[ v02 p668 ]
02:0668(84)CA
The decision of the Authority follows:
2 FLRA No. 84
VETERANS ADMINISTRATION REGIONAL OFFICE,
DENVER, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1557, AFL-CIO
Complainant
Assistant Secretary
Case No. 61-4246(CA)
DECISION AND ORDER
ON OCTOBER 3, 1979, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND
(2) OF EXECUTIVE ORDER 11491, AS AMENDED, WHEN IT ISSUED A REPRIMAND TO
JAMES E. ROSS, THE PRESIDENT OF AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1557, AFL-CIO, BASED ON THE LANGUAGE HE USED IN A
GRIEVANCE FILED ON BEHALF OF A UNIT EMPLOYEE. THE ADMINISTRATIVE LAW
JUDGE FURTHER FOUND THAT SUCH CONDUCT BY THE RESPONDENT WAS NOT
VIOLATIVE OF SECTION 19(A)(4) OF THE ORDER, AND, THEREFORE, HE
RECOMMENDED DISMISSAL OF THAT PORTION OF THE COMPLAINT. NO EXCEPTIONS
WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO
BE RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, AND
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS /1/ AND
RECOMMENDATIONS. /2/
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO
SHALL:
1. CEASE AND DESIST FROM:
(A) REPRIMANDING OR OTHERWISE DISCRIMINATING AGAINST ANY EMPLOYEE IN
ANY MANNER WITH REGARD
TO HIRE, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT, IN
ORDER TO DISCOURAGE
MEMBERSHIP IN OR ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1557, OR ANY OTHER LABOR ORGANIZATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES
OF THE ORDER.
(A) REMOVE OR EXPUNGE FROM ITS FILES ANY REFERENCE TO THE REPRIMAND
GIVEN JAMES ROSS ON
SEPTEMBER 26, 1978, AND ACKNOWLEDGE THE REMOVAL TO ROSS IN WRITING.
(B) POST AT ALL VETERANS ADMINISTRATION, REGIONAL OFFICE, DENVER,
COLORADO, FACILITIES AND
INSTALLATIONS 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
REGIONAL DIRECTOR AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE REGIONAL DIRECTOR
SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR
COVERED BY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS HEREBY FURTHER ORDERED THAT THE SECTION 19(A)(4) ALLEGATION OF
THE COMPLAINT BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., FEBRUARY 21, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REPRIMAND OR OTHERWISE DISCRIMINATE AGAINST ANY EMPLOYEE
IN ANY MANNER WITH REGARD TO HIRE, TENURE, PROMOTION, OR OTHER
CONDITIONS OR EMPLOYMENT, IN ORDER TO DISCOURAGE MEMBERSHIP IN OR
ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1557, OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL REMOVE OR EXPUNGE FROM OUR FILES ANY REFERENCE TO THE WRITTEN
REPRIMAND GIVEN JAMES ROSS ON SEPTEMBER 26, 1978, AND ACKNOWLEDGE THE
REMOVAL TO ROSS IN WRITING.
(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:
CITY CENTER SQUARE, SUITE 680, 1100 MAIN STREET, KANSAS CITY, MISSOURI
64105; AND WHOSE TELEPHONE NUMBER IS: (816) 374-2199.
DOUGLAS DOAN, ESQ.
VETERANS ADMINISTRATION
DENVER FEDERAL CENTER
DENVER, COLORADO
FOR THE RESPONDENT
KENNETH BULL
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
5001 SOUTH WASHINGTON
ENGLEWOOD, COLORADO 80110
FOR THE COMPLAINANT
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON MAY 9, 1979 BY
THE REGIONAL DIRECTOR, KANSAS CITY REGION, FEDERAL LABOR RELATIONS
AUTHORITY, A HEARING WAS HELD BEFORE THE UNDERSIGNED IN DENVER,
COLORADO.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER). IT WAS BASED ON A COMPLAINT FILED ON
NOVEMBER 5, 1978 AND ON AN AMENDED COMPLAINT FILED ON JANUARY 10, 1979
BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557
(HEREIN CALLED COMPLAINANT AND LOCAL 1557 AFGE) AGAINST VETERANS
ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO (HEREIN CALLED
RESPONDENT AND VA). THE SAID AMENDED COMPLAINT ALLEGES THAT RESPONDENT
VIOLATED SECTIONS 19(A)(1)(2) AND (4) OF THE ORDER BY REPRIMANDING LOCAL
1557 AFGE PRESIDENT, JAMES E. ROSS, FOR THE LANGUAGE HE USED IN A
GRIEVANCE HE HAD FILED.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AND
CROSS-EXAMINE WITNESSES. THEREAFTER BOTH PARTIES FILED BRIEFS WHICH
HAVE BEEN DULY CONSIDERED BY THE UNDERSIGNED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING, I MAKE THE FOLLOWING RECOMMENDED FINDINGS AND
CONCLUSIONS.
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL LOCAL 1557 AFGE WAS THE EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVES FOR A UNIT COMPOSED OF
RESPONDENT'S PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES AND A
COLLECTIVE BARGAINING AGREEMENT WHICH CONTAINED A GRIEVANCE PROCEDURE
WAS IN EFFECT.
2. AT ALL TIMES MATERIAL MR. JAMES ROSS WAS PRESIDENT OF LOCAL 1557
AFGE.
3. BY LETTER DATED SEPTEMBER 19, 1978, ON LOCAL 1557 AFGE
LETTERHEAD, LOCAL 1557 AFGE PRESIDENT ROSS FILED A GRIEVANCE. THE
LETTER WAS ADDRESSED TO RESPONDENT'S DIRECTOR N. BALVERSON AND STATES
THAT THE GRIEVANCE IS FILED IN ACCORDANCE WITH ARTICLE 23, SECTION 4 OF
THE COLLECTIVE BARGAINING AGREEMENT, AND THAT THE GRIEVANCE IS DIRECTED
AGAINST THE ACTIONS OF MR. JOHN ISAAC, IN DENYING A UNION STEWARD, WHILE
PROCESSING AN EMPLOYEE GRIEVANCE, PERMISSION TO BE PRESENT AT A DESK
AUDIT AND IN DENYING THAT THERE WAS A "TARGET GRADE" ON A SPECIFIC
POSITION.
4. IN THE SEPTEMBER 19 GRIEVANCE LETTER LOCAL 1557 AFGE PRESIDENT
ROSS REFERRED TO RESPONDENT'S PERSONNEL OFFICER CAFFEY'S /3/, "INABILITY
TO EXPLAIN HIS CAPRICIOUS AND ARBITRARY ACTIONS IN DENYING THE EMPLOYEE
PROMOTION." PRESIDENT ROSS STATED FURTHER "MR. CAFFEY CONTINUES TO
EVIDENCE A FUNDAMENTAL INABILITY TO CORRECTLY APPLY THE PROVISIONS OF
THE FEDERAL PERSONNEL MANUAL . . . " AND THAT "MR. CAFFEY APPEARS TO
BELIEVE THAT HE IS FREE TO TARGET CERTAIN INDIVIDUALS FOR DEMOTION
WITHOUT CAUSE OR EXPLANATION. . . . " FINALLY THE SEPTEMBER 19 LETTER
STATES, "MR. ISAAC'S ACTIONS ONLY SERVE TO REINFORCE THE APPEARANCE OF
AN INCOMPETENT PERSONNEL OFFICER ASSIGNING A PERSONNEL MANAGEMENT
SPECIALIST TO COVER THE MALEVOLENT ACTIONS OF THE PERSONNEL OFFICER WITH
REGARD TO ATTACKS NOT ONLY ON THE POSITION OF SELECTED EMPLOYEES BUT
ALSO AGAINST THE EMPLOYEE'S RIGHT TO REPRESENTATION AND DUE PROCESS."
5. MR. ISING INVESTIGATED THE GRIEVANCE AND CONCLUDED THAT THE
SUBJECT MATTER OF THE GRIEVANCE HAD BEEN HANDLED PROPERLY BY THE
PERSONNEL OFFICER AND THAT MR. ROSS WAS NOT JUSTIFIED IN USING THE WORDS
"INCOMPETENT" AND "MALEVOLENT" TO DESCRIBE MR. CAFFEY.
6. MR. ISING ISSUED A LETTER OF REPRIMAND DATED SEPTEMBER 26, 1978
TO LOCAL 1557 AFGE PRESIDENT ROSS /4/ STATING, INTER ALIA, THAT MR.
ROSS' ATTACK ON THE PERSONNEL OFFICER MEETS THE TEST OF "DELIBERATE AND
RECKLESS UNTRUTH"; THAT THE ISSUE OF "INCOMPETENT" AND "MALEVOLENT"
FALSELY ACCUSES MR. CAFFEY OF IMPROPERLY "TARGETING THE EMPLOYEE FOR AN
UNJUSTIFIED CLASSIFICATION ACTION"; AND THAT SUCH AN ATTACK ON AN
AGENCY EMPLOYEE IS BEYOND THE PROTECTION OF THE FEDERAL LABOR MANAGEMENT
RELATIONS PROGRAMS AND VIOLATES VA REGULATION 820(B). /5/
CONCLUSIONS OF LAW
THE OBJECT OF THE ORDER WAS TO GRANT FEDERAL EMPLOYEES THE RIGHT, IF
THEY CHOOSE, TO BE EFFECTIVELY REPRESENTED IN COLLECTIVE BARGAINING BY A
LABOR ORGANIZATION. IN ORDER TO ACHIEVE THIS OBJECTIVE A LABOR
ORGANIZATION MUST BE FREE TO ACT RELATIVELY FREELY, WITHIN THE
LIMITATIONS SPECIFICALLY OR IMPLIEDLY SET FORTH IN THE ORDER, SO THAT IT
CAN, IN ITS BEST JUDGMENT, BEST REPRESENT ITS CONSTITUENTS. THIS
INVOLVES ACTING EFFECTIVELY IN ALL ASPECTS OF COLLECTIVE BARGAINING,
INCLUDING ENFORCING AND ATTEMPTING TO POLICE A COLLECTIVE BARGAINING
AGREEMENT THROUGH UTILIZATION OF A COLLECTIVELY BARGAINED GRIEVANCE
PROCEDURE.
UTILIZATION OF A GRIEVANCE PROCEDURE IS AN INTEGRAL AND FUNDAMENTAL
PART OF A LABOR ORGANIZATION'S RIGHT TO EFFECTIVELY REPRESENT EMPLOYEES.
A LABOR ORGANIZATION MUST BE FREE TO WRITE AND EXPRESS ITSELF IN A
GRIEVANCE IN TERMS WHICH IT FEELS, CORRECTLY OR INCORRECTLY, WILL MOST
SUCCESSFULLY ACCOMPLISH ITS ENDS. TO SUBJECT A UNION REPRESENTATIVE TO
DISCIPLINE BECAUSE HE RECORDS A GRIEVANCE IN A WAY THAT DISPLEASES
MANAGEMENT, OR BECAUSE MANAGEMENT BELIEVES THE WORDING IS INCORRECT OR
UNTRUTHFUL, WOULD BE TO UNREASONABLY LIMIT AND INTERFERE WITH A LABOR
ORGANIZATION'S EFFECTIVENESS. SUCH POTENTIAL DISCIPLINE WOULD
NECESSARILY INHIBIT AN EMPLOYEE, WHEN ACTING IN THE CAPACITY OF A UNION
OFFICIAL, FROM TAKING THOSE ACTIONS WHICH HE MIGHT FEEL WOULD MOST
EFFECTIVELY REPRESENT THE EMPLOYEES.
THE ASSISTANT SECRETARY RECOGNIZED THAT DURING COLLECTIVE BARGAINING
NEGOTIATIONS A LABOR ORGANIZATION REPRESENTATIVE COULD USE "PROFANITY"
AND "ABUSIVE LANGUAGE". U.S. SMALL BUSINESS ADMINISTRATION, A/SLMR NO.
631. THE ASSISTANT SECRETARY RELIED ON OLD DOMINION BRANCH NO. 496,
NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO V. AUSTIN, 461 US 264
(1964) IN WHICH THE SUPREME COURT CONCLUDED THAT THE EXECUTIVE ORDER DID
NOT INTEND TO RESTRICT, IN ANY WAY, THE "ROBUST DEBATE" WHICH HAS BEEN
PROTECTED UNDER THE NATIONAL LABOR RELATIONS ACT. THUS RESPONDENT'S
REPRIMAND OF MR. ROSS BECAUSE OF THE LANGUAGE HE USED IN PRESENTING
GRIEVANCE NECESSARILY INTERFERED WITH HIS RIGHT TO EFFECTIVELY ACT ON
BEHALF OF THE COMPLAINANT AND CONSTITUTED UNLAWFUL DISCRIMINATION.
ACCORDINGLY IT IS CONCLUDED THAT THE REPRIMAND CONSTITUTED A VIOLATION
OF SECTION 19(A) (1) AND (2) OF THE ORDER.
IN THE SUBJECT CASE THE UNION OFFICIAL, IN REFERRING TO THE PERSONNEL
OFFICER AS "INCOMPETENT" AND "MALEVOLENT" WAS MERELY UTILIZING
TRADITIONAL COLLECTIVE BARGAINING LANGUAGE IN CRITICIZING MANAGEMENT.
THEY ARE DESCRIPTIVE TERMS WHOSE ACCURACY CANNOT BE PRECISELY MEASURED
OR QUANTIFIED. RATHER THEY ARE EXAMPLES OF CLASSICAL LABOR RELATIONS
RHETORIC AND MANAGEMENT CANNOT BE SO THIN SKINNED AS TO TAKE OFFENSE AT
SUCH TERMS. /6/ THUS RESPONDENT CANNOT BE PERMITTED, IN APPLYING VA
REGULATION 820(B), TO IMPROPERLY LIMIT THE ACTIONS OF AN EMPLOYEE WHEN
THAT EMPLOYEE IS ACTING IN THE CAPACITY OF A UNION OFFICIAL.
IN SO CONCLUDING THIS DECISION DOES NOT MEAN THAT AN EMPLOYEE, WHO IS
A UNION OFFICIAL, IS FREE TO DO AND SAY WHAT HE WISHES WITH IMPUNITY.
FIRST WHEN ACTING AS AN EMPLOYEE ONLY, HE IS UNDER EXACTLY THE SAME
CONSTRAINTS AS OTHER EMPLOYEES. WHEN ACTING OFFICIALLY IN HIS CAPACITY
AS AN OFFICIAL OF A LABOR ORGANIZATION, A UNION OFFICIAL MUST HAVE VERY
BROAD LATITUDE IN SPEECH AND ACTION. HOWEVER, EVEN THEN THERE ARE SOME
ACTIONS OR STATEMENTS THAT WOULD BE SO EXTREME AS TO BE UNPROTECTED. IN
THE INSTANT CASE, HOWEVER, THE LANGUAGE OF THE GRIEVANCE WAS RATHER
STANDARD LABOR RELATIONS RHETORIC AND CLEARLY NOT SUCH AS TO BE
UNPROTECTED. FURTHER, ALTHOUGH MR. ROSS IS NO LONGER AN EMPLOYEE OF
RESPONDENT, IT IS CONCLUDED THE MATTER IS NOT MOOT BECAUSE RESPONDENT
CONTINUES TO CONTEND THAT ITS REPRIMAND OF MR. ROSS WAS PROPER AND
JUSTIFIED AND THAT IT WOULD CONTINUE TO FOLLOW SUCH A POLICY.
THE RECORD CONTAINS NO EVIDENCE THAT MR. ROSS' REPRIMAND HAD ANYTHING
TO DO WITH THE FILING OF ANY UNFAIR LABOR PRACTICE COMPLAINT OR WITH
TESTIFYING WITH RESPECT TO ANY SUCH COMPLAINT. ACCORDINGLY, IT IS
CONCLUDED THAT RESPONDENT DID NOT VIOLATE SECTION 19(A)(4) OF THE ORDER.
RECOMMENDATIONS
HAVING FOUND THAT RESPONDENT ENGAGED IN CONDUCT WHICH IS VIOLATIVE OF
SECTIONS 19(A)(1) AND (2) OF THE ORDER BUT NOT VIOLATIVE OF SECTION
19(A)(4) OF THE ORDER, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS
AUTHORITY ADOPT THE FOLLOWING ORDER WHICH IS DESIGNED TO EFFECTUATE THE
POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE VETERANS ADMINISTRATION, DENVER REGIONAL OFFICE, SHALL:
1. CEASE AND DESIST FROM:
(A) REPRIMANDING OR OTHERWISE DISCRIMINATING AGAINST ANY EMPLOYEE IN
ANY MANNER WITH REGARD
TO HIRE, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT, IN
ORDER TO DISCOURAGE
MEMBERSHIP IN OR ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1557, OR ANY OTHER LABOR ORGANIZATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER.
(A) POST AT ALL VETERANS ADMINISTRATION, REGIONAL OFFICE, DENVER,
COLORADO, FACILITIES AND
INSTALLATIONS 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
REGIONAL DIRECTOR AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE REGIONAL DIRECTOR
SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR
COVERED BY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS HEREBY ORDERED THAT THE SECTION 19(A)(4) ALLEGATION OF THE
COMPLAINT BE, AND IT HEREBY IS, DISMISSED.
SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
DATED: OCTOBER 3, 1979
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES 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
CODES FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REPRIMAND OR OTHERWISE DISCRIMINATE AGAINST ANY EMPLOYEE
IN ANY MANNER WITH REGARD TO HIRE, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT, IN ORDER TO DISCOURAGE MEMBERSHIP IN OR
ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1557, OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
(AGENCY OR ACTIVITY)
DATED: BY:(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: CITY CENTER SQUARE, 1100 MAIN STREET, SUITE 680, KANSAS
CITY, MISSOURI 64105.
/1/ DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON,
WASHINGTON, 2 FLRA NO. 7 (1979).
/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/3/ AT THE TIME OF THE LETTER MR. CAFFEY HAD BEEN THE RESPONDENT'S
PERSONNEL OFFICER FOR ABOUT 4 MONTHS.
/4/ THE LETTER WAS PLACED IN MR. ROSS' OFFICIAL PERSONNEL FILE BUT
WAS REMOVED BECAUSE, SOON AFTER THESE INCIDENTS OCCURRED, MR. ROSS
RESIGNED FROM RESPONDENT.
/5/ VA REGULATION 820(B) PROHIBITS THE MAKING OF "FALSE OR UNFOUNDED
STATEMENTS ABOUT EMPLOYEES WHICH ARE SLANDEROUS OR DEFAMATORY. . . . "
/6/ THEY ARE SOMEWHAT ANALOGOUS TO CHARACTERIZING AN ADMINISTRATIVE
LAW JUDGE AS "ARBITRARY" AND "CAPRICIOUS". AGAIN, RHETORICAL TERMS AT
WHICH NO JUDGE SHOULD TAKE OFFENSE.