53:0298(40)CA - - VA Medical Center, Hampton, Virginia and AFGE Local 2328 - - 1997 FLRAdec CA - - v53 p298



[ v53 p298 ]
53:0298(40)CA
The decision of the Authority follows:


53 FLRA No. 40

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-30881

_____

DECISION AND ORDER

August 27, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, 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 the Respondent. The General Counsel filed an opposition to the exceptions and cross-exceptions to the Judge's decision. The Judge found that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to grant official time, under section 7131(c) of the Statute, to a Union representative to appear at an unfair labor practice hearing pursuant to a subpoena ad testificandum. An Authority Regional Director had issued the subpoena to the representative in connection with her attendance at the hearing in Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, 51 FLRA 84 (1995) (VAMC I).

The Respondent excepts only to the Judge's determination that the Authority had jurisdiction in VAMC I and, therefore, that it had jurisdiction to issue and enforce the subpoena. The General Counsel excepts to that portion of the Judge's recommended remedy that fails to direct the Respondent to restore to the Union representative the annual leave that she used as a result of having been denied the use of official time.

Upon consideration of the Judge's decision, the Respondent's exceptions, the General Counsel's cross-exception, and the entire record, we adopt the Judge's findings and conclusion that the Respondent's refusal to grant official time violated the Statute.(*) We also adopt the Judge's recommended notice and order, modified slightly to conform to the Authority's standard wording. Also, as requested by the General Counsel, and consistent with Authority precedent, we clarify the Judge's recommended remedy to include an express order directing the Respondent to restore annual leave to the Union representative. E.g., U.S. Patent and Trademark Office, 39 FLRA 1477, 1483-84 (1991); Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 13 FLRA 558, 559 (1983).

II. Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Statute, the Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, shall:

1. Cease and desist from:

(a) Denying official time to its employees who are participating for, or on behalf of, the American Federation of Government Employees, Local 2328, AFL-CIO, for their attendance in unfair labor practice proceedings before the Federal Labor Relations Authority when such attendance is deemed necessary by a designated agent of the Authority.

(b) In any like or related manner, interfering with, restraining, or coercing unit 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) Grant Deola Smith official time for the hours for which she used annual leave in order to attend the unfair labor practice hearing in Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, 51 FLRA 84 (1995), as directed in a subpoena ad testificandum issued by a Regional Director of the Authority.

(b) Restore 16 hours of annual leave to Deola Smith that she used in lieu of official time.

(c) Post at its facilities in 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 Deputy Assistant Secretary for Human Resources Management, 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.

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

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT deny official time to employees who are participating for, or on behalf of, the American Federation of Government Employees, Local 2328, AFL-CIO, for their attendance in unfair labor practice proceedings before the Federal Labor Relations Authority when such attendance is deemed necessary by a designated agent of the Authority.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL grant Deola Smith official time for the hours for which she used annual leave in order to attend the unfair labor practice hearing in Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, 51 FLRA 84 (1995), as directed in a subpoena ad testificandum issued by a Regional Director of the Authority.

WE WILL restore 16 hours of annual leave to Deola Smith that she used in lieu of official time.

_______________________________

(Activity)

Dated:_______________ By:________________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Washington Regional Office, whose address is: 1255 22nd Street, NW., Suite 400, Washington, D.C., 20037-1206, 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, VIRGINIA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2328, AFL-CIO

Charging Party

Case No. WA-CA-30881

Thomas J. McKeever, Esquire
Barry Tapp, Esquire
For the Respondent

Susan L. Kane, Esquire
For the General Counsel

Before: JESSE ETELSON
Administrative Law Judge

DECISION

The Regional Director of the Federal Labor Relations Authority (the Authority) for the Washington Regional Office issued a complaint alleging that the Respondent (VAMC) violated sections 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute). More specifically, the complaint alleges that VAMC refused to comply with section 7131(c) of the Statute when it "required" employee Deola Smith, who had received a subpoena ad testificandum issued by the Regional Director, to use annual leave,"rather than granting her official time under [section] 7131(c)" so that she could attend an unfair labor practice hearing as directed by the subpoena.(1) The answer to the complaint admits all of the factual allegations except that it denies that VAMC "required" Smith to use annual leave. The answer denies that the Authority has jurisdiction over this matter, or jurisdiction to have issued the subpoena, and asserts that the Statute does not apply because the "matter" involved is one of "professional conduct or competence."

Counsel for the General Counsel filed a motion for summary judgment with an accompanying supporting memorandum. The Regional Director referred the motion to the Chief Administrative Law Judge, who assigned the case to me and issued an order providing that any pleadings or briefs filed by the parties with regard to this matter must be filed in this office by December 23, 1995. In response to that order, VAMC filed a "Special Appearance to File Motion to Dismiss and to Oppose FLRA's Motion for Summary Judgment." Counsel for the General Counsel filed copies of the "General Counsel's Response to Respondent's Request for Reconsideration" of the Authority's decision in Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, 51 FLRA 84 (1995), the unfair labor practice case in which the subpoena was issued to Deola Smith.

Jurisdiction

VAMC contends that the Authority lacks jurisdiction in the "matter" that the instant case involves because it lacked jurisdiction over the subject matter of the case in which the subpoena was issued to employee Smith, and was thus without jurisdiction to issue the subpoena.

The Authority has decided that it had jurisdiction in the earlier case. That decision is controlling for me, pending the Authority's decision on VAMC's request for reconsidera-tion. The Authority's jurisdiction in the instant case, however, does not depend on the ultimate determination as to its jurisdiction in the earlier case.

The jurisdictional dispute in the earlier case has to do with the fact that 38 U.S.C. § 7422 insulates certain actions of the Secretary of Veterans Affairs from "[review] by any other agency." See 51 FLRA at 88. VAMC argues that the Authority lacked "subject matter jurisdiction" in the earlier case. Assuming that there is merit to that argument, however, it does not follow that the Authority had no jurisdiction "to conduct proceedings" in that case. The complaint in that case alleged that VAMC violated sections 7116(a)(1) and (8) of the Statute. In section 7118, Congress charged the General Counsel of the Authority with the obligation to investigate charges of unfair labor practices and charged the Authority with the obligation to hear and decide cases in which the General Counsel has determined that issuance of a complaint is warranted. See also U.S. Department of Veterans Affairs, Veterans Administration Medical Center, San Francisco, California, 40 FLRA 290, 297 (1991) (charging party's status as a professional medical employee subject to title 38 of the United States Code does not deprive the Authority of jurisdiction to resolve complaints alleging violations of section 7116(a) of the Statute).

The Authority's General Counsel, as required by section 7118, proceeded to investigate the charge in the earlier case and, finding issuance of a complaint warranted so as to bring the issues presented by the case before the Authority, did so. VAMC obviously disagrees with the General Counsel's decision to have proceeded that far, but the arguments that might support such disagreement do not affect the General Counsel's, or the Authority's, jurisdiction to proceed.

VAMC apparently did not move in advance of the hearing in the earlier case to dismiss the complaint for lack of subject matter jurisdiction. Such a motion, if successful at the outset, would have precluded a hearing. Even if not initially successful, it might have delayed a hearing at least until the jurisdictional issue was resolved at the highest available appellate level. Instead (and this is not intended as a criticism) VAMC appeared specially at the scheduled hearing solely for the purpose of contesting jurisdiction. 51 FLRA at 94 n.1. By this time, however, the Regional Director (acting for the General Counsel) had issued the subpoena to Smith, and VAMC had denied Smith's request for official time. The ultimate disposition of the question of the Authority's jurisdiction over the subject matter of the earlier complaint does not affect the jurisdiction of the General Counsel to prepare for hearing, including his issuing the subpoena. I conclude, therefore, that there is no basis for the contention that the Authority lacks jurisdiction over the instant case.

Assuming, however, that the General Counsel was without jurisdiction to issue the subpoena, that would still not affect the Authority's jurisdiction in the instant case, in the relevant sense of the term -- that is -- the authority to hear and decide this case. The earlier lack of jurisdiction would, rather, go to the merits of the instant complaint.

Existence of Genuine Issues of Material Fact

As stated above, the only allegation of fact that VAMC disputes is that it "required" Smith to use annual leave. VAMC does not dispute, however, that it refused to allow her official time, but instead permitted her to use annual leave for the 16 hours requested to attend the hearing. Smith also testified at that hearing, without contradiction or other basis for dispute, that she actually used annual leave for her attendance.(2) I find that she did so. As it is the refusal of official time that is the gist of the alleged violation, I conclude that the denial that Smith was "required" to use annual leave does not raise a genuine issue of material fact. Therefore, the case is appropriate for summary judgment, and I make the following findings of fact, conclusion of law, and recommendation.

Findings of Fact

The Charging Party (the Union) is a labor organization and the agent of the exclusive representative of a nationwide unit of employees appropriate for collective bargaining at the Department of Veterans Affairs. VAMC is a statutory agency whose employees are represented by the Union.

On July 6, 1993, the Regional Director of the Authority's Washington Regional Office issued a subpoena ad testificandum to the Union's designated representative, Deola Smith, to testify in an unfair labor practice hearing in Veterans Affairs Medical Center, Case No. WA-CA-21066 (the decision in which case was later reported at 51 FLRA 84). Deola Smith is a statutory employee. On or about July 6, 1993, after receiving the subpoena, employee Smith requested from VAMC 16 hours of authorized absence to testify at the hearing. Smith attached to her request a copy of the subpoena.(3)

On or about July 6, 1993, Acting Chief Nurse Janice Webb, a supervisor or management official acting on behalf of VAMC, informed Smith that she would not be granted official time to attend the hearing but could use annual leave instead.(4)

Discussion and Conclusion

An agency violates section 7131(c) of the Statute and section 2429.13 of the Authority's Rules and Regulations by refusing to grant an employee official time for her appearance at an unfair labor practice hearing pursuant to a subpoena issued by a designated agent of the Authority. Such refusal further violates section 7116(a)(1) and (8) of the Statute. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 26 FLRA 674, 677 (1987), enforcement denied as to other matters 877 F.2d 1036 (D.C. Cir. 1989).(5) As VAMC has done precisely that, I conclude that it has, as alleged in the complaint, refused to comply with section 7131(c) and committed an unfair labor practice in violation of section 7116(a)(1) and (8) of the Statute. Accordingly, I recommend that the Authority issue the following order.(6)

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia, shall:

1. Cease and desist from:

(a) Denying official time to its employees for attendance and participation in unfair labor practice proceedings before the Federal Labor Relations Authority when and to the extent that such attendance and participation has been deemed necessary by a designated agent of the Authority.

(b) In any like or related manner interfere with, restrain, or coerce its employees in the exercise of their rights assured them 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) Grant Deola Smith official time for the hours for which she used annual leave in order to attend the unfair labor practice hearing in Case No. WA-CA-21066.

(b) Post at all locations at its Hampton, Virginia, facility, where bargaining unit employees represented by the American Federation of Government Employees, Local 2328, AFL-CIO, are located, 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 Deputy Assistant Secretary for Human Resources Management, 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 Rules and Regulations, notify the Regional Director, Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, DC, February 15, 1996

__________________________
JESSE ETELSON
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 deny official time to our employees for participation in unfair labor practice proceedings before the Federal Labor Relations Authority when and to the ext