U.S. DEPARTMENT OF VETERANS AFFAIRS Respondent and GENERAL SERVICES EMPLOYEES UNION, LOCAL 73, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO Carging Party

Case No. CH-CA-70412

Paul E. Piwinski, Esquire For the Respondent
Susan Kane, Esquire Greg A. Weddle, Esquire For the General Counsel
Before: WILLIAM B. DEVANEY Administrative Law Judge

DECISION

This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq. ⁽¹⁾, and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether a supervisor of Respondent told employees at its Lakeside Medical Center, in essence, that they should not trust Union Representative Brenda Woodall; that if they dealt with her they could lose their jobs; that Woodall was trouble. The supervisor denied having made any such statement to any employee at any time. For reasons fully set forth herein-after, I have found that a preponderance of the evidence supports the allegations of the Complaint.

This case was initiated by a charge filed on April 28, 1997, alleging violation of §§ 16(a)(1), (2), (3) and (8) of the Statute (G.C. Exh. 1(a)). The Complaint and Notice of Hearing issued on September 15, 1997; alleged violation of § 16(a)(1) only (G.C. Exh. 1(b)); and set the hearing for November 3, 1997, pursuant to which a hearing was duly held on November 3, 1997, in Chicago, Illinois, before the under-signed. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which Respondent exercised. At the conclusion of the hearing, December 3, 1997, was fixed as the date for mailing post-hearing briefs, which time subsequently was extended, on motion of the General Counsel, to which the other parties did not object, for good cause shown, to December 17, 1997, and Respondent and General Counsel each filed an excellent brief, received on, or before, December 22, 1997, which have been carefully considered. Upon the basis of the complete record⁽²⁾, including my observation of the witnesses and their demeanor, I make the following findings and conclusions:

1. The General Service Employees Union, Local 73, Service Employees International Union, AFL-CIO (hereinafter, "Union"), is the exclusive representative for a unit of Respondent Department of Veterans Affairs' Lakeside Medical Center ("Lakeside"), West Side Medical Center and Edward Hines, Jr. Hospital ("Hines"), Chicago, Illinois, employees.

2. Ms. Brenda Woodall is employed full-time by the Union as Union Representative, also referred to as Business Agent (Tr. 13, 24, 69, 70), a position she embarked upon on November 4, 1996 (Tr. 14). Prior to that, Ms. Woodall had been a Pharmacy Technician at Hines, from which she now is on leave without pay (Tr. 14), and, for five or six years, had served as a Union steward at Hines (Tr. 15). As Union Representative, she handles Lakeside, Hines and West Side Medical Center (Tr. 14).

3. Ms. Woodall testified that in the middle of January, 1997, about the 22^nd (Tr. 15), following a stewards meeting at Lakeside, she was stopped on the elevator by an employee of the Lakeside Radiology Department, Diane Halle (Tr. 20), who expressed concerns about matters in Radiology (Tr. 16) and Ms. Woodall told the employee she would arrange a meeting with Radiology employees (Tr. 16). Later, Ms. Woodall arranged the meeting, with the approval of Dr. Edwin April, Chief of Radiology (Tr. 66), and of Ms. Sarita Ann Brown, Administrative Officer, Radiology Service (Tr. 16, 56), and in the first week of February, 1997, met with Radiology employees (Tr. 17), including Ms. Brenda Williams, Ms. Diane Halle, Ms. Karen Williams, a man whose first name is James (she couldn't remember his last name), and a couple of other people (Tr. 19). She said the employees talked primarily about the weekend rotation (Tr. 17).

4. Ms. Brenda Williams is a Receptionist/Clerk Typist in the Lakeside Radiology Service (Tr. 22) and on February 20, 1997 (G.C. Exh. 2), was appointed Union steward. Ms. Williams confirmed the meeting with Ms. Woodall (Tr. 24) and recalled some of the people present that she remembered: Karen Williams, Damion Jackson, Diane Halle, James Warren, Priscilla Flagg, and Laverne Gaither (Tr. 29).

Some time after Ms. Woodall's meeting with the Radiology employees, Ms. Williams thought it was about February 14 (Tr. 36, 37), Ms. Brown, Ms. Williams' immediate supervisor (Tr. 23), called her on the telephone and asked her to come to her office, which she did immediately (Tr. 24). Ms. Williams testified, in part, on cross-examination as follows:

"A Sarita Brown asked me -- I think she asked me how well

did I know Brenda Woodall. I said, Well, we just met Brenda

Woodall. I don't really know her. And she said, Well, I'm

telling you now, you shouldn't trust her because she is bad

news.

"And I was just looking at her like why would she be

telling me this? And she said, If you don't believe me, I

can call some people over Hines. She has made people lose

their jobs.

"Q Did she ever identify these people at Hines?

"A I told her I didn't, no. She asked me did I want the

number to the people at Hines. I told her no." (Tr. 38).

On direct examination, Ms. Williams had testified, in part, as follows:

"Q To the best of your recollection, what specifically

was said in Sarita Brown's office?

"A She was talking about Brenda Woodall, the business

agent for Local 73 Union Office. She was telling me that

we shouldn't trust her because she is not a good person to

deal with. She has had experience dealing with her, and she

was trouble, and if we keep dealing with her, we would lose

our jobs.

"Q Now, did you say anything to Sarita Brown in response?

"A I was, like, a little shocked, and then I said, Well,

I'll just judge Brenda Woodall for myself.

"And she said, Well, I have phone numbers for people at

Hines VA that I can call right now and ask, and they will

tell you that Brenda is going to make you lose your job."

Tr. 24-25).

5. Ms. Diane Halle, an x-ray technician at Lakeside, acknowledged that it was she who met Ms. Woodall on the elevator and told her she was having problems and Ms. Woodall gave her her card and told her to call and she would come back and talk about her case, stated that her second line supervisor, Ms. Brown (her first line supervisor is Mr. Rick Jones (Tr. 44)), called her to her, Brown's office on February 13, 1997, to ask what the problem was in Radiology. Ms. Halle testified, in part, that the following took place:

"A It was a conversation that Sarita Brown had with me.

She brought me in the office and asked me what was the

problem around the Department, what did they do about it, and

I was telling her it was due to them getting this guy this

position.

"THE WITNESS: And we were talking about why he got it and

stuff, and then she asked me did I know anybody at Hines VA,

and I told her yes.

"And then she said, Well, you should ask some of them

about Brenda Woodall, she said, because Brenda Woodall would

sell us out. She would act like she was going to help us, and

then she'd sell us out, and we'd get fired. And she told me

not to tell anybody else this; it's between me and her."

(Tr. 46-47).

In cross examination, Ms. Halle explained the problems more fully as follows:

"Q What sort of junk was happening in Radiology Service at

that time?

"A Rick Jones -- they hired James Warren, Karen Williams,

Damion Jackson, and then a position became available for

Special Procedures. Priscilla Flag, myself, and James Warren

applied for it. James Warren had been with the Department for

one year. He had just graduated from school. [Ms. Halle had

been an x-ray technician at Lakeside 12 years (Tr. 43)]. They

trained Priscilla in the position for a while, and then

something got started. I don't know. They stopped training

her.

"Then they started training James Warren, which I kept

asking them would they train me in the Department.

"Even though I had done the job before but done it

somewhere else. James Warren trained in the room for over

nine months, and when the position became available, they

said that James, myself, and Priscilla was qualified, but

they selected James Warren for the position.

"That was in November. Then in January, Rick James came

back to Priscilla and myself. James was working Saturday

through Tuesday.

"Then after he got the position, they came back and said,

James didn't -- Ms. Brown said James didn't want to work

weekends anymore and that they was going to put me and

Priscilla on his weekends. . . ." (Tr. 51-52).

Ms. Halle made a record of her meeting with Ms. Brown on February 13, 1997, the day it took place (Tr. 50), on a "Report of Contact" form, VA Form 119 (G.C. Exh. 3).

6. Ms. Brown, who has been Administrative Officer, Radiology Service, since March 18, 1996 (Tr. 56), denied that she stated to Ms. Williams that, ". . . she should not trust the union representative, Brenda Woodall; that if she dealt with Ms. Woodall, she could lose her job and that Woodall was nothing but trouble" (Tr. 58) and denied that she had made that statement to any other employees (Tr. 58). She was not asked about any meeting with Ms. Halle.

7. Ms. Orajean Pruitt, a supervisor of the Lakesidex-ray File Room for nine years and employed at Lakeside for 17 years (Tr. 73), testified as a rebuttal witness that on February 14, 1997,

". . . Ms. Brown called me into her office to tell me about

the union, which is Brenda Woodall. She said that if you

keep listening to Brenda Woodall, you all are going to get

fired." (Tr. 74).

Ms. Pruitt made a written record of Ms. Brown's conversation on February 14 on VA Form No. 119, "Report of Contact." (G.C. Exh. 4; Tr. 73-75). Ms. Pruitt said she made out this "Report of Contact", "Because I felt that it was something wrong. . . ." (Tr. 76).

8. Although Ms. Brown was recalled by Respondent and testified about counseling Ms. Pruitt for failure to sign employee time cards (Res. Exh. 3; Tr. 81), she was not asked, and, therefore, did not deny, Ms. Pruitt's testimony concerning her, Ms. Brown, calling Ms. Pruitt into her office on February 14, 1997, and making the statement about Ms. Woodall as set forth above in Paragraph 7.

Although I have considered that Ms. Williams has been disciplined for attendance by Ms. Brown (Res. Exhs. 1 and 2); that Ms. Halle was denied compensation benefits (Tr. 53, 54); and that Ms. Pruitt was counseled by Ms. Brown for failure to sign employee time cards, nevertheless, I find their testimony credible, mutually corroborative and Ms. Halle and Ms. Pruitt each made a wholly corroborative written record. Ms. Brown's testimony was not convincing; she did not specifically address Ms. Halle's testimony; and, although recalled to testify about Ms. Pruitt's counseling, did not deny Ms. Pruitt's testimony. Accordingly, I fully credit the testimony of Ms. Williams, Ms. Halle and Ms. Pruitt and find that in February, 1997, Ms. Brown stated, in effect, that Union Representative, Brenda Woodall, should not be trusted; that she was nothing but trouble. Such statements were coercive and tended to discourage employees from engaging in protected activity in violation of § 16(a)(1) of the Statute. U.S. Penitentiary, Florence, Colorado, 52 FLRA 974, 981, 982 (1997). Respondent's contentions have been carefully considered and have been found without merit.

Having found that Respondent violated § 16(a)(1) of the Statute, it is recommended that the Authority adopt the following:

Pursuant to § 2423.41, of the Authority's Rules and Regulations, 5 C.F.R. § 2423.41, and § 18, of the Statute, 5 U.S.C. § 7118, the U.S. Department of Veterans Affairs, Lakeside Medical Center, Chicago, Illinois, shall:

1. Cease and desist from:

(a) Making statements to employees to the effect that they should not trust Union Representative Brenda Woodall; that she is not a good person to deal with; and that she would cause them to lose their jobs.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Post at its Lakeside Medical Center facility 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 Director of the Lakeside Medical Center and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to § 2423.41(e), of the Authority's Rules and Regulations, 5 C.F.R., § 2423.41(e), notify the Regional Director of the Chicago Region, Federal Labor Relations Authority, 55 West Monroe Street, Suite 1150, Chicago, Illinois 60603-9729, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

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WILLIAM B. DEVANEY

Administrative Law Judge

Date: February 25, 1998

Washington, DC

The Federal Labor Relations Authority has found that the U.S. Department of Veterans Affairs, Lakeside Medical Center, Chicago, Illinois, has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY ALL OF OUR EMPLOYEES THAT:

WE WILL NOT make statements to employees to the effect that they should not trust Union Representative Brenda Woodall; that she is not a good person to deal with; and that she would cause them to lose their jobs.

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.

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(Agency or Activity)

Date: ______________________ 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 any of its provisions, they may communicate directly with the Regional Director, Chicago Region, Federal Labor Relations Authority, 55 West Monroe Street, Suite 1150, Chicago, Illinois 60603-9729, and whose telephone number is: (312) 353-6306.

1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(a)(1) will be referred to, simply, as, "§ 16(a)(1)".

2. General Counsel's motion to correct the transcript, to which no objection was made, and which is meritorious, is granted and the transcript is hereby corrected as follows: