31:1161(98)CA - VA Medical Center, Leavenworth, KS and AFGE Local 85 -- 1988 FLRAdec CA



[ v31 p1161 ]
31:1161(98)CA
The decision of the Authority follows:


31 FLRA No. 98

VETERANS ADMINISTRATION MEDICAL
CENTER, LEAVENWORTH, KANSAS

                   Respondent

         and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 85, AFL-CIO

                   Union

Case No. 57-CA-70016

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint. The complaint alleged two violations. First, the complaint alleged that the Respondent, acting through its supervisory Fire Chief, violated section 7116(a)(1) and (2) of the Federal Service Labor - Management Relations Statute (the Statute) by issuing an employee a Mid - Year Performance Appraisal Conference document in which he was rated low in fire inspections, alarm tests, and sprinkler systems because he had engaged in Union activities on official time. Second, the complaint alleged that the Respondent, through its Fire Chief, violated section 7116(a)(1) by telling the employee, at his mid-year appraisal conference, that he was rated low in fire inspections, alarm tests, and sprinkler systems because of his use of official time to engage in Union activities. The General Counsel filed exceptions, and the Respondent filed an opposition to the General Counsel's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings [PAGE] are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order dismissing the complaint.

Issued, Washington, D.C., April 19, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

VETERANS ADMINISTRATION
MEDICAL CENTER,
LEAVENWORTH, KANSAS

              Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 85, AFL-CIO

              Charging Party

Case No. 57-CA-70016

John F. Gallagher, Esq.
         For the General Counsel

Maurice D. Copp, Esq.
         For the Respondent

Helen Wilber, Esq.
         For the Charging Party

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.

Pursuant to a charge filed on October 10, 1986 by American Federation of Government Employees, Local 85, AFL - CIO, hereinafter called the Union and AFGE Local 85, against Veterans Administration Medical Center, Leavenworth, Kansas, hereinafter called Respondent and VA Medical Center, [PAGE] the General Counsel of the FLRA, by the Regional Director of Region V, issued a Complaint and Notice of Hearing on December 19, 1986 alleging that Respondent violated Section 7116(a)(1) and (2) of the Statute by issuing employee Ron Combs a mid-year performance appraisal in which he was rated low in certain aspects because he had engaged in activities on behalf of the Union on official time and Combs was so advised by an agent of Respondent. VA Medical Center filed an Answer denying it had violated the Statute.

A hearing was conducted before the undersigned in Leavenworth, Kansas. VA Medical Center, AFGE Local 85, 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. Briefs have been filed and have been fully considered.

Based upon the record in this matter and my observation of the witnesses and their demeanor, I make the following:

Findings of Fact

The American Federation of Government Employees, hereinafter called AFGE, represents a consolidated unit of employees of the Veterans Administration, herein called the VA, including those at the VA Medical Center. AFGE Local 85, as agent of AFGE, represents the employees at the VA Medical Center.

At all times material herein a Master Labor Agreement was in effect between VA and AFGE and a Local Agreement was in effect pursuant to Article 5 of the Master Labor Agreement.

Article 32, Section 7A of the Master Labor Agreement states:

At least one appraisal conference will take place during the appraisal period, separate and distinct from the annual rating process, normally about midway through the appraisal period. Where necessary, supervisors will make suggestions on how an employee's performance can be improved. The supervisor who conducted the conference will prepare a written summary of the conference which will include a summarization of any suggestions or plans that were discussed with the employee for the purpose of improving [ v31 p2 ] deficiencies in his/her performance. The employee will be furnished a copy of the summary. Employees will be provided training and/or counseling designed to correct performance deficiencies.

The summary of the conference is kept by the VA Medical Center at the VA Medical Center. During the mid-term appraisal conference, the supervisor counsels an employee on how to improve his performance, the supervisor may warn the employee that if his performance does not improve he may be recommended for a demotion or termination. The supervisor may implement a performance improvement plan.

The annual performance appraisal rating has an impact on employees if a reduction-in-force should take place because employees receive service credit based upon their ratings. It is also used as a basis for other personnel management actions including training, promotion, rewards, reassignments, reductions-in-grade, retaining and removing employees.

Since 1982, Ron Combs has been a firefighter at the VA Medical Center. Combs works a 24-hour shift, followed by 48 hours off, thereby averaging approximately 11 work-days per month. Combs' yearly appraisal period is from April 1 through March 31. In his last three annual performance appraisals, Combs was not criticized for failing to perform any firefighter duties.

Combs' immediate supervisor at all times after April 1, 1986, has been Chief Robert Culbert. Culbert was the approving official on Combs' most recent annual appraisal but was not the rating or approving official on the other two.

Combs has never received any form of discipline. He has never been denied a within grade increase in pay. On April 29, 1984, Assistant Fire Chief Peter Howe nominated Combs for a quality pay increase based upon his performance as a firefighter. No action was taken on this recommendation. On his 1985-86 mid-year performance appraisal record, Ball, Combs' immediate supervisor at the time, stated that "(i)f Mr. Combs continues to perform in this manner their is no reason why he cannot receive a(n) outstanding rating as outlined by his current standard." Ball had supervised Combs for only about one month and had been equally complimentary to all the other firefighters. Between April 1 and October 7, 1986, no management or supervisory official had [ v31 p3 ] indicated to Combs that his performance as a firefighter during that period was deficient in any way.

Combs has been a steward of AFGE Local 85 since October 1982 and has been Local 85's Vice President since early 1983. Between November 1, 1984 and October 7, 1986, Combs' official time records, which are maintained by the VA Medical Center, reveal that he was engaged in approximately 550 hours of protected activity on approved official time. Such activity included grievance processing, on-going labor-management relations, negotiations and FLRA-related activities. Some grievances (including his current grievance over his 1985-86 performance appraisal) and unfair labor practice charges concerned VA Medical Center's fire station and specifically Culbert. Culbert is aware that Combs is a Union official and that Combs uses official time in that capacity.

Mr. Combs works approximately 11 days per month. Fire inspection, alarm tests and sprinkler system duties are performed by firefighters on weekdays, not including holidays. Alarm tests begin every weekday at approximately 12:30 p.m., fire inspections at approximately 1:00 p.m., and sprinkler systems every Tuesday morning. Combs did fail to perform those duties between April 1 and October 7, 1986 relatively often because he was on official time.

A review of the official time records establishes the following:

1. During April 1986, official time was approved for Combs on 8 days for a total of 26 hours and 51 minutes. The official time on April 4 and 17 indicates that Combs did not perform his fire inspections and/or alarm test duties on those dates. The official time on April 9, 14, 21 and 22 indicates that Combs may not have performed those duties on those days. The official times on Tuesdays, April 15 and 22, indicate that Combs did not perform his sprinkler duties on those dates.

2. During May 1986, official time was approved for Combs on 10 days for a total of 29 hours and 20 minutes. The official time on May 5, 15, 19 and 27 indicates that Combs did not perform fire inspection and/or alarm test duties on those dates. The official time on May 9 and 23 indicate that Combs may not have [ v31 p4 ] performed those duties on those dates. The official times on Tuesdays, May 6 and 20, indicate that Combs did not perform his sprinkler system duties on those dates.

3. During June 1986, official time was approved for Combs on 9 days for a total of 29 hours and 45 minutes. The official time taken on June 12, 20 and 26, indicates that Combs did not perform his fire inspection and/or alarm test duties on those dates. The official time on June 4 and 16 indicates that Combs may not have performed those duties on those dates.

4. During July 1986, official time for Combs was approved on 8 days for a total of 38 hours and 5 minutes. July 4, a holiday, and July 12, a Saturday, were days on which Combs worked but because they were a holiday or Saturday, the duties in question would not be performed on those dates. The official time taken on July 18, 21 and 30 indicates that Combs did not perform his fire inspection and/or alarm test duties on those dates. The official time for July 15 indicates that Combs may not have performed those duties on that date.

5. During August 1986, official time was approved on 8 days for a total of 35 hours and 10 minutes. Three of those days were Saturday or Sunday. Of the five remaining days, the official time taken on August 5, 11, 14 and 27 indicates that Combs did not perform his fire inspection and/or alarm test duties on those dates. The official time on August 20, indicates that Combs may not have performed the fire inspection and/or alarm test duties on that date.

6. During September 1986, official time was approved for Combs on 6 days for a total of 34 hours and 38 minutes. One of those days was a holiday. Of the remaining 5 days the official time taken on September 4, 10, 16 and 22, indicates that Combs did not perform the fire inspection and/or alarm test duties on those dates. The official time taken on September 25 indicates that Combs may not have performed the fire inspection or alarm test duties on that date. [ v31 p5 ]

7. The official time for October 1 indicates that Combs did not perform the fire inspection and/or alarm test duties on that date.

During his mid-year appraisal conference on October 7, 1986, Culbert, Combs' immediate supervisor, gave him his mid-year performance summary on which his overall performance was rated fully satisfactory. Only Combs and Culbert were present. On that document, three duties of firefighters were checked by Culbert as being deficient (fire inspection, alarm test and sprinkler systems). Culbert explained to Combs that he was deficient in those duties because he took too much official time at times when these duties were performed. Culbert's criticism of Combs' performance was that Combs was not performing a sufficient number of fire inspections, alarm tests and sprinkler system tests. 1 Chief Culbert had reviewed the official time records of Combs prior to October 7.

On October 16, 1986, Combs was not allowed to go on official time at the time he requested. A meeting was held over this dispute on that date in Culbert's office. Culbert, Crew Chief Louis Parr, Union Representative Pamela Kane and Combs were in attendance. During the meeting, Culbert explained that Combs could not go on official time until building inspections were completed at approximately 2:30 p.m. Kane asked why Combs would not be allowed to go on official time at the time Combs requested. Culbert responded that he had to mark Combs down on his evaluation because he wasn't inspecting the buildings enough, that he was taking too much official time. Culbert asked Combs if it was important that Combs go at 1:00 p.m. Combs did not respond and Culbert said that Combs would just have to wait till 2:30 p.m. and then Combs could spend the rest of the day on Union business. 2 [ v31 p6 ]

Discussion and Conclusions of Law

Section 7116(a) of the Statute provides, in part:

         ". . . it shall be an unfair labor practice for an
         agency -

         "(1) to interfere with, restrain, or coerce any
         employee in the exercise by the employee of any right
         under this chapter;

         "(2) to encourage or discourage membership in any
         labor organization by discrimination in connection
         with hiring, tenure, promotion, or other conditions of
         employment; . . ."

Employees are entitled to some amount of official time to perform representational functions under Section 7131 of the Statute.

The FLRA has held that statements made by supervisors which would reasonably be foreseen to interfere with, restrain or coerce employees into refraining from or limiting the time spent on activity on behalf of a labor organization protected by Section 7131 of the Statute violate Section 7116(a)(1) of the Statute. See Department of Health and Human Services, Social Security Administration, 22 FLRA 91 (1986) 3 ; United States Treasury Department, Bureau of Engraving and Printing, 19 FLRA 366 (1985); and United States Air Force, Lowry Air Force Base, Denver, Colorado, 16 FLRA 952 (1984). Further, an employee cannot be discriminated against because he engaged in activity protected by Section 7131 of the Statute, and any such discrimination would constitute a violation of Section 7116(a)(2) and (1) of the Statute. See SSA Case, supra.

Every conversation that deals with an employee's protected activity does not violate the Statute. Rather the FLRA recognized that an employer has a valid interest, protected by Section 7106 of the Statute, to manage its operation efficiently and that this must be balanced with employees' rights to utilize official time for activities protected by Section 7131 of the Statute. Department of the [ v31 p7 ] Air Force, Scott Air Force Base, Illinois, 20 FLRA 761 (1985), (herein called the Scott Air Force Base case) review denied, 806 F.2d 283 (D.C. Cir., December 10, 1986). In referring to its holding in the Scott Air Force Base case, the FLRA stated, "that case involved a specific ongoing conflict between an employee's right to use official time and the agency's right to manage effectively and efficiently. The Authority held that when such conflicts arise, the parties must recognize the need for and seek accommodation. The Authority viewed the statements made by the agency representative to the employee as an attempt to seek accommodation and, in the circumstances should have been understood to have been made in that context by a reasonable employee . . ." Veterans Administration, Washington, D.C. and Veterans Administration Medical Center and Regional Office, Sioux Falls, South Dakota, 23 FLRA 122 (1986) at 124.

In order to determine whether an employer's statement violates Section 7116(a)(1), the standard is not a subjective one nor is it the intent of the speaker, rather the standard is whether, under the circumstances, the employee would reasonably have been coerced by the statement. The effect of the statement must be judged in the light of all the surrounding circumstances. See Federal Mediation and Conciliation Service, 9 FLRA 199 (1982).

I find, in all the circumstances, that Culbert's statements to Combs at the October 7, 1986 meeting, especially when viewed in light of the October 16 conversation, indicated that Culbert was concerned that Combs was deficient in performing certain checks and by way of explanation Culbert pointed out that Combs often took official time to perform Union functions when the checks were being performed. Culbert's statements were not a criticism of Combs for performing Union functions on official time, but rather was concern that Combs' work was deficient because Combs had not performed sufficient checks. Thus Culbert was advising Combs to try, for the remainder of the appraisal period, to be more diligent in performing the checks. 4 In fact, apparently Combs did, during the remainder of the appraisal year, perform more checks. [ v31 p8 ]

This interpretation is especially clear when viewed in light of the October 16, 1986 conversation wherein Culbert asked Combs if he could perform his Union duties after the checks had been completed, and when he received no response, Culbert told Combs to perform the checks and then perform the Union duties for as long as needed. Thus it is clear that Culbert's concern was not that Combs was performing Union duties on official time, but rather that Combs was not performing the required checks. Further he asked Combs if the Union activities had to be performed when the checks were scheduled and Combs did not reply. In fact there was no showing that any of the Union duties performed prior to the mid-term appraisal, had to be performed during the limited times the checks were scheduled.

A reasonable employee would have understood that all Culbert was trying to do was to reach an accommodation between Combs' right to perform Union activities on official time and Culbert's interest in having all his firefighters share in performing the routine checks. Culbert was trying to encourage Combs to schedule his Union activities so that he could also perform the checks.

In these circumstances Culbert's statement did not violate Section 7116(a)(1) of the Statute because it did not interfere with Combs' protected rights and the mid-term appraisal did not violate Section 7116(a)(2) and (1) of the Statute because it did not constitute discrimination against Combs because Combs had engaged in protected activity.

In light of the foregoing, having concluded that Respondent had not violated Section 7116(a)(1) and (2) of the Statute, I recommend the Authority issue the following Order:

ORDER

The Complaint in Case No. 57-CA-70016 be, and hereby is, dismissed in its entirety.