Veterans Administration Center, Leavenworth, Kansas (Respondent) and Priscilla M. Clouse (Complainant) 



[ v01 p978 ]
01:0978(111)CA
The decision of the Authority follows:


 1 FLRA No. 111
 
 VETERANS ADMINISTRATION CENTER,
 LEAVENWORTH, KANSAS
 Respondent
 
 and
 
 PRISCILLA M. CLOUSE
 Complainant
 
                                            Assistant Secretary
                                            Case No. 60-5847(CA)
 
                            DECISION AND ORDER
 
    ON FEBRUARY 26, 1979, ADMINISTRATIVE LAW JUDGE JAMES J. BUTLER ISSUED
 HIS RECOMMENDED 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.  THEREAFTER, THE COMPLAINANT FILED
 EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER AND THE RESPONDENT FILED AN ANSWER IN BRIEF.
 
    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 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, INCLUDING THIS COMPLAINANT'S EXCEPTIONS AND THE RESPONDENT'S
 ANSWERING BRIEF, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS ONLY TO THE EXTENT
 CONSISTENT HEREWITH.  /1/
 
    CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY FINDS THAT
 COMPLAINANT CLOUSE'S PARTICIPATION WITH OTHER EMPLOYEES IN A "GROUP
 GRIEVANCE" WHICH WAS PREPARED AND PRESENTED TO THE ACTIVITY BY THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES IS PROTECTED ACTIVITY UNDER
 SECTION 1(A) OF THE EXECUTIVE ORDER, WHICH GUARANTEES THE RIGHT "WITHOUT
 FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR
 ORGANIZATION . . ." THE GRIEVANCE HEREIN WAS PROCESSED BY CLOUSE, AND
 OTHER EMPLOYEE REPRESENTATIVES, IN CONJUNCTION WITH AFGE LOCAL 85, THE
 EXCLUSIVE REPRESENTATIVE OF SOME OF THE EMPLOYEES.  AFTER THE GRIEVANCE
 WAS REDUCED TO WRITING BY A VICE PRESIDENT OF THE UNION, IT WAS
 PRESENTED TO THE RESPONDENT BY THE AFGE, "AS THE REPRESENTATIVE OF THIS
 GROUP GRIEVANCE," AND BY THE COMPLAINANT AND TWO OTHER EMPLOYEE
 REPRESENTATIVES.  THUS, IN THE AUTHORITY'S VIEW, CLOUSE CLEARLY WAS
 ASSISTING A LABOR ORGANIZATION, THE AFGE, BY HER PARTICIPATION IN THIS
 MATTER CONCERNING EMPLOYEE WORKING CONDITIONS.
 
    SUBSEQUENT TO CLOUSE'S INVOLVEMENT IN THIS PROTECTED ACTIVITY, SHE
 RECEIVED A WRITTEN COUNSELING WHICH BECAME PART OF HER RECORD, AND WAS
 TRANSFERRED TO ANOTHER WARD.  THE ACTIVITY'S EXPRESSED REASON FOR THESE
 SEVERE PENALTIES WAS UNREST ON THE WARD EVIDENCED BY CLOUSE'S FAILURE TO
 ACKNOWLEDGE A QUESTION OF A NURSE-TRAINEE.  IT IS SIGNIFICANT, IN THE
 AUTHORITY'S VIEW, THAT THESE SEVERE PENALTIES WERE ADMITTEDLY IN
 RESPONSE TO THE FIRST SPECIFIC INCIDENT WHICH EVIDENCED THE "UNREST"
 THAT WAS THE SUBJECT OF THE GROUP GRIEVANCE.  MOREOVER, THE CHIEF OF
 NURSING SERVICES, WHO DETERMINED THE PENALTIES, TESTIFIED THAT CLOUSE
 WAS AN "EXCELLENT" NURSE, AND THERE IS NO EVIDENCE OF ANY OTHER CONDUCT
 BY CLOUSE WHICH WOULD JUSTIFY SUCH HARSH PENALTIES.
 
    THE SEVERITY OF THE PENALTIES, THEIR TIMING, AND THEIR CONNECTION
 WITH THE SUBJECT OF THE GRIEVANCE LEADS THE AUTHORITY TO CONCLUDE THAT
 THE MISCONDUCT WAS A PRETEXT, OR AT MOST ONLY AN ADDITIONAL REASON FOR
 PUNISHMENT, WHICH WAS MOTIVATED AT LEAST IN PART BY HER PROTECTED
 ACTIVITY.  WHEN ANTI-UNION CONSIDERATIONS HAVE THUS BEEN SHOWN TO HAVE
 PLAYED AT LEAST A PART, A SECTION 19(A)(2) VIOLATION WILL BE FOUND EVEN
 WHERE A LEGITIMATE BASIS FOR MANAGEMENT ACTION EXISTS.  HEW, SOCIAL
 SECURITY ADMINISTRATION, SAN JUAN, PUERTO RICO, A/SLMR 1127(1978).  THE
 AUTHORITY CONCLUDES, THEREFORE, THAT THE PUNISHMENT OF CLOUSE, BASED AT
 LEAST IN PART ON HER PARTICIPATION IN PROTECTED ACTIVITY, VIOLATED
 SECTION 19(A)(2) AND (1) OF THE ORDER.
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE TRANSITION 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 VETERANS ADMINISTRATION CENTER, LEAVENWORTH, KANSAS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY GIVING WRITTEN
 COUNSELINGS OR TRANSFERS TO PRISCILLA M. CLOUSE, OR ANY OTHER EMPLOYEE,
 WHERE SUCH PUNISHMENT IS MOTIVATED IN WHOLE OR IN PART IN RETALIATION
 FOR ASSISTING A LABOR ORGANIZATION IN THE PRESENTATION OF A GRIEVANCE.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) REMOVE OR EXPUNGE FROM ITS FILES THE WRITTEN COUNSELING GIVEN
 PRISCILLA M. CLOUSE ON JANUARY 5, 1978, OR ANY REFERENCE THERETO, AND
 SUBMIT TO PRISCILLA M. CLOUSE A WRITTEN ACKNOWLEDGEMENT OF THAT ACTION.
 
    (B) OFFER PRISCILLA M. CLOUSE THE OPPORTUNITY TO RETURN TO HER PRIOR
 POSITION ON WARD 5-W OF THE VETERANS ADMINISTRATION CENTER, LEAVENWORTH,
 KANSAS, IF SHE SO CHOOSES.
 
    (C) POST AT THE VETERANS ADMINISTRATION CENTER, LEAVENWORTH, KANSAS,
 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 DIRECTOR OF THE VETERANS ADMINISTRATION
 CENTER, LEAVENWORTH, KANSAS, AND THEY SHALL BE POSTED AND MAINTAINED BY
 HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
 ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE
 CENTER DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
 ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (D) 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.
 
    IT IS FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT IN ASSISTANT
 SECRETARY CASE NO. 60-5847(CA) FOUND NOT TO BE VIOLATIVE OF THE
 EXECUTIVE ORDER BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 20, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                   FEDERAL LABOR RELATIONS AUTHORITY /2/
 
                                 APPENDIX
 
         NOTICE TO ALL EMPLOYEES PURSUANT TO 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 DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY GIVING
 WRITTEN COUNSELINGS OR TRANSFERS TO PRISCILLA M. CLOUSE, OR ANY OTHER
 EMPLOYEE, WHERE SUCH PUNISHMENT IS MOTIVATED IN WHOLE OR IN PART IN
 RETALIATION FOR ASSISTING A LABOR ORGANIZATION IN THE PRESENTATION OF A
 GRIEVANCE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL REMOVE OR EXPUNGE FROM OUR FILES THE WRITTEN COUNSELING GIVEN
 PRISCILLA M. CLOUSE ON JANUARY 5, 1978, AND ALL REFERENCES THERETO, AND
 SUBMIT TO PRISCILLA M. CLOUSE A WRITTEN ACKNOWLEDGEMENT OF THAT ACTION.
 
    WE WILL OFFER PRISCILLA M. CLOUSE THE OPPORTUNITY TO RETURN TO HER
 PRIOR POSITION ON WARD-5 OF THE VETERANS ADMINISTRATION CENTER,
 LEAVENWORTH, KANSAS, IF SHE SO CHOOSES.
 
                                  . . .
 
                           (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 OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
 CITY CENTER SQUARE, 1100 MAIN STREET, SUITE 680, KANSAS CITY, MO. 64105,
 AND WHOSE TELEPHONE NUMBER IS:  (816) 374-2199.
 
    DIANA M. BLOSS
 
    STAFF ATTORNEY AND
 
    DONALD W. MIRSCH
 
    LABOR RELATIONS SPECIALIST
 
    VETERANS ADMINISTRATION
 
    CENTRAL OFFICE
 
    810 VERMONT AVENUE, N.W.
 
    WASHINGTON, D.C.  20420
 
                            FOR THE RESPONDENT
 
    WILLIAM C. KIRBY
 
    NATIONAL REPRESENTATIVE
 
    AMERICAN FEDERATION OF
 
    GOVERNMENT EMPLOYEES
 
    3625 MEYER BOULEVARD
 
    KANSAS CITY, MISSOURI 64132
 
                            FOR THE COMPLAINANT
 
    BEFORE JAMES J. BUTLER
 
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE AS THE RESULT OF A COMPLAINT FILED BY MS. PRISCILLA
 CLOUSE ON OCTOBER 30, 1977, ALLEGING THAT MANAGEMENT AT VETERANS
 ADMINISTRATION MEDICAL CENTER, LEAVENWORTH, KANSAS (VAMC) VIOLATED
 SECTIONS 19(A)(1) AND (2) OF EXECUTIVE ORDER NO. 11491, AS AMENDED
 (HEREIN CALLED "THE ORDER").  COMPLAINANT ALLEGES THAT SHE WAS
 COUNSELLED AND TRANSFERRED FROM ONE WARD TO ANOTHER AT VAMC AS A RESULT
 OF HER PARTICIPATION IN A GROUP GRIEVANCE, AND THAT SUCH TRANSFER
 CONSTITUTED AN ACT OF REPRISAL FOR UNION ACTIVITY IN VIOLATION OF
 SECTION 19(A)(2) OF THE ORDER.  COMPLAINANT FURTHER ALLEGES THAT SEVERAL
 STATEMENTS WERE MADE BY MANAGEMENT THAT TENDED TO SHOW ANTI-UNION ANIMUS
 AND WOULD RESTRAIN OR COERCE EMPLOYEES OF VAMC IN THEIR EXERCISE OF
 RIGHTS ASSURED UNDER THE ORDER IN VIOLATION OF SECTION 19(A)(1) OF THE
 ORDER.
 
    ISSUES
 
    THERE ARE FOUR ISSUES PRESENTED.  THEY ARE:
 
    I.  WHETHER MANAGEMENT AT VAMC COUNSELLED AND TRANSFERRED COMPLAINANT
 BECAUSE OF HER PARTICIPATION IN A GROUP GRIEVANCE;
 
    II.  IF SHE WAS COUNSELLED AND TRANSFERRED FOR THE REASON SHE
 ASSIGNS, WHETHER SUCH COUNSEL AND TRANSFER CONSTITUTES A VIOLATION OF
 SECTION 19(A)(1) OR E2) OF THE ORDER;
 
    III.  WHETHER MANAGEMENT AT VAMC ACTED DISCRIMINATORILY AGAINST
 COMPLAINANT BECAUSE OF HER UNION ACTIVITY IN VIOLATION OF SECTION
 19(A)(2) OF THE ORDER;  AND,
 
    IV.  WHETHER STATEMENTS OR CONDUCT OF SAID MANAGEMENT WERE SUCH AS
 WOULD TEND TO INTERFERE WITH, RESTRAIN OR COERCE AN EMPLOYEE IN THE
 EXERCISE OF RIGHTS ASSURED BY THE ORDER IN VIOLATION OF SECTION 19(A)(1)
 THEREOF.
 
    MANAGEMENT'S POSITION
 
    IT IS THE CONTENTION OF MANAGEMENT THAT:
 
    I.  IT DID NOT COUNSEL AND TRANSFER COMPLAINANT BECAUSE OF HER
 PARTICIPATION IN ANY GROUP GRIEVANCE;
 
    II.  EVEN IF IT HAD COUNSELLED AND TRANSFERRED COMPLAINANT FOR THE
 REASON SHE STATES, SUCH ACTION IN ITSELF WOULD NOT BE VIOLATIVE OF
 SECTION 19(A)(1) OF THE ORDER;
 
    III.  WHERE THERE IS NO SHOWING OF EMPLOYEE PARTICIPATION IN ACTIVITY
 PROTECTED BY THE ORDER, NO SHOWING OF MANAGEMENT'S KNOWLEDGE OF ANY
 UNION ACTIVITY CONDUCTED BY THE EMPLOYEE AND NO SHOWING OF ANTI-UNION
 ANIMUS ON THE PART OF MANAGEMENT, IT CANNOT BE CONCLUDED THAT AN ACTION
 OF MANAGEMENT WAS DISCRIMINATORILY BASED ON THE EMPLOYEE'S UNION
 ACTIVITY IN VIOLATION OF SECTION 19(A)(2) OF THE ORDER;  AND,
 
    IV.  COMPLAINANT HAS SHOWN NO STATEMENTS OR CONDUCT ATTRIBUTABLE TO
 MANAGEMENT WHICH WOULD TEND TO INTERFERE WITH, RESTRAIN OR COERCE AN
 EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER.
 
    STATEMENT OF FACTS
 
    AT ALL TIMES RELEVANT TO THE INSTANT PROCEEDING, THE NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES (NFFE), LOCAL 1684, HELD EXCLUSIVE
 RECOGNITION FOR A UNIT OF ALL PROFESSIONAL EMPLOYEES AT THE ACTIVITY
 INVOLVED HERE.  COMPLAINANT, A REGISTERED NURSE, WAS A MEMBER OF THIS
 UNION.  DURING THE SAME PERIOD THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES (AFGE), LOCAL 85 HELD EXCLUSIVE RECOGNITION FOR A UNIT OF
 NONPROFESSIONAL EMPLOYEES AT THE ACTIVITY.
 
    IMMEDIATELY PRIOR TO JANUARY 15, 1978, COMPLAINANT WORKED UNDER THE
 DIRECT SUPERVISION OF MRS. MARIE CHRISTOFFERSON, HEAD NURSE FOR WARD 5-W
 WHERE COMPLAINT WAS THEN ASSIGNED.  THE LINE OF SUPERVISION FROM MRS.
 CHRISTOFFERSON WAS TO MS. CHARLOTTE DAVIS, ASSISTANT CHIEF OF NURSING
 AND TO MRS. HELEN MERRIAM, CHIEF OF NURSING SERVICES.  ALSO, AS WILL BE
 SEEN, A NURSE INSTRUCTOR, MRS. DORIS RIGBY, HAD LIMITED AUTHORITY OVER
 REGISTERED NURSES WHERE MATTERS OF TRAINING WERE INVOLVED.
 
    DURING THE MONTHS OF AUGUST AND SEPTEMBER, 1977, STAFF MORALE ON WARD
 5-W HAD DETERIORATED TO THE POINT THAT SEVERAL NURSES FOUND IT NECESSARY
 TO MEET WITH MRS.  CHRISTOFFERSON TO DISCUSS THE WARD PROBLEMS AS THEY
 PERCEIVED THEM.  IT APPEARS THAT THERE WAS LITTLE OR NO RESOLUTION OF
 THE SITUATION AT THIS MEETING.
 
    ON OR ABOUT OCTOBER 27, 1977, A WRITTEN COMPILATION OF REPORTED
 INCIDENTS, STATEMENTS OF CONCERN AND DISSATISFACTION WERE PRESENTED TO
 MS. DAVIS BY EDA PULCHNEY, FIRST VICE PRESIDENT OF AFGE "AS THE
 REPRESENTATIVE FOR THIS GROUP GRIEVANCE," BY THE COMPLAINANT ON BEHALF
 OF THE REGISTERED NURSES, BY DORIS TAYLOR ON BEHALF OF THE LICENSED
 PRACTICAL NURSES AND BY RITA ROLLINS ON BEHALF OF THE NURSE ASSISTANTS.
 
    IT IS INTERESTING TO NOTE THAT WHILE EVERYONE SEEMED TO BE AWARE OF
 THE FACT THAT AFGE COULD NOT REPRESENT THE PROFESSIONAL REGISTERED
 NURSES IN ANY FORMAL UNION CAPACITY, NO MEMBER OF THE PROFESSIONAL
 EMPLOYEE GROUP EVER SOUGHT THE AID OF THE NFFE.  IT WAS MANAGEMENT WHO
 FINALLY BROUGHT THE PROFESSIONAL UNION INTO THE CONTROVERSY SO THAT THE
 UNION WOULD BE PROPERLY REPRESENTED IN THE MATTER.  ALTHOUGH IT IS NOT
 CLEAR HOW COMPLAINANT WAS DESIGNATED AS THE REPRESENTATIVE OF THE
 REGISTERED NURSES ASSIGNED TO WARD 5-W, IT IS VIVIDLY CLEAR THAT
 COMPLAINANT WAS NEVER DESIGNATED AS, NOR DID SHE HOLD HERSELF OUT TO BE,
 A REPRESENTATIVE OF HER UNION.
 
    IT IS EVEN MORE INTERESTING TO NOTE THAT AT THE TIME THE GRIEVANCE
 GROUP PRESENTED THEIR COMPLAINTS, AFGE HAD NO CONTRACT WITH THE
 ACTIVITY.  QUITE OBVIOUSLY, THEREFORE, THE GRIEVANCE COULD NOT
 CONTEMPLATE THE INTERPRETATION OR APPLICATION OF THE TERMS AND
 PROVISIONS OF ANY AGREEMENT BETWEEN THE ACTIVITY AND AFGE.  COMPLAINANT
 ADMITTED THAT HER COMPLAINTS ON HER OWN BEHALF AND OTHERS, WHATEVER HER
 REPRESENTATIONAL STATUS MAY HAVE BEEN, UNION OR PROFESSIONAL, EITHER OR
 BOTH, WERE COMPLETELY UNRELATED TO ANY INTERPRETATION OR APPLICATION OF
 THE AGREEMENT BETWEEN HER UNION, NFFE, AND THE ACTIVITY.
 
    TURNING NOW TO THE PROBLEMS ON WARD 5-W WHICH GAVE RISE TO THE
 GRIEVANCE, IT APPEARS FROM THE RECORD THAT THE COMPLAINTS CENTERED
 AROUND MRS. CHRISTOFFERSON IN HER PATIENT CARE DECISIONS AND SUPERVISION
 OF PERSONNEL.  AFTER MS. DAVIS WAS PRESENTED WITH THE COMPILATION OF
 WRITTEN COMPLAINTS WHICH AFGE HAD DRAFTED FOR THE GROUP INVOLVED, SHE
 TURNED, IN HER IMMEDIATE SUPERVISOR'S ABSENCE, TO ROBERT WESTFALL,
 PERSONNEL OFFICER, FOR ASSISTANCE.  MR. WESTFALL EXPLAINED AT THE
 HEARING ON THE ALLEGED UNFAIR LABOR PRACTICE THAT INASMUCH AS MEMBERS OF
 BOTH BARGAINING UNITS WERE INCLUDED, AND NO MATTERS OF CONTRACT
 INTERPRETATION OR APPLICATION WERE AT ISSUE, THE PRESENTATION OF
 COMPLAINTS WAS NOT A "GRIEVANCE" UNDER THE TERMS OF THE ONLY NEGOTIATED
 AGREEMENT THEN IN EFFECT, BUT RATHER A WRITTEN INDICATION OF EMPLOYEE
 DISSATISFACTION IN ONE AREA OF THE AGENCY'S FACILITY.  MR. WESTFALL DID,
 HOWEVER, CONSIDER THE MATTER AS AN "AGENCY GRIEVANCE" EVEN THOUGH IT DID
 NOT EXACTLY CONFORM WITH PAST PROCEDURES.  THE GRIEVANTS WERE THEN
 ADVISED THAT THEY WOULD BE FURNISHED WITH A WRITTEN RESPONSE TO THEIR
 CONCERNS.  THEY WERE ALSO TOLD THAT NO DISCIPLINARY ACTION WOULD FOLLOW
 AS A RESULT OF THEIR COMPLAINTS.  THEREAFTER, MRS. MERRIMAN PREPARED A
 FORMAL RESPONSE WHICH SHE CHARACTERIZED AS A "SYNTHESIS" OF THE
 ALLEGATIONS.  MRS. MERRIMAN TESTIFIED THAT SHE FOUND THE COMPLAINTS TO
 BE ONLY GENERAL IN NATURE AND NOT ALTOGETHER FACTUAL AND THAT
 IDENTIFICATION OF SPECIFIC PROBLEMS WAS DIFFICULT.
 
    ON NOVEMBER 22, 1978, THE RESPONSE PROMISED WAS SUBMITTED TO THE
 GRIEVANTS THROUGH BENNY MALINSON, AN OFFICER OF AFGE, AND LESLIE
 SAMPSON, A REGISTERED NURSE IN SURGICAL INTENSIVE CARE WHO WAS ACCORDING
 TO MR. WESTFALL'S PERSONNEL RECORDS AND EXPERIENCE, THE ONLY DESIGNATED
 REPRESENTATIVE OF THE PROFESSIONAL UNION, NFFE.  A BRIEF MEETING WAS
 THEN HELD AND THE REPRESENTATIVES THEREAFTER LEFT TO MEET WITH MEMBERS
 OF THE GRIEVANCE GROUP ON DUTY.  AFTER A SHORT TIME MR. MALINSON AND MS.
 SAMPSON RETURNED TO MRS. MERRIMAN'S OFFICE AND ADVISED HER THAT THE
 EMPLOYEES CONSULTED WERE GOING TO "DROP" THE GRIEVANCE PROCEEDING.
 MANAGEMENT, HOWEVER, IN RESPONSE TO THE REQUEST OF GRIEVANTS TRANSFERRED
 ONE ERIC HANSON AND COUNSELLED MRS.  CHRISTOFFERSON WHO WAS TO RETAIN
 HER POSITION AS HEAD NURSE, WARD 5-W.
 
    THE UNREST ON WARD 5-W CONTINUED, HOWEVER, EVEN WHILE MR.S
 CHRISTOFFERSON WAS BEING COUNSELLED.  THERE WAS, ACCORDING TO MRS.
 MERRIMAN'S TESTIMONY, A DIVISION OF STAFF AND "TAKING SIDES." MRS.
 MERRIMAN FELT THAT "(T)HESE KINDS OF BEHAVIOR RESULT IN EATING UP TIME
 (AND) STAFF DISSATISFACTION" WHICH JEOPARDIZES PATIENT CARE.  MRS.
 MERRIMAN STATED THAT ACTION OF SOME KIND ON HER PART WAS REQUIRED "IN
 ORDER TO RESOLVE THE KINDS OF ATMOSPHERE THAT WERE ON THAT (WARD 5-W)
 UNIT." MRS. MERRIMAN STEADFASTLY INSISTED, HOWEVER, THAT SHE WAS UNAWARE
 OF THE EXACT NATURE AND CAUSE OF THE UNREST ON THE WARD PRIOR TO THE
 FOLLOWING DESCRIBED INCIDENT WHICH SHE ASSIGNS AS THE PRIMARY REASON WHY
 COMPLAINANT WAS GIVEN A WRITTEN LETTER OF COUNSELLING AND TRANSFERRED.
 
    ON JANUARY 5, 1978, AND AFTER SHE HAD BECOME AWARE OF THE CONTINUING
 UNHAPPY SITUATION ON WARD 5-W, MRS. MERRIMAN WAS CONSULTED BY MRS. DORIS
 RIGBY, A MASTERS DEGREE NURSE INSTRUCTOR, CONCERNING COMPLAINANT'S
 FAILURE TO ACKNOWLEDGE AND RESPOND TO A QUESTION OF A NEWLY EMPLOYED
 NURSE-TRAINEE.  COMPLAINANT WAS TEMPORARILY ACTING AS THE HEAD NURSE AT
 THE PARTICULAR TIME IN QUESTION BUT WAS ON AND ABOUT HER OWN DUTIES WHEN
 SHE WAS ASKED THE QUESTION RELATED TO THE MEDICATION TO BE GIVEN A
 PARTICULAR PATIENT IN THE WARD.
 
    MRS. MERRIMAN INSTRUCTED MRS. RIGBY TO GIVE COMPLAINANT A WRITTEN
 LETTER OF COUNSELLING WHICH SHE SUBSEQUENTLY DID.  MRS. MERRIMAN
 TESTIFIED THAT COMPLAINAANT'S FAILURE TO RESPOND TO THE TRAINEE'S
 QUESTION WAS THE KIND OF LACK OF COOPERATION WHICH HAD CAUSED HER
 CONCERN IN THE PAST BUT IT WAS THE FIRST SPECIFIC INCIDENT REPORTED TO
 HER.  IT WAS THEN DECIDED TO TRANSFER COMPLAINANT TO WARD 2-E, EFFECTIVE
 JANUARY 15, 1978.
 
    ACCORDING TO MRS. MERRIMAN'S EVALUATION, THE STAFF MORALE IMPROVED
 FOLLOWING COMPLAINANT'S TRANSFER AND THERE WAS NOT THE "DIVISION OF
 STAFF" WHICH WAS OCCURRING PRIOR TO HER DEPARTURE.
 
    THE RECORD ALSO REFLECTS THE FACT THAT COMPLAINANT WAS AGAIN
 TRANSFERRED TO ANOTHER WARD (2-E TO 2-W) BECAUSE OF PROBLEMS EXISTING ON
 THE WARD TO WHICH SHE WAS FIRST TRANSFERRED.  ACCORDING TO COMPLAINANT,
 SHE WAS TRANSFERRED THE SECOND TIME "BECAUSE SHERRY CLEVENGER (HEAD
 NURSE ON 2-E) WAS AFRAID OF WHAT (COMPLAINANT) WAS GOING TO DO TO HER
 WARD" AND BECAUSE SHE WAS BLAMED FOR ANOTHER GRIEVANCE FILED BY ONE OF
 HER FRIENDS.
 
                             FINDINGS OF FACT
 
    AFTER CONSIDERING THE WHOLE RECORD FOR DECISION IN THIS MATTER, I
 FIND:
 
    I.  THAT COMPLAINANT HEREIN, PRISCILLA M. CLOUSE, RECEIVED A WRITTEN
 COUNSELLING AND WAS THEREAFTER TRANSFERRED TO ANOTHER WARD IN VAMC
 WHEN,
 ON JANUARY 5, 1978, WHILE IN CHARGE OF WARD 5-W DURING HEAD NURSE
 CHRISTOFFERSON'S TEMPORARY ABSENCE, SHE FAILED TO RESPOND TO A
 LEGITIMATE INQUIRY BY A NURSE-TRAINEE CONCERNING MEDICATION TO BE GIVEN
 A PATIENT UNDER CARE IN THE WARD;
 
    II.  THAT COMPLAINANT WAS TRANSFERRED BY THE CHIEF OF NURSING
 SERVICES IN ORDER TO ALLEVIATE IN SOME MEASURE THE DISSENTION IN THE
 WARD WHICH WAS HAMPERING PATIENT CARE.
 
    A.  THE REFUSAL BY COMPLAINANT TO ANSWER AN INQUIRY BY A NEW EMPLOYEE
 MERELY SERVED TO DEMONSTRATE THE OVERALL LACK OF COOPERATION AMONG THE
 STAFF IN THE WARD WHICH THE CHIEF OF NURSING SERVICES BY SOME MANNER
 WITHIN HER DISCRETION WAS BOUND TO CORRECT.
 
    B.  THE IMMEDIATE MEANS THEN AT HAND WAS THE TRANSFER OF COMPLAINANT
 TO ANOTHER WARD (ODDLY ENOUGH, IT WAS BY MEANS OF A TRANSFER WHICH
 COMPLAINANT SOUGHT TO REMOVE THE PROBLEMS SHE FELT WERE OCCASIONED BY
 MRS. CHRISTOFFERSON'S PRESENCE IN THE WARD);
 
    III.  THE GRIEVANCE IN WHICH COMPLAINANT PARTICIPATED IN BOTH AS AN
 INDIVIDUAL AND IN A REPRESENTATIONAL CAPACITY WAS OUTSIDE THE NEGOTIATED
 AGREEMENT BETWEEN COMPLAINANT'S UNION AND VAMC;
 
    IV.  THE GRIEVANCE IN WHICH COMPLAINANT PARTICIPATED, ALTHOUGH IT DID
 NOT STRICTLY CONFORM WITH AGENCY PROCEDURES, WAS NEVERTHELESS TREATED
 AND RESPONDED TO BY VAMC AS AN AGENCY GRIEVANCE;
 
    V.  COMPLAINANT AT NO TIME HELD HERSELF OUT TO BE NOR WAS SHE IN FACT
 A REPRESENTATIVE OF HER UNION;
 
    VI.  THE COMPLAINANT'S PARTICIPATION IN THE GRIEVANCE WAS NOT A UNION
 ACTIVITY;
 
    VII.  VAMC MANAGEMENT WAS AWARE THAT AS A GRIEVANT OR GRIEVANT
 REPRESENTATIVE SHE WAS NOT A PARTICIPANT IN ANY UNION ACTIVITY;
 
    VIII.  VAMC MANAGEMENT SHOWED NO ANIMUS AGAINST ANY UNION ACTIVITY ON
 THE PART OF ANYONE INVOLVED IN THE GRIEVANCE PROCEEDING IN QUESTION;
 
    IX.  VAMC MANAGEMENT TOOK NO ACTION AGAINST COMPLAINANT BECAUSE OF
 ANY UNION ACTIVITY.
 
                            CONCLUSIONS OF LAW
 
    THE ASSISTANT SECRETARY IN VA CANTEEN SERVICE, VA HOSPITAL, PHOENIX,
 ARIZONA, A/SLMR CASE NO. 883 (AUGUST 26, 1977) ADOPTED THE DECISION OF
 THE ADMINISTRATIVE LAW JUDGE (CASE NO. 72-6081, APRIL 4, 1977) WHEREIN
 IT WAS OBSERVED THAT:
 
    THE COMPLAINANT CORRECTLY STATES THAT TO FIND A VIOLATION OF SECTIONS
 19(A)(1) AND (2) IN
 
    THIS CASE IT MUST BE FOUND THAT (1) (COMPLAINANT) WAS ENGAGING IN
 UNION ACTIVITY, (2) THE
 
    RESPONDENT HAD KNOWLEDGE OF HER UNION ACTIVITY, (3) THE RESPONDENT
 SHOWED ANIMUS AGAINST HER
 
    UNION ACTIVITY OR AGAINST UNION ACTIVITY IN GENERAL, AND (4) THE
 RESPONDENT TOOK ACTION
 
    AGAINST HER BECAUSE OF HER UNION ACTIVITY.
 
    I.  WITH RESPECT TO THE FIRST REQUISITE ELEMENT OF A VIOLATION OF
 SECTION 19(A)(1) AND (2), THERE WAS NO UNION ACTIVITY SHOWN IN WHICH
 COMPLAINANT PARTICIPATED.  OTHER THAN THE PAYMENT OF DUES, SHE EXHIBITED
 LITTLE OR NO INTEREST IN HER UNION.  SHE STATED THAT SHE "ABSOLUTELY"
 DID NOT REPRESENT THE UNION IN ANY CAPACITY.  INSTEAD, AS THE RECORD
 PLAINLY REFLECTS, COMPLAINANT'S PARTICIPATION IN THE GRIEVANCE, BY HER
 OWN ADMISSION, WAS SOLELY IN HER OWN BEHALF AND IN BEHALF OF CERTAIN
 OTHER REGISTERED NURSES STATIONED ON WARD 5-W WHO SHARED HER VIEWS
 CONCERNING THE NATURE AND CAUSE OF THEIR COMMON PROBLEMS.  IT SHOULD BE
 EMPHASIZED THAT BY ALL ACCOUNTS THE GRIEVANCE IN QUESTION HERE HAD
 NOTHING WHATSOEVER TO DO WITH ANY COLLECTIVE BARGAINING AGREEMENT AND
 THE AGENCY PROCEDURE FOLLOWED WAS OPEN TO ANY EM