[ v03 p430 ]
03:0430(65)CA
The decision of the Authority follows:
3 FLRA No. 65
VETERANS ADMINISTRATION MEDICAL
CENTER, SHREVEPORT, LOUISIANA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2000
Complainant
Assistant Secretary
Case Nos. 64-4243(CA)
64-4265(CA)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD NOT
ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS AND
RECOMMENDING THAT THE COMPLAINTS BE DISMISSED IN THEIR ENTIRETY.
THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATIONAL
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(45 F.R. 3482, JANUARY 17, 1980). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
IN ADOPTING THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS IN CASE NO. 64-4265(CA), THE AUTHORITY NOTES
PARTICULARLY THAT THE ADMINISTRATIVE LAW JUDGE, IN DISMISSING THE
19(A)(1) COMPLAINT WITH RESPECT TO RESPONDENT'S STATEMENT CONCERNING THE
DOCUMENTATION OF AN EMPLOYEE'S COMPLAINTS, FOUND THAT THE STATEMENT IN
QUESTION "HAD NOTHING TO DO WITH THE DOCUMENTATION OF ANY OF (THE
EMPLOYEE'S) WORK PROBLEMS." /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINTS IN ASSISTANT SECRETARY CASE
NOS. 64-4243(CA) AND 64-4265(CA) BE AND ARE HEREBY DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 16, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
LYNDA BECK FENWICK, ATTORNEY
OFFICE OF DISTRICT COUNSEL
VARO
1400 NORTH VALLEY MILLS DRIVE
WACO, TEXAS
AND
MR. JOHN MALONE, CHIEF PERSONNEL OFFICER
VETERANS HOSPITAL MEDICAL CENTER
SHREVEPORT, LOUISIANA
FOR THE RESPONDENT
MR. CARL HOLT, NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
3101 AVON DRIVE
ARLINGTON, TEXAS 76015
AND
GEORGIE PARKER LUCAS, CHIEF STEWARD
VETERANS HOSPITAL MEDICAL CENTER
SHREVEPORT, LOUISIANA
FOR THE COMPLAINANT
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THESE CONSOLIDATED CASES ARE BEFORE THE FEDERAL LABOR RELATIONS
AUTHORITY BASED ON AMENDED COMPLAINTS, FILED BY THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES LOCAL 2000, AFL-CIO HEREINAFTER CALLED "THE
COMPLAINANT" ALLEGING THAT THE VETERANS ADMINISTRATION MEDICAL CENTER,
HEREINAFTER CALLED "RESPONDENT" VIOLATED SECTION 19(A)(1) OF EXECUTIVE
ORDER 11491, AS AMENDED BASED ON CERTAIN ACTIONS AND STATEMENTS MADE BY
EARL KEPHART, CHIEF OF NURSING SERVICES. THE DECISION AND ORDER HEREIN
IS ISSUED FOR THE FEDERAL LABOR RELATIONS AUTHORITY IN ACCORDANCE WITH
THE TRANSITION RULES AND REGULATIONS PUBLISHED IN THE FEDERAL REGISTER,
VOL. 44, NO. 1, JANUARY 2, 1979, PP. 5-8.
A HEARING WAS HELD IN SHREVEPORT, LOUISIANA ON AUGUST 2, 1979. ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
INVOLVED HEREIN. UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, THE ARGUMENTS OF THE
PARTIES AND THE BRIEF SUBMITTED BY RESPONDENT, I MAKE THE FOLLOWING
FINDINGS OF FACT AND CONCLUSIONS OF LAW.
FINDINGS OF FACT
THE COMPLAINANT UNION, IS, AND AT ALL TIMES MATERIAL HEREIN HAS BEEN,
THE EXCLUSIVE REPRESENTATIVE OF ALL REGULAR EMPLOYEES OF THE RESPONDENT
MEDICAL CENTER. AT ALL TIMES MATERIAL HEREIN RESPONDENT AND THE UNION
WERE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT WHICH CONTAINS A
GRIEVANCE PROCEDURE.
ALTHOUGH THERE IS A SUBSTANTIAL AMOUNT OF BACKGROUND EVIDENCE IN THE
RECORD SHOWING THE LABOR RELATIONS CLIMATE BETWEEN THE PARTIES THE
SPECIFIC ISSUES IN THIS MATTER INVOLVE ONLY TWO SPECIFIC EVENTS WHICH
ARE SET OUT BELOW:
CASE NO. 64-4265(CA)-- THE FEBRUARY 24 MEETING
AT THE REQUEST OF CHIEF STEWARD, GEORGIA LUCAS, A MEETING WAS HELD ON
FEBRUARY 24, 1978, AT WHICH COMPLAINANT WAS REPRESENTED BY MRS. LUCAS
AND CARL HOLT, COMPLAINANT'S NATIONAL REPRESENTATIVE. RESPONDENT WAS
REPRESENTED BY MR. KEPHART AND ASSISTANT PERSONNEL OFFICER GUSTAVO
GUERRA. THE PARTIES AGREED THAT THE PURPOSE OF THE MEETING WAS TO
DISCUSS DISAGREEMENT OVER INTERPRETATION RELATING ONLY TO HANDLING OF
GRIEVANCES. HOWEVER, DURING THE COURSE OF THIS MEETING CERTAIN
STATEMENTS WERE ALLEGEDLY MADE REGARDING THE DOCUMENTING OF COMPLAINTS
OF EMPLOYEE FANNIE HARPER.
MR. GUERRA DID NOT RECALL ANY SPECIFIC REFERENCE TO MS. HARPER'S
GRIEVANCE ALTHOUGH STATING THERE MAY HAVE BEEN SOME CONVERSATION ALONG
THAT LINE.
ACCORDING TO MR. KEPHART, MR. HOLT MENTIONED TO HIM THAT HE
UNDERSTOOD MS. HARPER WAS A PROBLEM EMPLOYEE. KEPHART'S RESPONSE WAS
"YOU MIGHT SAY THAT." HE THEN ALLEGEDLY MENTIONED THAT MS. HARPER DID
STOP AT EITHER THE PERSONNEL OFFICE OR ON SEVERAL OCCASIONS AT THE
DIRECTOR'S OFFICE IN THE MORNING WHEN SHE CAME OFF DUTY. HOLT THEN
ASKED IF THESE OCCURRENCES HAD BEEN DOCUMENTED AND KEPHART REPLIED THAT
THEY HAD NOT BEEN DOCUMENTED SINCE THEY WERE NOT VISITS WITH HIM. HOLT
ASKED, "DON'T YOU THINK THEY SHOULD HAVE BEEN DOCUMENTED." KEPHART
REPLIED, "PERHAPS SO." ON FURTHER EXAMINATION, MR. KEPHART TESTIFIED
THAT THE REFERENCE TO DOCUMENTING COMPLAINTS WAS TO THOSE COMPLAINTS MS.
HARPER WAS HERSELF MAKING AND NOT TO DOCUMENTING OF MISTAKES SHE HAD
MADE ON THE JOB. HE FURTHER TESTIFIED THAT COMPLAINTS OF OTHER
EMPLOYEES MADE AT THE DIRECTOR'S OFFICE WERE NOT DOCUMENTED.
THERE IS RECORD EVIDENCE THAT MS. HARPER SOMETIMES DEVIATED FROM THE
AGREED UPON CONTRACT PROCEDURE AND IN CONTACTING THE PROPER PARTIES IN
ORDER TO PRESENT HER GRIEVANCES.
MR. HOLT TESTIFIED THAT KEPHART MENTIONED THAT THEY HAD HAD TROUBLE
WITH MS. HARPER. MR. HOLT RESPONDED THAT, "I WOULD SUGGEST TO YOU AS I
DO ALL MANAGEMENT OFFICIALS, WHEN HAVING A PROBLEM WITH AN EMPLOYEE, LET
US KNOW AND WE WILL SEE WHAT WE CAN DO TO HELP." FINALLY, MR. HOLT
TESTIFIED THAT HE FELT A THREAT TO DOCUMENT AN EMPLOYEE'S ACTIONS AFTER
FILING A GRIEVANCE IS A DEFINITE THREAT.
MRS. LUCAS STATED THAT AT THE FEBRUARY 24 MEETING SHE WAS TOLD BY MR.
KEPHART, "THAT CERTAIN THINGS HAD GONE ON AND HAD NOT BEEN DOCUMENTED IN
MS. HARPER'S JOB PERFORMANCE, BUT THAT THEY WOULD IN THE FUTURE BE
DOCUMENTED, AND THE ONLY WAY THAT SHE INTERPRETED THE STATEMENT AS A
THREAT. MRS. LUCAS FURTHER TESTIFIED THAT MR. KEPHART INDICATED THAT
MS. HARPER WOULD BE DOCUMENTED VERY CLOSELY.
CASE NO. 64-6243(CA)-- THE MARCH 17 MEETING
ON MARCH 17, 1978, MR. KEPHART MET IN HIS OFFICE WITH MRS. LUCAS AND
GRIEVANT FANNIE HARPER. ACCORDING TO ALL OF THE PARTIES THE PURPOSE OF
THIS MEETING WAS TO RECEIVE AN ANSWER TO THE SECOND STEP OF A GRIEVANCE
PRESENTED UNDER THE CONTRACT. ALSO PRESENT DURING THIS MEETING WAS, MR.
KEPHART'S SECRETARY, LAVENIA ALLEND.
MRS. LUCAS TESTIFIED THAT WHEN SHE SAW MRS. ALLEND IN THE MEETING
THAT SHE POINTED OUT TO MR. KEPHART THAT HER PRESENCE WAS NOT PROPER BUT
MR. KEPHART WOULD NOT ASK MRS. ALLEND TO LEAVE.
THE RECORD ESTABLISHED THAT MRS. ALLEND IS THE SECRETARY TO THE CHIEF
OF NURSING SERVICE, BUT IS A MEMBER OF THE BARGAINING UNIT. SHE TYPED
THE REPLY TO MS. HARPER'S GRIEVANCE AND WAS PRESENT AT THE MEETING, AT
THE REQUEST OF MR. KEPHERT. ALSO, SHE WAS AWARE THAT THE PURPOSE OF THE
MEETING WAS TO GIVE THE WRITTEN REPLY TO MS. HARPER. FINALLY, SHE
TESTIFIED THAT SHE NORMALLY SAT IN ON THE TYPE OF MEETING THAT WAS HELD
THAT DAY.
MR. KEPHART RECALLS THAT MRS. ALLEN'S PRESENCE WAS REQUESTED AT THIS
MEETING SIMPLY TO HAVE A REPRESENTATIVE WITH HIM IN THE OFFICE.
THE PURPOSE OF THIS MEETING, AS PREVIOUSLY STATES WAS TO PRESENT TO
THE GRIEVANT, MS. HARPER THE AGENCY'S RESPONSE TO THE SECOND STEP OF THE
GRIEVANCE UNDER THE CONTRACT. /2/ MRS. LUCAS CONTENDED THAT, IT IS
CUSTOMARY THAT ANY QUESTIONS GRIEVANT HAS REGARDING THE REPLY IS
DISCUSSED BEFORE PROCEEDING TO THE NEXT STEP. CLEARLY, MR. KEPHART
REFUSED TO DISCUSS THE MATTER DURING THIS MEETING AND THE MEETING WAS
APPARENTLY VERY HEATED.
DISCUSSION AND CONCLUSIONS
IN CASE NO. 64-4243(CA) COMPLAINANT CONTENDS THAT, IN ALLOWING MR.
KEPHART'S SECRETARY TO BE PRESENT WHEN HE DISCUSSED A GRIEVANCE WITH THE
GRIEVANT MR. HARPER, RESPONDENT VIOLATED SECTION 19(A)(1) OF THE ORDER.
THE GRAVAMEN OF THE COMPLAINT IS THAT OF THE SECRETARY, WHO WAS A
BARGAINING UNIT MEMBER, DESTROYED THE CONFIDENTIALITY OF THE MEETING.
THE COMPLAINANT CONTENDS, IN ESSENCE, THAT THE PRESENCE OF MANAGEMENT
OFFICIALS AND OTHERS AT GRIEVANCE MEETINGS IS NOT CONDUCIVE TO HOLDING A
CONSTRUCTIVE MEETING. /3/
IN MY VIEW, THE PURPOSE OF THIS MEETING WAS MERELY TO PRESENT THE
AGENCY'S RESPONSE TO THE GRIEVANT'S SECOND STEP GRIEVANCE. DESPITE
COMPLAINANT'S CONTENTIONS TO THE CONTRARY, THERE IS NO PROVISION IN THE
CONTRACT UNDER ARTICLE VII FOR DISCUSSION AT THIS LEVEL NOR DOES THE
RECORD ESTABLISH A PAST PRACTICE OF SUCH DISCUSSIONS. THEREFORE, IT IS
FOUND THAT NO DISCUSSION WAS UNDERWAY WITH WHICH THE PRESENCE OF MRS.
ALLEND COULD HAVE INTERFERED. MOREOVER, THE RECORD REVEALS NO OTHER
REASON WHY THE PRESENCE OF MRS. ALLEND, EITHER AS AN OBSERVER OR
REPRESENTATIVE, WOULD INTERFERE WITH OR RESTRAIN EMPLOYEE RIGHTS.
HAVING CONSIDERED THE ENTIRE RECORD BEFORE ME, I FIND NO BASIS TO
SUPPORT A FINDING THAT THE PRESENCE OF MRS. ALLEND AT THE MARCH 17, 1978
MEETING CONSTITUTED A VIOLATION OF THE ORDER.
WITH RESPECT TO THE ISSUE IN CASE NO. 64-4265(CA) THAT MR. KEPHART
THREATENED MS. HARPER BY TELLING HER THAT HE HAD LET CERTAIN PROBLEMS GO
UNDOCUMENTED; BUT SINCE SHE HAD FILED A GRIEVANCE, HE WAS GOING TO
DOCUMENT EVERYTHING INVOLVING MS. HARPER AND WOULD TAKE APPROPRIATE
ACTION, I FIND THAT COMPLAINANT HAS NOT ESTABLISHED BY A PREPONDERANCE
OF THE EVIDENCE THAT SUCH STATEMENT, IF MADE, WAS VIOLATIVE OF THE
ORDER.
A DETERMINATION OF WHETHER A STATEMENT VIOLATES SECTION 19(A)(1) MUST
TAKE INTO CONSIDERATION THE ENTIRE CIRCUMSTANCES SURROUNDING THE MAKING
OF THE STATEMENT. CF. INTERNAL REVENUE SERVICE, MID ATLANTIC CENTER,
4/ASLMR 516, A/SLMR NO. 421(1974).
INTERESTINGLY, MS. HARPER AGAINST WHOM THE THREAT WAS ALLEGEDLY MADE
WAS NOT PRESENT DURING THE MEETING. FURTHER, THERE WAS NO REFUSAL TO
PROCESS A GRIEVANCE OF HARPER'S OR ANY OTHER EMPLOYEE AT THIS MEETING,
BUT THERE WAS CONSIDERABLE DISCUSSION AS TO HOW GRIEVANCES WOULD BE
HANDLED. WITHIN THE CONTEXT OF THE DISCUSSIONS WHICH OCCURRED DURING
THE MEETING IT IS ENTIRELY POSSIBLE THAT MR. KEPHART MADE REFERENCE TO
DOCUMENTATION AND APPROPRIATE ACTION AND THAT THESE REMARKS COULD HAVE
BEEN DIRECTED AS MS. HARPER'S SITUATION. HOWEVER, IT MUST BE
DEMONSTRATED THAT SUCH STATEMENT OR ACTION WAS MADE BECAUSE HARPER
EXERCISED RIGHTS PROTECTED BY THE ORDER. CF. VETERANS ADMINISTRATION,
NORTH CHICAGO VETERANS HOSPITAL, NORTH CHICAGO, ILLINOIS, A/SLMR NO.
1024. ON THE BASIS OF THE RECORD, I AM CONVINCED THAT MS. HARPER'S
PRIOR ACTIONS, IN NOT FOLLOWING THE ESTABLISHED PROCEDURE MAY HAVE
PROMPTED SUCH A STATEMENT BY RESPONDENT, THAT ALL HER COMPLAINTS WOULD
BE DOCUMENTED UNDER THE AGREEMENT, AND HAD NOTHING TO DO WITH THE
DOCUMENTATION OF ANY OF HER WORK PROBLEMS. ACCORDINGLY, I CONCLUDE THAT
NO VIOLATION WAS PRESENT IN RESPONDENT'S STATEMENT REGARDING
DOCUMENTATION OF MS. HARPER'S COMPLAINTS.
RECOMMENDATION
IT HAVING BEEN FOUND THAT RESPONDENT DID NOT ENGAGE IN ANY CONDUCT
VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER, IT IS RECOMMENDED THAT THE
COMPLAINTS BE DISMISSED IN THEIR ENTIRETY.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: OCTOBER 29, 1979
WASHINGTON, D.C.
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE
SERVICE SHEET
"RECOMMENDED DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE
ELI NASH, JR. WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
LINDA ENOCH
LYNDA BECK FENWICK, ATTORNEY
OFFICE OF DISTRICT COUNSEL
VARO
1400 NORTH VALLEY MILLS DRIVE
WACO, TEXAS
MR. JOHN MALONE
CHIEF PERSONNEL OFFICER
VETERANS HOSPITAL MEDICAL CENTER
SHREVEPORT, LOUISIANA
MR. CARL HOLT
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
3108 AVON DRIVE
ARLINGTON, TEXAS 76015
GEORGIE PARKER LUCAS, CHIEF STEWARD
VETERANS HOSPITAL MEDICAL CENTER
SHREVEPORT, LOUISIANA
MR. KENNETH T. BLAYLOCK, PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
ASSISTANT DIRECTOR
LABOR-MANAGEMENT RELATIONS
U.S. OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, N.W.
WASHINGTON, D.C. 20415
REGULAR MAIL:
FEDERAL LABOR RELATIONS AUTHORITY
1900 "E" STREET, N.W.
WASHINGTON, D.C. 20424
ONE COPY TO EACH REGIONAL DIRECTOR REFORM ACT OF 1978 (92 STAT.
1224), THE PRESENT CASE DECIDED SOLELY ON THE BASIS OF E.O. 11491, AS
AMENDED, AND AS IF THE NEW FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED. THE DECISION AND ORDER
DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR APPLICATION OF
RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH WOULD BE
REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE STATUTE RATHER
THAN THE EXECUTIVE ORDER.
/2/ ARTICLE VII, STEP 2 PROVIDES, IN PERTINENT PART THAT: "THE
SERVICE CHIEF SHALL ANSWER, IN WRITING, WITHIN FIVE (5) WORKDAYS.
/3/ ALTHOUGH THE ISSUE OF WHETHER OR NOT MANAGEMENT IS ENTITLED TO
HAVE REPRESENTATIVES OF ITS OWN CHOOSING AT GRIEVANCE MEETINGS WAS NOT
DIRECTLY RAISED, THE COMPLAINANT APPEARS TO BE RAISING A QUESTION OF
CONTRACTUAL INTERPRETATION BY ITS REPEATED REFERENCE TO MANAGEMENTS
HAVING ADDITIONAL REPRESENTATIVES AT THIS AND OTHER MEETINGS. IF
INDEED, THERE IS A BREACH OR MISUNDERSTANDING ARISING OUT OF THE PARTIES
DISAGREEMENT, IT WOULD NOT APPEAR VIOLATIVE OF SECTION 19(A) OF THE
ORDER. GENERAL SERVICES ADMINISTRATION, REGION 5, PUBLIC BUILDINGS
SERVICE, CHICAGO FIELD OFFICE, A/SLMR NO. 528.