Department of the Air Force, Headquarters 438th Air Base Group (MAC), McGuire Air Force Base, New Jersey (Respondent) and American Federation of Government Employees, Local 1778, AFL-CIO (Complainant)

 



[ v04 p170 ]
04:0170(28)CA
The decision of the Authority follows:


 4 FLRA No. 28
 
 DEPARTMENT OF THE AIR FORCE,
 HEADQUARTERS 438TH AIR BASE
 GROUP (MAC), McGUIRE AFB,
 NEW JERSEY
 Respondent
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1778
 Complainant
 
                                                 Assistant Secretary
                                                 Case No. 32-05465(CA)
 
                            DECISION AND ORDER
 
    ON FEBRUARY 12, 1980, ADMINISTRATIVE LAW JUDGE FRANCIS E. DOWD ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDINGS,
 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, 5 CFR
 2400.2.  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 (5 U.S.C. 7135(B)).
 
    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 IN HIS DECISION AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.
 THE RULINGS ARE AFFIRMED.  ON 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 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS,
 AND RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 32-05465(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    NICHOLAS J. ANGELIDES, LT. COL.
    USAF CENTRAL LABOR LAW OFFICE
    RANDOLPH AFB, TEXAS 78148
            AND
    JAMES L. LINSEY, CAPT.
    438 ABG/JA
    MCGUIRE AFB, NEW JERSEY 08641
                            FOR THE RESPONDENT
 
    JOSEPH F. GIRLANDO
    NATIONAL REPRESENTATIVE, AFGE
    300 MAIN STREET
    ORANGE, NEW JERSEY 07050
           AND
    HERMAN A. WINTERS, JR.
    PRESIDENT, LOCAL 1778, AFGE
    P.O. BOX 278
    WRIGHTSTOWN, NEW JERSEY 08562
                            FOR THE COMPLAINANT
 
    BEFORE:  FRANCIS E. DOWD
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           PRELIMINARY STATEMENT
 
    THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREINAFTER REFERRED TO AS THE ORDER).  ON JULY 7, 1978, LOCAL 1778 OF
 THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, (HEREIN THE COMPLAINANT
 OR UNION) FILED A COMPLAINT ALLEGING VIOLATIONS OF SECTIONS 19(A)(1) AND
 (6) OF THE ORDER BASED UPON THE REMOVAL OF PROBATIONARY EMPLOYEE JESSE
 CAMPBELL "BY DENIAL OF RIGHTS GRANTED OTHER EMPLOYEES." THE COMPLAINT
 WAS DISMISSED BY THE REGIONAL ADMINISTRATOR.
 
    ON AUGUST 21, 1979, THE FEDERAL LABOR RELATIONS AUTHORITY REVERSED
 THE REGIONAL ADMINISTRATOR'S DISMISSAL CONCLUDING THERE WAS A REASONABLE
 BASIS FOR THE COMPLAINT "WHICH ALLEGES THAT THE ACTIVITY DENIED MR.
 JESSE CAMPBELL, A PROBATIONARY EMPLOYEE, HIS RIGHTS BY PREVENTING HIM
 FROM FILING A GRIEVANCE UNDER THE NEGOTIATED AGREEMENT CONCERNING THE
 MATTER OF HIS REMOVAL." ON SEPTEMBER 18, 1979, A NOTICE OF HEARING WAS
 ISSUED BY REGIONAL DIRECTOR RONALD T.  SMITH AND, PURSUANT THERETO, A
 HEARING WAS HELD IN LAKEHURST, NEW JERSEY.
 
    AT THE HEARING, BOTH PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND ARGUE
 ORALLY.  THEREAFTER, BOTH PARTIES FILED BRIEFS WHICH HAVE BEEN DULY
 CONSIDERED.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
 TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING
 FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
                             A. BACKGROUND /2/
 
    1.  THE COMPLAINANT IS, AND AT ALL RELEVANT TIMES HAS BEEN, THE
 EXCLUSIVE BARGAINING REPRESENTATIVE FOR A UNIT OF APPROPRIATED FUND
 EMPLOYEES AT MCGUIRE AIR FORCE BASE, NEW JERSEY.
 
    2.  PURSUANT TO THEIR RIGHTS AND OBLIGATIONS UNDER EXECUTIVE ORDER
 11491, AS AMENDED, THE PARTIES ENTERED INTO SUCCESSIVE COLLECTIVE
 BARGAINING AGREEMENTS COVERING THE UNIT.  UNDER THE 1974 AGREEMENT A
 DISPUTE AROSE INVOLVING THE ISSUE OF THE APPLICABILITY OF THE NEGOTIATED
 GRIEVANCE PROCEDURE TO TEST THE TERMINATION OF MRS. MARCELINE A.
 FYLSTRA, A PROBATIONARY EMPLOYEE.  THE MATTER WAS PROCESSED THROUGH THE
 NEGOTIATED GRIEVANCE PROCEDURE TO ARBITRATION.  FOLLOWING A HEARING IN
 JUNE 1975, THE ARBITRATOR FOUND A "PRIMACY" OF APPLICABLE LAWS AND
 REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING THE FPM, UNDER THE
 COLLECTIVE AGREEMENT PROVISIONS AND CONCLUDED AT PAGE 11 IN HIS AWARD
 THAT:
 
    SECTION 8-4-3, SUBCHAPTER 8 OF THE FEDERAL PERSONNEL MANUAL
 SPECIFICALLY HOLDS THAT A
 
    PROBATIONARY EMPLOYEE IS NOT GIVEN A RIGHT TO REPLY TO HIS OR HER
 SEPARATION.  ABSENT THE
 
    RIGHT OF THE EMPLOYEE TO REPLY THERE IS NO REASON TO CONCLUDE THAT
 THE UNION HAS SUCH A
 
    RIGHT.  IT IS HELD THAT THE SEPARATION OF MRS. FYLSTRA (A
 PROBATIONARY EMPLOYEE) IS NOT A
 
    GRIEVABLE MATTER UNDER THE AGREEMENT.  THE ARBITRATOR CAN FIND NO
 MERIT IN THE OTHER ISSUES
 
    RAISED BY THE UNION.  THE ARBITRATOR HOLDS AGAINST THE UNION.
 
    3.  AFTER THE FYLSTRA DECISION AND PRIOR TO THE EFFECTIVE DATE OF THE
 SUCCEEDING MEMORANDUM OF AGREEMENT ON AUGUST 11, 1977, ELEVEN EMPLOYEES
 WERE SEPARATED DURING THEIR PROBATIONARY PERIODS.  THE TESTIMONY OF
 EARNEST HADFIELD DISCLOSES THAT THESE EMPLOYEES WERE NOT AFFORDED THE
 RIGHT TO GRIEVE THEIR SEPARATIONS UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE AND THAT RESPONDENT HAS CONSISTENTLY MAINTAINED THE POSITION
 THAT THE SEPARATION OF PROBATIONARY EMPLOYEES IS NOT GRIEVABLE.
 
    4.  THERE IS A SPECIFIC REFERENCE TO PROBATIONARY EMPLOYEES IN THE
 CURRENT 1977 AGREEMENT AS BEING INCLUDED WITHIN THE UNIT, ALONG WITH
 TEMPORARY EMPLOYEES, IN ARTICLE 2, SECTION 1, "RECOGNITION AND UNIT
 DESIGNATION"-- A STATUS CONCEDED BY RESPONDENT BOTH AT THE FYLSTRA
 ARBITRATION AND THE HEARING OF THE INSTANT CASE.
 
                        B.  THE LEAVE USAGE LETTER
 
    5.  MR. JESSE CAMPBELL BECAME A PROBATIONARY EMPLOYEE, WITHIN THE
 APPROPRIATED FUND UNIT OF EMPLOYEES REPRESENTED BY THE COMPLAINANT, ON
 SEPTEMBER 19, 1977.  MR.  WILLIAM HARPER, AN EMPLOYEE AT MCGUIRE AFB,
 TESTIFIED THAT WHILE ACTING AS VICE-PRESIDENT FOR THE COMPLAINANT, HE
 WAS APPROACHED BY JESSE CAMPBELL ON OR ABOUT DECEMBER 9, 1977.
 ACCORDING TO HARPER, MR.  CAMPBELL COMPLAINED THAT HE HAD BEEN GIVEN A
 WARNING LETTER CONCERNING USAGE (COMPLAINANT'S EXHIBIT NO. 2).  /3/ THE
 LETTER WAS NOT ACTUALLY IDENTIFIED AS A WARNING BUT I AGREE THAT IT
 REASONABLY COULD BE INTERPRETED AS A WARNING.  I DO NOT AGREE THAT IT
 REASONABLY COULD BE INTERPRETED AS A WARNING.  I DO NOT AGREE THAT IT
 CONSTITUTED A PROPOSED DISCIPLINARY ACTION.
 
    6.  MR. CAMPBELL COMPLETED A GRIEVANCE REPORT ON AN INTERNAL UNION
 FORM, COMPLAINING OF HARRASSMENT AND INTERFERENCE IN HIS PERSONAL
 AFFAIRS BY HIS SUPERVISOR.  THE FORM DID NOT SPECIFICALLY REFER TO THE
 LEAVE USAGE LETTER AND IT WAS NOT TRANSMITTED TO THE RESPONDENT.  I FIND
 THAT IT WAS NOT ACTUALLY A GRIEVANCE.
 
    7.  ON DECEMBER 13, THE UNION SENT A LETTER TO RESPONDENT'S LABOR
 MANAGEMENT RELATIONS SPECIALIST, ORLANDO BERGERSEN.  THE LETTER WAS IN
 THE NATURE OF A COMPLAINT ACCORDING TO HARPER (TR. 39);  IT WASN'T
 DESIGNATED AS A GRIEVANCE AND DID NOT CONTAIN A GRIEVANCE CASE NUMBER AS
 WAS CUSTOMARY.  (COMPARE, FOR EXAMPLE, COMPLAINANT'S EXHIBIT NO. 5 AND
 RESPONDENT'S EXHIBIT NO. 6) I AGREE WITH RESPONDENT THAT IT WAS NOT A
 GRIEVANCE.
 
    8.  BETWEEN DECEMBER 13 AND JANUARY 6 THE RESPONDENT DECIDED TO
 REMOVE THE LEAVE USAGE LETTER FROM CAMPBELL'S FILE.  THE UNION
 APPARENTLY LEARNED OF THIS AND THOUGHT ITS COMPLAINT HAD BEEN EFFECTIVE.
  ACTUALLY, HOWEVER, THE REASON FOR THE REMOVAL WAS THAT THE ACTIVITY
 REALIZED THAT THE LEAVE USAGE LETTER WAS UNSIGNED AND UNDATED.  AS OF
 THIS POINT IN TIME, NO FORMAL MEETING TO DISCUSS THIS MATTER HAD BEEN
 HELD.
 
    9.  ON JANUARY 6, THE LEAVE USAGE LETTER TO CAMPBELL WAS REISSUED
 WITHOUT ANY CHANGE AND THIS WAS BROUGHT TO THE UNION'S ATTENTION.  IN
 THE MEANTIME THE UNION LEARNED THAT THE LEAVE USAGE LETTER HAD BEEN
 ISSUED TO AT LEAST 2 OTHER EMPLOYEES, INCLUDING WALLY JONES.
 
    10.  ON JANUARY 16, 1980, A LETTER WAS SENT TO BERGERSEN FROM HARPER
 ENTITLED "UNION GRIEVANCE-- LEAVE USAGE LETTER CASE # 972" SPECIFICALLY
 INVOKING ARTICLE 34-- THE GRIEVANCE PROCEDURE.  PARAGRAPH 6 THEREOF
 MAKES REFERENCE TO PROBATIONARY EMPLOYEES AND PARAGRAPH 4 REFERS TO THE
 ACTIVITY'S UNDATED RESPONSE "RECEIVED DECEMBER 21, 1977" (NOT IN
 EVIDENCE) WHICH I INFER WAS IN REPLY TO THE UNION'S LETTER OF DECEMBER
 13.  FROM THE TESTIMONY OF HARPER, IT IS CLEAR THAT THIS WAS NOT ONLY A
 UNION GRIEVANCE BUT IT WAS ON BEHALF OF THE EMPLOYEES, INCLUDING
 CAMPBELL. (TR. 28, 40)
 
    11.  ON JANUARY 18, 1978, A MEETING ATTENDED BY UNION OFFICIALS
 WINTERS AND HARPER AND RESPONDENT OFFICIALS BERGERSEN AND HADFIELD, WAS
 HELD IN AN ATTEMPT TO RESOLVE THE UNION'S DISSATISFACTION WITH THE LEAVE
 USAGE LETTER PROCEDURE.  THE MEETING RESULTED IN A "RESOLUTION" OF THE
 GRIEVANCE, ACCORDING TO HARPER, HADFIELD AND BERGERSEN.  RESPONDENT
 AGREED NOT TO EMPLOY A "SHOTGUN APPROACH" AND USE THE SAME LETTER FOR
 EVERYONE.  RESPONDENT AGREED TO TAILOR THE LETTER MORE SPECIFICALLY TO
 EACH INDIVIDUAL CASE.  RESPONDENT DID NOT AGREE TO CHANGE CAMPBELL'S
 LETTER BECAUSE NO CHANGE WAS NECESSARY SINCE HE HAD ABUSED BOTH ANNUAL
 AND SICK LEAVE.  RESPONDENT ALSO DID NOT CHANGE THE LETTER TO WALLY
 JONES, A NONPROBATIONARY EMPLOYEE, FOR THE SAME REASON.  I AM UNABLE TO
 CREDIT THE CONFUSING TESTIMONY OF HARPER WHO SEEMED TO THINK THE
 DECISION WITH RESPECT TO CAMPBELL WAS BECAUSE OF IS STATUS AS A
 PROBATIONARY.  I ACCEPT RESPONDENT'S EXPLANATION.
 
                      C.  THE TERMINATION OF CAMPBELL
 
    13.  A LETTER GIVING NOTICE OF PROPOSED SEPARATION DURING
 PROBATIONARY PERIOD WAS ISSUED ON FEBRUARY 9, 1978 AND SERVED ON JESSE
 CAMPBELL WHO BROUGHT THE MATTER TO THE ATTENTION OF WILLIAM HARPER, THE
 UNION'S REPRESENTATIVE.  IN PERTINENT PART, THE BASIS FOR THE PROPOSED
 SEPARATION WAS SET FORTH AS FOLLOWS:
 
    A.  EXCESSIVE ABSENTEEISM:  SINCE YOUR ENTRANCE ON DUTY YOU HAVE BEEN
 ABSENT FROM YOUR
 
    DUTIES FOR 97 HOURS.  THE MAJORITY OF THIS TIME WAS NOT SCHEDULED IN
 ADVANCE.  ON 6 DECEMBER
 
    1977, YOU WERE GIVEN A LETTER PROVIDING EXPLICIT INSTRUCTIONS FOR YOU
 TO FOLLOW TO REQUEST
 
    LEAVE.  SINCE THAT TIME YOU HAVE TAKEN 22 HOURS OF LEAVE, NONE OF
 WHICH WAS SCHEDULED IN
 
    ADVANCE.  YOU HAVE BEEN COUNSELED BY THE UNDERSIGNED ON SEVERAL
 OCCASIONS REGARDING THE PROPER
 
    METHOD OF REQUESTING LEAVE, SPECIFICALLY, 30 SEPTEMBER, 21 OCTOBER, 2
 DECEMBER AND 5 DECEMBER,
 
    1977.
 
    B.  EXCESSIVE TARDINESS:  SINCE YOUR ENTRANCE ON DUTY YOU HAVE BEEN
 LATE FOR WORK ON 2, 3,
 
    4, 28, 30 NOVEMBER 1977;  5, 6, 8, DECEMBER 1977;  AND 10, 19, 23,
 26, 30 JANUARY 1978.  YOU
 
    HAVE BEEN COUNSELED SEVERAL TIMES BY THE UNDERSIGNED CONCERNING YOUR
 TARDINESS, SPECIFICALLY,
 
    4 NOVEMBER 1977;  5 DECEMBER 1977 AND 14 DECEMBER 1977.
 
    I FIND NO EVIDENCE THAT CAMPBELL PERSONALLY FILED OR EVEN ATTEMPTED
 TO FILE A GRIEVANCE, ORAL OR WRITTEN, WITH THE ACTIVITY.  ON THE
 CONTRARY, HE WAS RELYING ON THE UNION FOR ASSISTANCE.
 
    14.  ON FEBRUARY 16, 1978, AFTER SERVICE OF THE NOTICE OF PROPOSED
 SEPARATION, AN UNSCHEDULED MEETING WAS HELD IN MR. BERGERSON'S OFFICE
 CONCERNING THE PROPOSED SEPARATION OF CAMPBELL.  PRESENT WERE MR. HARPER
 AND MR. WINTERS, FOR THE UNION, AND MR. BERGERSON AND MR. HADFIELD, FOR
 RESPONDENT.  TO THE EXTENT THAT THERE IS A CONFLICT IN THE TESTIMONY
 WITH RESPECT TO CERTAIN MATTERS DISCUSSED AT THIS MEETING, I ACCEPT AND
 CREDIT THE MUTUALLY CORROBORATIVE TESTIMONY OF HADFIELD AND BERGERSON,
 BOTH OF WHOM WERE CREDIBLE WITNESSES WHOSE VERSION WAS MOST PLAUSIBLE
 AND CONSISTENT WITH OTHER ASPECTS OF THIS CASE.  I MUST REJECT HARPER'S
 TESTIMONY WHERE IT CONFLICTS WITH RESPONDENT'S WITNESSES.  HARPER HAD A
 POOR MEMORY FOR DETAILS AND WAS CONFUSED ABOUT DATES AND EVENTS.
 ACCORDINGLY, I CONCLUDE THAT RESPONDENT AT THIS FEBRUARY 16 MEETING
 INFORMED THE UNION OF ITS POSITION, AS FOLLOWS:
 
    A.  BECAUSE THE SEPARATION OF CAMPBELL WAS ONLY "PROPOSED", IT WAS
 PREMATURE TO GRIEVE.
 
    B.  PROBATIONARY EMPLOYEES HAD A RIGHT TO FILE GRIEVANCES UNDER THE
 CONTRACT BUT SUCH RIGHT DID NOT EXTEND TO THEIR TERMINATION.  THEREFORE,
 IF THE UNION SHOULD DECIDE TO FILE A GRIEVANCE OR THE TERMINATION,
 RESPONDENT MERELY STATED IN ADVANCE WHAT ITS POSITION WOULD BE, NAMELY,
 THAT PROBATIONARY EMPLOYEES HAD NO RIGHT UNDER THE CONTRACT TO GRIEVE
 THEIR TERMINATION BECAUSE A STATUTORY APPEALS SYSTEM EXISTS FOR THAT
 PURPOSE.
 
    C.  THE UNION DID NOT FILE AN ORAL GRIEVANCE AT THIS MEETING.
 
    D.  RESPONDENT'S REPRESENTATIVE DID NOT PREVENT OR ATTEMPT TO PREVENT
 THE UNION FROM FILING A GRIEVANCE ON BEHALF OF CAMPBELL.
 
    15.  ON FEBRUARY 17 THE DAY AFTER THE MEETING CONCERNING CAMPBELL,
 ANOTHER MEETING WAS CONDUCTED WITH REPRESENTATIVES OF RESPONDENT AND
 THE
 UNION.  THEIR MEETING DEALT WITH THE PROPOSED SEPARATION OF A DIFFERENT
 EMPLOYEE, CONRAD HOLLAND, ALSO A PROBATIONARY EMPLOYEE.
 
    16.  ON MARCH 7 THE UNION WROTE TO THE ACTIVITY IN RESPONSE TO THE
 PROPOSED SEPARATION OF CAMPBELL.  THIS WAS NOT A GRIEVANCE, BECAUSE IT
 WAS NOT DESIGNATED AS SUCH AND NOT ASSIGNED A GRIEVANCE CASE NUMBER BY
 THE UNION.
 
    17.  ON MARCH 10 THE RESPONDENT ISSUED ITS "NOTICE OF DECISION"
 SEPARATING CAMPBELL, EFFECTIVE MARCH 14.
 
    18.  ON APRIL 5 THE RESPONDENT FILED A GRIEVANCE NOT ON BEHALF OF
 CAMPBELL BUT, RATHER, ON BEHALF OF HOLLAND, EVEN THOUGH IT WAS AWARE OF
 RESPONDENT'S POSITION THAT THE MATTER WAS NON-GRIEVABLE.  WHEN
 RESPONDENT FORMALLY REPLIED TO THE GRIEVANCE, THE UNION INITIATED
 ARBITRATION.
 
                              APPLICABLE LAW
 
    SECTION 6(A)(5) OF EXECUTIVE ORDER 11491, AS AMENDED, PROVIDES THAT
 "THE ASSISTANT SECRETARY SHALL . . . DECIDE QUESTIONS AS TO WHETHER A
 GRIEVANCE IS SUBJECT TO A NEGOTIATED GRIEVANCE PROCEDURE OR SUBJECT TO
 ARBITRATION UNDER AN AGREEMENT AS PROVIDED IN SECTION 13(D) OF THIS
 ORDER." SECTION 13(D) OF THE ORDER PROVIDES:
 
    QUESTIONS THAT CAN NOT BE RESOLVED BY THE PARTIES AS TO WHETHER OR
 NOT A GRIEVANCE IS ON A
 
    MATTER FOR WHICH A STATUTORY APPEAL PROCEDURE EXISTS, SHALL BE
 REFERRED TO THE ASSISTANT
 
    SECRETARY FOR DECISION.  OTHER QUESTIONS AS TO WHETHER OR NOT A
 GRIEVANCE IS ON A MATTER
 
    SUBJECT TO THE GRIEVANCE PROCEDURE IN AN EXISTING AGREEMENT, OR IS
 SUBJECT TO ARBITRATION
 
    UNDER THAT AGREEMENT, MAY BY AGREEMENT OF THE PARTIES BE SUBMITTED TO
 ARBITRATION OR MAY BE
 
    REFERRED TO THE ASSISTANT SECRETARY FOR DECISION.
 
    IT IS WELL SETTLED THAT THIS SECTION PROVIDES THE EXCLUSIVE AVENUE
 AVAILABLE FOR UNIONS TO TEST GOOD FAITH ASSERTIONS BY MANAGEMENT THAT
 MATTERS ARE NOT WITHIN THE SCOPE OF THEIR NEGOTIATED GRIEVANCE
 PROCEDURE.  U.S. AIR FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP
 (TAC), HOMESTEAD AFB, FLORIDA, FLRC NO. 75A-82, 3 FLRC 752(1975);
 PENNSYLVANIA ARMY AND AIR NATIONAL GUARD, A/SLMR NO. 1087(1978);
 DEPARTMENT OF THE ARMY, U.S. ARMY MATERIEL DEVELOPMENT AND READINESS
 COMMAND, A/SLMR NO. 1025(1978);  NAVAL AIR REWORK FACILITY, CHERRY
 POINT, NORTH CAROLINA, A/SLMR NO. 849(1977);  AND VETERANS
 ADMINISTRATION HOSPITAL, WACO, TEXAS, A/SLMR NO. 735(1976).
 
    IN THE PENNSYLVANIA ARMY AND AIR NATIONAL GUARD CASE, SUPRA,
 MANAGEMENT WAS ALLEGED TO HAVE VIOLATED THE ORDER BY REFUSING TO PROCESS
 A GRIEVANCE IN ACCORDANCE WITH THE NEGOTIATED PROCEDURE.  IN HIS
 RECOMMENDED DISMISSAL OF THE COMPLAINT, ACCEPTED BY THE ASSISTANT
 SECRETARY, THE ADMINISTRATIVE LAW JUDGE REAFFIRMED THE RULE THAT "A
 REFUSAL TO PROCESS A GRIEVANCE THROUGH A NEGOTIATED GRIEVANCE PROCEDURE
 WITHOUT BAD FAITH DOES NOT CONSTITUTE AN UNFAIR LABOR PRACTICE, AS A
 COMPLAINANT IN SUCH CASES HAS A RIGHT UNDER SECTION 13(D) OF THE ORDER
 TO FILE AN APPLICATION REQUESTING THE ASSISTANT SECRETARY TO DECIDE THE
 QUESTION AS TO GRIEVABILITY AND ARBITRABILITY OF THE GRIEVANCE
 INVOLVED."
 
    THUS, AS POINTED OUT BY RESPONDENT IN ITS BRIEF, THE ELEMENTS OF
 PROOF REQUIRED TO ESTABLISH A VIOLATION BY ANY ALLEGED FAILURE OR
 REFUSAL BY RESPONDENT TO PROCESS A GRIEVANCE ARE TWO FOLD:  FIRST, THE
 COMPLAINANT MUST DEMONSTRATE THAT THERE WAS A MANAGEMENT REFUSAL TO
 PROCESS A GRIEVANCE THROUGH THE NEGOTIATED PROCEDURE;  AND, SECOND, THAT
 THE REFUSAL WAS IN BAD FAITH.
 
                     DISCUSSION AND CONCLUSIONS OF LAW
 
                        A.  THE LEAVE USAGE LETTER
 
    COMPLAINANT CONTENDS THAT RESPONDENT DENIED CAMPBELL THE BENEFIT OF,
 OR ACCESS TO, THE NEGOTIATED GRIEVANCE PROCEDURE.  THE MOST THAT
 CAMPBELL DID WAS TO FILE A "GRIEVANCE REPORT" WITH THE UNION AND RELY ON
 THE UNION TO TAKE THE NEXT STEP.  ACCORDINGLY, THERE IS NO EVIDENCE THAT
 CAMPBELL PERSONALLY ATTEMPTED TO FILE A GRIEVANCE WITH RESPONDENT OR WAS
 PREVENTED FROM FILING A GRIEVANCE.
 
    THE RECORD DOES SHOW THAT THE UNION FILED A GRIEVANCE ON JANUARY 16
 AND I HAVE FOUND, BASED UPON THE RECORD, THAT CAMPBELL'S GRIEVANCE WAS
 ENCOMPASSED BY THIS GRIEVANCE, THE PURPOSE OF WHICH WAS TO OBJECT TO THE
 USE OF THE FORM LETTER WHICH REPRESENTED, ACCORDING TO THE UNION, A
 CHANGE IN PERSONNEL POLICIES AND PRACTICES AFFECTING THE WORKING
 CONDITIONS OF THE EMPLOYEES IN THE UNIT WITHOUT PRIOR NOTICE AND
 CONSULTATION WITH THE UNION.  THE UNION COULD HAVE ELECTED TO FILE AN
 UNFAIR LABOR PRACTICE CHARGE ON THIS ISSUE BUT, INSTEAD, ELECTED TO
 INVOKE THE NEGOTIATED GRIEVANCE PROCEDURE.  ACCORDINGLY, IT IS NOW
 BARRED BY SECTION 19(D) FROM RAISING THIS ISSUE IN THE CONTEXT OF AN
 UNFAIR LABOR PRACTICE PROCEEDING.
 
                      B.  THE TERMINATION OF CAMPBELL
 
    BEFORE REACHING THE QUESTION OF WHETHER THE RESPONDENT HAS REFUSED TO
 PROCESS A GRIEVANCE ON CAMPBELL'S SEPARATION IT IS NECESSARY TO DECIDE
 WHETHER CAMPBELL OR THE UNION FILED OR ATTEMPTED TO FILE A GRIEVANCE IN
 THE FIRST PLACE.
 
    WITH RESPECT TO CAMPBELL'S ACTIONS IN THIS RECORD, THE RECORD SHOWS
 THAT UPON RECEIPT OF THE FEBRUARY 9 LETTER PROPOSING HIS SEPARATION,
 CAMPBELL FIRST WENT TO SEE HIS UNION REPRESENTATIVE, HARPER, AND THEN
 WENT TO SEE SGT. BAXTER, A LEVEL OF SUPERVISION HIGHER THAN HIS
 IMMEDIATE SUPERVISOR, ANN SIMPSON.  CAMPBELL DID NOT TESTIFY THAT HE
 ATTEMPTED TO FILE A GRIEVANCE OR WAS PREVENTED FROM FILING A GRIEVANCE.
 HE APPARENTLY INQUIRED TO WHAT HE COULD DO TO AVOID BEING SEPARATED AND
 WAS TOLD TO WRITE A LETTER "STATING WHY HE SHOULD NOT BE TERMINATED."
 BASED UPON THIS EVIDENCE I AM UNABLE TO CONCLUDE THAT CAMPBELL
 PERSONALLY ATTEMPTED TO GRIEVE HIS PROPOSED SEPARATION OR THAT
 RESPONDENT PREVENTED HIM FROM DOING SO.
 
    THE UNION, HOWEVER, DID (1) MEET WITH RESPONDENT TO DISCUSS
 CAMPBELL'S PROPOSED SEPARATION, AND (2) WRITE TO RESPONDENT ON MARCH 7
 IN REPLY TO THE FEBRUARY 9 LETTER PROPOSING SEPARATION.  BASED UPON THE
 RECORD EVIDENCE, I HAVE CONCLUDED THAT THE UNION DID NOT FILE OR ATTEMPT
 TO FILE A GRIEVANCE ON BEHALF OF CAMPBELL.  RATHER, I HAVE FOUND THAT
 RESPONDENT INFORMED THE UNION THAT IF A GRIEVANCE WERE FILED, IT WOULD
 BE REJECTED ON THE GROUND THAT A PROBATIONARY EMPLOYEE COULD NOT GRIEVE
 A SEPARATION BECAUSE HE HAD TO UTILIZE AN EXISTING STATUTORY APPEALS
 PROCEDURE.  I FURTHER CONCLUDE THAT THIS DID NOT PREVENT THE UNION FROM
 FILING A GRIEVANCE AND THEN UTILIZING SECTION 13(D) OF THE ORDER TO
 OBTAIN A DECISION FROM THE ASSISTANT SECRETARY AS TO WHETHER THE
 GRIEVANCE IS ON A "MATTER FOR WHICH A STATUTORY APPEALS PROCEDURE
 EXISTS."
 
    DURING THE HEARING, UNION WITNESS HARPER ASSERTED THAT BECAUSE OF
 RESPONDENT'S "REFUSAL" TO PROCESS A GRIEVANCE THE UNION HAD NO CHOICE
 BUT TO FILE AN UNFAIR LABOR PRACTICE CHARGE.  OF COURSE THIS IS NOT TRUE
 AS DEMONSTRATED BY THE FACT THAT BEFORE FILING THE INSTANT CHARGE ON
 APRIL 24 THE UNION FILED A GRIEVANCE ON BEHALF OF ANOTHER PROBATIONARY
 EMPLOYEE, HOLLAND, INVOLVING HIS SEPARATION.  THE UNION COULD HAVE DONE
 THE SAME THING FOR CAMPBELL.  THE UNION DID HAVE A CHOICE AND I CONCLUDE
 THAT IT ELECTED TO UTILIZE THE UNFAIR LABOR PRACTICE PROCEDURE.  HAVING
 DONE SO, THE UNION HAS THE BURDEN OF PROVING THAT RESPONDENT, BY ITS
 CONDUCT, VIOLATED THE ORDER.
 
    THE AUTHORITY, IN REVERSING THE REGIONAL DIRECTOR'S DISMISSAL, FOUND
 THAT A REASONABLE BASIS HAD BEEN ESTABLISHED FOR A HEARING TO DETERMINE
 WHETHER THE ACTIVITY DENIED CAMPBELL, A PROBATIONARY EMPLOYEE, HIS
 RIGHTS BY PREVENTING HIM FROM FILING A GRIEVANCE CONCERNING HIS REMOVAL.
 
    BASED UPON MY CONSIDERATION OF ALL THE EVIDENCE, I AM UNABLE TO
 CONCLUDE THAT RESPONDENT PREVENTED CAMPBELL OR THE UNION FROM FILING A
 GRIEVANCE.  ASSUMING, ARGUENDO, THAT A GRIEVANCE WAS FILED, I FIND NO
 EVIDENCE OF A REFUSAL TO PROCESS SAID GRIEVANCE.
 
    ASSUMING, FURTHER, THAT THE RESPONDENT REFUSED TO PROCESS A GRIEVANCE
 FILED BY THE UNION ON CAMPBELL'S BEHALF, I WOULD FURTHER FIND THAT
 RESPONDENT'S REFUSAL WAS NOT IN BAD FAITH.
 
    UNLIKE THE CONTRACT BETWEEN RESPONDENT AND THE UNION FOR A DIFFERENT
 UNIT, /4/ THE INSTANT CONTRACT DOES NOT CONTAIN A PROVISION SPECIFICALLY
 GRANTING PROBATIONARY EMPLOYEES A RIGHT TO GRIEVE THEIR SEPARATION.
 INSTEAD, THE INSTANT CONTRACT SPECIFICALLY INCLUDES MATTERS FOR WHICH
 "STATUTORY APPEALS PROCEDURES EXIST" AND AT THE TIME THE CONTRACT WAS
 NEGOTIATED THE ARBITRATOR IN THE FYLSTRA CASE HAD ALREADY RESOLVED THIS
 ISSUE IN FAVOR OF RESPONDENTS.  IN MY OPINION, IT WAS NOT UNREASONABLE
 FOR RESPONDENT TO BELIEVE THAT THIS ISSUE HAD BEEN LAID TO REST BY THE
 ARBITRATOR'S DECISION.  /5/ ACCORDINGLY, I CONCLUDE THERE IS AMPLE
 EVIDENCE TO SUPPORT RESPONDENT'S LEGAL ARGUMENT THAT IT ACTED IN GOOD
 FAITH BY ADHERING TO THIS POSITION.
 
                              RECOMMENDATION
 
    IT HAVING BEEN FOUND THAT RESPONDENT DID NOT VIOLATE SECTIONS
 19(A)(1) AND (6) OF THE ORDER BY REFUSING TO PROCESS A GRIEVANCE, I
 RECOMMEND THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.