[ v02 p855 ]
02:0855(106)CA
The decision of the Authority follows:
2 FLRA No. 106
VETERANS ADMINISTRATION REGIONAL OFFICE,
DENVER, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1557
Complainant
Assistant Secretary
Case No. 61-4255(CA)
DECISION AND ORDER
ON SEPTEMBER 25, 1979, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING FINDING THAT THE VETERANS ADMINISTRATION REGIONAL OFFICE,
DENVER, COLORADO, HAD ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN
THE COMPLAINT. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS WITH RESPECT
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 SEC. 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SEC. 2400.2 OF THE AUTHORITY'S 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 SEC. 7135(B) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SEC. 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SEC. 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 THE SUBJECT
CASE, INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.
/1A/
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 IN REGARD TO HIRE,
TENURE, PROMOTION OR OTHER CONDITIONS OF EMPLOYMENT WILLIAM BLEAU, MARK
HILGEFORT AND OTHER EMPLOYEES FOR ENGAGING IN CONDUCT WHICH IS PROTECTED
BY EXECUTIVE ORDER 11491, AS AMENDED, ON BEHALF OF AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 OR OTHER LABOR
ORGANIZATIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
WE WILL RESCIND AND REMOVE FROM THE PERSONNEL FILES OF AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 SHOP STEWARDS
WILLIAM BLEAU AND MARK HILGEFORT THE SEPTEMBER 27 REPRIMANDS ISSUED TO
THEM.
(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, AND WHOSE TELEPHONE NUMBER IS (816) 374-2199.
ORDER
PURSUANT TO SEC. 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL
LABOR RELATIONS AUTHORITY AND SEC. 7135 OF THE FEDERAL SERVICES
LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY DISMISSES THE
ALLEGATIONS IN THIS MATTER THAT THE VETERANS ADMINISTRATION, DENVER
REGIONAL OFFICE VIOLATED SEC. 19 (A)(4) OF EXECUTIVE ORDER 11491, AS
AMENDED, AND ORDERS THAT THE VETERANS ADMINISTRATION, DENVER REGIONAL
OFFICE SHALL:
1. CEASE AND DESIST FROM:
(A) REPRIMANDING OR OTHERWISE DISCRIMINATING IN REGARDS TO HIRE,
TENURE, PROMOTION OR OTHER CONDITIONS OF EMPLOYMENT WILLIAM BLEAU, MARK
HILGEFORT AND OTHER EMPLOYEES FOR ENGAGING IN CONDUCT WHICH IS PROTECTED
BY EXECUTIVE ORDER 11491, AS AMENDED ON BEHALF OF AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 OR OTHER LABOR ORGANIZATIONS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING 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 EXECUTIVE ORDER:
(A) RESCIND AND REMOVE FROM THE PERSONNEL FILES OF AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 SHOP STEWARDS
WILLIAM BLEAU AND MARK HILGEFORT THE SEPTEMBER 27 REPRIMANDS ISSUED TO
THEM.
(B) POST AT ITS FACILITIES IN DENVER, COLORADO, 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 DIRECTOR OF THE DENVER REGIONAL OFFICE AND SHALL
BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE REGIONAL OFFICE OF THE VA SHALL TAKE ALL
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR
COVERED BY ANY OTHER MATERIAL.
ISSUED, WASHINGTON, D.C., MARCH 14, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
DOUGLAS DOANE, ESQ.
DISTRICT COUNSEL'S OFFICE
VETERANS ADMINISTRATION REGIONAL OFFICE
DENVER FEDERAL CENTER
DENVER, COLORADO 80225
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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, KANSAS
CITY REGION, 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 21, 1978 AND AN AMENDED COMPLAINT FILED ON JANUARY 10, 1979 BY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1557, AFL-CIO (HEREIN
CALLED COMPLAINANT OR LOCAL 1557 AFGE) AGAINST THE VETERANS
ADMINISTRATION, DENVER REGIONAL OFFICE, (HEREIN CALLED RESPONDENT AND
ACTIVITY). THE SAID AMENDED COMPLAINT ALLEGES THAT RESPONDENT VIOLATED
SECTIONS 19(A)(1), (2) AND (4) OF THE ORDER BY REPRIMANDING TWO UNION
STEWARDS, MR. WILLIAM BLEAU AND MR. MARK HILGEFORT, FOR ATTEMPTING TO
REPRESENT EMPLOYEES WHO WERE MEMBERS OF THE BARGAINING UNIT REPRESENTED
BY LOCAL 1557 AFGE.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER BRIEFS WERE FILED 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 THE TESTIMONY AND EVIDENCE ADDUCED AT
THE HEARING, I MAKE THE FOLLOWING RECOMMENDED FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER.
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN LOCAL 1557 AFGE, A LABOR
ORGANIZATION, HAS BEEN THE COLLECTIVE BARGAINING REPRESENTATIVE FOR A
UNIT OF RESPONDENT'S PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES
INCLUDING VETERANS REPRESENTATIVES (VET REPS).
2. ON SEPTEMBER 22, 1978 ROBERT ZIEGENHEIN, VETERANS SERVICE OFFICER
FOR THE ACTIVITY, TELEPHONICALLY NOTIFIED LOCAL 1557 AFGE STEWARD MARK
HILGEFORT THAT HE, ZIEGENHEIN, WAS GOING TO HAVE A CONFERENCE TELEPHONE
WITH ALL VET REPS. /1/ MR. ZEIGENHEIN CALLED STEWARD HILGEFORT TO
ADVISE HILGEFORT, AS UNION STEWARD, THAT THE VET REPS WOULD BE ADVISED
OF A PROPOSED PRECISE SCHEDULE FOR REDUCTION OF THE NUMBER OF VET REPS
ON THE VARIOUS CAMPUSES, /2/ THAT THERE WOULD BE NO REDUCTION-IN-FORCE
(RIF) OF VA EMPLOYEES, AND THAT IF ANY ONE WISHED TO TRANSFER INTO
RESPONDENT'S REGIONAL OFFICE, HE SHOULD SO ADVISE THE REGIONAL OFFICE.
3. MR. ZIEGENHEIN CONVERSATION WITH STEWARD HILGEFORT WAS SHORT AND
INVOLVED MR. ZIEGENHEIN INFORMING STEWARD HILGEFORT OF THE IMPENDING
CONFERENCE CALL AND OF THE PROPOSED CHANGES.
4. A FEW MINUTES (2 TO 5 MINUTES) AFTER HANGING UP THE TELEPHONE,
STEWARD HILGEFORT, AS A VET REP, RECIEVED A TELEPHONE CALL AS PART OF
THE CONFERENCE CALL BETWEEN MR. ZIEGENHEIN AND ALL THE VET REPS.
5. MR. ZIEGENHEIN ADVISED THE VET REPS OF ALL THE INFORMATION SET
FORTH IN PARAGRAPH 2 ABOVE INCLUDING THE PROPOSED CHANGES.
6. MR. ZIEGENHEIN DID NOT ADVISE STEWARD HILGEFORT OR ANY THE VET
REPS, IN EITHER TELEPHONE CALL DESCRIBED ABOVE, THAT THE INFORMATION
CONCERNING THE PROPOSED SCHEDULE FOR REDUCING THE NUMBER OF VET REPS
WAS
CONFIDENTIAL OR SHOULD NOT BE COMMUNICATED TO OUTSIDE PARTIES.
7. MR. ZIEGENHEIN AND THE OTHER SUPERVISORS OF THE VET REPS USED
CONFERENCE TELEPHONE CALLS REGULARLY TO ADVISE VET REPS OF VARIOUS
RELEVANT INFORMATION AND THE VET REPS ROUTINELY PASSED MUCH OF THIS
INFORMATION ON TO NON-VA OFFICIALS ON THE VARIOUS COLLEGE AND UNIVERSITY
CAMPUSES.
8. AFTER THE CONFERENCE CALL STEWARD HILGEFORT CONTACTED MR.
WILLIAM BLEAU, AT THAT TIME A LOCAL 1557 AFGE STEWARD IN THE VETERANS
SERVICES DIVISION, AND ADVISED STEWARD BLEAU OF THE CONTENT OF THE TWO
TELEPHONE CONVERSATIONS.
9. AS A RESULT OF THE CONVERSATION BETWEEN STEWARDS HILGEFORT AND
BLEAU, STEWARD BLEAU PREPARED A LETTER DEMANDING TO NEGOTIATE THE
PROPOSED CHANGES IN WORKING CONDITIONS OF THE VET REPS. THE LETTER
DATED SEPTEMBER 22, 1978 WAS SIGNED BY BOTH STEWARDS HILGEFORT AND BLEAU
IN THEIR CAPACITY AS UNION STEWARDS, WAS SENT TO MR. ZIEGENHEIN, AND
COPIES WERE SENT TO THE VARIOUS COLLEGES AND UNIVERSITIES SERVICED BY
THE VET REPS, TO THE VET REPS, TO VARIOUS VETERANS' SERVICE
ORGANIZATIONS AND TO VARIOUS CONGRESSMEN. OF THE ABOVE, ONLY THE VET
REPS ARE EMPLOYEES OF RESPONDENT AND IN THE UNIT REPRESENTED BY
COMPLAINANT.
10. THE SEPTEMBER 22 LETTER DESCRIBED ABOVE WRITTEN ON BEHALF OF
LOCAL 1557 AFGE FIRST ASKED THE RESPONDENT TO NEGOTIATE CONCERNING THE
NOTIFICATION TO THE VET REPS THAT THE ACTIVITY'S INTENTION TO BRING THE
VET REPS INTO THE REGIONAL OFFICE. THE LETTER LISTED SOME 10 ITEMS FOR
THE ACTIVITY'S CONSIDERATION CONCERNING THE IMPACT ON EMPLOYEES. THE
LETTER THEN LISTED TWO QUESTIONS CONCERNING "IMPACT" AND THEN WENT ON TO
STATE, "CALL IT WHAT YOU MAY, BUT THE END RESULT OF ALL THESE CHANGES
WILL UNDOUBTEDLY BE THE SUBSEQUENT LOSS OF PERSONNEL -- AND THAT SPELLS
RIF." FINALLY THE LETTER POSED SOME ADDITIONAL QUESTIONS WHICH ALTHOUGH
"OUT OF THE SCOPE OF THE EXECUTIVE ORDER -- SHOULD BE CONSIDERED BY YOU
SINCE THEY WILL ARISE ANYWAY." FINALLY THE LETTER REQUESTED THAT
RESPONDENT RESPOND TO THE DEMAND TO NEGOTIATE NO LATER THAN OCTOBER 15,
1979.
11. WRITTEN REPRIMANDS DATED SEPTEMBER 27 WERE GIVEN BY MR.
ZIEGENHEIN TO BOTH STEWARDS BLEAU AND HILGEFORT BECAUSE THE SEPTEMBER 22
LETTER ALLEGEDLY CONTAINED MISSTATEMENTS OF FACTS IN CORRECT CONCLUSIONS
ABOUT A REDUCTION IN FORCE, QUESTIONS ABOUT THE VA'S RESPONSIBILITY TO
COLORADO INSTITUTIONS ABOUT WHICH NO FINAL AGENCY DECISION HAD BEEN
MADE, BECAUSE IT WAS UNAUTHORIZED USE OF AGENCY INFORMATION, WAS
DISSEMINATED TO THE PUBLIC AND BECAUSE THESE ACTIONS VIOLATED VA
REGULATIONS 812(A) (3) (4) (5) AND 815 (B).
12. THE RELEVANT PORTIONS OF VA REGULATIONS 812 AND 815 STATE AS
FOLLOWS:
812(SEC. 735-12). OUTSIDE EMPLOYMENT ACTIVITY OR
COMPENSATION
(A) AN EMPLOYEE SHALL NOT ENGAGE IN OUTSIDE EMPLOYMENT OR OTHER
OUTSIDE ACTIVITY NOT
COMPATIBLE WITH THE FULL AND PROPER DISCHARGE OF THE DUTIES AND
RESPONSIBILITIES OF HIS
GOVERNMENT EMPLOYMENT. INCOMPATIBLE ACTIVITIES INCLUDE BUT ARE NOT
LIMITED TO THOSE WHICH:
(1) . . .
(2) . . .
(3) BRING DISCREDIT UPON, ARE DISADVANTAGEOUS TO, EMBARRASS, OR CAUSE
OR MAY CAUSE
UNFAVORABLE AND REASONABLE (SIC) CRITICISM OF THE FEDERAL GOVERNMENT
OR THE VA;
(4) CONFLICT WITH THE INTERESTS OF THE VA OR THE FEDERAL GOVERNMENT
OR CAN POSSIBLY BE
CONSTRUED BY THE PUBLIC TO BE OFFICIAL ACTS OF THE VA;
(5) INVOLVE THE USE OF INFORMATION OBTAINED AS A RESULT OF EMPLOYMENT
IN THE VA, TO THE
DETRIMENT OF THE VA OR THOSE SERVED BY IT;
815(SEC. 735-15). DISCLOSURE OR MISUSE OF INFORMATION
(A) . . .
(B) AN EMPLOYEE SHALL NOT, EXCEPT AS SPECIFICALLY AUTHORIZED,
DISCLOSE ANY OFFICIAL
INFORMATION WHICH REPRESENTS A MATTER OF CONFIDENCE OR TRUST OR ANY
OTHER OFFICIAL INFORMATION
OF SUCH CHARACTER THAT ITS DISCLOSURE OR USE WOULD BE CONTRARY TO THE
BEST INTEREST OF THE
GOVERNMENT, THE VA, OR THE VETERANS BEING SERVED BY VA. (APR. 15,
1966).
13. AN ARTICLE IN THE "STARS AND STRIPES" OF SEPTEMBER 22, 1978
DESCRIBES A PENDING REDUCTION IN THE NUMBER VET REPS.
CONCLUSIONS OF LAW
THE ORDER AFFORDS EMPLOYEES THE RIGHT, WITHOUT INTERFERENCE, TO
EFFECTIVE REPRESENTATION BY THE LABOR ORGANIZATION OF THEIR CHOICE.
ACCORDINGLY, THE LABOR ORGANIZATION MUST BE FREE TO TAKE ALL STEPS AND
ACTIONS THAT IT DEEMS NECESSARY TO EFFECTIVELY REPRESENT THE EMPLOYEES,
EXCEPT THOSE STEPS AND ACTIONS SPECIFICALLY FORBIDDEN BY THE ORDER. TO
CONCLUDE OTHERWISE WOULD MAKE THE RIGHT TO BE REPRESENTED BY A UNION
COMPLETELY ILLUSORY AND MEANINGLESS. ONE OF THE CLASSICAL METHODS FOR
LABOR ORGANIZATIONS TO EFFECTIVELY REPRESENT EMPLOYEES IS TO SEEK AID,
SUPPORT AND INFORMATION FROM OUTSIDE, YET INTERESTED, PARTIES. THE
ORDER DOES NOT LIMIT SUCH A RESORT TO SUCH OUTSIDE ASSISTANCE EXCEPT
INSOFAR AS SECTIONS 19(B) (4) FORBIDS STRIKES AND WORK STOPPAGES. IN
FACT THE ASSISTANT SECRETARY OF LABOR SPECIFICALLY RECOGNIZED THE RIGHT
OF A LABOR ORGANIZATION AND EMPLOYEES TO ENGAGE IN INFORMATIONAL
PICKETING DIRECTED AT THE GENERAL PUBLIC, INCLUDING ORGANIZED LABOR, SO
LONG AS SUCH PICKETING DOES NOT INTERFERE WITH THE OPERATION OF THE
AFFECTED GOVERNMENT AGENCY. THE ASSISTANT SECRETARY HELD SUCH
INFORMATIONAL PICKETING IS NOT FORBIDDEN BY SECTIONS (19(B) (4) OF THE
ORDER AND THEREFORE WAS PERMITTED. TIDEWATER VIRGINIA FEDERAL
EMPLOYEES, MTC, A/SLMR NO. 867; REVIEW DENIED BY THE FLRA, 77A-93,
REPORT NO. 139, CF. INTERNAL REVENUE SERVICE, A/SLMR NO. 783. THE
APPEAL BY LOCAL 1557 AFGE TO THE COLLEGES, UNIVERSITIES AND VETERANS
GROUPS IS ANALOGOUS TO INFORMATIONAL PICKETING AND THUS IS NOT
PROSCRIBED BY THE ORDER.
RESPONDENT, HOWEVER, CONTENDS THAT IT IS NOT LIMITING THE RIGHT OF
LOCAL 1557 AFGE TO APPEAL AND COMMUNICATE WITH OUTSIDE PARTIES, BUT
RATHER IT IS DISCIPLINING TWO EMPLOYEES FOR ENGAGING IN SUCH CONDUCT,
WHICH IS FORBIDDEN BY RESPONDENT. THIS CONTENTION MUST BE REJECTED.
SECTION 1 OF THE ORDER GRANTS EACH EMPLOYEE THE RIGHT TO JOIN AND ASSIST
A LABOR ORGANIZATION. IF THE EMPLOYEES ARE TO HAVE THE RIGHT TO JOIN
AND ASSIST A LABOR ORGANIZATION AND TO BE EFFECTIVELY REPRESENTED BY
SUCH A LABOR ORGANIZATION, THE EMPLOYEES MUST BE FREE FROM INTERFERENCE
TO MANAGE THE LABOR ORGANIZATION AND TO ENGAGE IN ALL CONDUCT WHICH IS
PERMISSIBLE FOR THE LABOR ORGANIZATION. IT WOULD SEEM STRANGE, IN
EFFECT, TO REQUIRE THAT FOR LABOR ORGANIZATIONS TO ENGAGE IN PROTECTED
ACTIVITIES IT MUST USE NON-EMPLOYEES. SUCH A RESULT WOULD TOTALLY
FRUSTRATE THE EMPLOYEES' RIGHTS TO EFFECTIVE REPRESENTATION WHICH THEY
THEMSELVES COULD CONTROL. THUS IN THE INSTANT CASE THE TWO EMPLOYEES IN
QUESTION WERE NOT ACTING AS EMPLOYEES, BUT RATHER WERE ACTING IN THEIR
CAPACITY AS UNION STEWARDS AND THUS SHOULD NOT HAVE BEEN REPRIMANDED.
HAVING CONCLUDED THAT EMPLOYEE-UNION OFFICIALS, WHEN ACTING IN THEIR
UNION REPRESENTATIVE CAPACITY, MUST BE FREE TO ENGAGE IN ANY ACTIVITY
THE UNION IS PRIVILEGED TO ENGAGE IN, IT MUST BE FURTHER CONCLUDED THAT
THIS DOES NOT GIVE EMPLOYEES LICENSE, BECAUSE THEY MAY ALSO BE UNION
OFFICIALS, TO ENGAGE IN ANY CONDUCT THEY WISH, AND BE INSULATED FROM
DISCIPLINE. RATHER IT IS CONCLUDED, IN THE CIRCUMSTANCES HERE PRESENT,
THAT THE EMPLOYEES ARE PROTECTED WHEN ENGAGING IN REASONABLE CONDUCT AS
UNION REPRESENTATIVES BECAUSE THEY WERE ENGAGING IN UNION CONDUCT WHICH
WAS PROTECTED BY THE ORDER. CF. TIDEWATER VIRGINIA FEDERAL EMPLOYEES,
MTC, SUPRA.
IT IS CONTENDED BY RESPONDENT THAT THE INFORMATION DISSEMINATED WAS
SOMEHOW PRIVILEGED AND DISTORTED OR MISSTATED. AGAIN, THESE CONTENTIONS
MUST BE REJECTED AS GROUNDS FOR PERMITTING THE REPRIMANDING OF THESE TWO
EMPLOYEES. UNION STEWARD BLEAU FIRST RECEIVED THE INFORMATION IN HIS
CAPACITY AS UNION STEWARD AND WAS NEVER ADVISED IN ANYWAY THAT THE
INFORMATION WAS PRIVILEGED AND SHOULD NOT BE COMMUNICATED TO PERSONS
OUTSIDE THE AGENCY. FURTHER THE RECORD ESTABLISHED THAT MUCH
INFORMATION NORMALLY COMMUNICATED BY CONFERENCE CALL IS ROUTINELY
RELAYED BY THE VET REPS TO THE INTERESTED COLLEGES, UNIVERSITIES AND
VETERANS ORGANIZATIONS. THUS WITHOUT A CLEAR INDICATION FROM RESPONDENT
THAT INFORMATION WAS NOT TO BE COMMUNICATED TO THE OUTSIDE /3/ AND
BECAUSE THE INFORMATION, NEITHER HISTORICALLY NOR ON ITS FACE, SO
SENSITIVE THAT IT WAS CLEAR IT SHOULD NOT BE COMMUNICATED TO THE OUTSIDE
/4/, THE TWO UNION STEWARDS WERE FREE TO COMMUNICATE IT TO THE OUTSIDE
ORGANIZATIONS.
WITH RESPECT TO THE CONTENTION THAT THE SEPTEMBER 22 LETTER DISTORTED
AND MISSTATED THE SITUATION, RESPONDENT RELIES ALMOST EXCLUSIVELY ON THE
USE OF THE PHRASE, "RIF" WHEN IN FACT NO ACTUAL "RIF" WAS CONTEMPLATED
AND THAT THIS WAS MADE QUITE CLEAR. THE LETTER ITSELF STATED THAT EVEN
THOUGH NO ONE WOULD BE FIRED THERE WOULD BE AN ULTIMATE REDUCTION IN THE
NUMBER OF EMPLOYEES AND THAT WAS IN EFFECT A "RIF". ALTHOUGH THIS MIGHT
BE AN INARTFUL AND SOMEWHAT INACCURATE USE OF "RIF", IT CAN HARDLY BE
SAID TO BE SUCH A DISTORTION OR MISSTATEMENT OF FACT TO JUSTIFY LOSING
THE PROTECTION OF THE ORDER. AS PART OF COLLECTIVE BARGAINING THE
PARTIES MUST BE FREE TO COMMUNICATE AND TALK BETWEEN THEMSELVES, AND
WITH THE PUBLIC, WITHOUT THE FEAR THAT IF THEY USE A WORD OR PHRASE
IMPROPERLY THEY ARE SUBJECT TO DISCIPLINE. TO REACH A CONTRARY
CONCLUSION WOULD BE TO REDUCE NEGOTIATION AND COMMUNICATION TO SOME
STYLIZED DANCE THAT WOULD HAVE AN EFFECT CONTRARY TO THE POLICY VISIONED
IN THE ORDER. CF. U.S. SMALL BUSINESS ADMINISTRATION, CENTRAL OFFICE,
A/SLMR NO. 631. SIMILARLY THE MERE FACT THAT THE SEPTEMBER 22 LETTER
MIGHT HAVE BEEN CRITICAL AND EVEN UNCOMPLIMENTARY TOWARDS RESPONDENT
DOES NOT JUSTIFY REMOVING THE PROTECTION OF THE ORDER. IN SUCH
SITUATIONS, IF THERE IS TO BE MEANINGFUL NEGOTIATIONS AND BARGAINING,
THE RESPONDENT CANNOT BE SO SENSITIVE TO CRITICISM BY THE UNION. MAKING
UNCOMPLIMENTARY AND CRITICAL COMMENTS ABOUT MANAGEMENT, AFTER ALL, IS
ONE OF A LABOR ORGANIZATION'S TECHNIQUES FOR GAINING SUPPORT. /5/
FINALLY AN ARGUMENT MIGHT BE MADE THAT SECTION 1(A) OF THE ORDER ONLY
PROTECTS A UNION OFFICIALS COMMUNICATIONS WITH "OFFICIALS OF THE
EXECUTIVE BRANCH, THE CONGRESS OR OTHER APPROPRIATE AUTHORITY * * * "
AND NOT WITH THE PUBLIC. SUCH AN INTERPRETATION MUST BE REJECTED AS AN
UNREASONABLE AND OVERLY RESTRICTIVE INTERPRETATION. RATHER IT IS CLEAR
THAT SECTION 1(A) IS MEANT TO PROTECT UNION COMMUNICATIONS TO THE
EXECUTIVE BRANCH THE CONGRESS AND APPROPRIATE AUTHORITY EVEN IN
SITUATIONS WHERE THE INFORMATION IS PRIVILEGED OR OF SUCH A NATURE THAT
COMMUNICATION TO THE GENERAL PUBLIC WOULD NOT BE PERMITTED.
IT IS THUS CONCLUDED THAT RESPONDENT VIOLATED SECTION 19(A) (2) AND
(1) OF THE ORDER BECAUSE ITS REPRIMAND OF STEWARDS BLEAU AND HILGEFORT
FOR ENGAGING IN PROTECTED ACTIVITY CONSTITUTED UNLAWFUL DISCRIMINATION
AND INTERFERENCE. /6/
THE RECORD, HOWEVER, FAILS TO ESTABLISH THAT THE REPRIMANDS HAD
ANYTHING TO DO WITH FILING AN UNFAIR LABOR PRACTICE COMPLAINT OR THE
GIVING TESTIMONY UNDER THE ORDER AND, THUS, IT IS CONCLUDED RESPONDENT
DID NOT VIOLATE SECTION 19(A) (4) OF THE ORDER.
HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTION 19(A) (4) OF THE
ORDER BUT HAS ENGAGED IN OTHER CONDUCT WHICH IS VIOLATIVE OF THE
SECTIONS 19(A) (1) AND (4) ORDER, I RECOMMEND THAT THE FEDERAL LABOR
RELATIONS AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO SECTION 2400.2
OF THE AUTHORITY'S RULES AND REGULATIONS (44 FR NO. 147, JULY 30, 1979)
AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215):
ORDER
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY
DISMISSES THE ALLEGATIONS IN THIS MATTER THAT THE VETERANS
ADMINISTRATION, DENVER REGIONAL OFFICE VIOLATED SECTION 19(A) (4) OF
EXECUTIVE ORDER 11491, AS AMENDED AND ORDER THAT THE VETERANS
ADMINISTRATION, DENVER REGIONAL OFFICE SHALL:
1. CEASE AND DESIST FROM:
(A) REPRIMANDING OR OTHERWISE DISCRIMINATING IN REGARDS TO HIRE,
TENURE, PROMOTION OR OTHER CONDITIONS OF EMPLOYMENT WILLIAM BLEAU, MARK
HILGEFORT AND OTHER EMPLOYEES FOR ENGAGING IN CONDUCT WHICH IS PROTECTED
BY EXECUTIVE ORDER 11491, AS AMENDED ON BEHALF OF AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 OR OTHER LABOR ORGANIZATIONS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING 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 EXECUTIVE ORDER:
(A) RESCIND AND REMOVE FROM THE PERSONNEL FILES OF AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 SHOP STEWARDS
WILLIAM BLEAU AND MARK HILGEFORT THE SEPTEMBER 27 REPRIMANDS ISSUED TO
THEM.
(B) POST AT ITS FACILITIES IN DENVER, COLORADO 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 DIRECTOR OF THE DENVER REGIONAL OFFICE AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
THE REGIONAL OFFICE OF THE VA SHALL TAKE ALL REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
DATED: SEPTEMBER 25, 1979
WASHINGTON, D.C.
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 IN REGARD TO HIRE,
TENURE, PROMOTION OR OTHER CONDITIONS OF EMPLOYMENT WILLIAM BLEAU, MARK
HILGEFORT AND OTHER EMPLOYEES FOR ENGAGING IN CONDUCT WHICH IS PROTECTED
BY EXECUTIVE ORDER 11491, AS AMENDED, ON BEHALF OF AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 OR OTHER LABOR
ORGANIZATIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491,AS AMENDED.
WE WILL RESCIND AND REMOVE FROM THE PERSONNEL FILES OF AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 SHOP STEWARDS
WILLIAM BLEAU AND MARK HILGEFORT THE SEPTEMBER 27 REPRIMANDS ISSUED TO
THEM.
(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, AND WHOSE TELEPHONE NUMBER IS: (816) 374-2199.
/1A/ IN CONFORMITY WITH SEC. 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.
/1/ VET REPS ARE VA EMPLOYEES WORKING ON VARIOUS COLORADO COLLEGE AND
UNIVERSITY CAMPUSES.
/2/ THE NUMBER OF VET REPS WERE TO BE ULTIMATELY REDUCED FROM 11 TO
3.
/3/ I NEED NOT REACH THE QUESTION WHETHER THE MERE FACT AN AGENCY
STATES CERTAIN INFORMATION IS PRIVILEGED, AN EMPLOYEE UNION OFFICIAL,
ALWAYS MAY BE REPRIMANDED FOR COMMUNICATING IT TO THE OUTSIDE.
/4/ THUS FEDERAL AVIATION ADMINISTRATION, A/SLMR NO. 796 IS NOT
APPLICABLE. IN THAT CASE THE INFORMATION COMMUNICATED TO THE PUBLIC WAS
OBTAINED FROM THE "READING BINDER" WHICH WAS RECOGNIZED AS BEING
AVAILABLE ONLY TO AUTHORIZED PERSONNEL AND NOT TO THE GENERAL PUBLIC AND
FURTHER WAS NOT COMMUNICATED TO THE UNION OFFICIAL IN THIS CAPACITY AS
UNION OFFICIAL. SIMILARLY IN VETERANS ADMINISTRATION, A/SLMR NO. 1131,
1 FLRA NO. 17 AND 1 FLRA NO. 72, THE PRIVILEGED INFORMATION INVOLVED WAS
SPECIFIC PATIENT CARE INFORMATION WHICH ARE MATTERS THAT HAVE
HISTORICALLY BEEN MOST CONFIDENTIAL IN NATURE.
/5/ IT IS CONCLUDED THAT AMERICAN ARBITRATOR ASSOCIATION, INC., 233
NLRB NO. 12, WHICH DEALS WITH THE PRIVATE SECTOR, IS INAPPOSITE.
/6/ THUS THE RESPONDENT VIOLATED THE ORDER WHEN IT APPLIED ITS OWN
REGULATIONS, EVEN THOUGH LAWFUL WHEN APPLIED TO EMPLOYEES ACTING OR
EMPLOYEES, IN SUCH A WAY AS TO IMPROPERLY INTERFERE WITH PROTECTED
ACTIVITY AND DISCRIMINATE AGAINST EMPLOYEES.