[ v24 p64 ]
24:0064(8)CA
The decision of the Authority follows:
24 FLRA No. 8
VETERANS ADMINISTRATION AND
VETERANS ADMINISTRATION MEDICAL
CENTER, LYONS, NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1012
Charging Party
Case No. 2-CA-40271
DECISION AND ORDER
I. Statement of the Case
This case is before the Authority on limited exceptions filed by the
General Counsel to the attached Administrative Law Judge's Decision.
The Judge found that the Veterans Administration and Veterans
Administration Medical Center, Lyons, New Jersey (Respondent) violated
section 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (the Statute) by its failure to bargain with the
American Federation of Government Employees, AFL-CIO, Local 1012
(Charging Party) as to the adverse effects on bargaining unit employees
of its change in the system of rotating instructors into the Acting
Associate Chief of Nursing Service for Education (ACNSE) position. He
further found that Respondent had not engaged in other alleged unfair
labor practices. The issues presented by the limited exceptions to the
Judge's decision concern an allegedly coercive supervisor's statement,
the unilateral change in the method of filling the Acting ACNSE
(supervisory) position and the violation found pertaining to failure to
bargain about that change. In partial disagreement with the Judge, we
find no merit to any of the allegations contained in the complaint.
II. Facts
The facts are fully set out in detail by the Judge and are repeated
herein only to the extent that they concern matters related to the
General Counsel's exceptions. The Charging Party is the bargaining
agent for the professional registered nurses employed by the Respondent.
A. Procedures for Filling the Acting ACNSE Position
On March 18, 1983, the Charging Party's Vice President sent the Chief
Nurse a memorandum requesting negotiations concerning the detailing of
all nursing education instructors to staff nursing positions.
Contemporaneous with this proposed change, the current ACNSE requested a
transfer to another position at another hospital. On April 1, 1983,
representatives of the Charging Party and Respondent's management
officials met and negotiated concerning the detailing of instructors to
staff nursing positions. This meeting, in part, was devoted to a
discussion of the procedure to be used in temporarily filling the ACNSE
vacancy.
The parties did not sign a written agreement concerning this matter.
The Charging Party prepared and sent an "agreement" to the Respondent
which contained the Charging Party's understanding of what the parties
had agreed to at their meeting. The Respondent refused to sign the
proposed "agreement." The Respondent prepared minutes of the meeting,
however, and sent them to the Charging Party. Paragraph 2 of the
minutes provided that details would be for the shortest time possible,
with each detail being reviewed every four weeks. Paragraph 2 also
provided that based on need, details could be discontinued, changed or
extended. Paragraph 4 of the minutes provided in pertinent part that
"instructors will rotate through the Acting ACNSE position for one
month," and is substantially the same as paragraph 5 of the Charging
Party's "agreement." Subsequently, the Respondent began rotating
instructors through the Acting ACNSE position. On November 23, 1983,
Respondent, without notice to the Charging Party, altered the procedure
and detailed an employee indefinitely to fill the Acting ACNSE position.
The Respondent asserted that this change was made because the rotation
system was not effective.
B. Allegedly Coercive Statement
On February 8th and 9th of 1984, Bernard Canete, a nursing instructor
at the Respondent and Vice President of the Charging Party was involved
in processing an unfair labor practice charge. The parties had decided
to settle the charge and Canete and Ms. Benson, a steward of the
Charging Party, were responsible for drawing up a settlement agreement.
On the evening of February 9th, Acting ACNSE Dorothy Brenner asked
Benson how long she would be involved in the Union work so that she
could fill out the time logs. Canete, whose office was next to
Benson's, heard Benson say, "Dorothy, you are harassing me." Canete told
Brenner that management had given him and Benson time and that Brenner
was harassing them. Brenner went into Canete's office and told him,
"Mr. Canete, if you had been at St. Claire's Hospital you can be fired
with your union activities."
III. Judge's Decision
The Judge concluded that the Respondent did not violate section
7116(a)(1) of the Statute by the supervisor's statement to an employee
because under the circumstances, the statement was not coercive or
intimidating. The Judge also found that the Respondent did not violate
section 7116(a)(1) and (5) of the Statute by unilaterally changing its
method of filling the Acting ACNSE position. The latter finding was
based on National Labor Relations Board Union, Local 21 and National
Labor Relations Board, 15 FLRA 798 (1984), where the Authority stated
that "a proposal concerning the filling of supervisory positions,
including temporary appointments is negotiable only at the election of
the agency since it does not concern a condition of employment of
bargaining unit employees . . . ." The Judge found that since the Acting
ACNSE position was a supervisory position, the filling of the position
on an acting basis did not involve a condition of employment and
changing the procedure did not change a condition of employment.
Further, the Judge found that whether Respondent breached its
contractual term or not by unilaterally changing the method of filling
the Acting ACNSE position, as the filling did not involve a condition of
employment the Respondent did not violate the Statute.
Notwithstanding the above, the Judge found that the Respondent
violated section 7116(a)(1) and (5) of the Statute by failing to bargain
with the Charging Party about the adverse effects on bargaining unit
employees of its decision to change the procedure for filling the Acting
ACNSE position. The Judge stated that where an agency makes a decision
that has a reasonably direct adverse impact on bargaining unit employees
and their conditions of employment, the agency is required by the
Statute to notify and bargain with the union concerning the adverse
effects of such change upon employees. The Judge noted that because of
the change, the instructors no longer had an equal opportunity to
experience and learn the skills useful for promotion and that those
instructors not given the opportunity had to perform certain of the
tasks and duties of those who were given the opportunity.
Further, the Judge found that the Respondent did not violate section
7116(a)(1) and (2) of the Statute by the failure of its Key Committee to
recommend Canete for selection to the ACNSE position. In so finding,
the Judge concluded that the evidence was insufficient to justify an
inference that the Key Committee's decision was based on Canete's Union
activity and was insufficient to justify discrediting the testimony of
the Key Committee Members that Canete's Union activity was not
considered in the Committee's determination. No exceptions were filed
to the Judge's conclusion in this regard.
IV. Positions of the Parties
The General Counsel argues that the Judge erred in finding that the
Respondent did not violate section 7116(a)(1) and (5) of the Statute
when it unilaterally changed the method of filling the position of
Acting ACNSE, a supervisory position. Although the General Counsel
agrees with the Judge that the procedures which an Activity uses to fill
a supervisory position are bargainable only at the election of the
agency, it asserts that the Respondent elected to negotiate about the
procedures and entered into an agreement with the Charging Party on how
the Acting ACNSE position was to be filled. The General Counsel argues
that the Respondent could not thereafter repudiate the agreement without
violating section 7116(a)(1) and (5) of the Statute. The General
Counsel contends that the Respondent by making a permanent assignment of
an employee to the Acting ACNSE position repudiated its agreement to
rotate the position among unit employees and thereby violated section
7116(a)(1) and (5) of the Statute by unilaterally changing working
conditions of unit employees.
Further, the General Counsel argues that the Judge erred in finding
that Acting ACNSE Brenner's statement to Canete did not violate section
7116(a)(1) of the Statute. It is the General Counsel's view that a
statement to a union representative that the employee's union activity
could result in the employee being fired at a private hospital
constitutes a threat that the protected activity can lead to the same
consequences at a public hospital. Consequently, the General Counsel
concluded that the statement exceeded the expression of opinion and
constituted interference, restraint and coercion in violation of section
7116(a)(1) of the Statute.
V. Analysis
In agreement with the Judge and based on his rationale, we adopt his
finding that the Respondent did not violate section 7116(a)(1) and (2)
by failing to recommend Canete for selection to the ACNSE position. In
adopting the Judge's finding, we note that the General Counsel filed no
exceptions to the finding.
A. Procedures for Filling the Acting ACNSE Position
We agree with the Judge, based on his rationale, that the Respondent
did not violate section 7116(a)(1) and (5) of the Statute by changing
the method for filling the Acting ACNSE position. The Acting ACNSE
position was a supervisory position. The filling of the position on a
rotational basis did not involve a condition of employment, and changing
the procedure did not change a condition of employment. While an agency
can elect to negotiate about the procedure for filling a supervisory
position, as the Respondent did in this case, negotiation does not
convert the procedure into a condition of employment. Accordingly, the
Respondent's unilateral change in the procedure did not involve a
condition of employment, and there was no obligation to bargain over
that change.
We reject the General Counsel's argument that the Respondent
repudiated its agreement with the Charging Party concerning the
procedure for filling the Acting ACNSE position. The parties prepared
documents setting forth separate versions of the meeting. The Union
prepared an "agreement," which the Respondent refused to sign, and the
Respondent prepared minutes of the meeting. The Judge found that none
of the parties objected to the minutes as written and that all stated
that the minutes reflected what was agreed upon. The Respondent
maintains, not inconsistent with the minutes of the meeting, that the
understanding reached by the parties was that management would fill the
position by rotation on a trial basis but that management retained the
authority to change or terminate the procedure at any time management
determined that rotation was not working effectively. The Union
disagrees. In these circumstances, assuming that the minutes reflect an
agreement, we find that this aspect of the case involves differing and
arguable interpretations of the parties' agreement. In cases involving
disputed interpretations of an agreement, the aggrieved party's remedy
is through the grievance and arbitration procedures available to the
parties, or other appropriate proceedings, rather than through unfair
labor practice procedures. See Department of Health and Human Services,
Social Security Administration, 23 FLRA No. 62 (1986).
/*/
Moreover, even assuming that the Respondent's subsequent rotation of
employees through the position was sufficient to establish a past
practice, the Respondent was under no obligation to bargain over the
change or termination of the practice since the subject matter did not
involve a condition of employment. Nuclear Regulatory Commission, 17
FLRA 972 (1985).
Furthermore, we disagree with the Judge's finding that the Respondent
violated the Statute when it failed to bargain with the Charging Party
about the adverse effects of the change. Since changing the method for
filling the Acting ACNSE position did not change a condition of
employment, the Respondent was under no obligation to bargain over the
impact and implementation of the change. See Department of the Navy,
Naval Underwater Systems Center, Newport, Rhode Island, 11FLRA 316
(1983); and Department of the Navy, Supervisor of Shipbuilding,
Conversion and Repair, Groton, Connecticut, 4 FLRA 578 (1980). Thus, we
will dismiss the section 7116(a)(1) and (5) violation found by the
Judge.
B. The Allegedly Coercive Statement
We agree with the Judge, based on his rationale, that the Respondent
did not violate section 7116(a)(1) of the Statute by the statement of
its supervisor, Acting ACNSE Brenner, to Canete. In agreement with the
Judge, we conclude that Brenner's statement to Canete would not, under
the circumstances, tend to coerce or intimidate him as the statement was
merely Brenner's opinion of what the situation was in the private sector
and could not reasonably be construed or interpreted as a threat.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the findings of the
Judge made at the hearing and find that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision, the positions of the parties and the entire record, we
adopt the Judge's findings, conclusions and recommended Order as
modified.
We conclude that the Respondent did not violate section 7116(a)(1)
and (2) of the Statute by the failure of its selection committee to
recommend that a bargaining unit employee be considered for selection
for the supervisory position of ACNSE; did not violate section
7116(a)(1) of the Statute by a statement made by one of its supervisors
to a bargaining unit employee; and did not violate section 7116(a)(1)
and (5) of the Statute by changing the method of filling the Acting
ACNSE position. We conclude further, contrary to the Judge, that the
Respondent did not violate section 7116(a)(1) and (5) of the Statute by
failing to bargain with the Charging Party about the adverse effects on
employees of the decision to change the method of filling the Acting
ACNSE position. Accordingly, we dismiss the complaint in its entirety.
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-40271 be, and it
hereby is, dismissed.
Issued, Washington, D.C., November 19, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-40271
VETERANS ADMINISTRATION AND VETERANS
ADMINISTRATION MEDICAL CENTER,
LYONS, NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1012
Charging Party
Leslie Vincent, Esq.
For the Respondent
Lee Whitaker
For the Charging Party
Lee Mingledorff, Esq.
For the General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq., 92 Stat. 1191 (hereinafter referred to as the
Statute), and the Rules and Regulations of the Federal Labor Relations
Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
A charge was filed on March 22, 1984 and amended April 17, 1984 by
the American Federation of Government Employees, AFL-CIO, Local 1012,
(hereinafter referred to as AFGE Local 1012 or the Union), against the
Veterans Administration (VA) and Veterans Administration Medical Center,
Lyons, New Jersey (VAMC Lyons) hereinafter referred to jointly as
Respondent. Pursuant to the above described charge and amended charge,
on August 31, 1984, the General Counsel of the FLRA, by the Regional
Director for Region II issued a Complaint and Notice of Hearing alleging
that Respondent violated Sections 7116(a)(1), (2) and (5) of the
Statute. Respondent filed an Answer denying that it had violated the
Statute.
A hearing was conducted before the undersigned in New York, New York.
Respondent, Charging Party and General Counsel of the FLRA were
represented and afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce evidence and to argue orally.
Post hearing briefs were filed and have been fully considered.
Based upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
At all times material herein AFGE has been the exclusive
representative for a nationwide unit of nurse professional employees of
the VA, which includes nurse professional employees at VAMC Lyons. AFGE
Local 1012 is the local agent of AFGE at VAMC Lyons and is recognized as
such by Respondent.
The Discrimination Allegation
Bernard T. Canete has, at all times material, been employed at VAMC
Lyons as a nursing instructor. He has held this position since 1978.
He is also Vice-President of the professional RN unit and he has held
this position since February 1983. Prior to holding this position he
was the chief steward in the professional unit. He held this position
from 1981 to 1983. As Vice President, Canete's duties involve dealing
with management on grievances, arbitrations and other types of employee
complaints. He is also a member of AFGE Local 1012 executive committee
and is the Union's representative on the VAMC Lyons EEOC committee and
on the Hispanic Employment Program at VAMC Lyons. Canete, as Vice
President, represents employees under the negotiated grievance
procedure, in the later stages, in meetings with higher management
officials including the Chief of Nursing, Chief of Personnel, Chief of
Staff, and Medical Center Director. He represented the Union in
negotiations with management at VAMC Lyons on proposed shift change for
nurses. During these negotiations, which lasted from April 1983 to
October 1983, he dealt with Wanda Daniels who was Chief of Nursing. In
addition to these negotiations Canete was involved as chief negotiator
in negotiations on the detailing of instructors. These negotiations
also lasted from March 1983 to the following October. Canete was
involved in the first unfair labor practice charge filed by the Union on
December 27, 1983 and that prior to the filing of the charge he had met
with VAMC Lyons management on the matter during the middle of October
1983. During the second meeting with management during these
negotiations, the Personnel Officer told Canete to forget about employee
needs and concerns and to speak about his promotion to Associate Chief
of Nursing Service for Education (ACNSE). When Canete declined to set
aside his union business for a discussion of his promotion he was told
the reference was meant to be a joke.
Canete was considered for the position of ACNSE in October of 1983.
This came about as a result of the settlement of an EEO complaint with
Canete filed in July of 1981. Canete was told by the VA's attorney that
the only way to resolve the EEO case was to give Canete top priority
consideration for the ACNSE.
The Nursing Service Key Committee located at VA's Central Office in
Washington, D.C. considered candidates for the ACNSE and failed to
recommend Canete for the position.
Donna Humes, a Deputy Director of Respondent works for Assistant
Chief Medical Director Ferguson and served as Chairman of the Key
Committee. There were seven members of the Key Committee. When the Key
Committee has a vacancy to consider, it is VA policy to speak with the
hospital director or the chief of staff to ask them what qualifications
they are looking for in a candidate. There are also other opportunities
for the Key Committee members to communicate with these officials. In
considering Canete for the position the Key Committee reviewed Canete's
personnel folder and his Board Action Folder. Maragret de Weaver is the
member of the Committee that communicated to the Committee the fact that
Canete had had an opportunity to act in the ACNSE position and that
there was concern by local VAMC Lyons management about his
indecisiveness. /1/ De Weaver had reviewed Canete's record and had
explored his qualifications with Daniels, the VAMC Lyons Chief of
Nursing. De Weaver in fact presented a summary of Canete's
qualifications which was apparently relied upon by the other members of
the Key Committee. De Weaver was the only Key Committee member who had
knowledge that Canete was a Union member or held an office within AFGE
and did not discuss this with the Key Committee. The Key Committee
reviews approximately 25 files a week. There were references throughout
Canete's personnel file concerning his having filed discrimination
complaints; there was also a letter of appreciation by VAMC Lyons to
Canete for his role as the Acting ACNSE from January 1981 to June 1981
and a favorable evaluation. The reason the Committee did not consider
Canete's successful performance in the role of Acting ACNSE in 1981 to
be determinative was that the Committee had information through de
Weaver, from Daniels that Canete was indecisive and did not properly
handle his administrative responsibilities in a proper fashion. Finally
significant consideration was given in Canete's evaluation dated June 6,
1983 which indicated that Canete had a weakness in terms of his
interpersonal relationships. Canete's personnel file, when his
application was considered, included Canete's 1980-81, 1981-82, and
1982-83 /2/ annual proficiency reports. In addition to his proficiency
reports Canete's personnel folder contained a statement of his
accomplishments as ACNSE from January to June of 1981. In addition to
the above documents, Canete's personnel file at the time it was reviewed
by the Key Committee contained the following documents: several letters
of appreciation; Canete's Curriculum Vitae, a document which summarizes
his experience and education background; an AFGE certificate stating
that Canete attended training as a union steward; and an AFGE
certificate stating Canete received Officers and Stewards Training.
Canete was notified of his rejection by the Key Committee on November
2, 1983 by a letter he received from A. Paul Morris, the Acting Regional
Director for Respondent's Mid-Atlantic Region. This letter, prepared by
de Weaver, states that the reason Canete was not referred for selection
was because his recent work experience in education had been limited to
the VAMC Lyons, except for the period of time, 1970-71, when he was an
assistant clinical instructor in a hospital school of nursing.
Subsequent to his being rejected by the Key Committee, Canete asked for
an explanation of why he was rejected, but he received no explanation.
In this connection it should be noted that subsequent to the filing of
the charge herein, Respondent set forth in two letters its response to
the charge. In one letter, dated April 20, 1984, Respondent gave as the
explanation for the rejection of Canete his lack of experience,
knowledge, skills, and abilities and other characteristics per the
guidance contained in Respondent's Program Guide for Nursing Service
G-15, M-2, Part V, Appendix B. In its June 27, 1984 letter Respondent
asserted that although mobility could have been a factor considered, the
primary considerations were his qualifications and experience and the
consensus was that Canete would be better suited to a smaller, less
active station than VAMC Lyons.
The qualifications for the ACNSE position are set forth in an August
1, 1980 Position Requirement Memorandum from Daniels, the 1982 Position
Description for ACNSE position approved by Daniels, Respondent's
pamphlet of facts on the position, and Respondent's Program Guide for
Nursing Service. Essentially they set forth the qualifications as being
a Master Degree (a higher degree is preferred) with a major in nursing
from a National League of Nursing accredited program; four years of
nursing experience of which one year should be in teaching; some
experience in basic nursing administration; and mobility or a
willingness to accept transfer to meet the needs of the Nursing Service.
The Program Guide, which was references in Respondent's April 20, 1984
position letter, lists courses and other contributory preparation
relative to qualifying for the ACNSE position. Examples of contributory
experiences are the planning and implementation of learning experiences
for patients, families, and nursing staff; participation of Nursing
Service and hospital committees; serving on the Nurse Professional
Standards Board; participating in developing the Nursing Service
philosophy and goals; participation in writing the educational
component of the annual report for Nursing Service; participating in
developing intra VA and extra VA details; developing and completing a
thesis or research project; teaching experience in courses for
registered nurses, practical nurses and nursing assistants; and
participation in activities at Regional Medical Educations Centers.
In an affidavit related to the EEO complaint admitted into evidence,
Wanda Daniels, the Chief Nurse at VAMC Lyons, was asked how she would
evaluate Canete's qualifications for the ACNSE position at VAMC Lyons.
She responded that he was very well qualified and that he could manage
the position. Vernice Ferguson, the Deputy Assistant Chief Medical
Director for Nursing Programs at Respondent's Central Office in
Washington, D.C., also gave an affidavit in the EEO proceeding and
stated that lack of mobility would not be a single determinant
justifying nonselection since management needed to be sensitive to the
fact that people have been promoted in place and that there was
compassionate reasons to honor a candidate's lack of mobility. Daniels'
and Ferguson's statements were made in December of 1982 and January,
1983, respectively.
A number of the members of the Key Committee testified /3/ at the
heraing herein and stated that they did not know of Canete's Union
activities, that such activities were not discussed and were not
considered in deciding whether to recommend Canete for the ACNSE
position. In all the circumstances I credit the members of the Key
Committee that Canete's Union activities was not a consideration in
their determination not to recommend him for the ACNSE position at VAMC
Lyons. /4/
Further I conclude that ACNSE is a supervisory and/or managerial
position. All parties assumed this and the Program Guide sets forth
supervisory duties, including "Directs, counsels, and evaluates
performance of nursing instructors . . . "
The Alleged Statement by Brenner
Allan Stadtmauer an FLRA agent had set up appointments with Canete to
investigate an unfair labor practice charge on February 8th and 9th of
1984. On the 8th of February an entire day was taken up speaking to the
agent; around 4:00 p.m. Stadtmauer suggested that the parties explore
the possibilities of an informal settlement. Canete had spent the
entire duty day working in the unfair labor practice charge. Canete's
immediate supervisor on February 7, 8 and 9, 1984 was Dorothy Brenner,
Acting ACNSE. At 7:15 p.m. on February 9th Canete and Benson, a
steward, were still working on the settlement agreement. Canete went
into his office. Brenner, as Acting ACNSE asked Benson /5/ how long she
would be involved in the Union work. Brenner asked so she could fill
out time logs. After a while Canete heard Benson say in a loud tone of
voice, "Dorothy, you are harassing me." Canete on hearing this (he was
next door to Benson's office) told Brenner in a tone of voice loud
enough for her to hear, that management had given him and Benson time
and that Brenner was harassing them. Brenner then left her office and
came into Canete's office and told him, "Mr. Canete, if you had been at
St. Clarie's Hospital /6/ you can be fired with your union activities."
Canete said he was shocked by what was said and that he had a settlement
agreement in his hand. Brenner then turned around and returned to her
office. Brenner had had to teach Canete's classes on the 8th and 9th of
February and she had previously related to him that she did not like the
idea of having to take these courses because Canete was engaging in
Union activities.
Brenner and Canete had worked together for several years as
instructors. Also Brenner was a member of the Union and Chief Steward.
Subsequently she resigned from the Union.
The Alleged Unilateral Change in Working Conditions
On March 18, 1983 Canete sent Daniels a memo requesting negotiations
concerning the detailing of all nursing education instructors to staff
nursing positions. Contemporaneous with this proposed change the
current ACNSE requested a transfer to another position at another
hospital. In order to fill the position being vacated management
detailed a unit employee, Nursing Instructor Long, to be, effective
March 25, 1983, Acting ACNSE for an indefinite period. The Union
objected to the Long assignment. On April 1, 1983 representatives of
the Union and VAMC Lyons management officials met and negotiated
concerning the detailing of instructors to staff nursing positions.
Part of this meeting was devoted to a discussion of the procedure to be
used in temporarily filling the ACNSE vacancy. On April 1, 1983,
subsequent to the meeting, the Union sent an agreement to the Medical
Center Director which contained that to which the Union thought the
parties had agreed. Management refused to sign the agreement.
Subsequent to the union's written version of the agreement being
prepared, VAMC Lyons management prepared its own document purporting to
be the minutes that the parties had agreed to. This document was
received by the Union on April 1st, the same day as its version of the
agreement was submitted. Management's minutes, regarding paragraph 4,
/7/ is the substantially same as paragraph 5 /8/ of the Union's version
of the agreement. None of the parties objected to the minutes as
written and all stated the minutes reflected what was agreed upon.
Subsequent to the agreement of the parties on April 1st, management
began rotating instructors through the Acting ACNSE position. On
November 23, 1983 management unilaterally altered the procedure it was
following and detailed Brenner indefinitely to fill the Acting ACNSE
position. This change was made because management felt the rotation
system had faults and was not very effective. The Union subsequently
met with management, soon afterwards, to protest the decision to stop
the rotating details but met with no success. Management subsequently
wrote a memo on December 27, 1983 explaining that the decision to
terminate the rotation of nursing education personnel was made by the
Chief of Staff but that it had the support of the Medical Center
Director. The Union protested management's position by letter on
January 5, 1984.
The impact on employees of management's decision to end the rotation
of nurses through the Acting ACNSE position were severalfold. First the
indefinite detail of Brenner into the position on November 27, 1983
changed the level of supervision which prepared employee proficiency
reports. During the rotation period this was done by the Chief Nurse, a
second level supervisor; after the rotation ended, the rating official
became once more the Acting ACNSE, the immediate supervisor. Another
impact of the indefinite detail of Brenner was that during the period of
the detail the employees and Union lost the benefit of the services of
Brenner, the Union's chief steward, who had been, up to that point, very
active. Also employees who had been given an opportunity on a rotating
basis to be Acting ACNSE now lost that opportunity and with it the
chance to acquire experience which would be helpful in promotions.
Discussion and Conclusions of Law
General Counsel of the FLRA alleges that the Key Committee failed to
recommend Canete for selection for the ACNSE position because Canete had
engaged in protected activity on behalf of AFGE Local 1012 and that by
so doing VA violated Section 7116(a)(1) and (2) of the Statute. The
FLRA has held that, in order to establish this type violation of Section
7116(a)(1) and (2) of the Statute, the General Counsel of the FLRA had
the burden of establishing that the alleged discriminatee had engaged in
protected activity, that Respondent had knowledge of such activity and
that Respondent took the alleged discriminatory action because of its
union animus. Cf. Internal Revenue Service, 6 FLRA 96 (1981); United
States Forces/Eighth United States Army, 11 FLRA 434 (1983) and
Department of Transportation, Federal Aviation Administration, Boston
Air Route Traffic Control Center, Nashua, New Hampshire, 11 FLRA 318
(1983).
In the subject case it is well established that Canete was an
official of AFGE Local 1012 and was very active on its behalf. He
processed grievances, and negotiated contract terms on behalf of AFGE
Local 1012. As a representative of AFGE Local 1012, Canete had dealings
with many officials of VAMC Lyons. Thus Canete's activities on behalf of
Local 1012 were apparently well known at VAMC Lyons. Further, because
de Weaver was that member of the Key Committee who communicated directly
with the officials of VAMC Lyons, it reasonable to infer that de Weaver
was aware of Canete's activities on behalf of AFGE Local 1012.
Thus, although a member of the Key Committee might have known about
Canete's union activity, I conclude that the Key Committee did not base
its determination to refuse to recommend Canete for the ACNSE position
upon Canete's union activity. I have credited the testimony of the
members of Key Committee that Canete's Union activity was not discussed
or mentioned during its consideration and that a number of the members
of the Key Committee did not know of Canete's Union activity. Further
the record fails to establish union animus on the part of the Key
Committee or the VA management. Thus, although Canete seemed a
qualified candidate for a ACNSE position, I conclude the surrounding
circumstances, as established in the record, are insufficient to justify
an inference that the Key Committee's decision was based on Canete's
Union activity and are insufficient to justify discrediting the
testimony of the Key Committee members that Canete's Union activity was
not a consideration in the Committee determination.
Accordingly, I conclude that Respondent did not violate Section
7116(a)(1) and (2) of the Statute when its Key Committee did not
recommend Canete for the ACNSE position.
With respect to Brenner's statement the FLRA has held that a
supervisor's statement violates Section 7116(a)(1) of the Statute when
it reasonably tends to coerce or intimidate employees in the exercise of
protected rights and that an objective test is applies. Federal
Mediation and Conciliation Service, 9 FLRA 199 (1982). In the subject
case I conclude that Brenner's statement to Canete would not have tended
to coerce or intimidate a reasonable employee. Thus although Brenner
was an acting supervisor, she was also a longtime Union member and chief
steward. Further she was a fellow instructor who shared an office with
Benson and had been a fellow employee with Canete for five (5) years and
she and Canete talked together on a daily basis. Most important
however, was Brenner's statement was not in any way a threat and could
not reasonably be taken as one. Brenner stated that if Canete had been
at St. Claire hospital, a private hospital, he could be fired for his
union activity. This could not be reasonably construed or interpreted
as a threat. It was clear to all that Canete did not work for St.
Claire Hospital and that therefore he was safe from being fired. I need
not decide whether Brenner's interpretation of the law in the private
sector, is correct, it was merely a statement by her of her opinion of
what the situation was in the private sector. It could not be
interpreted as a threat, directly or indirectly, that somehow an
employee of the VA was subject to discharge for union activity. In fact
the exact opposite inference, that a VA employee could not be discharged
for union activity, might reasonably be drawn. Federal Mediation and
Conciliation Service, supra.
The FLRA has stated, "It is well established that a proposal
concerning the filling of supervisory positions, including temporary
appointments, is negotiable only at the election of the agency since it
does not concern a condition of employment of bargaining unit employees
. . . " National Labor Realations Board and National Labor Relations
Board Union, Local 21, 15 FLRA 798 (1984) (hereinafter called the NLRB
case). Therefore, I am constrained to conclude that filling of the
ACNSE position, on a temporary basis, "does not concern a condition of
employment of bargaining unit employees," NLRB case, supra at 798, and
that although Respondent was not obliged to bargain concern filling the
ACNSE position, it could voluntarily do so. In the instant case,
whether it breached its contractual term or not, Respondent did
unilaterally change the method in which filled the Acting ACNSE position
by changing from a one month rotation basis to a permanent acting basis.
However, because the filling the ACNSE position, on acting basis, does
not involve a condition of employment, changing such a matter does not
involve changing a term of employment. Accordingly, I must, conclude
that Respondent did not unilaterally change a condition of employment,
when it changed its method for filling the acting ACNSE position. Thus
although the FLRA held management can elect to negotiate about such a
noncondition of employment, such negotiation does not and cannot convert
a noncondition of employment to a condition of employment. /9/
Presumably all negotiating does is, perhaps, provide the union with some
action to enforce the contractual obligations, e.g., through grievance
procedures, etc.
I must conclude therefore that Respondent did not violate Section
7116(a)(1) and (5) of the Statute when it changed its method of filling
the Acting ACNSE position. See NLRB Case, supra; Nuclear Regulatory
Commission, 17 FLRA No. 132 (1985) and United States Department of
Treasury, U.S. Customs Service, 18 FLRA No. 1(1985).
General Counsel of the FLRA urges, further that Respondent violated
Section 7116(a)(1) and (5) of the Statute because it changed the method
of assignment of the employees into the Acting ACNSE position without
first affording the Union an opportunity to bargain over the impact and
implementation of the change. Because, as discussed above, the filling
of the Acting ACNSE position did not involve a condition of employment,
no obligation to bargain over the impact and implementation of the
change as created by Section 7106 of the Statute. However, where an
agency makes a purely managerial decision that has a reasonably direct
adverse impact on employees and upon their conditions of employment, the
agency is required by the Statute, to notify and bargain with the union
concerning the adverse effects of such change upon employees. This
would be in keeping with the statutory scheme of granting federal
employees meaningful collective bargaining. It is a recognition that
although management has the right to make purely managerial decisions
free from any obligation to bargain with union concerning such
decisions, where such decisions would have a direct adverse impact on
employees, management does have an obligation to bargain with the union
representing the employees to minimize the adverse affect of the
decisions upon the employees. Cf. NLRB v. Gray-Grimes Tool Co., 96 LRRM
2212 (3rd Cir. 1977); NLRB v. Adams Dairy, Inc., 350 F.2d 108 (8th Cir.
1965).
In the subject case the decision to change the system of rotating
instructors into the Acting ACNSE position had a direct and substantial
adverse effect on unit employees. Instructors no longer had an equal
opportunity to have the experience and to learn the skills useful for
promotion and those instructors not given the acting supervisory
position had to perform certain of the tasks and duties of those who
were given the opportunity to act as a supervisor.
Accordingly I conclude that Respondent's failure to bargain with the
Union about the adverse effect upon employees of its decision to change
the method of appointing Acting ACNSE position violated Section
7116(a)(5) and (1) of the Statute.
Having concluded that Respondent did not violate the Statute with
respect to the Key Committee's failure to recommend Canete for the ACNSE
position, the statement by Brenner to Canete, and the failure to bargain
about the change in the method of appointing employees to the Acting
ACNSE position; but that Respondent did violate Section 7116(a)(5) and
(1) of the Statute by failing to bargain with the Union about the
adverse effect upon employees of its decision to change the method of
filing the Acting ACNSE position, I recommend that the Authority issue
the following:
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, the
Authority hereby Orders the Veterans Administration and Veterans
Administration Medical Center, Lyons, New Jersey, shall:
1. Cease and desist from:
(a) Refusing to bargain with American Federation of Government
Employees, AFL-CIO, concerning the adverse effect of changes in
the method of appointing an acting Associate Chief of Nursing
Service for Education or any other change that has a direct and
adverse effect upon employees.
(b) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request bargain in good faith with American Federation
of Government Employees, AFL-CIO, concerning the adverse effect of
the changes in the method of appointing an acting Associate Chief
of Nursing Service for Education or any other change that has a
direct and adverse effect upon employees.
(b) Post at Veterans Administration Medical Center, Lyons, New
Jersey, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by a responsible official and shall be
posted by him for 60 consecutive days in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The official shall take
reasonable steps to insure that such notices are not altered,
defaced or covered by any other material.
(c) Pursuant to 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, 26 Federal
Plaza, Room 2237, New York, New York 10278, in writing within 30
days from the date of this Order as to what steps have been taken
to comply herewith.
/s/ Samuel A. Chaitovitz
Administrative Law Judge
Dated: August 21, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) In view of the above, we find it unnecessary to pass upon the
Judge's statement pertaining to the enforcement of a contractual
obligation.
(1) De Weaver was the member of the Committee assigned to work with
the nursing services in the mid-Atlantic area and as such she had the
most knowledge concerning Canete's qualifications and the situation at
VAMC Lyons.
(2) It should be noted that the reference in his 1982-83 proficiency
report to his having been involved in activities which extended beyond
his nursing education function, is apparently a reference to a
counseling memo concerning Canete's unexcused absences from work due to
his activities as a union steward. The counseling memo was not in
Canete's personnel folder at the time he was considered by the Key
Committee.
(3) De Weaver did not testify.
(4) Thus, although when appropriate, surrounding circumstances might
be sufficient to discredit such witnesses and to infer that Canete was
refused the recommendation because of his Union activities, I conclude
these Key Committee members were very credible witnesses and the
surrounding circumstances not sufficient to justify discrediting them.
(5) Brenner and Benson shared an office.
(6) A private hospital.
(7) Paragraph 4 of the minutes provides: "Except for Ms. Sagl and
Mrs. Washington, Instructors will rotate through the Acting ACNSE
position for one month."
(8) Paragraph 5 of the Union version provides: "Acting ACNSE will be
rotated through instructors for one month each (except Ms. Sagl and Ms.
Washington)."
(9) In reaching its conclusion in the NLRB Case, supra, I note that
the FLRA based its finding on the conclusion that the filling of a
supervisory position is not a "condition of employment", it did not base
its finding on Section 7106 of the Statute, which basically exempts
certain conditions of employment from bargaining because of management
rights considerations. Section 7106 provides, however, an obligation to
bargain about the impact and implementation of changes in such
"management rights" conditions of employment. Thus the FLRA's
conclusion in the NLRB Case, supra, that management could voluntarily
negotiate about the filing of supervisory positions, was not pursuant to
Section 7106 because it did not involve one of the "management rights"
conditions of employment.
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to bargain with American Federation of Government
Employees, AFL-CIO, concerning the adverse effect of changes in the
method of appointing an acting Associate Chief of Nursing Service for
Education or any other change that has a direct and adverse effect upon
employees.
WE WILL NOT in any like or related manner, interfering with,
restraining or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
WE WILL upon request bargain in good faith with American Federation
of Government Employees, AFL-CIO, concerning the adverse effect of the
changes in the method of appointing an acting Associate Chief of Nursing
Service for Education or any other change that has a direct and adverse
effect upon employees.
(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 of the Federal Labor Relations Authority, Region II,
whose address is: 26 Federal Plaza, Room 2237, New York, New York 10278
and whose telephone number is: (212) 264-4934.