[ v02 p879 ]
02:0879(110)NG
The decision of the Authority follows:
2 FLRA No. 110
VETERANS ADMINISTRATION HOSPITAL
LEXINGTON, KENTUCKY
Respondent
and
LOCAL R5-185, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
Complainant
Assistant Secretary
Case No. 41-6178(CA)
DECISION AND ORDER
ON AUGUST 23, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. THE
RESPONDENT FILED EXCEPTIONS.
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 RULES AND REGULATIONS (45 F.R.
3482, JANUARY 17, 1980). 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 2400.1 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,
INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
AUTHORITY FINDS IT UNNECESSARY TO RELY UPON THE FACT THAT THE
EMPLOYEE WHO WAS SELECTED WAS FOURTH IN THE MERIT PROMOTION RATINGS.
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 HOSPITAL, LEXINGTON, KENTUCKY, SHALL:
1. CEASE AND DESIST FROM:
(A) REFERRING, IN THE COURSE OF ANY INTERVIEWS FOR PROMOTION, TO ANY
APPLICANT'S OR OTHER EMPLOYEE'S MEMBERSHIP IN THE NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES OR ANY LOCAL THEROF, INCLUDING LOCAL R5-185 OR
LOCAL R5-160.
(B) ENCOURAGING OR DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED, OR IN ANY LIKE OR RELATED MANNER ENCOURAGING OR
DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN
REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT,
IN VIOLATION OF EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) WITHDRAW, CANCEL AND RESCIND THE SELECTION FOR, AND PROMOTION TO
THE POSITION OF, SUPERVISORY POLICE OFFICER, COMMONLY KNOWN AS CHIEF OF
POLICE, OF MR. BURL CORNELIUS.
(B) RE-POST AND RE-ADVERTISE THE POSITION OF SUPERVISORY POLICE
OFFICER, GS-0830, UNDER APPROPRIATE ESTABLISHED PROCEDURES, INSURING,
HOWEVER, THAT: I) ELIGIBILITY AND/OR QUALIFICATIONS ARE NOT MADE MORE
RESTRICTIVE THAN THOSE SET FORTH IN THE MARCH, 1978, PLACEMENT NOTICE
NO. 17; AND II) MR. BURL CORNELIUS BE GIVEN NO CREDIT FOR SUPERVISORY
EXPERIENCE GAINED IN THE POSITION OF SUPERVISORY POLICE OFFICER FROM
MARCH, 1978.
(C) POST AT ITS FACILITIES AT ITS LEXINGTON, KENTUCKY, MEDICAL
CENTER, AND SPECIFICALLY AT BOTH THE LEESTOWN DRIVE FACILITY AND THE
COOPER DRIVE FACILITY, 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 HOSPITAL DIRECTOR 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 AT BOTH THE LEESTOWN DRIVE AND COOPER
DRIVE FACILITIES. THE HOSPITAL DIRECTOR SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(D) 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.
ISSUED, WASHINGTON, D.C., MARCH 14, 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 REFER, IN THE COURSE OF ANY INTERVIEW FOR PROMOTION, TO
ANY APPLICANT'S OR OTHER EMPLOYEE'S MEMBERSHIP IN THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, OR TO ANY ACTIVITY ON BEHALF OF THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES OR ANY LOCAL THEREOF,
INCLUDING LOCAL R5-185 OR LOCAL R5-160.
WE WILL NOT ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
OR OTHER CONDITIONS OF EMPLOYMENT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED, OR IN ANY LIKE OR RELATED MANNER
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT IN VIOLATION OF EXECUTIVE ORDER 11491, AS
AMENDED.
WE WILL WITHDRAW, CANCEL AND RESCIND THE SELECTION FOR, AND PROMOTION
TO, THE POSITION OF SUPERVISORY POLICE OFFICER, COMMONLY KNOWN AS CHIEF
OF POLICE, OF MR. BURL CORNELIUS.
WE WILL RE-POST AND RE-ADVERTISE THE POSITION OF SUPERVISORY POLICE
OFFICER, GS-0830, UNDER APPROPRIATE ESTABLISHED PROCEDURES AND WE WILL
INSURE THAT : I) ELIGIBILITY AND/OR QUALIFICATIONS ARE NOT MADE MORE
RESTRICTIVE THAN THOSE SET FORTH IN THE MARCH, 1978, PLACEMENT NOTICE
NO. 17; AND II) MR. BURL CORNELIUS RECEIVES NO CREDIT FOR SUPERVISORY
EXPERIENCE GAINED IN THE POSITION OF SUPERVISORY POLICE OFFICER FROM
MARCH, 1978.
(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 ANY EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS: 1776 PEACHTREE STREET, N.W., SUITE 501, NORTH WING,
ATLANTA, GEORGIA 30309; AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.
JAMES W. PRESSLER, JR. ESQUIRE
ASSISTANT GENERAL COUNSEL
EDWARD J. GILDEA, ESQUIRE
ASSISTANT GENERAL COUNSEL
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
2139 WISCONSIN AVENUE, NW.
WASHINGTON, D.C. 20007
FOR THE COMPLAINANT
JAMES KLEIN, ESQUIRE
GENERAL COUNSEL'S OFFICE
VETERANS ADMINISTRATION
810 VERMONT AVENUE, NW.
WASHINGTON, D.C. 20420
ON BRIEF: CHARLES M. JOHNSON, ESQUIRE
ASSISTANT GENERAL COUNSEL
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER ALSO REFERRED TO AS THE "ORDER"). ALTHOUGH THE NOTICE OF
HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, ALL
PROCEEDINGS AFTER JANUARY 1, 1979, HAVE BEEN CONDUCTED BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY, AND THIS DECISION IS ISSUED IN THE
NAME OF THE AUTHORITY, PURSUANT TO TRANSITION RULES AND REGULATIONS,
FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979 (5 C.F.R. SECTION
2400.2).
COMPLAINANT FILED A CHARGE ON JUNE 29, 1978, AND A COMPLAINT ON
AUGUST 28, 1978 (ASS'T SEC. EXH. 1) /1/ ALLEGING VIOLATIONS OF SECTIONS
19(A)(1) AND (2) OF THE ORDER AND ON NOVEMBER 29, 1978, COMPLAINANT
FILED AN AMENDED COMPLAINT (ASS'T SEC. EXH. 2) INDENTICAL IN ALL
RESPECTS TO THE ORIGINAL COMPLAINT EXCEPT THAT THE NAME OF PARTY FILING
THE COMPLAINT WAS CHANGED FROM LOCAL RO5-160 NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES TO LOCAL R5-185 NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES. NOTICE OF HEARING ISSUED ON DECEMBER 4, 1978 (ASS'T SEC.
EXH. 3) FOR A HEARING ON FEBRUARY 15, 1979; ON FEBRUARY 9, 1979, A
NOTICE RESCHEDULING THE HEARING FOR MARCH 20, 1979 WAS ISSUED (ASS'T
SEC. EXH. 4) AND ON MARCH 16, 1979, A FURTHER ORDER RESCHEDULING THE
HEARING FOR APRIL 24, 1979, WAS ISSUED (ASS'T SEC. EXH. 5), IN
LEXINGTON, KENTUCKY, BEFORE THE UNDERSIGNED.
ALL PARTIES WERE REPRESENTED AT THE HEARING BY COUNSEL, WERE AFFORDED
FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES, AND TO PRESENT ORAL ARGUMENT
AT THE CONCLUSION OF THE TESTIMONY. AT THE CLOSE OF THE HEARING, JUNE
22, 1979, WAS FIXED AS THE DATE FOR THE FILING OF BRIEFS, WHICH TIME
WAS, AT THE REQUEST OF COMPLAINANT, FOR GOOD CAUSE SHOWN, AND WITH THE
CONSENT OF RESPONDENT, SUBSEQUENTLY EXTENDED TO JUNE 29, 1979, AND EACH
PARTY HAS TIMELY FILED A BRIEF WHICH HAVE BEEN CAREFULLY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSION
AND RECOMMENDED DECISION.
DISCUSSION AND FINDINGS
COMPLAINANT WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF ALL
POLICE OFFICERS EMPLOYED BY THE VETERANS ADMINISTRATION HOSPITAL,
LEXINGTON, KENTUCKY, ON JULY 8, 1976; THE PARTIES' NEGOTIATED AGREEMENT
WAS SIGNED JANUARY 3, 1977, AND WAS APPROVED BY THE HOSPITAL DIRECTOR
AND BECAME EFFECTIVE FEBRUARY 11, 1977 (SEE, VETERANS ADMINISTRATION,
VETERANS ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY A/SLMR NO. 105
(1978)).
THIS CASE CONCERNS THE SELECTION OF A NEW CHIEF OF POLICE. THE
OPENING AROSE UPON THE DEPARTURE OF CHIEF JACKIE DIXON FOR A POSITION
WITH A VETERANS ADMINISTRATION FACILITY IN LAS VEGAS, NEVADA.
RESPONDENT'S POLICE OFFICERS IN LEXINGTON, KENTUCKY, WORK AT TWO
FACILITIES: ONE IS LOCATED AT LEESTOWN DRIVE AND THE OTHER IS LOCATED
AT COOPER DRIVE, ADJACENT TO THE UNIVERSITY. THE POLICE OFFICERS AT
EACH FACILITY CONSTITUTE A SECTION, OR DIVISION; EACH SECTION IS
SUBSTANTIALLY EQUAL IN SIZE; THE COOPER DRIVE SECTION CONSISTED OF NINE
POLICE OFFICERS PLUS AN ASSISTANT CHIEF, MR. JAMES HOSKINS, AND THE
LEESTOWN DRIVE SECTION CONSISTED OF TEN POLICE OFFICERS PLUS THE CHIEF
OF POLICE, MR. JACKIE DIXON; AND POLICE OFFICERS, EXCEPT FOR A
REORIENTATION SHIFT AT THE OTHER FACILITY, ARE REGULARLY ASSIGNED TO ONE
FACILITY. ALTHOUGH CHIEF DIXON WAS IN CHARGE OF BOTH SECTIONS, HE
RARELY VISITED COOPER DRIVE AND A DECIDED SPLIT BETWEEN THE SECTIONS
DEVELOPED DURING HIS TENURE AS CHIEF.
THE SECURITY SERVICE IS PART OF THE ENGINEERING SERVICE AT THE
LEXINGTON MEDICAL CENTER. THE POSITION TO BE FILLED UPON CHIEF DIXON'S
DEPARTURE WAS THAT OF SUPERVISORY POLICE OFFICER, GS-0830-6/7/8,
ENGINEERING SERVICE. THIS WAS THE TOP SUPERVISORY POSITION IN THE
SECURITY SERVICE AND THE POSITION WAS, AND IS, REFERRED TO AS CHIEF OF
POLICE. THE SELECTING OFFICIAL WAS THE CHIEF, ENGINEERING SERVICE, MR.
DONALD E. FULTON. THE VACANCY WAS ANNOUNCED AT THE LEVEL OF GS-6, 7 OR
8. SEVEN INDIVIDUALS WERE REFERRED TO MR. FULTON FOR INTERVIEWS. ON
ONE LIST WERE JAMES HOSKINS, ASSISTANT CHIEF, AND MR. SHIRLEY MORRIS, A
FIRE INSPECTOR, WHO WERE THE TOP CANDIDATES FOR THE POSITION OF CHIEF IF
IT WERE TO BE FILLED AT THE GS-7 OR 8 LEVEL. EACH OF THESE INDIVIDUALS
WAS SERVING AT THE GS-6 LEVEL. SUBSEQUENTLY, RESPONDENT AMENDED THE
VACANCY ANNOUNCEMENT TO LIMIT THE POSITION TO GS-6 AND, ACCORDINGLY, THE
NON-SELECTION OF MESSRS. HOSKINS AND MORRIS IS NOT BEFORE ME AND WILL
NOT BE FURTHER CONSIDERED. /2/
THE OTHER LIST CONSISTED OF FIVE HIGHLY QUALIFIED CANDIDATES FROM THE
BARGAINING UNIT. EACH WAS, OF COURSE, A POLICE OFFICER AND EACH WAS A
GS-5. /3/ THE TOTAL RATING FOR THESE FIVE "HIGHLY QUALIFIED" APPLICANTS
WERE AS FOLLOWS: (TABLE OMITTED)
EXCEPT FOR MR. CORNELIUS, WHO WAS SELECTED FOR THE POSITION OF CHIEF,
EACH WAS A MEMBER OF THE UNION. INDEED, MR. WALLACE WAS PAST PRESIDENT
AND MR. RICHARDS WAS PAST CHIEF STEWARD, OF THE UNION. ALTHOUGH THE
RECORD SHOWS SOME DISAGREEMENT AS TO THE MANNER AND EXTENT OF MR.
FULTON'S INQUIRY ABOUT UNION ACTIVITY, THERE IS NO DISPUTE THAT MR.
FULTON REFERRED TO UNION ACTIVITY IN HIS INTERVIEW WITH EACH HIGHLY
QUALIFIED APPLICANT. RESPONDENT CONCEDES THAT MR. FULTON "* * * ASKED
EACH INDIVIDUAL WHETHER THEY COULD DISENGAGE THEMSELVES FROM THEIR PAST
UNION ACTIVITIES SO THAT THEY COULD OCCUPY THE MANAGEMENT POSITION IF
THEY WERE SELECTED." (RES. BRIEF, P. 4).
MR. FULTON'S INTERJECTION OF PAST UNION ACTIVITY IN HIS QUESTIONING
OF EACH APPLICANT DID, INDEED, CAUSE EACH UNION MEMBER TO BELIEVE THAT
HIS UNION MEMBERSHIP OR ACTIVITY DID PREJUDICE HIS CHANCE FOR SELECTION
FOR THE POSITION OF CHIEF. ANY REFERENCE TO PRIOR UNION MEMBERSHIP OR
ACTIVITY OF AN APPLICANT IN AN INTERVIEW FOR A PROMOTION IS, AT THE VERY
LEAST, HIGHLY SUSPICIOUS, AND, WHERE SUCH REFERENCE IS COMPLETELY
EXTRANEOUS TO THE SUBJECT OF THE INTERVIEW, WITHOUT MORE, CONSTITUTES A
VIOLATION OF SECTION 19(A)(1) OF THE ORDER. PENNSYLVANIA ARMY NATIONAL
GUARD AND ASSOCIATION OF CIVILIAN TECHNICIANS, 1 FLRA NO. 60 (1979).
NOT ONLY DO I FIND AND CONCLUDE THAT MR. FULTON'S REFERENCE TO THE PRIOR
UNION MEMBERSHIP AND UNION ACTIVITY OF EACH APPLICANT WAS COMPLETELY
EXTRANEOUS TO THE SUBJECT OF THE INTERVIEW, BUT I FIND RESPONDENT'S
PURPORTED JUSTIFICATION, NAMELY, THAT "PROMOTION TO THE SUPERVISORY
POSITION IN QUESTION WOULD REMOVE THE INDIVIDUAL FROM THE BARGAINING
UNIT, THUS, PRECLUDING FUTURE PARTICIPATION IN UNION ACTIVITIES." (RES.
BRIEF, P. 4), WHOLLY UNCONVINCING. NOT ONLY DO I CONCLUDE THAT MR.
FULTON'S REFERENCE TO PRIOR UNION MEMBERSHIP AND ACTIVITY, WITHOUT MORE,
VIOLATED SECTION 19(A)(1) OF THE ORDER; BUT, AS SET FORTH HEREINAFTER
THE RECORD, IN ADDITION, SHOWS A PERVASIVE BACKGROUND OF UNION ANIMUS
WHICH, IF THERE WERE ANY DOUBT AS TO THE INTENT AND PURPOSE OF MR.
FULTON'S REFERENCE TO PRIOR UNION MEMBERSHIP AND ACTIVITY (AND I
ENTERTAIN NO SUCH DOUBT), IS FIRMLY LAID TO REST BY SUCH OTHER EVIDENCE.
MR. KELLEY RICHARDS TESTIFIED THAT HE WAS A PERSONAL FRIEND OF CHIEF
DIXON; THAT TWO TO THREE MONTHS, POSSIBLY EVEN EARLIER, BEFORE DIXON'S
DEPARTURE, DIXON TOLD HIM HE HAD A JOB IN LAS VEGAS AND WOULD BE LEAVING
AND TOLD MR. RICHARDS THAT AS LONG AS HE (RICHARDS) WAS ACTIVE IN THE
UNION IF THERE WERE ANY PROMOTIONS GIVEN OUT, HE (RICHARDS) WOULDN'T GET
ONE; THAT HE (RICHARDS) HAD GOT A SUPERIOR PERFORMANCE BEFORE THE UNION
GOT IN BUT AS LONG AS HE (RICHARDS) REMAINED A UNION MEMBER HE WOULD
NEVER GET ANOTHER; THAT HE (DIXON) KNEW WHAT HE WAS TALKING ABOUT
BECAUSE HE (DIXON) TALKED TO PEOPLE EVERYDAY. RICHARDS TOOK MR. DIXON'S
LAST STATEMENT TO MEAN STAFF MEETINGS THAT DIXON ATTENDED, ALTHOUGH HE
STATED THAT MR. DIXON DID NOT MENTION STAFF MEETINGS. MR. RICHARDS
TESTIFIED THAT LATER, IN HIS OFFICE, MR. DIXON ADVISED HIM AND BURL
CORNELIUS TO DROP OUT OF THE UNION BECAUSE HE WAS GOING TO LEAVE AND HIS
JOB WAS GOING TO BE OPEN AND IF WE WANTED TO HAVE A CHANCE FOR HIS JOB
WE'D HAVE TO DROP OUT OF THE UNION. MR. RICHARDS STATED THAT MR.
CORNELIUS WAS THEN A MEMBER OF THE UNION AND THAT THE FOLLOWING DAY MR.
CORNELIUS DID DROP OUT OF THE UNION. ALTHOUGH MR. CORNELIUS DENIED THAT
DIXON EVER SAID HOW HE FELT ABOUT THE UNION, IN VIEW OF THE OVERWHELMING
WEIGHT OF THE TESTIMONY SHOWING MR. DIXON'S FREQUENTLY EXPRESSED DISLIKE
OF THE UNION, INCLUDING MR. FULTON'S ADMISSION THAT DIXON BLAMED
PROBLEMS ON THE UNION, I DO NOT CREDIT HIS DENIAL. IN LIKE MANNER, I DO
NOT CREDIT MR. CORNELIUS' TESTIMONY THAT HE DID NOT RECALL A
CONVERSATION IN WHICH DIXON SAID THAT MEMBERSHIP IN THE UNION WOULD BE A
NEGATIVE FACTOR IN PROMOTION AND, INSTEAD FULLY CREDIT MR. RICHARDS'
TESTIMONY THAT CHIEF DIXON DID NOT ADVISE MR. CORNELIUS AND MR. RICHARDS
TO DROP OUT OF THE UNION BECAUSE HE WAS GOING TO LEAVE AND HIS JOB WAS
GOING TO BE OPEN AND THAT IF THEY WANTED TO HAVE A CHANCE FOR HIS JOB
THEY WOULD HAVE TO DROP OUT OF THE UNION.
THE RECORD IS CLEAR THAT MR. CORNELIUS WAS, AT SOME POINT, A MEMBER
OF THE UNION AND THAT, AT SOME POINT, HE WITHDREW FROM THE UNION. MR.
CORNELIUS TESTIFIED THAT HE SUBMITTED HIS "PAPER WORK APPROXIMATELY
NOVEMBER OF 1977" BUT THAT MARCH AND SEPTEMBER WERE "THE TWO DATES THAT
YOU CAN GET OUT OF THE UNION." MR. CORNELIUS ALSO TESTIFIED THAT HE
JOINED THE UNION "AS SOON AS IT CAME IN" ABOUT FEBRUARY, 1977.
ACTUALLY, THE UNION WAS CERTIFIED JULY 8, 1976, ALTHOUGH THE AGREEMENT,
SIGNED ON JANUARY 3, 1977, WAS APPROVED BY THE HOSPITAL DIRECTOR AND
BECAME EFFECTIVE FEBRUARY 11, 1977. IT IS APPARENT THAT NEITHER MR.
CORNELIUS NOR THE OTHER WITNESSES, INCLUDING MR. RICHARDS, WERE WHOLLY
CORRECT IN THEIR FRAME OF REFERENCE TO SUCH MATTERS AS WHEN THE UNION
"CAME IN" AND WHEN MR. CORNELIUS WITHDREW FROM THE UNION.
UNFORTUNATELY, COMPLAINANT SUPPLIED NO WRITTEN DOCUMENTATION NOR WAS THE
DATE OF MR. DIXON'S CONVERSATION WITH MESSRS. RICHARDS AND CORNELIUS
FIXED WITH ANY CERTAINTY. CONSEQUENTLY, WHILE I HAVE FULLY CREDITED MR.
RICHARDS' TESTIMONY THAT CHIEF DIXON MADE THE STATEMENTS ATTRIBUTED TO
HIM, I CANNOT, ON THE BASIS OF THE VERY INADEQUATE RECORD AS TO THE DATE
OF MR. CORNELIUS' WITHDRAWAL FROM THE UNION CONCLUDE THAT MR. CORNELIUS
WITHDREW FROM THE UNION BECAUSE OF CHIEF DIXON'S ADVICE TO DO SO,
NOTHWITHSTANDING THAT SUCH INFERENCE WOULD BE WHOLLY CONSISTENT WITH THE
CREDITED TESTIMONY.
MR. RICHARDS' TESTIMONY CONCERNING CHIEF DIXON'S STATEMENTS TO HIM
WAS FULLY SUPPORTED BY THE TESTIMONY OF MR. LARRY F. WALLACE THAT MR.
DIXON HAS STRONGLY STATED IN THE PRESENCE OF MOST OFFICERS THAT THE ONLY
WAY ANYONE WAS EVER GOING TO BE SELECTED TO A SUPERVISOR'S POSITION IN
THE POLICE SECTION WAS BY BEING A NON-MEMBER OF THE UNION; THAT IF YOU
BELONGED TO ITS UNION YOU WERE NEVER GOING ANY PLACE; THAT THIS WAS
COMMON CONVERSATION BY CHIEF DIXON AT THE OFFICE. I FOUND MR. WALLACE
TO BE A WHOLLY CREDIBLE WITNESSES. MR. ALBERT D. BROWN TESTIFIED THAT
HE HAD HEARD THAT RICHARDS AND CORNELIUS HAD BEEN ADVISED THAT IF THEY
DIDN'T DROP OUT OF THE UNION THEY WOULDN'T GET ANYTHING. STANDING
ALONE, THIS RANK HEARSAY WOULD HAVE NO PROBATIVE VALUE BUT IN LIGHT OF
OTHER DIRECT TESTIMONY DOES FURTHER SUPPORT THE GENERAL DISSEMINATION
AMONG THE POLICE OFFICERS OF THE VIEW THAT UNION MEMBERSHIP WAS
DETRIMENTAL TO ADVANCEMENT.
AS THE RECORD SHOWS THAT CHIEF DIXON MADE THE FOREGOING STATEMENTS
WHILE SERVING AS CHIEF OF POLICE, AND IN THE COURSE OF HIS DUTIES AS A
SUPERVISOR FOR RESPONDENT, RESPONDENT IS RESPONSIBLE FOR THE ACTIONS OF
ITS SUPERVISOR. MOREOVER, MR. FULTON, CHIEF OF THE ENGINEERING SECTION,
ADMITTED THAT CHIEF DIXON STATED TO HIM THAT VARIOUS PROBLEMS WERE
ATTRIBUTABLE TO THE UNION.
MR. RICHARDS TESTIFIED THAT, SOME 4 TO 6 WEEKS PRIOR TO THE JOB
INTERVIEWS FOR THE POSITION OF CHIEF, WHICH WERE CONDUCTED IN APRIL OR
MAY, 1978, MR. CORNELIUS HAD BEEN INVOLVED IN AN ARREST OF A VA EMPLOYEE
WHICH HAD GROWN OUT OF A TRAFFIC VIOLATION; THAT HE, AS CHIEF STEWARD,
HAD BEEN CALLED TO MR. FULTON'S OFFICE; THAT THERE HAD BEEN A THREAT,
AS A RESULT OF MR. CORNELIUS' ACTION, TO "PULL EVERBODY'S ARREST
AUTHORITY;" THAT, AS CHIEF STEWARD, HE HAD POINTED OUT THE REQUIREMENTS
OF THE REGULATIONS AND THE PROCEDURES WHICH WOULD HAVE TO BE FOLLOWED
BEFORE SUCH ACTION COULD BE TAKEN; AND THAT MR. CORNELIUS, ALTHOUGH NOT
A MEMBER OF THE UNION, HAD GIVEN HIM A WRITTEN STATEMENT OF THE INCIDENT
AND ASKED MR. RICHARDS TO REPRESENT HIM IN CASE MANAGEMENT TOOK ANY
ACTION AGAINST HIM. MR. FULTON AT FIRST DENIED ANY KNOWLEDGE OF THE
ARREST INCIDENT BUT LATER RECALLED THE INCIDENT WHICH HE DISMISSED AS
HAVING INVOLVED PUSHING BY THE EMPLOYEE. MR. FULTON DENIED ANY MEETING
WITH MR. RICHARDS. MR. CORNELIUS DENIED THAT HE EVER CONTACTED MR.
RICHARDS; DENIED THAT HE GAVE HIM ANY STATEMENT; BUT ADMITTED THAT
THERE HAD, AT LEAST, BEEN SOME COMMENTS BY CHIEF DIXON AND BY MR. FULTON
CONCERNING PROCEDURES WHEN AN EMPLOYEE IS ARRESTED AND IN PARTICULAR
CONTACTING THEIR SUPERVISORS, SINCE, IN THE INCIDENT IN QUESTION, THE
EMPLOYEE HAD BEEN LISTED AS AWOL FROM DUTY. IT IS APPARENT THAT,
CONTRARY TO MR. FULTON'S TESTIMONY, THERE HAD BEEN MORE THAN PASSING
ATTENTION TO THE ARREST INCIDENT. INDEED, UNDER THE CIRCUMSTANCES, I
FIND MR. CORNELIUS' DENIAL OF HIS HAVING CONTACTED MR. RICHARDS
UNWORTHY OF BELIEF AND, FOR LIKE REASONS, I DO NOT CREDIT MR. FULTON'S
DENIAL OF ANY MEETING WITH MR. RICHARDS OVER THE INCIDENT AND FULLY
CREDIT MR. RICHARDS' TESTIMONY.
MR. RICHARDS FURTHER TESTIFIED THAT ONLY TWO OR THREE WEEKS BEFORE
THE JOB INTERVIEWS, MR. CORNELIUS HAD BEEN WRITTEN UP FOR REPORTING TO
WORK LATE. MR. CORNELIUS WAS NOT ASKED ABOUT THIS ASSERTION, NOR WAS
MR. FULTON; HOWEVER, AS THERE WAS NO DENIAL I MUST ASSUME THAT THE
ASSERTION WAS CORRECT.
MR. RICHARDS TESTIFIED THAT MR. FULTON BEGAN BY TALKING ABOUT HIS
ACTIVITY IN THE UNION; THAT MR. FULTON KEPT BRINGING UP THE ARREST
INCIDENT; THAT HE TOLD HIM (RICHARDS) THAT BECAUSE HE (RICHARDS) WAS A
UNION STEWARD HE FULLY UNDERSTOOD THE REGULATIONS AND THAT HE (FULTON)
DIDN'T BELIEVE THE UNION WOULD LET HIM (RICHARDS) GO BECAUSE HE HAD DONE
TOO GOOD A JOB REPRESENTING THE UNION. ALTHOUGH MR. FULTON DENIED THAT
HE MADE ANY SUCH COMMENTS TO MR. RICHARDS, I DO NOT CREDIT HIS DENIALS
AND SPECIFICALLY CREDIT MR. RICHARDS' VERSION OF THE INTERVIEW.
CHIEF DIXON HAD MADE REPEATED STATEMENTS THAT UNION MEMBERSHIP AND
UNION ACTIVITY WOULD BAR PROMOTION AND WHEN MR. FULTON INSERTED INTO
EACH INTERVIEW A QUESTION RELATING TO THE EMPLOYEE'S PRIOR UNION
MEMBERSHIP AND ACTIVITY AN UNAVOIDABLE CONSEQUENCE OF SUCH INQUIRY WAS
THAT IT APPEARED TO CONFIRM 'CHIEF DIXON'S STATEMENTS. THE SELECTION OF
MR. CORNELIUS, THE ONLY NON-UNION APPLICANT, COMPLETED THE SCENARIO
CHIEF DIXON HAD PROCLAIMED. INDEED, MR. RICHARDS FURTHER TESTIFIED
THAT MR. DIXON HAD CALLED HIM FROM LAS VEGAS AND TOLD HIM THAT HE HAD
"RECOMMENDED BURL BECAUSE HE'S NOT A UNION MEMBER" AND FURTHER REPEATED
THAT "I TOLD YOU AND I TOLD BURL TO GET OUT OF THE UNION, THAT THE CHIEF
WOULD BE A NON-UNION MEMBER."
I AM AWARE THAT MR. FREDERICK TESTIFIED THAT MR. FULTON HAD HIGHLY
RECOMMENDED HIM FOR AN EQUIVALENT POSITION AT MARION, ILLINOIS. MR.
BROWN TESTIFIED THAT THERE WAS A BIG DIFFERENCE IN THE ATTITUDE OF
MANAGEMENT AFTER THE UNION. HOWEVER, THE RECORD DOES NOT SHOW WHEN THE
MARION, ILLINOIS, RECOMMENDATION OCCURRED AND, AS VIRTUALLY OPPOSITE
INTERFERENCES MIGHT BE WARRANTED DEPENDING ON WHETHER SUCH
RECOMMENDATION OCCURRED AFTER THE ADVENT OF THE UNION AT LEXINGTON OR
BEFORE, THE INADEQUACY OF THE RECORD PERMITS NO INTERFERENCE WHATEVER.
THE RECORD DOES SHOW THAT: A) MR. CORNELIUS TOLD MR. RICHARDS, AFTER
MR. CORNELIUS' INTERVIEW BUT PRIOR TO MR. RICHARDS' INTERVIEW, THAT HE
HAD INHERITED CERTAIN RESPONSIBILITIES AND BOTH HIS STATEMENT AND HIS
"INSPECTION" TOUR WITH MR. RICHARDS STRONGLY IMPLY THE SELECTION OF MR.
CORNELIUS BEFORE THE INTERVIEWS HAD BEEN COMPLETED; AND B) MR.
CORNELIUS TOLD MR. RICHARDS, "WE GOT TO GET RID OF THIS DAMN UNION * * *
THAT'S ONE OF MY JOBS I GOT TO DO," WHICH FURTHER IMPLIES SELECTION OF
MR. CORNELIUS BEFORE THE INTERVIEWS HAD BEEN COMPLETED AS WELL AS
IMPLICIT INSTRUCTIONS THAT HE GET RID OF THE UNION. WHILE I HAVE NO
REASON TO DOUBT THAT MR. CORNELIUS MADE SUCH STATEMENTS, AND, FROM THE
PREVALENT ANTI-UNION STATEMENTS MADE BY CHIEF DIXON, IT MIGHT BE
ENTIRELY PROPER TO INFER MANAGEMENT APPROVAL OF MR. CORNELIUS'
STATEMENT; NEVERTHELESS, BECAUSE IT IS UNNECESSARY TO DO SO, I DRAW NO
INFERENCE FROM SUCH STATEMENTS EXCEPT TO NOTE THAT THIS IS CONSISTENT
WITH PERPETUATION OF CHIEF DIXON'S ANTI-UNION STATEMENTS WITH THE TACIT
APPROVAL OF MANAGEMENT.
CONCLUSIONS
STANDING ALONE, SELECTION OF THE ONLY NON-UNION APPLICANT FOR THE JOB
WOULD NOT PROVE DISCRIMINATION IN VIOLATION OF 19(A)(2) OF THE ORDER,
NOTWITHSTANDING THAT MR. FULTON'S REFERENCE TO UNION MEMBERSHIP AND
ACTIVITY CONSTITUTED A VIOLATION OF SECTION 19 (A)(1), PENNSYLVANIA ARMY
NATIONAL GUARD, SUPRA. ABSENT UNION ANIMUS, SELECTION OF ANY ONE OF THE
APPLICANTS INTERVIEWED, EACH OF WHOM HAD BEEN RATED HIGHLY QUALIFIED,
MIGHT HAVE BEEN BEYOND REPROACH VIS-A-VIS SECTION 19(A) (2). EACH WAS
RATED HIGHLY QUALIFIED; EACH HAD CONSIDERABLE EXPERIENCE IN POLICE
WORK; AND EACH HAD SUPERVISORY EXPERIENCE, ALTHOUGH MR. BROWN, WHO HAD
23 YEARS EXPERIENCE IN POLICE WORK, HAD SERVED AS A SUPERVISOR ONLY IN
AN ACTING CAPACITY, IN THE ABSENCE OF LIEUTENANT OR SERGEANT, OR AS
SENIOR OFFICER. HOWEVER, IN VIEW OF THE PERVASIVE UNION ANIMUS
EXHIBITED BY CHIEF DIXON, INCLUDING HIS STATEMENT THAT HIS SUCCESSOR AS
CHIEF WOULD NOT BE A UNION MEMBER AND MR. FULTON'S REFERENCE TO UNION
MEMBERSHIP AND UNION ACTIVITY IN HIS INTERVIEW OF EACH APPLICANT, I
CONCLUDE THAT IN SELECTING MR. CORNELIUS, THE ONLY NON-UNION APPLICANT,
RESPONDENT VIOLATED SECTION 19(A)(2) OF THE ORDER AND THAT ITS ACTIONS
WERE DESIGNED AND INTENDED TO DISCOURAGE MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
OR OTHER CONDITIONS OF EMPLOYMENT. FIRST, CHIEF DIXON HAD STRONGLY
STATED IN THE PRESENCE OF MOST OFFICERS THAT THE ONLY WAY ANYONE WAS
GOING TO BE SELECTED FOR A SUPERVISOR'S POSITION IN THE POLICE SECTION
WAS BY BEING A NON-MEMBER OF THE UNION. THIS WAS NOT AN ISOLATED REMARK
AND HAVING BEEN MADE BY A SUPERVISOR ON REPEATED OCCASIONS IN THE COURSE
OF HIS DUTIES, RESPONDENT IS RESPONSIBLE FOR THE ANTI-UNION CONDUCT OF
ITS SUPERVISOR.
SECOND, CHIEF DIXON HAD ADVISED MESSRS. RICHARDS AND CORNELIUS TO
WITHDRAW FROM THE UNION IF THEY WANTED TO HAVE ANY CHANCE FOR HIS JOB
AND MR. CORNELIUS DID WITHDRAW FROM THE UNION, ALTHOUGH IT IS POSSIBLE
THAT HE HAD BEGUN THE "PAPERWORK" PRIOR TO CHIEF DIXON'S SPECIFIC ADVICE
WHEN CHIEF DIXON TOLD MR. CORNELIUS, IN MR. RICHARDS' PRESENCE, THAT HE
WAS GOING TO LEAVE AND THAT HIS JOB WOULD BE COMING OPEN.
THIRD, MR. CORNELIUS WAS FOURTH IN OVERALL RATINGS.
FOURTH, MR. CORNELIUS, ONLY FOUR TO SIX WEEKS BEFORE HIS SELECTION,
HAD BEEN INVOLVED IN AN ARREST INCIDENT OF A VA EMPLOYEE WHICH HAD BEGUN
WITH A TRAFFIC TICKET AND ENDED IN AN ARREST FOR DISORDERLY CONDUCT.
THE PROPRIETY OF THE ARREST WAS SECONDARY. IN WEIGHING THE
QUALIFICATIONS OF APPLICANTS FOR THE POSITION OF CHIEF OF POLICE, THE
FAILURE OF MR. FULTON TO GIVE ANY CONSIDERATION TO THE MANNER IN WHICH
AN APPLICANT HANDLED A TRAFFIC VIOLATION WHICH ESCALATED TO AN ARREST
FOR DISORDERLY CONDUCT IS STRANGE. CONTRARY TO MR. FULTON'S TESTIMONY,
THE RECORD IS CLEAR THAT THIS INCIDENT, WHETHER AS TO THE ARREST
PROCEDURES, AS STATED BY MR. CORNELIUS, OR THE BROADER QUESTION OF
ARREST AUTHORITY OF ALL VA POLICE OFFICER, AS STATED BY MR. RICHARDS,
WAS THE SUBJECT OF MORE THAN PASSING ATTENTION. NEVERTHELESS, WITH NO
EXPLANATION, MR. FULTON GAVE NO CONSIDERATION TO THE INCIDENT IN HIS
EVALUATION OF THE APPLICANT.
FIFTH, ONLY A FEW WEEKS PRIOR TO HIS SELECTION, MR. CORNELIUS HAD
BEEN WRITTEN UP FOR REPORTING LATE. AGAIN, MR. FULTON GAVE NO
INDICATION THAT HE CONSIDERED MR. CORNELIUS' ATTENDANCE RECORD IN HIS
EVALUATION OF THE APPLICANTS.
SIXTH, MR. FULTON INTERJECTED INTO EACH INTERVIEW PRIOR UNION
MEMBERSHIP AND ACTIVITY OF THE APPLICANT.
SEVENTH, MR. FULTON ADMITTED THAT CHIEF DIXON HAD STATED TO HIM ON
SEVERAL OCCASION THAT THEIR PROBLEMS WERE ATTRIBUTABLE TO THE UNION.
EIGHTH, MR. DIXON TOLD MR. RICHARDS HE HAD RECOMMENDED MR. CORNELIUS
BECAUSE HE WAS NOT A UNION MEMBER AND REMINDED HIM THAT HE (DIXON) HAD
TOLD HIM (RICHARDS) THAT THE CHIEF WOULD NOT BE A UNION MEMBER.
CHIEF DIXON HAD TOLD MR. RICHARDS, ON ONE OCCASION WHEN HE TOLD HIM
THAT HE WOULD NEVER BE PROMOTED AS LONG AS HE WAS ACTIVE IN THE UNION,
THAT HE KNEW WHAT HE WAS TALKING ABOUT BECAUSE HE TALKED TO PEOPLE EVERY
DAY. BY THIS STATEMENT, CHIEF DIXON IMPLIED THAT HIS COMMENTS REFLECTED
MANAGEMENT POLICY. MR. FULTON'S REFERENCE TO UNION MEMBERSHIP AND UNION
ACTIVITY IN EACH INTERVIEW; HIS SELECTION OF MR. CORNELIUS, THE ONLY
NON-UNION BARGAINING UNIT APPLICANT, WITHOUT EXPLANATION OF TWO CURRENT
MATTERS WHICH MIGHT, OR MIGHT NOT, HAVE ADVERSELY IMPACTED ON THE
SELECTION OF MR. CORNELIUS, NAMELY, THE ARREST INCIDENT AND MR.
CORNELIUS' ATTENDANCE RECORD; HIS SUMMARY REJECTION, BY CONTRAST, OF
MR. CLEM'S SUPERVISORY EXPERIENCE AS NOT RECENT AND MR. RICHARDS'
SUPERVISORY EXPERIENCE AS HAVING BEEN IN CONSTRUCTION; HIS INITIAL
DENIAL AT THE HEARING OF KNOWLEDGE OF THE ARREST INCIDENT AND HIS
SUBSEQUENT DISMISSAL OF THE MATTER IN HIS TESTIMONY AS HAVING BEEN OF NO
CONSEQUENCE, HAVING INVOLVED PUSHING WHICH HE LEARNED FROM THE REPORT OF
THE INCIDENT, WHEREAS THE RECORD SHOWS THAT THE INCIDENT HAD BEEN A
MAJOR SUBJECT OF DISCUSSION INVOLVING OTHER OFFICIALS OF RESPONDENT AND
A REPEATED REFERENCE IN HIS INTERVIEW WITH MR. RICHARDS, ALL IMPLY TACIT
APPROVAL AND PERPETUATION OF THE ANTI-UNION STATEMENTS OF CHIEF DIXON
AND DEMONSTRATE A CONSISTENT PATTERN AND DESIGN INTENDED TO
DISCRIMINATORILY EXCLUDE SELECTION OF UNION MEMBERS AS CHIEF. I
CONCLUDE THAT RESPONDENT BY SUCH CONDUCT DID DISCRIMINATE AGAINST
APPLICANTS BECAUSE OF UNION MEMBERSHIP AND UNION ACTIVITY IN VIOLATION
OF SECTION 19(A)(2) OF THE ORDER: CF. INTERNATIONAL ASSOCIATION OF
MACHINISTS, TOOL AND DIE MAKERS LODGE NO. 35 V. NATIONAL LABOR RELATIONS
BOARD, 311 U.S. 72 (1944); H.J. HEINZ CO. V. NATIONAL LABOR RELATIONS
BOARD, 311 U.S. 514 (1941); NATIONAL LABOR RELATIONS BOARD V. LINK-BELT
CO., 311 U.S. 584 (1941); NATIONAL LABOR RELATIONS BOARD V. LASALLE
STEEL CO., 178 F.2D 822 (7TH CIR. 1949), CERT. DENIED, 339 U.S. 963
(1950); NLRB V. SCHILL STEEL PRODUCTS, INC., 480 F.2D 586 (5TH CIR.
1973); NORTH ELECTRIC MFG. CO., 84 NLRB 136, 24 LRRM 1221 (1949).
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED,
SECTION 203.26(B) OF THE REGULATIONS, 29 C.F.R. SECTION 203.26(B), AND
SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS, 5 C.F.R. SECTION
2400.2, FED. REG., VOL. 44, NO. 1, JANUARY 2, 1979, THE AUTHORITY HEREBY
ORDERS THAT THE VETERANS ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY,
SHALL:
1. CEASE AND DESIST FROM:
(A) REFERRING, IN THE COURSE OF ANY INTERVIEWS FOR PROMOTION, TO ANY
APPLICANT'S OR OTHER EMPLOYEE'S MEMBERSHIP IN THE NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES, TO ANY ACTIVITY ON BEHALF OF THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES OR ANY LOCAL THEROF, INCLUDING LOCAL
R5-185 OR LOCAL R5-160.
(B) ENCOURAGING OR DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED, OR IN ANY LIKE OR RELATED MANNER ENCOURAGING OR
DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN
REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT
IN VIOLATION OF EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) WITHDRAW, CANCEL AND RESCIND THE SELECTION FOR, AND PROMOTION TO
THE POSITION OF, SUPERVISORY POLICE OFFICER, COMMONLY KNOWN AS CHIEF OF
POLICE, OF MR. BURL CORNELIUS.
(B) RE-POST AND RE-ADVERTISE THE POSITION OF SUPERVISORY POLICE
OFFICER, GS-0830, UNDER APPROPRIATE ESTABLISHED PROCEDURES, INSURING,
HOWEVER THAT: I) ELIGIBILITY AND/OR QUALIFICATIONS ARE NOT MADE MORE
RESTRICTIVE THAN THOSE SET FORTH IN THE MARCH, 1978, PLACEMENT NOTICE
NO. 17; AND II) THAT MR. BURL CORNELIUS BE GIVEN NO CREDIT FOR
SUPERVISORY EXPERIENCE GAINED IN THE POSITION OF SUPERVISORY POLICE
OFFICER FROM MARCH, 1978.
(C) POST AT ITS FACILITIES AT ITS LEXINGTON, KENTUCKY, MEDICAL
CENTER, AND SPECIFICALLY AT BOTH THE LEESTOWN DRIVE FACILITY AND THE
COOPER DRIVE FACILITY, 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 HOSPITAL DIRECTOR 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 AT BOTH THE LEESTOWN DRIVE AND COOPER
DRIVE FACILITIES. THE HOSPITAL DIRECTOR SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(D) 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.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: 23 AUG. 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 REFER, IN THE COURSE OF ANY INTERVIEW FOR PROMOTION, TO
ANY APPLICANT'S OR OTHER EMPLOYEE'S MEMBERSHIP IN THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, OR TO ANY ACTIVITY ON BEHALF OF THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES OR ANY LOCAL THEREOF,
INCLUDING LOCAL R5-185 OR LOCAL R5-160.
WE WILL NOT ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
OR OTHER CONDITION OF EMPLOYMENT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED, OR IN ANY LIKE OR RELATED MANNER
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT IN VIOLATION OF EXECUTIVE ORDER 11491, AS
AMENDED.
WE WILL WITHDRAW, CANCEL AND RESCIND THE SELECTION FOR, AND PROMOTION
TO, THE POSITION OF SUPERVISORY POLICE OFFICER, COMMONLY KNOWN AS CHIEF
OF POLICE, OF MR. BURL CORNELIUS.
WE WILL RE-POST AND RE-ADVERTISE THE POSITION OF SUPERVISORY POLICE
OFFICER, GS-0830, UNDER APPROPRIATE ESTABLISHED PROCEDURES AND WE WILL
INSURE THAT: I) ELIGIBILITY AND/OR QUALIFICATIONS ARE NOT MADE MORE
RESTRICTIVE THAN THOSE SET FORTH IN THE MARCH, 1978, PLACEMENT NOTICE
NO. 17; AND II) THAT MR. BURL CORNELIUS RECEIVES NO CREDIT FOR
SUPERVISORY EXPERIENCE GAINED IN THE POSITION OF SUPERVISORY POLICE
OFFICER FROM MARCH, 1978.
AGENCY OF ACTIVITY
DATED . . . BY . . . HOSPITAL DIRECTOR
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
MATERIALS.
IF ANY EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS: SUITE 540, 1365 PEACHTREE STREET, N.E., ATLANTA,
GEORGIA 30309.
TODAY, AUGUST 23, 1979, COPIES OF A RECOMMENDED DECISION AND ORDER
WERE SENT TO THE FOLLOWING:
CERTIFIED MAIL-RETURN RECEIPT REQUESTED
JAMES W. PRESSLER, JR. ESQUIRE
ASSISTANT GENERAL COUNSEL
EDWARD J. GILDEA, ESQUIRE
ASSISTANT GENERAL COUNSEL
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
2139 WISCONSIN AVENUE, NW.
WASHINGTON, D.C. 20007
#612669
JAMES KLEIN, ESQUIRE
GENERAL COUNSEL'S OFFICE
VETERANS ADMINISTRATION
810 VERMONT AVENUE, NW.
WASHINGTON, D.C. 20420
#612670
MR. ALAN WHITNEY
EXECUTIVE VICE PRESIDENT
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
2139 WISCONSIN AVENUE, NW.
WASHINGTON, D.C. 20007
#612671
REGULAR MAIL
ASSISTANT DIRECTOR, LMR
OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, NW.
WASHINGTON, D.C.
FLRA
1900 E STREET, NW.
ROOM 7469
WASHINGTON, D.C. 20424
1 CY. EA. REGIONAL DIRECTOR
/1A/ 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, AS 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/ THE EXHIBITS IN THIS CASE HAVE NOT BEEN RECEIVED BY THIS OFFICE.
THE TRANSCRIPT WAS RECEIVED BY THIS OFFICE ON MAY 9, 1979, AND THE
REPORTING COMPANY, HOOVER REPORTING CO., INC., REPRESENTS THAT THE
EXHIBIT FILES WERE MAILED LATER, UNDER SEPARATE COVER, ON, OR ABOUT MAY
11, 1979; HOWEVER, THE EXHIBITS WERE NOT RECEIVED BY OUR DOCKET
SECTION, NOR BY THE UNDERSIGNED, AND ALL EFFORTS TO LOCATE THE EXHIBITS
HAVE, TO DATE, BEEN UNPRODUCTIVE. WHILE THE ABSENCE OF THE EXHIBITS,
RECEIVED INTO EVIDENCE, IS GREATLY REGRETTED, SAID EXHIBITS ARE NOT
NECESSARY FOR DECISION OF ANY ISSUE INVOLVED HEREIN, INASMUCH AS THE
TESTIMONY OF THE WITNESSES PROVIDES, FULLY, THE BASIS FOR DECISION OF
ALL ISSUES. MOREOVER, THE CONTENT OF EACH EXHIBIT IS ADEQUATELY SET
FORTH ON THE RECORD, IN THE TESTIMONY, OR, IN PARTICULAR AS TO THE
RATINGS OF EMPLOYEES, IN NOTES OF THE UNDERSIGNED MADE AT THE HEARING
FROM THE EXHIBITS, AS SUCH EXHIBITS PERTAIN TO THE ISSUE INVOLVED.
ACCORDINGLY, I DEEM IT UNNECESSARY UNDER THE CIRCUMSTANCES TO DELAY
DECISION PENDING EITHER: A) FURTHER SEARCH FOR THE EXHIBITS; OR (B) AN
EFFORT TO RECONSTITUTE THE EXHIBITS BY OBTAINING SUBSTITUTE COPIES FOR
THE MISSING ORIGINAL EXHIBITS. AS NOTED, THE TRANSCRIPT IS FULLY
ADEQUATE FOR DECISION OF ALL MATTERS HEREIN. IT IS APPROPRIATE TO LIST
THE EXHIBITS RECEIVED TOGETHER WITH A DESCRIPTION OF EACH: (TABLE
OMITTED)
/2/ BOTH MR. HOSKINS AND MR. MORRIS WOULD HAVE BEEN ELIGIBLE TO BID
FOR THE POSITION EVEN THOUGH EACH WAS ALREADY AT THE GS-6 LEVEL AND THE
SELECTION OF EITHER WOULD HAVE MEANT, IMMEDIATELY, ONLY A LATERAL
PROMOTION. WHILE EACH MAY HAVE INDICATED HIS DESIRE TO BE CONSIDERED AT
THE GS-7 OR 8 LEVEL, IN VIEW OF THE ANNOUNCEMENT (GS-6, 7 OR 8) IT SEEMS
QUESTIONABLE THAT EITHER COULD, PROPERLY, BE "NON-SELECTED" AFTER THE
FACT WITH NO OPPORTUNITY TO REQUEST SELECTION AT THE GS-6 LEVEL (MR.
CARPENTER TESTIFIED "I DON'T BELIEVE * * * HE WAS ASKED * * * " (TR.
157)). NEVERTHELESS, NEITHER MR. HOSKINS NOR MR. MORRIS WAS A MEMBER OF
THE BARGAINING UNIT; MR. HOSKINS WAS CONCEDED TO HAVE BEEN A SUPERVISOR
AND MR. MORRIS, AS A FIRE INSPECTOR, MAY ALSO HAVE BEEN A SUPERVISOR;
AND THERE IS NO EVIDENCE THAT THEIR "NON-SELECTION" CONSTITUTED A
VIOLATION OF THE ORDER. CONSEQUENTLY, ALTHOUGH RESPONDENT'S AMENDMENT OF
THE JOB DESCRIPTION, AFTER SELECTION OF MR. CORNELIUS, MAY, ARGUABLY,
HAVE BEEN CONSISTENT WITH RESPONDENT'S DESIRE TO INSURE SELECTION OF MR.
CORNELIUS, I FIND THE RECORD INSUFFICIENT TO WARRANT SUCH INFERENCE,
AND, ACCORDINGLY, I HAVE DRAWN NO INFERENCE FROM THE "NON-SELECTION" OF
MESSRS. HOSKINS AND MORRIS.
/3/ THE GREAT MAJORITY OF ALL POLICE OFFICERS APPLIED FOR THE
POSITION. PERSONNEL RANKED AND RATED EACH APPLICANT AND, SO FAR AS THE
RECORD SHOWS, ALL WERE FOUND QUALIFIED. THE TOP FIVE QUALIFIED
APPLICANTS WERE RATED HIGHLY QUALIFIED AND WERE REFERRED TO MR. FULTON
FOR AN INTERVIEW. SO FAR AS THE RECORD SHOWS, RATING FACTORS WERE
UNIFORMLY APPLIED AND THE RECORD IS DEVOID OF ANY EVIDENCE THAT ANY
FACTOR WAS UNFAIRLY OR DISCRIMINATORILY APPLIED TO EXCLUDE ANY APPLICANT
FROM THE HIGHLY QUALIFIED DESIGNATION, NOTWITHSTANDING THAT WALLACE R.
BALDWIN JR., THE PRESENT PRESIDENT OF LOCAL R5-185, WHILE RATED
QUALIFIED, WAS NOT AMONG THE FIVE HIGHEST RATED QUALIFIED APPLICANTS,
DENOMINATED "HIGHLY QUALIFIED."