Veterans Administration Medical Center, Bath, New York (Respondent) and American Federation of Government Employees, AFL-CIO, Local 491 (Labor Organization)
[ v04 p563 ]
04:0563(76)CA
The decision of the Authority follows:
4 FLRA No. 76
VETERANS ADMINISTRATION MEDICAL CENTER
BATH, NEW YORK
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 491
Labor Organization
Case Nos. 1-CA-112
1-CA-115
1-CA-135
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING RECOMMENDING THAT THE UNFAIR
LABOR PRACTICE COMPLAINT BE DISMISSED IN ITS ENTIRETY. THE GENERAL
COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER ACCOMPANIED BY A BRIEF.
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
CASE, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS AND BRIEF, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NOS. 1-CA-112,
1-CA-115 AND 1-CA-135 BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
JOHN C. DINOTO, ESQUIRE
FOR THE RESPONDENT
PAUL E. STANZLER, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION
THIS IS A PROCEEDING UNDER THE FEDERAL LABOR-MANAGEMENT RELATIONS
STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. SECTION 7101,
ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG.,
VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART 2411, ET
SEQ.
PURSUANT TO A NUMBER OF AMENDED CHARGES FIRST FILED ON AUGUST 1,
1979, BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
491, (HEREINAFTER CALLED THE CHARGING PARTY OR UNION), A CONSOLIDATED
COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON DECEMBER 21, 1979, BY THE
REGIONAL DIRECTOR FOR REGION I, FEDERAL LABOR RELATIONS AUTHORITY,
BOSTON, MASSACHUSETTS. THE CONSOLIDATED COMPLAINT /1/ ALLEGES THAT THE
VETERANS ADMINISTRATION MEDICAL CENTER, BATH, NEW YORK, (HEREINAFTER
CALLED THE RESPONDENT OR VA), VIOLATED SECTIONS 7116(A)(1), (A)(2),
(A)(4) AND (A)(5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS ACTIONS IN
UNILATERALLY REMOVING WITHOUT PRIOR NOTICE TO THE UNION THREE
MEMBER-AT-LARGE PHYSICIANS FROM THE CLINICAL EXECUTIVE BOARD BECAUSE OF
THEIR ACTIONS IN PARTICIPATING IN UNION ACTIVITY AND FILING AN UNFAIR
LABOR PRACTICE UNDER THE STATUTE.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON MARCH 11, 1980, IN
BATH, NEW YORK. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD,
TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES HEREIN. ALL PARTIES SUBMITTED BRIEFS WHICH HAVE
BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
THE RESPONDENT OPERATES A MEDICAL FACILITY IN BATH, NEW YORK. THE
UNION WAS CERTIFIED AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL
PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES AT THE RESPONDENT'S BATH,
NEW YORK FACILITY ON OCTOBER 20, 1977. THE PARTIES HAVE NOT REACHED
AGREEMENT ON A COLLECTIVE BARGAINING CONTRACT.
RESPONDENT'S OWN ADMINISTRATIVE MANUAL FOR THE BATH, NEW YORK MEDICAL
CENTER AND THE VETERANS ADMINISTRATION'S ADMINISTRATIVE MANUAL
APPLICABLE TO ALL VA HOSPITALS PROVIDE FOR THE ESTABLISHMENT OF A
CLINICAL EXECUTIVE BOARD (CEB). ACCORDING TO THE ABOVE MANUALS, IT IS
THE PURPOSE OF THE CEB TO ASSURE QUALITY CONTROL OF PATIENT CARE
PROGRAMS THROUGH ASSESSMENT OF ACTIVITIES, REPORTS AND FINDINGS OF ALL
CLINICAL COMMITTEES. THE FUNCTIONS OF THE CEB WHICH, ACCORDING TO THE
RECORD TESTIMONY, DEAL PRIMARILY WITH PATIENT CARE, ARE DESCRIBED IN
DETAIL IN THE RESPONDENT'S OWN ADMINISTRATIVE MANUAL AS FOLLOWS: /2/
A. DEVELOP AND MAINTAIN EFFECTIVE LIAISON BETWEEN MANAGEMENT AND THE
PROFESSIONAL STAFF.
B. ASSURE PROPER COORDINATION OF MEDICAL ACTIVITIES.
C. RECOMMEND THE ASSIGNMENT OF STAFF MEMBERS TO REVIEW PROGRAMS
INCLUDING
RECORDS. (MEDICAL CARE EVALUATION).
D. RECEIVE REPORTS FROM COMMITTEES AND CONDUCT FINAL EVALUATION OF
PROGRAM REVIEWS.
E. RECEIVE RECOMMENDATIONS AND FINDINGS WHICH REQUIRE APPROVAL
AND/OR ACTION.
F. REVIEW ACTIVITIES OF THE PROFESSIONAL ACCREDITATION FUNCTION TO
INSURE COMPLIANCE WITH
APPROPRIATE JCAH REQUIREMENTS AND RECOMMENDATIONS.
G. RECOMMENDS POLICIES AND PROCEDURES INCLUDING QUALITY CONTROL OF
PATIENT CARE PROGRAMS
TO THE CENTER DIRECTOR.
MANDATORY REVIEW OF THE CLINICAL EXECUTIVE BOARD INCLUDES:
PROFESSIONAL
ACCREDITATION; EMPLOYEE ATTITUDES; MEDICAL RECORDS; UTILIZATION
REVIEW; THERAPEUTIC
AGENTS; BLOOD SERVICES; TISSUE REVIEW; INFECTIONS CONTROL;
EDUCATION (MEDICAL
AUDIT); RESEARCH; MEDICAL LIBRARY; NURSING HOME INSPECTION; AND
VA VOLUNTARY
SERVICE. RESPECTIVE COMMITTEE CHAIRMAN WILL SUBMIT REPORTS AND/OR
MINUTES OF MEETINGS TO THE
CHAIRMAN, EXECUTIVE BOARD.
WITH RESPECT TO THE COMPOSITION OF THE CEB, RESPONDENT'S OWN MANUAL
PROVIDES THAT IT SHALL BE COMPOSED OF THE CHIEF OF STAFF, CHIEF OF
DENTAL SERVICE, CHIEF OF LABORATORY SERVICE, CHIEF OF MEDICAL SERVICE,
CHIEF OF OUTPATIENT SERVICE, CHIEF OF RADIOLOGY SERVICE, CHIEF OF
REHABILITATION MEDICINE SERVICE. THE CHAIRMAN OF THE CEB IS TO BE THE
CHIEF OF STAFF. THE VETERANS ADMINISTRATION'S MANUAL PROVIDES FOR A
SIMILAR COMPOSITION OF THE CEB WITH THE ADDITION OF ONE OR MORE MEMBERS
AT LARGE FROM THE MEDICAL STAFF. /3/
ACCORDING TO THE RECORD, SINCE AT LEAST MAY 3, 1976, AND CONTINUING
TO AUGUST 1, 1979, WHEN THE CHANGES UNDERLYING THE INSTANT PROCEEDING
OCCURRED, A NUMBER OF RANK AND FILE PHYSICIANS FROM THE MEDICAL STAFF
SERVED AS MEMBERS-AT-LARGE ON THE CEB. AMONG THE PHYSICIANS SERVING IN
SUCH CAPACITY WERE DOCTORS BIBWAY, HUSAIN, ROMANO AND RUMI. ACCORDING
TO THE RECORD, AS A GENERAL RULE, THE RANK AND FILE PHYSICIANS WERE NOT
FORMERLY APPOINTED TO THE CEB, BUT RATHER RECEIVED NOTICE OF THEIR
MEMBER-AT-LARGE POSITIONS ON THE CEB THROUGH THE MEDIUM OF THE CEB
MINUTES WHICH FROM TIME TO TIME INDICATED THEIR RESPECTIVE SELECTIONS.
IN APRIL OF 1979, DOCTOR LEON LEZER SUCCEEDED DOCTOR HAINSWORTH AS
THE CHIEF OF STAFF OF THE VETERANS ADMINISTRATION MEDICAL CENTER IN
BATH, NEW YORK. IN SUCH CAPACITY HE BECAME CHAIRMAN OF THE CEB.
ON JULY 6, 1979, TWELVE OF THE MEDICAL STAFF PHYSICIANS SIGNED AND
FILED A GRIEVANCE WITH MR. MILTON SALMON, MEDICAL DIRECTOR FOR THE
MEDICAL CENTER, WHEREIN THEY COMPLAINED ABOUT THE BEHAVIOR OF DOCTOR
LEZER. ACCORDING TO THE GRIEVANCE, DR. LEZER'S "ABRUPT MANNERISM,
THREATENING AND DEMEANING REMARKS TO PHYSICIANS AND TOTAL DICTATORIAL
ATTITUDE HAS BROUGHT A GREAT DEAL OF CONCERN AND HARASSMENT AND CONSTANT
PRESSURE UNDER WHICH WE HAVE TO WORK." THE GRIEVANCE WENT ON TO CITE
SOME SEVEN INSTANCES OF ALTERCATIONS, ETC. BETWEEN DR. LEZER AND THE
STAFF PHYSICIANS. THE MEDICAL STAFF PHYSICIANS SENT A FURTHER
MEMORANDUM TO THE MEDICAL DIRECTOR ON JULY 16, 1979, WHEREIN THEY
RESPONDED TO DR. LEZER'S MEMORANDUM OF JULY 6, WHICH APPARENTLY WAS SENT
IN ANSWER TO THEIR ORIGINAL GRIEVANCE. THE GRIEVANCE WAS NOT FILED
UNDER ANY CONTRACT GRIEVANCE PROCEDURE NOR WAS IT SPONSORED BY THE
UNION.
ACCORDING TO DOCTOR LEZER, THE CHANGE IN THE COMPOSITION OF THE CEB
WAS PROMPTED BY HIS SUCCESSFUL PRIOR EXPERIENCE IN OTHER HOSPITALS
WHEREIN THE CEB WAS COMPOSED SOLELY OF ALL THE CHIEFS OF THE VARIOUS
SERVICES. FURTHER, ACCORDING TO DOCTOR LEZER, HIS EXPERIENCE HAD
DEMONSTRATED THAT FEWER MEMBERS ON A COMMITTEE RESULTED IN MORE
EFFECTIVE AND SHORTER MEETINGS. ADDITIONALLY, HE WAS OF THE OPINION
THAT SINCE THE CEB WAS PRIMARILY INVOLVED IN PATIENT CARE, THE CHIEFS OF
NURSING AND SOCIAL WORK SERVICES WERE A NECESSARY ADDITION TO THE CEB.
UNDER THE NEW PROCEDURE, RANK AND FILE PHYSICIANS COULD MAKE THEIR
SUGGESTIONS FOR MEDICAL CARE TO THEIR RESPECTIVE CHIEFS AT THEIR
SCHEDULED MONTHLY MEETINGS. THE CHIEFS, IN TURN, WOULD THEN PRESENT
THEIR STAFF'S RECOMMENDATIONS TO THE CEB. NO SUGGESTION FROM A CHIEF OF
ANY SERVICE WOULD BE DISCUSSED BY THE CEB UNLESS IT HAD BEEN FIRST
DISCUSSED WITH THE CHIEF'S STAFF AT MONTHLY MEETINGS. FINALLY,
ACCORDING TO DOCTOR LEZER, WHOSE TESTIMONY IS SUPPORTED IN PERTINENT
PART BY MR. SALMON, HE HAD DISCUSSED THE CHANGE IN THE COMPOSITION OF
THE CEB AT AN EARLIER DATE WITH MR. SALMON AND HAD ALSO INDICATED AT AN
EARLIER CEB MEETING HIS INTENTION TO CHANGE THE COMPOSITION OF THE CEB.
DOCTOR LEZER DENIED THAT THE GRIEVANCE OF THE STAFF PHYSICIANS OR DOCTOR
ALIKE'S UNFAIR LABOR PRACTICE PLAYED ANY PART HIS DECISION TO CHANGE THE
COMPOSITION OF THE CEB.
DURING SEPTEMBER OF 1979, MR. SALMON MET WITH UNION PRESIDENT JOSEPH
AND UNION NATIONAL REPRESENTATIVE LIVERMORE. DURING THE COURSE OF THE
MEETING, MR. SALMON COMPLAINED ABOUT UNION REPRESENTATIVE REVEREND
GUNTEN AND HIS ACTIVITIES WITH RESPECT TO STIRRING UP PROBLEMS OR
GRIEVANCES IN THE EEO AREA. ACCORDING TO MR. JOSEPH, MR. SALMON STATED
THAT IF REVEREND GUNTON CONTINUED HIS ACTIVITIES IN THE AFOREMENTIONED
REGARD HE WOULD BE FIRED. MR. SALMON ACKNOWLEDGES THE CONVERSATION BUT
DENIED THAT HE THREATENED TO FIRE REVEREND GUNTON. ACCORDING TO MR.
SALMON, HE MERELY SAID THAT "THESE CONTINUING COMPLAINTS AND REPORTS
MIGHT ONE DAY HURT HIM." /4/
ALTHOUGH NOT CLEAR FROM THE RECORD, IT APPEARS THAT ON OR ABOUT JULY
16, 1979, MR. MILTON SALMON, MEDICAL DIRECTOR FOR THE MEDICAL CENTER,
AMONG OTHERS, MET WITH THE STAFF PHYSICIANS TO DISCUSS THEIR GRIEVANCE.
AT SUCH TIME, MR. SALMON DENIED RONALD GUNTON, CHIEF NEGOTIATOR, LOCAL
491, AFGE, AFL-CIO, ADMISSION TO THE MEETING. MR. GUNTON WAS ATTEMPTING
TO ATTEND THE MEETING IN HIS GENERAL CAPACITY AS THE CERTIFIED
REPRESENTATIVE OF THE PROFESSIONAL EMPLOYEES AND UNDER THE POWER OF
ATTORNEY GIVEN HIM BY DOCTOR GEORGE ALIKES, ONE OF THE STAFF PHYSICIANS
WHO WAS A SIGNATORY TO THE GRIEVANCE. SUBSEQUENTLY, BOTH MR. GUNTON AND
DOCTOR ALIKES BOTH FILED SEPARATE UNFAIR LABOR PRACTICE CHARGES ON
AUGUST 1, 1979, PREDICATED UPON MR. SALMON'S REFUSAL TO ALLOW MR. GUNTON
TO ATTEND THE MEETING. UNDER DATE OF AUGUST 2, 1979, THE REGIONAL
DIRECTOR FOR REGION I, FLRA, SENT A COPY OF THE CHARGES TO THE
RESPONDENT. THE RECORD INDICATES THAT THE RESPONDENT RECEIVED THE
REGIONAL DIRECTOR'S AUGUST 2, 1979 LETTER WITH RESPECT TO DOCTOR ALIKES'
CHARGE ON AUGUST 6, 1979.
ALTHOUGH DOCTOR ALIKES SIGNED A "STATEMENT OF SERVICE" INDICATING
THAT HE HAD SERVED BY MAIL A COPY OF HIS CHARGE AGAINST THE RESPONDENT
ON JULY 25, 1979, HE ADMITTED ON CROSS EXAMINATION THAT HE DID NOT
PERSONALLY MAIL A COPY OF THE CHARGE BUT RATHER HAD EMPOWERED HIS UNION
REPRESENTATIVE TO MAIL IT. OTHER THAN THE FOREGOING, THE RECORD IS
DEVOID OF ANY EVIDENCE INDICATING WHEN OR IF A COPY OF DOCTOR ALIKES'
CHARGE WAS SERVED ON RESPONDENT.
ON AUGUST 2, 1979, DOCTOR LEZER, CHIEF OF STAFF, WITHOUT PRIOR NOTICE
TO THE UNION, SENT A MEMORANDUM TO THE MEDICAL CENTER DIRECTOR WHEREIN,
EFFECTIVE AUGUST 1, 1979, HE CHANGED THE COMPOSITION OF THE CEB.
ACCORDING TO THE MEMORANDUM, AS OF AUGUST 1, 1979, THE CEB WOULD
HENCEFORTH BE COMPOSED OF THE CHIEF DENTAL SERVICE, CHIEF LABORATORY
SERVICE, CHIEF MEDICAL SERVICE, CHIEF NURSING SERVICE, CHIEF RADIOLOGY
SERVICE, CHIEF REHABILITATION MEDICAL SERVICE AND CHIEF OF SOCIAL WORK
SERVICE. THE MEMORANDUM THUS REMOVED THE THREE MEMBER-AT-LARGE RANK AND
FILE STAFF PHYSICIANS AND SUBSTITUTED IN PLACE THEREOF THE CHIEFS OF
NURSING AND SOCIAL WORK SERVICES.
DISCUSSION AND CONCLUSIONS
SECTION 7102 OF THE STATUTE GIVES EMPLOYEES THE "RIGHT TO FORM, JOIN,
OR ASSIST ANY LABOR ORGANIZATION, OR TO REFRAIN FROM ANY SUCH ACTIVITY,
FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL." INTERFERENCE BY AN
EMPLOYER WITH THE AFOREMENTIONED RIGHTS BY DISCRIMINATION IN CONNECTION
WITH HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT IS
VIOLATIVE OF SECTION 7116(A)(2) AND (1) OF THE STATUTE. BOTH THE ABOVE
CITED SECTIONS OF THE STATUTE CONTAIN LANGUAGE ALMOST IDENTICAL TO THAT
APPEARING IN SECTIONS 1(A) AND 19(A)(2), RESPECTIVELY, OF EXECUTIVE
ORDER 11491, AS AMENDED.
IN ADMINISTERING THE EXECUTIVE ORDER 11491, THE ASSISTANT SECRETARY
HELD EARLY ON THAT THE EXECUTIVE ORDER, UNLIKE SECTION 7 OF THE NATIONAL
LABOR RELATIONS ACT, DID NOT EXTEND PROTECTION TO EMPLOYEES WHILE THEY
WERE PARTICIPATING IN CONCERTED ACTIVITY UNRELATED TO MEMBERSHIP IN, OR
ACTIVITIES ON BEHALF OF, A UNION. NATIONAL LABOR RELATIONS BOARD,
REGION 17, NLRB, A/SLMR NO. 295. ACCORDINGLY, IN VIEW OF THE
SIMILARITIES NOTED ABOVE BETWEEN THE PERTINENT PROVISIONS OF THE STATUTE
AND THE EXECUTIVE ORDER AND IN THE ABSENCE OF ANY INDICATION IN THE
LEGISLATIVE HISTORY THAT IT WAS THE INTENT OF CONGRESS TO EXTEND THE
PROTECTION OF THE STATUTE TO OTHER THAN UNION RELATED ACTIVITIES, I FIND
THAT THE STATUTE DOES NOT OFFER ANY PROTECTION TO EMPLOYEES
PARTICIPATING IN CONCERTED ACTIVITIES UNRELATED TO MEMBERSHIP IN, OR
ACTIVITIES ON BEHALF OF, A LABOR ORGANIZATION. /5/
IN VIEW OF THE FOREGOING ANALYSIS, TO THE EXTENT THAT DOCTORS LEZER'S
DECISION TO RECONSTITUTE THE CEB AND REMOVE THREE RANK-AND-FILE STAFF
PHYSICIANS THEREFROM MIGHT HAVE BEEN BASED IN PART ON THE JULY 6, 1979,
GRIEVANCE, I FIND SUCH ACTION NOT TO BE VIOLATIVE OF SECTIONS 7116(A)(2)
AND (1) OF THE STATUTE. INASMUCH AS THE GRIEVANCE WAS NOT FILED UNDER
EITHER A CONTRACTUAL GRIEVANCE PROCEDURE OR THE AEGIS OF THE UNION, THE
"CONCERTED ACTIVITY" OF THE 12 STAFF PHYSICIANS DOES NOT FALL WITHIN THE
PROTECTION OF SECTION 7102 OF THE STATUTE. THE FACT THAT A UNION
REPRESENTATIVE APPEARED AS THE PERSONAL REPRESENTATIVE OF ONE OR TWO OF
THE PHYSICIANS AT A SUBSEQUENT MEETING ON THE GRIEVANCE, STANDING ALONE,
DOES NOT ALTER THIS CONCLUSION, PARTICULARLY IN THE ABSENCE OF ANY
EVIDENCE INDICATING THE EXISTENCE OF UNION ANIMUS AT THE TIME. THE FACT
THAT UNION ANIMUS MAY HAVE BEEN EVIDENCED DURING A CONVERSATION A MONTH
LATER WITH REGARD TO AN UNRELATED MATTER FALLS SHORT OF ESTABLISHING THE
EXISTENCE OF ANIMUS AT AN EARLIER DATE. SUCH UNION ANIMUS MIGHT WELL
HAVE BEEN THE PRODUCT OF INTERVENING EVENTS.
WITH REGARD TO THE ALLEGED VIOLATION OF SECTION 7116(A)(4) PREDICATED
UPON THE UNFAIR LABOR PRACTICE FILED BY DOCTOR ALIKES, I FIND THAT THE
GENERAL COUNSEL HAS FAILED TO SUSTAIN THE BURDEN OF PROOF IMPOSED UPON
HIM BY SECTION 2423.18 OF THE REGULATIONS. WITH THE EXCEPTION OF THE
"STATEMENT OF SERVICE" SIGNED BY DOCTOR ALIKES ON JULY 25, 1979, AND HIS
TESTIMONY THEREON, DISCUSSED INFRA, ALL THE OTHER RECORD EVIDENCE FALLS
SHORT OF ESTABLISHING THAT RESPONDENT WAS AWARE OF DOCTOR ALIKES' UNFAIR
LABOR PRACTICE CHARGE WHEN IT RECONSTITUTED THE CEB ON AUGUST 2, 1979.
THE BOSTON REGION'S COVERING LETTER WITH RESPECT TO THE UNFAIR LABOR
PRACTICE CHARGE WAS DATED AUGUST 2, 1979, AND NOT RECEIVED IN BATH, NEW
YORK, UNTIL AUGUST 6, 1979. MR. SALMON DID NOT RECALL RECEIVING A COPY
OF THE CHARGE FROM DOCTOR ALIKES. DOCTOR LEZER, WHO RESPONDED INITIALLY
TO AN INQUIRY FROM THE GENERAL COUNSEL, THAT HE GUESSED HE MAY HAVE BEEN
AWARE OF THE CHARGE, LATER STATED ON CROSS EXAMINATION THAT HE COULD NOT
RECALL WHEN HE BECAME AWARE OF THE CHARGE.
WITH RESPECT TO DOCTOR ALIKES' "STATEMENT OF SERVICE" DATED JULY 25,
1979, DOCTOR ALIKES ACKNOWLEDGED ON THE STAND THAT HE, CONTRARY TO HIS
"STATEMENT OF SERVICE", DID NOT PERSONALLY MAKE SERVICE OF THE CHARGE ON
THE RESPONDENT, BUT RATHER ON JULY 25, 1979, AUTHORIZED A UNION
REPRESENTATIVE TO MAKE THE SERVICE. THE UNION REPRESENTATIVE IS NOT
NAMED AND THE RECORD IS BARREN OF ANY EVIDENCE INDICATING THAT THE
SERVICE WAS IN FACT MADE BY THE AUTHORIZED UNION REPRESENTATIVE.
ACCORDINGLY, IN THE ABSENCE OF ANY PROBATIVE EVIDENCE ESTABLISHING
THAT THE RESPONDENT HAD KNOWLEDGE OF DOCTOR ALIKES' UNFAIR LABOR
PRACTICE CHARGE PRIOR TO MAKING THE CHANGE IN THE CEB, INSUFFICIENT
BASIS EXISTS FOR A FINDING THAT THE CHANGE IN COMPOSITION OF THE CEB WAS
BASED IN PART ON THE ACTION OF DOCTOR ALIKES IN FILING THE UNFAIR LABOR
PRACTICE CHARGE.
MOREOVER, IT SHOULD BE NOTED THAT SECTION 7116(A)(4) OF THE STATUTE
PROHIBITS DISCRIMINATION AGAINST AN EMPLOYEE BECAUSE THE EMPLOYEE HAD
FILED A COMPLAINT. INASMUCH AS DOCTOR ALIKES WAS NOT A MEMBER OF THE
CEB ON AUGUST 2, 1979, NOR SHOWN TO BE UNDER CONSIDERATION FOR SUCH AN
APPOINTMENT, A SECTION 7116(A)(4) FINDING WOULD NOT BE IN ORDER IN ANY
EVENT. HOWEVER, HAD DOCTOR ALIKES' UNFAIR LABOR PRACTICE CHARGE BEEN
FOUND TO HAVE PLAYED A PART IN THE ACTIONS OF RESPONDENT IN
RECONSTITUTING THE CEB, THEN A SECTION 7116(A)(1) FINDING MIGHT WELL BE
APPROPRIATE.
FURTHER, HAD I REACHED A CONTRARY CONCLUSION WITH RESPECT TO THE
PROTECTED NATURE OF THE JULY 6, 1979,GRIEVANCE, I WOULD NOT, UNDER ALL
THE CIRCUMSTANCES PRESENT HEREIN, HAVE FOUND A VIOLATION OF SECTION
7116(A)(2) AND (1) OF THE STATUTE. IN VIEW OF MY FINDINGS THAT THE
EVIDENCE WAS INSUFFICIENT TO ESTABLISH (1) KNOWLEDGE BY RESPONDENT OF
DOCTOR ALIKES' UNFAIR LABOR PRACTICE AND (2) THE EXISTENCE OF UNION
ANIMUS ON THE PART OF RESPONDENT ON AUGUST 2, 1979, THE SOLE BASIS FOR A
7116(A)(2) FINDING WOULD BE THE SUSPICIOUS TIMING OF THE CHANGE IN THE
CEB. SUSPICION ALONE IS NOT EVIDENCE. HAVING CAREFULLY ANALYZED DOCTOR
LEZER'S TESTIMONY, I CAN NOT AGREE WITH GENERAL COUNSEL'S CONTENTION
THAT HIS TESTIMONY WAS OF SUCH A CONTRADICTORY AND EVASIVE CHARACTER
THAT HIS ASSERTED REASONS FOR THE CHANGE IN THE CEB SHOULD BE
DISCREDITED.
WITH RESPECT TO THE 7116(A)(5) ASPECT OF THE COMPLAINT, RESPONDENT
TAKES THE POSITION THAT IT WAS NOT UNDER ANY OBLIGATION TO BARGAIN WITH
THE UNION WITH RESPECT TO THE COMPOSITION OF THE CEB. IN SUPPORT OF ITS
POSITION RESPONDENT RELIES ON THE DECISION OF THE FEDERAL LABOR
RELATIONS COUNCIL IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1963 AND VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS, FLRC NO.
78A-56, OCT. 27, 1978, WHEREIN THE COUNCIL FOUND THAT THE COMPOSITION OF
A SIMILAR, IF NOT IDENTICAL, COMMITTEE TO BE NON-NEGOTIABLE. THE
GENERAL COUNSEL TAKES THE POSITION THAT THE ABOVE CITED VA CASE IS
INAPPOSITE IN THAT SUCH CASE CONCERNED ONLY A UNION DEMAND TO BARGAIN
OVER THE COMPOSITION OF SUCH COMMITTEE AND NOT, AS HERE, THE DECISION TO
REMOVE UNIT EMPLOYEES FROM A COMMITTEE THAT THEY HAD BEEN SERVING ON.
ADDITIONALLY, COUNSEL FOR THE GENERAL COUNSEL WOULD DISTINGUISH THE TWO
CASES ON (1) THE GROUND THAT THE RESPONSIBILITIES OF THE TWO COMMITTEES
ARE DIFFERENT AND (2) THAT A PRIVILEGE ONCE GRANTED RIPENS INTO A
CONDITION OF EMPLOYMENT WHICH CAN NOT BE UNILATERALLY CHANGED BY AN
EMPLOYER.
CONTRARY TO THE CONTENTION OF THE GENERAL COUNSEL, I FIND THAT THE
GENERAL RESPONSIBILITIES AND FUNCTIONS OF THE CEB AND THE CLINICAL
ADVISORY COMMITTEE INVOLVED IN THE EARLIER VA CASE TO BE IDENTICAL, I.E.
PATIENT CARE. THE MERE FACT THAT THE CEB MAY HAVE ON OCCASION ISSUED OR
CONSIDERED ISSUING DIRECTIVES INVOLVING PERSONNEL POLICIES, PRACTICES
AND/OR WORKING CONDITIONS DOES NOT ALTER THIS CONCLUSION. AS THE
COUNCIL NOTED IN ITS EARLIER DECISION, THE IMPACT OF SUCH DIRECTIVES
WOULD BE NEGOTIABLE. IN REACHING ITS DECISION IN THE EARLIER CASE, THE
COUNCIL STRESSED THE FACT THAT THE CLINICAL ADVISORY COMMITTEE WAS
CONCERNED MAINLY WITH THE DEVELOPMENT OF PROCEDURES FOR PATIENT CARE AND
NOT PERSONNEL POLICIES OR PRACTICES OR MATTERS AFFECTING WORKING
CONDITIONS OF BARGAINING UNIT MEMBERS.
HAVING FOUND THE CEB TO BE IDENTICAL TO THE CLINICAL ADVISORY
COMMITTEE IN THE EARLIER CASE, THE SOLE REMAINING ISSUE TO BE DECIDED IS
WHETHER OR NOT RESPONDENT WAIVED ANY OF ITS RIGHTS WITH RESPECT THERETO
WHEN IT OPTED TO APPOINT A NUMBER OF RANK-AND-FILE PHYSICIANS TO THE CEB
BACK IN 1976. THE GENERAL COUNSEL, AS NOTED ABOVE, TAKES THE POSITION
THAT IT DID. IN SUPPORT OF ITS POSITION GENERAL COUNSEL CITES A NUMBER
OF ASSISTANT SECRETARY DECISIONS WHEREIN THE RELINQUISHMENT OF A RIGHT
OR THE GRANTING OF A PRIVILEGE RIPENED INTO A CONDITION OF EMPLOYMENT
WHICH COULD NOT BE UNILATERALLY CHANGED. CF. IRS, OFFICE OF THE
REGIONAL COMMISSIONER, WESTERN DISTRICT AND NTEU, A/SLMR NO. 473.
I FIND THE CASES CITED BY GENERAL COUNSEL TO BE INAPPOSITE IN THAT
THE RIGHTS RELINQUISHED AND/OR PRIVILEGES GRANTED INVOLVED ITEMS CLOSELY
RELATED TO TERMS AND CONDITIONS OF EMPLOYMENT. IN THE INSTANT CASE THE
PRIVILEGE OR RIGHT GRANTED CONCERNED MEMBERSHIP ON A COMMITTEE WHICH
DEALT PRIMARILY WITH PATIENT CARE AND NOT PERSONNEL POLICIES, PRACTICES
OR TERMS AND CONDITIONS OR EMPLOYMENT. AS NOTED BY THE COUNCIL IN THE
EARLIER VA CASE CITED SUPRA, IT IS ONLY ON THE LATTER MATTERS WHICH THE
RESPONDENT IS OBLIGATED TO BARGAIN WITH THE UNION. MOREOVER, RESPONDENT
NEVER SURRENDERED OR COMPROMISED ITS RIGHT TO UNILATERALLY DETERMINE THE
COMPOSITION OF THE CEB. THE FACT THAT IT SAW FIT TO SELECT
RANK-AND-FILE PHYSICIANS FOR MEMBERSHIP ON THE CEB DID NOT AMOUNT TO AN
ABDICATION OF ITS RIGHT.
IRRESPECTIVE OF THE FOREGOING, SECTION 7106(B)(3) OF THE STATUTE
MAKES IT CLEAR THAT TO THE EXTENT A DECISION OF MANAGEMENT ON A
NON-MANDATORY SUBJECT OF BARGAINING IMPACTS UPON UNIT EMPLOYEES,
MANAGEMENT IS OBLIGATED TO BARGAIN WITH THE UNION CONCERNING SUCH
IMPACT. HOWEVER, IT IS NOTED THAT THE OBLIGATION TO BARGAIN EXTENDS
ONLY TO "CONDITIONS OF EMPLOYMENT" WHICH ARE DEFINED IN THE STATUTE AS
"PERSONNEL POLICIES, PRACTICES, AND MATTERS . . . AFFECTING WORKING
CONDITIONS." ACCORDINGLY, TO THE EXTENT THAT THE CHANGE IN COMPOSITION
OF THE CEB IMPACTS ON THE EMPLOYEES WORKING CONDITIONS, RESPONDENT IS
OBLIGATED TO BARGAIN THEREON WITH THE UNION.
OTHER THAN A POSSIBLE LOSS OF PRESTIGE, IT CAN HARDLY BE SAID THAT
THE REMOVAL OF THE RANK-AND-FILE PHYSICIANS FROM THE CEB HAD ANY EFFECT
ON THEIR RESPECTIVE WORKING CONDITIONS. THE CEB DEALT IN THE MAIN WITH
PATIENT CARE AND NOT WORKING CONDITIONS OF THE UNIT EMPLOYEES.
ACCORDINGLY, THE PHYSICIANS ONLY LOST A VOTE ON PATIENT CARE NOT WORKING
CONDITIONS.
IN VIEW OF THE FOREGOING, I FIND THAT THE RESPONDENT WAS NOT
OBLIGATED TO BARGAIN WITH THE UNION CONCERNING EITHER ITS ORIGINAL
DECISION ON THE COMPOSITION OF THE CEB OR THE IMPACT THEREOF.
HAVING FOUND AND CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE THE
STATUTE AS ALLEGED, IT IS RECOMMENDED THAT THE FEDERAL LABOR RELATIONS
AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R. 2423.29(C).
ORDER
IT IS HEREBY ORDERED THAT THE CONSOLIDATED COMPLAINT IN CASE NOS.
1-CA-112, 115, 135 BE, AND HEREBY IS DISMISSED.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 21, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ AT THE OPENING OF THE HEARING, THE GENERAL COUNSEL, ON THE BASIS
OF A PREHEARING SETTLEMENT AGREEMENT, WITHDREW THE ALLEGATIONS OF THE
CONSOLIDATED COMPLAINT WHICH WERE PREDICATED UPON THE CHARGES IN CASE
NOS. 1-CA-112 AND 1-CA-115, LEAVING ONLY THE ALLEGATIONS DESCRIBED
INFRA. ALSO, AT THE COMMENCEMENT OF THE HEARING, IN THE ABSENCE OF ANY
OBJECTION, GENERAL COUNSEL WAS ALLOWED TO AMEND THE COMPLAINT AND
INCLUDE A 7116(A)(5) ALLEGATION. ALTHOUGH THE GENERAL COUNSEL DID
PRESENT EVIDENCE DURING THE HEARING CONCERNING A NUMBER OF THE WITHDRAWN
ALLEGATIONS, SUCH PRESENTATION WAS FOR THE SOLE PURPOSE OF ESTABLISHING
UNION ANIMUS ON THE PART OF THE RESPONDENT AND NOT VIOLATIONS OF THE
STATUTE. ACCORDINGLY, NO UNFAIR LABOR PRACTICE FINDINGS WILL BE MADE
HEREIN WITH RESPECT TO ANY ALLEGED THREATS MADE BY MANAGEMENT
REPRESENTATIVES TO UNION AGENTS OR REPRESENTATIVES.
/2/ THE VETERANS ADMINISTRATION'S ADMINISTRATIVE MANUAL CONTAINS
SIMILAR, IF NOT IDENTICAL LANGUAGE.
/3/ THE VETERANS ADMINISTRATION'S SUGGESTED COMPOSITION OF THE CEB
COMPORTS WITH THE JOINT COMMISSION ON ACCREDITATION OF HOSPITAL
GUIDELINES OF 1971, WHICH ALSO PROVIDES FOR ONE OR MORE AT LARGE MEMBERS
FROM THE MEDICAL STAFF.
/4/ AS NOTED SUPRA IN FOOTNOTE 1, EVIDENCE OF THE AFOREMENTIONED
CONVERSATION WAS PRESENTED SOLELY TO ESTABLISH UNION ANIMUS AND NOT A
VIOLATION OF THE STATUTE.
/5/ THE EARLY HOUSE BILLS, PARTICULARLY, H.R. 1589, H.R. 9094, H.R.
11280 DID CONTAIN PROVISIONS WHICH GAVE EMPLOYEES THE RIGHT TO "ENGAGE
IN OTHER LAWFUL ACTIVITIES (IN ADDITION TO UNION RELATED ACTIVITIES) FOR
THE PURPOSE OF ESTABLISHING, MAINTAINING AND IMPROVING CONDITIONS OF
EMPLOYMENT." THE SENATE BILL, S. 2640, HOWEVER, CONTAINED LANGUAGE
IDENTICAL TO THAT CONTAINED IN THE EXECUTIVE ORDER. THE SENATE BILL'S
LANGUAGE PREVAILED AND WAS EVENTUALLY ADOPTED BY BOTH HOUSES WITHOUT
DISCUSSION.