12:0552(107)CA - VA Medical Center, Bath, NY and VA Washington, DC and AFGE Local 491 -- 1983 FLRAdec CA



[ v12 p552 ]
12:0552(107)CA
The decision of the Authority follows:


 12 FLRA No. 107
 
 VETERANS ADMINISTRATION MEDICAL CENTER
 BATH, NEW YORK AND VETERANS
 ADMINISTRATION, WASHINGTON, D.C.
 Respondents
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 491
 Charging Party
 
                                            Case Nos. 1-CA-115 
                                                      1-CA-276 
                                                      1-CA-394 
                                                      1-CA-397 
                                                      1-CA-574
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondents had engaged in
 certain unfair labor practices alleged in the consolidated complaint and
 recommending that they be ordered to cease and desist therefrom and take
 certain affirmative action.  The Judge found that the Respondents had
 not engaged in other unfair labor practices alleged in the consolidated
 complaint.  The General Counsel filed exceptions limited to the
 conclusion in the Judge's Decision that the allegations of the complaint
 in Case No. 1-CA-115 should be dismissed and as to the geographic scope
 of the Judge's recommended notice posting.
 
    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 in this proceeding, and noting
 especially the absence of exceptions in Case Nos. 1-CA-276, 1-CA-394,
 1-CA-397 and 1-CA-574, the Authority hereby adopts the Judge's findings,
 conclusions /1/ and Recommended Order.
 
                                 ORDER /2/
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority hereby orders that the
 Veterans Administration Medical Center, Bath, New York and the Veterans
 Administration, Washington, D.C., shall:
 
    1.  Cease and desist from:
 
    (a) Instituting at the Veterans Administration Medical Center, Bath,
 New York, changes in the practice of providing a noon meal to physicians
 assigned duty as Medical Officer of the Day on Monday through Friday,
 and the practice of assigning 24-hour tours of duty to those selected to
 serve as Medical Officer of the Day on Monday through Friday, without
 first notifying the American Federation of Government Employees,
 AFL-CIO, Local 491, the exclusive representative of its employees, and
 affording such representative the opportunity to negotiate in good
 faith, to the extent consonant with law, regulations and the Federal
 Service Labor-Management Relations Statute, with regard to any proposed
 changes in such established practices.
 
    (b) Interfering with, restraining, or coercing Chaplain Ronald Gunton
 in the exercise of rights assured by the Federal Service
 Labor-Management Relations Statute, by causing the initiation of
 investigation into his Church accreditation because of his participation
 in protected activities on behalf of the American Federation of
 Government Employees, AFL-CIO, Local 491, and because he filed unfair
 labor practice charges under the Federal Service Labor-Management
 Relations Statute.
 
    (c) Discouraging Chaplain Ronald Gunton from membership in a labor
 organization by causing the initiation of investigation into his Church
 accreditation because of his participation in protected activities on
 behalf of the American Federation of Government Employees, AFL-CIO,
 Local 491, and because he filed unfair labor practice charges under the
 Federal Service Labor-Management Relations Statute.
 
    (d) Discouraging Chaplain Ronald Gunton from membership in a labor
 organization by the removal of Chaplain Gunton from the Equal Employment
 Opportunity Committee serving the Veterans Administration Medical
 Center, Bath, New York, because of his participation in protected
 activities on behalf of the American Federation of Government Employees,
 AFL-CIO, Local 491, and because he filed unfair labor practice charges
 under the Federal Service Labor-Management Relations Statute.
 
    (e) Refusing to meet, confer and negotiate with the American
 Federation of Government Employees, AFL-CIO, Local 491, by removing
 Chaplain Ronald Gunton from the Equal Employment Opportunity Committee
 serving the Veterans Administration Medical Center, Bath, New York, and
 by denying Chaplain Gunton the right to serve on the mentioned Equal
 Employment Opportunity Committee as the designated representative of the
 American Federation of Government Employees, AFL-CIO, Local 491.
 
    (f) Interfering with, restraining, or coercing Chaplain Ronald Gunton
 in the exercise of rights assured by the Federal Service
 Labor-Management Relations Statute by the inclusion of a copy of a June
 10, 1980 unfair labor practice charge relating to Case No. 1-CA-394 in
 Chaplain Gunton's personnel extension file in the Office of the Chief of
 Chaplains, Veterans Administration, Washington, D.C.
 
    (g) Instituting at the Veterans Administration Medical Center, Bath,
 New York, changes in Chaplain Ronald Gunton's tour of duty without first
 notifying the American Federation of Government Employees, AFL-CIO,
 Local 491, the exclusive representative of its employees, and affording
 such representative the opportunity to negotiate in good faith, to the
 extent consonant with law, regulations and the Federal Service
 Labor-Management Relations Statute, with regard to any proposed change
 in his tour of duty.
 
    (h) In any like or related manner interfering with, restraining, or
 coercing its 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) Rescind the changes effectuated on February 29, 1980, at the
 Veterans Administration Medical Center, Bath, New York, in connection
 with the practice of providing a noon meal to physicians assigned duty
 as Medical Officer of the Day on Monday through Friday, and the practice
 of assigning 24-hour tours of duty to those selected to serve as Medical
 Officer of the Day on Monday through Friday.
 
    (b) Notify the American Federation of Government Employees, AFL-CIO,
 Local 491, the exclusive representative of its employees, of any
 proposed change in the practice of providing a noon meal to physicians
 assigned duty as Medical Officer of the Day on Monday through Friday,
 and the practice of assigning 24-hour tours of duty to those selected to
 serve as Medical Officer of the Day on Monday through Friday, and upon
 request, negotiate in good faith, to the extent consonant with law,
 regulations and the Federal Service Labor-Management Relations Statute,
 concerning such intended changes.
 
    (c) Notify Reverend Paul Strickland, Director, American Baptist
 Chaplaincy and Pastoral Counseling, National Ministries, American
 Baptist Churches, Valley Forge, Pennsylvania, of this Order, and
 formally request the return of all documents forwarded to Reverend
 Strickland for the purpose of furnishing a basis for withdrawal of the
 endorsement of Chaplain Ronald Gunton by the American Baptist Churches.
 
    (d) Rescind the March 18, 1980 memorandum addressed to the President
 of the American Federation of Government Employees, AFL-CIO, Local 491,
 by Mr. Milton Salmon, Medical Center Director, Veterans Administration
 Medical Center, Bath, New York, for the purpose of effectuating
 termination of Chaplain Ronald Gunton's appointment to the Equal
 Employment Opportunity Committee serving the Veterans Administration
 Medical Center, Bath, New York.
 
    (e) Remove from Chaplain Ronald Gunton's personnel extension file in
 the Office of the Chief of Chaplains, Veterans Administration,
 Washington, D.C., all copies of the June 10, 1980 unfair labor practice
 charge relating to Case No. 1-CA-394.
 
    (f) Rescind the November 5, 1980 memorandum addressed to Chaplain
 Ronald Gunton by Chaplain John Howe for the purpose of effectuating a
 change in Chaplain Gunton's tour of duty.
 
    (g) Notify the American Federation of Government Employees, AFL-CIO,
 Local 491, the exclusive representative of its employees, of any
 proposed change in the tour of duty assigned to Chaplain Ronald Gunton,
 and upon request, negotiate in good faith to the extent consonant with
 law, regulations and the Federal Service Labor-Management Relations
 Statute concerning such change.
 
    (h) Post at its facilities at the Veterans Administration,
 Washington, D.C., and at the Veterans Administration Medical Center,
 Bath, New York, copies of the attached Notice on forms to be furnished
 by the Federal Labor Relations Authority.  Upon receipt of such forms,
 they shall be signed by the Administrator, Veterans Administration
 Washington, D.C., or his designee, and shall be posted and maintained
 for 60 consecutive days thereafter, in conspicuous places, where notices
 to employees are customarily posted.  Reasonable steps shall be taken to
 insure that such Notices are not altered, defaced, or covered by other
 material.
 
    (i) Pursuant to Section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region I, 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.
 
    IT IS HEREBY FURTHER ORDERED that the remaining allegations of the
 consolidated complaint be, and they hereby are, dismissed.  
 
 Issued, Washington, D.C., August 16, 1983 
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          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 institute changes at the Veterans Administration Medical
 Center, Bath, New York, in the practice of providing a noon meal to
 physicians assigned duty as Medical Officer of the Day on Monday ;
 through Friday, and the practice of assigning 24-hour tours of duty to
 those selected to serve as Medical Officer of the Day, without first
 notifying the American Federation of Government Employees, AFL-CIO,
 Local 491, the exclusive representative of our employees, and affording
 such representative the opportunity to negotiate in good faith, to the
 extent consonant with law, regulations, and the Federal Service
 Labor-Management Relations Statute, with regard to any proposed changes
 in such established practices.  WE WILL NOT interfere with, restrain, or
 coerce Chaplain Ronald Gunton in the exercise of rights assured by the
 Federal Service Labor-Management Relations Statute by causing the
 initiation of investigation into his Church accreditation because of his
 participation in protected activities on behalf of the American
 Federation of Government Employees, AFL-CIO, Local 491, and because he
 filed unfair labor practice charges under the Federal Service
 Labor-Management Relations Statute.  WE WILL NOT discourage Chaplain
 Ronald Gunton from membership in a labor organization by removing him
 from the Equal Employment Opportunity Committee serving the Veterans
 Administration Medical Center, Bath, New York, because of his
 participation in protected activities on behalf of the American
 Federation of Government Employees, AFL-CIO, Local 491, and because he
 filed unfair labor practice charges under the Federal Service
 Labor-Management Relations Statute.  WE WILL NOT refuse to meet, confer
 and negotiate with the American Federation of Government Employees,
 AFL-CIO, Local 491, by removing Chaplain Ronald Gunton from the Equal
 Employment Opportunity Committee serving the Veterans Administration
 Medical Center, Bath, New York, and by denying Chaplain Gunton the right
 to serve on the Committee as the designated representative of the
 American Federation of Government Employees, AFL-CIO, Local 491.  WE
 WILL NOT interfere with, restrain, or coerce Chaplain Ronald Gunton in
 the exercise of rights assured by the Federal Service Labor-Management
 Relations Statute by including a copy of a June 10, 1980 unfair labor
 practice charge relating to Case No. 1-CA-394 in Chaplain Gunton's
 personnel extension file in the Office of the Chief of Chaplains,
 Veterans Administration, Washington, D.C.  WE WILL NOT institute any
 change in Chaplain Ronald Gunton's tour of duty without first notifying
 the American Federation of Government Employees, AFL-CIO, Local 491, the
 exclusive representative of our employees, and affording such
 representative the opportunity to negotiate in good faith, to the extent
 consonant with law, regulations and the Federal Service Labor-Management
 Relations Statute, with regard to any proposed change in his tour of
 duty.  WE WILL NOT in any like or related manner interfere with,
 restrain, or coerce our employees in the exercise of their rights
 assured by the Federal Service Labor-Management Relations Statute.  WE
 WILL rescind the changes effectuated at the Veterans Administration
 Medical Center, Bath, New York, on February 29, 1980, in connection with
 the practice of providing a noon meal to physicians assigned duty as
 Medical Officer of the Day on Monday through Friday, and the practice of
 assigning 24-hour tours of duty to those selected to serve as Medical
 Officer of the Day on Monday through Friday.  WE WILL notify the
 American Federation of Government Employees, AFL-CIO, Local 491, the
 exclusive representative of our employees, of any proposed change in the
 practice of providing a noon meal to physicians assigned duty as Medical
 Officer of the Day on Monday through Friday, and the practice of
 assigning 24-hour tours of duty to those selected to serve as Medical
 Officer of the Day on Monday through Friday, and upon request, negotiate
 in good faith, to the extent consonant with law, regulations and the
 Federal Service Labor-Management Relations Statute, concerning such
 intended changes.  WE WILL notify Reverend Paul Strickland, Director,
 American Baptist Chaplaincy and Pastoral Counseling, National
 Ministries, American Baptist Churches, Valley Forge, Pennsylvania, of
 the Order requiring this notice and posting, and request by letter, the
 return of all documents forwarded to Reverend Strickland for the purpose
 of furnishing a basis for the withdrawal of the endorsement of Chaplain
 Ronald Gunton by the American Baptist Churches.  WE WILL rescind the
 March 18, 1980 memorandum addressed to the President of the American
 Federation of Government Employees, AFL-CIO, Local 491, by Mr. Milton
 Salmon, Medical Center Director, Veterans Administration Medical Center,
 Bath, New York, for the purpose of effectuating termination of Chaplain
 Ronald Gunton's appointment to the Equal Employment Opportunity
 Committee serving the Veterans Administration Medical Center, Bath, New
 York.  WE WILL remove from Chaplain Ronald Gunton's personnel extension
 file in the Office of the Chief of Chaplains, Veterans Administration,
 Washington, D.C., all copies of the June 10, 1980 unfair labor practice
 charge relating to Case No. 1-CA-394.  WE WILL rescind the November 5,
 1980 memorandum addressed to Chaplain Ronald Gunton by Chaplain John
 Howe for the purpose of effectuating a change in Chaplain Gunton's tour
 of duty.  WE WILL notify the American Federation of Government
 Employees, AFL-CIO, Local 491, the exclusive representative of our
 employees, of any proposed change in the tour of duty assigned to
 Chaplain Ronald Gunton, and upon request, negotiate in good faith to the
 extent consonant with law, regulations and the Federal Service
 Labor-Management Relations Statute concerning such change.
                                       (Agency)
 
 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 questions concerning this Notice or compliance with its provisions,
 they may communicate directly with the Regional Director, Region I,
 Federal Labor Relations Authority, whose address is:  441 Stuart Street,
 9th Floor, Boston, MA 02116, and whose telephone number is (617)
 223-0920.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case Nos. 1-CA-115, 1-CA-276,
                                       1-CA-394, 1-CA-397,
                                       1-CA-574
 
    John C. DiNoto, Esquire
          For the Respondents
 
    Richard D. Zaiger, Esquire
    Carol Waller Pope, Esquire
          For the General Counsel
 
    Before:  LOUIS SCALZO
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    These cases arose as unfair labor practice proceedings under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called "the Statute"),
 and the Rules and Regulations issued thereunder.
 
    The consolidated complaint, amended at the hearing, alleged that the
 Respondents, through Veterans Administration (VA or Central Office)
 officials at the agency level, and through officials associated with the
 Veterans Administration Medical Center, Bath, New York (VAMC), committed
 unfair labor practices within the purview of the Statute.  The following
 unfair labor practices were alleged:
 
    Case No. 1-CA-115:  On or About May 1, 1979, June 11, 1979, and
 September 27, 1979, the Respondents violated Section 7116(a)(1) of the
 Statute by threatening Chaplain Ronald Gunton, a part time Chaplain
 employed at the VAMC, with disciplinary action because of his
 participation in activity on behalf of the American Federation of
 Government Employees, AFL-CIO, Local 491 (Union).  /3/
 
    Case No. 1-CA-276:  On or about January 30, 1980, the Respondents
 violated Sections 7116(a)(1) and (5) by refusing to bargain in good
 faith with the Union regarding a decision to eliminate a practice of
 providing noon meals for VAMC employees assigned to serve as Medical
 Officer of the Day.  On or about February 29, 1980, Respondents violated
 Sections 7116(a)(1) and (5) of the Statute by eliminating a practice of
 providing noon meals for VAMC employees assigned to serve as Medical
 Officer of the Day, without furnishing the Union an opportunity to
 bargain concerning the decision to effectuate such change and/or the
 impact and implementation of the change.  On or about March 16, 1980,
 the Respondents violated Sections 7116(a)(1) and (5), changing the duty
 hours of the Medical Officer of the Day without furnishing the Union
 notice and an opportunity to bargain concerning the decision to change
 the duty hours of the Medical Officer of the Day, and concerning impact
 and implementation.
 
    Case No. 1-CA-394:  On or about April 3, 1980, the Respondents
 violated Section 7116(a)(1) of the Statute by initiating an
 investigation by the American Baptist Church into the Church
 accreditation of Chaplain Gunton because of his Union activity and
 because he filed unfair labor practice charges under the Statute;
 violated Sections 7116(a)(1) and (2) by causing the American Baptist
 Church to investigate the Church accreditation of Chaplain Gunton
 because of his activity on behalf of the Union;  and violated Sections
 7116(a)(1) and (4) by causing the American Baptist Church to investigate
 the Church accreditation of Chaplain Gunton because he filed unfair
 labor practice charges against the Respondents.
 
    Case No. 1-CA-397:  On or about June 12, 1980, Respondents violated
 Sections 7116(a)(1) and (2) of the Statute by removing Chaplain Gunton
 from the VAMC Equal Employment Opportunity Committee (EEOC) because of
 his participation in Union activity;  violated Sections 7116(a)(1) and
 (4) by removing Chaplain Gunton from the EEOC because he filed unfair
 labor practice charges against the Respondents;  and violated Sections
 7116(a)(1) and (5) by refusing to deal with Chaplain Gunton as the
 Union's duly appointed representative on the EEOC.
 
    Case No. 1-CA-574:  On or about June 13, 1980, Respondents violated
 Section 7116(a)(1) by placing or causing to be placed in Chaplain
 Gunton's personnel extension file, a copy of an unfair labor practice
 charge dated June 10, 1980.  On or about September 1980, Respondents
 violated Section 7116(a)(1), (5) and (8) by holding formal discussions
 with Chaplain John T. Sandlund, a bargaining unit employee, concerning
 general conditions of employment, at which discussions the Union was not
 given an opportunity to be represented.  on or about October 14, 1980,
 Respondents violated Sections 7116(a)(1) and (2) by distributing
 documents regarding Chaplain Gunton to the American Baptist Church in a
 continuing effort to cause the American Baptist Church to investigate
 his Church accreditation because of his participation in activities on
 behalf of the Union, and violated Sections 7116(a)(1) and (4) because
 such conduct was also pursued because Chaplain Gunton filed unfair labor
 practice charges against the Respondents.  On or about November 5, 1980,
 Respondents violated Sections 7116(a)(1) and (2) by changing Chaplain
 Gunton's tour of duty because of his Union activity, and violated
 Sections 7116(a)(1) and (5) by changing the tour of duty without
 furnishing the Union notice and opportunity to bargain concerning the
 decision to effect such change, and/or the impact and implementation of
 the change.
 
    At the commencement of the hearing the Respondents moved for
 dismissal of Case No. 1-CA-115 on the ground that it was made the
 subject of a settlement agreement and a subsequent posting in accordance
 with the settlement agreement;  and further that no basis existed for
 compelling the Respondents to litigate issues presented in the case.
 /4/ With regard to Case No. 1-CA-276, the Respondents take the position
 that there was no obligation to bargain concerning the elimination of
 the noon meal and the changing of duty hours assigned to the Medical
 Officer of the Day, and that the Respondents did provide the Union with
 an opportunity to bargain concerning impact and implementation elements
 associated with these changes.  With respect to allegations in Case No.
 1-CA-394 and Case No. 1-CA-574, relating to actions taken to terminate
 Chaplain Gunton's accreditation, and allegations in Case No. 1-CA-397,
 relating to Chaplain Gunton's representation of the Union on the VAMC
 EEOC, the Respondents argue that action taken was appropriate, and that
 such action was brought about by Chaplain Gunton's own misconduct.
 Respondents also argue with respect to Case No. 1-CA-574, that Chaplain
 John T. Sandlund was not a bargaining unit employee, and that the change
 of Chaplain Gunton's tour of duty was effectuated in a manner consistent
 with the bargaining obligation imposed by the Statute.
 
    Chaplain Gunton, a bargaining unit member, was at all times material,
 employed as a part time chaplain at the VAMC for a total of 20 hours a
 week.  For nearly a year he had been assigned a tour of duty which
 included 8-hour work periods on Monday and Tuesday, and a 4-hour work
 period on Wednesdays.  (Tr. 328-329).  He worked in conjunction with
 Chaplain John T. Sandlund, a full time Protestant chaplain, and
 chaplains representing other religious denominations.  /5/ His job
 duties included the usual role of clergyman.  (Tr. 485-486).
 
    Chaplain Gunton had functioned as the Union's chief negotiator and
 steward for over three years.  (Tr. 300).  In his capacity as a Union
 official he represented bargaining unit employees in matters relating to
 grievances, equal employment opportunity complaints, issues concerning
 changes in working conditions, and unfair labor practice charges.  Prior
 to his association with the Union herein, Chaplain Gunton also served as
 President of Local 491 for about six years before Local 491 became a
 segment of the American Federation of Government Employees.
 
    The answer filed by the Respondents admitted that at all times
 material Mr. Milton Salmon was the Director of the VAMC, Mr. Joel E.
 Halloran was the Chief of Personnel Services, and that Chaplain John A.
 Howe was Chief of the VAMC Chaplain Service.  It was also admitted that
 Chaplain Corbin Cherry was Chief of Chaplains for the Veterans
 Administration, Washington, D.C.  Mr. Salmon's assignment as Director of
 VAMC commenced slightly more than two years prior to April of 1981, thus
 his assignment coincided with Chaplain Gunton's representation of the
 Union as chief negotiator and steward.  (Tr. 382-383).
 
    Respondents and the General Counsel were represented by counsel
 during the hearing, and all parties were afforded full opportunity to be
 heard, adduce relevant evidence, and examine and cross-examine
 witnesses.  A post-hearing brief was filed by counsel representing the
 General Counsel.  No brief was filed on behalf of the Respondents.
 Based on the entire record herein, including my observations of the
 witnesses and their demeanor, the exhibits and other relevant evidence
 adduced at the hearing, /6/ and the brief filed, I make the following
 findings of fact, conclusions and recommendations.
 
                    Facts Relating to Case No. 1-CA-115
 
    Counsel representing the General Counsel admitted that Case No.
 1-CA-115 was informally settled by the parties and that an appropriate
 notice was posted pursuant to the settlement agreement.  (Tr. 10-11).
 Subsequently the Regional Director set aside the informal settlement
 agreement and included Case No. 1-CA-115 allegations in the consolidated
 complaint because of a finding by the Regional Director that the
 Respondents violated the terms of the settlement agreement.  (Tr. 11).
 Neither the settlement agreement, the Regional Director's findings, nor
 documents showing a setting aside of the settlement agreement were made
 a part of the record.  /7/ Respondents take the position that the terms
 of the settlement agreement were met.  The original charge in Case No.
 1-CA-394 notes that Case No. 1-CA-115, and another charge were settled
 by the posting of settlement agreements on March 6, 1980.  (G.C. Exh.
 1E).
 
                        Discussion and Conclusions
 
                             Case No. 1-CA-115
 
    Section 2423.11(b)(1) of the Regulations, 5 C.F.R. 2423.11(b)(1),
 provides in part as follows:
 
          Upon approval by the Regional Director and compliance with the
       terms of the informal settlement agreement, no further action
       shall be taken in the case.  If the respondent fails to perform
       its obligations under the informal settlement agreement, the
       Regional Director may determine to institute further proceedings.
 
    It is clear from the foregoing that "further proceedings" in
 connection with a charge would not be justified in the absence of a
 clear showing that the Respondents failed "to perform . . . obligations
 under the informal settlement agreement." Here the parties agree that
 Case No. 1-CA-115 was disposed of by a settlement agreement, and that a
 notice was posted in accordance with the agreement.  The terms of the
 settlement agreement, documentation relating to the Regional Director's
 setting aside of the agreement, and evidence establishing failure to
 perform the specific terms of the agreement are not included in the
 record.  Under the circumstances the record merely reflects a settlement
 of Case No. 1-CA-115, and bare statements by the Regional Counsel that
 the settlement agreement was violated by the Respondent.
 
    In Norfolk Naval Shipyard, Case. No. 3-CA-850, (OALJ-81-066), decided
 on March 12, 1981, Administrative Law Judge William B. Devaney
 considered a case which involved analogous issues.  He noted:
 
          (I)t would not effectuate the purpose or policy of the Statute
       or the Regulations to proceed to hearing on a complaint in
       contravention of a settlement approved by the Regional Director
       and fully complied with in good faith by the Respondents, in the
       total absence of grounds which would warrant setting aside an
       approved settlement and without notice to the parties and an
       opportunity to be heard prior to any such proposed action.
       Voluntary settlements under the control of the Regional Directors
       (See, Sec. 2424.11 of the Regulations) are encouraged, and indeed,
       are essential to the effective administration of the Statute.
       Nothing would be more inherently destructive of encouragement of
       voluntary settlements than disregard of approved settlements after
       good faith compliance.
 
    In the light of the regulatory scheme described, bare representations
 of counsel may not be utilized as a basis for proceeding further with
 allegations based upon the charge in Case No. 1-CA-115.  There must be
 proof of a failure to perform specific obligations imposed by a
 settlement agreement, and proof of the Regional Director's determination
 to institute further proceedings.  The threshold burden of establishing
 proof of these elements must be met before further proceedings in the
 form of an unfair labor practice complaint and hearing may be
 countenanced.  The record does not provide a sufficient basis upon which
 to make factual determinations concerning these issues.  Accordingly, it
 must be concluded that portions of the consolidated complaint dealing
 with Case No. 1-CA-115, should be dismissed.
 
                    Facts Relating to Case No. 1-CA-276
 
    The record disclosed that management officials at the VAMC either
 instituted or agreed to a practice of providing a noon meal to
 physicians assigned duty as Medical Officer of the Day on Monday through
 Friday, and further that individuals assigned as Medical Officer of the
 Day were deemed to be on duty for a 24-hour period.  (Tr. 199-200,
 250-251, 284).  Evidence to the effect that VAMC management officials
 were not aware of the practice must be deemed not worthy of belief.  It
 is impossible to credit such evidence in light of the responsibility
 imposed upon responsible VAMC management officials.  Also, Mr. Alan
 Harper, Assistant Director, VAMC, testified that the VAMC changed its
 interpretation of regulations pertaining to the hours of the Medical
 Officer of the Day as a result of conversations with VA Central Office
 personnel.  (Tr. 201).  It thus appeared that VAMC officials were fully
 aware of the practice of assigning physicians to duty as Medical Officer
 of the Day for 24-hour periods.  Management was also aware of the
 closely related practice of providing noon meals to those serving as
 Medical Officer of the Day.
 
    Veterans Administration regulations were unclear with respect to the
 practices outlined, and were subject to interpretation.  Regulations
 dated as early as March 25, 1963, provided that management should make
 "necessary arrangements which will provide continuous appropriate and
 effective medical supervision 24 hours a day, 7 days a week." (G.C. Exh.
 19).  /8/ An issuance dated November 9, 1971, repeats this policy and
 provides that "one or more physicians will be scheduled and assigned by
 management to provide medical supervision during evenings, nights,
 weekends, and holidays when the regular medical staff is not on duty,
 and will serve such tours of duty as local management may specify.
 Physicians assigned shall be referred to as Medical Officer of the Day."
 (R. Exh. 3 and G.C. Exh. 19).  /9/
 
    Officials of the VAMC relied upon a November 9, 1979, Veterans
 Administration issuance to bring about a change in practice concerning
 meals to be provided to the Medical Officer of the Day, and the tour of
 duty pertaining to the assignment.  (G.C. Exh. 12, 19, and R. Exh. 4).
 The document, comprised as part of a "Dietetic Service Newsletter," was
 issued by Central Office personnel.  It set forth no new regulatory
 scheme, but merely spelled out an interpretation of existing
 regulations.  It provided that if facilities are available, medical
 center management may authorize the Dietetic Service to provide meals
 for Medical Officer of the Day, and that only supper, and evening snacks
 on the day assigned, and breakfast on the following morning may be
 provided.
 
    In changing the Medical Officer of the Day meal and tour of duty
 practice, the VAMC also relied upon direct contacts with officials in
 the VA Central Office.  (Tr. 167, 173-175, 192, 250-251).  It thus
 appeared that the Central Office was aware of impending changes at the
 VAMC and actually authorized such changes on the ground that past
 practice was inconsistent with the interpretation of existing
 regulations issued by the Central Office.
 
    At a VAMC medical staff meeting on January 7, 1980, bargaining unit
 members were summarily informed that free noon meals for those assigned
 Medical Officer of the Day duties would be discontinued.  (Tr. 167,
 244-245).  At a Union-management meeting held on January 8, 1980, the
 Union advised that the change was being effectuated without providing
 the Union an opportunity to negotiate;  however, the Assistant Director
 of the VAMC advised that management was not concerned with negotiations
 and that negotiations would not be held because the change was being
 mandated by the Central Office.  (Tr. 246).  By letter dated January 13,
 1980, Chaplain Gunton write the VAMC Chief of Personnel requesting that
 management fully negotiate issues relating to the elimination of the
 noon meal, and complaining that management had improperly denied the
 Union the right to negotiate concerning this change.  (G.C. Exh. 18).
 
    At a January 30, 1980 meeting, VAMC officials took the position that
 the decision to eliminate the noon meal was not negotiable because the
 practice was mandated by a Government-wide rule or regulation, and that
 a compelling need existed for the Government-wide rule or regulation.
 At this meeting it was brought out that those assigned duty as Medical
 Officer of the Day were being required by the Chief of Medical Services
 at the VAMC to remain at the Center during a 24-hour tour of duty, and
 it was unfair to require the Medical Officer of the Day to be present
 during the noon meal period without providing noon meals.  Management
 agreed to consider this issue.  (Tr. 250, 274).
 
    In a letter dated January 29, 1980, delivered to the Union during the
 January 30th meeting, Mr. Salmon relented and agreed to limited
 negotiations concerning the impact and implementation of the decision to
 eliminate noon meals.  (G.C. Exhs.20 and 21).  In a February 13, 1980
 letter Mr. Salmon reiterated his position, noted that the decision to
 eliminate noon meals on Monday through Friday was made by the Central
 Office, and stated that such meals would not be provided after February
 29, 1980.  (G.C. Exh. 22).  On February 29, 1980, the Monday through
 Friday hours of the Medical Officer of the Day were reduced to the
 period intervening between 4:30 p.m. and 8:00 a.m., and noon meals on
 these days were eliminated.  (Tr. 261, 274, 285).
 
                        Discussion and Conclusions
 
                             Case No. 1-CA-276
 
    It is well established that the parties may establish terms and
 conditions of employment by practice or other form of tacit or informal
 agreement, and that terms or conditions established in this manner may
 not be altered by either party in the absence of agreement or impasse
 following good faith bargaining.  Department of the Navy, Naval
 Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64 (June 16,
 1980).
 
    The record shows that there was an established past practice of
 providing noon meals for those assigned duty as Medical Officer of the
 Day on Monday through Friday, and a correlative practice of assigning
 duty as Medical Officer of the Day for 24-hour periods.  VA officials at
 the VAMC level and Central Office level determined that it would be
 appropriate to terminate both of these established practices without
 permitting the Union to bargain fully concerning the decision to
 implement the changes outlined.  In the light of pertinent authorities
 this determination was clearly a denial of Union bargaining rights
 established under the provisions of the Statute.
 
    Initially there was a categorical refusal to participate in any
 negotiations concerning these practices, and it was only after repeated
 requests that Respondents relented to the extent of agreeing to permit
 impact and implementation bargaining.  However, the Union, as the
 exclusive bargaining representative, had the right to bargain fully on
 issues relating to the elimination of the noon meal and the change in
 the 24-hour tour of duty.
 
    Respondents' argument to the effect that the practices were
 discontinued in accordance with Government-wide rules or regulation must
 be rejected since there was no specific showing by the Respondents that
 practices discontinued by the Respondents were actually prohibited by
 Government-wide rule or regulation, and it was clear that rules and
 regulations introduced into the record were subject to interpretation.
 Moreover, both VAMC officials and Central Office officials had
 previously permitted and condoned the prior practices under the
 regulatory pattern in effect.  Even if the VA regulatory scheme
 prohibited the prior practices, the record showed that it was
 nevertheless, a well established policy to provide noon meals and to
 assign Medical Officer of the Day tours of duty for 24-hour periods.
 
    Nothing in Section 7106(b)(1) of the Statute operates to preclude a
 requirement that Respondents negotiate concerning the decision to change
 the tour of duty assigned to the Medical Officer of the Day.  It is true
 that if the establishment of an additional tour of duty directly relates
 to the numbers, types, or grades of employees assigned to the new tour
 of duty, the obligation to meet and confer with the Union concerning the
 decision to establish the new tour of duty, would come within the sole
 discretion and election of the agency and would therefore not be a
 negotiable matter.  However, if the number of employees assigned to the
 tour of duty, the type of grade of such employees, and the number of
 positions remains the same as before the change, the establishment of
 the new tour of duty cannot be treated as a matter negotiable only at
 the election of the agency.  National Treasury Employees Union Chapter
 66, 1 FLRA No. 106 (September 13, 1979);  American Federation of
 Government Employees, AFL-CIO, International Council of U.S. Marshals
 Service Locals, 5 FLRA No. 66 (April 29, 1981);  Internal Revenue
 Service and Brookhaven Service Center, 5 FLRA No. 64 (April 21, 1981).
 In the instant case it was shown that the establishment of the 4:30 p.m.
 to 8:00 a.m. tour of duty for Medical Officer of the Day did not
 explicitly relate to the numbers, types, and grades of employees
 assigned so as to come within the meaning of Section 7106(b)(1) of the
 Statute.  For this reason the decision to establish the new tour of duty
 was fully negotiable.
 
    Accordingly, it is determined that counsel for the General Counsel
 has shown by a preponderance of the evidence that the conduct of
 management officials representing the Respondents was violative of
 Sections 7116(a)(5) and (1) of the Statute in that as alleged in the
 consolidated complaint the Respondents refused to bargain with the Union
 regarding the substance of the proposed elimination of the noon meal;
 and further, that on February 29, 1980, Respondents eliminated the noon
 meal;  and further, that on February 29, 1980, Respondents eliminated
 the noon meal for Medical Officer of the Day on Monday through Friday,
 and the 24-hour tour of duty for those so assigned without first
 furnishing the Union an opportunity to bargain fully concerning the
 substance of the changes, and/or the impact and implementation of the
 changes.  /10/
 
         Facts Relating to Case No. 1-CA-394 and Case No. 1-CA-397
 
 Case No. 1-CA-394
 
    The granting of endorsement to American Baptist clergy serving the
 Veterans Administration and other specialized ministries, falls within
 the purview of the Director, American Baptist Chaplaincy and Pastoral
 Counseling, National Ministries, American Baptist Churches.  The
 Director, Reverend Paul Strickland, serves as staff to a committee
 (Endorsing Committee) that grants endorsement on behalf of the American
 Baptist Churches.  Endorsement is a prerequisite to continued
 employment.  Academic credentials, a biographical sketch, letters of
 reference, and a personal interview are required.  Endorsements are
 reviewed annually.  In the absence of cause to deny endorsement, it is
 renewed.
 
    The record disclosed that Chaplain Gunton has, for a number of years,
 had endorsement from the American Baptist Churches to function as a
 Veterans Administration Chaplain.  (Tr. 52).  The last two regular
 endorsement renewals occurred in 1979 and 1980.  (Tr. 79-80).
 
    Early in January of 1980, Mr. Salmon wrote to Chaplain Cherry in an
 effort to find a way of removing Chaplain Gunton.  He enclosed a number
 of documents which are reflected in the record as a portion of G.C. Exh.
 4.  These documents, which will be described in more detail herein,
 constitute severe criticism of Chaplain Gunton's method of carrying on
 Union representational activity.  Mr. Salmon took this action because he
 had no independent authority to discipline Chaplain Gunton.  (Tr. 410,
 520-520A).  The Central Office had such authority, although Mr. Salmon
 did have authority to recommend disciplinary action.  (Tr. 166,
 206-207).
 
    Prior to April 3, 1980, Chaplain Cherry discussed Chaplain Gunton
 with Reverend Strickland and stated that he was going to request the
 withdrawal of Chaplain Gunton's endorsement.  (Tr. 71-72).  Reverend
 Strickland responded by saying that endorsement was granted for
 ecclesiastical purposes, that it would not be withdrawn solely for
 purposes of personnel management, and that although he was concerned
 with the quality of performance, the Church "did not see endorsement as
 a method of handling personnel matters." (Tr. 73).
 
    On April 3, 1980, Chaplain Cherry phoned Reverend Strickland to
 advise that VAMC officials were having continuing problems with Chaplain
 Gunton.  He described the documents received from Mr. Salmon, read from
 some of them, agreed to send copies to Reverend Strickland, and said
 that he thought Reverend Strickland would be interested in them from the
 standpoint of effectuating a withdrawal of Chaplain Gunton's
 endorsement.  (Tr. 55-56, 112).
 
    On April 4, 1980, Chaplain Cherry transmitted to Reverend Strickland,
 copies of documents previously received from Mr. Salmon.  (Tr. 391-392,
 G.C. Exh. 4).  Among other things these documents reflect management
 complaints concerning Chaplain Gunton's criticism of working conditions
 at the VAMC, management resentment over his having filed unfair labor
 practice charges against VAMC officials, general non-specific complaints
 concerning Chaplain Gunton's representational activity, general
 criticism of the Union, accounts of disagreement with positions taken by
 Chaplain Gunton in labor relations matters, self-serving statements by
 VAMC officials concerning labor relations subjects, and accounts of the
 performance of innocuous activities by Chaplain Gunton on behalf of the
 Union.  Chaplain Cherry admitted that he reviewed the material before
 mailing it.  (Tr. 507-508).  He subsequently informed Mr. Salmon that he
 had mailed the documents to Reverend Strickland and that Reverend
 Strickland would phone Mr. Salmon directly about Chaplain Gunton.  (Tr.
 416).
 
    Following Reverend Strickland's receipt of materials from Chaplain
 Cherry, the Endorsing Committee met on April 7, 1980, to consider the
 matter.  The Committee reaffirmed American Baptist policy to the effect
 that endorsement must relate to ecclesiastical matters and not personnel
 management.  (Tr. 76).
 
    On the same date, April 7th, Reverend Strickland phoned Mr. Salmon.
 /11/ Among other things Mr. Salmon was severely critical of the amount
 of time Chaplain Gunton spent on Union activity and EEO complaints.  He
 stated that his Union activity was a source of disruption to the
 hospital routine, and requested that Chaplain Gunton's endorsement be
 withdrawn as a means of terminating his employment.  (Tr. 66-99).  Mr.
 Salmon explained that it was very difficult for the Government to
 terminate Chaplain Gunton based upon any documented misconduct, that a
 reduction in force was not a possibility, and that withdrawal of his
 endorsement was a method of removing him.  (Tr. 67).  Reverend
 Strickland insisted upon written documentation from Mr. Salmon to
 support his request for withdrawal of the endorsement.  Mr. Salmon
 discussed additional documentation, read portions of it over the phone,
 and said he would send it to Reverend Strickland.  (Tr. 67-68).
 
    By letter dated April 7, 1980, Mr. Salmon transmitted to Reverend
 Strickland a series of documents relating to Chaplain Gunton's
 representational activity.  (Tr. 452, G.C. Exh. 5).  The documents
 reflect information concerning Mr. Salmon's prior removal of Chaplain
 Gunton from his position as Union designated representative on the EEOC,
 criticism of his conduct on the EEOC, and concern over issues raised by
 Chaplain Gunton as the Union representative on the EEOC.
 
    On April 23, 1980, Mr. Salmon again wrote to Reverend Strickland, to
 provide further evidence of a reason for withdrawal of endorsement.
 This document reflects criticism of Chaplain Gunton's role as an advisor
 to a bargaining unit member during a removal proceeding, and Mr.
 Salmon's disagreement with factual representations alleged to have been
 made by Chaplain Gunton.  (G.C. Exh. 6).
 
    As a result of material and information received from Chaplain Cherry
 and Mr. Salmon, and solely because of such (Tr. 128-129), the Endorsing
 Committee met on May 7, 1980 and determined that Chaplain Gunton's
 endorsement should be considered in jeopardy, and further that members
 of the Committee would make a site visit to investigate allegations
 received.  (Tr. 76).  Mr. Salmon and Chaplain Gunton were informed of
 the determination.  (Tr. 76-77, G.C. Exh. 7).  Reverend Strickland's
 testimony established that the Endorsing Committee had also received
 evidence of Chaplain Gunton meeting requirements for his position, and
 further that the Committee was also concerned over the strain that he
 might be under.  (Tr. 116).
 
    Members of the Endorsing Committee conducted an investigation at the
 VAMC on May 29, 1980.  Reverend Strickland wrote to Chaplain Cherry on
 June 16, 1980, on behalf of the Committee and characterized the matter
 as one involving personnel management at the VAMC, as distinct from
 issues relating to ecclesiastical endorsement.  (G.C. Exh. 8).  He noted
 that the VAMC Chief of Chaplains had provided satisfactory performance
 ratings consistently, and also expressed "grave concern" about Chaplain
 Cherry's support of Chaplain Gunton.  The Committee found no reason to
 discontinue his endorsement.  (Tr. 131-132).
 
    On June 18, 1980 Chaplain Cherry phoned Reverend Strickland to
 complain further about Chaplain Gunton and the Committee's findings.
 Reverend Strickland informed him that "from our point of view, our
 chaplain is performing acceptable ministry." Chaplain Cherry hung up
 abruptly when Reverend Strickland disagreed with him.  (Tr.  , 82-83).
 On July 29, 1980, Chaplain Cherry wrote to Reverend Strickland and noted
 that Chaplain Gunton's activity caused "uneasiness and tension," and
 implied that this was cause with withdrawal of endorsement.  (G.C. Exh.
 9).  He admitted that it was Chaplain Gunton's dealing with VAMC
 management that constituted the gravamen of his concern (Tr. 552, 557),
 and that the documents transmitted to Reverend Strickland, in large
 measure, formed the basis for his wanting Chaplain Gunton terminated.
 (Tr. 557-558).
 
    In addition to the foregoing sequence of events the record shows that
 Mr. Salmon admitted that Chaplain Gunton was a problem because he was
 involved in Union activities and that he was deemed to be disruptive in
 this respect.  (Tr. 209-210).  Mr. Salmon maintained "Reports of
 Contact" regarding Chaplain Gunton's contact with VAMC employees because
 of his perceptions of Chaplain Gunton's Union activities.  (Tr. 212).
 Mr. Salmon acknowledged that he discussed with Chaplain Cherry, the
 material that he sent to Chaplain Cherry (Tr. 413), in order for the
 Central Office to take action against Chaplain Gunton.  (Tr. 484-485).
 He also stated that he asked for Chaplain Cherry's assistance in
 resolving his problems with Chaplain Gunton.  (Tr. 519).
 
    Counsel representing the Respondents acknowledged that 16 of the 18
 pages comprising G.C. Ex. 4, on which Chaplain Cherry and Mr. Salmon
 relied as a basis for their action, related to Chaplain Gunton's Union
 activities.  (Tr. 412).  Mr. Salmon admitted that he thought the filing
 of 12 unfair labor practice charges (without more) was evidence of
 disruptive misconduct (Tr. 488), and that the Union at the VAMC was
 "disruptive" in nature.  (Tr. 489).  He acknowledged that he had no
 recourse under removal procedures pertaining to federal employees, and
 that he discussed with Chaplain Cherry the option of going to the
 Endorsing Committee to effect Chaplain Gunton's removal.  (Tr. 493-494).
 
    The record reflects that Chaplain John A. Howe, Chief of the VAMC
 Chaplain Service, gave Chaplain Gunton a satisfactory performance rating
 for the one-year period preceding April 30, 1980.  (G.C. Exh. 23).  With
 one exception he was reported to have exceeded work requirements.  In
 March of 1981, he received a step promotion from GS-12, Step 5 to GS-12,
 Step 6.  Chaplain Howe characterized his work as being of an acceptable
 level of competence.  (G.C. Exh. 24).
 
    Chaplain Gunton was never disciplined for improper conduct (Tr.
 414-415, 485), and Mr. Salmon never initiated or threatened disciplinary
 action through VA channels of authority.  (Tr. 484, 496-497).  In fact,
 Mr. Salmon admitted that Chaplain Gunton had done nothing to warrant
 disciplinary action, and stated merely that he had been "objectionable"
 to management.  (Tr. 492).  Chaplain Cherry acknowledged that there was
 nothing in Chaplain Gunton's personnel file that would identify
 deficiencies in Chaplain Gunton's service as a chaplain.  (Tr. 547).
 Case No. 1-CA-397
 
    In accordance with pertinent statutory and regulatory provisions an
 EEOC has been in existence at the VAMC for a number of years.  The VAMC
 EEOC Committee is responsible for advising the Station Director (EEO
 Officer) on overall EEO problems and approaches for carrying out special
 assignments relating to EEO, as may be required.  Among other things EEO
 Officers are charged with establishing and maintaining a positive action
 program designed to insure equality of opportunity.  (R. Exh. 8).  The
 work of the VAMC EEOC deals with numerous subjects having a direct
 impact on the terms and conditions of employment at the VAMC.  The
 Committee is comprised of 12 members and 2 counselors at large.  Mr.
 Salmon, the Center Director, as the designated EEO Officer retains the
 final authority for determining the composition of the Committee.  (R.
 Exh. 8 at A-4).  However, VA regulations provide that "employee and
 recognized labor organization recommendations should be considered to
 assure selection of committee members in whom they have confidence." In
 response to this policy it was an established practice at the VAMC for
 the Union President and Union Executive Committee to submit to the
 Director (Mr. Salmon), the name of a Union representative to serve on
 the VAMC EEOC.  (Tr. 232-233).  The person selected was designated by
 the Union to represent Union interests and the Director had no authority
 over the appointment.  (Tr. 431-432).  Other members of the EEOC were
 selected through a nominating committee appointed by Mr. Salmon and then
 either approved or disapproved by him.  (Tr. 232).
 
    Prior to April 18, 1979, Mr. Bennett Joseph, the President of the
 Union had a discussion with Mr. Salmon, wherein Mr. Joseph mentioned
 Chaplain Gunton as a possible Union representative on the Committee.
 (Tr. 233-234).  Chaplain Gunton had served on the EEOC previously as an
 alternate member and as an interim appointee.  (Tr. 286).  Mr. Salmon
 advised that he thought Chaplain Gunton would be a "disruptive
 influence." (Tr. 234, 267).  Mr. Joseph explained that the selection of
 a representative was matter of internal Union business.  (Tr. 234).  On
 April 18, 1979, Mr. Joseph appointed Chaplain Gunton to serve as the
 Union representative on the Committee.  (G.C. Exh. 15).  He commenced
 service as a Committee member and had the right to vote on issues
 pertaining to EEOC business.  (Tr. 370).  After Chaplain Gunton's
 appointment Mr. Salmon expressed regret that Chaplain Gunton had been
 appointed (Tr. 235-236, 267, 269), ostensibly because another chaplain
 also served on the EEOC.  (Tr. 236).
 
    On March 18, 1980, Mr. Salmon wrote to Mr. Joseph to advise him that
 he would no longer permit Chaplain Gunton to serve as the Union
 representative because he was considered "objectionable" to other
 Committee members, and because his conduct was deemed "highly disruptive
 to the effectiveness of the Committee." (G.C. Exh. 5 at 2).  Mr. Joseph
 took no action to appoint a replacement because Mr. Salmon had presented
 no concrete evidence to justify removal of Chaplain Gunton.  (Tr. 242).
 
    The record indicated that Mr. Salmon removed Chaplain Gunton because
 of his Union activity on the EEOC and because of his representational
 work generally at the VAMC.  He admitted relying upon materials
 reflected in G.C. Exhs. 4 and 5, which include descriptions of Chaplain
 Gunton's representational work on the EEOC.  (Tr. 405-407).  Prior to
 preparation of the March 18, 1980 memorandum he consulted with VA
 Central Office officials and received approval of his plan to remove
 Chaplain Gunton from the EEOC.  (Tr. 399, 432, 434-435).
 
    A careful examination of the record disclosed that Chaplain Gunton's
 representation of the Union led to serious disagreement with Mr. Salmon
 and members of the EEOC associated with VAMC management.  Their
 complaints were general and non-specific (i.e. that he intimidated
 others, obstructed and interfered with Committee business, and was
 unethical).  However, the record did not supply a basis for concluding
 that Chaplain Gunton had been guilty of any specific misconduct.  Mr.
 Salmon acknowledged that he had never observed any misconduct and that
 he had relied on the reports of others.  (Tr. 382, 398).  A careful
 review of the reports indicates they may be construed as a management
 version of Union representational activity.  As noted, in a number of
 situations conduct described was clearly innocuous in nature.
 
    On June 12, 1980, Chaplain Gunton attended an EEOC meeting.  The
 President of the Union refused to accede to a request to order Chaplain
 Gunton to leave when requested to do so in a telephone call placed to
 the Union President by the Assistant Director of the VAMC.  However,
 following Chaplain Gunton's formal objection to his removal, Chaplain
 Gunton did leave the Committee meeting at the request of the Assistant
 Director.  (Tr. 307-309).
 
                        Discussion and Conclusions
 
                      Case Nos. 1-CA-394 and 1-CA-397
 
    Respondents take the position that their activities designed to
 effect withdrawal of Chaplain Gunton's endorsement, and his removal from
 the EEOC were predicated upon his misconduct during the course of his
 representational activity.  In each instance Chaplain Gunton was acting
 officially as chief negotiator, steward, or the selected Union
 representative to the VAMC EEOC.
 
    When an employee who is also a Union official is acting in an
 official capacity as a union official, he is entitled to greater
 latitude in speech and action.  U.S. Small Business Administration,
 Central Office, Washington, D.C., 6 A/SLMR 157, A/SLMR No. 631 (March
 26, 1976);  /12/ Department of the Navy, Puget Sound Naval Shipyard,
 Bremerton, Washington, 2 FLRA No. 7 (November 2, 1979);  Department of
 the Army, Headquarters, Military Traffic Management Command, 2 FLRA No.
 72 (January 25, 1980);  Veterans Administration Regional Office, Denver,
 Colorado, 2 FLRA No. 84 (February 21, 1980);  Department of Housing and
 Urban Development San Francisco Area Office, San Francisco, California,
 4 FLRA No. 64 (September 30, 1980).
 
    The mentioned cases make it clear that although the Authority does
 not endorse the use of intemperate or strident language in the conduct
 of labor relations, not every impropriety committed by an employee while
 engaged in protected activity is beyond the ambit of protected activity.
  The cited decisions also indicate that in order to remove the
 questioned acts from the ambit of protection, the employee must be found
 to have engaged in flagrant misconduct.
 
    In this case Respondents' allegations are couched in generalities,
 and reflect no specific actions which might be classified as flagrant
 misconduct.  At most Chaplain Gunton's conduct consisted of strong,
 vigorous representation and robust debate on behalf of the Union.  Many
 of the incidents relied upon by Respondents were patently innocuous
 representational activity, or mere accounts of management arguments
 concerning labor-management issues.  The record suggests at some points
 that representatives of the Respondents equated Chaplain Gunton's
 representation of the Union point of view with personal misconduct.
 
    The absence of any suggestion of reprimand of, or disciplinary action
 against, Chaplain Gunton by Respondents;  the admission that no basis
 existed for formal disciplinary action;  Chaplain Gunton's performance
 ratings;  and the obvious pretextual nature of the complaints
 surrounding the charges of misconduct;  also indicate that Respondents'
 allegations of misconduct have no basis to support them.  In light of
 the foregoing it must be determined that Chaplain Gunton's behavior was
 well within the ambit of protected activity.
 
    It is noted that in order to establish a violation of Section
 7116(a)(2) there must be a showing that the alleged victim of
 discrimination was engaging in protected activity, that the agency had
 knowledge of such activity, and that the agency took action because of
 anti-union animus.  United States Department of Labor, 1 FLRA No. 120
 (September 28, 1979);  Veterans Administration Center, Leavenworth,
 Kansas, 1 FLRA No. 111 (September 20, 1979);  U.S. Customs Service,
 Region IV, Miami, Florida, 1 FLRA No. 108 (September 13, 1979).  The
 element of discriminatory motivation needed to establish a Section
 7116(a)(2) violation may be inferred from circumstantial evidence.  U.S.
 Customs Service, Region IV, Miami, Florida, supra;  Veterans
 Administration Center, Leavenworth, Kansas, supra.
 
    The Authority has also held that in examining discrimination where an
 employee asserts a facially lawful business justification for the
 alleged discriminatory action, it would examine such cases through an
 analysis similar to that used by the United States Supreme Court in Mt.
 Healthy City School District Board of Education v. Doyle, 529 U.S. 274
 (1977) (involving conduct protected by the United States Constitution).
 The Authority stated that the burden is on the General Counsel to make a
 prima facie showing that the employee had engaged in protected activity
 and that the prohibited conduct was a motivating factor in the
 administrative action taken by the agency.  Once this is established,
 the agency may avoid responsibility only by showing by a preponderance
 of the evidence that it would have reached the same decision or taken
 the same action even in the absence of protected activity.  Internal
 Revenue Service, Washington, D.C., 6 FLRA No. 23 (June 17, 1981);
 Veterans Administration, Medical and Regional Office Center, White River
 Junction, Vermont, 6 FLRA No. 68 (August 5, 1981).
 
    In this case the facts demonstrate that Respondents, through Chaplain
 Cherry and Mr. Salmon, caused the initiation of an investigation by the
 American Baptist Churches into the Church accreditation of Chaplain
 Gunton in order to effect a withdrawal of his endorsement and
 termination of his employment.  The evidence also shows that Respondents
 through Mr. Salmon and Central Office officials, brought about the
 removal of Chaplain Gunton from the VAMC EEOC.  Both patterns of
 administrative action were pursued because Chaplain Gunton engaged in
 protected activity under the Statute on behalf of the Union, and because
 he initiated unfair labor practices against the VAMC.
 
    Moreover, the record reflects that the reasons advanced by the
 Respondents for taking such administrative action were pretextual in
 nature.  This element is demonstrated repeatedly in the record,
 particularly by the fact that Chaplain Gunton's endorsement was renewed
 in 1979 and 1980;  by the many indications that Mr. Salmon and Chaplain
 Cherry resented Union activity at the VAMC, and Chaplain Gunton's use of
 time on behalf of the Union;  by admissions that no legal basis could be
 found for disciplining Chaplain Gunton;  by the innocuous nature of many
 of the complaints relied upon by Respondents as a basis for actions
 taken;  by the absence of any clear showing of misconduct;  and by the
 satisfactory performance ratings given by Chaplain Howe throughout the
 pertinent period.  However, even if it is assumed that the rule
 articulated in Internal Revenue Service, Washington, D.C., supra, is
 applicable here, there was no evidence introduced by Respondents showing
 that the questioned administrative actions would have taken place in any
 event had Chaplain Gunton not been engaged in protected activity.
 
    On the basis of the foregoing it is concluded that the Respondents,
 as alleged in Case No. 1-CA-394, violated Section 7116(a)(1) of the
 Statute by causing the initiation of an investigation into Chaplain
 Gunton's church accreditation because of his engaging in Union activity,
 and because he filed unfair labor practice charges against the
 Respondents.  It is also concluded that this conduct involved
 Respondents in violations of Section 7116(a)(2), (4), and (1) of the
 Statute.
 
    Similarly, in connection with Case No. 1-CA-397, it is determined
 that Respondents' removal of Chaplain Gunton from the EEOC on or about
 March 18, 1980, and June 12, 1980 was violative of Section 7116(a)(2),
 (4), (5) and (1) of the Statute.
 
                    Facts Relating to Case No. 1-CA-574
 
    (a) Inclusion of Charge in Personnel Extension File
 
    The record showed that Chaplain Cherry, as VA Chief of Chaplains,
 maintained in Washington, D.C., a duplicate personnel file, or personnel
 extension file, relating to Chaplain Gunton.  (Tr. 517-518).  The file
 was designed to be identical to the official personnel file maintained
 at the VAMC, and was subject to review in connection with personnel
 actions.  (Tr. 550-551).  Chaplain Cherry acknowledged that he
 "probably" was responsible for placing in Chaplain Gunton's personnel
 extension file, a copy of the original unfair labor practice charge
 filed in Case No. 1-CA-394.  (Tr. 558).  The charge was added to the
 file between June 10, 1980 and June 26, 1980.  (Tr. 321-322, G.C. Exh.
 25).
 
    (b) Submission of Documents to Reverend Strickland on or
 
          About October 14, 1980
 
    On or about October 14, 1980, Chaplain Cherry transmitted to Reverend
 Strickland a series of documents which he claimed related to Chaplain
 Gunton's service as a chaplain.  The documents pertained to a dispute
 arising out of a personal family matter involving Chaplain Gunton.
 (G.C. Exh. 10).  The transmission of the material was clearly shown to
 be a continuation of the effort launched by Mr. Salmon and Chaplain
 Cherry to terminate Chaplain Gunton's endorsement because of his
 involvement in Union activities.  The documents were not solicited by
 Reverend Strickland, and did not pertain to Chaplain Gunton's activities
 as a chaplain.  (Tr. 85-86).  Chaplain Cherry's forwarding letter refers
 back to Reverend Strickland's previously questioned decision to continue
 Chaplain Gunton's endorsement, and indicates that the material was being
 sent as a part of the effort to terminate Chaplain Gunton.
 
    On October 24, 1980 Reverend Strickland wrote to Chaplain Cherry to
 advise that the documents had no bearing on Chaplain Gunton's
 functioning at Bath, and stated:
 
          I regret that the implication in your letter is that this
       indicates that Chaplain Gunton still has problems at Bath because
       of a family situation . . . .  I do not see how this family
       dispute pertains to Chaplain Gunton's functioning or competency as
       a chaplain . . . .  (G.C. Exh. 11).
 
    After conferring with a member of the Endorsing Committee, Reverend
 Strickland determined that the material was not worthy of the
 Committee's consideration.  (Tr. 129-131).
 
    (c) Chaplain John T. Sandlund Alleged to Have Attended Formal
 
          Discussions, and Change in Chaplain Gunton's Tour of Duty
 
    In September of 1980, Chaplain Howe, VAMC Chief of Chaplains and
 Chaplain John T. Sandlund, a bargaining unit member, had a general
 discussion concerning the possibility of changing tours of duty to
 relieve Chaplain Sandlund of the responsibility of having to conduct two
 worship services on Sundays.  (Tr. 651).  /13/ It appeared that the
 request emanated from Chaplain Sandlund, who had health problems, but
 was still continuing to perform duties as a chaplain.  (Tr. 651, 661).
 Chaplain Howe said that he would consider Chaplain Sandlund's request.
 (Tr. 669).
 
    At a later date during the early part of September 1980, Chaplain
 Cherry, Chaplain Howe, Chaplain Sandlund, and two other VAMC chaplains
 other than Chaplain Gunton, discussed a possible change in Chaplain
 Gunton's tour of duty to lighten Chaplain Sandlund's Sunday schedule.
 (Tr. 659-661).  The meeting was not formal in nature, but an impromptu
 encounter wherein bargaining unit employees took advantage of an
 opportunity to complain to those in supervisory authority.  (Tr. 660).
 Chaplain Cherry indicated his approval of the proposed change in
 Chaplain Gunton's tour of duty.  (Tr. 331-332, 660-661).
 
    Subsequently in September 1980, Chaplain Sandlund was with Chaplain
 Howe on at least one occasion when the proposed change in Chaplain
 Gunton's tour of duty was discussed with Mr. Salmon.  (Tr. 374-376).
 They brought to Mr. Salmon's attention the suggestion that Chaplain
 Gunton assume some of Chaplain Sandlund's Sunday duties, and Mr. Salmon
 agreed to the proposal.  (Tr. 377-378).  /14/
 
    Chaplain Sandlund subsequently formalized his request for a tour of
 duty change in an October 30, 1980 memorandum to Chaplain Howe.  (G.C.
 Exh. 28).  By memorandum of the same date Chaplain Howe, at Mr. Salmon's
 request, sent a memorandum to Mr. Salmon to request the tour of duty
 change.  (Tr. 663-664, G.C. Exh. 29).  The request was thereafter
 formally approved by Mr. Salmon.
 
    On November 4, 1980, Chaplain Howe met with Chaplain Gunton and
 Chaplain Sandlund about the matter.  Chaplain Howe explained that
 Chaplain Sandlund could not provide two Protestant services on Sundays
 and that Chaplains Sandlund and Howe were proposing that Chaplain Gunton
 assume Sunday duties.  (Tr. 324-325).  Chaplain Gunton interposed
 objections on a number of grounds.  Among other things, he pointed out
 that the proposed change affected working conditions, that it was a
 negotiable issue, and that it would constitute an economic hardship.  He
 noted that he performed outside work as a clergyman on Sundays and that
 he was paid for this work.  (Tr. 325-327, 672).  Chaplain Howe said that
 he would take the matter up with higher management (Tr. 328), but that
 he was not impressed with the argument that he was under an obligation
 to negotiate.  (Tr. 672).
 
    Mr. Salmon, Chaplain Howe, and the VAMC Personnel Officer
 acknowledged that the Union, as distinct from Chaplain Gunton
 personally, never received notice of the proposed change in Chaplain
 Gunton's tour of duty.  (Tr. 358-359, 380, 581, 652-653, 657).  Although
 negotiations were in fact requested by Chaplain Gunton, the opportunity
 to negotiate was never provided.  (Tr. 345).  On November 12, 1980,
 Chaplain Gunton received a memorandum dated November 5, 1980 from
 Chaplain Howe, advising that a new 4-day tour of duty to include the
 hours of 8:00 a.m. to noon on Sundays, 7:45 a.m. to 4:30 p.m. on
 Mondays, 8:00 a.m. to noon on Tuesdays, and 3:30 p.m. to 7:30 p.m. on
 Wednesdays, would be assigned to him as of November 16, 1980.  (G.C.
 Exh. 26).  /15/ Chaplain Gunton went to see Chaplain Howe to repeat his
 objections to the change;  however, apart from receiving a delay in the
 date of implementation, Chaplain Gunton was unsuccessful.  /16/ The new
 tour of duty became effective on November 23, 1980.  (G.C. Exh. 27).
 
                        Discussion and Conclusions
 
                             Case No. 1-CA-574
 
    (a) Inclusion of Charge in Chaplain
 
          Gunton's Personnel Extension File
 
    The original charge in Case No. 1-CA-394 was retained in Chaplain
 Gunton's personnel extension file in Chaplain Cherry's Office.  The file
 was designed for use in connection with personnel actions.  The charge
 in question related to the pattern of unfair labor practice allegations
 involving Chaplain Cherry's and Mr. Salmon's efforts to effect
 withdrawal of Chaplain Gunton's accreditation because of his activity on
 behalf of the Union.  The record does not reflect evidence concerning
 the manner in which the charge found its way into the file.  However,
 circumstantial evidence adduced during the hearing points clearly to
 either the involvement of management officials representing the
 Respondents, or VA Central Office placement of the document in Chaplain
 Gunton's file on behalf of the VA and VAMC as a further manifestation of
 antipathy toward Chaplain Gunton because of his Union activity.  The
 filing interfered with, restrained and coerced Chaplain Gunton in the
 exercise of Chaplain Gunton's rights under the Statute.  This conclusion
 necessarily follows from the fact that awareness of such a filing would
 have had a chilling effect on Chaplain Gunton's continued participation
 in Union activities.  On the basis of this rationale it is concluded
 that the inclusion of the charge in Chaplain Gunton's personnel
 extension file constituted a violation of Section 7116(a)(1).
 
    (b) Submission of Documents to Reverend
 
          Strickland on or About October 14, 1980
 
    Chaplain Cherry's transmission of material to Reverend Strickland on
 or about October 14, 1980 represented an abortive continuation of Mr.
 Salmon's and Chaplain Cherry's plan to effect the withdrawal of Chaplain
 Gunton's endorsement.  Although it appears to have been put into motion
 by Chaplain Cherry, the record discloses that Mr. Salmon and Chaplain
 Cherry were acting in concert with respect to efforts to generate as
 much basis as possible for Reverend Strickland to use as a reason for
 withdrawing Chaplain Gunton's endorsement.
 
    Although the documents related to an innocuous personal family
 dispute involving Chaplain Gunton, they were transmitted to Reverend
 Strickland by Chaplain Cherry because of Chaplain Gunton's involvement
 in activity on behalf of the Union, and because of his filing unfair
 labor practices against the VAMC.  Accordingly, it is concluded that the
 transmission of documents on or about October 14, 1980, constituted
 violations of Sections 7116(a)(2), (4), and (1) by the Respondents.
 
    (c) Chaplain John T. Sandlund Alleged to Have Attended Formal
 
          Discussions, and Change in Chaplain Gunton's Tour of Duty
 
    Section 7114(a)(2)(A) of the Statute provides:
 
          (2) An exclusive representative of an appropriate unit in an
       agency shall be given the opportunity to be represented at--
 
          (A) any formal discussion between one or more representatives
       of the agency and one or more employees in the unit or their
       representatives concerning any grievance or any personnel policy
       or practices or other general condition of employment . . . .
 
    Although there is little or no case law specifically construing the
 provisions of Section 7114(a)(2)(A), cases construing Section 10(e) of
 Executive Order 11491, are relevant since the terminology used in
 Section 10(e) is nearly identical to that utilized in Section
 7114(a)(2)(A).
 
    In Department of Defense, U.S. Navy, Norfolk Naval Shipyard, 1 FLRA
 No. 32, May 1, 1979, an unfair labor practice case initiated under
 Executive Order 11491, the Authority approved the following language
 used by the Federal Labor Relations Council in its Lyndon B. Johnson
 Space Center (NASA) decision:  /17/
 
          The language of the pertinent portion of section 10(e) . . .
       makes clear that it is not the intent of the Order to grant to an
       exclusive representative a right to be represented in every
       discussion between agency management and employees.  Rather, such
       a right exists only when the discussions are determined to be
       formal discussions and concern grievances, personnel policies and
       practices, or other matters affecting the general working
       conditions of unit employees.  (Footnotes omitted).
 
    The Authority's decision in 1 FLRC No. 32, also adopted the following
 Council language from the Council's decision reviewing the Assistant
 Secretary's decision in A/SLMR No. 908:
 
          Thus, the discussion or meeting for which representation is
       sought must be 'formal' in nature and the topic of the meeting
       must be one or more of the matters enumerated in the last sentence
       of section 10(e), i.e., 'grievances, personnel policies and
       practices, or other matters affecting general working conditions
       of employees in the unit.' Both elements must exist for the right
       of representation under section 10(e) to accrue either to the
       exclusive representative or, derivatively, to the employee
       involved.
 
          As to the first element, the question of whether a meeting is
       'formal' or informal is essentially a factual determination which,
       in our view, is a matter best resolved on a case-by-case basis by
       the Assistant Secretary as finder of fact, taking into
       consideration and weighing a variety of factors such as:  who
       called the meeting and for what purpose;  whether written notice
       was given;  where the meeting was held;  who attended;  whether a
       record or notes of the meeting were kept;  and what was actually
       discussed.  (Footnotes omitted).
 
    The Federal Labor Relations Council in considering a case arising
 under Sections 19(a)(1) and (6) of Executive Order 11491, as amended,
 Department of the Navy, Naval Air Station, Fallon, Nevada, A/SLMR No.
 432, FLRC No. 74A-80, 3 FLRC 697 (1975) held that the following criteria
 should be used in determining whether a communication amounts to an
 attempt to bypass the exclusive representative:
 
          In determining whether a communication is violative of the
       Order, it must be judged independently and a determination made as
       to whether that communication constitutes, for example, an attempt
       by agency management to deal or negotiate directly with unit
       employees or to threaten or promise benefits to employees.  In
       reaching this determination, both content of the communication and
       the circumstances surrounding it must be considered.  More
       specifically, all communications between agency management and
       unit employees over matters relating to the collective bargaining
       relationship are not violative.  Rather communications which, for
       example, amount to an attempt to bypass the exclusive
       representative and bargain directly with employees, or which urge
       employees to put pressure on the representative to take a certain
       course of action, or which threaten or promise benefits to
       employees are violative of the Order.  (Footnote omitted).
 
    In U.S. Department of the Air Force, 47th Air Base Group (ATC),
 Laughlin Air Force Base, Texas, 4 FLRA No. 65, the Authority rejected
 the suggestion that a Section 7116(a)(1) and (5) bypass of the Union
 occurred when management dealt directly with employees to determine if
 they would be willing to work elsewhere during closure of a portion of
 an activity.  The quoted portion of the Fallon decision was considered
 in part by Administrative Law Judge Oliver in the decision subsequently
 affirmed by the Authority.  He noted that the discussions did not
 concern any personnel policy or practices or conditions of employment
 affecting employees in the unit generally, and that management did not
 attempt to negotiate or deal with employees in order to obtain their
 agreement to management's position, or to put pressure on the Union to
 take a certain course of action.
 
    Applying the principles outlined to the facts presented in this case
 it is noted that Section 7114(a)(2)(A) is inapplicable because there was
 no evidence to indicate a showing that any of the meetings were "formal"
 in nature, and further the subject discussed did not relate to personnel
 policies and practices, or other matters affecting the general working
 conditions of bargaining unit employees.  In each case it appeared that
 Chaplain Sandlund initiated brief informal contacts with management in
 an effort to be relieved of some of his Sunday duties.  In each case
 management responded to the request in limited terms applicable solely
 to Chaplain Sandlund's situation.  These circumstances reflect the
 absence of formality, and the absence of discussion of any grievances,
 personnel policies or practices, or other general conditions of
 employment.
 
    Since Section 7114(a)(2)(A) requires proof of the two mentioned
 elements, and since such proof is not reflected in the record, it must
 be concluded that counsel for the General Counsel has not established
 its burden of proof with respect to this segment of Case No. 1-CA-574.
 
    Similarly, in determining whether such discussions were a bypass
 within the meaning of Sections 7116(a)(1) and (5), it is noted the
 discussions described do not meet the criteria previously established by
 the Authority in U.S. Department of the Air Force, 47th Air Base Group
 (ATC), Laughlin Air Force Base, Texas, supra.  Here there was no
 apparent attempt to deal or negotiate directly with bargaining unit
 employees concerning personnel policies or practices, or other
 conditions of employment affecting employees in the unit generally.  As
 noted, Chaplain Sandlund initiated the request for a change in his tour
 of duty, and the meetings were informal in nature.  There was no attempt
 on management's part to bypass the Union and deal directly with
 bargaining unit employees, or which urged employees to put pressure on
 the representative to take a certain course of action, or which
 threatened or promised benefits to employees.  Accordingly, it is
 concluded that the record does not reflect proof of any violation of
 Section 7116(a)(1) and (5) in connection with Chaplain Sandlund's
 meetings with management.
 
    With respect to allegations that Respondents discriminatively changed
 Chaplain Gunton's tour of duty because of his Union activities it is
 noted that there is circumstantial evidence in the record indicating
 that Mr. Salmon's and Chaplain Cherry's participation in discussion with
 Chaplain John T. Sandlund concerning the change in Chaplain Gunton's
 tour of duty, and Respondent's approval of the tour of duty changes,
 were motivated in part by anti-union animus.  In fact, the facts clearly
 suggest that Chaplain Sandlund's request may have been welcomed by
 Respondents' representatives because of their opposition to Chaplain
 Gunton's Union activity.  However, the record clearly indicates that
 Chaplain Gunton was the only Protestant Chaplain at the VAMC other than
 Chaplain Sandlund, and further that Chaplain Sandlund's health provided
 a strong reason for relieving him of some of his Sunday duties.  Under
 these circumstances it must be concluded that the record shows by a
 preponderance of the evidence that Respondents would have reached the
 same decision or taken the same action even in the absence of protected
 activity.  Because of this evidentiary showing portions of Case No.
 1-CA-574 alleging violations of Sections 7116(a)(1), and (2) based upon
 discriminatory conduct relating to the change in Chaplain Gunton's tour
 of duty provide no basis for a finding in favor of the Union.  Internal
 Revenue Service Washington, D.C., supra;  Veterans Administration,
 Medical and Regional Office Center, White River Junction, Vermont,
 supra.
 
    In considering the bargaining obligation relating to Respondents'
 determination to modify Chaplain Gunton's tour of duty, it is first
 noted that there was an obligation to bargain concerning the decision to
 effectuate the change because the change did not as proposed and
 effectuated, explicitly relate to the numbers, types, and grades of
 employees assigned so as to come within the purview of Section
 7106(b)(1) of the Statute.  National Treasury Employees Union Chapter
 66, supra;  American Federation of Government Employees, AFL-CIO,
 International Council of U.S. Marshals Service Locals, supra;  Internal
 Revenue Service and Brookhaven Service Center, supra.
 
    The record reflects that the decision to modify Chaplain Gunton's
 tour of duty occurred as early as September of 1980 on occasions when
 Chaplain Hose, Chaplain Cherry and Mr. Salmon indicated their approval
 of Chaplain Sandlund's request to be excused from a portion of his
 Sunday duties.  Formal approval occurred on or about October 30, 1980
 and November 5, 1980.  The Union never received notice of the proposed
 change, /18/ and there was a refusal to bargain concerning the matter
 although Chaplain Gunton subsequently requested negotiations.
 
    Counsel for the General Counsel argued during the hearing that a
 March 7, 1979 settlement agreement involving the parties herein (G.C.
 Exh. 14);  but in connection with other unrelated cases, established the
 duty to bargain concerning the decision to change Chaplain Gunton's tour
 of duty, as well as issues pertaining to impact and implementation;  and
 further that the unilateral change of his tour of duty constituted a
 patent breach of this agreement.  The March 7, 1979 settlement agreement
 might be interpreted as imposing a contractual obligation to bargain
 fully on this subject.  Insofar as is pertinent here the settlement
 agreement provides:
 
          Changes of tours of duty or methods of rotation through tours
       of duty and days off shall be first negotiated in writing.
       Response to Management proposals to fill new duty tours or change
       tour rotation methods shall be made by the Union within two weeks.
        (G.C. Exh. 14).
 
    The meaning of the quoted language is unclear as the word
 "negotiated" is not specifically defined, and the agreement was not
 shown to be applicable to this case.  It is not possible to construe the
 provision so as to establish a patent breach of the agreement as a
 separate unfair labor practice in this case.  Moreover, the consolidated
 complaint alleges no breach of the March 7, 1979 settlement agreement.
 For the purposes of this litigation it is sufficient to say that the
 settlement agreement includes no waiver of the Union's statutory right
 to negotiate in this area of concern.
 
    On the basis of the foregoing it must be concluded that Respondents
 acted in violation of Sections 7116(a)(5) and (1) by formulating a
 decision to change Chaplain Gunton's tour of duty without providing the
 Union with adequate notice of the change and an opportunity to negotiate
 concerning the decision to make the change and/or the impact and
 implementation of the change.
 
    Having found that the Respondents violated Sections 7116(a)(1) and
 (5) in Case No. 1-CA-276;  Sections 7116(a)(1), and (2), and (4) in Case
 No. 1-CA-394;  Sections 7116(a)(1), (2), (4), and (5) in Case No.
 1-CA-397;  and Sections 7116(a)(1), (2), (4), and (5) in Case No.
 1-CA-574, it is recommended that the Authority issue the following
 Order:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Veterans Administration, Washington, D.C., and the Veterans
 Administration Medical Center, Bath, New York, shall:
 
    1.  Cease and desist from:
 
          (a) Instituting at the Veterans Administration Medical Center,
       Bath New York, changes in the practice of providing a noon meal to
       physicians assigned duty as Medical Officer of the Day on Monday
       through Friday, and the practice of assigning 24-hour tours of
       duty to those selected to serve as Medical Officer of the Day on
       Monday through Friday, without first notifying the American
       Federation of Government Employees, AFL-CIO, Local 491, the
       exclusive representative of its employees, and affording such
       representative the opportunity to negotiate in good faith, to the
       extent consonant with law, regulations and the Federal Service
       Labor-Management Relations Statute, with regard to any proposed
       changes in such established practices.
 
          (b) Interfering with, restraining, or coercing Chaplain Ronald
       Gunton in the exercise of rights assured by the Federal Service
       Labor-Management Relations Statute, by causing the initiation of
       investigation into his Church accreditation because of his
       participation in protected activities on behalf of the American
       Federation of Government Employees, AFL-CIO, Local 491, and
       because he filed unfair labor practice charges under the Federal
       Service Labor-Management Relations Statute.
 
          (c) Discouraging Chaplain Ronald Gunton from membership in a
       labor organization by causing the initiation of investigation into
       his Church accreditation because of his participation in protected
       activities on behalf of the American Federation of Government
       Employees, AFL-CIO, Local 491, and because he filed unfair labor
       practice charges under the Federal Service Labor-Management
       Relations Statute.
 
          (d) Discouraging Chaplain Ronald Gunton from membership in a
       labor organization by the removal of Chaplain Gunton from the
       Equal Employment Opportunity Committee serving the Veterans
       Administration Medical Center, Bath, New York, because of his
       participation in protected activities on behalf of the American
       Federation of Government Employees, AFL-CIO, Local 491, and
       because he filed unfair labor practice charges under the Federal
       Service Labor-Management Relations Statute.
 
          (e) Refusing to meet, confer, and negotiate with the American
       Federation of Government Employees, AFL-CIO, Local 491, by
       removing Chaplain Ronald Gunton from the Equal Employment
       Opportunity Committee serving the Veterans Administration Medical
       Center, Bath, New York, and by denying Chaplain Gunton the right
       to serve on the mentioned Equal Employment Opportunity Committee
       as the designated representative of the American Federation of
       Government Employees, AFL-CIO, Local 491.
 
          (f) Interfering with, restraining, or coercing Chaplain Ronald
       Gunton in the exercise of rights assured by the Federal Service
       Labor-Management Relations Statute by the inclusion of a copy of a
       June 10, 1980 unfair labor practice charge relating to Case No.
       1-CA-394, in Chaplain Gunton's personnel extension file in the
       Office of the Chief of Chaplains, Veterans Administration,
       Washington, D.C.
 
          (g) Instituting at the Veterans Administration Medical Center,
       Bath, New York, changes in Chaplain Ronald Gunton's tour of duty
       without first notifying the American Federation of Government
       Employees, AFL-CIO, Local 491, the exclusive representative of its
       employees, and affording such representative the opportunity to
       negotiate in good faith, to the extent consonant with law,
       regulations and the Federal Service Labor-Management Relations
       Statute, with regard to any proposed change in his tour of duty.
 
          (h) In any like or related manner interfering with,
       restraining, or coercing its 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
 purpose and policies of the Statute:
 
          (a) Rescind the changes effectuated on February 29, 1980, at
       the Veterans Administration Medical Center, Bath, New York, in
       connection with the practice of providing a noon meal to
       physicians assigned duty as Medical Officer of the Day on Monday
       through Friday, and the practice of assigning 24-hour tours of
       duty to those selected to serve as Medical Officer of the Day on
       Monday through Friday.
 
          (b) Notify the American Federation of Government Employees,
       AFL-CIO, Local 491, the exclusive representative of its employees,
       of any proposed change in the practice of providing a noon meal to
       physicians assigned duty as Medical Officer of the Day on Monday
       through Friday, and the practice of assigning 24-hour tours of
       duty to those selected to serve as Medical Officer of the Day on
       Monday through Friday, and upon request, negotiate in good faith,
       to the extent consonant with law, regulations and the Federal
       Service Labor-Management Relations Statute, concerning such
       intended changes.
 
          (c) Notify Reverend Paul Strickland, Director, American Baptist
       Chaplaincy and Pastoral Counseling, National Ministries, American
       Baptist Churches, Valley Forge, Pennsylvania, of this Order, and
       formally request the return of all documents forwarded to Reverend
       Strickland for the purpose of furnishing a basis for withdrawal of
       the endorsement of Chaplain Ronald Gunton by the American Baptist
       Churches.
 
          (d) Rescind the March 18, 1980 memorandum addressed to the
       President of the American Federation of Government Employees,
       AFL-CIO, Local 491, by Mr. Milton Salmon, Medical Center Director,
       Veterans Administration Medical Center, Bath, New York, for the
       purpose of effectuating termination of Chaplain Ronald Gunton's
       appointment to the Equal Employment Opportunity Committee serving
       the Veterans Administration Medical Center, Bath, New York.
 
          (e) Remove from Chaplain Ronald Gunton's personnel extension
       file in the Office of the Chief of Chaplains, Veterans
       Administration, Washington, D.C., all copies of the June 10, 1980
       unfair labor practice charge relating to Case No. 1-CA-394.
 
          (f) Rescind the November 5, 1980 memorandum addressed to
       Chaplain Ronald Gunton by Chaplain John Howe for the purpose of
       effectuating a change in Chaplain Gunton's tour of duty.
 
          (g) Notify the American Federation of Government Employees,
       AFL-CIO, Local 491, the exclusive representative of its employees,
       of any proposed change in the tour of duty assigned to Chaplain
       Ronald Gunton, and upon request, negotiate in good faith to the
       extent consonant with law, regulations and the Federal Service
       Labor-Management Relations Statute concerning such change.
 
          (h) Post at its facilities at the Veterans Administration,
       Washington, D.C., and at the Veterans Administration Medical
       Center, Bath, New York, 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 Administrator, Veterans Administration Washington, D.C., or
       other appropriate official at the Washington, D.C. level of the
       Veterans Administration, and shall be posted and maintained for 60
       consecutive days thereafter, in conspicuous places, where notices
       to employees are customarily posted.  Reasonable steps shall be
       taken by Respondents to insure that such notices are not altered,
       defaced, or covered by other material.
 
          (i) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region I, 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.
 
    IT IS HEREBY FURTHER ORDERED that the allegations in the consolidated
 complaint found not to be violations of the Federal Service
 Labor-Management Relations Statute be, and hereby are, dismissed.
 
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
 Dated:  September 23, 1981
          Washington, DC
 
 
 
 
 
                          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 institute changes at the Veterans Administration Medical
 Center, Bath, New York, in the practice of providing a noon meal to
 physicians assigned duty as Medical Officer of the Day on Monday through
 Friday, and the practice of assigning 24-hour tours of duty to those
 selected to serve as Medical Officer of the Day, without first notifying
 the American Federation of Government Employees, AFL-CIO, Local 491, the
 exclusive representative of its employees, and affording such
 representative the opportunity to negotiate in good faith, to the extent
 consonant with law, regulations, and the Federal Service
 Labor-Management Relations Statute, with regard to any proposed changes
 in such established practices.  WE WILL NOT interfere with, restrain, or
 coerce Chaplain Ronald Gunton in the exercise of rights assured by the
 Federal Service Labor-Management Relations Statute by causing the
 initiation of investigation into his Church accreditation because of his
 participation in protected activities on behalf of the American
 Federation of Government Employees, AFL-CIO, Local 491, and because he
 filed unfair labor practice charges under the Federal Service
 Labor-Management Relations Statute.  WE WILL NOT discourage Chaplain
 Ronald Gunton from membership in a labor organization by causing the
 initiation of investigation into his Church accreditation because of his
 participation in protected activities on behalf of the American
 Federation of Government Employees, AFL-CIO, Local 491, and because he
 filed unfair labor practice charges under the Federal Service
 Labor-Management Relations Statute.  WE WILL NOT discourage Chaplain
 Ronald Gunton from membership in a labor organization by removing him
 from the Equal Employment Opportunity Committee serving the Veterans
 Administration Medical Center, Bath, New York, because of his
 participation in protected activities on behalf of the American
 Federation of Government Employees, AFL-CIO, Local 491, and because he
 filed unfair labor practice charges under the Federal Service
 Labor-Management Relations Statute.  WE WILL NOT refuse to meet, confer,
 and negotiate with the American Federation of Government Employees,
 AFL-CIO, Local 491, by removing Chaplain Ronald Gunton from the Equal
 Employment Opportunity Committee serving the Veterans Administration
 Medical Center, Bath, New York, and by denying Chaplain Gunton the right
 to serve on the Committee as the designated representative of the
 American Federation of Government Employees, AFL-CIO, Local 491.  WE
 WILL NOT interfere with, restrain, or coerce Chaplain Ronald Gunton in
 the exercise of rights assured by the Federal Service Labor-Management
 Relations Statute by including a copy of a June 10, 1980 unfair labor
 practice charge relating to Case No. 1-CA-394 in Chaplain Gunton's
 personnel extension file in the Office of the Chief of Chaplains,
 Veterans Administration, Washington, D.C.  WE WILL NOT institute any
 change in Chaplain Ronald Gunton's tour of duty without first notifying
 the American Federation of Government Employees, AFL-CIO, Local 491, the
 exclusive representative of its employees, and affording such
 representative the opportunity to negotiate in good faith, to the extent
 consonant with law and regulations and the Federal Service
 Labor-Management Relations Statute, with regard to any proposed change
 in his tour of duty.  WE WILL NOT in any like or related manner
 interfere with, restrain, or coerce our employees in the exercise of
 their rights assured by the Federal Service Labor-Management Relations
 Statute.  WE WILL rescind the changes effectuated at the Veterans
 Administration Medical Center, Bath, New York, on February 29, 1980, in
 connection with the practice of providing a noon meal to physicians
 assigned duty as Medical Officer of the Day on Monday through Friday,
 and the practice of assigning 24-hour tours of duty to those selected to
 serve as Medical Officer of the Day on Monday through Friday.  WE WILL
 notify the American Federation of Government Employees, AFL-CIO, Local
 491, the exclusive representative of its employees, of any proposed
 change in the practice of providing a noon meal to physicians assigned
 duty as Medical Officer of the Day on Monday through Friday, and the
 practice of assigning 24-hour tours of duty to those selected to serve
 as Medical Officer of the Day on Monday through Friday, and upon
 request, negotiate in good faith, to the extent consonant with law,
 regulations and the Federal Service Labor-Management Relations Statute,
 concerning such intended changes.  WE WILL notify Reverend Paul
 Strickland, Director, American Baptist Chaplaincy and Pastoral
 Counseling, National Ministries, American Baptist Churches, Valley
 Forge, Pennsylvania, of the Order requiring this Notice and posting, and
 request by letter, the return of all documents forwarded to Reverend
 Strickland for the purpose of furnishing a basis for the withdrawal of
 the endorsement of Chaplain Ronald Gunton by the American Baptist
 Churches.  WE WILL rescind the March 18, 1980 memorandum addressed to
 the President of the American Federation of Government Employees,
 AFL-CIO, Local 491, by Mr. Milton Salmon, Medical Center Director,
 Veterans Administration Medical Center, Bath, New York, for the purpose
 of effectuating termination of Chaplain Ronald Gunton's appointment to
 the Equal Employment Opportunity Committee serving the Veterans
 Administration Medical Center, Bath, New York.  WE WILL remove from
 Chaplain Ronald Gunton's personnel extension file in the Office of the
 Chief of Chaplains, Veterans Administration, Washington, D.C., all
 copies of the June 10, 1980 unfair labor practice charge relating to
 Case No. 1-CA-394.  WE WILL rescind the November 5, 1980 memorandum
 addressed to Chaplain Ronald Gunton by Chaplain John Howe for the
 purpose of effectuating a change in Chaplain Gunton's tour of duty.  WE
 WILL notify the American Federation of Government Employees, AFL-CIO,
 Local 491, the exclusive representative of its employees, of any
 proposed change in the tour of duty assigned to Chaplain Ronald Gunton,
 and upon request, negotiate in good faith to the extent consonant with
 law, regulations and the Federal Service Labor-Management Relations
 Statute concerning such change.
                                       (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
 questions concerning this Notice or compliance with any of its
 provisions, they may communicate directly with the Regional Director,
 Federal Labor Relations Authority, whose address is:  441 Stuart Street,
 9th Floor, Boston, MA 02116, and whose telephone number is (617)
 223-0920.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In full agreement with the Judge's dismissal of the allegations
 contained in the complaint in Case No. 1-CA-115, the Authority notes
 particularly its adoption of the recommended decision in Norfolk Naval
 Shipyard, 10 FLRA No. 105 (1983), which was relied upon by the Judge
 herein in reaching his determination.
 
 
    /2/ In denying General Counsel's exceptions seeking to broaden the
 recommended notice posting to include all the Activities in the
 consolidated unit, the Authority, noting particularly that the unlawful
 conduct occurred basically at the Veterans Administration Medical
 Center, Bath, New York, and additionally involved only one official from
 the National Office, concludes that a limited posting as recommended by
 the Judge would best effectuate the purpose of the Statute.  See, e.g.,
 National Treasury Employees Union, 10 FLRA No. 91 (1982), appeal
 docketed, No. 83-1054 (D.C. Cir. Jan. 13, 1983).
 
 
    /3/ On October 20, 1977, the Union was certified as the exclusive
 representative of all professional and nonprofessional employees,
 including canteen employees at the VAMC, excluding temporary employees
 who do not have reasonable expectancy of continued employment, cemetery
 employees, management officials, employees engaged in federal personnel
 work in other than a purely clerical capacity, and supervisors.  On
 February 28, 1980, the American Federation of Government Employees,
 AFL-CIO, was certified as the exclusive representative of all
 professional and nonprofessional employees described as part of separate
 consolidated Veterans Administration professional and nonprofessional
 units.
 
 
    /4/ Respondents did not file a post-hearing brief, and apart from the
 answer filed and brief oral statements of counsel made during the course
 of the hearing, did not present a detailed explanation of position
 relating to the many issues posed in the consolidated complaint.
 Counsel of record were required to file post-hearing briefs.  (Tr. 681).
 
 
    /5/ Chaplain Gunton and Chaplain Sandlund were the only Protestant
 chaplains at the VAMC.  (Tr. 385-386).
 
 
    /6/ Counsel for the General Counsel moved to correct the transcript
 as follows:
 
    Page Line Change To
 
    10 17 Institute Authority
 
    11 4 Institute Statute
 
    12 8 110 115
 
    19 16 Institute Statute
 
    21 6 711685 7116(a)(5)
 
    83 9 I he
 
    173 14 Medical Federal
 
    207 1 incurrence concurrence
 
    247 1 who she
 
    303 21 Peter Heeter (and all subsequent references).
 
    679 9 diminution elimination
 
    The motion to correct is granted.  The following additional
 corrections are made in the hearing transcript:
 
    Page Line Change To
 
    1A 10 withdrawn 466
 
       5 3 Institute Statute
 
    27 13 934 394
 
    32 6 talking taking
 
    189 1 212 2.12
 
    189 18 mean meal
 
    222 18 Stranton Strand
 
    681 20 is ruled on has ruled on it
 
    681 22 Relations is Relations Authority is concerned
 
 
    /7/ See also Veterans Administration Medical Center, Bath, New York,
 4 FLRA No. 76 (November 12, 1980 and January 8, 1981), for references to
 the settlement of Case No. 1-CA-115 prior to hearing.
 
 
    /8/ This regulatory provision also suggests authorization for
 furnishing noon meals to those assigned Medical Office of the Day duties
 by inclusion of the following language:  "When it is management's
 decision to maintain an 'Officer of the Day' roster, conditions will be
 specified under which the 'Officer of the Day will inspect patients'
 meals.  If management determines that continuous medical supervision
 will be provided by any other arrangement, then these persons will not
 be permitted 'Officer of the Day' meal privileges in the Dietetic area."
 
    A subsequent regulation dated August 7, 1968 appeared to have some
 relationship to the subject, but could not definitely be tied to the
 issue on the basis of the record developed.  (G.C. Exh. 13).
 
 
    /9/ As noted, it was clearly established that the practice at the
 VAMC was to assign physicians to Medical Officer of the Day duties for a
 24-hour period.  Thus, while serving a regular shift a physician so
 assigned would be available during the lunch period as well as the
 period following normal duty hours.  Those so assigned were given a noon
 meal for this reason.  The parties stipulated that prior to February 29,
 1980, the effective date of the elimination of the noon meal, Medical
 Officers of the Day were required, "during some period prior to February
 29, 1980," to stay at the duty station during the noon meal hour.  (Tr.
 679).
 
 
    /10/ In Veterans Administration, 1 FLRA No. 101 (August 21, 1979),
 the Authority held in an Executive Order case that agency officials
 operating at lower organization levels may not be held responsible for
 carrying out instructions issued at higher levels of the agency.  The
 facts presented in this case evidence involvement of both Central Office
 officials and VAMC officials in the denial of the Union's right to
 negotiate.  There was no showing that VAMC officials should be absolved
 because of the principle expressed in the cited case.  That is, the
 record did not show that when VAMC officials denied bargaining rights in
 this case, they were taking such action solely because of the issuance
 of VA Central Office instructions to implement changes without according
 the Union bargaining rights provided by the Statute.
 
 
    /11/ The record reflects that Mr. Salmon and Reverend Strickland had
 more than one conversation (Tr. 44-45), and further that there was a
 general discussion of Chaplain Gunton's conduct.  (Tr. 416).
 
 
    /12/ The Assistant Secretary relied on Old Dominion Branch No. 496,
 National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264
 (1974), in which the Supreme Court concluded that Executive Order 11491
 did not intend to restrict in any way, the "robust debate" which has
 been protected under the National Labor Relations Act.
 
 
    /13/ Although the Respondents claimed that Chaplain Sandlund was a
 "management official" within the meaning of Section 7103(a)(1) of the
 Statute, and that the Union had no right to be present at discussions
 involving Chaplain Sandlund, the record failed to reflect any basis for
 a finding that he was a management official.  Chaplain Sandlund had no
 authority over Chaplain Gunton (Tr. 386), and like other VAMC Chaplains,
 was under Cha