11:0434(79)CA NFFE, LOCAL 1363 VS ARMY, U.S. FORCES KOREA -- 1983 FLRAdec CA
[ v11 p434 ]
The decision of the Authority follows:
11 FLRA NO. 79
UNITED STATES FORCES KOREA/ EIGHTH UNITED STATES ARMY Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1363 Charging Party Case No. 8-CA-1150
The Administrative Law Judge issued the attache Decision in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practice alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and the General Counsel filed an opposition to the Respondent's exceptions and limited cross-exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (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, as modified below.
The Judge found that the United States Forces Korea/Eighth United States Army (the Respondent) had violated section 7116(a)(1) and (2) of the Statute by refusing to approve employee Don C. Terrill's request for an extension of time beyond the five-year limitation on an overseas tour of duty because of his protected activity on behalf of the union herein.
The record reveals that Terrill has held the position of president of the National Federation of Federal Employees, Local 1363 (the Union) since June 1980 and was first vice-president from June 1979 to [ v11 p434 ] June 1980. As an officer of the Union, Terrill has filed 49 unfair labor practice charges, 26 of which have been settled to the satisfaction of the Union. He also has filed 16 negotiability appeals with the Authority. Additionally, Terrill filed four representation petitions seeking to greatly expand the scope of the existing bargaining units and has been involved in negotiations, as primary negotiator, of 23 subjects which resulted in agency changes. An article appearing in a 1980 edition of the Federal Times, which was extremely critical of the Respondent, was authored by Terrill. As stated by the Judge, "General Counsel established that Terrill was the primary union arm in Korea, and that he was an active and aggressive union leader to the point where he could have been considered a thorn in management's side."
In finding a violation herein, the Judge concluded that the Respondent's asserted reason for denial of the Terrill extension request, i.e., no opportunity for career advancement, was pretextual, and that the real reason for such denial was his participation in and the embarrassment caused by the "POPPA" (Prevention of Purchase Privilege Abuse) incident. POPPA was a ration control system which placed limits on what an employee could buy at the Commissary Store and Post Exchange. Military personnel would stand at the check-out counters with a unilaterally compiled and unpublished list of food items prepared by the Respondent which was used to determine whether there had been a purchase abuse. As found by the Judge, in order to support a pending unfair labor practice charge filed by the Union over the Respondent's unilateral implementation of the POPPA system, Union President Terrill went to the main exchange on December 10, 1980 to test the system. While so engaged, Terrill was detained by the military police, charged with disorderly conduct, and counselled by his third line supervisor, Col. Fries. 1 Subsequently, aside from dropping its charge against Terrill, the Activity asked Terrill whether he would withdraw the Union's unfair labor practice charge regarding the POPPA system if that system were cancelled, and Terrill agreed.
In finding that Colonel Fries ultimately denied Terrill's request for an extension of his tour of duty in Korea based solely on the [ v11 p435 ] POPPA incident and the embarrassment it caused the Respondent, the Judge noted, among other things, that the embarrassment cited by Fries was in reality Terrill's participation in a protected activity; that Terrill's first and second line supervisors had approved such request; that the career and promotion advancement reasons given by Col. Fries for such denial were pretextual; and that the regulations cited in support of the decision to deny Terrill's request appeared to be merely an afterthought.
While the Authority agrees with the Judge's conclusion that the Respondent violated section 7116(a)(1) and (2), we find that the reason for Fries' denial of Terrill's extension request was not limited to the embarrassment caused by the POPPA incident 2 but also encompassed past incidents of extensive protected union activities which were well known to Fries. 3 In so findings, we note particularly those previously discussed union activities engaged in by Terrill as a union officer since 1979, leading the Judge to find that the General Counsel had established that Terrill was an active and aggressive union leader who could have been considered a thorn in management's side.
Further, in agreement with the Judge, the Authority finds the reason stated by Fries for denying the extension was pretextual. Thus, Kinkaid testified that the computer system operated by Terrill was one of the two or three most important systems on the site and that it was his policy to encourage computer people, such as Terrill, to extend, "even beyond the five year limitation," because getting qualified or even capable people in the programming field in Korea was a very difficult task. Accordingly, Kinkaid approved Terrill's request. The record discloses that, despite the approval of Terrill's [ v11 p436 ] first and second line supervisors regarding his extension request, Fries denied the request on May 13, 1981 "in the interest of continued professional development of the individual and to provide him a better opportunity for advancement in grade." Such denial made no reference to regulations or to any established criteria. As noted by the Judge, not until June 12, 1981 was a regulation raised in support of Fries' disapproval, and even then it was raised by the Civilian Personnel Office. Further, Fries' stated reason for denial of the extension, i.e., to encourage Terrill's continued professional development, does not withstand scrutiny in view of the fact that Terrill desired to remain in Korea and, under his most viable option for return, would experience a two-grade demotion upon his rotation back to the United States.
Accordingly, the Authority concludes that the motivation for such action was to discriminate against employee Terrill because of his extensive protected union activity, and that the Respondent therefore violated section 7116(a)(1) and (2) of the Statute. Having so found, the Authority hereby adopts the Judge's remedial order which requires the Respondent to cease and desist from refusing to endorse employee Terrill's request for extension of his overseas tour of duty, and orders the Respondent to recommend approval of such request to the ultimate approving authority. Additionally, inasmuch as the Union herein, of which Terrill is president, represents employees at several of the Respondent's facilities throughout Korea, the Authority also shall order the Respondent to post a remedial Notice at all facilities in Korea where the Union is the exclusive representative.
Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the Respondent, United States Forces Korea/Eighth United States Army, shall:
1. Cease and desist from:
(a) Refusing to recommend to the ultimate approving authority the approval of employee Don C. Terrill's request, dated May 5, 1981, for an extension of time on his overseas tour of duty beyond the five year limitation, or otherwise discriminating against the employee because of his activities on behalf of the National Federation of Federal Employees, Local 1363.
(b) In any like or related manner interfering with, restraining, or coercing Don C. Terrill, or any employee, in the exercise of rights assured by the Federal Service Labor - Management Relations Statute. [ v11 p437 ]
2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute:
(a) Upon request, recommend to the ultimate approving authority, in writing and with supporting reasons, the approval of employee Don C. Terrill's request dated May 5, 1981, for an extension of time on his overseas tour of duty beyond the five year limitation, to June 30, 1983.
(b) Post at Headquarters, U.S. Army Garrison, Yongsan, Korea, and at all of its other facilities in Korea where the National Federation of Federal Employees, Local 1363, is the exclusive representative, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding General or his designee, and shall be posted and maintained by him for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. The Commanding General shall take reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director, Region VIII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply with this Order.
Issued, Washington, D.C., February 25, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY
[ v11 p438 ]
NOTICE TO ALL EMPLOYEES A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse the recommend to the ultimate approving authority the approval of employee Don C. Terrill's request, dated May 15, 1981, for an extension of time on his overseas tour of duty beyond the five year limitation, or otherwise discriminate against him because of his activities on behalf of National Federation of Federal Employees, Local 1363.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce Don C. Terrill, or any employee, in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.
WE WILL, upon request, recommend to the ultimate approving authority, in writing and with supporting reasons, the approval of employee Don C. Terrill's request dated May 5, 1981 for an extension of time on his overseas tour of duty beyond the five year limitation, to June 30, 1983.
___________________________ (Agency or Activity) Dated: _____________ By: ___________________________ (Signature)
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning the Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los, Angeles, California, 90071, and whose telephone number is: (213) 688-3805. [ v11 p439 ]
UNITED STATES FORCES KOREA/ EIGHTH UNITED STATES ARMY Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1363 Charging Party Case No. 8-CA-1150 Joseph Swerdzewski, Esq. For the General Counsel Major Vincent C. Nealey, Esq. For the Respondent Mr. Don C. Terrill For the Charging Party Before: ELI NASH, JR. Administrative Law Judge
This is a proceeding under the Federal Service Labor - Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. It was instituted by the Regional Director of Region 8 based upon an unfair labor practice charge filed by the National Federation of Federal Employees, Local 1363, hereafter referred to as the Union against United States Forces Korea/Eight United States Army, hereafter called Respondent, alleging violations of Section 7116(a)(1), (2) and (4) of the Statute. A Complaint and Notice of Hearing issued on October 29, 1981 alleging that Respondent discriminatorily denied a request for extension of an overseas tour of duty beyond the five-year limitation because an employee had engaged in union activity in violation of Section 7116(a)(1) and (2) of the Statute. [ v11 p440 ]
Respondent's Answer denied the commission of any unfair labor practices.
A hearing was held before the undersigned in Seoul, Korea, at which the parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine, and cross-examine witnesses and to argue orally. Timely briefs were filed by the Respondent and the General Counsel and have been duly considered. 4
Upon consideration of the entire record in this case, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order.
Mr. Don C. Terrill is presently employed as a GS-11 computer programmer with the Joint Command Information Systems Directorate (JCIS). In that position Terrill is the primary programmer for U.S. Forces Korea for the UNITREP system which is the unit status and identity reporting system, a computer system, used world wide in supporting the President of the United States, Secretary of Defense, Joint Chiefs of Staff and the Commander of U.S. Forces Korea for general planning, limited war planning and crisis management.
Mr. Terrill has been employed in his present position since late 1977. He also served in Korea in a civilian capacity from December 1963 to January 1965, and again from November 1968 to March 1973. Prior to assuming his present position Mr. Terrill was employed as a GS-9 computer operator at the Army Computer Systems Command, Fort Belvoir, Virginia. His initial appointment to JCIS was for a period of two years with reemployment rights to the GS-9 position at Fort Belvoir. In 1979, Terrill's appointment was extended for an additional two (2) years until September 1981. On May 5, 1981, Mr. Terrill requested another extension, which is the subject of this case, until June 30, 1983.
In June 1980, Mr. Terrill became president of Local 1363, National Federation of Federal Employees, a position which he has held at all material times. The bargaining unit which the Union represents consists at approximately 450 employees, with about 100 members. [ v11 p441 ]
Since becoming president Terrill has without question been an active and aggressive advocate of union causes and is without question the prime union person in Korea. Among his activities, Mr. Terrill has on behalf of the Union filed and settled many unfair labor practice cases, filed representation petitions, engaged in negotiations with management officials, written articles and flyers critical of working conditions and, has been highly visible regarding his union activities. 5 The Respondent in a letter to the Regional Director of Region 8 of the Authority sought to put the Authority on notice that it would seek a show cause motion under 5 USC 7111(B)(1) why the Union's exclusive representative should not be revoked. This letter allegedly was a result of harassment of Respondent by Terrill.
On May 5, 1981 Mr. Terrill filed a request for an extension of overseas tour. Several regulations including the Department of the Navy regulation concerning rotation and return placement from overseas services govern such extensions. The Department of Navy regulation provides in Subchapter 5-2 b.:
Long term employment of the U.S. Citizens in foreign areas, without intervening periods of residence in the United States, involves hazards to the objective of career development by rotational assignments. One objective of this instruction is to steadily reduce the number of personnel assigned to foreign areas for extended periods of time without any specific obligations to return, to prevent indefinitely encumbering positions in the United States with return rights, and to provide career opportunities to U.S. citizen employees of the Department of the Navy.
Department of Defense Instruction 1404.8, dated April 10, 1968 regarding employee return rights states:
Extensions beyond 5 years may be granted by the DoD component concerned on an individual case basis and for a specified period, normally not to exceed one year when:
(a) A suitable replacement has not been located and time is required to train a replacement, [ v11 p442 ]
(b) Special personal circumstances, such as imminent retirement, make it inadvisable to require the employee to return; or
(c) Special work circumstances make it desirable that the employee be retained for an additional period.
Civilian Personnel Regulation 690-3, paragraph 6, dealing with extension of overseas tours beyond five years states, in part:
a. Requests for extension beyond the 5 year limitation of employees with RR will be considered when one or more of the following conditions exist:
(1) Exceptional mission needs require the employee to be retained in the overseas service. Written justification must show that mission requirement make it impractical, or unfeasible to recruit a replacement.
(2) Special personal circumstances exist such as medical certification that an immediate permanent change (sic) of station (PCS) move would seriously affect the health of the employee or a member of his/her family; to permit dependent school-age children to complete the last year of high school; or other documented compassionate circumstances.
(3) The employee has formally applied for retirement within the next 12 months. If the employee subsequently decides not to retire, he/she will be required to exercise his/her RR.
(4) A sustained recruitment effort for a period of 4 to 6 months has not produced a qualified replacement.
The authority to approve extensions of time beyond five years for Navy employees has been retained by the Department of Navy, however, disapproval authority rests with the chief of joint and special staff sections and subordinate commanders.
Mr. Terrill's May 5 request for an extension of his current overseas tour beyond the five-year limitation received "line" endorsements for his first and second line supervisors on May 5. However, the Director, JCIS who was at that time, Lt. Colonel George J.C. Fries disapproved the request for extension. Colonel Fries testified that his reason for disapproving the request was "based on his assessment that Terrill did not meet the criteria for extension." However, in his May 13, 1981 memorandum Colonel Fries stated that the extension would not be, "In the interest of the continued professional development of the individual ... or ... provide him a better opportunity for advancement in grade." This memorandum makes no reference to regulations or to any other established criteria. [ v11 p443 ]
During the course of the hearing it was shown that Mr. Terrill's first and second line supervisors did not consider the service regulations when endorsing Mr. Terrill's request. Piecing together all of the facts, the following version of what occurred during the period in question is credited.
Major Ronald Davis, Chief of Team 2, Systems Division, JCIS and Terrill's first level supervisor received the request on May 5, 1981. Major Davis initialed and dated the request and, in his view, approved the request for extension. On May 7, Major Davis wrote a memorandum approving the Terrill request.
Major Davis, an Army officer, indicates that he approved the request because, at that time, he had only one individual who was thoroughly familiar with the system on which Terrill worked and that Mr. Terrill had agreed to be mobilized in case of war allowing for continued support of the system.
Major Davis was not aware of Civilian Personnel Regulation 690-3 regarding extension of tours beyond five years at the time he approved Terrill's request. When shown the regulation Major Davis testified that he felt Mr. Terrill met the requirements for an exception noting particularly the special work circumstances section or section (c).
The testimony of Lt. Colonel James G. Kincaid, also an Army officer, who was Mr. Terrill's second-line supervisor on May 5, 1980, reveals that the system operated by Terrill was considered by him to be one of "the two or three most important systems ... at our site." Colonel Kincaid also considered Terrill a satisfactory employee. Colonel Kincaid further testified that he always encouraged satisfactory employees to extend even beyond the five year limitation because getting qualified or even capable people in the programming field in Korea was a very difficult task.
Colonel Kincaid's testimony further indicates that, the request was not addressed to him but to the Civilian Personnel Office (CPO) and he stopped short of approving Terrill's May 5 request. He characterized his use of a line through endorsement in the following manner.
Here we're talking Army correspondence. This particular form of correspondence, the through to letter, is designed to inform intermediate commands of a--action going through them from a lower level to a higher level. The slash-through indicates that you've seen it. Now, what you put after the slash indicates your action or your position on the action. A line through with initials and a date indicates that you've seen it, you're aware of it, and that there is no comment one way or the other concerning how you feel about the subject. You could go further than that; you could line through, initial it and date it and add a comment, endorsing it or approving--recommending approval or anything like that, or line through, date and put a comment or recommending nonconcur. You could do any of these things. It gives you a broad range of--. [ v11 p444 ]
Colonel Kincaid testified that the request merely went through him and since he was not asked to make a decision on it he did not do so. His lining through was merely to say that he sent the request and that he saw no reason why he "should recommend disapproval".
While he encouraged extensions, Colonel Kincaid testified that Mr. Terrill's extension request was some eighteen months in the future and that he saw no immediacy of a real strong justification on management's part to cause the May 5 extension to happen at that time. Kincaid stated,
It just doesn't--didn't seem in proportion to the request as we're dealing with something two years in the future, and I knew that his extension for his fourth or fifth year was well on the way to being approved and that he was in solid for at least a year and then we'd have to consider something.
On May 7, 1981, Colonel Kincaid wrote a second endorsement of the Terrill request. This rather oddly worded endorsement stated: "To my knowledge there is no cause to recommend against the extension requested in basic." According to Kincaid, this revision came about because he was questioned by Lt. Colonel George J. C. Fries concerning the Terrill request. Kincaid testified that Fries asked him "why, if I concurred, I did not write it down". Colonel Fries is an Air Force officer and Colonel Kincaid tried to explain the line through endorsement but, Colonel Fries insisted that this was not good enough that he wanted it written down and kept pressing Colonel Kincaid for the reason he was recommending approval. Colonel Kincaid responded, "I know of no reason not to." Clearly Kincaid was more comfortable with the Army method of lining through while Fries required something more exacting.
During their conversation Colonel Kincaid states that Colonel Fries "acted to me very much like he was under pressure, and I have no idea from whom it might have been." Colonel Fries also told Colonel Kincaid that "he was tired of being the one that had to make all the hard decisions." Colonel Kincaid asked "why it was a hard decision. The only--the only reason it might be a hard decision is if you're going to disapprove it." Colonel Fries responded to the effect that "I can't possibly send this--this forward recommending that way, because Mr. Terrill is an embarrassment to the command."
Colonel Kincaid states that the Fries statement sort of set him back, and he asked, "In what way is Mr. Terrill's job performance an embarrassment to the command?" Fries responded, "It is not his job performance I'm talking about and you know it." Kincaid replied, "Well, if it's not his job performance, then we can't do an adverse civilian action based upon anything other than job performance because its against the law." Fries then said, "Well, he's an embarrassment to me, too." When pressed further for an explanation by Kincaid regarding how Terrill's job performance was involved, Fries mentioned several incidents with the Military Police. [ v11 p445 ]
With regard to the Military Police incidents, Colonel Kincaid recalled that Terrill was taken into custody, and charged with disorderly conduct in connect with what was known as the "POPPA" incident. Here Terrill had refused to present proper identification in the Post Exchange, was detained by the Military Police and was initially charged with disorderly conduct and failure to present his ration control plate. More importantly the POPPA was then subject to negotiations between the parties. Colonel Kincaid and Colonel Fries had previously discussed the incident between themselves and according to Fries "we pretty well agreed that it had something to do with the Union, yes," This particular incident according to Kincaid was essentially the embarrassment to Fries although the charges against Terrill were subsequently dropped. Colonel Fries also admitted embarrassment by the POPPA incident on cross-examination.
Aside from dropping the charges against Terrill, William J. Whitten, the Civilian Personnel Officer, called Terrill on December 10, 1980, informing Terrill that the Chief of Staff, Major General Dobleman was ordering an investigation of the matter. Whitten again called Terrill on December 16, 1980, asking if the Union would withdraw its unfair labor practice concerning the POPPA system if Respondent cancelled the entire POPPA system. Terrill agreed and did drop the charge.
Another incident involved Terrill, who is an avid gun collector, involved his keeping weapons in his home. This was resolved, however by having Terrill place the weapons in a local rod and gun club.
When examined concerning exceptions to the five year rule, Colonel Kincaid stated that while he did not use the criteria of the regulations in Terrill's case he felt Terrill would have met the special work circumstances criteria.
With respect to his denial of Terrill's request, Colonel Fries testified that he sought assistance from the Civilian Personnel Office on this matter and was made aware of the exceptions to the five year rule. Colonel Fries denied the request on May 13, 1981 making no note of the regulations, but stating:
In the interest of continued professional development of the individual and to provide him a better opportunity for advancement in grade, recommend the extension as requested by Mr. Don Terrill be disapproved.
Colonel Fries denial makes no mention of the regulations although, as noted above, he contends that he was aware of the regulations. Fries disapproval was acknowledged on June 12, 1981 by the CPO. For the first time, the regulations USFK/EA 690-3 and para B-1(c)(1) of CMMI 301.13 were noted by the CPO in its communication to Fries. However, Terrill was extended to June 28, 1982 without "the prerogative to exercise reemployment rights at the end of the current time." [ v11 p446 ]
Colonel Fries' testimony of his meeting with Colonel Kincaid substantially corroborates Kincaid's recollection. Fries added that during his admonishment of Terrill concerning the "POPPA" incident he told Terrill, "I think you change a lot of things but you maybe -- was using the wrong approach sometimes." He explained this statement as not using direct confrontation versus going to someone in authority responsible for ration control.
The record also disclosed a strong endorsement for an extension beyond five years for a Mr. Apalategui on December 19, 1980, from Colonel Kincaid. When questioned regarding this endorsement Colonel Kincaid testified that Mr. Apalategui worked directly for him, and such a strong endorsement for Terrill should have been prepared not by him, by Major Davis, Terrill's first line supervisor. Kincaid also notes that Mr. Apalategui had a much shorter time left in Korea than Terrill when this endorsement was prepared, that without an extension they could have certainly lost him, and when faced with recruiting and training problems they will "fall on our sword and we write four or five pages like this if we have to try to save the man, but eighteen months in the future, the urgency just wasn't there."
Colonel Kincaid testified that if Terrill had submitted his request, as required, during the nine-month period prior to rotation, it would as a matter of course have received a strong endorsement. However, Colonel Kincaid, Major Davis and Colonel Fries had all rotated to different duty posts by that time.
Terrill upon discovering that his request for extension was denied, filed an unfair labor practice charge on June 11, 1981. The CPO acknowledged disapproval of the Terrill request on June 12, 1981.
Subsequently, on July 16, 1981 Terrill submitted a second request for extension, using the same format as the initial request to his current first line supervisor, Major Dennis A. Strobel. Major Strobel who had been in his position only a very short time when he received the request, reviewed the CPO, DoD and Naval regulations and determined that Terrill did not fit any of the exceptions to the five year rule. Since he felt that Terrill did not meet any of the exceptions he gave the extension request back to Terrill suggesting that "he check the regulation and try to qualify under one of the exceptions to the policy." Strobel explains that had Terrill's second request attempted to meet any of the exceptions, or if it had differed in context from the first request that was denied, he would "have passed it on for action by someone..."
Mr. Terrill's present Division Chief, Lt. Colonel Joe Braccia, because of the short time he had been in the position, had no opinion on whether he would approve an extension for Mr. Terrill. Colonel Braccia was of the opinion that rotation was healthy. [ v11 p447 ]
As previously stated, Terrill has reemployment rights as a GS-9 at Fort Belvoir, Virginia. Also, as part of the rotation process he can exercise priority placement under a Department of Defense Priority Replacement Program. Both Colonels Kincaid and Fries were aware of Terrill's rotation rights, however, Kincaid could not see how a return to a GS-9 position when Terrill was already a GS-11 could help enhance his career.
The initial question to be answered in this matter is whether or not the POPPA incident referred to by Colonel Fries as being an embarrassment to the command and to himself was protected activity. Focus is turned to this incident because there is no question raised on the record about Terrill's activist role as union president. Furthermore, despite the General Counsel's efforts to establish Terrill's other activities as union president, as being part of the reason for denial of the May 5 extension request, I find no connection between Terrill's activism and the single reason given on the record for denial of the requested extension. While Terrill was without doubt a thorn in management's side the real reason for denial of the extension by Colonel Fries concerns, as far as the record established, only this particular incident. Colonel Kincaid and Colonel Fries admittedly evaluated Terrill's action in confronting officials concerning ration cards as having been done in his capacity as a union representative and Colonel Fries hastened to add when counselling Terrill about the incident that he thought that Terrill might have been using the wrong approach. However, which approach Terrill should have used in forwarding the interest of the union was not a decision for Colonel Fries to make. Although tenuous, based on the record evidence, Terrill's conduct during the POPPA incident did not constitute flagrant misconduct and it was within the ambit of protected activity. See Veterans Administration Regional Office, Denver, Colorado, 2 FLRA No. 84 (1980); Department of the Navy, Headquarters, Military Traffic Management, 2 FLRA No. 72 (1980). Accordingly, it is found that the POPPA incident constituted protected activity. It is also noted that despite Colonel Fries concern, all charges concerning the POPPA incident were dropped.
The Complaint alleges a violation of Section 7116(a)(2) and (1) of the Statute in that Respondent refused to extend Terrill beyond the five-year limitation for an overseas tour. The touchstone for such violations under the Statute has been established by the Authority in Internal Revenue Service, Washington, D.C., 6 FLRA No. 23 (1981). There the Authority mandated that the burden is on the General Counsel to make a prima facie showing that the employee had engaged in protected activity and that this conduct was a motivating factor... Once this is established, the Agency must show by a preponderance of the evidence that it would have reached the same decision as to (the action) even in the absence of the protected activity. In the IRS case, supra, Respondent presented convincing evidence that it would have made its decision not to [ v11 p448 ] promote that employee at the hearing. The Authority test still requires that Respondent show by such convincing evidence that it decision would have been the same even where there is evidence of union consideration.
In this matter, the General Counsel established that Terrill was the primary union arm in Korea, and that he was an active and aggressive union leader to the point where he could have been considered a thorn in managements side. The General Counsel also established that the disapproval of his request for an extension was inextricably tied to the POPPA incident and, Colonel Fries' conclusion that this conduct was both a personal embarrassment and an embarrassment to the command. Further, the record revealed that Terrill desired to serve in Korea, at least until June 1983, and that an exercise of his return rights would have resulted in a two-grade reduction or loss of his job if he did not exercise those return rights. Additionally, the Department of Defense Priority Placement Program cited by Respondent offers only assistance in locating a position and may not have been able to place Terrill in an equivalent position.
It is noted that Colonel Kincaid, who is the central witness in this matter, expressed a strong feeling that Terrill' request for extension was doomed from the outset. Not because Colonel Fries was embarrassed by Terrill's conduct but, because Terrill has submitted the request well in advance of the nine-month period required by the regulations. While this may be true, it was not the reason advanced by Respondent for disapproving Terrill's request. According to Colonel Kincaid he was pressured to change his "concurrence" with Terrill's request, because it did not conform to standards required by his superior, Colonel Fries. The sum of his conversation with Colonel Fries, however reveals a motivation beyond those standards. Clearly both Davis and Kincaid took a much more informal approach to the matter considering only that Terrill was a satisfactory employee and taking into account the shortage of computer specialists saw no reason to deny Terrill's request. Fries, on the other hand, did have a single solitary concern that Terrill was an embarrassment, which he voiced to Colonel Kincaid, shortly before disapproving Terrill's request.
Colonel Kincaid testified that he encouraged employees to extend their tours of duty in Korea, if they were satisfactory performers but, he did not, as he testified "fall on our sword" for Terrill when he changed his recommendation from line through to a memorandum. Considering the entire conversation between these two officers it is clear that Colonel Fries motivation for approaching Kincaid with the matter involved more than the form of concurrence by both Davis and Kincaid, but involved also an attempt to have Kincaid change his concurrence, which he did. Kincaid did not feel pressured concerning Terrill and saw no reason to change his concurrence. His rather curious wording of his second concurrence can reasonably be construed as feeling some pressure from Fries to change that recommendation. [ v11 p449 ]
Colonel Fries stated reason for denying Terrill's request for an extension of time in Korea, was "In the interest of continued professional development", and to provide Terrill a better "opportunity for advancement in grade". At the hearing Fries testified that one of the reasons he did not approve Terrill's request was because of his failure to meet the requirements of the regulations although this reason was not advanced in his May 13 disapproval. Furthermore, Fries never discussed career advancement potential was available to Terrill once he left JCIS. Since Terrill's job return rights were to a lower grade, it is difficult to see how this disapproval could possibly contribute to advancing Terrill's professional career. I find the reasons given by Colonel Fries to be inconsistent. If the reason for disapproval was indeed because Terrill did not meet the regulatory requirement, it is reasonable to assume that Fries would have so noted on his disapproval, rather than searching for a reason not actually covered in the regulations. I note that the Navy regulation is designed to provide career opportunities.
Based on the above, it is found that the General Counsel established by a preponderance of the evidence that Terrill had engaged in protected activity and the activity was a motivating factor in disapproving his request for an extension beyond the five year limitation.
In going forward, Respondent asserts that the decision to deny the extension to Mr. Terrill was based on Colonel Fries personal assessment that Mr. Terrill did not meet the criteria for extension and that there was virtually no opportunity for Mr. Terrill's career advancement. Colonel Fries personal assessment of Mr. Terrill is best revealed in his conversation with Colonel Kincaid where he stated that Terrill was an "embarrassment" and the reason given for this embarrassment was the POPPA incident. The record disclose no other assessment of Terrill by Colonel Fries nor does it appear from the record what possible opportunities for advancement were available if Terrill were rotated. As for career advancement, Terrill had always been a satisfactory employee and there was no suggestion on the record that Terrill sought to enhance his "career" in the JCIS unit, but merely that he desired to remain in Korea. Accordingly, it is found that the disapproval for reason of career advancement is pretextual and that the real reason for disapproval was Terrill's participation in the POPPA incident.
Neither can Respondent argue that the denial was for the good of JCIS since there is substantial record evidence that satisfactory employees were encouraged to extend tours even beyond the five year limitation because of the shortage of computer personnel. It appears from the record that Terrill was prepared to forego career advancement in order to remain in Korea. It should be added that such an approach would not be unreasonable since Terrill's most viable option was to return to Fort Belvoir, [ v11 p450 ] Virginia with a two-grade reduction to GS-9. When all is considered there is little reason left for Colonel Fries to recommend disapproval for the reasons set forth by him.
Respondent also argues that Mr. Terrill did not meet certain criteria set out in the regulations. Such a defense appears to be an afterthought. First, Colonel Fries, although testifying that he checked with CPO and was aware of the regulations did not mention the regulations in his disapproval. In such circumstances, it is reasonable to assume that he had not considered such regulations, but denied the extension for the reason stated therein. Furthermore, the CPO's acknowledging the Fries disapproval and citing regulations did not perfect the Fries disapproval. If the regulations were in question, since time was not a factor, the rest should have been returned to Terrill as Major Strobel returned his second application in July 1981, in order to determine whether Terrill met any of the exceptions to the five year rule.
Both Major Davis and Colonel Kincaid testified that neither had considered any regulations when approving the request. The action of these two, particularly where there is evidence that computer technicians who were satisfactory employees were encouraged to extend, makes it appear that approval of such extensions was pro forma. For Colonel Fries to familiarize himself with the regulations, inquire of CPO, and admonish Colonel Kincaid concerning an action which is a matter of form in most cases raises suspicion. The only reason articulated on the record for such concern by Colonel Fries is the "embarrassment" caused by Terrill. Moreover, there is no evidence that Respondent ever before took the regulations into account in denying an extension beyond the five year period or that it ever took the regulations into account in denying any request for extension.
Resort to the regulations was first mentioned by the CPO as justification why Terrill could not be extended. This rationale differed completely from the recommending officer Colonel Fries, who one must assume disapproved the request for the reasons set out in his memorandum and not because he knew or felt that Terrill did not meet the criteria of the regulations. It was indeed Colonel Fries disapproval without reference to regulations which was acknowledged and approved by CPO. The regulations, as already noted, first surfaced when on June 12, 1981, the CPO responded to Fries noting his disapproval of the request. While career advancement might well have been considered as a reason for denying the Terrill request, it is clear that it was not the real reason, but the denial was based on Colonel Fries perception of the POPPA incident as an embarrassment and it gave him an opportunity to see Terrill out of the command. In all the circumstances, it is concluded that Respondent's reliance on the regulations to deny Terrill's extension is misplaced. I therefore, reject Respondent's contention that Terrill was denied an extension because he did not meet the requirements of those regulations. [ v11 p451 ]
Respondent also argues that the Apalategui extension met the regulatory requirement, involved career enhancement and that his departure would jeopardize a major ongoing project. Is is obvious that the Apalategui request was a different situation. Mr. Apalategui's extension approval according to Colonel Kincaid involved "falling on the sword" because his rotation was imminent and there was a pressing need to retain him. Such was not the case with Terrill. Although Terrill's request might well have been disapproved by Colonel Fries or by CPO for many reasons, including the fact that it was premature, Respondent must establish by a preponderance of the evidence that it was indeed disapproved for those reasons. Respondent has not met that burden. Accordingly, it is found that Respondent did not carry its burden of proving by a preponderance of the evidence that its decision to reject the Terrill May 5, 1981 request for extension would have been the same absent union consideration. Therefore, Respondent's conduct in denying Mr. Terrill an extension beyond the five year period is in violation of section 7116(a)(2) and (1) of the Statute.
The General Counsel requested a remedy which grant the extension request of Terrill, as originally submitted on May 5, 1981. I agree. In reviewing the record, it is clear that while several valid reasons could have been advanced to deny the Terrill's request, including the fact that it was premature, the real reason for the disapproval was discriminatory.
It is noted that Terrill had only recently received an extension up to the five-year limitation; that Terrill's request was immediately on the heels of the most recent extension; that even Colonel Kincaid saw no urgency in approving the request at that time; that Terrill resubmitted his request, but when asked to provide reasons why he met exceptions to the five-year limitation, he provided none, thus effectively withdrawing his application; that although Terrill's union activity was a factor, the same decision may have been reached by Fries subordinates not to strongly recommend Terrill because of the timing of his request; and, finally if I read the record correctly Fries disapproval of the extension was the major step in the process, with his decision carrying great weight with the CPO. It is my view that absent such a recommendation by Colonel Fries the CPO would have been left to make the "hard decision", but that it relied on the recommendation of Colonel Fries which was discriminatorily based. However, as found herein, the real motive for the denial of Terrill's request was no doubt because the JCIS Director felt that certain union related conduct was an embarrassment to the command. Thus, while Respondent has offered convincing reasons why Mr. Terrill could have been barred from an additional one year extension, it has not established by a preponderance of the evidence that any of these reasons were actually a consideration in disapproving the Terrill request. [ v11 p452 ]
Based on the above, it is found that the only effective remedy would require that Respondent make all efforts necessary to secure the approval of a one-year extension for Mr.Terrill until June 28, 1983, and if necessary, such a request for extension should be endorsed favorably by Respondent's Commanding General with an explanation of such endorsement in light of the unfair labor practice violation found herein.
Having found that Respondent violated section 7116(a)(2) and (1) of the Statute, it is recommended that the Authority adopt the following Order.
Pursuant to 5 U.S.C. 7118(a)(7) and section 2423.26 of the Final Rules and Regulations of the Federal Labor Relations Authority, U.S. Fed. Reg. 348