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DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER, DENVER, COLORAD0 Respondent |
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and Charging Party |
Case No. DE-CA-50140
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Stephen T. Patterson, Esq. For Respondent
Hazel E. Hanley, Esq. For the General Counsel of the FLRA
Emma Sneed, President Melvin Ingram, Jr., Vice President For Charging Party
Before: SAMUEL A. CHAITOVITZ Chief Administrative Law Judge
Statement of the Case
This case arose under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
§ 7101, et seq. (Statute), and the Rules and Regulations
of the Federal Labor relations Authority (FLRA or Authority), 5
C.F.R. § 2411, et seq.
Based upon an unfair labor practice charge, as amended, filed
by the American Federation of Government Employees, AFL-CIO (AFGE),
Local 2241 (AFGE Local 2241 or Union) against Department of
Veterans Affairs (VA), Medical Center, Denver, Colorado (VAMC), a
Complaint and Notice of Hearing was issued on behalf of the General
Counsel (GC) of the FLRA by the Regional Director for the Denver
Region of the FLRA. The complaint alleged that VAMC violated §§
7116(a)(1), (5) and (8) of the Statute by failing to notify AFGE
Local 2241 of two formal discussions with a member of the unit
represented by the Union and by failing to give the Union an
opportunity to be present at the meetings and by bypassing the
Union in attempting to settle a grievance. VAMC filed an answer
denying that it had violated the Statute.
A hearing in this matter was held in Denver, Colorado. All parties were represented and were afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Post hearing briefs were filed and have been carefully considered.
Based upon the entire record(1),
including my observation of the witnesses and their demeanor, I
make the following findings of fact, conclusions and
recommendations.
A. Background
AFGE is the exclusive collective bargaining representa-tive of
a nationwide unit of VA employees, including employees of VAMC.
AFGE Local 2241 is AFGE's agent for purposes of representing the
unit employees at VAMC. At all material times Emma Sneed has been a
unit employee and the president of AFGE Local 2241 and Mel Ingram
has been a unit employee and vice president of AFGE Local 2241.
At all material times, at VAMC, Thomas A. Trujillo has been the
Medical Center Director, Ada I. Neale has been the Assistant
Medical Director, Vernell Rhodes has been the Office of Equal
Employment Opportunity (EEO) Program Manager, and Toni Williams has
been Rhodes' EEO Program Assistant.
B. Mildred Wright and her duties in the Chaplain Service
Since November 1986 Mildred Wright has been employed by VAMC.
On about October 30, 1991, Wright began working in the VAMC
Chaplain Service as a secretary/stenographer GS-4.
When Wright joined the Chaplain Service Rev. Raymond Thomas was
Chief of the Chaplain Service, Wright's first-line supervisor, and
he held that position until about June 3, 1994. During his service
as Chief of the Chaplain Service, Thomas spent most of his time in
visitation or crisis counseling and less time in his office at the
Chaplain Service, located on the first floor of the VAMC's main
hospital building. On June 4, 1994 Rev. Daniel Adams became Acting
Chief of the Chaplain Service, and served in that capacity until
June 1995. When he assumed his duties as Acting Chief, Adams was
not a full time employee. He continued working 32 hours per week,
until December 1994, when he began working 40 hours per week.
Adams' administrative duties as Acting Chief amounted to about 1.4
hours per week.
When Wright began working in the Chaplain Service she was
classified as a secretary/stenographer, GS-4. In late 1993, Wright
asked Thomas about upgrading her position to the grade of GS-5.
Thomas requested Wright to write down a description of all of her
duties, after which he developed a position description for a
GS-318 secretary (typing), and he submitted it on December 15, 1993
to Herman Nunlee, Jr., Position Classification Specialist. On or
about January 20, 1994, Wright's new position description and GS-5
grade became effective. Thomas developed new performance standards
for Wright which replaced those attached to her prior performance
appraisal for the cycle April 1, 1993 to March 31, 1994, and these
new performance standards were attached to the performance
appraisal for the cycle April 1, 1994 to March 31, 1995, the time
period material to this case.
Neither Thomas nor Adams had any actual participation in
contract negotiations or development of contract proposals. They
did not participate in handling any grievances concerning
disciplinary or adverse actions, with the exception of the matters
related to their supervisee, Wright, in 1994. Neither Thomas nor
Adams participated in meetings with management and the AFGE Local
2241. They did not attend or participate in meetings at which labor
relations matters were discussed and deliberated. Thomas developed
a time schedule for the chaplains in Chaplain Service in order to
provide coverage on a seven-day basis to the VAMC. Adams attended
meetings of the Administrative Executive Board which formulated
policy; how-ever, he had no direct or personal involvement in
developing policies. Neither Thomas nor Adams participated in the
formulation or development of any VAMC labor relations policies.
During 1994, the time period material to this case, neither Chief
of the Chaplain Service had any responsibility in establishing,
interpreting, or implementing personnel or labor relations policies
for the VAMC.
Wright's daily routine involved a variety of tasks, many
clerical, designed to keep the Chaplain Service operating and
providing support services for the chaplains. Her tasks included
straightening up racks of printed material, preparing cards dealing
with the status of patients, cleaning the office, answering the
phone, etc. During all times material to this case, Wright never
received opened confidential correspondence. Confidential
information, such as SF-50 notices of salary increases, arrived at
the Chaplain Service in a sealed in-house envelope or stapled under
a pre-printed cover sheet with the left upper corner cut out to
reveal the name of the recipient printed on the underlying SF-50,
or with the recipient's name written below the words: "The Attached
Document Contains Confidential Information, Information is Not to
be Viewed by Any Person Other than the Addressee."
Wright and all persons employed in the Chaplain Service had
access to the unlocked file cabinet in the outer office where
personnel information, including most recent performance appraisals
were stored. Although Thomas and Adams were apparently responsible
for doing performance appraisals and giving awards to employees in
the Chaplain Service, neither included Wright in their
deliberations concerning performance appraisals or awards. Wright's
participation in the performance appraisal process amounted to
typing the cover sheet and filing the finalized appraisal for each
chaplain.
Neither Chief of the Chaplain Service included Wright in his
deliberations on recommending Chaplain Service employees for cash
awards, hiring decisions, special training decisions, or promotion
decisions. Wright did not recommend or order any training for the
chaplains; however, she reminded the Chiefs about mandatory
training such as health and safety.
Wright kept track of the chaplains' time and attendance, and
Thomas, and then Adams, would sign and certify the accuracy of
those records, with the exception of their own, which were
certified through the Assistant Medical Center Director, Ada Neale.
Wright made some travel arrangements for Thomas and for another
chaplain, Father Woerth, for their non-VAMC travel, to the extent
that she called travel agencies for low air fares; however, while
she may have filled out various forms for chaplains' travel, Wright
did not prepare travel vouchers.
C. The parking incident
On April 13, 1994, Wright discovered that the VAMC Security
Service had ticketed her car for a parking violation. Wright
believed she had been unfairly singled out by Chief Pugh and
Officer Gonzales, and she believed that the parking ticket was
further harassment. Wright asked Thomas to view her ticketed car
from a window in the Chaplain Service, and she stated that another
car had been parked in that area had not been ticketed. Wright then
went to the Security Office to complain about the ticket. She was
unable to resolve the dispute and she returned to the Chaplain
Service.
D. EEO case, discipline and grievance
After returning to the Chaplain Service, Wright contacted VAMC
EEO Manager Program Rhodes. Rhodes advised Wright that she should
first consult an EEO counselor, and Rhodes provided a list of such
EEO counselors. On about April 15, 1994, Wright contacted EEO
counselor LaMone Noles, and they arranged to meet concerning the
April 13 incident sometime between April 18 and April 25. On April
25, Noles provided Wright with a Notice of EEO Complaint Rights and
Responsibilities.
At about this same time Thomas was informed that Pugh,
Gonzales, and the VAMC Director's secretary Joan Funckas had made
Reports of Contact concerning Wright's business at the Security
Office, and Thomas was ordered to conduct a fact-finding inquiry
into the events. Accordingly, on April 28, 1994, Thomas sent Wright
a memorandum informing her of the fact-finding he had scheduled in
his office at 1:00 p.m. on May 2, 1994, and he advised her that she
was entitled to have a Union representative during his questions
concerning a traffic violation/disturbance incident on April 13,
1994.
Wright requested the representation of Emma Sneed, Union
President, for the May 2, 1994 fact-finding inquiry, and on that
date, Thomas conducted the inquiry in the presence of Wright and
Sneed. After conducting the fact-finding inquiry, Thomas issued a
report on May 11, 1994, with the help of the Office of Human
Resources, recommending a five-day suspension for Wright. On May
16, 1994, Thomas gave Wright a memorandum, proposing a five-day
suspension. Wright sought the assistance of AFGE Local 2241
concerning the proposed suspension, and on May 26, 1994, the Union,
on behalf of Wright, sent Center Director Trujillo a response to
the proposed five-day suspension, requesting that he reconsider
that decision.
On June 8, 1994, Ada Neale, VAMC Assistant Director, issued a
memorandum with the decision to suspend Wright for five days,
effective June 20 to June 24. On June 15, 1994, Sneed filed a third
step grievance with VAMC Director Trujillo, under Article 13 of the
Master Agreement on behalf of Wright, contending that the decision
failed to meet the "just cause" criteria required by arbitrators,
and requesting that Wright be made whole for the suspension,
scheduled to begin the following Monday, June 20, 1994.
Also on June 15, 1994, Noles met with Wright for the final
interview for her informal EEO complaint. On June 17, 1994, the
last work day before her suspension, Wright received from Noles a
memorandum, "Notice of Right to File a Discrimi-nation Complaint."
On June 20, 1994, Wright filled out a Veterans Affairs form,
"Complaint of Discrimination," alleging harassment from June 9,
1992 to the present; sexual harassment from June 9, 1992 to the
present; parking and handicapped discrimination also from June 9,
1992 to the present; and a suspension from June 20 to 24, 1994.
Wright indicated that Nora V. Kelly, an attorney, was her
representative.(2)
Wright raised the issue of her five-day suspension and her unit
status in her typed attachment related to corrective action on the
EEO complaint form, but she did not check an item on the form
indicating that she had filed a Union grievance for one of the
issues in her complaint. In addition, Wright did not inform Sneed
that she was including the five-day suspension - the subject of the
Union's June 15, 1994 grievance - in her formal EEO complaint.
Although Wright initially intended to file her formal EEO
complaint on the first day of her suspension, June 20, she decided
to wait until she returned to work. On her first day back, June 27,
1994, she prepared a memorandum designating Sneed to represent her
"in any and all revelant [sic] matters pertaining to the suspension
that was from June 20, 1994 through June 24, 1994" and "all matters
from April 13, 1994, until resolved." On June 30, 1994, at about
12:15 p.m., Wright delivered her formal EEO complaint to Rhodes,
who signed her receipt of that formal complaint.
In the meantime, on June 27, 1994, Rhodes contacted Wright to
inform her that she had not had counseling on the five-day
suspension, and Rhodes advised Wright to seek an EEO counselor for
counseling on such suspension. Wright contacted Noles for an
informal counseling on the June suspension.
After filing the June 15 grievance on behalf of Wright, Sneed
received correspondence from M.K. Huston, of VAMC Employee
Relations, to the effect that Wright was not included in the unit
represented by AFGE, Local 2241, and informing Sneed that Wright
was required to designate her choice of representative in writing.
Huston also requested Sneed to agree to extend the time limits for
the Director's response to the June 15 grievance, and on June 27,
1994, both Huston and Sneed agreed to extend that meeting and reply
until July 18, 1994, at 2:00 p.m.
On July 18, 1994, Wright again prepared a memo, designating
Sneed to represent her "on any and all issues of my employment at
this VAMC unless you are notified by me in writing of any changes."
On July 18, 1994, Sneed and Wright met with Trujillo and Charlotte
DeLuca from VAMC Human Resources. DeLuca took notes, and it was
she, apparently, who prepared a report, "Minutes From Formal
Grievance Meeting," dated July 18, 1994.
On July 21, 1994, Noles signed and dated a VA form, "EEO
Counselor's Report: Final Action," and noted that Sneed and Ingram
were assisting Wright in an administrative investi-gation and
proposed suspension arising from the incident with Chief Pugh and
Officer Gonzales.
On July 25, 1994, Trujillo sent a letter to Wright's attorney,
Kelly, to notify her that the VAMC was in receipt of Wright's June
30, 1994 formal EEO Complaint.
In early August 1994, Trujillo requested a meeting with Sneed
concerning Wright's third step grievance under Article 13, the
negotiated grievance procedure. In the meeting, Trujillo told Sneed
that he would reduce Wright's suspension to one day if the Union
dropped everything. Sneed agreed to convey that offer to Wright.
Wright refused this offer, and told Sneed that if she were to
accept any deal, she would be admitting guilt. Sneed agreed, and,
on behalf of the Union, Sneed refused Trujillo's offer and prepared
to elevate the grievance.
On August 10, 1994, Trujillo issued his decision, denying
Wright's grievance.
On August 19, 1994, Trujillo wrote to Kelly, notifying her of
the acceptance of Wright's formal EEO complaint filed on June 30,
1994. Trujillo listed Wright's allegations arising from the April
13 incident, but did not include the five-day suspension that
Wright had included as an issue in her formal EEO complaint
form.
Later in August, or in early September, Toni Williams, EEO
Program Assistant, telephoned Wright to ask for Kelly's telephone
number. Williams informed Wright that at 10:30 a.m. on September 19
she would have an appointment with an EEO investigator concerning
her June 30, 1994 formal EEO complaint.
On September 7, 1994, the Department of Veterans Affairs,
Office of Equal Opportunity, Washington, D.C., assigned Joseph C.
Baucom as the EEO Investigator for Case No. 94-2047, Wright's June
30, 1994 formal EEO complaint.
Baucom is a self-employed EEO investigator. He was hired and
assigned by the VA office in Washington, D.C. to investigate
Wright's EEO complaint. By a letter dated September 7, 1994, from
the VA in Washington, Baucom was notified of his assignment to
investigate Wright's EEO case. A copy of this letter was sent to
Wright. VAMC then contracted for Baucom's services by means of a
purchase order and VAMC issued Baucom's travel orders. Baucom
considers himself a neutral party whose task is to gather the facts
on both sides of the EEO dispute. He operates under the guidance of
29 C.F.R. Part 16-14 and EEO Management Directive 110, both issued
by the Equal Employment Opportunities Commission.
On about September 8, 1994, Baucom telephoned Wright at work
regarding the EEO investigation. Wright told Baucom she could not
afford the expense of an attorney during the investigation, as she
was using Kelly's services for other matters. Baucom told Wright
she did not need Kelly for the investigation. Baucom explained that
he would need Wright's written waiver of Kelly as Wright's
representative. When Baucom learned that Kelly would not be
representing Wright during the EEO investigation, Baucom informed
Wright that he was tape recording their conversation for an
affidavit. Baucom then spent about two hours questioning Wright
about the case, and he administered the oath. Within an hour of
that telephone conversation, Baucom telephoned the Chaplain
Service, and Father Woerth, a chaplain, took the call, and turned
the receiver over to Wright who was in his office. Baucom told
Wright that the tape recording had failed, and he would have to
prepare her affidavit when he was on site during the week of
September 12.
On September 8, 1994, Wright prepared a typed memorandum to
Trujillo, originally stating: "I here by [sic] inform you that I no
longer need the service of Nora V. Kelly (Attorney At Law) in this
EEO matter mention [sic] above." On the same day, September 8,
Wright brought the waiver memorandum to Williams in the EEO office.
The EEO office was not at Wright's work station.
The following Monday, September 12, 1994, Wright, knowing
Baucom was due on site, went over to the EEO office to introduce
herself. Baucom had the September 8 waiver memo in her file. Baucom
told Wright that he wanted her to change the form, and, among the
changes he made to that memo, he wrote, in his own handwriting, the
following: "During the investigation stage of my EEO complaint, I
authorize Mr. J.C. Baucom to procede [sic] with [sic] without a
representative[.] I make this decion [sic] at [sic] my own free
will. But I reserve the right to representation at a later date if
necessary." Wright took the September 8 waiver memo, with the
written comments, and she returned to her office to make the
changes Baucom requested.
In the changed waiver, dated September 12, Wright did not
change the original September 8 sentence concerning Kelly. Wright
added: "I authorize Mr. Joe Baucom to proceed without her; however
I am requesting that Emma Sneed (President of AFGE # 2241) be
present." After the sentence about the Union president, Wright
typed the remainder of Baucom's revisions to the September 8
waiver. After typing the revision on September 12, Wright delivered
the memo to the EEO office, where it was date stamped at 3:59 p.m.,
and Wright brought it to Baucom.
Baucom invited Wright into his office at the EEO office and he
then read the September 12 waiver. Baucom crossed out the sentence
about Sneed, and he wrote: "I hereby amend the memo dated 9/12/94,
pertaining to representative to delete that portion pertaining to
Emma Sneed to read as stated below." Wright returned to her office
and made the changes Baucom requested, changing the date to
September 13.
At the September 12 meeting, Baucom then told Wright that he
had a settlement agreement that he wanted her to review, and he
handed her a one page document. Baucom had already drafted a
settlement agreement. Wright did not expect the settlement
agreement because she believed her appointment with Baucom was not
until September 19. Wright reviewed the settlement agreement and
found it did not address all the corrective actions she had
requested in her formal EEO complaint. Wright noted that Baucom's
settlement agreement was different from an earlier settlement she
had received in an earlier EEO matter. This settlement agreement
was not in the standard VAMC EEO format. Wright did not think the
settlement agreement was final because its form and content was
unlike her earlier settlement agreement, and because she believed
she still had an appointment with Baucom on September 19. Wright
believed that on September 19, she would have the opportunity to
approve or disapprove the specifics of the settlement agreement or
Baucom would proceed with her affidavit if settlement efforts
failed. Baucom stated it was a good will gesture to Trujillo to
solve the problem. The meeting ended when Wright signed the
settlement agreement Baucom offered her. Item 2a of the Settlement
Agreement addressed Wright's five day suspension.(3) Neither Sneed, nor anyone else
representing AFGE Local 2241 was notified of or present at the
September 12, meeting.
On September 13, 1994, Wright returned to the EEO office, and
she met with Baucom in the spare office provided for him there.
Wright gave Baucom the third version of the waiver. Baucom accepted
and signed his receipt in the lower left corner. At this meeting
Baucom gave Wright another settlement agreement that was in the two
page format used by the VAMC EEO. In this settlement agreement item
2a provided that the five day suspension would be reconsidered by
the appropriate management official. Again, Wright signed this
version of the settlement agreement believing she would have an
opportunity at the September 19, 1996 meeting to finally approve or
disapprove of any settlement agreement. No official or
representative of AFGE Local 2241 was notified of or present at
this meeting.
After Wright left the EEO office, Baucom told Rhodes that
Wright had signed a settlement agreement. Rhodes was sur-prised
because "most people don't sign agreements on the first day." Then
after reading the settlement agreement, Rhodes was further
surprised, given her knowledge of Trujillo's failed efforts to
settle the suspension matter, and given the fact that the
settlement agreement was very "general" and offered no specific
relief. The agreement that Baucom showed Rhodes was drafted in the
same format used by the EEO Program.
There was much conflicting and contradictory testimony
concerning how and when the various settlement agreement drafts
were prepared, presented and signed. The foregoing is my best
analysis of this testimony and evidence, noting that the "September
12" version was a single page form, not similar to the VAMC EEO
settlement agreement format and is more consistent with a draft
prepared by Baucom, without VAMC help. It was in the nature of very
rough draft. This version was never approved or signed by Trujillo.
The "September 13" version is a more polished and complete version
in the format used by the VAMC EEO program, who were providing
staff support to Baucom. Apparently other versions of the
settlement agreement were presented by Baucom and signed by Wright
subsequent to the September 13 meeting. A version was apparently
signed by Trujillo on September 16, 1994.
On September 19, 1994, after some confusion, at 10:30 a.m. or 10:45
a.m., Rhodes telephoned Wright, instructing her to come to the EEO
Program Office.(4) Wright then
reported to the EEO office. Before Wright arrived, Baucom asked
Rhodes to meet with him and Wright, because he was afraid Wright
might accuse him of sexual harassment, and because he wanted Rhodes
to be present when he went over the changes Human Resources had
made to the settlement agreement.
At the EEO Program Office, Baucom and Rhodes went with Wright
to the same office where Baucom had accepted her September 13
waiver of a representative and gave her the settlement agreement.
Baucom gave Wright a copy of the revised settlement agreement. Both
Baucom and Rhodes had copies.
According to Rhodes, Wright never signed this version of the
settlement agreement, as revised by Human Resources. According to
Rhodes, there was no need for Wright's signature, because her
signature was already on the second page of "boiler plate," the
revised front page replaced the original front page, with the
change in item 2a. It apparently reduced the five day suspension to
a one day suspension. According to Wright, she felt bewildered
because the settlement agreement did not go beyond what she offered
in the draft that she had offered on September 13, and it still did
not include all of the issues she had identified in her EEO
complaint. According to Wright, when she told Baucom and Rhodes
that she was not happy or satisfied with the settlement agreement,
Baucom snatched the document from her hands, and in an angry voice,
threatened to tear it up. Rhodes then told Wright that Joyce, her
prayer partner, had been asking for her, and Rhodes advised Wright
to get in touch with Joyce to discuss her problems. According to
Wright, she told Baucom and Rhodes, "I cannot accept it." Baucom
and Rhodes told her that she could not have a statement about Pugh
in the settlement agreement, because he was not her supervisor and
it was too late to address matters that had occurred in 1992.
Rhodes urged Wright to put everything behind her and get on with
her life. But Wright told them it was unacceptable.
Rhodes and Baucom told Wright she had been in that office about
two hours, they needed to go to lunch, and she had to either accept
it or not accept it, there was nothing she could do about it,
because she had already signed it. Believing there was nothing
really left to discuss, Wright left Rhodes and Baucom, and she
returned to her office. No representative of AFGE Local 2241 was
notified or present at this September 19 meeting.
During Baucom's on-site investigation, Sneed continued to
process Wright's grievance under the negotiated grievance
procedure, and on September 12, 1994, under Article 14 of the
Master Agreement, Sneed invoked arbitration on behalf of Wright.
During his on-site investigation, Baucom happened to meet Sneed in
the canteen area. They chatted for a few minutes, and Baucom
mentioned that of the cases he was investigating, a couple had been
resolved, and one involved a grievance over the same issue as that
in an EEO complaint. At the time of that conversation, Sneed did
not know that the case involving both a Union grievance and an EEO
complaint was Wright's.
Shortly after her final September meeting with Rhodes and
Baucom, Wright was too ill to work for the next few days. On about
September 21, an employee told Sneed that Wright had signed a
settlement agreement. Sneed telephoned Wright to inquire about it,
and then told Wright that Sneed would send Wright rules and
regulations concerning her rights through a neighbor, Mr. Freeman,
who was a Union official. After receiving the material from
Freeman, Wright was still ill, and she called in sick.
On Friday, September 23, Sneed telephoned Wright to inquire how
she was doing. Later, Wright learned that Sneed suffered a heart
attack. Before her heart attack, Sneed had set up an appointment
for Wright and Union vice president, Mel Ingram, with the Union's
attorneys. After her discussion with the lawyer, Wright decided to
wait until her own health improved and until Sneed was back to
work, before taking any action.
Wright returned to work on about September 27, 1994. Williams
telephoned Wright and asked her to come to the EEO office in order
to sign a document that would allow her to be repaid for four days
of her suspension. Wright refused and refused repeated VAMC
attempts to have her paid for four of the suspended days.
Sneed returned to work in late October or early November, and
on November 1, 1994, Wright prepared a written statement about her
September meetings with Baucom and Rhodes. Sneed told Wright one of
the Union's attorneys was going to file an unfair labor practice
case about the meetings in the EEO Office and the attempt to settle
the Union's grievance. On November 3, 1994, Sneed and Wright sent a
memorandum to Trujillo, stating that Wright rejected the settlement
agree-ment Trujillo had signed on September 16, 1994 and Wright
would refuse any consideration from that agreement such as "monies
from any part of the five day suspension." Sneed told Wright to
make sure no extra money was deposited by the VA into her
account.
The next day, November 4, 1994, Wright discovered additional
monies had been deposited in her account, and she returned that
amount, $219.53, in a cashiers check to the Veterans Administration
finance office in Austin, Texas. Although the VA never negotiated
that check, Wright has refused its deposit back into her own
account.
A. Relevant Statutory Provisions
Section 7103(a)(13) of the Statute provides:
(13) "confidential employee" means an employee who
acts in a confidential capacity with
respect to an individual who formulates or effectuates manage-ment policies in the field of
labor-management relations;
Section 7112(b) provides that no unit shall be appro-priate for
collective bargaining if it contains, inter alia, "a
confidential employee."
Section 7114(a)(2)(A) of the Statute provides:
(2) An exclusive representative of an appro-priate
unit in an agency shall be given the
opportunity to be represented at--
(A) any formal discussion between one
or more representatives of the agency and
one or more employees in the unit or their representa-tives concerning any grievance or any
personnel policy or practices or other general condition of employment;
Section 7116(a)(1), (5) and (8) of the Statute provides:
(a) For the purpose of this chapter, it shall be unfair
labor practice for an agency--
(1) to interfere with, restrain, or
coerce any employee in the exercise by the employee
of any right under this chapter;
(5) to refuse to consult or negotiate
in good faith with a labor organization as required by
this chapter;
(8) to otherwise fail or refuse to
comply with any provision of this chapter.
B. Wright is not a confidential employee excluded
from the unit
An employee is a "confidential," within the meaning of §
7103(a)(13), if (1) there is evidence of a confidential working
relationship between an employee and a supervisor or manager, and
(2) the supervisor or manager is significantly involved in
labor-management relations. U.S. Department ofLabor,
Office of the Solicitor, Arlington Field Office, 37 FLRA 1371,
1377 (1990)(DOL).
The Authority applies this two-pronged, labor-nexus test to
examine the nature of an employee's confidential working
relationship. Id at 1377. Both factors must be present in
order for an employee to be "confidential" within the meaning of §
7103(a)(13). U.S. Army Plant Representative
Office,Mesa, Arizona, 35 FLRA 181, 186 (1990).
Determination of confidential status is therefore determined by the
nature of the work performed by the person for whom the employee
works, either the employee's supervisor or another management
official. Thus, a person who formulates or effectuates management
policies in the field of labor-management relations is considered a
confidential employee. Thus too, an individual who is privy to the
development of labor-management relations policies is excluded from
the bargaining unit, because the inclusion of that individual would
create a conflict of interest between the employee's duties and the
employee's unit membership. DOL at 1377 and U.S.
Department of Housing and Urban Development, Washington, D.C.,
35 FLRA 1249, 1255-58 (1990).
The bargaining unit eligibility determination is made on the
testimony as to the employees actual duties rather than on duties
that may exist in the future. Bargaining unit eligibility
determinations are not based on evidence such as written position
descriptions or testimony as to what duties had been or would be
performed by an employee occupying a certain position, because such
evidence might not reflect the employee's actual duties.
DOL at 1377.
At all times relevant to this case, Wright never formulated or
effectuated labor-management policies, nor was she involved in any
way with such policies. The record in this case further establishes
that neither Chief Thomas nor Acting Chief Adams was involved in
the development of labor-management relations policies under the
test and Wright was not privy to the development of such policies
in her relationship with either immediate supervisor. The evidence
for all times material to this case establishes that Wright's
duties never changed and never included developing labor-management
relations policies and did not include being privy to any
supervisor's development of any labor-management relations
policies.
VAMC seems to contend that because the Chief of the Chaplain
Service may exercise relatively ordinary supervisory functions, and
merely because Wright was the secretary to such a supervisor, she
is privy to the development of labor-management policies. In light
of the foregoing discussion and conclusions, this contention of
VAMC is rejected.
Accordingly, on the basis of both the Statute and Authority case law, at all times material to this case Wright was not a confidential employee, but rather was a VAMC employee in the unit exclusively represented by AFGE, Local 2241.
C. Baucom was a VAMC representative
The Authority has held that, for the purposes of §
7114(a)(2)(A) of the Statute, a contractor functions as the
"representative of the agency" when the contractor conducts the
agency's business. Defense Logistics Agency, Defense Depot
Tracy, California, 39 FLRA 999, 1013 (1991).
Baucom was hired by VA to conduct the agency's investigation of
Wright's formal EEO complaint. Both Baucom and Wright were advised
that Baucom was assigned by the VA to conduct the investigation of
Wright's formal EEO complaint. VAMC then prepared the purchase
order and made travel arrangements. Baucom was given the use of an
office and staff support by VAMC's EEO Program Office. Further, VA
remains responsible for the timeliness and content of Baucom's
investigation. See EEOC, EEO Management Directive MD-110, pg.
4-9.(5)
In light of the foregoing I conclude that Baucom was a
representative of VAMC within the meaning of § 7114(a)(2)(A) of the
Statute. Id. at 1013 and Department of Health and
Human Services, Social Security Administration, Baltimore, Maryland
and Social Security Administration, Region X, Seattle,
Washington, 39 FLRA 298, 311-12 (1991)(SSA).
D. The meeting on September 13, was a formal
discussion concerning a grievance under § 7114(a)(2)(A) of the
Statute
The Authority holds that the union has the right to be
represented at a formal discussion with a unit employee between
management and one or more unit employees concerning any grievance
or any personnel policy or practice or other general condition of
employment, within the meaning of § 7114(a)(2)(A) of the Statute,
so that the union may safeguard its interests and the interests of
the unit employees in the context of the union's representational
responsibilities under the Statute. General Services
Administration, 50 FLRA 401, 404 (1995).
The Authority requires that all four elements of §
7114(a)(2)(A) be established before the Union's right to be
represented obtains. Therefore, the evidence must satisfy the
following: (1) there must be a discussion, (2) which is formal, (3)
between one or more unit employees and management, (4) concerning a
grievance or any personnel policy or practices or other general
condition of employment. DLA, at 1012.
Authority decisions find that a formal EEO complaint
constitutes a "grievance" within the meaning of § 7114(a)(2)(A) of
the Statute. See Nuclear Regulatory Commission, 29 FLRA
660, 662 (1987); U.S. Department of Veterans Affairs,
Washington, D.C., 48 FLRA 991, 1005 (1993); See also U.S.
Department of Justice, Bureau of Prisons, Federal Correctional
Institution, Ray Brook, New York, 29 FLRA 584, 589-90 (1987)
and National Labor Relations Board, 46 FLRA 107 (1992). It
is clear that AFGE Local 2241's grievance on behalf of Wright
concerning her suspension is, by its very nature, a "gr ievance"
within the meaning of § 7114(a)(2)(A).
The meeting on September 13, involved both the signing of a
settlement agreement form and Wright delivering the changed waiver
form as agreed upon at the September 12 conversation between Baucom
and Wright. The Authority has held that, within the meaning of §
7114(a)(2)(A) of the Statute, a "meeting" is equivalent to a
"discussion", and that actual dialogue is not necessary. Kelly
Air Force Base, 15 FLRA 529 (1984). I conclude that the
September 13 meeting between Wright and Baucom, where Baucom
accepted Wright's changed waiver and Baucom gave Wright a new and
different settlement agreement, different from the one she had
signed the previous day, and had her sign this new settlement
agreement,(6) constituted a
"discussion" concerning a grievance within the meaning of §
7114(a)(2)(A) of the Statute.
In determining whether a discussion or a meeting is "formal"
within § 7114(a)(2)(A) of the Statute, the Authority considers the
totality of facts and circumstances. Marine Corps Logistics
Center, Barstow, CA, 45 FLRA 1332, 1335 (1992). Among the
factors the Authority examines are the following eight indicia of
formality:
(1) whether the meeting was held by a first-level supervisor or
someone higher; (2) whether other
management representatives attended; (3) where the meeting took place; (4) how long the meeting
lasted; (5) how the meeting was called; (6) whether a formal agenda was established; (7) whether
attendance was mandatory; and (8) the manner in which the meeting was conducted (whether
comments were noted or transcribed).
Defense Logistics Agency, 48 FLRA 744, 753 (1993).
The indicia of formality apply to the September 13, 1994
meeting/discussion as follows: (1) Baucom, an agent or
representative of management, informed Wright, a unit employee,
that she had to correct her waiver form dated September 12 to
exclude her designation of Emma Sneed, the Union president, while
Baucom was using the facilities and the support staff of the VAMC
EEO Program; (2) although Rhodes, the EEO Program manager, did not
participate in the discussion Baucom conducted when Wright returned
with the revised waiver, and Baucom provided a draft settlement
agreement, Rhodes was immediately available, and she subsequently
discussed with Baucom, Wright's acceptance of the settlement
agreement; (3) Baucom conducted the discussion with Wright in his
temporary office in the EEO Program Office, not in Wright's
worksite; (4) Baucom, in effect, called the meeting by having
Wright correct her waiver on September 12, and, when she returned
it to the EEO office, he asked her to review the settlement
agreement he had revised; (5) the settlement agreement itself was
the "agenda" for the remainder of the discussion; (6) Wright's
attendance was mandatory to the extent that preparation of a waiver
memorandum acceptable to Baucom was necessary for him to proceed
with his investiga-tion; and (7) Baucom's discussion with Wright
was memorialized to the extent she reviewed and signed the
settlement agreement he had revised and prepared.
This discussion was not an informal conversation between Wright
and Baucom at which the EEO matter just happened to come up.
Rather, the purpose of the meeting, held in the offices of the VAMC
EEO Program, was to discuss the EEO complaint, to resolve the
waiver matter and then to discuss the settlement agreement prepared
and revised by Baucom. A settlement agreement, it must be noted,
that would dispose of not only the formal EEO complaint, but also
the grievance filed under the collective bargaining agreement. This
meeting was surely sufficiently "formal", within the meaning of §
7114(a)(2)(A), to warrant notification of AFGE Local 2241 and to
provide it the opportunity to be represented.
Neither Sneed nor any other representative of AFGE, Local 2241,
was given notice or the opportunity to be present during Baucom's
September 13, 1994 discussion.
The Authority has recognized that the intent and purpose of §
7114(a)(2)(A) of the Statute is to provide the union with an
opportunity to safeguard its interests and the interests of
bargaining unit employees as viewed in the context of the union's
full range of responsibilities under the Statute. Consideration of
the intent and purpose of § 7114(a)(2)(A) of the Statute is only a
guiding principal to inform judgements in applying the statutory
criteria. General Services Administration, 50 FLRA 401,
404 (1995)(GSA).
In light of all of the foregoing, I conclude that the September
13 meeting met all of the criteria set forth in § 7114(a)(2)(A) of
the Statute, that it was a formal discussion between a unit member
and a representative of VAMC concerning a grievance, and AFGE Local
2241 was entitled to notice of the meeting and an opportunity to be
represented at it. VAMC's failure to notify AFGE Local 2241 about
the meeting denied the Union the opportunity to be represented at
the September 13, meeting. VAMC's failure to afford the Union the
opportunity to be represented violated § 7116(a)(1) and (8) of the
Statute. Id.
VAMC argues the September 13 meeting with Baucom was an
informal attempt to settle the EEO complaint and this
"Settlement/Alternate Dispute Resolution Discussion" was not a
formal discussion within the meaning of § 7114(a)(2)(A). IRS
Fresno Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983) relied
upon by VAMC is inapposite because that case involved the informal
stage of the EEO procedure. The Court of Appeals explained in a
subsequent case:
In that case we found the meetings to be informal only because
the EEOC regulatory framework
that governed the case explicitly characterized them in that way. Under that framework, the
employee was required to try to resolve a complaint on an informal basis before filing a formal
complaint.
Department of Veterans Affairs Medical Center, Long Beach,
California v. FLRA, 16 F.3d 1526, 1532 (9th Cir. 1994).
In light of the foregoing, therefore, I reject VAMC's argument.
The subject case involves a formal EEO complaint and the discussion
to resolve it comes under the purview of § 7114(a)(2)(A) of the
Statute.
Similarly I reject VAMC's arguments that Baucom was a mediator
and therefore entitled to secrecy and to exclude the Union. Such an
interpretation of the facts is not only contrary to the language of
§ 7114(a)(2)(A) of the Statute, it would also frustrate the intent
of that section.
E. The September 19 meeting was a formal
discussion concerning a grievance under § 7114(a)(2)(A) of the
Statute
The September 19, 1994 meeting involved another attempt by
Baucom to settle Wright's formal EEO complaint, including resolving
the dispute over Wright's suspension. Thus it was a meeting
concerning a grievance.
As discussed above Wright was an employee in the unit
represented by AFGE Local 2241 and Baucom was a representative of
VAMC. In addition to Wright and Baucom, Rhodes, VAMC's manager of
its EEO Program, was also present during the meeting and
participated in the discussions. She was a representative of
VAMC.
VAMC did not notify AFGE Local 2241 of the meeting or give it
an opportunity to be represented.
I conclude that the September 19 meeting was "formal" within
the meaning of § 7114(a)(2)(A) of the Statute. In this regard I
rely on the facts that the meeting took place in the EEO Program
Offices, not Wright's workplace; that two manage-ment
representatives were present, including Rhodes who is a relatively
high management official; that the participants knew that the
discussion was to involve Wright's formal EEO complaint and the
attempts to settle it, including the issue of Wright's suspension;
that Wright had the meeting scheduled in advance and then was
called to the meeting by a program assistant at the EEO Program
Office; that the discussion lasted two to two and one-half hours;
and that it involved the printed settlement agreement with Wright's
and Trujillo's signatures. In light of the foregoing I conclude the
September 19 meeting was not an informal or chance meeting, but
rather was a formal discussion at which the Union was entitled to
an opportunity to be represented, pursuant to § 7114(a)(2)(A) of
the Statute.
Accordingly, I conclude that VAMC violated § 7116(a)(1) and (8)
of the Statute by not notifying AFGE Local 2241 of the September 19
meeting and affording it the opportunity to be represented.(7)
F. VAMC's attempts at the September 13 and 19
meeting to negotiate with Wright concerning her suspension
constituted bypassing the Union
The Authority has held that an agency violates § 7116(a)(1) and
(5) of the Statute by bypassing the exclusive representative of its
employees when it deals directly with an employee concerning
grievances. The Authority stated:
Agencies unlawfully bypass an exclusive representa-tive when
they communicate directly with
bargaining unit employees concerning grievances, disciplinary actions and other matters relating to
the bargaining relationship. [Citations omitted]. Such conduct constitutes direct dealing with an
employee and is violative of section 7116(a)(1) and (5) of the Statute because it interferes with the
union's rights under section 7114(a)(1) of the Statute to act for and represent all employees in the
bargain-ing unit. Such conduct also constitutes an indepen-dent violation of section 7116(a)(1) of
the Statute because it demeans the union and inherently inter-feres with the rights of employees to
designate and rely on the union for representation.
Social Security Administration, Seattle, WA, 39 FLRA 298,
311 (1991)(SSA).
Beginning before Wright filed her formal EEO complaint and
throughout the entire processing of the EEO complaint, AFGE Local
2241 continued to process the grievance under the master agreement
concerning Wright's suspension. In fact on September 12, 1994, the
Union, under Article 14 of the master agreement, invoked
arbitration on Wright's behalf.
During the September 13th and 19th discussions between VAMC
representatives and Wright, VAMC attempted, as part of the
settlement of the EEO matter, to settle the dispute over Wright's
suspension. Wright's suspension was an essential part of both the
EEO complaint and the grievance filed by the Union. Thus, VAMC was
discussing and trying to settle the grievance directly with Wright,
without notifying or involving the Union.
I conclude, therefore, that VAMC bypassed the Union when it
attempted to settle the grievance, as part of the EEO settlement
directly with Wright and without notifying and involving the Union.
In so concluding I do not find that any statement by Wright that
she did not want Sneed to represent her in the EEO matter relieved
the Union of its right, as the collective bargaining representative
of the unit and the filer of the grievance, to participate in any
discussion or settlement of the grievance processed under the
master agreement.
Having concluded that VAMC bypassed the Union, I accordingly
conclude that VAMC violated § 7116(a)(1) and (5) of the Statute.
Id.
G. Remedy
The General Counsel requests, as part of the remedial order,
that VAMC be ordered to require that the staff employed in the
Office of Human Resources and Equal Employment Oppor-tunity Program
undergo training consistent with the order in this case and that
the personnel files of the staff be annotated to document the
training.
I conclude such a requirement is not warranted or justified in
this case.
Based upon the above findings and conclusions, I recommend that
the Authority issue the following Order:
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
the Veterans Affairs Medical Center, Denver, Colorado, shall:
1. Cease and desist from:
(a) Conducting formal discussions with bargaining unit
employees represented by the American Federation of Government
Employees, AFL-CIO, Local 2241, the agent of the employees'
exclusive bargaining representative, without first notifying the
Union and affording it the opportunity to be represented at such
formal discussions, concerning any grievance or any personnel
policy or practices or other general condition of employment,
including meetings at which formal EEO complaints are resolved.
(b) Bypassing the American Federation of Government
Employees, AFL-CIO, Local 2241, the agent of the employees'
exclusive bargaining representative, and directly dealing with unit
employees concerning the resolution of matters being processed
under the parties' negotiated grievance procedure during formal
discussions involving the resolution of formal EEO complaints.
(c) In any like or related manner, interfering with,
restraining or coercing its employees in the exercise of their
rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate
the purposes and policies of the Statute:
(a) At the request of the American Federation of
Government Employees, AFL-CIO, Local 2241, rescind the Settlement
Agreement signed by Medical Center Director Trujillo on September
16, 1994 concerning, among other things, the five-day suspension of
unit employee Mildred Wright which is the subject of a grievance
proceeding under the negotiated grievance procedure.
(b) At the request of the American Federation of
Government Employees, AFL-CIO, Local 2241, proceed to arbitration
on the merits of the Union grievance on the subject of unit
employee Mildred Wright's five-day suspension.
(c) Notify the American Federation of Government
Employees, AFL-CIO, Local 2241 concerning any formal discussion of
any formal EEO complaint filed by a unit employee and a
representative of the agency.
(d) Post at its facility in Denver, Colorado, copies of
the attached Notice To All Employees on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by the Medical Center 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.
(e) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director of the Denver
Regional Office, Federal Labor Relations Authority, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply.
Issued, Washington, DC, August 13, 1996
__________________________
SAMUEL A. CHAITOVITZ
Chief Administrative Law Judge
The Federal Labor Relations Authority has found that Depart-ment of
Veterans Affairs, Medical Center, Denver, Colorado, violated the
Federal Service Labor-Management Relations Statute and has ordered
us to post and abide by this notice.
We hereby notify our employees that:
WE WILL NOT conduct formal discussions with bargaining unit
employees represented by the American Federation of Government
Employees, AFL-CIO, Local 2241, the agent of our employees'
exclusive bargaining representative, without first notifying the
Union and affording it the opportunity to be represented at such
formal discussions, concerning any grievance or any personnel
policy or practices or other general condition of employment,
including meetings at which formal EEO complaints are resolved.
WE WILL NOT bypass the American Federation of Government Employees,
AFL-CIO, Local 2241, the agent of our employees' exclusive
bargaining representative, and directly dealing with unit employees
concerning the resolution of matters being processed under the
parties' negotiated grievance procedure during formal discussions
involving the resolution of formal EEO complaints.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL at the request of American Federation of Government
Employees, AFL-CIO, Local 2241, rescind the Settlement Agreement
signed by Medical Center Director Trujillo on September 16, 1994
concerning, among other things, the five-day suspension of unit
employee Mildred Wright which is the subject of a grievance
proceeding under the negotiated grievance procedure.
WE WILL at the request of American Federation of Government
Employees, AFL-CIO, Local 2241, proceed to arbitration of the
merits of the Union grievance on the subject of a unit employee
Mildred Wright's five-day suspension.
WE WILL notify the American Federation of Government Employees,
AFL-CIO, Local 2241 concerning any formal discussion of any formal
EEO complaint filed by a unit employee and a representative of the
agency.
(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 Federal Labor Relations
Authority, Denver Region, 1244 Speer Boulevard, Suite 100, Denver,
Colorado 80204-3581, and whose telephone number is: (303)
844-5224.
1. The GC of the FLRA filed a Motion to Correct the Transcript. VAMC filed no opposition. Accordingly, the Motion, which is attached hereto as "Attachment", is GRANTED and the corrections set forth therein are hereby made.
2. Wright was paying Kelly $125 per hour for representation in a related criminal charge Officer Gonzales had filed against her.
3. Item 2a in this settlement agreement reduces the five-day suspension to an admonishment.
4. Both Baucom and Rhodes utilized this contact to urge Wright to return to the EEO office in order to discuss another settlement agreement, as revised in Human Resources and/or in the Director's office. Whatever the scenario, the testimony of all participants in the September 19 meeting is consistent to the extent that Wright was urged to return to the EEO Program Office in order to review the settlement agreement after her original signature on a document, which is neither the September 12 version of the settlement agreement nor the September 13 version.
5. To the extent necessary I take official notice of EEOC, EEO Management Directive MD-110. FLRA Rules and Regulations § 2423.19(o) and U.S. Department of Treasury, Customs Service, Washington, DC, 38 FLRA 875, 878 (1990).
6. Although there is some confusion as to exactly which version of the settlement agreement was signed or discussed at which meetings, all versions of the settlement agreement attempted to deal with and resolve the formal EEO complaint and the suspension.
7. I note that § 7114(a)(2)(A) of the Statute grants the union the right to be present at the formal meeting, with or without the employee's consent.