Federal Labor Relations Authority

Oliver Bruce Mitchell IIIP0 Box l9l2

Long Beach, California90801

24 November 2009FLRAOBM

From: Oliver B. Mitchell III, Veterans Affairs Medical Center, Los Angeles, CaTo: Federal Relations Labor Authority, San Francisco, CaCc: Donna Beiter, Director, Veterans Affairs Medical Center, Los Angeles, Ca

American Federation Govemment Employees, Local 1061, Los Angeles, Ca

SubJ: IINFAIR LABOR PRATICE C}IARGE AGAINSTANAGENCY

On March 24, 2009 I filed an OIG Complaint with the Deparhent of Veterans Affairs for SubstandardHealthcare, Misuse and Abuse of Authority and Fraud.

On April 14, 20A9 I filed an EEO Complaint with the Department of Veterans Affairs, Ofrce ofResolution Management for Discrimination based on Race, Color, Gender and Hostile WorkEnvironment.

_ The following violations are provided:

Item 1l5 7116 Unfair Labor Practices (a) 1 and 4

(l) To interfere with, restrain, or ooerce any employee in the exercise by the ernployee of any rightunder this chaper.

(4) To discipline or otherwise discrimiaate against an employee because the employee has filed acomplaint, affidavi! or petition, or bas given any infonnation or testimony under this chapter.

The Master Agreement, Article 1 Recognition and Coverage, Sectiou 3 Employee Representation,Item B states '1he Union will be given the opporhmity to be representsted at all formal discussions(including those held with othc employee organizations) afectiag personnel policies, practices, orworkiag conditions. This is not intended to include routine work assignments.',

The Master Agreement, Article 12 Details Re$sipments and Temporary Promotionr, Section IGeneral, Itern 6 states 'the Deparhent wiil notifr the Union of all details."

The Master Agreement, Article 13 Dircipline and Adverse Action, Section I 0 Investigation ofDisciplinary Actions, Item 4 l$ and 3d sentence states "Management will investigate an incident orsituation as soon as possible to detetmine whether or not discipline is warranted. The employee who isthe subject ofthe investigation will be inforrued oftheir right to representation before any questioningtakes place or siped statements are obtahed."

The Master Agreement, Article 16 Employee Rights, Section I General, states "h an atuosphere ofmutual respecg all employees shall be treated fairly and equitably and without discrimination in regardto their political affiliatioru Union activity, race, color, religion, national origin, gender, sexualorientatioru maxital status, age, or non-disquali$ing handicapping conditions. Employees will also beafiorded proper regard for and proteotion oftheir privacy and constitutional rights. It is thereforeagreed that Management will endeavor to establish working conditions which will be conducive toenbancing and improving employee morale and efficiency." Item B states "no disciplinary or adverse

action will be taken against arr ".r1oyee

upon an ill-founded basis such as unsubstantiated rumors orgossip." Item C states 'bo employee will be subjected to intimidadon, coercion, harassment, orunreasonable working conditions as reprisal nor will an employee be used as an example to threatenother employees." Section 3 Rights to Union Represeotation, states "Management recognizes anemployee's right to assistance and representation by the Union, and the right to meet and confer withUnion representatives in private during duty time, consistent with Article 45, Official Time, and localsupplemental agreements." Section 6 Access to Documentatiorl states "Employees have a right to bemade aware of and receive copies of any information specific to them penoaally maintained undertheir name and/or social security number. This includes any documentation which is not covered byofficial records referenced in Article 23 Official Records." Section 8 Digrrity and Self Respect inWorking Conditions, states "employees, individually aod collectively, have the right to expect, and topursue, conditions of employment which promote and sustain human dignity and self respect."

The Master Agreement, Article 2l Investigations, Section I General, Item A I and 2 states "asexclusive representative, the Union shall be given the opportunity to be present at any examination ofan ernployee in the Bargaining Uni(s) by a representative of the Deparbent in conaection with aninvestigation if; the employee reasonably believes that the examination may result in disciplinaryaction against the employee, and the unit employee requests representation." Additionally Item D, 2rdsentence states "If an ernployee in the Bargaining Udt requests Union representation, management willreschedule the meeting as soon as possible and the Union will be given the opportunity to be present."

The Marter Agreement, Article 23 Ofricial Records, Section 4 Supervisory Notes, Item A states"individual files on each employee not approved by the Deparfinent as an official system ofrecordswill not be kept by management officials at any level." Item B states "subject to Paragraph C, ifsupervisors make a persoml decision to keep notes on employees, the notes or files: (l) must beabsolutely uocirculated they cannot be reviewed by anyore else (this includes secretaries, othersupervisors or management offcials) and (2) must be maintained in a secure &shion in order to preventdisclosure. Itern C states "supervisory notes may only be used to support any action detimental to anemployee if such aote(s) have been shown to the employee at the earliest available time after the entrywas made and a copy provided to the employee. Once an ernployee has received a copy ofthesupervisory note(s), the note(s) can be provided to an apprcpriate mumgement official with alegitimate need to know for the perforrnance of their duties." Item D states 'the time frame forretaining supervisory notes will be up to six (6) months, unless used in a personnel action."

2

The Master Agreement, Article 46 Righ6 and Responsibilitieg, Sections 2-5, Section 2 UnionRights, Item A, states "in all matters relating to personnel policies, practices, and other conditions ofemploymen! the parties will have due regard for the obligations imposed by 5 USC Chapter 71, thisagreement and the concept and principles ofpartrrcrship." Item B states "each party shall recogrizeand meet with the designated represenlative(s) ofthe other party at mutually agreeable times, dates andplaces tbat are reasonable and convenient.' It€m C states "the Departnent will not rcstain, coerce,discriminate agains! or interfere with any Union representative or employee in the exercise of theirrights." Section 3 Union Representation states 'lhe Union will be provided reasonable advance noticeand be given the opportrmity to be pr€sent ard to participate at auy formal discussion between one ormore representatives of the Departnent and one or more employees in the rmit or their representativesconceming aoy grievance, personnel policy or practice, or other general condition of employment. TheUnion will also be allowed to be present and rcpresent an employee at aty examination of an employeein the unit by a reprcsentative of the Departrnent in connection with au hvestigation if the employeereasonably believes that the examination aray result in disciplinary/adverse action against the employeeaad the employee requests reprcsetrtation-" Section 4 Notification ofChaages in Condition ofEmplolment states *the Departrrent shall provide reasonable advance notice to the appropriate Unionofficial(s) prior to changing conditions of employnent of bargaining unit employees, The Deprhentagrees to forward along with the notice a copy of any and all information/material relied upon topropose the change(s) ia conditions of employment. All notifications shall be in uniting to theappropriate Union official, with sufficient information to the Union for the purpose of exercising its firllrights to bargain." Section 5 lnformation states'the Departrrent agrees to provide the Union uponrequest with any information that is normally maintained reasonably available and necessary for theUnion to effectively firlfill its representational functions and responsibilities. This iaformation will beprovided to the Unioo withia a reasonable time and at no cost to the Union."

The YA Handbook 5021, Employee/tlauagement Relations, Part I, Disciplinaty and AdverseActions utrder Title 5, Chapter I . General, Itern 7 B Status of Employee Pending Inquiry orlnvestigation, Item 3 Policy A states "disciplinary and adverse actions shall be govemed by these basicprinciples; An employee shall be informed in writing honestly and specifically why the action is beingbrought against him or her,

The YA Handbook 5977' Bqual Employment Opportunity Discrimination Complaints Proce*s,Chapter 3, the Formal Discrirnination Complaint Process, Item 4, A states'tlre ORM RegionalEEO Officer/Field Manager issigns complaiats for investigation, by letter, to the EEO Investigatorwith concurrent noticc to the complainant/representative and .,. Item B states'lhe EEO Investigatorwill determine the method of investigation i.e. on site, desk (telephone) written affidavit and FactFinding conferences. Item C states '1he EEO Investigator will work with the EEO/Divasity ProgramManagolliaisor/Specialists to schedule the investigatioq schedule witnesses, acquire documents andto make other arrangements rccessary for the efficient conduct of the investigator."

GLA Poliey Violence in the Workplace, dated January 2005, Item # 0l)-l0A-078f6 Purpose states"to establish written policies and procedures to ensure that a safe and healthfirl workplace is maintainedat all campuses of the VA Greater Los Angeles Healthcare System (GLA), to minimize or eliminateviolent behavior and the severity of injuries resulting from such behavior and to ensure that employeesexposcd to violent behavior are provided appropriate medical care and counseling,"

Charging Ofiicial(s):

1. Donna Beiter, Director, Veteraos Atrairs Medical Center, Los Angeles, Call30l Wilshfue Blvd., Los Angeles, Califomia 90073(3r0) 478-3711

Junq 5.2lXl9

On June 5, 2009 at approxim4tely 1130 in Bldg. 50? I received a phone call froml:Ithe ServiceChief Secretary. lEejq&d 'Iwants to see you immediat€ly please come over to her office." Iproceeded to fi.Iotrce located in Blig. 500, Ground Floor, tmaging Service Deparhrent.

Upon my arrival I noticed two (2) gentlemen exilqg Or. Effice, one sat down in the lobby(name uokrown) and the other stood near Ioffice door.

The Service Chief Dr.

-

asked me to come into her office. As I proceeded she stood atthe foot of the conference table aod was crying. She asked me to sit down, as we both began to sitdown, Dr.Istared "as of Monday you;re being detailed." I immediately requested Unionrepresentation and had asked for a repr€sentative before continuing. However Dr.Idid notrespond to my request; rather she looked away fro4q 4e and stated 'bell anyway I just need you to sigrsome papers." Again, I immediately infomed Dr.Ithat I wanted a Union reprcsentativepresent before we continued. Again she did not respond,

r prcceeoeo to use me pnone rn me uonr loDDy Io conta$ my unlotr reprcsentatrve rrars.IHow-ever, lnlrs.Iras unavailable. As I hung up the phone I irad inrbrmed Dr.Irhar noone-llqq llglEnt and that I would like a Union rep before continuing, The gentleman who stood near,rr.Irururtr uuul urea'y surl",r yuu uufl L nav€ [o rar( [o ner, out you cao uuK to me. lwaiked over to irim anri a.sked who he w'as. I&II Labor Relations Specialists; smed"he was &om H.R.' I immediately inforrnedlhat I couldn't speak with him without Unionrepresentation. I immediately phoned the Union ofiice again however uo one was available,

I immediately proceeded to the Union office to seek assistance. Upon my arrival I met with my Unionrepresentative Mrs.I I iofotmed her about the situation and Management's refusal to allow me aUnioa representative during the counselin€ session tvtrs. Ithen notified Dr.IChiefof staffvia e-mail ofthe situation. pr,Iesponded via e-mail stating'te was told the unionwould be there."

Urs.Informea me that the letters of Detail and Authorized Absence were valid and that wewould address the matter oace I rehrmed from leave.

I proceeded back to my work section located in Bldg 507. Shortly after I arrived I noticed severalemployee's going through my desk and personal belonghgs, additionally they wgr6 lsading myE-mails within my personal account, As I approached they began to scurry off, shortly thereafterICruefRadiologistsTech came overto my OestaiA statea..howis everything going,Isaid to give you this, you've beeir served," He stood there laughing for a moment and then walked off.

I immediately phoned Mrs.Ito inform her of what had happened. I informed her that I waspacking up my belongings and would be leaviag as soon as my spouse arrived to pick me up,

Shortly thereafter Mrs.Ehoned me on my cell phone and asked if I had left ye! she stated 'Ilihad called her and said I haven't left yet and that she was going to call the Police to have me

ttrrown out."

On Friday May 29,2009 my Union representativetEmailed my immediate Supervisor

f-Admlnistative Officer,fFMamger Employee Relations and Dr.IILS;rvrCe Chief about meeting on Jrme 3, 2009 to discuss matte$ pertaining to my EEO and

work related issues and/or complaints. (Please see e-mail dated May 29 , 2009)

Noticeably the requested meefrrig date is two (2) days prior to the Detail and Authorized Absonce given

to me on June 5.2009. Ms. Erade no mention of any impending action to detail me onlyto me on June 5, Ge no mention of any impending action to detail me onlvstating '\re can clo it the weei of thJ 8m ofJune."

Additionally, the Chief of Staff Dr=tated "he was told a Unioo representative would be

there. Will see what happened.' ft i f*iUty Oirestol-il/.s also notitred howwer she didnot respond. Mrltesponse indicates he has fusthand knowledge and was aware of anypending or forth coming action as he indicated I would have a Union representative available.

Please see emails dated: Friday May 29,20A9 @3:07; Friday June 5,2009 @12:48Friday June 5,2009 @l:20; Friday June 5,2009 @l:42; Saturtlay June 6,2009 @2:51

Please see Detail and Authorized Absence lstter dated Friday June 5, 2009

June 16.2009li

On Tuesday Jrme 16, 2009 I emailedl Labor Relations Specialists in regands to theDetail letter dated June 5" 2009. @lease see email dated Tuesday 16 June 2009) He did not respond so

on Thursday June 18, 2009 I phoned Mr.Ip ask for details conceming the Detail letter. Hestated *he didn't kuow he had to respond to my email and that he was to busy for me" when I asked ifhe would provide any details at all he referred me to the Union Additionally, I asked if his Supervisorwas available aad he stated "she was on leave and for me to ask her.' (Please see emai(s) datedTuesday 16 June 2009 aad Thursday l8 June 2009)

Per the VA Handbook 502 I , Employee/tlanagement Relations, Part L, Disciplinary aod AdverseAotions under fitle 5, Chapter l. General, Item#7 B Status of Employee Pending Inquiry orlnvestigation, Item #3 Policy A states "disciplinary and adverse actions shall be govemed by thesebasic principles:

i .j;

1, An employee shall be informed in writing honestly and specifically why the action is beingbrought against him or her,

y1.f6efused to cooperate by failing to provide any details pertaining to the Detail andAuthorized Absence.I .L.ii

5

i}..t

June 23.21X)!)

On Tuesday Juue 23, 2009 in response to the previous conversation held with IpnJune 16, 2009 I contactedl Manager, Employee relations via email requesting informationpertainingto the Fact Finding and Detail. (Please see email daied Tuesday 23 Jrme 2009)

1e 6a6Iras not responded to my email.

Per the Master Agreement Article 13, Discipliae and Adverse Actio& Section l0 B Managernent has an

obligation to reveal any documented notes or statements to the employee in a timely manner after the

occurence of the act

Again, Management has faited to cooperarc by refrrsing to provide any details as to there actions.

Julv 24. 2009

on Friday July 24,2009 at approximately OsoO-oS:o hrsnwalked directly ia ftont ofme aod didn't say a word. Since June 5, 2009 I have been detailed and reassigred to Bldg, 500Primary and Ambulatory Care, My nomral duties are to schedule ap,pointnents rod check patients inor out ofthere scheduled appointrrents.Iaa no appoinment nor did he present

himself to schedule or cancel any appointnents yet he stood there less thans feet away from me,

As Mr.Istood there silently staring at me he walked off only to rehrm walking past me staringat me again and then tunring around to pass by again,

Per the Master Agreement Article 16, Employee Rights, Section I General, Iteo C states 'ho e,mployeewill be zubjected to iatimidatioq coercion, harassment, or unreasonable working conditions as reprisalnor will an employee be used as an example to threaten other employee's."

Shortly thereafter I phoned my Union represeutative Mrs.Io ioform trer oflbehavio'r.Mrs.Itated'Iradjust calledherto schedulethe Fact Findingmeaing on 7-28-09."

Julv 28.2009

to response to the behavior ofC submitted a'Conflict oflnt€rest" letter at the pr€scheduled meeting held on July 28, 2009 in Bldg. 500. (Please sec Letta dated July 28,2009)

Julv29.2lXB

In response to my letter "Conflict of Interest" dated July28,20O9eesponded inwriting. L,Ir,-learly tied coercing my Union repres€ntative into getting me to speak with himand if all else failed Mr-learly stated "I would be reprirnanded/removed from service forfailure to cooperate." (Please see letter dated July 29, 2009)

Per the Master Agr€emeot Article 16, Employee fughts, Section I General, Item C states "no employeewill be subjected to intimidation, coercion, harassmen! or unreasonable working conditions as reprisalnor will an employee be used as an example to threat$ other employee's."

6

Ausust 5.2009

ln response to Mr.Iette, dated July 29, 2009 I requested assistance from The Ofrce ofSpecial Counsel. (P1ease see letter dated July 29,2009)

On August 5, 2009 during a pre scheduled meeting I again objected to the conducting ofthe Fact

FindinC byn During this meeting I presented the letter addressed to The Office ofSpecial Counsel ana-traa proviAea a copy to Mr.f Again Mr.-iled to disclose auy

erid"oo, statements or documents as rcquested by oyself or my Union representative. Additionally inrespons€ totthreatening behavior I reported and provided a Report of Contact tomanagement for disposition @lease see Report of Contact dated 8 August 2009 aad email dated ISepternber 2009)

Per the tvlastor Agreement Article 16, Employee Nghts, Section 1 General, Item C states'tro employee

wilt be subjected to intimidatio& coercion, harassmen! or unreasonable working coaditions as reprisalnor will an employee be used as an example to tlreaten other errployee's."

Aucust 8.20(D

In response to the Detail Letter provided to me on August 7, 2009 via US Postal Mail I submitted arebuttal letter dated August 8, 2009. (Please see Response to Detail Letter dated 8 Auggst 2009)

Seotember 8. 2lXD

_Ql le$embS 9, 2009 I received via US Postal Mail postnarked September I, 2009 a letter fromidressing my concerns. (Please see letter dated September l, 2009)

Seotember 18. 2009

On September 18, 2009 I responded to the letter fromf (Please see letter datedSeptember 18,2009)

Seotember 30.2J02

On September 30, 2009 I received via US Postal Mail postmarked October 5, 2009 a letter fromlIaddressing my "allegation against an employee of the VA Greater Los Angeles HealthcareSystem (GLA)" or moreover my Report of Contact dated August 8, 2009. @lease see letter datedSeptember 30,2009)

October 6.2009

On Octob€r 6, 2009 I responded to letter fromlated September 30, 2009. (Please see

letter dated October 6,2009)

7

October 13.201D

On Tuesday October 13, 2009 I phoned and emaiied f to inquire abour the expiration ofthe 2d detail (dated 8/5 - l0l5n\. He responded via e-mail stating ':|rour deail is exteaded foranother 30 days). (Please see e-maits dated Tuesday October 13, 2009 @855am and Tuesday

October 13,2009 @51am)

November 16.2009

On Monday Novemb er 16, ?009 I emailedffi arrd inform them that there

2 week detail had expired on Saarday November 14,2009. nresponded stating '!ourextended detail is not over until November 18, 2009. You will soon get a letter pmviding you withfurther information regarding yotrr work assignment.o' Shortly thereafter an emailwith an attached 'Continuatioa of Detail' letter he stated'llease see the attached lethr that continuesyour detail to unclassified duties in Primary and Ambulatory Care." I responded tofvia email seeking clarification for the extension ofthe detail. He responded stating "it was hisunderstanding thit it concems the issues I had raised with the Hospital Director Ms.fHowever theie w€rc no new issues I had raised with the Director, I have never spoken to Ms.IWe have only communicated through letter and only about the current reasons and validity ofthe initialdetail. (Please see ernails dated MondayNovember 16,2009 @825an,910am, 1056am, l135am and42spm)

ln closing Mmagement has failed to disclose the nature of the complaint or allegation, failed to provideany Supervisor notes, statements, witnesses, documents, photos or emails as requested.

Management's acknowledgement of any Hosile Work Environment is untimely. Mmagernent'sactions are in response to my filing any EEO and OIG complain(s).

Mamgement has repeatedly failed to show cause and evidence to support their claim of "inappropriateconduct and hostile work environment."

Management has placed me on atotal of (5) details beginning 6i5l09 - 815109,8/5109 -1015/09,l0l5l08 - ll/4109,1114109 - 11/18/09 and 1l/18/09 - ll3l20l0 for atotal of 211 days thus far.

However, the Ofrce of Resolution Maaagement is only allowed 180 days total to conduct a formalinvestigation of discrimination.

It is my opinion fiat Management is using this detail as a means of punishment, retaliation and reprisalfor exercise of my rights to join and participate in the Union and for any EEO md OIG related activity.

Oliver B. Mitchell III

I