Veterans Administration Medical Center, Bath, New York (Respondent) and American Federation of Government Employees, AFL-CIO, Local 491 (Labor Organization)

 



[ v04 p563 ]
04:0563(76)CA
The decision of the Authority follows:


 4 FLRA No. 76
 
 VETERANS ADMINISTRATION MEDICAL CENTER
 BATH, NEW YORK
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 491
 Labor Organization
 
                                           Case Nos. 1-CA-112
                                                     1-CA-115
                                                     1-CA-135
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING RECOMMENDING THAT THE UNFAIR
 LABOR PRACTICE COMPLAINT BE DISMISSED IN ITS ENTIRETY.  THE GENERAL
 COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER ACCOMPANIED BY A BRIEF.
 
    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
 CASE, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS AND BRIEF, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NOS. 1-CA-112,
 1-CA-115 AND 1-CA-135 BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    JOHN C. DINOTO, ESQUIRE
                            FOR THE RESPONDENT
 
    PAUL E. STANZLER, ESQUIRE
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  BURTON S. STERNBURG
                         ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
    THIS IS A PROCEEDING UNDER THE FEDERAL LABOR-MANAGEMENT RELATIONS
 STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. SECTION 7101,
 ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG.,
 VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART 2411, ET
 SEQ.
 
    PURSUANT TO A NUMBER OF AMENDED CHARGES FIRST FILED ON AUGUST 1,
 1979, BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 491, (HEREINAFTER CALLED THE CHARGING PARTY OR UNION), A CONSOLIDATED
 COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON DECEMBER 21, 1979, BY THE
 REGIONAL DIRECTOR FOR REGION I, FEDERAL LABOR RELATIONS AUTHORITY,
 BOSTON, MASSACHUSETTS.  THE CONSOLIDATED COMPLAINT /1/ ALLEGES THAT THE
 VETERANS ADMINISTRATION MEDICAL CENTER, BATH, NEW YORK, (HEREINAFTER
 CALLED THE RESPONDENT OR VA), VIOLATED SECTIONS 7116(A)(1), (A)(2),
 (A)(4) AND (A)(5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE, (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS ACTIONS IN
 UNILATERALLY REMOVING WITHOUT PRIOR NOTICE TO THE UNION THREE
 MEMBER-AT-LARGE PHYSICIANS FROM THE CLINICAL EXECUTIVE BOARD BECAUSE OF
 THEIR ACTIONS IN PARTICIPATING IN UNION ACTIVITY AND FILING AN UNFAIR
 LABOR PRACTICE UNDER THE STATUTE.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON MARCH 11, 1980, IN
 BATH, NEW YORK.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD,
 TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
 BEARING ON THE ISSUES HEREIN.  ALL PARTIES SUBMITTED BRIEFS WHICH HAVE
 BEEN DULY CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    THE RESPONDENT OPERATES A MEDICAL FACILITY IN BATH, NEW YORK.  THE
 UNION WAS CERTIFIED AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL
 PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES AT THE RESPONDENT'S BATH,
 NEW YORK FACILITY ON OCTOBER 20, 1977.  THE PARTIES HAVE NOT REACHED
 AGREEMENT ON A COLLECTIVE BARGAINING CONTRACT.
 
    RESPONDENT'S OWN ADMINISTRATIVE MANUAL FOR THE BATH, NEW YORK MEDICAL
 CENTER AND THE VETERANS ADMINISTRATION'S ADMINISTRATIVE MANUAL
 APPLICABLE TO ALL VA HOSPITALS PROVIDE FOR THE ESTABLISHMENT OF A
 CLINICAL EXECUTIVE BOARD (CEB).  ACCORDING TO THE ABOVE MANUALS, IT IS
 THE PURPOSE OF THE CEB TO ASSURE QUALITY CONTROL OF PATIENT CARE
 PROGRAMS THROUGH ASSESSMENT OF ACTIVITIES, REPORTS AND FINDINGS OF ALL
 CLINICAL COMMITTEES.  THE FUNCTIONS OF THE CEB WHICH, ACCORDING TO THE
 RECORD TESTIMONY, DEAL PRIMARILY WITH PATIENT CARE, ARE DESCRIBED IN
 DETAIL IN THE RESPONDENT'S OWN ADMINISTRATIVE MANUAL AS FOLLOWS:  /2/
 
    A.  DEVELOP AND MAINTAIN EFFECTIVE LIAISON BETWEEN MANAGEMENT AND THE
 PROFESSIONAL STAFF.
 
    B.  ASSURE PROPER COORDINATION OF MEDICAL ACTIVITIES.
 
    C.  RECOMMEND THE ASSIGNMENT OF STAFF MEMBERS TO REVIEW PROGRAMS
 INCLUDING
 
    RECORDS.  (MEDICAL CARE EVALUATION).
 
    D.  RECEIVE REPORTS FROM COMMITTEES AND CONDUCT FINAL EVALUATION OF
 PROGRAM REVIEWS.
 
    E.  RECEIVE RECOMMENDATIONS AND FINDINGS WHICH REQUIRE APPROVAL
 AND/OR ACTION.
 
    F.  REVIEW ACTIVITIES OF THE PROFESSIONAL ACCREDITATION FUNCTION TO
 INSURE COMPLIANCE WITH
 
    APPROPRIATE JCAH REQUIREMENTS AND RECOMMENDATIONS.
 
    G.  RECOMMENDS POLICIES AND PROCEDURES INCLUDING QUALITY CONTROL OF
 PATIENT CARE PROGRAMS
 
    TO THE CENTER DIRECTOR.
 
    MANDATORY REVIEW OF THE CLINICAL EXECUTIVE BOARD INCLUDES:
 PROFESSIONAL
 
    ACCREDITATION;  EMPLOYEE ATTITUDES;  MEDICAL RECORDS;  UTILIZATION
 REVIEW;  THERAPEUTIC
 
    AGENTS;  BLOOD SERVICES;  TISSUE REVIEW;  INFECTIONS CONTROL;
 EDUCATION (MEDICAL
 
    AUDIT);  RESEARCH;  MEDICAL LIBRARY;  NURSING HOME INSPECTION;  AND
 VA VOLUNTARY
 
    SERVICE.  RESPECTIVE COMMITTEE CHAIRMAN WILL SUBMIT REPORTS AND/OR
 MINUTES OF MEETINGS TO THE
 
    CHAIRMAN, EXECUTIVE BOARD.
 
    WITH RESPECT TO THE COMPOSITION OF THE CEB, RESPONDENT'S OWN MANUAL
 PROVIDES THAT IT SHALL BE COMPOSED OF THE CHIEF OF STAFF, CHIEF OF
 DENTAL SERVICE, CHIEF OF LABORATORY SERVICE, CHIEF OF MEDICAL SERVICE,
 CHIEF OF OUTPATIENT SERVICE, CHIEF OF RADIOLOGY SERVICE, CHIEF OF
 REHABILITATION MEDICINE SERVICE.  THE CHAIRMAN OF THE CEB IS TO BE THE
 CHIEF OF STAFF.  THE VETERANS ADMINISTRATION'S MANUAL PROVIDES FOR A
 SIMILAR COMPOSITION OF THE CEB WITH THE ADDITION OF ONE OR MORE MEMBERS
 AT LARGE FROM THE MEDICAL STAFF.  /3/
 
    ACCORDING TO THE RECORD, SINCE AT LEAST MAY 3, 1976, AND CONTINUING
 TO AUGUST 1, 1979, WHEN THE CHANGES UNDERLYING THE INSTANT PROCEEDING
 OCCURRED, A NUMBER OF RANK AND FILE PHYSICIANS FROM THE MEDICAL STAFF
 SERVED AS MEMBERS-AT-LARGE ON THE CEB.  AMONG THE PHYSICIANS SERVING IN
 SUCH CAPACITY WERE DOCTORS BIBWAY, HUSAIN, ROMANO AND RUMI.  ACCORDING
 TO THE RECORD, AS A GENERAL RULE, THE RANK AND FILE PHYSICIANS WERE NOT
 FORMERLY APPOINTED TO THE CEB, BUT RATHER RECEIVED NOTICE OF THEIR
 MEMBER-AT-LARGE POSITIONS ON THE CEB THROUGH THE MEDIUM OF THE CEB
 MINUTES WHICH FROM TIME TO TIME INDICATED THEIR RESPECTIVE SELECTIONS.
 
    IN APRIL OF 1979, DOCTOR LEON LEZER SUCCEEDED DOCTOR HAINSWORTH AS
 THE CHIEF OF STAFF OF THE VETERANS ADMINISTRATION MEDICAL CENTER IN
 BATH, NEW YORK.  IN SUCH CAPACITY HE BECAME CHAIRMAN OF THE CEB.
 
    ON JULY 6, 1979, TWELVE OF THE MEDICAL STAFF PHYSICIANS SIGNED AND
 FILED A GRIEVANCE WITH MR. MILTON SALMON, MEDICAL DIRECTOR FOR THE
 MEDICAL CENTER, WHEREIN THEY COMPLAINED ABOUT THE BEHAVIOR OF DOCTOR
 LEZER.  ACCORDING TO THE GRIEVANCE, DR. LEZER'S "ABRUPT MANNERISM,
 THREATENING AND DEMEANING REMARKS TO PHYSICIANS AND TOTAL DICTATORIAL
 ATTITUDE HAS BROUGHT A GREAT DEAL OF CONCERN AND HARASSMENT AND CONSTANT
 PRESSURE UNDER WHICH WE HAVE TO WORK." THE GRIEVANCE WENT ON TO CITE
 SOME SEVEN INSTANCES OF ALTERCATIONS, ETC. BETWEEN DR. LEZER AND THE
 STAFF PHYSICIANS.  THE MEDICAL STAFF PHYSICIANS SENT A FURTHER
 MEMORANDUM TO THE MEDICAL DIRECTOR ON JULY 16, 1979, WHEREIN THEY
 RESPONDED TO DR. LEZER'S MEMORANDUM OF JULY 6, WHICH APPARENTLY WAS SENT
 IN ANSWER TO THEIR ORIGINAL GRIEVANCE.  THE GRIEVANCE WAS NOT FILED
 UNDER ANY CONTRACT GRIEVANCE PROCEDURE NOR WAS IT SPONSORED BY THE
 UNION.
 
    ACCORDING TO DOCTOR LEZER, THE CHANGE IN THE COMPOSITION OF THE CEB
 WAS PROMPTED BY HIS SUCCESSFUL PRIOR EXPERIENCE IN OTHER HOSPITALS
 WHEREIN THE CEB WAS COMPOSED SOLELY OF ALL THE CHIEFS OF THE VARIOUS
 SERVICES.  FURTHER, ACCORDING TO DOCTOR LEZER, HIS EXPERIENCE HAD
 DEMONSTRATED THAT FEWER MEMBERS ON A COMMITTEE RESULTED IN MORE
 EFFECTIVE AND SHORTER MEETINGS.  ADDITIONALLY, HE WAS OF THE OPINION
 THAT SINCE THE CEB WAS PRIMARILY INVOLVED IN PATIENT CARE, THE CHIEFS OF
 NURSING AND SOCIAL WORK SERVICES WERE A NECESSARY ADDITION TO THE CEB.
 UNDER THE NEW PROCEDURE, RANK AND FILE PHYSICIANS COULD MAKE THEIR
 SUGGESTIONS FOR MEDICAL CARE TO THEIR RESPECTIVE CHIEFS AT THEIR
 SCHEDULED MONTHLY MEETINGS.  THE CHIEFS, IN TURN, WOULD THEN PRESENT
 THEIR STAFF'S RECOMMENDATIONS TO THE CEB.  NO SUGGESTION FROM A CHIEF OF
 ANY SERVICE WOULD BE DISCUSSED BY THE CEB UNLESS IT HAD BEEN FIRST
 DISCUSSED WITH THE CHIEF'S STAFF AT MONTHLY MEETINGS.  FINALLY,
 ACCORDING TO DOCTOR LEZER, WHOSE TESTIMONY IS SUPPORTED IN PERTINENT
 PART BY MR. SALMON, HE HAD DISCUSSED THE CHANGE IN THE COMPOSITION OF
 THE CEB AT AN EARLIER DATE WITH MR. SALMON AND HAD ALSO INDICATED AT AN
 EARLIER CEB MEETING HIS INTENTION TO CHANGE THE COMPOSITION OF THE CEB.
 DOCTOR LEZER DENIED THAT THE GRIEVANCE OF THE STAFF PHYSICIANS OR DOCTOR
 ALIKE'S UNFAIR LABOR PRACTICE PLAYED ANY PART HIS DECISION TO CHANGE THE
 COMPOSITION OF THE CEB.
 
    DURING SEPTEMBER OF 1979, MR. SALMON MET WITH UNION PRESIDENT JOSEPH
 AND UNION NATIONAL REPRESENTATIVE LIVERMORE.  DURING THE COURSE OF THE
 MEETING, MR.  SALMON COMPLAINED ABOUT UNION REPRESENTATIVE REVEREND
 GUNTEN AND HIS ACTIVITIES WITH RESPECT TO STIRRING UP PROBLEMS OR
 GRIEVANCES IN THE EEO AREA.  ACCORDING TO MR. JOSEPH, MR. SALMON STATED
 THAT IF REVEREND GUNTON CONTINUED HIS ACTIVITIES IN THE AFOREMENTIONED
 REGARD HE WOULD BE FIRED.  MR. SALMON ACKNOWLEDGES THE CONVERSATION BUT
 DENIED THAT HE THREATENED TO FIRE REVEREND GUNTON.  ACCORDING TO MR.
 SALMON, HE MERELY SAID THAT "THESE CONTINUING COMPLAINTS AND REPORTS
 MIGHT ONE DAY HURT HIM." /4/
 
    ALTHOUGH NOT CLEAR FROM THE RECORD, IT APPEARS THAT ON OR ABOUT JULY
 16, 1979, MR. MILTON SALMON, MEDICAL DIRECTOR FOR THE MEDICAL CENTER,
 AMONG OTHERS, MET WITH THE STAFF PHYSICIANS TO DISCUSS THEIR GRIEVANCE.
 AT SUCH TIME, MR. SALMON DENIED RONALD GUNTON, CHIEF NEGOTIATOR, LOCAL
 491, AFGE, AFL-CIO, ADMISSION TO THE MEETING.  MR. GUNTON WAS ATTEMPTING
 TO ATTEND THE MEETING IN HIS GENERAL CAPACITY AS THE CERTIFIED
 REPRESENTATIVE OF THE PROFESSIONAL EMPLOYEES AND UNDER THE POWER OF
 ATTORNEY GIVEN HIM BY DOCTOR GEORGE ALIKES, ONE OF THE STAFF PHYSICIANS
 WHO WAS A SIGNATORY TO THE GRIEVANCE.  SUBSEQUENTLY, BOTH MR. GUNTON AND
 DOCTOR ALIKES BOTH FILED SEPARATE UNFAIR LABOR PRACTICE CHARGES ON
 AUGUST 1, 1979, PREDICATED UPON MR. SALMON'S REFUSAL TO ALLOW MR. GUNTON
 TO ATTEND THE MEETING.  UNDER DATE OF AUGUST 2, 1979, THE REGIONAL
 DIRECTOR FOR REGION I, FLRA, SENT A COPY OF THE CHARGES TO THE
 RESPONDENT.  THE RECORD INDICATES THAT THE RESPONDENT RECEIVED THE
 REGIONAL DIRECTOR'S AUGUST 2, 1979 LETTER WITH RESPECT TO DOCTOR ALIKES'
 CHARGE ON AUGUST 6, 1979.
 
    ALTHOUGH DOCTOR ALIKES SIGNED A "STATEMENT OF SERVICE" INDICATING
 THAT HE HAD SERVED BY MAIL A COPY OF HIS CHARGE AGAINST THE RESPONDENT
 ON JULY 25, 1979, HE ADMITTED ON CROSS EXAMINATION THAT HE DID NOT
 PERSONALLY MAIL A COPY OF THE CHARGE BUT RATHER HAD EMPOWERED HIS UNION
 REPRESENTATIVE TO MAIL IT.  OTHER THAN THE FOREGOING, THE RECORD IS
 DEVOID OF ANY EVIDENCE INDICATING WHEN OR IF A COPY OF DOCTOR ALIKES'
 CHARGE WAS SERVED ON RESPONDENT.
 
    ON AUGUST 2, 1979, DOCTOR LEZER, CHIEF OF STAFF, WITHOUT PRIOR NOTICE
 TO THE UNION, SENT A MEMORANDUM TO THE MEDICAL CENTER DIRECTOR WHEREIN,
 EFFECTIVE AUGUST 1, 1979, HE CHANGED THE COMPOSITION OF THE CEB.
 ACCORDING TO THE MEMORANDUM, AS OF AUGUST 1, 1979, THE CEB WOULD
 HENCEFORTH BE COMPOSED OF THE CHIEF DENTAL SERVICE, CHIEF LABORATORY
 SERVICE, CHIEF MEDICAL SERVICE, CHIEF NURSING SERVICE, CHIEF RADIOLOGY
 SERVICE, CHIEF REHABILITATION MEDICAL SERVICE AND CHIEF OF SOCIAL WORK
 SERVICE.  THE MEMORANDUM THUS REMOVED THE THREE MEMBER-AT-LARGE RANK AND
 FILE STAFF PHYSICIANS AND SUBSTITUTED IN PLACE THEREOF THE CHIEFS OF
 NURSING AND SOCIAL WORK SERVICES.
 
                        DISCUSSION AND CONCLUSIONS
 
    SECTION 7102 OF THE STATUTE GIVES EMPLOYEES THE "RIGHT TO FORM, JOIN,
 OR ASSIST ANY LABOR ORGANIZATION, OR TO REFRAIN FROM ANY SUCH ACTIVITY,
 FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL." INTERFERENCE BY AN
 EMPLOYER WITH THE AFOREMENTIONED RIGHTS BY DISCRIMINATION IN CONNECTION
 WITH HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT IS
 VIOLATIVE OF SECTION 7116(A)(2) AND (1) OF THE STATUTE.  BOTH THE ABOVE
 CITED SECTIONS OF THE STATUTE CONTAIN LANGUAGE ALMOST IDENTICAL TO THAT
 APPEARING IN SECTIONS 1(A) AND 19(A)(2), RESPECTIVELY, OF EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    IN ADMINISTERING THE EXECUTIVE ORDER 11491, THE ASSISTANT SECRETARY
 HELD EARLY ON THAT THE EXECUTIVE ORDER, UNLIKE SECTION 7 OF THE NATIONAL
 LABOR RELATIONS ACT, DID NOT EXTEND PROTECTION TO EMPLOYEES WHILE THEY
 WERE PARTICIPATING IN CONCERTED ACTIVITY UNRELATED TO MEMBERSHIP IN, OR
 ACTIVITIES ON BEHALF OF, A UNION.  NATIONAL LABOR RELATIONS BOARD,
 REGION 17, NLRB, A/SLMR NO. 295.  ACCORDINGLY, IN VIEW OF THE
 SIMILARITIES NOTED ABOVE BETWEEN THE PERTINENT PROVISIONS OF THE STATUTE
 AND THE EXECUTIVE ORDER AND IN THE ABSENCE OF ANY INDICATION IN THE
 LEGISLATIVE HISTORY THAT IT WAS THE INTENT OF CONGRESS TO EXTEND THE
 PROTECTION OF THE STATUTE TO OTHER THAN UNION RELATED ACTIVITIES, I FIND
 THAT THE STATUTE DOES NOT OFFER ANY PROTECTION TO EMPLOYEES
 PARTICIPATING IN CONCERTED ACTIVITIES UNRELATED TO MEMBERSHIP IN, OR
 ACTIVITIES ON BEHALF OF, A LABOR ORGANIZATION. /5/
 
    IN VIEW OF THE FOREGOING ANALYSIS, TO THE EXTENT THAT DOCTORS LEZER'S
 DECISION TO RECONSTITUTE THE CEB AND REMOVE THREE RANK-AND-FILE STAFF
 PHYSICIANS THEREFROM MIGHT HAVE BEEN BASED IN PART ON THE JULY 6, 1979,
 GRIEVANCE, I FIND SUCH ACTION NOT TO BE VIOLATIVE OF SECTIONS 7116(A)(2)
 AND (1) OF THE STATUTE.  INASMUCH AS THE GRIEVANCE WAS NOT FILED UNDER
 EITHER A CONTRACTUAL GRIEVANCE PROCEDURE OR THE AEGIS OF THE UNION, THE
 "CONCERTED ACTIVITY" OF THE 12 STAFF PHYSICIANS DOES NOT FALL WITHIN THE
 PROTECTION OF SECTION 7102 OF THE STATUTE.  THE FACT THAT A UNION
 REPRESENTATIVE APPEARED AS THE PERSONAL REPRESENTATIVE OF ONE OR TWO OF
 THE PHYSICIANS AT A SUBSEQUENT MEETING ON THE GRIEVANCE, STANDING ALONE,
 DOES NOT ALTER THIS CONCLUSION, PARTICULARLY IN THE ABSENCE OF ANY
 EVIDENCE INDICATING THE EXISTENCE OF UNION ANIMUS AT THE TIME.  THE FACT
 THAT UNION ANIMUS MAY HAVE BEEN EVIDENCED DURING A CONVERSATION A MONTH
 LATER WITH REGARD TO AN UNRELATED MATTER FALLS SHORT OF ESTABLISHING THE
 EXISTENCE OF ANIMUS AT AN EARLIER DATE.  SUCH UNION ANIMUS MIGHT WELL
 HAVE BEEN THE PRODUCT OF INTERVENING EVENTS.
 
    WITH REGARD TO THE ALLEGED VIOLATION OF SECTION 7116(A)(4) PREDICATED
 UPON THE UNFAIR LABOR PRACTICE FILED BY DOCTOR ALIKES, I FIND THAT THE
 GENERAL COUNSEL HAS FAILED TO SUSTAIN THE BURDEN OF PROOF IMPOSED UPON
 HIM BY SECTION 2423.18 OF THE REGULATIONS.  WITH THE EXCEPTION OF THE
 "STATEMENT OF SERVICE" SIGNED BY DOCTOR ALIKES ON JULY 25, 1979, AND HIS
 TESTIMONY THEREON, DISCUSSED INFRA, ALL THE OTHER RECORD EVIDENCE FALLS
 SHORT OF ESTABLISHING THAT RESPONDENT WAS AWARE OF DOCTOR ALIKES' UNFAIR
 LABOR PRACTICE CHARGE WHEN IT RECONSTITUTED THE CEB ON AUGUST 2, 1979.
 THE BOSTON REGION'S COVERING LETTER WITH RESPECT TO THE UNFAIR LABOR
 PRACTICE CHARGE WAS DATED AUGUST 2, 1979, AND NOT RECEIVED IN BATH, NEW
 YORK, UNTIL AUGUST 6, 1979.  MR. SALMON DID NOT RECALL RECEIVING A COPY
 OF THE CHARGE FROM DOCTOR ALIKES.  DOCTOR LEZER, WHO RESPONDED INITIALLY
 TO AN INQUIRY FROM THE GENERAL COUNSEL, THAT HE GUESSED HE MAY HAVE BEEN
 AWARE OF THE CHARGE, LATER STATED ON CROSS EXAMINATION THAT HE COULD NOT
 RECALL WHEN HE BECAME AWARE OF THE CHARGE.
 
    WITH RESPECT TO DOCTOR ALIKES' "STATEMENT OF SERVICE" DATED JULY 25,
 1979, DOCTOR ALIKES ACKNOWLEDGED ON THE STAND THAT HE, CONTRARY TO HIS
 "STATEMENT OF SERVICE", DID NOT PERSONALLY MAKE SERVICE OF THE CHARGE ON
 THE RESPONDENT, BUT RATHER ON JULY 25, 1979, AUTHORIZED A UNION
 REPRESENTATIVE TO MAKE THE SERVICE.  THE UNION REPRESENTATIVE IS NOT
 NAMED AND THE RECORD IS BARREN OF ANY EVIDENCE INDICATING THAT THE
 SERVICE WAS IN FACT MADE BY THE AUTHORIZED UNION REPRESENTATIVE.
 
    ACCORDINGLY, IN THE ABSENCE OF ANY PROBATIVE EVIDENCE ESTABLISHING
 THAT THE RESPONDENT HAD KNOWLEDGE OF DOCTOR ALIKES' UNFAIR LABOR
 PRACTICE CHARGE PRIOR TO MAKING THE CHANGE IN THE CEB, INSUFFICIENT
 BASIS EXISTS FOR A FINDING THAT THE CHANGE IN COMPOSITION OF THE CEB WAS
 BASED IN PART ON THE ACTION OF DOCTOR ALIKES IN FILING THE UNFAIR LABOR
 PRACTICE CHARGE.
 
    MOREOVER, IT SHOULD BE NOTED THAT SECTION 7116(A)(4) OF THE STATUTE
 PROHIBITS DISCRIMINATION AGAINST AN EMPLOYEE BECAUSE THE EMPLOYEE HAD
 FILED A COMPLAINT.  INASMUCH AS DOCTOR ALIKES WAS NOT A MEMBER OF THE
 CEB ON AUGUST 2, 1979, NOR SHOWN TO BE UNDER CONSIDERATION FOR SUCH AN
 APPOINTMENT, A SECTION 7116(A)(4) FINDING WOULD NOT BE IN ORDER IN ANY
 EVENT.  HOWEVER, HAD DOCTOR ALIKES' UNFAIR LABOR PRACTICE CHARGE BEEN
 FOUND TO HAVE PLAYED A PART IN THE ACTIONS OF RESPONDENT IN
 RECONSTITUTING THE CEB, THEN A SECTION 7116(A)(1) FINDING MIGHT WELL BE
 APPROPRIATE.
 
    FURTHER, HAD I REACHED A CONTRARY CONCLUSION WITH RESPECT TO THE
 PROTECTED NATURE OF THE JULY 6, 1979,GRIEVANCE, I WOULD NOT, UNDER ALL
 THE CIRCUMSTANCES PRESENT HEREIN, HAVE FOUND A VIOLATION OF SECTION
 7116(A)(2) AND (1) OF THE STATUTE.  IN VIEW OF MY FINDINGS THAT THE
 EVIDENCE WAS INSUFFICIENT TO ESTABLISH (1) KNOWLEDGE BY RESPONDENT OF
 DOCTOR ALIKES' UNFAIR LABOR PRACTICE AND (2) THE EXISTENCE OF UNION
 ANIMUS ON THE PART OF RESPONDENT ON AUGUST 2, 1979, THE SOLE BASIS FOR A
 7116(A)(2) FINDING WOULD BE THE SUSPICIOUS TIMING OF THE CHANGE IN THE
 CEB.  SUSPICION ALONE IS NOT EVIDENCE.  HAVING CAREFULLY ANALYZED DOCTOR
 LEZER'S TESTIMONY, I CAN NOT AGREE WITH GENERAL COUNSEL'S CONTENTION
 THAT HIS TESTIMONY WAS OF SUCH A CONTRADICTORY AND EVASIVE CHARACTER
 THAT HIS ASSERTED REASONS FOR THE CHANGE IN THE CEB SHOULD BE
 DISCREDITED.
 
    WITH RESPECT TO THE 7116(A)(5) ASPECT OF THE COMPLAINT, RESPONDENT
 TAKES THE POSITION THAT IT WAS NOT UNDER ANY OBLIGATION TO BARGAIN WITH
 THE UNION WITH RESPECT TO THE COMPOSITION OF THE CEB.  IN SUPPORT OF ITS
 POSITION RESPONDENT RELIES ON THE DECISION OF THE FEDERAL LABOR
 RELATIONS COUNCIL IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
 1963 AND VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS, FLRC NO.
 78A-56, OCT. 27, 1978, WHEREIN THE COUNCIL FOUND THAT THE COMPOSITION OF
 A SIMILAR, IF NOT IDENTICAL, COMMITTEE TO BE NON-NEGOTIABLE.  THE
 GENERAL COUNSEL TAKES THE POSITION THAT THE ABOVE CITED VA CASE IS
 INAPPOSITE IN THAT SUCH CASE CONCERNED ONLY A UNION DEMAND TO BARGAIN
 OVER THE COMPOSITION OF SUCH COMMITTEE AND NOT, AS HERE, THE DECISION TO
 REMOVE UNIT EMPLOYEES FROM A COMMITTEE THAT THEY HAD BEEN SERVING ON.
 ADDITIONALLY, COUNSEL FOR THE GENERAL COUNSEL WOULD DISTINGUISH THE TWO
 CASES ON (1) THE GROUND THAT THE RESPONSIBILITIES OF THE TWO COMMITTEES
 ARE DIFFERENT AND (2) THAT A PRIVILEGE ONCE GRANTED RIPENS INTO A
 CONDITION OF EMPLOYMENT WHICH CAN NOT BE UNILATERALLY CHANGED BY AN
 EMPLOYER.
 
    CONTRARY TO THE CONTENTION OF THE GENERAL COUNSEL, I FIND THAT THE
 GENERAL RESPONSIBILITIES AND FUNCTIONS OF THE CEB AND THE CLINICAL
 ADVISORY COMMITTEE INVOLVED IN THE EARLIER VA CASE TO BE IDENTICAL, I.E.
 PATIENT CARE.  THE MERE FACT THAT THE CEB MAY HAVE ON OCCASION ISSUED OR
 CONSIDERED ISSUING DIRECTIVES INVOLVING PERSONNEL POLICIES, PRACTICES
 AND/OR WORKING CONDITIONS DOES NOT ALTER THIS CONCLUSION.  AS THE
 COUNCIL NOTED IN ITS EARLIER DECISION, THE IMPACT OF SUCH DIRECTIVES
 WOULD BE NEGOTIABLE.  IN REACHING ITS DECISION IN THE EARLIER CASE, THE
 COUNCIL STRESSED THE FACT THAT THE CLINICAL ADVISORY COMMITTEE WAS
 CONCERNED MAINLY WITH THE DEVELOPMENT OF PROCEDURES FOR PATIENT CARE AND
 NOT PERSONNEL POLICIES OR PRACTICES OR MATTERS AFFECTING WORKING
 CONDITIONS OF BARGAINING UNIT MEMBERS.
 
    HAVING FOUND THE CEB TO BE IDENTICAL TO THE CLINICAL ADVISORY
 COMMITTEE IN THE EARLIER CASE, THE SOLE REMAINING ISSUE TO BE DECIDED IS
 WHETHER OR NOT RESPONDENT WAIVED ANY OF ITS RIGHTS WITH RESPECT THERETO
 WHEN IT OPTED TO APPOINT A NUMBER OF RANK-AND-FILE PHYSICIANS TO THE CEB
 BACK IN 1976.  THE GENERAL COUNSEL, AS NOTED ABOVE, TAKES THE POSITION
 THAT IT DID.  IN SUPPORT OF ITS POSITION GENERAL COUNSEL CITES A NUMBER
 OF ASSISTANT SECRETARY DECISIONS WHEREIN THE RELINQUISHMENT OF A RIGHT
 OR THE GRANTING OF A PRIVILEGE RIPENED INTO A CONDITION OF EMPLOYMENT
 WHICH COULD NOT BE UNILATERALLY CHANGED.  CF. IRS, OFFICE OF THE
 REGIONAL COMMISSIONER, WESTERN DISTRICT AND NTEU, A/SLMR NO. 473.
 
    I FIND THE CASES CITED BY GENERAL COUNSEL TO BE INAPPOSITE IN THAT
 THE RIGHTS RELINQUISHED AND/OR PRIVILEGES GRANTED INVOLVED ITEMS CLOSELY
 RELATED TO TERMS AND CONDITIONS OF EMPLOYMENT.  IN THE INSTANT CASE THE
 PRIVILEGE OR RIGHT GRANTED CONCERNED MEMBERSHIP ON A COMMITTEE WHICH
 DEALT PRIMARILY WITH PATIENT CARE AND NOT PERSONNEL POLICIES, PRACTICES
 OR TERMS AND CONDITIONS OR EMPLOYMENT.  AS NOTED BY THE COUNCIL IN THE
 EARLIER VA CASE CITED SUPRA, IT IS ONLY ON THE LATTER MATTERS WHICH THE
 RESPONDENT IS OBLIGATED TO BARGAIN WITH THE UNION.  MOREOVER, RESPONDENT
 NEVER SURRENDERED OR COMPROMISED ITS RIGHT TO UNILATERALLY DETERMINE THE
 COMPOSITION OF THE CEB.  THE FACT THAT IT SAW FIT TO SELECT
 RANK-AND-FILE PHYSICIANS FOR MEMBERSHIP ON THE CEB DID NOT AMOUNT TO AN
 ABDICATION OF ITS RIGHT.
 
    IRRESPECTIVE OF THE FOREGOING, SECTION 7106(B)(3) OF THE STATUTE
 MAKES IT CLEAR THAT TO THE EXTENT A DECISION OF MANAGEMENT ON A
 NON-MANDATORY SUBJECT OF BARGAINING IMPACTS UPON UNIT EMPLOYEES,
 MANAGEMENT IS OBLIGATED TO BARGAIN WITH THE UNION CONCERNING SUCH
 IMPACT.  HOWEVER, IT IS NOTED THAT THE OBLIGATION TO BARGAIN EXTENDS
 ONLY TO "CONDITIONS OF EMPLOYMENT" WHICH ARE DEFINED IN THE STATUTE AS
 "PERSONNEL POLICIES, PRACTICES, AND MATTERS . . .  AFFECTING WORKING
 CONDITIONS." ACCORDINGLY, TO THE EXTENT THAT THE CHANGE IN COMPOSITION
 OF THE CEB IMPACTS ON THE EMPLOYEES WORKING CONDITIONS, RESPONDENT IS
 OBLIGATED TO BARGAIN THEREON WITH THE UNION.
 
    OTHER THAN A POSSIBLE LOSS OF PRESTIGE, IT CAN HARDLY BE SAID THAT
 THE REMOVAL OF THE RANK-AND-FILE PHYSICIANS FROM THE CEB HAD ANY EFFECT
 ON THEIR RESPECTIVE WORKING CONDITIONS.  THE CEB DEALT IN THE MAIN WITH
 PATIENT CARE AND NOT WORKING CONDITIONS OF THE UNIT EMPLOYEES.
 ACCORDINGLY, THE PHYSICIANS ONLY LOST A VOTE ON PATIENT CARE NOT WORKING
 CONDITIONS.
 
    IN VIEW OF THE FOREGOING, I FIND THAT THE RESPONDENT WAS NOT
 OBLIGATED TO BARGAIN WITH THE UNION CONCERNING EITHER ITS ORIGINAL
 DECISION ON THE COMPOSITION OF THE CEB OR THE IMPACT THEREOF.
 
    HAVING FOUND AND CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE THE
 STATUTE AS ALLEGED, IT IS RECOMMENDED THAT THE FEDERAL LABOR RELATIONS
 AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R. 2423.29(C).
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE CONSOLIDATED COMPLAINT IN CASE NOS.
 1-CA-112, 115, 135 BE, AND HEREBY IS DISMISSED.
 
                          BURTON S. STERNBURG
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  APRIL 21, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ AT THE OPENING OF THE HEARING, THE GENERAL COUNSEL, ON THE BASIS
 OF A PREHEARING SETTLEMENT AGREEMENT, WITHDREW THE ALLEGATIONS OF THE
 CONSOLIDATED COMPLAINT WHICH WERE PREDICATED UPON THE CHARGES IN CASE
 NOS. 1-CA-112 AND 1-CA-115, LEAVING ONLY THE ALLEGATIONS DESCRIBED
 INFRA.  ALSO, AT THE COMMENCEMENT OF THE HEARING, IN THE ABSENCE OF ANY
 OBJECTION, GENERAL COUNSEL WAS ALLOWED TO AMEND THE COMPLAINT AND