33:0626(80)CA - - Marine Corps Logistics Base, Barstow, CA and AFGE Local 1485 - - 1988 FLRAdec CA - - v33 p626

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33:0626(80)CA
The decision of the Authority follows:


33 FLRA No. 80

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

MARINE CORPS LOGISTICS BASE

BARSTOW, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

LOCAL 1485

(Charging Party)

8-CA-70003

8-CA-70048

DECISION AND ORDER

October 31, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge issued in the above-entitled consolidated proceeding. The Respondent filed exceptions to the Judge's decision and the General Counsel filed cross-exceptions to the Respondent's exceptions.

The complaint in Case No. 8-CA-70003 alleges that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by lowering the appraisal of an employee because the employee engaged in protected activity on behalf of the Charging Party (the Union). The complaint further alleges that the Respondent violated section 7116(a)(1) of the Statute by issuing a memorandum dated September 23, 1986, which indicated that employees who exercise their statutory right to engage in protected activity on behalf of the Union will suffer a lower annual performance appraisal.

The complaint in Case No. 8-CA-70048 alleges that the Respondent violated section 7116(a)(1) and (2) of the Statute by interfering with the Union steward's protected rights when a representative of the Respondent curtailed his investigation of an employee complaint by refusing to allow the investigation to continue unless the steward identified the employee whom the steward was representing.

In Case No. 8-CA-70003, we conclude, contrary to the Judge, that the Respondent's Motion to Dismiss those elements of the complaint which allege that the Union steward would have received a higher rating on his April 1986 performance evaluation but for the Respondent's linkage of his performance and his Union activities, should be granted. Therefore, we shall dismiss the section 7116(a)(1) and (2) portions of the complaint which pertain to that matter. We further conclude, contrary to the Judge, that the September 23, 1986, memorandum from the Respondent to the Union steward did not contain wording which clearly linked employees' use of official time for representational activities and their ability to achieve satisfactory evaluations in a manner which violated section 7116(a)(1) of the Statute, as alleged.

In Case No. 8-CA-70048, the Judge concluded that the Respondent's representative violated section 7116(a)(1) of the Statute when he refused to allow a Union steward to continue the investigation of an employee complaint because the steward refused to identify the employee whom he was representing. The steward was investigating the complaint on official time granted to him by his supervisor under the parties' negotiated collective bargaining agreement. Therefore, we find that the question of whether a management representative had the right to restrict the steward's official time is a matter which should be resolved by seeking an interpretation of the official time and grievance sections of the parties' collective bargaining agreement through the negotiated grievance/arbitration procedures. Therefore, we shall order that the complaint in Case No. 8-CA-70048 be dismissed.

II. Procedural Matters

A. Timeliness of Respondent's Cross-Exceptions

After the Respondent filed exceptions and the General Counsel filed cross-exceptions, the Respondent filed a "Cross-Exception and Brief in support of its Exceptions" to the Judge's decision (cover letter dated April 25, 1988). In this document, the Respondent responded to the General Counsel's cross-exceptions and also raised new exceptions.

The General Counsel filed a motion to strike the Respondent's cross-exceptions as untimely. The General Counsel argued that the Authority's Regulations grant a party the right to file only one set of exceptions. Therefore, the General Counsel argued, the Respondent's cross-exceptions are untimely insofar as they raise exceptions to the Judge's decision which were not raised in the Respondent's original exceptions.

The Respondent filed an opposition to the General Counsel's motion. The Respondent contended that section 2423.28(b) of the Authority's regulations gives a party three options in replying to another party's exceptions: (1) an opposition, (2) cross-exceptions, or (3) both an opposition and cross-exceptions. The Respondent contended that its cross-exceptions constitute both a cross-exception and an opposition to the General Counsel's cross-exceptions, an option permitted by the Authority's Regulations.

Sections 2423.26, 2423.27 and 2423.28 of our Regulations give each party one opportunity to file exceptions to the Judge's decision. Each party has the option of raising exceptions to the Judge's decision either (1) in original exceptions of its own, or (2) by filing cross-exceptions upon receipt of another party's exceptions. The regulations provide each party with one opportunity to reply to another party's exceptions. Such a reply may be in the form of cross-exceptions (which may not be used to raise any new exceptions to the Judge's decision if exceptions have been previously filed by that party), or an opposition, or a combination of both.

In summary, each party is permitted one opportunity to except to the Judge's decision and one opportunity to reply, unless permission for further submissions has been granted by the Authority pursuant to section 2429.26 of our Regulations. The Respondent did not request permission to submit additional exceptions. Therefore, there is no basis for waiving the requirements and time frames of the Regulations and for granting the Respondent an opportunity to make submissions in addition to those provided for by our Regulations.

We grant the General Counsel's motion, in part, and deny it, in part. Insofar as the Respondent's cross-exceptions set forth the Respondent's position concerning the issues raised by the General Counsel's cross-exceptions, we have considered them in rendering our decision because they constitute a timely-filed opposition to the General Counsel's cross-exceptions pursuant to section 2423.28(b) of our Regulations. The General Counsel excepted to the Judge's conclusion in Case No. 8-CA-70003 that the Respondent did not lower an employee's rating on his appraisal in violation of section 7116(a) and (2) of the Statute. Therefore, the Authority will review all aspects of the complaint in Case No. 8-CA-70003 raised by the General Counsel's cross-exceptions, including the Judge's decision not to grant the Respondent's Motion to Dismiss that portion of the complaint, and we will consider those portions of the Respondent's cross-exceptions which set forth the Respondent's position on that portion of Case No. 8-CA-70003. Insofar as the Respondent's cross-exceptions initiate new exceptions to the Judge's decision which were not included in the Respondent's original exceptions, they have not been considered in our disposition of this case. Allowing a party to file more than one set of exceptions would be inconsistent with sections 2423.27 and 2423.28 of our Regulations.

The Respondent contended that such a conclusion will lead to burdensome exceptions which are filed merely to protect a party's position. As an example, the Respondent noted that it did not originally file exceptions to the Judge's conclusion that the Respondent did not violate section 7116(a)(1) and (2) of the Statute by lowering an employee's performance rating, because the Judge's conclusion agreed with its position. However, when the General Counsel filed cross-exceptions to that conclusion by the Judge, the Respondent felt it necessary to file its own cross-exceptions to protect its position regarding that issue.

A party need not necessarily file exceptions to those portions of a Judge's decision with which it agrees in order to protect its interests. The opportunity to file a reply, whatever its form, which sets forth that party's position regarding exceptions submitted by another party, adequately protects the original party's interest in having an opportunity to place before the Authority that party's position regarding any issue which the Authority may consider in rendering its decision.

B. Credibility Resolutions

The Respondent excepts to certain credibility findings made by the Judge. The demeanor of witnesses is an important factor in resolving issues of credibility. Only the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a Judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully, and find no basis for reversing the Judge's credibility findings. See Department of Housing and Urban Development, Columbia Area Office, Columbia, South Carolina, 21 FLRA 698 (1986).

III. Case No. 8-CA-70003

A. Background

Frank Wyman has been a firefighter for the Respondent for 4 years. He also serves as an active Union steward. On April 28, 1986, Wyman was given his annual performance appraisal by his supervisor, Captain John Contreras. Contreras discussed Wyman's performance with him at that time. Contreras complimented Wyman on certain aspects of his performance. Contreras also stated that he could not give Wyman a rating higher than satisfactory because Wyman's frequent absences for Union business and other matters caused Wyman to miss training drills and classroom time. Judge's Decision at 3, 4. Contreras' statement was the basis of a settlement agreement in Case No. 8-CA-60354, a prior case involving the same parties and some of the same issues. (See below for further discussion.)

On September 4, 1986, Wyman requested that the Respondent provide information which would enable him to check how often he had been absent from required firefighting activities because of Union activity. General Counsel Exhibit No. 3. On September 23, 1986, the Respondent replied to Wyman's request. The reply included the following statement:

1. The following information is provided as requested by the reference:

a. Dates/time of union business that conflicted with formal drills, continuous equipment familiarization and exposure to daily work routines (all three are required to insure proficiency through attendance on the job in the fire house, on the trucks and at industrial sites) are as follows[.] [The reply listed seven such dates and times.]

General Counsel's Exhibit No. 4.

B. Respondent's Motion to Dismiss

On April 7, 1987, the Respondent filed with the Regional Director, Region VIII, a Motion for Dismissal of all portions of the consolidated complaint relating to Case No. 8-CA-70003. The Regional Director referred the Motion for Dismissal to the Chief Administrative Law Judge. The Administrative Law Judge in this case heard arguments on the Motion and ruled on it in his decision. The General Counsel excepted to that portion of the Judge's conclusion in which he found that the Respondent did not lower Wyman's rating on his evaluation in violation of section 7116(a)(1) and (2). In order for us to render our decision on the issues raised by that portion of the complaint, we must review all elements of that portion of the complaint, including the threshold issue of the Judge's decision on the Respondent's Motion to Dismiss the complaint in Case No. 8-CA-70003. As we noted in our ruling on the timeliness of the Respondent's cross-exceptions, we shall consider the arguments made by the Respondent regarding its Motion to Dismiss in its cross-exceptions, because that portion of the Respondent's cross-exceptions constitute a timely response to the General Counsel's cross-exceptions to the Judge's findings regarding the 7116(a)(1) and (2) portions of the complaint alleging that Wyman's rating was improperly lowered. The Respondent alleged that the issues involved in Case No. 8-CA-70003 were settled at the time the Regional Director of Region 8 approved an informal settlement agreement in Case No. 8-CA-60354. Hence, the Respondent argued, the issuance of a complaint in Case No. 8-CA-70003 was tantamount to reopening a case that had already been settled. The Respondent concluded that the Regional Director was barred from issuing a complaint in Case No. 8-CA-70003 which revived the issues settled in Case No. 8-CA-60354 absent proof that the Respondent failed to comply with the settlement agreement and/or without having afforded the Respondent notice of the intent to reopen the case and an opportunity to be heard.

1. Background

The charge in Case No. 8-CA-60354 was filed with the Regional Director, Region VIII on June 4, 1986. The charge, alleging that the Respondent violated section 7116(a)(1), (2), (4) and (8) of the Statute, contended that Wyman's supervisor told him that "because of his Union work he was rating him lower on his performance appraisal." Additionally, the charge alleged that "this threat was carried out." General Counsel's Exhibit No. 1(c), Attachment E. The Respondent contended that during the course of settlement discussions for Case No. 8-CA-60354 the Respondent was advised by a representative of Region VIII that the Region had discovered no evidence that Wyman's performance evaluation had been lowered and that the 7116(a)(2) element of the charge would be withdrawn. In the Respondent's view, withdrawal of the 7116(a)(2) element of the charge was a quid pro quo for the Respondent agreeing to the settlement agreement which was approved by the Regional Director on September 15, 1986.

On October 3, 1986, the Union filed the charge in Case No. 8-CA-70003. The charge alleged that the Respondent's agents lowered employee Wyman's performance appraisal "because of his union activities." The Respondent contended that its representative informed the Region of its position that the charge in Case No. 8-CA-70003 was nothing more than a reiteration of the issues which it presumed had been resolved by the settlement of the charge in Case No. 8-CA-60354. The Respondent also denied the substance of the allegations in the charge. On January 5, 1987, the Regional Director approved a Union request to withdraw the 7116(a)(2), (4) and (8) portions of the charge filed in Case No. 8-CA-60354. At the same time, the Regional Director sent the Respondent a copy of a Union Withdrawal Request in Case No. 8-CA-60354 dated August 25, 1986 and the Regional Director indicated that the Respondent was inadvertently never notified of the Regional Director's receipt of the Union's Withdrawal Request on August 26. The consolidated complaint involving Case No. 8-CA-70003 was issued by the Regional Director on February 20, 1987.

The Respondent argued that the issuance of the complaint in Case No. 8-CA-70003 constituted a setting aside of the settlement agreement in Case No. 8-CA-60354. The Respondent contended that a settlement agreement could not be set aside absent proof that the settlement agreement had been violated. Moreover, the Respondent contended that a Regional Director must provide the parties with notice of an intent to set aside a settlement agreement and provide the parties to the agreement an opportunity to argue the merits of such an action before the Regional Director could set aside such an agreement by issuing a new complaint involving the same issues. According to the Respondent, none of these factors was present in this case.

The Regional Director's Answer to the Motion for Dismissal alleged that the issues in Case No. 8-CA-70003 are markedly different from those that were settled in Case No. 8-CA-60354. The Regional Director contended that the settlement in Case No. 8-CA-60354 concerned an allegedly unlawful oral statement made by a supervisor to an employee while the complaint in Case No. 8-CA-70003 deals with an allegedly discriminatory performance appraisal and an allegedly unlawful written statement issued to an employee. The General Counsel contended that the complaint in Case No. 8-CA-70003 is not based on an assertion, as argued by the Respondent, that the Respondent failed to comply with a previous settlement agreement.

The General Counsel's Answer further contended that there was no documentary evidence that the Union withdrew the 7116(a)(2) and (4) portions of its charge in Case No. 8-CA-60354 as a quid pro quo for settlement of that case or that the Respondent only agreed to a settlement concerning the 7116(a)(1) elements of the charge because the Union withdrew its other allegations.

2. The Judge's Decision on the Motion to Dismiss

The Respondent's Motion for Dismissal was referred to the Judge, who considered it at the hearing in this case. In addition to the documentary evidence outlined above, the Respondent made an offer of proof to the effect that its representative had been assured by a representative of Region VIII that the Regional Office had found no evidence to support the 7116(a)(2) element of the charge in Case No. 8-CA-60354 and that it would be withdrawn if the Respondent agreed to the proposed settlement. The proposed offer of proof further indicated that the Respondent told another representative of the Regional Office of this history when the Respondent was served with the charge in Case No. 8-CA-70003, that the representative of Region VIII advised the Respondent that the 7116(a)(2) and (4) elements of the charge in Case No. 8-CA-60354 had been withdrawn by the Union, and that the Region would send the Respondent the paperwork certifying the withdrawal. The withdrawal notice was dated in January, 1987, several months after the date of the charge in Case No. 8-CA-70003.

The Judge rejected the offer of proof on the basis of National Labor Relations Board (NLRB) precedent to the effect that the NLRB will give no weight to correspondence between its agents and representatives of the parties made during the course of settlement attempts. The Judge agreed to take the Motion to Dismiss under advisement.

In his written decision, the Judge rejected the Respondent's Motion to Dismiss. The essence of the Judge's decision was that, while the charges in Case Nos. 8-CA-60354 and 8-CA-70003 are similar insofar as they allege violations regarding the lowering of Wyman's appraisal, those elements of the charge in Case No. 8-CA-60354 were withdrawn and were not made part of the settlement agreement in that case. The Judge's conclusion is based on the documentary record. The Judge rejected the Respondent's attempt to demonstrate that conversations between representatives of Region 8 and the Respondent led the Respondent to conclude that those portions of the charge in Case No. 8-CA-60354 involving the lowering of Wyman's appraisal were dismissed as part of the settlement agreement. The Judge cited Lexington Telephone, 39 NLRB 1130, for the proposition that compromise on settlement negotiations antedating issuance of complaint long have been held to have no probative value as evidence of guilt or liability. Therefore, the Judge concluded that the Union was free to renew the issue of Wyman's allegedly lowered evaluation with its charge in Case No. 8-CA-70003 and the General Counsel was free to issue the complaint in this case regarding the lowering of Wyman's appraisal, as the matter had not been previously litigated.

The Judge noted that the oral statement made by a supervisor which was the basis of the 7116(a)(1) settlement in Case No. 8-CA-60354 is not the basis for the complaint in the present Case No. 8-CA-70003. The Judge concluded that there is no foundation for the Respondent's contention that the present case impermissibly seeks to relitigate the previous case or that the present complaint involves a claim that the Respondent breached the settlement agreement in Case No. 8-CA-60354. Therefore, the Judge denied the Respondent's Motion to Dismiss.

3. Analysis and Decision on the Motion to Dismiss

We will grant the Motion to Dismiss insofar as it seeks the dismissal of those portions of the complaint in Case No. 8-CA-70003 which were part of the prior complaint in Case No. 8-CA-60354. Thus, we shall dismiss the 7116(a)(1) and (2) portions of the complaint in Case No. 8-CA-70003 which allege that steward Wyman's April 1986 rating on his evaluation was lowered because of his involvement in Union representational activities.

The charges in Case Nos. 8-CA-60354 and 8-CA-70003 are similar in that they both allege that the Respondent engaged in unfair labor practices by retaliating against Wyman for his Union representational activities by lowering his April 28, 1986, rating on his evaluation. While a party may refile charges which were timely withdrawn, in this case the General Counsel failed to provide the Respondent with timely, effective notice of the withdrawal of the 7116(a)(2), (4) and (8) portions of the charge in Case No. 8-CA-60354.

When the Respondent was notified of the charge in Case No. 8-CA-70003, which was filed on October 3, 1986, it could have reasonably believed that the 7116(a)(1) and (2) allegations regarding the lowering of Wyman's rating had just been settled by the September 15, 1986, settlement agreement in Case No. 8-CA-60354. Nothing in the settlement agreement or the cover letter sent with it indicated that the settlement was meant to be a partial settlement. While the Union may have sought to withdraw the 7116(a)(1), (2) and (4) elements of the charge in Case No. 8-CA-60354 prior to the settlement agreement in that case, there is no evidence in the record that the Respondent was advised of the withdrawal prior to the approval of the settlement agreement or prior to the filing of the new charges in Case No. 8-CA-70003.

The Authority's Rules and Regulations give the authority for approving withdrawal requests (§ 2423.9(a)(1)) and for approving pre-complaint settlement agreements (§ 2423.11(b)(1)) to the Regional Director. However, nothing in the record indicates that Respondent was advised that the settlement agreement was to be limited to the 7116(a)(1) allegations in Case No. 8-CA-60354. Instead, the record reflects that the Respondent did not receive notice of the Union's withdrawal of the 7116(a)(2), (4) and (8) aspects of the complaint in Case No. 8-CA-60354 until January 5, 1987, some 3 months after the filing of the new charges in Case No. 8-CA-70003.

Without effective notice of the fact that the settlement agreement was only intended to encompass the 7116(a)(1) aspects of the charge in Case No. 8-CA-60354, and without timely, effective notice of the withdrawal of certain aspects of the complaint in that case, the Respondent should not be required to bear the burden of defending itself against charges which it reasonably believed already had been settled. Therefore, we shall grant the Respondent's Motion to Dismiss those portions of the complaint in Case No. 8-CA-70003 which attempt to relitigate matters dealt with in Case No. 8-CA-60354, and we shall not deal with the merits of those allegations in this decision.

However, the portion of the complaint in Case No. 8-CA-70003 which alleges that the September 23, 1986, memorandum interfered with employee's rights in violation of section 7116(a)(1) of the Statute, deals with matters which were not previously litigated and therefore those aspects of the complaint are properly before us in this case. Therefore, we shall deny the Motion to Dismiss insofar as it seeks the dismissal of the 7116(a)(1) allegation that the Respondent's September 23, 1986, memorandum improperly interfered with employees' rights and we shall render a decision on the merits of that portion of the complaint.

C. Decision Regarding the Remaining Section 7116(a)(1) Allegation in Case No. 8-CA-70003

1. Administrative Law Judge's Decision

The Judge concluded that the September 23, 1986, memorandum from Contreras to Wyman explicitly linked chances for future improved performance appraisals to Wyman's level of protected activity and that it constituted an independent violation of section 7116(a)(1) of the Statute. The Judge found that the memorandum informed Wyman that there were occasions when Union business conflicted with his job requirements. The Judge found that the "clear import" of the memorandum was that Wyman could only be proficient through attendance on the job, even if that precluded his participation in Union activities on official time. Judge's Decision at 11.

2. Positions of the Parties

a. Respondent

The Respondent excepts to many of the credibility findings made by the Judge, especially those involving Wyman's testimony. The Respondent contends that a clear preponderance of all the relevant evidence demonstrates that the credibility determinations in this case are not correct.

The Respondent's primary argument is that the September 23, 1986, memorandum, which is the basis of the Judge's unfair labor practice finding, is ambiguous on its face. Therefore, the Respondent argues that all of the surrounding circumstances must be evaluated in interpreting the memorandum. The Respondent points out that the September 23 memorandum requires attendance not only at formal drills but "continuous equipment familiarization and exposure to daily work routines," even though the parties' original disagreements were over how often Wyman missed formal drills. Respondent's Exceptions at 22, citing General Counsel's Exhibit No. 4. The Respondent also points out that the April 28, 1986, statement made by Contreras to Wyman (the basis for the settlement agreement in Case No. 8-CA-60354) occurred some 5 months before the September 23 memorandum--the basis of the complaint in this case. Therefore, the Respondent concludes that the Judge incorrectly viewed the April 28 statement as influencing the September 23 memorandum.

b. General Counsel

The General Counsel urges adoption of the Judge's finding of a violation of section 7116(a)(1) of the Statute, arguing that an employee can draw a logical inference from the September 23 memorandum, that only by foregoing Union representational activities can the employee receive higher than satisfactory ratings.

3. Analysis

Contrary to the Judge, we conclude that the General Counsel failed to establish that the September 23, 1986, memorandum to Wyman impermissibly linked a firefighter's obligation to be available for training with his right to perform Union representational activities in violation of section 7116(a)(1) of the Statute. Therefore, we shall order that the remaining portion of the complaint in Case No. 8-CA-70003 be dismissed.

Statements made by management which could reasonably be foreseen to interfere with, restrain or coerce employees from exercising their rights under the Statute violate section 7116(a)(1) of the Statute. See Department of Health and Human Services, Social Security Administration, Baltimore Maryland, 22 FLRA 91 (1986); United States Treasury Department, Bureau of Engraving and Printing, 19 FLRA 366 (1985); and United States Air Force, Lowry Air Force Base, Denver, Colorado, 16 FLRA 952 (1984).

In determining whether statements made by management to employees constitute an infringement of section 7116(a)(1) of the Statue, the test is whether, under the circumstances, the statements tend to coerce or intimidate employees. Statements made by managerial personnel will be deemed coercive if, despite the intent of the employer, the individual employee could reasonably infer coercion. Objective, rather than subjective, standards must be the guidelines in making such determination. Bureau of Engraving and Printing, 28 FLRA 796 (1987).

The Judge concluded that the "clear import" of the Respondent's September 23, 1986, memorandum was that a firefighter could only be proficient through attendance on the job, thereby precluding an employee's participation in representational activities. The Judge further found that the "clear inference" of the memorandum was that protected activity could be a "'negative factor'" in an employee's rating on his evaluation and that engaging in representational activities would affect how an employee is rated. Judge's Decision at 11.

We disagree. In our view, the wording of the September 23, 1986, memorandum is too ambiguous to lead to the conclusions reached by the Judge. We are not unmindful of the context in which this memorandum was sent. When Wyman received his evaluation in April, 1986, his supervisor, Contreras, made comments which linked Wyman's evaluation with his use of official time for representational activities which are protected by section 7102 of the Statute. Contreras' remarks at that time were the subject of the settlement agreement in Case No. 8-CA-60354.

Because of what he considered to be a "substandard" performance appraisal, Wyman sought a list of dates and times when he missed training due to his use of official time. Transcript, 70-72. The Respondent's September 23, 1986, response listed seven "[d]ates/time of union business that conflicted with formal drills, continuous equipment familiarization and exposure to daily work routines (all three are required to insure proficiency through attendance on the job in the fire house, on the trucks and at industrial sites)." General Counsel's Exhibit No. 4.

We conclude that nothing in the September 23 memorandum, even considering the total circumstances of this case, leads to the inference made by the complaint "that employees who exercise their statutory right to engage in protected activity on behalf of the Union will suffer a lower annual performance appraisal as a result of engaging in such protected Union activity." General Counsel's Exhibit No. 1(c) at 4. The September 23 memorandum, in response to Wyman's request, lists the dates on which Wyman was unavailable for training because he was engaged in representational activities. When Wyman was asked at the hearing if he had any particular reaction to the September 23 memorandum, his only reply was that it did not supply him with all the detailed information (logbooks, etc.) which he had originally sought. Transcript, 34. If Wyman did not view the wording of the memorandum as threatening, we find that it is reasonable to conclude that other similarly situated employees would not view it as threatening.

D. Conclusion

We have concluded that the Respondent's Motion to Dismiss the Complaint should be granted insofar as it deals with the allegation in the complaint that the Respondent violated section 7116(a)(1) and (2) of the Statute by lowering the rating on Wyman's April 1986 evaluation. We have further concluded that the General Counsel failed to establish that the Respondent violated section 7116(a)(1) of the Statute by virtue of its September 23, 1986 memorandum. Therefore, we shall order that the entire complaint in Case No. 8-CA-70003 be dismissed.

IV. Case No. 8-CA-70048

A. Background

This case involves events which occurred on October 17, 1986. The Judge credits Wyman's testimony regarding the disputed timing of these matters. Wyman had been told on the previous day by employee Noxon that Noxon was having difficulties with mandatory overtime assignments. Wyman reported for work and was granted official time to interview Noxon's supervisor, Captain Carmichael, by Acting Captain Dennis. When Wyman reported to another fire station to interview Carmichael, Carmichael raised questions about Wyman's official time status. Wyman returned to his home fire station and again was granted official time status by Dennis, who then called Carmichael to confirm Wyman's status.

While Wyman was interviewing Carmichael that afternoon, Carmichael's superior, Assistant Fire Chief Harris, entered the room and questioned Wyman as to his reason for being there. When Wyman explained that he was investigating an employee complaint, Harris insisted on knowing the name of the employee. When Wyman refused to tell him the name of the employee whose complaint he was investigating, Harris ordered Wyman back to his regular duty station. Harris indicated that the parties' negotiated agreement only provides official time for the investigation of complaints which are specifically identified. The record indicates that the affected employee, Noxon, had apparently informally resolved his complaint prior to Wyman's interview, but did not inform Wyman of this resolution.

B. Administrative Law Judge's Decision

The Judge concluded that Harris' interruption of the grievance investigation meeting being conducted by Wyman, which had been previously authorized by Dennis, and his ordering Wyman to return to his post of duty because the Union representative would not disclose the name of the employee grievant, violated section 7116(a)(1) of the Statute.

The Judge concluded that Article 8, Section 3(a) of the parties' Master Labor Agreement provides for official time for the investigation of specifically identified complaints of employees with respect to matters covered by the agreement. The Judge found that Wyman was investigating a complaint from employee Noxon and that Wyman had been granted official time by his supervisor Dennis in order to investigate the complaint. Therefore, according to the Judge, Wyman was acting in conformance with the contract.

The Judge rejected the Respondent's assertion that the case involved a matter of contract interpretation. He concluded that the record was devoid of any bargaining history suggesting that the Union had waived its right to investigate grievances or that management had the unilateral right to determine when and where meetings with Union representatives are to take place.

C. Positions of the Parties

1. Respondent

The Respondent excepts to the credibility findings made by the Judge in this case, contending that a clear preponderance of all the relevant evidence demonstrates that the credibility determinations made by the Judge are not correct.

The Respondent contends that the Judge's conclusion that Wyman had a right to continue his investigation is based either on a faulty conclusion that a union steward has a statutory right to official time to investigate employee complaints or on a faulty interpretation of the official time and grievance sections of the parties' agreement.

While the Respondent agrees that section 7102 encompasses the right of an employee acting as a Union representative to investigate a grievance, the Respondent contends that neither section 7102 nor section 7131 of the Statute provides for official time for such an investigation. Section 7131(d) provides for the negotiation of official time for representational purposes and the Respondent contends that the proper use of such official time pursuant to the parties' negotiated agreement is a matter to be resolved by the grievance/arbitration procedures of their agreement.

The Respondent concludes that the parties' negotiated agreement gives Harris the prerogative of questioning a steward as to the identity of the employee for whom the steward is conducting an investigation and that a steward's failure to provide that information is an adequate basis for cancelling official time previously granted pursuant to the agreement. The Respondent further argues that because Harris' termination of Wyman's investigation was based on an arguable interpretation of the parties' contract, such an action does not interfere with Wyman's section 7102 right to investigate a complaint.

2. The General Counsel

In urging adoption of the Judge's finding that the Respondent violated section 7116(a)(1) by its actions in Case No. 8-CA-70048, the General Counsel emphasizes that Wyman had received prior approval for his investigation from both Dennis and Carmichael.

D. Analysis

We find that the underlying dispute in this case involves differing and arguable interpretations of the parties' collective bargaining agreement. Therefore, we conclude that Harris did not act in violation of section 7116(a)(1) of the Statute.

The Judge, at page 12 of his decision, noted that Harris testified that he returned Wyman to his worksite because Article 8, Section (3)(a) of the parties' negotiated agreement allows official time to discuss and investigate only specifically identified complaints of employees with respect to matters covered by the agreement. The Judge then concluded that the grievance/complaint in the matter being investigated was specifically identified. In so doing, he interpreted the phrase "specifically identified" in the parties' negotiated agreement. He concluded that the complaint being investigated by Wyman was "specifically identified" to the appropriate management officials because the record is clear that Wyman was investigating Noxon's complaint and because Wyman had been granted official time to conduct his investigation by his supervisor, Dennis.

The Respondent maintains that the phrase "specifically identified" allows a manager to require that a Union representative identify not only the nature of the complaint being investigated but also the identity of the employee on whose behalf the investigation is being conducted. The Judge rejected this argument by stating that the record is devoid of any bargaining history suggesting that the Union waived its right to investigate grievances or that management alone determines when and where meetings with Union representatives are to take place. The Judge's conclusion, however, is not responsive to the Respondent's argument. The Respondent is not arguing that the Union waived its right to investigate grievances or that the agreement gives management the sole right to determine when and where investigatory meetings will take place. The Respondent contends that the agreement allows managers to question the purpose of an investigatory interview, and more specifically, the name of the employee on whose behalf an investigation is being conducted.

We conclude that the essence of the dispute in this case involves differing and arguable interpretations of the parties' negotiated agreement. We find that both parties have raised plausible arguments concerning the wording of Article 8, Section 3(a) of the agreement. An alleged unfair labor practice which involves differing and arguable interpretations of a collective bargaining agreement is not appropriate for resolution under unfair labor practice procedures. See, for example, 22nd Combat Support Group (SAC), March Air Force Base, California, 30 FLRA 331, 334 (1987). In such cases, the aggrieved party's remedy is through the negotiated grievance procedures of the agreement rather than through the Authority's unfair labor practice procedures.

Accordingly, we conclude that the complaint in Case No. 8-CA-70048 should be dismissed in its entirety as the Respondent's interruption of Wyman's investigatory interview on October 17, 1986 did not violate sectio