Veterans Administration, Regional Office, Buffalo, New York (Respondent) and American Federation of Government Employees, Local 3314, AFL-CIO (Complainant) 



[ v01 p207 ]
01:0207(26)CA
The decision of the Authority follows:


 1 FLRA No. 26
 
 VETERANS ADMINISTRATION
 REGIONAL OFFICE
 BUFFALO, NEW YORK
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3314, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 35-4567(CA)
 
                            DECISION AND ORDER
 
    ON JANUARY 29, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
 HIS DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT
 THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN
 THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
 ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S
 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 REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  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 TRANSITION
 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 DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, AND
 NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 35-4567(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., APRIL 27, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER, III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    JOHN C. DENOTO, ESQ.
 
    ASSISTANT DISTRICT COUNSEL
 
    OFFICE OF THE DISTRICT COUNSEL OF
 
    V.A. REGIONAL OFFICE
 
    111 WEST HURON STREET
 
    BUFFALO, N.Y.  14202
 
                            FOR THE RESPONDENT
 
    JAMES D. VINOLUS, PRESIDENT
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO, LOCAL 3314
 
    111 WEST HURON STREET
 
    BUFFALO, N.Y.  14202
 
                            FOR THE COMPLAINANT
 
    BEFORE:  WILLIAM NAIMARK
 
    ADMINISTRATIVE LAW JUDGE
 
                           CASE NO. 35-4567(CA)
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON NOVEMBER 1,
 1978 BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES
 ADMINISTRATION, U.S.  DEPARTMENT OF LABOR, NEW YORK REGION, A HEARING
 WAS HELD BEFORE THE UNDERSIGNED ON DECEMBER 7, 1978 AT BUFFALO, NEW
 YORK.
 
    THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREIN CALLED THE ORDER).  IT WAS BASED ON A COMPLAINT FILED ON MAY 2,
 1977 BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3314
 (HEREIN CALLED THE COMPLAINANT) AGAINST VETERANS ADMINISTRATION REGIONAL
 OFFICE, BUFFALO, NEW YORK (HEREIN CALLED THE RESPONDENT).  THE SAID
 COMPLAINT ALLEGED VIOLATIONS BY RESPONDENT OF SECTIONS 19(A)(1), (2),
 (5) AND (6) OF THE ORDER.  ON OCTOBER 21, 1977 THE REGIONAL
 ADMINISTRATOR DISMISSED THE COMPLAINT ON THE GROUND THAT NO REASONABLE
 BASIS THEREFOR HAD BEEN ESTABLISHED.  THE ASSISTANT SECRETARY DENIED A
 REQUEST FOR REVIEW ON JULY 28, 1978 WITH RESPECT TO THE 19(A)(2) AND (5)
 ALLEGATIONS.  HOWEVER, HE REMANDED THE CASE TO THE REGIONAL OFFICE FOR
 FURTHER INVESTIGATION WITH RESPECT TO THE 19(A)(1) AND (6) ALLEGATIONS.
 
    THE NOTICE OF HEARING IS PREDICATED ON AN ALLEGED UNILATERAL ACTION
 TAKEN BY RESPONDENT WITHOUT CONSULTING OR CONFERRING WITH COMPLAINANT.
 COMPLAINANT CONTENDS THE EMPLOYER CHANGED ITS PAST PRACTICE OF PROMOTING
 EMPLOYEES;  THAT, ON OR ABOUT MARCH 11, 1977, RESPONDENT ALTERED ITS
 PRACTICE, IN THE SELECTION OF EMPLOYEES FOR PROMOTION, BY HAVING THE
 CANDIDATES FOR THE POSITION OF GS-11 SENIOR ADJUDICATORS INTERVIEWED BY
 ONE INDIVIDUAL AND THEN SELECTED BY A DIFFERENT MANAGEMENT
 REPRESENTATIVE;  THAT THE PAST PRACTICE HAS ALWAYS BEEN FOR THE SAME
 SELECTING OFFICIAL TO ALSO INTERVIEW THE CANDIDATES;  THAT BY SO
 INSTITUTING THIS UNILATERAL CHANGE, RESPONDENT VIOLATED SECTIONS
 19(A)(1) AND (6) OF THE ORDER.
 
    RESPONDENT FILED A RESPONSE TO THE COMPLAINT, DATED MAY 31, 1977, IN
 WHICH IT DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICES.
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES.  NEITHER PARTY FILED A BRIEF WITH THE
 UNDERSIGNED.
 
    UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
 AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
 AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN, COMPLAINANT HAS BEEN, AND STILL IS,
 THE EXCLUSIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S NON SUPERVISORY
 EMPLOYEES.
 
    2.  A MERIT PROTECTION PLAN GOVERNING RESPONDENT'S UNIT EMPLOYEES
 BECAME EFFECTIVE IN MARCH 1976.  THIS PLAN WHICH WAS IN EFFECT IN MARCH
 1977, PROVIDED, UNDER PARAGRAPH 15A, AS FOLLOWS:
 
    "DIVISION CHIEFS HAVE THE SOLE AUTHORITY AND RESPONSIBILITY FOR THE
 SELECTION OF CANDIDATES
 
    TO BE PROMOTED.  WHENEVER POSSIBLE, ALL CANDIDATES REFERRED FOR
 SELECTION MUST BE INTERVIEWED
 
    BY THE SELECTING OFFICIAL OR DESIGNEE.  NO MORE THAN ONE LOWER LEVEL
 SUPERVISOR MAY BE PRESENT
 
    DURING THE INTERVIEW.  AN EMPLOYEE WHO HAS APPLIED FOR PROMOTION
 CONSIDERATION AND PLANS TO BE
 
    AWAY ON LEAVE SHOULD MAKE ARRANGEMENTS FOR THE INTERVIEW BEFORE GOING
 ON LEAVE.  EMPLOYEES WHO
 
    ARE NOT REASONABLY AVAILABLE FOR INTERVIEW WILL BE CONSIDERED ON THE
 BASIS OF INFORMATION
 
    AVAILABLE TO THE SELECTING OFFICIAL IN THE EMPLOYEE'S PERSONNEL
 FOLDER . . ."
 
    3.  ON DECEMBER 31, 1976 THE ADJUDICATION OFFICER /2/ IN THE
 RESPONDENT'S BUFFALO REGION RETIRED FROM ACTIVE DUTY.  IN JANUARY 1977,
 /3/ IGNATIUS LASPESA, WHO WAS A SECTION CHIEF, WAS APPOINTED ACTING
 ADJUDICATION OFFICER, AND ROSE COLUMBO, A SECTION CHIEF, WAS DESIGNATED
 BY RESPONDENT AS ACTING ASSISTANT ADJUDICATION OFFICER.  IN FEBRUARY,
 JAMES E. SCHULTZ WAS APPOINTED ADJUDICATION OFFICER AND HE REPORTED TO
 THE REGIONAL OFFICE IN THE BEGINNING OF THE FOLLOWING MONTH.
 
    4.  IN MARCH RESPONDENT UNDERTOOK TO PROMOTE FOUR GS-9 ADJUDICATORS
 TO GS-11 SERVICE ADJUDICATORS.  THERE WERE APPROXIMATELY TWELVE
 CANDIDATES FROM WHICH THE SELECTION OF FOUR WOULD BE MADE.  IN VIEW OF
 THE FACT THAT HE WAS NEW TO THE OFFICE, ADJUDICATION OFFICER SCHULTZ
 DECIDED THAT IF HE INTERVIEWED THE CANDIDATES, HE MIGHT BE IMPRESSED BY
 THEIR PERSONALITIES RATHER THAN THEIR TECHNICAL KNOWLEDGE.  HENCE
 SCHULTZ INSTRUCTED LASPESA TO CONDUCT THE INTERVIEWS WITH ROSE COLUMBO.
 HE ALSO STATED THAT THEY WOULD MEET WITH THE SUPERVISOR THEREAFTER AND
 DISCUSS THE CANDIDATES.  THEREAFTER, SCHULTZ WOULD SELECT THE FOUR GS-11
 SERVICE ADJUDICATORS.  SCHULTZ ALSO TOLD HIM TO ADVISE THE UNION
 REPRESENTATIVES OF THE PROPOSED PROCEDURE.
 
    5.  IN PROMOTING EMPLOYEES PRIOR TO MARCH, THE RESPONDENT HAD
 FOLLOWED THE PRACTICE OF HAVING EACH CANDIDATES INTERVIEWED BY THE
 ADJUDICATION OFFICER AND ANOTHER SUPERVISOR OFFICIAL.  FOLLOWING THE
 INTERVIEWS, THE SELECTION OF SUCCESSFUL CANDIDATES WOULD BE MADE BY THE
 DIVISION CHIEF (ADJUDICATION OFFICER).
 
    6.  ON MARCH 11 LASPESA AND COLUMBO MET WITH JAMES VINOLUS, CLAIMS
 EXAMINER AND PRESIDENT OF COMPLAINANT AND JACK NIZIALEK, GS-9
 ADJUDICATOR AND VICE-PRESIDENT OF THE UNION.  LASPESA ADVISED THE TWO
 UNION REPRESENTATIVE THAT SINCE SCHULTZ DID NOT KNOW MANY EMPLOYEES HE
 AND COLUMBO WOULD INTERVIEW THE CANDIDATES FOR THE POSITION OF GS-11
 SENIOR ADJUDICATORS, AND THAT THE NEW ADJUDICATION OFFICER WOULD SELECT
 FOUR OF THE INDIVIDUALS TO FILL THIS POSITION AFTER GETTING INPUT FROM
 THE SUPERVISORS.  BOTH VINOLUS AND NIZIALEK, WHO WERE ALSO CANDIDATES
 FOR THE PROMOTION, AGREED THIS WAS A GOOD IDEA AND ASSENTED TO THE
 PROCEDURE.  /4/
 
    7.  SUBSEQUENT TO THE DISCUSSION WITH VINOLUS AND NIZIALEK, ACTING
 ADJUDICATION OFFICER LASPESA TOGETHER WITH ACTING ASSISTANT ADJUDICATION
 OFFICER ROSE COLUMBO INTERVIEWED ALL THE CANDIDATES FOR THE GS-11
 POSITION.  IN EACH INSTANCE IT WAS EXPLAINED TO THEM THAT THE SELECTION
 WOULD BE MADE BY THE NEW ADJUDICATION OFFICER AT A LATER DATE.
 
    8.  THEREAFTER SCHULTZ DID, AFTER CONFERRING WITH THE INTERVIEWS AND
 UNIT SUPERVISORS, SELECT THE FOUR INDIVIDUALS WHO BECAME GS-11 SENIOR
 ADJUDICATORS.  /5/
 
    9.  A NEW MERIT PROMOTION PLAN, DATED FEBRUARY 16, 1978, PROVIDED
 UNDER SECTION 15 AS FOLLOWS:
 
    "DIVISION CHIEFS HAVE THE SOLE AUTHORITY AND RESPONSIBILITY FOR THE
 SELECTION OF CANDIDATES
 
    TO BE PROMOTED.  LOWER LEVEL SUPERVISORS IN THE CHAIN OF COMMAND FOR
 THE POSITION TO BE FILLED
 
    MAY BE ALLOWED TO INTERVIEW CANDIDATES AND OFFER RECOMMENDATIONS.  IN
 NO INSTANCE WILL ANY
 
    OTHER SUPERVISORY PERSONNEL HAVE ANY INVOLVEMENT WITH THE SELECTION
 PROCESS.  IN THE ABSENCE
 
    OF THE DIVISION CHIEF, THE ACTING DIVISION CHIEF WILL ASSUME THE SOLE
 AUTHORITY AND
 
    RESPONSIBILITY FOR THE SELECTION OF CANDIDATES.  ALL CANDIDATES
 REFERRED FOR SELECTION MUST BE
 
    INTERVIEWED BY THE SELECTING OFFICIAL . . ."
 
                                CONCLUSIONS
 
    IT HAS BEEN WELL ESTABLISHED THAT AN EMPLOYER MAY NOT UNILATERALLY
 CHANGE WORKING CONDITIONS WITHOUT MEETING AND CONFERRING WITH THE
 BARGAINING REPRESENTATIVE WITH RESPECT THERETO.  THUS, WHERE MANAGEMENT
 CHANGES A PAST POLICY OR PRACTICE WHICH HAS MATURED INTO A TERM AND
 CONDITION OF EMPLOYMENT, IT MUST BARGAIN WITH THE UNION CONCERNING THE
 IMPLEMENTATION THEREOF.  LOUISIANA ARMY NATIONAL GUARD, NEW ORLEANS,
 LOUISIANA, A/SLMR 1117;  DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
 SERVICE, SOUTHWEST REGION, DALLAS, TEXAS, A/SLMR 1106.
 
    IN THE CASE AT BAR COMPLAINANT INSISTS THAT RESPONDENT HAS, IN FACT,
 EFFECTED A CHANGE IN ITS PROMOTION POLICY WHEN IT DEPARTED FROM THE
 PRACTICE OF HAVING THE SAME PERSON, THE ADJUDICATION OFFICER, BOTH
 INTERVIEW THE CANDIDATES FOR PROMOTION AND ALSO MAKE THE SELECTION OF
 THOSE WHO WOULD FILL THE POSITION.  MOREOVER, IT ARGUES THAT THE CHANGE
 WAS UNILATERAL IN NATURE AND IMPLEMENTED WITHOUT CONFERRING WITH
 COMPLAINANT AS REQUIRED UNDER THE ORDER.  THE UNION CONTENDS THAT THE
 GS-9 ADJUDICATORS, WHO WERE CANDIDATES FOR PROMOTION TO GS-11 SENIOR
 ADJUDICATORS, SHOULD NOT, UNDER ESTABLISHED PRACTICE, HAVE BEEN
 INTERVIEWED BY LASPESA AND THEN SELECTED BY ADJUDICATION OFFICER
 SCHULTZ.  MOREOVER, IT URGES THAT THE PARTIES AGREED ON MARCH 11 THE
 INTERVIEWING AND SELECTING WOULD BE CONDUCTED BY LASPESA.
 
    UNDER THE 1976 MERIT PROMOTION PLAN, WHICH WAS EFFECTIVE ON MARCH 11,
 1977, IT WAS PROVIDED THAT CANDIDATES REFERRED FOR SELECTION MUST BE
 INTERVIEWED BY THE SELECTING OFFICIAL OR HIS DESIGNEE.  THIS PARTICULAR
 PLAN, BY ITS LANGUAGE, AUTHORIZES THE SELECTING OFFICIAL TO DESIGNATE
 ANOTHER INDIVIDUAL TO CONDUCT THE INTERVIEWS OF THOSE BEING CONSIDERED
 FOR PROMOTION.  NEVERTHELESS RECORD FACTS DO REFLECT THAT MANAGEMENT
 HAD, WITH THE APPROVAL OF THE BARGAINING REPRESENTATIVE, ADOPTED THE
 POLICY OF HAVING THE SAME PERSON (USUALLY THE ADJUDICATION OFFICER)
 CONDUCT THE INTERVIEW AND MAKE THE SELECTION.  ACCORDINGLY, THE DECISION
 TO SEPARATE THESE FUNCTIONS, IN RESPECT TO THE PROMOTION OF FOUR
 EMPLOYEES TO THE POSITION OF GS-11 SENIOR ADJUDICATORS, DID CONSTITUTE A
 CHANGE IN PAST PRACTICE REGARDING THE PROCEDURE WHEN PROMOTING
 EMPLOYEES.
 
    DESPITE THE FOREGOING DEVIATION FROM PAST PRACTICE, I AM NOT
 PERSUADED THAT MANAGEMENT VIOLATED ITS OBLIGATION TO MEET AND CONFER
 WITH THE UNION.  WHILE THERE MAY HAVE BEEN A MISUNDERSTANDING ON THE
 PART OF VINOLUS AND NIZIALEK AS TO THE PLANNED PROCEDURE, I AM SATISFIED
 THAT LASPESA INFORMED THEM THAT MANAGEMENT WANTED THE INTERVIEW
 CONDUCTED BY HIM AND COLUMBO AND THE SELECTION TO BE MADE BY
 ADJUDICATION OFFICER SCHULTZ.  MOREOVER, CONSENT THERETO WAS VOICED BY
 THE UNION REPRESENTATIVES DURING THE MEETING BETWEEN THE PARTIES.  /6/
 THUS, I CONCLUDE THAT BY RESPONDENT'S CONFERRING WITH COMPLAINANT AS TO
 THE PROCEDURE TO BE FOLLOWED TOGETHER, WITH AN ASSENT BY THE UNION, THE
 EMPLOYER HAD FULFILLED ITS OBLIGATION TO NEGOTIATE WITH THE BARGAINING
 REPRESENTATIVE TO THE EXTENT REQUIRE.  SEE SOCIAL SECURITY
 ADMINISTRATION, CINCINNATI DISTRICT OFFICE, CINCINNATI, OHIO, A/SLMR
 1124.
 
    NOTE IS TAKEN THAT A NEW MERIT PROMOTION PLAN BECAME EFFECTIVE IN
 1978 WHICH ELIMINATED THE TERM "DESIGNEE" FROM THE LANGUAGE IN SECTION
 15.  THEREFORE, IT MANDATED THAT THE SELECTING OFFICIAL HIMSELF
 INTERVIEW THE CANDIDATES FOR PROMOTION.  IT ALSO VESTED THE ACTING
 DIVISION CHIEF, IN THE ABSENCE OF THE DIVISION CHIEF, WITH THE SOLE
 AUTHORITY TO SELECT CANDIDATES FOR PROMOTION.  THESE NOTIFICATIONS LEND
 CREDENCE TO THE CONCLUSION THAT, DESPITE THE PAST PRACTICE RE
 PROMOTIONS, THE PARTIES DIFFERED AS TO WHETHER THE INTERVIEWER AND
 SELECTOR WERE REQUIRED TO BE ONE AND THE SAME PERSON.  ACCORDINGLY, THE
 DIFFERING INTERPRETATIONS OF THIS REQUIREMENT UNDER THE ORIGINAL PLAN
 WOULD NEGATE, IN MY OPINION, ANY BAD FAITH IN THE PART OF RESPONDENT IN
 IMPLEMENTING THE PROCEDURE SUGGESTED BY SCHULTZ.  /7/ SINCE I DO NOT
 CONCLUDE THAT THE ARRANGEMENT WAS MADE FOR LASPESA TO INTERVIEW AND
 SELECT, I FURTHER DECIDE THAT RESPONDENT DID NOT BREACH AN AGREEMENT IN
 THE REGARD SO AS TO MANIFEST BAD FAITH AS ALLEGED BY COMPLAINANT.
 
                                   ORDER
 
    IT HAVING BEEN FOUND THAT RESPONDENT ENGAGED IN NO CONDUCT VIOLATIVE
 OF SECTIONS 19(A)(1) OR (6) OF THE EXECUTIVE ORDER, IT IS HEREBY ORDERED
 THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
                              WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  22 JAN 1979
 
    WASHINGTON, D.C.
 
    WN:MJM
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS 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 THE APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR
 THE RESULT WHICH WOULD BE REACHED BY