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 1 FLRA No. 76
 
 VETERANS ADMINISTRATION HOSPITAL,
 SHERIDAN, WYOMING
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1219
 Complainant
 
                                            Assistant Secretary
                                            Case No. 61-3868(CA)
 
                            DECISION AND ORDER
 
    ON JANUARY 25, 1979, ADMINISTRATIVE LAW JUDGE STEVEN E. HALPERN
 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.  THE COMPLAINANT FILED
 EXCEPTIONS 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 1078 (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 THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, /1/ CONCLUSIONS AND
 RECOMMENDATIONS.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 61-3868(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 29, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    DAN MCCARTHY
 
    ATTORNEY AT LAW
 
    VETERANS ADMINISTRATION
 
    DISTRICT COUNSEL OFFICE
 
    PHOENIX, ARIZONA 85012
 
                            FOR THE RESPONDENT
 
    KENNETH BULL
 
    NATIONAL REPRESENTATIVE, AFGE
 
    5001 SOUTH WASHINGTON
 
    ENGLEWOOD, COLORADO 80110
 
                            FOR THE COMPLAINANT
 
    BEFORE:  STEVEN E. HALPERN
 
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED WAS INITIATED
 BY COMPLAINT FILED JANUARY ..., 1978, WITH AN AMENDED COMPLAINT HAVING
 BEEN FILED MAY 22, 1978.  NOTICE OF HEARING WAS INITIALLY ISSUED ON
 AUGUST 15, 1978, BY THE REGIONAL ADMINISTRATOR OF THE UNITED STATES
 DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION, KANSAS
 CITY REGION.  PURSUANT TO A SUPPLEMENTAL NOTICE A HEARING WAS HELD AT
 SHERIDAN, WYOMING ON NOVEMBER 2, 1978.  THEREAFTER, BRIEFS OF THE
 PARTIES HAVING BEEN FILED, THE RECORD DULY CLOSED ON JANUARY 10, 1979.
 
    RESPONDENT IS CHARGED WITH HAVING VIOLATED SECTION 19(A)(1) AND (2)
 OF THE EXECUTIVE ORDER.  THE FACTUAL BASIS ON WHICH THE COMPLAINT IS
 PREMISED IS SET FORTH THEREIN AS FOLLOWS:
 
    THE CHIEF OF BUILDING MANAGEMENT SERVICE IS DISCOURAGING UNION
 MEMBERSHIP AND PARTICIPATION
 
    IN THE UNION BY SELECTING INDIVIDUALS FOR PROMOTION ON THE BASIS OF
 UNION OR UNION AFFILIATION
 
    AND WHETHER OR NOT THE INDIVIDUAL IS ACTIVE IN THE UNION.  WITNESSES
 ARE AVAILABLE TO TESTIFY
 
    THAT THE MANAGER STATES THAT SINCE A UNION MEMBER WAS SELECTED FOR
 PROMOTION IT IS PROPER THAT
 
    SHE COULD SELECT A NON UNION MEMBER FOR ANOTHER PROMOTION.  ONE
 INDIVIDUAL, MELVIN JAMES
 
    CROSBY, A UNION STEWARD HAS BEEN DISCRIMINATED AGAINST.  HE HAS BEEN
 INVOLVED IN MORE THAN 25
 
    CASES DURING THE PAST 16 MONTHS.  PREVIOUSLY, MANAGEMENT CONTENDED
 THAT SELECTION FROM A
 
    PROMOTION ROSTER HAD BEEN MADE BY SELECTING THE PERSON WITH THE
 HIGHEST POINTS.  WHEN
 
    MR. CROSBY APPEARED ON THE PROMOTION ROSTER WITH THE HIGHEST POINTS
 HE WAS NOT SELECTED.  THIS
 
    PROMOTION ACTION WAS DATED NOV. 1, 1977.
 
    THE PARTIES HAVE BEEN AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
 ADDUCE EVIDENCE, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO MAKE ORAL
 ARGUMENT AND TO FILE BRIEFS.  BASED UPON THE EVIDENCE OF RECORD, HAVING
 OBSERVED THE WITNESSES AND ASSESSED THEIR CREDIBILITY AND HAVING
 CONSIDERED THE ARGUMENTS OF THE PARTIES, I MAKE THE WITHIN:
 
                         FINDINGS AND CONCLUSIONS
 
    COMPLAINANT UNION WAS IN APPROPRIATE REPRESENTATIVE STATUS AT ALL
 TIMES MATERIAL HERETO.
 
    THE EVIDENCE DISCLOSES THAT UNION STEWARD MELVIN JAMES CROSBY, THAN A
 CLOTHING CLERK IN RESPONDENT'S EMPLOY, FILED APPLICATION FOR ONE OF TWO
 VACANT SUPERVISORY POSITIONS AS HOUSEKEEPING AID FOREMAN;  AND, OF NINE
 APPLICANTS EVALUATED BY A RANKING PANEL TO BE HIGHLY QUALIFIED FOR SAID
 POSITIONS MR. CROSBY WAS ASSIGNED THE HIGHEST NUMERICAL RATING, WHILE
 EACH OF THE TWO CANDIDATES ULTIMATELY SELECTED WERE RATED THREE POINTS
 LOWER.
 
    FINAL SELECTION FOR THE VACANT POSITIONS WAS THE EXCLUSIVE
 RESPONSIBILITY OF ESTELLA KLOETZEL, RESPONDENT'S CHIEF OF BUILDING
 MANAGEMENT SERVICES.  IT WAS WITHIN HER DISCRETION TO SELECT ANY TWO OF
 THE HIGHLY QUALIFIED INDIVIDUALS IRRESPECTIVE OF NUMERICAL RANKING AND
 IT WOULD HAVE BEEN CONTRARY TO THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT FOR HER TO HAVE SELECTED SOLELY ON THE BASIS THEREOF.
 
    IN THE COURSE OF THE SELECTION PROCESS, CHARLES FREEMAN, RESPONDENT'S
 THEN ASSISTANT HOSPITAL DIRECTOR, MS. KLOETZEL'S SUPERIOR, AND FRANK
 TERRY, THE THEN GENERAL FOREMAN, HER SUBORDINATE, BOTH SUGGESTED TO HER
 THE EFFICACY OF SELECTING MR. CROSBY INTO ONE OF THE VACANT SUPERVISORY
 POSITIONS SINCE AS A SUPERVISOR HE WOULD BE INELIGIBLE FOR UNION
 ACTIVITY-- APPARENTLY HE WAS CONSIDERED DIFFICULT TO DEAL WITH.  NO
 COMPLAINT HAS BEEN MADE AND NO ARGUMENT HAS BEEN PRESENTED THAT THE
 MAKING OF SUCH RECOMMENDATIONS TO HER IN PRIVATE WAS VIOLATIVE OF THE
 EXECUTIVE ORDER.  AT ANY RATE, THE RECOMMENDATIONS WERE PROPERLY AND
 SUMMARILY REJECTED BY HER AND SHE DECLINED TO CONSIDER MR. CROSBY'S
 UNION AFFILIATION/ACTIVITIES AS AN APPROPRIATE REASON TO SELECT HIM INTO
 A SUPERVISORY POSITION.
 
    MS. KLOETZEL AFTER PERSONALLY INTERVIEWING ALL QUALIFIED APPLICANTS
 INCLUDING MR. CROSBY, AND CONFERRING WITH SAID GENERAL FORMEMAN WHO HAD
 CONDUCTED SIMILAR INTERVIEWS, ELECTED AS WAS HER PREROGATIVE, TO SELECT
 THE SECOND AND THIRD RANKED CANDIDATES AND NOT TO SELECT MR. CROSBY.  I
 CREDIT MRS. KLOETZEL'S TESTIMONY THAT HER DECISION WAS NOT INFLUENCED BY
 UNION CONSIDERATIONS, BUT RATHER WAS BASED ON SUCH RELEVANT AND
 LEGITIMATE FACTORS AS PAST PERFORMANCE AND GENERAL SUPERVISORY
 POTENTIAL.
 
    AFTER THE SELECTIONS HAD BEEN MADE MS. KLOETZEL, AT THE REQUEST OF
 MR. FREEMAN, INVESTIGATED THE UNION STATUS OF THE SELECTEES.  THE
 INVESTIGATION WAS DIRECTED BY MR.  FREEMAN AS A RESULT OF COMPLAINTS
 THAT MR. CROSBY HAD BEEN NON-SELECTED BECAUSE OF UNION CONSIDERATIONS.
 THEREAFTER, HAVING FOR THE FIRST TIME LEARNED THAT OF THE TWO SELECTEES
 ONE WAS AND ONE WAS NOT A UNION MEMBER, (IT IS CLEAR THAT SHE WAS AWARE
 OF MR. CROSBY'S UNION ACTIVITIES AT ALL MATERIAL TIMES), MRS. KLOETZEL
 IS ALLEGED TO HAVE MADE THE STATEMENT UPON WHICH COMPLAINANT RELIES
 HEAVILY IN SUPPORT OF ITS CHARGE:
 
    (A) MR. CROSBY TESTIFIED THAT MR. TERRY AND MR. FREEMAN TOLD HIM THAT
 SHE SAID "SHE HAD CHOSEN ONE UNION MEMBER AND ONE NON-UNION MEMBER AND
 FELT THE UNION HAD NO GRIPE" (TR. 25);  (B) JUNE GILKISON, A UNION CHIEF
 STEWARD AND ELEANOR MILLIRON, THE THEN PRESIDENT OF THE COMPLAINANT
 LOCAL, TESTIFIED THAT MR. FREEMAN TOLD HER THAT "STELLA KLOETZEL HAD
 SELECTED ONE UNION MEMBER AND ONE NON-UNION MEMBER AND, SHE FELT THAT
 WAS FAIR" (TR. 47, 51);  (C) MR.  FREEMAN TESTIFIED THAT MS. KLOETZEL
 MADE NO SUCH STATEMENT TO HIM, BUT RATHER HE SAID TO HER THAT "IT
 SOUNDED FAIR TO ME" (TR. 63);  (D) ACCORDING TO MR. TERRY SHE TOLD HIM
 "THE WAY THAT IT HAD COME OUT, NOBODY SHOULD HAVE ANYTHING TO COMPLAIN
 ABOUT, BECAUSE WE HAD ONE THAT WAS A UNION MEMBER AND ONE THAT WAS NOT A
 UNION MEMBER" (TR. 71);  (HE FURTHER TESTIFIED, "IT WAS MY UNDERSTANDING
 THAT SHE TOOK WHAT SHE FIGURES WAS THE QUALIFIED PERSON" (TR. 72));  (E)
 MS. KLOETZEL TESTIFIED IN EFFECT THAT SHE MADE NONE OF THE STATEMENTS
 ATTRIBUTED TO HER (TR. 93 AND EX. U-5).
 
    COMPLAINANT HAS NOT, IN MY OPINION, ESTABLISHED BY A PREPONDERANCE OF
 THE EVIDENCE THAT MS. KLOETZEL DID IN FACT UTTER ANY OF THE STATEMENTS
 ALLEGED.  FURTHERMORE, SINCE SUCH FINDING IS NOT ENTIRELY FREE FROM
 DOUBT, IT SHOULD BE ADDED THAT SUCH STATEMENTS AS HAVE BEEN ATTRIBUTED
 TO HER, EVEN IF MADE, CONSTITUTE NOTHING MORE SERIOUS THAN HER
 RETROSPECTIVE ANALYSIS THAT SINCE ONE OF THE TWO SELECTEES WAS A UNION
 MEMBER THERE COULD BE NO QUESTION OF ANTI-UNION BIAS AND THAT THE
 SELECTION PROCESS WAS FAIR ON ITS FACE.  SINCE SHE WAS UNAWARE OF THE
 UNION/NON-UNION STATUS OF THE SELECTEES UNTIL AFTER THE SELECTIONS HAD
 BEEN MADE IT FOLLOWS THAT THE STATEMENTS ATTRIBUTED TO HER, EVEN IF
 MADE, DO NOT SUBSTANTIATE THE CHARGE THAT THERE WAS A PURPOSEFUL
 SELECTION OF ONE UNION AND ONE NON-UNION MEMBER.
 
    IN AN INTERESTING BUT SPURIOUS SEMANTIC EXERCISE COMPLAINANT ARGUES
 THAT MR. CROSBY WAS NOT SELECTED BECAUSE OF HIS UNION ACTIVITIES, AND
 COMPLAINS OF AN EXECUTIVE ORDER VIOLATION.  INDEED, HE WAS NOT SELECTED
 BECAUSE OF HIS UNION ACTIVITIES;  NEITHER, HOWEVER, WAS IT BECAUSE OF
 HIS UNION ACTIVITIES THAT HE WAS NOT SELECTED.
 
    IN SUMMARY, THE EVIDENCE NEITHER ESTABLISHES, AS A MATTER OF DIRECT
 OR INFERENTIAL FACT, THAT MR. CROSBY'S NON-SELECTION WAS RELATED TO HIS
 PARTICIPATION IN UNION ACTIVITIES PROTECTED BY THE EXECUTIVE ORDER NOR
 THAT IT WAS BY DESIGN THAT ONE UNION AND ONE NON-UNION MEMBER WAS
 SELECTED.  THUS, HAVING CONSIDERED THE ENTIRE RECORD BEFORE ME I FIND NO
 BASIS IN FACT TO SUPPORT THE COMPLAINT THAT SECTIONS 19(A)(1) AND (2) OF
 THE ORDER HAVE BEEN VIOLATED AND CONCLUDE THAT COMPLAINANT HAS FAILED TO
 SUSTAIN ITS BURDEN OF PROVING ITS ALLEGATIONS BY A PREPONDERANCE OF THE
 EVIDENCE.
 
                                   ORDER
 
    THE WITHIN COMPLAINT IS DISMISSED IN ITS ENTIRETY.
 
    SO ORDERED, IN THE NAME OF THE FEDERAL LABOR RELATIONS AUTHORITY,
 THIS THE 25TH DAY OF JANUARY, 1979, AT SAN FRANCISCO, CALIFORNIA.
 
                             STEVEN E. HALPERN
 
                         ADMINISTRATIVE LAW JUDGE
 
    SEH:VAG
 
    /1/ THE COMPLAINANT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
 THE ADMINISTRATIVE LAW JUDGE.  IN NAVY EXCHANGE, U.S. NAVAL AIR STATION,
 QUONSET POINT, RHODE ISLAND, 2 A/SLMR 377, A/SLMR NO. 180 (1972), IT WAS
 HELD AS A MATTER OF POLICY THAT AN ADMINISTRATIVE LAW JUDGE'S RESOLUTION
 WITH RESPECT TO CREDIBILITY WOULD NOT BE OVERRULED UNLESS THE
 PREPONDERANCE OF ALL THE RELEVANT EVIDENCE ESTABLISHED THAT SUCH
 RESOLUTION CLEARLY WAS INCORRECT.  BASED ON A REVIEW OF THE RECORD
 HEREIN, THE AUTHORITY FINDS NO BASIS FOR REVERSING THE ADMINISTRATIVE
 LAW JUDGE'S CREDIBILITY FINDINGS.
 
    /2/ 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 EXECUTIVE ORDER 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.
 
 
 

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