Veterans Administration Hospital, Danville, Illinois (Respondent) and Local 1963, American Federation of Government Employees, AFL-CIO (Charging Party)
[ v04 p432 ]
04:0432(59)CA
The decision of the Authority follows:
4 FLRA No. 59 VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS Respondent and LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case Nos. 5-CA-58 5-CA-201 DECISION AND ORDER THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED HIS RECOMMENDED DECISION AND ORDER FINDING THAT RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS, AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LABOR JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), 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 CASES, INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS AS MODIFIED BELOW. THE AUTHORITY FINDS, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) BY ITS UNILATERAL SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN IT AND THE CHARGING PARTY. IN THIS REGARD, THE AUTHORITY AGREES THAT RESPONDENT CLEARLY AND PATENTLY BREACHED THE AGREEMENT BY ITS ACTIONS OF REQUIRING MEDICAL DOCUMENTATION TO SUPPORT ONE DAY OF SICK LEAVE WITHOUT FIRST COUNSELING THE INDIVIDUAL EMPLOYEE; ITS REFUSAL TO PROCESS GRIEVANCES; AND ITS REFUSAL TO PROCESS GRIEVANCES TO ARBITRATION PURSUANT TO THE TERMS OF ITS AGREEMENT WITH THE CHARGING PARTY. HOWEVER, THE AUTHORITY FINDS, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT DID NOT VIOLATE THE STATUTE BY ITS ACTION IN CONDUCTING UNILATERAL INQUIRIES OR INVESTIGATIONS OF MATTERS INVOLVING UNIT EMPLOYEES CONTRARY TO THE TERMS OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. IN THIS REGARD, THE AUTHORITY NOTES THAT THIS LATTER CONDUCT OF RESPONDENT WAS NOT ALLEGED IN THE COMPLAINT AS VIOLATIVE OF THE STATUTE. IN REACHING ITS CONCLUSIONS HEREIN, THE AUTHORITY WISHES TO EMPHASIZE THAT THE RESOLUTION OF THE ISSUE OF WHETHER OR NOT CERTAIN EMPLOYEES ENGAGED IN AN UNLAWFUL WORK STOPPAGE WAS NOT NECESSARY UNDER THE CIRCUMSTANCES OF THIS CASE. THE COMPLAINT HEREIN ALLEGED A VIOLATION OF THE RESPONDENT'S DUTY TO THE CHARGING PARTY TO BARGAIN IN GOOD FAITH, BUT DID NOT ALLEGE A VIOLATION OF RIGHTS OF ANY EMPLOYEE ALLEGEDLY ENGAGED IN A WORK STOPPAGE. THE ISSUE AS TO WHETHER OR NOT THE CHARGING PARTY HAD VIOLATED SECTION 7116(B)(7) OF THE STATUTE WAS THE SUBJECT OF AN UNFAIR LABOR PRACTICE CHARGE FILED BY THE RESPONDENT IN CASE NO. 5-CO-9, WHICH WAS DISMISSED BY THE REGIONAL DIRECTOR AND THE APPEAL OF THE DISMISSAL TO THE GENERAL COUNSEL WAS DENIED. THUS, THERE IS NO LAWFUL BASIS ESTABLISHED FOR THE RESPONDENT'S ACTIONS IN RESTRICTING THE RIGHTS OF THE CHARGING PARTY UNDER THE TERMS OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. ORDER PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS SHALL: 1. CEASE AND DESIST FROM: A. SUSPENDING ITS COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES. B. REFUSING TO ACCEPT AND PROCESS GRIEVANCES, INCLUDING SUBMISSION TO ARBITRATION PURSUANT TO THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, BASED UPON ITS UNILATERAL SUSPENSION OF THE TERMS AND CONDITIONS OF THE COLLECTIVE BARGAINING AGREEMENT. C. REQUIRING MEDICAL DOCUMENTATION TO SUPPORT A REQUEST FOR SICK LEAVE OF LESS THAN THREE DAYS WITHOUT FIRST COUNSELING THE EMPLOYEE, CONTRARY TO THE TERMS OF ITS COLLECTIVE BARGAINING AGREEMENT. D. IN ANY LIKE OR RELATED MATTER INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION: A. UPON REQUEST OF LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, PROCESS ALL GRIEVANCES REJECTED ON THE BASIS OF THE UNLAWFUL SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INCLUDING, WHEN REQUESTED, ARBITRATION OF SUCH GRIEVANCES. B. POST AT THE FACILITIES OF THE VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS, 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 MEDICAL CENTER DIRECTOR, VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS IN ALL OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. C. 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., SEPTEMBER 30, 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 SUSPEND THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES. WE WILL NOT REFUSE TO ACCEPT AND PROCESS GRIEVANCES, INCLUDING SUBMISSION TO ARBITRATION PURSUANT TO THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, BASED UPON OUR UNILATERAL SUSPENSION OF THE TERMS AND CONDITIONS OF THE COLLECTIVE BARGAINING AGREEMENT. WE WILL NOT REQUIRE MEDICAL DOCUMENTATION TO SUPPORT A REQUEST FOR SICK LEAVE OF LESS THAN THREE DAYS WITHOUT FIRST COUNSELING THE EMPLOYEE, CONTRARY TO THE TERMS OF OUR COLLECTIVE BARGAINING AGREEMENT. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. WE WILL, UPON REQUEST OF LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, PROCESS ALL GRIEVANCES REJECTED ON THE BASIS OF THE UNLAWFUL SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INCLUDING, WHEN REQUESTED, ARBITRATION OF SUCH GRIEVANCES. (AGENCY OR ACTIVITY) DATE: . . . 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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: ROOM 1638, DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS, 60604, AND WHOSE PHONE NUMBER IS (312) 353-6746. -------------------- ALJ$ DECISION FOLLOWS -------------------- JAMES E. ADAMS AND CLAIRE R. MORRISON, ESQUIRES OFFICE OF THE GENERAL COUNSEL VETERANS' ADMINISTRATION WASHINGTON,D.C. 20420 FOR THE RESPONDENT GREGORY MIKSA AND BRENDA ROBINSON, ESQUIRES FEDERAL LABOR RELATIONS AUTHORITY ROOM 1638 219 SOUTH DEARBORN STREET CHICAGO, ILLINOIS 60604 FOR THE GENERAL COUNSEL MARC ROTH, ESQUIRE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES 1325 MASSACHUSETTS AVENUE, N.W. WASHINGTON, D.C. 20005 FOR THE UNION BEFORE: ELI NASH, JR. ADMINISTRATIVE LAW JUDGE CASE NOS. 5-CA-58, 5-CA-201 DECISION AND ORDER THESE PROCEEDINGS AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. 7101, ET SEQ., AND THE INTERIM RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG. VOL. 44, NO. 147, JULY 30, 1979, 5 C.F.R. CHAPTER XIV, PART 2411, ET SEQ. THE INSTANT MATTERS WERE INITIATED BY CHARGES FILED ON APRIL 12, 1979 AND AUGUST 1, 1979, RESPECTIVELY. THE AUGUST 1, 1979 CHARGE WAS AMENDED ON AUGUST 13, 1979. THESE CASES WERE CONSOLIDATED AND COMPLAINT AND NOTICE OF HEARING ISSUED ON SEPTEMBER 6, 1979 ALLEGING A VIOLATION OF 5 U.S.C. 7116(A)(1) AND (5) BASED ON THE ALLEGED REFUSAL TO PROCESS A GRIEVANCE OVER REPRIMANDS OF EMPLOYEES AND FAILING AND REFUSING TO ENGAGE IN ARBITRATION OVER THE SAME GRIEVANCE. A HEARING WAS HELD ON NOVEMBER 6 AND 7, 1979, IN DANVILLE, ILLINOIS. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES HEREIN. ALL PARTIES SUBMITTED TIMELY BRIEFS IN THE MATTER. UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS. A. CONTRACTUAL BACKGROUND LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, (HEREINAFTER REFERRED TO AS THE "UNION") IS THE RECOGNIZED EXCLUSIVE BARGAINING REPRESENTATIVE OF OVER 1200 NON-PROFESSIONAL EMPLOYEES AT THE FACILITY MAINTAINED BY THE VETERANS ADMINISTRATION MEDICAL CENTER, DANVILLE, ILLINOIS (HEREINAFTER REFERRED TO AS THE "RESPONDENT"). ON JULY 11, 1977, THE RESPONDENT ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT WITH THE UNION RECOGNIZING IT AS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR ALL EMPLOYEES EMPLOYED BY THE RESPONDENT, BUT EXCLUDING ALL PROFESSIONAL EMPLOYEES, ALL SUPERVISORS, ALL MANAGEMENT OFFICIALS, AND ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY. THE AGREEMENT WAS EFFECTIVE FOR A PERIOD OF 2 YEARS FROM THE DATE OF APPROVAL SUBJECT TO AUTOMATIC RENEWAL ABSENT TERMINATION BY EITHER PARTY AND WAS AT ALL TIMES MATERIAL HEREIN IN EFFECT BETWEEN THE PARTIES. ARTICLE 26-2 OF THE AGREEMENT PROVIDES: BEFORE REQUIRING MEDICAL EVIDENCE FOR SICK LEAVE OF THREE DAYS OR LESS, SUPERVISORS WILL COUNSEL EMPLOYEES REGARDING SICK LEAVE USAGE ON AT LEAST ONE OCCASION . . . . ARTICLE 20-1 PROVIDES FOR INCORPORATING BY REFERENCES CERTAIN PROVISIONS OF VETERANS ADMINISTRATION MANUAL MP-5 INTO THE SICK LEAVE PROVISION OF THE AGREEMENT AND ARTICLE 20, ENTITLED "THE NEGOTIATED GRIEVANCE PROCEDURE," SECTION 1 PROVIDES AS FOLLOWS: THE PURPOSE OF THIS ARTICLE IS TO PROVIDE FOR A MUTUALLY ACCEPTABLE METHOD FOR THE PROMPT AND EQUITABLE SETTLEMENT OF GRIEVANCES INVOLVING INTERPRETATION, APPLICATION, OR VIOLATION OF THIS AGREEMENT, OR ANY MATTER INVOLVING THE INTERPRETATION OR APPLICATION OF AGENCY AND CIVIL SERVICE POLICIES AND REGULATIONS . . . FURTHER, ARTICLE 21 OF THE AGREEMENT PROVIDES FOR THE MANDATORY AND BINDING ARBITRATION OF GRIEVANCES NOT RESOLVED AT THE INFORMAL STAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE ON THE REQUEST OF EITHER PARTY TO THE AGREEMENT. ARTICLE 38 OF THE AGREEMENT READS, IN PERTINENT PART: GRIEVANCES OVER ADMONISHMENTS AND REPRIMANDS MAY BE PROCESSED AS PROVIDED IN THE NEGOTIATED GRIEVANCES PROCEDURE. FINALLY, ARTICLE 37-3 READS: WHENEVER THE HOSPITAL DIRECTOR APPOINTS A COMMITTEE TO CONDUCT AN INQUIRY OR INVESTIGATION INTO AN INCIDENT INVOLVING A UNIT MEMBER, AT LEAST ONE OF THE COMMITTEE MEMBERS SHALL BE SELECTED FROM A PANEL COMPRISED OF UNION OFFICERS AND STEWARDS OF THE UNIT. THE UNION OR HOSPITAL DIRECTOR MAY REQUEST THAT ADDITIONAL NAMES BE ADDED TO THE PANEL. B. MARCH 28, 1979 INCIDENT ON MARCH 28, 1979 /1/ APPROXIMATELY 35 HOUSEKEEPING EMPLOYEES OUT OF A WORK FORCE OF ABOUT 75 WERE ABSENT FROM WORK. RESPONDENT AFTER MAKING A UNILATERAL INVESTIGATION OF THE HIGH ABSENTEE RATE DETERMINED THAT THE ABSENCES OF THIS UNUSUALLY LARGE NUMBER OF BUILDING MANAGEMENT SERVICE EMPLOYEES SIGNIFIED SOMETHING OTHER THAN LEGITIMATE LEAVE UTILIZATION. FOLLOWING THIS DETERMINATION, CHARLES HOWELL, RESPONDENT'S REPRESENTATIVE, HELPED IN TELEPHONING AND DELIVERING THE FOLLOWING MESSAGE PREPARED BY THE HOSPITAL DIRECTOR, S. H. BIRDZELL TO THE HOMES OF EMPLOYEES WHO WERE ON LEAVE AT THE TIME: AN USUALLY LARGE NUMBER OF BUILDING MANAGEMENT SERVICE EMPLOYEES HAVE NOTIFIED THEIR SUPERVISORS THAT THEY WERE UNABLE TO REPORT TO WORK ON WEDNESDAY, MARCH 28, 1979, BECAUSE OF ILLNESS. THIS APPEARS TO SUPPORT AN EARLIER RUMOR THAT EMPLOYEES OF THIS SERVICE MIGHT PARTICIPATE IN A SICK OUT TO PROTEST A RECENT SELECTION MADE UNDER THE MERIT PROMOTION PLAN. EMPLOYEES ARE REMINDED THAT THERE ARE VERY STRICT PROHIBITIONS AGAINST FEDERAL EMPLOYEES PARTICIPATING IN ANY STRIKE OR WORK STOPPAGE AGAINST THE GOVERNMENT. TITLE V, U.S. CODE, PROVIDES THAT AN INDIVIDUAL MAY NOT ACCEPT, OR HOLD A POSITION IN THE GOVERNMENT OF THE UNITED STATES IF HE PARTICIPATES IN A STRIKE AGAINST THE GOVERNMENT. TITLE XVIII, U.S. CODE, PROVIDES FOR A FINE OF NOT MORE THAN $1,000, OR IMPRISONMENT OF NOT MORE THAN ONE YEAR, OR BOTH, FOR PARTICIPATION IN STRIKE ACTIVITIES. YOU ARE HEREBY NOTIFIED THAT APPROVAL OF YOUR TELEPHONE REQUESTS FOR SICK LEAVE FOR MARCH 28, 1979, IS BEING WITHHELD UNTIL SUCH TIME AS YOU FURNISH SATISFACTORY MEDICAL EVIDENCE OF YOUR NEED FOR SICK LEAVE FOR THE PERIOD OF YOUR ABSENCE. I STRONGLY SUGGEST THAT YOU RETURN TO WORK ON YOUR NEXT SCHEDULED TOUR IF AT ALL POSSIBLE. YOU SHOULD BE PREPARED TO PRESENT SATISFACTORY MEDICAL EVIDENCE OF YOUR INCAPACITATION BEFORE A DETERMINATION CAN BE MADE REGARDING YOUR REQUEST FOR SICK LEAVE. YOU SHOULD BE AWARE THAT MANAGEMENT CONSIDERS ANY CONCERTED ACTIVITIES, SUCH AS A SICK OUT, TO BE A VERY GRAVE MATTER. THE RECORD REVEALED NO EVIDENCE THAT ANY OF RESPONDENT'S FIRST SUPERVISORS CONTACTED THE AFFECTED EMPLOYEES FOR COUNSELLING ON MARCH 28 OR THAT THEY FOLLOWED ANY PROCEDURE OTHER THAN TO ROUTINELY RECORD THE FACT THAT THEY HAD BEEN CONTACTED BY AN EMPLOYEE FOR LEAVE, AS WAS THE NORMAL PRACTICE. THUS, IT APPEARS THAT THE LEAVE WHEN INITIALLY REQUESTED WAS GRANTED IN THE NORMAL COURSE OF BUSINESS AND WITHOUT COUNSELLING BY ANY SUPERVISORS WHO WOULD GENERALLY BE RESPONSIBLE FOR SUCH ACTION EVEN IF THE EMPLOYEE HAD BEEN REQUESTED TO PRODUCE MEDICAL DOCUMENTATION UPON RETURN TO WORK. ON THE SAME DAY, JAMES MONROE, UNION CHIEF STEWARD, INITIATED A UNION GRIEVANCE UNDER THE AGREEMENT CITING VIOLATIONS OF THE VETERANS ADMINISTRATION MANUAL, MP-5, AND CIVIL SERVICE COMMISSION (NOW OFFICE OF PERSONNEL MANAGEMENT, OPM), REGULATIONS PERTAINING TO SICK LEAVE WHICH ARE INCORPORATED BY REFERENCE INTO THE AGREEMENT. THE GRIEVANCE REQUESTED THE GRANT OF SICK LEAVE REQUESTS "WITH NO HARRASSMENT." MR. MONROE WAS INITIALLY ADVISED BY MR. BRADLEY CONNERS, RESPONDENTS ASSISTANT CHIEF OF PERSONNEL THAT THE MATTER COVERED BY THIS GRIEVANCE WAS "NOT A GRIEVABLE MATTER DUE TO THE FACT THAT THERE WAS . . . A WORK STOPPAGE." C. EVENTS FOLLOWING MARCH 28, 1979 ABOUT MARCH 29 AND CONTINUING THROUGH APRIL 3, UNION STEWARD GENE VANDERPORT ASSISTED BETWEEN NINE AND TWELVE HOUSEKEEPING EMPLOYEES IN THEIR PRESENTATION OF MEDICAL DOCUMENTATION TO SUPERVISORS CHARLES HOPKINS AND CHARLES HOWELL. DURING THE DISCUSSIONS WITH HOWELL AND HOPKINS, VANDERPORT WAS TOLD SEVERAL TIMES THAT THE CONTRACT WAS "SUSPENDED." ON MARCH 29 CHIEF STEWARD MONROE WAS TOLD BY MR. CONNERS THAT NOT ONLY WAS THE MATTER NOT GRIEVABLE BUT THAT THE ABSENT EMPLOYEES "WERE NOT ENTITLED TO REPRESENTATION UNDER THE CONTRACT OF THEIR GRIEVANCE." SIMILARLY, CONNERS TOLD UNION BUSINESS AGENCY CLARENCE DRAKE THAT THE COLLECTIVE BARGAINING AGREEMENT WAS "NULL AND VOID." CONNERS DENIES HAVING MADE SUCH STATEMENTS ALTHOUGH HE DID ON JUNE 22 PROVIDE A STATEMENT TO A FEDERAL LABOR RELATIONS AUTHORITY INVESTIGATOR CONFIRMING THAT RESPONDENT, ON THE ADVICE OF ITS CENTRAL OFFICE, STATED THAT THE AGREEMENT WAS SUSPENDED. IN ALL THE CIRCUMSTANCES, THE TESTIMONY OF UNION REPRESENTATIVES THAT THEY WERE TOLD THAT THE CONTRACT WAS SUSPENDED IS CREDITED. AFTER SEVERAL REPRESENTATIONS BY RESPONDENT THAT THE AGREEMENT WAS "NULL AND VOID" OR "SUSPENDED" THE UNION ON APRIL 6 FILED AN UNFAIR LABOR PRACTICE CHARGE ALLEGING IN ESSENCE THAT RESPONDENT HAD PATENTLY AND OPENLY BREACHED THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES. THEREAFTER, ON APRIL 6 THE PROCESSING OF THE MARCH 28 GRIEVANCE WAS DISCONTINUED AFTER AN ATTEMPT TO ELEVATE IT TO STEP 3 OF THE CONTRACTUAL GRIEVANCE PROCEDURE. AROUND APRIL 10 STEWARD VANDERPORT AGAIN ACCOMPANIED THE NINE TO TWELVE HOUSEKEEPING EMPLOYEES, WHO HAD PREVIOUSLY BEEN REQUESTED TO PRODUCE MEDICAL DOCUMENTATION FOR THE MARCH 28 ABSENCES, TO MEETINGS WITH SUPERVISOR HOPKINS. AT THESE MEETINGS THE EMPLOYEES WERE GIVEN REPRIMANDS CONCERNING THEIR USE OF LEAVE OF MARCH 28 AND TOLD THAT IT WAS RESPONDENT'S POSITION THAT THE CONTRACT WAS SUSPENDED. THEREAFTER, ON APRIL 16, THE UNION INITIATED A SECOND CONTRACTUAL GRIEVANCE CONCERNING CONTRACT VIOLATIONS RESULTING FROM THE REPRIMANDS OF HOUSEKEEPING EMPLOYEES. DURING A SECOND STEP MEETING CONCERNING THE APRIL 16 GRIEVANCE CONCERNING THE REPRIMANDS, STEWARD VANDERPORT WAS AGAIN TOLD BY SUPERVISOR HOPKINS THAT THE CONTRACT WAS SUSPENDED. HOPKINS WRITTEN REPLY TO THE APRIL 16 GRIEVANCE STATES, IN PART: THE FACT THAT AN ILLEGAL WORK STOPPAGE OCCURRED ON MARCH 28 STRIPS PARTICIPANTS IN THAT WORK STOPPAGE OF THE BENEFITS AND PROTECTION OF LAW AND OF THE NEGOTIATED AGREEMENT ALIKE. ACCORDINGLY, THE EMPLOYEES INVOLVED HAVE NO BENEFIT OF PURSUING A GRIEVANCE UNDER THE AGREEMENT CONCERNING MATTERS RESULTING FROM THE ILLEGAL WORK STOPPAGE. AGAIN, AT A THIRD STEP MEETING CONCERNING THE APRIL 16 GRIEVANCE, STEWARDS MONROE AND VANDERPORT WERE TOLD BY ASSISTANT PERSONNEL CHIEF CONNERS THAT THE UNION'S CONTRACT WAS SUSPENDED. HOSPITAL DIRECTOR BIRDZELL ALSO ATTENDED THIS MEETING AND, ALTHOUGH TESTIFYING AT THE HEARING, DID NOT DENY THAT THE UNION WAS TOLD THAT THE AGREEMENT WAS SUSPENDED. THE APRIL 16 GRIEVANCE WAS REJECTED BY LETTER DATED MAY 10 WHICH STATED, " . . . THE EMPLOYEES INVOLVED HAVE NO BENEFIT OF PURSUING A GRIEVANCE UNDER THE AGREEMENT ON MATTERS RESULTING FROM THE ILLEGAL RANK STOPPAGE." THE LETTER ALSO RAISED THE ISSUE APPLICABILITY OF "SECTION 7116(D) OF THE CIVIL SERVICE REFORM ACT" SINCE, AS IT CONCLUDED, THE SAME ISSUE HAD ALREADY BEEN RAISED AS AN UNFAIR LABOR PRACTICE. SUBSEQUENTLY, THE MAY 10 REQUEST FOR ARBITRATION WAS DENIED ON MAY 21 BY MEDICAL CENTER DIRECTOR BIRDZELL BECAUSE "THE ISSUE DOES NOT FALL WITHIN THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE" AND THAT THE RAISING OF THIS SAME ISSUE WAS "PRECLUDED FROM BEING CONSIDERED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE BY PROVISIONS OF SEC. 7116(D)." FOLLOWING THIS REJECTION, THE UNION ON AUGUST 1 FILED A SECOND UNFAIR LABOR PRACTICE CHARGE. RESPONDENT THEREAFTER FILED AN UNFAIR LABOR PRACTICE CHARGE AGAINST THE UNION ALLEGING A CONCERTED WITHHOLDING OF SERVICES AS A RESULT OF UNION LEADERS REMARKS AND POLICIES UNDER 5 U.S.C. 7116(B)(7), IN CASE 5-CO-9. THAT CHARGE WAS DISMISSED BY THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY REGION V ON OCTOBER 19 SINCE THERE WAS, IN HIS VIEW, "INSUFFICIENT EVIDENCE TO SHOW THAT THE UNION INITIATED, INSTIGATED, MAINTAINED OR CONDONED SUCH A WITHHOLDING OF SERVICES." DISCUSSION AND CONCLUSIONS THE BASIC ISSUE IN THIS MATTER IS WHETHER RESPONDENT HAD THE RIGHT TO UNILATERALLY SUSPEND ITS COLLECTIVE BARGAINING AGREEMENT WITH THE UNION AND REFUSE TO PROCESS A GRIEVANCE OR TO ARBITRATE A GRIEVANCE BASED ON ITS OWN UNILATERAL INVESTIGATION AND BELIEF THAT AN ILLEGAL WORK STOPPAGE HAD OCCURRED AT ITS HOSPITAL ON MARCH 28. RESPONDENT CONTENDS THAT IT GATHERED PERSUASIVE EVIDENCE THAT THE MARCH 28 ABSENCES BY HOUSEKEEPING EMPLOYEES CONSTITUTED A STRIKE AND THAT ITS ACTIONS IMPLEMENTED THE FEDERAL LAW THAT ANY EMPLOYEE WHO PARTICIPATES IN A STRIKE NO LONGER ENJOYS THE PROTECTION OF THE LAW. IN THIS REGARD, RESPONDENT ARGUES THAT FINDING AN UNFAIR LABOR PRACTICE IN THIS SITUATION WOULD INTERFERE WITH AN AGENCY'S STATUTORY MISSION TO INSURE CONTINUITY OF SERVICES WITHOUT BEING COMPELLED UNDER CONTRACT PROVISIONS TO ACT ARBITRARILY AND TO PREVENT EMPLOYEES THROUGHOUT THE GOVERNMENT FROM ANY JUSTIFICATION FOR USING STRIKING AS A METHOD OF CONTESTING MANAGEMENT DECISIONS, OR BRINGING PRESSURE AGAINST MANAGEMENT TO CHANGE ITS POLICIES. WITH REGARD TO THE FORMER CONTENTION, IT IS TRUE THAT THE STATUTE CONTEMPLATES UNDER 5 U.S.C. 7103(A)(2) AND (4) THAT AN EMPLOYEE MAY LOSE HIS "EMPLOYEE" STATUS FOR PARTICIPATION IN A STRIKE IN VIOLATION OF 5 U.S.C. 7311. HOWEVER, READING THE WORDS OF SEC. 7103(A)(2) AND (4) EVEN IN COMPLETE ISOLATION WOULD NOT LEAD ONE TO BELIEVE THAT AN AGENCY OR ACTIVITY OF THE GOVERNMENT COULD TAKE ANY UNILATERAL ACTION TO STRIP EMPLOYEES OF THEIR STATUS. THESE SECTIONS EXCLUDE FROM EMPLOYEES STATUS "ANY PERSON WHO PARTICIPATES IN A STRIKE IN VIOLATION OF SECTION 7311 OR ANY LABOR ORGANIZATION "WHICH PARTICIPATES IN A STRIKE AGAINST THE GOVERNMENT." SECTION 7116(B)(7) MAKES IT AN UNFAIR LABOR PRACTICE FOR A UNION TO CALL, OR PARTICIPATE, IN A STRIKE, WORK STOPPAGE, OR SLOWDOWN . . . "AND THE STATUTE AND REGULATIONS PROVIDE MACHINERY FOR DETERMINATION OF WHETHER SUCH AN UNFAIR LABOR PRACTICES OCCURRED. THERE ARE, HOWEVER, NO PROVISIONS FOR DETERMINING WHETHER INDIVIDUAL EMPLOYEES VIOLATED THE PROHIBITION AGAINST STRIKING. UNFORTUNATELY, THE LEGISLATIVE HISTORY OF THE STATUTE SHEDS NO LIGHT ON THIS SUBJECT. IN ANY EVENT, SEC. 7103(A)(2) AND (4) DO NOT IN MY VIEW, PROVIDE AGENCIES WITH CARTE BLANCHE TO UNILATERALLY STRIP EMPLOYEES OR UNIONS OF ALL TITLE VII RIGHTS. THIS IS NOT TO SAY THAT IF AN ILLEGAL WORK STOPPAGE WERE FOUND TO EXIST AN AGENCY COULD NOT TAKE WHATEVER DISCIPLINARY ACTION IT DEEMED NECESSARY. HOWEVER, THE DECLARATION OF SUCH ILLEGALITY IS NOT IN THE AGENCY'S HANDS, AND IT ACTS AT ITS PERIL IN TAKING PUNITIVE MEASURES BASED ON ITS OWN UNILATERAL INVESTIGATIONS, PARTICULARLY WHERE SUCH INVESTIGATIONS ARE IN DEROGATION OF AN EXISTING COLLECTIVE BARGAINING AGREEMENT. A REVIEW OF THE LEGISLATIVE HISTORY OF THE STATUTE REVEALED NO EVIDENCE THAT CONGRESS INTENDED TO APPLY A SCATTERGUN APPROACH IN DISCIPLINING EMPLOYEES EVEN WHERE ILLEGAL STRIKE SITUATIONS UNDER THE STATUTE WERE INVOLVED. FURTHER, THE ASSISTANT SECRETARY'S DECISION IN TENNESSEE VALLEY AUTHORITY, A/SLMR NO. 509, WHERE AN ACTUAL WORK STOPPAGE OCCURRED, REFUTES THE NOTION THAT AN AGENCY CAN ACT WITH IMPUNITY AS INVESTIGATOR, PROSECUTOR, JUDGE AND JURY UPON THE MERE BELIEF THAT A WORK STOPPAGE HAS OCCURRED. IN FACT, A CLOSE READING OF THE TENNESSEE VALLEY DECISION, SUPRA INDICATES THAT THE ASSISTANT SECRETARY MIGHT ACTUALLY HAVE DEFERRED TO A DECISION ISSUED PURSUANT TO THE PARTIES NEGOTIATED GRIEVANCE PROCEDURE IN CASES ARISING FROM A STRIKE WHERE THE PROCEEDINGS HAD MET THE FAIRNESS TEST SET OUR IN SPIELBERG MANUFACTURING COMPANY, 112 NLRB 1080. FURTHERMORE, IN BUFFALO FORGE V. UNITED STEELMAKERS OF AMERICA, AFL-CIO, 428 U.S. 397(1976), CITED BY RESPONDENT IN ITS BRIEF, THE SUPREME COURT FACED WITH THE ISSUE OF WHETHER A SYMPATHY STRIKE CALLED BY THE UNION VIOLATED THE NO-STRIKE CLAUSE OF AN AGREEMENT, AND THE APPROPRIATE REMEDIES IF IT DID, ARE SUBJECT TO THE AGREED-UPON DISPUTE-SETTLEMENT PROCEDURES OF THE CONTRACTS AND ARE ULTIMATELY ISSUES FOR THE ARBITRATOR, STATED THE UNMISTAKABLE POLICY OF CONGRESS STATED IN SEC. 203(D) 29 U.S.C. 173(D) TO BE: "FINAL ADJUSTMENT BY A METHOD AGREED UPON BY THE PARTIES IS DECLARED TO BE THE DESIRABLE METHOD FOR SETTLEMENT OF GRIEVANCE DISPUTES ARISING OVER THE EXISTING COLLECTIVE-BARGAINING AGREEMENT." WHILE THE PRIVATE SECTOR PRONOUNCEMENT IS NOT A CLEAR INDICATION THAT SUCH DISPUTES SHOULD BE SETTLED BY AGREED UPON METHODS, IT IS CERTAINLY A GUIDE. THUS, WHERE THERE IS BROAD CONTRACTUAL LANGUAGE WHICH REACHES THE QUESTION OF WHETHER A WORK STOPPAGE WAS ILLEGAL OR WHETHER REPRIMANDS ISSUED ARE ARBITRABLE, SUCH DISPUTES APPEAR TO BE SUBJECT TO THE AGREED-UPON DISPUTE SETTLEMENT PROCEDURES CONTAINED IN THE AGREEMENT AND WOULD, AS PREVIOUSLY STATED, BY ULTIMATELY AN ISSUE FOR THE ARBITRATOR TO DECIDE. UNITED STATES STEELWORKERS OF AMERICA V. AMERICAN MANUFACTURING CO., 363 U.S. 564(1960); UNITED STEEL WORKERS OF AMERICA V. WARRIOR & GULF NAVIGATION CO., 363 U.S. 574(1960); UNITED STEELWORKERS OF AMERICA V. ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593(1960). RESPONDENT STEADFASTLY CONTENDS THAT "THE FACT THAT AN ILLEGAL WORK STOPPAGE OCCURRED ON MARCH 28 STRIPS PARTICIPANTS IN THAT WORK STOPPAGE OF THE BENEFITS AND PROTECTION OF LAW AND OF THE NEGOTIATED AGREEMENTS ALIKE." /2/ ASSUMING ARGUENDO THAT THIS THEORY IS CORRECT AND LAWFULLY APPLIED, THE GRIEVANCES OVER RESPONDENTS ALLEGED CONTRACTUAL ACTIONS WERE BROUGHT UNDER SECTIONS OF THE AGREEMENT ENTITLING THE UNION TO BRING SUCH GRIEVANCES AS THE MANNER AGREED UPON BY THE PARTIES TO SETTLE DISPUTES. BOTH PARTIES CLEARLY HAVE THE RIGHT TO INVOKE THESE PROCESSES UNDER THE CONTRACT AND TO DENY THE UNION THE RIGHT TO DEFEND, PROTECT, OR ENFORCE ITS RIGHTS UNDER THE NEGOTIATED AGREEMENT IS WITHOUT DOUBT AN INTERFERENCE WITH THOSE RIGHTS. IN ITS BRIEF, RESPONDENT MAINTAINS THAT WHERE ONE TERM OF AN AGREEMENT HAS BEEN GIVEN UP BY THE UNION IN EXCHANGE FOR ANOTHER TERM GIVEN UP BY MANAGEMENT, THE FAILURE OF THE UNION TO MEET ITS COMMITMENT RELIEVES MANAGEMENT OF THE DUTY TO OBSERVE THE QUID PRO QUO AND THAT SUCH A UNION PROMISE CAN BE IMPLIED AS A QUID PRO QUO FOR A MANAGEMENT CONCESSION. BUFFALO FORGE CO. V. UNITED STATES STEELWORKERS, SUPRA; GATEWAY COAL CO. V. MINE WORKERS, SUPRA; TEAMSTERS V. LUCAS FLOWER CO., 369 U.S. 95(1962). HOWEVER, THERE IS NO SHOWING THAT WORK STOPPAGE ALLEGED HEREIN HAD EITHER THE PURPOSE OR EFFECT OF DENYING OR EVADING AN OBLIGATION UNDER THE CONTRACT BY THE UNION. THE SUPREME COURT HELD IN BUFFALO FORGE FN. 10, SUPRA THAT THE CASES CITED FOR THE PROPOSITION THAT ASSUMING "THAT A MANDATORY ARBITRATION CLAUSE IMPLIES A COMMITMENT NOT TO ENGAGE IN SYMPATHY STRIKES," WERE WRONG. THUS, STRONGLY INDICATING THAT THE QUID PRO QUO WOULD RUN TO THE UNION'S RIGHT NOT TO LOSE ITS BARGAIN TO ARBITRATE MATTERS INVOLVING DISPUTES UNDER THE CONTRACT. UNDER SUCH CIRCUMSTANCES, THE RESPONDENTS ARGUMENT SEEMS WIDE OF THE MARK. IN COMMUNITY SERVICES ADMINISTRATION, FLRC NO. 76A-149, 5 FLRC DECISION 728, 733, AN EXECUTIVE ORDER CASE, THE ASSISTANT SECRETARY DEALT WITH THE THRESHOLD QUESTION OF ARBITRABILITY AND THE SCOPE OF INQUIRY WAS "NARROWLY RESTRICTED TO THE ISSUES OF WHETHER THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES CONTAINS AN ARBITRATION PROVISION AND WHETHER THE LABOR DISPUTE FELL WITHIN ITS SCOPE," CITING WITH APPROVAL THE STEELWORKERS TRILOGY, SUPRA. IN THE INSTANT MATTER, THE MERITS OF THE DISPUTE APPEAR BEYOND THE SCOPE OF MY REVIEW. THE INQUIRY HEREIN SEEMS LIMITED TO CONSIDERATION OF THE SCOPE AND COVERAGE OF THE GRIEVANCE/ARBITRATION CLAUSE IN THE PARTIES' AGREEMENT AND CONSIDERING THE SUBSTANTIVE PROVISIONS OF THE AGREEMENT SOLELY TO DETERMINE WHETHER THE GRIEVANCE "INVOLVES A MATTER WHICH ARGUABLY CONCERNS THE MEANING OR APPLICATION OF THE SUBSTANTIVE PROVISION(S) BEING GRIEVED." ARTICLE 20-1 OF THE AGREEMENT DEFINES A "GRIEVANCE" AS ANY MATTER INVOLVING INTERPRETATION, APPLICATION, OR VIOLATION OF THIS AGREEMENT. ARTICLE 20-3 EXPRESSLY PROVIDES THAT "THE UNION MAY FILE A GRIEVANCE UNDER THIS PROCEDURE." ARTICLE 20-6 /3/ A AND BE DISTINGUISH BETWEEN PROCEDURES FOR EMPLOYEE GRIEVANCES AND PROCEDURES FOR UNION GRIEVANCES. THE UNION FILED TWO SEPARATE GRIEVANCES WITH RESPONDENT. THE FIRST ALLEGED THAT RESPONDENT VIOLATED THE AGREEMENT BY ITS MARCH 28 ACTIONS IN REQUIRING IMMEDIATE MEDICAL DOCUMENTATION OF ILLNESSES AND BY INVESTIGATING THE INCIDENT WITHOUT UNION PARTICIPATION. THE SECOND FILED ON APRIL 16 ALLEGING THAT RESPONDENT VIOLATED THE AGREEMENT BY ISSUING REPRIMANDS ON APRIL 9 AGAINST CERTAIN EMPLOYEES ABSENT ON MARCH 28. THE AGREEMENT IN ARTICLE 38 PROVIDES THAT "GRIEVANCES OVER ADMONISHMENTS AND REPRIMANDS MAY BE PROCESSED AS PROVIDED IN THE NEGOTIATED GRIEVANCE PROCEDURE." THEREFORE, THESE GRIEVANCES ALLEGED IN ACCORDANCE WITH ARTICLE 20 OF THE AGREEMENT THAT THE CONTRACT HAD BEEN VIOLATED BY RESPONDENT'S ACTIONS AND THE COLLECTIVE-BARGAINING AGREEMENT EXPRESSLY PROVIDES THAT EMPLOYEE REPRIMANDS CAN BE PROCESSED BY THE UNION UNDER THE NEGOTIATED GRIEVANCE PROCEDURE. CONSIDERING THE STEELWORKERS' TRILOGY, AND COMMUNITY SERVICES ADMINISTRATION CASES, SUPRA THE THRESHOLD TEST APPEARS TO HAVE BEEN MET AND INQUIRY INTO RESPONDENTS AFFIRMATIVE DEFENSE THAT A WORK STOPPAGE HAD OCCURRED IS NOT PROPERLY BEFORE THIS FORUM, BUT RATHER, THE QUESTION BEFORE ME IS LIMITED TO WHETHER RESPONDENTS UNILATERAL ACTIONS IN FAILING TO PROCESS A GRIEVANCE OR TO ARBITRATE A GRIEVANCE WERE VIOLATIVE OF THE STATUTE. SINCE THE ISSUE IN THE MATTER IS NARROWLY DRAWN, IT IS NOT NECESSARY TO DECIDE IN THIS CASE, AS RESPONDENT'S ARGUMENT SEEMS TO SUGGEST, THAT IN NO CIRCUMSTANCES WOULD A STRIKE BY GOVERNMENTAL EMPLOYEES IN VIOLATION OF A COLLECTIVE BARGAINING AGREEMENT ENTITLE THE GOVERNMENT TO RESCIND OR ABANDON AN ENTIRE CONTRACT OR TO DECLARE ITS PROMISE TO PROCESS GRIEVANCES OR ARBITRATE A MATTER FOREVER BARRED OR TO REFUTE CLAIMS OF THE COLLECTIVE BARGAINING AGENT. I DO CONCLUDE THAT UNDER THE TERMS OF THE INSTANT AGREEMENT RESPONDENT WAS OBLIGATED TO CONDUCT A JOINT INVESTIGATION OF THE EXISTING CLAIMS MADE BY THE UNION BASED ON THE TERMS OF ARTICLE 37 AND THAT THERE ARE NO CIRCUMSTANCES ON THIS RECORD WHICH JUSTIFY RELIEVING RESPONDENT OF ITS DUTY TO PROCESS GRIEVANCES AND TO ARBITRATE CONSEQUENCES OF THE ALLEGED WORK STOPPAGE, INTERTWINED AS IT WAS WITH THE UNION'S DENIAL THAT THERE WAS A WORK STOPPAGE AND THAT RESPONDENT HAD BREACHED THE COLLECTIVE BARGAINING AGREEMENT. IT IS, THEREFORE, FOUND THAT PROCEEDING THROUGH THE AGREED UPON PROCEDURES OF THE CONTRACT WOULD HAVE IN NO WAY PRECLUDED RESPONDENT FROM ADHERING TO ITS ENFORCEMENT OF THE CLEAR GOVERNMENT POLICY REGARDING STRIKES WHICH IT CLAIMS EXISTS. SINCE SUCH AVENUES ARE OPEN, IT IS MY VIEW, THAT ITS UNILATERAL SUSPENSION OF THE AGREEMENT BETWEEN THE PARTIES ON MARCH 28 AND THE REFUSAL THEREAFTER TO PROCESS THE MARCH 28 GRIEVANCE OR TO ARBITRATE THE APRIL 16 GRIEVANCE ARE INDEED SEPARATE BREACHES OF THAT AGREEMENT AND THAT SUCH ACTIONS CONSTITUTED VIOLATIONS OF SECTION 7116(A)(5) AND (1) OF THE STATUTE. IN ADDITION, RESPONDENT MAINTAINS THAT SEC. 7116(D) BARS THE PROCESSING OF THE GRIEVANCES FILED HEREIN IN TWO FORUMS. THE RECORD DISCLOSED THAT EVEN THOUGH THE UNION FILED A CONTRACTUAL GRIEVANCE ON MARCH 28 ASSERTING RESPONDENT'S BREACH OF THE AGREEMENT BY DEMANDING SICK LEAVE DOCUMENTATION ON MARCH 28 IT WAS NOT CONFRONTED WITH RESPONDENT'S ADMISSIONS OF A CLEAR UNILATERAL SUSPENSION OF THE AGREEMENT UNTIL MARCH 29 AND 30 BY RESPONDENT'S REPRESENTATIVES CONNERS, HOPKINS, AND HOWELL, WHO ADVISED UNION OFFICIALS THAT THE CONTRACT WAS "SUSPENDED" AND/OR "NULL AND VOID." ACCORDINGLY, THE UNION FILED ITS FIRST UNFAIR LABOR PRACTICE CHARGE IN THIS MATTER ON APRIL 6 ASSERTING RESPONDENT'S BREACH OF THE AGREEMENT IN DEMANDING SICK LEAVE DOCUMENTATION WITHOUT PRIOR COUNSELLING OF OVER 30 EMPLOYEES INVOLVED. THE MARCH 28 GRIEVANCE CANNOT BE REGARDED AS BARRING THE CHARGE IN THE INITIAL CASE UNDER SEC. 7116(D) SINCE THE UNION WAS NOT NOTIFIED ITS GRIEVANCE WOULD, IN EFFECT, NOT BE CONSIDERED DUE TO THE RESPONDENT'S UNILATERAL SUSPENSION OF THE AGREEMENT UNTIL AFTER THE GRIEVANCE WAS FILED. SUCH A CONCLUSION IS SUPPORTED BY PRECEDENT OF THE ASSISTANT SECRETARY IN CONSIDERING THE APPLICATION OF FORMER SECTION 19(D) OF EXECUTIVE ORDER 11491, AS AMENDED. IN FEDERAL AVIATION ADMINISTRATION, MUSKEGON AIR TRAFFIC CONTROL TOWER, A/SLMRNO. 534, THE ASSISTANT SECRETARY RULED THAT A GRIEVANCE UNILATERALLY REJECTED BY THE FAA AS "UNTIMELY AFTER IT WAS FILED DID NOT BAR UNDER 19(D) OF THE EXECUTIVE ORDER, A SUBSEQUENT UNFAIR LABOR PRACTICE CHARGE AND COMPLAINT OVER SIMILAR ISSUES NOT HEARD IN SUBSTANCE BY THE FAA. FURTHER, NEITHER THE MARCH 28 GRIEVANCE NOR THE APRIL 6 CHARGE DEALT WITH THE ISSUES RAISED IN THE UNION'S APRIL 16 CONTRACTUAL GRIEVANCE WHICH CONCERNED REPRIMANDS OF THE AFFECTED EMPLOYEES IN THE HOUSEKEEPING DIVISION. ACCORDING TO STEWARD VANDERPORT, THESE REPRIMANDS DID NOT BEGIN TO BE IMPLEMENTED UNTIL APRIL 10 OR ABOUT FOUR DAYS AFTER THE CHARGE WAS FILED ON APRIL 16 APPROXIMATELY THIRTEEN DAYS AFTER THE GRIEVANCE OF MARCH 28 WAS FILED. THUS, IT IS FACTUALLY IMPOSSIBLE FOR THE APRIL 6 CHARGE AND THE MARCH 28 GRIEVANCE TO CONSTITUTE BARS TO THE FILING OF THE APRIL 13 GRIEVANCE. FINALLY, RESPONDENT ARGUES THAT THE UNION FAILED TO FILE A GRIEVABILITY/ARBITRABILITY APPEAL WITH THE FEDERAL LABOR RELATIONS AUTHORITY OR THE ASSISTANT SECRETARY OF LABOR AFTER HAVING ITS ARBITRATION REQUEST UNILATERALLY REJECTED BY RESPONDENT ON MAY 10. THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, EFFECTIVE JANUARY 11, 1979, CONTAINS NO PROVISION AUTHORIZING THE FEDERAL LABOR RELATIONS AUTHORITY OR THE ASSISTANT SECRETARY OF LABOR, LABOR MANAGEMENT SERVICES ADMINISTRATION TO RESOLVE GRIEVABILITY/ARBITRABILITY DISPUTES. ALTHOUGH THE ASSISTANT SECRETARY HAD JURISDICTION TO RESOLVE DISPUTES REGARDING GRIEVABILITY AND ARBITRABILITY UNDER THE EXECUTIVE ORDER THIS JURISDICTION AUTOMATICALLY EXPIRED ON THE EFFECTIVE DATE OF THE NEW STATUTE. 5 U.S.C. 7121(A)(1) DOES REQUIRE, HOWEVER, THAT GRIEVABILITY AND ARBITRABILITY DISPUTES BE RESOLVED WITHIN THE NEGOTIATED GRIEVANCE PROCEDURE PROCESSES. SUCH JURISDICTION TO SETTLE GRIEVABILITY AND ARBITRABILITY ISSUES NOW RESTS WITH ARBITRATION UNDER THE STATUTE. EVIDENCE SUBMITTED BY RESPONDENT TO SHOW THAT THE AUTHORITY CONTINUED TO RETAIN JURISDICTION TO HEAR GRIEVABILITY AND ARBITRABILITY APPEALS UNDER THE STATUTE DOES NOT ESTABLISH THAT POINT. IN THIS REGARD THE EVIDENCE THAT THE AUTHORITY CONTINUED TO RETAIN JURISDICTION TO HEAR GRIEVABILITY AND ARBITRABILITY APPEALS UNDER THE STATUTE STATES THE EXACT OPPOSITE. THE "DISMISSAL OF APPLICATION FOR DECISION ON GRIEVABILITY OR ARBITRABILITY" AND ISSUED BY THE CHICAGO REGIONAL DIRECTOR STATES AS FOLLOWS: THE APPLICATION HAS NOT BEEN INVESTIGATED. IT IS NOTED THAT THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (FOOTNOTE DELETED) DOES NOT PROVIDE FOR DETERMINATION OF GRIEVABILITY OR ARBITRABILITY BY THE FEDERAL LABOR RELATIONS AUTHORITY. FURTHER, THE DOCUMENT REVEALED THAT THE CHICAGO REGIONAL DIRECTOR OF THE AUTHORITY ISSUED THIS DETERMINATION TO, AMONG OTHERS, THE ASSISTANT GENERAL COUNSEL OF THE RESPONDENT IN WASHINGTON, D.C. A FULL TEN DAYS PRIOR TO RESPONDENT'S UNILATERAL REFUSAL TO ARBITRATE THE UNION'S SECOND GRIEVANCE IN THE INSTANT CASE. RESPONDENT THEREFORE HAD NOTIFICATION BY VIRTUE OF THIS DECISION. THE INCIDENTS WHICH OCCURRED ON AND AFTER MARCH 28 GIVING RISE TO THE UNION'S TWO GRIEVANCES IN THIS MATTER AND THE RESPONDENT'S MAY 21 UNILATERAL REFUSAL TO ARBITRATE THE UNION'S SECOND GRIEVANCE AROSE LONG AFTER THE EFFECTIVE DATE OF THE NEW STATUTE AND THE REMOVAL OF THE ASSISTANT SECRETARY'S JURISDICTION TO RESOLVE GRIEVABILITY AND ARBITRABILITY DISPUTES. CONSEQUENTLY ARTICLE 20-11 OF THE AGREEMENT, WHICH PROVIDED FOR GRIEVABILITY AND ARBITRABILITY APPEALS TO THE ASSISTANT SECRETARY OF LABOR AND WHICH THE RESPONDENT ASSERTS THE UNION FAILED TO INVOKE AFTER FILING ITS GRIEVANCE, HAD BY THAT TIME, BEEN RENDERED MEANINGLESS BY OPERATION OF LAW. BASED ON THE FOREGOING, IT IS CONCLUDED THAT RESPONDENT'S ACTION IS SUSPENDING ITS COLLECTIVE BARGAINING AGREEMENT WITH THE UNION AND BY DEMANDING MEDICAL DOCUMENTATION FOR ONE DAY OF SICK LEAVE CONTRARY TO THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES AND REFUSING TO PROCESS A GRIEVANCE REGARDING THIS MATTER AND BY REFUSING TO ARBITRATE A GRIEVANCE CONCERNING REPRIMANDS UNDER THE COLLECTIVE BARGAINING AGREEMENT BECAUSE MEDICAL DOCUMENTATION WAS NOT PRESENTED VIOLATED SECTION 7116(A)(5) AND 7116(A)(1) OF THE STATUTE. ORDER PURSUANT TO SECTION 2400.2 OF THE 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 VETERAN'S ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS SHALL: 1. CEASE AND DESIST FROM: (A) SUSPENDING ITS COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO. (B) REFUSING TO PROCESS GRIEVANCES UNDER ITS COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO. (C) REQUIRING MEDICAL DOCUMENTATION OF SICK LEAVE OF LESS THAN 3 DAYS BASED ON A UNILATERAL DETERMINATION OF MISUSE OF LEAVE, CONTRARY TO THE TERMS OF ITS COLLECTIVE BARGAINING AGREEMENT. (D) REFUSING TO PROCESS GRIEVANCES TO ARBITRATION, BASED ON ITS UNILATERAL DETERMINATION THAT ITS COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, IS SUSPENDED. (E) CONDUCTING UNILATERAL INQUIRIES OR INVESTIGATIONS OF MATTERS INVOLVING UNIT MEMBERS CONTRARY TO THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO. (F) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION: (A) UPON THE REQUEST OF LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, PROCESS THE GRIEVANCES RELATED TO THE SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS AND LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND THE PROOF OF MEDICAL DOCUMENTATION OF SICK LEAVE OF LESS THAN THREE DAYS AND ARBITRATE ALL GRIEVANCES PERTAINING TO THE REPRIMANDS OF ALL EMPLOYEES BECAUSE OF THEIR ABSENCES FROM WORK ON MARCH 28, 1979. (B) POST AT THE FACILITIES OF THE VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS 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 MEDICAL CENTER DIRECTOR, VETERANS ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND ALL OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE ADMINISTRATOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (C) 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. ELI NASH, JR. ADMINISTRATIVE LAW JUDGE DATED: MARCH 19, 1980 WASHINGTON, D.C. APPENDIX A 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 EMPLOYEES OF THE DEPARTMENT OF THE TREASURY, VETERAN'S ADMINISTRATION HOSPITAL, DANVILLE, ILLINOIS THAT: WE WILL NOT SUSPEND THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO. WE WILL NOT REFUSE TO PROCESS GRIEVANCES UNDER THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO BASED ON A UNILATERAL DETERMINATION THAT THE AGREEMENT SHOULD BE SUSPENDED. WE WILL NOT REQUIRE MEDICAL DOCUMENTATION OF SICK LEAVE OF LESS THAN THREE DAYS, CONTRARY TO THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO. WE WILL NOT REFUSE TO ARBITRATE GRIEVANCES INVOLVING REPRIMANDS CONTRARY TO THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO. WE WILL NOT CONDUCT UNILATERAL INVESTIGATIONS OR INQUIRIES OF MATTERS CONCERNING UNIT MEMBERS CONTRARY TO THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT WITH LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. WE WILL, UPON REQUEST OF LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO PROCESS THE GRIEVANCES RELATED TO THE SUSPENSION OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN LOCAL 1963, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND THE PROOF OF MEDICAL DOCUMENTATION OF SICK LEAVE OF LESS THAN THREE DAYS AND ARBITRATE ALL GRIEVANCES PERTAINING TO THE REPRIMANDS OF ALL EMPLOYEES BECAUSE OF THEIR ABSENCES FROM WORK ON MARCH 28, 1979. (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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS AND TELEPHONE NUMBER ARE: ROOM 1638, DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS 60604, (312) 353-6746. APPENDIX B THE TRANSCRIPT IS HEREBY CORRECTED AS FOLLOWS: FIRST HEARING DAY, TRANSCRIPT OF NOVEMBER 6, 1979 PAGE 4, LINE 13-- CHANGE "AND 1 AND 5" TO "(A)(1) AND (5)" PAGE 5, LINE 1-- CHANGE "811" TO "810" PAGE 7, LINE 18-- CHANGE "NOTWITHSTANDING" TO "THE NEXT THING" PAGE 9, LINE 14-- CHANGE "ROOM" TO "RULE" PAGE 9, LINE 22-- CHANGE "INSTITUTION" TO "INTERESTS" PAGE 11, LINE 22-- CHANGE "IN THE" TO "ANY" PAGE 12, LINE 16-- CHANGE "AND" TO "IN" PAGE 12, LINE 20-- CHANGE "AGREEMENTS" TO "GRIEVANCES" PAGE 13, LINE 5-- CHANGE "FAVORABLE" TO "GRIEVABLE" PAGE 14, LINE 15-- CHANGE "THE" TO "LABOR" PAGE 15, LINE 12-- CHANGE "CONSERTING" TO "CONCERTED" PAGE 28, LINE 25-- CHANGE "CONFIDENT" TO "COMPETENT" PAGE 39, LINE 17-- CHANGE "PLAN" TO "CLAIM" PAGE 40, LINE 9-- DELETE "MR. MIKSA" PAGE 42, LINE 18-- CHANGE "WHAT" TO "WHICH" PAGE 46, LINE 1-- AFTER "THAT" AND "THE" PAGE 46, LINE 2-- AFTER "PRACTICE" ADD "CHARGE" PAGE 48, LINE 8-- CHANGE "SEE" TO "SAY" (CAN BE EITHER) PAGE 48, LINE 11-- CHANGE "SEE" TO "SAY" PAGE 49, LINE 15-- CHANGE "IS NOT MENTIONED" TO "DOES NOT MENTION" PAGE 49, LINE 17-- CHANGE "ON" TO "UNDER" PAGE 67, LINE 21-- CHANGE "I" TO "YOU" PAGE 74, LINE 6-- CHANGE "CHARGE OF THEIR FILE" TO "CHARGES WHICH THEY FILE" PAGE 74, LINE 77-- CHANGE "SERVED" TO "SERVE" PAGE 77, LINE 16-- CHANGE "RESPONSIBILITY" TO "RESPONSE" PAGE 79, LINE 4-- CHANGE "SUBJECTION" TO "SUBSTANTIVE" SECOND DAY - TRANSCRIPT OF NOVEMBER 7, 1979 PAGE 6, LINE 20-- CHANGE "EMPLOYEES' COUNCIL"? TO "EMPLOYEES COUNSELLED"? PAGE 25, LINE 22-- CHANGE "WHO" TO "IF I." PAGE 31, LINE 8-- CHANGE "REGULATIONS" TO "RELATIONS" PAGE 37, LINE 6-- CHANGE "THE BEAR" TO "TO BARE" PAGE 38, LINE 23-- CHANGE "AUTHORITY" TO "AUTHORITY" PAGE 40, LINE 1-- CHANGE "WHATSOEVER IN GOOD FAITH," TO "WHATSOEVER THE GOOD FAITH" PAGE 40, LINE 4-- CHANGE "UNION" TO "AUTHORITY" PAGE 40, LINE 5-- CHANGE "ARBITRATION" TO "OPERATION" PAGE 40, LINE 19-- CHANGE "SECTION 1706-A" TO SECTION 7106(A)" PAGE 41, LINE 4-- CHANGE "AGRIEVANT" TO "EGREGIOUS" PAGE 41, LINE 7-- CHANGE "REPUGED FOR" TO "REPUGNANT TO" PAGE 42, LINE 17-- CHANGE "AUTHORITY" TO "AUTHORITY" PAGE 45, LINE 21-- CHANGE "VA ADMINISTRATIVE CENTER" TO "VA MEDICAL CENTER" PAGE 45, LINE 24-- CHANGE "SAYS" TO "DOES" PAGE 71, LINE 4-- CHANGE "LEGAL" TO "ILLEGAL" PAGE 71, LINE 11-- CHANGE "LEGAL" TO "ILLEGAL" PAGE 76, LINE 3-- CHANGE "1978" TO "1979" PAGE 91, LINE 12-- CHANGE "AFFECT" TO "THE FACT" PAGE 103, LINE 7-- CHANGE "MR. LOUIS" TO MR. LEWIS" PAGE 112, LINE 1-- CHANGE "MR. LOUIS'" TO "MR. LEWIS'" PAGE 136, LINE 5-- CHANGE "WHICH" TO "WITH" PAGE 169, LINE 14-- CHANGE "BILL GALLOW" TO "BILL GALLO" PAGE 181, LINE 8-- CHANGE "IN AFFECT" TO "IN EFFECT" PAGE 186, LINE 19-- CHANGE "GALLOW" TO "GALLO" PAGE 190, LINE 1-- CHANGE "STEINWALD" TO "STEINWANDEL" PAGE 195, LINE 2-- CHANGE "PATROL" TO "CONTROL" PAGE 209, LINE 7-- CHANGE "STEINWALD" TO "STEINWANDEL" PAGE 195, LINE 10-- CHANGE "PROTECT" TO "PRODUCE" SERVICE SHEET CASE NOS. 5-CA-53, 5-CA-201 COPY OF DECISION AND ORDER DATED MARCH 19, 1980 "DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE ELI NASH, JR. WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL: LINDA LEE JAMES E. ADAMS AND CLAIRE R. MORRISON, ESQUIRES OFFICE OF THE GENERAL COUNSEL VETERANS' ADMINISTRATION WASHINGTON, D.C. 20420 GREGORY MIKSA AND BRENDA ROBINSON, ESQUIRES FEDERAL LABOR RELATIONS AUTHORITY ROOM 1638 219 SOUTH DEARBORN STREET CHICAGO, ILLINOIS 60604 MARC ROTH, ESQUIRE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES 1325 MASSACHUSETTS AVENUE, N.W. WASHINGTON, DC 20005 REGULAR MAIL: MR. KENNETH T. BLAYLOCK, PRESIDENT AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO 1325 MASSACHUSETTS AVENUE,N.W. WASHINGTON, DC 20005 ASSISTANT DIRECTOR LABOR-MANAGEMENT RELATIONS U.S. OFFICE OF PERSONNEL MANAGEMENT 1900 E STREET, N.W. WASHINGTON, DC 20415 FEDERAL LABOR RELATIONS AUTHORITY 1900 E STREET, N.W., ROOM 7469 WASHINGTON, DC 20424 ONE COPY TO EACH REGIONAL DIRECTOR OFFICE OF THE GENERAL COUNSEL FEDERAL LABOR RELATIONS AUTHORITY 1900 E STREET, N.W., ROOM 7469 WASHINGTON, DC 20424 --------------- FOOTNOTES$ --------------- /1/ ALL DATES HEREAFTER ARE 1979, UNLESS OTHERWISE STATED. /2/ RESPONDENT ALSO ARGUES THAT THE EMPLOYEES INVOLVED WERE CRITICAL OR VITAL. UNITED FEDERATION OF POSTAL CLERKS V. BLOUNT, 325 F.SUPP. 879(1971) MAKES IT CLEAR THAT WHERE GOVERNMENT WORKERS ARE INVOLVED NO DISTINCTION CAN BE DRAWN AS TO WHETHER THE WORK PERFORMED WAS "ESSENTIAL" OR "NON-ESSENTIAL." THEREFORE, I FIND IT UNNECESSARY TO CONSIDER THE NATURE OF THE WORK INVOLVED HEREIN. /3/ 20-6 PROVIDES IN PERTINENT PART: B. GRIEVANCES PRESENTED BY THE UNION. STEP 1. GRIEVANCES SHALL BE PRESENTED BY THE UNION IN WRITING ACCORDING TO THE CONTENT OF ATTACHMENT 2. GRIEVANCES INVOLVING AN INDIVIDUAL OR GROUP OF EMPLOYEES FROM ONE SERVICE SHALL BE PRESENTED TO THE SERVICE CHIEF CONCERNED BY THE CHIEF STEWARD.