24:0064(8)CA - VA and VA Medical Center, Lyons, NJ and AFGE Local 1012 -- 1986 FLRAdec CA



[ v24 p64 ]
24:0064(8)CA
The decision of the Authority follows:


 24 FLRA No. 8
 
 VETERANS ADMINISTRATION AND 
 VETERANS ADMINISTRATION MEDICAL 
 CENTER, LYONS, NEW JERSEY
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1012
 Charging Party
 
                                            Case No. 2-CA-40271
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This case is before the Authority on limited exceptions filed by the
 General Counsel to the attached Administrative Law Judge's Decision.
 The Judge found that the Veterans Administration and Veterans
 Administration Medical Center, Lyons, New Jersey (Respondent) violated
 section 7116(a)(1) and (5) of the Federal Service Labor-Management
 Relations Statute (the Statute) by its failure to bargain with the
 American Federation of Government Employees, AFL-CIO, Local 1012
 (Charging Party) as to the adverse effects on bargaining unit employees
 of its change in the system of rotating instructors into the Acting
 Associate Chief of Nursing Service for Education (ACNSE) position.  He
 further found that Respondent had not engaged in other alleged unfair
 labor practices.  The issues presented by the limited exceptions to the
 Judge's decision concern an allegedly coercive supervisor's statement,
 the unilateral change in the method of filling the Acting ACNSE
 (supervisory) position and the violation found pertaining to failure to
 bargain about that change.  In partial disagreement with the Judge, we
 find no merit to any of the allegations contained in the complaint.
 
                                II.  Facts
 
    The facts are fully set out in detail by the Judge and are repeated
 herein only to the extent that they concern matters related to the
 General Counsel's exceptions.  The Charging Party is the bargaining
 agent for the professional registered nurses employed by the Respondent.
 
           A.  Procedures for Filling the Acting ACNSE Position
 
    On March 18, 1983, the Charging Party's Vice President sent the Chief
 Nurse a memorandum requesting negotiations concerning the detailing of
 all nursing education instructors to staff nursing positions.
 Contemporaneous with this proposed change, the current ACNSE requested a
 transfer to another position at another hospital.  On April 1, 1983,
 representatives of the Charging Party and Respondent's management
 officials met and negotiated concerning the detailing of instructors to
 staff nursing positions.  This meeting, in part, was devoted to a
 discussion of the procedure to be used in temporarily filling the ACNSE
 vacancy.
 
    The parties did not sign a written agreement concerning this matter.
 The Charging Party prepared and sent an "agreement" to the Respondent
 which contained the Charging Party's understanding of what the parties
 had agreed to at their meeting.  The Respondent refused to sign the
 proposed "agreement." The Respondent prepared minutes of the meeting,
 however, and sent them to the Charging Party.  Paragraph 2 of the
 minutes provided that details would be for the shortest time possible,
 with each detail being reviewed every four weeks.  Paragraph 2 also
 provided that based on need, details could be discontinued, changed or
 extended.  Paragraph 4 of the minutes provided in pertinent part that
 "instructors will rotate through the Acting ACNSE position for one
 month," and is substantially the same as paragraph 5 of the Charging
 Party's "agreement." Subsequently, the Respondent began rotating
 instructors through the Acting ACNSE position.  On November 23, 1983,
 Respondent, without notice to the Charging Party, altered the procedure
 and detailed an employee indefinitely to fill the Acting ACNSE position.
  The Respondent asserted that this change was made because the rotation
 system was not effective.
 
                     B.  Allegedly Coercive Statement
 
    On February 8th and 9th of 1984, Bernard Canete, a nursing instructor
 at the Respondent and Vice President of the Charging Party was involved
 in processing an unfair labor practice charge.  The parties had decided
 to settle the charge and Canete and Ms. Benson, a steward of the
 Charging Party, were responsible for drawing up a settlement agreement.
 On the evening of February 9th, Acting ACNSE Dorothy Brenner asked
 Benson how long she would be involved in the Union work so that she
 could fill out the time logs.  Canete, whose office was next to
 Benson's, heard Benson say, "Dorothy, you are harassing me." Canete told
 Brenner that management had given him and Benson time and that Brenner
 was harassing them.  Brenner went into Canete's office and told him,
 "Mr. Canete, if you had been at St. Claire's Hospital you can be fired
 with your union activities."
 
                          III.  Judge's Decision
 
    The Judge concluded that the Respondent did not violate section
 7116(a)(1) of the Statute by the supervisor's statement to an employee
 because under the circumstances, the statement was not coercive or
 intimidating.  The Judge also found that the Respondent did not violate
 section 7116(a)(1) and (5) of the Statute by unilaterally changing its
 method of filling the Acting ACNSE position.  The latter finding was
 based on National Labor Relations Board Union, Local 21 and National
 Labor Relations Board, 15 FLRA 798 (1984), where the Authority stated
 that "a proposal concerning the filling of supervisory positions,
 including temporary appointments is negotiable only at the election of
 the agency since it does not concern a condition of employment of
 bargaining unit employees . . . ." The Judge found that since the Acting
 ACNSE position was a supervisory position, the filling of the position
 on an acting basis did not involve a condition of employment and
 changing the procedure did not change a condition of employment.
 Further, the Judge found that whether Respondent breached its
 contractual term or not by unilaterally changing the method of filling
 the Acting ACNSE position, as the filling did not involve a condition of
 employment the Respondent did not violate the Statute.
 
    Notwithstanding the above, the Judge found that the Respondent
 violated section 7116(a)(1) and (5) of the Statute by failing to bargain
 with the Charging Party about the adverse effects on bargaining unit
 employees of its decision to change the procedure for filling the Acting
 ACNSE position.  The Judge stated that where an agency makes a decision
 that has a reasonably direct adverse impact on bargaining unit employees
 and their conditions of employment, the agency is required by the
 Statute to notify and bargain with the union concerning the adverse
 effects of such change upon employees.  The Judge noted that because of
 the change, the instructors no longer had an equal opportunity to
 experience and learn the skills useful for promotion and that those
 instructors not given the opportunity had to perform certain of the
 tasks and duties of those who were given the opportunity.
 
    Further, the Judge found that the Respondent did not violate section
 7116(a)(1) and (2) of the Statute by the failure of its Key Committee to
 recommend Canete for selection to the ACNSE position.  In so finding,
 the Judge concluded that the evidence was insufficient to justify an
 inference that the Key Committee's decision was based on Canete's Union
 activity and was insufficient to justify discrediting the testimony of
 the Key Committee Members that Canete's Union activity was not
 considered in the Committee's determination.  No exceptions were filed
 to the Judge's conclusion in this regard.
 
                       IV.  Positions of the Parties
 
    The General Counsel argues that the Judge erred in finding that the
 Respondent did not violate section 7116(a)(1) and (5) of the Statute
 when it unilaterally changed the method of filling the position of
 Acting ACNSE, a supervisory position.  Although the General Counsel
 agrees with the Judge that the procedures which an Activity uses to fill
 a supervisory position are bargainable only at the election of the
 agency, it asserts that the Respondent elected to negotiate about the
 procedures and entered into an agreement with the Charging Party on how
 the Acting ACNSE position was to be filled.  The General Counsel argues
 that the Respondent could not thereafter repudiate the agreement without
 violating section 7116(a)(1) and (5) of the Statute.  The General
 Counsel contends that the Respondent by making a permanent assignment of
 an employee to the Acting ACNSE position repudiated its agreement to
 rotate the position among unit employees and thereby violated section
 7116(a)(1) and (5) of the Statute by unilaterally changing working
 conditions of unit employees.
 
    Further, the General Counsel argues that the Judge erred in finding
 that Acting ACNSE Brenner's statement to Canete did not violate section
 7116(a)(1) of the Statute.  It is the General Counsel's view that a
 statement to a union representative that the employee's union activity
 could result in the employee being fired at a private hospital
 constitutes a threat that the protected activity can lead to the same
 consequences at a public hospital.  Consequently, the General Counsel
 concluded that the statement exceeded the expression of opinion and
 constituted interference, restraint and coercion in violation of section
 7116(a)(1) of the Statute.
 
                               V.  Analysis
 
    In agreement with the Judge and based on his rationale, we adopt his
 finding that the Respondent did not violate section 7116(a)(1) and (2)
 by failing to recommend Canete for selection to the ACNSE position.  In
 adopting the Judge's finding, we note that the General Counsel filed no
 exceptions to the finding.
 
           A.  Procedures for Filling the Acting ACNSE Position
 
    We agree with the Judge, based on his rationale, that the Respondent
 did not violate section 7116(a)(1) and (5) of the Statute by changing
 the method for filling the Acting ACNSE position.  The Acting ACNSE
 position was a supervisory position.  The filling of the position on a
 rotational basis did not involve a condition of employment, and changing
 the procedure did not change a condition of employment.  While an agency
 can elect to negotiate about the procedure for filling a supervisory
 position, as the Respondent did in this case, negotiation does not
 convert the procedure into a condition of employment.  Accordingly, the
 Respondent's unilateral change in the procedure did not involve a
 condition of employment, and there was no obligation to bargain over
 that change.
 
    We reject the General Counsel's argument that the Respondent
 repudiated its agreement with the Charging Party concerning the
 procedure for filling the Acting ACNSE position.  The parties prepared
 documents setting forth separate versions of the meeting.  The Union
 prepared an "agreement," which the Respondent refused to sign, and the
 Respondent prepared minutes of the meeting.  The Judge found that none
 of the parties objected to the minutes as written and that all stated
 that the minutes reflected what was agreed upon.  The Respondent
 maintains, not inconsistent with the minutes of the meeting, that the
 understanding reached by the parties was that management would fill the
 position by rotation on a trial basis but that management retained the
 authority to change or terminate the procedure at any time management
 determined that rotation was not working effectively.  The Union
 disagrees.  In these circumstances, assuming that the minutes reflect an
 agreement, we find that this aspect of the case involves differing and
 arguable interpretations of the parties' agreement.  In cases involving
 disputed interpretations of an agreement, the aggrieved party's remedy
 is through the grievance and arbitration procedures available to the
 parties, or other appropriate proceedings, rather than through unfair
 labor practice procedures.  See Department of Health and Human Services,
 Social Security Administration, 23 FLRA No. 62 (1986).
 
    /*/
 
    Moreover, even assuming that the Respondent's subsequent rotation of
 employees through the position was sufficient to establish a past
 practice, the Respondent was under no obligation to bargain over the
 change or termination of the practice since the subject matter did not
 involve a condition of employment.  Nuclear Regulatory Commission, 17
 FLRA 972 (1985).
 
    Furthermore, we disagree with the Judge's finding that the Respondent
 violated the Statute when it failed to bargain with the Charging Party
 about the adverse effects of the change.  Since changing the method for
 filling the Acting ACNSE position did not change a condition of
 employment, the Respondent was under no obligation to bargain over the
 impact and implementation of the change.  See Department of the Navy,
 Naval Underwater Systems Center, Newport, Rhode Island, 11FLRA 316
 (1983);  and Department of the Navy, Supervisor of Shipbuilding,
 Conversion and Repair, Groton, Connecticut, 4 FLRA 578 (1980).  Thus, we
 will dismiss the section 7116(a)(1) and (5) violation found by the
 Judge.
 
                   B.  The Allegedly Coercive Statement
 
    We agree with the Judge, based on his rationale, that the Respondent
 did not violate section 7116(a)(1) of the Statute by the statement of
 its supervisor, Acting ACNSE Brenner, to Canete.  In agreement with the
 Judge, we conclude that Brenner's statement to Canete would not, under
 the circumstances, tend to coerce or intimidate him as the statement was
 merely Brenner's opinion of what the situation was in the private sector
 and could not reasonably be construed or interpreted as a threat.
 
                              VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, we have reviewed the findings of the
 Judge made at the hearing and find that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision, the positions of the parties and the entire record, we
 adopt the Judge's findings, conclusions and recommended Order as
 modified.
 
    We conclude that the Respondent did not violate section 7116(a)(1)
 and (2) of the Statute by the failure of its selection committee to
 recommend that a bargaining unit employee be considered for selection
 for the supervisory position of ACNSE;  did not violate section
 7116(a)(1) of the Statute by a statement made by one of its supervisors
 to a bargaining unit employee;  and did not violate section 7116(a)(1)
 and (5) of the Statute by changing the method of filling the Acting
 ACNSE position.  We conclude further, contrary to the Judge, that the
 Respondent did not violate section 7116(a)(1) and (5) of the Statute by
 failing to bargain with the Charging Party about the adverse effects on
 employees of the decision to change the method of filling the Acting
 ACNSE position.  Accordingly, we dismiss the complaint in its entirety.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 2-CA-40271 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., November 19, 1986.
 
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 2-CA-40271
 
 VETERANS ADMINISTRATION AND VETERANS 
 ADMINISTRATION MEDICAL CENTER,
 LYONS, NEW JERSEY
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1012
    Charging Party
 
  
    Leslie Vincent, Esq.
    For the Respondent
 
    Lee Whitaker
    For the Charging Party
 
    Lee Mingledorff, Esq.
    For the General Counsel, FLRA
 
    Before:  SAMUEL A. CHAITOVITZ
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101, et seq., 92 Stat. 1191 (hereinafter referred to as the
 Statute), and the Rules and Regulations of the Federal Labor Relations
 Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
 
    A charge was filed on March 22, 1984 and amended April 17, 1984 by
 the American Federation of Government Employees, AFL-CIO, Local 1012,
 (hereinafter referred to as AFGE Local 1012 or the Union), against the
 Veterans Administration (VA) and Veterans Administration Medical Center,
 Lyons, New Jersey (VAMC Lyons) hereinafter referred to jointly as
 Respondent.  Pursuant to the above described charge and amended charge,
 on August 31, 1984, the General Counsel of the FLRA, by the Regional
 Director for Region II issued a Complaint and Notice of Hearing alleging
 that Respondent violated Sections 7116(a)(1), (2) and (5) of the
 Statute.  Respondent filed an Answer denying that it had violated the
 Statute.
 
    A hearing was conducted before the undersigned in New York, New York.
  Respondent, Charging Party and General Counsel of the FLRA were
 represented and afforded full opportunity to be heard, to examine and
 cross-examine witnesses, to introduce evidence and to argue orally.
 Post hearing briefs were filed and have been fully considered.
 
    Based upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    At all times material herein AFGE has been the exclusive
 representative for a nationwide unit of nurse professional employees of
 the VA, which includes nurse professional employees at VAMC Lyons.  AFGE
 Local 1012 is the local agent of AFGE at VAMC Lyons and is recognized as
 such by Respondent.
 
                       The Discrimination Allegation
 
    Bernard T. Canete has, at all times material, been employed at VAMC
 Lyons as a nursing instructor.  He has held this position since 1978.
 He is also Vice-President of the professional RN unit and he has held
 this position since February 1983.  Prior to holding this position he
 was the chief steward in the professional unit.  He held this position
 from 1981 to 1983.  As Vice President, Canete's duties involve dealing
 with management on grievances, arbitrations and other types of employee
 complaints.  He is also a member of AFGE Local 1012 executive committee
 and is the Union's representative on the VAMC Lyons EEOC committee and
 on the Hispanic Employment Program at VAMC Lyons.  Canete, as Vice
 President, represents employees under the negotiated grievance
 procedure, in the later stages, in meetings with higher management
 officials including the Chief of Nursing, Chief of Personnel, Chief of
 Staff, and Medical Center Director.  He represented the Union in
 negotiations with management at VAMC Lyons on proposed shift change for
 nurses.  During these negotiations, which lasted from April 1983 to
 October 1983, he dealt with Wanda Daniels who was Chief of Nursing.  In
 addition to these negotiations Canete was involved as chief negotiator
 in negotiations on the detailing of instructors.  These negotiations
 also lasted from March 1983 to the following October.  Canete was
 involved in the first unfair labor practice charge filed by the Union on
 December 27, 1983 and that prior to the filing of the charge he had met
 with VAMC Lyons management on the matter during the middle of October
 1983.  During the second meeting with management during these
 negotiations, the Personnel Officer told Canete to forget about employee
 needs and concerns and to speak about his promotion to Associate Chief
 of Nursing Service for Education (ACNSE).  When Canete declined to set
 aside his union business for a discussion of his promotion he was told
 the reference was meant to be a joke.
 
    Canete was considered for the position of ACNSE in October of 1983.
 This came about as a result of the settlement of an EEO complaint with
 Canete filed in July of 1981.  Canete was told by the VA's attorney that
 the only way to resolve the EEO case was to give Canete top priority
 consideration for the ACNSE.
 
    The Nursing Service Key Committee located at VA's Central Office in
 Washington, D.C. considered candidates for the ACNSE and failed to
 recommend Canete for the position.
 
    Donna Humes, a Deputy Director of Respondent works for Assistant
 Chief Medical Director Ferguson and served as Chairman of the Key
 Committee.  There were seven members of the Key Committee.  When the Key
 Committee has a vacancy to consider, it is VA policy to speak with the
 hospital director or the chief of staff to ask them what qualifications
 they are looking for in a candidate.  There are also other opportunities
 for the Key Committee members to communicate with these officials.  In
 considering Canete for the position the Key Committee reviewed Canete's
 personnel folder and his Board Action Folder.  Maragret de Weaver is the
 member of the Committee that communicated to the Committee the fact that
 Canete had had an opportunity to act in the ACNSE position and that
 there was concern by local VAMC Lyons management about his
 indecisiveness.  /1/ De Weaver had reviewed Canete's record and had
 explored his qualifications with Daniels, the VAMC Lyons Chief of
 Nursing.  De Weaver in fact presented a summary of Canete's
 qualifications which was apparently relied upon by the other members of
 the Key Committee.  De Weaver was the only Key Committee member who had
 knowledge that Canete was a Union member or held an office within AFGE
 and did not discuss this with the Key Committee.  The Key Committee
 reviews approximately 25 files a week.  There were references throughout
 Canete's personnel file concerning his having filed discrimination
 complaints;  there was also a letter of appreciation by VAMC Lyons to
 Canete for his role as the Acting ACNSE from January 1981 to June 1981
 and a favorable evaluation.  The reason the Committee did not consider
 Canete's successful performance in the role of Acting ACNSE in 1981 to
 be determinative was that the Committee had information through de
 Weaver, from Daniels that Canete was indecisive and did not properly
 handle his administrative responsibilities in a proper fashion.  Finally
 significant consideration was given in Canete's evaluation dated June 6,
 1983 which indicated that Canete had a weakness in terms of his
 interpersonal relationships.  Canete's personnel file, when his
 application was considered, included Canete's 1980-81, 1981-82, and
 1982-83 /2/ annual proficiency reports.  In addition to his proficiency
 reports Canete's personnel folder contained a statement of his
 accomplishments as ACNSE from January to June of 1981.  In addition to
 the above documents, Canete's personnel file at the time it was reviewed
 by the Key Committee contained the following documents:  several letters
 of appreciation;  Canete's Curriculum Vitae, a document which summarizes
 his experience and education background;  an AFGE certificate stating
 that Canete attended training as a union steward;  and an AFGE
 certificate stating Canete received Officers and Stewards Training.
 
    Canete was notified of his rejection by the Key Committee on November
 2, 1983 by a letter he received from A. Paul Morris, the Acting Regional
 Director for Respondent's Mid-Atlantic Region.  This letter, prepared by
 de Weaver, states that the reason Canete was not referred for selection
 was because his recent work experience in education had been limited to
 the VAMC Lyons, except for the period of time, 1970-71, when he was an
 assistant clinical instructor in a hospital school of nursing.
 Subsequent to his being rejected by the Key Committee, Canete asked for
 an explanation of why he was rejected, but he received no explanation.
 In this connection it should be noted that subsequent to the filing of
 the charge herein, Respondent set forth in two letters its response to
 the charge.  In one letter, dated April 20, 1984, Respondent gave as the
 explanation for the rejection of Canete his lack of experience,
 knowledge, skills, and abilities and other characteristics per the
 guidance contained in Respondent's Program Guide for Nursing Service
 G-15, M-2, Part V, Appendix B.  In its June 27, 1984 letter Respondent
 asserted that although mobility could have been a factor considered, the
 primary considerations were his qualifications and experience and the
 consensus was that Canete would be better suited to a smaller, less
 active station than VAMC Lyons.
 
    The qualifications for the ACNSE position are set forth in an August
 1, 1980 Position Requirement Memorandum from Daniels, the 1982 Position
 Description for ACNSE position approved by Daniels, Respondent's
 pamphlet of facts on the position, and Respondent's Program Guide for
 Nursing Service.  Essentially they set forth the qualifications as being
 a Master Degree (a higher degree is preferred) with a major in nursing
 from a National League of Nursing accredited program;  four years of
 nursing experience of which one year should be in teaching;  some
 experience in basic nursing administration;  and mobility or a
 willingness to accept transfer to meet the needs of the Nursing Service.
  The Program Guide, which was references in Respondent's April 20, 1984
 position letter, lists courses and other contributory preparation
 relative to qualifying for the ACNSE position.  Examples of contributory
 experiences are the planning and implementation of learning experiences
 for patients, families, and nursing staff;  participation of Nursing
 Service and hospital committees;  serving on the Nurse Professional
 Standards Board;  participating in developing the Nursing Service
 philosophy and goals;  participation in writing the educational
 component of the annual report for Nursing Service;  participating in
 developing intra VA and extra VA details;  developing and completing a
 thesis or research project;  teaching experience in courses for
 registered nurses, practical nurses and nursing assistants;  and
 participation in activities at Regional Medical Educations Centers.
 
    In an affidavit related to the EEO complaint admitted into evidence,
 Wanda Daniels, the Chief Nurse at VAMC Lyons, was asked how she would
 evaluate Canete's qualifications for the ACNSE position at VAMC Lyons.
 She responded that he was very well qualified and that he could manage
 the position.  Vernice Ferguson, the Deputy Assistant Chief Medical
 Director for Nursing Programs at Respondent's Central Office in
 Washington, D.C., also gave an affidavit in the EEO proceeding and
 stated that lack of mobility would not be a single determinant
 justifying nonselection since management needed to be sensitive to the
 fact that people have been promoted in place and that there was
 compassionate reasons to honor a candidate's lack of mobility.  Daniels'
 and Ferguson's statements were made in December of 1982 and January,
 1983, respectively.
 
    A number of the members of the Key Committee testified /3/ at the
 heraing herein and stated that they did not know of Canete's Union
 activities, that such activities were not discussed and were not
 considered in deciding whether to recommend Canete for the ACNSE
 position.  In all the circumstances I credit the members of the Key
 Committee that Canete's Union activities was not a consideration in
 their determination not to recommend him for the ACNSE position at VAMC
 Lyons.  /4/
 
    Further I conclude that ACNSE is a supervisory and/or managerial
 position.  All parties assumed this and the Program Guide sets forth
 supervisory duties, including "Directs, counsels, and evaluates
 performance of nursing instructors . . . "
 
                     The Alleged Statement by Brenner
 
    Allan Stadtmauer an FLRA agent had set up appointments with Canete to
 investigate an unfair labor practice charge on February 8th and 9th of
 1984.  On the 8th of February an entire day was taken up speaking to the
 agent;  around 4:00 p.m. Stadtmauer suggested that the parties explore
 the possibilities of an informal settlement.  Canete had spent the
 entire duty day working in the unfair labor practice charge.  Canete's
 immediate supervisor on February 7, 8 and 9, 1984 was Dorothy Brenner,
 Acting ACNSE.  At 7:15 p.m. on February 9th Canete and Benson, a
 steward, were still working on the settlement agreement.  Canete went
 into his office.  Brenner, as Acting ACNSE asked Benson /5/ how long she
 would be involved in the Union work.  Brenner asked so she could fill
 out time logs.  After a while Canete heard Benson say in a loud tone of
 voice, "Dorothy, you are harassing me." Canete on hearing this (he was
 next door to Benson's office) told Brenner in a tone of voice loud
 enough for her to hear, that management had given him and Benson time
 and that Brenner was harassing them.  Brenner then left her office and
 came into Canete's office and told him, "Mr. Canete, if you had been at
 St. Clarie's Hospital /6/ you can be fired with your union activities."
 Canete said he was shocked by what was said and that he had a settlement
 agreement in his hand.  Brenner then turned around and returned to her
 office.  Brenner had had to teach Canete's classes on the 8th and 9th of
 February and she had previously related to him that she did not like the
 idea of having to take these courses because Canete was engaging in
 Union activities.
 
    Brenner and Canete had worked together for several years as
 instructors.  Also Brenner was a member of the Union and Chief Steward.
 Subsequently she resigned from the Union.
 
            The Alleged Unilateral Change in Working Conditions
 
    On March 18, 1983 Canete sent Daniels a memo requesting negotiations
 concerning the detailing of all nursing education instructors to staff
 nursing positions.  Contemporaneous with this proposed change the
 current ACNSE requested a transfer to another position at another
 hospital.  In order to fill the position being vacated management
 detailed a unit employee, Nursing Instructor Long, to be, effective
 March 25, 1983, Acting ACNSE for an indefinite period.  The Union
 objected to the Long assignment.  On April 1, 1983 representatives of
 the Union and VAMC Lyons management officials met and negotiated
 concerning the detailing of instructors to staff nursing positions.
 Part of this meeting was devoted to a discussion of the procedure to be
 used in temporarily filling the ACNSE vacancy.  On April 1, 1983,
 subsequent to the meeting, the Union sent an agreement to the Medical
 Center Director which contained that to which the Union thought the
 parties had agreed.  Management refused to sign the agreement.
 
    Subsequent to the union's written version of the agreement being
 prepared, VAMC Lyons management prepared its own document purporting to
 be the minutes that the parties had agreed to.  This document was
 received by the Union on April 1st, the same day as its version of the
 agreement was submitted.  Management's minutes, regarding paragraph 4,
 /7/ is the substantially same as paragraph 5 /8/ of the Union's version
 of the agreement.  None of the parties objected to the minutes as
 written and all stated the minutes reflected what was agreed upon.
 Subsequent to the agreement of the parties on April 1st, management
 began rotating instructors through the Acting ACNSE position.  On
 November 23, 1983 management unilaterally altered the procedure it was
 following and detailed Brenner indefinitely to fill the Acting ACNSE
 position.  This change was made because management felt the rotation
 system had faults and was not very effective.  The Union subsequently
 met with management, soon afterwards, to protest the decision to stop
 the rotating details but met with no success.  Management subsequently
 wrote a memo on December 27, 1983 explaining that the decision to
 terminate the rotation of nursing education personnel was made by the
 Chief of Staff but that it had the support of the Medical Center
 Director.  The Union protested management's position by letter on
 January 5, 1984.
 
    The impact on employees of management's decision to end the rotation
 of nurses through the Acting ACNSE position were severalfold.  First the
 indefinite detail of Brenner into the position on November 27, 1983
 changed the level of supervision which prepared employee proficiency
 reports.  During the rotation period this was done by the Chief Nurse, a
 second level supervisor;  after the rotation ended, the rating official
 became once more the Acting ACNSE, the immediate supervisor.  Another
 impact of the indefinite detail of Brenner was that during the period of
 the detail the employees and Union lost the benefit of the services of
 Brenner, the Union's chief steward, who had been, up to that point, very
 active.  Also employees who had been given an opportunity on a rotating
 basis to be Acting ACNSE now lost that opportunity and with it the
 chance to acquire experience which would be helpful in promotions.
 
                     Discussion and Conclusions of Law
 
    General Counsel of the FLRA alleges that the Key Committee failed to
 recommend Canete for selection for the ACNSE position because Canete had
 engaged in protected activity on behalf of AFGE Local 1012 and that by
 so doing VA violated Section 7116(a)(1) and (2) of the Statute.  The
 FLRA has held that, in order to establish this type violation of Section
 7116(a)(1) and (2) of the Statute, the General Counsel of the FLRA had
 the burden of establishing that the alleged discriminatee had engaged in
 protected activity, that Respondent had knowledge of such activity and
 that Respondent took the alleged discriminatory action because of its
 union animus.  Cf. Internal Revenue Service, 6 FLRA 96 (1981);  United
 States Forces/Eighth United States Army, 11 FLRA 434 (1983) and
 Department of Transportation, Federal Aviation Administration, Boston
 Air Route Traffic Control Center, Nashua, New Hampshire, 11 FLRA 318
 (1983).
 
    In the subject case it is well established that Canete was an
 official of AFGE Local 1012 and was very active on its behalf.  He
 processed grievances, and negotiated contract terms on behalf of AFGE
 Local 1012.  As a representative of AFGE Local 1012, Canete had dealings
 with many officials of VAMC Lyons. Thus Canete's activities on behalf of
 Local 1012 were apparently well known at VAMC Lyons.  Further, because
 de Weaver was that member of the Key Committee who communicated directly
 with the officials of VAMC Lyons, it reasonable to infer that de Weaver
 was aware of Canete's activities on behalf of AFGE Local 1012.
 
    Thus, although a member of the Key Committee might have known about
 Canete's union activity, I conclude that the Key Committee did not base
 its determination to refuse to recommend Canete for the ACNSE position
 upon Canete's union activity.  I have credited the testimony of the
 members of Key Committee that Canete's Union activity was not discussed
 or mentioned during its consideration and that a number of the members
 of the Key Committee did not know of Canete's Union activity.  Further
 the record fails to establish union animus on the part of the Key
 Committee or the VA management.  Thus, although Canete seemed a
 qualified candidate for a ACNSE position, I conclude the surrounding
 circumstances, as established in the record, are insufficient to justify
 an inference that the Key Committee's decision was based on Canete's
 Union activity and are insufficient to justify discrediting the
 testimony of the Key Committee members that Canete's Union activity was
 not a consideration in the Committee determination.
 
    Accordingly, I conclude that Respondent did not violate Section
 7116(a)(1) and (2) of the Statute when its Key Committee did not
 recommend Canete for the ACNSE position.
 
    With respect to Brenner's statement the FLRA has held that a
 supervisor's statement violates Section 7116(a)(1) of the Statute when
 it reasonably tends to coerce or intimidate employees in the exercise of
 protected rights and that an objective test is applies.  Federal
 Mediation and Conciliation Service, 9 FLRA 199 (1982).  In the subject
 case I conclude that Brenner's statement to Canete would not have tended
 to coerce or intimidate a reasonable employee.  Thus although Brenner
 was an acting supervisor, she was also a longtime Union member and chief
 steward.  Further she was a fellow instructor who shared an office with
 Benson and had been a fellow employee with Canete for five (5) years and
 she and Canete talked together on a daily basis.  Most important
 however, was Brenner's statement was not in any way a threat and could
 not reasonably be taken as one.  Brenner stated that if Canete had been
 at St. Claire hospital, a private hospital, he could be fired for his
 union activity.  This could not be reasonably construed or interpreted
 as a threat.  It was clear to all that Canete did not work for St.
 Claire Hospital and that therefore he was safe from being fired.  I need
 not decide whether Brenner's interpretation of the law in the private
 sector, is correct, it was merely a statement by her of her opinion of
 what the situation was in the private sector.  It could not be
 interpreted as a threat, directly or indirectly, that somehow an
 employee of the VA was subject to discharge for union activity.  In fact
 the exact opposite inference, that a VA employee could not be discharged
 for union activity, might reasonably be drawn.  Federal Mediation and
 Conciliation Service, supra.
 
    The FLRA has stated, "It is well established that a proposal
 concerning the filling of supervisory positions, including temporary
 appointments, is negotiable only at the election of the agency since it
 does not concern a condition of employment of bargaining unit employees
 . . . " National Labor Realations Board and National Labor Relations
 Board Union, Local 21, 15 FLRA 798 (1984) (hereinafter called the NLRB
 case).  Therefore, I am constrained to conclude that filling of the
 ACNSE position, on a temporary basis, "does not concern a condition of
 employment of bargaining unit employees," NLRB case, supra at 798, and
 that although Respondent was not obliged to bargain concern filling the
 ACNSE position, it could voluntarily do so.  In the instant case,
 whether it breached its contractual term or not, Respondent did
 unilaterally change the method in which filled the Acting ACNSE position
 by changing from a one month rotation basis to a permanent acting basis.
  However, because the filling the ACNSE position, on acting basis, does
 not involve a condition of employment, changing such a matter does not
 involve changing a term of employment.  Accordingly, I must, conclude
 that Respondent did not unilaterally change a condition of employment,
 when it changed its method for filling the acting ACNSE position.  Thus
 although the FLRA held management can elect to negotiate about such a
 noncondition of employment, such negotiation does not and cannot convert
 a noncondition of employment to a condition of employment.  /9/
 Presumably all negotiating does is, perhaps, provide the union with some
 action to enforce the contractual obligations, e.g., through grievance
 procedures, etc.
 
    I must conclude therefore that Respondent did not violate Section
 7116(a)(1) and (5) of the Statute when it changed its method of filling
 the Acting ACNSE position.  See NLRB Case, supra;  Nuclear Regulatory
 Commission, 17 FLRA No. 132 (1985) and United States Department of
 Treasury, U.S. Customs Service, 18 FLRA No. 1(1985).
 
    General Counsel of the FLRA urges, further that Respondent violated
 Section 7116(a)(1) and (5) of the Statute because it changed the method
 of assignment of the employees into the Acting ACNSE position without
 first affording the Union an opportunity to bargain over the impact and
 implementation of the change.  Because, as discussed above, the filling
 of the Acting ACNSE position did not involve a condition of employment,
 no obligation to bargain over the impact and implementation of the
 change as created by Section 7106 of the Statute.  However, where an
 agency makes a purely managerial decision that has a reasonably direct
 adverse impact on employees and upon their conditions of employment, the
 agency is required by the Statute, to notify and bargain with the union
 concerning the adverse effects of such change upon employees.  This
 would be in keeping with the statutory scheme of granting federal
 employees meaningful collective bargaining.  It is a recognition that
 although management has the right to make purely managerial decisions
 free from any obligation to bargain with union concerning such
 decisions, where such decisions would have a direct adverse impact on
 employees, management does have an obligation to bargain with the union
 representing the employees to minimize the adverse affect of the
 decisions upon the employees.  Cf. NLRB v. Gray-Grimes Tool Co., 96 LRRM
 2212 (3rd Cir. 1977);  NLRB v. Adams Dairy, Inc., 350 F.2d 108 (8th Cir.
 1965).
 
    In the subject case the decision to change the system of rotating
 instructors into the Acting ACNSE position had a direct and substantial
 adverse effect on unit employees.  Instructors no longer had an equal
 opportunity to have the experience and to learn the skills useful for
 promotion and those instructors not given the acting supervisory
 position had to perform certain of the tasks and duties of those who
 were given the opportunity to act as a supervisor.
 
    Accordingly I conclude that Respondent's failure to bargain with the
 Union about the adverse effect upon employees of its decision to change
 the method of appointing Acting ACNSE position violated Section
 7116(a)(5) and (1) of the Statute.
 
    Having concluded that Respondent did not violate the Statute with
 respect to the Key Committee's failure to recommend Canete for the ACNSE
 position, the statement by Brenner to Canete, and the failure to bargain
 about the change in the method of appointing employees to the Acting
 ACNSE position;  but that Respondent did violate Section 7116(a)(5) and
 (1) of the Statute by failing to bargain with the Union about the
 adverse effect upon employees of its decision to change the method of
 filing the Acting ACNSE position, I recommend that the Authority issue
 the following:
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Statute, the
 Authority hereby Orders the Veterans Administration and Veterans
 Administration Medical Center, Lyons, New Jersey, shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to bargain with American Federation of Government
       Employees, AFL-CIO, concerning the adverse effect of changes in
       the method of appointing an acting Associate Chief of Nursing
       Service for Education or any other change that has a direct and
       adverse effect upon employees.
 
          (b) In any like or related manner, interfering with,
       restraining or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Upon request bargain in good faith with American Federation
       of Government Employees, AFL-CIO, concerning the adverse effect of
       the changes in the method of appointing an acting Associate Chief
       of Nursing Service for Education or any other change that has a
       direct and adverse effect upon employees.
 
          (b) Post at Veterans Administration Medical Center, Lyons, New
       Jersey, 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 a responsible official and shall be
       posted by him for 60 consecutive days in conspicuous places,
       including all bulletin boards and other places where notices to
       employees are customarily posted.  The official shall take
       reasonable steps to insure that such notices are not altered,
       defaced or covered by any other material.
 
          (c) Pursuant to 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region II, 26 Federal
       Plaza, Room 2237, New York, New York 10278, in writing within 30
       days from the date of this Order as to what steps have been taken
       to comply herewith.
 
                                       /s/ Samuel A. Chaitovitz
                                       Administrative Law Judge
 
    Dated:  August 21, 1985
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (*) In view of the above, we find it unnecessary to pass upon the
 Judge's statement pertaining to the enforcement of a contractual
 obligation.
 
    (1) De Weaver was the member of the Committee assigned to work with
 the nursing services in the mid-Atlantic area and as such she had the
 most knowledge concerning Canete's qualifications and the situation at
 VAMC Lyons.
 
    (2) It should be noted that the reference in his 1982-83 proficiency
 report to his having been involved in activities which extended beyond
 his nursing education function, is apparently a reference to a
 counseling memo concerning Canete's unexcused absences from work due to
 his activities as a union steward.  The counseling memo was not in
 Canete's personnel folder at the time he was considered by the Key
 Committee.
 
    (3) De Weaver did not testify.
 
    (4) Thus, although when appropriate, surrounding circumstances might
 be sufficient to discredit such witnesses and to infer that Canete was
 refused the recommendation because of his Union activities, I conclude
 these Key Committee members were very credible witnesses and the
 surrounding circumstances not sufficient to justify discrediting them.
 
    (5) Brenner and Benson shared an office.
 
    (6) A private hospital.
 
    (7) Paragraph 4 of the minutes provides:  "Except for Ms. Sagl and
 Mrs. Washington, Instructors will rotate through the Acting ACNSE
 position for one month."
 
    (8) Paragraph 5 of the Union version provides:  "Acting ACNSE will be
 rotated through instructors for one month each (except Ms. Sagl and Ms.
 Washington)."
 
    (9) In reaching its conclusion in the NLRB Case, supra, I note that
 the FLRA based its finding on the conclusion that the filling of a
 supervisory position is not a "condition of employment", it did not base
 its finding on Section 7106 of the Statute, which basically exempts
 certain conditions of employment from bargaining because of management
 rights considerations.  Section 7106 provides, however, an obligation to
 bargain about the impact and implementation of changes in such
 "management rights" conditions of employment.  Thus the FLRA's
 conclusion in the NLRB Case, supra, that management could voluntarily
 negotiate about the filing of supervisory positions, was not pursuant to
 Section 7106 because it did not involve one of the "management rights"
 conditions of employment.
 
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to bargain with American Federation of Government
 Employees, AFL-CIO, concerning the adverse effect of changes in the
 method of appointing an acting Associate Chief of Nursing Service for
 Education or any other change that has a direct and adverse effect upon
 employees.
 
    WE WILL NOT in any like or related manner, interfering with,
 restraining or coercing employees in the exercise of their rights
 assured by the Federal Service Labor-Management Relations Statute.
 
    WE WILL upon request bargain in good faith with American Federation
 of Government Employees, AFL-CIO, concerning the adverse effect of the
 changes in the method of appointing an acting Associate Chief of Nursing
 Service for Education or any other change that has a direct and adverse
 effect upon employees.