Veterans Administration Hospital, Danville, Illinois (Respondent) and Local 1963, American Federation of Government Employees, AFL-CIO (Charging Party)
[ v04 p432 ]
04:0432(59)CA
The decision of the Authority follows:
4 FLRA No. 59
VETERANS ADMINISTRATION HOSPITAL,
DANVILLE, ILLINOIS
Respondent
and
LOCAL 1963, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Case Nos. 5-CA-58
5-CA-201
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT RESPONDENT HAD ENGAGED
IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LABOR
JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT
FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
AND ORDER.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), 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 CASES, INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY
HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS AS MODIFIED BELOW.
THE AUTHORITY FINDS, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE,
THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) BY ITS
UNILATERAL SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN IT
AND THE CHARGING PARTY. IN THIS REGARD, THE AUTHORITY AGREES THAT
RESPONDENT CLEARLY AND PATENTLY BREACHED THE AGREEMENT BY ITS ACTIONS OF
REQUIRING MEDICAL DOCUMENTATION TO SUPPORT ONE DAY OF SICK LEAVE WITHOUT
FIRST COUNSELING THE INDIVIDUAL EMPLOYEE; ITS REFUSAL TO PROCESS
GRIEVANCES; AND ITS REFUSAL TO PROCESS GRIEVANCES TO ARBITRATION
PURSUANT TO THE TERMS OF ITS AGREEMENT WITH THE CHARGING PARTY.
HOWEVER, THE AUTHORITY FINDS, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE,
THAT THE RESPONDENT DID NOT VIOLATE THE STATUTE BY ITS ACTION IN
CONDUCTING UNILATERAL INQUIRIES OR INVESTIGATIONS OF MATTERS INVOLVING
UNIT EMPLOYEES CONTRARY TO THE TERMS OF THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT. IN THIS REGARD, THE AUTHORITY NOTES THAT THIS
LATTER CONDUCT OF RESPONDENT WAS NOT ALLEGED IN THE COMPLAINT AS
VIOLATIVE OF THE STATUTE.
IN REACHING ITS CONCLUSIONS HEREIN, THE AUTHORITY WISHES TO EMPHASIZE
THAT THE RESOLUTION OF THE ISSUE OF WHETHER OR NOT CERTAIN EMPLOYEES
ENGAGED IN AN UNLAWFUL WORK STOPPAGE WAS NOT NECESSARY UNDER THE
CIRCUMSTANCES OF THIS CASE. THE COMPLAINT HEREIN ALLEGED A VIOLATION OF
THE RESPONDENT'S DUTY TO THE CHARGING PARTY TO BARGAIN IN GOOD FAITH,
BUT DID NOT ALLEGE A VIOLATION OF RIGHTS OF ANY EMPLOYEE ALLEGEDLY
ENGAGED IN A WORK STOPPAGE. THE ISSUE AS TO WHETHER OR NOT THE CHARGING
PARTY HAD VIOLATED SECTION 7116(B)(7) OF THE STATUTE WAS THE SUBJECT OF
AN UNFAIR LABOR PRACTICE CHARGE FILED BY THE RESPONDENT IN CASE NO.
5-CO-9, WHICH WAS DISMISSED BY THE REGIONAL DIRECTOR AND THE APPEAL OF
THE DISMISSAL TO THE GENERAL COUNSEL WAS DENIED. THUS, THERE IS NO
LAWFUL BASIS ESTABLISHED FOR THE RESPONDENT'S ACTIONS IN RESTRICTING THE
RIGHTS OF THE CHARGING PARTY UNDER THE TERMS OF THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY
RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE AUTHORITY
HEREBY ORDERS THAT THE VETERANS ADMINISTRATION HOSPITAL, DANVILLE,
ILLINOIS SHALL:
1. CEASE AND DESIST FROM:
A. SUSPENDING ITS COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES.
B. REFUSING TO ACCEPT AND PROCESS GRIEVANCES, INCLUDING SUBMISSION
TO ARBITRATION PURSUANT TO THE TERMS OF THE COLLECTIVE BARGAINING
AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, BASED UPON ITS UNILATERAL SUSPENSION OF THE TERMS AND
CONDITIONS OF THE COLLECTIVE BARGAINING AGREEMENT.
C. REQUIRING MEDICAL DOCUMENTATION TO SUPPORT A REQUEST FOR SICK
LEAVE OF LESS THAN THREE DAYS WITHOUT FIRST COUNSELING THE EMPLOYEE,
CONTRARY TO THE TERMS OF ITS COLLECTIVE BARGAINING AGREEMENT.
D. IN ANY LIKE OR RELATED MATTER INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
A. UPON REQUEST OF LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, PROCESS ALL GRIEVANCES REJECTED ON THE BASIS OF THE
UNLAWFUL SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL
1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INCLUDING,
WHEN REQUESTED, ARBITRATION OF SUCH GRIEVANCES.
B. POST AT THE FACILITIES OF THE VETERANS ADMINISTRATION HOSPITAL,
DANVILLE, ILLINOIS, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE MEDICAL CENTER
DIRECTOR, VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS, AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS IN ALL
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
C. NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT SUSPEND THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL
1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE
EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES.
WE WILL NOT REFUSE TO ACCEPT AND PROCESS GRIEVANCES, INCLUDING
SUBMISSION TO ARBITRATION PURSUANT TO THE TERMS OF THE COLLECTIVE
BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, BASED UPON OUR UNILATERAL SUSPENSION OF THE TERMS
AND CONDITIONS OF THE COLLECTIVE BARGAINING AGREEMENT.
WE WILL NOT REQUIRE MEDICAL DOCUMENTATION TO SUPPORT A REQUEST FOR
SICK LEAVE OF LESS THAN THREE DAYS WITHOUT FIRST COUNSELING THE
EMPLOYEE, CONTRARY TO THE TERMS OF OUR COLLECTIVE BARGAINING AGREEMENT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL, UPON REQUEST OF LOCAL 1963, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, PROCESS ALL GRIEVANCES REJECTED ON THE
BASIS OF THE UNLAWFUL SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT
WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
INCLUDING, WHEN REQUESTED, ARBITRATION OF SUCH GRIEVANCES.
(AGENCY OR ACTIVITY)
DATE: . . . BY: . . . (SIGNATURE)
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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: ROOM 1638, DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN
STREET, CHICAGO, ILLINOIS, 60604, AND WHOSE PHONE NUMBER IS (312)
353-6746.
-------------------- ALJ$ DECISION FOLLOWS --------------------
JAMES E. ADAMS AND
CLAIRE R. MORRISON, ESQUIRES
OFFICE OF THE GENERAL COUNSEL
VETERANS' ADMINISTRATION
WASHINGTON,D.C. 20420
FOR THE RESPONDENT
GREGORY MIKSA AND
BRENDA ROBINSON, ESQUIRES
FEDERAL LABOR RELATIONS AUTHORITY
ROOM 1638
219 SOUTH DEARBORN STREET
CHICAGO, ILLINOIS 60604
FOR THE GENERAL COUNSEL
MARC ROTH, ESQUIRE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
FOR THE UNION
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
CASE NOS. 5-CA-58,
5-CA-201
DECISION AND ORDER
THESE PROCEEDINGS AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
7101, ET SEQ., AND THE INTERIM RULES AND REGULATIONS ISSUED THEREUNDER,
FED. REG. VOL. 44, NO. 147, JULY 30, 1979, 5 C.F.R. CHAPTER XIV, PART
2411, ET SEQ.
THE INSTANT MATTERS WERE INITIATED BY CHARGES FILED ON APRIL 12, 1979
AND AUGUST 1, 1979, RESPECTIVELY. THE AUGUST 1, 1979 CHARGE WAS AMENDED
ON AUGUST 13, 1979. THESE CASES WERE CONSOLIDATED AND COMPLAINT AND
NOTICE OF HEARING ISSUED ON SEPTEMBER 6, 1979 ALLEGING A VIOLATION OF 5
U.S.C. 7116(A)(1) AND (5) BASED ON THE ALLEGED REFUSAL TO PROCESS A
GRIEVANCE OVER REPRIMANDS OF EMPLOYEES AND FAILING AND REFUSING TO
ENGAGE IN ARBITRATION OVER THE SAME GRIEVANCE.
A HEARING WAS HELD ON NOVEMBER 6 AND 7, 1979, IN DANVILLE, ILLINOIS.
ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE
WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES HEREIN. ALL
PARTIES SUBMITTED TIMELY BRIEFS IN THE MATTER.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
CONCLUSIONS.
A. CONTRACTUAL BACKGROUND
LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
(HEREINAFTER REFERRED TO AS THE "UNION") IS THE RECOGNIZED EXCLUSIVE
BARGAINING REPRESENTATIVE OF OVER 1200 NON-PROFESSIONAL EMPLOYEES AT THE
FACILITY MAINTAINED BY THE VETERANS ADMINISTRATION MEDICAL CENTER,
DANVILLE, ILLINOIS (HEREINAFTER REFERRED TO AS THE "RESPONDENT").
ON JULY 11, 1977, THE RESPONDENT ENTERED INTO A COLLECTIVE BARGAINING
AGREEMENT WITH THE UNION RECOGNIZING IT AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE FOR ALL EMPLOYEES EMPLOYED BY THE RESPONDENT, BUT
EXCLUDING ALL PROFESSIONAL EMPLOYEES, ALL SUPERVISORS, ALL MANAGEMENT
OFFICIALS, AND ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY. THE AGREEMENT WAS EFFECTIVE FOR A
PERIOD OF 2 YEARS FROM THE DATE OF APPROVAL SUBJECT TO AUTOMATIC RENEWAL
ABSENT TERMINATION BY EITHER PARTY AND WAS AT ALL TIMES MATERIAL HEREIN
IN EFFECT BETWEEN THE PARTIES.
ARTICLE 26-2 OF THE AGREEMENT PROVIDES:
BEFORE REQUIRING MEDICAL EVIDENCE FOR SICK LEAVE OF THREE DAYS OR
LESS, SUPERVISORS WILL
COUNSEL EMPLOYEES REGARDING SICK LEAVE USAGE ON AT LEAST ONE OCCASION
. . . .
ARTICLE 20-1 PROVIDES FOR INCORPORATING BY REFERENCES CERTAIN
PROVISIONS OF VETERANS ADMINISTRATION MANUAL MP-5 INTO THE SICK LEAVE
PROVISION OF THE AGREEMENT AND ARTICLE 20, ENTITLED "THE NEGOTIATED
GRIEVANCE PROCEDURE," SECTION 1 PROVIDES AS FOLLOWS:
THE PURPOSE OF THIS ARTICLE IS TO PROVIDE FOR A MUTUALLY ACCEPTABLE
METHOD FOR THE PROMPT
AND EQUITABLE SETTLEMENT OF GRIEVANCES INVOLVING INTERPRETATION,
APPLICATION, OR VIOLATION OF
THIS AGREEMENT, OR ANY MATTER INVOLVING THE INTERPRETATION OR
APPLICATION OF AGENCY AND CIVIL
SERVICE POLICIES AND REGULATIONS . . .
FURTHER, ARTICLE 21 OF THE AGREEMENT PROVIDES FOR THE MANDATORY AND
BINDING ARBITRATION OF GRIEVANCES NOT RESOLVED AT THE INFORMAL STAGE OF
THE NEGOTIATED GRIEVANCE PROCEDURE ON THE REQUEST OF EITHER PARTY TO THE
AGREEMENT.
ARTICLE 38 OF THE AGREEMENT READS, IN PERTINENT PART:
GRIEVANCES OVER ADMONISHMENTS AND REPRIMANDS MAY BE PROCESSED AS
PROVIDED IN THE NEGOTIATED
GRIEVANCES PROCEDURE.
FINALLY, ARTICLE 37-3 READS:
WHENEVER THE HOSPITAL DIRECTOR APPOINTS A COMMITTEE TO CONDUCT AN
INQUIRY OR INVESTIGATION
INTO AN INCIDENT INVOLVING A UNIT MEMBER, AT LEAST ONE OF THE
COMMITTEE MEMBERS SHALL BE
SELECTED FROM A PANEL COMPRISED OF UNION OFFICERS AND STEWARDS OF THE
UNIT. THE UNION OR
HOSPITAL DIRECTOR MAY REQUEST THAT ADDITIONAL NAMES BE ADDED TO THE
PANEL.
B. MARCH 28, 1979 INCIDENT
ON MARCH 28, 1979 /1/ APPROXIMATELY 35 HOUSEKEEPING EMPLOYEES OUT OF
A WORK FORCE OF ABOUT 75 WERE ABSENT FROM WORK. RESPONDENT AFTER MAKING
A UNILATERAL INVESTIGATION OF THE HIGH ABSENTEE RATE DETERMINED THAT THE
ABSENCES OF THIS UNUSUALLY LARGE NUMBER OF BUILDING MANAGEMENT SERVICE
EMPLOYEES SIGNIFIED SOMETHING OTHER THAN LEGITIMATE LEAVE UTILIZATION.
FOLLOWING THIS DETERMINATION, CHARLES HOWELL, RESPONDENT'S
REPRESENTATIVE, HELPED IN TELEPHONING AND DELIVERING THE FOLLOWING
MESSAGE PREPARED BY THE HOSPITAL DIRECTOR, S. H. BIRDZELL TO THE HOMES
OF EMPLOYEES WHO WERE ON LEAVE AT THE TIME:
AN USUALLY LARGE NUMBER OF BUILDING MANAGEMENT SERVICE EMPLOYEES HAVE
NOTIFIED THEIR
SUPERVISORS THAT THEY WERE UNABLE TO REPORT TO WORK ON WEDNESDAY,
MARCH 28, 1979, BECAUSE OF
ILLNESS. THIS APPEARS TO SUPPORT AN EARLIER RUMOR THAT EMPLOYEES OF
THIS SERVICE MIGHT
PARTICIPATE IN A SICK OUT TO PROTEST A RECENT SELECTION MADE UNDER
THE MERIT PROMOTION PLAN.
EMPLOYEES ARE REMINDED THAT THERE ARE VERY STRICT PROHIBITIONS
AGAINST FEDERAL EMPLOYEES
PARTICIPATING IN ANY STRIKE OR WORK STOPPAGE AGAINST THE GOVERNMENT.
TITLE V, U.S. CODE,
PROVIDES THAT AN INDIVIDUAL MAY NOT ACCEPT, OR HOLD A POSITION IN THE
GOVERNMENT OF THE UNITED
STATES IF HE PARTICIPATES IN A STRIKE AGAINST THE GOVERNMENT. TITLE
XVIII, U.S. CODE,
PROVIDES FOR A FINE OF NOT MORE THAN $1,000, OR IMPRISONMENT OF NOT
MORE THAN ONE YEAR, OR
BOTH, FOR PARTICIPATION IN STRIKE ACTIVITIES.
YOU ARE HEREBY NOTIFIED THAT APPROVAL OF YOUR TELEPHONE REQUESTS FOR
SICK LEAVE FOR MARCH
28, 1979, IS BEING WITHHELD UNTIL SUCH TIME AS YOU FURNISH
SATISFACTORY MEDICAL EVIDENCE OF
YOUR NEED FOR SICK LEAVE FOR THE PERIOD OF YOUR ABSENCE. I STRONGLY
SUGGEST THAT YOU RETURN
TO WORK ON YOUR NEXT SCHEDULED TOUR IF AT ALL POSSIBLE. YOU SHOULD
BE PREPARED TO PRESENT
SATISFACTORY MEDICAL EVIDENCE OF YOUR INCAPACITATION BEFORE A
DETERMINATION CAN BE MADE
REGARDING YOUR REQUEST FOR SICK LEAVE. YOU SHOULD BE AWARE THAT
MANAGEMENT CONSIDERS ANY
CONCERTED ACTIVITIES, SUCH AS A SICK OUT, TO BE A VERY GRAVE MATTER.
THE RECORD REVEALED NO EVIDENCE THAT ANY OF RESPONDENT'S FIRST
SUPERVISORS CONTACTED THE AFFECTED EMPLOYEES FOR COUNSELLING ON MARCH 28
OR THAT THEY FOLLOWED ANY PROCEDURE OTHER THAN TO ROUTINELY RECORD THE
FACT THAT THEY HAD BEEN CONTACTED BY AN EMPLOYEE FOR LEAVE, AS WAS THE
NORMAL PRACTICE. THUS, IT APPEARS THAT THE LEAVE WHEN INITIALLY
REQUESTED WAS GRANTED IN THE NORMAL COURSE OF BUSINESS AND WITHOUT
COUNSELLING BY ANY SUPERVISORS WHO WOULD GENERALLY BE RESPONSIBLE FOR
SUCH ACTION EVEN IF THE EMPLOYEE HAD BEEN REQUESTED TO PRODUCE MEDICAL
DOCUMENTATION UPON RETURN TO WORK.
ON THE SAME DAY, JAMES MONROE, UNION CHIEF STEWARD, INITIATED A UNION
GRIEVANCE UNDER THE AGREEMENT CITING VIOLATIONS OF THE VETERANS
ADMINISTRATION MANUAL, MP-5, AND CIVIL SERVICE COMMISSION (NOW OFFICE OF
PERSONNEL MANAGEMENT, OPM), REGULATIONS PERTAINING TO SICK LEAVE WHICH
ARE INCORPORATED BY REFERENCE INTO THE AGREEMENT. THE GRIEVANCE
REQUESTED THE GRANT OF SICK LEAVE REQUESTS "WITH NO HARRASSMENT." MR.
MONROE WAS INITIALLY ADVISED BY MR. BRADLEY CONNERS, RESPONDENTS
ASSISTANT CHIEF OF PERSONNEL THAT THE MATTER COVERED BY THIS GRIEVANCE
WAS "NOT A GRIEVABLE MATTER DUE TO THE FACT THAT THERE WAS . . . A WORK
STOPPAGE."
C. EVENTS FOLLOWING MARCH 28, 1979
ABOUT MARCH 29 AND CONTINUING THROUGH APRIL 3, UNION STEWARD GENE
VANDERPORT ASSISTED BETWEEN NINE AND TWELVE HOUSEKEEPING EMPLOYEES IN
THEIR PRESENTATION OF MEDICAL DOCUMENTATION TO SUPERVISORS CHARLES
HOPKINS AND CHARLES HOWELL. DURING THE DISCUSSIONS WITH HOWELL AND
HOPKINS, VANDERPORT WAS TOLD SEVERAL TIMES THAT THE CONTRACT WAS
"SUSPENDED."
ON MARCH 29 CHIEF STEWARD MONROE WAS TOLD BY MR. CONNERS THAT NOT
ONLY WAS THE MATTER NOT GRIEVABLE BUT THAT THE ABSENT EMPLOYEES "WERE
NOT ENTITLED TO REPRESENTATION UNDER THE CONTRACT OF THEIR GRIEVANCE."
SIMILARLY, CONNERS TOLD UNION BUSINESS AGENCY CLARENCE DRAKE THAT THE
COLLECTIVE BARGAINING AGREEMENT WAS "NULL AND VOID." CONNERS DENIES
HAVING MADE SUCH STATEMENTS ALTHOUGH HE DID ON JUNE 22 PROVIDE A
STATEMENT TO A FEDERAL LABOR RELATIONS AUTHORITY INVESTIGATOR CONFIRMING
THAT RESPONDENT, ON THE ADVICE OF ITS CENTRAL OFFICE, STATED THAT THE
AGREEMENT WAS SUSPENDED. IN ALL THE CIRCUMSTANCES, THE TESTIMONY OF
UNION REPRESENTATIVES THAT THEY WERE TOLD THAT THE CONTRACT WAS
SUSPENDED IS CREDITED.
AFTER SEVERAL REPRESENTATIONS BY RESPONDENT THAT THE AGREEMENT WAS
"NULL AND VOID" OR "SUSPENDED" THE UNION ON APRIL 6 FILED AN UNFAIR
LABOR PRACTICE CHARGE ALLEGING IN ESSENCE THAT RESPONDENT HAD PATENTLY
AND OPENLY BREACHED THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE
PARTIES. THEREAFTER, ON APRIL 6 THE PROCESSING OF THE MARCH 28
GRIEVANCE WAS DISCONTINUED AFTER AN ATTEMPT TO ELEVATE IT TO STEP 3 OF
THE CONTRACTUAL GRIEVANCE PROCEDURE.
AROUND APRIL 10 STEWARD VANDERPORT AGAIN ACCOMPANIED THE NINE TO
TWELVE HOUSEKEEPING EMPLOYEES, WHO HAD PREVIOUSLY BEEN REQUESTED TO
PRODUCE MEDICAL DOCUMENTATION FOR THE MARCH 28 ABSENCES, TO MEETINGS
WITH SUPERVISOR HOPKINS. AT THESE MEETINGS THE EMPLOYEES WERE GIVEN
REPRIMANDS CONCERNING THEIR USE OF LEAVE OF MARCH 28 AND TOLD THAT IT
WAS RESPONDENT'S POSITION THAT THE CONTRACT WAS SUSPENDED. THEREAFTER,
ON APRIL 16, THE UNION INITIATED A SECOND CONTRACTUAL GRIEVANCE
CONCERNING CONTRACT VIOLATIONS RESULTING FROM THE REPRIMANDS OF
HOUSEKEEPING EMPLOYEES.
DURING A SECOND STEP MEETING CONCERNING THE APRIL 16 GRIEVANCE
CONCERNING THE REPRIMANDS, STEWARD VANDERPORT WAS AGAIN TOLD BY
SUPERVISOR HOPKINS THAT THE CONTRACT WAS SUSPENDED. HOPKINS WRITTEN
REPLY TO THE APRIL 16 GRIEVANCE STATES, IN PART:
THE FACT THAT AN ILLEGAL WORK STOPPAGE OCCURRED ON MARCH 28 STRIPS
PARTICIPANTS IN THAT
WORK STOPPAGE OF THE BENEFITS AND PROTECTION OF LAW AND OF THE
NEGOTIATED AGREEMENT
ALIKE. ACCORDINGLY, THE EMPLOYEES INVOLVED HAVE NO BENEFIT OF
PURSUING A GRIEVANCE UNDER THE
AGREEMENT CONCERNING MATTERS RESULTING FROM THE ILLEGAL WORK
STOPPAGE.
AGAIN, AT A THIRD STEP MEETING CONCERNING THE APRIL 16 GRIEVANCE,
STEWARDS MONROE AND VANDERPORT WERE TOLD BY ASSISTANT PERSONNEL CHIEF
CONNERS THAT THE UNION'S CONTRACT WAS SUSPENDED. HOSPITAL DIRECTOR
BIRDZELL ALSO ATTENDED THIS MEETING AND, ALTHOUGH TESTIFYING AT THE
HEARING, DID NOT DENY THAT THE UNION WAS TOLD THAT THE AGREEMENT WAS
SUSPENDED. THE APRIL 16 GRIEVANCE WAS REJECTED BY LETTER DATED MAY 10
WHICH STATED, " . . . THE EMPLOYEES INVOLVED HAVE NO BENEFIT OF PURSUING
A GRIEVANCE UNDER THE AGREEMENT ON MATTERS RESULTING FROM THE ILLEGAL
RANK STOPPAGE." THE LETTER ALSO RAISED THE ISSUE APPLICABILITY OF
"SECTION 7116(D) OF THE CIVIL SERVICE REFORM ACT" SINCE, AS IT
CONCLUDED, THE SAME ISSUE HAD ALREADY BEEN RAISED AS AN UNFAIR LABOR
PRACTICE.
SUBSEQUENTLY, THE MAY 10 REQUEST FOR ARBITRATION WAS DENIED ON MAY 21
BY MEDICAL CENTER DIRECTOR BIRDZELL BECAUSE "THE ISSUE DOES NOT FALL
WITHIN THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE" AND THAT THE
RAISING OF THIS SAME ISSUE WAS "PRECLUDED FROM BEING CONSIDERED UNDER
THE NEGOTIATED GRIEVANCE PROCEDURE BY PROVISIONS OF SEC. 7116(D)."
FOLLOWING THIS REJECTION, THE UNION ON AUGUST 1 FILED A SECOND UNFAIR
LABOR PRACTICE CHARGE.
RESPONDENT THEREAFTER FILED AN UNFAIR LABOR PRACTICE CHARGE AGAINST
THE UNION ALLEGING A CONCERTED WITHHOLDING OF SERVICES AS A RESULT OF
UNION LEADERS REMARKS AND POLICIES UNDER 5 U.S.C. 7116(B)(7), IN CASE
5-CO-9. THAT CHARGE WAS DISMISSED BY THE REGIONAL DIRECTOR, FEDERAL
LABOR RELATIONS AUTHORITY REGION V ON OCTOBER 19 SINCE THERE WAS, IN HIS
VIEW, "INSUFFICIENT EVIDENCE TO SHOW THAT THE UNION INITIATED,
INSTIGATED, MAINTAINED OR CONDONED SUCH A WITHHOLDING OF SERVICES."
DISCUSSION AND CONCLUSIONS
THE BASIC ISSUE IN THIS MATTER IS WHETHER RESPONDENT HAD THE RIGHT TO
UNILATERALLY SUSPEND ITS COLLECTIVE BARGAINING AGREEMENT WITH THE UNION
AND REFUSE TO PROCESS A GRIEVANCE OR TO ARBITRATE A GRIEVANCE BASED ON
ITS OWN UNILATERAL INVESTIGATION AND BELIEF THAT AN ILLEGAL WORK
STOPPAGE HAD OCCURRED AT ITS HOSPITAL ON MARCH 28. RESPONDENT CONTENDS
THAT IT GATHERED PERSUASIVE EVIDENCE THAT THE MARCH 28 ABSENCES BY
HOUSEKEEPING EMPLOYEES CONSTITUTED A STRIKE AND THAT ITS ACTIONS
IMPLEMENTED THE FEDERAL LAW THAT ANY EMPLOYEE WHO PARTICIPATES IN A
STRIKE NO LONGER ENJOYS THE PROTECTION OF THE LAW. IN THIS REGARD,
RESPONDENT ARGUES THAT FINDING AN UNFAIR LABOR PRACTICE IN THIS
SITUATION WOULD INTERFERE WITH AN AGENCY'S STATUTORY MISSION TO INSURE
CONTINUITY OF SERVICES WITHOUT BEING COMPELLED UNDER CONTRACT PROVISIONS
TO ACT ARBITRARILY AND TO PREVENT EMPLOYEES THROUGHOUT THE GOVERNMENT
FROM ANY JUSTIFICATION FOR USING STRIKING AS A METHOD OF CONTESTING
MANAGEMENT DECISIONS, OR BRINGING PRESSURE AGAINST MANAGEMENT TO CHANGE
ITS POLICIES.
WITH REGARD TO THE FORMER CONTENTION, IT IS TRUE THAT THE STATUTE
CONTEMPLATES UNDER 5 U.S.C. 7103(A)(2) AND (4) THAT AN EMPLOYEE MAY LOSE
HIS "EMPLOYEE" STATUS FOR PARTICIPATION IN A STRIKE IN VIOLATION OF 5
U.S.C. 7311. HOWEVER, READING THE WORDS OF SEC. 7103(A)(2) AND (4) EVEN
IN COMPLETE ISOLATION WOULD NOT LEAD ONE TO BELIEVE THAT AN AGENCY OR
ACTIVITY OF THE GOVERNMENT COULD TAKE ANY UNILATERAL ACTION TO STRIP
EMPLOYEES OF THEIR STATUS. THESE SECTIONS EXCLUDE FROM EMPLOYEES STATUS
"ANY PERSON WHO PARTICIPATES IN A STRIKE IN VIOLATION OF SECTION 7311 OR
ANY LABOR ORGANIZATION "WHICH PARTICIPATES IN A STRIKE AGAINST THE
GOVERNMENT." SECTION 7116(B)(7) MAKES IT AN UNFAIR LABOR PRACTICE FOR A
UNION TO CALL, OR PARTICIPATE, IN A STRIKE, WORK STOPPAGE, OR SLOWDOWN .
. . "AND THE STATUTE AND REGULATIONS PROVIDE MACHINERY FOR DETERMINATION
OF WHETHER SUCH AN UNFAIR LABOR PRACTICES OCCURRED. THERE ARE, HOWEVER,
NO PROVISIONS FOR DETERMINING WHETHER INDIVIDUAL EMPLOYEES VIOLATED THE
PROHIBITION AGAINST STRIKING. UNFORTUNATELY, THE LEGISLATIVE HISTORY OF
THE STATUTE SHEDS NO LIGHT ON THIS SUBJECT. IN ANY EVENT, SEC.
7103(A)(2) AND (4) DO NOT IN MY VIEW, PROVIDE AGENCIES WITH CARTE
BLANCHE TO UNILATERALLY STRIP EMPLOYEES OR UNIONS OF ALL TITLE VII
RIGHTS. THIS IS NOT TO SAY THAT IF AN ILLEGAL WORK STOPPAGE WERE FOUND
TO EXIST AN AGENCY COULD NOT TAKE WHATEVER DISCIPLINARY ACTION IT DEEMED
NECESSARY. HOWEVER, THE DECLARATION OF SUCH ILLEGALITY IS NOT IN THE
AGENCY'S HANDS, AND IT ACTS AT ITS PERIL IN TAKING PUNITIVE MEASURES
BASED ON ITS OWN UNILATERAL INVESTIGATIONS, PARTICULARLY WHERE SUCH
INVESTIGATIONS ARE IN DEROGATION OF AN EXISTING COLLECTIVE BARGAINING
AGREEMENT. A REVIEW OF THE LEGISLATIVE HISTORY OF THE STATUTE REVEALED
NO EVIDENCE THAT CONGRESS INTENDED TO APPLY A SCATTERGUN APPROACH IN
DISCIPLINING EMPLOYEES EVEN WHERE ILLEGAL STRIKE SITUATIONS UNDER THE
STATUTE WERE INVOLVED. FURTHER, THE ASSISTANT SECRETARY'S DECISION IN
TENNESSEE VALLEY AUTHORITY, A/SLMR NO. 509, WHERE AN ACTUAL WORK
STOPPAGE OCCURRED, REFUTES THE NOTION THAT AN AGENCY CAN ACT WITH
IMPUNITY AS INVESTIGATOR, PROSECUTOR, JUDGE AND JURY UPON THE MERE
BELIEF THAT A WORK STOPPAGE HAS OCCURRED. IN FACT, A CLOSE READING OF
THE TENNESSEE VALLEY DECISION, SUPRA INDICATES THAT THE ASSISTANT
SECRETARY MIGHT ACTUALLY HAVE DEFERRED TO A DECISION ISSUED PURSUANT TO
THE PARTIES NEGOTIATED GRIEVANCE PROCEDURE IN CASES ARISING FROM A
STRIKE WHERE THE PROCEEDINGS HAD MET THE FAIRNESS TEST SET OUR IN
SPIELBERG MANUFACTURING COMPANY, 112 NLRB 1080. FURTHERMORE, IN BUFFALO
FORGE V. UNITED STEELMAKERS OF AMERICA, AFL-CIO, 428 U.S. 397(1976),
CITED BY RESPONDENT IN ITS BRIEF, THE SUPREME COURT FACED WITH THE ISSUE
OF WHETHER A SYMPATHY STRIKE CALLED BY THE UNION VIOLATED THE NO-STRIKE
CLAUSE OF AN AGREEMENT, AND THE APPROPRIATE REMEDIES IF IT DID, ARE
SUBJECT TO THE AGREED-UPON DISPUTE-SETTLEMENT PROCEDURES OF THE
CONTRACTS AND ARE ULTIMATELY ISSUES FOR THE ARBITRATOR, STATED THE
UNMISTAKABLE POLICY OF CONGRESS STATED IN SEC. 203(D) 29 U.S.C. 173(D)
TO BE: "FINAL ADJUSTMENT BY A METHOD AGREED UPON BY THE PARTIES IS
DECLARED TO BE THE DESIRABLE METHOD FOR SETTLEMENT OF GRIEVANCE DISPUTES
ARISING OVER THE EXISTING COLLECTIVE-BARGAINING AGREEMENT." WHILE THE
PRIVATE SECTOR PRONOUNCEMENT IS NOT A CLEAR INDICATION THAT SUCH
DISPUTES SHOULD BE SETTLED BY AGREED UPON METHODS, IT IS CERTAINLY A
GUIDE. THUS, WHERE THERE IS BROAD CONTRACTUAL LANGUAGE WHICH REACHES
THE QUESTION OF WHETHER A WORK STOPPAGE WAS ILLEGAL OR WHETHER
REPRIMANDS ISSUED ARE ARBITRABLE, SUCH DISPUTES APPEAR TO BE SUBJECT TO
THE AGREED-UPON DISPUTE SETTLEMENT PROCEDURES CONTAINED IN THE AGREEMENT
AND WOULD, AS PREVIOUSLY STATED, BY ULTIMATELY AN ISSUE FOR THE
ARBITRATOR TO DECIDE. UNITED STATES STEELWORKERS OF AMERICA V. AMERICAN
MANUFACTURING CO., 363 U.S. 564(1960); UNITED STEEL WORKERS OF AMERICA
V. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574(1960); UNITED
STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL & CAR CORP., 363 U.S.
593(1960).
RESPONDENT STEADFASTLY CONTENDS THAT "THE FACT THAT AN ILLEGAL WORK
STOPPAGE OCCURRED ON MARCH 28 STRIPS PARTICIPANTS IN THAT WORK STOPPAGE
OF THE BENEFITS AND PROTECTION OF LAW AND OF THE NEGOTIATED AGREEMENTS
ALIKE." /2/ ASSUMING ARGUENDO THAT THIS THEORY IS CORRECT AND LAWFULLY
APPLIED, THE GRIEVANCES OVER RESPONDENTS ALLEGED CONTRACTUAL ACTIONS
WERE BROUGHT UNDER SECTIONS OF THE AGREEMENT ENTITLING THE UNION TO
BRING SUCH GRIEVANCES AS THE MANNER AGREED UPON BY THE PARTIES TO SETTLE
DISPUTES. BOTH PARTIES CLEARLY HAVE THE RIGHT TO INVOKE THESE PROCESSES
UNDER THE CONTRACT AND TO DENY THE UNION THE RIGHT TO DEFEND, PROTECT,
OR ENFORCE ITS RIGHTS UNDER THE NEGOTIATED AGREEMENT IS WITHOUT DOUBT AN
INTERFERENCE WITH THOSE RIGHTS.
IN ITS BRIEF, RESPONDENT MAINTAINS THAT WHERE ONE TERM OF AN
AGREEMENT HAS BEEN GIVEN UP BY THE UNION IN EXCHANGE FOR ANOTHER TERM
GIVEN UP BY MANAGEMENT, THE FAILURE OF THE UNION TO MEET ITS COMMITMENT
RELIEVES MANAGEMENT OF THE DUTY TO OBSERVE THE QUID PRO QUO AND THAT
SUCH A UNION PROMISE CAN BE IMPLIED AS A QUID PRO QUO FOR A MANAGEMENT
CONCESSION. BUFFALO FORGE CO. V. UNITED STATES STEELWORKERS, SUPRA;
GATEWAY COAL CO. V. MINE WORKERS, SUPRA; TEAMSTERS V. LUCAS FLOWER CO.,
369 U.S. 95(1962). HOWEVER, THERE IS NO SHOWING THAT WORK STOPPAGE
ALLEGED HEREIN HAD EITHER THE PURPOSE OR EFFECT OF DENYING OR EVADING AN
OBLIGATION UNDER THE CONTRACT BY THE UNION. THE SUPREME COURT HELD IN
BUFFALO FORGE FN. 10, SUPRA THAT THE CASES CITED FOR THE PROPOSITION
THAT ASSUMING "THAT A MANDATORY ARBITRATION CLAUSE IMPLIES A COMMITMENT
NOT TO ENGAGE IN SYMPATHY STRIKES," WERE WRONG. THUS, STRONGLY
INDICATING THAT THE QUID PRO QUO WOULD RUN TO THE UNION'S RIGHT NOT TO
LOSE ITS BARGAIN TO ARBITRATE MATTERS INVOLVING DISPUTES UNDER THE
CONTRACT. UNDER SUCH CIRCUMSTANCES, THE RESPONDENTS ARGUMENT SEEMS
WIDE
OF THE MARK.
IN COMMUNITY SERVICES ADMINISTRATION, FLRC NO. 76A-149, 5 FLRC
DECISION 728, 733, AN EXECUTIVE ORDER CASE, THE ASSISTANT SECRETARY
DEALT WITH THE THRESHOLD QUESTION OF ARBITRABILITY AND THE SCOPE OF
INQUIRY WAS "NARROWLY RESTRICTED TO THE ISSUES OF WHETHER THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN THE PARTIES CONTAINS AN ARBITRATION
PROVISION AND WHETHER THE LABOR DISPUTE FELL WITHIN ITS SCOPE," CITING
WITH APPROVAL THE STEELWORKERS TRILOGY, SUPRA. IN THE INSTANT MATTER,
THE MERITS OF THE DISPUTE APPEAR BEYOND THE SCOPE OF MY REVIEW. THE
INQUIRY HEREIN SEEMS LIMITED TO CONSIDERATION OF THE SCOPE AND COVERAGE
OF THE GRIEVANCE/ARBITRATION CLAUSE IN THE PARTIES' AGREEMENT AND
CONSIDERING THE SUBSTANTIVE PROVISIONS OF THE AGREEMENT SOLELY TO
DETERMINE WHETHER THE GRIEVANCE "INVOLVES A MATTER WHICH ARGUABLY
CONCERNS THE MEANING OR APPLICATION OF THE SUBSTANTIVE PROVISION(S)
BEING GRIEVED."
ARTICLE 20-1 OF THE AGREEMENT DEFINES A "GRIEVANCE" AS ANY MATTER
INVOLVING INTERPRETATION, APPLICATION, OR VIOLATION OF THIS AGREEMENT.
ARTICLE 20-3 EXPRESSLY PROVIDES THAT "THE UNION MAY FILE A GRIEVANCE
UNDER THIS PROCEDURE." ARTICLE 20-6 /3/ A AND BE DISTINGUISH BETWEEN
PROCEDURES FOR EMPLOYEE GRIEVANCES AND PROCEDURES FOR UNION GRIEVANCES.
THE UNION FILED TWO SEPARATE GRIEVANCES WITH RESPONDENT. THE FIRST
ALLEGED THAT RESPONDENT VIOLATED THE AGREEMENT BY ITS MARCH 28 ACTIONS
IN REQUIRING IMMEDIATE MEDICAL DOCUMENTATION OF ILLNESSES AND BY
INVESTIGATING THE INCIDENT WITHOUT UNION PARTICIPATION. THE SECOND
FILED ON APRIL 16 ALLEGING THAT RESPONDENT VIOLATED THE AGREEMENT BY
ISSUING REPRIMANDS ON APRIL 9 AGAINST CERTAIN EMPLOYEES ABSENT ON MARCH
28. THE AGREEMENT IN ARTICLE 38 PROVIDES THAT "GRIEVANCES OVER
ADMONISHMENTS AND REPRIMANDS MAY BE PROCESSED AS PROVIDED IN THE
NEGOTIATED GRIEVANCE PROCEDURE." THEREFORE, THESE GRIEVANCES ALLEGED IN
ACCORDANCE WITH ARTICLE 20 OF THE AGREEMENT THAT THE CONTRACT HAD BEEN
VIOLATED BY RESPONDENT'S ACTIONS AND THE COLLECTIVE-BARGAINING AGREEMENT
EXPRESSLY PROVIDES THAT EMPLOYEE REPRIMANDS CAN BE PROCESSED BY THE
UNION UNDER THE NEGOTIATED GRIEVANCE PROCEDURE. CONSIDERING THE
STEELWORKERS' TRILOGY, AND COMMUNITY SERVICES ADMINISTRATION CASES,
SUPRA THE THRESHOLD TEST APPEARS TO HAVE BEEN MET AND INQUIRY INTO
RESPONDENTS AFFIRMATIVE DEFENSE THAT A WORK STOPPAGE HAD OCCURRED IS NOT
PROPERLY BEFORE THIS FORUM, BUT RATHER, THE QUESTION BEFORE ME IS
LIMITED TO WHETHER RESPONDENTS UNILATERAL ACTIONS IN FAILING TO PROCESS
A GRIEVANCE OR TO ARBITRATE A GRIEVANCE WERE VIOLATIVE OF THE STATUTE.
SINCE THE ISSUE IN THE MATTER IS NARROWLY DRAWN, IT IS NOT NECESSARY
TO DECIDE IN THIS CASE, AS RESPONDENT'S ARGUMENT SEEMS TO SUGGEST, THAT
IN NO CIRCUMSTANCES WOULD A STRIKE BY GOVERNMENTAL EMPLOYEES IN
VIOLATION OF A COLLECTIVE BARGAINING AGREEMENT ENTITLE THE GOVERNMENT TO
RESCIND OR ABANDON AN ENTIRE CONTRACT OR TO DECLARE ITS PROMISE TO
PROCESS GRIEVANCES OR ARBITRATE A MATTER FOREVER BARRED OR TO REFUTE
CLAIMS OF THE COLLECTIVE BARGAINING AGENT. I DO CONCLUDE THAT UNDER THE
TERMS OF THE INSTANT AGREEMENT RESPONDENT WAS OBLIGATED TO CONDUCT A
JOINT INVESTIGATION OF THE EXISTING CLAIMS MADE BY THE UNION BASED ON
THE TERMS OF ARTICLE 37 AND THAT THERE ARE NO CIRCUMSTANCES ON THIS
RECORD WHICH JUSTIFY RELIEVING RESPONDENT OF ITS DUTY TO PROCESS
GRIEVANCES AND TO ARBITRATE CONSEQUENCES OF THE ALLEGED WORK STOPPAGE,
INTERTWINED AS IT WAS WITH THE UNION'S DENIAL THAT THERE WAS A WORK
STOPPAGE AND THAT RESPONDENT HAD BREACHED THE COLLECTIVE BARGAINING
AGREEMENT. IT IS, THEREFORE, FOUND THAT PROCEEDING THROUGH THE AGREED
UPON PROCEDURES OF THE CONTRACT WOULD HAVE IN NO WAY PRECLUDED
RESPONDENT FROM ADHERING TO ITS ENFORCEMENT OF THE CLEAR GOVERNMENT
POLICY REGARDING STRIKES WHICH IT CLAIMS EXISTS. SINCE SUCH AVENUES ARE
OPEN, IT IS MY VIEW, THAT ITS UNILATERAL SUSPENSION OF THE AGREEMENT
BETWEEN THE PARTIES ON MARCH 28 AND THE REFUSAL THEREAFTER TO PROCESS
THE MARCH 28 GRIEVANCE OR TO ARBITRATE THE APRIL 16 GRIEVANCE ARE INDEED
SEPARATE BREACHES OF THAT AGREEMENT AND THAT SUCH ACTIONS CONSTITUTED
VIOLATIONS OF SECTION 7116(A)(5) AND (1) OF THE STATUTE.
IN ADDITION, RESPONDENT MAINTAINS THAT SEC. 7116(D) BARS THE
PROCESSING OF THE GRIEVANCES FILED HEREIN IN TWO FORUMS. THE RECORD
DISCLOSED THAT EVEN THOUGH THE UNION FILED A CONTRACTUAL GRIEVANCE ON
MARCH 28 ASSERTING RESPONDENT'S BREACH OF THE AGREEMENT BY DEMANDING
SICK LEAVE DOCUMENTATION ON MARCH 28 IT WAS NOT CONFRONTED WITH
RESPONDENT'S ADMISSIONS OF A CLEAR UNILATERAL SUSPENSION OF THE
AGREEMENT UNTIL MARCH 29 AND 30 BY RESPONDENT'S REPRESENTATIVES CONNERS,
HOPKINS, AND HOWELL, WHO ADVISED UNION OFFICIALS THAT THE CONTRACT WAS
"SUSPENDED" AND/OR "NULL AND VOID." ACCORDINGLY, THE UNION FILED ITS
FIRST UNFAIR LABOR PRACTICE CHARGE IN THIS MATTER ON APRIL 6 ASSERTING
RESPONDENT'S BREACH OF THE AGREEMENT IN DEMANDING SICK LEAVE
DOCUMENTATION WITHOUT PRIOR COUNSELLING OF OVER 30 EMPLOYEES INVOLVED.
THE MARCH 28 GRIEVANCE CANNOT BE REGARDED AS BARRING THE CHARGE IN THE
INITIAL CASE UNDER SEC. 7116(D) SINCE THE UNION WAS NOT NOTIFIED ITS
GRIEVANCE WOULD, IN EFFECT, NOT BE CONSIDERED DUE TO THE RESPONDENT'S
UNILATERAL SUSPENSION OF THE AGREEMENT UNTIL AFTER THE GRIEVANCE WAS
FILED. SUCH A CONCLUSION IS SUPPORTED BY PRECEDENT OF THE ASSISTANT
SECRETARY IN CONSIDERING THE APPLICATION OF FORMER SECTION 19(D) OF
EXECUTIVE ORDER 11491, AS AMENDED. IN FEDERAL AVIATION ADMINISTRATION,
MUSKEGON AIR TRAFFIC CONTROL TOWER, A/SLMRNO. 534, THE ASSISTANT
SECRETARY RULED THAT A GRIEVANCE UNILATERALLY REJECTED BY THE FAA AS
"UNTIMELY AFTER IT WAS FILED DID NOT BAR UNDER 19(D) OF THE EXECUTIVE
ORDER, A SUBSEQUENT UNFAIR LABOR PRACTICE CHARGE AND COMPLAINT OVER
SIMILAR ISSUES NOT HEARD IN SUBSTANCE BY THE FAA. FURTHER, NEITHER THE
MARCH 28 GRIEVANCE NOR THE APRIL 6 CHARGE DEALT WITH THE ISSUES RAISED
IN THE UNION'S APRIL 16 CONTRACTUAL GRIEVANCE WHICH CONCERNED REPRIMANDS
OF THE AFFECTED EMPLOYEES IN THE HOUSEKEEPING DIVISION. ACCORDING TO
STEWARD VANDERPORT, THESE REPRIMANDS DID NOT BEGIN TO BE IMPLEMENTED
UNTIL APRIL 10 OR ABOUT FOUR DAYS AFTER THE CHARGE WAS FILED ON APRIL 16
APPROXIMATELY THIRTEEN DAYS AFTER THE GRIEVANCE OF MARCH 28 WAS FILED.
THUS, IT IS FACTUALLY IMPOSSIBLE FOR THE APRIL 6 CHARGE AND THE MARCH 28
GRIEVANCE TO CONSTITUTE BARS TO THE FILING OF THE APRIL 13 GRIEVANCE.
FINALLY, RESPONDENT ARGUES THAT THE UNION FAILED TO FILE A
GRIEVABILITY/ARBITRABILITY APPEAL WITH THE FEDERAL LABOR RELATIONS
AUTHORITY OR THE ASSISTANT SECRETARY OF LABOR AFTER HAVING ITS
ARBITRATION REQUEST UNILATERALLY REJECTED BY RESPONDENT ON MAY 10. THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, EFFECTIVE JANUARY
11, 1979, CONTAINS NO PROVISION AUTHORIZING THE FEDERAL LABOR RELATIONS
AUTHORITY OR THE ASSISTANT SECRETARY OF LABOR, LABOR MANAGEMENT SERVICES
ADMINISTRATION TO RESOLVE GRIEVABILITY/ARBITRABILITY DISPUTES. ALTHOUGH
THE ASSISTANT SECRETARY HAD JURISDICTION TO RESOLVE DISPUTES REGARDING
GRIEVABILITY AND ARBITRABILITY UNDER THE EXECUTIVE ORDER THIS
JURISDICTION AUTOMATICALLY EXPIRED ON THE EFFECTIVE DATE OF THE NEW
STATUTE. 5 U.S.C. 7121(A)(1) DOES REQUIRE, HOWEVER, THAT GRIEVABILITY
AND ARBITRABILITY DISPUTES BE RESOLVED WITHIN THE NEGOTIATED GRIEVANCE
PROCEDURE PROCESSES. SUCH JURISDICTION TO SETTLE GRIEVABILITY AND
ARBITRABILITY ISSUES NOW RESTS WITH ARBITRATION UNDER THE STATUTE.
EVIDENCE SUBMITTED BY RESPONDENT TO SHOW THAT THE AUTHORITY CONTINUED TO
RETAIN JURISDICTION TO HEAR GRIEVABILITY AND ARBITRABILITY APPEALS UNDER
THE STATUTE DOES NOT ESTABLISH THAT POINT. IN THIS REGARD THE EVIDENCE
THAT THE AUTHORITY CONTINUED TO RETAIN JURISDICTION TO HEAR GRIEVABILITY
AND ARBITRABILITY APPEALS UNDER THE STATUTE STATES THE EXACT OPPOSITE.
THE "DISMISSAL OF APPLICATION FOR DECISION ON GRIEVABILITY OR
ARBITRABILITY" AND ISSUED BY THE CHICAGO REGIONAL DIRECTOR STATES AS
FOLLOWS:
THE APPLICATION HAS NOT BEEN INVESTIGATED.
IT IS NOTED THAT THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (FOOTNOTE DELETED)
DOES NOT PROVIDE FOR DETERMINATION OF GRIEVABILITY OR ARBITRABILITY
BY THE FEDERAL LABOR
RELATIONS AUTHORITY.
FURTHER, THE DOCUMENT REVEALED THAT THE CHICAGO REGIONAL DIRECTOR OF
THE AUTHORITY ISSUED THIS DETERMINATION TO, AMONG OTHERS, THE ASSISTANT
GENERAL COUNSEL OF THE RESPONDENT IN WASHINGTON, D.C. A FULL TEN DAYS
PRIOR TO RESPONDENT'S UNILATERAL REFUSAL TO ARBITRATE THE UNION'S SECOND
GRIEVANCE IN THE INSTANT CASE. RESPONDENT THEREFORE HAD NOTIFICATION BY
VIRTUE OF THIS DECISION.
THE INCIDENTS WHICH OCCURRED ON AND AFTER MARCH 28 GIVING RISE TO THE
UNION'S TWO GRIEVANCES IN THIS MATTER AND THE RESPONDENT'S MAY 21
UNILATERAL REFUSAL TO ARBITRATE THE UNION'S SECOND GRIEVANCE AROSE LONG
AFTER THE EFFECTIVE DATE OF THE NEW STATUTE AND THE REMOVAL OF THE
ASSISTANT SECRETARY'S JURISDICTION TO RESOLVE GRIEVABILITY AND
ARBITRABILITY DISPUTES. CONSEQUENTLY ARTICLE 20-11 OF THE AGREEMENT,
WHICH PROVIDED FOR GRIEVABILITY AND ARBITRABILITY APPEALS TO THE
ASSISTANT SECRETARY OF LABOR AND WHICH THE RESPONDENT ASSERTS THE UNION
FAILED TO INVOKE AFTER FILING ITS GRIEVANCE, HAD BY THAT TIME, BEEN
RENDERED MEANINGLESS BY OPERATION OF LAW.
BASED ON THE FOREGOING, IT IS CONCLUDED THAT RESPONDENT'S ACTION IS
SUSPENDING ITS COLLECTIVE BARGAINING AGREEMENT WITH THE UNION AND BY
DEMANDING MEDICAL DOCUMENTATION FOR ONE DAY OF SICK LEAVE CONTRARY TO
THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES AND REFUSING TO
PROCESS A GRIEVANCE REGARDING THIS MATTER AND BY REFUSING TO ARBITRATE A
GRIEVANCE CONCERNING REPRIMANDS UNDER THE COLLECTIVE BARGAINING
AGREEMENT BECAUSE MEDICAL DOCUMENTATION WAS NOT PRESENTED VIOLATED
SECTION 7116(A)(5) AND 7116(A)(1) OF THE STATUTE.
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE VETERAN'S ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS SHALL:
1. CEASE AND DESIST FROM:
(A) SUSPENDING ITS COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
(B) REFUSING TO PROCESS GRIEVANCES UNDER ITS COLLECTIVE BARGAINING
AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO.
(C) REQUIRING MEDICAL DOCUMENTATION OF SICK LEAVE OF LESS THAN 3 DAYS
BASED ON A UNILATERAL DETERMINATION OF MISUSE OF LEAVE, CONTRARY TO THE
TERMS OF ITS COLLECTIVE BARGAINING AGREEMENT.
(D) REFUSING TO PROCESS GRIEVANCES TO ARBITRATION, BASED ON ITS
UNILATERAL DETERMINATION THAT ITS COLLECTIVE BARGAINING AGREEMENT WITH
LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, IS
SUSPENDED.
(E) CONDUCTING UNILATERAL INQUIRIES OR INVESTIGATIONS OF MATTERS
INVOLVING UNIT MEMBERS CONTRARY TO THE TERMS OF THE COLLECTIVE
BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO.
(F) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) UPON THE REQUEST OF LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, PROCESS THE GRIEVANCES RELATED TO THE SUSPENSION OF
THE COLLECTIVE BARGAINING AGREEMENT BETWEEN VETERANS ADMINISTRATION
HOSPITAL, DANVILLE, ILLINOIS AND LOCAL 1963, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND THE PROOF OF MEDICAL DOCUMENTATION OF
SICK LEAVE OF LESS THAN THREE DAYS AND ARBITRATE ALL GRIEVANCES
PERTAINING TO THE REPRIMANDS OF ALL EMPLOYEES BECAUSE OF THEIR ABSENCES
FROM WORK ON MARCH 28, 1979.
(B) POST AT THE FACILITIES OF THE VETERANS ADMINISTRATION HOSPITAL,
DANVILLE, ILLINOIS COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE MEDICAL CENTER
DIRECTOR, VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS, AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND ALL
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
ADMINISTRATOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 19, 1980
WASHINGTON, D.C.
APPENDIX A
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY EMPLOYEES OF THE DEPARTMENT OF THE
TREASURY, VETERAN'S ADMINISTRATION HOSPITAL, DANVILLE,
ILLINOIS THAT:
WE WILL NOT SUSPEND THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL
1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
WE WILL NOT REFUSE TO PROCESS GRIEVANCES UNDER THE COLLECTIVE
BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO BASED ON A UNILATERAL DETERMINATION THAT THE
AGREEMENT SHOULD BE SUSPENDED.
WE WILL NOT REQUIRE MEDICAL DOCUMENTATION OF SICK LEAVE OF LESS THAN
THREE DAYS, CONTRARY TO THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT
WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
WE WILL NOT REFUSE TO ARBITRATE GRIEVANCES INVOLVING REPRIMANDS
CONTRARY TO THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL
1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
WE WILL NOT CONDUCT UNILATERAL INVESTIGATIONS OR INQUIRIES OF MATTERS
CONCERNING UNIT MEMBERS CONTRARY TO THE TERMS OF THE COLLECTIVE
BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL, UPON REQUEST OF LOCAL 1963, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO PROCESS THE GRIEVANCES RELATED TO THE
SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN LOCAL 1963,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND THE PROOF OF
MEDICAL DOCUMENTATION OF SICK LEAVE OF LESS THAN THREE DAYS AND
ARBITRATE ALL GRIEVANCES PERTAINING TO THE REPRIMANDS OF ALL EMPLOYEES
BECAUSE OF THEIR ABSENCES FROM WORK ON MARCH 28, 1979.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . . (SIGNATURE)
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 OF COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS AND TELEPHONE NUMBER ARE: ROOM 1638, DIRKSEN FEDERAL BUILDING,
219 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS 60604, (312) 353-6746.
APPENDIX B
THE TRANSCRIPT IS HEREBY CORRECTED AS FOLLOWS:
FIRST HEARING DAY, TRANSCRIPT OF NOVEMBER 6, 1979
PAGE 4, LINE 13-- CHANGE "AND 1 AND 5" TO "(A)(1) AND (5)"
PAGE 5, LINE 1-- CHANGE "811" TO "810"
PAGE 7, LINE 18-- CHANGE "NOTWITHSTANDING" TO "THE NEXT THING"
PAGE 9, LINE 14-- CHANGE "ROOM" TO "RULE"
PAGE 9, LINE 22-- CHANGE "INSTITUTION" TO "INTERESTS"
PAGE 11, LINE 22-- CHANGE "IN THE" TO "ANY"
PAGE 12, LINE 16-- CHANGE "AND" TO "IN"
PAGE 12, LINE 20-- CHANGE "AGREEMENTS" TO "GRIEVANCES"
PAGE 13, LINE 5-- CHANGE "FAVORABLE" TO "GRIEVABLE"
PAGE 14, LINE 15-- CHANGE "THE" TO "LABOR"
PAGE 15, LINE 12-- CHANGE "CONSERTING" TO "CONCERTED"
PAGE 28, LINE 25-- CHANGE "CONFIDENT" TO "COMPETENT"
PAGE 39, LINE 17-- CHANGE "PLAN" TO "CLAIM"
PAGE 40, LINE 9-- DELETE "MR. MIKSA"
PAGE 42, LINE 18-- CHANGE "WHAT" TO "WHICH"
PAGE 46, LINE 1-- AFTER "THAT" AND "THE"
PAGE 46, LINE 2-- AFTER "PRACTICE" ADD "CHARGE"
PAGE 48, LINE 8-- CHANGE "SEE" TO "SAY" (CAN BE EITHER)
PAGE 48, LINE 11-- CHANGE "SEE" TO "SAY"
PAGE 49, LINE 15-- CHANGE "IS NOT MENTIONED" TO "DOES NOT MENTION"
PAGE 49, LINE 17-- CHANGE "ON" TO "UNDER"
PAGE 67, LINE 21-- CHANGE "I" TO "YOU"
PAGE 74, LINE 6-- CHANGE "CHARGE OF THEIR FILE" TO "CHARGES WHICH
THEY FILE"
PAGE 74, LINE 77-- CHANGE "SERVED" TO "SERVE"
PAGE 77, LINE 16-- CHANGE "RESPONSIBILITY" TO "RESPONSE"
PAGE 79, LINE 4-- CHANGE "SUBJECTION" TO "SUBSTANTIVE"
SECOND DAY - TRANSCRIPT OF NOVEMBER 7, 1979
PAGE 6, LINE 20-- CHANGE "EMPLOYEES' COUNCIL"? TO "EMPLOYEES
COUNSELLED"?
PAGE 25, LINE 22-- CHANGE "WHO" TO "IF I."
PAGE 31, LINE 8-- CHANGE "REGULATIONS" TO "RELATIONS"
PAGE 37, LINE 6-- CHANGE "THE BEAR" TO "TO BARE"
PAGE 38, LINE 23-- CHANGE "AUTHORITY" TO "AUTHORITY"
PAGE 40, LINE 1-- CHANGE "WHATSOEVER IN GOOD FAITH," TO "WHATSOEVER
THE GOOD FAITH"
PAGE 40, LINE 4-- CHANGE "UNION" TO "AUTHORITY"
PAGE 40, LINE 5-- CHANGE "ARBITRATION" TO "OPERATION"
PAGE 40, LINE 19-- CHANGE "SECTION 1706-A" TO SECTION 7106(A)"
PAGE 41, LINE 4-- CHANGE "AGRIEVANT" TO "EGREGIOUS"
PAGE 41, LINE 7-- CHANGE "REPUGED FOR" TO "REPUGNANT TO"
PAGE 42, LINE 17-- CHANGE "AUTHORITY" TO "AUTHORITY"
PAGE 45, LINE 21-- CHANGE "VA ADMINISTRATIVE CENTER" TO "VA MEDICAL
CENTER"
PAGE 45, LINE 24-- CHANGE "SAYS" TO "DOES"
PAGE 71, LINE 4-- CHANGE "LEGAL" TO "ILLEGAL"
PAGE 71, LINE 11-- CHANGE "LEGAL" TO "ILLEGAL"
PAGE 76, LINE 3-- CHANGE "1978" TO "1979"
PAGE 91, LINE 12-- CHANGE "AFFECT" TO "THE FACT"
PAGE 103, LINE 7-- CHANGE "MR. LOUIS" TO MR. LEWIS"
PAGE 112, LINE 1-- CHANGE "MR. LOUIS'" TO "MR. LEWIS'"
PAGE 136, LINE 5-- CHANGE "WHICH" TO "WITH"
PAGE 169, LINE 14-- CHANGE "BILL GALLOW" TO "BILL GALLO"
PAGE 181, LINE 8-- CHANGE "IN AFFECT" TO "IN EFFECT"
PAGE 186, LINE 19-- CHANGE "GALLOW" TO "GALLO"
PAGE 190, LINE 1-- CHANGE "STEINWALD" TO "STEINWANDEL"
PAGE 195, LINE 2-- CHANGE "PATROL" TO "CONTROL"
PAGE 209, LINE 7-- CHANGE "STEINWALD" TO "STEINWANDEL"
PAGE 195, LINE 10-- CHANGE "PROTECT" TO "PRODUCE"
SERVICE SHEET
CASE NOS. 5-CA-53, 5-CA-201
COPY OF DECISION AND ORDER
DATED MARCH 19, 1980
"DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE ELI NASH, JR.
WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
LINDA LEE
JAMES E. ADAMS AND
CLAIRE R. MORRISON, ESQUIRES
OFFICE OF THE GENERAL COUNSEL
VETERANS' ADMINISTRATION
WASHINGTON, D.C. 20420
GREGORY MIKSA AND
BRENDA ROBINSON, ESQUIRES
FEDERAL LABOR RELATIONS AUTHORITY
ROOM 1638
219 SOUTH DEARBORN STREET
CHICAGO, ILLINOIS 60604
MARC ROTH, ESQUIRE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, DC 20005
REGULAR MAIL:
MR. KENNETH T. BLAYLOCK, PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE,N.W.
WASHINGTON, DC 20005
ASSISTANT DIRECTOR
LABOR-MANAGEMENT RELATIONS
U.S. OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, N.W.
WASHINGTON, DC 20415
FEDERAL LABOR RELATIONS AUTHORITY
1900 E STREET, N.W., ROOM 7469
WASHINGTON, DC 20424
ONE COPY TO EACH REGIONAL DIRECTOR
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
1900 E STREET, N.W., ROOM 7469
WASHINGTON, DC 20424
--------------- FOOTNOTES$ ---------------
/1/ ALL DATES HEREAFTER ARE 1979, UNLESS OTHERWISE STATED.
/2/ RESPONDENT ALSO ARGUES THAT THE EMPLOYEES INVOLVED WERE CRITICAL
OR VITAL. UNITED FEDERATION OF POSTAL CLERKS V. BLOUNT, 325 F.SUPP.
879(1971) MAKES IT CLEAR THAT WHERE GOVERNMENT WORKERS ARE INVOLVED NO
DISTINCTION CAN BE DRAWN AS TO WHETHER THE WORK PERFORMED WAS
"ESSENTIAL" OR "NON-ESSENTIAL." THEREFORE, I FIND IT UNNECESSARY TO
CONSIDER THE NATURE OF THE WORK INVOLVED HEREIN.
/3/ 20-6 PROVIDES IN PERTINENT PART:
B. GRIEVANCES PRESENTED BY THE UNION.
STEP 1. GRIEVANCES SHALL BE PRESENTED BY THE UNION IN WRITING
ACCORDING TO THE CONTENT OF
ATTACHMENT 2. GRIEVANCES INVOLVING AN INDIVIDUAL OR GROUP OF
EMPLOYEES FROM ONE SERVICE SHALL
BE PRESENTED TO THE SERVICE CHIEF CONCERNED BY THE CHIEF STEWARD.