23:0594(82)CA - Marine Corps Logistics Base, Barstow, CA and AFGE Local 1482 -- 1986 FLRAdec CA



[ v23 p594 ]
23:0594(82)CA
The decision of the Authority follows:


 23 FLRA No. 82
 
 MARINE CORPS LOGISTICS BASE 
 BARSTOW, CALIFORNIA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, LOCAL 
 1482, AFL-CIO
 Charging Party
 
                                     Case No. 8-CA-50418
 
                            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
 Charging Party filed exceptions to the Judge's Decision, and the
 Respondent filed an opposition to the exceptions.
 
    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, /1/ conclusions, and recommendation that the complaint
 be dismissed.
 
    In agreement with the Judge, we specifically find that the reprimand
 and 35 minutes AWOL charged to the employee were not based on the Union
 President's activity in meeting with an Authority agent, but rather on
 his actions in leaving the premises without prior permission in
 violation of the Respondent's interpretation of the
 collective-bargaining agreement.  Therefore, we conclude, in agreement
 with the Judge, that the Respondent did not violate the Statute as
 alleged in the complaint.  Accordingly, we shall dismiss the complaint.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 8-CA-50418 be, and it
 hereby is, dismissed in its entirety.
 
    Issued, Washington, D.C., October 16, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 8-CA-50418
 
    MARINE CORPS LOGISTICS BASE BARSTOW, CALIFORNIA
         Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
    LOCAL 1482, AFL-CIO
         Charging Party
 
    Jonathan S. Leving, Esquire
       For the General Counsel
 
    William M. Petty, Esquire
    Major Charles Dorman
       For the Respondent
 
    Before:  BURTON S. STERNBURG
       Administrative Law Judge
 
                                 DECISION
 
                           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.
 7101, et seq. and the Rules and Regulations issued thereunder.
 
    Pursuant to an amended charge first filed on July 11, 1985, by the
 American Federation of Government Employees, Local 1482, AFL-CIO,
 (hereinafter called the Union or Local 1482), a Complaint and Notice of
 Hearing was issued on October 31, 1985 by the Regional Director for
 Region VIII, Federal Labor Relations Authority, Los Angeles, California.
  The Complaint alleges that the Marine Corps Logistics Base, Barstow,
 California, (hereinafter called the Respondent), violated Sections
 7116(a)(1) and (8) of the Federal Service Labor-Management Relations
 Statute, (hereinafter called the Statute), by issuing a letter of
 reprimand to Mr. Dale Boyce and charging him with thirty-five minutes of
 AWOL for meeting during official hours with an agent of the Federal
 Labor Relations Authority for purposes of providing evidence in a
 pending unfair labor practice proceeding.
 
    A hearing was held in the captioned matter on December 18, 1985, in
 Los Angeles, California.  All parties were afforded the 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 briefs on January 31 and 29, 1986,
 respectively, 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 American Federation of Government Employees, (hereinafter called
 the AFGE), was certified on October 12, 1982, "as the exclusive
 representative in a national consolidated unit of the United States
 Marine Corps., Washington, D.C., which includes" the graded and ungraded
 employees of the Respondent's Barstow, California installation.  Local
 1482, the charging party, is the AFGE local representative at Barstow.
 
    The AFGE and the Respondent are parties to a master collective
 bargaining labor agreement which became effective April 27, 1985, and
 which provides in Article 8, Section 3, that the Local Union President
 at Barstow will be entitled to 75% official time to perform
 representational functions.  The contract further provides in Article 8,
 Section 4 as follows:
 
          Stewards and local officers appointed to represent unit
       employees will represent employeed at the activity as designated.
       Official time will be approved only for representational functions
       performed at the activity where the representative is employed
       except:
 
          (a) to attend hearings before the FLRA, MSPB, or an arbitrator
       concerning a dispute involving employees of the activity where the
       representative is employed;  or
 
          (b) when representation off the work premises by the individual
       has been approved, in writing, by the commanding officers of the
       activities involved.
 
    With respect to Article 8, Section 4, the record establishes that the
 Respondent has interpreted this provision as prohibiting the Union
 President to utilize official time for purposes of conducting
 representational functions at the union hall located off the base in
 Barstow, California.  The record further establishes that Union
 President Dale Boyce had been informed of the Respondent's
 interpretation of Article 8, Section 4, prior to the events underlying
 the instant complaint.
 
    On May 28, 1985, Union President Dale Boyce was informed by the union
 secretary located in the off-base Barstow, California union office that
 Ms. Linda Gonzalez, (hereinafter referred to as Ms. L. Gonzalez), an
 agent of the Federal Labor Relations Authority, had called and wanted
 him (Mr. Boyce) to call her the next day at the Respondent's Civilian
 Personnel Office (CPO) at 12:30 p.m.  /2/ Inasmuch as Mr. Boyce was
 scheduled to meet with Respondent's representatives the next morning at
 the Civilian Personnel Office he decided to personally meet there with
 Ms. L. Gonzalez rather than telephone her.
 
    On May 29, 1985, Mr. Boyce reported for work at 7 a.m.  /3/ After
 working for two hours, Mr. Boyce approached Mr. Kenneth Graham,
 supervisor of the welding shop, and requested six hours of official time
 to perform various representational duties.  According to Mr. Boyce,
 after telling Mr. Graham what union business he would be working on the
 rest of the day and where he could be found he left his work site for
 the remainder of the day.  Further, according to Mr. Boyce he did not
 tell Mr. Graham that he was meeting with Ms. L. Gonzalez later in the
 afternoon.  He could not swear to it, but he might have mentioned that
 he "was going to see Linda Gonzalez at CPO".
 
    After departing from his work station Mr. Boyce met with various
 management representatives, including Supervisory Labor Relations
 Specialist Esther Gonzales.  During the course of the meeting with Ms.
 Gonzales, Mr. Boyce mentioned, according to Ms. Gonzales, that he was
 going to talk to Ms. L. Gonzalez to which Ms. Gonzales replied that she
 had an appointment with her around noontime.  According to Ms. Gonzales
 there was no discussion of what Mr. Boyce and Ms. L. Gonzalez were to
 talk about.  Finally, Ms. Gonzales testified, without contraction, that
 Mr. Boyce never told her that he was going to have a meeting with Ms. L.
 Gonzalez.
 
    Around noon Ms. L. Gonzalez arrived at the CPO for her scheduled
 meeting with Ms. Esther Gonzales.  Prior to starting the scheduled
 meeting Ms. L. Gonzalez met and spoke to Mr. Boyce out in the hall about
 certain unfair labor practices she was investigating.  Inasmuch as Mr.
 Boyce's files were in the off-base union office in Barstow, they agreed
 to meet there after Ms. L. Gonzalez finished her business with the
 Activity representatives.  Ms. L. Gonzalez estimated that the meeting
 would last approximately one to two hours.  At Mr. Boyce's suggestion,
 it was agreed that Ms. L. Gonzalez would call him at the union hall when
 she finished her business with the Activity officials.  Ms. Esther
 Gonzales acknowledges that she observed Mr. Boyce and Ms. L. Gonzalez
 talking.
 
    Ms. L. Gonzalez then proceeded with her scheduled meeting with
 Activity representatives Ms. Esther Gonzales and Mr. Rich Schultz.
 During the course of the meeting Ms. L. Gonzalez informed Mr. Schultz
 and Ms. Esther Gonzales that if she had time she would like to meet with
 Mr. Boyce.  When the meeting concluded at approximately 3 p.m. Ms. L.
 Gonzalez asked Ms. Esther Gonzales for a telephone number where she
 could contact Mr. Boyce.  When Ms. Gonzales replied "Do you want the
 union office in the Repair Division", Ms. L. Gonzalez responded that she
 wanted the off-premises union office in Barstow.
 
    Ms. L. Gonzalez then telephoned Mr. Boyce at the Barstow union
 office, informed him that her meeting with the Activity representatives
 was over, and that she was on her way.  Ms. L. Gonzalez then told the
 Activity representatives that she was going to the union office in
 Barstow to talk to Mr. Boyce and departed the CPO.  The union office in
 Barstow is approximately a 15 minute ride from the CPO.
 
    Prior to departing the CPO Ms. L. Gonzalez did not tell the Activity
 representatives the specific reason that she was meeting with Mr. Boyce.
  Upon arriving at the union office, Ms. L. Gonzalez proceeded to discuss
 certain pending unfair labor charges with Mr. Boyce.
 
    At no time did Mr. Boyce inform management that he was leaving the
 installation to go to the union office in Barstow.  Similarly, at no
 time did he tell management of his scheduled appointment with the
 Authority representative at the union office in Barstow.
 
    On June 4, 1985, after being informed that Mr. Boyce had been at the
 union office in Barstow on May 29, 1985, Mr. Graham, Mr. Boyce's
 supervisor, conducted an investigative discussion with Mr. Boyce
 regarding his whereabouts on May 29, 1985.  During the course of the
 investigative discussion, Mr. Graham made it clear that his only concern
 was Mr. Boyce's violation of Article 8, Section 4 of the collective
 bargaining agreement which according to the Respondent's interpretation
 prohibited Mr. Boyce from conducting union representational functions at
 the off-base union office without prior permission from management.
 
    On May 26, 1985, Mr. Boyce was given a letter of reprimand and
 charged with 35 minutes of AWOL.  The letter reads in pertinent part as
 follows:
 
          a.  On 29 May 1985 at approximately 1455, I was informed by CPO
       that you had been contacted by phone at the Union Hall in Barstow
       by a representative from the Federal Labor Relations Authority.
       The representative was to meet with you at the Union Hall.
 
          b.  On 4 June 1985, this matter was discussed with you.  You
       denied receiving a phone call.  I had previously advised you that
       the Master Labor Agreement, Article 8, Section 4, provides that
       official time will be approved only for representational functions
       performed at the activity, etc.  I had also advised you on 23 May
       1985 that you were not authorized to go to the Barstow Union
       Office on official time.  You contend that this article does not
       apply to you as President of the Union.  The reasons you offer on
       your whereabouts on 29 May 1985 are not acceptable;  therefore,
       you have been carried on unauthorized absence status for 35
       minutes on 29 May 1985.  /4/
 
    The record further establishes that the Respondent and the Authority
 have been involved in numerous unfair labor practices and that the
 Respondent always released employees on official time when informed by
 Authority agents that they wished to talk to such employees in
 connection with Authority proceedings.  Prior to the events underlying
 the instant complaint the Authority never met with an employee on
 official time without clearing it with the Respondent.  Further, it was
 always the Authority agent and not the employee who notified the
 Respondent that a meeting was going to be held with an employee.
 
                        Discussion and Conclusions
 
    The General Counsel points out that the Authority has held that (1)
 the granting of official time to employees pursuant to Section 7131(c)
 of the Statute for purposes of participating in the processing of unfair
 labor practice charges is within the unreviewable discretion of the
 Regional Director or the Regional Director's agents, and (2) that
 Section 7104(f)(2)(A) of the Statute specifically empowers the General
 Counsel to determine the manner in which investigations are to be
 conducted, including the situs of interviews related thereto.
 
    Relying on the foregoing and the fact that the Authority's agent had
 informed the Respondent that he was going to meet with Mr. Boyce, the
 General Counsel takes the position that the Respondent violated Sections
 7116(a)(1) and (8) of the Statute when it reprimanded Mr. Boyce and
 charged him with 35 minutes AWOL for his actions in meeting with the
 Authority's representative on May 29, 1985 in the Union's off-base
 office in Barstow.
 
    The Respondent's counsel, who agrees with the General Counsel's
 conclusions with respect to the state of the law, takes the position
 that in the absence of prior notice from either the Authority's agent or
 Mr. Boyce that Mr. Boyce was going off the base to meet the Authority's
 agent in connection with pending unfair labor practices, Mr. Boyce
 violated the provisions of the collective bargaining contract as
 interpreted by Respondent.  According to the Respondent the reprimand
 and the 35 minute AWOL were based upon Mr. Boyce's actions in violating
 the contract by leaving the base without permission and was unrelated to
 the fact that he subsequently met with the Authority's agent for
 purposes of discussing pending unfair labor practices.
 
    Inasmuch as the General Counsel has correctly summarized the state of
 the law and since Respondent appears to acknowledge same, the sole issue
 remaining for resolution is whether, as contended by the Respondent,
 under the particular facts of this case Respondent was at liberty to
 reprimand and impose a 35 minute AWOL on Mr. Boyce for leaving the
 Respondent's premises without permission to prepare for a subsequent
 meeting with an Authority agent.
 
    The record establishes that the Respondent and the Union were parties
 to a collective bargaining agreement which contained various provisions
 concerning the awarding and use of official time by the Union's
 President in connection with representational activities.  According to
 Respondent's interpretation of such provisions, which interpretation had
 previously been made known to Union President Boyce, the Union President
 was not allowed to utilize official time to conduct representational
 activities off the base without prior management permission.  The record
 further establishes that at all times prior to the instant events
 Authority agents when desiring to talk to the Union President or any
 other unit employee in connection with a matter of Authority interest
 had always given prior notice to management.  The record also
 establishes that the Respondent had never denied Authority agents the
 opportunity to meet with unit employees on official time, nor does it
 appear that the Respondent had ever in the past penalized unit employees
 for meeting with Authority agents.  Finally, the record establishes that
 aside from telling Respondent about 3 p.m. on May 29, 1985 that she, the
 Authority agent, was on her way to the union office in Barstow to meet
 Mr. Boyce, no other notice of the meeting was given to Respondent.
 
    In view of the above facts, I find that the Respondent did not
 violate the Statute when it disciplined Mr. Boyce after discovering his
 unauthorized visit to the union office in Barstow.  In reaching this
 conclusion, I find that while the Authority's agents certainly have a
 right to meet with employees on official time and to determine where
 such meetings will be held, such rights are not paramount to both the
 mission of an agency and its responsibility to monitor the activities of
 its work force.  Here there is no evidence of prior notice of the
 meeting or that Mr. Boyce had received permission to go to the union
 office in Barstow as required by Respondent's interpretation of the
 contract.
 
    Having left the Respondent's premises without prior permission in
 defiance of Respondent's announced interpretation of the official time
 provisions of the collective bargaining contract and without prior
 notice to Respondent from either himself or the Authority's agent that
 his actions were for purposes of meeting with the Authority's agent to
 discuss a pending unfair labor practice, I find that under the
 circumstances the Respondent did not violate the Statute when it
 subsequently gave Mr. Boyce a letter of reprimand and a 35 minute AWOL
 for such conduct.  I further find that the reprimand and 35 minute AWOL
 were not based on Mr. Boyce's activity in meeting an Authority agent but
 rather his actions in leaving the premises without prior permission in
 violation of the Respondent's interpretation of the collective
 bargaining agreement.
 
    In sum I find that while the Authority's agents are free to conduct
 investigations on official time and determine where such investigations
 should be held, sensible administration not to mention common courtesy
 require advance notice so that an Agency can make appropriate
 arrangements to carry out the mission of the Agency and its
 responsibility of knowing at all times the whereabouts of its employees.
 
    Accordingly, I recommend that the Authority adopt the following order
 dismissing the complaint in its entirety.
 
                                   ORDER
 
    It is hereby Ordered that the Complaint in Case No. 8-CA-50418 should
 be, and hereby is, dismissed in its entirety.
 
                                       /s/ BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  March 11, 1986
    Washington, D.C.
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) The Charging Party 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 observed 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 was
 incorrect.  The Authority has examined the record carefully, and finds
 no basis for reversing the Judge's credibility findings.
 
    (2) Ms. L. Gonzalez had made an appointment to Meet Mr. Rick Schultz,
 Labor Relations Specialist and Ms. Esther Gonzales, Supervisory Labor
 Relations Specialist around 12 p.m. on May 29, 1985 in connection with
 pending unfair labor practice charges that she was investigating.  Both
 Mr. Schultz and Ms. Gonzales testified that Ms. L. Gonzalez prior to her
 arrival at the Barstow CPO never informed them of her intention or
 desire to meet with Mr. Boyce.  Ms. L. Gonzalez did not testify at the
 hearing.
 
    (3) Mr. Boyce's work hours are from 7 a.m. to 3:30 p.m.
 
    (4) It appears that in awarding Mr. Boyce a 35 minute AWOL,
 Respondent calculat