[ v01 p384 ]
01:0384(48)CA
The decision of the Authority follows:
1 FLRA No. 48
VETERANS ADMINISTRATION HOSPITAL,
SHREVEPORT, LOUISIANA
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2000, AFL-CIO
Complainant
Assistant Secretary
Case No. 64-4038(CA)
DECISION AND ORDER
ON FEBRUARY 22, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN
THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF 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, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1/
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 HOSPITAL, SHREVEPORT, LOUISIANA SHALL:
1. CEASE AND DESIST FROM:
INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE EXERCISE
OF THEIR RIGHTS,
FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND
ASSIST A LABOR
ORGANIZATION.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) POST AT ITS FACILITIES LOCATED IN SHREVEPORT, LOUISIANA, COPIES
OF THE ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON
RECEIPT OF SUCH FORMS THEY
SHALL BE SIGNED BY THE HOSPITAL ADMINISTRATOR AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
HOSPITAL ADMINISTRATOR SHALL
TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(B) 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., JUNE 6, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER, III, 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 INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR ORGANIZATION.
(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
MATERIALS.
IF ANY EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR, DALLAS REGIONAL OFFICE, FEDERAL LABOR
RELATIONS AUTHORITY, WHOSE ADDRESS IS ROOM 707, 555 GRIFFIN AND YOUNG
STREETS, DALLAS, TEXAS 75202.
CARL W. HOLT
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
3108 AVON DRIVE
ARLINGTON, TEXAS 76015
FOR THE COMPLAINANT
MICHAEL E. BORNHOUSER, ESQUIRE
ATTORNEY, DISTRICT COUNSEL'S OFFICE
VETERANS ADMINISTRATION
1400 NORTH VALLEY MILLS DRIVE
WACO, TEXAS 76710
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
CASE NO. 64-4038(CA)
DECISION AND ORDER
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER ALSO REFERRED TO AS THE "ORDER"). ALTHOUGH THE NOTICE OF
HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR AND ALL
PROCEEDINGS WERE CONDUCTED BEFORE THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, THIS DECISION IS ISSUED IN THE NAME OF THE
AUTHORITY PURSUANT TO TRANSITION RULES AND REGULATIONS, FEDERAL
REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979 (5 C.F.R. SECTION 2400.2).
COMPLAINANT FILED A CHARGE ON OR ABOUT DECEMBER 19, 1977, AND A
COMPLAINT ON APRIL 10, 1978, ALLEGING VIOLATIONS OF SECTION 19(A)(1),
(3) AND (4) OF THE ORDER (ASS'T. SEC. EXH. 1). BY LETTER DATED AUGUST
4, 1978 (ASS'T. SEC. EXH. 4), THE REGIONAL ADMINISTRATOR DISMISSED ALL
ASPECTS OF THE COMPLAINT WHICH ALLEGED VIOLATIONS OF SECTION 19(A)(1),
(3) AND (4) OF THE ORDER EXCEPT AS TO ITEM 1 OF THE COMPLAINT, I.E., THE
FIRST PARAGRAPH OF THE COMPLAINT, AND AS TO ITEM 1 ONLY INSOFAR AS ITEM
1 ALLEGED A VIOLATION OF SECTION 19(A)(1). THE REGIONAL ADMINISTRATOR
STATED THAT, ABSENT THE TIMELY FILING OF A REQUEST FOR REVIEW, IT WAS
HIS "INTENTION TO ISSUE A NOTICE OF HEARING REGARDING THAT ASPECT OF THE
COMPLAINT ALLEGING A VIOLATION OF SECTION 19(A)(1) OF THE ORDER AS IT
PERTAINS TO ITEM 1 DISCUSSED ABOVE." NO REQUEST FOR REVIEW WAS FILED AND
THE AMENDED NOTICE OF HEARING ISSUED ONLY AS TO THE ALLEGED VIOLATION OF
SECTION 19(A)(1) OF THE ORDER (ASS'T. SEC. EXH. 3).
NOTICE OF HEARING ISSUED ON SEPTEMBER 27, 1978 (ASST. SEC. EXH. 2)
AND AMENDED NOTICE OF HEARING ISSUED ON OCTOBER 24, 1978 (ASS'T. SEC.
EXH. 3) PURSUANT TO WHICH A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED
IN SHREVEPORT, LOUISIANA, ON NOVEMBER 21, 1978. ALL PARTIES WERE
REPRESENTED AT THE HEARING, WERE AFFORDED FULL OPPORTUNITY TO BE HEARD,
TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. AT THE CONCLUSION OF THE
TESTIMONY, EACH PARTY EXPRESSED THE DESIRE TO PRESENT ORAL ARGUMENT AND
EACH PARTY WAIVED THE FILING OF A POST-HEARING BRIEF. ACCORDINGLY, FULL
ORAL ARGUMENT WAS HAD AND NO POST-HEARING BRIEFS WERE FILED. UPON THE
BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
ORDER.
FINDINGS OF FACT
1. MS. GEORGIE PARKER LUCAS IS EMPLOYED BY RESPONDENT AS A
PURCHASING AGENT. HER IMMEDIATE SUPERVISOR IS MR. EDWARD NOACK, CHIEF
OF PURCHASE AND CONTRACT.
2. MS. LUCAS IS A MEMBER OF LOCAL 2000, WHICH IS THE CERTIFIED
EXCLUSIVE REPRESENTATIVE FOR THE HOSPITAL UNIT; AT THE TIME OF THE
HEARING SHE WAS CHIEF STEWARD FOR THE VA HOSPITAL UNIT, HAVING ASSUMED
THIS POSITION ON JANUARY 9, 1978, AND IN NOVEMBER, 1977, SHE WAS
RECORDING SECRETARY OF LOCAL 2000.
3. ON NOVEMBER 18, 1977, MS. LUCAS ARRIVED AT WORK AT APPROXIMATELY
7:55 A.M. AND FOUND THAT MR. GERALD SOILEAU, ALSO A PURCHASING AGENT,
WAS ON THE TELEPHONE CONCLUDING THE PLACING OF AN ORDER FOR FREON.
4. BECAUSE MR. SOILEAU WAS WORKING BEFORE THE NORMAL STARTING TIME,
MS. LUCAS IMMEDIATELY WENT TO MR. NOACK'S OFFICE AND ASKED IF MR.
SOILEAU WAS WORKING OVERTIME, BECAUSE HE "IS WORKING AND IT'S NOT 8:00
O'CLOCK AND I JUST WANTED TO KNOW IF IT WAS OVERTIME." MR. NOACK TOLD
HER THAT MR. SOILEAU WAS NOT ON OVERTIME AND MS. LUCAS TESTIFIED THAT
SHE THEN TOLD MR. NOACK "THAT THIS WAS A VIOLATION OF FAIR LABOR
STANDARDS ACT, VA REGULATIONS"; THAT MR. NOACK "DIDN'T REALLY SAY TOO
MUCH. HE WAS JUST NON-COMMITAL, . . . HE SAID THAT HE WOULD LOOK INTO
IT. OTHER THAN THAT HE REALLY DIDN'T HAVE TOO MUCH TO SAY ABOUT IT."
5. MS. LUCAS TESTIFIED THAT MR. NOACK, AT A REGULAR WEEKLY MEETING
OF ALL EMPLOYEES IN PURCHASE AND CONTRACT HELD ON THE AFTERNOON OF
NOVEMBER 18, 1977, REMINDED EMPLOYEES THAT THEY ARE NOT TO WORK BEFORE
8:00 A.M. AND THAT THEY WERE NOT TO WORK AFTER 4:30 P.M. MS. LUCAS
STATED THAT MR. NOACK SAID THERE HAD BEEN A COMPLAINT ABOUT IT. MS.
LUCAS FURTHER TESTIFIED THAT MR. NOACK SAID AT THE MEETING:
" . . . THAT HE DIDN'T AGREE WITH THIS, THAT, HE FELT THAT IF
EMPLOYEES WANTED TO WORK OFF
THE CLOCK THAT THEY SHOULD BE ALLOWED TO DO SO." (TR. 24) (SEE, ALSO
TR. 55).
MS. LUCAS TESTIFIED THAT MR. NOACK FURTHER STATED:
" . . . THAT UNIONS WERE NO LONGER NEEDED, THAT THERE WAS A TIME WHEN
THEY WERE NEEDED
BECAUSE THE WORKING CONDITIONS WERE SO TERRIBLY POOR, BUT THAT THAT
WAS NO LONGER THE
CASE." (TR. 24).
LATER, MS. LUCAS TESTIFIED AS FOLLOWS:
" . . . HE (MR. NOACK) JUST SAID THAT HE DID NOT AGREE WITH IT (NO
WORK BEFORE OR AFTER
REGULARLY SCHEDULED HOURS) AND THAT UNIONS WERE, THEY HAD GROWN TOO
BIG AND THEY WERE JUST NO
LONGER NEEDED." (TR. 28) (SEE, ALSO TR. 49, 50)
6. MS. FRANCES THOMPSON, MANAGER OF INVOICES AND RECEIVING REPORTS,
WHO WORKS IN THE SAME OFFICE AS MR. LUCAS, TESTIFIED THAT, AT THE
NOVEMBER 18, 1977, MEETING, MR. NOACK STATED:
" . . . THAT NO ONE WAS TO START WORK BEFORE THE NORMAL DUTY HOURS,
BEFORE 8:00 IN THE
MORNING OR AFTER 4:30 IN THE AFTERNOON."
* * * *
"THAT THEY DIDN'T KNOW WHY THIS PARTICULAR THING WOULD HAVE BEEN
NECESSARY AND THAT IN
YEARS PAST, WHEN UNIONS WEREN'T AROUND TO INTERCEDE FOR PEOPLE THAT
THINGS SEEMED TO WORK
FINE. THEN ALL OF A SUDDEN THESE THINGS WERE BEING MADE NECESSARY."
(TR. 75)
7. MS. MARGARET DALE CARTER, NOW A SECRETARY IN SUPPLY AND SERVICE,
PURCHASE AND CONTRACT SECTION, AND IN NOVEMBER, 1977, A CLERK TYPIST IN
THE SAME SECTION, ONLY VAGUELY RECALLED A MEETING ON NOVEMBER 18, 1977,
AND RECALLED NO DISPARAGING COMMENTS BY MR. NOACK.
8. MR. GERALD R. SOILEAU REMEMBERED THAT THERE WAS A MEETING ON
NOVEMBER 18, 1977; DID NOT RECALL ANY ANTI-UNION STATEMENTS MADE BY MR.
NOACK THAT "THE ONLY THING I REMEMBERED IS THAT HE TOLD US TO QUIT
WORKING BEFORE 8:00 O'CLOCK. THAT'S ALL I REMEMBER ABOUT IT." (TR.
119); HE DID NOT REMEMBER HIM MAKING ANY STATEMENT AT ALL CONCERNING
THE UNION.
9. THE STATEMENT OF MR. ROBERT L. POLANDER, WHO WAS ON LEAVE AND NOT
PRESENT AT THE HEARING, WAS OFFERED BY COMPLAINANT; RESPONDENT DID NOT
OBJECT TO THE RECEIPT OF MR. POLANDER'S STATEMENT; AND THE STATEMENT
WAS RECEIVED AS COM. EXH. 2. IN HIS STATEMENT, MR. POLANDER STATES, IN
PART, AS FOLLOWS:
"IN A MEETING OF SECTION EMPLOYEES, WHICH ARE HELD WEEKLY IN OUR
SECTION BY MR. EDWARD
NOACK, I DO REMEMBER MR. NOACK SAYING THAT UNIONS HAVE OUTGROWN
THEMSELVES AND HAD GOTTEN TOO
BIG, THERE WAS A NEED FOR THEM AT ONE TIME, HOWEVER THEY HAD JUST
OUTGROWN THEMSELVES. I
DON'T REMEMBER WHAT PROMPTED HIS COMMENT OR WHAT WAS SAID AFTER HE
MADE THE COMMENT. I DIDN'T
THINK MUCH OF WHAT HE SAID, IT WAS HIS OPINION AND WAS NO THREAT TO
ME OR TO THE AFGE LOCAL
UNION AT THE VA HOSPITAL TO MY KNOWLEDGE. I DON'T REMEMBER WHEN THIS
MEETING TOOK PLACE
EXCEPT THAT IT OCCURRED SEVERAL MONTHS AGO." (COMP. EXH. 2).
10. MR. NOACK TESTIFIED HE HAD BEEN EMPLOYED BY THE VETERANS
ADMINISTRATION FOR SLIGHTLY MORE THAN TEN YEARS; THAT HE HAD STARTED AS
A GS-2 MAIL ROOM CLERK AND HAD ADVANCED THROUGH THE RANKS TO HIS PRESENT
POSITION AS CHIEF OF PURCHASE AND CONTRACT; THAT HE HAD BEEN A MEMBER
OF THE UNION FOR ABOUT TWO YEARS PRIOR TO HIS BECOMING A SUPERVISOR;
THAT HIS FATHER WAS A MEMBER OF THE TEAMSTERS; AND THAT HE CONSIDERED
HIMSELF PRO-UNION.
11. MR. NOACK STATED THAT WHEN HE CAME TO WORK ON NOVEMBER 18, 1977,
MS. LUCAS CAME TO HIS DESK AND TOLD HIM THAT ONE EMPLOYEE WAS WORKING
BEFORE THE REGULAR WORK DAY WAS TO BEGIN AT 8:00 A.M.; THAT HE WENT TO
MR. SOILEAU, THE EMPLOYEE WHO WAS WORKING BEFORE 8:00 A.M., AND TOLD HIM
THAT HE WAS NOT TO WORK BEFORE 8:00 A.M. OR BEYOND HIS TOUR OF DUTY;
THAT DURING THE COURSE OF THE MORNING HE HAD OVERHEARD REMARKS BY
EMPLOYEES OF THE SECTION WHICH IMPLIED, TO HIM, THAT THEY WERE "LAYING
THE BLAME OF THIS ON MS. LUCAS"; THAT HE CALLED THE MEETING ON THE
AFTERNOON OF NOVEMBER 18, 1977, TO MAKE IT CLEAR THAT THIS WAS NOT
SOMETHING THAT MS. LUCAS OR HE HAD DREAMED UP, BUT WAS AN ACTUAL LAW AND
SOMETHING THAT SHOULD BE ABIDED BY.
MR. NOACK STATED THAT AT THE MEETING HE DID GO BACK TO PAST HISTORY--
THE SWEAT SHOPS, UNREASONABLE HOURS, ETC., AND EXPLAINED HOW THE UNIONS
HAD BROUGHT THESE CONDITIONS UNDER CONTROL. HE STATED THAT HE SAID:
" . . . THE UNIONS HAVE BROUGHT ALL OF THIS, OR MOST OF IT, UNDER
CONTROL AND THAT AT THIS
TIME THE UNIONS WERE NOT ACTUALLY NEEDED AS MUCH IN A SENSE AS THEY
WERE BACK IN THE EARLIER
DAYS." (TR. 107-108)
MR. NOACK ALSO TESTIFIED THAT:
" . . . ONE STATEMENT I DID MAKE ABOUT THE FAIR LABOR STANDARDS ACT
WAS THAT I DIDN'T
NECESSARILY AGREE WITH IT, THAT WAS TO THE POINT NOT OF /2/ SAYING
THAT IT WAS NOT TO BE
ABIDED BY, BUT, THAT IT WAS TOO HARSH, TOO RESTRICTIVE. ONE MINUTE
BEFORE 8:00 O'CLOCK, ONE
MINUTE AFTER; ONE MINUTE BEFORE 4:30 OR AFTER 4:30 SEEMS TO BE JUST
A LITTLE BIT TOO HARSH FOR
ME." (TR. 106)
12. MS. CARTER BECAME A MEMBER OF THE UNION IN EARLY NOVEMBER, 1978
CONCLUSIONS
THE REGIONAL ADMINISTRATOR DISMISSED ALL ALLEGATIONS OF THE
COMPLAINT, INCLUDING ALL ASPECTS WHICH ALLEGED A VIOLATION OF SECTION
19(A)(1), EXCEPT THE ALLEGATION OF ITEM 1 OF THE COMPLAINT AND ONLY TO
THE EXTENT THAT ITEM 1 ALLEGES A VIOLATION OF SECTION 19(A)(1) OF THE
ORDER. ITEM 1 OF THE COMPLAINT ALLEGED THAT:
"ON NOVEMBER 18, 1977, MR. EDWARD NOACK, CHIEF PURCHASING AND
CONTRACT, IN A MEETING OF HIS
SECTION EMPLOYEES, STATED HE DISAGREES WITH THE FAIR LABOR STANDARDS
ACT AS IT APPLIES TO
GOVERNMENT OPERATIONS, AND THAT HE FEELS THERE WAS PERHAPS A TIME
WHEN UNIONS WERE NEEDED BUT
THAT TIME HAS PAST."
THE RECORD FULLY SUPPORTS THE ALLEGATION OF THE COMPLAINT. INDEED,
MR. NOACK ADMITS THAT, IN SUBSTANCE, HE MADE THE STATEMENTS ATTRIBUTED
TO HIM. THUS, AS TO THE FAIR LABOR STANDARDS ACT, MR. NOACK STATED:
"ONE STATEMENT I DID MAKE ABOUT THE FAIR LABOR STANDARDS ACT WAS THAT
I DIDN'T NECESSARILY
AGREE WITH IT . . . THAT IT WAS TOO HARSH, TOO RESTRICTIVE."
AND, AS TO UNIONS, MR. NOACK STATED:
" . . . THE UNIONS WERE NOT ACTUALLY NEEDED AS MUCH IN A SENSE AS
THEY WERE BACK IN THE
EARLIER DAYS."
THERE IS NO QUESTION WHATEVER THAT MR. NOACK SAID THAT HE DISAGREED
WITH THE FAIR LABOR STANDARDS ACT. I AM AWARE THAT MR. NOACK TESTIFIED
THAT HIS STATEMENT THAT "UNIONS WERE NOT NEEDED AS MUCH . . . AS THEY
WERE BACK IN THE EARLIER DAYS" WAS MADE IN THE COURSE OF HIS REVIEW OF
THE HISTORICAL BACKGROUND OF SWEAT SHOPS, ETC. . . . , AND THAT THE
TESTIMONY OF MS. LUCAS THAT MR. NOACK SAID "THAT THERE WAS A TIME WHEN
THEY (UNION) WERE NEEDED BECAUSE THE WORKING CONDITIONS WERE SO TERRIBLY
POOR" FULLY SUPPORTS MR. NOACK'S STATEMENT THAT HE REVIEWED THE HISTORY
OF SWEAT SHOPS, UNREASONABLY LONG HOURS, ETC. NEVERTHELESS, IT IS CLEAR
THAT MR. NOACK TOLD THE ASSEMBLED EMPLOYEES THAT "UNIONS WERE NOT
ACTUALLY NEEDED". MS. LUCAS VERY CREDIBLY TESTIFIED THAT MR. NOACK
SAID THAT UNIONS WERE NO LONGER NEEDED, THAT THERE WAS A TIME WHEN THEY
WERE NEEDED BECAUSE THE WORKING CONDITIONS WERE SO TERRIBLY POOR, BUT
THAT THAT WAS NO LONGER THE CASE" AND MR. POLANDER'S STATEMENT, WHICH
WAS RECEIVED WITHOUT OBJECTION, RECITES THAT MR. NOACK SAID, "UNIONS
HAVE OUTGROWN THEMSELVES . . . THERE WAS A NEED FOR THEM AT ONE TIME,
HOWEVER, THEY HAD JUST OUTGROWN THEMSELVES." ACCORDINGLY, I ALSO FIND
THAT, AS ALLEGED IN THE COMPLAINT, MR. NOACK ALSO SAID THAT HE FELT
THERE WAS PERHAPS A TIME WHEN UNIONS WERE NEEDED BUT THAT TIME HAS PAST.
COMPLAINANT HAS SHOWN NO UNION ANIMUS. ALTHOUGH MS. LUCAS REFERRED
TO SURVEILLANCE, IT IS CLEAR THAT SHE REFERRED TO ACCOUNTING FOR HER
TIME SPENT ON REPRESENTATIONAL ACTIVITIES WHICH HAD BEEN ALLEGED AS PART
OF ITEM 4 OF THE COMPLAINT. AS THE REGIONAL ADMINISTRATOR DISMISSED
THIS PORTION OF THE COMPLAINT SUCH CONDUCT IS NOT BEFORE ME AND MAY NOT
BE TREATED AS A VIOLATION OF SECTION 19(A)(1). UNITED STATES DEPARTMENT
OF THE ARMY, FORT POLK, LOUISIANA, A/SLMR NO. 1100(1978).
UNDER OTHER CIRCUMSTANCES, MR. NOACK'S STATEMENTS MAY HAVE BEEN
INNOCUOUS; BUT IN THE CONTEXT OF THEIR DELIVERY VIOLATED SECTION
19(A)(1) OF THE ORDER. HOWEVER ALLEGORICAL MR. NOACK'S STATEMENT MANY
HAVE BEEN, HIS MESSAGE TO THE ASSEMBLED EMPLOYEES WAS CLEAR, NAMELY
THAT, WHILE HE DISAGREED WITH THE POLICY, THEY COULD NOT WORK BEFORE
8:00 A.M. OR AFTER 4:30 P.M.; THAT THEY COULD THANK THE UNION FOR THIS;
AND THAT HE FELT UNIONS WERE NO LONGER REQUIRED. THUS, FOR EXAMPLE,
MRS. THOMPSON TESTIFIED THAT MR. NOACK SAID, "WHEN UNIONS WEREN'T AROUND
TO INTERCEDE FOR PEOPLE . . . THINGS SEEMED TO WORK FINE"; MS. LUCAS
TESTIFIED THAT MR. NOACK SAID, "HE DIDN'T AGREE WITH THIS (THE FAIR
LABOR STANDARDS ACT), THAT HE FELT THAT IF EMPLOYEES WANTED TO WORK OFF
THE CLOCK THAT THEY SHOULD BE ALLOWED TO DO SO" AND "THAT UNIONS WERE NO
LONGER NEEDED"; AND MR. POLLARD STATED THAT MR. NOACK SAID "UNIONS
HAVE OUTGROWN THEMSELVES . . . THERE WAS A NEED FOR THEM AT ONE TIME,
HOWEVER THEY HAD JUST OUTGROWN THEMSELVES."
MR. NOACK STATED THAT HE CALLED THE MEETING BECAUSE THE EMPLOYEES
WERE BLAMING MS. LUCAS FOR "BLOWING THE WHISTLE" ON EMPLOYEES WORKING
BEFORE OR AFTER NORMAL HOURS. THE WHOLE THRUST OF HIS REMARKS WAS TO
"CREDIT" UNIONS FOR THE FAIR LABOR STANDARDS ACT; TELL THEM HE
DISAGREED WITH THE POLICY; AND STATED THAT HE FELT UNIONS WEREN'T
NEEDED ANYMORE. UNDER THE CIRCUMSTANCES, HIS STATEMENT DID INTERFERE
WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF THE RIGHTS
ASSURED BY THE ORDER, INCLUDING THE RIGHT TO FREELY AND WITHOUT FEAR OF
PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR ORGANIZATION.
NOR IS MR. NOACK'S STATEMENT RENDERED ANY LESS A VIOLATION OF 19(A)(1)
BY HIS EXPLANATION OR MOTIVATION, C.F., UNITED STATES ARMY TANK
AUTOMATIVE COMMAND, WARREN MICHIGAN, A/SLMR NO. 447, 4 A/SLMR 742(1974);
BY THE FACT THAT MR. POLLARD THOUGHT "IT WAS HIS OPINION AND WAS NO
THREAT TO ME OR TO THE AFGE LOCAL UNION"; OR BY THE FACT THAT MS.
CARTER, WHO WAS NOT A MEMBER OF THE UNION ON NOVEMBER 18, 1977, JOINED
THE UNION ABOUT A YEAR LATER IN EARLY NOVEMBER, 1978.
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, 29
C.F.R., SECTION 203.26(B), AND SECTION 2400.2 OF THE TRANSITION RULES
AND REGULATIONS (5 C.F.R. SECTION 2400.2, FED. REG., VOL. 44, NO. 1,
JANUARY 2, 1979), THE AUTHORITY, HEREBY ORDERS THAT THE VETERANS
ADMINISTRATION HOSPITAL, SHREVEPORT, LOUISIANA SHALL:
1. CEASE AND DESIST FROM:
A) INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE EXECUTIVE ORDER BY, INTER ALIA,
TELLING EMPLOYEES THAT COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT IS
REQUIRED BECAUSE OF THE INSISTENCE OF THE UNION AND THAT UNIONS ARE NOT
REQUIRED ANY MORE.
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 IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER:
A) POST AT ITS FACILITIES LOCATED IN SHREVEPORT, LOUISIANA, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
HOSPITAL ADMINISTRATOR AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE HOSPITAL ADMINISTRATOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
B) PURSUANT TO 29 C.F.R. SECTION 203.27 AND SECTION 2400.2 OF THE
TRANSITION RULES AND REGULATIONS, NOTIFY THE AUTHORITY IN WRITING WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 22, 1979
WASHINGTON, D.C.
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 EXECUTIVE ORDER 11491, AS AMENDED WE HEREBY
NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED,
BY INTER ALIA, TELLING EMPLOYEES THAT COMPLIANCE WITH THE FAIR LABOR
STANDARDS ACT IS REQUIRED BECAUSE OF THE INSISTENCE OF THE UNION AND/OR
THAT UNIONS ARE NOT REQUIRED ANYMORE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISES OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
ACTIVITY
DATED: BY:
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, DALLAS REGIONAL OFFICE, FEDERAL LABOR RELATIONS
AUTHORITY, WHOSE ADDRESS IS ROOM 705, 555 GRIFFIN SQUARE BUILDING,
GRIFFIN AND YOUNG STREETS, DALLAS, TEXAS 75202.
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (2 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 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ THERE IS AN OBVIOUS TRANSPOSITION ERROR IN THE TRANSCRIPT WHICH
IS HEREBY CORRECTED. THE TRANSCRIPT READS "POINT OF NOT SAYING"; BUT
SHOULD READ "POINT NOT OF SAYING".