14:0289(54)CA - Air Force, Scott AFB, IL and NAGE Local R7-23 -- 1984 FLRAdec CA



[ v14 p289 ]
14:0289(54)CA
The decision of the Authority follows:


 14 FLRA No. 54
 
 DEPARTMENT OF THE AIR FORCE
 SCOTT AIR FORCE BASE, ILLINOIS
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R7-23
 Charging Party
 
                                            Case Nos. 5-CA-381 
                                                      5-CA-386 
                                                      5-CA-406
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding finding that the Respondent had not engaged in
 the unfair labor practices alleged in the consolidated complaint, and
 recommending that the complaint be dismissed in its entirety.
 Thereafter, the Charging Party and the General Counsel filed exceptions
 to the Judge's Decision, and the Respondent filed an opposition thereto.
  /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 recommendation dismissing the
 complaint.
 
                                   ORDER
 
    IT IS ORDERED that the consolidated complaint in Case Nos. 5-CA-381,
 5-CA-386, and 5-CA-406 be, and it hereby is, dismissed.  
 
 Issued, Washington, D.C., April 20, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Lt. Col. Gordon B. Finley, Jr.
    Capt. Lynn W. Dippold
          For the Respondent
 
    Mark B. Clevenger, Esq.
          For the Charging Party
 
    Sandra J. Lebold, Esq.
          For the General Counsel
 
    Before:  ALAN W. HEIFETZ
         Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding arose pursuant to the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
 of unfair labor practice charges filed January 31, February 2, and
 February 17, 1980, with the Federal Labor Relations Authority.
 Consequently, on February 26, 1980, the Regional Director consolidated
 these cases and issued a complaint alleging that the Department of the
 Air Force, Scott Air Force Base, violated 5 U.S.C. 7116(a)(1), (2), and
 (4) by (a) admonishing the president of the National Association of
 Government Employees, Local R7-23 (the Union or Charging Party) that he
 had been spending excessive time away from his work because of his
 duties as a Union representative and not enough time performing work for
 Respondent;  (b) by threatening the president of the Union with the
 imposition of disciplinary action if he did not perform more work for
 Respondent and spend less time performing his Union duties;  and (c) by
 issuing a performance appraisal to the president of the Union which was
 lower than previous appraisals as a result of his continued requests
 for, and use of official time for representational purposes and/or
 because of having filed unfair labor practice charges against
 Respondent.  Respondent denies the allegations of the consolidated
 complaint.
 
    A hearing was held on June 11, 1981, at Scott Air Force Base,
 Illinois.  All parties were afforded full opportunity to examine
 witnesses and to introduce evidence.  Post hearing briefs were filed by
 August 4, 1981, and have been considered.  Upon the entire record,
 including my observation of the witnesses and their demeanor, I make the
 following findings, conclusions, and recommended order:
 
                             Findings of Fact
 
    The Union is the recognized representative of all non-supervisory,
 non-managerial employees at Scott Air Force Base.  As such, it
 represents approximately 3,000 of Respondent's employees.  /1/
 
    Carl Denton has been a Computer Systems Analyst at Scott Air Force
 Base since July 1973.  He has been the president of the Union since May
 1978 and, as such, he has been an extremely active and visible leader.
 Management officials, including Mr. Denton's immediate supervisors,
 Captain Dennis Hohman and Lt. Col. Anthony Serksnas, were aware of his
 activities on behalf of the Union.
 
    The collective bargaining agreement provides that Union officials
 will be allowed "a reasonable amount of official duty time" to conduct
 Union business.  The Union official must request the time from a
 supervisor and must report to the supervisor how much time was used.
 
    The Consolidated Aerial Port Subsystems (CAPS) program goes to the
 heart of the Military Airlift Command mission.  CAPS is a system
 designed to automate the handling of cargo and passengers world-wide.  A
 significant aspect of the automation of what was initially a manual
 process is quality assurance.
 
    Mr. Denton was involved in initial meetings and planning and in the
 design stage of the CAPS project in 1977 and 1978.  In the Spring of
 1979, there were only three people in the Command Data Automation
 Office:  Mr. Denton;  an Air Force Chief Master Sergeant who was soon
 due to retire;  and Captain Hohman who had been on board only a short
 while.  Mr. Denton was the only civilian and therefore, management
 expected that he would remain in the job at Scott Air Force Base
 indefinitely while any military personnel assigned would probably be
 transient.  The CAPS program was expected to continue in the
 developmental stage for several years and therefore, management looked
 to as much continuity of personnel as possible.  All of these
 considerations led Lt. Col. Serksnas to tell Mr. Denton in May of 1979
 that he had a GOL (golden opportunity for leadership) for Mr. Denton,
 that is, that he would become the CAPS Quality Assurance Manager.  That
 month, Captain Hohman, with Mr. Denton's assistance, rewrote the
 latter's position description to reflect his new duties as CAPS Quality
 Assurance Manager.  In June 1979, Mr. Denton received 160 hours of
 training to assist him in assuming those new duties.  In recognition of
 the time demands on Mr. Denton as Union president, Lt. Col. Serksnas and
 Captain Hohman assigned two military computer specialists to assist him,
 they assigned some of the computer work to a government contractor, and
 they diverted much of his routine work to other divisions under Lt. Col.
 Serksnas' directorate.  Both supervisors estimated that Mr. Denton could
 function both as CAPS Quality Assurance Manager and as Union president
 if Mr. Denton devoted between 10 and 20 hours per week to the CAPS
 project.
 
    Mr. Denton was not formally appointed to his new position until
 October 1979.  The reason he began functioning in the position as early
 as May 1979 was to give him enough lead time to prepare for audits of
 the project in January 1980 which were considered to be major milestones
 or review points for the project.
 
    In sharp contrast to management's view of his new job, Mr. Denton
 asserts that it is a full time position and, as such, it is totally
 incompatible with his duties as president of the Union which take more
 than 40 hours per week.  He continually objected to his assignment as
 CAPS Quality Assurance Manager from the beginning.  However, his
 objections did not take on a more formal tone until the audits of the
 project approached.
 
    The audits of the CAPS project were scheduled from January 14 - 25,
 1980.  On January 11, 1980, the Friday before the Monday on which the
 audits were to begin, Mr. Denton wrote to his third line supervisor
 accusing Lt. Col. Serksnas and Captain Hohman of gross mismanagement in
 assigning him to be Quality Assurance Manager knowing how much official
 time he spends on representational Union activities.  He wrote:
 
          . . . It is ridiculous to put a person who spends practically
       all his official duty time on representational duties for the
       Union, into a position of such extreme importance.  The job of
       Quality Assurance Manager is a job that requires full time
       concentration.  There is no way that I can stay up to speed and
       "manage" a project such as this.
 
    On Monday, January 14, 1980, Mr. Denton wrote to the Commander in
 Chief of the Military Airlift Command requesting an appointment to
 discuss his assignment.  He wrote that both his assignment and his Union
 position were full time jobs and, as to his assignment, he stated:
 
          . . . It is a physical and mental impossibility for me to
       perform the duties they require of me and I believe that this is
       detrimental to the mission and represents gross mismanagement of
       the project.
 
    That same day, Mr. Denton filed an unfair labor practice charge (not
 a part of the consolidated cases at bar) to protest his assignment.
 
    During this same week there were regularly scheduled contract
 negotiations which had been ongoing for some three and one half months.
 Mr. Denton was the Union's primary representative.  Negotiations were
 scheduled pursuant to ground rules which provided for sessions on
 Mondays, Wednesdays, and Thursdays from 9 a.m. to noon and from 1 p.m.
 to 3 p.m.  Management expected that he would attend these sessions even
 during the audits.
 
    The audits did not go well.  On Wednesday, January 16, Captain Hohman
 asked Mr. Denton to reschedule one collective bargaining session so that
 he could assist the audit team for several hours.  He declined to do so
 /2/ and told Captain Hohman that the request was making him nervous and
 upset.  Mr. Denton was out sick for the next two days and returned to
 work on Monday, January 21.  /3/ On that day, Captain Hohman counseled
 him about his lack of preparation for and participation in the audits.
 
    The following chart illustrates the amount of time Mr. Denton devoted
 to his assigned job as opposed to his Union activities at Scott Air
 Force Base for the 12-month period beginning February 1979:  (CHART
 OMITTED) /4/
 
    On January 28, 1980, Mr. Denton returned to his worksite following
 contract negotiations and, at about 4:20 p.m., gave Captain Hohman a
 copy of his projected work schedule for the rest of the week.  The
 schedule called for Mr. Denton to spend all of his time for Union
 activities.  As Captain Hohman was reviewing the schedule by Mr.
 Denton's desk, Lt. Col. Serksnas came by and looked at it.  Both
 supervisors told Mr. Denton that they thought it unfair to schedule 100
 percent of his time for Union activities and none for his regular job.
 Mr. Denton indicated that he thought it was fair and that Captain Hohman
 would probably try to whittle the Union time down considerably.  Mr.
 Denton threw up his hands and said, "Hey, it's kind of close to quitting
 time to be ganging up on me." Looking up at the clock and seeing that it
 was 4:30, Mr. Denton stood up to get his coat and said that it was time
 to leave.  During this conversation Mr. Denton was grinning.  /5/ As Mr.
 Denton began to leave he smiled and said, "Good night, Col. Serksnas."
 The Colonel replied, "Carl, I don't think I'm getting across to you.  I
 think I've lost my sense of humor." Mr. Denton walked out as he was
 saying, "I only said 'Good night', sir." Col. Serksnas followed him to
 the hallway and said, "Carl, if you don't start doing more work for me,
 I'm going to take disciplinary measures against you." Mr. Denton said
 nothing but continued to walk.  Col. Serksnas then said, "What can you
 do, file an unfair labor practice against me?" Mr. Denton paused and
 said, "I'm not sure that would be the appropriate action." Captain
 Hohman made an entry on Mr. Denton's 971 File, the supervisor's record
 of an employee, complaining that excessive Union time was being
 scheduled.
 
    On the next day, January 29, Mr. Denton filled out his daily request
 for Union time and give it to Captain Hohman who told him that Lt. Col.
 Serksnas wanted to meet with them.  Mr. Denton was granted his request
 to have a Union representative with him during the meeting.  Lt. Col.
 Serksnas did all the talking during this meeting of four or five
 minutes' duration.  He told Mr. Denton that he wasn't satisfied with the
 amount of time he had been spending on the audits and that he did not
 think he was "up to speed" on the CAPS project.  He wanted Mr. Denton to
 prepare for the next audits and asked him to postpone contract
 negotiations with the understanding that he would let him make up the
 time in the future when things quieted down.  He repeated that Mr.
 Denton was not doing enough work for him, that he had provided
 significant help for Mr. Denton from various offices, and that if he did
 not pull his share, he would have to take disciplinary action against
 him.
 
    On January 31, Mr. Denton received his regularly scheduled annual
 supervisor's appraisal of current performance, covering the period May
 1979 through January 1980.  The appraisal was prepared by Captain Hohman
 and reviewed by Lt. Col. Serksnas.  The appraisal is based on a grading
 from "A" to "G" according to the amount of supervision the employee
 would need if assigned a task with any one of the 21 characteristics
 listed.  Overall, the 1980 appraisal was lower than those of 1978 and
 1979;  of the 21 grades, 10 were lower, 2 were higher and 9 remained the
 same.  On the other than, the 1980 appraisal was significantly higher
 than those received by Mr. Denton in 1976 and 1977.  According to Mr.
 Denton, nearly all computer specialists at his grade level receive all
 "A's".  His appraisal history is as follows:  (CHART OMITTED)
 
    Captain Hohman discussed the appraisal with Mr. Denton and criticized
 him for failing to be up to speed and for not enthusiastically accepting
 his new role as CAPS Quality Assurance Manager.  Captain Hohman said
 that it was difficult for him to be objective about the rating because
 their relationship was strained by "outside happenings and outside
 things".  He also said that although Lt. Col. Serksnas was in agreement
 with the rating, he got the impression that the Colonel thought the
 rating shouldn't be as high.  Captain Hohman also testified credibly
 that he based his appraisal of Mr. Denton only on his actual job
 performance and that he did not consider any of Mr. Denton's Union
 activities in appraising him.
 
                        Discussion and Conclusions
 
    The Complaint alleges that in violation of 5 U.S.C. 7116(a)(1),
 Captain Hohman, on January 28, "admonished the President of the Union
 that he had been spending excessive time away from his work because of
 his duties as a Union representative and not enough time performing work
 for Respondent.  Similarly, the Complaint alleges that on January 28 and
 29, Lt. Col. Serksnas "threatened the Union's President with the
 imposition of disciplinary action if he did not perform more work for
 Respondent and spend less time performing his Union duties."
 
    The evidence does not indicate the precise words of Captain Hohman's
 allegedly unlawful comments, but I have found that the substance of his
 remarks consisted of telling Mr. Denton that he thought it unfair to
 schedule 100 percent of his time for Union activities and none for his
 regular job.  On both January 28 and 29, Lt. Col. Serksnas stated that
 if Mr. Denton did not start doing more work for him, he would take
 disciplinary measures against him.
 
    In order to evaluate these comments, they must be viewed within the
 context peculiar to this case.  Obviously, Mr. Denton was chosen for the
 position of CAPS Quality Assurance Manager for two reasons.  He had the
 technical qualifications for the job and, quite frankly, he was the only
 civilian available with both experience in the project and the
 capability of performing the required duties.  The record does not show
 that anyone else had similar qualifications, experience, and
 availability.  The conflict in this case arose because, although
 Respondent believed that Mr. Denton could perform his duties by devoting
 between 10 and 20 hours per week, Mr. Denton believed that he would have
 no time available for his official duties since his Union
 representational responsibilities would entail 100 percent of his work
 time every week.  This conflict of views was not made any easier by the
 contract which provided that, as Union president, Mr. Denton would be
 allowed a "reasonable amount" of official time for his Union activities.
  Mr. Denton believed that 100 percent of his time would be reasonable.
 Respondent took the position that only 50-75 percent would be reasonable
 in view of the time it estimated would be necessary for him to devote to
 the CAPS project.  As a matter of fact, during the 6-month period
 beginning February 197, Mr. Denton devoted an average of 15.08 hours per
 week of his time to his regular job.  During this same period, he was
 spending 62.3 percent of his time on Union matters.  This was within the
 amount of time contemplated by Respondent.  However, during the next
 6-month period, Mr. Denton devoted only an average of 8.68 hours per
 week to his official job, which means that he was spending an average of
 78.3 percent of his time on Union matters.  On occasion, Union matters
 took up to almost 92 percent of his time.  According to the ground rules
 for contract negotiations, negotiating sessions were to take only a
 maximum of 15 hours per week, or 37.5 percent of a 40-hour week.
 
    While, on the one hand, contract negotiations began in earnest in the
 Fall of 1979 and Mr. Denton increased the amount of time he was spending
 on Union matters, on the other hand, management was becoming more
 concerned with the progress of the CAPS project as the January audits
 loomed nearer and nearer.  With pressures increasing on both Mr. Denton
 and management, it is not surprising that matters began to come to a
 head in January.  The first evidence that Mr. Denton took formal,
 written exception to his appointment as CAPS Quality Assurance Manager
 was his letter, written at the 11th hour, on the Friday before the
 Monday that the audits were to begin.  On Monday, he wrote another
 letter and filed an unfair labor practice charge to protest his
 assignment.  On Wednesday, although he was needed for the audit, he was
 unavailable because of contract negotiations, and, for the next two
 days, he was out with some form of illness or injury.  As far as the
 audits went, he was less than useful to management in his role as
 Quality Assurance Manager.
 
    Having failed to secure Mr. Denton's assistance during the first week
 of the crucial audits, it is also not surprising that Lt. Col. Serksnas
 and Captain Hohman took exception to Mr. Denton's request for 100
 percent of his time for representational purposes.  While it is true
 that they had been approving in excess of 78 percent of his time for
 Union matters and that, on January 28 and 29, by requesting that he
 spend more time on his regular job, they were requesting that he spend
 less than 100 percent on Union matters, it is clear on this record that
 they were merely insisting that he adhere to the terms of the contract
 and that they believed that 100 percent of his time was not "a
 reasonable amount of official time".
 
    While Mr. Denton may have been encouraged to ask for more and more
 official time because all of his requests were granted by management,
 nevertheless, it is not unduly speculative to assume that at some point
 management would find the amount of time requested to be unreasonable.
 At 100 percent, that point had certainly been reached.  While the short
 answer to Respondent's frustration might simply have been to deny Mr.
 Denton's request, citing the terms of the contract as justification, the
 tendered response was not to become intransigent but, rather to attempt
 to persuade Mr. Denton to moderate his demands and give consideration to
 Respondent's mission and his role in furthering it.  Furthermore, in
 view of Mr. Denton's work performance over the several months preceding
 the audits, and his lack of preparation for and participation in those
 audits, it is not surprising that an admonishment to pull his load was
 forthcoming.  Taking all of the evidence into consideration, I conclude
 that Mr. Denton's supervisors were threatening disciplinary action only
 based upon his work performance during the time he was actually on the
 job.  The threat was not to take disciplinary action if he asked for a
 certain amount of official time.  Under the circumstances, and finding
 no evidence of union animus, I conclude that the statements were not
 violative of the Statute and that the charges based on those statements
 should be dismissed.
 
    The Complaint also alleges that in violation of 5 U.S.C. 7116(a)(1),
 (2) and (4), Captain Hohman issued a Supervisory Appraisal of Employee
 Performance to Mr. Denton which was lower than previous appraisals and
 that the appraisal was lower because of his requests for official time
 and/or because he filed an unfair labor practice charge against
 Respondent.
 
    There is no question that Mr. Denton was engaged in protected
 activities at all times material to this Complaint, nor is there any
 question that Respondent was aware of this activity.  The appraisal was
 lower than that received both in 1978 and 1979, but it was significantly
 higher than that received in 1976 and 1977.  Although Mr. Denton
 testified that nearly all computer specialists at his grade receive all
 "A's" on their appraisals, Mr. Denton received all "A's" only once out
 of the seven times he was appraised, and that was on the first one in
 1973.  This checkered history of evaluation militates against a finding
 that the 1980 appraisal was, in any ordinary sense, remarkable.  Of
 equal significance are Mr. Denton's own written words that "there is no
 way that I can stay up to speed and 'manage' a project such as this" and
 that " . . . It is a physical and mental impossibility for me to perform
 the duties they require of me." If Mr. Denton is to be taken at his own
 words, it would be remarkable if his appraisal were any higher than that
 actually rendered.  In view of his admitted inability fully to perform
 his duties, albeit for reasons he asserts are related to the time
 demands of his Union office, I must conclude that there is certainly a
 rational basis, exclusive of any finding as to Union animus, for the
 appraisal he received in January 1980.  That conclusion is buttressed by
 Captain Hohman's testimony, which I find to be creditable, and his
 written reasons for the appraisal, /6/ which I find to be unrebutted.
 Thus, I conclude that even were the General Counsel able to show that
 Mr. Denton's protected activity was a motivating consideration in his
 appraisal, Respondent has shown by a preponderance of the evidence that
 Mr. Denton would have received the same appraisal even in the absence of
 protected conduct.  /7/ However, I conclude that on the evidence as
 adduced in this case, the General Counsel has not made a prima facie
 case of discrimination.  Respondent's concerns over Mr. Denton's
 performance related only to his willingness and ability to fulfill his
 duties as CAPS Quality Assurance Manager.  It is beyond cavil that he
 failed to perform those duties fully and adequately.  The nature of the
 reason for that failure was not shown to be of particular concern to
 Respondent;  only the failure itself was important.  The fact that Mr.
 Denton was engaged in Union activities was only incidental.  Other than
 the timing of the performance appraisal, which was coincidental, there
 is no other fact of record which could warrant a finding of Union
 animus.  /8/ Under the circumstance, I cannot find that Respondent has
 violated the Statute as alleged.  I recommend that the Federal Labor
 Relations Authority issue the following order pursuant to 5 C.F.R.
 2423.29(c):
 
                                   ORDER
 
    ORDERED, that the complaint in Case Nos. 5-CA-381, 386 and 406 is
 dismissed.
                                       ALAN W. HEIFETZ
                                       Administrative Law Judge
 
 Dated:  October 14, 1981
         Washington, D.C.
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1A/ The General Counsel's exceptions were untimely filed and, hence,
 were not considered by the Authority in reaching its decision herein.
 
 
    /1/ This finding is based on testimony adduced at the hearing.  I
 reject inconsistent evidence tendered as an attachment to Respondent's
 brief.  No foundation has been laid for its receipt at this late date
 nor for its substantive value as probative evidence.
 
 
    /2/ Under the ground rules, either party could cancel a negotiation
 session by notice to the other party.
 
 
    /3/ Mr. Denton filed a claim of traumatic injury under Workman's
 Compensation procedures.  The record does not elaborate on the claim
 other than to note its connection with these two "sick days", and to
 indicate that the claim was denied with a finding of no causal
 relationship between injury and employment.  There was no rebuttal
 evidence.
 
 
    /4/ This figure is calculated by dividing the total work hours
 available per month (less leave) by 40 hours.
 
 
    /5/ It is not clear why Mr. Denton was grinning or smiling during
 this episode.  He described the situation as "very tense, tight" and
 that may account for it.  Captain Hohman was given the impression that
 Mr. Denton was aware of the fact that because it was quitting time he
 could just get up and walk out.  Lt. Col. Serksnas thought that