FEDERAL LABOR RELATIONS AUTHORITY       OALJ 16-25                                                                                                              

                                                                                                      Office of Administrative Law Judges

                                                                                                                WASHINGTON, D.C. 20424

 

 

 

 

DEPARTMENT OF VETERANS AFFAIRS VA MEDICAL CENTER RICHMOND, VIRGINIA                 RESPONDENT
AND   AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2145, AFL-CIO                 CHARGING PARTY   AND   DENISE O’BRIEN                 CHARGING PARTY/INDIVIDUAL	Case Nos. WA-CA-15-0116                  WA-CA-15-0117                  WA-CA-15-0157                  WA-CA-15-0224

 

 

Douglas J. Guerrin

               For the General Counsel

 

Timothy M. O’Boyle

                For the Respondent

 

Jennifer Marshall

                For the Charging Party, AFGE, Local 2145

 

Denise O’Brien

                 Charging Party, Individual

 

Before:    RICHARD A. PEARSON     

                Administrative Law Judge

 

 

DECISION

            Philosophers and theologians have long grappled with the Irresistible Force Paradox:  what happens when an irresistible force is met by an immovable object?  Our case, fortunately, does not require us to resolve that paradox, but instead it poses a variation on that theme:  what happens when neither the irresistible force nor the immovable object is as strong as they think they are?  Specifically, what happens when a union believes its right to designate its own representatives is absolute, and an agency believes its right to determine its own internal security policies need not be compromised?  And more pertinently, what happens when neither party is interested in discussing the matter? 

This case revolves around the Union’s appointment of retired nurse Deneen Harris as a vice president and steward, and the Agency’s insistence that Harris undergo the registration process and orientation required of all volunteers before she could represent employees on the grounds of the VA Medical Center in Richmond, Virginia.  The Union insisted that Harris was not a “volunteer,” and that the Agency could not limit the Union’s exclusive discretion as to who would serve as Union representatives.  Harris began setting up meetings with employees and supervisors, but the Agency refused to meet with her and evicted her from a meeting between a manager and several employees.  Agency management insists that it will be happy to meet with her and allow her to perform her Union duties once she meets the minimal procedural requirements that it has long had in place.  The Union insists that it had never before been required to follow these procedures, and that management must allow Harris to perform her representational duties unconditionally.  Neither side offered to step back and discuss the matter, and so the dispute has reached a standoff.

Federal law has long recognized that unions certified as the exclusive representative of employees have the right to designate their own representatives, but that right is not unlimited.  Federal agencies also have the right to determine their internal security practices, safeguard their physical property, and determine when and how employees and visitors may gain access to their facilities.  In other words, the respective rights of the union and agency must be accommodated – but in this case, neither party sought any accommodation. 

Primary blame for the current standoff rests with the Agency, because it unilaterally and prematurely imposed a change in conditions of employment without notifying the Union or offering to negotiate.  Employees who had arranged for Ms. Harris to represent them watched as she was escorted out of meetings and off the Medical Center.  But the Union also needs to share the blame:  once Harris and the Union were notified of the Agency’s new application of its “volunteer” policy, the Union refused to entertain any notion that its stewards could be subjected to any rules, and it is clear that it was more interested in fighting than negotiating.  The procedural requirements for Harris to register and undergo an orientation and training were indeed minimal and could have been easily satisfied in a few hours.  By refusing to understand and accept the limits on its rights, the Union chose a needless fight and allowed at least two employees to become unsuspecting victims of this labor-management power struggle. 

The substance of the Agency’s policy regulating when and how people may access the Medical Center is not negotiable, but the Union does have the right to bargain over the impact and implementation of that policy on employees and union officials.  Management’s mistake here was not in telling Harris that she had to comply with its rules, but in failing to give the Union an opportunity to bargain before implementation.  If, after receiving proper notice and a chance to bargain, the Union had chosen to fight rather than negotiate, it would have waived its right to bargain, and the Agency would have been free to apply its policy to Harris.  But since the Agency did not give proper notice or offer to negotiate, its unilateral implementation of this policy violated § 7116(a)(1) and (5) of the Statute, and its eviction of Harris from a meeting with employees independently violated § 7116(a)(1) of the Statute. 

 

STATEMENT OF THE CASE

 

This is an unfair labor practice (ULP) proceeding under the Federal Service

Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. §§ 7101-7135 (the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (the Authority or FLRA), 5 C.F.R. part 2423.

On December 16, 2014, Denise O’Brien filed a ULP charge and an amended charge (Case No. WA-CA-15-0116) against the Department of Veterans Affairs, VA Medical Center, Richmond, Virginia (the Agency, Respondent, or Medical Center), alleging that the Agency violated the Statute by removing Union representative Deneen Harris from a meeting between employees and their manager.  GC Exs. 1(a) & 1(e).  Also on December 16, 2014, the American Federation of Government Employees, Local 2145, AFL-CIO (the Union) filed a ULP charge (Case No. WA-CA-15-0117), alleging that the Agency violated the Statute by barring Harris from the Medical Center until she registered as a volunteer.  GC Ex. 1(c). 

On January 23 and March 9, 2015, the Union filed two additional ULP charges against the Agency (Case Nos. WA-CA-15-0157 and WA-CA-15-0224), alleging that the Agency unlawfully prevented Harris from representing an employee at a disciplinary meeting and another employee at a Professional Standards Board (PSB) hearing.[1]  GC Exs. 1(f) & 1(h). 

After investigating the charges, the Regional Director of the FLRA’s Washington Region issued a Consolidated Complaint and Notice of Hearing on June 26, 2015, on behalf of the FLRA’s General Counsel (GC).  With regard to Case Nos. WA-CA-15-0116 and

WA-CA-15-0117, the GC alleged that on December 9, 2014, the Agency violated § 7116(a)(1) of the Statute by preventing a Union official from representing employees in a meeting with management and by interfering with the Union’s right to designate its representative.  The GC also alleged that the Agency violated § 7116(a)(1) and (5) of the Statute by unilaterally implementing a policy requiring the Union representative to register as a volunteer in order to represent employees at the Medical Center, thereby changing a condition of employment without providing the union advance notice of, and an opportunity to bargain over, the change.  With regard to Case No. WA-CA-15-0157, the GC alleged that on December 22, 2014, the Agency violated § 7116(a)(1) of the Statute by preventing Harris from representing an employee at a disciplinary meeting and thus interfering with the Union’s right to designate its representative.  The Complaint further alleged that the Agency bypassed the Union by meeting directly with the employee at that meeting, in violation of § 7116(a)(1) and (5) of the Statute.  With regard to Case No. WA-CA-15-0224, the GC alleged that the Agency violated § 7116(a)(1) of the Statute on February 18, 2015, by preventing Harris from representing an employee at a PSB hearing until she registered as a volunteer with the Agency.  GC Ex. 1(j). 

The Respondent filed its Answer on July 15, 2015, denying that it violated the Statute.  GC Ex. 1(l). 

A hearing was held in this matter on September 17 and 18, 2015, in Richmond, Virginia.  All parties were represented and afforded an opportunity to be heard, to introduce evidence, and to examine witnesses.  The GC and the Respondent filed post-hearing briefs, which I have fully considered.

Based on the entire record, including my observations of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

FINDINGS OF FACT

The Respondent is an agency within the meaning of § 7103(a)(3) of the Statute.  The American Federation of Government Employees, AFL-CIO (AFGE), is a labor organization within the meaning of § 7103(a)(4) of the Statute and is the exclusive representative of a nationwide bargaining unit of employees of the Department of Veterans Affairs (VA).  The Union is an agent of AFGE for the purpose of representing employees at the Medical Center. GC Exs. 1(j), 1(l).

The Medical Center is a 1A facility, the highest level facility in the VA.  Tr. 353.  Approximately 3500 people work at the Medical Center, some of whom are employed under Title 5 of the United States Code and others under Title 38.  About 1000 people visit the Medical Center on any given day.  Tr. 391.  Nurses work throughout the Medical Center, from ambulatory clinics to intensive care units (ICUs).  Many of the areas where nurses work are not open to the public.  Tr. 357.  The Voluntary Service (also referred to as “Voluntary Services”) is the department responsible for recruiting, training, and placing volunteers at the Medical Center.  Tr. 233-34.  People wishing to volunteer at the Medical Center must first register as volunteers with the Voluntary Service.  Tr. 242.  This also includes people affiliated with veteran service organizations, many of which have kiosks in the lobby of the Medical Center and offer social and informational services to patients.  Tr. 250, 261-63.  Registration involves a “vetting” process that includes fingerprinting, a background check, and privacy training.  Tr. 235, 354-55.  The Medical Center similarly requires employees and contractors to be fingerprinted, undergo background checks, and take privacy training.  Tr. 354, 393.  The VA and the Medical Center have both issued written policies regarding these issues.  Resp. Exs. 12 & 13.    

 

Deneen Harris worked as a registered nurse for nineteen years at the Medical Center and retired in 2009, after which she had no affiliation with the Union or the Medical Center for at least two years.  Tr. 36.  Subsequently, she was appointed by the Union President to a variety of positions, helping employees with issues such as workers compensation claims. 

 

Tr. 36-37, 44, 105-06.  On November 25, 2014,[2] the Union gave the Agency a revised list of its stewards and officers, which identified Harris as a vice president and steward for Title 38 employees.  GC Ex. 2.   

 

The Meeting between the Surgical ICU Nurses and Skelton

 

In late November, several nurses on the night shift in the Surgical ICU met with Union President Jennifer Marshall about a variety of complaints they had, many of which related to their nurse manager.  Tr. 106-07, 182-84.  Marshall asked Harris to handle the matter, and Harris met with the nurses to learn more about their problems.  Tr. 198-99.  Denise O’Brien, a Surgical ICU nurse who had recently been appointed as a Title 38 steward, spoke to Jon Skelton, their second-line supervisor, and arranged for him to meet with the nurses to discuss the complaints.  The meeting was initially scheduled for December 1, but Skelton postponed it to the morning of December 9 and arranged for it to be held in a community room located near his office.  Tr. 108-09, 184, 198-99.

 

Around this same time period in late November or early December, Human Resources Director Valencia Moore learned that Harris had been contacting bargaining unit employees and scheduling meetings as their Union representative.  Moore concluded that Harris should not be in the Medical Center, meeting with employees and supervisors, until she had registered as a volunteer.  Medical Center Director John Brandecker agreed with Moore, and the HR department prepared a letter to be sent to Harris, under Brandecker’s signature, directing her to comply with the volunteer registration procedure.  Tr. 341-43, 356, 376-77.  The letter was dated December 10; it was delivered to the Union office on December 11 and to Harris’s home a few days later.  Tr. 113-16; GC Ex. 3.

 

On the morning of December 9, Harris arrived at the room where the Surgical ICU nurses’ meeting with Skelton was to be held.  Tr. 108-09, 151, 185.  Harris greeted the nurses and waited for Skelton to arrive.  Meanwhile, Skelton had called labor relations specialist James Kielhack, told him that Harris was being “disruptive,” and asked for his assistance.  Kielhack called the VA police to come to the scene, because he “did not want a confrontation.”  Tr. 319-21.  Kielhack arrived at the meeting room, spoke with Skelton, and then told Harris that she could not attend the meeting.  Tr. 109-10, 322.  After considerable discussion between Harris, Kielhack, and the security officers, Harris left the area and went to the Union office.  Tr. 111-12.    

 

At the hearing, Harris testified that Kielhack “told me that I had to stop the meeting and I had to leave the premises by order of the director.  And I said, excuse me?”  Tr. 110.  Kielhack explained to her, “[B]ecause you are . . . no longer an employee, and you’re not a volunteer, you’re not a veteran, and Mr. Brandecker wants you to leave the property.”  Tr. 111.  She further testified, “When I asked him about the order, for me to leave the property, he kept telling me, well, a letter will be coming.  You’ll be getting a letter from the director, but never gave me any real answer as to why I needed to stop the meeting.”  Tr. 112. Harris apologized to the nurses, asked O’Brien to take notes, and left.  Tr. 112-13, 186. 

 

O’Brien testified that “there was no way we could . . . reschedule the meeting with that many nurses and [Skelton].”  Therefore, O’Brien asked Skelton “if I could excuse myself as a nurse and take notes for the Union.”  Tr. 186-87.  She testified that she did not have any formal representational training and was not authorized by the Union to do more than take notes at the meeting.  Tr. 190.  The meeting went on without Harris and lasted about an hour. Tr. 199; GC Ex. 8.  The night shift nurses complained of ineffective communication with their nurse manager, of being overworked in comparison to the other shifts, and of having insufficient and outdated supplies.  Skelton addressed each of these issues with the nurses, and he also answered questions about the criteria for promotion.  Tr. 188; GC Ex. 8. 

 

On the evening of December 9, Union President Marshall sent an email to Brandecker and other management officials, reminding them that the Union had previously notified the Agency of Harris’s status as a Union official, and protesting Harris’s exclusion from the nurses’ meeting that morning.  She advised the Agency that Harris needed to be at the Medical Center on December 11 and 12 to represent an employee in a proposed adverse action, and she warned the Agency that it would commit an unfair labor practice if it prohibited Harris from performing her Union duties or restricted her access to the Medical Center.  Resp. Ex. 11 at 8-12. 

 

The Director’s Letter to Harris

 

On December 11, Brandecker’s letter to Harris was delivered to the Union.  The letter stated:

As Director of the Hunter Holmes McGuire VA Medical Center I am charged by federal regulation (38 C.F.R. § 1.218) with the responsibility for enforcing the rules of conduct and order on Medical Center grounds.^[[3]]  I am also

 

responsible for ensuring that all employees and volunteers at the Medical

Center comply with VA privacy laws and regulations, and other rules of conduct.  I was recently advised that you are volunteering at the Medical Center, including patient care areas.

 

You are not a current VA employee or a veteran and, therefore, you are not allowed to be on the Medical Center premise[s] in the role of a volunteer unless you are a registered volunteer.  All volunteers must register with the Voluntary Service, including scheduling an appointment for fingerprints and the appropriate background investigation, obtaining an identification card, and completing an orientation program, including privacy training.  The Voluntary Service advised that you have not completed this registration process.

 

In accordance with the authority granted to me under 38 C.F.R.§ 1.218, by this letter I am instructing you to not return to this facility as a volunteer until you have completed the registration process with Voluntary Service. . . .

 

It is imperative that you adhere to the instructions stated in this letter if you wish to volunteer in this facility.  If you attempt to perform volunteer duties at the Medical Center without first registering with the Voluntary Service, your violation of these instructions may result in escort off Medical Center grounds and issuance of a trespassing citation.

 

GC Ex. 3.

 

Although Brandecker asserted that Harris was “volunteering” at the Medical Center and that she could not volunteer there until she registered with the Voluntary Service, the record shows that Brandecker meant (and the parties understood Brandecker to mean) that Harris could not perform representational work on behalf of the Union at the Medical Center until she registered as a volunteer.  For example, when Brandecker was asked at the hearing why he wrote this letter, he explained:

 

It was my understanding that Ms. Harris was up on the floors, in units where she would have access to information, talking to union employees, which is not a crime, but it does require her to undergo training.  It is my responsibility to make sure that [Harris] undergoes that training, so she knows what the regulations are, what the rules are, where the boundaries are, relating to her access to health information or any information related to veterans.  That’s always readily available when you’re up on the unit. 

 

Tr. 356.

 

 

The Oral Reply Meeting

 

On October 30, the Agency proposed suspending Alice Tart, an LPN, for fifteen days for pushing a coworker.  GC Ex. 4.  Ms. Tart signed a letter of representation designating Harris as her Union representative;[4] Harris obtained Tart’s evidence file and interviewed Tart and other potential witnesses.  Tr. 119.  A meeting was initially scheduled for December 12, for Tart to make an oral reply to the proposed suspension to Brandecker, the deciding official. Tr. 119, 121, 175. 

 

On December 11, the day the Union received Brandecker’s letter to Harris requiring her to register as a volunteer, both Harris and Marshall responded with separate emails to Brandecker and other management officials.  First Harris wrote, asserting that she was entitled to represent bargaining unit employees at the Medical Center, and that she was in fact a veteran.[5]  Resp. Ex. 11 at 6-7.  That evening, Marshall wrote to the same officials, asserting that Harris “does NOT serve as a volunteer[,]” and that Union officers “do not and are not volunteers.”  Id. at 3-4.  Marshall continued, “You cannot deny [her] access and I will take you on full steam on this matter.”  She reminded Brandecker that Harris would be attending the December 12 meeting regarding the proposed suspension of Ms. Tart, who is also an officer of the local chapter of the NAACP.  “Harm Ms. Tart by denying her duly designated representative, . . . and the full wrath of the NAACP will fall on you as well.”  Id. at 4.    

 

Marshall continued the offensive the next morning, December 12, when she sent the following email to Agency management:

 

Do not call down to the Union Office to try and get another Union official to represent Ms. Alice Tart with regards to her agency Proposed 15 day Suspension.

 

You are the most incompetent HRM Service Chief that I have ever encountered.  This place once [sic] to fight and I thrive on fighting so bring it on!!! . . . YOU DISHONOR ONE OF OUR NATIONS HEROES WHO IS A VETERAN OF THE UNITED STATES ARMY!!!

. . . .

 

This is not difficult!! You have been placed on several notices that Deneen Hurtt Harris, Vice President, Title 38 for . . . Local 2145 is the designated Union representative to provide this 3 pm response and SHE WILL BE THERE TO PROVIDE THE RESPONSE.

 

[T]his agency . . . issued a barr [sic] letter to Deneen Hurtt Harris for not being a veteran or a registered-volunteer.  Ms. Harris is a Union Officer for Local 2145.

 

. . .

 

Mrs. Harris is the only representative that has solely worked with Ms. Tart to provide a meaningful response to this proposed adverse action for the deciding official to consider as to whether to sustain the proposed action or issue any action at all.

 

Id. at 1-2.

 

Later that day, Harris and Tart went to the conference room outside the director’s suite, where the oral response meeting was to be held.  Angela Kimel-Hampton, a labor relations specialist, told Harris that she could not represent Tart, but that the Union could send another representative instead.  Tr. 123.  When Tart insisted on having Harris represent her, the meeting was rescheduled for December 22.  Tr. 124.

 

On December 22, Harris approached the director’s suite to attend the rescheduled oral response meeting and saw two VA police officers.  One of them told her, “I’m sorry, we can’t allow you to go any further.”  Tr. 124-25.  Minutes later, Harris saw Tart, and then

Kimel-Hampton.  Kimel-Hampton told her, “[Y]ou know you can’t represent Ms. Tart.  We notified the union office that they needed to send someone else up there.  You haven’t done what you’re supposed to, what the director directed you to do in the letter.”  Harris countered that she was Tart’s representative and that Kimel-Hampton was “denying [Tart] her due process.”  Tr. 125.  Then, Harris recalled, Kimel-Hampton “proceeded to try to walk off with Ms. Tart and talk to her, and told Ms. Tart, it’ll be okay.  You can come with me, it’ll be okay.”  Tr. 126. 

 

At the hearing, Brandecker testified that he directed Kimel-Hampton to advise Tart that she could have another Union representative, but Tart declined the offer and agreed to meet with Brandecker on her own.  Tr. 365-66.  The disciplinary meeting took place with Brandecker and Tart and without a Union representative.  Tr. 364.  Brandecker also testified that he did not allow Harris to serve as Tart’s representative because Harris “had not undergone the training, as she was asked.”  Tr. 363.  Asked why there was a need to bar Harris from the meeting, Brandecker stated:

 

This was not going to be a one-time thing with her.  So if we establish a precedent that she could do this, that’s in effect, allowing her to go up onto units, allowing her not to go through the background check.  And that is just not . . . according to our policy.

 

 

Tr. 377.  When Harris was asked at the hearing why another steward could not have represented Tart, she said that the Union was short several stewards, and the few Title 38 stewards were new and untrained.  Tr. 154-57.                                                                                

The PSB Hearing

 

On February 5, 2015, Skelton informed Alma Johnson, a registered nurse, by memorandum that a Professional Standards Board would be held on February 19, to review Johnson’s performance during her probationary period, including an allegation that Johnson had failed to scan the wristband of a patient before administering medications.  The letter advised her, among other things, that she had the right to be represented by a person of her choosing.  GC Ex. 5.  Subsequently, Johnson signed a letter designating Harris as her representative, and the two met in the Union office to discuss the case.  Tr. 128, 131-32. 

 

On February 17, Harris sent Skelton an email asking to postpone the PSB hearing so that the Human Resources Department would have time to produce the evidence file and additional information Harris had requested.  GC Ex. 6 at 2.  Skelton forwarded Harris’s request to HR, and on February 18, Kimel-Hampton informed Skelton and Harris that the hearing would not be postponed.  GC Ex. 7.  In addition, Kimel-Hampton told Harris, “If you have been properly vetted, you may represent Ms. Johnson.  If not, please provide an alternate union representative to represent Ms. Johnson at tomorrow’s hearing.”  Id.  Harris saw the email in the evening and did not try to find a replacement, since “nobody had prepped her case or done anything for her, and knew nothing about her case, and could not represent her[.]”  Tr. 162.

 

According to Harris, Johnson was out sick on February 19 and did not attend the PSB hearing.  Although the General Counsel did not introduce any direct evidence concerning the hearing, Harris testified that she understood that the PSB proceeded without either Johnson or a representative present.  Tr. 135-36. 

 

Issues Elaborated on at the Hearing

 

Among the issues addressed by witnesses at the hearing was whether the Agency had changed a condition of employment.  Marshall testified that prior to December 2014, the Agency had “had no objection” to Harris representing employees at the Medical Center.  Tr. 29-30.  Similarly, Harris testified, “I had been representing people in various capacities at this medical center since I retired in 2009, and it [registering as a volunteer] had never been required.”  Tr. 169.  For his part, Brandecker stated that he had never sent anyone else a letter similar to the one he sent Harris on December 10, 2014.  Tr. 376.

 

Marshall acknowledged that the Union did not ask to bargain over the change, but asserted that it was because the Agency “had already implemented” the policy.  Tr. 60, 80.

 

Several people were identified who have performed work on behalf of the Union, and who are not employees of the Medical Center.  None of these individuals, except for one, has been required to undergo the volunteer registration process.  Most of them, like Harris, had

 

previously worked for the Agency and retired, including Betty Taylor, Charles Jackson, and Joyce Smith.  Ms. Taylor retired from the Medical Center as a details clerk in 2001, but then started working full-time for the Union in 2011 as a paid office assistant, which requires her to deliver grievances and other documents to supervisors throughout the Medical Center, including patient care areas.  Tr. 33, 223-26.  The Agency required Taylor to get a Medical Center ID badge in 2011, but did not require her to be fingerprinted, undergo a background check, take privacy training, or register as a volunteer.  Tr. 226-27, 229-30.  While Mr. Jackson was working at the Medical Center as a registered nurse, he was also a Union officer, most recently its executive vice president.  He retired from the VA in 2012, but continued in his Union position as executive vice president and to represent bargaining unit employees until approximately April of 2013.  Tr. 32, 202-03, 212.  Jackson was never asked to register as a volunteer, though he did take privacy training after he retired.  Tr. 204,

221-22.  Ms. Smith retired as a radiologist from the Medical Center in 2003, and she has continued since then to serve as a Union steward and as chairman of the Union’s legislative committee.  Tr. 32, 88-90.    

 

One Union representative, Deborah Brooks, has been required to register as a volunteer.  Ms. Brooks was a long-time steward and chief steward for Title 5 employees (see Resp. Exs. 2-5), who retired from the VA and went to work for the Military Order of the Purple Heart, a private service organization that has a kiosk at the Medical Center and assists veterans with benefit claims.  Tr. 67-68, 250.  She also continues to serve as a Title 5 steward for the Union.  GC Ex. 2.  Jason Gray, the Agency’s Chief of Voluntary Services, testified that because Ms. Brooks is not a VA employee, she is subject to the Agency’s volunteer rules and was required to be interviewed, vetted, and fingerprinted.  Tr. 250-51, 267-68.[6]  

 

Agency witnesses emphasized the importance of vetting individuals who regularly perform activities on the grounds of the Medical Center, including making sure that they understand the laws and rules concerning patient privacy and the confidentiality of records.  Tr. 236, 240-41, 243, 283, 353-54.  All employees are required to undergo privacy and confidentiality training upon hire and then annually, and volunteers receive similar training when they register.  Tr. 283, 354-55.  Brandecker asserted that a Union representative working in nursing areas could have access to many types of information that are sensitive to veterans and their families; accordingly, “we need to make sure that folks have training before they – so they understand that they’re not allowed to reveal any of that.”   Tr. 357-58. 

 

Brandecker explained why Harris needed to register and undergo vetting and training, even though she had previously worked at the Medical Center for many years:

 

This is somebody who had not been here for 10 [sic] years.  That’s quite a long break.  A lot can happen in 10 years, including laws and regulations that change.  And, you know, certainly all of the HIPAA laws are not 40 years old. Some of them are fairly current.  Of course, other additional regulations that

 

the VA has related to privacy and so on, all of those – and information security, all of those things she would need to get caught up on.  So I don’t see that as being unreasonable, or a different treatment at all[.]

 

Tr. 393.  Brandecker contrasted Harris’s situation with Jackson’s, even though Jackson had ceased performing any Union duties before Brandecker came to the Medical Center.  In Jackson’s case:

 

There was no break from the time he was an employee.  He was a union officer at the time. . . . And then, the only thing that changed was his status as an employee to retired.  So he had already gone through a background check, fingerprinting, training – because training is annual.  It’s mandatory. . . . So I can see how folks at the time may not have asked him to go through another fingerprint check because his status changed. 

 

Tr. 392-93.  Brandecker suggested that other non-employee Union representatives had not been required to register as volunteers because they, like Jackson, continued working for the Union immediately upon ceasing their employment with the VA.  Tr. 375-76.

 

            The Union asserted that it was improper to treat Harris as a volunteer.  Marshall testified that the Voluntary Service bore no relation to the work performed by Union representatives.  “The . . . policies related to Voluntary Service only serves patients.  We [Union representatives] don’t serve patients in any capacity.”  Tr. 30.  The Union also contrasted the treatment of Harris as a volunteer to the treatment of private attorneys coming to the Medical Center. 

 

            Brandecker testified that regardless of whether Harris interacted with patients, she needed to be vetted and to receive privacy training.  He denied that she was being singled out for different treatment in any way.  Employees are vetted and trained through Human Resources, contractors through the contracting department, and “all others go through Voluntary Services, no matter who they are.”  Tr. 358.  He insisted that he had no intention of barring Harris from the Medical Center or preventing her from representing the Union, but only of ensuring that she go through a background check and complete her privacy training.  Tr. 359.  Those registration procedures for volunteers are specifically described in VHA Handbook 1620.01, “Voluntary Service Procedures,” issued by the Veterans Health Administration; and MCM-135-4, “Voluntary Program,” issued by the Medical Center.  Tr. 238-39, 245-46; Resp. Exs. 12 & 13.[7]  Agency officials further explained that private attorneys are not required to register as volunteers, because such individuals enter the

 

 

Medical Center as “a one-time thing,” whereas Union representatives would be doing so on a recurring basis.  Tr. 265, 378.  They also noted that private attorneys would not have access to patient care areas or the Agency’s computer system.  Tr. 293.         

 

            A procedural dispute also arose at the hearing with regard to the Respondent’s right to review pretrial statements Harris made to the General Counsel prior to cross-examining her.  At the Respondent’s request, Counsel for the GC furnished Respondent’s Counsel with those affidavits Harris made in support of the four ULP charges at issue here, but not the affidavits Harris made in support of other charges that were filed and withdrawn.  Tr. 138-40, 179-81. Counsel for the GC indicated that he did not bring those affidavits to the hearing, and thus the affidavits were not available; he also argued that Respondent was not entitled to those affidavits.  Tr. 139.  Respondent’s Counsel argued that the withdrawn charges are “related to this case.  They also involve issues of Ms. Harris’s access to this medical center.”  Tr. 138.       

POSITIONS OF THE PARTIES

 

General Counsel

 

The General Counsel argues that by preventing Harris from accessing the Medical Center, the Agency interfered with the Union’s right to designate its representative, in violation of § 7116(a)(1) of the Statute.  GC Br. at 16-17 (citing Bureau of Indian Affairs, Isleta Elementary Sch., Pueblo of Isleta, N.M., 54 FLRA 1428, 1438 (1998) (BIA); Phila. Naval Shipyard, 4 FLRA 255, 266-68 (1980) (Shipyard)).  The GC argues that there was no “legitimate justification” for barring Harris from the Surgical ICU nurses’ meeting, Tart’s disciplinary meeting, and Johnson’s PSB hearing, as Harris had not engaged in “flagrant misconduct” or a “serious abridgement of . . . rules or regulations.”  GC Br. at 17 (citing BIA, 54 FLRA at 1440; Shipyard, 4 FLRA at 266).  The GC also alleges that the Respondent “has not provided any evidence of any security concerns posed by Ms. Harris.”  GC Br. at 19. 

 

In addition, the General Counsel argues that the Agency had not previously required Union representatives to register as volunteers, and that it therefore changed conditions of employment when it required Harris to register as a volunteer.  Since the Agency imposed the change without giving the Union advance notice or an opportunity to bargain, it violated       § 7116(a)(1) and (5) of the Statute.  While the GC acknowledges that an agency has the right to determine its internal security practices, a union is entitled to negotiate over the impact and implementation of changes in such practices.  Id. at 20-21.  By applying its policy to Ms. Harris before giving the Union notice and an opportunity to bargain, the GC asserts that the Union was not required to demand bargaining, because such a request would have been useless.  See Fed. Bureau of Prisons, Fed. Corr. Inst., Bastrop, Tex., 55 FLRA 848, 855 (1999). 

 

The General Counsel further contends that Brandecker unlawfully bypassed the Union when he met with Ms. Tart regarding her proposed discipline without Harris or any other Union representative present, in violation of § 7116(a)(1) and (5) of the Statute.  GC Br. at 22 (citing U.S. Dep’t of Justice, Bureau of Prisons, Fed. Corr. Inst., Bastrop, Tex., 51 FLRA 1339, 1346 (1996)). 

 

Finally, the General Counsel asserts that it was not obligated (under the “Jencks Rule,” first articulated by the Supreme Court in Jencks v. United States, 353 U.S. 657 (1957), and later codified into law at 18 U.S.C. § 3500) to provide the Respondent with the additional affidavits it requested at the hearing, because the requested affidavits pertained to charges that were not part of the Consolidated Complaint.  GC Br. at 23.  Since Harris’s testimony at the hearing related only to the four charges included in the Complaint, her other affidavits were not “related to the subject matter” of this case, as required by 18 U.S.C. § 3500(b). 

 

Respondent

 

The Respondent argues that it did not violate the Statute by barring Harris from the Medical Center.  In this regard, the Respondent cites 38 C.F.R. § 1.218(a)(1)-(2), which provides, “The head of the facility or designee shall have authority to designate areas within a facility as closed to the public[,]” and, “Admission to property during periods when such property is closed to the public will be limited to persons authorized by the head of the facility or designee.”  Resp. Br. at 6.  Further, barring Harris from the Medical Center until she registered as a volunteer involved the exercise of management’s right to determine its internal security practices.  Id. at 5-6 (citing U.S. Dep’t of Def., Fort Bragg Dependents Sch., Fort Bragg, N.C., 49 FLRA 333, 342-43 (1994)).  In addition, the Respondent contends that people seeking to work as volunteers in the Medical Center must register as volunteers and undergo vetting, a requirement set forth in VHA Handbook 1620.01.  Resp. Br. at 7.  Respondent suggests that it needed to bar Harris from the Medical Center until she registered as a volunteer because Harris “would need access to private and confidential areas of the Medical Center[]” when working as a Union representative.  Id. at 9.

 

Respondent insists that at no time has it refused to recognize Harris as a Union representative; rather, it simply demands that she complete the simple vetting process, and then she will be free to roam the Medical Center and represent employees.  Despite the Agency’s simple demands on Harris, she has refused to comply, and neither she nor the Union has explained why she cannot complete the vetting process.  Id. at 8.

 

With regard to the claim that the Respondent unilaterally changed conditions of employment, the Respondent asserts that it treated Harris “in a manner consistent with the treatment given to non-employees who regularly perform work at the Medical Center.” 

Id. at 11.  The fact that other non-employee Union officials had not been required to register with the Voluntary Service did not create a past practice establishing a condition of employment, as those other officials were not comparable to Harris.  Id. at 13-17.  Moreover, the Union never requested bargaining over the registration requirements; indeed, the Respondent argues that the Union’s actions throughout the dispute demonstrated that it had no intention of bargaining.  Id. at 21, 24.  In the Respondent’s view, the basic requirements that Harris be vetted and trained through the volunteer registration process involve “management rights not subject to negotiations.”  Id. at 25. 

 

 

Finally, the Respondent argues that the General Counsel “did not meet its obligations under Jencks of providing all [of Harris’s] prior statements regarding this matter,” because the GC did not produce statements Harris made “in other withdrawn charges.”  Id. at 25-26 (emphasis omitted).  Respondent, like the GC, cites the Authority’s decision in Dep’t of the Treasury, IRS, Memphis Serv. Ctr., 16 FLRA 687 n.1 (1984) (IRS Memphis), applying the Jencks Rule to ULP hearings.  Although the Respondent acknowledges that the GC produced statements Harris made in the charges at issue in this matter, it asserts that the withdrawn charges “dealt with the same operative facts as the charges in this matter, specifically, the Medical Center’s notification to Ms. Harris that she had to be vetted before performing representational duties at the Medical Center.”  Resp. Br. at 25.  Conceding that the Authority’s case law is “not clear regarding what remedy there may be in addressing a Jencks violation,” Respondent asks that I strike Harris’s testimony or, in the alternative, credit Agency witnesses over Harris.  Id. at 26.

 

ANALYSIS AND CONCLUSIONS

 

A.  Witness Affidavits

 

Although the Authority has adopted the Jencks Rule for ULP hearings, and it is routinely followed by the administrative law judges of this agency, neither counsel has identified any precedent that would apply to the specific facts of this case.  The General Counsel gave the Respondent Harris’s affidavits in connection to the four pending charges in this consolidated case, and all evidence suggests that Counsel for the GC acted in good faith to comply with the rule.  The question is whether, in the words of the statute codifying Jencks, the withdrawn charges “relate[] to the subject matter as to which the witness has testified.”  18 U.S.C. § 3500(b).

 

Neither the IRS Memphis decision nor cases following it, such as U.S. Small Bus. Admin., Wash., D.C., 54 FLRA 837, 848-49 (1998), shed any light on this question.  Assuming, as the Respondent’s counsel asserts, that the withdrawn charges involved other incidents in which the Agency refused to deal with Harris until she registered as a volunteer, these additional affidavits might indeed be considered “related” to the subject matter of the case at bar.  Seeing how Harris described other, similar incidents might have provided counsel with some new insight into the current charges that might have been useful in cross-examination.  An equally reasonable argument can also be made, however, that the withdrawn charges do not truly “relate” to the incidents at issue today:  that is, they do not relate to the Agency’s exclusion of Harris from the meetings of December 9 and 22, 2014, or from the PSB hearing of February 19, 2015. 

 

If Respondent’s counsel had raised this issue at the prehearing conference, held a week before the hearing, I would have required the General Counsel to bring all of Harris’s affidavits to the hearing, in an abundance of caution.  When the affidavits were first requested, they were a hundred miles away, in Washington, D.C.  In light of the ambiguity as to the scope of the rule, I believe it would be unreasonable to expect counsel for the GC to have come to the hearing with statements Harris made in support of withdrawn charges, absent advance warning.  Finally, it is highly unlikely that the Respondent’s counsel was prejudiced in his cross-examination of Ms. Harris by his inability to review the affidavits from withdrawn cases.  Accordingly, I deny the Respondent’s request that I sanction the GC by striking Harris’s testimony.

B.  The Alleged Unfair Labor Practices

            In its narrowest sense, this is a rather simple, straightforward case:  the fundamental question, whose answer resolves most of the remaining issues in the case, is whether the Agency changed conditions of employment when it required Harris to register as a volunteer before recognizing her as a Union representative.  And as I indicated in the opening paragraphs of this decision, I conclude that the answer to that question is yes.  Once it is recognized that the Agency initiated such a change, it follows that the Agency was required to notify the Union and offer to negotiate the impact and implementation of the change; that the Agency failed to provide such notice before implementing the change; and that the Agency’s premature attempts to enforce the new policy by refusing to meet with Harris were unlawful.

            But as I also suggested at the start, there is an underlying power struggle ongoing between this union and this agency, which will not be resolved by deciding the case narrowly. While the Respondent must understand that it cannot impose its internal security rules on the Union peremptorily, the Union must also understand that the Agency has the right to set policies regarding how and when employees and non-employees may gain access to the Medical Center.  In other words, the Agency’s management rights are not an immovable object, and the Union’s right to designate its representatives is not an irresistible force.  Rather, an accommodation between the two must be established, preferably by negotiations.    

Section 7102 of the Statute provides that employees have the right to form, join, or assist any labor organization.  This right encompasses a union’s right to designate its representatives, including a non-employee representative who will have access to an agency’s premises to conduct representational activities.  BIA, 54 FLRA at 1438; see also U.S. Dep’t of Veterans Affairs, N. Ariz. VA Health Care Sys., Prescott, Ariz., 66 FLRA 963, 965 (2012) (section 7114 of the Statute also entitles a union to designate its own representative).  Absent a “legitimate justification,” an agency’s interference with this right violates § 7116(a)(1) of the Statute.  BIA, 54 FLRA at 1440.  Examples of a legitimate justification include a “serious abridgment of . . . rules or regulations,”  Shipyard, 4 FLRA at 266, and flagrant misconduct, BIA, 54 FLRA at 1440; see also U.S. Penitentiary, Leavenworth, Kan., 55 FLRA 704, 713-14 (1999) (“special circumstances” may justify agency’s refusal to recognize a representative). 

The Union would like the preceding paragraph to be the end of my decision, but it is only the beginning.  As the General Counsel (but not the Union) concedes, an agency’s right under § 7106(a)(1) to determine its internal security practices includes the right to control access to its premises and the right to protect confidential information.  GC Br. at 20.     AFGE, Local 3937, 66 FLRA 393, 395 (2011); Fort Bragg, 49 FLRA at 342-43 (internal security includes policies for when and how employees and non-employee union

representatives may gain access to agency facilities).  Similarly, it entitles an agency to establish policies to prevent improper disclosure of confidential or privileged information.  NFFE, Local 1482, 44 FLRA 637, 655 (1992). 

In our case, both the VA and the Medical Center had long-established policies in effect, giving the Medical Center Director authority to control as to who may access Medical Center property and the circumstances in which employees and non-employees may gain access to the Agency’s computer system and to employee and patient records.  The policies for employees are overseen by Human Resources, and the policies for non-employees are overseen by the Voluntary Service.  The policies described by Gray and Brandecker to require all non-employees regularly accessing the Medical Center facilities to register with the Voluntary Service fit squarely within its 7106(a)(1) right to determine internal security, and as such, the substance of those policies is not negotiable. 

The Agency would like the preceding sentence to be the end of my decision, but it is not.  For even when (as here) an agency exercises a management right, and the substance of the policy is not negotiable, the agency has an obligation to bargain over the impact and implementation of that policy, if the resulting change has more than a de minimis effect on conditions of employment.  U.S. Dep’t of the Interior, U.S. Geological Survey, Great Lakes Sci. Ctr., Ann Arbor, Mich., 68 FLRA 734, 737 (2015).  Moreover, the agency is generally required to maintain the status quo during the pendency of such bargaining.  Id.; U.S. Dep’t of Justice, INS, 55 FLRA 892, 902-03 (1999). 

In the next section of this decision, I will explain my reasoning as to why the Agency unilaterally, and unlawfully, changed conditions of employment, but it is important to emphasize first that implementation of that decision will require both the Agency and the Union to come together to accommodate each other’s legitimate statutory rights.  The Agency’s error here was not in advising a non-employee Union representative that she needed to register and undergo a vetting and training process in order to access the Medical Center, but rather in applying its policy to a Union official for the first time without affording the Union an opportunity to negotiate procedures for implementing the policy and appropriate arrangements for individuals (like Harris) affected by the policy.[8]              

 

 

NOTICE TO ALL EMPLOYEES

 

POSTED BY ORDER OF THE

 

FEDERAL LABOR RELATIONS AUTHORITY

 

The Federal Labor Relations Authority has found that the Department of Veterans Affairs, VA Medical Center, Richmond, Virginia, violated the Federal Service Labor-Management Relations Statute (the Statute), and has ordered us to post and abide by this Notice.

 

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

 

WE WILL rescind any requirements that Deneen Harris or other non-employees must follow certain procedures before being allowed to conduct representational activities at the Medical Center on behalf of American Federation of Government Employees, Local 2145, AFL-CIO (the Union).

 

WE WILL grant Harris access to the Medical Center to conduct Union representational activities.

 

WE WILL notify the Union and bargain, to the extent required by the Statute, if we decide to require Harris or other non-employees to follow certain procedures before being allowed to conduct Union representational activities at the Medical Center.

 

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of the rights assured them by the Statute.

 

 

 

____________________________________________                                    (Agency/Respondent)

 

 

 

Date: _________________        By:  _____________________________________________

                                                            (Signature)                                                             (Title)

 

This Notice must remain posted for sixty (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, Washington Region, Federal Labor Relations Authority, whose address is:  1400 K Street, NW, 2nd Flr., Washington, D.C. 20424, and whose telephone number is:  (202) 357-6029.