09:0871(117)CA - Air Force, 2750th Air Base Wing HQ, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Local 1138 -- 1982 FLRAdec CA



[ v09 p871 ]
09:0871(117)CA
The decision of the Authority follows:


 9 FLRA No. 117
 
 UNITED STATES AIR FORCE
 2750TH AIR BASE WING HEADQUARTERS
 AIR FORCE LOGISTICS COMMAND
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1138, AFL-CIO
 Charging Party
 
                                            Case Nos. 5-CA-736
                                                      5-CA-737
                                                      5-CA-738
                                                      5-CA-805
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
 IN CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1) AND (8) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
 AND RECOMMENDING THAT THE CASE BE DISMISSED IN ITS ENTIRETY.
 THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION
 AND THE RESPONDENT FILED AN OPPOSITION THERETO.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION, AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.  /1/
 
    IN AGREEMENT WITH THE JUDGE AND BASED ON HER CREDIBILITY FINDINGS,
 THE AUTHORITY FINDS WITH RESPECT TO THE MEETINGS WHICH OCCURRED ON JUNE
 25 AND JULY 14 THAT, INASMUCH AS THE EMPLOYEE INVOLVED DID NOT REQUEST
 REPRESENTATION AT THE MEETINGS, THE EXCLUSIVE REPRESENTATIVE HAD NO
 RIGHT UNDER SECTION 7114(A)(2)(B) OF THE STATUTE /2/ TO BE REPRESENTED
 THEREAT.  /3/ WITH RESPECT TO THE AUGUST 18 MEETING, THE AUTHORITY
 FINDS, IN AGREEMENT WITH THE JUDGE AND BASED ON HERE CREDIBILITY
 FINDINGS, THAT NO VIOLATION OF SECTION 7114(A)(2)(B) OCCURRED IN VIEW OF
 THE FACT THAT, UPON THE EMPLOYEE'S REQUEST FOR REPRESENTATION,
 RESPONDENT CHOSE TO TERMINATE THE EXAMINATION AND CONDUCT ITS
 INVESTIGATION THROUGH OTHER SOURCES.  FURTHER, THE AUTHORITY FINDS, IN
 AGREEMENT WITH THE JUDGE, THAT THE SEPTEMBER 18-19 MEETINGS DID NOT
 CONSTITUTE AN "EXAMINATION .  . . IN CONNECTION WITH AN INVESTIGATION .
 . . . " RATHER, THESE MEETINGS WERE CONDUCTED FOR THE SOLE PURPOSE OF,
 AND WERE LIMITED TO, INFORMING THE EMPLOYEE OF A DECISION ALREADY
 REACHED BY THE RESPONDENT AND COUNSELLING THE EMPLOYEE.  /4/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NOS. 5-CA-736,
 5-CA-737, 5-CA-738 AND 5-CA-805, BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED WASHINGTON, D.C., AUGUST 5, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DAVID W. KERBER,
                   ATTORNEY FOR RESPONDENT
 
    SHARON A. BAUER,
                   ATTORNEY FOR THE GENERAL COUNSEL,
                   FEDERAL LABOR RELATIONS AUTHORITY
 
    BEFORE:  ISABELLE R. CAPPELLO
                   ADMINISTRATIVE LAW JUDGE
 
                            CASE NOS. 5-CA-736
                                 5-CA-737
                                 5-CA-738
                                 5-CA-805
 
                                 DECISION
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ., (HEREINAFTER,
 REFERRED TO AS THE "STATUTE"), AND THE RULES AND REGULATIONS ISSUED
 THEREUNDER AND PUBLISHED IN 45 FED.REG. 3482-3524 (1/7/81), 5 CFR 2421
 ET SEQ.
 
    PURSUANT TO CHARGES FILED BY LOCAL 1138 OF THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, CASE NOS. 5-CA-736, 737, 738, AND 805
 WERE CONSOLIDATED AND A COMPLAINT AND NOTICE OF HEARING, DATED DECEMBER
 11, 1980, WAS ISSUED BY THE REGIONAL DIRECTOR, CHICAGO REGION, OF THE
 FEDERAL LABOR RELATIONS AUTHORITY (HEREINAFTER, THE "AUTHORITY"), AND
 SUBSEQUENTLY AMENDED ON JANUARY 23, 1981.  THE COMPLAINT ALLEGES THAT
 THE RESPONDENT HAS VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE
 BY REFUSING A REQUEST FOR UNION REPRESENTATION TO A BARGAINING-UNIT
 EMPLOYEE AT COUNSELLING SESSIONS WHICH THE EMPLOYEE REASONABLY BELIEVED
 MIGHT RESULT IN DISCIPLINARY ACTION BEING TAKEN AGAINST HIM.  RESPONDENT
 DENIES THAT VIOLATIONS HAVE OCCURRED.
 
    A HEARING ON THE MATTER WAS HELD ON FEBRUARY 25, 1981, IN DAYTON,
 OHIO. THE PARTIES APPEARED AND PRESENTED EVIDENCE.  BRIEFS WERE FILED BY
 GENERAL COUNSEL, ON APRIL 6, 1981, AND BY RESPONDENT, ON APRIL 1, 1981.
 BASED UPON THE RECORD MADE AT THE HEARING, /5/ MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND THE BRIEFS, THE FOLLOWING FINDINGS,
 CONCLUSIONS AND RECOMMENDED ORDER ARE MADE.
 
                               FINDINGS /6/
 
    1.  LOCAL 1138, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
 (HEREINAFTER, THE "UNION"), IS THE EXCLUSIVE REPRESENTATIVE OF AN
 APPROPRIATE UNIT OF EMPLOYEES AT THE AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO (HEREINAFTER, THE "RESPONDENT").
 THE PARTIES ARE SUBJECT TO THE MASTER LABOR AGREEMENT BETWEEN THE AIR
 FORCE LOGISTICS COMMAND AND THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO EXECUTED ON APRIL 3, 1979, AND IN EFFECT AT THE TIME
 THIS DISPUTE AROSE.
 
    2.  MR. JAMES WEAVER, LOGISTICS MANAGEMENT SPECIALIST, AT
 WRIGHT-PATTERSON AIR FORCE BASE IS EMPLOYED BY RESPONDENT AND IS A
 MEMBER OF THE BARGAINING UNIT REPRESENTED BY THE UNION.  HE HAS BEEN SO
 EMPLOYED SINCE 1978.  IN MARCH HE RECEIVED A "VERY GOOD", "EXCELLENT",
 "OUTSTANDING", ANNUAL PERFORMANCE RATING FROM HIS SECOND-LINE
 SUPERVISOR, IVAN R. TAYLOR.  (TR. 24-25)
 
    3.  IN THE AFTERNOON OF JUNE 25, MR. WEAVER WAS CALLED INTO A MEETING
 BY MR. TAYLOR, IN MR. TAYLOR'S OFFICE.  WILLIAM SHEETS, ACTING
 FIRST-LEVEL SUPERVISOR WAS ALSO PRESENT.  MR. WEAVER HAD RETURNED TO
 WORK ON JUNE 25, AFTER A PERIOD OF SICK LEAVE COMMENCING ON JUNE 2.
 DURING THE JUNE 25 MEETING, MR. TAYLOR ASKED MR. WEAVER A SERIES OF
 QUESTIONS REGARDING MR. WEAVER'S PHYSICAL CONDITION, FITNESS FOR DUTY,
 USE OF SICK LEAVE, AND HIS KNOWLEDGE OF PROCEDURES FOR REQUESTING SICK
 LEAVE.  MR. WEAVER HAD BEEN RELEASED TO RETURN TO DUTY BY HIS PERSONAL
 PHYSICIAN, AS WELL AS APPROVED TO RETURN TO WORK BY RESPONDENT'S MEDICAL
 CENTER, ON THE MORNING OF JUNE 25.
 
    MR. TAYLOR ASKED MR. WEAVER TO INITIAL A NOTATION THAT HAD BEEN MADE
 ON MR. WEAVER'S FORM 971 SUPERVISORY RECORD (HEREINAFTER, THE "971")
 STATING THAT MR. WEAVER HAD BEEN COUNSELLED ON PROPER PROCEDURES FOR
 REQUESTING SICK LEAVE ON JUNE 25.  THE MEETING LASTED ABOUT 30 MINUTES.
 MR. TAYLOR HAD NEVER BEFORE BEEN SUBJECTED TO SUCH A COUNSELLING ACTION.
  NOR HAD HE EVER BEEN DISCIPLINED.  MR. WEAVER FILED A GRIEVANCE OVER
 THE NOTATION MADE ON HIS 971.
 
    4.  ON SEPTEMBER 25, MR. WEAVER WAS GIVEN AN ORAL ADMONISHMENT FOR
 FAILURE TO REQUEST SICK LEAVE IN ACCORDANCE WITH ESTABLISHED PROCEDURES.
  AN ORAL ADMONISHMENT IS A RECOGNIZED TYPE OF DISCIPLINE IMPOSED BY
 RESPONDENT.  DEPENDING UPON THE RECORD OF THE EMPLOYEE, COUNSELLING IS
 NORMALLY DONE BY MR. TAYLOR BEFORE AN ORAL ADMONISHMENT IS GIVEN.  MR.
 WEAVER'S "ACTIVITY AROUND THE 25TH OF JUNE PROBABLY LEAD TO THE . . .
 ADMONISHMENT AT THE END OF SEPTEMBER." (TR 146)
 
    5.  WHETHER MR. WEAVER REQUESTED UNION REPRESENTATION AT THE JUNE 25
 SESSION IS IN DISPUTE.  MR. WEAVER RECALLS THAT HE DID.  SEE TR 19 AND
 20.  HE SO INFORMED HIS UNION STEWARD, ON JUNE 26, WHEN CALLING HER
 ABOUT FILING A GRIEVANCE OVER THE NOTATION MADE ON HIS 971.  MR.  TAYLOR
 IS "POSITIVE" THAT HE DID NOT (TR 170);  AND MR. SHEETS CORROBORATED THE
 TESTIMONY OF MR. TAYLOR.  MR. WEAVER WAS VERY UPSET AND EMOTIONAL WHEN
 HE TALKED TO HIS UNION STEWARD, ON JUNE 26.  HE WAS AN EMOTIONAL
 WITNESS, AT THE HEARING, AND ADMITTED THAT, AS TO SOME DETAILS, HIS
 RECOLLECTION HAD BECOME A LITTLE HAZY.  MR. TAYLOR READILY CONCEDED THAT
 MR. WEAVER REQUESTED UNION REPRESENTATION AT A LATER SESSION;  AND NO
 REASON IS APPARENT FOR HIS BEING LESS THAN CANDID ABOUT THE JUNE 25
 MEETING.  MR. SHEETS IS A FRIEND AND CO-WORKER OF MR.  WEAVER AND
 APPEARS TO HAVE NO REASON TO DISSEMBLE ABOUT ANY OF THE EVENTS HE
 WITNESSED.  ACCORDINGLY, I FIND MR. TAYLOR AND MR. SHEETS TO BE MORE
 RELIABLE WITNESSES THAN MR. WEAVER ON THIS POINT;  AND I CREDIT THEIR
 RECOLLECTION THAT MR. WEAVER DID NOT REQUEST UNION REPRESENTATION AT THE
 JUNE 25 SESSION.
 
    6.  MR. WEAVER WAS DETAILED TO WORK ON A B-52 PROJECT DURING THE
 PERIOD OF AUGUST TO DECEMBER 16, 1979.  IN APRIL OR MAY, THERE WAS "HALL
 TALK" ABOUT MR. WEAVER'S PERFORMANCE ON THE B-52 DETAIL;  AND MR. SHEETS
 ADVISED HIM TO GET THE MATTER SURFACED AND CLEARED UP, AS IT COULD HURT
 HIS CAREER.  (TR 27) NEITHER MR. WEAVER NOR MR. SHEETS KNEW WHAT THE
 PROBLEM WAS.
 
    7.  IN MAY, MR. WEAVER WAS DETAILED TO WORK ON AN F-16 PROJECT AT
 FORT WORTH, TX.  THIS DETAIL RESULTED IN MEMORANDUMS BEING WRITTEN TO
 MR. WEAVER'S SUPERIORS, COMPLAINING ABOUT HIS CONDUCT DURING THE DETAIL.
  IN EARLY JUNE, MR. WEAVER'S FIRST-LINE SUPERVISOR, MAJOR WOLF WAS
 INFORMED BY A LT. COLONEL HERNANDEZ, WHO IS IN THE F-16 PROGRAM, OF "BAD
 DEPORTMENT" OF MR. WEAVER WHILE HE WAS ON THE F-16 DETAIL.  (TR 127-128)
 THIS INFORMATION WAS RELAYED IN A PHONE CONVERSATION.  MAJOR WOLF TOLD
 THE LT. COLONEL TO SEND THE COMPLAINT IN "OFFICIALLY", IF HE WANTED "US
 TO REACT TO THAT INFORMATION." (TR 128) MAJOR WOLF TOLD MR. TAYLOR ABOUT
 THE COMPLAINT, BUT HE TOOK NO ACTION UNTIL THE ARRIVAL OF THE OFFICIAL
 COMPLAINT, ON AUGUST 11.
 
    8.  BOTH THE F-16 AND B-52 DETAILS WERE IMPORTANT TO RESPONDENT'S
 MISSION, WHICH IS TO PROVIDE MANAGEMENT SERVICE TO MILITARY COMPONENTS
 WORKING ON VARIOUS WEAPON SYSTEMS.  THE CONDUCT OF MR. WEAVER DURING
 THESE DETAILS IS REGARDED AS A SERIOUS MATTER.
 
    9.  ON JUNE 27 A COLONEL NICHOLS WROTE A MEMORANDUM TO COLONEL
 MONTGOMERY, MR. WEAVER'S THIRD-LINE SUPERVISOR.  COLONEL NICHOLS
 COMPLAINED ABOUT MR. WEAVER'S CONDUCT DURING THE AUGUST-DECEMBER 1979
 DETAIL (REFERRED TO ALSO AS THE B-52 DETAIL) AND REQUESTED
 RECONSIDERATION OF ANY INTENTION TO DETAIL HIM AGAIN TO THE COLONEL'S
 GROUP WORKING ON THE B-52 PROJECT.
 
    10.  ON JULY 1, MAJOR WOLF, MR. WEAVER'S FIRST-LINE SUPERVISOR,
 DETAILED MR. WEAVER TO THE COLONEL'S B-52 GROUP.
 
    11.  ON JULY 7, MR. WEAVER'S UNION STEWARD PRESENTED TO MR. TAYLOR
 THE GRIEVANCE OVER THE JUNE 25 NOTATION MADE IN MR. WEAVER'S 971.  PRIOR
 TO JULY 7, MR. WEAVER HAD INFORMED MR. TAYLOR THAT THERE WOULD BE A
 GRIEVANCE FILED OVER THE MATTER.  MR. TAYLOR WAS VERY UPSET ABOUT A
 GRIEVANCE BEING FILED.  ON JULY 8, MR. TAYLOR WROTE A MEMO TO THE FILE
 IN WHICH HE DETAILED THE JUNE 25 COUNSELLING SESSION WITH MR. WEAVER AND
 THE REASON FOR THE ENTRY ON MR. WEAVER'S 971.
 
    12.  ON JULY 7, COLONEL NICHOLS AGAIN WROTE TO THE COLONEL MONTGOMERY
 TO PROTEST MR. WEAVER'S ASSIGNMENT TO THE B-52 GROUP.
 
    13.  ON JULY 14, COLONEL MONTGOMERY RETURNED FROM A 2-WEEK LEAVE,
 READ COLONEL NICHOLS' MEMORANDUMS OF JUNE 27 AND JULY 7, INFORMED MAJOR
 WOLF THAT HE FOUND THEM "DISTURBING" AND SHOULD BE USED IN "COUNSELLING"
 MR. WEAVER.  (GC 3) COLONEL MONTGOMERY ORDERED MAJOR WOLF TO REPLACE MR.
 WEAVER ON THE B-52 GROUP WITH SOMEONE ELSE AND ASKED TO BE ADVISED AS TO
 "WHAT ACTIONS ARE BEING TAKEN TO PRECLUDE ANY FUTURE RECEIPT OF
 CORRESPONDENCE OF THIS NATURE FROM OUR CUSTOMERS." (GC 3)
 
    14.  ON JULY 14, A SECOND COUNSELLING SESSION WAS HELD WITH MR.
 WEAVER.  MAJOR WOLF HAD TO BE ABSENT ON BUSINESS, SO THE SESSION WAS
 HELD WITHOUT HIM, IN MR.  TAYLOR'S OFFICE.  MR. WEAVER ASKED PERMISSION
 FROM MR. TAYLOR FOR MR. SHEETS TO ATTEND THE MEETING.  PERMISSION WAS
 GRANTED;  AND MR. SHEETS DID ATTEND.  MR. WEAVER WAS INFORMED THAT HE
 WAS NO LONGER ASSIGNED TO THE B-52 GROUP.  MR. WEAVER WAS SHOWN THE
 NICHOLS' MEMORANDUMS REGARDING HIS CONDUCT ON THE 1979 B-52 DETAIL, AND
 QUESTIONED ABOUT THE NATURE OF HIS CONDUCT WHILE ON THE 1979 DETAIL.
 MR. WEAVER WAS ADMONISHED ABOUT HIS PERFORMANCE ON THAT DETAIL AND TOLD
 THAT IT WAS "PRIMA FACIE UNSATISFACTORY AND DEFICIENT AND . . . AN
 EMBARRASSMENT TO (MR. TAYLOR), TO COLONEL MONTGOMERY AND TO AFALD." (TR
 26) SINCE MR. WEAVER WAS TO ATTEND A B-52 MEETING ON JULY 14, THE
 CONCERN OF HIS SUPERVISORS, ON THAT DAY, WAS TO INFORM HIM THAT HE WAS
 NOT TO ATTEND.  NO DECISION WAS MADE, ON THAT DAY, AS TO ANY DISCIPLINE.
  AN ANNOTATION DATED JULY 14 WAS PLACED ON MR. WEAVER'S 971 BY MR.
 TAYLOR.  MR. TAYLOR NOTED THAT MR. WEAVER ASSIGNMENT TO THE B-52
 PLANNING ACTIVITY WAS TERMINATED BECAUSE OF "CONCERNS ABOUT MR. WEAVER'S
 MARGINAL PERFORMANCE WHILE ASSIGNED TO THE PROGRAM OFFICE ON A PREVIOUS
 TEMPORARY DETAIL," AND THAT "SPECIFIC PERFORMANCE OBJECTIVES WILL BE
 DEVELOPED TO ENABLE MR. WEAVER TO IMPROVE HIS PERFORMANCE AND PREVENT
 THIS TYPE OF CUSTOMER COMPLAINT FROM RECURRING." (GC 2.2)
 
    15.  WHETHER MR. WEAVER REQUESTED UNION REPRESENTATION AT THE JULY 14
 SESSION IS IN DISPUTE.  MR. WEAVER TESTIFIED THAT HE DID, AS SOON AS HE
 WAS SHOWN THE NICHOLS' MEMORANDUMS BECAUSE HE REGARDED THEM AS "CLEARLY
 LIBELLOUS." (TR 25) HE CALLED HIS UNION STEWARD, ON JULY 14, AFTER THE
 SESSION, SEEMED VERY UPSET, COMPLAINED ABOUT HARASSMENT, AND DISCUSSED
 FILING AN UNFAIR LABOR PRACTICE CHARGE.  THE UNION STEWARD ALSO DOES NOT
 RECALL MR. WEAVER TELLING HER, ON JULY 14, THAT HE HAD REQUESTED UNION
 REPRESENTATION AT THE JULY 14 SESSION WITH MR.  TAYLOR.  ON A SUBSEQUENT
 DAY, MR. WEAVER DID TELL HIS UNION STEWARD THAT HE REQUESTED UNION
 REPRESENTATION AT THE JULY 14 SESSION.  MR. TAYLOR TESTIFIED THAT MR.
 WEAVER DID NOT REQUEST UNION REPRESENTATION AT THE JULY 14 SESSION.  MR.
 SHEETS ALSO TESTIFIED THAT, TO HIS KNOWLEDGE, NO SUCH REQUEST WAS MADE.
 FOR THE REASONS STATED IN FINDING 5, ABOVE, I FIND MR. TAYLOR AND MR.
 SHEETS TO BE MORE RELIABLE WITNESSES, ON THIS POINT, THEN MR. WEAVER;
 AND I FIND THAT MR. WEAVER DID NOT REQUEST UNION REPRESENTATION AT THE
 JULY 14 SESSION.  MR. TAYLOR ALSO TESTIFIED THAT HE WOULD NOT HAVE
 ALLOWED UNION REPRESENTATION, EVEN IF IT HAD BEEN REQUESTED.
 
    16.  ON AUGUST 18, MR. WEAVER WAS CALLED INTO A MEETING WITH MR.
 TAYLOR AND MAJOR WOLF, IN MR. TAYLOR'S OFFICE.  MR. WEAVER ASKED FOR AND
 RECEIVED PERMISSION FOR MR. SHEETS TO ATTEND ALSO.  THE PURPOSE OF THIS
 MEETING WAS TO INTERVIEW MR. WEAVER ABOUT HIS BEHAVIOR DURING HIS
 DETAIL, IN MAY, TO THE F-16 PROGRAM.  AT THE AUGUST 18 MEETING MR.
 WEAVER WAS SHOWN AN UNDATED LETTER FROM A COLONEL VOLAND STATING THAT
 MR. WEAVER'S BEHAVIOR AT THE MAY 28 MEETING ON THE F-16 PROGRAM WAS
 "TOTALLY UNSATISFACTORY, INAPPROPRIATE, AND EMBARRASSING" AND DETAILING
 THE INSTANCES INVOLVED.  (GC 5) ACCORDING TO MAJOR WOLF, MR. WEAVER GAVE
 SOME EXPLANATION OF THE INSTANCES MENTIONED IN THE VOLAND MEMORANDUM,
 BEFORE ASKING FOR REPRESENTATION, AND THAT AFTER REPRESENTATION WAS
 SOUGHT, NO FURTHER QUESTIONING TOOK PLACE.  ACCORDING TO MR. WEAVER, HE
 ASKED FOR REPRESENTATION TWICE, THE FIRST TIME BEING AS SOON AS HE READ
 THE VOLAND MEMORANDUM.  MR. WEAVER CLAIMS THAT HE CONTINUED TO BE
 QUESTIONED AFTER THE FIRST REQUEST WAS DENIED.  (TR 31 AND 30) MAJOR
 WOLF'S TESTIMONY ON THIS DISPUTED POINT IS DOCUMENTED IN A MEMORANDUM
 DATED AUGUST 18 AND WAS BASICALLY CORROBORATED BY MR. TAYLOR AND MR.
 SHEETS.  ACCORDINGLY, I CONSIDER MAJOR WOLF'S VERSION TO BE MORE
 RELIABLE AND FIND THAT MR. WEAVER WAS NOT QUESTIONED AFTER HE SOUGHT
 REPRESENTATION.  THE MEETING ENDED WHEN MAJOR WOLF ADVISED MR. WEAVER
 THAT, UNDER THE PRESENT UNION CONTRACT, MANAGEMENT HAD NO REQUIREMENT TO
 CONTINUE THE INTERVIEW IF REPRESENTATION WAS OBTAINED, AND MR.  WEAVER
 REQUESTED TIME TO LOOK AT HIS NOTES AND ORGANIZE HIS THOUGHTS.
 
    17.  FOLLOWING THE AUGUST 18 MEETING, MAJOR WOLF INQUIRED OF OTHERS
 ABOUT THE VOLAND ALLEGATIONS AND RECEIVED CORROBORATION OF THEM.  ON
 SEPTEMBER 12, MR. TAYLOR, MAJOR WOLF AND SEVERAL OTHERS MET TO DISCUSS
 "POSSIBLE DISCIPLINARY ACTION" AGAINST MR. WEAVER OVER THE F-16 MATTER,
 THAT OCCURRED ON MAY 28.  BECAUSE OF THE TIME DELAY CREATED BY THE F-16
 COMMAND AND PENDING UNFAIR LABOR PRACTICE CHARGES FILED BY THE UNION ON
 BEHALF OF MR. WEAVER, A DECISION WAS MADE THAT "NO DISCIPLINARY ACTION
 SHOULD BE TAKEN AT THIS TIME," BUT THAT A CONSELLING SESSION WAS
 APPROPRIATE.  (GC 6) MAJOR WOLF RECOMMENDED THAT MR. WEAVER BE
 COUNSELLED AND THAT A NOTATION OF THE COUNSELLING BE PLACED IN MR.
 WEAVER'S 971, ALONG WITH A COPY OF THE VOLAND LETTER.  MAJOR WOLF ALSO
 RECOMMENDED THAT MR. WEAVER BE REMOVED FROM FURTHER PARTICIPATION IN THE
 F16 PROGRAM.  ON SEPTEMBER 15, COLONEL MONTGOMERY CONCURRED, EXCEPT FOR
 THE RECOMMENDATION TO REMOVE HIM FROM THE F-16 PROGRAM.
 
    18.  ON SEPTEMBER 18, MR. WEAVER WAS CALLED INTO MAJOR WOLF'S OFFICE
 FOR A MEETING WITH MAJOR WOLF.  MAJOR WOLF HAD MR. SHEETS ATTEND AS A
 "WITNESS".  (TR 141) MAJOR WOLF ANNOUNCED THAT HE HAD MADE A
 "DETERMINATION" IN THE F-16 MATTER AND THAT THIS WAS NOT A DISCIPLINARY
 ACTION.  (TR 75) MR. WEAVER THEN REQUESTED REPRESENTATION.  THE REQUEST
 WAS DENIED, AND THE MEETING ENDED.  NO QUESTIONING OF MR. WEAVER WAS
 CONDUCTED DURING THE SEPTEMBER 18 MEETING.  MAJOR WOLF ENDED THE MEETING
 SO THAT HE MIGHT CHECK WITH THE CIVILIAN PERSONNEL OFFICE TO INSURE THAT
 HE WAS ACTING PROPERLY.  IT IS RESPONDENT'S POSITION THAT THIS MEETING
 WAS A COUNSELLING SESSION AT WHICH THERE IS NO RIGHT TO UNION
 REPRESENTATION.
 
    19.  ON SEPTEMBER 19, MR. WEAVER WAS CALLED TO MAJOR WOLF'S OFFICE
 FOR A CONTINUATION OF THE SEPTEMBER 18 MEETING.  MR. SHEETS WAS AGAIN
 PRESENT.  MR. WEAVER AGAIN MADE A REQUEST FOR REPRESENTATION.  IT WAS
 AGAIN DENIED.  MAJOR WOLF INFORMED MR. WEAVER THAT HE HAD COMPLETED HIS
 INVESTIGATION OF THE F-16 MATTER, AND WAS ASSURED THAT THERE HAD BEEN A
 SUBSTANTIAL AMOUNT OF IMPROPER CONDUCT.  MAJOR WOLF COUNSELLED MR.
 WEAVER ABOUT THE IMPROPER CONDUCT FOUND.  HE GAVE MR. WEAVER NO
 OPPORTUNITY TO RESPOND.  MAJOR WOLF STATED THAT THE PURPOSE OF THE
 MEETING WAS FOR COUNSELLING, AND NO DISCIPLINARY ACTION WOULD BE TAKEN.
 MAJOR WOLF ENTERED A NOTATION ON MR. WEAVER'S 971, WHICH MR. SHEETS
 INITIALED AFTER MR. WEAVER REFUSED.  THE NOTATION STATED THAT MR. WEAVER
 HAD BEEN COUNSELLED ABOUT SLEEPING AT AND EXTENDED ABSENCES FROM
 CONFERENCES, COURTESY, AND KEEPING MANAGEMENT INFORMED OF PHYSICAL
 CONDITIONS AFFECTING HIS ABILITY TO PERFORM A JOB.
 
    20.  ON SEPTEMBER 19, COLONEL MONTGOMERY SENT A MEMORANDUM REPLYING
 TO THE AUGUST 11 LETTER FROM THE F-16 PROJECT OFFICIAL.  SEE FINDINGS 7
 AND 16, ABOVE.  COLONEL MONTGOMERY STATED THAT "DISCIPLINARY ACTIONS WAS
 CONSIDERED", BUT ADVISED AGAINST BECAUSE OF THE DELAY BY F-16 MANAGEMENT
 IN OFFICIALLY NOTIFYING HIM OF THE INCIDENT.  (R 4) COLONEL MONTGOMERY
 STATED THAT MR. WEAVER WAS COUNSELLED ABOUT THE MATTER AND AN ENTRY MADE
 ON HIS 971.  HE ALSO STATED THAT MR. WEAVER WOULD REMAIN ASSIGNED TO THE
 F-16 PROGRAM BECAUSE OF UNDERMANNING IN HIS OFFICE.
 
                        DISCUSSION AND CONCLUSIONS
 
    THE RIGHT TO UNION REPRESENTATION IS EMBODIED IN SECTION
 7114(A)(2)(B) OF THE STATUTE, WHICH PROVIDES:
 
    AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT SHALL BE GIVEN THE
 OPPORTUNITY TO BE
 
    REPRESENTED AT . . . ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A
 REPRESENTATIVE OF THE
 
    AGENCY IN CONNECTION WITH AN INVESTIGATION IF (I) THE EMPLOYEE
 REASONABLY BELIEVES THE
 
    EXAMINATION MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE;
 AND (II) THE EMPLOYEE
 
    REQUESTS REPRESENTATION.
 
    AT THE JUNE 25 AND JULY 14, MEETINGS IT HAS BEEN FOUND THAT NO
 REQUEST FOR REPRESENTATION WAS MADE.  THEREFORE, THE SECTION
 7114(A)(2)(B) RIGHT DID NOT BECOME OPERATIVE, UNDER THE STATUTE.
 
    AT THE AUGUST 18 MEETING, A PROPER REQUEST WAS MADE, AND OBJECTIVE
 FACTS OF RECORD SUPPORT THE BELIEF OF MR. WEAVER THAT THE EXAMINATION OF
 HIM AT THAT MEETING MIGHT LEAD TO DISCIPLINARY ACTION.  JUST ONE MONTH
 PREVIOUSLY, HE HAD BEEN SUBJECTED TO A COUNSELLING FOR DEFICIENT AND
 EMBARRASSING CONDUCT, AND HAD BEEN RELIEVED OF AN ASSIGNMENT BECAUSE OF
 IT.  THE AUGUST 18 SESSION WAS CONCERNED WITH ALLEGATIONS OF
 UNSATISFACTORY AND EMBARRASSING CONDUCT OVER ANOTHER ASSIGNMENT.  THE
 FACT THAT DISCIPLINE, IN FACT, WAS NOT IMPOSED IS OF NO CONSEQUENCE,
 UNDER THE STATUTE.  AFFIRMING THE REASONABLENESS OF MR. WEAVER'S BELIEF
 THAT DISCIPLINE MIGHT RESULT FROM THE AUGUST 18 MEETING, HOWEVER, IS THE
 FACT THAT THE ALLEGATIONS AGAINST HIM WERE SUBSEQUENTLY CONFIRMED TO THE
 SATISFACTION OF RESPONDENT, AND THE ONLY APPARENT REASON DISCIPLINE WAS
 NOT IMPOSED WAS THE DELAY IN SURFACING THE COMPLAINT, PLUS THE PENDENCY
 OF UNFAIR LABOR PRACTICE CHARGES, WHICH CAUSED RESPONDENT TO BE SKITTISH
 ABOUT PROCEEDING WITH DISCIPLINE.  /7/ THUS, THE RIGHT TO REPRESENTATION
 DID BECOME OPERATIVE.  HOWEVER, AS SOON AS MR. WEAVER INVOKED THE RIGHT,
 RESPONDENT EXERCISED ITS RIGHT TO DISCONTINUE THE EXAMINATION AND
 CONDUCT ITS INVESTIGATION THROUGH OTHER SOURCES.  THIS MANAGEMENT RIGHT
 IS CLEARLY OUTLINED IN NLRB V. WEINGARTEN, 420 U.S.  251, 88 LRRM
 2689(1975), A SUPREME COURT DECISION UPON WHICH CONGRESS FASHIONED
 SECTION 7114(A)(2)(B).  SEE INTERNAL REVENUE SERVICE, WASHINGTON, D.C.
 AND INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE, 4 FLRA NO.
 37(1980), PAGE 10 OF JUDGE'S DECISION.  IN WEINGARTEN, THE COURT STATED
 THAT THE:
 
    . . . EXERCISE OF THE RIGHT MAY NOT INTERFERE WITH LEGITIMATE
 EMPLOYER PREROGATIVES.  THE
 
    EMPLOYER HAS NO OBLIGATION TO JUSTIFY HIS REFUSAL TO ALLOW UNION
 REPRESENTATION, AND DESPITE
 
    REFUSAL, THE EMPLOYER IS FREE TO CARRY ON HIS INQUIRY WITHOUT
 INTERVIEWING THE EMPLOYEE, AND
 
    THUS LEAVE TO THE EMPLOYEE THE CHOICE BETWEEN HAVING AN INTERVIEW
 UNACCOMPANIED BY HIS
 
    REPRESENTATIVE, OR HAVING NO INTERVIEW AND FOREGOING ANY BENEFITS
 THAT MIGHT BE DERIVED FROM
 
    ONE.
 
    SEE 88 LRRM AT 2691-2692.  THIS IS EXACTLY WHAT HAPPENED AT THE
 AUGUST 18 MEETING.
 
    NEITHER SEPTEMBER SESSION WAS AN "EXAMINATION", WITHIN THE MEANING OF
 THE STATUTE.  NO QUESTIONS WERE ASKED OF MR. WEAVER. HE WAS SIMPLY BEING
 INFORMED OF A DECISION ALREADY REACHED BY RESPONDENT.  COMPARE MOUNT
 VERNON TANKER COMPANY V. NLRB, 549 F.2D 571, 94 LRRM 3054 (CA 9, 1977),
 INVOLVING A SIMILAR RIGHT TO UNION REPRESENTATION UNDER THE NATIONAL
 LABOR RELATIONS ACT, WHEREIN THE COURT RULED THAT A SHIP'S CAPTAIN DID
 NOT VIOLATE THAT ACT, WHEN HE REFUSED TO ALLOW A MERCHANT SEAMAN TO HAVE
 HIS UNION REPRESENTATIVE PRESENT, BECAUSE:
 
    THE OUTCOME OF THE PROCEEDING DOES NOT DEPEND UPON THE SHOWING THAT
 MAY BE MADE BY THE
 
    SEAMAN WITH OR WITHOUT THE AID OF CONCERTED ACTIVITY.  THE RESULT
 FROM THE OUTSET IS A
 
    FOREGONE CONCLUSION;  FROM THE OUTSET, ALL THAT REMAINS TO BE
 ACCOMPLISHED IS A FORMALITY FOR
 
    CEREMONY ITSELF AND A NOTICE TO THE SEAMAN THAT RESULTS.
 
    MOUNT VERNON TANKER CO., SUPRA, 94 LRRM AT 3057-3058.
 
    OTHER ISSUES RAISED BY THE PARTIES NEED NOT BE RESOLVED, IN VIEW OF
 THE ABOVE CONCLUSIONS.
 
                        ULTIMATE FINDINGS AND ORDER
 
    THE GENERAL COUNSEL HAS NOT ESTABLISHED, BY THE PREPONDERANCE OF THE
 EVIDENCE, THAT RESPONDENT HAS VIOLATED SECTION 7116(A)(1) AND (8) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    ACCORDINGLY, IT IS ORDERED THAT THE COMPLAINTS IN CASE NOS.
 5-CA-736, 737, 738, AND 805 BE, AND HEREBY ARE DISMISSED.
 
                         ISABELLE R. CAPPELLO
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JULY 15, 1981
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
 THE JUDGE.  THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
 RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
 OBSERVING THE WITNESSES WHILE THEY TESTIFIED.  THE AUTHORITY WILL NOT
 OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
 PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES THAT SUCH
 RESOLUTION WAS INCORRECT.  THE AUTHORITY HAS EXAMINED THE RECORD
 CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY
 FINDINGS.
 
    /2/ SECTION 7114(A)(2)(B) PROVIDES:
 
    (2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
 SHALL BE GIVEN THE
 
    OPPORTUNITY TO BE REPRESENTED AT--
 
   *          *          *          *
 
 
    (B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF
 THE AGENCY IN
 
    CONNECTION WITH AN INVESTIGATION IF--
 
    (I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
 IN DISCIPLINARY ACTION
 
    AGAINST THE EMPLOYEE;  AND
 
    (II) THE EMPLOYEE REQUESTS REPRESENTATION.
 
    /3/ CF. LACKLAND AIR FORCE BASE EXCHANGE, LACKLAND AIR FORCE BASE,
 TEXAS, 5 FLRA NO. 60(1981), WHEREIN IT WAS FOUND THAT AN EMPLOYEE WHO
 WAS SUBJECTED TO AN EXAMINATION IN CONNECTION WITH AN INVESTIGATION HAD
 MADE THE REQUISITE REQUEST FOR REPRESENTATION.
 
    /4/ SEE GENERALLY DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD,
 7 FLRA NO. 129(1982);  LACKLAND AIR FORCE BASE EXCHANGE, LACKLAND AIR
 FORCE BASE, TEXAS, 5 FLRA NO. 60(1981);  AND INTERNAL REVENUE SERVICE,
 DETROIT, MICHIGAN, 5 FLRA NO. 53(1981).
 
    /5/ THE RECORD IS CORRECTED, AT PAGES 230, LINE 1, BY DELETING THE
 WORD "RELEVANCY" AND SUBSTITUTING THE WORD "RELIABILITY".
 
    /6/ REFERENCES HEREIN WILL BE AS FOLLOWS:  "TR" REFERS TO THE
 TRANSCRIPT;  "GC" REFERS TO THE EXHIBITS OF THE GENERAL COUNSEL;