Veterans Administration Hospital, Danville, Illinois (Respondent) and Local 1963, American Federation of Government Employees, AFL-CIO (Charging Party) 



[ v04 p432 ]
04:0432(59)CA
The decision of the Authority follows:


 4 FLRA No. 59
 
 VETERANS ADMINISTRATION HOSPITAL,
 DANVILLE, ILLINOIS
 Respondent
 
 and
 
 LOCAL 1963, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case Nos. 5-CA-58
                                                      5-CA-201
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT RESPONDENT HAD ENGAGED
 IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS, AND
 RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LABOR
 JUDGE'S RECOMMENDED DECISION AND ORDER.  THEREAFTER, THE RESPONDENT
 FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
 AND ORDER.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), 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 CASES, INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY
 HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
 RECOMMENDATIONS AS MODIFIED BELOW.
 
    THE AUTHORITY FINDS, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE,
 THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) BY ITS
 UNILATERAL SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN IT
 AND THE CHARGING PARTY.  IN THIS REGARD, THE AUTHORITY AGREES THAT
 RESPONDENT CLEARLY AND PATENTLY BREACHED THE AGREEMENT BY ITS ACTIONS OF
 REQUIRING MEDICAL DOCUMENTATION TO SUPPORT ONE DAY OF SICK LEAVE WITHOUT
 FIRST COUNSELING THE INDIVIDUAL EMPLOYEE;  ITS REFUSAL TO PROCESS
 GRIEVANCES;  AND ITS REFUSAL TO PROCESS GRIEVANCES TO ARBITRATION
 PURSUANT TO THE TERMS OF ITS AGREEMENT WITH THE CHARGING PARTY.
 HOWEVER, THE AUTHORITY FINDS, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE,
 THAT THE RESPONDENT DID NOT VIOLATE THE STATUTE BY ITS ACTION IN
 CONDUCTING UNILATERAL INQUIRIES OR INVESTIGATIONS OF MATTERS INVOLVING
 UNIT EMPLOYEES CONTRARY TO THE TERMS OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.  IN THIS REGARD, THE AUTHORITY NOTES THAT THIS
 LATTER CONDUCT OF RESPONDENT WAS NOT ALLEGED IN THE COMPLAINT AS
 VIOLATIVE OF THE STATUTE.
 
    IN REACHING ITS CONCLUSIONS HEREIN, THE AUTHORITY WISHES TO EMPHASIZE
 THAT THE RESOLUTION OF THE ISSUE OF WHETHER OR NOT CERTAIN EMPLOYEES
 ENGAGED IN AN UNLAWFUL WORK STOPPAGE WAS NOT NECESSARY UNDER THE
 CIRCUMSTANCES OF THIS CASE.  THE COMPLAINT HEREIN ALLEGED A VIOLATION OF
 THE RESPONDENT'S DUTY TO THE CHARGING PARTY TO BARGAIN IN GOOD FAITH,
 BUT DID NOT ALLEGE A VIOLATION OF RIGHTS OF ANY EMPLOYEE ALLEGEDLY
 ENGAGED IN A WORK STOPPAGE.  THE ISSUE AS TO WHETHER OR NOT THE CHARGING
 PARTY HAD VIOLATED SECTION 7116(B)(7) OF THE STATUTE WAS THE SUBJECT OF
 AN UNFAIR LABOR PRACTICE CHARGE FILED BY THE RESPONDENT IN CASE NO.
 5-CO-9, WHICH WAS DISMISSED BY THE REGIONAL DIRECTOR AND THE APPEAL OF
 THE DISMISSAL TO THE GENERAL COUNSEL WAS DENIED.  THUS, THERE IS NO
 LAWFUL BASIS ESTABLISHED FOR THE RESPONDENT'S ACTIONS IN RESTRICTING THE
 RIGHTS OF THE CHARGING PARTY UNDER THE TERMS OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY
 RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE AUTHORITY
 HEREBY ORDERS THAT THE VETERANS ADMINISTRATION HOSPITAL, DANVILLE,
 ILLINOIS SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    A.  SUSPENDING ITS COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EXCLUSIVE
 REPRESENTATIVE OF ITS EMPLOYEES.
 
    B.  REFUSING TO ACCEPT AND PROCESS GRIEVANCES, INCLUDING SUBMISSION
 TO ARBITRATION PURSUANT TO THE TERMS OF THE COLLECTIVE BARGAINING
 AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, BASED UPON ITS UNILATERAL SUSPENSION OF THE TERMS AND
 CONDITIONS OF THE COLLECTIVE BARGAINING AGREEMENT.
 
    C.  REQUIRING MEDICAL DOCUMENTATION TO SUPPORT A REQUEST FOR SICK
 LEAVE OF LESS THAN THREE DAYS WITHOUT FIRST COUNSELING THE EMPLOYEE,
 CONTRARY TO THE TERMS OF ITS COLLECTIVE BARGAINING AGREEMENT.
 
    D.  IN ANY LIKE OR RELATED MATTER INTERFERING WITH, RESTRAINING OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    A.  UPON REQUEST OF LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, PROCESS ALL GRIEVANCES REJECTED ON THE BASIS OF THE
 UNLAWFUL SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL
 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INCLUDING,
 WHEN REQUESTED, ARBITRATION OF SUCH GRIEVANCES.
 
    B.  POST AT THE FACILITIES OF THE VETERANS ADMINISTRATION HOSPITAL,
 DANVILLE, ILLINOIS, 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 MEDICAL CENTER
 DIRECTOR, VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS, AND
 SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS IN ALL
 OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE
 DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
 ALTERED, DEFACED, OR COVERED BY ANY 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.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 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 SUSPEND THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL
 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE
 EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES.
 
    WE WILL NOT REFUSE TO ACCEPT AND PROCESS GRIEVANCES, INCLUDING
 SUBMISSION TO ARBITRATION PURSUANT TO THE TERMS OF THE COLLECTIVE
 BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, BASED UPON OUR UNILATERAL SUSPENSION OF THE TERMS
 AND CONDITIONS OF THE COLLECTIVE BARGAINING AGREEMENT.
 
    WE WILL NOT REQUIRE MEDICAL DOCUMENTATION TO SUPPORT A REQUEST FOR
 SICK LEAVE OF LESS THAN THREE DAYS WITHOUT FIRST COUNSELING THE
 EMPLOYEE, CONTRARY TO THE TERMS OF OUR COLLECTIVE BARGAINING AGREEMENT.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    WE WILL, UPON REQUEST OF LOCAL 1963, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, PROCESS ALL GRIEVANCES REJECTED ON THE
 BASIS OF THE UNLAWFUL SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT
 WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 INCLUDING, WHEN REQUESTED, ARBITRATION OF SUCH GRIEVANCES.
 
                           (AGENCY OR ACTIVITY)
 
    DATE:  . . .  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:  ROOM 1638, DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN
 STREET, CHICAGO, ILLINOIS, 60604, AND WHOSE PHONE NUMBER IS (312)
 353-6746.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    JAMES E. ADAMS AND
    CLAIRE R. MORRISON, ESQUIRES
    OFFICE OF THE GENERAL COUNSEL
    VETERANS' ADMINISTRATION
    WASHINGTON,D.C. 20420
                            FOR THE RESPONDENT
 
    GREGORY MIKSA AND
    BRENDA ROBINSON, ESQUIRES
    FEDERAL LABOR RELATIONS AUTHORITY
    ROOM 1638
    219 SOUTH DEARBORN STREET
    CHICAGO, ILLINOIS 60604
                          FOR THE GENERAL COUNSEL
 
    MARC ROTH, ESQUIRE
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
    1325 MASSACHUSETTS AVENUE, N.W.
    WASHINGTON, D.C.  20005
                               FOR THE UNION
 
    BEFORE:  ELI NASH, JR.
                         ADMINISTRATIVE LAW JUDGE
 
                                               CASE NOS. 5-CA-58,
                                                         5-CA-201
 
                            DECISION AND ORDER
 
    THESE PROCEEDINGS AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
 7101, ET SEQ., AND THE INTERIM RULES AND REGULATIONS ISSUED THEREUNDER,
 FED. REG. VOL. 44, NO. 147, JULY 30, 1979, 5 C.F.R.  CHAPTER XIV, PART
 2411, ET SEQ.
 
    THE INSTANT MATTERS WERE INITIATED BY CHARGES FILED ON APRIL 12, 1979
 AND AUGUST 1, 1979, RESPECTIVELY.  THE AUGUST 1, 1979 CHARGE WAS AMENDED
 ON AUGUST 13, 1979.  THESE CASES WERE CONSOLIDATED AND COMPLAINT AND
 NOTICE OF HEARING ISSUED ON SEPTEMBER 6, 1979 ALLEGING A VIOLATION OF 5
 U.S.C. 7116(A)(1) AND (5) BASED ON THE ALLEGED REFUSAL TO PROCESS A
 GRIEVANCE OVER REPRIMANDS OF EMPLOYEES AND FAILING AND REFUSING TO
 ENGAGE IN ARBITRATION OVER THE SAME GRIEVANCE.
 
    A HEARING WAS HELD ON NOVEMBER 6 AND 7, 1979, IN DANVILLE, ILLINOIS.
 ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE
 WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES HEREIN.  ALL
 PARTIES SUBMITTED TIMELY BRIEFS IN THE MATTER.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
 CONCLUSIONS.
 
                        A.  CONTRACTUAL BACKGROUND
 
    LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 (HEREINAFTER REFERRED TO AS THE "UNION") IS THE RECOGNIZED EXCLUSIVE
 BARGAINING REPRESENTATIVE OF OVER 1200 NON-PROFESSIONAL EMPLOYEES AT THE
 FACILITY MAINTAINED BY THE VETERANS ADMINISTRATION MEDICAL CENTER,
 DANVILLE, ILLINOIS (HEREINAFTER REFERRED TO AS THE "RESPONDENT").
 
    ON JULY 11, 1977, THE RESPONDENT ENTERED INTO A COLLECTIVE BARGAINING
 AGREEMENT WITH THE UNION RECOGNIZING IT AS THE EXCLUSIVE BARGAINING
 REPRESENTATIVE FOR ALL EMPLOYEES EMPLOYED BY THE RESPONDENT, BUT
 EXCLUDING ALL PROFESSIONAL EMPLOYEES, ALL SUPERVISORS, ALL MANAGEMENT
 OFFICIALS, AND ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
 THAN A PURELY CLERICAL CAPACITY.  THE AGREEMENT WAS EFFECTIVE FOR A
 PERIOD OF 2 YEARS FROM THE DATE OF APPROVAL SUBJECT TO AUTOMATIC RENEWAL
 ABSENT TERMINATION BY EITHER PARTY AND WAS AT ALL TIMES MATERIAL HEREIN
 IN EFFECT BETWEEN THE PARTIES.
 
    ARTICLE 26-2 OF THE AGREEMENT PROVIDES:
 
    BEFORE REQUIRING MEDICAL EVIDENCE FOR SICK LEAVE OF THREE DAYS OR
 LESS, SUPERVISORS WILL
 
    COUNSEL EMPLOYEES REGARDING SICK LEAVE USAGE ON AT LEAST ONE OCCASION
 . . . .
 
    ARTICLE 20-1 PROVIDES FOR INCORPORATING BY REFERENCES CERTAIN
 PROVISIONS OF VETERANS ADMINISTRATION MANUAL MP-5 INTO THE SICK LEAVE
 PROVISION OF THE AGREEMENT AND ARTICLE 20, ENTITLED "THE NEGOTIATED
 GRIEVANCE PROCEDURE," SECTION 1 PROVIDES AS FOLLOWS:
 
    THE PURPOSE OF THIS ARTICLE IS TO PROVIDE FOR A MUTUALLY ACCEPTABLE
 METHOD FOR THE PROMPT
 
    AND EQUITABLE SETTLEMENT OF GRIEVANCES INVOLVING INTERPRETATION,
 APPLICATION, OR VIOLATION OF
 
    THIS AGREEMENT, OR ANY MATTER INVOLVING THE INTERPRETATION OR
 APPLICATION OF AGENCY AND CIVIL
 
    SERVICE POLICIES AND REGULATIONS . . .
 
    FURTHER, ARTICLE 21 OF THE AGREEMENT PROVIDES FOR THE MANDATORY AND
 BINDING ARBITRATION OF GRIEVANCES NOT RESOLVED AT THE INFORMAL STAGE OF
 THE NEGOTIATED GRIEVANCE PROCEDURE ON THE REQUEST OF EITHER PARTY TO THE
 AGREEMENT.
 
    ARTICLE 38 OF THE AGREEMENT READS, IN PERTINENT PART:
 
    GRIEVANCES OVER ADMONISHMENTS AND REPRIMANDS MAY BE PROCESSED AS
 PROVIDED IN THE NEGOTIATED
 
    GRIEVANCES PROCEDURE.
 
    FINALLY, ARTICLE 37-3 READS:
 
    WHENEVER THE HOSPITAL DIRECTOR APPOINTS A COMMITTEE TO CONDUCT AN
 INQUIRY OR INVESTIGATION
 
    INTO AN INCIDENT INVOLVING A UNIT MEMBER, AT LEAST ONE OF THE
 COMMITTEE MEMBERS SHALL BE
 
    SELECTED FROM A PANEL COMPRISED OF UNION OFFICERS AND STEWARDS OF THE
 UNIT.  THE UNION OR
 
    HOSPITAL DIRECTOR MAY REQUEST THAT ADDITIONAL NAMES BE ADDED TO THE
 PANEL.
 
                        B.  MARCH 28, 1979 INCIDENT
 
    ON MARCH 28, 1979 /1/ APPROXIMATELY 35 HOUSEKEEPING EMPLOYEES OUT OF
 A WORK FORCE OF ABOUT 75 WERE ABSENT FROM WORK.  RESPONDENT AFTER MAKING
 A UNILATERAL INVESTIGATION OF THE HIGH ABSENTEE RATE DETERMINED THAT THE
 ABSENCES OF THIS UNUSUALLY LARGE NUMBER OF BUILDING MANAGEMENT SERVICE
 EMPLOYEES SIGNIFIED SOMETHING OTHER THAN LEGITIMATE LEAVE UTILIZATION.
 FOLLOWING THIS DETERMINATION, CHARLES HOWELL, RESPONDENT'S
 REPRESENTATIVE, HELPED IN TELEPHONING AND DELIVERING THE FOLLOWING
 MESSAGE PREPARED BY THE HOSPITAL DIRECTOR, S. H. BIRDZELL TO THE HOMES
 OF EMPLOYEES WHO WERE ON LEAVE AT THE TIME:
 
    AN USUALLY LARGE NUMBER OF BUILDING MANAGEMENT SERVICE EMPLOYEES HAVE
 NOTIFIED THEIR
 
    SUPERVISORS THAT THEY WERE UNABLE TO REPORT TO WORK ON WEDNESDAY,
 MARCH 28, 1979, BECAUSE OF
 
    ILLNESS.  THIS APPEARS TO SUPPORT AN EARLIER RUMOR THAT EMPLOYEES OF
 THIS SERVICE MIGHT
 
    PARTICIPATE IN A SICK OUT TO PROTEST A RECENT SELECTION MADE UNDER
 THE MERIT PROMOTION PLAN.
 
    EMPLOYEES ARE REMINDED THAT THERE ARE VERY STRICT PROHIBITIONS
 AGAINST FEDERAL EMPLOYEES
 
    PARTICIPATING IN ANY STRIKE OR WORK STOPPAGE AGAINST THE GOVERNMENT.
 TITLE V, U.S. CODE,
 
    PROVIDES THAT AN INDIVIDUAL MAY NOT ACCEPT, OR HOLD A POSITION IN THE
 GOVERNMENT OF THE UNITED
 
    STATES IF HE PARTICIPATES IN A STRIKE AGAINST THE GOVERNMENT.  TITLE
 XVIII, U.S. CODE,
 
    PROVIDES FOR A FINE OF NOT MORE THAN $1,000, OR IMPRISONMENT OF NOT
 MORE THAN ONE YEAR, OR
 
    BOTH, FOR PARTICIPATION IN STRIKE ACTIVITIES.
 
    YOU ARE HEREBY NOTIFIED THAT APPROVAL OF YOUR TELEPHONE REQUESTS FOR
 SICK LEAVE FOR MARCH
 
    28, 1979, IS BEING WITHHELD UNTIL SUCH TIME AS YOU FURNISH
 SATISFACTORY MEDICAL EVIDENCE OF
 
    YOUR NEED FOR SICK LEAVE FOR THE PERIOD OF YOUR ABSENCE.  I STRONGLY
 SUGGEST THAT YOU RETURN
 
    TO WORK ON YOUR NEXT SCHEDULED TOUR IF AT ALL POSSIBLE.  YOU SHOULD
 BE PREPARED TO PRESENT
 
    SATISFACTORY MEDICAL EVIDENCE OF YOUR INCAPACITATION BEFORE A
 DETERMINATION CAN BE MADE
 
    REGARDING YOUR REQUEST FOR SICK LEAVE.  YOU SHOULD BE AWARE THAT
 MANAGEMENT CONSIDERS ANY
 
    CONCERTED ACTIVITIES, SUCH AS A SICK OUT, TO BE A VERY GRAVE MATTER.
 
    THE RECORD REVEALED NO EVIDENCE THAT ANY OF RESPONDENT'S FIRST
 SUPERVISORS CONTACTED THE AFFECTED EMPLOYEES FOR COUNSELLING ON MARCH 28
 OR THAT THEY FOLLOWED ANY PROCEDURE OTHER THAN TO ROUTINELY RECORD THE
 FACT THAT THEY HAD BEEN CONTACTED BY AN EMPLOYEE FOR LEAVE, AS WAS THE
 NORMAL PRACTICE.  THUS, IT APPEARS THAT THE LEAVE WHEN INITIALLY
 REQUESTED WAS GRANTED IN THE NORMAL COURSE OF BUSINESS AND WITHOUT
 COUNSELLING BY ANY SUPERVISORS WHO WOULD GENERALLY BE RESPONSIBLE FOR
 SUCH ACTION EVEN IF THE EMPLOYEE HAD BEEN REQUESTED TO PRODUCE MEDICAL
 DOCUMENTATION UPON RETURN TO WORK.
 
    ON THE SAME DAY, JAMES MONROE, UNION CHIEF STEWARD, INITIATED A UNION
 GRIEVANCE UNDER THE AGREEMENT CITING VIOLATIONS OF THE VETERANS
 ADMINISTRATION MANUAL, MP-5, AND CIVIL SERVICE COMMISSION (NOW OFFICE OF
 PERSONNEL MANAGEMENT, OPM), REGULATIONS PERTAINING TO SICK LEAVE WHICH
 ARE INCORPORATED BY REFERENCE INTO THE AGREEMENT.  THE GRIEVANCE
 REQUESTED THE GRANT OF SICK LEAVE REQUESTS "WITH NO HARRASSMENT." MR.
 MONROE WAS INITIALLY ADVISED BY MR. BRADLEY CONNERS, RESPONDENTS
 ASSISTANT CHIEF OF PERSONNEL THAT THE MATTER COVERED BY THIS GRIEVANCE
 WAS "NOT A GRIEVABLE MATTER DUE TO THE FACT THAT THERE WAS . . . A WORK
 STOPPAGE."
 
                    C.  EVENTS FOLLOWING MARCH 28, 1979
 
    ABOUT MARCH 29 AND CONTINUING THROUGH APRIL 3, UNION STEWARD GENE
 VANDERPORT ASSISTED BETWEEN NINE AND TWELVE HOUSEKEEPING EMPLOYEES IN
 THEIR PRESENTATION OF MEDICAL DOCUMENTATION TO SUPERVISORS CHARLES
 HOPKINS AND CHARLES HOWELL.  DURING THE DISCUSSIONS WITH HOWELL AND
 HOPKINS, VANDERPORT WAS TOLD SEVERAL TIMES THAT THE CONTRACT WAS
 "SUSPENDED."
 
    ON MARCH 29 CHIEF STEWARD MONROE WAS TOLD BY MR. CONNERS THAT NOT
 ONLY WAS THE MATTER NOT GRIEVABLE BUT THAT THE ABSENT EMPLOYEES "WERE
 NOT ENTITLED TO REPRESENTATION UNDER THE CONTRACT OF THEIR GRIEVANCE."
 SIMILARLY, CONNERS TOLD UNION BUSINESS AGENCY CLARENCE DRAKE THAT THE
 COLLECTIVE BARGAINING AGREEMENT WAS "NULL AND VOID." CONNERS DENIES
 HAVING MADE SUCH STATEMENTS ALTHOUGH HE DID ON JUNE 22 PROVIDE A
 STATEMENT TO A FEDERAL LABOR RELATIONS AUTHORITY INVESTIGATOR CONFIRMING
 THAT RESPONDENT, ON THE ADVICE OF ITS CENTRAL OFFICE, STATED THAT THE
 AGREEMENT WAS SUSPENDED.  IN ALL THE CIRCUMSTANCES, THE TESTIMONY OF
 UNION REPRESENTATIVES THAT THEY WERE TOLD THAT THE CONTRACT WAS
 SUSPENDED IS CREDITED.
 
    AFTER SEVERAL REPRESENTATIONS BY RESPONDENT THAT THE AGREEMENT WAS
 "NULL AND VOID" OR "SUSPENDED" THE UNION ON APRIL 6 FILED AN UNFAIR
 LABOR PRACTICE CHARGE ALLEGING IN ESSENCE THAT RESPONDENT HAD PATENTLY
 AND OPENLY BREACHED THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE
 PARTIES.  THEREAFTER, ON APRIL 6 THE PROCESSING OF THE MARCH 28
 GRIEVANCE WAS DISCONTINUED AFTER AN ATTEMPT TO ELEVATE IT TO STEP 3 OF
 THE CONTRACTUAL GRIEVANCE PROCEDURE.
 
    AROUND APRIL 10 STEWARD VANDERPORT AGAIN ACCOMPANIED THE NINE TO
 TWELVE HOUSEKEEPING EMPLOYEES, WHO HAD PREVIOUSLY BEEN REQUESTED TO
 PRODUCE MEDICAL DOCUMENTATION FOR THE MARCH 28 ABSENCES, TO MEETINGS
 WITH SUPERVISOR HOPKINS.  AT THESE MEETINGS THE EMPLOYEES WERE GIVEN
 REPRIMANDS CONCERNING THEIR USE OF LEAVE OF MARCH 28 AND TOLD THAT IT
 WAS RESPONDENT'S POSITION THAT THE CONTRACT WAS SUSPENDED.  THEREAFTER,
 ON APRIL 16, THE UNION INITIATED A SECOND CONTRACTUAL GRIEVANCE
 CONCERNING CONTRACT VIOLATIONS RESULTING FROM THE REPRIMANDS OF
 HOUSEKEEPING EMPLOYEES.
 
    DURING A SECOND STEP MEETING CONCERNING THE APRIL 16 GRIEVANCE
 CONCERNING THE REPRIMANDS, STEWARD VANDERPORT WAS AGAIN TOLD BY
 SUPERVISOR HOPKINS THAT THE CONTRACT WAS SUSPENDED.  HOPKINS WRITTEN
 REPLY TO THE APRIL 16 GRIEVANCE STATES, IN PART:
 
    THE FACT THAT AN ILLEGAL WORK STOPPAGE OCCURRED ON MARCH 28 STRIPS
 PARTICIPANTS IN THAT
 
    WORK STOPPAGE OF THE BENEFITS AND PROTECTION OF LAW AND OF THE
 NEGOTIATED AGREEMENT
 
    ALIKE.  ACCORDINGLY, THE EMPLOYEES INVOLVED HAVE NO BENEFIT OF
 PURSUING A GRIEVANCE UNDER THE
 
    AGREEMENT CONCERNING MATTERS RESULTING FROM THE ILLEGAL WORK
 STOPPAGE.
 
    AGAIN, AT A THIRD STEP MEETING CONCERNING THE APRIL 16 GRIEVANCE,
 STEWARDS MONROE AND VANDERPORT WERE TOLD BY ASSISTANT PERSONNEL CHIEF
 CONNERS THAT THE UNION'S CONTRACT WAS SUSPENDED.  HOSPITAL DIRECTOR
 BIRDZELL ALSO ATTENDED THIS MEETING AND, ALTHOUGH TESTIFYING AT THE
 HEARING, DID NOT DENY THAT THE UNION WAS TOLD THAT THE AGREEMENT WAS
 SUSPENDED.  THE APRIL 16 GRIEVANCE WAS REJECTED BY LETTER DATED MAY 10
 WHICH STATED, " . . . THE EMPLOYEES INVOLVED HAVE NO BENEFIT OF PURSUING
 A GRIEVANCE UNDER THE AGREEMENT ON MATTERS RESULTING FROM THE ILLEGAL
 RANK STOPPAGE." THE LETTER ALSO RAISED THE ISSUE APPLICABILITY OF
 "SECTION 7116(D) OF THE CIVIL SERVICE REFORM ACT" SINCE, AS IT
 CONCLUDED, THE SAME ISSUE HAD ALREADY BEEN RAISED AS AN UNFAIR LABOR
 PRACTICE.
 
    SUBSEQUENTLY, THE MAY 10 REQUEST FOR ARBITRATION WAS DENIED ON MAY 21
 BY MEDICAL CENTER DIRECTOR BIRDZELL BECAUSE "THE ISSUE DOES NOT FALL
 WITHIN THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE" AND THAT THE
 RAISING OF THIS SAME ISSUE WAS "PRECLUDED FROM BEING CONSIDERED UNDER
 THE NEGOTIATED GRIEVANCE PROCEDURE BY PROVISIONS OF SEC. 7116(D)."
 FOLLOWING THIS REJECTION, THE UNION ON AUGUST 1 FILED A SECOND UNFAIR
 LABOR PRACTICE CHARGE.
 
    RESPONDENT THEREAFTER FILED AN UNFAIR LABOR PRACTICE CHARGE AGAINST
 THE UNION ALLEGING A CONCERTED WITHHOLDING OF SERVICES AS A RESULT OF
 UNION LEADERS REMARKS AND POLICIES UNDER 5 U.S.C. 7116(B)(7), IN CASE
 5-CO-9.  THAT CHARGE WAS DISMISSED BY THE REGIONAL DIRECTOR, FEDERAL
 LABOR RELATIONS AUTHORITY REGION V ON OCTOBER 19 SINCE THERE WAS, IN HIS
 VIEW, "INSUFFICIENT EVIDENCE TO SHOW THAT THE UNION INITIATED,
 INSTIGATED, MAINTAINED OR CONDONED SUCH A WITHHOLDING OF SERVICES."
 
                        DISCUSSION AND CONCLUSIONS
 
    THE BASIC ISSUE IN THIS MATTER IS WHETHER RESPONDENT HAD THE RIGHT TO
 UNILATERALLY SUSPEND ITS COLLECTIVE BARGAINING AGREEMENT WITH THE UNION
 AND REFUSE TO PROCESS A GRIEVANCE OR TO ARBITRATE A GRIEVANCE BASED ON
 ITS OWN UNILATERAL INVESTIGATION AND BELIEF THAT AN ILLEGAL WORK
 STOPPAGE HAD OCCURRED AT ITS HOSPITAL ON MARCH 28.  RESPONDENT CONTENDS
 THAT IT GATHERED PERSUASIVE EVIDENCE THAT THE MARCH 28 ABSENCES BY
 HOUSEKEEPING EMPLOYEES CONSTITUTED A STRIKE AND THAT ITS ACTIONS
 IMPLEMENTED THE FEDERAL LAW THAT ANY EMPLOYEE WHO PARTICIPATES IN A
 STRIKE NO LONGER ENJOYS THE PROTECTION OF THE LAW.  IN THIS REGARD,
 RESPONDENT ARGUES THAT FINDING AN UNFAIR LABOR PRACTICE IN THIS
 SITUATION WOULD INTERFERE WITH AN AGENCY'S STATUTORY MISSION TO INSURE
 CONTINUITY OF SERVICES WITHOUT BEING COMPELLED UNDER CONTRACT PROVISIONS
 TO ACT ARBITRARILY AND TO PREVENT EMPLOYEES THROUGHOUT THE GOVERNMENT
 FROM ANY JUSTIFICATION FOR USING STRIKING AS A METHOD OF CONTESTING
 MANAGEMENT DECISIONS, OR BRINGING PRESSURE AGAINST MANAGEMENT TO CHANGE
 ITS POLICIES.
 
    WITH REGARD TO THE FORMER CONTENTION, IT IS TRUE THAT THE STATUTE
 CONTEMPLATES UNDER 5 U.S.C. 7103(A)(2) AND (4) THAT AN EMPLOYEE MAY LOSE
 HIS "EMPLOYEE" STATUS FOR PARTICIPATION IN A STRIKE IN VIOLATION OF 5
 U.S.C. 7311.  HOWEVER, READING THE WORDS OF SEC. 7103(A)(2) AND (4) EVEN
 IN COMPLETE ISOLATION WOULD NOT LEAD ONE TO BELIEVE THAT AN AGENCY OR
 ACTIVITY OF THE GOVERNMENT COULD TAKE ANY UNILATERAL ACTION TO STRIP
 EMPLOYEES OF THEIR STATUS.  THESE SECTIONS EXCLUDE FROM EMPLOYEES STATUS
 "ANY PERSON WHO PARTICIPATES IN A STRIKE IN VIOLATION OF SECTION 7311 OR
 ANY LABOR ORGANIZATION "WHICH PARTICIPATES IN A STRIKE AGAINST THE
 GOVERNMENT." SECTION 7116(B)(7) MAKES IT AN UNFAIR LABOR PRACTICE FOR A
 UNION TO CALL, OR PARTICIPATE, IN A STRIKE, WORK STOPPAGE, OR SLOWDOWN .
 . . "AND THE STATUTE AND REGULATIONS PROVIDE MACHINERY FOR DETERMINATION
 OF WHETHER SUCH AN UNFAIR LABOR PRACTICES OCCURRED.  THERE ARE, HOWEVER,
 NO PROVISIONS FOR DETERMINING WHETHER INDIVIDUAL EMPLOYEES VIOLATED THE
 PROHIBITION AGAINST STRIKING.  UNFORTUNATELY, THE LEGISLATIVE HISTORY OF
 THE STATUTE SHEDS NO LIGHT ON THIS SUBJECT.  IN ANY EVENT, SEC.
 7103(A)(2) AND (4) DO NOT IN MY VIEW, PROVIDE AGENCIES WITH CARTE
 BLANCHE TO UNILATERALLY STRIP EMPLOYEES OR UNIONS OF ALL TITLE VII
 RIGHTS.  THIS IS NOT TO SAY THAT IF AN ILLEGAL WORK STOPPAGE WERE FOUND
 TO EXIST AN AGENCY COULD NOT TAKE WHATEVER DISCIPLINARY ACTION IT DEEMED
 NECESSARY.  HOWEVER, THE DECLARATION OF SUCH ILLEGALITY IS NOT IN THE
 AGENCY'S HANDS, AND IT ACTS AT ITS PERIL IN TAKING PUNITIVE MEASURES
 BASED ON ITS OWN UNILATERAL INVESTIGATIONS, PARTICULARLY WHERE SUCH
 INVESTIGATIONS ARE IN DEROGATION OF AN EXISTING COLLECTIVE BARGAINING
 AGREEMENT.  A REVIEW OF THE LEGISLATIVE HISTORY OF THE STATUTE REVEALED
 NO EVIDENCE THAT CONGRESS INTENDED TO APPLY A SCATTERGUN APPROACH IN
 DISCIPLINING EMPLOYEES EVEN WHERE ILLEGAL STRIKE SITUATIONS UNDER THE
 STATUTE WERE INVOLVED.  FURTHER, THE ASSISTANT SECRETARY'S DECISION IN
 TENNESSEE VALLEY AUTHORITY, A/SLMR NO. 509, WHERE AN ACTUAL WORK
 STOPPAGE OCCURRED, REFUTES THE NOTION THAT AN AGENCY CAN ACT WITH
 IMPUNITY AS INVESTIGATOR, PROSECUTOR, JUDGE AND JURY UPON THE MERE
 BELIEF THAT A WORK STOPPAGE HAS OCCURRED.  IN FACT, A CLOSE READING OF
 THE TENNESSEE VALLEY DECISION, SUPRA INDICATES THAT THE ASSISTANT
 SECRETARY MIGHT ACTUALLY HAVE DEFERRED TO A DECISION ISSUED PURSUANT TO
 THE PARTIES NEGOTIATED GRIEVANCE PROCEDURE IN CASES ARISING FROM A
 STRIKE WHERE THE PROCEEDINGS HAD MET THE FAIRNESS TEST SET OUR IN
 SPIELBERG MANUFACTURING COMPANY, 112 NLRB 1080.  FURTHERMORE, IN BUFFALO
 FORGE V. UNITED STEELMAKERS OF AMERICA, AFL-CIO, 428 U.S. 397(1976),
 CITED BY RESPONDENT IN ITS BRIEF, THE SUPREME COURT FACED WITH THE ISSUE
 OF WHETHER A SYMPATHY STRIKE CALLED BY THE UNION VIOLATED THE NO-STRIKE
 CLAUSE OF AN AGREEMENT, AND THE APPROPRIATE REMEDIES IF IT DID, ARE
 SUBJECT TO THE AGREED-UPON DISPUTE-SETTLEMENT PROCEDURES OF THE
 CONTRACTS AND ARE ULTIMATELY ISSUES FOR THE ARBITRATOR, STATED THE
 UNMISTAKABLE POLICY OF CONGRESS STATED IN SEC. 203(D) 29 U.S.C. 173(D)
 TO BE:  "FINAL ADJUSTMENT BY A METHOD AGREED UPON BY THE PARTIES IS
 DECLARED TO BE THE DESIRABLE METHOD FOR SETTLEMENT OF GRIEVANCE DISPUTES
 ARISING OVER THE EXISTING COLLECTIVE-BARGAINING AGREEMENT." WHILE THE
 PRIVATE SECTOR PRONOUNCEMENT IS NOT A CLEAR INDICATION THAT SUCH
 DISPUTES SHOULD BE SETTLED BY AGREED UPON METHODS, IT IS CERTAINLY A
 GUIDE.  THUS, WHERE THERE IS BROAD CONTRACTUAL LANGUAGE WHICH REACHES
 THE QUESTION OF WHETHER A WORK STOPPAGE WAS ILLEGAL OR WHETHER
 REPRIMANDS ISSUED ARE ARBITRABLE, SUCH DISPUTES APPEAR TO BE SUBJECT TO
 THE AGREED-UPON DISPUTE SETTLEMENT PROCEDURES CONTAINED IN THE AGREEMENT
 AND WOULD, AS PREVIOUSLY STATED, BY ULTIMATELY AN ISSUE FOR THE
 ARBITRATOR TO DECIDE.  UNITED STATES STEELWORKERS OF AMERICA V. AMERICAN
 MANUFACTURING CO., 363 U.S. 564(1960);  UNITED STEEL WORKERS OF AMERICA
 V. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574(1960);  UNITED
 STEELWORKERS OF AMERICA V.  ENTERPRISE WHEEL & CAR CORP., 363 U.S.
 593(1960).
 
    RESPONDENT STEADFASTLY CONTENDS THAT "THE FACT THAT AN ILLEGAL WORK
 STOPPAGE OCCURRED ON MARCH 28 STRIPS PARTICIPANTS IN THAT WORK STOPPAGE
 OF THE BENEFITS AND PROTECTION OF LAW AND OF THE NEGOTIATED AGREEMENTS
 ALIKE." /2/ ASSUMING ARGUENDO THAT THIS THEORY IS CORRECT AND LAWFULLY
 APPLIED, THE GRIEVANCES OVER RESPONDENTS ALLEGED CONTRACTUAL ACTIONS
 WERE BROUGHT UNDER SECTIONS OF THE AGREEMENT ENTITLING THE UNION TO
 BRING SUCH GRIEVANCES AS THE MANNER AGREED UPON BY THE PARTIES TO SETTLE
 DISPUTES.  BOTH PARTIES CLEARLY HAVE THE RIGHT TO INVOKE THESE PROCESSES
 UNDER THE CONTRACT AND TO DENY THE UNION THE RIGHT TO DEFEND, PROTECT,
 OR ENFORCE ITS RIGHTS UNDER THE NEGOTIATED AGREEMENT IS WITHOUT DOUBT AN
 INTERFERENCE WITH THOSE RIGHTS.
 
    IN ITS BRIEF, RESPONDENT MAINTAINS THAT WHERE ONE TERM OF AN
 AGREEMENT HAS BEEN GIVEN UP BY THE UNION IN EXCHANGE FOR ANOTHER TERM
 GIVEN UP BY MANAGEMENT, THE FAILURE OF THE UNION TO MEET ITS COMMITMENT
 RELIEVES MANAGEMENT OF THE DUTY TO OBSERVE THE QUID PRO QUO AND THAT
 SUCH A UNION PROMISE CAN BE IMPLIED AS A QUID PRO QUO FOR A MANAGEMENT
 CONCESSION.  BUFFALO FORGE CO. V. UNITED STATES STEELWORKERS, SUPRA;
 GATEWAY COAL CO. V. MINE WORKERS, SUPRA;  TEAMSTERS V. LUCAS FLOWER CO.,
 369 U.S. 95(1962).  HOWEVER, THERE IS NO SHOWING THAT WORK STOPPAGE
 ALLEGED HEREIN HAD EITHER THE PURPOSE OR EFFECT OF DENYING OR EVADING AN
 OBLIGATION UNDER THE CONTRACT BY THE UNION.  THE SUPREME COURT HELD IN
 BUFFALO FORGE FN. 10, SUPRA THAT THE CASES CITED FOR THE PROPOSITION
 THAT ASSUMING "THAT A MANDATORY ARBITRATION CLAUSE IMPLIES A COMMITMENT
 NOT TO ENGAGE IN SYMPATHY STRIKES," WERE WRONG.  THUS, STRONGLY
 INDICATING THAT THE QUID PRO QUO WOULD RUN TO THE UNION'S RIGHT NOT TO
 LOSE ITS BARGAIN TO ARBITRATE MATTERS INVOLVING DISPUTES UNDER THE
 CONTRACT.  UNDER SUCH CIRCUMSTANCES, THE RESPONDENTS ARGUMENT SEEMS
 WIDE
 OF THE MARK.
 
    IN COMMUNITY SERVICES ADMINISTRATION, FLRC NO. 76A-149, 5 FLRC
 DECISION 728, 733, AN EXECUTIVE ORDER CASE, THE ASSISTANT SECRETARY
 DEALT WITH THE THRESHOLD QUESTION OF ARBITRABILITY AND THE SCOPE OF
 INQUIRY WAS "NARROWLY RESTRICTED TO THE ISSUES OF WHETHER THE COLLECTIVE
 BARGAINING AGREEMENT BETWEEN THE PARTIES CONTAINS AN ARBITRATION
 PROVISION AND WHETHER THE LABOR DISPUTE FELL WITHIN ITS SCOPE," CITING
 WITH APPROVAL THE STEELWORKERS TRILOGY, SUPRA.  IN THE INSTANT MATTER,
 THE MERITS OF THE DISPUTE APPEAR BEYOND THE SCOPE OF MY REVIEW.  THE
 INQUIRY HEREIN SEEMS LIMITED TO CONSIDERATION OF THE SCOPE AND COVERAGE
 OF THE GRIEVANCE/ARBITRATION CLAUSE IN THE PARTIES' AGREEMENT AND
 CONSIDERING THE SUBSTANTIVE PROVISIONS OF THE AGREEMENT SOLELY TO
 DETERMINE WHETHER THE GRIEVANCE "INVOLVES A MATTER WHICH ARGUABLY
 CONCERNS THE MEANING OR APPLICATION OF THE SUBSTANTIVE PROVISION(S)
 BEING GRIEVED."
 
    ARTICLE 20-1 OF THE AGREEMENT DEFINES A "GRIEVANCE" AS ANY MATTER
 INVOLVING INTERPRETATION, APPLICATION, OR VIOLATION OF THIS AGREEMENT.
 ARTICLE 20-3 EXPRESSLY PROVIDES THAT "THE UNION MAY FILE A GRIEVANCE
 UNDER THIS PROCEDURE." ARTICLE 20-6 /3/ A AND BE DISTINGUISH BETWEEN
 PROCEDURES FOR EMPLOYEE GRIEVANCES AND PROCEDURES FOR UNION GRIEVANCES.
 
    THE UNION FILED TWO SEPARATE GRIEVANCES WITH RESPONDENT.  THE FIRST
 ALLEGED THAT RESPONDENT VIOLATED THE AGREEMENT BY ITS MARCH 28 ACTIONS
 IN REQUIRING IMMEDIATE MEDICAL DOCUMENTATION OF ILLNESSES AND BY
 INVESTIGATING THE INCIDENT WITHOUT UNION PARTICIPATION.  THE SECOND
 FILED ON APRIL 16 ALLEGING THAT RESPONDENT VIOLATED THE AGREEMENT BY
 ISSUING REPRIMANDS ON APRIL 9 AGAINST CERTAIN EMPLOYEES ABSENT ON MARCH
 28.  THE AGREEMENT IN ARTICLE 38 PROVIDES THAT "GRIEVANCES OVER
 ADMONISHMENTS AND REPRIMANDS MAY BE PROCESSED AS PROVIDED IN THE
 NEGOTIATED GRIEVANCE PROCEDURE." THEREFORE, THESE GRIEVANCES ALLEGED IN
 ACCORDANCE WITH ARTICLE 20 OF THE AGREEMENT THAT THE CONTRACT HAD BEEN
 VIOLATED BY RESPONDENT'S ACTIONS AND THE COLLECTIVE-BARGAINING AGREEMENT
 EXPRESSLY PROVIDES THAT EMPLOYEE REPRIMANDS CAN BE PROCESSED BY THE
 UNION UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.  CONSIDERING THE
 STEELWORKERS' TRILOGY, AND COMMUNITY SERVICES ADMINISTRATION CASES,
 SUPRA THE THRESHOLD TEST APPEARS TO HAVE BEEN MET AND INQUIRY INTO
 RESPONDENTS AFFIRMATIVE DEFENSE THAT A WORK STOPPAGE HAD OCCURRED IS NOT
 PROPERLY BEFORE THIS FORUM, BUT RATHER, THE QUESTION BEFORE ME IS
 LIMITED TO WHETHER RESPONDENTS UNILATERAL ACTIONS IN FAILING TO PROCESS
 A GRIEVANCE OR TO ARBITRATE A GRIEVANCE WERE VIOLATIVE OF THE STATUTE.
 
    SINCE THE ISSUE IN THE MATTER IS NARROWLY DRAWN, IT IS NOT NECESSARY
 TO DECIDE IN THIS CASE, AS RESPONDENT'S ARGUMENT SEEMS TO SUGGEST, THAT
 IN NO CIRCUMSTANCES WOULD A STRIKE BY GOVERNMENTAL EMPLOYEES IN
 VIOLATION OF A COLLECTIVE BARGAINING AGREEMENT ENTITLE THE GOVERNMENT TO
 RESCIND OR ABANDON AN ENTIRE CONTRACT OR TO DECLARE ITS PROMISE TO
 PROCESS GRIEVANCES OR ARBITRATE A MATTER FOREVER BARRED OR TO REFUTE
 CLAIMS OF THE COLLECTIVE BARGAINING AGENT.  I DO CONCLUDE THAT UNDER THE
 TERMS OF THE INSTANT AGREEMENT RESPONDENT WAS OBLIGATED TO CONDUCT A
 JOINT INVESTIGATION OF THE EXISTING CLAIMS MADE BY THE UNION BASED ON
 THE TERMS OF ARTICLE 37 AND THAT THERE ARE NO CIRCUMSTANCES ON THIS
 RECORD WHICH JUSTIFY RELIEVING RESPONDENT OF ITS DUTY TO PROCESS
 GRIEVANCES AND TO ARBITRATE CONSEQUENCES OF THE ALLEGED WORK STOPPAGE,
 INTERTWINED AS IT WAS WITH THE UNION'S DENIAL THAT THERE WAS A WORK
 STOPPAGE AND THAT RESPONDENT HAD BREACHED THE COLLECTIVE BARGAINING
 AGREEMENT.  IT IS, THEREFORE, FOUND THAT PROCEEDING THROUGH THE AGREED
 UPON PROCEDURES OF THE CONTRACT WOULD HAVE IN NO WAY PRECLUDED
 RESPONDENT FROM ADHERING TO ITS ENFORCEMENT OF THE CLEAR GOVERNMENT
 POLICY REGARDING STRIKES WHICH IT CLAIMS EXISTS.  SINCE SUCH AVENUES ARE
 OPEN, IT IS MY VIEW, THAT ITS UNILATERAL SUSPENSION OF THE AGREEMENT
 BETWEEN THE PARTIES ON MARCH 28 AND THE REFUSAL THEREAFTER TO PROCESS
 THE MARCH 28 GRIEVANCE OR TO ARBITRATE THE APRIL 16 GRIEVANCE ARE INDEED
 SEPARATE BREACHES OF THAT AGREEMENT AND THAT SUCH ACTIONS CONSTITUTED
 VIOLATIONS OF SECTION 7116(A)(5) AND (1) OF THE STATUTE.
 
    IN ADDITION, RESPONDENT MAINTAINS THAT SEC. 7116(D) BARS THE
 PROCESSING OF THE GRIEVANCES FILED HEREIN IN TWO FORUMS.  THE RECORD
 DISCLOSED THAT EVEN THOUGH THE UNION FILED A CONTRACTUAL GRIEVANCE ON
 MARCH 28 ASSERTING RESPONDENT'S BREACH OF THE AGREEMENT BY DEMANDING
 SICK LEAVE DOCUMENTATION ON MARCH 28 IT WAS NOT CONFRONTED WITH
 RESPONDENT'S ADMISSIONS OF A CLEAR UNILATERAL SUSPENSION OF THE
 AGREEMENT UNTIL MARCH 29 AND 30 BY RESPONDENT'S REPRESENTATIVES CONNERS,
 HOPKINS, AND HOWELL, WHO ADVISED UNION OFFICIALS THAT THE CONTRACT WAS
 "SUSPENDED" AND/OR "NULL AND VOID." ACCORDINGLY, THE UNION FILED ITS
 FIRST UNFAIR LABOR PRACTICE CHARGE IN THIS MATTER ON APRIL 6 ASSERTING
 RESPONDENT'S BREACH OF THE AGREEMENT IN DEMANDING SICK LEAVE
 DOCUMENTATION WITHOUT PRIOR COUNSELLING OF OVER 30 EMPLOYEES INVOLVED.
 THE MARCH 28 GRIEVANCE CANNOT BE REGARDED AS BARRING THE CHARGE IN THE
 INITIAL CASE UNDER SEC. 7116(D) SINCE THE UNION WAS NOT NOTIFIED ITS
 GRIEVANCE WOULD, IN EFFECT, NOT BE CONSIDERED DUE TO THE RESPONDENT'S
 UNILATERAL SUSPENSION OF THE AGREEMENT UNTIL AFTER THE GRIEVANCE WAS
 FILED.  SUCH A CONCLUSION IS SUPPORTED BY PRECEDENT OF THE ASSISTANT
 SECRETARY IN CONSIDERING THE APPLICATION OF FORMER SECTION 19(D) OF
 EXECUTIVE ORDER 11491, AS AMENDED.  IN FEDERAL AVIATION ADMINISTRATION,
 MUSKEGON AIR TRAFFIC CONTROL TOWER, A/SLMRNO. 534, THE ASSISTANT
 SECRETARY RULED THAT A GRIEVANCE UNILATERALLY REJECTED BY THE FAA AS
 "UNTIMELY AFTER IT WAS FILED DID NOT BAR UNDER 19(D) OF THE EXECUTIVE
 ORDER, A SUBSEQUENT UNFAIR LABOR PRACTICE CHARGE AND COMPLAINT OVER
 SIMILAR ISSUES NOT HEARD IN SUBSTANCE BY THE FAA.  FURTHER, NEITHER THE
 MARCH 28 GRIEVANCE NOR THE APRIL 6 CHARGE DEALT WITH THE ISSUES RAISED
 IN THE UNION'S APRIL 16 CONTRACTUAL GRIEVANCE WHICH CONCERNED REPRIMANDS
 OF THE AFFECTED EMPLOYEES IN THE HOUSEKEEPING DIVISION.  ACCORDING TO
 STEWARD VANDERPORT, THESE REPRIMANDS DID NOT BEGIN TO BE IMPLEMENTED
 UNTIL APRIL 10 OR ABOUT FOUR DAYS AFTER THE CHARGE WAS FILED ON APRIL 16
 APPROXIMATELY THIRTEEN DAYS AFTER THE GRIEVANCE OF MARCH 28 WAS FILED.
 THUS, IT IS FACTUALLY IMPOSSIBLE FOR THE APRIL 6 CHARGE AND THE MARCH 28
 GRIEVANCE TO CONSTITUTE BARS TO THE FILING OF THE APRIL 13 GRIEVANCE.
 
    FINALLY, RESPONDENT ARGUES THAT THE UNION FAILED TO FILE A
 GRIEVABILITY/ARBITRABILITY APPEAL WITH THE FEDERAL LABOR RELATIONS
 AUTHORITY OR THE ASSISTANT SECRETARY OF LABOR AFTER HAVING ITS
 ARBITRATION REQUEST UNILATERALLY REJECTED BY RESPONDENT ON MAY 10.  THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, EFFECTIVE JANUARY
 11, 1979, CONTAINS NO PROVISION AUTHORIZING THE FEDERAL LABOR RELATIONS
 AUTHORITY OR THE ASSISTANT SECRETARY OF LABOR, LABOR MANAGEMENT SERVICES
 ADMINISTRATION TO RESOLVE GRIEVABILITY/ARBITRABILITY DISPUTES.  ALTHOUGH
 THE ASSISTANT SECRETARY HAD JURISDICTION TO RESOLVE DISPUTES REGARDING
 GRIEVABILITY AND ARBITRABILITY UNDER THE EXECUTIVE ORDER THIS
 JURISDICTION AUTOMATICALLY EXPIRED ON THE EFFECTIVE DATE OF THE NEW
 STATUTE.  5 U.S.C. 7121(A)(1) DOES REQUIRE, HOWEVER, THAT GRIEVABILITY
 AND ARBITRABILITY DISPUTES BE RESOLVED WITHIN THE NEGOTIATED GRIEVANCE
 PROCEDURE PROCESSES.  SUCH JURISDICTION TO SETTLE GRIEVABILITY AND
 ARBITRABILITY ISSUES NOW RESTS WITH ARBITRATION UNDER THE STATUTE.
 EVIDENCE SUBMITTED BY RESPONDENT TO SHOW THAT THE AUTHORITY CONTINUED TO
 RETAIN JURISDICTION TO HEAR GRIEVABILITY AND ARBITRABILITY APPEALS UNDER
 THE STATUTE DOES NOT ESTABLISH THAT POINT.  IN THIS REGARD THE EVIDENCE
 THAT THE AUTHORITY CONTINUED TO RETAIN JURISDICTION TO HEAR GRIEVABILITY
 AND ARBITRABILITY APPEALS UNDER THE STATUTE STATES THE EXACT OPPOSITE.
 THE "DISMISSAL OF APPLICATION FOR DECISION ON GRIEVABILITY OR
 ARBITRABILITY" AND ISSUED BY THE CHICAGO REGIONAL DIRECTOR STATES AS
 FOLLOWS:
 
    THE APPLICATION HAS NOT BEEN INVESTIGATED.
 
    IT IS NOTED THAT THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (FOOTNOTE DELETED)
 
    DOES NOT PROVIDE FOR DETERMINATION OF GRIEVABILITY OR ARBITRABILITY
 BY THE FEDERAL LABOR
 
    RELATIONS AUTHORITY.
 
    FURTHER, THE DOCUMENT REVEALED THAT THE CHICAGO REGIONAL DIRECTOR OF
 THE AUTHORITY ISSUED THIS DETERMINATION TO, AMONG OTHERS, THE ASSISTANT
 GENERAL COUNSEL OF THE RESPONDENT IN WASHINGTON, D.C. A FULL TEN DAYS
 PRIOR TO RESPONDENT'S UNILATERAL REFUSAL TO ARBITRATE THE UNION'S SECOND
 GRIEVANCE IN THE INSTANT CASE.  RESPONDENT THEREFORE HAD NOTIFICATION BY
 VIRTUE OF THIS DECISION.
 
    THE INCIDENTS WHICH OCCURRED ON AND AFTER MARCH 28 GIVING RISE TO THE
 UNION'S TWO GRIEVANCES IN THIS MATTER AND THE RESPONDENT'S MAY 21
 UNILATERAL REFUSAL TO ARBITRATE THE UNION'S SECOND GRIEVANCE AROSE LONG
 AFTER THE EFFECTIVE DATE OF THE NEW STATUTE AND THE REMOVAL OF THE
 ASSISTANT SECRETARY'S JURISDICTION TO RESOLVE GRIEVABILITY AND
 ARBITRABILITY DISPUTES.  CONSEQUENTLY ARTICLE 20-11 OF THE AGREEMENT,
 WHICH PROVIDED FOR GRIEVABILITY AND ARBITRABILITY APPEALS TO THE
 ASSISTANT SECRETARY OF LABOR AND WHICH THE RESPONDENT ASSERTS THE UNION
 FAILED TO INVOKE AFTER FILING ITS GRIEVANCE, HAD BY THAT TIME, BEEN
 RENDERED MEANINGLESS BY OPERATION OF LAW.
 
    BASED ON THE FOREGOING, IT IS CONCLUDED THAT RESPONDENT'S ACTION IS
 SUSPENDING ITS COLLECTIVE BARGAINING AGREEMENT WITH THE UNION AND BY
 DEMANDING MEDICAL DOCUMENTATION FOR ONE DAY OF SICK LEAVE CONTRARY TO
 THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES AND REFUSING TO
 PROCESS A GRIEVANCE REGARDING THIS MATTER AND BY REFUSING TO ARBITRATE A
 GRIEVANCE CONCERNING REPRIMANDS UNDER THE COLLECTIVE BARGAINING
 AGREEMENT BECAUSE MEDICAL DOCUMENTATION WAS NOT PRESENTED VIOLATED
 SECTION 7116(A)(5) AND 7116(A)(1) OF THE STATUTE.
 
                                   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 VETERAN'S ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) SUSPENDING ITS COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
 
    (B) REFUSING TO PROCESS GRIEVANCES UNDER ITS COLLECTIVE BARGAINING
 AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO.
 
    (C) REQUIRING MEDICAL DOCUMENTATION OF SICK LEAVE OF LESS THAN 3 DAYS
 BASED ON A UNILATERAL DETERMINATION OF MISUSE OF LEAVE, CONTRARY TO THE
 TERMS OF ITS COLLECTIVE BARGAINING AGREEMENT.
 
    (D) REFUSING TO PROCESS GRIEVANCES TO ARBITRATION, BASED ON ITS
 UNILATERAL DETERMINATION THAT ITS COLLECTIVE BARGAINING AGREEMENT WITH
 LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, IS
 SUSPENDED.
 
    (E) CONDUCTING UNILATERAL INQUIRIES OR INVESTIGATIONS OF MATTERS
 INVOLVING UNIT MEMBERS CONTRARY TO THE TERMS OF THE COLLECTIVE
 BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO.
 
    (F) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) UPON THE REQUEST OF LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, PROCESS THE GRIEVANCES RELATED TO THE SUSPENSION OF
 THE COLLECTIVE BARGAINING AGREEMENT BETWEEN VETERANS ADMINISTRATION
 HOSPITAL, DANVILLE, ILLINOIS AND LOCAL 1963, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND THE PROOF OF MEDICAL DOCUMENTATION OF
 SICK LEAVE OF LESS THAN THREE DAYS AND ARBITRATE ALL GRIEVANCES
 PERTAINING TO THE REPRIMANDS OF ALL EMPLOYEES BECAUSE OF THEIR ABSENCES
 FROM WORK ON MARCH 28, 1979.
 
    (B) POST AT THE FACILITIES OF THE VETERANS ADMINISTRATION HOSPITAL,
 DANVILLE, ILLINOIS 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 MEDICAL CENTER
 DIRECTOR, VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS, AND
 SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND ALL
 OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE
 ADMINISTRATOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
 ARE NOT ALTERED, DEFACED, OR COVERED BY ANY 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.
 
                         ELI NASH, JR.
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 19, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 
 
                                APPENDIX A
 
        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 EMPLOYEES OF THE DEPARTMENT OF THE
 
          TREASURY, VETERAN'S ADMINISTRATION HOSPITAL, DANVILLE,
 
                              ILLINOIS THAT:
 
    WE WILL NOT SUSPEND THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL
 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
 
    WE WILL NOT REFUSE TO PROCESS GRIEVANCES UNDER THE COLLECTIVE
 BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO BASED ON A UNILATERAL DETERMINATION THAT THE
 AGREEMENT SHOULD BE SUSPENDED.
 
    WE WILL NOT REQUIRE MEDICAL DOCUMENTATION OF SICK LEAVE OF LESS THAN
 THREE DAYS, CONTRARY TO THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT
 WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
 
    WE WILL NOT REFUSE TO ARBITRATE GRIEVANCES INVOLVING REPRIMANDS
 CONTRARY TO THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL
 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
 
    WE WILL NOT CONDUCT UNILATERAL INVESTIGATIONS OR INQUIRIES OF MATTERS
 CONCERNING UNIT MEMBERS CONTRARY TO THE TERMS OF THE COLLECTIVE
 BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    WE WILL, UPON REQUEST OF LOCAL 1963, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO PROCESS THE GRIEVANCES RELATED TO THE
 SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN LOCAL 1963,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND THE PROOF OF
 MEDICAL DOCUMENTATION OF SICK LEAVE OF LESS THAN THREE DAYS AND
 ARBITRATE ALL GRIEVANCES PERTAINING TO THE REPRIMANDS OF ALL EMPLOYEES
 BECAUSE OF THEIR ABSENCES FROM WORK ON MARCH 28, 1979.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . . BY:  . . . (SIGNATURE)
 
    THIS NOTICE MUST