13:0180(38)CA - HUD, Region VI, San Antonio Area Office and AFGE Local 3320 -- 1983 FLRAdec CA
[ v13 p180 ]
The decision of the Authority follows:
13 FLRA No. 38 UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, REGION VI SAN ANTONIO AREA OFFICE Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3320 Case No. 6-CA-985 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of the complaint with respect to them. Exceptions to the Judge's Decision were filed by the Respondent and the General Counsel filed an opposition to the Respondent's exceptions. /1A/ 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 Recommended Order. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the United States Department of Housing and Urban Development, Region VI, San Antonio Area Office, shall: 1. Cease and desist from: (a) Making changes in the mileage rates for the use of privately-owned vehicles, without affording Local 3320 of the American Federation of Government Employees, AFL-CIO, prior notice and an opportunity to bargain concerning such change, to the extent consonant with the law. (b) Discriminating against employees who assist Local 3320, invoke its representation, or otherwise engage in protected union activity under the Statute. (c) In any like or related manner, failing to bargain, discriminating against employees for protected union activity, or interfering with, restraining, or coercing employees in the exercise of rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute: (a) Remove and expunge from the personnel folder of Arthur R. Marroquin all evidence of the reprimand issued to him on December 8, 1980. (b) Post copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Area Director, or his designee, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including bulletin boards and all other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VI, Federal Labor Relations Authority, in writing, within 30 days of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the remaining allegations of the amended complaint be, and it hereby is, dismissed. Issued, Washington, D.C., September 29, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO 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 make any changes in the mileage rates for the use of privately-owned vehicles, without affording Local 3320 of the American Federation of Government Employees, AFL-CIO, prior notice and an opportunity to bargain concerning them, to the extent consonant with the law. WE WILL NOT discriminate against employees who assist Local 3320, invoke its representation, or otherwise engage in protected union activity under the Federal Service Labor-Management Relations Statute. WE WILL remove from the personnel folder of Arthur R. Marroquin all evidence of the reprimand issued to him on December 8, 1980. WE WILL NOT, in any like or related manner, fail to bargain, or discriminate against, interfere with, restrain, or coerce employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. (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 this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region VI, Federal Labor Relations Authority, whose address is: Bryan & Ervay Streets, Room 450, P.O. Box 2640, Dallas, Texas 75221, and whose telephone number is: (214) 767-4996. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 6-CA-985 William C. Cregar, Counsel for Respondent James E. Dumerer, Counsel for the General Counsel, Federal Labor Relations Authority Steven M. Angel, Counsel for the Charging Party Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. 7101 et seq. (Supp. IV, 1980, hereinafter referred to as the "Statute"), and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. : ISABELLE R. CAPPELLO Pursuant to a charge filed by the Charging Party on February 17, 1981 and amended on June 1, 1981, the General Counsel of the Federal Labor Relations Authority (hereinafter the "Authority"), investigated the allegations of the charge, filed this complaint on May 30, 1981, and amended it on January 28, 1982. As amended, the complaint alleges that Respondent has violated Sections 7116(a)(1), (2) and (5) of the Statute. /1/ The alleged violative acts and conduct are described as being the "threatening of an employee with unspecified reprisals because of the employees' activities on behalf of the Union," on or about October 16, 1980 (count 8 of the amended complaint); "discriminat(ing) against Arthur R. Marroquin . . . in connection with hiring, tenure, promotion or other condition of employment by issuing a reprimand because of his membership in and activities on behalf of the Union," on or about December 8 (count 9 of the amended complaint); and "unilaterally chang(ing) the terms and conditions of employment concerning mileage rates for use of privately owned vehicles, without affording the Union an opportunity to bargain," on or about December 8 (count 10 of the amended complaint). /2/ A hearing was held on April 29 and 30, 1982, in San Antonio, Texas. The parties appeared, adduced evidence, and examined witnesses. Briefs were filed by all the parties on June 15, 1982. A Motion to Reopen the Record was filed by the Charging Party, on July 15. A Motion for Payment of Attorney's Fees was filed by Steven M. Angel on July 12, pursuant to a June 25 Order that he submit an affidavit in support of the fee request made in the brief he filed on behalf of the Charging Party. Respondent was given until July 26 to respond to the fee request. On July 27 Respondent filed a Motion to Accept Late Filing of its response to the fee request, on the ground of secretarial error. Respondent's motion is granted and its letter-response is accepted. Motion to Reopen Record The basis for this motion is the discovery of a document which allegedly corroborates testimony of witnesses for the Charging Party on the issue of whether Arthur R. Marroquin invoked its assistance on October 17, 1980. It is admitted that the document was in the possession of the chief steward, Antonio C. Cabral, at the time of the hearing. It is argued that Mr. Cabral was unaware of its significance because, as a witness, he was under a sequestration rule. In his testimony, Mr. Cabral demonstrated some confusion as to the date the union intervened. After leaving the stand, he checked his records and found some notes and his calendar, which refreshed his recollection. He was then recalled as a witness and testified that he was certain that the union intervened on October 17. He was a credible witness and, for reasons set forth more fully, infra, I have credited his testimony. Upon these facts and circumstances, I see no justification for reopening the record, even though Respondent does not oppose the motion. The motion is denied. Based upon the record made in this proceeding, my observation of the demeanor of the witnesses, the briefs, and the representations made in the motions and responses thereto, I make the following findings of fact, conclusions of law, and recommended decision. Findings of Fact 1. It is admitted that the United States Department of Housing and Urban Development ("HUD") is an agency, and that the American Federation of Government Employees ("AFGE") is a labor organization, within the meaning of Section 7103(a)(3) and (4) of the Statute. AFGE is the exclusive representative of professional and non-professional employees at certain HUD offices, including the San Antonio Area Office, here involved. Local 3320 ("Union") is the representative of AFGE at the San Antonio Area Office. Count 10 of the amended complaint 2. In its answer to the amended complaint, which added this allegation, Respondent admitted that on or about December 8 it unilaterally changed the terms and conditions concerning mileage rates for use of privately owned vehicles, without affording the Union an opportunity to bargain. At the start of the hearing, Respondent conceded that the change had a "substantial impact upon employees" (TR 10). /3/ The change was to lower the 16 1/2 cents mileage rate to 10 cents. It was stipulated at the hearing that employees who were affected by the change had already been reimbursed. See TR 4-5. Respondent voluntarily went back to the 16 1/2 rate, and offered to reimburse employees who travelled at the 10 cents a mile rate. Its voluntary action took place shortly after the amended charge alleging a violation was filed, and before the complaint was issued by the General Counsel. Counts 8 and 9 of the complaint 3. The San Antonio Area Office operates under a regional office in Fort Worth. The size of the San Antonio Area Office was not established. One of its subdivisions is the Community Planning and Development Department ("CPD"). The function of the CPD is to oversee the award of Federal housing grants and to monitor them. Monitoring involves trips to communities receiving the grants. Except for the Director of the CPD, employees in the CPD sit in cubicles, in one large area, and can easily overhear conversations in the CPD area. Employees in the CPD are all professionals. They are often required to travel out of the San Antonio area. The method of transportation, whether by government vehicle ("GOV" or "GSA"), or by a personally-owned vehicle ("POV"), is a matter of great concern to these employees, because generally they prefer travel by POV. The CPD employees often travel in teams. When team travel is involved, the employee who is the program manager makes the motel and travel arrangements. 4. The employees involved in this proceeding are as follows: a. Arthur R. Marroquin ("Rudy") is one of seven program managers in the CPD. He is the employee against whom the adverse action here involved was taken. b. Phillip R. Aguirre is the president of the Union and an employee in the CPD. c. Antonio C. Cabral ("Tony") is the vice president and chief steward of the Union. He is also an employee in the CPD. d. Franklin M. Buie ("Frank") is one of two section heads in the CPD. He is the first-line supervisor of Mr. Marroquin, Mr. Cabral, and Mr. Aguirre. e. Charles Steitle was the other CPD section head during the period here involved. He is now retired, and did not testify at the hearing. f. James Byam has been the deputy director of the San Antonio Area Office since 1974 and has direct responsibility for the handling of labor relations. g. William O'Neal ("Bill") is the labor-relations officer for the regional office in Fort Worth. Mr. O'Neal was at a meeting in Washington at the time of the hearing and was not called to testify. h. Kenneth Willenberg, Lowell G. Salyer, Robert Dominquez ("Bob"), and Leslie A. Morgan ("Jack") were all employees in the CPD and were supervised by Mr. Steitle, during the period here involved. Mr. Willenberg is now self-employed. i. Leroy Moczygemba is an employee in CPD and is supervised by Mr. Buie. j. Ramon A. Galindo is the director of the CPD. During the October 16-17 episode here at issue, he was out of town; Mr. Buie was acting in his stead. 5. The instant case involves facts surrounding the arrangements for a team trip to Edinberg, Texas. Mr. Marroquin was the program manager. Messrs. Willenberg, Salyer, Dominquez, and Morgan were the other team members. On October 12, Mr. Marroquin confirmed arrangements with the City of Edinberg for the monitoring team to arrive on Monday, October 20th. He also confirmed the motel arrangements which had been made, and arranged with the other members of the team to use two POV's. By October 16, only Mr. Salyer did not know how he was to travel to Edinberg; and this was because he had been out of the office, on vacation. 6. Mr. Buie was made aware of the intended use of two POV's by means of Mr. Marroquin's travel itinerary dated October 14. This itinerary was returned to Mr. Marroquin on October 16 with the notation by Mr. Buie: "Must use GSA cars if available" (GC 2). Mr. Marroquin went to see Mr. Buie, to protest that requiring use of GSA vehicles was contrary to office policy. Their discussion was apparently a heated one. When Mr. Buie repeated that he wanted the GSA cars used on the trip, Mr. Marroquin informed him "that this was a change in our working conditions and as a shop steward (he) was going to require him to put his order in writing, so there'd be no mistake" (TR 120). /4/ Mr. Buie replied: "I don't have to give you a God damned thing. You're going by GSA-- you're going to use GSA" (TR 121). Mr. Marroquin resisted making these arrangements. 7. Mr. Marroquin then left Mr. Buie's vehicle and filled out a Rapid Reply Letter directed to Mr. Buie, and informing him that his comment on the travel itinerary was incorrect; that the travelers on the Edinberg trip had made no commitment to use GOV's; that they were planning to go by POV; and that, if there were any further questions, "please check with Administration" (R 1.2). In the "Reply" portion of the Rapid Reply Letter, Mr. Buie wrote: "GSA cars (2) are available in the CPD Division and are reserved for your use on the trip. They will be used." (R 1.2) The reply was dated October 16th. 8. Mr. Marroquin then went to see Mr. Byam about the matter. Mr. Marroquin often consulted with Mr. Byam about business matters. See TR 193-194. At about the same time, Mr. Buie was seeing Mr. Steitle. Mr. Buie stated to Mr. Steitle that "he was making a management decision that his people were going to drive GOV's" (TR 139). 9. Meanwhile, Mr. Byam was agreeing with Mr. Marroquin that it was office policy not to require the use of GOV's. Mr. Byam immediately went to see Mr. Buie and told him: "Frank, you're wrong, Rudy can take his own vehicle if he takes it at the going GSA rate" (TR 181). Mr. Buie then informed Mr. Marroquin that he did not have to take GOV's, but that only two cars could be taken, and that he was to make arrangements as to how the travelers would split up in the two cars. Mr. Marroquin continued to resist making the arrangements he was instructed to make. Events on October 17 10. Early on Friday morning, October 17, Mr. Buie presented Mr. Marroquin with a memorandum stating: At your request, I am instructing you, as team leader of this monitoring trip, to coordinate with the appropriate travelers for the trip. We cannot authorize more than two cars for this trip. Please arrange your travel accordingly. I understand that Mack (Morgan) and Bob (Dominquez) are using a Government automobile (TR 49). 11. Later, Mr. Buie called Mr. Marroquin to his cubicle to discuss the travel arrangements. A heated discussion ensued. Mr. Marroquin refused to make the arrangements for the other team members, on the ground that Mr. Steitle was interfering. Mr. Buie accused Mr. Marroquin of insubordination. Mr. Marroquin left the meeting to seek representation from the Union, because he heard that a disciplinary action, in the form of a reprimand, was being contemplated. Mr. Cabral, on Mr. Aguirre's instruction, then accompanied Mr. Marroquin back to Mr. Buie's cubicle and asked Mr. Buie what the problem was. Mr. Buie asked Mr. Cabral why he was getting involved. Mr. Cabral explained that he was representing Mr. Marroquin, under the collective bargaining agreement, because Mr. Marroquin was afraid of a detrimental action against him. Mr. Buie replied that he didn't think "the Union has any business getting involved with this" (TR 101), and called Mr. Byam. Mr. Byam advised Mr. Buie that Mr. Marroquin could have representation. Mr. Cabral then stayed, and again asked what the problem was. Mr. Buie informed him that Mr. Marroquin had failed to perform his responsibilities and that action was going to be taken against him. Mr. Cabral tried to seek an informal resolution of the matter. Mr. Buie replied that there was nothing else he could do. /5/ 12. Mr. Cabral left then with Mr. Marroquin and, after discussing the matter with Mr. Marroquin, returned again to Mr. Buie, to be sure that he did not want to discuss it. Mr. -buie said it was "out of his hand" (TR 102, 113). Mr. Cabral then said he would have to discuss it with the front office. Mr. Buie indicated, in "almost these words:" (W)ell, you go ahead and do what you want, but personally, I don't think that you should be involved. I think this is one of the problems with HUD, and with the Federal Government, that the Union is getting involved in any little thing, and the Unions are getting too strong, so that management can't do anything anymore (TR 113). /6/ 13. Mr. Cabral then went to see Mr. Byam and explained that, under the Union agreement, the Marroquin matter could be resolved between them. Mr. Byam told him that the matter was already in the regional office. At Mr. Cabral's suggestion, Mr. O'Neal was called on a conference call, and all three of them discussed the matter. Mr. Cabral explained that he wanted an informal agreement on the Marroquin case. Mr. O'Neal said that it was "already too far advanced, we're just going to have to let it follow its course" (TR 104). /7/ This may have been a reference to the fact that the regional office was preparing a draft of a proposed disciplinary action against Mr. Marroquin. See TR 61-62. 14. Subsequent to all this, Mr. Salyer advised Mr. Buie that he did not know how he was going on the trip (TR 35). 15. At that juncture, Mr. Buie prepared and presented a memorandum to Mr. Marroquin. The memorandum recited the past events, on October 16 and 17 and stated: During this conversation (on the morning of October 17) you became insubordinate that (sic.) you were loud, boisterous, and I had to strongly insist that you stay in my office and discussed (sic.) the matter. You violated every aspect of Secretary Moon Landrieu's policy statement on good manners and courtesy in the United States Government dated September 17, 1980, since this created general confusion in the office. This conduct will not be condoned in the future. At 2:00 p.m. on Friday, October 17, 1980, the other team members do not know what the traveling arrangements are for next Monday morning; and I am instructing you to settle this matter immediately. (R 1.1) 16. Around 3:00 p.m. on October 17, a Friday, Mr. Buie learned that Mr. Willenberg did not know how he was going on the trip. Quitting time was 4:15 p.m. The trip was set for Monday morning. 17. Mr. Buie then asked Mr. Byam to be a witness to his asking Mr. Marroquin whether he had made the travel coordination for the trip insofar as who was traveling in which car. The three assembled in the privacy of Mr. Galindo's office. Mr. Marroquin was asked by Mr. Buie whether he had made the travel arrangements. Mr. Marroquin stated that he had, on his travel itinerary. Mr. Buie then said that Mr. Steitle's group did not know how they were going. Mr. Marroquin replied that he understood, from "scuttle butt," that Mr. Steitle had arranged for them to go by GSA car (TR 129). Mr. Buie then ordered Mr. Marroquin to go to the work area of Mr. Steitle to tell Mr. Steitle's people how they were going to travel. Mr. Marroquin argued that this was "improper", as he had no supervisory responsibility over them (TR 129-130). /8/ Mr. Marroquin did not respond when asked, at the hearing, whether he replied "no" to a direct order to go tell the others how they were to travel (TR 130). He then responded negatively to the question: "Did you simply say 'no', when told to go tell these employees their travel arrangements" (TR 130). When then asked what he had responded, he explained: "That I thought the order that Mr. Buie had given me was improper" (TR 130). The gist of this testimony seems to be that Mr. Marroquin did say "no" to a direct order, but qualified it by explaining that the order was improper. 18. Even before October 17, Mr. Morgan and Mr. Dominquez had agreed to travel together in a GOV. See TR 169. Mr. Marroquin did not contact Mr. Morgan on October 16 or 17. But Mr. Morgan testified that Mr. Marroquin "knew that we had a way down," and that his not contacting them was not unusual (Tr 172). 19. Late in the afternoon on October 17, Mr. Steitle asked Mr. Morgan to pick up Mr. Willenberg. Mr. Willenberg had been scheduled to go with Mr. Marroquin; but after "Mr. Marroquin's confrontation" on the afternoon of October 16, it was "up in the air as to who (he) was going with" (TR 139). Mr. Marroquin's only contact with Mr. Willenberg, on October 16 or 17, was to tell Mr. Willenberg that he, Mr. Marroquin, was not going to take anyone with him. 20. Mr. Salyer was first told that Mr. Marroquin was taking him. After Mr. Salyer heard "all kinds of yelling, shouting" (TR 156), in a Buie-Marroquin encounter that "sounded like a kindergarten class" (TR 150), Mr. Steitle came to Mr. Salyer and made a request, that sounded "like an order" (TR 157), that Mr. Salyer drive a GOV on the trip. Mr. Salyer agreed that he or Mr. Willenberg would drive one. Finally, on Friday afternoon, Mr. Marroquin came over to Mr. Salyer and said "I'll pick you up Monday morning at 7:30" (TR 151). Subsequent events 21. Sometime between October 20 and November 4, Mr. Galindo returned from a trip and learned that Mr. Buie was proposing a suspension of Mr. Marroquin. Mr. Buie told Mr. Galindo that he had discussed the matter with Mr. O'Neal, in the regional office, and that a draft of the proposed suspension was being prepared by the regional office. See TR 62. 22. On November 4, Mr. Buie signed a "Notice of Proposed Suspension" (Jt 4.1). In it, Mr. Buie charged Mr. Marroquin with "loud boisterous behavior which disrupted the normal operations of the office" (Jt 4.2 par. 1(d)) and with "failure to carry out an order on three (3) separate occasions" (Jt 4.2, par. 1(b)). 23. On or about November 5, Mr. Buie attempted to present Mr. Marroquin with the Notice of Proposed Suspension. Mr. Marroquin refused to accept it, without a witness. Mr. Buie called Mr. Byam for advice. Finally, Mr. Marroquin was allowed to have Mr. Cabral, as a witness, and Mr. Buie obtained Mr. Steitle. In front of these witnesses, Mr. Buie presented the Notice to Mr. Marroquin. /9/ 24. Mr. Galindo, on December 8, sent a "Notice of Decision to Issue Official Reprimand" to Mr. Marroquin (Jt 5). This Notice was also prepared in the Regional Office. The Notice states that Mr. Buie considered all the information presented by Mr. Marroquin's attorney, on his behalf. Mr. Galindo dismissed the charge concerning loud and boisterous behavior. He found the insubordination charge fully supported by the evidence. However, he lessened the penalty proposed by Mr. Buie to an official reprimand, to be placed in Mr. Buie's official personnel folder. 25. Mr. Galindo's reprimand was made after he had contacted witnesses, including Mr. Buie, Mr. Marroquin, Mr. Steitle, Mr. Byam, and the 4-team members who also made the October trip. a. Three of the team members told Mr. Galindo that, as late at 3:00 p.m. on Friday, October 17, they did not know how they were to travel to Edinberg. b. Mr. Galindo knew of the disagreement between Mr. Buie and Mr. Marroquin over the required use of Government cars rather than private ones. Mr. Galindo considered this fact in making his decision on the reprimand, in that he wondered if Mr. Buie was retaliating against Mr. Marroquin. Mr. Galindo also considered whether Mr. Steitle might have interfered with the transportation arrangements because three of the team members worked for Mr. Steitle. c. Mr. Galindo dismissed the charge of loud and boisterous language because he felt that "we all blow our tops once in a while" (TR 70), and that operations were not disrupted. d. Mr. Galindo has held his position since April 1976 and had never before learned of an employee under his supervision who had refused to obey an order. Evidence pertaining to union animus 26. For at least the past three years, there have been some "(f)airly well heated discussions" between the Union and management officials at the San Antonio Area Office (TR 17). Mr. Byam or the Area Director represent management at these meetings. 27. One issue has been over the number of shop stewards and the allowance of official time. Respondent interprets the collective bargaining agreement to allow for only four designated union representatives and recognizes only four for purposes of receiving official time. An exception is made for representation of employees in grievance and appeal matters. Mr. Byam also acknowledged that, on occasion, employees other than the four designated ones sit in on labor-management meetings. This issue appears to be a sore one between the Union and Respondent. Thus far, the Union has not filed a grievance or instituted a proceeding under the Statute. 28. Since 1976, Mr. Marroquin has been considered a shop steward, by the Union. On occasion he has sat in on labor-management meetings. Mr. Marroquin has represented the Union on his own time. He had not had any contact with managers in his office, in a Union capacity, during the period of 1980 preceding the October 16 episode. 29. Mr. Buie has never before recommended disciplinary action against a CPD employee, even though "(c)onfrontational politics is really the norm," in the CPD office (TR 20). Mr. Buie gets "irritated easily," as Respondent's labor relations officer testified (TR 184). At least one other CPD employee has challenged the authority of Mr. Buie, by throwing some papers on the floor and proclaiming that she was "not going to do that" and telling him that he could do "this damn thing" himself (TR 160). Another CPD employee, on several occasions, has gotten "to the point of threatening Mr. Buie . . . in a violent manner," and once told Mr. Buie to get out of his office (TR 158). Discussion and Conclusions The General Counsel has proved, by a preponderance of the evidence, that violations of Sections 7116(a)(1), (2) and (5) occurred by the acts and conduct alleged in counts 9 and 10 of the complaint. The facts alleged in count 8 were not so proved. Count 10 This failure-to-bargain count was clearly established; and Respondent does not contest the fact. It acknowledges that a "posting" would be "appropriate" (TR 9). Such a posting will be recommended, as well as an order against any further violations of this nature. Count 9 The findings and credibility resolutions made, supra, compel the conclusion that the disciplinary action here at issue was initiated solely on considerations of protected union activity, and therefore constituted an unfair labor practice, as alleged in the complaint. The protected union activity may be found in two instances during the continuing confrontation between Mr. Marroquin and his first-line supervisor, Mr. Buie-- a confrontation that spanned a Thursday and Friday, and began with a disagreement over office policy as to the use of POV's by a 5-member team for a following Monday morning trip. The clash began when Mr. Marroquin, who was team leader, invoked his status as a shop steward to challenge Mr. Buie's unilateral change in office policy concerning the use of POV's, and went over his head to get him reversed. Respondent disputes Mr. Marroquin's status as a shop steward. However, the facts indicate otherwise. While Mr. Marroquin was not given official time while so acting, he did act as a shop steward, on occasion, was so recognized by his Union, and so informed Mr. Buie when he registered his protest over the change. Respondent also argues that Mr. Marroquin was expressing a personal concern, and that commingling of personal with general employment concerns does not insulate a union representative from a disciplinary action for insubordination. See RBr 9. Respondent cites National Labor Relations Board and Ronald Lasky, 5 FLRA No. 87 (1981). That case, however, was a close one which "might well" have gone the other way, had the supervisor "invited the discussion . . . ." See page 8 of the decision of Administrative Law Judge Burton S. Sternburg, which the Authority affirmed without comment. In the instant case, Mr. Buie did invite the discussion, by making the unilateral change and insisting that the team follow it on the Monday morning trip. This was a matter of general concern to the bargaining unit, whose members travel regularly and prefer to use their own automobiles, in lieu of GSA ones. A shop steward, made aware of such an unilateral change, would naturally make a union issue out of the matter. The fact that the steward may be personally affected by the change should not serve to strip the steward of protected status, under the Statute, when invoking the union's right to challenge the unilateral change. Most stewards would lose protection, if the contrary became a principle of labor law. The challenge by Mr. Marroquin as a shop steward, was protected activity under Section 7102(1) of the Statute. The confrontation over the use of POV's immediately gave way to one over whether Mr. Marroquin should tell the other team members how they were to make the trip. The problem for Mr. Marroquin was that the other team members were under the supervision of someone other than Mr. Buie; and Mr. Marroquin had learned that the other team members were using a GOV. Mr. Marroquin was reluctant to interfere in another supervisor's jurisdiction; and he expressed this reluctance to Mr. Buie. Mr. Buie repeatedly insisted that Mr. Marroquin make the arrangements which led to several heated encounters. During one of them, Mr. Marroquin left the meeting to seek help from his union. When the help arrived, Mr. Buie objected, but was again overruled by higher authority, which agreed that Mr. Marroquin was entitled to representation by his union. Seeking union representation during an examination in connection with an investigation, which the employee reasonably believes may result in disciplinary action, is a protected right under Section 7114(a)(2)(B) of the Statute. /10/ Several facts are persuasive that the basis for the disciplinary action was the protected union activity, and not the given ground, "insubordination" of Mr. Marroquin. First of all, the "insubordination" did not justify the brouhaha that was raised over the matter. Mr. Marroquin did resist following Mr. Buie's orders to make the travel arrangements. But he finally did complete them. And his resistance was understandable-- he understood that the arrangements had been made, and he was reluctant to step in and countermand what had been arranged for or by employees who worked for another supervisor. Secondly, Mr. Buie was very tolerant of acts of insubordination by others on his staff, some of which would seem to have been more provocative than that of Mr. Marroquin. Yet nothing provoked him into resorting to disciplinary action until one of his staff exercised union rights. For a supervisor of Mr. Buie's ilk, easily irritated in an office where confrontations with staff were the norm, having a union intercede would be a real irritant, of course. Finally, Mr. Buie's animus toward union interference was established by credible evidence. He considers it to be a problem at HUD, and throughout the Federal government, to the point that management cannot do anything anymore. The fact that the disciplinary action was not imposed until Mr. Marroquin's second-line supervisor had made an independent investigation does not purge the action of the taint of discrimination. The matter would not have reached the attention of the second-line supervisor were it not for the resentment of the first-line supervisor over the protected union activities. Count 8 Respondent argues that this count should be dismissed for reason of a "total failure of proof" (RBr 7, fn. 6). The General Counsel does not even state it as an issue in the case. See GCBr 1. The Charging Party notes it as an issue (CPBr 1), but addresses its brief to the count 9 allegation of a reprimand as the violative act. Evidence in support of count 8 is obscure. See e.g. TR 131. It is clearly not supported by a preponderance of the evidence, which is the standard required by Section 7118(a)(7) of the Statute. It should be dismissed. Motion for Payment of Attorney's Fees The motion for attorney's fees is made in connection with the Sections 7116(a)(1) and (5) violation arising from the unilateral change in mileage rates. The Charging Party argues that the Backpay Act, 5 U.S.C. 5596 and the implementing regulations, 5 CFR 550.806 (1982), entitle it to attorney's fees for work connected to recovery of the allowances for travel unlawfully withheld. Moreover, it is argued that the withholding was clearly without merit, and so fees are appropriate in the interests of justice, as defined by 5 U.S.C. 7701(g). Respondent opposes the motion, on the ground that none of the requirements set forth in 5 U.S.C. 5596 and 7701(g) have been met. Section 702 of the Civil Service Reform Act of 1978 amended 5 U.S.C. 5596(b)(1) to provide that: An employee of an agency who, on the basis of . . . a decision relating to an unfair labor practice . . . is found by appropriate authority under applicable law . . . to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee - (A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect - . . . (ii) reasonable attorney fees related to the personnel action which, with respect to any decision relating to an unfair labor practice . . . shall be awarded in accordance with standards established under section 7701(g) of this title . . . . The standard in Section 7701(g)(1) is that: "(T)he Board (Merit Systems Protection Board), or an administrative law judge . . . may require payment by the agency involved of reasonable attorney fees incurred by the employee . . . if the employee . . . is the prevailing party and the . . . administrative law judge . . . determines that the payment by the agency is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency's action was clearly without merit. In Allen v. U.S. Postal Service, Docket No. AT075299011, decided July 22, 1980, Federal Merit Systems Reporter, Sec. 7015, XI- 72, the Merit Systems Protection Board (MSPB) lays out the legislative history of 5 U.S.C. 7701(g)(1) and considers how to apply the "interests of justice" standard. Since the MSPB is primarily charged with the responsibility for interpreting the provisions of 5 U.S.C. 7701(g)(1), its decisions may be looked to as precedent. The MSPB drew several conclusions of relevance here. One is that the burden of proof falls upon the applicant. Another is that substantial discretion rests upon the deciding body in determining when an award is warranted. And another is that Congress expected that discretion to award attorney's fees would normally be exercised where agency action was clearly without merit, but that discretion permitted the deciding body to deny fees even where such circumstances are present. See XI Federal Merit Systems Reporter at page 75. In the instant case, discretion is exercised to deny the award, as not warranted in the interest of justice, on the basis of finding 2, supra. I conclude that Respondent acted responsibly and without undue delay, in responding affirmatively to the charge. It did not delay proceedings, put any party to unnecessary proof, or act in an obdurate manner. It reverted back to the old rate and offered to reimburse any employee paid at the changed rate-- all before the complaint in this action was filed. Its actions were taken voluntarily, and not pursuant to a settlement agreement or order of this Authority. Counsel for the General Counsel, acting on information in his possession, represented that all employees affected by the change had been reimbursed; and it was so stipulated. See TR 4-5. Under these circumstances, an award cannot be justified as "warranted in the public interest." Indeed, it would be contrary to the public interest, to a degree, in that it might discourage agencies from voluntary actions taken to correct personnel mistakes. Other issues are raised by the parties. In view of the conclusions already reached, resolution of them were serve only to lengthen, not alter this decision. Accordingly, judicial restraint is exercised. Ultimate Findings and Recommended Order 1. The facts alleged in count 8 of the amended complaint were not proved by the preponderance of the evidence and that count must, therefore, be dismissed. 2. Violations of Sections 7116(a)(1), (2), and (5) of the Statute have been established by a preponderance of the evidence, as alleged in counts 9, 10, and 11 of the complaint. Pursuant to Section 7118 of the Statute and Section 2423.29 of the implementing rules and regulations, the Authority hereby ORDERS that: 1. Count 8 of the complaint be, and hereby is dismissed. 2. The Respondent shall cease and desist from: (a) Making changes in the mileage rates for the use of privately-owned vehicles, without affording Local 3320 of the American Federation of Government Employees, AFL-CIO, prior notice and an opportunity to bargain concerning such change, to the extent consonant with the law. (b) Discriminating against employees who assist Local 3320 or invoke its representation, to the extent consonant with the law. (c) In any like or related manner, failing to bargain, discriminating against employees for protected union activity, or interfering with, restraining, or coercing employees in the exercise of rights protected by the Statute. 3. The Respondent shall: (a) Remove and expunge from the personnel folder of Arthur R. Marroquin all evidence of the reprimand issued to him on December 8, 1980. (b) Post copies of the attached Notice (see Appendix A) on forms to be furnished by the Authority. Upon receipt of such forms, they should be signed by the Area Director, posted, and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Area Director shall take reasonable steps to insure that the notices are not altered, defaced, or covered by any other material. (c) Pursuant to Section 2423.30 of the Authority's rules and regulations, notify the Regional Director, Region VI, Federal Labor Relations Authority, in writing, within 30 days of this order, as to what steps have been taken to comply herewith. ISABELLE R. CAPPELLO Administrative Law Judge Dated: August 9, 1982 Washington, D.C. APPENDIX A NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT make any changes in the mileage rates for the use of privately-owned vehicles, without affording Local 3320 of the American Federation of Government Employees, AFL-CIO, prior notice and an opportunity to bargain concerning them, to the extent consonant with the law. WE WILL NOT discriminate against employees who assist Local 3320 or invoke its representation, to the extent consonant with the law. WE WILL remove from the personnel folder of Arthur R. Marroquin all evidence of the reprimand issued to him on December 8, 1980. WE WILL NOT, in any like or related manner fail to bargain, or discriminate against, interfere with, restrain, or coerce employees in the exercise of rights assured by Chapter 71 of Title 5 of the United States Code. (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 question concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region VI, P.O. Box 2640, Dallas, Texas 75221, and whose telephone number is (214) 767-4996. --------------- FOOTNOTES$ --------------- /1A/ 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 is incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings. /1/ Section 7116 of the Statute provides, in pertinent part, that: (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency - (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment; . . . (or) (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; . . . . /2/ The amended complaint is General Counsel Exhibit 1(n). /3/ "TR" refers to the transcript. Corrections to the transcript are to be found in Appendix B to this decision. Other abbreviations to be used herein are as follows. "GC" refers to the exhibits of the General Counsel and "GCBr" to his brief. "R" refers to the exhibits of the Respondent and "RBr" to its brief, "CP" refers to the exhibits of the Charging Party and "CPBr" to its brief. Multipage exhibits will be referenced by an exhibit number, followed by page or paragraph number. All dates referenced herein are in 1980, unless otherwise specified. /4/ This finding is based upon the testimony of Mr. Marroquin, who seemed to be honest and forthright in giving his testimony, albeit confused as to some dates and times. His testimony is bolstered by the fact that he did, on occasion, sit in on various committees for the Union with management and act as a shop steward, and by the fact that this was a matter which merited the attention of the Union, as it affected the bargaining unit on a matter of great concern to it. Mr. Buie denied any knowledge that Mr. Marroquin was acting as a Union representative. As a witness, I find that Mr. Buie seemed less candid and unrehearsed than Mr. Marroquin, and therefore less credible. I do not attach any significance to the fact that Mr. Marroquin, in his representation of the Union, did not receive official time. See finding 27, supra. /5/ Finding 11 is based upon testimony of Mr. Cabral, corroborated in part by that of Mr. Marroquin and Mr. Aguirre. Mr. Cabral impressed one as an honest and candid witness. He initially had some difficulty recalling whether this meeting occurred on October 16 or 17. However, he was recalled to the stand, after checking some notes and his calendar, and was able to state, with certitude, that it occurred on October 17. Respondent's Exhibit 4, a written statement by Mr. Buie to Mr. Galindo, shows that Mr. Marroquin did walk out of the meeting and then return. And Mr. Buie admitted that Mr. Cabral intervened on behalf of Mr. Marroquin, but thought it occurred on November 5 or 6, in connection with Mr. Buie giving Mr. Marroquin his notice of proposed disciplinary action. Mr. Buie does not recall that Mr. Cabral ever identified the fact that he was intervening as a Union representation. I find Mr. Cabral to have been a more credible witness than Mr. Buie and where their testimony is in conflict, I have credited that of Mr. Cabral. Mr. Buie did not strike me as being completely candid, in giving his testimony. /6/ This finding is based on the testimony of Mr. Cabral. Mr. Buie denied that the Union was ever mentioned, in his conversation with Mr. Cabral over the Marroquin matter. See TR 213. I have not credited this denial. See footnote 5, supra. /7/ This finding is based on the testimony of Mr. Cabral. Mr. Byam does not recall this happening. At first he seemed sure that it did not take place. See TR 188-189. Then, less sure. See TR 190 and 197-198. He admitted also that he had so many meetings with so many people that he had difficulty recollecting specifics. See TR 206. /8/ This finding is based on the testimony of Mr. Marroquin. Mr. Byam denies that Mr. Marroquin made this statement. See TR 185. Mr. Byam also testified that much of what went on at the meeting was a "mish-mash" to him, that he could not "even remember what it was about" (TR 82), and that both Mr. Marroquin and Mr. Buie were "talking at the same time" (TR 202). Therefore, it is likely that Mr. Byam just did not hear Mr. Marroquin make this statement. /9/ This may have been "the disciplinary time" which Mr. Moczygemba witnesses. See TR 245. The General Counsel relies heavily on Mr. Mocyzgemba's testimony to support a finding that the Union intervened on Mr. Marroquin's behalf on October 17. See GCBr 5-6. I find that his testimony, as to dates, was too uncertain to place reliance upon. Otherwise, he was an unbiased witness whose testimony has been fully credited. /10/ Since Respondent's labor relations officer agreed that Mr. Marroquin was entitled to union representation during this encounter, there does not seem to be an issue that this was a Section 7114(a)(2)(B) examination. In any event, the findings show that it qualifies. Mr. Buie was examining Mr. Marroquin to find out whether he had obeyed prior orders. Mr. Buie was very irritated over the matter. Disciplinary action was initiated shortly after the encounter took place.