09:0902(123)CA - VA, VA Medical Center, Fayetteville, AR and AFGE Local 2201 -- 1982 FLRAdec CA



[ v09 p902 ]
09:0902(123)CA
The decision of the Authority follows:


 9 FLRA No. 123
 
 VETERANS ADMINISTRATION, VETERANS
 ADMINISTRATION MEDICAL CENTER,
 FAYETTEVILLE, ARKANSAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2201, AFL-CIO
 Charging Party
 
                                            Case No. 6-CA-615
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
 IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING
 THAT THE COMPLAINT BE DISMISSED.  THEREAFTER, THE GENERAL COUNSEL FILED
 EXCEPTIONS TO THE JUDGE'S DECISION AND THE RESPONDENT FILED AN
 OPPOSITION THERETO.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
 JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-615 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 6, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    CHARLES J. PUGH, ESQ.
                     FOR THE RESPONDENT
 
    SUSAN E. JELEN, ESQ.
                     FOR THE GENERAL COUNSEL
 
    BEFORE:  ALAN W. HEIFETZ
                     ADMINISTRATIVE LAW JUDGE
 
                             CASE NO. 6-CA-615
 
                                 DECISION
 
    STATEMENT OF THE CASE
 
    THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL SERVICE
 LABOR-MANAGEMENT STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF AN
 UNFAIR LABOR PRACTICE CHARGE FILED JUNE 20, 1980, WITH THE FEDERAL LABOR
 RELATIONS AUTHORITY.  CONSEQUENTLY, ON AUGUST 29, 1980, THE REGIONAL
 DIRECTOR, REGION VI, OF THE AUTHORITY ISSUED A COMPLAINT ALLEGING THAT
 RESPONDENT HAS NOT PROMOTED DARREL W. EDENS, LEWIS CARR AND CLIFFORD
 WARD TO THE POSITION OF FOOD SERVICE WORKER FOREMAN, WS-2, BECAUSE OF
 THEIR UNION ACTIVITIES.
 
    A HEARING WAS HELD ON JANUARY 6, 1981, IN FAYETTEVILLE, ARKANSAS.
 ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE
 WITNESSES AND TO INTRODUCE EVIDENCE.  POST-HEARING BRIEFS HAVE BEEN
 FILED AND CONSIDERED.  UPON THE ENTIRE RECORD, INCLUDING MY OBSERVATION
 OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.
 
                             FINDINGS OF FACT
 
    THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2201
 IS, AND AT ALL TIMES RELEVANT TO THIS PROCEEDING HAS BEEN THE EXCLUSIVE
 BARGAINING REPRESENTATIVE FOR THE DIETETIC SERVICE, VETERANS
 ADMINISTRATION MEDICAL CENTER, FAYETTEVILLE, ARKANSAS.  THERE ARE
 APPROXIMATELY FORTY EMPLOYEES IN THE DIETETIC SERVICE.
 
    ON APRIL 14, 1980, VACANCY ANNOUNCEMENT NO. 80-17, FOOD SERVICE
 WORKER FOREMAN, WS-2, DIETETIC SERVICE, WAS POSTED IN ACCORDANCE WITH
 THE MERIT PROMOTION PLAN AND THE UNION CONTRACT.  TEN OR ELEVEN
 INDIVIDUALS APPLIED FOR THE JOB AND A MERIT PROMOTION PANEL WAS DULY
 CONVENED TO DETERMINE WHICH APPLICANTS WOULD BE CERTIFIED TO THE
 SELECTING OFFICIAL FOR CONSIDERATION.  THE PANEL CERTIFIED SIX EMPLOYEES
 AS QUALIFIED AND SUBMITTED THEIR NAMES TO DORIS CASSIDY, CHIEF OF THE
 DIETETIC SERVICE FOR THE PAST TWELVE YEARS, WHO WAS THE SELECTING
 OFFICIAL.  THE SIX APPLICANTS WERE LEWIS CARR, DARREL W. EDENS, HOMER
 GROSS AND CLIFFORD WARD, FROM THE FAYETTEVILLE STATION, AND IGOR
 HUDDLESTON AND ROY LEE PARIS, FROM OUTSIDE THE FAYETTEVILLE STATION.
 
    MRS. CASSIDY REQUESTED EACH APPLICANT'S SUPPLEMENTAL EXPERIENCE
 STATEMENT FOR IN-SERVICE PLACEMENT.  SHE ALSO REQUESTED THE ORIGINAL
 APPLICATIONS FOR THE TWO OFF-STATION APPLICANTS.  SHE DECIDED TO
 CONSTRUCT A WORK SHEET AND MADE NOTATIONS OF EACH APPLICANT'S EDUCATION,
 TRAINING, EXPERIENCE, AND LEAVE RECORDS.  MRS. CASSIDY PERSONALLY
 INTERVIEWED THE FOUR APPLICANTS LOCATED IN FAYETTEVILLE AND
 TELEPHONICALLY INTERVIEWED THE OTHER TWO.  FOLLOWING THE INTERVIEWS, SHE
 SELECTED HOMER GROSS FOR THE VACANT POSITION AND NOTIFIED HIM IN WRITING
 ON MAY 23, 1980.
 
    REGARDING EDUCATION, GROSS, HUDDLESTON AND PARIS WERE THE ONLY
 APPLICANTS WITH COLLEGE BACKGROUNDS.  BOTH GROSS AND HUDDLESTON WERE
 CONSIDERED TO HAVE VERY GOOD WRITTEN EXPRESSION.  MRS. CASSIDY CONCLUDED
 THAT CARR AND WARD COULD EXPRESS THEMSELVES FAIRLY WELL IN WRITTEN FORM
 BUT THAT EDENS' WRITTEN SELF EXPRESSION WAS POOR.  IN VERBAL EXPRESSION,
 HUDDLESTON WAS RATED EXCELLENT;  GROSS, VERY GOOD;  CARR, WARD AND
 PARIS, GOOD;  AND EDENS, FAIR.
 
    ALTHOUGH GROSS HAD WORKED ONLY TWO YEARS FOR RESPONDENT, MRS.
 CASSIDY GAVE CONSIDERATION TO THE LEADERSHIP TRAINING HE HAD RECEIVED
 AND THE LEADERSHIP TRAINING HE HAD TAUGHT SOME YEARS BEFORE.  BOTH CARR
 AND WARD HAD RECEIVED ON-THE-JOB TRAINING, BUT EDENS', WAS QUITE
 LIMITED.
 
    AS TO EXPERIENCE, GROSS HAD SUPERVISED UP TO AS MANY AS 160 OR SO
 INDIVIDUALS.  HE ALSO HAD EXPERIENCE DOCUMENTING JOB DESCRIPTIONS AND
 PERFORMANCE REQUIREMENTS.  HUDDLESTON HAD SUPERVISED AS MANY AS
 FORTY-FIVE EMPLOYEES.  IN 1978, CARR SERVED AS A RELIEF SUPERVISOR FOR
 APPROXIMATELY 26 EMPLOYEES.  IN 1978, CARR SERVED AS A RELIEF SUPERVISOR
 FOR APPROXIMATELY 26 WEEKS WHEN TWO REGULAR SUPERVISORS WERE ON
 EXTENDED
 SICK LEAVE.  DURING THIS TIME HE HAD FULL RESPONSIBILITY FOR FOOD
 SERVICE SUPERVISION EXCEPT FOR APPRAISALS AND EVALUATIONS OF EMPLOYEES.
 HE ALSO TRAINED NEW EMPLOYEES.  HE RECEIVED A PERFORMANCE AWARD FOR HIS
 WORK THAT YEAR BUT WAS ALSO COUNSELED ABOUT A SUIT FILED AGAINST HIM BY
 A FORMER EMPLOYEE INVOLVING AN ALLEGED BAD DEBT.  WARD HAD THE
 OPPORTUNITY TO SERVE AS A RELIEF SUPERVISOR AND TO TRAIN NEW EMPLOYEES
 BUT EDENS SERVED ONLY SPARINGLY AS A RELIEF SUPERVISOR BECAUSE OF
 INTERNAL PERSONNEL PROBLEMS ARISING WHEN HE SO SERVED.
 
    REVIEW OF LEAVE RECORDS DISCLOSED THAT CARR HAS USED 110 HOURS OF
 SICK LEAVE IN THE LAST TWO YEARS WITH ALL BUT 24 HOURS IN CONNECTION
 WITH HIS DAYS OFF DUTY.  CARR HAD BEEN COUNSELED ABOUT SICK LEAVE IN HIS
 FIRST TWO YEARS OF EMPLOYMENT WITH RESPONDENT AND AGAIN RECENTLY.  /2/
 EDENS WAS ALSO COUNSELED ON SICK LEAVE.  AFTER NINE YEARS OF EMPLOYMENT,
 HE HAD A BALANCE OF ONLY 28 HOURS.  HE ACCUMULATES FOUR HOURS FOR EACH
 OF 26 PAY PERIODS PER YEAR.
 
    THE GENERAL COUNSEL INTRODUCED EXHIBITS WHICH CONTAINED RATINGS OF
 THE FOUR APPLICANTS FROM THE FAYETTEVILLE STATION WHICH WERE COMPLETED
 BY HERMAN EDGIN, CHIEF OF PRODUCTION AND SERVICE, AND SANDRA LAFOLLETTE,
 FOOD SERVICE WORKER FOREMAN, WS-2.  THESE RATINGS, WHICH WERE COMPLETED
 WITHIN THE TWO MONTHS PRIOR TO THE SELECTION BEING MADE, WERE ENTITLED
 QUALIFICATIONS ANALYSIS AND ASSESSMENT OF POTENTIAL FOR SUPERVISORY
 POSITIONS, AND APPRAISAL OF EMPLOYEE FOR PROMOTION TO NONSUPERVISORY OR
 FIRST LEVEL SUPERVISORY POSITION.  A REVIEW OF THOSE RATINGS SHOWS THAT
 THESE TWO SUPERVISORS PUT GROSS AND CARR AT THE TOP AND JUST ABOUT EVEN,
 WARD WAS PLACED THIRD, AND EDENS, A DISTANT FOURTH.
 
    ALTHOUGH THERE WAS NO TESTIMONY FROM MEMBERS OF THE MERIT PROMOTION
 PANEL WHICH RATED THE APPLICANTS PRIOR TO THEIR CERTIFICATION TO MRS.
 CASSIDY, A UNION OBSERVER AT THE MEETING OF THE PANEL DID TESTIFY.
 RONALD B. PERKINS IS THE UNION STEWARD WHO OBSERVED THE PROCESS THE
 PANEL WENT THROUGH IN ITS EVALUATION OF THE APPLICANTS.  HE VOICED NO
 COMPLAINTS WITH THAT PROCESS.  ALTHOUGH THE FINAL SCORES WERE NOT
 COMPUTED UNTIL AFTER THE PANEL CONVENED, MR.  PERKINS BELIEVED THAT, ON
 THE BASIS OF THE RAW SCORES WHICH HE SAW, CARR CAME OUT ON TOP, WITH
 SECOND PLACE BETWEEN GROSS AND WARD, AND EDENS COMING OUT IN FOURTH
 SPOT.
 
    AS A RESULT OF HIS NONSELECTION FOR A FOREMAN POSITION IN JANUARY OF
 1979, MR. WARD FILED A GRIEVANCE.  HE WAS REPRESENTED BY MR. EDENS WHO,
 ALONG WITH MR. CARR, TESTIFIED IN THAT PROCEEDING AGAINST RESPONDENT AND
 MRS. CASSIDY.  /3/ THE GRIEVANCE WENT TO ARBITRATION IN JULY OF 1979,
 AND, IN SEPTEMBER OF THAT YEAR, THE ARBITRATOR UPHELD THE GRIEVANCE.  A
 YEAR LATER, THE ARBITRATOR'S DECISION WAS UPHELD AND, IN DECEMBER OF
 1980, MR. WARD WAS ACCORDINGLY PROMOTED TO THE SUPERVISOR'S POSITION.
 
    FOUR UNFAIR LABOR PRACTICE COMPLAINTS WERE HEARD ON A CONSOLIDATED
 RECORD IN FAYETTEVILLE ON APRIL 8 AND 9, 1980.  THEY ALL INVOLVED MRS.
 CASSIDY.  IN THREE OF THE CASES, THE PRESIDING ADMINISTRATIVE LAW JUDGE
 RECOMMENDED DISMISSAL OF THE COMPLAINTS.  IN ONE, A CASE ALLEGING THAT
 MRS. CASSIDY THREATEN TO WITHOLD A PROMOTION FROM MR. EDENS, AND ONE IN
 WHICH MR. CARR TESTIFIED, THE ADMINISTRATIVE LAW JUDGE FOUND THAT MRS.
 CASSIDY DID THREATEN TO DENY PROMOTION TO THOSE UNION MEMBERS WHO
 QUESTIONED HER MOTIVES IN THE SELECTION PROCESS.
 
                                CONCLUSIONS
 
    COUNSEL FOR THE GENERAL COUNSEL ARGUES THAT, ON THE BASIS OF THE
 FACTS IN THIS CASE, RESPONDENT HAS VIOLATED SECTIONS 7116(A)(1), (2) AND
 (4) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE SINCE (1)
 THE EMPLOYEES WERE ENGAGED IN PROTECTED ACTIVITY, (2) RESPONDENT HAD
 KNOWLEDGE OF THAT ACTIVITY, AND (3) RESPONDENT DISCRIMINATED AGAINST THE
 EMPLOYEES BECAUSE OF THEIR PROTECTED ACTIVITY.  RESPONDENT ARGUES THAT
 THERE IS NO CAUSATION BETWEEN THE NONSELECTION OF THE EMPLOYEES AND
 THEIR PROTECTED ACTIVITY.
 
    OBVIOUSLY, THERE IS NO QUESTION BUT THAT EMPLOYEES CARR, WARD AND
 EDENS WERE ENGAGING IN PROTECTED ACTIVITY WHEN THEY PARTICIPATED IN THE
 GRIEVANCE PROCEDURE.  RESPONDENT DOES NOT DENY THAT PROPOSITION, NOR
 DOES IT DENY KNOWLEDGE OF SUCH PROTECTED ACTIVITY.  THE QUESTION IN THIS
 CASE IS WHETHER THAT PROTECTED ACTIVITY HAD ANYTHING TO DO WITH THE
 SELECTION OF GROSS FOR PROMOTION BY MRS. CASSIDY.  I CONCLUDED THAT IT
 DID NOT AND THAT THE COMPLAINT, THEREFORE, SHOULD BE DISMISSED.
 
    COUNSEL FOR THE GENERAL COUNSEL RELIES UPON THE FINDINGS IN THE PRIOR
 UNFAIR LABOR PRACTICE CASE TO SHOW ANIMUS AND THEN ARGUES THAT THE
 TIMING OF THE PROTECTED ACTIVITY AND THE NONSELECTION OF THE UNION
 ACTIVISTS IS ENOUGH TO SUSTAIN HER BRUDEN OF PROOF.  RESPONDENT ARGUES
 THAT THERE IS NO CAUSATION PROVED BETWEEN THE PROTECTED ACTIVITY AND THE
 SELECTION OF MR. GROSS.
 
    WHILE COUNSEL FOR THE GENERAL COUNSEL CORRECTLY CITES AUTHORITY FOR
 THE PROPOSITION THAT THE TRIER OF FACT MAY INFER MOTIVE FROM THE TOTAL
 CIRCUMSTANCES PROVED, /4/ IT IS ALSO TRUE THAT AN INFERENCE IS A
 CONCLUSION WHICH THE TRIER OF FACT IS PERMITTED, BUT NO COMPELLED TO
 DRAW FROM THE FACTS.  /5/
 
    IN THIS CASE, I DECLINE TO DRAW AN INFERENCE FROM THE TIMING OF THE
 PROTECTED ACTIVITY AS IT RELATED TO THE SELECTION FOR PROMOTION.  FIRST
 OF ALL, THE THREAT WHICH WAS FOUND TO HAVE TAKEN PLACE OCCURRED MORE
 THAN A YEAR BEFORE THE TESTIMONY IN THE UNFAIR LABOR PRACTICE CASE WHICH
 WAS HEARD IN APRIL OF 1980 /6/ THE FINDINGS IN THAT CASE DO NOT SPEAK TO
 MRS. CASSIDY'S STATE OF MIND AT THE TIME OF THE HEARING.  SECONDLY, THE
 SELECTION TOOK PLACE MORE THAN SIX WEEKS AFTER THE HEARING IN THE UNFAIR
 LABOR PRACTICE CASE AND TWO TO FOUR WEEKS AFTER THE APPLICANTS HAD BEEN
 RATED BY MS. LAFOLLETTE AND MR. EDGIN.  IT HAS NOT BEEN CONTENDED THAT
 THE SELECTING PROCEDURES IN ANY WAY VIOLATED MERIT PROMOTION PRINCIPLES
 AND I CONCLUDE THAT THE PROCESS OF DELIBERATION BETWEEN THE TIME OF THE
 HEARING IN THE UNFAIR LABOR PRACTICE CASE AND THAT OF SELECTION, BELIES
 ANY CONCLUSION THAT THE CHOICE WAS HASTY OR UNTOWARD.
 
    IN ANY EVENT, EVEN WERE I TO INFER THAT UNION ANIMUS PLAYED A PART IN
 THE SELECTION, AT BEST THAT WOULD ONLY IMPOSE ON RESPONDENT THE BURDEN
 OF GOING FORWARD WITH EVIDENCE TO REBUT OR MEET THAT INFERENCE, IT WOULD
 NOT SHIFT THE BURDEN OF PROOF FROM THE GENERAL COUNSEL.  /7/ ON THE
 FACTS, RESPONDENT HAS MET ITS BURDEN.  THE CRUX OF THIS ENTIRE CASE IS
 THE CREDIBILITY OF MRS. CASSIDY;  AND, BASED ON THE EVIDENCE OF RECORD
 AND HER DEMEANOR ON THE STAND AS SHE TESTIFIED, I BELIEVE THAT THE UNION
 ACTIVITIES OF CARR, WARD AND EDENS DID NOT PLAY A PART IN HER SELECTION
 OF GROSS.  I DO BELIEVE THAT SHE WAS UPSET BY THE FACT THAT SHE WAS
 CHARGED WITH UNFAIR LABOR PRACTICES BUT I BELIEVE THAT FROM THAT
 EXPERIENCE, SHE WAS DETERMINED TO BASE FUTURE PROMOTION SELECTIONS ON AS
 SOLID GROUND AS POSSIBLE.  IT WAS FOR THIS REASONS THAT SHE DECIDED FOR
 THE FIRST TIME TO PREPARE A COMPARISON CHART OF THE EDUCATION, TRAINING
 AND EXPERIENCE OF THE APPLICANTS.  IT IS SIGNIFICANT THAT NONE OF THE
 FACTS CONTAINED ON THAT CHART WERE SPECIFICALLY CHALLENGED ALTHOUGH,
 IMPLICITLY, THE WEIGHT TO BE GIVEN EACH FACTOR WAS ARGUED.  SUFFICE IT
 TO SAY, I CANNOT CONCLUDE THAT HER REASONING OR JUSTIFICATION FOR
 SELECTING MR. GROSS WERE PRETEXTUAL.  THERE WAS A RATIONAL BASIS FOR HER
 SELECTION AND, OTHER THAN THE TIMING OF THE HEARING AND THE SELECTION,
 NOT ONE FACT IS OF RECORD WHICH WOULD PERMIT EVEN AN INFLUENCE OF ANIMUS
 OR INTENT TO DISCRIMINATE.
 
    AS NOTED PREVIOUSLY, THE RATINGS COMPLETED BY MR. EDGIN AND MS.
 LAFOLLETTE ARE UNCHALLENGED.  THEY SHOW CONCLUSIVELY THAT WARD AND EDENS
 WOULD NOT HAVE BEEN SELECTED OVER EITHER GROSS OR CARR.  THOSE RATINGS
 GIVE SUPPORT TO MRS. CASSIDY'S FINAL RANKINGS.  CARR'S LEAVE RECORD
 WORKED AGAINST HIM AND I CANNOT CONCLUDE THAT MRS. CASSIDY'S CONCERN
 WITH IT WAS NOT JUSTIFIED.  I CONCLUDE THAT THE CHOICE OF GROSS WAS
 FACIALLY LAWFUL AND THAT THE EVIDENCE DOES NOT WARRANT A CONCLUSION THAT
 UNION ANIMUS PLAYED ANY PART IN THE SELECTION.  THE FACT THAT MRS.
 CASSIDY WAS FOUND TO HAVE MADE THREATS TO EMPLOYEES MORE THAN A YEAR
 PRIOR TO THE SELECTION PROCESS CANNOT, STANDING ALONG, IMMUNIZE THOSE
 EMPLOYEES AGAINST NONSELECTION FOR PROMOTION.
 
    HAVING FOUND AND CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE THE
 STATUTE AS ALLEGED, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS
 AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 CFR 2423.29(C):
 
                                   ORDER
 
    ORDERED, THAT THE COMPLAINT IN CASE NO. 6-CA-615 IS DISMISSED.
 
                         ALAN W. HEIFETZ
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 12, 1981
            WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ INTERNAL REVENUE SERVICE, WASHINGTON, D.C., 6 FLRA NO.  23(1981).
 
    /2/ THIS COUNSELING WAS REMOVED FROM HIS FILE AFTER AN UNFAIR LABOR
 PRACTICE CHARGE WAS FILED BY THE UNION.
 
    /3/ EDENS HAD BEEN PROMOTED BY MRS. CASSIDY TO WG-4 AFTER HE HAD
 FILED (AND NOT BECAUSE OF) SOME GRIEVANCES.
 
    /4/ SHATTUCK DENN MINING CORP., (