Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma (Respondent) and Local 916, American Federation of Government Employees, AFL-CIO (Complainant) 

 



[ v02 p126 ]
02:0126(13)CA
The decision of the Authority follows:


 2 FLRA No. 13
 
 DEPARTMENT OF THE AIR FORCE,
 OKLAHOMA CITY AIR LOGISTICS CENTER,
 TINKER AIR FORCE BASE, OKLAHOMA
 Respondent
 
 and
 
 LOCAL 916, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 63-8033(CA)
 
                            DECISION AND ORDER
 
    ON MAY 7, 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 PRACTICE 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
 NO. 63-8033(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 29, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    CLAUDE V. SUMNER
 
    ATTORNEY AT LAW
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, LOCAL 916
 
    4444 SOUTH DOUGLAS BOULEVARD
 
    OKLAHOMA CITY, OKLAHOMA 73140
 
                            FOR THE COMPLAINANT
 
    MAJOR WILLIAM CREGAR
 
    U.S. AIR FORCE CENTRAL LAW OFFICE
 
    RANDOLPH AIR FORCE BASE
 
    SAN ANTONIO, TEXAS 78148
 
                            FOR THE RESPONDENT
 
    BEFORE:  STEVEN E. HALPERN
 
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                            PROCEDURAL HISTORY
 
    THIS PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED, WAS
 INITIATED BY COMPLAINT FILED DECEMBER 20, 1977.  NOTICE OF HEARING WAS
 INITIALLY ISSUED ON SEPTEMBER 27, 1978, BY THE REGIONAL ADMINISTRATOR OF
 THE UNITED STATES DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES
 ADMINISTRATION, KANSAS CITY REGION.  THE REGIONAL ADMINISTRATOR
 PREVIOUSLY HAVING DISMISSED THE COMPLAINT, SAID NOTICE WAS ISSUED
 PURSUANT TO AN AUGUST 22, 1978, REMAND BY THE ASSISTANT SECRETARY, ON
 APPEAL FROM THE DISMISSAL, BASED UPON HIS FINDING THAT:
 
    CONTRARY TO THE REGIONAL ADMINISTRATOR, I FIND THAT A REASONABLE
 BASIS FOR THE INSTANT
 
    COMPLAINT, WHICH ALLEGES THAT THE RESPONDENT UNILATERALLY CHANGED A
 PAST PRACTICE AND, BY SUCH
 
    CONDUCT, DISCRIMINATED AGAINST AN EMPLOYEE BECAUSE OF HIS UNION
 AND/OR OTHER PROTECTED
 
    ACTIVITY, HAS BEEN ESTABLISHED.
 
    PURSUANT TO A RESCHEDULING NOTICE A HEARING WAS HELD AT OKLAHOMA
 CITY, OKLAHOMA, ON JANUARY 10-11, 1979, AS TO THE ALLEGED VIOLATIONS OF
 SECTION 19(A)(1)(2)(4) AND (6) OF THE ORDER.
 
    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.  /2/ 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
 
    MOTION TO DISMISS
 
    RESPONDENT HAS MOVED TO DISMISS THE INSTANT ACTION ON THE GROUND THAT
 THE ISSUES PRESENTED HERE HAVE BEEN LITIGATED IN A GRIEVANCE PROCEEDING
 AND THEREFORE THERE IS PRESENT A SECTION 19(D) BAR.  HOWEVER, THE RECORD
 DISCLOSES THAT THE ARBITRATOR, BEFORE WHOM WAS A GRIEVANCE BASED UPON AN
 INCIDENT SUBSEQUENT TO THE ONCE HERE AT ISSUE, EXCLUDED COMPLAINANT'S
 PROOFS AS TO THE CIRCUMSTANCES OF THE PRIOR OCTOBER 1977 INCIDENT WHICH
 IS THE SUBJECT MATTER OF THE CASE NOW BEFORE ME.  COMPLAINANT'S PETITION
 FOR REVIEW OF THE ARBITRATOR'S DECISION WAS DENIED BY THE FEDERAL LABOR
 RELATIONS COUNCIL ON DECEMBER 28, 1978, FLRC NO. 78A-113.
 
    IT IS APPARENT THEREFORE THAT COMPLAINANT DID NOT HAVE THE
 OPPORTUNITY IN THE GRIEVANCE PROCEEDING TO FULLY LITIGATE THE MATTERS
 HERE AT ISSUE IN CONNECTION WITH THE NOW SUBJECT OCTOBER 1977 INCIDENT.
 THE FOLLOWING STATEMENT WHICH APPEARS AT PAGE 4 OF THE AUGUST 1, 1978,
 ARBITRATOR'S AWARD IS PERTINENT:
 
    THIS CASE CONCERNS ONLY THE QUESTION OF WHETHER THE GRIEVANT SHOULD
 BE PAID FOR THE ONE
 
    HOUR THAT HE LEFT HIS DUTY STATION ON FEBRUARY 8, 1978, TO CONDUCT
 PERSONAL BUSINESS.  THAT
 
    WAS THE ONLY ISSUE ADDRESSED IN THE FORMAL GRIEVANCE AND THE ONLY
 ISSUE BEFORE THE
 
    ARBITRATOR.  ARTICLE XIII, SECTION D OF THE LABOR-MANAGEMENT
 AGREEMENT LIMITS THE ARBITRATOR'S
 
    AUTHORITY TO THE ISSUES RAISED IN THE FORMAL GRIEVANCE.  THUS, THE
 GRIEVANT'S ABSENCE ON
 
    OCTOBER 28, 1977, (SIC) THE ISSUE OF BREAK TIME, THE GRIEVANT'S
 REPRIMAND, AND THE ALLEGATIONS
 
    OF REPRISAL ARE ALL BEYOND THE SCOPE OF THIS CASE.
 
    IN LIGHT OF THE FOREGOING RESPONDENT'S MOTION TO DISMISS IS DENIED.
 
    THE MERITS
 
    AT ALL MATERIAL TIMES COMPLAINANT UNION WAS IN APPROPRIATE
 REPRESENTATIVE STATUS.
 
    IT IS NOT IN DISPUTE THAT MR. WAYNE SAIN, A STEWARD OF SAID UNION,
 DEPARTED HIS DUTY STATION ON THE MORNING OF OCTOBER 27, 1977, WITHOUT
 FIRST OBTAINING FROM HIS SUPERVISOR AN ADMINISTRATIVE PERMIT AND BEING
 PLACED ON "OFFICIAL" TIME;  AND, THAT HE WAS CHARGED WITH BEING ABSENT
 WITHOUT OFFICIAL LEAVE ("AWOL") FOR 15 MINUTES.  I FIND THE
 PREPONDERANCE OF THE EVIDENCE TO DISCLOSE THAT HE DID NOT RETURN TO HIS
 DUTY STATION FOR IN EXCESS OF 15 MINUTES;  INDEED, ALTHOUGH THE EVIDENCE
 IS LESS THAN CONCLUSIVE AS TO THE PRECISE AMOUNT OF TIME HE WAS ABSENT
 IT WOULD NOT BE UNREASONABLE TO FIND THAT SUCH WAS FOR A SUBSTANTIALLY
 LONGER PERIOD.
 
    IT IS AGREED BY THE PARTIES, AND IN ANY EVENT I FIND, THAT IN
 PRACTICE THE CONTROLLING COLLECTIVE BARGAINING AGREEMENT (ARTICLE XI
 SECTION C) /3/ REQUIRES A UNION STEWARD ACTING ON A UNION MATTER DURING
 DUTY HOURS TO DO SO ONLY WITH PRIOR MANAGERIAL APPROVAL OF "OFFICIAL"
 TIME AND HAVING BEEN ISSUED AN ADMINISTRATIVE PERMIT.
 
    IT IS UNDISPUTED THAT MR. SAIN'S ACTIVITIES DURING HIS ABSENCE FROM
 DUTY WERE IN AN EFFORT TO OBTAIN A DOCUMENT NEEDED IN CONNECTION WITH A
 PRIOR PENDING ULP.  WHETHER OR NOT HE WAS THEN ENGAGED IN A UNION
 ACTIVITY IS CONTESTED AND I HAVE FOUND HEREIN THAT HE WAS.
 
    UNION EXHIBIT 3, RECEIVED PURSUANT TO A POST-TRIAL MOTION,
 CONSTITUTES EVIDENCE THAT THE PRIOR ULP IN CONNECTION WITH WHICH MR.
 SAIN SOUGHT TO OBTAIN SUCH DOCUMENT WAS A DIFFERENT ULP THAN THAT
 TESTIFIED TO BY HIM AT THE HEARING.  I SHALL DISCUSS COMPLAINANT'S
 CONTENTIONS IN RELATION TO BOTH PRIOR ULP'S;  HOWEVER, IN SO DOING, I
 NOTE PRELIMINARILY THAT THERE APPARENTLY WERE FOUR ADDITIONAL ULP'S THEN
 PENDING IN WHICH MR. SAIN WAS INVOLVED;  AND, WHICH ONE HE IN FACT WAS
 PURSUING AT THE TIME IN ISSUE REMAINS LESS THAN CERTAIN.
 
    A.  THE PRIOR ULP AS TESTIFIED BY MR. SAIN AT THE HEARING
 
    THE FOLLOWING EXCERPT FROM THE UNION'S AUGUST 26, 1977, LETTER SIGNED
 BY ITS PRESIDENT, SETS FORTH THE CHARGE INVOLVED IN SAID PRIOR ULP:
 
    THIS LETTER CONSTITUTES THE FILING OF AN UNFAIR LABOR PRACTICE CHARGE
 AGAINST MANAGEMENT OF
 
    TINKER AIR FORCE BASE BY THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 916.
 
   .          .          .          .
 
 
    AFGE LOCAL 916 HEREBY CHARGES THAT MANAGEMENT HAS VIOLATED SECTION
 19(A)(1) OF THE
 
    EXECUTIVE ORDER BY NOT ALLOWING PROPER RELEASE OF STEWARD(S) FOR THE
 PURPOSE OF EMPLOYEE
 
    REPRESENTATION AS OUTLINED IN THE LABOR MANAGEMENT AGREEMENT, ARTICLE
 XI, SECTION F.  ON 13
 
    JULY 1977 AND AGAIN ON 18 AUGUST1977, MR. BRITT WAS NOTIFIED BY
 VARIOUS SUPERVISORS THAT THEIR
 
    EMPLOYEES REQUESTED A UNION REPRESENTATIVE (MR. WAYNE SAIN).  ON BOTH
 OCCASIONS, MR. BRITT
 
    DENIED THE RELEASE OF THE UNION REPRESENTATIVE.
 
    THE UNION CHARGES MR. BRITT IS INTENTIONALLY DELAYING THE PROCESSING
 OF GRIEVANCES,
 
    THEREFORE INTERFERING WITH THE RIGHTS OF THE EMPLOYEES ATTEMPTING TO
 UTILIZE THEIR NEGOTIATED
 
    GRIEVANCE PROCEDURE.
 
    IT IS THE CIRCUMSTANCE THAT MR. SAIN WAS THE UNION REPRESENTATIVE
 INVOLVED IN THE SAID PRIOR ULP THAT GIVES RISE TO COMPLAINANT'S
 CONTENTION THAT, AT THE TIME IN QUESTION, HE WAS ACTING ON PERSONAL
 RATHER THAN UNION BUSINESS AND THAT SUCH BUSINESS WAS PROPERLY CONDUCTED
 WITHIN THE ALLOWABLE TIME OF HIS DISCRETIONARY "BREAK" PERIOD AND
 WITHOUT SUPERVISORY APPROVAL OF OFFICIAL TIME AND THE ISSUANCE OF AN
 ADMINISTRATIVE PERMIT.
 
    I CANNOT ACCEPT COMPLAINANT'S PREMISE.  THE INTEREST OF THE UNION QUA
 UNION IN OBTAINING A DOCUMENT DEEMED NECESSARY TO A SUCCESSFUL
 PROSECUTION OF SAID ULP IS PATENT AND REQUIRES NO ELABORATION.  WHILE
 MR. SAIN MAY HAVE HAD AN INTEREST IN SAID MATTER SINCE HE WAS THE
 STEWARD NAMED THEREIN, SUCH INTEREST WAS NOT PERSONAL TO HIM AS AN
 INDIVIDUAL BUT RATHER TO HIM IN HIS OFFICIAL UNION CAPACITY AND
 THEREFORE WAS NOT PERSONAL BUSINESS OF THE NATURE ARGUED BY COMPLAINANT.
  ALTHOUGH THE CHIEF STEWARD WAS HANDLING SAID ULP, MR.  SAIN'S
 ACTIVITIES IN CONNECTION WITH OBTAINING THE DOCUMENT DEEMED NECESSARY TO
 ITS PROSECUTION WERE AUTHORIZED BY HIM AND WERE ON BEHALF OF THE UNION
 TO NO LESSER EXTENT THAT IF THE CHIEF STEWARD HAD SO ACTED RATHER THAN
 MR. SAIN IN HIS STEAD.  IT CAN HARDLY BE ARGUED THAT THE CHIEF STEWARD
 WOULD HAVE BEEN ACTING ON MR. SAIN'S PERSONAL BUSINESS RATHER THAN ON
 UNION BUSINESS HAD HE, RATHER THAN MR. SAIN, ATTEMPTED TO OBTAIN THE
 DOCUMENT SOUGHT BY SAIN DURING HIS ABSENCE FROM DUTY.
 
    AT BEST, MR. SAIN AT THE TIME IN QUESTION WAS ENGAGED IN A MIXED
 PERSONAL AND UNION ENDEAVOR.  THE ARGUABLE PERSONAL ASPECT OF SUCH DUAL
 INTEREST IN NO WAY SERVES TO NEGATE THE UNION PURPOSE SERVED AND SAIN'S
 ACTIVITY, EVEN VIEWED IN THIS LIGHT, REMAINS WITHIN THE AMBIT OF UNION
 ACTIVITY.
 
    AS AFORESAID, UNDER THE TERMS OF THE CONTROLLING COLLECTIVE
 BARGAINING AGREEMENT, AS INTERPRETED AND PRACTICED BY THE PARTIES, IT IS
 UNDISPUTED THAT A STEWARD IS REQUIRED TO OBTAIN AN ADMINISTRATIVE PERMIT
 AND BE PLACED ON OFFICIAL TIME WHEN PERFORMING UNION BUSINESS DURING
 DUTY HOURS.  AND, THE PARTIES ARE IN AGREEMENT /4/ THAT A STEWARD MAY
 NOT ENGAGE IN UNION BUSINESS DURING A DISCRETIONARY PERSONAL "BREAK"
 PERIOD WITHOUT COMPLYING WITH THE AGREEMENT'S AFORESAID TERMS.  THIS IS
 SO BECAUSE A "BREAK" (AS OPPOSED, FOR EXAMPLE, TO A NON-PAID LUNCH
 PERIOD) IS PAID TIME.
 
    FURTHERMORE, MS. SAIN, ACCORDING TO HIS WRITTEN STATEMENT OF MARCH 2,
 1978 (R-7), /5/ UNDERSTOOD THE APPROPRIATE TIME FOR SUCH "BREAK" TO BE
 10 MINUTES.  WHILE THERE IS SOME CONFLICTING TESTIMONY THAT THE
 ALLOWABLE TIME FOR A BREAK IS AS MUCH AS 15 MINUTES, SINCE MR. SAIN IS
 THE INDIVIDUAL DIRECTLY INVOLVED I SHALL BIND HIM BY THAT STATEMENT AND
 FOR THE PURPOSES OF THIS CASE FIND THE ALLOWABLE PERIOD OF TIME FOR
 ABSENCE FROM HIS DUTY STATION ON A DISCRETIONARY "BREAK" PERIOD, AS
 ESTABLISHED BY PAST PRACTICE, TO HAVE BEEN 10 MINUTES.  THUS, EVEN
 ASSUMING ARGUENDO THE MERIT OF COMPLAINANT'S PERSONAL BUSINESS THEORY
 (WHICH I REJECT), MR. SAIN, BASED UPON MY PRIOR FINDING OF AN ABSENCE IN
 EXCESS OF 15 MINUTES, WOULD HAVE EXCEEDED THE ALLOWABLE "BREAK" TIME AND
 BEEN ABSENT FROM HIS DUTY STATION WITHOUT OFFICIAL LEAVE AT THE TIME IN
 QUESTION.  /6/
 
    B.  THE PRIOR ULP AS REPRESENTED BY MR. SAIN POST-HEARING IN EXHIBIT
 U-3
 
    AS TO THE PRIOR ULP IN CONNECTION WITH WHICH, BY U-3, COMPLAINANT
 CONTENDS MR. SAIN WAS ATTEMPTING TO OBTAIN A NECESSARY DOCUMENT AT THE
 TIME HERE IN ISSUE I NOTE THE FOLLOWING:  AT A JULY 28, 1977, MEETING
 WITH MANAGEMENT IN AN ATTEMPT TO INFORMALLY RESOLVE SAID PRIOR ULP MR.
 SAIN APPEARED AS "DESIGNEE FOR THE PRESIDENT AFGE LOCAL 916" (U-3,
 ATTACHMENT I B).  THUS, TO WHATEVER EXTENT HE MAY HAVE BEEN PERSONALLY
 CONCERNED HE WAS ALSO THEN ACTING ON BEHALF OF THE UNION.  TO NO LESSER
 EXTENT WAS HE ACTING ON BEHALF OF THE UNION AT THE TIME IN QUESTION
 HEREIN;  AND, I SO FIND.  THE DISCUSSION SET FORTH IN A. HEREINABOVE
 THEREFORE REMAINS APPLICABLE EVEN IF THE PRIOR ULP WERE THE ONE
 PRESENTLY CONTENDED BY COMPLAINANT.
 
    I MUST FURTHER AGAIN COMMENT THAT UPON THE PRESENT CONTRADICTORY
 STATE OF THE RECORD IT IS QUESTIONABLE WHICH OF THE SIX PRIOR ULP'S MR.
 SAIN IN FACT WAS PURSING AT THE TIME IN QUESTION AND WHICH DOCUMENT HE
 WAS ATTEMPTING TO SECURE.  WHILE I DO NOT SUGGEST THAT MR. SAIN HAS
 DELIBERATELY GIVEN FALSE TESTIMONY I FIND THAT HIS TESTIMONY IN THAT
 AREA OF MAJOR CONCERN REFLECTS A TENDENCY TO SPECULATE WHEN HE IS LESS
 THAN REASONABLY CERTAIN;  AND, IN MY OPINION, HIS OVERALL CREDIBILITY
 HAS BEEN DIMINISHED.
 
    HAVING DETERMINED THAT MR. SAIN WAS AWOL, A DETERMINATION WITH WITH I
 AGREE UNDER THE CIRCUMSTANCES ABOVE DESCRIBED, RESPONDENT, ACTING
 THROUGH SAIN'S SUPERVISOR, OFFERED TO PERMIT HIM TO AVOID AN AWOL CHARGE
 BY SIGNING FOR ANNUAL LEAVE.  MR. SAIN DECLINED THE OFFER WHEREUPON HE
 WAS CHARGED WITH A 15-MINUTE AWOL, SAID AMOUNT BEING THE LEAST
 ADMINISTRATIVELY CHARGEABLE;  AND, ALTHOUGH FURTHER MEASURES OF A
 DISCIPLINARY NATURE COULD HAVE BEEN TAKEN THEY WERE NOT.  I FURTHER
 CREDIT THE TESTIMONY OF HIS SUPERVISOR THAT MR. SAIN HAD BEEN CAUTIONED
 IN THE PAST ABOUT ENGAGING IN UNION ACTIVITIES DURING DUTY HOURS WITHOUT
 APPROPRIATE AUTHORIZATION.
 
    THE COMPLAINT
 
    UNDER THESE CIRCUMSTANCES COMPLAINANT HAS CHARGED THAT RESPONDENT
 VIOLATED SECTION 19(A)(1), (2), (4), AND (6):
 
    AGENCY MANAGEMENT VIOLATED SECTION 19(A)(2) OF THE EXECUTIVE ORDER
 11491 THROUGH THE
 
    DISCRIMINATING ACT OF WITHHOLDING PAY FROM AN EMPLOYEE BECAUSE OF HIS
 ACTIVITIES AS A UNION
 
    STEWARD OF LOCAL 916.  AGENCY MANAGEMENT COMMITTED THIS CAPRICIOUS
 AND VINDICTIVE ACT BY
 
    DISCRIMINATELY CHARGING MR. SAIN 15 MINUTES AWOL FOR BEING AWAY FROM
 HIS POST OF DUTY WITHOUT
 
    AN ADMINISTRATIVE PERMIT.
 
    SECTION 19(A)(4) WAS VIOLATED BY TAKING DISCIPLINARY ACTION AND
 DISCRIMINATING AGAINST
 
    MR. SAIN BECAUSE HE HAS FILED COMPLAINTS AGAINST MR. BRITT UNDER THE
 ORDER.  THIS
 
    DISCRIMINATORY ACT WAS COMMITTED WHEN MR. SAIN WAS CHARGED WITH AWOL
 FOR NOT HAVING AN
 
    ADMINISTRATIVE PERMIT WHILE BEING AWAY FROM HIS POST OF DUTY.  THE
 PRACTICE OF REQUIRING
 
    EMPLOYEES TO HAVE AN ADMINISTRATIVE PERMIT WITHIN MR. SAIN'S UNIT IS
 NOT CONSISTENT BASEWIDE
 
    OR WITHIN THE ACD DIVISION.  THE UNION ALLEGES MR. SAIN WAS CHARGED
 AWOL SOLELY BECAUSE OF HIS
 
    FILING COMPLAINTS UNDER THE ORDER AND BECAUSE OF HIS UNION
 ACTIVITIES.
 
    SECTION 19(A)(6) WAS VIOLATED WHEN MR. BRITT IMPOSED THE REQUIREMENT
 FOR MR. SAIN TO HAVE
 
    AN ADMINISTRATIVE PERMIT WHEN BEING AWAY FROM HIS POST OF DUTY.  THE
 ESTABLISHED PROCEDURE IN
 
    MR. SAIN'S AREA IS THE USE OF A "SIGN-OUT" BOARD WHEN BEING AWAY FROM
 THE WORK AREA.  THE
 
    AGENCY HAS NEVER NEGOTIATED A REQUIREMENT TO COMPLETE AN
 ADMINISTRATIVE PERMIT WHEN AN
 
    EMPLOYEE IS AWAY FROM HIS POST OF DUTY.  THE PRACTICE IS NOT
 CONSISTENT THROUGHOUT THE AGENCY
 
    REQUIRING EMPLOYEES TO OBTAIN AN ADMINISTRATIVE PERMIT PRIOR TO
 LEAVING THEIR POST OF DUTY.
 
    AS COMPLAINANT IN THIS MATTER THE UNION, OF COURSE, BEARS THE BURDEN
 OF PROVING ITS CHARGES BY A PREPONDERANCE OF THE CREDIBLE EVIDENCE.  AS
 I HAVE ALREADY INDICATED I AM UNABLE TO PLACE ANY GREAT RELIANCE ON THE
 TESTIMONY OF MR. SAIN, COMPLAINANT'S MAJOR WITNESS.  IN THE FINAL
 ANALYSIS, ALTHOUGH COMPLAINANT HAS SO SUGGESTED AND ARGUED, IT HAS
 FACTUALLY ESTABLISHED NEITHER THAT THE AWOL ACTION TAKEN AGAINST MR.
 SAIN WAS OCCASIONED BY HIS PRIOR ACTIVITIES IN CONNECTION WITH
 COMPLAINTS FILED AGAINST MANAGEMENT, NOR BY HIS PAST (PROPER)
 PARTICIPATION IN UNION ACTIVITIES, NOR THAT SUCH WAS OTHER THAN
 CONSISTENT WITH THE TERMS OF THE PARTIES AGREEMENT AND WARRANTED UNDER
 THE CIRCUMSTANCES.
 
    TO THE EXTENT THAT COMPLAINANT'S CONTENTION THAT STEWARD SAIN WAS
 SUBJECTED TO DISPARATE TREATMENT IS BASED UPON A COMPARISON BETWEEN THE
 ESTABLISHED PRACTICE FOR THE RELEASE FROM DUTY OF NON-UNION STEWARD
 EMPLOYEES, AS OPPOSED TO UNION STEWARDS ENGAGED IN UNION-RELATED
 ACTIVITIES, IT IS MISPLACED AND SPURIOUS.
 
    AS TO THE SIGN-OUT BOARD IT HAS NOT BEEN ESTABLISHED THAT ITS
 FUNCTION WAS OTHER THAN FOR INFORMATIONAL PURPOSES SO AS TO ENABLE ANY
 ABSENT EMPLOYEE (INCLUDING A STEWARD ENGAGED IN A UNION ACTIVITY) TO BE
 LOCATED IF NECESSARY;  SIGNING OUT THEREON DID NOT CONSTITUTE PRIOR
 SUPERVISORY APPROVAL OF ABSENCE FROM DUTY.  IN ANY CASE, THE PARTIES
 NEGOTIATED AGREEMENT SUPERSEDED WHATEVER PRACTICE MAY THERETOFORE HAVE
 EXISTED FOR THE RELEASE OF STEWARDS TO PURSUE UNION INTERESTS DURING
 DUTY HOURS.
 
    WHILE IT IS EVIDENT THAT LABOR-MANAGEMENT RELATIONS IN MR. SAIN'S
 UNIT ARE NOT AT A HIGH WATER MARK AND THAT HIS RELATIONSHIP WITH HIS
 SUPERVISOR IS STRAINED, IT HAS NOT BEEN ESTABLISHED BY A PREPONDERANCE
 OF THE EVIDENCE THAT THE AWOL CHARGE WAS OTHER THAN WARRANTED AND
 PROPER
 UNDER THE CIRCUMSTANCES OR IN ANY MANNER WAS DISCRIMINATORY OR MOTIVATED
 BY ANTI-UNION CONSIDERATIONS.  FURTHERMORE, IF THE IMPOSITION OF THE
 AWOL CHARGE WERE AN ILL MOTIVATED AND VINDICTIVE ACT, IT IS UNLIKELY
 THAT MR. SAIN WOULD HAVE BEEN OFFERED THE OPTION TO AVOID IT.
 
    I CONCLUDE THAT THE VIOLATIONS OF SECTION 19(A)(2)(4) AND (6) OF THE
 ORDER ALLEGED HAVE NOT BEEN PROVEN.
 
    CONCLUSIONARY SUMMARY
 
    IN PRACTICE, THE GOVERNING COLLECTIVE BARGAINING AGREEMENT REQUIRES A
 UNION STEWARD, WHO LEAVES HIS DUTY STATION DURING DUTY HOURS (INCLUDING
 "BREAK" PERIODS) TO ENGAGE IN UNION CONNECTED ACTIVITY, (A) TO OBTAIN
 FROM HIS SUPERVSIOR PRIOR AUTHORIZATION TO DO SO ON "OFFICIAL" TIME AND
 (B) TO OBTAIN AN ADMINISTRATIVE PERMIT.  STEWARD SAIN, WHOM I HAVE FOUND
 TO HAVE BEEN ENGAGED IN A UNION CONNECTED MATTER AT THE TIME IN
 QUESTION, DID NEITHER OF THESE THINGS PRIOR TO DEPARTING HIS DUTY
 STATION.  WHEN APPREHENDED, HE DECLINED RESPONDENT'S OFFER TO PERMIT HIM
 TO SIGN FOR ANNUAL LEAVE AND THUS AVOID THE AWOL WITH WHICH HE WAS
 PROPERLY CHARGEABLE;  INSTEAD, HE HAS CHOSEN TO CAUSE TO BE INSTITUTED
 THIS ULP ACTION, THE BASIC PREMISE OF WHICH IS THAT RESPONDENT COMMITTED
 A DISCRIMINATORY ANTI-UNION ACT IN ASSIGNING THE AWOL.
 
    TO WHATEVER EXTENT, MR. SAIN'S RELATIONSHIP WITH HIS SUPERVISOR AND
 MANAGEMENT IN GENERAL, HAS BEEN SHOWN TO BE LESS THAN CORDIAL, IT HAS
 NOT BEEN DEMONSTRATED BY A PREPONDERANCE OF THE CREDIBLE EVIDENCE IN
 THIS CASE THAT HE WAS CHARGED AWOL FOR ANY REASON OTHER THAN THAT HE WAS
 IN FACT AWOL.
 
    THUS, HAVING CONCLUDED THAT COMPLAINANT HAS NOT ESTABLISHED SECTION
 19(A)(2)(4) OR (6) VIOLATIONS AND HAVING FOUND THAT RESPONDENT'S ACTION
 HEREIN RISES TO NO HIGHER LEVEL THAN PROPER ENFORCEMENT OF THE PARTIES'
 NEGOTIATED AGREEMENT, I FIND THAT THERE HAS BEEN NO INTERFERENCE WITH,
 RESTRAINT PR COERCION AS TO THE EXERCISE OF ANY RIGHTS ASSURED BY THE
 RESTRAINT OR COERCION AS TO THE EXERCISE OF ANY RIGHTS ASSURED BY THE
 
    IN VIEW OF THE FOREGOING I FIND IT UNNECESSARY TO ADDRESS ANY OF THE
 OTHER ISSUES INTRODUCED INTO THIS MATTER.
 
                                   ORDER
 
    THE WITHIN COMPLAINT IS DISMISSED IN ITS ENTIRETY.
 
    SO ORDERED, IN THE NAME OF THE FEDERAL LABOR RELATIONS AUTHORITY,
 THIS 7TH DAY OF MAY, 1979, IN SAN FRANCISCO, CALIFORNIA.