22:0161(17)CA - DOA, APHIS Plant Protection and Quarantine and NAAE Branch 15 -- 1986 FLRAdec CA

[ v22 p161 ]
The decision of the Authority follows:

 22 FLRA No. 17
 Charging Party
                                            Case No. 6-CA-50090
                            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.  The General Counsel
 and the Charging Party filed exceptions to the Judge's Decision with
 supporting briefs.
    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 adopts the Judge's
 findings, conclusions and recommended Order.
    The Authority agrees with the Judge's finding that the complaint
 alleging a violation of section 7116(a)(1) and (5) of the Statute must
 be dismissed because the record does not establish that the Respondent
 changed its past practice with respect to leave charged to employees
 arriving late to work, and therefore the Respondent had no duty to
 notify the Union and bargain as alleged.  The Authority notes that the
 complaint in this case did not allege a section 7116(a)(2) violation
 involving discriminatory treatment against the unit employee in
 question, whose request to have his AWOL charge removed was denied.
    IT IS ORDERED that the complaint in Case No. 6-CA-50090 be, and it
 hereby is, dismissed.
    Issued, Washington, D.C., June 13, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    Case No. 6-CA-50090
    Charging Party
    Susan E. Jelen, Esquire
    For the General Counsel
    Stanley E. Kensky
    John A. Vigil
    For the Respondent
    Judy Jenkin
    For the Charging Party
    Administrative Law Judge
                           Statement of the Case
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7107, et seq. and the Rules and Regulations issued thereunder.
    Pursuant to a charge filed on October 26, 1984, by the National
 Association of Agriculture Employees, Branch #15 (hereinafter called the
 Union or Charging Party), a Complaint and Notice of Hearing was issued
 on February 12, 1985, by the Regional Director for Region VI, Federal
 Labor Relations Authority, Dallas, Texas.  The Complaint alleges that
 the United States Department of Agriculture, Animal and Plant Health
 Inspection Service, Protection and Quarantine (hereinafter called the
 Respondent or Department of Agriculture), violated Sections 7116(a)(1)
 and (5) of the Federal Service Labor-Management Relations Statute
 (hereinafter called the Statute), by virtue of its action in changing an
 existing policy with respect to allowing employees who confused their
 scheduled work shifts and reported late for work to take annual leave or
 to adjust their respective hours of work rather than be charged with
 being absent without leave (AWOL), without first giving the Union notice
 of the change and an opportunity to request bargaining over the manner
 of implementation and the impact of the change on adversely affected
    A hearing was held in the captioned matter on March 26, 1985, in El
 Paso, Texas.  All parties were afforded the full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The General Counsel and the
 Respondent submitted post-hearing briefs on May 28, 1985, which have
 been duly considered.
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
                             Findings of Fact
    The Union /1/ is the exclusive representative of Respondent's
 "Professional Plant Protection and Quarantine Officers" (PPQ) stationed
 in El Paso, Texas.  The PPQ's regulate the movement of plant and animal
 products into and out of the United States in an effort to prevent the
 dissemination of injuries insects and disease.  The El Paso, Texas port
 includes three international bridges, the airport and a railroad yard.
    The approximately 25 unit employees employed in El Paso work on
 various shifts from 6 a.m. to midnight, seven days a week.  Nine shifts
 were scheduled for Monday through Saturday /2/ and seven shifts were
 scheduled for Sunday which was counted as an overtime day.  /3/
    A shift schedule covers a two week period and is posted one week
 prior to its effective date.  Employees are assigned to various shifts
 and report to different locations.  Employees are allowed to make shift
 changes, in most cases without restriction.  There are certain required
 shifts that employees work eight days out the two week period without
 being able to trade.  After PPQ's agree to trade shifts, they sign a
 form which is then approved by a supervisor.  The trade is then posted
 on the shift schedule.
    The Animal and Plant Health Inspection Service (APHIS) Directive
 dated October 7, 1982 dealing with "Leave" provides in Part 3, Article
 III, Absence Without Official Leave (AWOL) as follows:
          "Employees whose absence from duty was not authorized or
       approved or whose leave request has been denied is charged on the
       T&A as AWOL.  An employee on AWOL cannot receive pay for such
       absence.  If and employee later submits acceptable evidence that
       the absence without prior authorization was excusable or that the
       employee was ill, the AWOL charge may be retroactively changed to
       annual or sick leave or leave without pay . . . ."
    On April 28, 1984, PPQ Officer Joseph Gross who was scheduled to be
 off work on April 30, 1984, agreed to trade shifts with a fellow
 employee and work the 11:30 a.m. to 8:00 p.m. shift on April 30, 1984.
 In accordance with the existing practice, Mr. Gross submitted a change
 in work schedule to the appropriate supervisor which was subsequently
    On April 30, 1984, Mr. Gross, having confused his scheduled hours of
 work for that day, reported for work at 1:30 p.m., two hours past his
 scheduled starting time.  Upon his arrival, Mr. Nick Silva, a
 supervisor, informed Mr. Gross that he was two hours late and that he,
 Mr. Silva, was charging him two hours AWOL for this period of time.  Mr.
 Gross then took the matter up with Mr. Ruben Garcia, Assistant Officer
 in Charge.  In his meeting with Mr. Garcia, Mr. Gross took the position
 that he had confused his shift and felt that he should be charged with
 annual leave instead of AWOL.  However, Mr. Garcia and Mr. silva refused
 to change the two hours from AWOL to annual leave on the ground that
 since the change in schedule had occurred only two days earlier he, Mr.
 Gross, should have remembered his new schedule.  Mr. Gross then appealed
 the matter to Mr. John Vigil, Officer in Charge.  Mr. Gross informed Mr.
 Vigil that there should be a definite policy concerning what type of
 leave would be assigned an employee when he arrived at the wrong time
 and that there should be uniformity among the supervisors with respect
 to the type of leave an employee was charged with when he confused the
 starting time of his shift.  According to Mr. Gross, this was the first
 time in his twenty-two years of employment that he had been charged AWOL
 for confusing the starting time of a scheduled shift.  Mr. Gross could
 not recall how many times in the past that he had confused the starting
 time of a shift, but stated that he was sure he had done it in the past.
    According to Mr. Gross, this was the second time in his twenty-two
 year career that he had been charged AWOL.  The first time he was
 charged AWOL was on March 30, 1984, when he reported back from lunch
    Mr. Gross subsequently filed a grievance based upon his being charged
 AWOL on March 30, 1984 and April 30, 1984.  In support of his grievance
 he alleged that he was being discriminated against because other named
 PPQ's were allowed to take annual leave in lieu of LWOP when they
 confused the starting times of their scheduled shifts.  The grievance
 did not involve the issue of a change in an existing past practice
 without prior notice to the Union.
    Ms. Judy Jenkin, a former vice-president of Local 15, who had worked
 in El Paso for approximately four and one-half years before being
 transferred to Baltimore, Maryland on March 17, 1985, testified that
 prior to April 30, 1984, when Mr. Gross was given an AWOL for confusing
 the starting time of his shift, employees who confused their respective
 shifts were allowed to take annual leave or readjust their hours of
 work.  In support of her testimony, Ms. Jenkin pointed out that on
 October 10, 1982, she confused her shift starting time and reported to
 work fifteen to twenty minutes past the scheduled 8 a.m. starting time
 for her shift and was paid from 8:15 without any discussion.
    Ms. Jenkin further testified that employee Mr. Norman Bebon, who was
 scheduled to work the 8:30 to 5 p.m. shift on October 7, 1982, confused
 his shift and reported late after being called by his supervisor.  Mr.
 Bebon was allowed to take one hour of annual leave.  According to the
 testimony of Ms. Jenkin;  Mr. Ramon Alvarez was allowed to work
 different shift hours on April 4, 1984, when he confused the starting
 time of his shift, and reported in late.  He was allowed to work an 8:30
 a.m. to 5 p.m. tour of duty rather than his scheduled 6 a.m. to 2:30
 p.m. tour of duty.
    Mr. Bob Eads was not charged AWOL when he confused his shift and
 failed to show up for work thereby forcing another supervisor to be
 called in to work his shift.  Mr. Ysobel Medrano was allowed to take
 annual leave when he confused his shift in early 1982.  /4/
    Ms. Jenkin acknowledged in her testimony that two employees, Mr.
 Ernest Elliot and Mr. Lazaro Holquin were given AWOL's in 1981 and on
 November 6, 1984, respectively, when they confused their shift starting
 times and failed to report for work.
    Mr. Ronald Joseph Veneziea, a PPQ officer in El Paso testified that
 he once confused his work schedule in October of 1981, a Sunday, and
 that upon reporting to work two hours late he was allowed to work the
 remainder of his scheduled shift.
    Mr. Aaron Miller a PPQ officer in El Paso testified that once in the
 four and one-half years that he had been in El Paso he confused the
 starting time of his shift by two hours and was allowed to take tow
 hours annual leave by his supervisor Sam Longanecker.  Mr. Miller
 testified that he was allowed to take two hours annual leave only after
 Mr. Longanecker checked the schedules and noted that his 6 a.m. to 2
 p.m. shift had been sandwiched in between two 8:30 a.m. to 5 p.m. shifts
 and that his other assigned weekly shifts were all 8:30 a.m. to 5 p.m.
    Mr. John A. Vigil, the Officer in Charge of the El Paso Area
 testified that he has always adhered to the APHIS policy on absences,
 tardiness and AWOL and that he has delegated his discretionary
 responsibility to his three first line supervisors.  According to Mr.
 Vigil if an employee had not been granted leave in advance the employee
 is considered AWOL when he fails to show up for his scheduled shift.
 The decision to subsequently allow an employee to charge his absence to
 annual leave as opposed to being AWOL is decided on a case by case
 basis.  In the case of Mr. Gross, Mr. Vigil refused to change Mr. Gross'
 AWOL to annual leave because Mr. Gross had been warned and counseled in
 the past about being late, had received an AWOL a few weeks earlier and
 had personally requested the shift change only two days earlier.
 Accordingly, in view of all the circumstances Mr. Vigil was of the
 opinion that the AWOL notation for the April 30, 1984 incident was
    Mr. Nick Silva who has been a supervisor in El Paso for twelve years
 testified that awarding an employee an AWOL for confusing his schedule
 is not a change in past practice.  According to Mr. Silva the awarding
 of annual leave rather than AWOL depends on whether the excuse for
 confusing a shift is acceptable.  Based upon the facts underlying Mr.
 Gross' action in confusing his shift as well as his, Mr. Gross', past
 record, he decided that Mr. Gross should be given an AWOL rather than
 being allowed to take annual leave for confusing his shift on April 30,
    Mr. Charles Parker who has been a supervisor in El Paso for eleven
 years testified that it has always been his practice to consider an
 employee AWOL when he does not arrive as scheduled.  If an acceptable
 excuse is later given he will and usually does utilize his discretion
 and allows the employee to take annual leave.
    Mr. Samuel Longanecker who had been a supervisor in El Paso for
 approximately five years testified that confusing a scheduled tour of
 duty is not a common occurrence.  He further testified to an instance
 when he gave an employee an AWOL for failing to report for her shift.
 When the employee later called in with an acceptable excuse he changed
 the AWOL to annual leave.  According to Mr. Longanecker the test for
 allowing the use of annual leave in lieu of AWOL is an acceptable excuse
 for confusing the work schedule.
                        Discussion and Conclusions
    The General Counsel, citing approximately five instances during the
 past three years where employees confused their respective shifts and
 were allowed to take annual leave or readjust their shifts rather than
 being charged AWOL, takes the position that Respondent's action in
 awarding Mr. Gross an AWOL for confusing his shift on April 30, 1984,
 amounted to a change in past practice.  Further, according to the
 General Counsel, in such circumstances the Respondent was under an
 obligation to give the Union prior notice of the change and an
 opportunity to request bargaining over the impact and manner of
 implementation of the change.  Having failed to give the Union prior
 notice of the change and an opportunity to so bargain, it is the General
 Counsel's position that Respondent violated Sectio