25:0342(23)CA - Air Force, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 -- 1987 FLRAdec CA



[ v25 p342 ]
25:0342(23)CA
The decision of the Authority follows:


 25 FLRA No. 23
 
 DEPARTMENT OF THE AIR FORCE
 OGDEN AIR LOGISTICS CENTER
 HILL AIR FORCE BASE, UTAH
 Respondent
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1592
 Charging Party
 
                                            Case No. 7-CA-50596
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached decision in these
 proceedings.  He found that the Respondent had not engaged in the unfair
 labor practices alleged in the complaint, and he recommended that the
 complaint be dismissed.  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, we have reviewed the rulings of the Judge made at the hearing.
 We find that no prejudicial error was committed, and we affirm those
 rulings.  Upon consideration of the Judge's decision and the entire
 record, we adopt the Judge's findings, conclusions and recommended
 Order.
 
                                   ORDER
 
    The complaint in Case No. 7-CA-50596 is dismissed.
 
    Issued, Washington, D.C., January 27, 1987
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 7-CA-50596
 
 DEPARTMENT OF THE AIR FORCE, OGDEN AIR 
 LOGISTICS CENTER, HILL AIR
 FORCE BASE, UTAH
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1592, AFL-CIO
    Charging Party
 
    Clare A. Jones, Esq.
    For the Respondent
 
    William Shoell
    For the Charging Party
 
    Michael Farley, Esq. and
    Joseph Swerdzewski, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101
 et seq.
 
    Upon an unfair labor practice charge filed by the American Federation
 of Government Employees, Local 1592, AFL-CIO (herein referred to as the
 Union) against the above captioned Respondent, the General Counsel of
 the Authority, by the Regional Director for Region VII, issued a
 Complaint and Notice of Hearing alleging Respondent violated section
 7116(a)(1) and (2) of the Statute by suspending for one day without pay
 Union Steward Kelly D. Bartlett for having engaged in activities
 protected by the Statute.
 
    A hearing on the Complaint was conducted in Ogden, Utah on December
 16, 1985 at which all parties were represented and afforded full
 opportunity to adduce evidence, call, examine and cross-examine
 witnesses and argue orally.  Briefs were filed by counsel for Respondent
 and counsel for the General Counsel and have been carefully considered.
 
    Upon the entire record in this case, /1/ my observation of the
 witnesses and their demeanor and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    At all times material herein the American Federation of Government
 Employees, AFL-CIO (herein referred to as AFGE) has been the exclusive
 collective bargaining representative of a nationwide unit of employees
 employed by Headquarters Air Force Logistics Command, Wright-Patterson
 Air Force Base, Ohio including various employees located at Hill Air
 Force Base, Utah, herein referred to as Hill AFB).  AFGE'S Council 214
 is an affiliate and agent of AFGE and Local 1592 is an affiliate and
 agent of Council 214.  Employees at Hill AFB are represented by AFGE
 through Local 1592.
 
    Kelly D. Bartlett, an employee of Hill AFB, Aircraft Division, has
 been Local 1592's steward for the Aircraft Divison within the
 Directorate of Maintenance at Hill AFB since November 1984.  On May 9,
 1985 Bartlett, acting in his capacity as a Union steward, filed an
 appeal on behalf of Aircraft Division employee Gilbert Duran whose
 security clearance had been previously revoked by the Air Force Security
 Clearance Office (herein referred to as AFSCO) in Washington, D.C.  The
 appeal was essentially a request that AFSCO reconsider the matter and
 was sent to Rosemary Adkins, AFSCO, Washington, D.C. who was an
 adjudicator in such matters but not part of Hill AFB management.  Copies
 of the May 9 letter were also sent to the Hill AFB security office,
 General McCausland, apparently the Base Commander and Aircraft Division
 Chief Ward Jensen.  Bartlett signed the letter:
 
          Kelly D. Bartlett
 
          Division Steward, GS-15
 
          AFGE Local 1592
 
          Hill AFB, Utah 84056
 
    Shortly thereafter Ronald Storey, Aircraft General Foreman in the
 Aircraft Maintenance Division at Hill AFB and Bartlett's second level
 supervisor, was informed by Respondent's Civilian Personnel Branch that
 Aircraft Division Chief Jensen was upset about Bartlett signing the May
 9 letter as "GS-15" (General Schedule) and told Storey he should look
 into the matter and take appropriate action since Bartlett was a Sheet
 Metal Mechanic at the WG-10 (Wage Grade) pay level.  Storey obtained a
 copy of Bartlett's May 9 level and concluded that since Bartlett was not
 a GS-15, Bartlett was guilty of misrepresenting his grade and it was
 possible that if AFSCO understood Bartlett to be a GS-15, they might
 divulge information to Bartlett that he should not have received.
 
    Accordingly, on June 20, 1985 Storey met with Bartlett and presented
 him with a Notice of Proposed Suspension wherein Storey proposed to
 suspend Bartlett for five days without pay for "deliberate
 misrepresentation." The Notice of Proposed Suspension also indicated
 that in determining the severity of the proposed discipline, Storey had
 taken into consideration Bartlett's disciplinary 3 day suspension in
 June 1984 for:
 
          ". . . failure to request leave according to established
       procedures;  unauthorized absence;  and making false, malicious,
       or unfounded statements against your supervisor with the intent to
       damage his reputation."
 
    During the meeting Storey explained that Division Chief Jensen was
 very upset because Bartlett signed his name as a GS-15 and related that
 Jensen contacted the Civilian Personnel Branch and they contacted Storey
 and told him some disciplinary action should be taken.  Storey, a
 personal friend of Bartlett's, also indicated he didn't feel good about
 disciplining Bartlett but felt compelled to discipline him because of
 his prior infractions.  Bartlett explained he held two distinct
 positions:  Aircraft Mechanic WG-10;  and Aircraft Division Steward,
 GS-15.  Bartlett went on to state that he didn't understand the concern
 over his use of the GS-15 designation since it was strictly an internal
 union matter and no one from management had asked him the meaning of its
 usage.  For all they knew, he added, it stood for general steward 15 or
 good steward 15, they had no idea.  From Bartlett's explanation, Storey
 concluded that when he used the GS-15 in the May 9 letter, Bartlett had
 no malicious intent to misrepresent that he was indeed a GS-15 but
 Storey nevertheless concluded that a misrepresentation occurred.
 
    By letter of August 8, 1985 William Shoell, President of Local 1592
 filed with Storey a written response to the Notice of Proposed
 Suspension on behalf of Bartlett.  Shoell's letter stated:
 
          "1.  On 9 May 1985, Mr. Kelly Bartlett, in the capacity of the
       Aircraft Division Steward, filed an appeal to the Office of AFSCO.
        In signing the letter, Mr. Barlett used his union title very
       clearly, when he signed this as the Aircraft Division Steward for
       Local 1592.
 
          "2.  There may be some confusion with management in regards to
       the GS-15 Mr. Bartlett, when acting in the capacity of the
       Aircraft Division Steward, is equivalent to Mr. Ward Jensen, a
       GS-15, and Colonel Brown, a full Colonel in the United States Air
       Force, and is not acting in his capacity as a federal employee --
       which is correctly, a Sheet Metal Mechanics, WG-10.
 
          "3.  It is a union retained right to use whatever title they
       feel for their officers and stewards and it is strictly an
       internal union matter, which management does not have the right,
       inaccordance with Public Law 95-454, to interfere with.
 
          "4.  There may have been some confusion within management
       circles because of the GS-15 applied to Mr. Barett's title, but it
       is very clear there was no deliberate misrepresentation.  In order
       to be a deliberate misrepresentation in Mr. Barrett's case, you
       would have had to delete "Aircraft Division Steward, AFGE Local
       1592" from the letter, which anyone could very clearly see, Mr.
       Bartlett was acting in the capacity of a union official.
 
          "5.  Until this proposed action, there has been no
       communication with Local 1592 into regard of some possible
       confusion and the use of titles/grades assigned to stewards and
       officers in this local.  The evidence package provided to myself
       as Mr. Bartlett's designated representative, further substantiates
       this -- that there were no problems in regards to Mr. Bartlett's
       representation, only the letter to AFSCO.
 
          "6.  Mr. Bartlett had no intention of implying that he was a
       GS-15 in the federal government, but only as stated, Aircraft
       Division Steward, GS-15, AFGE Local 1592.  In accordance with case
       law established in numerous cases, Union officials do not fall
       under the same criteria as a federal employee when they are acting
       in the capacity of union officials.  Several of these cases are:
       4 FLRA 460, 4 FLRA 540, 4FLRA 668;  OALJ Decision 8534, U.S.
       Supreme Court Decision Linn VS Plants Guards, 383US53, Old
       Dominion Branch 496, NAL Carriers VS Austin 418US264 (1974).  They
       clearly state that union officials are governed under a different
       type of criteria when performing their duties.  Further, there was
       no evidence presented to me in the evidence package that Mr.
       Bartlett was not performing as a representative for AFGE Local
       1592.
 
          "7.  If the designation of GS-15 is requiring management
       officials at Hill AFB any problems, I feel they should address
       this to myself in order that I may be able to review it and see
       if, in order to promote good union-management relations, we need
       to change titles of union officials within my organization.
 
          "8.  I can further ensure that Mr. Bartlett has no intentions
       of deliberate misrepresentation now or in the future.
 
          "9.  I feel that the proposed 5-day suspension should be
       cancelled in its entirety.  I do request a verbal presentation in
       this matter at your convenience."
 
    Storey remained unconvinced that a misrepresentation had not occurred
 but felt that Bartlett had not actually intended to mislead any one by
 use of the GS-15 designation.  Accordingly, on August 23, 1985 Storey
 issued his final decision in the matter stating, in relevant part:
 
          "2.  Your . . . replay, . . . has been thoroughly reviewed and
       been given full and objective consideration.  It is found that the
       reasons stated in paragraph 2 of the Notice of Proposed Suspension
       are sustained and fully supported by the evidence and warrant your
       suspension to promote the efficiency of the service.  However,
       since Air Force policy on discipline is to rehabilitate rather
       than punish, the decision has been made to reduce the penalty to a
       one (1) day suspension.  Therefore, you will be suspended from
       duty and pay beginning 29 August 1985 . . . ."
 
    Thereafter, Bartlett was suspended from employment without pay on
 August 19, 1985.
 
    With regard to the use of the GS designation, the record reveals that
 no official of the Union ever used this designation either before or
 after the Bartlett incident.  Bartlett testified that sometime around
 early May 1985 a group of stewards were informally gathered together
 with William Harper, the then President of Local 1592, awaiting the
 start of a Union meeting.  /2/ Either Bartlett or another steward,
 William Carr, suggested to Harper that stewards use a GS grade level,
 along with their official Union title, equivalent to the management
 representative with whom they regularly dealt on labor-management
 matters.  According to Bartlett the difference between the various
 levels of stewards would then be clearly distinguished.  Nothing was
 specifically said during the discussion with regard to whether the Union
 would use such designations when communicating with management although
 Bartlett testified he thought it was just generally understood.  /3/
 Bartlett further testified that the use of GS designations was
 acceptable to President Harper and during this informal meeting he
 suggested one of the stewards prepare a rough draft for his signature
 and have it typed by the Union's secretary so Harper could send the
 names and designations to Riley Skeen, Respondent's Chief Employment
 Relations.  According to Bartlett he thereafter wrote a "rough draft"
 indicating the equivalent GS designations of 10 or 12 individuals and
 left it on the Union secretary's desk for typing.  The letter was
 addressed to Skeen requesting that he recognize the named individuals by
 Union title and GS pay grade but the letter was not thereafter signed by
 Harper or sent to Skeen.  /4/
 
    Shoell succeeded Harper as President of Local 1592 around May 23,
 1985.  Shoell testified that sometime in April 1985 Harper told him of a
 letter requesting something to the effect that Bartlett and steward Carr
 be given equivalent status of GS-15 in order to receive privileges in
 the Officer's Club.  Shoell was not sure of the letter's originator and,
 with regard to the addressee, testified, "I'm sure it must have been
 going to the Officer's Club." Shoell gave no indication that he had
 knowledge of any other such letter.  /5/ In any event, apart from his
 August 8 letter on behalf of Bartlett, supra, Shoell never notified
 Respondent of the use of GS designations by Union stewards.  Bartlett
 testified the first time he talked to Shoell about the use of GS
 designations for stewards was shortly after Bartlett received his Notice
 of Proposed Suspension of June 20, 1985 and it was at this time that
 Shoell ". . . reaffirmed that we could designate the way the union saw
 fit."
 
    With regard to his use of the GS-15 designation in his May 9 letter,
 supra, Bartlett testified that in his prior dealings with AFSCO, AFSCO
 personnel always indicated the originator's official grade.
 Accordingly, after his informal discussion with Local 1592 President
 Harper, supra, Bartlett used the GS-15 designation on May 9 as a
 "courtesy" and he considered it "proper etiquette" in corresponding with
 "an organization that always does that."
 
                        Discussion and Conclusions
 
    Counsel for the General Counsel contends Bartlett's use of GS-15
 designation was within the scope of protected activity since Bartlett
 clearly revealed himself as "Division Steward" to which he attached the
 GS-15 designation;  the designation was approved by the Union prior to
 Bartlett's use of it, thus the designation was a matter internal Union
 activity associated with its right to select and designate the title of
 its representatives;  and in any event, Bartlett's use of the GS-15
 designation did not amount to "flagrant misconduct" which would place
 Bartlett's conduct outside the ambit of protected activity.  Respondent
 contends no internal Union approval to use the GS-15 designation ever
 occurred and Bartlett's use of GS-15 was misleading or otherwise
 deceiving thereby constituting a deliberate misrepresentation outside
 the scope of protected activity.
 
    There is no dispute that Union steward Bartlett was indeed engaged in
 activity protected by the Statute when he wrote the May 9, 1985 letter
 of appeal to AFSCO on behalf of employee Gilbert Duran.  However, the
 Authority has long held that during the course of otherwise protected
 activity by a union representative flagrant misconduct will not receive
 the protection of the Statute.  Department of the Navy, Puget Sound
 Naval Shipyard, Bremerton, Washington, 2 FLRA 54 (1979) and Department
 of Defense, Defense Mapping Agency Aerospace Center, St. Louis,
 Missouri, 17 FLRA 71 (1985) and cases cited therein.  Thus the question
 herein is whether Bartlett's designating himself as a GS-15 was, under
 the circumstances, conduct protected by the Statute.
 
    I find Bartlett's use of the GS-15 designation herein was a
 significant misrepresentation of his pay grade.  He was in fact a WG-10.
  General Foreman Storey reasonably concluded that this misrepresentation
 might have led AFSCO, or indeed any other person with whom Bartlett
 communicated, to divulge information or receive benefits he was not
 entitled to receive.  The fact that the GS-15 designation was also
 accompanied by his title of Division Steward, AFGE Local 1592 is not
 controlling since the misuse of his grade, or title for that matter, /6/
 would nevertheless inherently tend to create confusion in the mind of
 the reader who has no idea of the writer's position in the employer's
 organization.  GS-15 is frequently a managerial grade in the Federal
 Service and it is highly improbable in the circumstances of this case
 that anyone without special knowledge would conclude that the GS usage
 was purely a Union designation.  Such misconduct could result in a
 variety of mischief and misinterpretation, the possibility of which was
 readily foreseeable.
 
    Bartlett claims his use of GS-15 was only to represent that he was
 the equivalent grade of a GS-15.  However, Respondent was not so
 notified beforehand and Bartlett's correspondence to AFSCO did not
 designate him as "Equivalent Grade GS-15" nor does the document on its
 face lend itself to that interpretation.  Further, I find his claim that
 he used the GS-15 designation as a "courtesy" or "proper etiquette" to
 be disingenuous at best.
 
    I further conclude that the evidence does not establish that
 Bartlett's designating himself GS-15 was approved or authorized by the
 Union prior to Bartlett's using it in his May 9, 1985 letter to AFSCO.
 Even crediting Bartlett's uncorroborated testimony that Union President
 Harper was favorably disposed to the idea of stewards using GS
 designations, /7/ Harper did not specifically indicate the designation
 could be used in communications with the employer or in the manner used
 by Bartlett.  Clearly the record does not establish that Harper gave a
 final approval of the rough draft letter or that he even saw the draft.
 Moreover, no document was ever sent to management by the Union
 concerning the matter.  Thus, the record only indicates that Harper was
 agreeable with a concept which was never adopted in final form by the
 Union as an organization.
 
    I do not find Bartlett's use of the GS-15 designation was
 intrinsically related to his Union stewardship or his pursuit of his
 representational activities.  Nor do I find that his misrepresentation
 of his grade is the type of behavior which one might expect to occur
 during performance of representational duties.  Thus, balancing the
 competing interests herein I find no Statutory protection for a
 deliberate misrepresentation of falsification of a matter which has
 little to do with the activity of representing employees.  In my view
 such behavior does not rise to the level of protected activity simply
 because it was the action of a union steward or simply happened to occur
 while Bartlett was engaged in protected activity.  This holding, in my
 view, in no way impedes a union representative from engaging in advocacy
 or "robust debate" in pursuit of representational activities nor does it
 dissuade employees from engaging in the Statutory right "to act for a
 labor organization in the capacity of a representative . . ." as
 protected by section 7102(1) of the Statute.
 
    One last point.  If the Union had approved the use of GS designations
 for its representatives, and so notified Respondent, the disciplining of
 Bartlett might have been in a different posture.  What management would
 have done as a response in that case would, of course, be purely
 speculative.  But the confusion inherently present by the conduct
 described herein might well have been avoided.  Local 1592 President
 Shoell's August 8, 1985 response to the Notice of Proposed Suspension
 does not alter this conclusion.  That response only attempts to explain,
 after the fact, that Bartlett did not attempt to deliberately
 misrepresent his grade.  The wrong had already been committed.  Indeed,
 Shoell's letter does not indicate that the Union had adopted a general
 policy of so designating all its representative by such equivalent
 grades but seems to be concerned only with Bartlett's use of the grade.
 
    Accordingly, in all the circumstances herein I conclude Union steward
 Bartlett's use of the GS-15 designation was not conduct protected by the
 Statute.  I therefore recommend the Authority issue the following:
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the Complaint in Case No. 7-CA-50596 be,
 and hereby is, dismissed.
 
                                       /s/ SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
    Dated:  June 27, 1986
    Washington, D.C.
 
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Counsel for the General Counsel's unopposed motion to correct the
 transcript as to various minor matters is hereby granted.
 
    (2) Harper is retired and did not testify in these proceedings.
 Although according to Bartlett three other named Union stewards and "a
 few others" were present at this meeting, only Bartlett testified with
 regard to this discussion.
 
    (3) On cross-examination Bartlett acknowledged that in the statement
 he gave during the investigation of the unfair labor practice charge
 herein he indicated that one of the reasons he wanted the GS designation
 was so he could obtain membership in the Officers Club.
 
    (4) The Union secretary was not called as a witness and the proported
 letter was not produced at the hearing.
 
    (5) During direct examination Bartlett testified he knew Harper
 d