12:0552(107)CA - VA Medical Center, Bath, NY and VA Washington, DC and AFGE Local 491 -- 1983 FLRAdec CA
[ v12 p552 ]
12:0552(107)CA
The decision of the Authority follows:
12 FLRA No. 107
VETERANS ADMINISTRATION MEDICAL CENTER
BATH, NEW YORK AND VETERANS
ADMINISTRATION, WASHINGTON, D.C.
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 491
Charging Party
Case Nos. 1-CA-115
1-CA-276
1-CA-394
1-CA-397
1-CA-574
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondents had engaged in
certain unfair labor practices alleged in the consolidated complaint and
recommending that they be ordered to cease and desist therefrom and take
certain affirmative action. The Judge found that the Respondents had
not engaged in other unfair labor practices alleged in the consolidated
complaint. The General Counsel filed exceptions limited to the
conclusion in the Judge's Decision that the allegations of the complaint
in Case No. 1-CA-115 should be dismissed and as to the geographic scope
of the Judge's recommended notice posting.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record in this proceeding, and noting
especially the absence of exceptions in Case Nos. 1-CA-276, 1-CA-394,
1-CA-397 and 1-CA-574, the Authority hereby adopts the Judge's findings,
conclusions /1/ and Recommended Order.
ORDER /2/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
Veterans Administration Medical Center, Bath, New York and the Veterans
Administration, Washington, D.C., shall:
1. Cease and desist from:
(a) Instituting at the Veterans Administration Medical Center, Bath,
New York, changes in the practice of providing a noon meal to physicians
assigned duty as Medical Officer of the Day on Monday through Friday,
and the practice of assigning 24-hour tours of duty to those selected to
serve as Medical Officer of the Day on Monday through Friday, without
first notifying the American Federation of Government Employees,
AFL-CIO, Local 491, the exclusive representative of its employees, and
affording such representative the opportunity to negotiate in good
faith, to the extent consonant with law, regulations and the Federal
Service Labor-Management Relations Statute, with regard to any proposed
changes in such established practices.
(b) Interfering with, restraining, or coercing Chaplain Ronald Gunton
in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute, by causing the initiation of
investigation into his Church accreditation because of his participation
in protected activities on behalf of the American Federation of
Government Employees, AFL-CIO, Local 491, and because he filed unfair
labor practice charges under the Federal Service Labor-Management
Relations Statute.
(c) Discouraging Chaplain Ronald Gunton from membership in a labor
organization by causing the initiation of investigation into his Church
accreditation because of his participation in protected activities on
behalf of the American Federation of Government Employees, AFL-CIO,
Local 491, and because he filed unfair labor practice charges under the
Federal Service Labor-Management Relations Statute.
(d) Discouraging Chaplain Ronald Gunton from membership in a labor
organization by the removal of Chaplain Gunton from the Equal Employment
Opportunity Committee serving the Veterans Administration Medical
Center, Bath, New York, because of his participation in protected
activities on behalf of the American Federation of Government Employees,
AFL-CIO, Local 491, and because he filed unfair labor practice charges
under the Federal Service Labor-Management Relations Statute.
(e) Refusing to meet, confer and negotiate with the American
Federation of Government Employees, AFL-CIO, Local 491, by removing
Chaplain Ronald Gunton from the Equal Employment Opportunity Committee
serving the Veterans Administration Medical Center, Bath, New York, and
by denying Chaplain Gunton the right to serve on the mentioned Equal
Employment Opportunity Committee as the designated representative of the
American Federation of Government Employees, AFL-CIO, Local 491.
(f) Interfering with, restraining, or coercing Chaplain Ronald Gunton
in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute by the inclusion of a copy of a June
10, 1980 unfair labor practice charge relating to Case No. 1-CA-394 in
Chaplain Gunton's personnel extension file in the Office of the Chief of
Chaplains, Veterans Administration, Washington, D.C.
(g) Instituting at the Veterans Administration Medical Center, Bath,
New York, changes in Chaplain Ronald Gunton's tour of duty without first
notifying the American Federation of Government Employees, AFL-CIO,
Local 491, the exclusive representative of its employees, and affording
such representative the opportunity to negotiate in good faith, to the
extent consonant with law, regulations and the Federal Service
Labor-Management Relations Statute, with regard to any proposed change
in his tour of duty.
(h) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Rescind the changes effectuated on February 29, 1980, at the
Veterans Administration Medical Center, Bath, New York, in connection
with the practice of providing a noon meal to physicians assigned duty
as Medical Officer of the Day on Monday through Friday, and the practice
of assigning 24-hour tours of duty to those selected to serve as Medical
Officer of the Day on Monday through Friday.
(b) Notify the American Federation of Government Employees, AFL-CIO,
Local 491, the exclusive representative of its employees, of any
proposed change in the practice of providing a noon meal to physicians
assigned duty as Medical Officer of the Day on Monday through Friday,
and the practice of assigning 24-hour tours of duty to those selected to
serve as Medical Officer of the Day on Monday through Friday, and upon
request, negotiate in good faith, to the extent consonant with law,
regulations and the Federal Service Labor-Management Relations Statute,
concerning such intended changes.
(c) Notify Reverend Paul Strickland, Director, American Baptist
Chaplaincy and Pastoral Counseling, National Ministries, American
Baptist Churches, Valley Forge, Pennsylvania, of this Order, and
formally request the return of all documents forwarded to Reverend
Strickland for the purpose of furnishing a basis for withdrawal of the
endorsement of Chaplain Ronald Gunton by the American Baptist Churches.
(d) Rescind the March 18, 1980 memorandum addressed to the President
of the American Federation of Government Employees, AFL-CIO, Local 491,
by Mr. Milton Salmon, Medical Center Director, Veterans Administration
Medical Center, Bath, New York, for the purpose of effectuating
termination of Chaplain Ronald Gunton's appointment to the Equal
Employment Opportunity Committee serving the Veterans Administration
Medical Center, Bath, New York.
(e) Remove from Chaplain Ronald Gunton's personnel extension file in
the Office of the Chief of Chaplains, Veterans Administration,
Washington, D.C., all copies of the June 10, 1980 unfair labor practice
charge relating to Case No. 1-CA-394.
(f) Rescind the November 5, 1980 memorandum addressed to Chaplain
Ronald Gunton by Chaplain John Howe for the purpose of effectuating a
change in Chaplain Gunton's tour of duty.
(g) Notify the American Federation of Government Employees, AFL-CIO,
Local 491, the exclusive representative of its employees, of any
proposed change in the tour of duty assigned to Chaplain Ronald Gunton,
and upon request, negotiate in good faith to the extent consonant with
law, regulations and the Federal Service Labor-Management Relations
Statute concerning such change.
(h) Post at its facilities at the Veterans Administration,
Washington, D.C., and at the Veterans Administration Medical Center,
Bath, New York, copies of the attached Notice on forms to be furnished
by the Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by the Administrator, Veterans Administration
Washington, D.C., or his designee, and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places, where notices
to employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by other
material.
(i) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the remaining allegations of the
consolidated complaint be, and they hereby are, dismissed.
Issued, Washington, D.C., August 16, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 institute changes at the Veterans Administration Medical
Center, Bath, New York, in the practice of providing a noon meal to
physicians assigned duty as Medical Officer of the Day on Monday ;
through Friday, and the practice of assigning 24-hour tours of duty to
those selected to serve as Medical Officer of the Day, without first
notifying the American Federation of Government Employees, AFL-CIO,
Local 491, the exclusive representative of our employees, and affording
such representative the opportunity to negotiate in good faith, to the
extent consonant with law, regulations, and the Federal Service
Labor-Management Relations Statute, with regard to any proposed changes
in such established practices. WE WILL NOT interfere with, restrain, or
coerce Chaplain Ronald Gunton in the exercise of rights assured by the
Federal Service Labor-Management Relations Statute by causing the
initiation of investigation into his Church accreditation because of his
participation in protected activities on behalf of the American
Federation of Government Employees, AFL-CIO, Local 491, and because he
filed unfair labor practice charges under the Federal Service
Labor-Management Relations Statute. WE WILL NOT discourage Chaplain
Ronald Gunton from membership in a labor organization by removing him
from the Equal Employment Opportunity Committee serving the Veterans
Administration Medical Center, Bath, New York, because of his
participation in protected activities on behalf of the American
Federation of Government Employees, AFL-CIO, Local 491, and because he
filed unfair labor practice charges under the Federal Service
Labor-Management Relations Statute. WE WILL NOT refuse to meet, confer
and negotiate with the American Federation of Government Employees,
AFL-CIO, Local 491, by removing Chaplain Ronald Gunton from the Equal
Employment Opportunity Committee serving the Veterans Administration
Medical Center, Bath, New York, and by denying Chaplain Gunton the right
to serve on the Committee as the designated representative of the
American Federation of Government Employees, AFL-CIO, Local 491. WE
WILL NOT interfere with, restrain, or coerce Chaplain Ronald Gunton in
the exercise of rights assured by the Federal Service Labor-Management
Relations Statute by including a copy of a June 10, 1980 unfair labor
practice charge relating to Case No. 1-CA-394 in Chaplain Gunton's
personnel extension file in the Office of the Chief of Chaplains,
Veterans Administration, Washington, D.C. WE WILL NOT institute any
change in Chaplain Ronald Gunton's tour of duty without first notifying
the American Federation of Government Employees, AFL-CIO, Local 491, the
exclusive representative of our employees, and affording such
representative the opportunity to negotiate in good faith, to the extent
consonant with law, regulations and the Federal Service Labor-Management
Relations Statute, with regard to any proposed change in his tour of
duty. WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute. WE
WILL rescind the changes effectuated at the Veterans Administration
Medical Center, Bath, New York, on February 29, 1980, in connection with
the practice of providing a noon meal to physicians assigned duty as
Medical Officer of the Day on Monday through Friday, and the practice of
assigning 24-hour tours of duty to those selected to serve as Medical
Officer of the Day on Monday through Friday. WE WILL notify the
American Federation of Government Employees, AFL-CIO, Local 491, the
exclusive representative of our employees, of any proposed change in the
practice of providing a noon meal to physicians assigned duty as Medical
Officer of the Day on Monday through Friday, and the practice of
assigning 24-hour tours of duty to those selected to serve as Medical
Officer of the Day on Monday through Friday, and upon request, negotiate
in good faith, to the extent consonant with law, regulations and the
Federal Service Labor-Management Relations Statute, concerning such
intended changes. WE WILL notify Reverend Paul Strickland, Director,
American Baptist Chaplaincy and Pastoral Counseling, National
Ministries, American Baptist Churches, Valley Forge, Pennsylvania, of
the Order requiring this notice and posting, and request by letter, the
return of all documents forwarded to Reverend Strickland for the purpose
of furnishing a basis for the withdrawal of the endorsement of Chaplain
Ronald Gunton by the American Baptist Churches. WE WILL rescind the
March 18, 1980 memorandum addressed to the President of the American
Federation of Government Employees, AFL-CIO, Local 491, by Mr. Milton
Salmon, Medical Center Director, Veterans Administration Medical Center,
Bath, New York, for the purpose of effectuating termination of Chaplain
Ronald Gunton's appointment to the Equal Employment Opportunity
Committee serving the Veterans Administration Medical Center, Bath, New
York. WE WILL remove from Chaplain Ronald Gunton's personnel extension
file in the Office of the Chief of Chaplains, Veterans Administration,
Washington, D.C., all copies of the June 10, 1980 unfair labor practice
charge relating to Case No. 1-CA-394. WE WILL rescind the November 5,
1980 memorandum addressed to Chaplain Ronald Gunton by Chaplain John
Howe for the purpose of effectuating a change in Chaplain Gunton's tour
of duty. WE WILL notify the American Federation of Government
Employees, AFL-CIO, Local 491, the exclusive representative of our
employees, of any proposed change in the tour of duty assigned to
Chaplain Ronald Gunton, and upon request, negotiate in good faith to the
extent consonant with law, regulations and the Federal Service
Labor-Management Relations Statute concerning such change.
(Agency)
Dated: . . . By: (Signature) (Title) 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 its provisions,
they may communicate directly with the Regional Director, Region I,
Federal Labor Relations Authority, whose address is: 441 Stuart Street,
9th Floor, Boston, MA 02116, and whose telephone number is (617)
223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 1-CA-115, 1-CA-276,
1-CA-394, 1-CA-397,
1-CA-574
John C. DiNoto, Esquire
For the Respondents
Richard D. Zaiger, Esquire
Carol Waller Pope, Esquire
For the General Counsel
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
These cases arose as unfair labor practice proceedings under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called "the Statute"),
and the Rules and Regulations issued thereunder.
The consolidated complaint, amended at the hearing, alleged that the
Respondents, through Veterans Administration (VA or Central Office)
officials at the agency level, and through officials associated with the
Veterans Administration Medical Center, Bath, New York (VAMC), committed
unfair labor practices within the purview of the Statute. The following
unfair labor practices were alleged:
Case No. 1-CA-115: On or About May 1, 1979, June 11, 1979, and
September 27, 1979, the Respondents violated Section 7116(a)(1) of the
Statute by threatening Chaplain Ronald Gunton, a part time Chaplain
employed at the VAMC, with disciplinary action because of his
participation in activity on behalf of the American Federation of
Government Employees, AFL-CIO, Local 491 (Union). /3/
Case No. 1-CA-276: On or about January 30, 1980, the Respondents
violated Sections 7116(a)(1) and (5) by refusing to bargain in good
faith with the Union regarding a decision to eliminate a practice of
providing noon meals for VAMC employees assigned to serve as Medical
Officer of the Day. On or about February 29, 1980, Respondents violated
Sections 7116(a)(1) and (5) of the Statute by eliminating a practice of
providing noon meals for VAMC employees assigned to serve as Medical
Officer of the Day, without furnishing the Union an opportunity to
bargain concerning the decision to effectuate such change and/or the
impact and implementation of the change. On or about March 16, 1980,
the Respondents violated Sections 7116(a)(1) and (5), changing the duty
hours of the Medical Officer of the Day without furnishing the Union
notice and an opportunity to bargain concerning the decision to change
the duty hours of the Medical Officer of the Day, and concerning impact
and implementation.
Case No. 1-CA-394: On or about April 3, 1980, the Respondents
violated Section 7116(a)(1) of the Statute by initiating an
investigation by the American Baptist Church into the Church
accreditation of Chaplain Gunton because of his Union activity and
because he filed unfair labor practice charges under the Statute;
violated Sections 7116(a)(1) and (2) by causing the American Baptist
Church to investigate the Church accreditation of Chaplain Gunton
because of his activity on behalf of the Union; and violated Sections
7116(a)(1) and (4) by causing the American Baptist Church to investigate
the Church accreditation of Chaplain Gunton because he filed unfair
labor practice charges against the Respondents.
Case No. 1-CA-397: On or about June 12, 1980, Respondents violated
Sections 7116(a)(1) and (2) of the Statute by removing Chaplain Gunton
from the VAMC Equal Employment Opportunity Committee (EEOC) because of
his participation in Union activity; violated Sections 7116(a)(1) and
(4) by removing Chaplain Gunton from the EEOC because he filed unfair
labor practice charges against the Respondents; and violated Sections
7116(a)(1) and (5) by refusing to deal with Chaplain Gunton as the
Union's duly appointed representative on the EEOC.
Case No. 1-CA-574: On or about June 13, 1980, Respondents violated
Section 7116(a)(1) by placing or causing to be placed in Chaplain
Gunton's personnel extension file, a copy of an unfair labor practice
charge dated June 10, 1980. On or about September 1980, Respondents
violated Section 7116(a)(1), (5) and (8) by holding formal discussions
with Chaplain John T. Sandlund, a bargaining unit employee, concerning
general conditions of employment, at which discussions the Union was not
given an opportunity to be represented. on or about October 14, 1980,
Respondents violated Sections 7116(a)(1) and (2) by distributing
documents regarding Chaplain Gunton to the American Baptist Church in a
continuing effort to cause the American Baptist Church to investigate
his Church accreditation because of his participation in activities on
behalf of the Union, and violated Sections 7116(a)(1) and (4) because
such conduct was also pursued because Chaplain Gunton filed unfair labor
practice charges against the Respondents. On or about November 5, 1980,
Respondents violated Sections 7116(a)(1) and (2) by changing Chaplain
Gunton's tour of duty because of his Union activity, and violated
Sections 7116(a)(1) and (5) by changing the tour of duty without
furnishing the Union notice and opportunity to bargain concerning the
decision to effect such change, and/or the impact and implementation of
the change.
At the commencement of the hearing the Respondents moved for
dismissal of Case No. 1-CA-115 on the ground that it was made the
subject of a settlement agreement and a subsequent posting in accordance
with the settlement agreement; and further that no basis existed for
compelling the Respondents to litigate issues presented in the case.
/4/ With regard to Case No. 1-CA-276, the Respondents take the position
that there was no obligation to bargain concerning the elimination of
the noon meal and the changing of duty hours assigned to the Medical
Officer of the Day, and that the Respondents did provide the Union with
an opportunity to bargain concerning impact and implementation elements
associated with these changes. With respect to allegations in Case No.
1-CA-394 and Case No. 1-CA-574, relating to actions taken to terminate
Chaplain Gunton's accreditation, and allegations in Case No. 1-CA-397,
relating to Chaplain Gunton's representation of the Union on the VAMC
EEOC, the Respondents argue that action taken was appropriate, and that
such action was brought about by Chaplain Gunton's own misconduct.
Respondents also argue with respect to Case No. 1-CA-574, that Chaplain
John T. Sandlund was not a bargaining unit employee, and that the change
of Chaplain Gunton's tour of duty was effectuated in a manner consistent
with the bargaining obligation imposed by the Statute.
Chaplain Gunton, a bargaining unit member, was at all times material,
employed as a part time chaplain at the VAMC for a total of 20 hours a
week. For nearly a year he had been assigned a tour of duty which
included 8-hour work periods on Monday and Tuesday, and a 4-hour work
period on Wednesdays. (Tr. 328-329). He worked in conjunction with
Chaplain John T. Sandlund, a full time Protestant chaplain, and
chaplains representing other religious denominations. /5/ His job
duties included the usual role of clergyman. (Tr. 485-486).
Chaplain Gunton had functioned as the Union's chief negotiator and
steward for over three years. (Tr. 300). In his capacity as a Union
official he represented bargaining unit employees in matters relating to
grievances, equal employment opportunity complaints, issues concerning
changes in working conditions, and unfair labor practice charges. Prior
to his association with the Union herein, Chaplain Gunton also served as
President of Local 491 for about six years before Local 491 became a
segment of the American Federation of Government Employees.
The answer filed by the Respondents admitted that at all times
material Mr. Milton Salmon was the Director of the VAMC, Mr. Joel E.
Halloran was the Chief of Personnel Services, and that Chaplain John A.
Howe was Chief of the VAMC Chaplain Service. It was also admitted that
Chaplain Corbin Cherry was Chief of Chaplains for the Veterans
Administration, Washington, D.C. Mr. Salmon's assignment as Director of
VAMC commenced slightly more than two years prior to April of 1981, thus
his assignment coincided with Chaplain Gunton's representation of the
Union as chief negotiator and steward. (Tr. 382-383).
Respondents and the General Counsel were represented by counsel
during the hearing, and all parties were afforded full opportunity to be
heard, adduce relevant evidence, and examine and cross-examine
witnesses. A post-hearing brief was filed by counsel representing the
General Counsel. No brief was filed on behalf of the Respondents.
Based on the entire record herein, including my observations of the
witnesses and their demeanor, the exhibits and other relevant evidence
adduced at the hearing, /6/ and the brief filed, I make the following
findings of fact, conclusions and recommendations.
Facts Relating to Case No. 1-CA-115
Counsel representing the General Counsel admitted that Case No.
1-CA-115 was informally settled by the parties and that an appropriate
notice was posted pursuant to the settlement agreement. (Tr. 10-11).
Subsequently the Regional Director set aside the informal settlement
agreement and included Case No. 1-CA-115 allegations in the consolidated
complaint because of a finding by the Regional Director that the
Respondents violated the terms of the settlement agreement. (Tr. 11).
Neither the settlement agreement, the Regional Director's findings, nor
documents showing a setting aside of the settlement agreement were made
a part of the record. /7/ Respondents take the position that the terms
of the settlement agreement were met. The original charge in Case No.
1-CA-394 notes that Case No. 1-CA-115, and another charge were settled
by the posting of settlement agreements on March 6, 1980. (G.C. Exh.
1E).
Discussion and Conclusions
Case No. 1-CA-115
Section 2423.11(b)(1) of the Regulations, 5 C.F.R. 2423.11(b)(1),
provides in part as follows:
Upon approval by the Regional Director and compliance with the
terms of the informal settlement agreement, no further action
shall be taken in the case. If the respondent fails to perform
its obligations under the informal settlement agreement, the
Regional Director may determine to institute further proceedings.
It is clear from the foregoing that "further proceedings" in
connection with a charge would not be justified in the absence of a
clear showing that the Respondents failed "to perform . . . obligations
under the informal settlement agreement." Here the parties agree that
Case No. 1-CA-115 was disposed of by a settlement agreement, and that a
notice was posted in accordance with the agreement. The terms of the
settlement agreement, documentation relating to the Regional Director's
setting aside of the agreement, and evidence establishing failure to
perform the specific terms of the agreement are not included in the
record. Under the circumstances the record merely reflects a settlement
of Case No. 1-CA-115, and bare statements by the Regional Counsel that
the settlement agreement was violated by the Respondent.
In Norfolk Naval Shipyard, Case. No. 3-CA-850, (OALJ-81-066), decided
on March 12, 1981, Administrative Law Judge William B. Devaney
considered a case which involved analogous issues. He noted:
(I)t would not effectuate the purpose or policy of the Statute
or the Regulations to proceed to hearing on a complaint in
contravention of a settlement approved by the Regional Director
and fully complied with in good faith by the Respondents, in the
total absence of grounds which would warrant setting aside an
approved settlement and without notice to the parties and an
opportunity to be heard prior to any such proposed action.
Voluntary settlements under the control of the Regional Directors
(See, Sec. 2424.11 of the Regulations) are encouraged, and indeed,
are essential to the effective administration of the Statute.
Nothing would be more inherently destructive of encouragement of
voluntary settlements than disregard of approved settlements after
good faith compliance.
In the light of the regulatory scheme described, bare representations
of counsel may not be utilized as a basis for proceeding further with
allegations based upon the charge in Case No. 1-CA-115. There must be
proof of a failure to perform specific obligations imposed by a
settlement agreement, and proof of the Regional Director's determination
to institute further proceedings. The threshold burden of establishing
proof of these elements must be met before further proceedings in the
form of an unfair labor practice complaint and hearing may be
countenanced. The record does not provide a sufficient basis upon which
to make factual determinations concerning these issues. Accordingly, it
must be concluded that portions of the consolidated complaint dealing
with Case No. 1-CA-115, should be dismissed.
Facts Relating to Case No. 1-CA-276
The record disclosed that management officials at the VAMC either
instituted or agreed to a practice of providing a noon meal to
physicians assigned duty as Medical Officer of the Day on Monday through
Friday, and further that individuals assigned as Medical Officer of the
Day were deemed to be on duty for a 24-hour period. (Tr. 199-200,
250-251, 284). Evidence to the effect that VAMC management officials
were not aware of the practice must be deemed not worthy of belief. It
is impossible to credit such evidence in light of the responsibility
imposed upon responsible VAMC management officials. Also, Mr. Alan
Harper, Assistant Director, VAMC, testified that the VAMC changed its
interpretation of regulations pertaining to the hours of the Medical
Officer of the Day as a result of conversations with VA Central Office
personnel. (Tr. 201). It thus appeared that VAMC officials were fully
aware of the practice of assigning physicians to duty as Medical Officer
of the Day for 24-hour periods. Management was also aware of the
closely related practice of providing noon meals to those serving as
Medical Officer of the Day.
Veterans Administration regulations were unclear with respect to the
practices outlined, and were subject to interpretation. Regulations
dated as early as March 25, 1963, provided that management should make
"necessary arrangements which will provide continuous appropriate and
effective medical supervision 24 hours a day, 7 days a week." (G.C. Exh.
19). /8/ An issuance dated November 9, 1971, repeats this policy and
provides that "one or more physicians will be scheduled and assigned by
management to provide medical supervision during evenings, nights,
weekends, and holidays when the regular medical staff is not on duty,
and will serve such tours of duty as local management may specify.
Physicians assigned shall be referred to as Medical Officer of the Day."
(R. Exh. 3 and G.C. Exh. 19). /9/
Officials of the VAMC relied upon a November 9, 1979, Veterans
Administration issuance to bring about a change in practice concerning
meals to be provided to the Medical Officer of the Day, and the tour of
duty pertaining to the assignment. (G.C. Exh. 12, 19, and R. Exh. 4).
The document, comprised as part of a "Dietetic Service Newsletter," was
issued by Central Office personnel. It set forth no new regulatory
scheme, but merely spelled out an interpretation of existing
regulations. It provided that if facilities are available, medical
center management may authorize the Dietetic Service to provide meals
for Medical Officer of the Day, and that only supper, and evening snacks
on the day assigned, and breakfast on the following morning may be
provided.
In changing the Medical Officer of the Day meal and tour of duty
practice, the VAMC also relied upon direct contacts with officials in
the VA Central Office. (Tr. 167, 173-175, 192, 250-251). It thus
appeared that the Central Office was aware of impending changes at the
VAMC and actually authorized such changes on the ground that past
practice was inconsistent with the interpretation of existing
regulations issued by the Central Office.
At a VAMC medical staff meeting on January 7, 1980, bargaining unit
members were summarily informed that free noon meals for those assigned
Medical Officer of the Day duties would be discontinued. (Tr. 167,
244-245). At a Union-management meeting held on January 8, 1980, the
Union advised that the change was being effectuated without providing
the Union an opportunity to negotiate; however, the Assistant Director
of the VAMC advised that management was not concerned with negotiations
and that negotiations would not be held because the change was being
mandated by the Central Office. (Tr. 246). By letter dated January 13,
1980, Chaplain Gunton write the VAMC Chief of Personnel requesting that
management fully negotiate issues relating to the elimination of the
noon meal, and complaining that management had improperly denied the
Union the right to negotiate concerning this change. (G.C. Exh. 18).
At a January 30, 1980 meeting, VAMC officials took the position that
the decision to eliminate the noon meal was not negotiable because the
practice was mandated by a Government-wide rule or regulation, and that
a compelling need existed for the Government-wide rule or regulation.
At this meeting it was brought out that those assigned duty as Medical
Officer of the Day were being required by the Chief of Medical Services
at the VAMC to remain at the Center during a 24-hour tour of duty, and
it was unfair to require the Medical Officer of the Day to be present
during the noon meal period without providing noon meals. Management
agreed to consider this issue. (Tr. 250, 274).
In a letter dated January 29, 1980, delivered to the Union during the
January 30th meeting, Mr. Salmon relented and agreed to limited
negotiations concerning the impact and implementation of the decision to
eliminate noon meals. (G.C. Exhs.20 and 21). In a February 13, 1980
letter Mr. Salmon reiterated his position, noted that the decision to
eliminate noon meals on Monday through Friday was made by the Central
Office, and stated that such meals would not be provided after February
29, 1980. (G.C. Exh. 22). On February 29, 1980, the Monday through
Friday hours of the Medical Officer of the Day were reduced to the
period intervening between 4:30 p.m. and 8:00 a.m., and noon meals on
these days were eliminated. (Tr. 261, 274, 285).
Discussion and Conclusions
Case No. 1-CA-276
It is well established that the parties may establish terms and
conditions of employment by practice or other form of tacit or informal
agreement, and that terms or conditions established in this manner may
not be altered by either party in the absence of agreement or impasse
following good faith bargaining. Department of the Navy, Naval
Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64 (June 16,
1980).
The record shows that there was an established past practice of
providing noon meals for those assigned duty as Medical Officer of the
Day on Monday through Friday, and a correlative practice of assigning
duty as Medical Officer of the Day for 24-hour periods. VA officials at
the VAMC level and Central Office level determined that it would be
appropriate to terminate both of these established practices without
permitting the Union to bargain fully concerning the decision to
implement the changes outlined. In the light of pertinent authorities
this determination was clearly a denial of Union bargaining rights
established under the provisions of the Statute.
Initially there was a categorical refusal to participate in any
negotiations concerning these practices, and it was only after repeated
requests that Respondents relented to the extent of agreeing to permit
impact and implementation bargaining. However, the Union, as the
exclusive bargaining representative, had the right to bargain fully on
issues relating to the elimination of the noon meal and the change in
the 24-hour tour of duty.
Respondents' argument to the effect that the practices were
discontinued in accordance with Government-wide rules or regulation must
be rejected since there was no specific showing by the Respondents that
practices discontinued by the Respondents were actually prohibited by
Government-wide rule or regulation, and it was clear that rules and
regulations introduced into the record were subject to interpretation.
Moreover, both VAMC officials and Central Office officials had
previously permitted and condoned the prior practices under the
regulatory pattern in effect. Even if the VA regulatory scheme
prohibited the prior practices, the record showed that it was
nevertheless, a well established policy to provide noon meals and to
assign Medical Officer of the Day tours of duty for 24-hour periods.
Nothing in Section 7106(b)(1) of the Statute operates to preclude a
requirement that Respondents negotiate concerning the decision to change
the tour of duty assigned to the Medical Officer of the Day. It is true
that if the establishment of an additional tour of duty directly relates
to the numbers, types, or grades of employees assigned to the new tour
of duty, the obligation to meet and confer with the Union concerning the
decision to establish the new tour of duty, would come within the sole
discretion and election of the agency and would therefore not be a
negotiable matter. However, if the number of employees assigned to the
tour of duty, the type of grade of such employees, and the number of
positions remains the same as before the change, the establishment of
the new tour of duty cannot be treated as a matter negotiable only at
the election of the agency. National Treasury Employees Union Chapter
66, 1 FLRA No. 106 (September 13, 1979); American Federation of
Government Employees, AFL-CIO, International Council of U.S. Marshals
Service Locals, 5 FLRA No. 66 (April 29, 1981); Internal Revenue
Service and Brookhaven Service Center, 5 FLRA No. 64 (April 21, 1981).
In the instant case it was shown that the establishment of the 4:30 p.m.
to 8:00 a.m. tour of duty for Medical Officer of the Day did not
explicitly relate to the numbers, types, and grades of employees
assigned so as to come within the meaning of Section 7106(b)(1) of the
Statute. For this reason the decision to establish the new tour of duty
was fully negotiable.
Accordingly, it is determined that counsel for the General Counsel
has shown by a preponderance of the evidence that the conduct of
management officials representing the Respondents was violative of
Sections 7116(a)(5) and (1) of the Statute in that as alleged in the
consolidated complaint the Respondents refused to bargain with the Union
regarding the substance of the proposed elimination of the noon meal;
and further, that on February 29, 1980, Respondents eliminated the noon
meal; and further, that on February 29, 1980, Respondents eliminated
the noon meal for Medical Officer of the Day on Monday through Friday,
and the 24-hour tour of duty for those so assigned without first
furnishing the Union an opportunity to bargain fully concerning the
substance of the changes, and/or the impact and implementation of the
changes. /10/
Facts Relating to Case No. 1-CA-394 and Case No. 1-CA-397
Case No. 1-CA-394
The granting of endorsement to American Baptist clergy serving the
Veterans Administration and other specialized ministries, falls within
the purview of the Director, American Baptist Chaplaincy and Pastoral
Counseling, National Ministries, American Baptist Churches. The
Director, Reverend Paul Strickland, serves as staff to a committee
(Endorsing Committee) that grants endorsement on behalf of the American
Baptist Churches. Endorsement is a prerequisite to continued
employment. Academic credentials, a biographical sketch, letters of
reference, and a personal interview are required. Endorsements are
reviewed annually. In the absence of cause to deny endorsement, it is
renewed.
The record disclosed that Chaplain Gunton has, for a number of years,
had endorsement from the American Baptist Churches to function as a
Veterans Administration Chaplain. (Tr. 52). The last two regular
endorsement renewals occurred in 1979 and 1980. (Tr. 79-80).
Early in January of 1980, Mr. Salmon wrote to Chaplain Cherry in an
effort to find a way of removing Chaplain Gunton. He enclosed a number
of documents which are reflected in the record as a portion of G.C. Exh.
4. These documents, which will be described in more detail herein,
constitute severe criticism of Chaplain Gunton's method of carrying on
Union representational activity. Mr. Salmon took this action because he
had no independent authority to discipline Chaplain Gunton. (Tr. 410,
520-520A). The Central Office had such authority, although Mr. Salmon
did have authority to recommend disciplinary action. (Tr. 166,
206-207).
Prior to April 3, 1980, Chaplain Cherry discussed Chaplain Gunton
with Reverend Strickland and stated that he was going to request the
withdrawal of Chaplain Gunton's endorsement. (Tr. 71-72). Reverend
Strickland responded by saying that endorsement was granted for
ecclesiastical purposes, that it would not be withdrawn solely for
purposes of personnel management, and that although he was concerned
with the quality of performance, the Church "did not see endorsement as
a method of handling personnel matters." (Tr. 73).
On April 3, 1980, Chaplain Cherry phoned Reverend Strickland to
advise that VAMC officials were having continuing problems with Chaplain
Gunton. He described the documents received from Mr. Salmon, read from
some of them, agreed to send copies to Reverend Strickland, and said
that he thought Reverend Strickland would be interested in them from the
standpoint of effectuating a withdrawal of Chaplain Gunton's
endorsement. (Tr. 55-56, 112).
On April 4, 1980, Chaplain Cherry transmitted to Reverend Strickland,
copies of documents previously received from Mr. Salmon. (Tr. 391-392,
G.C. Exh. 4). Among other things these documents reflect management
complaints concerning Chaplain Gunton's criticism of working conditions
at the VAMC, management resentment over his having filed unfair labor
practice charges against VAMC officials, general non-specific complaints
concerning Chaplain Gunton's representational activity, general
criticism of the Union, accounts of disagreement with positions taken by
Chaplain Gunton in labor relations matters, self-serving statements by
VAMC officials concerning labor relations subjects, and accounts of the
performance of innocuous activities by Chaplain Gunton on behalf of the
Union. Chaplain Cherry admitted that he reviewed the material before
mailing it. (Tr. 507-508). He subsequently informed Mr. Salmon that he
had mailed the documents to Reverend Strickland and that Reverend
Strickland would phone Mr. Salmon directly about Chaplain Gunton. (Tr.
416).
Following Reverend Strickland's receipt of materials from Chaplain
Cherry, the Endorsing Committee met on April 7, 1980, to consider the
matter. The Committee reaffirmed American Baptist policy to the effect
that endorsement must relate to ecclesiastical matters and not personnel
management. (Tr. 76).
On the same date, April 7th, Reverend Strickland phoned Mr. Salmon.
/11/ Among other things Mr. Salmon was severely critical of the amount
of time Chaplain Gunton spent on Union activity and EEO complaints. He
stated that his Union activity was a source of disruption to the
hospital routine, and requested that Chaplain Gunton's endorsement be
withdrawn as a means of terminating his employment. (Tr. 66-99). Mr.
Salmon explained that it was very difficult for the Government to
terminate Chaplain Gunton based upon any documented misconduct, that a
reduction in force was not a possibility, and that withdrawal of his
endorsement was a method of removing him. (Tr. 67). Reverend
Strickland insisted upon written documentation from Mr. Salmon to
support his request for withdrawal of the endorsement. Mr. Salmon
discussed additional documentation, read portions of it over the phone,
and said he would send it to Reverend Strickland. (Tr. 67-68).
By letter dated April 7, 1980, Mr. Salmon transmitted to Reverend
Strickland a series of documents relating to Chaplain Gunton's
representational activity. (Tr. 452, G.C. Exh. 5). The documents
reflect information concerning Mr. Salmon's prior removal of Chaplain
Gunton from his position as Union designated representative on the EEOC,
criticism of his conduct on the EEOC, and concern over issues raised by
Chaplain Gunton as the Union representative on the EEOC.
On April 23, 1980, Mr. Salmon again wrote to Reverend Strickland, to
provide further evidence of a reason for withdrawal of endorsement.
This document reflects criticism of Chaplain Gunton's role as an advisor
to a bargaining unit member during a removal proceeding, and Mr.
Salmon's disagreement with factual representations alleged to have been
made by Chaplain Gunton. (G.C. Exh. 6).
As a result of material and information received from Chaplain Cherry
and Mr. Salmon, and solely because of such (Tr. 128-129), the Endorsing
Committee met on May 7, 1980 and determined that Chaplain Gunton's
endorsement should be considered in jeopardy, and further that members
of the Committee would make a site visit to investigate allegations
received. (Tr. 76). Mr. Salmon and Chaplain Gunton were informed of
the determination. (Tr. 76-77, G.C. Exh. 7). Reverend Strickland's
testimony established that the Endorsing Committee had also received
evidence of Chaplain Gunton meeting requirements for his position, and
further that the Committee was also concerned over the strain that he
might be under. (Tr. 116).
Members of the Endorsing Committee conducted an investigation at the
VAMC on May 29, 1980. Reverend Strickland wrote to Chaplain Cherry on
June 16, 1980, on behalf of the Committee and characterized the matter
as one involving personnel management at the VAMC, as distinct from
issues relating to ecclesiastical endorsement. (G.C. Exh. 8). He noted
that the VAMC Chief of Chaplains had provided satisfactory performance
ratings consistently, and also expressed "grave concern" about Chaplain
Cherry's support of Chaplain Gunton. The Committee found no reason to
discontinue his endorsement. (Tr. 131-132).
On June 18, 1980 Chaplain Cherry phoned Reverend Strickland to
complain further about Chaplain Gunton and the Committee's findings.
Reverend Strickland informed him that "from our point of view, our
chaplain is performing acceptable ministry." Chaplain Cherry hung up
abruptly when Reverend Strickland disagreed with him. (Tr. , 82-83).
On July 29, 1980, Chaplain Cherry wrote to Reverend Strickland and noted
that Chaplain Gunton's activity caused "uneasiness and tension," and
implied that this was cause with withdrawal of endorsement. (G.C. Exh.
9). He admitted that it was Chaplain Gunton's dealing with VAMC
management that constituted the gravamen of his concern (Tr. 552, 557),
and that the documents transmitted to Reverend Strickland, in large
measure, formed the basis for his wanting Chaplain Gunton terminated.
(Tr. 557-558).
In addition to the foregoing sequence of events the record shows that
Mr. Salmon admitted that Chaplain Gunton was a problem because he was
involved in Union activities and that he was deemed to be disruptive in
this respect. (Tr. 209-210). Mr. Salmon maintained "Reports of
Contact" regarding Chaplain Gunton's contact with VAMC employees because
of his perceptions of Chaplain Gunton's Union activities. (Tr. 212).
Mr. Salmon acknowledged that he discussed with Chaplain Cherry, the
material that he sent to Chaplain Cherry (Tr. 413), in order for the
Central Office to take action against Chaplain Gunton. (Tr. 484-485).
He also stated that he asked for Chaplain Cherry's assistance in
resolving his problems with Chaplain Gunton. (Tr. 519).
Counsel representing the Respondents acknowledged that 16 of the 18
pages comprising G.C. Ex. 4, on which Chaplain Cherry and Mr. Salmon
relied as a basis for their action, related to Chaplain Gunton's Union
activities. (Tr. 412). Mr. Salmon admitted that he thought the filing
of 12 unfair labor practice charges (without more) was evidence of
disruptive misconduct (Tr. 488), and that the Union at the VAMC was
"disruptive" in nature. (Tr. 489). He acknowledged that he had no
recourse under removal procedures pertaining to federal employees, and
that he discussed with Chaplain Cherry the option of going to the
Endorsing Committee to effect Chaplain Gunton's removal. (Tr. 493-494).
The record reflects that Chaplain John A. Howe, Chief of the VAMC
Chaplain Service, gave Chaplain Gunton a satisfactory performance rating
for the one-year period preceding April 30, 1980. (G.C. Exh. 23). With
one exception he was reported to have exceeded work requirements. In
March of 1981, he received a step promotion from GS-12, Step 5 to GS-12,
Step 6. Chaplain Howe characterized his work as being of an acceptable
level of competence. (G.C. Exh. 24).
Chaplain Gunton was never disciplined for improper conduct (Tr.
414-415, 485), and Mr. Salmon never initiated or threatened disciplinary
action through VA channels of authority. (Tr. 484, 496-497). In fact,
Mr. Salmon admitted that Chaplain Gunton had done nothing to warrant
disciplinary action, and stated merely that he had been "objectionable"
to management. (Tr. 492). Chaplain Cherry acknowledged that there was
nothing in Chaplain Gunton's personnel file that would identify
deficiencies in Chaplain Gunton's service as a chaplain. (Tr. 547).
Case No. 1-CA-397
In accordance with pertinent statutory and regulatory provisions an
EEOC has been in existence at the VAMC for a number of years. The VAMC
EEOC Committee is responsible for advising the Station Director (EEO
Officer) on overall EEO problems and approaches for carrying out special
assignments relating to EEO, as may be required. Among other things EEO
Officers are charged with establishing and maintaining a positive action
program designed to insure equality of opportunity. (R. Exh. 8). The
work of the VAMC EEOC deals with numerous subjects having a direct
impact on the terms and conditions of employment at the VAMC. The
Committee is comprised of 12 members and 2 counselors at large. Mr.
Salmon, the Center Director, as the designated EEO Officer retains the
final authority for determining the composition of the Committee. (R.
Exh. 8 at A-4). However, VA regulations provide that "employee and
recognized labor organization recommendations should be considered to
assure selection of committee members in whom they have confidence." In
response to this policy it was an established practice at the VAMC for
the Union President and Union Executive Committee to submit to the
Director (Mr. Salmon), the name of a Union representative to serve on
the VAMC EEOC. (Tr. 232-233). The person selected was designated by
the Union to represent Union interests and the Director had no authority
over the appointment. (Tr. 431-432). Other members of the EEOC were
selected through a nominating committee appointed by Mr. Salmon and then
either approved or disapproved by him. (Tr. 232).
Prior to April 18, 1979, Mr. Bennett Joseph, the President of the
Union had a discussion with Mr. Salmon, wherein Mr. Joseph mentioned
Chaplain Gunton as a possible Union representative on the Committee.
(Tr. 233-234). Chaplain Gunton had served on the EEOC previously as an
alternate member and as an interim appointee. (Tr. 286). Mr. Salmon
advised that he thought Chaplain Gunton would be a "disruptive
influence." (Tr. 234, 267). Mr. Joseph explained that the selection of
a representative was matter of internal Union business. (Tr. 234). On
April 18, 1979, Mr. Joseph appointed Chaplain Gunton to serve as the
Union representative on the Committee. (G.C. Exh. 15). He commenced
service as a Committee member and had the right to vote on issues
pertaining to EEOC business. (Tr. 370). After Chaplain Gunton's
appointment Mr. Salmon expressed regret that Chaplain Gunton had been
appointed (Tr. 235-236, 267, 269), ostensibly because another chaplain
also served on the EEOC. (Tr. 236).
On March 18, 1980, Mr. Salmon wrote to Mr. Joseph to advise him that
he would no longer permit Chaplain Gunton to serve as the Union
representative because he was considered "objectionable" to other
Committee members, and because his conduct was deemed "highly disruptive
to the effectiveness of the Committee." (G.C. Exh. 5 at 2). Mr. Joseph
took no action to appoint a replacement because Mr. Salmon had presented
no concrete evidence to justify removal of Chaplain Gunton. (Tr. 242).
The record indicated that Mr. Salmon removed Chaplain Gunton because
of his Union activity on the EEOC and because of his representational
work generally at the VAMC. He admitted relying upon materials
reflected in G.C. Exhs. 4 and 5, which include descriptions of Chaplain
Gunton's representational work on the EEOC. (Tr. 405-407). Prior to
preparation of the March 18, 1980 memorandum he consulted with VA
Central Office officials and received approval of his plan to remove
Chaplain Gunton from the EEOC. (Tr. 399, 432, 434-435).
A careful examination of the record disclosed that Chaplain Gunton's
representation of the Union led to serious disagreement with Mr. Salmon
and members of the EEOC associated with VAMC management. Their
complaints were general and non-specific (i.e. that he intimidated
others, obstructed and interfered with Committee business, and was
unethical). However, the record did not supply a basis for concluding
that Chaplain Gunton had been guilty of any specific misconduct. Mr.
Salmon acknowledged that he had never observed any misconduct and that
he had relied on the reports of others. (Tr. 382, 398). A careful
review of the reports indicates they may be construed as a management
version of Union representational activity. As noted, in a number of
situations conduct described was clearly innocuous in nature.
On June 12, 1980, Chaplain Gunton attended an EEOC meeting. The
President of the Union refused to accede to a request to order Chaplain
Gunton to leave when requested to do so in a telephone call placed to
the Union President by the Assistant Director of the VAMC. However,
following Chaplain Gunton's formal objection to his removal, Chaplain
Gunton did leave the Committee meeting at the request of the Assistant
Director. (Tr. 307-309).
Discussion and Conclusions
Case Nos. 1-CA-394 and 1-CA-397
Respondents take the position that their activities designed to
effect withdrawal of Chaplain Gunton's endorsement, and his removal from
the EEOC were predicated upon his misconduct during the course of his
representational activity. In each instance Chaplain Gunton was acting
officially as chief negotiator, steward, or the selected Union
representative to the VAMC EEOC.
When an employee who is also a Union official is acting in an
official capacity as a union official, he is entitled to greater
latitude in speech and action. U.S. Small Business Administration,
Central Office, Washington, D.C., 6 A/SLMR 157, A/SLMR No. 631 (March
26, 1976); /12/ Department of the Navy, Puget Sound Naval Shipyard,
Bremerton, Washington, 2 FLRA No. 7 (November 2, 1979); Department of
the Army, Headquarters, Military Traffic Management Command, 2 FLRA No.
72 (January 25, 1980); Veterans Administration Regional Office, Denver,
Colorado, 2 FLRA No. 84 (February 21, 1980); Department of Housing and
Urban Development San Francisco Area Office, San Francisco, California,
4 FLRA No. 64 (September 30, 1980).
The mentioned cases make it clear that although the Authority does
not endorse the use of intemperate or strident language in the conduct
of labor relations, not every impropriety committed by an employee while
engaged in protected activity is beyond the ambit of protected activity.
The cited decisions also indicate that in order to remove the
questioned acts from the ambit of protection, the employee must be found
to have engaged in flagrant misconduct.
In this case Respondents' allegations are couched in generalities,
and reflect no specific actions which might be classified as flagrant
misconduct. At most Chaplain Gunton's conduct consisted of strong,
vigorous representation and robust debate on behalf of the Union. Many
of the incidents relied upon by Respondents were patently innocuous
representational activity, or mere accounts of management arguments
concerning labor-management issues. The record suggests at some points
that representatives of the Respondents equated Chaplain Gunton's
representation of the Union point of view with personal misconduct.
The absence of any suggestion of reprimand of, or disciplinary action
against, Chaplain Gunton by Respondents; the admission that no basis
existed for formal disciplinary action; Chaplain Gunton's performance
ratings; and the obvious pretextual nature of the complaints
surrounding the charges of misconduct; also indicate that Respondents'
allegations of misconduct have no basis to support them. In light of
the foregoing it must be determined that Chaplain Gunton's behavior was
well within the ambit of protected activity.
It is noted that in order to establish a violation of Section
7116(a)(2) there must be a showing that the alleged victim of
discrimination was engaging in protected activity, that the agency had
knowledge of such activity, and that the agency took action because of
anti-union animus. United States Department of Labor, 1 FLRA No. 120
(September 28, 1979); Veterans Administration Center, Leavenworth,
Kansas, 1 FLRA No. 111 (September 20, 1979); U.S. Customs Service,
Region IV, Miami, Florida, 1 FLRA No. 108 (September 13, 1979). The
element of discriminatory motivation needed to establish a Section
7116(a)(2) violation may be inferred from circumstantial evidence. U.S.
Customs Service, Region IV, Miami, Florida, supra; Veterans
Administration Center, Leavenworth, Kansas, supra.
The Authority has also held that in examining discrimination where an
employee asserts a facially lawful business justification for the
alleged discriminatory action, it would examine such cases through an
analysis similar to that used by the United States Supreme Court in Mt.
Healthy City School District Board of Education v. Doyle, 529 U.S. 274
(1977) (involving conduct protected by the United States Constitution).
The Authority stated that the burden is on the General Counsel to make a
prima facie showing that the employee had engaged in protected activity
and that the prohibited conduct was a motivating factor in the
administrative action taken by the agency. Once this is established,
the agency may avoid responsibility only by showing by a preponderance
of the evidence that it would have reached the same decision or taken
the same action even in the absence of protected activity. Internal
Revenue Service, Washington, D.C., 6 FLRA No. 23 (June 17, 1981);
Veterans Administration, Medical and Regional Office Center, White River
Junction, Vermont, 6 FLRA No. 68 (August 5, 1981).
In this case the facts demonstrate that Respondents, through Chaplain
Cherry and Mr. Salmon, caused the initiation of an investigation by the
American Baptist Churches into the Church accreditation of Chaplain
Gunton in order to effect a withdrawal of his endorsement and
termination of his employment. The evidence also shows that Respondents
through Mr. Salmon and Central Office officials, brought about the
removal of Chaplain Gunton from the VAMC EEOC. Both patterns of
administrative action were pursued because Chaplain Gunton engaged in
protected activity under the Statute on behalf of the Union, and because
he initiated unfair labor practices against the VAMC.
Moreover, the record reflects that the reasons advanced by the
Respondents for taking such administrative action were pretextual in
nature. This element is demonstrated repeatedly in the record,
particularly by the fact that Chaplain Gunton's endorsement was renewed
in 1979 and 1980; by the many indications that Mr. Salmon and Chaplain
Cherry resented Union activity at the VAMC, and Chaplain Gunton's use of
time on behalf of the Union; by admissions that no legal basis could be
found for disciplining Chaplain Gunton; by the innocuous nature of many
of the complaints relied upon by Respondents as a basis for actions
taken; by the absence of any clear showing of misconduct; and by the
satisfactory performance ratings given by Chaplain Howe throughout the
pertinent period. However, even if it is assumed that the rule
articulated in Internal Revenue Service, Washington, D.C., supra, is
applicable here, there was no evidence introduced by Respondents showing
that the questioned administrative actions would have taken place in any
event had Chaplain Gunton not been engaged in protected activity.
On the basis of the foregoing it is concluded that the Respondents,
as alleged in Case No. 1-CA-394, violated Section 7116(a)(1) of the
Statute by causing the initiation of an investigation into Chaplain
Gunton's church accreditation because of his engaging in Union activity,
and because he filed unfair labor practice charges against the
Respondents. It is also concluded that this conduct involved
Respondents in violations of Section 7116(a)(2), (4), and (1) of the
Statute.
Similarly, in connection with Case No. 1-CA-397, it is determined
that Respondents' removal of Chaplain Gunton from the EEOC on or about
March 18, 1980, and June 12, 1980 was violative of Section 7116(a)(2),
(4), (5) and (1) of the Statute.
Facts Relating to Case No. 1-CA-574
(a) Inclusion of Charge in Personnel Extension File
The record showed that Chaplain Cherry, as VA Chief of Chaplains,
maintained in Washington, D.C., a duplicate personnel file, or personnel
extension file, relating to Chaplain Gunton. (Tr. 517-518). The file
was designed to be identical to the official personnel file maintained
at the VAMC, and was subject to review in connection with personnel
actions. (Tr. 550-551). Chaplain Cherry acknowledged that he
"probably" was responsible for placing in Chaplain Gunton's personnel
extension file, a copy of the original unfair labor practice charge
filed in Case No. 1-CA-394. (Tr. 558). The charge was added to the
file between June 10, 1980 and June 26, 1980. (Tr. 321-322, G.C. Exh.
25).
(b) Submission of Documents to Reverend Strickland on or
About October 14, 1980
On or about October 14, 1980, Chaplain Cherry transmitted to Reverend
Strickland a series of documents which he claimed related to Chaplain
Gunton's service as a chaplain. The documents pertained to a dispute
arising out of a personal family matter involving Chaplain Gunton.
(G.C. Exh. 10). The transmission of the material was clearly shown to
be a continuation of the effort launched by Mr. Salmon and Chaplain
Cherry to terminate Chaplain Gunton's endorsement because of his
involvement in Union activities. The documents were not solicited by
Reverend Strickland, and did not pertain to Chaplain Gunton's activities
as a chaplain. (Tr. 85-86). Chaplain Cherry's forwarding letter refers
back to Reverend Strickland's previously questioned decision to continue
Chaplain Gunton's endorsement, and indicates that the material was being
sent as a part of the effort to terminate Chaplain Gunton.
On October 24, 1980 Reverend Strickland wrote to Chaplain Cherry to
advise that the documents had no bearing on Chaplain Gunton's
functioning at Bath, and stated:
I regret that the implication in your letter is that this
indicates that Chaplain Gunton still has problems at Bath because
of a family situation . . . . I do not see how this family
dispute pertains to Chaplain Gunton's functioning or competency as
a chaplain . . . . (G.C. Exh. 11).
After conferring with a member of the Endorsing Committee, Reverend
Strickland determined that the material was not worthy of the
Committee's consideration. (Tr. 129-131).
(c) Chaplain John T. Sandlund Alleged to Have Attended Formal
Discussions, and Change in Chaplain Gunton's Tour of Duty
In September of 1980, Chaplain Howe, VAMC Chief of Chaplains and
Chaplain John T. Sandlund, a bargaining unit member, had a general
discussion concerning the possibility of changing tours of duty to
relieve Chaplain Sandlund of the responsibility of having to conduct two
worship services on Sundays. (Tr. 651). /13/ It appeared that the
request emanated from Chaplain Sandlund, who had health problems, but
was still continuing to perform duties as a chaplain. (Tr. 651, 661).
Chaplain Howe said that he would consider Chaplain Sandlund's request.
(Tr. 669).
At a later date during the early part of September 1980, Chaplain
Cherry, Chaplain Howe, Chaplain Sandlund, and two other VAMC chaplains
other than Chaplain Gunton, discussed a possible change in Chaplain
Gunton's tour of duty to lighten Chaplain Sandlund's Sunday schedule.
(Tr. 659-661). The meeting was not formal in nature, but an impromptu
encounter wherein bargaining unit employees took advantage of an
opportunity to complain to those in supervisory authority. (Tr. 660).
Chaplain Cherry indicated his approval of the proposed change in
Chaplain Gunton's tour of duty. (Tr. 331-332, 660-661).
Subsequently in September 1980, Chaplain Sandlund was with Chaplain
Howe on at least one occasion when the proposed change in Chaplain
Gunton's tour of duty was discussed with Mr. Salmon. (Tr. 374-376).
They brought to Mr. Salmon's attention the suggestion that Chaplain
Gunton assume some of Chaplain Sandlund's Sunday duties, and Mr. Salmon
agreed to the proposal. (Tr. 377-378). /14/
Chaplain Sandlund subsequently formalized his request for a tour of
duty change in an October 30, 1980 memorandum to Chaplain Howe. (G.C.
Exh. 28). By memorandum of the same date Chaplain Howe, at Mr. Salmon's
request, sent a memorandum to Mr. Salmon to request the tour of duty
change. (Tr. 663-664, G.C. Exh. 29). The request was thereafter
formally approved by Mr. Salmon.
On November 4, 1980, Chaplain Howe met with Chaplain Gunton and
Chaplain Sandlund about the matter. Chaplain Howe explained that
Chaplain Sandlund could not provide two Protestant services on Sundays
and that Chaplains Sandlund and Howe were proposing that Chaplain Gunton
assume Sunday duties. (Tr. 324-325). Chaplain Gunton interposed
objections on a number of grounds. Among other things, he pointed out
that the proposed change affected working conditions, that it was a
negotiable issue, and that it would constitute an economic hardship. He
noted that he performed outside work as a clergyman on Sundays and that
he was paid for this work. (Tr. 325-327, 672). Chaplain Howe said that
he would take the matter up with higher management (Tr. 328), but that
he was not impressed with the argument that he was under an obligation
to negotiate. (Tr. 672).
Mr. Salmon, Chaplain Howe, and the VAMC Personnel Officer
acknowledged that the Union, as distinct from Chaplain Gunton
personally, never received notice of the proposed change in Chaplain
Gunton's tour of duty. (Tr. 358-359, 380, 581, 652-653, 657). Although
negotiations were in fact requested by Chaplain Gunton, the opportunity
to negotiate was never provided. (Tr. 345). On November 12, 1980,
Chaplain Gunton received a memorandum dated November 5, 1980 from
Chaplain Howe, advising that a new 4-day tour of duty to include the
hours of 8:00 a.m. to noon on Sundays, 7:45 a.m. to 4:30 p.m. on
Mondays, 8:00 a.m. to noon on Tuesdays, and 3:30 p.m. to 7:30 p.m. on
Wednesdays, would be assigned to him as of November 16, 1980. (G.C.
Exh. 26). /15/ Chaplain Gunton went to see Chaplain Howe to repeat his
objections to the change; however, apart from receiving a delay in the
date of implementation, Chaplain Gunton was unsuccessful. /16/ The new
tour of duty became effective on November 23, 1980. (G.C. Exh. 27).
Discussion and Conclusions
Case No. 1-CA-574
(a) Inclusion of Charge in Chaplain
Gunton's Personnel Extension File
The original charge in Case No. 1-CA-394 was retained in Chaplain
Gunton's personnel extension file in Chaplain Cherry's Office. The file
was designed for use in connection with personnel actions. The charge
in question related to the pattern of unfair labor practice allegations
involving Chaplain Cherry's and Mr. Salmon's efforts to effect
withdrawal of Chaplain Gunton's accreditation because of his activity on
behalf of the Union. The record does not reflect evidence concerning
the manner in which the charge found its way into the file. However,
circumstantial evidence adduced during the hearing points clearly to
either the involvement of management officials representing the
Respondents, or VA Central Office placement of the document in Chaplain
Gunton's file on behalf of the VA and VAMC as a further manifestation of
antipathy toward Chaplain Gunton because of his Union activity. The
filing interfered with, restrained and coerced Chaplain Gunton in the
exercise of Chaplain Gunton's rights under the Statute. This conclusion
necessarily follows from the fact that awareness of such a filing would
have had a chilling effect on Chaplain Gunton's continued participation
in Union activities. On the basis of this rationale it is concluded
that the inclusion of the charge in Chaplain Gunton's personnel
extension file constituted a violation of Section 7116(a)(1).
(b) Submission of Documents to Reverend
Strickland on or About October 14, 1980
Chaplain Cherry's transmission of material to Reverend Strickland on
or about October 14, 1980 represented an abortive continuation of Mr.
Salmon's and Chaplain Cherry's plan to effect the withdrawal of Chaplain
Gunton's endorsement. Although it appears to have been put into motion
by Chaplain Cherry, the record discloses that Mr. Salmon and Chaplain
Cherry were acting in concert with respect to efforts to generate as
much basis as possible for Reverend Strickland to use as a reason for
withdrawing Chaplain Gunton's endorsement.
Although the documents related to an innocuous personal family
dispute involving Chaplain Gunton, they were transmitted to Reverend
Strickland by Chaplain Cherry because of Chaplain Gunton's involvement
in activity on behalf of the Union, and because of his filing unfair
labor practices against the VAMC. Accordingly, it is concluded that the
transmission of documents on or about October 14, 1980, constituted
violations of Sections 7116(a)(2), (4), and (1) by the Respondents.
(c) Chaplain John T. Sandlund Alleged to Have Attended Formal
Discussions, and Change in Chaplain Gunton's Tour of Duty
Section 7114(a)(2)(A) of the Statute provides:
(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment . . . .
Although there is little or no case law specifically construing the
provisions of Section 7114(a)(2)(A), cases construing Section 10(e) of
Executive Order 11491, are relevant since the terminology used in
Section 10(e) is nearly identical to that utilized in Section
7114(a)(2)(A).
In Department of Defense, U.S. Navy, Norfolk Naval Shipyard, 1 FLRA
No. 32, May 1, 1979, an unfair labor practice case initiated under
Executive Order 11491, the Authority approved the following language
used by the Federal Labor Relations Council in its Lyndon B. Johnson
Space Center (NASA) decision: /17/
The language of the pertinent portion of section 10(e) . . .
makes clear that it is not the intent of the Order to grant to an
exclusive representative a right to be represented in every
discussion between agency management and employees. Rather, such
a right exists only when the discussions are determined to be
formal discussions and concern grievances, personnel policies and
practices, or other matters affecting the general working
conditions of unit employees. (Footnotes omitted).
The Authority's decision in 1 FLRC No. 32, also adopted the following
Council language from the Council's decision reviewing the Assistant
Secretary's decision in A/SLMR No. 908:
Thus, the discussion or meeting for which representation is
sought must be 'formal' in nature and the topic of the meeting
must be one or more of the matters enumerated in the last sentence
of section 10(e), i.e., 'grievances, personnel policies and
practices, or other matters affecting general working conditions
of employees in the unit.' Both elements must exist for the right
of representation under section 10(e) to accrue either to the
exclusive representative or, derivatively, to the employee
involved.
As to the first element, the question of whether a meeting is
'formal' or informal is essentially a factual determination which,
in our view, is a matter best resolved on a case-by-case basis by
the Assistant Secretary as finder of fact, taking into
consideration and weighing a variety of factors such as: who
called the meeting and for what purpose; whether written notice
was given; where the meeting was held; who attended; whether a
record or notes of the meeting were kept; and what was actually
discussed. (Footnotes omitted).
The Federal Labor Relations Council in considering a case arising
under Sections 19(a)(1) and (6) of Executive Order 11491, as amended,
Department of the Navy, Naval Air Station, Fallon, Nevada, A/SLMR No.
432, FLRC No. 74A-80, 3 FLRC 697 (1975) held that the following criteria
should be used in determining whether a communication amounts to an
attempt to bypass the exclusive representative:
In determining whether a communication is violative of the
Order, it must be judged independently and a determination made as
to whether that communication constitutes, for example, an attempt
by agency management to deal or negotiate directly with unit
employees or to threaten or promise benefits to employees. In
reaching this determination, both content of the communication and
the circumstances surrounding it must be considered. More
specifically, all communications between agency management and
unit employees over matters relating to the collective bargaining
relationship are not violative. Rather communications which, for
example, amount to an attempt to bypass the exclusive
representative and bargain directly with employees, or which urge
employees to put pressure on the representative to take a certain
course of action, or which threaten or promise benefits to
employees are violative of the Order. (Footnote omitted).
In U.S. Department of the Air Force, 47th Air Base Group (ATC),
Laughlin Air Force Base, Texas, 4 FLRA No. 65, the Authority rejected
the suggestion that a Section 7116(a)(1) and (5) bypass of the Union
occurred when management dealt directly with employees to determine if
they would be willing to work elsewhere during closure of a portion of
an activity. The quoted portion of the Fallon decision was considered
in part by Administrative Law Judge Oliver in the decision subsequently
affirmed by the Authority. He noted that the discussions did not
concern any personnel policy or practices or conditions of employment
affecting employees in the unit generally, and that management did not
attempt to negotiate or deal with employees in order to obtain their
agreement to management's position, or to put pressure on the Union to
take a certain course of action.
Applying the principles outlined to the facts presented in this case
it is noted that Section 7114(a)(2)(A) is inapplicable because there was
no evidence to indicate a showing that any of the meetings were "formal"
in nature, and further the subject discussed did not relate to personnel
policies and practices, or other matters affecting the general working
conditions of bargaining unit employees. In each case it appeared that
Chaplain Sandlund initiated brief informal contacts with management in
an effort to be relieved of some of his Sunday duties. In each case
management responded to the request in limited terms applicable solely
to Chaplain Sandlund's situation. These circumstances reflect the
absence of formality, and the absence of discussion of any grievances,
personnel policies or practices, or other general conditions of
employment.
Since Section 7114(a)(2)(A) requires proof of the two mentioned
elements, and since such proof is not reflected in the record, it must
be concluded that counsel for the General Counsel has not established
its burden of proof with respect to this segment of Case No. 1-CA-574.
Similarly, in determining whether such discussions were a bypass
within the meaning of Sections 7116(a)(1) and (5), it is noted the
discussions described do not meet the criteria previously established by
the Authority in U.S. Department of the Air Force, 47th Air Base Group
(ATC), Laughlin Air Force Base, Texas, supra. Here there was no
apparent attempt to deal or negotiate directly with bargaining unit
employees concerning personnel policies or practices, or other
conditions of employment affecting employees in the unit generally. As
noted, Chaplain Sandlund initiated the request for a change in his tour
of duty, and the meetings were informal in nature. There was no attempt
on management's part to bypass the Union and deal directly with
bargaining unit employees, or which urged employees to put pressure on
the representative to take a certain course of action, or which
threatened or promised benefits to employees. Accordingly, it is
concluded that the record does not reflect proof of any violation of
Section 7116(a)(1) and (5) in connection with Chaplain Sandlund's
meetings with management.
With respect to allegations that Respondents discriminatively changed
Chaplain Gunton's tour of duty because of his Union activities it is
noted that there is circumstantial evidence in the record indicating
that Mr. Salmon's and Chaplain Cherry's participation in discussion with
Chaplain John T. Sandlund concerning the change in Chaplain Gunton's
tour of duty, and Respondent's approval of the tour of duty changes,
were motivated in part by anti-union animus. In fact, the facts clearly
suggest that Chaplain Sandlund's request may have been welcomed by
Respondents' representatives because of their opposition to Chaplain
Gunton's Union activity. However, the record clearly indicates that
Chaplain Gunton was the only Protestant Chaplain at the VAMC other than
Chaplain Sandlund, and further that Chaplain Sandlund's health provided
a strong reason for relieving him of some of his Sunday duties. Under
these circumstances it must be concluded that the record shows by a
preponderance of the evidence that Respondents would have reached the
same decision or taken the same action even in the absence of protected
activity. Because of this evidentiary showing portions of Case No.
1-CA-574 alleging violations of Sections 7116(a)(1), and (2) based upon
discriminatory conduct relating to the change in Chaplain Gunton's tour
of duty provide no basis for a finding in favor of the Union. Internal
Revenue Service Washington, D.C., supra; Veterans Administration,
Medical and Regional Office Center, White River Junction, Vermont,
supra.
In considering the bargaining obligation relating to Respondents'
determination to modify Chaplain Gunton's tour of duty, it is first
noted that there was an obligation to bargain concerning the decision to
effectuate the change because the change did not as proposed and
effectuated, explicitly relate to the numbers, types, and grades of
employees assigned so as to come within the purview of Section
7106(b)(1) of the Statute. National Treasury Employees Union Chapter
66, supra; American Federation of Government Employees, AFL-CIO,
International Council of U.S. Marshals Service Locals, supra; Internal
Revenue Service and Brookhaven Service Center, supra.
The record reflects that the decision to modify Chaplain Gunton's
tour of duty occurred as early as September of 1980 on occasions when
Chaplain Hose, Chaplain Cherry and Mr. Salmon indicated their approval
of Chaplain Sandlund's request to be excused from a portion of his
Sunday duties. Formal approval occurred on or about October 30, 1980
and November 5, 1980. The Union never received notice of the proposed
change, /18/ and there was a refusal to bargain concerning the matter
although Chaplain Gunton subsequently requested negotiations.
Counsel for the General Counsel argued during the hearing that a
March 7, 1979 settlement agreement involving the parties herein (G.C.
Exh. 14); but in connection with other unrelated cases, established the
duty to bargain concerning the decision to change Chaplain Gunton's tour
of duty, as well as issues pertaining to impact and implementation; and
further that the unilateral change of his tour of duty constituted a
patent breach of this agreement. The March 7, 1979 settlement agreement
might be interpreted as imposing a contractual obligation to bargain
fully on this subject. Insofar as is pertinent here the settlement
agreement provides:
Changes of tours of duty or methods of rotation through tours
of duty and days off shall be first negotiated in writing.
Response to Management proposals to fill new duty tours or change
tour rotation methods shall be made by the Union within two weeks.
(G.C. Exh. 14).
The meaning of the quoted language is unclear as the word
"negotiated" is not specifically defined, and the agreement was not
shown to be applicable to this case. It is not possible to construe the
provision so as to establish a patent breach of the agreement as a
separate unfair labor practice in this case. Moreover, the consolidated
complaint alleges no breach of the March 7, 1979 settlement agreement.
For the purposes of this litigation it is sufficient to say that the
settlement agreement includes no waiver of the Union's statutory right
to negotiate in this area of concern.
On the basis of the foregoing it must be concluded that Respondents
acted in violation of Sections 7116(a)(5) and (1) by formulating a
decision to change Chaplain Gunton's tour of duty without providing the
Union with adequate notice of the change and an opportunity to negotiate
concerning the decision to make the change and/or the impact and
implementation of the change.
Having found that the Respondents violated Sections 7116(a)(1) and
(5) in Case No. 1-CA-276; Sections 7116(a)(1), and (2), and (4) in Case
No. 1-CA-394; Sections 7116(a)(1), (2), (4), and (5) in Case No.
1-CA-397; and Sections 7116(a)(1), (2), (4), and (5) in Case No.
1-CA-574, it is recommended that the Authority issue the following
Order:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Veterans Administration, Washington, D.C., and the Veterans
Administration Medical Center, Bath, New York, shall:
1. Cease and desist from:
(a) Instituting at the Veterans Administration Medical Center,
Bath New York, changes in the practice of providing a noon meal to
physicians assigned duty as Medical Officer of the Day on Monday
through Friday, and the practice of assigning 24-hour tours of
duty to those selected to serve as Medical Officer of the Day on
Monday through Friday, without first notifying the American
Federation of Government Employees, AFL-CIO, Local 491, the
exclusive representative of its employees, and affording such
representative the opportunity to negotiate in good faith, to the
extent consonant with law, regulations and the Federal Service
Labor-Management Relations Statute, with regard to any proposed
changes in such established practices.
(b) Interfering with, restraining, or coercing Chaplain Ronald
Gunton in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute, by causing the initiation of
investigation into his Church accreditation because of his
participation in protected activities on behalf of the American
Federation of Government Employees, AFL-CIO, Local 491, and
because he filed unfair labor practice charges under the Federal
Service Labor-Management Relations Statute.
(c) Discouraging Chaplain Ronald Gunton from membership in a
labor organization by causing the initiation of investigation into
his Church accreditation because of his participation in protected
activities on behalf of the American Federation of Government
Employees, AFL-CIO, Local 491, and because he filed unfair labor
practice charges under the Federal Service Labor-Management
Relations Statute.
(d) Discouraging Chaplain Ronald Gunton from membership in a
labor organization by the removal of Chaplain Gunton from the
Equal Employment Opportunity Committee serving the Veterans
Administration Medical Center, Bath, New York, because of his
participation in protected activities on behalf of the American
Federation of Government Employees, AFL-CIO, Local 491, and
because he filed unfair labor practice charges under the Federal
Service Labor-Management Relations Statute.
(e) Refusing to meet, confer, and negotiate with the American
Federation of Government Employees, AFL-CIO, Local 491, by
removing Chaplain Ronald Gunton from the Equal Employment
Opportunity Committee serving the Veterans Administration Medical
Center, Bath, New York, and by denying Chaplain Gunton the right
to serve on the mentioned Equal Employment Opportunity Committee
as the designated representative of the American Federation of
Government Employees, AFL-CIO, Local 491.
(f) Interfering with, restraining, or coercing Chaplain Ronald
Gunton in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute by the inclusion of a copy of a
June 10, 1980 unfair labor practice charge relating to Case No.
1-CA-394, in Chaplain Gunton's personnel extension file in the
Office of the Chief of Chaplains, Veterans Administration,
Washington, D.C.
(g) Instituting at the Veterans Administration Medical Center,
Bath, New York, changes in Chaplain Ronald Gunton's tour of duty
without first notifying the American Federation of Government
Employees, AFL-CIO, Local 491, the exclusive representative of its
employees, and affording such representative the opportunity to
negotiate in good faith, to the extent consonant with law,
regulations and the Federal Service Labor-Management Relations
Statute, with regard to any proposed change in his tour of duty.
(h) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Rescind the changes effectuated on February 29, 1980, at
the Veterans Administration Medical Center, Bath, New York, in
connection with the practice of providing a noon meal to
physicians assigned duty as Medical Officer of the Day on Monday
through Friday, and the practice of assigning 24-hour tours of
duty to those selected to serve as Medical Officer of the Day on
Monday through Friday.
(b) Notify the American Federation of Government Employees,
AFL-CIO, Local 491, the exclusive representative of its employees,
of any proposed change in the practice of providing a noon meal to
physicians assigned duty as Medical Officer of the Day on Monday
through Friday, and the practice of assigning 24-hour tours of
duty to those selected to serve as Medical Officer of the Day on
Monday through Friday, and upon request, negotiate in good faith,
to the extent consonant with law, regulations and the Federal
Service Labor-Management Relations Statute, concerning such
intended changes.
(c) Notify Reverend Paul Strickland, Director, American Baptist
Chaplaincy and Pastoral Counseling, National Ministries, American
Baptist Churches, Valley Forge, Pennsylvania, of this Order, and
formally request the return of all documents forwarded to Reverend
Strickland for the purpose of furnishing a basis for withdrawal of
the endorsement of Chaplain Ronald Gunton by the American Baptist
Churches.
(d) Rescind the March 18, 1980 memorandum addressed to the
President of the American Federation of Government Employees,
AFL-CIO, Local 491, by Mr. Milton Salmon, Medical Center Director,
Veterans Administration Medical Center, Bath, New York, for the
purpose of effectuating termination of Chaplain Ronald Gunton's
appointment to the Equal Employment Opportunity Committee serving
the Veterans Administration Medical Center, Bath, New York.
(e) Remove from Chaplain Ronald Gunton's personnel extension
file in the Office of the Chief of Chaplains, Veterans
Administration, Washington, D.C., all copies of the June 10, 1980
unfair labor practice charge relating to Case No. 1-CA-394.
(f) Rescind the November 5, 1980 memorandum addressed to
Chaplain Ronald Gunton by Chaplain John Howe for the purpose of
effectuating a change in Chaplain Gunton's tour of duty.
(g) Notify the American Federation of Government Employees,
AFL-CIO, Local 491, the exclusive representative of its employees,
of any proposed change in the tour of duty assigned to Chaplain
Ronald Gunton, and upon request, negotiate in good faith to the
extent consonant with law, regulations and the Federal Service
Labor-Management Relations Statute concerning such change.
(h) Post at its facilities at the Veterans Administration,
Washington, D.C., and at the Veterans Administration Medical
Center, Bath, New York, 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 Administrator, Veterans Administration Washington, D.C., or
other appropriate official at the Washington, D.C. level of the
Veterans Administration, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, where notices
to employees are customarily posted. Reasonable steps shall be
taken by Respondents to insure that such notices are not altered,
defaced, or covered by other material.
(i) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, Federal Labor
Relations Authority, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the allegations in the consolidated
complaint found not to be violations of the Federal Service
Labor-Management Relations Statute be, and hereby are, dismissed.
LOUIS SCALZO
Administrative Law Judge
Dated: September 23, 1981
Washington, DC
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 institute changes at the Veterans Administration Medical
Center, Bath, New York, in the practice of providing a noon meal to
physicians assigned duty as Medical Officer of the Day on Monday through
Friday, and the practice of assigning 24-hour tours of duty to those
selected to serve as Medical Officer of the Day, without first notifying
the American Federation of Government Employees, AFL-CIO, Local 491, the
exclusive representative of its employees, and affording such
representative the opportunity to negotiate in good faith, to the extent
consonant with law, regulations, and the Federal Service
Labor-Management Relations Statute, with regard to any proposed changes
in such established practices. WE WILL NOT interfere with, restrain, or
coerce Chaplain Ronald Gunton in the exercise of rights assured by the
Federal Service Labor-Management Relations Statute by causing the
initiation of investigation into his Church accreditation because of his
participation in protected activities on behalf of the American
Federation of Government Employees, AFL-CIO, Local 491, and because he
filed unfair labor practice charges under the Federal Service
Labor-Management Relations Statute. WE WILL NOT discourage Chaplain
Ronald Gunton from membership in a labor organization by causing the
initiation of investigation into his Church accreditation because of his
participation in protected activities on behalf of the American
Federation of Government Employees, AFL-CIO, Local 491, and because he
filed unfair labor practice charges under the Federal Service
Labor-Management Relations Statute. WE WILL NOT discourage Chaplain
Ronald Gunton from membership in a labor organization by removing him
from the Equal Employment Opportunity Committee serving the Veterans
Administration Medical Center, Bath, New York, because of his
participation in protected activities on behalf of the American
Federation of Government Employees, AFL-CIO, Local 491, and because he
filed unfair labor practice charges under the Federal Service
Labor-Management Relations Statute. WE WILL NOT refuse to meet, confer,
and negotiate with the American Federation of Government Employees,
AFL-CIO, Local 491, by removing Chaplain Ronald Gunton from the Equal
Employment Opportunity Committee serving the Veterans Administration
Medical Center, Bath, New York, and by denying Chaplain Gunton the right
to serve on the Committee as the designated representative of the
American Federation of Government Employees, AFL-CIO, Local 491. WE
WILL NOT interfere with, restrain, or coerce Chaplain Ronald Gunton in
the exercise of rights assured by the Federal Service Labor-Management
Relations Statute by including a copy of a June 10, 1980 unfair labor
practice charge relating to Case No. 1-CA-394 in Chaplain Gunton's
personnel extension file in the Office of the Chief of Chaplains,
Veterans Administration, Washington, D.C. WE WILL NOT institute any
change in Chaplain Ronald Gunton's tour of duty without first notifying
the American Federation of Government Employees, AFL-CIO, Local 491, the
exclusive representative of its employees, and affording such
representative the opportunity to negotiate in good faith, to the extent
consonant with law and regulations and the Federal Service
Labor-Management Relations Statute, with regard to any proposed change
in his tour of duty. WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in the exercise of
their rights assured by the Federal Service Labor-Management Relations
Statute. WE WILL rescind the changes effectuated at the Veterans
Administration Medical Center, Bath, New York, on February 29, 1980, in
connection with the practice of providing a noon meal to physicians
assigned duty as Medical Officer of the Day on Monday through Friday,
and the practice of assigning 24-hour tours of duty to those selected to
serve as Medical Officer of the Day on Monday through Friday. WE WILL
notify the American Federation of Government Employees, AFL-CIO, Local
491, the exclusive representative of its employees, of any proposed
change in the practice of providing a noon meal to physicians assigned
duty as Medical Officer of the Day on Monday through Friday, and the
practice of assigning 24-hour tours of duty to those selected to serve
as Medical Officer of the Day on Monday through Friday, and upon
request, negotiate in good faith, to the extent consonant with law,
regulations and the Federal Service Labor-Management Relations Statute,
concerning such intended changes. WE WILL notify Reverend Paul
Strickland, Director, American Baptist Chaplaincy and Pastoral
Counseling, National Ministries, American Baptist Churches, Valley
Forge, Pennsylvania, of the Order requiring this Notice and posting, and
request by letter, the return of all documents forwarded to Reverend
Strickland for the purpose of furnishing a basis for the withdrawal of
the endorsement of Chaplain Ronald Gunton by the American Baptist
Churches. WE WILL rescind the March 18, 1980 memorandum addressed to
the President of the American Federation of Government Employees,
AFL-CIO, Local 491, by Mr. Milton Salmon, Medical Center Director,
Veterans Administration Medical Center, Bath, New York, for the purpose
of effectuating termination of Chaplain Ronald Gunton's appointment to
the Equal Employment Opportunity Committee serving the Veterans
Administration Medical Center, Bath, New York. WE WILL remove from
Chaplain Ronald Gunton's personnel extension file in the Office of the
Chief of Chaplains, Veterans Administration, Washington, D.C., all
copies of the June 10, 1980 unfair labor practice charge relating to
Case No. 1-CA-394. WE WILL rescind the November 5, 1980 memorandum
addressed to Chaplain Ronald Gunton by Chaplain John Howe for the
purpose of effectuating a change in Chaplain Gunton's tour of duty. WE
WILL notify the American Federation of Government Employees, AFL-CIO,
Local 491, the exclusive representative of its employees, of any
proposed change in the tour of duty assigned to Chaplain Ronald Gunton,
and upon request, negotiate in good faith to the extent consonant with
law, regulations and the Federal Service Labor-Management Relations
Statute concerning such change.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting and must not be altered,
defaced, or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Federal Labor Relations Authority, whose address is: 441 Stuart Street,
9th Floor, Boston, MA 02116, and whose telephone number is (617)
223-0920.
--------------- FOOTNOTES$ ---------------
/1/ In full agreement with the Judge's dismissal of the allegations
contained in the complaint in Case No. 1-CA-115, the Authority notes
particularly its adoption of the recommended decision in Norfolk Naval
Shipyard, 10 FLRA No. 105 (1983), which was relied upon by the Judge
herein in reaching his determination.
/2/ In denying General Counsel's exceptions seeking to broaden the
recommended notice posting to include all the Activities in the
consolidated unit, the Authority, noting particularly that the unlawful
conduct occurred basically at the Veterans Administration Medical
Center, Bath, New York, and additionally involved only one official from
the National Office, concludes that a limited posting as recommended by
the Judge would best effectuate the purpose of the Statute. See, e.g.,
National Treasury Employees Union, 10 FLRA No. 91 (1982), appeal
docketed, No. 83-1054 (D.C. Cir. Jan. 13, 1983).
/3/ On October 20, 1977, the Union was certified as the exclusive
representative of all professional and nonprofessional employees,
including canteen employees at the VAMC, excluding temporary employees
who do not have reasonable expectancy of continued employment, cemetery
employees, management officials, employees engaged in federal personnel
work in other than a purely clerical capacity, and supervisors. On
February 28, 1980, the American Federation of Government Employees,
AFL-CIO, was certified as the exclusive representative of all
professional and nonprofessional employees described as part of separate
consolidated Veterans Administration professional and nonprofessional
units.
/4/ Respondents did not file a post-hearing brief, and apart from the
answer filed and brief oral statements of counsel made during the course
of the hearing, did not present a detailed explanation of position
relating to the many issues posed in the consolidated complaint.
Counsel of record were required to file post-hearing briefs. (Tr. 681).
/5/ Chaplain Gunton and Chaplain Sandlund were the only Protestant
chaplains at the VAMC. (Tr. 385-386).
/6/ Counsel for the General Counsel moved to correct the transcript
as follows:
Page Line Change To
10 17 Institute Authority
11 4 Institute Statute
12 8 110 115
19 16 Institute Statute
21 6 711685 7116(a)(5)
83 9 I he
173 14 Medical Federal
207 1 incurrence concurrence
247 1 who she
303 21 Peter Heeter (and all subsequent references).
679 9 diminution elimination
The motion to correct is granted. The following additional
corrections are made in the hearing transcript:
Page Line Change To
1A 10 withdrawn 466
5 3 Institute Statute
27 13 934 394
32 6 talking taking
189 1 212 2.12
189 18 mean meal
222 18 Stranton Strand
681 20 is ruled on has ruled on it
681 22 Relations is Relations Authority is concerned
/7/ See also Veterans Administration Medical Center, Bath, New York,
4 FLRA No. 76 (November 12, 1980 and January 8, 1981), for references to
the settlement of Case No. 1-CA-115 prior to hearing.
/8/ This regulatory provision also suggests authorization for
furnishing noon meals to those assigned Medical Office of the Day duties
by inclusion of the following language: "When it is management's
decision to maintain an 'Officer of the Day' roster, conditions will be
specified under which the 'Officer of the Day will inspect patients'
meals. If management determines that continuous medical supervision
will be provided by any other arrangement, then these persons will not
be permitted 'Officer of the Day' meal privileges in the Dietetic area."
A subsequent regulation dated August 7, 1968 appeared to have some
relationship to the subject, but could not definitely be tied to the
issue on the basis of the record developed. (G.C. Exh. 13).
/9/ As noted, it was clearly established that the practice at the
VAMC was to assign physicians to Medical Officer of the Day duties for a
24-hour period. Thus, while serving a regular shift a physician so
assigned would be available during the lunch period as well as the
period following normal duty hours. Those so assigned were given a noon
meal for this reason. The parties stipulated that prior to February 29,
1980, the effective date of the elimination of the noon meal, Medical
Officers of the Day were required, "during some period prior to February
29, 1980," to stay at the duty station during the noon meal hour. (Tr.
679).
/10/ In Veterans Administration, 1 FLRA No. 101 (August 21, 1979),
the Authority held in an Executive Order case that agency officials
operating at lower organization levels may not be held responsible for
carrying out instructions issued at higher levels of the agency. The
facts presented in this case evidence involvement of both Central Office
officials and VAMC officials in the denial of the Union's right to
negotiate. There was no showing that VAMC officials should be absolved
because of the principle expressed in the cited case. That is, the
record did not show that when VAMC officials denied bargaining rights in
this case, they were taking such action solely because of the issuance
of VA Central Office instructions to implement changes without according
the Union bargaining rights provided by the Statute.
/11/ The record reflects that Mr. Salmon and Reverend Strickland had
more than one conversation (Tr. 44-45), and further that there was a
general discussion of Chaplain Gunton's conduct. (Tr. 416).
/12/ The Assistant Secretary relied on Old Dominion Branch No. 496,
National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264
(1974), in which the Supreme Court concluded that Executive Order 11491
did not intend to restrict in any way, the "robust debate" which has
been protected under the National Labor Relations Act.
/13/ Although the Respondents claimed that Chaplain Sandlund was a
"management official" within the meaning of Section 7103(a)(1) of the
Statute, and that the Union had no right to be present at discussions
involving Chaplain Sandlund, the record failed to reflect any basis for
a finding that he was a management official. Chaplain Sandlund had no
authority over Chaplain Gunton (Tr. 386), and like other VAMC Chaplains,
was under Chaplain Howe's supervision. (Tr. 670). There was no
evidence or argument showing that Chaplain Sandlund's duties required or
authorized him to formulate, determine, or influence the policies of the
Veterans Administration. Instead, the record indicated that Chaplain
Sandlund, like Chaplain Gunton, was a bargaining unit employee.
/14/ The record does suggest more than one meeting attended by these
three individuals. However, it would not be possible to find, on the
basis of the record developed, that more than one meeting occurred.
/15/ Chaplain Gunton's prior 3-day tour of duty involved the
following hours: Monday - 7:45 a.m. to 4:30 p.m., Tuesday - 7:45 a.m.
to 4:30 p.m., and Wednesday - 3:30 p.m. to 7:30 p.m.
/16/ Mr. Joseph, President of Local 491, also transmitted to the VAMC
Personnel Officer, a November 12, 1980 memorandum formally requesting
negotiations. (G.C. Exh. 30). No action was taken in response to this
request. (Tr. 658-659).
/17/ National Aeronautics and Space Administration (NASA),
Washington, D.C., and Lyndon B. Johnson Space Center (NASA), Houston,
Texas, A/SLMR No. 457, 3 FLRC 617 (FLRC No. 74A-95 (September 26,
1975)). The Authority's decision in 1 FLRA No. 32, resulted from
Authority review of the Federal Labor Relations Council's decision
remanding a decision of the Assistant Secretary of Labor for
Labor-Management Relations in Department of Defense, U.S. Navy, Norfolk
Naval Shipyard, A/SLMR No. 908, (FLRC No. 77A-141 (December 28, 1978)).
/18/ Notice to Chaplain Gunton on November 4, 1980, in his capacity
as a bargaining unit employee was not sufficient. United States Air
Force, Air Force Logistics Command, Aerospace Guidance and Metrology
Center, Newark, Ohio, 4 FLRA No. 70 (October 24, 1980).