United States Army Aviation Center, Fort Rucker, Alabama (Respondent) and Wiregrass Metal Trades Council, AFL-CIO (Complainant) 

 



[ v01 p857 ]
01:0857(98)CA
The decision of the Authority follows:


 1 FLRA NO. 98
 
 UNITED STATES ARMY AVIATION CENTER,
 FORT RUCKER, ALABAMA
 Respondent
 
 and
 
 WIREGRASS METAL TRADES COUNCIL,
 AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 40-8806(CA)
 
                            DECISION AND ORDER
 
    ON MARCH 29, 1979, ADMINISTRATIVE LAW JUDGE MILTON KRAMER 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.  NO EXCEPTIONS WERE FILED 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 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (44 F.R. 44741, JULY 30, 1979).  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 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, AND
 NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
 RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 ON. 40-8806(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 15, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    DAVID M. SMITH
 
    OFFICE OF THE STAFF JUDGE ADVOCATE
 
    U.S. ARMY AVIATION CENTER
 
    FORT RUCKER, ALABAMA 36362
 
                            FOR THE RESPONDENT
 
    MAURICE E. CONWAY
 
    INTERNATIONAL REPRESENTATIVE
 
    INTERNATIONAL BROTHERHOOD OF
 
    ELECTRICAL WORKERS
 
    P.O. BOX 253
 
    LINDEN, ALABAMA 36748
 
                            FOR THE COMPLAINANT
 
    BEFORE:  MILTON KRAMER
 
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE UNDER EXECUTIVE ORDER 11491 AS AMENDED.  IT WAS
 INITIATED WITH A COMPLAINT DATED APRIL 14, 1978 AND FILED APRIL 26, 1978
 BY THE COMPLAINANT ALLEGING THAT THE RESPONDENT HAD VIOLATED SECTIONS
 19(A)(1), (5), AND (6) OF THE EXECUTIVE ORDER.  THE VIOLATIONS WERE
 ALLEGED TO RESULT FROM THE RESPONDENT ALLEGEDLY HAVING COERCED AN
 EMPLOYEE IN THE BARGAINING UNIT INTO WITHDRAWING A GRIEVANCE HE HAD
 FILED AND WHICH HAD PROGRESSED TO THE STAGE OF COMPLAINANT HAVING
 INVOKED ARBITRATION UNDER THE PARTIES' NEGOTIATED GRIEVANCE AND
 ARBITRATION PROCEDURE, AND IN THE RESPONDENT HAVING REFUSED TO PROCEED
 WITH THE ARBITRATION AFTER THE GRIEVANCE HAD BEEN COERCEDLY WITHDRAWN.
 ON JUNE 28, 1978 THE COMPLAINANT WITHDREW ITS ASSERTION THAT SUCH
 CONDUCT VIOLATED SECTION 19(A)(5) OF THE EXECUTIVE ORDER.
 
    THE ACTING REGIONAL ADMINISTRATOR ISSUED A NOTICE OF HEARING.  A
 HEARING WAS HELD IN OZARK, ALABAMA AT WHICH BOTH PARTIES WERE
 REPRESENTED.  BOTH PARTIES PRODUCED WITNESSES WHO WERE EXAMINED AND
 CROSS EXAMINED AND OFFERED EXHIBITS WHICH WERE RECEIVED IN EVIDENCE.
 BOTH PARTIES MADE CLOSING ARGUMENTS AND FILED BRIEFS.
 
                                   FACTS
 
    THE COMPLAINANT IS THE EXCLUSIVELY RECOGNIZED BARGAINING
 REPRESENTATIVE OF A UNIT OF WAGE GRADE EMPLOYEES OF THE RESPONDENT.
 LESTER A. PARAMORE WAS EMPLOYED BY THE RESPONDENT IN THE UNIT AS A
 FURNITURE REPAIRMAN.  IN JULY 1977 HE FILED A GRIEVANCE WITH HIS
 SUPERVISOR, JOHN C. KELLEY, CONTENDING THAT HE WAS IMPROPERLY ASSIGNED
 WORK OF A CARPENTER, WORK OUTSIDE HIS JOB CLASSIFICATION.  IN
 PROSECUTING HIS GRIEVANCE PARAMORE WAS REPRESENTED BY THE COMPLAINANT.
 THE GRIEVANCE WAS DENIED THROUGH THE GRIEVANCE PROCEDURE PRECEDING
 ARBITRATION AND ON OCTOBER 4, 1977 THE COMPLAINANT INVOKED ARBITRATION.
 THE COLLECTIVE AGREEMENT PROVIDES THAT ONLY THE COMPLAINANT OR THE
 RESPONDENT MAY INVOKE ARBITRATION.  AN ARBITRATOR WAS AGREED ON AND A
 DATE FOR THE ARBITRATION HEARING WAS UNDER CONSIDERATION.
 
    LATE IN NOVEMBER 1977, PARAMORE TOLD ONE OF THE COMPLAINANT'S
 STEWARDS HE WAS CONSIDERING WITHDRAWING HIS GRIEVANCE.  LATER IN
 NOVEMBER, PARAMORE ENTERED A HOSPITAL IN MOBILE FOR EXTENSIVE WORK UP OF
 MYOPATHY.  EARLY IN DECEMBER, WHILE STILL IN THE HOSPITAL, A FELLOW
 WORKER ADVISED KELLEY THAT PARAMORE NEEDED SICK LEAVE ADVANCED TO HIM TO
 REMAIN IN A PAY STATUS.  WHAT FOLLOWED IS THE SUBJECT OF SHARPLY
 CONFLICTING TESTIMONY.
 
    PARAMORE TESTIFIED THAT ON DECEMBER 6, KELLEY CALLED HIM AT THE
 HOSPITAL AND TOLD HIM HE NEEDED SOME INFORMATION FROM PARAMORE'S DOCTOR
 TO OBTAIN ADVANCED SICK LEAVE FOR HIM.  HE TESTIFIED FURTHER THAT A FEW
 MINUTES LATER KELLEY CALLED HIM AGAIN AND TOLD HIM THAT OBTAINING
 ADVANCE SICK LEAVE WOULD BE EASIER IF PARAMORE DROPPED "THIS OTHER
 THING", IMPLYING THAT DROPPING THE PENDING GRIEVANCE WOULD FACILITATE
 OBTAINING THE LEAVE.  PARAMORE'S WIFE, WHO, WAS IN THE HOSPITAL ROOM
 WITH HIM AND HEARD HIS END OF THE CONVERSATION, CORROBORATED HIS
 TESTIMONY.
 
    KELLEY, ON THE OTHER HAND, TESTIFIED THAT WHEN ROY F. WATSON, A
 FELLOW WORKER OF PARAMORE'S TOLD KELLEY ABOUT PARAMORE'S NEED FOR
 ADVANCE SICK LEAVE, KELLEY CALLED PARAMORE AT THE HOSPITAL TO TELL HIM
 ABOUT TWO DOCUMENTS KELLEY NEEDED TO OBTAIN THE LEAVE FOR HIM.  HE
 TESTIFIED HE CALLED TWICE, THAT THE FIRST TIME PARAMORE WAS NOT IN THE
 ROOM BUT WAS OUT TAKING A TEST, AND THAT IN THE SECOND CALL A FEW
 MINUTES LATER HE SPOKE WITH PARAMORE AND EXPLAINED THE TWO DOCUMENTS HE
 NEEDED, A WRITTEN REQUEST BY PARAMORE AND A DOCTOR'S CERTIFICATE.  HE
 TESTIFIED FURTHER THAT PARAMORE ASKED HIM WHETHER THE PENDENCY OF HIS
 GRIEVANCE WOULD INFLUENCE HIS BEING GRANTED ADVANCE SICK LEAVE AND THAT
 KELLEY ANSWERED THAT IT WOULD MAKE NO DIFFERENCE.  WATSON, WHO WAS WITH
 KELLEY WHEN HE MADE THE TWO TELEPHONE CALLS AND HEARD KELLEY'S END OF
 THE CONVERSATION, CORROBORATED HIS TESTIMONY.
 
    I FIND THAT PARAMORE WAS CONCERNED THAT THE PENDENCY OF HIS GRIEVANCE
 MIGHT AFFECT HIS BEING GRANTED ADVANCE SICK LEAVE, AND THAT HIS CONCERN
 WAS NOT ENGENDERED BY ANYTHING ANY REPRESENTATIVE OF THE RESPONDENT SAID
 OR DID.
 
    AFTER THE PARAMORE-KELLEY CONVERSATION OR CONVERSATIONS, PARAMORE
 CALLED HIS DAUGHTER IN OZARK (NEAR FORT RUCKER) AND ASKED HER TO WRITE A
 LETTER WITHDRAWING HIS GRIEVANCE AND TO SIGN HIS NAME TO IT AND TO
 DELIVER IT TO KELLEY, AND TO DO THE SAME WITH RESPECT TO A LETTER TO
 KELLEY REQUESTING THE ADVANCE SICK LEAVE.  SHE COMPLIED.  FOR SOME
 REASON NOT EXPLAINED BY THE RECORD, BOTH LETTERS FROM PARAMORE (SIGNED
 BY HIS DAUGHTER) AND THE DOCTOR'S CERTIFICATE ARE ALL DATED DECEMBER 2,
 1977.  PARAMORE WAS GIVEN HIS ADVANCE SICK LEAVE.
 
    AFTER RECEIPT OF THE LETTER FROM PARAMORE, THE RESPONDENT REFUSED TO
 CONTINUE WITH THE ARBITRATION DESPITE THE COMPLAINANT'S INSISTENCE THAT
 IT DO SO.
 
                                DISCUSSION
 
    THE COMPLAINANT STATES THAT THERE ARE TWO ISSUES IN THIS CASE,
 WHETHER PARAMORE WAS COERCED BY THE RESPONDENT INTO WITHDRAWING HIS
 GRIEVANCE AND WHETHER THE RESPONDENT COMMITTED AN UNFAIR LABOR PRACTICE
 BY REFUSING TO PROCEED WITH THE ARBITRATION.  THE RESPONDENT SEES THE
 SAME TWO ISSUES AND IN ADDITION MAKES THE CONTENTION THAT THE COMPLAINT
 WAS PROCEDURALLY DEFECTIVE WITH RESPECT TO ITS ALLEGATION THAT THE
 RESPONDENT VIOLATED SECTION 19(A)(6) OF THE EXECUTIVE ORDER.
 
    I.  THE PRE-COMPLAINT CHARGE REQUIRED BY SECTION 203.2(A) OF THE
 REGULATIONS ALLEGED THAT RESPONDENT HAD VIOLATED SECTIONS 19(A)(1), (5),
 AND (5) OF THE ORDER.  THE COMPLAINT ALLEGED THAT SECTIONS 19(A)(1),
 (5), AND (6) HAD BEEN VIOLATED.  SUBSEQUENTLY, THE ALLEGATION THAT
 SECTION 19(A)(5) HAD BEEN VIOLATED WAS WITHDRAWN.
 
    THE RESPONDENT CONTENDS THAT SINCE THE PRE-COMPLAINT CHARGE DID NOT
 CONTEND THAT SECTION 19(A)(6) HAD BEEN VIOLATED THE COMPLAINANT IS
 PRECLUDED FORM SO CONTENDING IN ITS COMPLAINT.  BUT THE FACTS ALLEGED IN
 THE COMPLAINT DO NOT DIFFER MATERIALLY FROM THOSE ALLEGED IN THE CHARGE.
  THE ASSERTION IN THE COMPLAINT THAT SECTION 19(A)(6) WAS VIOLATED IS A
 CONCLUSION OF LAW, NOT AN ASSERTION OF FACT.  SECTION 203.2(A)(3)
 REQUIRES THAT THE CHARGE SHALL CONTAIN "A CLEAR AND CONCISE STATEMENT OF
 THE FACTS CONSTITUTING THE UNFAIR LABOR PRACTICE".  THERE IS NO
 CONTENTION THAT THAT REQUIREMENT WAS NOT MET.
 
    THE CONTENTION THAT THE COMPLAINT WAS PROCEDURALLY DEFECTIVE
 PREJUDICIALLY TO RESPONDENT'S DEFENSE MUST BE REJECTED.
 
    II.  THE COMPLAINANT CONTENDS THAT KELLEY INTIMIDATED PARAMORE INTO
 WITHDRAWING HIS GRIEVANCE BY TELLING HIM THE WITHDRAWAL WOULD MAKE IT
 EASIER TO OBTAIN HIS REQUESTED ADVANCE SICK LEAVE.  KELLEY STOUTLY
 DENIES MAKING ANY SUCH STATEMENT.  WATSON, WHO WAS PRESENT IN KELLEY'S
 OFFICE DURING THE TELEPHONE CONVERSATION IN WHICH PARAMORE STATES KELLEY
 MADE THE STATEMENT, CONFIRMS KELLEY'S VERSION.  TO BE SURE, MRS.
 PARAMORE CONFIRMS HER HUSBAND'S TESTIMONY, BUT SHE COULD HEAR ONLY HER
 HUSBAND'S PART OF THE CONVERSATION.  IT IS PLAIN THAT PARAMORE WAS QUITE
 CONCERNED ABOUT HIS OBTAINING ADVANCE SICK LEAVE AND THE POSSIBILITY
 THAT THE PENDENCY OF HIS GRIEVANCE MIGHT PREJUDICE HIS OBTAINING IT.
 EVEN BEFORE GOING TO THE HOSPITAL PARAMORE TOLD OTHERS HE WAS
 CONSIDERING WITHDRAWING HIS GRIEVANCE.  I HAVE FOUND THAT NOTHING KELLEY
 SAID CAUSED SUCH CONCERN AND THERE IS NO EVIDENCE AT ALL THAT ANY OTHER
 REPRESENTATIVE OF THE RESPONDENT MADE ANY SUCH STATEMENT.
 
    THE RESPONDENT DID NOT INTIMIDATE OR COERCE PARAMORE INTO WITHDRAWING
 HIS GRIEVANCE TO OBTAIN SICK LEAVE.
 
    III.  AFTER PARAMORE'S GRIEVANCE HAD PROGRESSED (AND BEEN DENIED) TO
 THE POINT WHERE THE NEXT STEP, IF ANY, WAS ARBITRATION, THE COMPLAINANT
 INVOKED ARBITRATION.  UNDER THE PARTIES AGREEMENT, "ARBITRATION MAY BE
 INVOKED ONLY BY THE EMPLOYER OR THE COUNCIL".  THE COMPLAINANT, THE
 COUNCIL, INVOKED ARBITRATION, AN ARBITRATOR WAS SELECTED, AND A DATE FOR
 THE ARBITRATION HEARING WAS UNDER CONSIDERATION.  AT THAT STAGE PARAMORE
 WITHDREW HIS GRIEVANCE AND THE RESPONDENT WITHDREW FROM THE ARBITRATION
 ON THE GROUND THAT THERE WAS NOTHING TO ARBITRATE.
 
    THE COMPLAINANT TAKES THE POSITION THAT SINCE ONLY THE COMPLAINANT OR
 THE RESPONDENT MAY, UNDER THEIR AGREEMENT, INVOKE ARBITRATION, PARAMORE
 WAS WITHOUT AUTHORITY TO WITHDRAW THE GRIEVANCE AFTER ARBITRATION HAD
 BEEN INVOKED.  BUT IT WAS PARAMORE WHO FILED THE GRIEVANCE.  PARAMORE
 DID NOT INVOKE ARBITRATION OR WITHDRAW FROM ARBITRATION.  HE MERELY
 WITHDREW HIS GRIEVANCE.  THE RESPONDENT TAKES THE POSITION THAT THERE IS
 NOW NOTHING TO ARBITRATE AND REFUSES TO PROCEED.  THE COMPLAINANT ARGUES
 THAT THAT IS A BREACH OF THEIR COLLECTIVE AGREEMENT.  PERHAPS IT IS, BUT
 NOT EVERY BREACH OF CONTRACT IS AN UNFAIR LABOR PRACTICE AND PERHAPS THE
 COMPLAINANT HAS OR HAD A LEGITIMATE GRIEVANCE.  /2/ IF SUFFICIENTLY
 FLAGRANT SO AS TO IMPLY BAD FAITH IN ESPOUSING THE PROFESSED VIEWS OF
 THE VIOLATOR, IT MAY RISE TO THE LEVEL OF AN UNFAIR LABOR PRACTICE.
 
    BUT THIS IS NOT SUCH A CASE.  PERHAPS THE RESPONDENT IS WRONG IN ITS
 INTERPRETATION OF THE AGREEMENT TO THE EFFECT THAT THE WITHDRAWAL OF A
 GRIEVANCE BY THE GRIEVANT LEAVES NOTHING ON WHICH ARBITRATION, INVOKED
 BY THE UNION PRIOR TO THE WITHDRAWAL, CAN OPERATE.  BUT SUCH
 INTERPRETATION IS NOT SO OUTRAGEOUS AS TO IMPLY BAD FAITH AND HENCE IS
 NOT AN UNFAIR LABOR PRACTICE PROSCRIBED BY SECTION 19(A) OF THE
 EXECUTIVE ORDER.
 
                                   ORDER
 
    THE COMPLAINT IS DISMISSED.
 
                               MILTON KRAMER
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 29, 1979
 
    WASHINGTON, D.C.
 
    /1/ 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 E.O. 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.
 
    /2/ GENERAL SERVICES ADMINISTRATION, REGION 5, PUBLIC BUILDINGS
 SERVICE AND LOCAL 739, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, A/SLMR
 528.