09:0902(123)CA - VA, VA Medical Center, Fayetteville, AR and AFGE Local 2201 -- 1982 FLRAdec CA
[ v09 p902 ]
09:0902(123)CA
The decision of the Authority follows:
9 FLRA No. 123
VETERANS ADMINISTRATION, VETERANS
ADMINISTRATION MEDICAL CENTER,
FAYETTEVILLE, ARKANSAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2201, AFL-CIO
Charging Party
Case No. 6-CA-615
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED. THEREAFTER, THE GENERAL COUNSEL FILED
EXCEPTIONS TO THE JUDGE'S DECISION AND THE RESPONDENT FILED AN
OPPOSITION THERETO.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-615 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 6, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
CHARLES J. PUGH, ESQ.
FOR THE RESPONDENT
SUSAN E. JELEN, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
CASE NO. 6-CA-615
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL SERVICE
LABOR-MANAGEMENT STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF AN
UNFAIR LABOR PRACTICE CHARGE FILED JUNE 20, 1980, WITH THE FEDERAL LABOR
RELATIONS AUTHORITY. CONSEQUENTLY, ON AUGUST 29, 1980, THE REGIONAL
DIRECTOR, REGION VI, OF THE AUTHORITY ISSUED A COMPLAINT ALLEGING THAT
RESPONDENT HAS NOT PROMOTED DARREL W. EDENS, LEWIS CARR AND CLIFFORD
WARD TO THE POSITION OF FOOD SERVICE WORKER FOREMAN, WS-2, BECAUSE OF
THEIR UNION ACTIVITIES.
A HEARING WAS HELD ON JANUARY 6, 1981, IN FAYETTEVILLE, ARKANSAS.
ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE
WITNESSES AND TO INTRODUCE EVIDENCE. POST-HEARING BRIEFS HAVE BEEN
FILED AND CONSIDERED. UPON THE ENTIRE RECORD, INCLUDING MY OBSERVATION
OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS,
CONCLUSIONS AND RECOMMENDATION.
FINDINGS OF FACT
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2201
IS, AND AT ALL TIMES RELEVANT TO THIS PROCEEDING HAS BEEN THE EXCLUSIVE
BARGAINING REPRESENTATIVE FOR THE DIETETIC SERVICE, VETERANS
ADMINISTRATION MEDICAL CENTER, FAYETTEVILLE, ARKANSAS. THERE ARE
APPROXIMATELY FORTY EMPLOYEES IN THE DIETETIC SERVICE.
ON APRIL 14, 1980, VACANCY ANNOUNCEMENT NO. 80-17, FOOD SERVICE
WORKER FOREMAN, WS-2, DIETETIC SERVICE, WAS POSTED IN ACCORDANCE WITH
THE MERIT PROMOTION PLAN AND THE UNION CONTRACT. TEN OR ELEVEN
INDIVIDUALS APPLIED FOR THE JOB AND A MERIT PROMOTION PANEL WAS DULY
CONVENED TO DETERMINE WHICH APPLICANTS WOULD BE CERTIFIED TO THE
SELECTING OFFICIAL FOR CONSIDERATION. THE PANEL CERTIFIED SIX EMPLOYEES
AS QUALIFIED AND SUBMITTED THEIR NAMES TO DORIS CASSIDY, CHIEF OF THE
DIETETIC SERVICE FOR THE PAST TWELVE YEARS, WHO WAS THE SELECTING
OFFICIAL. THE SIX APPLICANTS WERE LEWIS CARR, DARREL W. EDENS, HOMER
GROSS AND CLIFFORD WARD, FROM THE FAYETTEVILLE STATION, AND IGOR
HUDDLESTON AND ROY LEE PARIS, FROM OUTSIDE THE FAYETTEVILLE STATION.
MRS. CASSIDY REQUESTED EACH APPLICANT'S SUPPLEMENTAL EXPERIENCE
STATEMENT FOR IN-SERVICE PLACEMENT. SHE ALSO REQUESTED THE ORIGINAL
APPLICATIONS FOR THE TWO OFF-STATION APPLICANTS. SHE DECIDED TO
CONSTRUCT A WORK SHEET AND MADE NOTATIONS OF EACH APPLICANT'S EDUCATION,
TRAINING, EXPERIENCE, AND LEAVE RECORDS. MRS. CASSIDY PERSONALLY
INTERVIEWED THE FOUR APPLICANTS LOCATED IN FAYETTEVILLE AND
TELEPHONICALLY INTERVIEWED THE OTHER TWO. FOLLOWING THE INTERVIEWS, SHE
SELECTED HOMER GROSS FOR THE VACANT POSITION AND NOTIFIED HIM IN WRITING
ON MAY 23, 1980.
REGARDING EDUCATION, GROSS, HUDDLESTON AND PARIS WERE THE ONLY
APPLICANTS WITH COLLEGE BACKGROUNDS. BOTH GROSS AND HUDDLESTON WERE
CONSIDERED TO HAVE VERY GOOD WRITTEN EXPRESSION. MRS. CASSIDY CONCLUDED
THAT CARR AND WARD COULD EXPRESS THEMSELVES FAIRLY WELL IN WRITTEN FORM
BUT THAT EDENS' WRITTEN SELF EXPRESSION WAS POOR. IN VERBAL EXPRESSION,
HUDDLESTON WAS RATED EXCELLENT; GROSS, VERY GOOD; CARR, WARD AND
PARIS, GOOD; AND EDENS, FAIR.
ALTHOUGH GROSS HAD WORKED ONLY TWO YEARS FOR RESPONDENT, MRS.
CASSIDY GAVE CONSIDERATION TO THE LEADERSHIP TRAINING HE HAD RECEIVED
AND THE LEADERSHIP TRAINING HE HAD TAUGHT SOME YEARS BEFORE. BOTH CARR
AND WARD HAD RECEIVED ON-THE-JOB TRAINING, BUT EDENS', WAS QUITE
LIMITED.
AS TO EXPERIENCE, GROSS HAD SUPERVISED UP TO AS MANY AS 160 OR SO
INDIVIDUALS. HE ALSO HAD EXPERIENCE DOCUMENTING JOB DESCRIPTIONS AND
PERFORMANCE REQUIREMENTS. HUDDLESTON HAD SUPERVISED AS MANY AS
FORTY-FIVE EMPLOYEES. IN 1978, CARR SERVED AS A RELIEF SUPERVISOR FOR
APPROXIMATELY 26 EMPLOYEES. IN 1978, CARR SERVED AS A RELIEF SUPERVISOR
FOR APPROXIMATELY 26 WEEKS WHEN TWO REGULAR SUPERVISORS WERE ON
EXTENDED
SICK LEAVE. DURING THIS TIME HE HAD FULL RESPONSIBILITY FOR FOOD
SERVICE SUPERVISION EXCEPT FOR APPRAISALS AND EVALUATIONS OF EMPLOYEES.
HE ALSO TRAINED NEW EMPLOYEES. HE RECEIVED A PERFORMANCE AWARD FOR HIS
WORK THAT YEAR BUT WAS ALSO COUNSELED ABOUT A SUIT FILED AGAINST HIM BY
A FORMER EMPLOYEE INVOLVING AN ALLEGED BAD DEBT. WARD HAD THE
OPPORTUNITY TO SERVE AS A RELIEF SUPERVISOR AND TO TRAIN NEW EMPLOYEES
BUT EDENS SERVED ONLY SPARINGLY AS A RELIEF SUPERVISOR BECAUSE OF
INTERNAL PERSONNEL PROBLEMS ARISING WHEN HE SO SERVED.
REVIEW OF LEAVE RECORDS DISCLOSED THAT CARR HAS USED 110 HOURS OF
SICK LEAVE IN THE LAST TWO YEARS WITH ALL BUT 24 HOURS IN CONNECTION
WITH HIS DAYS OFF DUTY. CARR HAD BEEN COUNSELED ABOUT SICK LEAVE IN HIS
FIRST TWO YEARS OF EMPLOYMENT WITH RESPONDENT AND AGAIN RECENTLY. /2/
EDENS WAS ALSO COUNSELED ON SICK LEAVE. AFTER NINE YEARS OF EMPLOYMENT,
HE HAD A BALANCE OF ONLY 28 HOURS. HE ACCUMULATES FOUR HOURS FOR EACH
OF 26 PAY PERIODS PER YEAR.
THE GENERAL COUNSEL INTRODUCED EXHIBITS WHICH CONTAINED RATINGS OF
THE FOUR APPLICANTS FROM THE FAYETTEVILLE STATION WHICH WERE COMPLETED
BY HERMAN EDGIN, CHIEF OF PRODUCTION AND SERVICE, AND SANDRA LAFOLLETTE,
FOOD SERVICE WORKER FOREMAN, WS-2. THESE RATINGS, WHICH WERE COMPLETED
WITHIN THE TWO MONTHS PRIOR TO THE SELECTION BEING MADE, WERE ENTITLED
QUALIFICATIONS ANALYSIS AND ASSESSMENT OF POTENTIAL FOR SUPERVISORY
POSITIONS, AND APPRAISAL OF EMPLOYEE FOR PROMOTION TO NONSUPERVISORY OR
FIRST LEVEL SUPERVISORY POSITION. A REVIEW OF THOSE RATINGS SHOWS THAT
THESE TWO SUPERVISORS PUT GROSS AND CARR AT THE TOP AND JUST ABOUT EVEN,
WARD WAS PLACED THIRD, AND EDENS, A DISTANT FOURTH.
ALTHOUGH THERE WAS NO TESTIMONY FROM MEMBERS OF THE MERIT PROMOTION
PANEL WHICH RATED THE APPLICANTS PRIOR TO THEIR CERTIFICATION TO MRS.
CASSIDY, A UNION OBSERVER AT THE MEETING OF THE PANEL DID TESTIFY.
RONALD B. PERKINS IS THE UNION STEWARD WHO OBSERVED THE PROCESS THE
PANEL WENT THROUGH IN ITS EVALUATION OF THE APPLICANTS. HE VOICED NO
COMPLAINTS WITH THAT PROCESS. ALTHOUGH THE FINAL SCORES WERE NOT
COMPUTED UNTIL AFTER THE PANEL CONVENED, MR. PERKINS BELIEVED THAT, ON
THE BASIS OF THE RAW SCORES WHICH HE SAW, CARR CAME OUT ON TOP, WITH
SECOND PLACE BETWEEN GROSS AND WARD, AND EDENS COMING OUT IN FOURTH
SPOT.
AS A RESULT OF HIS NONSELECTION FOR A FOREMAN POSITION IN JANUARY OF
1979, MR. WARD FILED A GRIEVANCE. HE WAS REPRESENTED BY MR. EDENS WHO,
ALONG WITH MR. CARR, TESTIFIED IN THAT PROCEEDING AGAINST RESPONDENT AND
MRS. CASSIDY. /3/ THE GRIEVANCE WENT TO ARBITRATION IN JULY OF 1979,
AND, IN SEPTEMBER OF THAT YEAR, THE ARBITRATOR UPHELD THE GRIEVANCE. A
YEAR LATER, THE ARBITRATOR'S DECISION WAS UPHELD AND, IN DECEMBER OF
1980, MR. WARD WAS ACCORDINGLY PROMOTED TO THE SUPERVISOR'S POSITION.
FOUR UNFAIR LABOR PRACTICE COMPLAINTS WERE HEARD ON A CONSOLIDATED
RECORD IN FAYETTEVILLE ON APRIL 8 AND 9, 1980. THEY ALL INVOLVED MRS.
CASSIDY. IN THREE OF THE CASES, THE PRESIDING ADMINISTRATIVE LAW JUDGE
RECOMMENDED DISMISSAL OF THE COMPLAINTS. IN ONE, A CASE ALLEGING THAT
MRS. CASSIDY THREATEN TO WITHOLD A PROMOTION FROM MR. EDENS, AND ONE IN
WHICH MR. CARR TESTIFIED, THE ADMINISTRATIVE LAW JUDGE FOUND THAT MRS.
CASSIDY DID THREATEN TO DENY PROMOTION TO THOSE UNION MEMBERS WHO
QUESTIONED HER MOTIVES IN THE SELECTION PROCESS.
CONCLUSIONS
COUNSEL FOR THE GENERAL COUNSEL ARGUES THAT, ON THE BASIS OF THE
FACTS IN THIS CASE, RESPONDENT HAS VIOLATED SECTIONS 7116(A)(1), (2) AND
(4) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE SINCE (1)
THE EMPLOYEES WERE ENGAGED IN PROTECTED ACTIVITY, (2) RESPONDENT HAD
KNOWLEDGE OF THAT ACTIVITY, AND (3) RESPONDENT DISCRIMINATED AGAINST THE
EMPLOYEES BECAUSE OF THEIR PROTECTED ACTIVITY. RESPONDENT ARGUES THAT
THERE IS NO CAUSATION BETWEEN THE NONSELECTION OF THE EMPLOYEES AND
THEIR PROTECTED ACTIVITY.
OBVIOUSLY, THERE IS NO QUESTION BUT THAT EMPLOYEES CARR, WARD AND
EDENS WERE ENGAGING IN PROTECTED ACTIVITY WHEN THEY PARTICIPATED IN THE
GRIEVANCE PROCEDURE. RESPONDENT DOES NOT DENY THAT PROPOSITION, NOR
DOES IT DENY KNOWLEDGE OF SUCH PROTECTED ACTIVITY. THE QUESTION IN THIS
CASE IS WHETHER THAT PROTECTED ACTIVITY HAD ANYTHING TO DO WITH THE
SELECTION OF GROSS FOR PROMOTION BY MRS. CASSIDY. I CONCLUDED THAT IT
DID NOT AND THAT THE COMPLAINT, THEREFORE, SHOULD BE DISMISSED.
COUNSEL FOR THE GENERAL COUNSEL RELIES UPON THE FINDINGS IN THE PRIOR
UNFAIR LABOR PRACTICE CASE TO SHOW ANIMUS AND THEN ARGUES THAT THE
TIMING OF THE PROTECTED ACTIVITY AND THE NONSELECTION OF THE UNION
ACTIVISTS IS ENOUGH TO SUSTAIN HER BRUDEN OF PROOF. RESPONDENT ARGUES
THAT THERE IS NO CAUSATION PROVED BETWEEN THE PROTECTED ACTIVITY AND THE
SELECTION OF MR. GROSS.
WHILE COUNSEL FOR THE GENERAL COUNSEL CORRECTLY CITES AUTHORITY FOR
THE PROPOSITION THAT THE TRIER OF FACT MAY INFER MOTIVE FROM THE TOTAL
CIRCUMSTANCES PROVED, /4/ IT IS ALSO TRUE THAT AN INFERENCE IS A
CONCLUSION WHICH THE TRIER OF FACT IS PERMITTED, BUT NO COMPELLED TO
DRAW FROM THE FACTS. /5/
IN THIS CASE, I DECLINE TO DRAW AN INFERENCE FROM THE TIMING OF THE
PROTECTED ACTIVITY AS IT RELATED TO THE SELECTION FOR PROMOTION. FIRST
OF ALL, THE THREAT WHICH WAS FOUND TO HAVE TAKEN PLACE OCCURRED MORE
THAN A YEAR BEFORE THE TESTIMONY IN THE UNFAIR LABOR PRACTICE CASE WHICH
WAS HEARD IN APRIL OF 1980 /6/ THE FINDINGS IN THAT CASE DO NOT SPEAK TO
MRS. CASSIDY'S STATE OF MIND AT THE TIME OF THE HEARING. SECONDLY, THE
SELECTION TOOK PLACE MORE THAN SIX WEEKS AFTER THE HEARING IN THE UNFAIR
LABOR PRACTICE CASE AND TWO TO FOUR WEEKS AFTER THE APPLICANTS HAD BEEN
RATED BY MS. LAFOLLETTE AND MR. EDGIN. IT HAS NOT BEEN CONTENDED THAT
THE SELECTING PROCEDURES IN ANY WAY VIOLATED MERIT PROMOTION PRINCIPLES
AND I CONCLUDE THAT THE PROCESS OF DELIBERATION BETWEEN THE TIME OF THE
HEARING IN THE UNFAIR LABOR PRACTICE CASE AND THAT OF SELECTION, BELIES
ANY CONCLUSION THAT THE CHOICE WAS HASTY OR UNTOWARD.
IN ANY EVENT, EVEN WERE I TO INFER THAT UNION ANIMUS PLAYED A PART IN
THE SELECTION, AT BEST THAT WOULD ONLY IMPOSE ON RESPONDENT THE BURDEN
OF GOING FORWARD WITH EVIDENCE TO REBUT OR MEET THAT INFERENCE, IT WOULD
NOT SHIFT THE BURDEN OF PROOF FROM THE GENERAL COUNSEL. /7/ ON THE
FACTS, RESPONDENT HAS MET ITS BURDEN. THE CRUX OF THIS ENTIRE CASE IS
THE CREDIBILITY OF MRS. CASSIDY; AND, BASED ON THE EVIDENCE OF RECORD
AND HER DEMEANOR ON THE STAND AS SHE TESTIFIED, I BELIEVE THAT THE UNION
ACTIVITIES OF CARR, WARD AND EDENS DID NOT PLAY A PART IN HER SELECTION
OF GROSS. I DO BELIEVE THAT SHE WAS UPSET BY THE FACT THAT SHE WAS
CHARGED WITH UNFAIR LABOR PRACTICES BUT I BELIEVE THAT FROM THAT
EXPERIENCE, SHE WAS DETERMINED TO BASE FUTURE PROMOTION SELECTIONS ON AS
SOLID GROUND AS POSSIBLE. IT WAS FOR THIS REASONS THAT SHE DECIDED FOR
THE FIRST TIME TO PREPARE A COMPARISON CHART OF THE EDUCATION, TRAINING
AND EXPERIENCE OF THE APPLICANTS. IT IS SIGNIFICANT THAT NONE OF THE
FACTS CONTAINED ON THAT CHART WERE SPECIFICALLY CHALLENGED ALTHOUGH,
IMPLICITLY, THE WEIGHT TO BE GIVEN EACH FACTOR WAS ARGUED. SUFFICE IT
TO SAY, I CANNOT CONCLUDE THAT HER REASONING OR JUSTIFICATION FOR
SELECTING MR. GROSS WERE PRETEXTUAL. THERE WAS A RATIONAL BASIS FOR HER
SELECTION AND, OTHER THAN THE TIMING OF THE HEARING AND THE SELECTION,
NOT ONE FACT IS OF RECORD WHICH WOULD PERMIT EVEN AN INFLUENCE OF ANIMUS
OR INTENT TO DISCRIMINATE.
AS NOTED PREVIOUSLY, THE RATINGS COMPLETED BY MR. EDGIN AND MS.
LAFOLLETTE ARE UNCHALLENGED. THEY SHOW CONCLUSIVELY THAT WARD AND EDENS
WOULD NOT HAVE BEEN SELECTED OVER EITHER GROSS OR CARR. THOSE RATINGS
GIVE SUPPORT TO MRS. CASSIDY'S FINAL RANKINGS. CARR'S LEAVE RECORD
WORKED AGAINST HIM AND I CANNOT CONCLUDE THAT MRS. CASSIDY'S CONCERN
WITH IT WAS NOT JUSTIFIED. I CONCLUDE THAT THE CHOICE OF GROSS WAS
FACIALLY LAWFUL AND THAT THE EVIDENCE DOES NOT WARRANT A CONCLUSION THAT
UNION ANIMUS PLAYED ANY PART IN THE SELECTION. THE FACT THAT MRS.
CASSIDY WAS FOUND TO HAVE MADE THREATS TO EMPLOYEES MORE THAN A YEAR
PRIOR TO THE SELECTION PROCESS CANNOT, STANDING ALONG, IMMUNIZE THOSE
EMPLOYEES AGAINST NONSELECTION FOR PROMOTION.
HAVING FOUND AND CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE THE
STATUTE AS ALLEGED, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS
AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 CFR 2423.29(C):
ORDER
ORDERED, THAT THE COMPLAINT IN CASE NO. 6-CA-615 IS DISMISSED.
ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 12, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ INTERNAL REVENUE SERVICE, WASHINGTON, D.C., 6 FLRA NO. 23(1981).
/2/ THIS COUNSELING WAS REMOVED FROM HIS FILE AFTER AN UNFAIR LABOR
PRACTICE CHARGE WAS FILED BY THE UNION.
/3/ EDENS HAD BEEN PROMOTED BY MRS. CASSIDY TO WG-4 AFTER HE HAD
FILED (AND NOT BECAUSE OF) SOME GRIEVANCES.
/4/ SHATTUCK DENN MINING CORP., (IRON KING BRANCH) V. NLRB. 362 F.2D
466 (9TH CIR. 166).
/5/ BRAY V. UNITED STATES, 306 F.2D 743, 747 (C.A.D.C. 1962).
/6/ DECISION OF CHIEF ADMINISTRATIVE LAW JUDGE JOHN H. FENTON IN
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION MEDICAL CENTER,
FAYETTEVILLE, ARKANSAS, CASE NO. 6-CA-167 (1980).
/7/ SEE, FED. R. CIV. P. 301.