Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri (Respondent) and American Federation of Government Employees, AFL-CIO, Local 3399 (Charging Party)

 



[ v08 p42 ]
08:0042(9)CA
The decision of the Authority follows:


 8 FLRA No. 9
 
 HARRY S. TRUMAN MEMORIAL VETERANS HOSPITAL,
 COLUMBIA, MISSOURI
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3399
 Charging Party
 
                                            Case No. 7-CA-118
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO A REGIONAL DIRECTOR'S
 "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS AUTHORITY" IN
 ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND
 REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS SUBMITTED BY THE
 PARTIES, THE AUTHORITY FINDS:
 
    AT ALL TIMES RELEVANT HEREIN, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3399 (THE UNION) WAS THE CERTIFIED EXCLUSIVE
 REPRESENTATIVE OF A UNIT OF THE RESPONDENT'S EMPLOYEES.  MS. MARY
 RATLIFF, A UNIT EMPLOYEE, WAS APPOINTED AS A PART-TIME EEO COUNSELOR IN
 1973 AND HAS SERVED IN THAT ROLE TO THE PRESENT TIME.  ADDITIONALLY, SHE
 WAS ELECTED VICE-PRESIDENT OF THE UNION IN MAY 1979, AND HAS ALSO SERVED
 IN THAT ROLE TO THE PRESENT TIME.
 
    ON MARY 17, 1979, IN A WRITTEN MEMORANDUM TO RATLIFF, THE RESPONDENT
 STATED THAT IT APPEARED THAT A POTENTIAL CONFLICT OF INTEREST MIGHT
 EXIST BETWEEN RATLIFF'S ROLE AS THE UNION VICE-PRESIDENT AND HER ROLE AS
 AN EEO COUNSELOR.  RESPONDENT REQUESTED RATLIFF'S RESPONSES TO CERTAIN
 QUESTIONS IN ORDER TO ENABLE MANAGEMENT TO DETERMINE WHETHER A CONFLICT
 OF INTEREST EXISTED IN HER CASE.  THESE QUESTIONS WERE WHETHER, IN HER
 ROLE AS UNION VICE-PRESIDENT, RATLIFF WOULD:  (A) REPRESENT EMPLOYEES IN
 APPEALS OF ADVERSE ACTIONS ON EEO HEARINGS OR APPEALS;  (B) REPRESENT
 EMPLOYEES IN GRIEVANCE PROCEDURES;  AND (C) REPRESENT THE UNION IN
 CONTRACT NEGOTIATIONS WITH MANAGEMENT.
 
    RATLIFF REPLIED AS FOLLOWS:
 
    (A) MY ROLE AS VICE-PRESIDENT IN ITSELF DOES NOT REQUIRE ME TO
 REPRESENT EMPLOYEES IN GRIEVANCE(S), THIS IS A (STEWARD'S) FUNCTION.
 
    (B) (ADVISE) EMPLOYEES ON PROCEDURES WHEN REQUIRED BUT WOULD AGAIN
 NOT BE THE REPRESENTATIVE.
 
    (C) I WILL POSSIBLY BE INVOLVED WITH CONTRACT NEGOTIATIONS.
 
    ON JUNE 5, 1979, AFTER RECEIVING RATLIFF'S RESPONSES, RESPONDENT
 ISSUED A WRITTEN MEMORANDUM TO RATLIFF STATING THAT RESPONDENT WAS STILL
 CONCERNED THAT A POTENTIAL CONFLICT OF INTEREST MAY EXIST AND NOTIFYING
 HER THAT RESPONDENT WOULD ASK FOR HER RESIGNATION AS EEO COUNSELOR IF,
 IN THE FUTURE, IN THE EXERCISE OF HER DUTIES AS UNION VICE-PRESIDENT,
 SHE:  (A) REPRESENTED EMPLOYEES IN APPEALS OF ADVERSE ACTIONS ON EEO
 HEARINGS OR APPEALS;  (B) REPRESENTED EMPLOYEES IN GRIEVANCE PROCEDURES;
  OR (C) REPRESENTED THE UNION IN CONTRACT NEGOTIATIONS WITH MANAGEMENT.
 IT WAS STIPULATED THAT THE MEMORANDA OF MAY 17 AND JUNE 5 WERE ISSUED BY
 RESPONDENT IN GOOD FAITH, BASED ON ITS CONCERN THAT A CONFLICT OF
 INTEREST EXISTED, WITHIN THE MEANING OF SECTION 7120(E) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, /1/ BY VIRTUE OF RATLIFF'S
 SIMULTANEOUSLY SERVING IN BOTH THE POSITIONS OF UNION VICE-PRESIDENT AND
 PART-TIME EEO COUNSELOR. /2/
 
    THE UNION FILED AND SERVED ON RESPONDENT AN UNFAIR LABOR PRACTICE
 CHARGE ON JUNE 18, 1979, ALLEGING THAT THE RESPONDENT VIOLATED SECTIONS
 7116(A)(1) AND (2) OF THE STATUTE.  THE BASIS FOR THE CHARGE WAS THAT
 THE RESPONDENT ATTEMPTED TO COERCE RATLIFF BY THREATENING THE LOSS OF
 HER POSITION AS PART-TIME EEO COUNSELOR UNLESS SHE RESIGNED HER POSITION
 AS UNION VICE-PRESIDENT.  THE FIRST AMENDED CHARGE WAS FILED BY THE
 UNION ON FEBRUARY 11, 1980, DROPPING THE SECTION 7116(A)(2) ALLEGATION,
 AND A COPY THEREOF WAS SERVED UPON RESPONDENT ON FEBRUARY 29, 1980,
 SIMULTANEOUSLY WITH THE COMPLAINT AND NOTICE OF HEARING.  THE COMPLAINT
 ALLEGES THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE STATUTE BY
 THE ISSUANCE OF THE JUNE 5, 1979, MEMORANDUM TO RATLIFF.
 
    IN THE COMPLAINT AND THEIR SUBMITTED BRIEFS BOTH THE GENERAL COUNSEL
 AND THE UNION TAKE THE POSITION THAT THE CONDUCT BY THE RESPONDENT
 INTERFERED WITH AND RESTRAINED MS. RATLIFF IN EXERCISING HER RIGHT TO
 ACT AS A REPRESENTATIVE OF A LABOR ORGANIZATION.  THE RESPONDENT, ON THE
 OTHER HAND, ARGUES THAT BY ISSUANCE OF THE JUNE 5, 1979, MEMORANDUM, IT
 DID NOT VIOLATE SECTION 7116(A)(1) AND FURTHER TAKES THE POSITION THAT
 RATLIFF'S SIMULTANEOUSLY SERVING DUAL ROLES OF EEO COUNSELOR AND UNION
 VICE-PRESIDENT NECESSARILY CREATES A CONFLICT OR APPARENT CONFLICT OF
 INTEREST PROSCRIBED BY SECTION 7120(E) OF THE STATUTE.
 
    IN A PREVIOUS CASE, NOTING THAT THERE WAS NO EVIDENCE OF ANTI-UNION
 MOTIVATION AND NOTHING IN THE RECORD OTHERWISE CAST DOUBT UPON THE
 LEGITIMACY OF THE STATED REASONS GIVEN FOR AN AGENCY'S TERMINATION OF AN
 EMPLOYEE AS AN EEO COUNSELOR, THE AUTHORITY FOUND THAT AN AGENCY DID NOT
 COMMIT AN UNFAIR LABOR PRACTICE WHEN IT ATTEMPTED TO ACT CONSONANT WITH
 THE "CONFLICT OF INTEREST" PROVISION OF SECTION 7120(E). DEPARTMENT OF
 HEALTH, EDUCATION AND WELFARE, REGION VIII, DENVER, COLORADO, SOCIAL
 SECURITY ADMINISTRATION, REGION VIII, DENVER, COLORADO, AND SOCIAL
 SECURITY ADMINISTRATION, DENVER DISTRICT, DENVER, COLORADO, 6 FLRA NO.
 110(1981).  IN THE SUBJECT CASE, THE AUTHORITY FINDS THAT THE
 RESPONDENT'S ISSUANCE OF THE JUNE 5, 1979, MEMORANDUM TO RATLIFF,
 INFORMING HER THAT THE RESPONDENT WOULD ASK FOR HER RESIGNATION AS EEO
 COUNSELOR SHOULD SHE PERFORM CERTAIN DUTIES AS UNION VICE-PRESIDENT, WAS
 MERELY AN ADMONISHMENT TO RATLIFF NOT TO ENGAGE IN SPECIFIED FUTURE
 CONDUCT WHICH WOULD CONSTITUTE A CONFLICT OR APPARENT CONFLICT OF
 INTEREST UNDER SECTION 7120(E) OF THE STATUTE.  THEREFORE, NOTING THE
 ABSENCE OF EVIDENCE OF ANTI-UNION MOTIVATION AND THE FACT THAT
 RESPONDENT DID NOT REQUEST OR REQUIRE RATLIFF TO RESIGN EITHER OF HER
 POSITIONS, THE RESPONDENT BY ITS ACTIONS DID NOT INTERFERE WITH,
 RESTRAIN OR COERCE RATLIFF IN THE EXERCISE OF HER RIGHTS AS ASSURED BY
 SECTION 7102 OF THE STATUTE.  ACCORDINGLY, THE AUTHORITY SHALL DISMISS
 THE COMPLAINT.  3/3
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-118 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7120(E) PROVIDES:
 
    (E) THIS CHAPTER DOES NOT AUTHORIZE PARTICIPATION IN THE MANAGEMENT
 OF A LABOR ORGANIZATION
 
    OR ACTING AS A REPRESENTATIVE OF A LABOR ORGANIZATION . . . BY AN
 EMPLOYEE IF THE
 
    PARTICIPATION OR ACTIVITY WOULD RESULT IN A CONFLICT OR APPARENT