[ v51 p896 ]
51:0896(74)CA
The decision of the Authority follows:
51 FLRA No. 74
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
DEPARTMENT OF VETERANS AFFAIRS
VETERANS AFFAIRS MEDICAL CENTER
WASHINGTON, D.C.
(Activity/Respondent)
And
DISTRICT OF COLUMBIA NURSES ASSOCIATION
(Union/Charging Party)
WA-CA-30584
_____
ORDER REMANDING CASE
February 28, 1996
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel.
The complaint alleges that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) when a supervisor told an employee that she would not recommend the employee for an incentive award because the employee had previously sought Union assistance. The complaint also alleges that the Respondent violated section 7116(a)(1) and (2) of the Statute when the employee did not receive an incentive award.
No exceptions were filed to the Judge's finding that the Respondent violated section 7116(a)(1) of the Statute.(1) The General Counsel excepts to the Judge's dismissal of the complaint insofar as it alleges the Respondent violated section 7116(a)(1) and (2) when the employee did not receive the incentive award. The Respondent filed an opposition to the General Counsel's exceptions.
For the following reasons, we find that the portion of the complaint alleging a violation of section 7116(a)(1) and (2) of the Statute based on the employee's failure to receive an incentive award must be remanded to the Judge for further proceedings consistent with this decision.
II. Judge's Decision
The facts, which are fully set forth in the Judge's decision, are briefly summarized here.
Barbara Shackleford, a nurse hired under title 38 of the U.S. Code, was told by her immediate supervisor that she would receive an incentive award if she undertook certain training responsibilities. Subsequently, Shackleford was issued a letter of counseling in an unrelated matter. Shackleford sought Union assistance in challenging the letter and her supervisor was aware that Shackleford had sought such assistance. "When Shackleford later asked whether she would receive an incentive award, [the supervisor] replied that there was 'no way I can write you an incentive step because you talk too much. You went outside.'" Judge's Decision at 7-8. Shackleford was not recommended for, and did not receive, an incentive award.
At the hearing, the Respondent introduced a letter from the Acting Under Secretary for Health addressing the allegations in the complaint. As relevant here, the Acting Under Secretary determined, under authority delegated by the Secretary of Veterans Affairs, that 38 U.S.C. § 7422(b) does not affect the Authority's jurisdiction to resolve the allegation in the complaint concerning the supervisor's statement.(2) However, the Acting Under Secretary determined that the other allegation--"concerning an employee's failure to receive a special advancement for performance"--is not subject to review because it involved professional conduct or competence within the meaning of section 7422(b). Letter at 1.
The Judge sustained the allegation in the complaint concerning the supervisor's statement to Shackleford. He determined that the supervisor's "statement implie[d] that things would have gone smoother for Shackleford if she had kept the matter of the . . . incident within the Respondent instead of going 'outside' to the Union and others." Judge's Decision at 8. The Judge concluded that the supervisor's statements "were coercive and constituted interference with the protected right of a bargaining unit employee in violation of section 7116(a)(1), as alleged." Id.
However, the Judge determined, based on the Acting Under Secretary's letter, that the allegation concerning the employee's failure to receive an incentive award could not be sustained. The Judge found that the allegation did not "involve discrimination with respect to a 'condition of employment' as the matters specifically exempted from collective bargaining by [section] 7422(b) are not properly considered to be 'conditions of employment' as defined in the Statute."(3) Id. at 7. Accordingly, he dismissed the complaint as it pertained to the employee's failure to receive an incentive award.
III. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel excepts to "the ALJ's receipt into evidence and consideration of . . . the determination of the Acting Under Secretary for Health, pursuant to 38 U.S.C. section 7422(d)[.]" Exceptions at 3. The General Counsel also excepts to the Judge's failure to find that the supervisor's conduct in failing to recommend Shackleford for an incentive award violated section 7116(a)(2) of the Statute. The General Counsel argues that the complaint is sufficiently broad and clear to encompass this violation, and that the Judge erred in deciding only whether Shackleford's failure to receive the award violated the Statute. The General Counsel asserts that the Authority has "consistently held that where both parties understood the subject of the dispute and, at hearing, presented evidence and witnesses relevant to the issue of the dispute, a mere ambiguity in the language of the complaint does not remove the issue from being encompassed by the complaint." Id. at 5-6.
B. Respondent's Opposition
The Respondent argues that receipt into evidence of the Acting Under Secretary's letter "was properly accomplished . . . ." Opposition at 3. The Respondent also argues that the Acting Under Secretary's letter "takes the discrimination issue of 5 U.S.C. [s]ection 7116(a)(2) out of the jurisdiction of the Authority[,]" and, therefore, "the Authority may not adjudicate a discrimination issue over such award." Id. at 5.
IV. Analysis and Conclusions
A. The Judge Did Not Err in Admitting Into Evidence the Acting Under Secretary's Letter
Although the General Counsel objects to the Judge's receipt and consideration of the letter from the Acting Under Secretary for Health, his brief contains no statement of the grounds for this exception and no arguments supporting it. Accordingly, the General Counsel has not demonstrated that the Judge erred, and we deny the exception. See United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office and American Federation of Government Employees, Local 1210, 34 FLRA 1035, 1039 (1990).
B. The Alleged Section 7116(a)(2) Violation Is Remanded for Further Proceedings
The complaint states that the section 7116(a)(2) violation occurred when Shackleford "did not receive the incentive award promised to her by [her supervisor] in November 1991." Complaint at 2, paragraph 13. This allegation does not clearly encompass a failure of the employee's supervisor to recommend her for an incentive award, which is the first step necessary for an employee's receipt of such award. In this case, Shackleford was not recommended for an incentive award by her supervisor. As a result, Shackleford had no opportunity to be considered by the peer review board that confers such awards.
In U.S. Department of Labor, Washington, D.C. and National Council of Field Labor Locals, American Federation of Government Employees, (AFL-CIO), 51 FLRA 462, 467 (1995) (DOL), the Authority adopted and applied private sector precedent whereby a violation not contained in a complaint may be found "'if all issues surrounding the violation have been litigated fully and fairly.'" Id. (quoting National Labor Relations Board v. Coca Cola Bottling Company of Buffalo, Inc., 811 F.2d 82, 87 (2d Cir. 1987)). The test is one of "'fairness'" under the circumstances of each case, that is, whether the respondent knew what conduct was at issue and had "'a fair opportunity'" to present a defense. DOL, 51 FLRA at 467 (quoting Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1074 (1st Cir. 1981)).
In this case, Counsel for the General Counsel stated in his opening statement that the supervisor's "failure to recommend . . . Shackleford for a step incentive award was in reprisal for a protected activity in seeking representation" from the Union. Tr. at 10. He also stated that, as part of the remedy, the supervisor should be directed to recommend the employee "retroactively for a step incentive award . . . ." Id. These statements may reasonably be interpreted as putting the Respondent on notice of this argument by the General Counsel. Counsel for the Respondent responded, in her opening statement, that the reason the supervisor did not recommend Shackleford for an incentive award "was not because of Ms. Shackleford's Union involvement but because Ms. Shackleford failed to provide training . . . to sufficient operating room staff." Tr. at 11. Respondent's Counsel also attempted to establish, through the supervisor's testimony, that the supervisor did not recommend Shackleford for the incentive award because she had not provided sufficient staff training, rather than as a result of Shackleford's seeking Union assistance. In these circumstances, we find that the Respondent had notice and fully litigated the issue concerning whether the supervisor's failure to recommend Shackleford for an incentive award violated section 7116(a)(2) of the Statute.
The Judge did not resolve whether the supervisor's failure to recommend the employee for an incentive award violated the Statute. Moreover, for the following reasons, the record is insufficient for the Authority to resolve that issue.
It is not clear what position the Acting Under Secretary has taken concerning the supervisor's failure to recommend Shackleford for an award, since his letter does not directly address this point. Instead, it addresses only: (1) the employee's failure to receive an award, and (2) the alleged statements by the supervisor. As the Acting Under Secretary has concluded that statements regarding the reasons the supervisor decided not to recommend Shackleford are not removed from the Authority's jurisdiction, it is not clear that, or on what ground, he would conclude that the supervisor's actions based on those reasons would be removed. As the Acting Under Secretary's letter is unclear, we are unable to determine whether, or to what extent, an issue remains concerning the effect of 38 U.S.C. § 7422(b) on whether the failure to recommend Shackleford for an award violated the Statute. Therefore, the Judge should take the appropriate steps to clarify the Respondent's position on this matter.
In addition, the Judge specifically declined to make a credibility determination "with respect to the conflicting testimony concerning whether Shackleford competently trained other nurses" to operate a particular item of medical equipment. Judge's Decision at 7 n.4. Such determination may be necessary for the Judge to resolve whether the supervisor's decision not to recommend Shackleford for an award violated the Statute.
Finally, on remand, we direct the Judge's and the parties' attention to two Authority decisions that issued after the Judge's decision in this case and relate to matters raised in that decision: International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 681-85 (1995) (BEP), petition for review filed sub nom. U.S. Department of the Treasury, Bureau of Engraving and Printing v. FLRA, No. 95-1499 (D.C. Cir. Sept. 28, 1995); and Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia and American Federation of Government Employees, Local 2328, AFL-CIO, 51 FLRA 84, 87-88 (1995) (VA, Hampton). In BEP, the Authority clarified the approach to determining whether a matter is specifically provided for by Federal statute. In VA, Hampton, the Authority examined the relationship between the Statute and 38 U.S.C. § 7422.
V. Order
Pursuant to section 2423.29 of the Federal Labor Relation Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of Veterans Affairs, Veterans Affairs Medical Center, Washington, D.C., shall:
1. Cease and desist from:
(a) Making statements to employees which interfere with, restrain, or coerce them in the exercise of their rights under the Federal Service Labor-Management Relations Statute.
(b) In any like or related manner interfering with, restraining, or coercing its 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 Federal Service Labor-Management Relations Statute:
(a) Post at its facilities 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 the director, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director of the Washington Regional Office, Federal Labor Relations Authority, 1255 22nd Street, NW, 4th Floor, Washington, D.C. 20037-1206, in writing, within 30 days from the date of this Order as to what steps have been take to comply herewith.
The part of the complaint alleging that the Respondent violated section 7116(a)(1) and (2) of the Statute is remanded to the Judge for action consistent with this Decision.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT make statements to employees which interfere with, restrain, or coerce them in the exercise of their rights under the Federal Service Labor-Management Relations Statute.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
______________________________
(Activity)
Date: _____________ By: ______________________________
(Signature) (Title)
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 Washington Regional Office, Federal Labor Relations Authority, 1255 22nd Street, NW, 4th Floor, Washington, D.C. 20037-1206, and whose telephone number is: (202) 653-8500.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER, WASHINGTON, D.C. Respondent |
|
| and
DISTRICT OF COLUMBIA NURSES' ASSOCIATION Charging Party/ Union |
|
Dianne N. Parlow
Counsel for the Respondent
Susan E. Scheider
Counsel for the Charging Party
Christopher M. Feldenzer
Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
I. Statement of the Case
The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (2). The complaint alleges that Respondent violated section 7116(a)(1) when a supervisor advised an employee that because the employee had gone to the Union for assistance the supervisor would not recommend the employee for an incentive award as promised. The complaint alleges that Respondent violated section 7116(a)(1) and (2) because the employee did not receive the promised award.
Respondent's answer denied any violation of the Statute.
A hearing was held in Washington, D.C. The Respondent, Union, and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The parties filed helpful briefs. Based on the entire record,(1) including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.
II. Findings of Fact
The Union is the certified exclusive representative of an appropriate unit of employees, professional nurses, at Respondent.
Barbara Shackleford is an employee of Respondent, hired pursuant to Title 38 of the United States Code, and has been an operating room staff nurse at Respondent since 1983. Her immediate supervisor is Marie Riggins, Operating Room Head Nurse. Shackleford's second-level supervisor is Geri Feaster, Assistant Chief of Clinical Practice for Surgical Services. The Chief of Nursing is Sue Hudec.
In November 1991, Shackleford received her annual performance rating from Marie Riggins. The overall rating was "highly satisfactory." While discussing the performance rating Head Nurse Riggins told Shackleford that if she would assume certain responsibilities for training staff nurses and documenting such training, Riggins would reward her with an incentive step award. Specifically, Riggins wanted Shackleford to provide training for operating room nurses in the "Cell Saver" apparatus, a device that collects and filters blood products from a patient during surgery for return to the patient.
Shackleford testified that Riggins never mentioned a particular number of nurses to be trained. Riggins testified that they agreed that six nurses would have to be trained to independently operate the device.
On May 24, 1992, Shackleford and Riggins were working together in connection with a Saturday morning operation. While discussing Shackleford's training, Riggins told Shackleford that she was "doing a good job" and that she still intended to put her in for a "step" award.
On June 5, 1992, Shackleford was involved in a disagreement with another nurse over the professional care of a patient. Part of the disagreement took place in front of the patient. As a result, Shackleford received a letter of counseling. Riggins advised Shackleford that her conduct could be viewed as patient abuse and, if the patient complained, would be dealt with accordingly.
Shackleford felt she had acted professionally under the circumstances and advised Riggins, upon receipt of the letter of counseling, that she was "going to the Union about it."(2)
Shackleford met with the Union representative at Respondent, Mary Gaines, and an attorney for the Union, Sue Scheider, and a July 8, 1992 memorandum was prepared for Shackleford rebutting Riggins' letter of counseling. It was delivered by Shackleford to the Chief of Personnel as well as Hudec, Feaster, and Riggins. Riggins, upon receiving her hand-delivered copy, shoved the memorandum back into Shackleford's hands and told her she could not accept it.
Shackleford also sought the assistance of Congresswoman Connie Morella's office in July 1992 concerning the letter of counseling. Respondent had to respond to the Congresswoman's inquiry concerning the matter. Geri Feaster was involved in preparing the response.
On August 12, 1992, Shackleford was informed that Geri Feaster wanted to see her. When Shackleford telephoned Feaster and stated she would have a Union representative with her and to let her know what time, Feaster said, "Well, that's o.k." and abruptly ended the conversation.
On August 18, 1992, Shackleford was advised that Sue Hudec, Chief of Nursing, wanted to see her right away. Shackleford telephoned Hudec and inquired whether some arrangement could not be made in order for Union representative Mary Gaines to be present. Hudec was immediately hostile to this suggestion and screamed at Shackleford that she didn't need a Union representative, it was not a disciplinary action, and she would not meet with her.
In late November 1992, Shackleford received her annual performance appraisal from Head Nurse Riggins and reviewed the appraisal in her presence. Shackleford received an overall rating of "highly satisfactory." The appraisal mentioned, in part, that Shackleford had taught "two nursing staff to operate the Cell Saver" and should teach more staff to operate the Cell Saver if needed in 1993. The appraisal also included the following comment by the approving official, Geri Feaster:
[D]uring this rating period there was a practice issue in which Mrs. Shackleford had a difference in perception and much effort was expended to clarify these perceptions with documentation of the situation and to clarify expected behavior and to bring a closing to the incident conflict.
Shackleford discussed these matters with Riggins and asserted that she had trained the nurses in the Cell Saver. When Shackleford asked whether she would receive the incentive award, Riggins replied that there was "no way I can write you an incentive step because you talk too much. You went outside." When Shackleford asked Riggins why shouldn't she go "outside," Riggins told her that Geri Feaster would have to "write it" and Shackleford should "Just let things die down."(3)
Riggins testified that she did not recommend Shackleford for any type of advancement because she needed to continue to work with the staff. According to Riggins, Shackleford only "proficiently trained three people" in the use of the Cell Saver.
Shackleford testified that she trained six or seven nurses to proficiency in the use of the Cell Saver during the period. Yvonne Moody, an operating room nurse, now retired, who was Respondent's in-service training coordinator in 1992, testified that she received training from Shackleford and had the opportunity to use the Cell Saver independently approximately 10-12 times during her last year. She also testified that four other operating room nurses, with whom Moody had regular and ongoing contact during the relevant time period, were capable of using the Cell Saver on their own during operations.
Head Nurse Riggins does not have independent authority to grant an incentive award, also called by Respondent a "special advancement for performance award." Her recommendation would go to Geri Feaster, Assistant Chief of Clinical Practice for Surgical Services, for concurrence and then to the Nurse Professional Standards Board for determination.
On February 16, 1994, John T. Farrar, M.D., Acting Under Secretary for Health, issued a letter to Mr. Timothy Williams, Respondent's Director, concerning the issues involved in this case. Dr. Farrar stated that, pursuant to the authority delegated to him by the Secretary, he determined that the issue raised in this unfair labor practice with respect to the employee's not receiving a special advancement for performance is outside the scope of bargaining under the Department of Veterans Affairs Labor Relations Improvement Act of 1991 because it concerns a matter or question arising out of professional competence and conduct which affects direct patient care, peer review, and compensation. Dr. Farrar added that the allegation that Head Nurse Riggins told Nurse Shackleford that she would not recommend Shackleford for a special advancement for performance because of Shackleford's outside activities (including the union contact) does not itself involve professional conduct or competence, peer review, or compensation and is not excluded.
III. Discussion and Conclusions
A. Alleged Violation of Section 7116(a)(1) and (2) for Failure to Receive Award
The complaint alleges in paragraph 13 that "Shackleford did not receive the incentive award promised to her by Riggins in November 1991." Paragraph 15 of the complaint alleges that "By the conduct described in paragraph 13, the Respondent committed an unfair labor practice in violation of 5 U.S.C. § 7116(a)(1) and (2)."
Section 7116(a)(2) provides that it shall be an unfair labor practice for an agency to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment.
Section 7103(a)(14) defines "conditions of employment," in relevant part, to mean "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters -- . . . (C) to the extent such matters are specifically provided by Federal statute[.]"
The authority of the Secretary of the Department of Veterans Affairs to prescribe by regulation the hours and conditions of employment of bargaining unit employees is subject to their right to engage in collective bargaining in accordance with chapter 71 of title 5. 38 U.S.C. § 7422(a). However, 38 U.S.C. § 7422(b) provides that "[s]uch collective bargaining . . . may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title." 38 U.S.C. § 7422(c) provides that "professional conduct or competence" means direct patient care or clinical competence.
An issue of whether a matter or question concerns or arises out of professional conduct or competence, peer review, or employee compensation "shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency." 38 U.S.C. § 7422(d). See Wisconsin Federation of Nurses and Health Professionals, Veterans Administration Staff Nurses Council, Local 5032 and U.S. Department of Veterans Affairs, Clement J. Zablocki Medical Center, Milwaukee, Wisconsin, 47 FLRA 910 (1993).
Based on section 7103(a)(14)(C) of the Statute and 38 U.S.C. § 7422, I conclude that where the Secretary has determined, as in this case, that the issue raised in this unfair labor practice with respect to the employee's not receiving a special advancement for performance is outside the scope of bargaining under the Department of Veterans Affairs Labor Relations Improvement Act of 1991, because it concerns a matter or question arising out of professional competence and conduct which affects direct patient care, peer review, and compensation, the Secretary's determination is not substantively reviewable in an unfair labor practice proceeding. Cf. Department of Veterans Affairs, Washington, D.C. and Department of Veterans Affairs Medical Center, Canandaigua, New York, 46 FLRA 805 (1992), petition for review dismissed sub nom. AFGE, Local 3306 v. FLRA and Department of Veterans Affairs, 2 F.3d 6 (2d Cir., 1993). Further, in light of this determination, the allegation in the complaint does not involve discrimination with respect to a "condition of employment" as the matters specifically exempted from collective bargaining by 38 U.S.C. § 7422(b) are not properly considered to be "conditions of employment" as defined in the Statute. Accordingly, the allegation in the complaint in this respect must be dismissed.(4)
B. Alleged Violation of Section 7116(a)(1) by Statement
Section 7102 of the Statute protects each employee in the exercise of the right to form, join, or assist a labor organization, or to refrain from any such activity, without fear of penalty or reprisal. Section 7116(a)(1) provides that it is an unfair labor practice for an agency to interfere with, restrain, or coerce any employee in the exercise by the employee of such right.
The Authority has held that the standard for determining whether management's statement or conduct violates section 7116(a)(1) of the Statute is an objective one. The question is whether, under the circumstances, the statement or conduct would tend to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement. Although the circumstances surrounding the making of the statement are taken into consideration, the standard is not based on the subjective perceptions of the employee or the intent of the employer. U.S. Department of Agriculture, U.S. Forest Service, Frenchburg Job Corps, Mariba, Kentucky, 49 FLRA 1020, 1034 (1994).
The record reflects that Nurse Shackleford sought and secured the assistance of the Union, in addition to her Congresswoman, in protesting a written counseling. Head Nurse Riggins was aware of her protected activity. When Shackleford later asked whether she would receive an incentive award, Riggins replied that there was "no way I can write you an incentive step because you talk too much. You went outside." When Shackleford asked Riggins why shouldn't she go "outside," Riggins told her that Geri Feaster would have to "write it" and Shackleford should "Just let things die down."
Riggins' statement implies that things would have gone smoother for Shackleford if she had kept the matter of the June 5 incident within the Respondent instead of going "outside" to the Union and others. The statement carries with it the additional implication that Shackleford should think twice about exercising her statutory right to seek the Union's assistance in the resolution of an employment problem. Riggins' statements were coercive and constituted interference with the protected right of a bargaining unit employee in violation of section 7116(a)(1), as alleged. See Navy Resale System Field Support Office Commissary Store Group, 5 FLRA 311 (1981).
Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that Department of Veterans Affairs, Veterans Affairs Medical Center,
Washington, D.C. shall:
1. Cease and desist from:
(a) Making statements to employees which interfere with, restrain, or coerce employees in the exercise of their rights to form, join, or assist any labor organization, including the right to seek the labor organization's assistance in the resolution of an employment problem, or to refrain from any such activity, freely and without fear of penalty or reprisal.
(b) In any like or related manner interfering with, restraining or coercing its 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 Federal Service Labor-Management Relations Statute:
(a) Post at its facilities 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 the Director, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, of the Washington Region, 1255 22nd Street, NW, 4th Floor, Washington, DC 20037-1206, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
3. The allegation that Respondent violated section 7116(a)(1) and (2) of the Statute because Nurse Shackleford did not receive an incentive award is dismissed.
Issued, Washington, DC, January 13, 1995
____________________________
GARVIN LEE OLIVER
Administrative
Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT make statements to employees which interfere with, restrain, or coerce employees in the exercise of their rights to form, join, or assist any labor organization, including the right to seek the labor organization's assistance in the resolution of an employment problem, or to refrain from any such activity, freely and without fear of penalty or reprisal.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
__________________________
(Activity)
Date:_____________ By:________________________
(Signature) (Title)
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 Washington Region, 1255 22nd Street, NW, 4th Floor, Washington, DC 20037-1206, and whose telephone number is: (202) 653-8500.
Authority's Footnotes Follow:
1. We will issue an appropriate Order with respect to this matter, and not address it further except as necessary to resolve the exceptions.
2. Under 38 U.S.C. § 7422(b), collective bargaining and the negotiated grievance procedures for employees of the Veterans Health Administration of the Department of Veterans Affairs listed in 38 U.S.C. § 7421(b), including registered nurses, may not involve matters or questions "concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title." Section 7422(d) provides:
An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency.
3. The Judge relied on section 7103(a)(14)(C) of the Statute, which excepts those matters "specifically provided for by Federal statute" from the definition of "'conditions of employment[.]'"
ALJ's Footnotes Follow:
1. Counsel for the General Counsel moved to strike attachments A and B to Respondent's brief. The motion to strike attachment A, Respondent's letter to the Regional Attorney concerning the pre-complaint investigation, is granted. It is also granted with respect to the "Decision Paper" in attachment B. However, the motion is denied with respect to the determination of the Acting Under Secretary for Health, pursuant to 38 U.S.C. § 7422(d), dated February 16, 1994, in attachment B. This determination was discussed at the hearing in terms of jurisdiction or remedy. The ruling was that it could be submitted as part of the Respondent's brief. (Tr. 10-13). It will be considered infra. See also 5 C.F.R. § 2423.19(o) (official notice).
2. Head Nurse Riggins testified that Shackleford did not mention going to the Union over the issue. I credit Shackleford on this point. Riggins also initially claimed she was unaware that there was a union for professional nurses at Respondent. She later acknowledged that she had heard of the Union, or seen articles about its presence at Respondent, and had heard that Mary Gaines was the Union representative.
3. Head Nurse Riggins testified that she did not tell Shackleford that she would not be recommended for an incentive award because she had gone "outside." I credit Shackleford.
4. In view of this determination, no credibility resolution was made with respect to the conflicting testimony concerning whether Nurse Shackleford competently trained other nurses to operate the Cell Saver in direct patient care matters.