Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah (Respondent) and American Federation of Government Employees, AFL-CIO, Local 1592 (Complainant) 

 



[ v02 p515 ]
02:0515(70)CA
The decision of the Authority follows:


 2 FLRA No. 70
 
 DEPARTMENT OF THE AIR FORCE,
 OGDEN AIR LOGISTICS CENTER,
 HILL AIR FORCE BASE, UTAH
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1592
 Complainant
 
                                            Assistant Secretary
                                            Case No. 61-3921(CA)
 
                            DECISION AND ORDER
 
    ON JULY 2, 1979, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG 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.  THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS
 WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER, AND REQUESTED A REHEARING IN THIS MATTER.  ON NOVEMBER 19, 1979,
 THE COMPLAINANT FILED A "SUPPLEMENT TO REQUEST FOR EXCEPTION."
 
    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,
 INCLUDING THE COMPLAINANT'S EXCEPTIONS, /1/ THE AUTHORITY HEREBY ADOPTS
 THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.
  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 61-3921(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 25, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    CLARE A. JONES, ESQUIRE
 
    ATTORNEY ADVISOR
 
    OFFICE OF THE STAFF JUDGE ADVOCATE
 
    HILL AIR FORCE BASE, UTAH 84056
 
                            FOR THE RESPONDENT
 
    MRS. ELMA DENNING
 
    DIVISION STEWARD, AFGE LOCAL 1592
 
    BUILDING 362
 
    HILL AIR FORCE BASE, UTAH 84056
 
                            FOR THE COMPLAINANT
 
    BEFORE:  BURTON S. STERNBURG
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A COMPLAINT FILED ON MARCH 16, 1978, UNDER EXECUTIVE
 ORDER 11491, AS AMENDED, BY LOCAL 1592, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, (HEREINAFTER CALLED THE UNION OR
 COMPLAINANT), AGAINST DEPARTMENT OF THE AIR FORCE, OGDEN AIR LOGISTICS
 CENTER, HILL AIR FORCE BASE, UTAH, (HEREINAFTER CALLED THE RESPONDENT OR
 ACTIVITY), A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE REGIONAL
 DIRECTOR FOR THE KANSAS CITY REGION ON APRIL 17, 1979.
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTIONS 19(A)(1)
 AND (2) OF THE ORDER BY REASSIGNING EMPLOYEE JEANNIE HATHENBRUCK ON A
 NON-COMPETITIVE BASIS IN VIOLATION OF AN OUTSTANDING ARBITRATION AWARD.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON MAY 8, 1979, IN OGDEN,
 UTAH.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
 EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING
 ON THE ISSUES INVOLVED HEREIN.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATION.
 
                           FINDINGS OF FACT /3/
 
    ON OCTOBER 21, 1977, ARBITRATOR REED C. RICHARDSON ISSUED A DECISION
 PREDICATED ON A GRIEVANCE FILED BY THE UNION ON SEPTEMBER 3, 1976.  THE
 UNION ALLEGED IN THE SEPTEMBER 3, 1976 GRIEVANCE THAT EMPLOYEE BETTY
 SMITH WAS DETAILED ON A NON-COMPETITIVE BASIS IN VIOLATION OF THE MERIT
 PROMOTION PLAN (OOAMAR-40-6) IN EFFECT AT HILL AIR FORCE BASE AND THE
 PARTIES COLLECTIVE BARGAINING AGREEMENT.
 
    ARBITRATOR RICHARDSON FOUND IN HIS DECISION THAT PARAGRAPHS 2 AND 12
 OF THE MERIT PROMOTION PLAN HAD BEEN VIOLATED WITH RESPECT TO EMPLOYEE
 BETTY SMITH'S DETAIL AND ORDERED THE FOLLOWING REMEDY.
 
    REMEDY
 
    MANAGEMENT IS ORDERED TO CEASE AND DESIST FROM ALLOWING DETAILS BY
 ASSIGNMENT TO BE
 
    EFFECTED WITHOUT COMPETITION IN SITUATIONS THAT ARE THE PURVIEW OF
 THE REQUIREMENTS OF THE
 
    LAST PART OF PARAGRAPH 12 OF OOAMA REGULATION 40-6.  WHEN THIS PART
 OF PARAGRAPH 12 APPLIES,
 
    MANAGEMENT, FIRST, MUST CONDUCT AN EVALUATION TO DETERMINE WHETHER
 'LONG RANGE CAREER
 
    OPPORTUNITIES OF THE EMPLOYEE ASSIGNED . . . WOULD BE INCREASED BY
 THE MOVE' AND, IF THE
 
    EVALUATION IS POSITIVE, SECOND, MUST ASSIGN THE DETAIL THROUGH THE
 COMPETITIVE PROCESS.  /4/
 
    FOLLOWING THE ISSUANCE OF THE AFORESAID ARBITRATOR'S DECISION, MR.
 RALPH PETERSEN, CHIEF OF THE STAFFING SECTION IN THE CIVILIAN PERSONNEL
 OFFICE, SUMMONED HIS SUPERVISORY PERSONNEL TO A MEETING FOR PURPOSES OF
 DISCUSSING THE IMPACT OF THE ARBITRATOR'S DECISION.  DURING THE MEETING
 WHICH WAS HELD IN NOVEMBER OF 1977, MR. PETERSEN INFORMED HIS
 SUBORDINATES THAT ALL FUTURE DETAILS OR REASSIGNMENTS WERE TO BE
 REVIEWED FOR PURPOSES OF DETERMINING "WHETHER OR NOT THE NEW POSITION
 WOULD OFFER MORE OR INCREASED LONG-RANGE PROMOTION POSSIBILITIES THAN
 THE OLD POSITION".  IN THE EVENT THAT THE REVIEW DISCLOSED FUTURE
 PROMOTION POSSIBILITIES, THEN THE DETAIL OR REASSIGNMENT WAS TO BE MADE
 ON A COMPETITIVE BASIS.  THE FOLLOWING MONTH, ON DECEMBER 28, 1977, MR.
 PETERSEN ISSUED A MEMORANDUM TO ALL HIS STAFFING SPECIALISTS WHEREIN HE
 REITERATED IN WRITING THE INSTRUCTIONS HE HAD ORALLY SET FORTH IN THE
 NOVEMBER MEETING CONCERNING DETAILS AND REASSIGNMENTS.
 
    SOMETIME PRIOR TO JANUARY 30, 1978, MRS. DELORES JUDSON, A STAFFING
 SPECIALIST, RECEIVED A FORM 52 VACANCY ANNOUNCEMENT FROM A SUPERVISOR.
 THE FORM 52 WAS ACCOMPANIED BY A REQUEST FROM THE SUPERVISOR THAT MRS.
 JEANNIE HATHENBRUCK BE REASSIGNED INTO THE VACANCY "IF SHE WAS QUALIFIED
 AND IF (MRS. JUDSON) COULD CLEAR THE PRIORITY".  THEREUPON MRS. JUDSON,
 PURSUANT TO OUTSTANDING INSTRUCTIONS, REVIEWED MRS. HATHENBRUCK'S FILE
 FOR PURPOSES OF DETERMINING WHETHER OR NOT THE REASSIGNMENT WOULD
 INCREASE MRS. HATHENBRUCK'S LONG RANGE PROMOTION POSSIBILITIES.  UPON
 CONCLUDING THAT THE REASSIGNMENT OF MRS. HATHENBRUCK FROM A WAGE GRADE 4
 TO A GS-5 SUPPLY CLERK WOULD NOT IMPROVE MRS. HATHENBRUCK'S PROMOTION
 POSSIBILITIES, MRS. JUDSON MADE THE REASSIGNMENT ON A NON-COMPETITIVE
 BASIS.  /5/ IN REACHING HER CONCLUSION THAT THE REASSIGNMENT WOULD NOT
 IMPROVE MRS. HATHENBRUCK'S PROMOTION POSSIBILITIES, MRS. JUDSON RELIED
 PRIMARILY UPON THE FACT THAT GS-5 SUPPLY CLERKS HAD NOT BEEN PROMOTED
 "FOR UPWARDS OF TWENTY YEARS".
 
    ACCORDING TO THE UNCONTESTED TESTIMONY OF MRS. JUDSON, SINCE JANUARY
 30, 1978, WHEN MRS. HATHENBRUCK WAS REASSIGNED ALL BUT ONE OF THE WAGE
 GRADE-4 EMPLOYEES HAVE BEEN PROMOTED.  THERE HAVE BEEN NO PROMOTIONS
 GIVEN TO THE GS-5 EMPLOYEES.
 
    WITH RESPECT TO THE 19(A)(2) ALLEGATION OF THE COMPLAINT,
 COMPLAINANT'S COUNSEL, IN RESPONSE TO A QUESTION FROM THE UNDERSIGNED
 ADMINISTRATIVE LAW JUDGE, MADE IT CLEAR THAT SHE HAD NO EVIDENCE
 INDICATING THAT REASSIGNMENT OF MRS. HATHENBRUCK WAS IN ANYWAY RELATED
 TO MRS. HATHENBRUCK'S MEMBERSHIP IN, OR ACTIVITIES ON BEHALF OF, A LABOR
 ORGANIZATION.
 
                        DISCUSSION AND CONCLUSIONS
 
    SECTION 203.15 OF THE REGULATIONS CURRENTLY IN EFFECT IMPOSES UPON
 THE COMPLAINANT THE BURDEN OF PROVING THE ALLEGATIONS OF THE COMPLAINT
 BY A PREPONDERANCE OF THE EVIDENCE.  COMPLAINANT HAS FAILED TO CARRY
 THIS BURDEN.  THUS, CONTRARY TO THE ALLEGATIONS OF THE COMPLAINT, THE
 RECORD SUPPORTS THE CONCLUSION THAT RESPONDENT DID IN FACT FOLLOW THE
 INSTRUCTIONS SET FORTH IN THE "REMEDY" SECTION OF THE ARBITRATOR'S
 DECISION.  THE UNCONTESTED AND CREDITED TESTIMONY OF MRS. JUDSON
 ESTABLISHES THAT RESPONDENT EVALUATED THE PROMOTIONAL POSSIBILITIES OF A
 GS-5 VIS A VIS A WG-4 AND SANCTIONED THE REASSIGNMENT OF MRS.
 HATHENBRUCK ON A NON-COMPETITIVE BASIS ONLY AFTER CONCLUDING THAT SUCH
 REASSIGNMENT WOULD NOT INCREASE MRS. HATHENBRUCK'S FUTURE PROMOTIONAL
 POSSIBILITIES.  ALTHOUGH NOT PERTINENT TO THE RESOLUTION OF THE INSTANT
 CONTROVERSY, IT IS INTERESTING TO NOTE THAT RESPONDENT'S EVALUATION OF
 THE PROMOTIONAL POSSIBILITIES WAS CORRECT SINCE THE ONLY PROMOTIONS
 WHICH DID SUBSEQUENTLY OCCUR INVOLVED THE WG-4 GRADE OR POSITION FROM
 WHICH MRS.  HATHENBRUCK HAD TRANSFERRED.
 
    IN VIEW OF THE FOREGOING AND IN THE ABSENCE OF ANY EVIDENCE TO
 SUPPORT THE 19(A)(2) ALLEGATION OF THE COMPLAINT, I SHALL RECOMMEND THAT
 THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
                             RECOMMENDED ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
                            BURTON S. STERNBURG
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JULY 2, 1979
 
    WASHINGTON, D.C.
 
    /1/ WE FIND NO MERIT TO THE COMPLAINANT'S EXCEPTIONS.  WE NOTE THAT
 THE EXCEPTIONS ARE BASED ON NEWLY PRESENTED EVIDENCE NOT SHOWN TO HAVE
 BEEN UNAVAILABLE AT THE TIME OF THE HEARING.  MOREOVER, THE EVIDENCE
 WOULD NOT WARRANT A DIFFERENT OUTCOME.  ON THE SAME BASIS, THE MOTION
 FOR REHEARING IS DENIED.
 
    FURTHER, WITH RESPECT TO THE "SUPPLEMENT TO REQUEST FOR EXCEPTION,"
 THE COMPLAINANT ALLEGES THAT AFTER THE ADMINISTRATIVE LAW JUDGE ISSUED
 HIS DECISION, THE EMPLOYEE WHOSE REASSIGNMENT IS THE SUBJECT OF THIS
 CASE WAS PROMOTED.  THIS SUBMISSION DOES NOT AFFECT THE FINDING THAT THE
 RESPONDENT ASSESSED THE PROMOTION POTENTIAL OF THE EMPLOYEE WITH RESPECT
 TO THE JOB AS REQUIRED BY THE ARBITRATOR'S AWARD.
 
    /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 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.
 
    /3/ COMPLAINANT, OTHER THAN SUBMITTING COPIES OF THE ARBITRATOR'S
 AWARD, THE MERIT PROMOTION PLAN IN EFFECT AT HILL AIR FORCE BASE,
 EXCERPTS FROM THE FEDERAL PERSONNEL MANUAL AND A "CONSULTATION FORM"
 INDICATING THAT EMPLOYEE JEANNIE HATHENBRUCK WAS REASSIGNED ON A
 NON-COMPETITIVE BASIS, PRESENTED NO OTHER EVIDENCE IN SUPPORT OF ITS
 CASE.
 
    /4/ PARAGRAPH 12 OF OOAMA REGULATION 40-6 PROVIDES THAT "COMPETITIVE
 PROMOTION PROCEDURES MUST BE APPLIED WHEN INITIALLY FILLING A POSITION
 WITH KNOWN PROMOTION POTENTIAL SINCE THE EMPLOYEE SELECTED WOULD THEN BE
 EXEMPT FROM COMPETING FOR SUBSEQUENT CAREER PROMOTIONS".
 
    /5/ INASMUCH AS A WAGE GRADE 4 MAKES MORE MONEY THAN A GS-5, THE
 REASSIGNMENT WAS NOT A PROMOTION FOR MRS. HATHENBRUCK.  THE RECORD
 FURTHER REVEALS THAT IN APRIL OF 1977, MRS. HATHENBRUCK HAD TRANSFERRED
 FROM A GS-4 TO A WG-1/4 ON A COMPETITIVE BASIS.