Veterans Administration Hospital, Sheridan, Wyoming and American Federation of Government Employees, Local 1219 (Authority decision, June 29, 1979)

Final FLRA decision under Executive Order 11491. The Authority adopted the judge's dismissal of the unfair labor practice complaint in this transferred case. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

AFGE Local 1219 alleged that a Sheridan VA hospital passed over a union steward for a housekeeping supervisor promotion because of his union activity. He had the highest numerical rating among highly qualified candidates, but management selected two other applicants. The administrative law judge found that the selecting official could choose among qualified candidates and credited her testimony that she relied on performance and supervisory potential rather than union status. The Authority found no basis to overturn the judge's credibility findings and dismissed the complaint.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491, § 19(a)(1) and (2).
• Outcome: Judge's dismissal adopted; union-discrimination complaint dismissed.
• Key point: The record did not establish that union activity drove the promotion decision.

Full text (FLRA public release)

[ v01 p688 ]

01:0688(76)CA

The decision of the Authority follows:

1 FLRA No. 76

VETERANS ADMINISTRATION HOSPITAL,
SHERIDAN, WYOMING
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1219
Complainant

Assistant Secretary
Case No. 61-3868(CA)

DECISION AND ORDER

ON JANUARY 25, 1979, ADMINISTRATIVE LAW JUDGE STEVEN E. HALPERN
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR
LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY. THE COMPLAINANT FILED
EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1078 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).

THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S

RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, /1/ CONCLUSIONS AND
RECOMMENDATIONS. /2/

ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 61-3868(CA) BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., JUNE 29, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

DAN MCCARTHY

ATTORNEY AT LAW

VETERANS ADMINISTRATION

DISTRICT COUNSEL OFFICE

PHOENIX, ARIZONA 85012

FOR THE RESPONDENT

KENNETH BULL

NATIONAL REPRESENTATIVE, AFGE

5001 SOUTH WASHINGTON

ENGLEWOOD, COLORADO 80110

FOR THE COMPLAINANT

BEFORE: STEVEN E. HALPERN

ADMINISTRATIVE LAW JUDGE

DECISION AND ORDER

STATEMENT OF THE CASE

THIS PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED WAS INITIATED
BY COMPLAINT FILED JANUARY ..., 1978, WITH AN AMENDED COMPLAINT HAVING
BEEN FILED MAY 22, 1978. NOTICE OF HEARING WAS INITIALLY ISSUED ON
AUGUST 15, 1978, BY THE REGIONAL ADMINISTRATOR OF THE UNITED STATES
DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION, KANSAS
CITY REGION. PURSUANT TO A SUPPLEMENTAL NOTICE A HEARING WAS HELD AT
SHERIDAN, WYOMING ON NOVEMBER 2, 1978. THEREAFTER, BRIEFS OF THE
PARTIES HAVING BEEN FILED, THE RECORD DULY CLOSED ON JANUARY 10, 1979.

RESPONDENT IS CHARGED WITH HAVING VIOLATED SECTION 19(A)(1) AND (2)
OF THE EXECUTIVE ORDER. THE FACTUAL BASIS ON WHICH THE COMPLAINT IS
PREMISED IS SET FORTH THEREIN AS FOLLOWS:

THE CHIEF OF BUILDING MANAGEMENT SERVICE IS DISCOURAGING UNION
MEMBERSHIP AND PARTICIPATION

IN THE UNION BY SELECTING INDIVIDUALS FOR PROMOTION ON THE BASIS OF
UNION OR UNION AFFILIATION

AND WHETHER OR NOT THE INDIVIDUAL IS ACTIVE IN THE UNION. WITNESSES
ARE AVAILABLE TO TESTIFY

THAT THE MANAGER STATES THAT SINCE A UNION MEMBER WAS SELECTED FOR
PROMOTION IT IS PROPER THAT

SHE COULD SELECT A NON UNION MEMBER FOR ANOTHER PROMOTION. ONE
INDIVIDUAL, MELVIN JAMES

CROSBY, A UNION STEWARD HAS BEEN DISCRIMINATED AGAINST. HE HAS BEEN
INVOLVED IN MORE THAN 25

CASES DURING THE PAST 16 MONTHS. PREVIOUSLY, MANAGEMENT CONTENDED
THAT SELECTION FROM A

PROMOTION ROSTER HAD BEEN MADE BY SELECTING THE PERSON WITH THE
HIGHEST POINTS. WHEN

MR. CROSBY APPEARED ON THE PROMOTION ROSTER WITH THE HIGHEST POINTS
HE WAS NOT SELECTED. THIS

PROMOTION ACTION WAS DATED NOV. 1, 1977.

THE PARTIES HAVE BEEN AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
ADDUCE EVIDENCE, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO MAKE ORAL
ARGUMENT AND TO FILE BRIEFS. BASED UPON THE EVIDENCE OF RECORD, HAVING
OBSERVED THE WITNESSES AND ASSESSED THEIR CREDIBILITY AND HAVING
CONSIDERED THE ARGUMENTS OF THE PARTIES, I MAKE THE WITHIN:

FINDINGS AND CONCLUSIONS

COMPLAINANT UNION WAS IN APPROPRIATE REPRESENTATIVE STATUS AT ALL
TIMES MATERIAL HERETO.

THE EVIDENCE DISCLOSES THAT UNION STEWARD MELVIN JAMES CROSBY, THAN A
CLOTHING CLERK IN RESPONDENT'S EMPLOY, FILED APPLICATION FOR ONE OF TWO
VACANT SUPERVISORY POSITIONS AS HOUSEKEEPING AID FOREMAN; AND, OF NINE
APPLICANTS EVALUATED BY A RANKING PANEL TO BE HIGHLY QUALIFIED FOR SAID
POSITIONS MR. CROSBY WAS ASSIGNED THE HIGHEST NUMERICAL RATING, WHILE
EACH OF THE TWO CANDIDATES ULTIMATELY SELECTED WERE RATED THREE POINTS
LOWER.

FINAL SELECTION FOR THE VACANT POSITIONS WAS THE EXCLUSIVE
RESPONSIBILITY OF ESTELLA KLOETZEL, RESPONDENT'S CHIEF OF BUILDING
MANAGEMENT SERVICES. IT WAS WITHIN HER DISCRETION TO SELECT ANY TWO OF
THE HIGHLY QUALIFIED INDIVIDUALS IRRESPECTIVE OF NUMERICAL RANKING AND
IT WOULD HAVE BEEN CONTRARY TO THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT FOR HER TO HAVE SELECTED SOLELY ON THE BASIS THEREOF.

IN THE COURSE OF THE SELECTION PROCESS, CHARLES FREEMAN, RESPONDENT'S
THEN ASSISTANT HOSPITAL DIRECTOR, MS. KLOETZEL'S SUPERIOR, AND FRANK
TERRY, THE THEN GENERAL FOREMAN, HER SUBORDINATE, BOTH SUGGESTED TO HER
THE EFFICACY OF SELECTING MR. CROSBY INTO ONE OF THE VACANT SUPERVISORY
POSITIONS SINCE AS A SUPERVISOR HE WOULD BE INELIGIBLE FOR UNION
ACTIVITY-- APPARENTLY HE WAS CONSIDERED DIFFICULT TO DEAL WITH. NO
COMPLAINT HAS BEEN MADE AND NO ARGUMENT HAS BEEN PRESENTED THAT THE
MAKING OF SUCH RECOMMENDATIONS TO HER IN PRIVATE WAS VIOLATIVE OF THE
EXECUTIVE ORDER. AT ANY RATE, THE RECOMMENDATIONS WERE PROPERLY AND
SUMMARILY REJECTED BY HER AND SHE DECLINED TO CONSIDER MR. CROSBY'S
UNION AFFILIATION/ACTIVITIES AS AN APPROPRIATE REASON TO SELECT HIM INTO
A SUPERVISORY POSITION.

MS. KLOETZEL AFTER PERSONALLY INTERVIEWING ALL QUALIFIED APPLICANTS
INCLUDING MR. CROSBY, AND CONFERRING WITH SAID GENERAL FORMEMAN WHO HAD
CONDUCTED SIMILAR INTERVIEWS, ELECTED AS WAS HER PREROGATIVE, TO SELECT
THE SECOND AND THIRD RANKED CANDIDATES AND NOT TO SELECT MR. CROSBY. I
CREDIT MRS. KLOETZEL'S TESTIMONY THAT HER DECISION WAS NOT INFLUENCED BY
UNION CONSIDERATIONS, BUT RATHER WAS BASED ON SUCH RELEVANT AND
LEGITIMATE FACTORS AS PAST PERFORMANCE AND GENERAL SUPERVISORY
POTENTIAL.

AFTER THE SELECTIONS HAD BEEN MADE MS. KLOETZEL, AT THE REQUEST OF
MR. FREEMAN, INVESTIGATED THE UNION STATUS OF THE SELECTEES. THE
INVESTIGATION WAS DIRECTED BY MR. FREEMAN AS A RESULT OF COMPLAINTS
THAT MR. CROSBY HAD BEEN NON-SELECTED BECAUSE OF UNION CONSIDERATIONS.
THEREAFTER, HAVING FOR THE FIRST TIME LEARNED THAT OF THE TWO SELECTEES
ONE WAS AND ONE WAS NOT A UNION MEMBER, (IT IS CLEAR THAT SHE WAS AWARE
OF MR. CROSBY'S UNION ACTIVITIES AT ALL MATERIAL TIMES), MRS. KLOETZEL
IS ALLEGED TO HAVE MADE THE STATEMENT UPON WHICH COMPLAINANT RELIES
HEAVILY IN SUPPORT OF ITS CHARGE:

(A) MR. CROSBY TESTIFIED THAT MR. TERRY AND MR. FREEMAN TOLD HIM THAT
SHE SAID "SHE HAD CHOSEN ONE UNION MEMBER AND ONE NON-UNION MEMBER AND
FELT THE UNION HAD NO GRIPE" (TR. 25); (B) JUNE GILKISON, A UNION CHIEF
STEWARD AND ELEANOR MILLIRON, THE THEN PRESIDENT OF THE COMPLAINANT
LOCAL, TESTIFIED THAT MR. FREEMAN TOLD HER THAT "STELLA KLOETZEL HAD
SELECTED ONE UNION MEMBER AND ONE NON-UNION MEMBER AND, SHE FELT THAT
WAS FAIR" (TR. 47, 51); (C) MR. FREEMAN TESTIFIED THAT MS. KLOETZEL
MADE NO SUCH STATEMENT TO HIM, BUT RATHER HE SAID TO HER THAT "IT
SOUNDED FAIR TO ME" (TR. 63); (D) ACCORDING TO MR. TERRY SHE TOLD HIM
"THE WAY THAT IT HAD COME OUT, NOBODY SHOULD HAVE ANYTHING TO COMPLAIN
ABOUT, BECAUSE WE HAD ONE THAT WAS A UNION MEMBER AND ONE THAT WAS NOT A
UNION MEMBER" (TR. 71); (HE FURTHER TESTIFIED, "IT WAS MY UNDERSTANDING
THAT SHE TOOK WHAT SHE FIGURES WAS THE QUALIFIED PERSON" (TR. 72)); (E)
MS. KLOETZEL TESTIFIED IN EFFECT THAT SHE MADE NONE OF THE STATEMENTS
ATTRIBUTED TO HER (TR. 93 AND EX. U-5).

COMPLAINANT HAS NOT, IN MY OPINION, ESTABLISHED BY A PREPONDERANCE OF
THE EVIDENCE THAT MS. KLOETZEL DID IN FACT UTTER ANY OF THE STATEMENTS
ALLEGED. FURTHERMORE, SINCE SUCH FINDING IS NOT ENTIRELY FREE FROM
DOUBT, IT SHOULD BE ADDED THAT SUCH STATEMENTS AS HAVE BEEN ATTRIBUTED
TO HER, EVEN IF MADE, CONSTITUTE NOTHING MORE SERIOUS THAN HER
RETROSPECTIVE ANALYSIS THAT SINCE ONE OF THE TWO SELECTEES WAS A UNION
MEMBER THERE COULD BE NO QUESTION OF ANTI-UNION BIAS AND THAT THE
SELECTION PROCESS WAS FAIR ON ITS FACE. SINCE SHE WAS UNAWARE OF THE
UNION/NON-UNION STATUS OF THE SELECTEES UNTIL AFTER THE SELECTIONS HAD
BEEN MADE IT FOLLOWS THAT THE STATEMENTS ATTRIBUTED TO HER, EVEN IF
MADE, DO NOT SUBSTANTIATE THE CHARGE THAT THERE WAS A PURPOSEFUL
SELECTION OF ONE UNION AND ONE NON-UNION MEMBER.

IN AN INTERESTING BUT SPURIOUS SEMANTIC EXERCISE COMPLAINANT ARGUES
THAT MR. CROSBY WAS NOT SELECTED BECAUSE OF HIS UNION ACTIVITIES, AND
COMPLAINS OF AN EXECUTIVE ORDER VIOLATION. INDEED, HE WAS NOT SELECTED
BECAUSE OF HIS UNION ACTIVITIES; NEITHER, HOWEVER, WAS IT BECAUSE OF
HIS UNION ACTIVITIES THAT HE WAS NOT SELECTED.

IN SUMMARY, THE EVIDENCE NEITHER ESTABLISHES, AS A MATTER OF DIRECT
OR INFERENTIAL FACT, THAT MR. CROSBY'S NON-SELECTION WAS RELATED TO HIS
PARTICIPATION IN UNION ACTIVITIES PROTECTED BY THE EXECUTIVE ORDER NOR
THAT IT WAS BY DESIGN THAT ONE UNION AND ONE NON-UNION MEMBER WAS
SELECTED. THUS, HAVING CONSIDERED THE ENTIRE RECORD BEFORE ME I FIND NO
BASIS IN FACT TO SUPPORT THE COMPLAINT THAT SECTIONS 19(A)(1) AND (2) OF
THE ORDER HAVE BEEN VIOLATED AND CONCLUDE THAT COMPLAINANT HAS FAILED TO
SUSTAIN ITS BURDEN OF PROVING ITS ALLEGATIONS BY A PREPONDERANCE OF THE
EVIDENCE.

ORDER

THE WITHIN COMPLAINT IS DISMISSED IN ITS ENTIRETY.

SO ORDERED, IN THE NAME OF THE FEDERAL LABOR RELATIONS AUTHORITY,
THIS THE 25TH DAY OF JANUARY, 1979, AT SAN FRANCISCO, CALIFORNIA.

STEVEN E. HALPERN

ADMINISTRATIVE LAW JUDGE

SEH:VAG

/1/ THE COMPLAINANT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
THE ADMINISTRATIVE LAW JUDGE. IN NAVY EXCHANGE, U.S. NAVAL AIR STATION,
QUONSET POINT, RHODE ISLAND, 2 A/SLMR 377, A/SLMR NO. 180 (1972), IT WAS
HELD AS A MATTER OF POLICY THAT AN ADMINISTRATIVE LAW JUDGE'S RESOLUTION
WITH RESPECT TO CREDIBILITY WOULD NOT BE OVERRULED UNLESS THE
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE ESTABLISHED THAT SUCH
RESOLUTION CLEARLY WAS INCORRECT. BASED ON A REVIEW OF THE RECORD
HEREIN, THE AUTHORITY FINDS NO BASIS FOR REVERSING THE ADMINISTRATIVE
LAW JUDGE'S CREDIBILITY FINDINGS.

/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224) THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF EXECUTIVE ORDER 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.