16:1036(136)CA AFGE, LOCAL 2501 VS DOD, DLA -- 1984 FLRAdec CA



[ v16 p1036 ]
16:1036(136)CA
The decision of the Authority follows:


16 FLRA NO. 136

DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DEPOT MEMPHIS

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2501, AFL-CIO

     Charging Party

Case No 4-CA-1087

DECISION AND ORDER

The Administrative Law Judge issued the attached Decision in the above entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed 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 recommendation that the complaint be dismissed. [ v16 p1036 ]

ORDER

IT IS ORDERED that the complaint in Case No. 4-CA-1087 be, and it hereby is, dismissed.

Issued, Washington, D.C., December 24, 1984

Henry B. Frazer III, Acting Chairman

Ronald W. Haughton, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v16 p1037 ]

DEPARTMENT OF DEFENSE  1
DEFENSE LOGISTICS AGENCY
DEFENSE DEPOT MEMPHIS

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2501, AFL-CIO

     Charging Party

Case No. 4-CA-1087

Cynthia Emerson
         For the Respondent

Regina N. Kane
         For the General Counsel

Before:  WILLIAM NAIMARK
         Administrative Law Judge

DECISION

Statement of the Case

Pursuant to a Complaint and Notice of Hearing issued on February 5, 1982 by the Regional Director for the Federal Labor Relations Authority, Atlanta, Georgia Region, a hearing was held before the undersigned on August 25, 1982 at Memphis, Tennessee.

The proceeding herein arises under the Federal Service Labor - Management Relations Statute (hereinafter called the Statute). It is [ v16 p1038 ] based on a first amended charge filed on August 18, 1981 by American Federation of Government Employees, Local 2501, AFL - CIO (hereinafter called the Union), against Department of Defense, Defense Logistics Agency, Defense Depot Memphis (hereinafter called Respondent).

The pertinent 2 allegations in the complaint were, in substance, that on or about August 3, 1981, Respondent imposed a new condition of employment by refusing to allow Acting Union President Edward Fuller to represent unit employees unless the Union President was on approved leave, sick leave, or official time granted by the Depot Commander in accordance with the Master Agreement/Local Agreement; that on or about November 23, 1981, Respondent suspended Fuller for ten days based on his unauthorized performance of representational duties as acting union president on August 6, 7, 10, 12, and 13, 1981. The foregoing acts, which were allegedly unilateral in nature and engaged in without notification to, and bargaining with, the Union are alleged to be violative of Sections 7116(a)(1), (5), and (8) of the Statute.

In its Answer, dated February 26, 1982, Respondent denies the imposition of a new condition of employment upon Fuller. It denies that Fuller had authority to perform representational duties as acting union president, or that Respondent was so informed of such designation. Although admitting the ten day suspension of Fuller, the answer also avers it was not for the reason stated in the complaint. 3 Respondent also denied the commission of any unfair labor practices.

Both parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. [ v16 p1039 ]

Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions:

Findings of Fact

1. At all times material herein, the Union has been, and still is, the collective bargaining representative of all employees of Respondent excluding supervisors and professionals.

2. Both the Union and Respondent are parties to a collective bargaining agreement (hereinafter called the Local Agreement) which, by its terms, is effective from July 17, 1978 until January 17, 1981, and is automatically renewable unless specified notice is given by either party to terminate or renegotiate same.

3. Both the Defense Logistics Agency (DLA) and the DLA Council of American Federation of Government Employees (AFGE) AFL - CIO Locals are parties to a collective bargaining agreement (hereinafter called the Master Agreement), which includes all employees in the bargaining unit herein, and the said agreement is effective, by its terms, from August 12, 1980 until August 12, 1983.

4. The said Local Agreement provides, in substance, in Article V, Section 5, that the Union representative, when leaving work, shall first obtain the permission of their immediate supervisor; that such permission shall be obtained by the Union representative from the immediate supervisor of an employee who is being contacted by the Union representative during working hours.

5. The Master Agreement provides, in substance, in Article III, Section 4, that each DLA Council Local Official/steward will notify his supervisor each time representation duties begin and end so that proper time and attendance records may be maintained.

6. In October 1980, James Triplett became president of the Union, serving from that time until February 1982. Prior to October 1980, Willie Foster served as president of the Union.

7. Edward Fuller, who has served both as steward and steward at large of the Union, also served as vice-president thereof from August 1980 until November 1981. During his term as vice-president, Fuller handled grievances, EEO charges, unfair labor practices, and workmen's compensation claims. He took over duties of the president in his absence, assisted stewards who were confronted with problems and filled in when stewards were absent. [ v16 p1040 ]

8. Between August and October 1980, Fuller acted as Union president for five days during Foster's absence and at the latter's request. On each occasion Fuller advised his immediate supervisor, William Walker, that he was filling in for President foster. The supervisor assented. No pass was required, nor did Fuller receive written permission. Further, during Triplett's tenure as President of the Union, Fuller acted as president of the local on several occasions. He did so in January 1981 for five days at the request of the chief steward. Fuller followed the same procedure as he did in 1980 when notifying supervisor Walker, and he was not notified as to the leave status of Triplett.

9. Record facts show that, during Foster's term as president of the Union, Yvonne Adams acted as vice-president thereof. In accordance with an agreement made with Respondent's Colonel Bowman and President Foster, four hours were granted Adams per day between June and August 1980 to act as Union president while Foster was negotiating a collective bargaining contract. Adams testified she always notified her immediate supervisor before going to the Union office. In May 1980, Adams also acted as Union president in Foster's absence. Upon being asked to do so by the chief steward of the Union, Adams advised her immediate supervisor and went to the Union office. No information was furnished Adams as to the type of leave taken by Foster, and no disciplinary action was taken against him.

10. By letter dated October 1980, Union President Foster advised Colonel Bowman that, in Foster's absence, Fuller was the authorized representative "in lieu" (sic) of the president; that his authority was limited to handling grievances and complaints.

11. By letter dated January 19, 1981, Union President Triplett notified Colonel Bowman that Vice - President Fuller would "resume" (sic) full responsibility of the local office, including labor-management relations, for the period of January 19-23, 1981 "in lieu" (sic) of his absence.

12. Paul S. Prittz, Assistant Division Chief of the warehousing division 2, testified that prior to June 24, 1981, supervisors Walker or Manual Charo might have granted official time to Fuller to act as president in the Union office; that they might not have understood his area of representation. However, Prittz avers, President Triplett was required to designate the acting president in writing to the Civilian Personnel Officer or the Commander; that the was unaware of any occasion when Triplett designated Fuller to act in his stead. Further testimony by Prittz reflects that on or about June 23, 1981, Director of Civilian [ v16 p1041 ] Personnel Clay Carr called him and asked why Fuller was attending a Union affair in building 144 and at the Union office since Fuller had not been released by his supervisor. 4

13. As a result of this notification from Carr, a Letter of Instruction dated June 24, 1981 was issued to Manuel Charo, the supervisor of Fuller, regarding the release of the vice-president from his duties. The letter stated that Fuller may be released to act as president only in the absence of the president; that Fuller would not be released to go to another area without prior notification and approval of Prittz's office, the Civilian Personnel office, the Office of the Commander, or the Office of the Director of Storage and Transportation. 5 The letter further stated that Fuller would use the personnel pass when leaving his duty station on representative duties; that the pass must be signed by the supervisor where Fuller performs his duties, it must state Fuller is performing such duties, it must state as reasonable time period for such activities, and the pass must be maintained for a year.

14. Union President Triplett was terminated from his employment of Respondent on July 31, 1981. Thereafter, and until August 14, 1981, Triplett was restricted to the administration building. He was not allowed access to the work sites within a fenced area, or behind the fence where the Union office was located. The agreement was reached on August 14 wherein Triplett was permitted to perform his duties in the Union office.

15. An amendment to the aforementioned Letter of Instruction was issued by Prittz to clarify how Fuller could be released and by whom. The amendment, dated August 3, 1981, was sent to Andrew Miller, who was [ v16 p1042 ] Fuller's immediate supervisor at that time. 6 Miller testified that the amendment was occasioned by Fuller's failure to follow the instructions in the Letter issued on June 24; that Fuller was told he had to get approval from a higher level management official to be released, but the vice-president failed to do so and would advise Miller he was going to the Union office. Miller stated that Fuller did not say he was acting as president but that he was leaving for union representation.

The amendment stated that its purpose was to clarify paragraph 2 of the Letter, regarding the release of Fuller to act as president of the local; that the absences applied when Triplett was on approved annual and sick leave or been granted official time by the Commander; that Triplett, though terminated, was still President of the local, and that unless a change in officers is received and approved, Fuller would not be released to go to Union office without prior notification and approval as per paragraph 4 of the Letter of Instruction.

16. Prior to the issuance of the amendment to the Letter of Instruction, Commander William E. Freeman, Jr., wrote a letter dated July 7, 1981 to Union President Triplett. Freeman stated therein the letter was in reply to Fuller's protest of the Instruction regarding releasing him for representational duties. The Commander wrote that he was quite willing to meet with the Union and discuss the matter; that the instructions were in accord with the Local and Master agreements; that the instruction letter provided for Fuller to carry out representational duties not mentioned in the agreements if he had the approval of the division, the Director of Storage and Transportation or the CPO; that the instructions were only an attempt to state the limit on Fuller's representational time as provided by the agreements.

17. In the absence of Union President Triplett, subsequent to July 31, 1981, Fuller filled in and acted as president on August 6, 7, 10, 12, and 13, 1981. Respondent carried Fuller on its books as AWOL for all five days. Record facts show that Fuller was marked AWOL for August 6, 7, and 10 because he had not received permission from higher management, or the division office, as requested by the Letter of Instruction. On August 12, Fuller was given, at his request, a pass by supervisor Miller [ v16 p1043 ] to visit Carr in the administration building, but Fuller did not report back to his work site. Since he failed to return, the employee was debited with 7 1/2 hours of AWOL status. On August 13, Fuller was granted a pass to visit the administration building and Miller released him for that purpose. Since Fuller did not report back to his work site, he was carried on AWOL status for 5 1/2 hours. 7

18. In a memo dated September 17, 1981, addressed to Fuller from supervisor Miller, the vice-president was notified of a proposal to terminate his employment due to his unauthorized absences and failure to perform his work. Reference was made therein to Fuller's failure to obey the Letter of Instruction on August 6, 7, 10, 12 and 13, 1981. Miller noted that Fuller failed to follow proper procedures for his release on those days, and that Fuller was carried on AWOL status for each one. 8

19. Fuller replied to the foregoing proposal in a memo dated September 29, 1981. In substance, the reply stated that the Letter of Instruction was in conflict with both the Local and Master Agreements and violated the Statute.

20. In a Notice of Decision - Suspension dated November 23, 1981, Henry Harris advised Fuller that the proposed removal of the employee was reduced to a ten day suspension. As stated therein, Fuller was suspended for that period, effective December 7, 1981, for repeated unauthorized absence from work site, absence without leave, and failure to perform duties as a warehouse worker.

Conclusions

The essential issues presented for determination herein are as follows: (1) whether Respondent unilaterally changed a condition of employment on August 3, 1981 by refusing to permit Edward Fuller, [ v16 p1044 ] vice-president of the Union, to act as Union president unless the president thereof was on approved leave, sick leave, or official time granted by the Depot Commander in accord with the bargaining agreements - all in violation of Section 7116(a)(1) and (5) of the Statute; (2) whether Respondent interfered with, restrained and coerced employees by deeming Fuller as AWOL for August 6, 7, 10, 12 and 13, 1981, and suspending him for ten days, based on his unauthorized performance of representational duties on said dates as acting Union President - all in violation of Section 7116(a)(1) of the Statute; (3) whether Respondent violated Section 7116(a)(8) of the Statute by failing and refusing to comply with Section 7131(d) thereof in imposing the requirements regarding the release of Fuller to act as president of the Union, as well as carrying him on AWOL status during the foregoing dates.

The Alleged Unilateral Imposition of a New Condition of Employment by Respondent Regarding Vice - President Fuller's Acting as President of the Union.

The General Counsel maintains that, in the past and prior to June 24, 1981, the vice-president customarily filled in as president of the Union during the latter's absence via permission obtained from his supervisor. It is contended, further, that consent was usually forthcoming; that no other permission was required for the vice-president to perform those representational duties and act as president of the Union. This practice was established at the Depot, General Counsel insists, for a significant period of time with the sanction of Respondent. The Letter of Instruction, as amended, purportedly changed this practice without proper notification to the Union or bargaining with it thereon since it required approval from higher management for the release of vice-president Fuller to act as Union president.

The difficulty with the foregoing contentions lies in the fact that they do not relate to the specific allegation in the complaint herein. Thus, it must be noted that paragraph 8(b) of the complaint alleges that, on or about August 3, 1981, Respondent imposed a new condition of employment by refusing to permit Fuller to act as Union president unless the Union President was on approved annual leave, sick leave or official time granted by the Commander. It is this restriction, as set forth in the amended Letter of Instruction, which is alleged to be the change in past practice. There is no allegation in the complaint that Respondent unilaterally changed a practice regarding the permission which must be obtained by the vice-president before he may serve as Union president. While continual reference is made to such a change, as imposed by the August 3 amendment, the General Counsel is bound by the complaint in respect to its averment that the new condition of employment involved a requirement that the Union President be in the stated leave or official time before the vice-president could serve in his stead. [ v16 p1045 ]

However, the record does not support a conclusion that Respondent altered its past practice in this respect. While Fuller and Adams testified that neither knew the type of leave the president of the Union had taken when each acted on his behalf in the past, such lack of knowledge does not have probative value. It does not negate the fact that the president of the Union, when absent, was on approved annual leave, sick leave, or official time granted by the Commander. There is no showing that the practice, in this regard, was changed by the August 3 amendment to the Letter of Instruction. A conclusion to the contrary would require an inference that the Union president absented himself from duty, as an employee, without being on official leave or approval by the Commander. No testimony or other evidence herein warrants such inference. I cannot conclude based on this record, that Respondent did not require, in the past, that the President be on approved leave when absent from his duty station. It thus appears to the undersigned that General Counsel has failed to show a departure from such a requirement by the issuance of the August 3 amendment. Accordingly, and since no change in past practice as alleged in paragraph 8(b) of the complaint has been shown, I am constrained to conclude that Respondent did not violate Section 7116(a)(1) and (5) as alleged therein.

Respondent's Actions in Respect to Carrying Fuller on AWOL Status and Suspending Him for Ten Days.

The action taken by Respondent herein toward Fuller, wherein he was marked AWOL for five days in August 1981 and suspended for ten days, was based in part on the vice-president's failure to adhere to the Letter of Instruction. Thus, as to three days - August 6, 7, and 10 - Fuller was deemed AWOL for his failure to obtain release from a management official higher than his immediate supervisor. As to the remaining two days, the employee was carried on AWOL because his pass was limited to the administration building and he went to the Union office without returning to work. All of those absence resulted in the suspension for ten days. It is maintained by General Counsel that requiring release from higher officials was implemented unilaterally, resulting in the foregoing actions taken against Fuller in violation of Section 7116(a)(1) and (8) of the Statute.

Despite this argument, I am unable to conclude that this requirement constituted a change in past practice in contravention of the Statute so as to mandate bargaining with the Union herein. Requiring that the vice-president obtain approval from higher management before acting as president in the latter's absence was not alleged in the complaint to be a change in past practice. Such was not the new condition of employment alleged in the complaint to be imposed by the August 3 amendment to the Letter of Instruction. Respondent was not called upon to litigate [ v16 p1046 ] whether a unilateral change was made in the approval which Fuller must obtain to engage in representational duties. 9 Therefore, the employer's discipline of Fuller for not obtaining the required approval or release cannot be described as flowing from any wrongful change in past practice. Under these circumstances, management was privileged to consider Fuller as AWOL for not obtaining approval beyond the consent of his immediate supervisor and to invoke a penalty therefor. With no obligation on Respondent's part to bargain as to this requirement, I cannot view the discipline of Fuller as constituting interference, restraint, or coercion under Section 7116(a)(1) of the Statute. 10

General Counsel also submits that the conduct toward Fuller is violative of Section 7116(a)(8) by virtue of Respondent's failure to comply with the provisions of Section 7131(d) of the Statute. The latter provides that an employee representing an exclusive representative should be granted official time in any amount the agency and said representative agree to be reasonable, necessary and in the public interest.

It is urged that Respondent did not comply with the Statute when it disciplined Fuller for engaging in representational duties on official time in a manner consistent with past practice. Further, General Counsel adverts to the language in the Master Agreement which provides, under Article III, Section 4, that the steward shall notify his supervisor when his representational duties began and end so that proper time and attendance records be maintained. It is argued that this language reflects an agreement as to "reasonable time" which cannot be legally changed without bargaining. I cannot agree with this reasoning. Section 7131(d) imposes an obligation upon Respondent to grant official time to Fuller in such an amount as the exclusive representative and the employer agree to be reasonable, necessary and in the public interest. The contractual language in Article III, Section 4 does not concern itself with the amount of time to be spent in representational duties. Further, there is no evidence as to any agreement 11 between the parties regarding [ v16 p1047 ] the amount of official time which Fuller will be allotted for this purpose. Finally, apart from the fact that the record does not reflect the amount of official time accorded Fuller for such duties in the past, no change in a past practice in this regard is alleged or was proven.

Accordingly, I conclude Respondent did not fail to comply with Section 7131(d) of the Statute in violation of Section 7116(a)(8) thereof.

Having concluded that Respondent did not violate Sections 7116(a)(1), (5) and (8) of the Statute, I recommend that the Federal Labor Relations Authority enter the following order.

ORDER

IT IS HEREBY ORDERED that the Complaint herein be, and it hereby is, DISMISSED.

WILLIAM NAIMARK
Administrative Law Judge

Dated:  February 18, 1983
        Washington, D.C.

[ v16 p1048 ]

FOOTNOTES

Footnote 1 General Counsel amended its complaint at the hearing to include "Department of Defense" in the title, and to reflect the fact that Defense Logistics is a subdivision thereof.

Footnote 2 The complaint also alleged in substance that the Respondent changed conditions of employment by (a) on or about June 24, 1981, refusing to allow Union representative Edward Fuller to leave his work area and represent unit employees without permission from higher management, (b) on or about June 25, 1981, refusing to permit Fuller to represent employees at certain locations. It further alleged that Respondent suspended Fuller for ten days for unauthorized representation contrary to the above. The undersigned granted General Counsel's motion at the hearing to delete those allegations from the complaint.

Footnote 3 While the Answer denied that the Union is the exclusive bargaining representative of unit employees, at the hearing Respondent's counsel conceded the Union's status in this respect.

Footnote 4 Carr testified the practice prior to this time was for the President of the local, when he plans to be absent due to temporary duty or authorized leave of absence, to notify the personnel office that Fuller would be acting president for said period; that management would notify the officials to release Fuller accordingly; and that, without such notification, Fuller's supervisors were without authority to release him to act as president of the Union. Labor Relations Specialist Eugene Fayne testified that management always required a written designation from the president of the Union as to his temporary replacement.

Footnote 5 Such language was set forth in paragraph 4 of the Letter of Instruction, and it is referred to infra.

Footnote 6 While Fuller testified he did not receive a copy of the amendment until August 11 and Miller testified Fuller must have received it in the first week of August, I do no find it necessary to resolve this factual divergence. The record reflects, in any event, that Miller and Fuller did discuss the amendment; that the supervisor advised Fuller he must still get released as per the Letter of Instructions, since Triplett was still president of the Union.

Footnote 7 On the three earlier occasions (August 6, 7, and 10) Fuller did not report to his work site but went directly to the union office. At this office, or at the gate, Fuller called Miller to request permission to act as president, and it was denied. On the other two occasions (August 12 and 13) Fuller reported to his work site first, and later he went to the union office to handle affairs thereat.

Footnote 8 Miller's memo stated that Fuller had not been released on August 6, 7 and 10 by higher management as required in the letter of June 24. Further, that