File 2: ALJ's Decision
[ v56 p701 ]
Office of Administrative Law Judges
U.S. DEPARTMENT OF VETERANS AFFAIRS
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1687, AFL-CIO
Case No. CH-CA-80325
Roger T. Gray, Esquire
For the Respondent
Philip T. Roberts, Esquire
Susan L. Kane, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
Statement of the Case
This proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71, Title 5 of the United States Code, 5 U.S.C. § 7101, et seq. [n1] , and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., grew out of a written response filed by the Chief Steward in a disciplinary grievance. The Chief Steward first addressed the reasons for the proposed discipline and asserted reasons why it was believed the alleged violations were baseless and the proposed discipline unwarranted. The Chief Steward also asserted, inter alia, that the supervisor a male, had, "a discriminatory bias" against the nursing assistant, a black female; that the nursing assistant, "is currently working in a hostile environment due to her race . . . ." The supervisor filed an EEO Complaint against the Chief Steward. General Counsel does not question the filing of the EEO complaint, indeed, at the hearing, stated, ". . . [w]e agree. . . that Mr. Showman [the supervisor] had every right to file this EEO Complaint." (Tr. 18) [n2] And, again, in their brief, state, ". . . [t]he instant complaint does not allege that . . . filing of an EEO complaint in any way violated the Statute nor does it attempt to infringe on [the supervisor's] legal right to file an EEO complaint." (General Counsel's Brief, p. 16, n.7). Rather, as General Counsel stated at the hearing, "The focus of this case is investigation. Whether or not the investigation was done properly . . . it was an investigation by an Agent of Management asking questions of a Union Officer required of that mandatory investigation, mandatory cooperation and they were asking questions of that Union Officer about confidential communications that took place during the course of representing the employee. . . ." (Tr. 18-19).
This case was initiated by a charge filed on February 19, 1998 (G.C. Exh. 1(a)) and by an amended charged filed on May 21, 1998 (G.C. Exh. 1(b)). The [ v56 p702 ] Complaint and Notice of Hearing (G.C. Exh. 1(c)), issued April 30, 1999, and set the hearing for June 24, 1999, in Knoxville, Tennessee, at a place to be determined and, by Notice dated June 9, 1999 (G.C. Exh. 1(k)), the place of hearing was fixed, pursuant to which a hearing was duly held on June 24, 1999, in Knoxville, Tennessee, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which each party waived. At the close of the hearing, July 26, 1999, was fixed as the date for mailing post-hearing briefs which time subsequently was extended, on joint request of Respondent and General Counsel, for good cause shown, to August 16, 1999. Respondent and General Counsel each timely mailed a brief, received on August 18, 1999, which have been carefully considered. Upon the basis of the entire record, I make the following findings and conclusions:
1. American Federation of Government Employees, AFL-CIO (hereinafter "AFGE") is the exclusive representative of nationwide consolidated units of employees for collective bargaining at the Department of Veterans Affairs (Respondent) and American Federation of Government Employees, Local 1687, AFL-CIO (hereinafter "Union") is the agent of AFGE for the purposes of representing bargaining unit employees at Respondent's Medical Center in Mountain Home, Tennessee (hereinafter "Mountain Home").
2. On August 13, 1997, Mr. Charles Showman, R.N., Nurse Manager, issued a Proposed Admonishment to Ms. Rosetta M. Blanton, a Nursing Assistant under his supervision, for two alleged improprieties: a) copying a portion of a patient's record; and b) leaving oxygen unattached for a patient (G.C. Exh. 3) [n3] .
3. Ms. Blanton was represented by Dr. William Barry, a staff psychologist (Tr. 22), who is Chief Steward of the Union. On August 25, 1997, Dr. Barry submitted a written Response to the Proposed Admonishment (G.C. Exh. 4).
4. In the response, it was conceded that Ms. Blanton had photo-copied a portion of a patient's chart but it was asserted that she copied only her own progress notes, which she asserted that she needed because progress notes were missing, and pleaded ignorance that copying her own progress notes could constitute a violation of patient confidentiality. As to the disconnection of the patient's wall oxygen supply, the response apparently concedes that Ms. Blanton did disconnect the wall oxygen but asserts that, ". . . As part of the every day routine Ms. Blanton often would disconnect the patient from his wall oxygen and immediately hook him up to his canister of chair oxygen. . . This alternative supply of available oxygen . . . was . . . never mentioned . . . ." (G.C. Exh. 4, second page). Without specifically stating that on this particular occasion Ms. Blanton had connected the patient's chair canister and without meeting the assertion that the patient remained at his bed and that Ms. Blanton had left his room without reattaching the wall oxygen, the response attacked the patient as troublesome and extolled Ms. Blanton as a "care giver" (id.) Then the response asserted that, ". . . in the reports of contact [the patient] was alleged to have alluded to her as `that colored woman' since neither she nor any of her co-workers have ever heard him use that phase. . . ." (id); that ". . . as the only black female on her unit . . . ." (id); that, ". . . Ms. Blanton is currently working in a hostile environment due to her race . . . ." (id); and". . . acknowledgment of a discriminatory bias on his [Showman's] part towards Ms. Blanton." (G.C. Exh. 4, third page).
The response is, "From: AFGE, Local 1687" and is signed "Bill Barry, Chief Stewart (sic)." Although it also was signed by "Rose Blanton", Dr. Barry admitted that he had, "Pretty much . . ." written the response; that, ". . . I [Barry] did most of the composition on it and she provided the ingredients." (Tr. 26).
5. On September 2, 1997, Ms. Sara Stone, R.N., Extended Care, sustained the proposed admonishment (G.C. Exh. 6).
6. On September 8, 1997, having seen an EEO Counselor, Mr. Paul C. Mashburn, on August 29, 1997, which failed to resolve the matter (G.C. Exh. 16), Mr. Showman filed a Complaint of Employment Discrimination (G.C. Exh. 7, attachment). By letter dated September 9, 1997, Mr. Showman was advised of the acceptance of his complaint (G.C. Exh. 8) and by memorandum dated October 17, 1997, Dr. Barry was notified that Mr. Showman had filed a formal EEO Complaint and that an EEO Investigator had been assigned (G.C. Exh. 7).
7. By letter dated October 20, 1997, Ms. Ingrid Jones advised Dr. Barry that she had been assigned as the EEO Investigator; that she would be at Mountain Home to conduct the investigation October 27 through [ v56 p703 ] October 31, 1997; that she would like to met with him during that period; and attached a preliminary affidavit for Dr. Barry to answer and return (G.C. Exh. 9).
8. Dr. Barry responded to the preliminary affidavit on October 27, 1997 (G.C. Exh. 10) and on October 29, 1997, gave his sworn response to the examination by Ms. Jones (G.C. Exh. 11).
9. On November 30, 1997, the EEO Investigator, Ms. Jones, concluded that,
"The preponderance of the evidence . . . supports a finding of illegal discriminatory harassment based upon letter dated October 25, 1997; as well as a hostile working environment." [Res Exh. 1, p. 10). [n4]
10. On, or about February 2, 1998 (Tr. 47), a proposed Settlement Agreement was submitted to Dr. Barry (G.C. Exh. 12) which Dr. Barry rejected (Tr. 49).
11. On July 30, 1998, Mr. Charles R. Delobe, Director, Office of Employment Discrimination Complaint Adjudication, advised Mr. Showman of VA's final decision that he was not subjected to harassment because of his sex (male) and race (Native American) on August 25, 1997, when he received a memorandum from the chief steward of the union (Res. Exh. 2, Attachment, p.5).
12. Mr. Showman appealed the VA's Final Decision to the EEOC where it is now pending (Tr. 69).
13. Mr. William Price, EEO Manager for Mountain Home (Tr. 80), testified, both credibly and without contradiction, that the first step for an employee who feels he, or she, might have had their EEO rights violated is EEO counseling (Tr. 81); that if no settlement is reached, at the final interview the EEO Counselor advises the Complainant of the right to file a formal EEO Complaint (id.); that if a formal EEO Complaint is filed, his office reviews the file only for procedural correctness (Res. Exh. 3 [VA Regulation MP-7, Part 1]) (Tr. 83, 96); and that if it appears to be procedurally correct it is accepted (id.). Mr. Price further stated that when a complaint is accepted, an investigator is assigned (Tr. 82-83); that the investigator is assigned by EEOC in Washington (Tr. 82; Res. Exh. 3, Para. 9). After the investigation, Mr. Price did contact Mr. Showman to see what he would accept by way of a settlement and put it in a form of a Settlement Agreement (Tr. 86) which Dr. Barry, the RMO, rejected (Tr. 48, 49, 86, 97).
To be sure, the Authority has held,
". . . that the Respondent violated section 7116(a)(1) of the Statute by requiring a representative of the Union, to disclose, under threat of disciplinary action, the content or substance of statements made by an employee to that Union representative in the course of representing the employee in a disciplinary proceeding." U.S. Department of the Treasury, Customs Service, Washington, DC, 38 FLRA 1300, 1308 (1991). [n5] (hereinafter, "Customs Service").
Customs Service, supra, was, pure and simple, whether the designated union representative of an employee in an actual or potential disciplinary action can be examined by management concerning statements made by the employee to the union representative.
While Customs Service, supra, concerned only management's interrogation about statements made by an employee to the union representative, Long Beach Naval Shipyard, Long Beach, California, 44 FLRA 1021 (1992)(hereinafter, "Long Beach"), concerned, in pertinent part, interrogation of the union representative about statements the union representative had made, which was not privileged. Long Beach involved a settlement agreement which reinstated an employee with backpay less any amounts earned through other employment during the period of removal. At a meeting on April 26, 1988, Mr. Joseph Walsh, Chief Steward and [ v56 p704 ] representative of the employee, Rene L. Garcia, told management representative Jeri L. Edwards that Garcia had worked during the time of his removal but had made only about $7.00 per hour whereas at theShipyard he had made over $11.00 per hour. [n6] When Garcia submitted his declaration for backpay, he put down zero for the amount earned from other employment, and the apparent falsification led to an investigation of Garcia's claim by the Criminal Investigation Division (CID). In the course of their investigation, the CID investigators questioned Mr. Walsh, inter alia [n7] , about his, Walsh's, statements to Ms. Edwards, which I held was not privileged under Customs Service, supra, stating:
"Information which was privileged loses its immunity upon public disclosure. For example, in this case, when Mr. Walsh told Ms. Edwards that Mr. Garcia had been working during the time of his removal, the information disclosed ceased to be privileged and if Mr. Walsh were questioned about his statement to Ms. Edwards, such questioning would not violate § 16(a)(1) as interrogation concerning statements made by an employee to a representative. . . ." (44 FLRA at 1052-53).
The Authority agreed that questioning Mr. Walsh about statements Mr. Walsh made was not protected, stating:
". . . Walsh refused to answer the investigators' question about whether Walsh had ever spoken with Edwards about Garcia working and collecting money while he was out on unemployment. We find, in agreement with the reasoning and finding of the Judge, that Walsh did not have a right under the Statute to keep confidential any information that he had already told Edwards [footnote 6 omitted at this point]. Therefore, we conclude that the investigators' question was not improper and would not have constituted a violation of the Statute." (44 FLRA at 1039).
In footnote 6, the Authority noted as follows:
"The Judge stated that `[i]nformation which was privileged loses its immunity upon public disclosure.' . . . We agree with this statement only insofar as it means in this case that Walsh did not have a right under the Statute to keep confidential any information that he had already told Edwards." (Id. at n.6).
I believe the statement that, "Information which was privileged loses its immunity upon public disclosure" is legally correct and I am comfortable with it; but the Authority appears to find greater solace in "waiver" as it stated in Customs Service, "Any interference with that protected activity violated the Statute unless . . . the right to maintain the confidentiality of the conversations had been waived . . . ." (38 FLRA at 1309). [n8]
As the Authority has made clear in Long Beach supra, Dr. Barry had no right under the Statute to keep confidential any statement he had made in his response to the employee's proposed admonishment; nor did the employee have any right under the Statute to keep confidential any statement she had made in the response. Both the employee and Dr. Barry signed the response and by submitting the written, signed response to Respondent any information which might have been privileged, as an employee's statement to her union representative, lost its immunity upon public disclosure, or, as the Authority might prefer, each waived confidentiality of statements each had made in the written response filed with Respondent. [ v56 p705 ]
Dr. Barry was examined by the EEO investigator, Ms. Jones, about the statements he, Barry, had made in the response and I find nothing in the transcript of his examination (G.C. Exh. 11) that shows any questioning concerning statements Ms. Blanton had made to him in confidence. Nor is there any indication that Dr. Barry was subjected to coercive questioning. FBOP, supra, 53 FLRA at 1511-12. Moreover, the transcript shows no claim of privilege by Dr. Barry and a voluntary disclosure of information waives any privilege that might have attached. For example, in Long Beach, supra, if it were assumed that Mr. Walsh had been told in confidence by Mr. Garcia that he, Garcia, had worked during his removal, and Mr. Walsh had been questioned about what Mr. Garcia had told him, he could have asserted that such statements by Mr. Garcia to him were privileged; but once Mr. Walsh volunteered the information to Ms. Edwards he had waived any privilege as to what he had told Ms. Edwards. So, too, here. By way of example, the reply stated, in part, ". . . Ms. Blanton on the morning of July 25th happened to overhear Mr. Showman, her supervisor, telling a co-worker over the phone that a complaint had been lodged against them by this self-same patient . . . ." (G.C. Exh. 4; p. 1). Dr. Barry was asked about the statement and he responded, "A: That's correct. She did tell me that. Q: And is this all she told you" . . . A: Well, pretty much, she said she just accidentally happened to be outside of his office. (G.C. Exh. 11, p. 8). The questioning of Dr. Barry about what he had disclosed in his reply was proper. In addition, Dr. Barry asserted no privilege and made other asserted statements. In like manner, the reply stated, in part, ". . . This lack of knowledge could certainly be attributable to the fact that her first-line supervisor Mr. Showman had never provided training or orientation on patient confidentiality issues to Ms. Blanton or her co-workers. (G.C. Exh. 4, p. 1). Dr. Barry was asked about this statement and Dr. Barry replied, "A 16: That's what Ms. Blanton told me. I asked her, `are you sure, are you positive, absolutely?' . . . A: (sic) But this was based upon, this particular thing was based upon what she told you? A: Most of the information in there was based upon the data and information she provided to me . . . And it was my job to try to organize it. To put it together. Ms. Blanton, does feel that she is being discriminated against. She feels that it's because of her race. It's not my decision to figure out whether it's true or not. I do know she feels discriminated against. And not just because of some incidences, depicted in this memo, things happened before and things have happened after." (G.C. Exh. 11, pp.9-10). Again, no attempt to compel Dr. Barry to disclose confidential information and wide-ranging voluntary statements by Dr. Barry.
General Counsel asserts that, "As explained by Barry, management put him in the position of `being an informer' betraying statements made in confidence to him as a Union representative." (General Counsel's Brief p. 18); but Dr. Barry made the assertion in the response, "(There is a long list of names of immediate relatives, past and present, who have, without solicitation, spontaneously commended Ms. Blanton . . . and they are quite willing to come forward on her behalf)." (G.C. Exh. 4, p. 2); he was asked about what he had already disclosed and when asked "Q: Could you provide me with those letters?", he answered, "A: I cannot. Rose has them. Q: Okay" (G.C. Exh. 11, p. 12). Obviously, there was no attempt to compel Dr. Barry to produce any evidence. As noted above, Ms. Blanton signed the reply and she, as well as Dr. Barry, thereby made statements about which she could be examined because any privilege that might have attached was waived when she disclosed the statement in her signed response. Moreover, the record is silent as to whether Ms. Blanton was ever questioned about the letters, the only reference to her interview relates to the July 25, 1997, telephone conversation (Res. Exh. 1, p. 8). So, while General Counsel's statement concerning confidential statements made by Ms. Blanton to Dr. Barry sounds impressive, the record shows that Dr. Barry's assertions were baseless.
Having found that the examination of Dr. Barry was not coercive and did not interfere with, restrain or coerce Dr. Barry in the exercise of rights protected under the Statute, it is recommended that the Authority adopt the following:
The Complaint in Case No. CH-CA-80325 be, and the same is hereby, dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: November 16, 1999
File 1: Authority's Decision in 56 FLRA No. 117
File 2: ALJ's Decision
Footnote # 1 for 56 FLRA No. 117 - ALJ's Decision
For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the Statutory reference, i.e., Section 7116(a)(1) will be referred to, simply, as,"§ 16(a)(1)."
Footnote # 2 for 56 FLRA No. 117 - ALJ's Decision
In the prehearing conference, held on June 17, 1999, and again at the hearing (Tr. 15), I emphasized to the parties that it seemed to me that we had to consider very carefully the following line of cases:
Clyde Taylor Co., 127 NLRB 103, 45 LRRM 1514 (1960) [which reversed W.T. Carter, 90 NLRB 2020, 26 LRRM 1427 (1950)].;
Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983);
Consumer Product Safety Commission, 4 FLRA 803, 804 (1980) affirmed sub nom., Ward v. FLRA, 688 F.2d 827 (3d Cir. 1982);
Department of the Air Force, Griffiss Air Force Base, Rome, New York, 12 FLRA 198, 207-08 (1983) petition for review granted sub nom., AFGE, Local 2612 v. FLRA, 739 F.2d 87 (2d Cir. 1984); and
Department of Treasury, Internal Revenue Service, Louisville District, 20 FLRA 660 (1985) petition for review denied sub nom., NTEU v. FLRA 801 F.2d 1436 (D.C. Cir. 1986).
I pointed out that each of these cases involved the filing of a suit in court for libel, whereas, the present case involved an administrative proceeding under the EEO Act.
In view of General Counsel's stated position that the filing of the EEO complaint was a protected right, it is unnecessary to decide, and I expressly do not decide, whether the filing of an EEO complaint about statements made by a Union representative in a formal reply in a disciplinary grievance is, pursuant to the Clyde Taylor - Bill Johnson's, et al., line of cases, a protected right which cannot serve as the basis for an unfair labor practice unless, as the Supreme Court noted in Bill Johnson's Restaurants, Inc., supra, it can be shown that the suit [here, EEO complaint] is both baseless and its intent is retaliation for the exercise of protected rights, 461 U.S. at 741-44, (see, Department of Treasury, supra, 20 FLRA at 661 n.3); nor do I make any determination as to whether there is jurisdiction under the EEOC Regulations, 29 C.F.R. § 1614.101 et seq., to entertain a complaint by a supervisor of discrimination by an employee, albeit a union steward, although I am well aware that General Counsel states that, " . . . the EEOC has consistently ruled that the actions of Union officials `in their representative capacity concerning protected matters' or `in the conduct of legitimate labor-management disputes' are usually not actionable under the EEOC Regulations. Bray v. Department of the Treasury, EEOC Request No. 05940748 (March 23, 1995) (1995 WL [West Law] 137267 . . .; Williams v. Department of the Army, EEOC Request No. 01975032 (March 20, 1998) (1998 WL 150411 . . .) . . ." General Counsel's Brief, p. 20).
Footnote # 3 for 56 FLRA No. 117 - ALJ's Decision
Mr. Showman, because he thought each violation was a serious wrong, initially recommended removal (G.C. Exh. 2; Tr. 77); but no such action was taken. Rather, as noted, Ms. Blanton was issued a notice of proposed admonishment.
Footnote # 4 for 56 FLRA No. 117 - ALJ's Decision
The Alice in Wonderland nature of entertaining an EEO Complaint by a supervisor against an employee is illustrated by the fact that the employee, here the Chief Steward, becomes the responsible management official (Tr. 96).
Footnote # 5 for 56 FLRA No. 117 - ALJ's Decision
"The right and duty of a Union to represent employees in disciplinary proceedings, and the correlative right of each employee to be represented, demand that the employee be free to make full and frank disclosures to his, or her, representative in order that the employee have adequate advice and a proper defense. Even though the representative is not an attorney, the Statute assures each employee the right to exercise rights granted by the Statute, `freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right . . . .' The subjection of an employee's representative to interrogation concerning statements made by the employee to the representative violates § 16(a)(1) . . . ." (38 FLRA at 1323).
The Authority, as noted above, affirmed; but added,
". . . Any interference with that protected activity violated the Statute unless, as contended by Respondent, the right to maintain the confidentiality of the conversations had been waived or some overriding need for the information was established [footnote omitted]." (38 FLRA at 1309).
Footnote # 6 for 56 FLRA No. 117 - ALJ's Decision
Indeed, Mr. Garcia himself earlier had stated, in the presence of Shop Superintendent Fred Billetts, Labor Relations Officer Jon A. Dodd, Mr. Walsh and Ms. Edwards, that he had been working during the time of his removal. The CID investigator never asked Mr. Walsh about Mr. Garcia's statement on this occasion.
Footnote # 7 for 56 FLRA No. 117 - ALJ's Decision
Mr. Walsh was questioned by CID on May 17, 20, 23 and June 3, 1998. As I held, plainly their questioning of Mr. Walsh about statements Mr. Garcia had made to him [Walsh] violated § 16(a)(1). The trouble was, the charge was not filed until more than 6 months after the last CID interrogation. There was an investigation of Mr. Walsh conducted in August 1998; but at the August investigation, not by CID, Mr. Walsh was asked only two questions: a) Did you refuse to sign the form [Kalkines statement] to which he answered, "yes"; and b) Did you refuse to testify in an administrative investigation, to which he responded, "No", which I found did not violate the Statute; but the Authority found that the examination of Mr. Walsh in August, where removal was sought, constituted a threat of disciplinary action because Mr. Walsh had refused to disclose statements made to him by Mr. Garcia.
Footnote # 8 for 56 FLRA No. 117 - ALJ's Decision
Apart from, "waiver", the Authority in Customs Service attached a second qualification, namely: "or some overriding need for the information . . . . (id. at 1309). In Federal Bureau of Prisons, Office of Internal Affairs, Washington, DC, 53 FLRA 1500 (1998)(FBOP), the Authority stated it found "extraordinary need" where, ". . . investigation was undertaken following the receipt of a sworn affidavit . . . alleging that physical violence had been threatened by one employee against another on the premises of a Federal correctional institution. . . ." (Id. at 1510); but, then, in a footnote stated:
"Our conclusion that `extraordinary need' exists is based on the specific context . . . including that no confidential employee- union communication was implicated." (Id. at n.7) (emphasis added).
Which renders the "extraordinary need" statement, as an exception to confidentiality of employee statements to his or her union representative in this case a non sequitur.