General Services Administration, National Personnel Records Center, A/SLMR No. 1174

 

 1 FLRA No. 96
                                            AUGUST 10, 1979
 
 MS. JANICE K. MENDENHALL
 CONTROLLER-- DIRECTOR OF
 ADMINISTRATION
 GENERAL SERVICES ADMINISTRATION
 WASHINGTON, D.C.  20405
 
                      RE:  GENERAL SERVICES ADMINISTRATION, NATIONAL 
                           PERSONNEL RECORDS CENTER, A/SLMR No. 1174, 
                           Case No. 0-AS-6
 
 DEAR MS. MENDENHALL:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
 REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND THE
 UNION'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2928 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT
 AGAINST THE GENERAL SERVICES ADMINISTRATION, NATIONAL PERSONNEL RECORDS
 CENTER (THE ACTIVITY).  THE COMPLAINT, AS AMENDED, ALLEGED THAT THE
 ACTIVITY VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER BY PROHIBITING
 AN EMPLOYEE FROM ACTING SIMULTANEOUSLY AS AN EQUAL EMPLOYMENT
 OPPORTUNITY (EEO) COUNSELOR AND AS A UNION OFFICER.
 
    THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE (ALJ), WHO CONCLUDED
 THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) OF THE ORDER BY PROHIBITING
 THE EMPLOYEE FROM ACTING SIMULTANEOUSLY AS A PART-TIME EEO COUNSELOR AND
 AS A UNION OFFICER.  /1/ IN REACHING THIS DETERMINATION, THE ALJ
 REJECTED THE ACTIVITY'S ARGUMENT THAT THE HOLDING OF ANY UNION OFFICE,
 REGARDLESS OF ITS DUTIES, WOULD IN ITSELF "RESULT IN A CONFLICT OR
 APPARENT CONFLICT OF INTEREST OR OTHERWISE BE INCOMPATIBLE WITH . . .
 THE OFFICIAL DUTIES OF" AN EEO COUNSELOR WITHIN THE MEANING OF SECTION
 1(B) OF THE ORDER.  IN THIS REGARD, HE STATED:
 
    IN MY VIEW THE DUTIES OF THE PARTICULAR (U)NION OFFICE IN QUESTION
 MUST BE EXAMINED TO
 
    DETERMINE WHETHER ANY CONFLICT WOULD ARISE UNDER (S)ECTION 1(B) OF
 THE ORDER IF THE OFFICER
 
    SIMULTANEOUSLY SERVED AS EEO COUNSELOR.  IN (THE INSTANT) CASE, (THE
 EMPLOYEE'S) DUTIES AS
 
    ASSISTANT SECRETARY-TREASURER-RECORDED INVOLVED ONLY THE INTERNAL
 MANAGEMENT OF THE (U)NION--
 
    PRIMARILY KEEPING THE MINUTES AND MEMBERSHIP ROLLS.  I AM AWARE OF
 (THE ACTIVITY'S) CONTENTION
 
    THAT ALL OFFICERS IN THIS (U)NION HAD THE AUTHORITY TO HANDLE
 GRIEVANCES ON BEHALF OF
 
    EMPLOYEES.  THE EXISTING PRESIDENT OF THE (U)NION TESTIFIED THAT, IN
 HIS OPINION, IF AN
 
    EMPLOYEE DEMANDED TO BE REPRESENTED BY A PARTICULAR (U)NION OFFICER
 IN A GRIEVANCE PROCEEDING,
 
    THE OFFICER WOULD BE REQUIRED TO REPRESENT THAT EMPLOYEE.  EVEN IF I
 WERE CONVINCED THAT THIS
 
    WAS TRUE, I WOULD BE GUIDED BY THE ACTUAL POLICY AND PRACTICE OF THE
 (U)NION RATHER THAN ANY
 
    AUTHORITY TECHNICALLY VESTED IN THE OFFICERS.  THE ESTABLISHED
 PRACTICE WAS THAT ALL
 
    GRIEVANCES WERE HANDLED BY THE STEWARDS OR THE CHIEF SHOP STEWARD,
 AND ONLY ON RARE OCCASIONS
 
    WOULD THE (U)NION PRESIDENT BECOME INVOLVED.  THE OTHER OFFICERS DID
 NOT PARTICIPATE.  IN
 
    ADDITION, (THE EMPLOYEE) CLEARLY HAD NO INTENTION OF EVER HANDLING A
 GRIEVANCE.  I DO NOT
 
    THINK THAT (THE EMPLOYEE) WOULD EVER HAVE PERFORMED ANY SORT OF
 REPRESENTATIONAL DUTIES IN HER
 
    (U)NION JOB.  AT BEST, THE CHANCES OF HER DOING SO WOULD HAVE BEEN
 REMOTE.  THUS (THE
 
    ACTIVITY) HAS IMPROPERLY PORTRAYED (THE EMPLOYEE'S) POSITION WITH THE
 (U)NION AS BEING AN
 
    ADVERSARY OF MANAGEMENT AND AN ADVOCATE FOR EMPLOYEES.
 
    SINCE (THE EMPLOYEE'S) POSITION INVOLVING THE INTERNAL MANAGEMENT OF
 THE (U)NION DID NOT
 
    RESULT IN ANY CONFLICT, OR APPARENT CONFLICT OF INTEREST OR
 INCOMPATIBILITY WITHIN THE MEANING
 
    OF (S)ECTION 1(B), IT FOLLOWS THAT SHE SHOULD NOT HAVE BEEN
 PROHIBITED FROM HOLDING HER
 
    (U)NION OFFICE WHILE ACTING AS AN EEO COUNSELOR.  I MUST CONCLUDE AND
 HOLD THAT (THE
 
    ACTIVITY'S) ACTION INTERFERED WITH HER (S)ECTION 1(A) RIGHT TO
 PARTICIPATE IN THE MANAGEMENT
 
    OF THE (U)NION AND CONSTITUTED A VIOLATION OF (S)ECTION 19()(1) OF
 THE ORDER . . .  /2/
 
    ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THE ACTIVITY TO CEASE
 AND DESIST FROM PROHIBITING THE EMPLOYEE FROM SIMULTANEOUSLY HOLDING THE
 POSITIONS OF EEO COUNSELOR AND ASSISTANT SECRETARY-TREASURER-RECORDER
 FOR THE UNION, AND TO TAKE CERTAIN AFFIRMATIVE ACTIONS.
 
    IN THE ACTIVITY'S PETITION FOR REVIEW, IT IS ALLEGED THAT THE
 ASSISTANT SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS IN THAT IT
 "WAS BASED ON ERRONEOUS CONCLUSIONS (OF THE ALJ WHICH WERE) NOT
 REASONABLY SUPPORTED BY THE EVIDENCE" IN THE RECORD.  IN PARTICULAR, IT
 IS ALLEGED THAT THE ALJ'S CONCLUSION THAT THE EMPLOYEE WAS NOT A "TRUE
 ADVERSARY