[ v02 p737 ]
02:0737(94)CA
The decision of the Authority follows:
2 FLRA No. 94
VETERANS ADMINISTRATION HOSPITAL,
TEMPLE, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL UNION 2109
Complainant
Case No. 6-CA-2
DECISION AND ORDER
ON SEPTEMBER 6, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
PRACTICES IN VIOLATION OF SEC. 19(A)(1) OF THE ORDER 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. THE ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT THE
RESPONDENT HAD NOT ENGAGED IN CERTAIN OTHER ALLEGED UNFAIR LABOR
PRACTICES AND RECOMMENDED THAT THOSE PORTIONS OF THE COMPLAINT BE
DISMISSED. THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS WITH RESPECT 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 SEC. 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SEC. 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS (44
F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE RESPONSIBLE
FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SEC. 7135(B) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SEC. 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SEC. 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 THE SUBJECT
CASE, INCLUDING THE COMPLAINANT EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.
/1/
ORDER
PURSUANT TO SEC. 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL
LABOR RELATIONS AUTHORITY AND SEC. 7135 OF THE FEDERAL SERVICE LABOR
MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
VETERANS ADMINISTRATION CENTER, TEMPLE, TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERROGATING ITS EMPLOYEES AS TO WHETHER THEY WILL FILE
GRIEVANCES AGAINST THE ACTIVITY BASED UPON ANY ACTION TAKEN BY
MANAGEMENT TOWARD THE EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF THE ORDER:
(A) POST AT ITS FACILITY AT THE OLIN TEAGUE VETERANS ADMINISTRATION
CENTER, TEMPLE, TEXAS, 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 CHIEF OF THE
LABORATORY SERVICE 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 CHIEF SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY OTHER
MATERIAL.
(B) PURSUANT TO SEC. 203.27 OF THE REGULATIONS, NOTIFY THE FEDERAL
LABOR RELATIONS AUTHORITY, IN WRITING 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT IN
CASE NO. 6-CA-2 FOUND NOT TO BE VIOLATIVE OF THE EXECUTIVE ORDER BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., FEBRUARY 29, 1980.
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, 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 INTERROGATE OUR EMPLOYEES AS TO WHETHER THEY WILL FILE
GRIEVANCES AGAINST US BASED UPON ANY ACTION TAKEN BY MANAGEMENT TOWARD
OUR EMPLOYEES.
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
(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 OF COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
DOWNTOWN POST OFFICE STATION, BRYAN AND ERVAY STREETS, P.O. BOX 2640,
DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS: (214) 767-4996.
D. KEITH ROLLINS, ESQ.
LYNDA BECK FENWICK, ESQ.
1400 NORTH VALLEY MILLS DRIVE
WACO, TEXAS 76710
FOR THE RESPONDENT
PETE EVANS
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
203 TIMOTHY TRAIL
DUNCANVILLE, TEXAS 75137
FOR THE COMPLAINANT
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON MAY 30, 1979
BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, THE
DALLAS, TEXAS REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JULY
10, 1979 AT TEMPLE, TEXAS.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER). A COMPLAINT WAS FILED ON JANUARY 5, 1978 BY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2109 (HEREIN
CALLED COMPLAINANT) AGAINST VETERANS ADMINISTRATION CENTER, TEMPLE,
TEXAS (HEREIN CALLED RESPONDENT). IT ALLEGED THAT RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (2) OF THE ORDER BY ENGAGING IN THE FOLLOWING
ACTS: (A) ON MAY 10, 1978 INTERROGATING BILLYE L. WEAVER, CHIEF STEWARD
OF COMPLAINANT AS TO HER UNION ACTIVITIES; (B) DISCRIMINATED AGAINST
THE SAID BILLYE L. WEAVER BECAUSE OF HER UNION ACTIVITIES BY DENYING HER
A PROMOTION TO A GS-9 POSITION AND ENGAGING IN ACTS OF REPRISAL AND
COERCION TOWARD HER.
RESPONDENT DENIES THE COMMISSION OF ANY UNFAIR LABOR PRACTICES. IT
CONTENDS THAT WEAVER WAS NOT SELECTED FOR A PROMOTION SINCE ANOTHER
EMPLOYEE WAS BETTER QUALIFIED. MOREOVER, IT INSISTS THAT ANY
QUESTIONING OF WEAVER'S UNIONISM WAS JOCULAR IN NATURE AND NOT IMPROPER
UNDER THE ORDER.
BOTH PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES, AND TO FILE BRIEFS WITH THE UNDERSIGNED.
UPON THE ENTIRE RECORD IN THIS CASE, 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, CONCLUSIONS AND
RECOMMENDATIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2109 HAS BEEN, AND STILL IS, THE COLLECTIVE
BARGAINING REPRESENTATIVE OF ALL NON-PROFESSIONAL AND NON-SUPERVISORY
EMPLOYEES AT THE OLIN TEAGUE VETERANS ADMINISTRATION CENTER, IN TEMPLE,
TEXAS. BOTH COMPLAINANT UNION AND RESPONDENT ARE PARTIES TO A WRITTEN
COLLECTIVE BARGAINING AGREEMENT, DATED JANUARY 21, 1975, WHICH COVERS
THE AFORESAID UNIT AND CONTINUES IN EXISTENCE.
2. BILLYE L. WEAVER (HEREIN CALLED WEAVER), WHO IS A MEMBER OF THE
BARGAINING UNIT, HAS BEEN EMPLOYED BY RESPONDENT IN THE LABORATORY
SERVICE SINCE 1966. FROM 1967 UNTIL 1975 SHE WAS HEAD OF THE CHEMISTRY
DEPARTMENT. IN 1975 ANOTHER WOMAN WAS BROUGHT IN TO THE SECTION AS
SUPERVISOR. WEAVER, WHO WAS A GS-7 AT THE TIME, FILED A GRIEVANCE AS A
RESULT THEREOF, AND IT WAS AGREED WITH MANAGEMENT THAT SHE WOULD BE
GIVEN THE NEXT GS-9 POSITION THEREIN.
3. IN 1976 WEAVER WAS PUT IN THE MICROBIOLOGY SECTION TO SUPPORT
LOSSON ROGERS, SUPERVISOR OF THAT BRANCH. SHE HAS CONTINUED TO WORK
THEREAT, ALTHOUGH THE POSITION DESCRIPTION FOR THIS EMPLOYEE IS THAT OF
A MEDICAL TECHNOLOGIST, CHEMISTRY GS-7.
4. SINCE APRIL 1976 WEAVER HAS BEEN THE CHIEF STEWARD OF COMPLAINANT
UNION. THERE ARE ALSO 10 UNION STEWARDS WHO ARE EMPLOYED AT THE CENTER.
THEY MEET CONTINUALLY WITH WEAVER TO DISCUSS GRIEVANCES AND OTHER
PERSONNEL MATTERS. WEAVER, AS CHIEF STEWARD, CONFERS WITH MANAGEMENT
DAILY IN THE PURSUANCE OF HER DUTIES AS THE REPRESENTATIVE OF THE UNIT
EMPLOYEES.
5. BY LETTER DATED AUGUST 13, 1977 WEAVER WROTE TO ROGERS REQUESTING
REASSIGNMENT FROM THE BACTERIOLOGY SECTION TO THE CHEMISTRY SECTION. SHE
EMPHASIZED THAT HER ASSIGNMENT A YEAR AGO WAS MERELY TO RENDER SUPPORT,
AND THAT HER SKILLS ARE FOR CHEMISTRY.
6. A REPLY LETTER DATED JANUARY 6, 1978 FROM ROGERS STATED HE HAD
BEEN UNABLE TO MAKE THE REASSIGNMENT; THAT HER PERFORMANCE IN
MICROBIOLOGY IS EXCELLENT; AND THAT HER PERFORMANCE THEREIN DID NOT
VIOLATE HER POSITION DESCRIPTION.
7. IN MARCH 1978 WEAVER APPLIED FOR A GS-9, MEDICAL TECHNOLOGIST,
SUPERVISORY POSITION WHICH BECAME AVAILABLE IN MICROBIOLOGY. ON MAY 10,
1978 DR. CARL F. TESSMER, CHIEF OF THE LABORATORY SERVICE AT THE
VETERANS ADMINISTRATION, INTERVIEWED WEAVER IN THE PRESENCE OF
SUPERVISOR ROGERS. NO DISCUSSION ENSUED RE THE DETAILS OF THE POSITIONS
OR THE WORK ENTAILED, BUT TESSMER ASKED THE EMPLOYEE SEVERAL QUESTIONS
DEALING WITH HER FUNCTIONS AS UNION STEWARD. HE MENTIONED THAT WEAVER
WOULD HAVE TO GIVE UP HER UNION ACTIVITIES IF SHE BECAME A SUPERVISOR,
AND THEN TESSMER INQUIRED HOW SHE WOULD FUNCTION IN SUCH CAPACITY IF SHE
WERE NOT PERFORMING UNION DUTIES. WEAVER REMARKED THAT SHE HAD BEEN
DEDICATED TO THE JOB OF CHIEF UNION BUT THAT EACH ONE WAS A DIFFERENT
TASK. WHEREUPON TESSMER ASKED THE EMPLOYEE HOW SHE WOULD DEFINE THE
DIFFERENCE, AND SHE REPLIED THAT EACH HAD SPECIFIC JOBS TO DO AND THERE
SHOULD BE BILATERAL COMMUNICATION.
TESSMER ALSO ASKED WEAVER WHETHER SHE "WOULD FILE ON US LIKE YOU DID
IN 1975" IF THE EMPLOYEE WAS NOT SELECTED FOR THE POSITION. WHEREUPON
WEAVER SAID SHE WOULD NOT BECAUSE, UNLIKE THE PRESENT SITUATION,
MANAGEMENT TOOK AWAY SOMETHING SHE HAD IN 1975.
8. IN JUNE AND JULY 1978 WEAVER REPEATED HER WRITTEN REQUESTS TO BE
REASSIGNED TO CHEMISTRY. IN EACH INSTANCE TESSMER DENIED THE REQUEST
AND STATED, IN WRITING, THAT WEAVER WAS NEEDED IN MICROBIOLOGY AND THAT
SHE SHOWED INTEREST IN, AND DEVOTION TO, THAT SECTION. THE RECORD
ESTABLISHES THAT NO OPPORTUNITY EXISTED FOR WEAVER'S ADVANCEMENT IN
MICROBIOLOGY EXCEPT TO A GS-9 SUPERVISOR, BUT THAT SHE COULD ADVANCE IN
THE CHEMISTRY SECTION TO A GS-9 OR 11.
9. PRIOR TO THE SELECTION OF THE SUPERVISOR IN MICROBIOLOGY, GS-9,
THE PERSONNEL DEPARTMENT COMPILED A LIST OF ELIGIBLE CANDIDATES FOR THE
POSITION. IT WAS PREPARED FROM THE INFORMATION CONTAINED IN MERIT
PROMOTION FILES OF EMPLOYEES. THERE WERE SIX INDIVIDUALS ON THIS LIST
WHO COMPETED FOR THE JOB, AND WEAVER RANKED FOURTH THEREON. HOWEVER,
THE SCORES AND RANK OF EACH PERSONS WAS NOT SHOWN TO TESSMER. PERSONNEL
FIRST SENT HIM THE SIX NAMES IN ALPHABETICAL ORDER, AS WELL AS NAMES OF
"REASSIGNMENT ELIGIBLES" WHO, ALTHOUGH QUALIFIED FOR THE OPENING, WERE
NOT COMPETING AS THEY WERE ALL CLASSIFIED AS GS-9. IN ADDITION, TESSMER
WAS FURNISHED WITH THE PERSONNEL FOLDER FOR EACH CANDIDATE. RECORD
FACTS ALSO REFLECT THAT ALL SIX INDIVIDUALS WERE CONSIDERED HIGHLY
QUALIFIED; THAT, EXCEPT FOR WEAVER, THESE PERSONS RESIDED IN AREAS
OUTSIDE TEMPLE, TEXAS.
10. IN SELECTING THE SUPERVISOR FOR MICROBIOLOGY IN 1978, TESSMER
TESTIFIED HE CONSIDERED AS PARAMOUNT THE FACTORS OF ACADEMIC STANDING,
EXPERIENCE, ABILITY, AND TRAINING OF THE INDIVIDUAL. HE CHOSE ANN WOLF
OF SAN DIEGO BASED ON HER EXPERIENCE AND EXCELLENCE IN THE FIELD OF
INFECTIOUS DISEASE AND EPIDEMIOLOGY. TESSMER MAINTAINS THAT WEAVER WAS
RATED FIFTH BY HIM; THAT SHE DID NOT HAVE THE COMPARABLE EXPERIENCE OR
EDUCATION IN THE PARTICULAR FIELDS WHICH HE DEEMED MOST IMPORTANT FOR
THE POSITION. WHILE EACH CANDIDATE POSSESSED THE CIVIL SERVICE
REQUIREMENTS AND HAD LAB EXPERIENCE, TESSMER EVALUATED THE INDIVIDUALS
INDEPENDENTLY AND USED CRITERIA DERIVED OUT OF THE VA SYSTEM, ITS
DIRECTIVES AND HIS OWN EXPERIENCE. IN ADDITION TO SPEAKING WITH WEAVER,
THE CHIEF OF THE LABORATORY SERVICE CONFERRED, VIA TELEPHONE, WITH TWO
OR THREE OTHER PROSPECTIVE SELECTEES REGARDING THE POSITION.
11. THE RECORD ALSO REVEALS THAT, ALTHOUGH HE DID NOT SELECT THE
INDIVIDUAL FOR THE JOB, ROGERS CONCURRED IN THE SELECTION; THAT WOLF
WAS CHOSEN BECAUSE OF HER ADDED SKILLS IN "TB" BACTERIOLOGY.
CONCLUSIONS
IN ASSERTING THAT RESPONDENT HAS VIOLATED THE ORDER COMPLAINANT MAKES
TWO PRINCIPAL CONTENTIONS: (1) THE INTERROGATION BY DR. TESSMER OF
BILLYE WEAVER ON MAY 10, 1978 WAS COERCIVE AND ILLEGAL; (2) THE FAILURE
OR REFUSAL TO PROMOTE WEAVER TO GS-9 SUPERVISOR IN MICROBIOLOGY, WAS
BASED ON HER UNION ACTIVITIES AS CHIEF STEWARD AND THUS DISCRIMINATING
HEREIN.
(1) BOTH THE PRIVATE AND PUBLIC SECTORS HAVE OUTLAWED QUESTIONING OF
EMPLOYEES BY AN EMPLOYER WHERE SUCH CONDUCT IS DEEMED TO BE INTIMIDATING
OR COERCIVE. INTERROGATION RE UNION ACTIVITIES OF AN INDIVIDUAL MAY
WELL PRODUCE SUCH EFFECTS, AND, IN SUCH AN INSTANCE, IT CONSTITUTES A
VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
IN RESPECT TO THE QUESTIONS POSED BY TESSMER TO WEAVER ON MAY 10,
1978 CONCERNING HER FUNCTIONING AS A STEWARD OF THE UNION IF SHE BECAME
A SUPERVISOR, RESPONDENT MAINTAINS THIS IS LEGITIMATE CONDUCT WHEN
OCCURRING DURING AN INTERVIEW OF AN APPLICANT FOR A SUPERVISORY
POSITION. I AGREE. A SUPERVISOR MUST NECESSARILY BE ALLIED WITH, AND
BE A PART OF, THE MANAGEMENT HIERARCHY. AS SUCH, HE SHOULD NO LONGER
PERFORM ANY FUNCTIONS EXERCISED PREVIOUSLY AS A REPRESENTATIVE OR
OFFICIAL OF THE COLLECTIVE BARGAINING REPRESENTATIVE. IN THE CASE AT
BAR RESPONDENT QUESTIONED WEAVER IN THIS REGARD. TESSMER INQUIRED AS TO
HOW SHE WOULD FUNCTION AS A SUPERVISOR WITHOUT PERFORMING DUTIES OF A
CHIEF STEWARD. SINCE WEAVER MIGHT BE PROMOTED TO A SUPERVISORY
POSITION, THE EMPLOYER HEREIN WAS ENTITLED TO ASCERTAIN WHETHER THE
EMPLOYEE EXPECTED TO CONTINUE HER REPRESENTATIONAL DUTIES. IN THE
CONTEXT OF SUCH AN INTERROGATION I FIND NO RESTRAINT OR COERCION
DIRECTED TOWARD THE APPLICANT. NONE OF THE QUESTIONS IN THIS RESPECT
SUGGESTED THAT TESSMER DESIRED TO INTERFERE WITH WEAVER IN THE
PERFORMANCE OF HER JOB AS CHIEF STEWARD, NOR MAY IT BE REASONABLY
CONCLUDED THAT THIS INTERROGATION CARRIED WITH IT IMPLIED COERCION. I
DEEM THESE PARTICULAR QUESTIONS AS PERMISSIBLE AND NOT VIOLATIVE OF
19(A)(1).
CONTRARIWISE, I DO NOT AGREE WITH RESPONDENT THAT IT WAS ENTITLED TO
ASK WEAVER WHETHER SHE WOULD FILE A GRIEVANCE, AS CHIEF STEWARD IF THE
EMPLOYEE WAS NOT SELECTED FOR THE SUPERVISORY POSITION. SUCH
QUESTIONING MAY WELL TEND TO IMPOSE A RESTRAINING INFLUENCE UPON THE
CANDIDATE, FOR IT SUGGESTS THAT WEAVER MUST FOREGO HER RIGHTS UNDER THE
CONTRACT, IN RESPECT TO GRIEVANCES, IN ORDER TO OBTAIN THE PROMOTION.
THERE WAS, IN THIS INSTANCE, NO LEGITIMATE PURPOSE TO BE SERVED BY
INTERROGATING THE EMPLOYEE AS TO HER INTENTIONS RE THE FILING OF
GRIEVANCE. IN FEDERAL AVIATION ADMINISTRATION ET. AL, A/SLMR NO. 920 AN
EMPLOYER WAS HELD TO HAVE VIOLATED 19(A)(1) WHEN IT QUESTIONED AN
EMPLOYEE RE HIS FILING OF A GRIEVANCE AND THE POSSIBLE EFFECTS THEREOF.
WHILE THE INTERROGATION IN THE CITED CASE CONCERNED THE MOTIVE FOR
FILING A GRIEVANCE, THE HOLDING THAT SUCH QUESTIONING CONSTITUTES
INTERFERENCE UNDER THE ORDER IS APPOSITE HEREIN. THE RIGHT TO FILE
GRIEVANCES, WHICH STEMS FROM THE CONTRACT BETWEEN MANAGEMENT AND THE
UNION, GIVES RISE TO UNION ACTIVITY WHICH IS PROTECTED. ANY
INFRINGEMENT THEREON IN THE FORM OF INTERROGATION AS TO WHETHER AN
INDIVIDUAL WOULD FILE A GRIEVANCE UNDER THE CONTRACT MUST NECESSARILY
EXERCISE A RESTRAINING INFLUENCE UPON SUCH PERSON. IT CONSTITUTES, IN
MY OPINION, A VIOLATION OF 19(A)(1) OF THE ORDER.
(2) IT IS WELL ESTABLISHED THAT AN EMPLOYER MAY NOT DISCRIMINATE
AGAINST ANY EMPLOYEE BECAUSE OF HIS UNION ACTIVITIES. IN THE ABSENCE OF
A MOTIVE, IN WHOLE OR IN PART, BASED ON ANTI-UNION CONSIDERATIONS,
MANAGEMENT MAY WELL TAKE ACTION WHICH AFFECTS THE WORKING CONDITIONS OF
ITS EMPLOYEES. THUS IT MAY DENY A PROMOTION TO AN INDIVIDUAL IF SUCH
DENIAL IS NOT PREDICATED UPON THE EMPLOYEE'S ACTIVITIES ON BEHALF OF THE
UNION REPRESENTATIVE. VETERANS ADMINISTRATION CENTER, SAN JUAN, PUERTO,
RICO, A/SLMR NO. 1137.
COMPLAINANT INSISTS THAT BILLYE WEAVER WAS NOT SELECTED FOR THE
SUPERVISOR'S POSITION IN MICROBIOLOGY, GS-9, AS A RESULT OF HER
ACTIVITIES AS CHIEF STEWARD OF THE UNION. I DO NOT AGREE.
RECORD FACTS REVEAL THAT DR. TESSMER CHOSE ANN WOLF FROM SAN DIEGO
BECAUSE OF HER EXPERTISE AND TRAINING IN INFECTIOUS DISEASES AND
EPIDEMIOLOGY. IN UTILIZING THE STANDARDS OF ACADEMICS, EXPERIENCE,
ABILITY AND TRAINING, TESSMER RATED THE SIX CANDIDATES FOR THE JOB IN
ACCORDANCE THEREWITH. WOLF RANKED FIRST AND WEAVER WAS FIFTH ON HIS
LIST. FURTHER, SUPERVISOR ROGERS AGREED WITH THE SELECTION, CONFIRMING
THE FACT THAT WOLF HAD MORE EXPERIENCE AND TRAINING IN THE PARTICULAR
AREAS WHICH MANAGEMENT DEEMED MOST IMPORTANT. IN AN INDEPENDENT RATING
CONDUCTED BY PERSONNEL-- WHICH WAS NOT BROUGHT TO TESSMER'S ATTENTION--
WEAVER WAS RANKED FOURTH OUT OF THE SIX CANDIDATES. NEVERTHELESS, THE
INFORMATION, UPON WHICH PERSONNEL PREDICATED ITS RATINGS, WAS FURNISHED
TO THE CHIEF OF THE LABORATORY TO ASSIST HIM IN CHOOSING THE INDIVIDUAL
TO FILL THE OPENING.
THE RECORD IS BARREN OF ANY UNION ANIMUS FOCUSED UPON WEAVER OR ANY
OTHER REPRESENTATIVE OF THE LABOR ORGANIZATION. NOWHERE DOES IT APPEAR
THAT WEAVER WAS OBSTRUCTED OR FRUSTRATED BY MANAGEMENT IN THE PURSUANCE
OF HER DUTIES AS CHIEF STEWARD. MOREOVER, THE RECORD DOES NOT REFLECT
HOSTILITY BY RESPONDENT TOWARD THIS EMPLOYEE, OR ANY OF THE 10 UNION
STEWARDS BY REASON OF HER UNION ACTIVITIES. WHILE I CONCLUDE THAT
TESSMER'S QUESTIONING WHETHER WEAVER WOULD FILE A GRIEVANCE IF SHE WERE
NOT SELECTED RAN AFOUL OF THE ORDER, IT DOES NOT PER SE GIVE RISE TO AN
INFERENCE THAT THIS EMPLOYEE WAS DENIED THE PROMOTION BASED ON HER PAST
ACTIVITIES AS CHIEF STEWARD OF THE UNION. I CANNOT CONCLUDE, UNDER ALL
THE CIRCUMSTANCES, THAT SUCH INTERROGATION REFLECTS THAT RESPONDENT WAS
MOTIVATED BY ANTI-UNION CONSIDERATIONS IN MAKING ITS SELECTION. RATHER
AM I PERSUADED THAT TESSMER CHOSE THE INDIVIDUAL WHOM HE DEEMED MOST
QUALIFIED BASED UPON THE FACTORS HEREINWHERE MENTIONED; THAT THE
REFUSAL BY HIM TO SELECT WEAVER WAS NOT PREDICATED ON HER ACTIVITIES AS
CHIEF STEWARD OF THE UNION; AND THAT MANAGEMENT TOOK NO STEPS TO EITHER
DOWNGRADE THIS EMPLOYEE, OR HINDER HER ADVANCEMENT, AS A RESULT OF SUCH
ACTIVITIES. ACCORDINGLY, I CONCLUDE RESPONDENT DID NOT VIOLATE SECTION
19(A)(1) OR (2) OF THE ORDER BY FAILING AND REFUSING TO PROMOTE BILLYE
WEAVER TO THE GS-9 SUPERVISORY POSITION IN MICROBIOLOGY.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT ENGAGED IN CERTAIN CONDUCT PROHIBITED BY
SECTION 19(A)(1) OF THE ORDER, I RECOMMEND THAT THE FEDERAL LABOR
RELATIONS AUTHORITY ADOPT THE FOLLOWING ORDER DESIGNED TO EFFECTUATE THE
PURPOSES OF EXECUTIVE ORDER 11491, AS AMENDED. IN RESPECT TO THE
ALLEGED VIOLATIONS OF 19(A)(1) BASED UPON QUESTIONING BY DR. CARL
TESSMER, CHIEF OF THE LABORATORY SECTION, OF BILLYE WEAVER RE HER
ABILITY TO FUNCTION AS A SUPERVISOR WITHOUT PERFORMING THE FUNCTIONS OF
A CHIEF STEWARD, IT IS RECOMMENDED THE COMPLAINT BE DISMISSED. IN
RESPECT TO THE ALLEGED VIOLATION OF 19(A)(2) BY RESPONDENT BASED UPON
ITS FAILURE TO PROMOTE WEAVER TO A GS-9, SUPERVISOR, IN MICROBIOLOGY, OR
ITS OTHERWISE RESTRICTING HER ADVANCEMENT OR EMPLOYMENT, IT IS
RECOMMENDED THE COMPLAINT BE DISMISSED.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26 OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS AUTHORITY
HEREBY ORDERS THAT THE VETERANS ADMINISTRATION CENTER, TEMPLE, TEXAS,
SHALL:
1. CEASE AND DESIST FROM
(A) INTERROGATING ITS EMPLOYEES AS TO WHETHER THEY WILL FILE
GRIEVANCES AGAINST IT BASED UPON ANY ACTION TAKEN BY MANAGEMENT TOWARD
THE EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER:
(A) POST AT ITS FACILITY AT THE OLIN TEAGUE VETERANS ADMINISTRATION
CENTER, TEMPLE, TEXAS, 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 CHIEF OF THE
LABORATORY SERVICE 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 CHIEF SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY OTHER
MATERIAL.
(B) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, 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.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: SEPTEMBER 6, 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 FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERROGATE OUR EMPLOYEES AS TO WHETHER THEY WILL FILE
GRIEVANCES AGAINST US BASED UPON ANY ACTION TAKEN BY MANAGEMENT TOWARD
OUR EMPLOYEES.
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.
(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
THEREWITH, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR FOR
THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS ROOM 707,
GRIFFIN SQUARE BUILDING, GRIFFIN AND YOUNG STREETS, DALLAS, TEXAS 75202.
/1/ IN CONFORMITY WITH SEC. 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 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.