[ v05 p581 ]
05:0581(76)CA
The decision of the Authority follows:
5 FLRA No. 76
VETERANS ADMINISTRATION
VETERANS ADMINISTRATION MEDICAL
CENTER, FAYETTEVILLE, ARKANSAS
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2201
Charging Party
Case Nos. 6-CA-167
6-CA-168
6-CA-169
6-CA-312
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN CASE NOS. 6-CA-168,
6-CA-169 AND 6-CA-312 AND RECOMMENDING THAT THOSE COMPLAINTS BE
DISMISSED. HOWEVER, HE FOUND THAT, WITH RESPECT TO CASE NO.6-CA-167,
THE RESPONDENT HAD ENGAGED IN AN UNFAIR LABOR PRACTICE AND RECOMMENDED
THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS
AS SET FORTH IN THE ATTACHED RECOMMENDED DECISION AND ORDER. THE
GENERAL COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S
DECISION AND THE RESPONDENT FILED AN OPPOSITION THERETO.
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 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 GENERAL COUNSEL'S EXCEPTIONS AND THE RESPONDENT'S
OPPOSITION, THE AUTHORITY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. IN SO DOING, THE AUTHORITY
FINDS IT UNNECESSARY TO PASS UPON THE ADMINISTRATIVE LAW JUDGE'S
STATEMENTS WITH RESPECT TO CASE NO. 6-CA-168 (AT N.6) TO THE EFFECT
THAT THERE IS NO EVIDENCE UPON WHICH TO BASE A FINDING THAT THE MARCH 9
PETITION CONSTITUTED ACTIVITY PROTECTED UNDER THE STATUTE.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINTS IN CASE NOS. 6-CA-168,
6-CA-169 AND 6-CA-312 BE, AND HEREBY ARE, DISMISSED.
PURSUANT TO SEC. 2423.29 OF THE RULES AND REGULATIONS OF THE FEDERAL
LABOR RELATIONS AUTHORITY AND SEC. 7118 OF THE STATUTE, THE AUTHORITY
HEREBY ORDERS THAT THE VETERANS ADMINISTRATION, VETERANS ADMINISTRATION
MEDICAL CENTER, FAYETTEVILLE, ARKANSAS, SHALL:
1. CEASE AND DESIST FROM:
(A) THREATENING TO DENY EMPLOYEES CONSIDERATION FOR PROMOTION TO
SUPERVISORY POSITIONS BECAUSE OF THEIR ACTIVITIES ON BEHALF OF LOCAL
2201, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER
LABOR ORGANIZATION.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) POST AT THE VETERANS ADMINISTRATION MEDICAL CENTER IN
FAYETTEVILLE, ARKANSAS, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX"
ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR, VETERANS
ADMINISTRATION MEDICAL CENTER, FAYETTEVILLE, ARKANSAS, AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE
TAKEN BY RESPONDENT TO ENSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SEC. 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VI, 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., MAY 5, 1981
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 MANAGEMENT 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 THREATEN TO DENY EMPLOYEES CONSIDERATION FOR PROMOTION TO
SUPERVISORY POSITIONS BECAUSE OF THEIR ACTIVITIES ON BEHALF OF LOCAL
2201, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER
LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(ACTIVITY)
DATED: BY:
(SIGNATURE) (TITLE)
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 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, REGION VI,
WHOSE ADDRESS IS: ROOM 450 DOWNTOWN POST OFFICE STATION, BRYAN & ERVAY
STREETS, P.O. BOX 2640, DALLAS, TEXAS 75221 AND WHOSE TELEPHONE NUMBER
IS: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
CHARLES J. PUGH
FOR THE RESPONDENT
JAMES W. DEMIK
FOR THE GENERAL COUNSEL
BEFORE: JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THESE CONSOLIDATED CASES AROSE PURSUANT TO THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET.
SEQ. AS A RESULT OF UNFAIR LABOR PRACTICE COMPLAINTS ISSUED BY THE
REGIONAL DIRECTOR, SIXTH REGION, FEDERAL LABOR RELATIONS AUTHORITY,
DALLAS, TEXAS, AGAINST THE VETERANS ADMINISTRATION, VETERANS
ADMINISTRATION MEDICAL CENTER, FAYETTEVILLE, ARKANSAS.
ALL INCIDENTS GIVING RISE TO THE ALLEGED UNFAIR LABOR PRACTICES
OCCURRED IN THE DIETETIC SECTION OF THE CENTER, WHERE APPROXIMATELY 40
PEOPLE WORK UNDER THE SUPERVISION OF MRS. DORIS CASSIDY, CHIEF OF
DIETETIC SERVICES. THE COMPLAINTS ALLEGE THAT MRS. CASSIDY THREATENED
TO DISCRIMINATE AGAINST EMPLOYEES IN REGARD TO PROMOTIONS AND THREATENED
TO DENY PERSONAL FAVORS TO EMPLOYEES BECAUSE OF THEIR UNION MEMBERSHIP,
IN VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE, AND REFUSED TO
PROMOTE EMPLOYEE GARY JONES BECAUSE OF UNION MEMBERSHIP AND ACTIVITIES
IN VIOLATION OF SECTION 7116(A)(1) AND (2).
A HEARING WAS HELD IN FAYETTEVILLE, ARKANSAS ON APRIL 8 AND 9, 1980.
ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE BRIEFS. BASED
UPON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT CONCLUSIONS OF
LAW, AND RECOMMENDED ORDER: /1/
CASE NO. 6-CA-167
IT IS ALLEGED THAT DIETETICS CHIEF CASSIDY, ON FEBRUARY 1, 1979,
THREATENED TO WITHHOLD A PROMOTION FROM UNION STEWARD DARREL EDENS.
EDENS HAS WORKED AS A FOOD SERVICE EMPLOYEE FOR ABOUT EIGHT YEARS,
AND WAS AT MATERIAL TIMES A WG-4. TWO SUPERVISORS LEFT IN EARLY 1979,
AND ON JANUARY 29 A VACANCY ANNOUNCEMENT WAS POSTED FOR A SUPERVISORY
POSITION AS FOOD SERVICE WORKER FOREMAN, WS-2. EMPLOYEE RALPH CROUCH,
HUSBAND OF CASSIDY'S SECRETARY, HAD BEEN HIRED AS A WG-2 SOME SIX MONTHS
BEFORE. MANY EMPLOYEES, INCLUDING EDENS, A NON-CANDIDATE, BELIEVED THAT
CROUCH, WAS BEING GROOMED FOR THE JOB BECAUSE OF FAVORITISM, AND THAT A
PRE-SELECTION WAS ABOUT TO OCCUR. IN ADDITION, MANY EMPLOYEES WERE
SUSPICIOUS THAT SUPERVISOR VERNON LANKFORD WAS NOT SATISFIED WITH THE
FAVORABLE RATINGS HE HAD GIVEN CROUCH AND THAT CASSIDY, HAD IN FACT,
MADE OUT OR UNDULY INFLUENCED THE APPRAISAL GIVEN. RUMOR HAD IT THAT
LANKFORD HAD TOLD SOME EMPLOYEES THAT HE HAD GIVEN CROUCH TOO HIGH A
RATING. EDENS SPOKE OF THESE CONCERNS TO UNION PRESIDENT CALVIN
GUTHRIE, WHO RELAYED THEM TO PERSONNEL DIRECTOR GUERRA, WHO IN TURN, ON
FEBRUARY 20, ASKED CASSIDY TO SET UP A MEETING QUICKLY, BEFORE THE
EVALUATION PROCESS WAS CONCLUDED, AND TO INVOLVE EDENS. A MEETING WAS
SET FOR FEBRUARY 21, WITH GUERRA, FOOD SUPERVISORS LANKFORD AND EDGINS,
AND CASSIDY IN ATTENDANCE FOR MANAGEMENT. GUTHRIE WAS APPARENTLY
INVITED, BUT WAS ON SICK LEAVE THAT DAY. EDENS, UNAWARE THAT GUTHRIE
HAD SPOKEN TO GUERRA, OR THAT ARRANGEMENTS HAD BEEN MADE FOR A MEETING,
WAS SUDDENLY SUMMONED INTO THE MEETING IN CASSIDY'S OFFICE. HE ADMITTED
THAT HE WAS UPSET, THAT HE FELT MANAGEMENT WAS GANGING UP ON HIM IN THE
ABSENCE OF THE UNION PRESIDENT, AND THAT HE DOES NOT REMEMBER MUCH OF
WHAT WAS SAID. CASSIDY OPENED THE MEETING BY SAYING THAT IF THERE WERE
ANY CONCERNS ABOUT THE EVALUATION PROCESS, THIS WAS THE TIME TO
STRAIGHTEN THE MATTER OUT, BEFORE THE PROMOTION CERTIFICATE WAS SENT
BACK TO HER FOR HER SELECTION. SHE THEN ASKED SUPERVISORS EDGIN AND
LANKFORD WHETHER EITHER OF THEM WISHED TO REDO HIS PERFORMANCE
EVALUATIONS. BOTH RESPONDED THAT THEY WERE SATISFIED WITH THE
PERFORMANCE EVALUATION THEY HAD MADE, AND DECLINED THE INVITATION.
EDENS RECALLS LITTLE MORE OF THE DISCUSSION, EXCEPT THAT CASSIDY VOICED
THE OPINION THAT, SINCE HER STEWARD HAD "AIRED OUT DIRTY LINEN TO THE
WHOLE HOSPITAL, THEN IN THE FUTURE SHE WOULD GO NATIONWIDE IN HER
APPOINTMENTS OF SUPERVISORY PERSONNEL". /2/ NO CONTEXT FOR THIS ALLEGED
REMARK WAS SUPPLIED BY EDENS, EXCEPT THAT IT FOLLOWED LANKFORD'S EFFORT
TO DEFEND HIS APPRAISAL OF CROUCH. LANKFORD, AS A WITNESS FOR THE
GENERAL COUNSEL, TESTIFIED THAT CASSIDY SAID "AFTER THIS, YOU HAVE
FORCED ME TO GO OUTSIDE THE DEPARTMENT FOR MY HELP." PERSONNEL DIRECTOR
GUERRA AND SUPERVISOR EDGIN LIKEWISE DID NOT RECALL ANY REFERENCE TO
DIRTY LAUNDRY OR LINEN. ACCORDING TO GUERRA, CASSIDY SAID THAT, "SINCE
SHE WAS HAVING DIFFICULTY IN FILLING HER POSITIONS, SHE WAS GOING TO
HAVE TO CONSIDER GOING NATIONWIDE", AND STATED THAT THIS WAS AN OBVIOUS
REFERENCE TO ALL THE CRITICISM SHE WAS RECEIVING ABOUT THE SUPERVISORY
APPRAISALS. SUPERVISOR EDGIN TESTIFIED THAT CASSIDY SAID THAT, "IF
THERE WASN'T QUALIFIED APPLICANTS CAME BACK OUT OF THE RATING PANEL,
THAT SHE PROBABLY WOULD HAVE TO GO NATIONWIDE TO FILL A POSITION." HE
ADMITTED THAT THERE WAS NO DISCUSSION OF A LACK OF QUALIFIED APPLICANTS,
INASMUCH AS THE RATING PANEL HAD NOT YET ACTED. HE THEREFORE COULD NOT
RECALL WHY ANY SUCH REMARK WAS GERMANE TO THE DISCUSSION.
CURIOUSLY, CASSIDY WAS NOT ASKED ABOUT HER STATEMENT ON DIRECT
EXAMINATION. IN RESPONSE TO MY QUESTIONS, SHE EXPLAINED THAT SHE HAD
BEEN UNABLE TO POST THE TWO VACANCIES SIMULTANEOUSLY, AND THE MATTER HAD
CREATED SO MUCH DISCUSSION AND SO MUCH COMMENT THAT SHE MADE HER
STATEMENT IN AN EFFORT TO HAVE THE UNION UNDERSTAND THAT IT NEED NOT
WORRY ABOUT HER HAVING A QUALIFIED CANDIDATE, AS SHE COULD THEN GO
NATIONWIDE. SHE WAS NOT ASKED TO ELABORATE.
THERE IS NO EVIDENCE THAT ANYONE ELSE SPOKE TO A LACK OF QUALIFIED
CANDIDATES, AND SURELY NO INDICATION THAT THE UNION (OR STEWARD EDENS)
WAS OF THE VIEW THAT QUALIFIED CANDIDATES WERE LACKING. /3/ CASSIDY, AS
GUERRA OBSERVED, WAS REACTING TO THE COMPLAINTS VOICED BY EDENS THAT THE
SELECTION PROCESS HAD BEEN RIGGED IN FAVOR OF THE HUSBAND OF CASSIDY'S
SECRETARY. HER STATEMENT THEN, WAS A CLEAR INDICATION THAT THE UNION
COULD QUESTION HER MOTIVES IN THE SELECTION PROCESS ONLY AT ITS PERIL:
THAT ITS MEMBERS, OR AT LEAST ITS MEMBERS WHO VOICED SUCH CONCERNS,
THEREBY FORFEITED ANY HOPE THAT THEIR ASPIRATION TO BECOME SUPERVISORS
WOULD BE REALIZED. AS SUCH, IT WAS AN EXPLICIT THREAT THAT THOSE WHO
ENGAGED IN SUCH INQUIRIES WOULD NOT BE CONSIDERED FOR PROMOTION TO
SUPERVISORY POSITIONS, AND WAS VIOLATIVE OF SECTION 7116(A)(1).
CASE NO. 6-CA-168
HERE IT IS ALLEGED THAT ON APRIL 10, 1979, CASSIDY THREATENED TO
RETALIATE AGAINST EMPLOYEES ENGAGED IN UNION ACTIVITIES BY DENYING
PERSONAL FAVORS TO THEM.
AFTER CROUCH WAS PROMOTED TO SUPERVISOR, A PETITION OF SOME SORT,
DATED MARCH 9, WAS CIRCULATED AND WAS SIGNED BY 25 OF THE APPROXIMATELY
40 EMPLOYEES. (G.C. EXH. 6) IN IT THEY PROTESTED THE PERCEIVED
FAVORITISM TOWARD, AND PRE-SELECTION OF, CROUCH, SPOKE TO HIS LACK OF
QUALIFICATIONS AS COMPARED TO THE MORE SENIOR UNION MEMBER-CANDIDATES
WARD (3 YEARS) AND PAGE (5 YEARS), AND COMPLAINED OF THE "INJUSTLINESS"
DISPLAYED BY CASSIDY WHEN SHE WAS DESIGNATED AS SUPERVISOR CROUCH'S
REPRESENTATIVE IN A "GRIEVANCE" HE FILED ON MARCH 1. (THE DOCUMENT
FILED BY CROUCH AGAINST UNION PRESIDENT GUTHRIE AND STEWARD EDENS FOR
SPREADING RUMORS AND DISPARAGING HIS REPUTATION, WAS WITHDRAWN AT
CASSIDY'S URGING). THE RECORD IS SILENT WITH RESPECT TO THE GENESIS AND
CIRCULATION OF THIS DOCUMENT, AS WELL AS ITS PURPOSE, EXCEPT FOR THE
FACT THAT GARY JONES, A SIGNATORY AND THE ALLEGED DISCRIMINATES IN CASE
NO. 6-CA-312 ANSWERED "YES" TO THE QUESTION WHETHER HE HAD PARTICIPATED
IN THE UNION IN OBTAINING SIGNATURES ON IT. ASIDE FROM THE FACT THAT
THE STEWARD IS THE FIRST SIGNATORY TO THE DOCUMENT, THERE IS NO OTHER
SUGGESTION THAT IT WAS SPONSORED BY THE UNION. NOR IS THERE ANY
EVIDENCE WHETHER, AND IF SO, WHEN, IT WAS PRESENTED OR MADE KNOWN TO
MANAGEMENT. THE TESTIMONY INDICATES THAT ITS CIRCULATION WAS A MATTER
OF COMMON KNOWLEDGE, BUT CASSIDY TESTIFIED THAT SHE DID NOT SEE IT UNTIL
SEPTEMBER, 1979.
ON APRIL 10, CASSIDY HELD HER REGULAR MONTHLY MEETING WITH THE
DIETETIC SERVICES STAFF. THE MAIN TOPICS OF DISCUSSION ARE PRESUMABLY
REFLECTED IN G.C. EXH. 7, CASSIDY'S MINUTES OF THAT MEETING, WHICH MAKE
NO REFERENCE TO THE GREAT AMOUNT OF OVERTIME REQUIRED OF THE STAFF IN
THE PRECEDING MONTHS. AT THE END OF THE MEETING CASSIDY MADE AN
EMOTIONAL STATEMENT TO THE EFFECT THAT THOSE EMPLOYEES WHO HAD
COOPERATED WITH HER COULD EXPECT HER COOPERATION, BUT THOSE WHO HAD
HASSLED HER SHOULD BEWARE (OR SHOULD NOT LOOK FOR FAVORS). THERE ARE AS
MANY VARIATIONS ON THIS THEME AS THERE WERE WITNESSES TO IT. RESPONDENT
ASSERTS THAT THIS WAS MEANT AS A STATEMENT OF APPRECIATION TO THOSE
EMPLOYEES WHO HAD BEEN COOPERATIVE IN ACCEPTING TREMENDOUS AMOUNTS OF
OVERTIME TO COVER FOR SICK LEAVE AND TURNOVER, AND TO WARN THOSE WHO
REFUSED, OR "DUCKED" OVERTIME, THAT THEY SHOULD NOT LOOK TO CASSIDY FOR
FAVORS (SUCH AS MAKING MEDICAL/DENTAL APPOINTMENTS, PROVIDING
TRANSPORTATION TO WORK, ETC.), AND THAT IT WAS PARTIALLY IN RESPONSE TO
REQUESTS FROM EMPLOYEES THAT THEIR OVERTIME STINTS BE RECOGNIZED. /4/
WHILE A NUMBER OF WITNESSES, INCLUDING UNION MEMBERS, UNDERSTOOD THE
REMARK TO BE DIRECTED AT THE OVERTIME PROBLEM, ONLY ONE RECALLED ANY
EXPLICIT REFERENCE TO THAT SUBJECT. /5/ INTERESTINGLY, CASSIDY CANDIDLY
CONCEDED THAT SHE COULD NOT TESTIFY WITH CERTAINTY THAT SHE MADE
EXPLICIT REFERENCE TO OVERTIME BEFORE THANKING SOME PEOPLE AND WARNING
THE OTHERS.
OBVIOUSLY, CASSIDY'S STATEMENT COULD HAVE BEEN DIRECTED AT EITHER THE
OVERTIME SITUATION OR THE SIGNATORIES TO THE DOCUMENT WHICH HAD BEEN
CIRCULATED. SHE HAD A SERIOUS OVERTIME PROBLEM. SHE HAD BEEN ASKED TO
PUBLICLY RECOGNIZE THOSE WHO HAD BEEN HELPFUL. THUS THE MOTIVATION WAS
THERE TO MAKE A PERFECTLY LAWFUL STATEMENT ON THAT SUBJECT. IT IS
EQUALLY CLEAR THAT SHE DID NOT TAKE WELL TO UNION EFFORTS TO
SECOND-GUESS HER MOTIVES IN THE SELECTION OF SUPERVISORS, AND WAS
DISPOSED TO SAY SO, AS IN CASE NO. 6-CA-167. THERE WAS THUS MOTIVATION
TO EXPRESS HER DISAPPROVAL OF THE PETITION. SHE MAY, FOR ALL I KNOW,
HAVE MEANT TO CONVEY A WARNING TO EMPLOYEES ON BOTH SUBJECTS. THE
MEMBERS OF HER AUDIENCE RECEIVED DIFFERENT SIGNALS. I AM NOT PERSUADED
THAT A PREPONDERANCE OF THE EVIDENCE WILL SUPPORT A FINDING THAT
CASSIDY'S REMARKS ON THIS OCCASION WERE DIRECTED AT THE PETITION, AND
THEREFORE RECOMMEND THAT THIS ALLEGATION BE DISMISSED. /6/
CASE NO. 6-CA-169
THIS CASE IS BASED ON THE ALLEGATION THAT CASSIDY, ON MAY 3, 1979,
TOLD RANDALL WOODLEE THAT SHE WOULD NOT RECOMMEND HIM FOR A PROMOTION
BECAUSE OF HIS UNION MEMBERSHIP AND ACTIVITIES.
WOODLEE WAS A WG-7 COOK WHOSE ANNUAL PERFORMANCE APPRAISAL OCCURRED
ON MAY 3. HE BECAME UNION REPRESENTATIVE FOR SAFETY AND HEALTH ON MAY
2. IN MARCH HE "CORRELATED (COORDINATED) THE MEETING AND STATEMENT" OF
OPPOSITION TO CROUCH'S PROMOTION, ALTHOUGH THERE IS NO EVIDENCE THAT
MANAGEMENT WAS AWARE OF THIS. HIS EVALUATION ON MAY 3 WAS CONDUCTED BY
SUPERVISOR HOMER EDGIN AND CASSIDY. EDGIN DISCUSSED WITH HIM THE
FACTORS ON THE PROMOTION FORM, AND CONCLUDED THAT HIS PERFORMANCE WAS
NOT UP TO THE LEVEL OF A WG-8 COOK. HE VOLUNTEERED THAT HE WOULD
RECONSIDER AT A LATER DATE, WHEN WOODLEE'S PERFORMANCE IMPROVED.
WOODLEE THEN ASKED WHEN HE COULD EXPECT HIS PROMOTION AND EDGIN TOLD HIM
HE COULD EXPECT IT WHEN HIS PERFORMANCE MERITED IT. /7/ HE THEN ASKED
THE SAME QUESTION OF CASSIDY, WHO ALLEGEDLY REPLIED THAT SHE COULD NOT
WAVE HIS BANNER IN PERSONNEL AS LONG AS HE WAS DISLOYAL TO HER. /8/ AT
SOME POINT IN THE DISCUSSION, ACCORDING TO WOODLEE, A VERY IMPRESSIVE
WITNESS, SHE ALSO SAID THAT SHE COULD NOT SAY THAT HE WAS DOING BETTER
WORK THAN HE WAS. /9/ AFTER THE REMARK ABOUT HIS BANNER, WOODLEE TOLD
CASSIDY THAT HE THOUGHT SHE WAS DENYING HIM A PROMOTION BECAUSE OF HIS
UNION ACTIVITIES, WHICH, HE TESTIFIED, SEEMED TO AMUSE HER.
ON THE FOLLOWING MORNING WOODLEE TOLD CASSIDY THAT HE WAS UPSET ABOUT
WHAT SHE HAD SAID THE DAY BEFORE. SHE INVITED HIM TO TALK ABOUT IT IN
HER OFFICE. HE TOLD HER THAT HE FELT SHE WAS HOLDING HIM BACK BECAUSE
OF HIS UNION ACTIVITIES. SHE REPLIED, "LET ME PUT IT ANOTHER WAY,
RANDALL. HOW WOULD YOU FEEL ABOUT SOMEONE THAT'S TRYING TO GET YOU
FIRED." CASSIDY EXPLAINED THAT SHE HAD RECEIVED SUCH INFORMATION IN A
TELEPHONE CALL FROM FORMER ASSISTANT CHIEF LAMBERT PARRISH. WOODLEE DID
NOT RESPOND TO CASSIDY'S REMARK, ALTHOUGH HE UNDERSTOOD HER TO MEAN THAT
PARRISH HAD TOLD HER THAT HE, WOODLEE, WAS TRYING TO GET HER FIRED. HE
CONCEDED THAT HE, IN FACT, HAD HAD A DISCUSSION WITH PARRISH IN WHICH HE
SAID THAT CASSIDY HAD BECOME MUCH MORE ACTIVE IN THE ROUTINE OF THE DAY
AFTER PARRISH'S RETIREMENT, THAT SHE HAD DEMONSTRATED THAT SHE WAS
TEMPERAMENTAL AND QUICK-TEMPERED, THAT SHE HAD BEEN IN THE DEPARTMENT
TOO LONG, AND THAT SHE SHOULD BE TRANSFERRED OR RETIRE.
THERE IS NO EVIDENCE THAT CASSIDY WAS AWARE OF ANY UNION ACTIVITY ON
WOODLEE'S PART. EVEN ASSUMING THAT SHE WAS, HER REMARK CONCERNING
WOODLEE'S DISLOYALTY WAS FULLY EXPLAINED ON THE FOLLOWING DAY. SHE
READILY AGREED TO DISCUSS THE MATTER WITH HIM AND EVEN VOLUNTEERED THE
SOURCE OF HER BELIEF THAT HE WAS DISLOYAL. HE UNDERSTOOD HER TO HAVE
CONVEYED HER BELIEF THAT PARRISH REPORTED THAT HE WAS TRYING TO GET HER
FIRED. HE DID NOT EVEN ATTEMPT TO DISABUSE HER OF THAT NOTION. I
CONCLUDE THAT THE REMARK ABOUT HIS LOYALTY WAS CLEARLY REFERABLE TO
THOSE ACTIVITIES RATHER THAN ANY UNION ACTIVITIES, AND RECOMMEND THAT
THIS ALLEGATION BE DISMISSED. /10/
CASE NO. 6-CA-312
HERE IT IS ALLEGED THAT RESPONDENT, ON OR ABOUT AUGUST 6, 1979
DISCRIMINATORILY FAILED TO PROMOTE MR. GARY JONES TO THE WG-5 POSITION
OF BREAKFAST COOK. JONES HAD BEEN EMPLOYED FOR APPROXIMATELY FOUR
YEARS, AND WAS A WG-3 FOOD SERVICE WORKER. HE WAS A UNION MEMBER, AND
HAD SERVED AS ALTERNATE STEWARD FOR A YEAR OR A YEAR AND A HALF DURING
PARTS OF 1976 AND 1977. HE WAS ONE OF THE SIGNATORIES TO THE MARCH 9,
1979 PETITION PROTESTING THE ALLEGED PRE-SELECTION OF RALPH CROUCH FOR A
SUPERVISORY POSITION (G.C. EXH. 6), AND AFFIRMED, IN ANSWER TO A LEADING
QUESTION THAT HE "PARTICIPATE(D) IN THE UNION IN OBTAINING SIGNATURES ON
THAT DOCUMENT." HE ALSO SIGNED THE DOCUMENT FOLLOWING THE APRIL 10
MEETING (R. EXH. 3), ATTRIBUTING TO MRS. CASSIDY THE THREAT LITIGATED
IN CASE NO. 6-CA-168.
IN EARLY JULY TWO WG-5 JOBS WERE POSTED. JONES APPLIED, AS DID IDA
BARKER, HOMER GROSS, JIMMY ROBINSON AND GEORGE KUHNERT. BARKER AND
GROSS WERE SELECTED, ALTHOUGH THE LATTER HAD BEEN EMPLOYED ONLY SIX
MONTHS, AND JONES WAS APPARENTLY RANKED TWO PERCENTAGE POINTS HIGHER
THAN THE NEXT HIGHEST CANDIDATE (THIS WAS HIS TESTIMONY, BASED ON FORMS
HE WAS SHOWN BY COUNSEL FOR THE GENERAL COUNSEL. HOWEVER, THERE WAS NO
DISPUTING OF RESPONDENTS' PERSONNEL DIRECTOR'S TESTIMONY THAT THIS
RANKING WAS DONE BY A PERSONNEL SPECIALIST FOR PURPOSES OF GROUPING THE
CANDIDATES INTO CATEGORIES OF QUALIFIED OR BEST QUALIFIED, THAT WITHIN
SUCH CATEGORIES THE CANDIDATES WERE SIMPLY NAMED IN ALPHABETICAL ORDER,
AND THAT THE SCORES ARE NOT DIVULGED TO THE SELECTING OFFICIAL). ALL
CANDIDATES, EXCEPT FOR ROBINSON, WERE RATED QUALIFIED.
IN AUGUST, SEVERAL WEEKS AFTER THE PROMOTIONS WERE ANNOUNCED, NEWLY
ELECTED UNION PRESIDENT AUDREY STROUD AND JONES VISITED MRS. CASSIDY.
THE FIRST SUBJECT DISCUSSED, (AND THE MATTER WHICH, ACCORDING TO STROUD,
PROMPTED THE VISIT), WAS AN OVERTIME PROBLEM CAUSED BY A CHANGE IN THE
STAFF FROM ALL FULL-TIME EMPLOYEES TO SOME PART-TIME EMPLOYEES. THE
SPECIFIC PROBLEM WAS THAT JONES HAD BEEN CALLED IN TO REPLACE A
PART-TIME EMPLOYEE ON SATURDAY, THUS BEING REQUIRED TO DRIVE 26 MILES
FOR FOUR HOURS. HE FELT AND HOPED TO CONVINCE CASSIDY, THAT HE SHOULD
NOT BE REQUIRED TO COME SUCH A DISTANCE FOR LESS THAN A FULL DAY, AS HIS
WAGES HARDLY JUSTIFIED THE EXPENSE AND HIS FEW WORK-FREE WEEKENDS WERE
PRECIOUS TO HIM. AT SOME POINT IN, OR AFTER, THIS DISCUSSION, PRESIDENT
STROUD ASKED CASSIDY WHY JONES HAD NOT RECEIVED A PROMOTION. CASSIDY,
ACCORDING TO JONES' AND STROUD'S TESTIMONY, LOOKED AT JONES AND SAID,
"GARY, YOU KNOW WHY (OR THE REASON); JUST STUFF LIKE THIS." JONES
FURTHER TESTIFIED THAT HE UNDERSTOOD THIS TO BE A REFERENCE TO THE FACT
THAT HE HAD COME WITH A UNION OFFICER TO REQUEST AN EXPLANATION, AND,
(TWICE) THAT HE WAS NEVER GIVEN ANY OTHER REASON FOR BEING DENIED THE
JOB. HOWEVER, ON GENTLE CROSS-EXAMINATION, JONES READILY ADMITTED THAT
CASSIDY HAD TOLD HIM THAT HE WAS NOT SELECTED FOR PROMOTION BECAUSE OF
HIS ATTENTION TO DETAIL, OF SOME PROBLEM WITH HIS ACCEPTING INSTRUCTIONS
AND HIS ABILITY TO WORK WITH SUPERVISORS. IN ANSWERING ANOTHER QUESTION
PUT BY ME, JONES VOLUNTEERED THAT CASSIDY ALSO REMINDED HIM OF HIS
FAILURE TO BRING NEEDED PAPER SUPPLIES (PLATES, CUPS, ETC.). STROUD
COULD RECALL CASSIDY HAD TOUCHED ON ONLY ONE PERFORMANCE DETAIL-- THE
PAPER CUPS. CROSS-EXAMINATION ALSO ESTABLISHED THAT SUCCESSFUL WG-5
CANDIDATE IDA BARKER, ALTHOUGH NOT A UNION MEMBER, HAD ALSO SIGNED R.
EXH. 3, ATTESTING TO THE THREAT MADE BY CASSIDY. WITH THIS, COUNSEL FOR
THE GENERAL COUNSEL RESTED, AND RESPONDENT CALLED ONLY PERSONNEL
DIRECTOR GUERRA TO SPEAK TO AN ALLEGED IRREGULARITY IN THE PROMOTION
PROCESS NOT DEEMED RELEVANT TO THE MATTER AT ISSUE.
CLEARLY, THE TWO WITNESSES TO THE MATTERS ALLEGED IN CASE NO.
6-CA-312 HAVE VERY FAULTY MEMORIES. AS NOTED, JONES TWICE ASSERTED (IN
ANSWERING BOTH ME AND COUNSEL FOR THE GENERAL COUNSEL) THAT HE WAS GIVEN
ONLY ONE EXPLANATION FOR HIS NON-SELECTION: "JUST STUFF LIKE THIS".
YET WITH A LITTLE PRODDING HE REMEMBERED THREE ITEMS OF CRITICIZED
PERFORMANCED, AND LATER VOLUNTEERED YET ANOTHER. THERE IS NO EVIDENCE,
BEYOND JONES' TESTIMONY THAT THE PERSONNEL SPECIALIST GAVE HIM THE
HIGHEST NUMERICAL SCORE, THAT CASSIDY DID NOT SELECT THE BEST TWO
CANDIDATES. WE KNOW NOTHING ELSE ABOUT THE RELATIVE QUALIFICATIONS OF
BARKER AND GROSS (EXCEPT THAT JONES ATTENDED REMEDIAL READING CLASSES AT
CASSIDY'S SUGGESTION). WE DO KNOW THAT BARKER WAS A CO-SIGNER OF R.
EXH. 3. THERE IS SIMPLY NO EVIDENCE TO SUGGEST THAT THE SELECTIONS MADE
WERE SO OUT OF LINE AS TO SUGGEST DISCRIMINATION, OR FOR THAT MATTER,
THAT THEY WERE OUT OF LINE AT ALL. ALL FOUR CANDIDATES RECEIVED THE
"QUALIFIED" RATING, AND, ABSENT ILLEGAL PURPOSE, CASSIDY WAS FREE TO
PICK ANY TWO OF THEM. COUNSEL FOR THE GENERAL COUNSEL APPEARS TO HAVE
BOTTOMED HIS CASE ENTIRELY ON THE CLAIM THAT CASSIDY DISMISSED INQUIRY
INTO JONES' NON-SELECTION AS A QUESTION WITH AN OBVIOUS ANSWER-- "JUST
SUCH STUFF AS THIS". AS IT HAPPENS, GENERAL COUNSEL'S OWN WITNESSES
ADMIT THERE WAS CONSIDERABLY MORE CONVERSATION, ALL OF WHICH WENT TO THE
HEART OF JOB PERFORMANCE. NOR WAS ANY EFFORT MADE TO ESTABLISH THAT
THESE WERE LIGHT OR UNMERITED CRITICISMS. THUS THIS CASE HAS LITTLE
GOING FOR IT EXCEPT SUCH STRENGTH AS IT MIGHT DRAW FROM THE OTHER CASES.
WHATEVER CASSIDY'S DISPOSITION TOWARD THE UNION AND UNION ACTIVITIES,
THE EVIDENCE PRESENTED DOES NOT PREPONDERATE IN FAVOR OF A FINDING THAT
JONES WAS DENIED A PROMOTION BECAUSE OF HIS ACTIVITIES IN BEHALF OF THE
UNION. JONES' TESTIMONY IS THE HEART OF THIS CASE, AND IT CONTAINS ITS
OWN DEATH WOUND: AN ADMISSION THAT HE WAS GIVEN AMPLE EXPLANATION FOR
THE NON-PROMOTION, AN EXPLANATION WHICH HE APPARENTLY DID NOT OPENLY
DISPUTE. NO EVIDENCE WAS AMASSED TO DEMONSTRATE THAT THE REASONS GIVEN
WERE NOT IN FACT GENUINE. IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED
THAT THE EVIDENCE DOES NOT SUPPORT THE ALLEGATIONS OF THE COMPLAINT. I
THEREFORE RECOMMEND THAT THE COMPLAINT ISSUE IN CASE NO. 6-CA-312 BE
DISMISSED IN ITS ENTIRETY.
HAVING FOUND THAT ONLY THE ALLEGATION IN CASE NO. 6-CA-167 WAS
SUPPORTED BY THE EVIDENCE, I RECOMMEND THAT THE AUTHORITY DISMISS CASE
NOS. 6-CA-168, 169 AND 312, AND THAT THE FOLLOWING ORDER BE ISSUED IN
CASE NO. 6-CA-167:
ORDER
PURSUANT TO SECTION 7117(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT
IS HEREBY ORDERED THAT VETERANS ADMINISTRATION, VETERANS ADMINISTRATION
MEDICAL CENTER, FAYETTEVILLE, ARKANSAS, SHALL:
1. CEASE AND DESIST FROM:
(A) THREATENING TO DENY EMPLOYEES CONSIDERATION FOR PROMOTION TO
SUPERVISORY POSITIONS BECAUSE OF THEIR ACTIVITIES ON BEHALF OF LOCAL
2201 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER
LABOR ORGANIZATION.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE ACT.
2. TAKE THE FOLLOWING ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND
POLICIES OF THE ACT:
(A) POST AT ITS FACILITY IN FAYETTEVILLE, ARKANSAS, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" IN FORMS TO BE FURNISHED BY THE
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR, VETERANS ADMINISTRATION MEDICAL CENTER, FAYETTEVILLE,
ARKANSAS, AND SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS
THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
DIRECTOR SHALL TAKE REASONABLE STEPS TO ENSURE THAT SAID NOTICES ARE NOT
ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS OF THE DATE OF THIS ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY
THEREWITH.
JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
DATED: OCTOBER 3, 1980
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 THREATEN TO DENY EMPLOYEES CONSIDERATION FOR PROMOTION TO
SUPERVISORY POSITIONS BECAUSE OF THEIR ACTIVITIES ON BEHALF OF LOCAL
2210, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER
LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE ACT.
(AGENCY OR ACTIVITY)
DATED: BY:
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY 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, REGION VI,
WHOSE ADDRESS IS: ROOM 450, DOWNTOWN POST OFFICE STATION, BRYAN & ERVAY
STREET, P.O. BOX 2640, DALLAS, TEXAS 75221 AND WHOSE TELEPHONE NUMBER
IS: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ THE CONSOLIDATED CASES WERE IN FACT TRIED SEPARATELY. I FIND IN
CONVENIENT, THEREFORE, TO DISPOSE OF THEM AS THEY WERE TRIED.
/2/ AS INDICATED, ANOTHER SUPERVISORY VACANCY EXISTED, WHICH HAD NOT
BEEN POSTED. THIS POSITION WAS FILLED IN JUNE BY MS. LAFOLLETTE, UPON A
LATERAL TRANSFER FROM A VA HOSPITAL IN IOWA. THIS WAS THE FIRST TIME
THIS HAD OCCURRED IN CASSIDY'S EIGHT YEARS AS CHIEF.
/3/ THE UNION'S CENTRAL CONCERNS WAS THAT FAVORITISM, RATHER THAN
QUALIFICATIONS, WOULD CARRY THE DAY FOR CROUCH. ALMOST CERTAINLY,
CASSIDY WAS MOTIVATED TO SELECT CROUCH, AS SHE EVENTUALLY DID. WHETHER
THAT CHOICE OR DISPOSITION WAS BASED ON FAVORITISM, COMPARATIVE
QUALIFICATIONS OR UNION CONSIDERATIONS IS NOT BEFORE ME. THE PURPOSE
AND THE SENSE OF THE MEETING VIRTUALLY ENSURE THAT THERE WAS DISCUSSION
OF THE CANDIDATES' QUALIFICATIONS. WHETHER CASSIDY IN FACT EXPRESSED,
OR MERELY HARBORED THE BELIEF THAT CROUCH WAS MORE HIGHLY QUALIFIED THAN
WARD AND PAGE, IT IS APPARENT THAT SHE COULD RECEIVE EDENS' VIEWS AS A
STATEMENT THAT NO QUALIFIED CANDIDATES EXISTED, AND REACT BY REMINDING
HIM THAT HE NEED NOT WORRY: IN SUCH EVENT SHE COULD GO NATIONWIDE IN
HER SEARCH FOR SUPERVISORY TALENT.
/4/ IT APPEARS THAT CASSIDY DID NOT BELIEVE HER RIGHT TO REQUIRE
OVERTIME COULD BE EFFECTIVELY EXERCISED, AND THEREFORE ONLY SOLICITED
EMPLOYEES.
/5/ LEWIS CARR, A UNION MEMBER CALLED BY THE GENERAL COUNSEL, WHO
REGARDED THE STATEMENT AS A THREAT, WAS A VERY IMPRESSIVE WITNESS. HE
ACKNOWLEDGED THAT A GREAT DEAL OF OVERTIME WAS PERFORMED BETWEEN
JANUARY
AND APRIL, AND THAT IT HAD BEEN THE SUBJECT OF DISCUSSION AT THOSE
MONTHLY MEETINGS, BUT HE HAD NO RECOLLECTION THAT CASSIDY MENTIONED IT
AT THE APRIL MEETING.
/6/ WERE I TO CONCLUDE THAT THE REMARKS WERE INTENDED TO WARN
SIGNATORIES TO THE PETITION, I WOULD NEVERTHELESS RECOMMEND DISMISSAL.
THIS RECORD CONTAINS NO PROOF THAT THE PETITION WAS A SPECIES OF
PROTECTED UNION ACTIVITY, AS OPPOSED TO CONCERTED EMPLOYEE ACTIVITY
WHICH THE STATUTE DOES NOT PROTECT. WHILE THE CHARGE ALLEGES THAT THE
PETITION BECAME A PART OF A GRIEVANCE FILED ON MARCH 7, AND THERE IS A
STRONG LIKELIHOOD THAT IT WAS UNION ACTION, THERE IS NO EVIDENCE ON
WHICH TO PREDICATE SUCH A FINDING. NLRB REGION 17, A/SLMR NO. 295; VA
MEDICAL CTR., 1CA-112, 115, 135 (ALJ).
/7/ WOODLEE HAD ADVANCED VERY RAPIDLY, AND HAD EXPERIENCED NO
DIFFICULTY WITH TWO EARLIER APPRAISALS HANDLED BY LAMBERT PARRISH,
FORMER ASSISTANT CHIEF OF PRODUCTION AND SERVICE.
/8/ BOTH EDGIN AND CASSIDY TESTIFIED THAT THE REFERENCE WAS TO
PERFORMANCE, AND THAT THEY COULD NOT RECALL THE USE OF THE WORD
DISLOYAL. I CREDIT WOODLEE.
/9/ G.C. EXH. 9 RECORDS MANY INSTANCES OF UNSATISFACTORY PERFORMANCE.
WOODLEE ADMITTED THAT EDGINS SPOKE TO HIM ABOUT A NUMBER OF THESE
MATTERS.
/10/ DURING RESPONDENT'S EXAMINATION OF THE SECOND OF THREE DEFENSE
WITNESSES, COUNSEL FOR THE GENERAL COUNSEL MOVED TO AMEND THE COMPLAINT
IN CASE 6-CA-169 TO ADD A DISCRIMINATION ALLEGATION, A MOTION WHICH HE
RENEWS IN HIS BRIEF AS ONE TO CONFORM THE PLEADINGS TO THE PROOF. THIS
WAS NOT THE CONSEQUENCE OF DAMAGING ADMISSIONS SUPPORTIVE OF SUCH
ALLEGATION, BUT WAS RATHER PROVOKED BY MY QUESTIONING THE RELEVANCY OF
EVIDENCE HAVING TO DO WITH WHETHER OR NOT MR. WOODLEE'S PROMOTION TO
WG-8 WAS UNLAWFULLY DELAYED. RECEIVING NO SATISFACTORY ANSWER TO THE
QUESTION WHY COUNSEL FOR THE GENERAL COUNSEL DID NOT MOVE TO AMEND NO
LATER THAT AT THE COMMENCEMENT OF THE HEARING, I DENIED HIS MOTION. IN
THE ABSENCE OF AN UNFORESEEABLE DEVELOPMENT AT TRIAL WHICH WARRANTS AN
ADDITIONAL ALLEGATION. I DEEM IT INAPPROPRIATE TO PERMIT SUCH A
SUBSTANTIAL CHANGE IN THE NATURE OF THE LITIGATION AT SUCH A LATE STAGE
OF THE PROCEEDING. THE RENEWED MOTION IS THEREFORE DENIED.