979, WAS ISSUED (ASS'T SEC. EXH. 5), IN
 LEXINGTON, KENTUCKY, BEFORE THE UNDERSIGNED.
 
    ALL PARTIES WERE REPRESENTED AT THE HEARING BY COUNSEL, WERE AFFORDED
 FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO
 INTRODUCE EVIDENCE BEARING ON THE ISSUES, AND TO PRESENT ORAL ARGUMENT
 AT THE CONCLUSION OF THE TESTIMONY.  AT THE CLOSE OF THE HEARING, JUNE
 22, 1979, WAS FIXED AS THE DATE FOR THE FILING OF BRIEFS, WHICH TIME
 WAS, AT THE REQUEST OF COMPLAINANT, FOR GOOD CAUSE SHOWN, AND WITH THE
 CONSENT OF RESPONDENT, SUBSEQUENTLY EXTENDED TO JUNE 29, 1979, AND EACH
 PARTY HAS TIMELY FILED A BRIEF WHICH HAVE BEEN CAREFULLY CONSIDERED.
 UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSION
 AND RECOMMENDED DECISION.
 
                          DISCUSSION AND FINDINGS
 
    COMPLAINANT WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF ALL
 POLICE OFFICERS EMPLOYED BY THE VETERANS ADMINISTRATION HOSPITAL,
 LEXINGTON, KENTUCKY, ON JULY 8, 1976;  THE PARTIES' NEGOTIATED AGREEMENT
 WAS SIGNED JANUARY 3, 1977, AND WAS APPROVED BY THE HOSPITAL DIRECTOR
 AND BECAME EFFECTIVE FEBRUARY 11, 1977 (SEE, VETERANS ADMINISTRATION,
 VETERANS ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY A/SLMR NO. 105
 (1978)).
 
    THIS CASE CONCERNS THE SELECTION OF A NEW CHIEF OF POLICE.  THE
 OPENING AROSE UPON THE DEPARTURE OF CHIEF JACKIE DIXON FOR A POSITION
 WITH A VETERANS ADMINISTRATION FACILITY IN LAS VEGAS, NEVADA.
 RESPONDENT'S POLICE OFFICERS IN LEXINGTON, KENTUCKY, WORK AT TWO
 FACILITIES:  ONE IS LOCATED AT LEESTOWN DRIVE AND THE OTHER IS LOCATED
 AT COOPER DRIVE, ADJACENT TO THE UNIVERSITY.  THE POLICE OFFICERS AT
 EACH FACILITY CONSTITUTE A SECTION, OR DIVISION;  EACH SECTION IS
 SUBSTANTIALLY EQUAL IN SIZE;  THE COOPER DRIVE SECTION CONSISTED OF NINE
 POLICE OFFICERS PLUS AN ASSISTANT CHIEF, MR. JAMES HOSKINS, AND THE
 LEESTOWN DRIVE SECTION CONSISTED OF TEN POLICE OFFICERS PLUS THE CHIEF
 OF POLICE, MR. JACKIE DIXON;  AND POLICE OFFICERS, EXCEPT FOR A
 REORIENTATION SHIFT AT THE OTHER FACILITY, ARE REGULARLY ASSIGNED TO ONE
 FACILITY.  ALTHOUGH CHIEF DIXON WAS IN CHARGE OF BOTH SECTIONS, HE
 RARELY VISITED COOPER DRIVE AND A DECIDED SPLIT BETWEEN THE SECTIONS
 DEVELOPED DURING HIS TENURE AS CHIEF.
 
    THE SECURITY SERVICE IS PART OF THE ENGINEERING SERVICE AT THE
 LEXINGTON MEDICAL CENTER.  THE POSITION TO BE FILLED UPON CHIEF DIXON'S
 DEPARTURE WAS THAT OF SUPERVISORY POLICE OFFICER, GS-0830-6/7/8,
 ENGINEERING SERVICE.  THIS WAS THE TOP SUPERVISORY POSITION IN THE
 SECURITY SERVICE AND THE POSITION WAS, AND IS, REFERRED TO AS CHIEF OF
 POLICE.  THE SELECTING OFFICIAL WAS THE CHIEF, ENGINEERING SERVICE, MR.
 DONALD E. FULTON.  THE VACANCY WAS ANNOUNCED AT THE LEVEL OF GS-6, 7 OR
 8.  SEVEN INDIVIDUALS WERE REFERRED TO MR. FULTON FOR INTERVIEWS.  ON
 ONE LIST WERE JAMES HOSKINS, ASSISTANT CHIEF, AND MR. SHIRLEY MORRIS, A
 FIRE INSPECTOR, WHO WERE THE TOP CANDIDATES FOR THE POSITION OF CHIEF IF
 IT WERE TO BE FILLED AT THE GS-7 OR 8 LEVEL.  EACH OF THESE INDIVIDUALS
 WAS SERVING AT THE GS-6 LEVEL.  SUBSEQUENTLY, RESPONDENT AMENDED THE
 VACANCY ANNOUNCEMENT TO LIMIT THE POSITION TO GS-6 AND, ACCORDINGLY, THE
 NON-SELECTION OF MESSRS.  HOSKINS AND MORRIS IS NOT BEFORE ME AND WILL
 NOT BE FURTHER CONSIDERED.  /2/
 
    THE OTHER LIST CONSISTED OF FIVE HIGHLY QUALIFIED CANDIDATES FROM THE
 BARGAINING UNIT.  EACH WAS, OF COURSE, A POLICE OFFICER AND EACH WAS A
 GS-5.  /3/ THE TOTAL RATING FOR THESE FIVE "HIGHLY QUALIFIED" APPLICANTS
 WERE AS FOLLOWS:  (TABLE OMITTED)
 
    EXCEPT FOR MR. CORNELIUS, WHO WAS SELECTED FOR THE POSITION OF CHIEF,
 EACH WAS A MEMBER OF THE UNION.  INDEED, MR. WALLACE WAS PAST PRESIDENT
 AND MR. RICHARDS WAS PAST CHIEF STEWARD, OF THE UNION.  ALTHOUGH THE
 RECORD SHOWS SOME DISAGREEMENT AS TO THE MANNER AND EXTENT OF MR.
 FULTON'S INQUIRY ABOUT UNION ACTIVITY, THERE IS NO DISPUTE THAT MR.
 FULTON REFERRED TO UNION ACTIVITY IN HIS INTERVIEW WITH EACH HIGHLY
 QUALIFIED APPLICANT.  RESPONDENT CONCEDES THAT MR. FULTON "* * * ASKED
 EACH INDIVIDUAL WHETHER THEY COULD DISENGAGE THEMSELVES FROM THEIR PAST
 UNION ACTIVITIES SO THAT THEY COULD OCCUPY THE MANAGEMENT POSITION IF
 THEY WERE SELECTED." (RES. BRIEF, P. 4).
 
    MR. FULTON'S INTERJECTION OF PAST UNION ACTIVITY IN HIS QUESTIONING
 OF EACH APPLICANT DID, INDEED, CAUSE EACH UNION MEMBER TO BELIEVE THAT
 HIS UNION MEMBERSHIP OR ACTIVITY DID PREJUDICE HIS CHANCE FOR SELECTION
 FOR THE POSITION OF CHIEF. ANY REFERENCE TO PRIOR UNION MEMBERSHIP OR
 ACTIVITY OF AN APPLICANT IN AN INTERVIEW FOR A PROMOTION IS, AT THE VERY
 LEAST, HIGHLY SUSPICIOUS, AND, WHERE SUCH REFERENCE IS COMPLETELY
 EXTRANEOUS TO THE SUBJECT OF THE INTERVIEW, WITHOUT MORE, CONSTITUTES A
 VIOLATION OF SECTION 19(A)(1) OF THE ORDER.  PENNSYLVANIA ARMY NATIONAL
 GUARD AND ASSOCIATION OF CIVILIAN TECHNICIANS, 1 FLRA NO. 60 (1979).
 NOT ONLY DO I FIND AND CONCLUDE THAT MR. FULTON'S REFERENCE TO THE PRIOR
 UNION MEMBERSHIP AND UNION ACTIVITY OF EACH APPLICANT WAS COMPLETELY
 EXTRANEOUS TO THE SUBJECT OF THE INTERVIEW, BUT I FIND RESPONDENT'S
 PURPORTED JUSTIFICATION, NAMELY, THAT "PROMOTION TO THE SUPERVISORY
 POSITION IN QUESTION WOULD REMOVE THE INDIVIDUAL FROM THE BARGAINING
 UNIT, THUS, PRECLUDING FUTURE PARTICIPATION IN UNION ACTIVITIES." (RES.
 BRIEF, P. 4), WHOLLY UNCONVINCING.  NOT ONLY DO I CONCLUDE THAT MR.
 FULTON'S REFERENCE TO PRIOR UNION MEMBERSHIP AND ACTIVITY, WITHOUT MORE,
 VIOLATED SECTION 19(A)(1) OF THE ORDER;  BUT, AS SET FORTH HEREINAFTER
 THE RECORD, IN ADDITION, SHOWS A PERVASIVE BACKGROUND OF UNION ANIMUS
 WHICH, IF THERE WERE ANY DOUBT AS TO THE INTENT AND PURPOSE OF MR.
 FULTON'S REFERENCE TO PRIOR UNION MEMBERSHIP AND ACTIVITY (AND I
 ENTERTAIN NO SUCH DOUBT), IS FIRMLY LAID TO REST BY SUCH OTHER EVIDENCE.
 
    MR. KELLEY RICHARDS TESTIFIED THAT HE WAS A PERSONAL FRIEND OF CHIEF
 DIXON;  THAT TWO TO THREE MONTHS, POSSIBLY EVEN EARLIER, BEFORE DIXON'S
 DEPARTURE, DIXON TOLD HIM HE HAD A JOB IN LAS VEGAS AND WOULD BE LEAVING
 AND TOLD MR. RICHARDS THAT AS LONG AS HE (RICHARDS) WAS ACTIVE IN THE
 UNION IF THERE WERE ANY PROMOTIONS GIVEN OUT, HE (RICHARDS) WOULDN'T GET
 ONE;  THAT HE (RICHARDS) HAD GOT A SUPERIOR PERFORMANCE BEFORE THE UNION
 GOT IN BUT AS LONG AS HE (RICHARDS) REMAINED A UNION MEMBER HE WOULD
 NEVER GET ANOTHER;  THAT HE (DIXON) KNEW WHAT HE WAS TALKING ABOUT
 BECAUSE HE (DIXON) TALKED TO PEOPLE EVERYDAY.  RICHARDS TOOK MR. DIXON'S
 LAST STATEMENT TO MEAN STAFF MEETINGS THAT DIXON ATTENDED, ALTHOUGH HE
 STATED THAT MR. DIXON DID NOT MENTION STAFF MEETINGS.  MR. RICHARDS
 TESTIFIED THAT LATER, IN HIS OFFICE, MR. DIXON ADVISED HIM AND BURL
 CORNELIUS TO DROP OUT OF THE UNION BECAUSE HE WAS GOING TO LEAVE AND HIS
 JOB WAS GOING TO BE OPEN AND IF WE WANTED TO HAVE A CHANCE FOR HIS JOB
 WE'D HAVE TO DROP OUT OF THE UNION.  MR. RICHARDS STATED THAT MR.
 CORNELIUS WAS THEN A MEMBER OF THE UNION AND THAT THE FOLLOWING DAY MR.
 CORNELIUS DID DROP OUT OF THE UNION.  ALTHOUGH MR. CORNELIUS DENIED THAT
 DIXON EVER SAID HOW HE FELT ABOUT THE UNION, IN VIEW OF THE OVERWHELMING
 WEIGHT OF THE TESTIMONY SHOWING MR. DIXON'S FREQUENTLY EXPRESSED DISLIKE
 OF THE UNION, INCLUDING MR. FULTON'S ADMISSION THAT DIXON BLAMED
 PROBLEMS ON THE UNION, I DO NOT CREDIT HIS DENIAL.  IN LIKE MANNER, I DO
 NOT CREDIT MR. CORNELIUS' TESTIMONY THAT HE DID NOT RECALL A
 CONVERSATION IN WHICH DIXON SAID THAT MEMBERSHIP IN THE UNION WOULD BE A
 NEGATIVE FACTOR IN PROMOTION AND, INSTEAD FULLY CREDIT MR. RICHARDS'
 TESTIMONY THAT CHIEF DIXON DID NOT ADVISE MR. CORNELIUS AND MR. RICHARDS
 TO DROP OUT OF THE UNION BECAUSE HE WAS GOING TO LEAVE AND HIS JOB WAS
 GOING TO BE OPEN AND THAT IF THEY WANTED TO HAVE A CHANCE FOR HIS JOB
 THEY WOULD HAVE TO DROP OUT OF THE UNION.
 
    THE RECORD IS CLEAR THAT MR. CORNELIUS WAS, AT SOME POINT, A MEMBER
 OF THE UNION AND THAT, AT SOME POINT, HE WITHDREW FROM THE UNION.  MR.
 CORNELIUS TESTIFIED THAT HE SUBMITTED HIS "PAPER WORK APPROXIMATELY
 NOVEMBER OF 1977" BUT THAT MARCH AND SEPTEMBER WERE "THE TWO DATES THAT
 YOU CAN GET OUT OF THE UNION." MR. CORNELIUS ALSO TESTIFIED THAT HE
 JOINED THE UNION "AS SOON AS IT CAME IN" ABOUT FEBRUARY, 1977.
 ACTUALLY, THE UNION WAS CERTIFIED JULY 8, 1976, ALTHOUGH THE AGREEMENT,
 SIGNED ON JANUARY 3, 1977, WAS APPROVED BY THE HOSPITAL DIRECTOR AND
 BECAME EFFECTIVE FEBRUARY 11, 1977.  IT IS APPARENT THAT NEITHER MR.
 CORNELIUS NOR THE OTHER WITNESSES, INCLUDING MR. RICHARDS, WERE WHOLLY
 CORRECT IN THEIR FRAME OF REFERENCE TO SUCH MATTERS AS WHEN THE UNION
 "CAME IN" AND WHEN MR. CORNELIUS WITHDREW FROM THE UNION.
 UNFORTUNATELY, COMPLAINANT SUPPLIED NO WRITTEN DOCUMENTATION NOR WAS THE
 DATE OF MR. DIXON'S CONVERSATION WITH MESSRS. RICHARDS AND CORNELIUS
 FIXED WITH ANY CERTAINTY.  CONSEQUENTLY, WHILE I HAVE FULLY CREDITED MR.
 RICHARDS' TESTIMONY THAT CHIEF DIXON MADE THE STATEMENTS ATTRIBUTED TO
 HIM, I CANNOT, ON THE BASIS OF THE VERY INADEQUATE RECORD AS TO THE DATE
 OF MR. CORNELIUS' WITHDRAWAL FROM THE UNION CONCLUDE THAT MR.  CORNELIUS
 WITHDREW FROM THE UNION BECAUSE OF CHIEF DIXON'S ADVICE TO DO SO,
 NOTHWITHSTANDING THAT SUCH INFERENCE WOULD BE WHOLLY CONSISTENT WITH THE
 CREDITED TESTIMONY.
 
    MR. RICHARDS' TESTIMONY CONCERNING CHIEF DIXON'S STATEMENTS TO HIM
 WAS FULLY SUPPORTED BY THE TESTIMONY OF MR. LARRY F. WALLACE THAT MR.
 DIXON HAS STRONGLY STATED IN THE PRESENCE OF MOST OFFICERS THAT THE ONLY
 WAY ANYONE WAS EVER GOING TO BE SELECTED TO A SUPERVISOR'S POSITION IN
 THE POLICE SECTION WAS BY BEING A NON-MEMBER OF THE UNION;  THAT IF YOU
 BELONGED TO ITS UNION YOU WERE NEVER GOING ANY PLACE;  THAT THIS WAS
 COMMON CONVERSATION BY CHIEF DIXON AT THE OFFICE.  I FOUND MR. WALLACE
 TO BE A WHOLLY CREDIBLE WITNESSES.  MR. ALBERT D. BROWN TESTIFIED THAT
 HE HAD HEARD THAT RICHARDS AND CORNELIUS HAD BEEN ADVISED THAT IF THEY
 DIDN'T DROP OUT OF THE UNION THEY WOULDN'T GET ANYTHING.  STANDING
 ALONE, THIS RANK HEARSAY WOULD HAVE NO PROBATIVE VALUE BUT IN LIGHT OF
 OTHER DIRECT TESTIMONY DOES FURTHER SUPPORT THE GENERAL DISSEMINATION
 AMONG THE POLICE OFFICERS OF THE VIEW THAT UNION MEMBERSHIP WAS
 DETRIMENTAL TO ADVANCEMENT.
 
    AS THE RECORD SHOWS THAT CHIEF DIXON MADE THE FOREGOING STATEMENTS
 WHILE SERVING AS CHIEF OF POLICE, AND IN THE COURSE OF HIS DUTIES AS A
 SUPERVISOR FOR RESPONDENT, RESPONDENT IS RESPONSIBLE FOR THE ACTIONS OF
 ITS SUPERVISOR. MOREOVER, MR. FULTON, CHIEF OF THE ENGINEERING SECTION,
 ADMITTED THAT CHIEF DIXON STATED TO HIM THAT VARIOUS PROBLEMS WERE
 ATTRIBUTABLE TO THE UNION.
 
    MR. RICHARDS TESTIFIED THAT, SOME 4 TO 6 WEEKS PRIOR TO THE JOB
 INTERVIEWS FOR THE POSITION OF CHIEF, WHICH WERE CONDUCTED IN APRIL OR
 MAY, 1978, MR. CORNELIUS HAD BEEN INVOLVED IN AN ARREST OF A VA EMPLOYEE
 WHICH HAD GROWN OUT OF A TRAFFIC VIOLATION;  THAT HE, AS CHIEF STEWARD,
 HAD BEEN CALLED TO MR. FULTON'S OFFICE;  THAT THERE HAD BEEN A THREAT,
 AS A RESULT OF MR. CORNELIUS' ACTION, TO "PULL EVERBODY'S ARREST
 AUTHORITY;" THAT, AS CHIEF STEWARD, HE HAD POINTED OUT THE REQUIREMENTS
 OF THE REGULATIONS AND THE PROCEDURES WHICH WOULD HAVE TO BE FOLLOWED
 BEFORE SUCH ACTION COULD BE TAKEN;  AND THAT MR. CORNELIUS, ALTHOUGH NOT
 A MEMBER OF THE UNION, HAD GIVEN HIM A WRITTEN STATEMENT OF THE INCIDENT
 AND ASKED MR. RICHARDS TO REPRESENT HIM IN CASE MANAGEMENT TOOK ANY
 ACTION AGAINST HIM.  MR. FULTON AT FIRST DENIED ANY KNOWLEDGE OF THE
 ARREST INCIDENT BUT LATER RECALLED THE INCIDENT WHICH HE DISMISSED AS
 HAVING INVOLVED PUSHING BY THE EMPLOYEE.  MR. FULTON DENIED ANY MEETING
 WITH MR. RICHARDS.  MR. CORNELIUS DENIED THAT HE EVER CONTACTED MR.
 RICHARDS;  DENIED THAT HE GAVE HIM ANY STATEMENT;  BUT ADMITTED THAT
 THERE HAD, AT LEAST, BEEN SOME COMMENTS BY CHIEF DIXON AND BY MR. FULTON
 CONCERNING PROCEDURES WHEN AN EMPLOYEE IS ARRESTED AND IN PARTICULAR
 CONTACTING THEIR SUPERVISORS, SINCE, IN THE INCIDENT IN QUESTION, THE
 EMPLOYEE HAD BEEN LISTED AS AWOL FROM DUTY.  IT IS APPARENT THAT,
 CONTRARY TO MR. FULTON'S TESTIMONY, THERE HAD BEEN MORE THAN PASSING
 ATTENTION TO THE ARREST INCIDENT.  INDEED, UNDER THE CIRCUMSTANCES, I
 FIND MR.  CORNELIUS' DENIAL OF HIS HAVING CONTACTED MR. RICHARDS
 UNWORTHY OF BELIEF AND, FOR LIKE REASONS, I DO NOT CREDIT MR. FULTON'S
 DENIAL OF ANY MEETING WITH MR. RICHARDS OVER THE INCIDENT AND FULLY
 CREDIT MR. RICHARDS' TESTIMONY.
 
    MR. RICHARDS FURTHER TESTIFIED THAT ONLY TWO OR THREE WEEKS BEFORE
 THE JOB INTERVIEWS, MR. CORNELIUS HAD BEEN WRITTEN UP FOR REPORTING TO
 WORK LATE.  MR.  CORNELIUS WAS NOT ASKED ABOUT THIS ASSERTION, NOR WAS
 MR. FULTON;  HOWEVER, AS THERE WAS NO DENIAL I MUST ASSUME THAT THE
 ASSERTION WAS CORRECT.
 
    MR. RICHARDS TESTIFIED THAT MR. FULTON BEGAN BY TALKING ABOUT HIS
 ACTIVITY IN THE UNION;  THAT MR. FULTON KEPT BRINGING UP THE ARREST
 INCIDENT;  THAT HE TOLD HIM (RICHARDS) THAT BECAUSE HE (RICHARDS) WAS A
 UNION STEWARD HE FULLY UNDERSTOOD THE REGULATIONS AND THAT HE (FULTON)
 DIDN'T BELIEVE THE UNION WOULD LET HIM (RICHARDS) GO BECAUSE HE HAD DONE
 TOO GOOD A JOB REPRESENTING THE UNION. ALTHOUGH MR. FULTON DENIED THAT
 HE MADE ANY SUCH COMMENTS TO MR. RICHARDS, I DO NOT CREDIT HIS DENIALS
 AND SPECIFICALLY CREDIT MR. RICHARDS' VERSION OF THE INTERVIEW.
 
    CHIEF DIXON HAD MADE REPEATED STATEMENTS THAT UNION MEMBERSHIP AND
 UNION ACTIVITY WOULD BAR PROMOTION AND WHEN MR. FULTON INSERTED INTO
 EACH INTERVIEW A QUESTION RELATING TO THE EMPLOYEE'S PRIOR UNION
 MEMBERSHIP AND ACTIVITY AN UNAVOIDABLE CONSEQUENCE OF SUCH INQUIRY WAS
 THAT IT APPEARED TO CONFIRM 'CHIEF DIXON'S STATEMENTS.  THE SELECTION OF
 MR. CORNELIUS, THE ONLY NON-UNION APPLICANT, COMPLETED THE SCENARIO
 CHIEF DIXON HAD PROCLAIMED.  INDEED, MR.  RICHARDS FURTHER TESTIFIED
 THAT MR. DIXON HAD CALLED HIM FROM LAS VEGAS AND TOLD HIM THAT HE HAD
 "RECOMMENDED BURL BECAUSE HE'S NOT A UNION MEMBER" AND FURTHER REPEATED
 THAT "I TOLD YOU AND I TOLD BURL TO GET OUT OF THE UNION, THAT THE CHIEF
 WOULD BE A NON-UNION MEMBER."
 
    I AM AWARE THAT MR. FREDERICK TESTIFIED THAT MR. FULTON HAD HIGHLY
 RECOMMENDED HIM FOR AN EQUIVALENT POSITION AT MARION, ILLINOIS.  MR.
 BROWN TESTIFIED THAT THERE WAS A BIG DIFFERENCE IN THE ATTITUDE OF
 MANAGEMENT AFTER THE UNION.  HOWEVER, THE RECORD DOES NOT SHOW WHEN THE
 MARION, ILLINOIS, RECOMMENDATION OCCURRED AND, AS VIRTUALLY OPPOSITE
 INTERFERENCES MIGHT BE WARRANTED DEPENDING ON WHETHER SUCH
 RECOMMENDATION OCCURRED AFTER THE ADVENT OF THE UNION AT LEXINGTON OR
 BEFORE, THE INADEQUACY OF THE RECORD PERMITS NO INTERFERENCE WHATEVER.
 THE RECORD DOES SHOW THAT:  A) MR. CORNELIUS TOLD MR. RICHARDS, AFTER
 MR. CORNELIUS' INTERVIEW BUT PRIOR TO MR. RICHARDS' INTERVIEW, THAT HE
 HAD INHERITED CERTAIN RESPONSIBILITIES AND BOTH HIS STATEMENT AND HIS
 "INSPECTION" TOUR WITH MR. RICHARDS STRONGLY IMPLY THE SELECTION OF MR.
 CORNELIUS BEFORE THE INTERVIEWS HAD BEEN COMPLETED;  AND B) MR.
 CORNELIUS TOLD MR. RICHARDS, "WE GOT TO GET RID OF THIS DAMN UNION * * *
 THAT'S ONE OF MY JOBS I GOT TO DO," WHICH FURTHER IMPLIES SELECTION OF
 MR. CORNELIUS BEFORE THE INTERVIEWS HAD BEEN COMPLETED AS WELL AS
 IMPLICIT INSTRUCTIONS THAT HE GET RID OF THE UNION.  WHILE I HAVE NO
 REASON TO DOUBT THAT MR. CORNELIUS MADE SUCH STATEMENTS, AND, FROM THE
 PREVALENT ANTI-UNION STATEMENTS MADE BY CHIEF DIXON, IT MIGHT BE
 ENTIRELY PROPER TO INFER MANAGEMENT APPROVAL OF MR. CORNELIUS'
 STATEMENT;  NEVERTHELESS, BECAUSE IT IS UNNECESSARY TO DO SO, I DRAW NO
 INFERENCE FROM SUCH STATEMENTS EXCEPT TO NOTE THAT THIS IS CONSISTENT
 WITH PERPETUATION OF CHIEF DIXON'S ANTI-UNION STATEMENTS WITH THE TACIT
 APPROVAL OF MANAGEMENT.
 
                                CONCLUSIONS
 
    STANDING ALONE, SELECTION OF THE ONLY NON-UNION APPLICANT FOR THE JOB
 WOULD NOT PROVE DISCRIMINATION IN VIOLATION OF 19(A)(2) OF THE ORDER,
 NOTWITHSTANDING THAT MR. FULTON'S REFERENCE TO UNION MEMBERSHIP AND
 ACTIVITY CONSTITUTED A VIOLATION OF SECTION 19 (A)(1), PENNSYLVANIA ARMY
 NATIONAL GUARD, SUPRA.  ABSENT UNION ANIMUS, SELECTION OF ANY ONE OF THE
 APPLICANTS INTERVIEWED, EACH OF WHOM HAD BEEN RATED HIGHLY QUALIFIED,
 MIGHT HAVE BEEN BEYOND REPROACH VIS-A-VIS SECTION 19(A) (2).  EACH WAS
 RATED HIGHLY QUALIFIED;  EACH HAD CONSIDERABLE EXPERIENCE IN POLICE
 WORK;  AND EACH HAD SUPERVISORY EXPERIENCE, ALTHOUGH MR. BROWN, WHO HAD
 23 YEARS EXPERIENCE IN POLICE WORK, HAD SERVED AS A SUPERVISOR ONLY IN
 AN ACTING CAPACITY, IN THE ABSENCE OF LIEUTENANT OR SERGEANT, OR AS
 SENIOR OFFICER.  HOWEVER, IN VIEW OF THE PERVASIVE UNION ANIMUS
 EXHIBITED BY CHIEF DIXON, INCLUDING HIS STATEMENT THAT HIS SUCCESSOR AS
 CHIEF WOULD NOT BE A UNION MEMBER AND MR. FULTON'S REFERENCE TO UNION
 MEMBERSHIP AND UNION ACTIVITY IN HIS INTERVIEW OF EACH APPLICANT, I
 CONCLUDE THAT IN SELECTING MR. CORNELIUS, THE ONLY NON-UNION APPLICANT,
 RESPONDENT VIOLATED SECTION 19(A)(2) OF THE ORDER AND THAT ITS ACTIONS
 WERE DESIGNED AND INTENDED TO DISCOURAGE MEMBERSHIP IN A LABOR
 ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
 OR OTHER CONDITIONS OF EMPLOYMENT.  FIRST, CHIEF DIXON HAD STRONGLY
 STATED IN THE PRESENCE OF MOST OFFICERS THAT THE ONLY WAY ANYONE WAS
 GOING TO BE SELECTED FOR A SUPERVISOR'S POSITION IN THE POLICE SECTION
 WAS BY BEING A NON-MEMBER OF THE UNION.  THIS WAS NOT AN ISOLATED REMARK
 AND HAVING BEEN MADE BY A SUPERVISOR ON REPEATED OCCASIONS IN THE COURSE
 OF HIS DUTIES, RESPONDENT IS RESPONSIBLE FOR THE ANTI-UNION CONDUCT OF
 ITS SUPERVISOR.
 
    SECOND, CHIEF DIXON HAD ADVISED MESSRS. RICHARDS AND CORNELIUS TO
 WITHDRAW FROM THE UNION IF THEY WANTED TO HAVE ANY CHANCE FOR HIS JOB
 AND MR. CORNELIUS DID WITHDRAW FROM THE UNION, ALTHOUGH IT IS POSSIBLE
 THAT HE HAD BEGUN THE "PAPERWORK" PRIOR TO CHIEF DIXON'S SPECIFIC ADVICE
 WHEN CHIEF DIXON TOLD MR. CORNELIUS, IN MR. RICHARDS' PRESENCE, THAT HE
 WAS GOING TO LEAVE AND THAT HIS JOB WOULD BE COMING OPEN.
 
    THIRD, MR. CORNELIUS WAS FOURTH IN OVERALL RATINGS.
 
    FOURTH, MR. CORNELIUS, ONLY FOUR TO SIX WEEKS BEFORE HIS SELECTION,
 HAD BEEN INVOLVED IN AN ARREST INCIDENT OF A VA EMPLOYEE WHICH HAD BEGUN
 WITH A TRAFFIC TICKET AND ENDED IN AN ARREST FOR DISORDERLY CONDUCT.
 THE PROPRIETY OF THE ARREST WAS SECONDARY.  IN WEIGHING THE
 QUALIFICATIONS OF APPLICANTS FOR THE POSITION OF CHIEF OF POLICE, THE
 FAILURE OF MR.  FULTON TO GIVE ANY CONSIDERATION TO THE MANNER IN WHICH
 AN APPLICANT HANDLED A TRAFFIC VIOLATION WHICH ESCALATED TO AN ARREST
 FOR DISORDERLY CONDUCT IS STRANGE.  CONTRARY TO MR. FULTON'S TESTIMONY,
 THE RECORD IS CLEAR THAT THIS INCIDENT, WHETHER AS TO THE ARREST
 PROCEDURES, AS STATED BY MR.  CORNELIUS, OR THE BROADER QUESTION OF
 ARREST AUTHORITY OF ALL VA POLICE OFFICER, AS STATED BY MR.  RICHARDS,
 WAS THE SUBJECT OF MORE THAN PASSING ATTENTION.  NEVERTHELESS, WITH NO
 EXPLANATION, MR. FULTON GAVE NO CONSIDERATION TO THE INCIDENT IN HIS
 EVALUATION OF THE APPLICANT.
 
    FIFTH, ONLY A FEW WEEKS PRIOR TO HIS SELECTION, MR. CORNELIUS HAD
 BEEN WRITTEN UP FOR REPORTING LATE.  AGAIN, MR. FULTON GAVE NO
 INDICATION THAT HE CONSIDERED MR.  CORNELIUS' ATTENDANCE RECORD IN HIS
 EVALUATION OF THE APPLICANTS.
 
    SIXTH, MR. FULTON INTERJECTED INTO EACH INTERVIEW PRIOR UNION
 MEMBERSHIP AND ACTIVITY OF THE APPLICANT.
 
    SEVENTH, MR. FULTON ADMITTED THAT CHIEF DIXON HAD STATED TO HIM ON
 SEVERAL OCCASION THAT THEIR PROBLEMS WERE ATTRIBUTABLE TO THE UNION.
 
    EIGHTH, MR. DIXON TOLD MR. RICHARDS HE HAD RECOMMENDED MR.  CORNELIUS
 BECAUSE HE WAS NOT A UNION MEMBER AND REMINDED HIM THAT HE (DIXON) HAD
 TOLD HIM (RICHARDS) THAT THE CHIEF WOULD NOT BE A UNION MEMBER.
 
    CHIEF DIXON HAD TOLD MR. RICHARDS, ON ONE OCCASION WHEN HE TOLD HIM
 THAT HE WOULD NEVER BE PROMOTED AS LONG AS HE WAS ACTIVE IN THE UNION,
 THAT HE KNEW WHAT HE WAS TALKING ABOUT BECAUSE HE TALKED TO PEOPLE EVERY
 DAY.  BY THIS STATEMENT, CHIEF DIXON IMPLIED THAT HIS COMMENTS REFLECTED
 MANAGEMENT POLICY.  MR. FULTON'S REFERENCE TO UNION MEMBERSHIP AND UNION
 ACTIVITY IN EACH INTERVIEW;  HIS SELECTION OF MR. CORNELIUS, THE ONLY
 NON-UNION BARGAINING UNIT APPLICANT, WITHOUT EXPLANATION OF TWO CURRENT
 MATTERS WHICH MIGHT, OR MIGHT NOT, HAVE ADVERSELY IMPACTED ON THE
 SELECTION OF MR. CORNELIUS, NAMELY, THE ARREST INCIDENT AND MR.
 CORNELIUS' ATTENDANCE RECORD;  HIS SUMMARY REJECTION, BY CONTRAST, OF
 MR. CLEM'S SUPERVISORY EXPERIENCE AS NOT RECENT AND MR. RICHARDS'
 SUPERVISORY EXPERIENCE AS HAVING BEEN IN CONSTRUCTION;  HIS INITIAL
 DENIAL AT THE HEARING OF KNOWLEDGE OF THE ARREST INCIDENT AND HIS
 SUBSEQUENT DISMISSAL OF THE MATTER IN HIS TESTIMONY AS HAVING BEEN OF NO
 CONSEQUENCE, HAVING INVOLVED PUSHING WHICH HE LEARNED FROM THE REPORT OF
 THE INCIDENT, WHEREAS THE RECORD SHOWS THAT THE INCIDENT HAD BEEN A
 MAJOR SUBJECT OF DISCUSSION INVOLVING OTHER OFFICIALS OF RESPONDENT AND
 A REPEATED REFERENCE IN HIS INTERVIEW WITH MR. RICHARDS, ALL IMPLY TACIT
 APPROVAL AND PERPETUATION OF THE ANTI-UNION STATEMENTS OF CHIEF DIXON
 AND DEMONSTRATE A CONSISTENT PATTERN AND DESIGN INTENDED TO
 DISCRIMINATORILY EXCLUDE SELECTION OF UNION MEMBERS AS CHIEF.  I
 CONCLUDE THAT RESPONDENT BY SUCH CONDUCT DID DISCRIMINATE AGAINST
 APPLICANTS BECAUSE OF UNION MEMBERSHIP AND UNION ACTIVITY IN VIOLATION
 OF SECTION 19(A)(2) OF THE ORDER:  CF. INTERNATIONAL ASSOCIATION OF
 MACHINISTS, TOOL AND DIE MAKERS LODGE NO. 35 V. NATIONAL LABOR RELATIONS
 BOARD, 311 U.S. 72 (1944);  H.J. HEINZ CO. V. NATIONAL LABOR RELATIONS
 BOARD, 311 U.S. 514 (1941);  NATIONAL LABOR RELATIONS BOARD V. LINK-BELT
 CO., 311 U.S. 584 (1941);  NATIONAL LABOR RELATIONS BOARD V. LASALLE
 STEEL CO., 178 F.2D 822 (7TH CIR.  1949), CERT. DENIED, 339 U.S. 963
 (1950);  NLRB V. SCHILL STEEL PRODUCTS, INC., 480 F.2D 586 (5TH CIR.
 1973);  NORTH ELECTRIC MFG. CO., 84 NLRB 136, 24 LRRM 1221 (1949).
 
                             RECOMMENDED ORDER
 
    PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED,
 SECTION 203.26(B) OF THE REGULATIONS, 29 C.F.R. SECTION 203.26(B), AND
 SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS, 5 C.F.R. SECTION
 2400.2, FED. REG., VOL. 44, NO. 1, JANUARY 2, 1979, THE AUTHORITY HEREBY
 ORDERS THAT THE VETERANS ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY,
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFERRING, IN THE COURSE OF ANY INTERVIEWS FOR PROMOTION, TO ANY
 APPLICANT'S OR OTHER EMPLOYEE'S MEMBERSHIP IN THE NATIONAL ASSOCIATION
 OF GOVERNMENT EMPLOYEES, TO ANY ACTIVITY ON BEHALF OF THE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES OR ANY LOCAL THEROF, INCLUDING LOCAL
 R5-185 OR LOCAL R5-160.
 
    (B) ENCOURAGING OR DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY
 DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
 CONDITIONS OF EMPLOYMENT.
 
    (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED, OR IN ANY LIKE OR RELATED MANNER ENCOURAGING OR
 DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN
 REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT
 IN VIOLATION OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND PROVISIONS OF THE ORDER:
 
    (A) WITHDRAW, CANCEL AND RESCIND THE SELECTION FOR, AND PROMOTION TO
 THE POSITION OF, SUPERVISORY POLICE OFFICER, COMMONLY KNOWN AS CHIEF OF
 POLICE, OF MR. BURL CORNELIUS.
 
    (B) RE-POST AND RE-ADVERTISE THE POSITION OF SUPERVISORY POLICE
 OFFICER, GS-0830, UNDER APPROPRIATE ESTABLISHED PROCEDURES, INSURING,
 HOWEVER THAT:  I) ELIGIBILITY AND/OR QUALIFICATIONS ARE NOT MADE MORE
 RESTRICTIVE THAN THOSE SET FORTH IN THE MARCH, 1978, PLACEMENT NOTICE
 NO. 17;  AND II) THAT MR. BURL CORNELIUS BE GIVEN NO CREDIT FOR
 SUPERVISORY EXPERIENCE GAINED IN THE POSITION OF SUPERVISORY POLICE
 OFFICER FROM MARCH, 1978.
 
    (C) POST AT ITS FACILITIES AT ITS LEXINGTON, KENTUCKY, MEDICAL
 CENTER, AND SPECIFICALLY AT BOTH THE LEESTOWN DRIVE FACILITY AND THE
 COOPER DRIVE FACILITY, 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 HOSPITAL DIRECTOR 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 AT BOTH THE LEESTOWN DRIVE AND COOPER
 DRIVE FACILITIES.  THE HOSPITAL DIRECTOR SHALL TAKE REASONABLE STEPS TO
 INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    (D) 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 B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  23 AUG. 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 REFER, IN THE COURSE OF ANY INTERVIEW FOR PROMOTION, TO
 ANY APPLICANT'S OR OTHER EMPLOYEE'S MEMBERSHIP IN THE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, OR TO ANY ACTIVITY ON BEHALF OF THE
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES OR ANY LOCAL THEREOF,
 INCLUDING LOCAL R5-185 OR LOCAL R5-160.
 
    WE WILL NOT ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
 ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
 OR OTHER CONDITION OF EMPLOYMENT.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED, OR IN ANY LIKE OR RELATED MANNER
 ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
 DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
 CONDITIONS OF EMPLOYMENT IN VIOLATION OF EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    WE WILL WITHDRAW, CANCEL AND RESCIND THE SELECTION FOR, AND PROMOTION
 TO, THE POSITION OF SUPERVISORY POLICE OFFICER, COMMONLY KNOWN AS CHIEF
 OF POLICE, OF MR.  BURL CORNELIUS.
 
    WE WILL RE-POST AND RE-ADVERTISE THE POSITION OF SUPERVISORY POLICE
 OFFICER, GS-0830, UNDER APPROPRIATE ESTABLISHED PROCEDURES AND WE WILL
 INSURE THAT:  I) ELIGIBILITY AND/OR QUALIFICATIONS ARE NOT MADE MORE
 RESTRICTIVE THAN THOSE SET FORTH IN THE MARCH, 1978, PLACEMENT NOTICE
 NO. 17;  AND II) THAT MR. BURL CORNELIUS RECEIVES NO CREDIT FOR
 SUPERVISORY EXPERIENCE GAINED IN THE POSITION OF SUPERVISORY POLICE
 OFFICER FROM MARCH, 1978.
 
                            AGENCY OF ACTIVITY
 
    DATED . . . BY . . . HOSPITAL DIRECTOR
 
    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
 MATERIALS.
 
    IF ANY EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR
 COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
 WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
 WHOSE ADDRESS IS:  SUITE 540, 1365 PEACHTREE STREET, N.E., ATLANTA,
 GEORGIA 30309.
 
    TODAY, AUGUST 23, 1979, COPIES OF A RECOMMENDED DECISION AND ORDER
 WERE SENT TO THE FOLLOWING:
 
    CERTIFIED MAIL-RETURN RECEIPT REQUESTED
 
    JAMES W. PRESSLER, JR. ESQUIRE
 
    ASSISTANT GENERAL COUNSEL
 
    EDWARD J. GILDEA, ESQUIRE
 
    ASSISTANT GENERAL COUNSEL
 
    NATIONAL ASSOCIATION OF GOVERNMENT
 
    EMPLOYEES
 
    2139 WISCONSIN AVENUE, NW.
 
    WASHINGTON, D.C.  20007
 
    #612669
 
    JAMES KLEIN, ESQUIRE
 
    GENERAL COUNSEL'S OFFICE
 
    VETERANS ADMINISTRATION
 
    810 VERMONT AVENUE, NW.
 
    WASHINGTON, D.C.  20420
 
    #612670
 
    MR. ALAN WHITNEY
 
    EXECUTIVE VICE PRESIDENT
 
    NATIONAL ASSOCIATION OF GOVERNMENT
 
    EMPLOYEES
 
    2139 WISCONSIN AVENUE, NW.
 
    WASHINGTON, D.C.  20007
 
    #612671
 
    REGULAR MAIL
 
    ASSISTANT DIRECTOR, LMR
 
    OFFICE OF PERSONNEL MANAGEMENT
 
    1900 E STREET, NW.
 
    WASHINGTON, D.C.
 
    FLRA
 
    1900 E STREET, NW.
 
    ROOM 7469
 
    WASHINGTON, D.C.  20424
 
    1 CY. EA. REGIONAL DIRECTOR
 
    /1A/ 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, AS 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.
 
    /1/ THE EXHIBITS IN THIS CASE HAVE NOT BEEN RECEIVED BY THIS OFFICE.
 THE TRANSCRIPT WAS RECEIVED BY THIS OFFICE ON MAY 9, 1979, AND THE
 REPORTING COMPANY, HOOVER REPORTING CO., INC., REPRESENTS THAT THE
 EXHIBIT FILES WERE MAILED LATER, UNDER SEPARATE COVER, ON, OR ABOUT MAY
 11, 1979;  HOWEVER, THE EXHIBITS WERE NOT RECEIVED BY OUR DOCKET
 SECTION, NOR BY THE UNDERSIGNED, AND ALL EFFORTS TO LOCATE THE EXHIBITS
 HAVE, TO DATE, BEEN UNPRODUCTIVE.  WHILE THE ABSENCE OF THE EXHIBITS,
 RECEIVED INTO EVIDENCE, IS GREATLY REGRETTED, SAID EXHIBITS ARE NOT
 NECESSARY FOR DECISION OF ANY ISSUE INVOLVED HEREIN, INASMUCH AS THE
 TESTIMONY OF THE WITNESSES PROVIDES, FULLY, THE BASIS FOR DECISION OF
 ALL ISSUES.  MOREOVER, THE CONTENT OF EACH EXHIBIT IS ADEQUATELY SET
 FORTH ON THE RECORD, IN THE TESTIMONY, OR, IN PARTICULAR AS TO THE
 RATINGS OF EMPLOYEES, IN NOTES OF THE UNDERSIGNED MADE AT THE HEARING
 FROM THE EXHIBITS, AS SUCH EXHIBITS PERTAIN TO THE ISSUE INVOLVED.
 ACCORDINGLY, I DEEM IT UNNECESSARY UNDER THE CIRCUMSTANCES TO DELAY
 DECISION PENDING EITHER:  A) FURTHER SEARCH FOR THE EXHIBITS;  OR (B) AN
 EFFORT TO RECONSTITUTE THE EXHIBITS BY OBTAINING SUBSTITUTE COPIES FOR
 THE MISSING ORIGINAL EXHIBITS.  AS NOTED, THE TRANSCRIPT IS FULLY
 ADEQUATE FOR DECISION OF ALL MATTERS HEREIN.  IT IS APPROPRIATE TO LIST
 THE EXHIBITS RECEIVED TOGETHER WITH A DESCRIPTION OF EACH:  (TABLE
 OMITTED)
 
    /2/ BOTH MR. HOSKINS AND MR. MORRIS WOULD HAVE BEEN ELIGIBLE TO BID
 FOR THE POSITION EVEN THOUGH EACH WAS ALREADY AT THE GS-6 LEVEL AND THE
 SELECTION OF EITHER WOULD HAVE MEANT, IMMEDIATELY, ONLY A LATERAL
 PROMOTION.  WHILE EACH MAY HAVE INDICATED HIS DESIRE TO BE CONSIDERED AT
 THE GS-7 OR 8 LEVEL, IN VIEW OF THE ANNOUNCEMENT (GS-6, 7 OR 8) IT SEEMS
 QUESTIONABLE THAT EITHER COULD, PROPERLY, BE "NON-SELECTED" AFTER THE
 FACT WITH NO OPPORTUNITY TO REQUEST SELECTION AT THE GS-6 LEVEL (MR.
 CARPENTER TESTIFIED "I DON'T BELIEVE * * * HE WAS ASKED * * * " (TR.
 157)).  NEVERTHELESS, NEITHER MR. HOSKINS NOR MR. MORRIS WAS A MEMBER OF
 THE BARGAINING UNIT;  MR. HOSKINS WAS CONCEDED TO HAVE BEEN A SUPERVISOR
 AND MR. MORRIS, AS A FIRE INSPECTOR, MAY ALSO HAVE BEEN A SUPERVISOR;
 AND THERE IS NO EVIDENCE THAT THEIR "NON-SELECTION" CONSTITUTED A
 VIOLATION OF THE ORDER. CONSEQUENTLY, ALTHOUGH RESPONDENT'S AMENDMENT