51:0084(10)CA - - VA Medical Center, Hampton, Virginia and AFGE Local 2328 - - 1995 FLRAdec CA - - v51 p84



[ v51 p84 ]
51:0084(10)CA
The decision of the Authority follows:


51 FLRA No. 10

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF VETERANS AFFAIRS

VETERANS AFFAIRS MEDICAL CENTER

HAMPTON, VIRGINIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2328, AFL-CIO

(Charging Party/Union)

WA-CA-21066

_____

DECISION AND ORDER

August 31, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by both the Respondent and the General Counsel. The Respondent contests only the Authority's jurisdiction over this case and filed no exceptions to the Judge's findings on the merits of the alleged violation. The General Counsel excepts only to the Judge's denial of a motion to amend the complaint. The Respondent filed an opposition to the General Counsel's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by denying a Union representative the opportunity to speak on behalf of a bargaining unit employee at an examination in connection with an investigation under section 7114(a)(2)(B) of the Statute.

For the following reasons, which differ from those of the Judge, we find that the Authority has jurisdiction over the complaint in this case. We adopt the Judge's determination, made in his decision, to deny the General Counsel's motion to amend the complaint and, in the absence of exceptions to other findings of the Judge, we find that the Respondent violated section 7116(a)(1) and (8) of the Statute.

II. Administrative Law Judge's Decision

The facts are fully set forth in the Judge's decision and are briefly summarized here. Unit employee Violet Taylor is a staff nurse and bargaining unit employee who was hired under title 38 of the U.S. Code. Taylor was required to appear before a "board of investigation" regarding an incident involving a patient. Judge's Decision at 3. The Union president who represented Taylor at the proceeding was not permitted to speak or otherwise participate in it.

The Judge rejected the Respondent's contention that the Authority lacked jurisdiction over the complaint. Citing Department of Veterans Affairs, Veterans Affairs Medical Center, Jackson, Mississippi, 48 FLRA 787 (1993) (VAMC I), in which the Authority found that a refusal to allow a union representative to speak or otherwise participate in certain proceedings violated section 7114(a)(2)(B) of the Statute, the Judge determined that the Authority had jurisdiction to address whether the Respondent failed to comply with section 7114(a)(2)(B) of the Statute.(1)

With regard to the merits of the complaint, the Judge concluded that by directing the Union president not to participate in the board proceeding, the Respondent violated section 7116(a)(1) and (8) of the Statute.

III. Positions of the Parties

A. General Counsel

At the hearing the General Counsel moved to amend the complaint to allege that the Respondent committed an additional violation of section 7116(a)(1) and (8) of the Statute by failing and refusing to honor a subpoena ad testificandum for the Union president to appear as a witness at the hearing. The Judge denied the motion on the basis that the subject matter was not related to the gravamen of the complaint. The General Counsel excepts to the denial of its motion and to the Judge's failure to find the additional violation.

B. Respondent

The Respondent excepts to the Judge's reliance on VAMC I to conclude that the Authority has jurisdiction in this case. The Respondent claims that the board proceeding was a "quality assurance investigation[]"(2) that involved professional conduct or competence under 38 U.S.C. 7422.(3) Exceptions at 4. The Respondent contends that in VAMC II the Authority recognized that the Secretary of Veterans Affairs (Secretary) has exclusive authority over section 7422 matters, including matters that concern or arise out of professional conduct and competence. The Respondent asserts that once the Secretary determined that Taylor's interview pertained to professional conduct or competence under section 7422, that determination was not subject to collective bargaining or to review by the Authority, and the complaint should be dismissed for lack of jurisdiction. The Respondent opposes the General Counsel's exceptions on the same grounds.

IV. Analysis and Conclusions

A. Motion to Amend Complaint

Under section 2423.12(d) of the Authority's Regulations, a complaint may be amended at an unfair labor practice hearing and until the case has been transmitted to the Authority, upon a party's motion, by the administrative law judge designated to conduct the hearing. 5 C.F.R. § 2423.12(d). Where a party excepts to the judge's ruling on the motion, the Authority applies an abuse of discretion standard in resolving the exception. For example, U.S. Department of Agriculture, U.S. Forest Service, Frenchburg Job Corps, Mariba, Kentucky, 46 FLRA 1375, 1376, n.1 (1993). In this case, we find that the General Counsel has not established that the Judge abused his discretion in denying the motion. For example, id.; United States Department of the Treasury, Internal Revenue Service, Austin Compliance Center, Austin, Texas, 44 FLRA 1306, 1307-08, n.2 (1992), reconsideration denied, 45 FLRA 525 (1992). Accordingly, we reject the General Counsel's exception.

B. Authority's Jurisdiction

We conclude that we are not divested of jurisdiction in this case.

Section 7421 of title 38 authorizes the Secretary to prescribe regulations governing the hours and conditions of employment of title 38 employees. Regulations issued pursuant to the Secretary's authority under section 7421 may override rights granted by the Statute, including the rights to representation under section 7114(a)(2)(B) of the Statute.(4) VAMC II, 49 FLRA at 174-75, citing U.S. Department of Veterans Affairs v. FLRA, 9 F.3d 123, 127, 129 (D.C. Cir. 1993). Under section 7422(a), the authority to prescribe regulations under section 7421 "is subject to the right of Federal employees to engage in collective bargaining" under the Statute, with certain enumerated exceptions. Section 7422(d) operates to divest the Authority of jurisdiction to review the Secretary's determination that a matter concerns one of the enumerated exceptions.

In VAMC II, the Authority found that the respondent had promulgated a regulation precluding union representation in the peer review hearings at issue in that case. The facts in this case are different. Here, there is no assertion by the Respondent that it has exercised its authority under section 7421 to prescribe a regulation overriding unit employees' rights to union representation at quality assurance investigations. Nor has the Union sought to bargain over the authority of the Secretary to prescribe regulations under section 7421. Therefore, by its terms, section 7422 does not apply and section 7422(d) does not limit the Authority's jurisdiction to review a claim that the Respondent violated the right to representation under section 7114(a)(2)(B) of the Statute.

C. Merits

In the absence of exceptions to the Judge's findings on the merits of the violation, we adopt the Judge's conclusion that the Respondent's conduct violated section 7116(a)(1) and (8) of the Statute. Therefore, we will order an appropriate remedy.(5)

VI. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, shall:

1. Cease and desist from:

(a) Refusing to allow the participation of a union representative at board of investigation hearings concerning activities of its employees where such representation has been requested by an employee, and where the employee reasonably believes that the hearing could result in disciplinary action against him or her.

(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Establish that no discipline to Violet Taylor occurred as a result of the board of investigation hearing that took place on or about August 20, 1992; that the information from that hearing was not relied on so as to adversely affect Ms. Taylor; and that nothing has been retained in Ms. Taylor's personnel records as a result of the interview that could adversely affect her. If this cannot be established, repeat the portion of the hearing during which Ms. Taylor was denied her right to union representation, if requested by the American Federation of Government Employees, Local 2328, AFL-CIO, and Ms. Taylor. In repeating the hearing, afford Ms. Taylor her statutory right to union representation. After repeating the hearing, reconsider any disciplinary action taken against Ms. Taylor and/or the retention in Ms. Taylor's personnel records of information obtained during the August 1992 hearing. As appropriate, make Ms. Taylor whole for any losses suffered to the extent consistent with the decision on reconsideration and, if relevant, afford her whatever grievance and appeal rights are due under any relevant collective bargaining agreement, law or regulation.

(b) Post at the Veterans Affairs Medical Center, Hampton, Virginia, 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 Director of the Veterans Administration Medical Center, Hampton, Virginia, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director, Washington Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to allow the union representative of a bargaining unit employee of the Veterans Affairs Medical Center, Hampton, Virginia, to participate in board of investigation hearings where such representation has been requested by an employee and the employee reasonably believes that the hearing could result in disciplinary actions against him or her.

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 establish that no discipline to Violet Taylor occurred as a result of the board of investigation hearing that took place on or about August 20, 1992; that the information from that hearing was not relied on so as to adversely affect Ms. Taylor; and that nothing has been retained in Ms. Taylor's personnel records as a result of the interview that could adversely affect her. If this cannot be established, we will, on request of the American Federation of Government Employees, Local 2328, AFL-CIO, and Ms. Taylor, repeat the portion of the hearing during which Ms. Taylor was denied her right to union representation. In repeating the hearing, we will afford Ms. Taylor her statutory right to union representation. After repeating the hearing, we will reconsider any disciplinary action taken against Ms. Taylor and/or the retention in Ms. Taylor's personnel records of information obtained during the August 1992 hearing.

WE WILL, as appropriate, make Ms. Taylor whole for any losses suffered to the extent consistent with the decision on reconsideration and we will afford her whatever grievance and appeal rights are due under any relevant collective bargaining agreement, law or regulation.

___________________________
(Activity)

Date: _________ 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 any of its provisions, they may communicate directly with the Regional Director, Washington Regional Office, whose address is: 1255 22nd Street, N.W., Suite 400, Washington, D.C. 20037, and whose telephone number is: (202) 653-8500.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

DEPARTMENT OF VETERANS AFFAIRS,

VETERANS AFFAIRS MEDICAL CENTER,

HAMPTON, VA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2328, AFL-CIO

Charging Party

Case No. WA-CA-21066

Thomas J. McKeever, Jr., Esquire
For the Respondent

Laurence M. Evans, Esquire
For the General Counsel

Ms. Deola Smith
For the Charging Party

Before: BURTON S. STERNBURG
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. and the Rules and Regulations issued thereunder.

Pursuant to a charge filed on August 27, 1992, by American Federation of Government Employees, Local 2328, AFL-CIO, (hereinafter called the Union), against the Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, (hereinafter called the Respondent), a Complaint and Notice of Hearing was issued on November 24, 1992, by the Regional Director for the Washington, D.C. Region. The Complaint alleges that Respondent violated Sections 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute, (hereinafter called the Statute), by denying the union representative of a bargaining unit employee the opportunity to speak on the employee's behalf during a proceeding where representation had been requested by the unit employee who reasonably believed that the scheduled proceeding could result in disciplinary action against her.

A hearing was held in the captioned matter on July 8, 1993, in Washington, D.C. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. Counsel for the General Counsel filed a post hearing brief on August 13, 1993, which has been fully considered.

Upon the basis of the entire record, including my observation of the sole witness and her demeanor, I make the following findings of fact, conclusions and recommendations.(1)

Findings of Fact

The American Federation of Government Employees, AFL-CIO, (AFGE) is the exclusive representative of a nationwide unit of Respondent's employees appropriate for collective bargaining. The Union is the agent of AFGE for purposes of representing those unit employees working at the Hampton, Virginia, Veterans Affairs Medical Center. Included in the unit represented by the Union are a number of employees hired by Respondent under Title 38 of the U.S. Code.

Ms. Violet Taylor, a staff nurse on the surgical unit, is one of the bargaining unit employees hired under Title 38 of the U.S. Code.

During early August 1992, Ms. Taylor approached Ms. Deola Smith, who at the time was serving as President of the Union, for purposes of discussing a situation where she, Ms. Taylor, was being required to complete a second "incident report" concerning a patient who had fallen out of a wheel chair. Ms. Taylor had completed an "incident report" concerning the patient's fall some three months earlier.

A few days later Ms. Taylor again contacted Ms. Smith and informed her that she, Ms. Taylor, was being required to appear before a "board of investigation". Ms. Taylor asked Ms. Smith to represent her during the "board of investigation" hearing.

According to Ms. Smith, Ms. Taylor was concerned about the outcome of the investigation because if she was found guilty of patient neglect, she, Ms. Taylor, could be subject to disciplinary action.

On August 20, 1992 the "board of investigation" convened in the dental conference room at the VA Hospital in Hampton, Virginia. In attendance at the hearing were Ms. Taylor, Ms. Smith, Dr. Sibley, a staff radiologist, Ms. Diane Anderson, a supervisor in Medical Administration Service, and a Ms. Rhonda Sears who was responsible for operating a tape recorder.

Dr. Sibley opened the meeting by stating that she had been appointed to conduct an investigation into a patient incident that involved the patient falling out of a wheel chair. She then handed Ms. Taylor a statement of employee rights and responsibilities. Without any further ado, Dr. Sibley began asking questions. Whereupon Ms. Smith spoke up and asked if she would please give Ms. Taylor the oppor-tunity to read the statement of rights before proceeding with the questioning. Dr. Sibley responded that Ms. Smith was only at the hearing in the capacity of an observer and she was not to interfere with the investigation. Dr. Sibley, without giving Ms. Taylor the opportunity to read her rights and responsibilities, continued to question Ms. Taylor. When Ms. Smith again objected, Dr. Sibley warned her that if she continued to interfere with the investigation she would be asked to leave the room. Dr. Sibley then proceeded to question Ms. Taylor and Ms. Smith again objected and insisted that Ms. Taylor be allowed to read her rights. Dr. Sibley then told her to shut up and again threatened that she would have to leave the room if she continued to interfere. Thereafter, Ms. Smith remained silent for the remainder of the meeting while Dr. Sibley went into the circumstances surrounding the fall of a double amputee from a wheel chair. Dr. Sibley was interested in whether the patient had been properly strapped in the wheel chair, whether he had been wearing a cervical collar and the type of medication administered to the patient.

According to Ms. Smith, she was "not aware of any disciplinary action that she (Ms. Taylor) has received".

Discussion and Conclusions

The General Counsel takes the position that Respondent violated Sections 7116(a)(1)and (8) of the Statute by virtue of its actions in refusing to permit Ms. Smith to speak on behalf of Ms. Taylor during the investigatory interview which Ms. Taylor believed could result in disciplinary action against her. Further, contrary to the contention of the Respondent, the General Counsel takes the position that the Authority does have jurisdiction "over a Title 38 employee's entitlement to the so-called Weingarten rights under Section 7ll4(a)(2)(B) of the Statute".

Respondent, as noted above, takes the position that the Authority lacks jurisdiction over Title 38 employees and therefore the complaint should be dismissed.

Subsequent to the hearing herein, the Federal Labor Relations Authority issued a decision in Department of Veterans Affairs, Veterans Affairs Medical Center, Jackson, Mississippi, and National Federation of Federal Employees, Local 589, 48 FLRA No. 83, wherein it considered a similar set of facts as involved herein, addressed all the contentions raised by the Respondent herein, and concluded that the Authority did have jurisdiction "to determine whether the Respondent failed to comply with section 7114(a)(2)(B) and thereby violated section 7116(a)(1) and (8)" of the Statute.

Accordingly, inasmuch as the aforecited case makes it clear that the Authority does have jurisdiction, the sole issue remaining to be resolved is whether Respondent's action in refusing to allow Ms. Smith to speak during the investiga-tory hearing on behalf of Ms. Taylor constituted a failure to comply with section 7114(a)(2)(B) of the Statute.(2)

Based upon Ms. Smith's uncontradicted and credited testimony I find that Ms. Taylor fearing that discipline might well result from the hearing by the "board of investigation" requested Ms. Smith to represent her. Thereafter, however, when Ms. Smith attempted to speak on Ms. Taylor's behalf at the investigatory hearing, she was informed by Respondent's representative that she was only at the hearing as an observer and that any utterances by her would result in her removal from the room.

Inasmuch as it is well settled that "an exclusive representative is entitled to take an active part in defending an employee at an examination", I find that Respondent's action in directing Ms. Smith to remain silent, under threat of being removed from the hearing room, constituted a violation of Sections 7116(a)(1) and (8) of the Statute. United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 440.

In view of the above findings and conclusions, it is recommended that the Authority issue the following Order:(3)

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, shall:

1. Cease and desist from:

(a) Refusing to allow the participation of a union representative at "board of investigation" meetings concerning activities of its employees where such representation has been requested by an employee, and where the employee reasonably believes that the proceeding or meeting could result in disciplinary action against her.

(b) 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 Federal Service Labor-Management Relations Statute:

(a) On the request of the American Federation of Government Employees, Local 2328, AFL-CIO, and Ms. Violet Taylor, repeat the proceeding that occurred on August 20, 1993. In repeating the proceeding, afford Ms. Taylor her right to union representation by allowing the union representative to actively participate in the proceeding. After repeating the proceeding, reconsider any action that may have been taken against Ms. Taylor as a result of the earlier proceeding held on August 20, 1992. On reconsideration, as appropriate, make Ms. Taylor whole for any losses suffered to the extent consistent with the decision to reconsider.

(b) Post at its facilities in Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, 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 Director, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other 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 any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Washington Region, 1255 22nd Street, NW, 4th Floor,

Washington, DC 20037-1206, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, February 18, 1994

________________________
BURTON S. STERNBURG
Administrative Law Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to allow the union representative of a bargaining unit employee of the Veterans Affairs Medical Center, Hampton, Virginia, to participate in "board of investigation" hearings where such representation has been requested by an employee and the employee reasonably believes that the examination could result in disciplinary actions against her.

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 on the request of the American Federation of Government Employees, Local 2328, AFL-CIO, and Ms. Violet Taylor, repeat the proceeding that occurred on August 20, 1992. In repeating the proceeding we will afford Ms. Taylor her statutory right to union representation. After repeating the proceeding, we will reconsider any action that might have been taken against Ms. Taylor as a result of the earlier proceeding held on August 20, 1992.

WE WILL, as appropriate, make Ms. Taylor whole for any losses suffered to the extent consistent with our decision on reconsideration.

_____________________________
Veterans Affairs Medical Center
Hampton, Virginia

Date:___________ By:_________________________

(Signature) Director

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 of the Federal Labor Relations Authority, Washington Region, 1255 22nd Street, NW, 4th Floor, Washington, DC 20037-1206, and whose telephone number is: (202) 653-8500.




FOOTNOTES:
(If blank, the decision does not have footnotes.)


Authority's Footnotes Follow:

1. The Judge's decision was issued prior to the Authority's reconsideration of VAMC I in Department of Veterans Affairs, Veterans Affairs Medical Center, Jackson, Mississippi, 49 FLRA 171 (1994) (VAMC II), reconsideration denied, 49 FLRA 701 (1994), petition for review filed, No. 94-1582 (D.C. Cir. Aug. 22, 1994).

2. According to the Respondent, quality assurance investigations are conducted to improve the quality of medical care and the utilization of Veterans Administration health care facilities.

3. 38 U.S.C. § 7422 provides, in relevant part:

(a) Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment . . . .

(b) Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) . . . may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title.

. . . .

(d) An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation . . . shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency.

38 U.S.C. § 7421, referenced in 38 U.S.C. § 7422, provides, in relevant part:

(a) Notwithstanding any law, Executive order, or regulation, the Secretary shall prescribe by regulation the hours and conditions of employment and leaves of absence of employees appointed under any provision of this chapter in positions in the Veterans Health Administration . . . .

4. It is not disputed that, in general, title 38 employees may exercise rights under the Statute, including rights to representation under section 7114(a)(2)(B). VAMC I, 48 FLRA at 793-94. Cf. U.S. Department of Veterans Affairs v. FLRA, 1 F.3d 19, 21 (D.C. Cir. 1993) (prior to the grant of collective bargaining rights to title 38 employees in 1991, the court recognized that title 38 employees "had and retain other rights protected by the [Statute]").

5. For the reasons discussed in United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 444-49 (1990), we modify the Judge's recommended remedy. See U.S. Department of Justice, Office of the Inspector General, Washington, D.C., 47 FLRA 1254, 1266 (1993).


ALJ's Footnotes Follow:

1. The sole witness was Ms. Deola Smith, President of AFGE Local 2328.

Respondent's Counsel made a "special appearance . . . solely for the purpose of contesting the jurisdiction of the Federal Labor Relations Authority". He did not otherwise participate in the hearing.

At the beginning of the hearing Counsel for the General Counsel moved to amend the Complaint to include a new allegation, i.e. that Respondent committed an additional violation of Sections 7116(a)(1) and (8) by failing and refusing to honor a Subpoena Ad Testificandum for employee Deola Smith, thereby forcing her to take sixteen hours of annual leave in order to testify on behalf of the General Counsel. Although ruling on the motion was taken under advisement, I allowed General Counsel the opportunity to elicit evidence on the matter. Having subsequently considered the matter, I am of the opinion that the Motion to Amend should be, and hereby is, denied since it's subject matter is not in any way related to the gravamen of the existing complaint. Accordingly, the General Counsel's Motion to Amend the Complaint, should be, and hereby is, denied.

2. Section 7114(a)(2)(B) provides that an exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at:

(A) any examination of an employee in the unit by a representative of the agency in connection with an investigation if --

(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and

(ii) the employee requests representation.

3.