37:0003(1)CA - - Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, CA and IAM Lodge 739 - - 1990 FLRAdec CA - - v37 p3

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37:0003(1)CA
The decision of the Authority follows:


37 FLRA No. 1

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

NAVAL AVIATION DEPOT

NAVAL AIR STATION ALAMEDA

ALAMEDA, CALIFORNIA

(Respondent)

and

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, LODGE 739

(Charging Party/Union)

9-CA-90248

DECISION AND ORDER

September 6, 1990

Before Chairman McKee and Members Talkin and Armendariz.

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 filed by the General Counsel. The Respondent filed an opposition to the exceptions.

The complaint alleged that the Respondent violated 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing a change in the procedure for requesting emergency annual leave, which required unit employees, contrary to existing practice, to provide written documentation to support every emergency annual leave request. The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing a change in conditions of employment without giving the Union prior advance notice and an opportunity to bargain on the change. The Judge, however, rejected a claim that the Respondent's action to require documentation from a particular employee prior to the Respondent's implementation of the change in the procedure for requesting emergency annual leave was part and parcel of the change in conditions of employment. The General Counsel excepted to (1) the Judge's failure to find that the employee in question was the "first victim" of the Respondent's new policy; and (2) the Judge's recommended Order requiring that the Notice be signed by the "officer in charge of the Naval Aviation Depot, or his designee." General Counsel's Exceptions at 2 (emphasis in original).

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's Decision and the entire record, we adopt, as modified below, the Judge's findings, conclusions, and recommended Order.

II. Background

The facts, more fully set forth in the Judge's Decision, are summarized below.

On Friday, October 28, 1988, Ben Moss, a bargaining unit employee, reported to the Respondent, via telephone message, that he was having automobile problems and he would report to work as soon as his automobile was fixed. He further stated that in the event that he was unable to get his automobile fixed, he would report for scheduled overtime the next day.

The next day, Moss reported for his previously scheduled 8-hour-overtime shift. At the beginning of the shift, Moss asked his supervisor, Paul Monk, if he received Moss' telephone call. Monk replied that he had, and informed Moss that he was on AWOL (absent without leave) until he brought in proof that his car was disabled on October 28, 1988. Moss told Monk that he would bring in the receipt for the repairs to his automobile.

On October 31, Moss informed Monk that he was unable to find the receipt. Monk told Moss he would be on AWOL until he presented a receipt or other evidence which confirmed his emergency annual leave.

On November 3, 1988, Moss submitted a request for 8 hours of annual leave for October 28, 1988. Moss stated "'car trouble'" as the reason for requesting the annual leave. Judge's Decision at 4. Monk disapproved the request stating "'A.W.O.L., due to critical workload on A-3 A/L line. No proof.'" Id. Because Moss was placed on AWOL for October 28, he was credited with only 40 hours of work for the week. Consequently, Moss did not receive overtime payment for the work he performed on Saturday.

Under established policy and practice, when employees find it necessary to take unscheduled annual leave, "they are required to call a specified telephone number within the first 3 hours of their shift, and give their name, pay number, foreman's name, shop and reason for calling in. They must also specify the type leave requested, sick or annual and the time they expect to return to work." Id. at 3. When the employee returns to work, he/she is required to fill out a request for leave and submit it to the supervisor for approval. There is no requirement that employees provide documentary evidence of the reason for the absence when they submit a request for emergency annual leave. The immediate supervisor is responsible for approving or disapproving the leave request. Supervisors have the authority to require employees to provide proof of the reasons for the unscheduled absence in individual cases.

Prior to October 29, Moss was never asked by Monk to provide documentation for a request for emergency annual leave. Moss was not on any kind of leave restriction and had not been counselled regarding his leave usage. According to his leave record, Moss took 8 hours of emergency annual leave on March 10, March 13, April 5, and May 5, 1988. Moss also took 1 hour of emergency annual leave on August 24, and 8 hours of sick leave on August 30, 1988. G.C. Exh. No. 3.

On November 10, 1988, Monk held a regularly scheduled weekly shop meeting during which he announced to the employees that he was implementing a new leave policy. Monk told the employees that in the future they would be required to provide documentary or other evidence to support all requests for emergency annual leave or they would be placed on AWOL for the time they were absent from work.

The complaint in this case contended that Monk's action, at the November 10 meeting, constituted a unilateral change in the established procedure for requesting emergency annual leave in violation of section 7116(a)(1) and (5) of the Statute. The Respondent denied that Monk announced a new policy at the meeting. The Respondent contended that Monk's action was consistent with the parties' collective bargaining agreement and applicable regulation which give supervisors the discretion to request documentation for an emergency leave request any time they deem necessary.

III. The Administrative Law Judge's Decision

The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing a change in conditions of employment without giving the Union prior notice and an opportunity to bargain on the change.

The Judge, crediting the testimony of bargaining unit employees Moss and Hallford, concluded that Monk "did announce at the November 10, 1988 weekly shop meeting that all requests for emergency annual leave must be supported by documentary or other evidence or the employee requesting emergency annual leave would be given an AWOL for the time he was not at work." Id. at 7 (emphasis in original). The Judge further concluded that the announcement violated section 7116(a)(1) and (5) of the Statute because it changed an existing condition of employment by making "proof of the reasons for emergency leave mandatory in all cases." Id.

The Judge did not agree, however, with the General Counsel's contention that Monk's action in requesting documentation from Moss for his absence on October 28 was "part and parcel" of the change which Monk announced on November 10, 1988. Id. The Judge reasoned as Moss' emergency annual leave request occurred on a Friday payday, and Moss was scheduled for overtime the next day, a supervisor "might well be suspicious of the validity of Mr. Moss' request as he would be paid on the basis of 52 hours for only 40 hours of actual work." Id. In these circumstances, the Judge concluded that Monk's action was based on "the obligations imposed on him as a supervisor, namely to insure that the leave system was not abused and that sufficient employees always would be available to carry out the Agency's business." Id. Consequently, the Judge rejected the General Counsel's request that Moss be made whole for the overtime he lost because he was placed on AWOL on October 28, 1988.

IV. General Counsel's Exceptions

The General Counsel excepts to the Judge's failure to find that Moss was the "first victim" of the Respondent's new policy and to order a make whole remedy for Moss. General Counsel's Exceptions at 2. The General Counsel argues that the Judge erred in concluding that "a supervisor may well be suspicious of Moss' request." General Counsel's Brief in Support of Exceptions (General Counsel's Brief) at 3. The General Counsel argues that Monk had no reason to be suspicious of Moss' request for emergency annual leave because Moss had used only 1 hour of emergency annual leave in the 22 weeks prior to October 28. Further, the General Counsel notes that Moss "had not been counselled prior to being given AWOL for one day." Id. The General Counsel argues that the record supports the conclusion that Monk implemented the new "mandatory documentation policy" when he asked Moss to provide evidence to support his (Moss') October 28 request for emergency annual leave. Id. at 4. The General Counsel maintains that a make-whole remedy, which places Moss in the situation he would have been in if the improper action had not occurred, is necessary and appropriate to remedy the violation of the Statute.

The General Counsel also excepts to the Judge's recommended Order requiring that the Notice be signed by the "officer in charge of the Naval Aviation Depot, or his designee." General Counsel's Exceptions at 2 (emphasis in original). The General Counsel contends that the Notice should be signed by the Commander of the Naval Aviation Depot and that the "[u]se of a designee would diminish the effectiveness of the Notice." General Counsel's Brief at 4. The General Counsel maintains that "compliance issues relating to whether the designee was in fact a proper signatory could be raised, leading to additional investigation and possible litigation." Id.

V. Respondent's Opposition

The Respondent opposes a make-whole remedy for Moss. The Respondent argues that Monk did not implement a change in policy when he requested Moss to provide evidence to support his October 28 absence. The Respondent maintains that Monk was merely exercising his supervisory discretion under established policy to require employees "to provide documentation to support requests for emergency leave, particularly under suspicious circumstances." Respondent's Opposition at 2 (underscoring omitted).

The Respondent also asserts that "[a]n ALJ has the latitude to determine that a notice may be signed by the Commander, or a designee." Id. (underscoring omitted). According to the Respondent, "[s]erious violations with Command wide effect may well require the top official to sign the notices[,]" while "[t]echnical violations by line supervisors which have minimal effect may be remedied by the signature of a designee." Respondent's Brief in Support of its Opposition at 2.

VI. Analysis and Conclusions

It is undisputed that the Respondent violated section 7116(a)(1) and (5) on November 10, 1988, by unilaterally changing conditions of employment to require unit employees to submit documentary or other evidence supporting all requests for emergency annual leave.

There are two issues before us. The first is whether the Judge's recommended order should be modified to include a make-whole remedy for Moss. The second is whether the Judge's recommended order regarding the Notice to be posted by the Respondent should be modified to exclude the provision enabling it to be signed by a designee of the Commander of the Naval Aviation Depot. For the following reasons, we will modify the order to eliminate the "designee" provision. We conclude, however, that with respect to Moss, the General Counsel has not demonstrated that the Judge's recommended remedy should be modified.

It is clear that the requirement that Moss submit documentation supporting his request for emergency annual leave was imposed just prior to the November 10 announcement which the Respondent concedes violated the Statute. In our view, however, the timing of two incidents does not, by itself, support a conclusion that actual implementation of the unlawful change occurred before the November 10 meeting. We note three things.

First, there is no dispute that supervisors were entitled to request supporting documentation for requests for emergency annual leave in individual cases.(*) In fact, the General Counsel "agrees that Respondent does have the authority to request employees to justify a specific request for emergency annual leave." General Counsel's Brief at 2. The record discloses, in this regard, that on numerous occasions, prior to October 28, 1988, Respondent's supervisors, including Monk, requested employees to provide documentation supporting requests for emergency annual leave requests in various situations. Among those situations were those where: (1) the employee's verbal excuse did not sound feasible; (2) the employee's reasons were of questionable validity; (3) the employee's explanation was not reasonable or acceptable; (4) the employee appeared to be abusing leave; (5) the employee was a "leave abuser;" (6) the employee had been counselled regarding leave usage; and (7) the employee was on a letter of requirement. Transcript at 46, 58-59, 61-65, 67-69, 75-77, 80-82 and 84-85.

The General Counsel does not assert that the Respondent's acknowledged authority "to request employees to justify . . . specific request[s]" extended only to certain employees or certain requests. General Counsel's Brief at 2. The General Counsel appears to have argued to the Judge that the Respondent required documentation only from employees who had abused leave. The General Counsel does not, however, raise that argument in its exceptions. There is, therefore, no need to address the portion of the parties' collective bargaining agreement pertaining to requests for emergency annual leave or to determine whether, for example, that provision had been modified by past practice. Compare Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 36 FLRA No. 65 (1990) (agency may not change unilaterally a condition of employment established through past practice even if the condition differs from the parties' contractual agreement).

Second, it is clear that Moss had no record of leave abuse and had not been counselled about his leave usage. As the General Counsel does not contend that the Respondent could require documentation only from leave abusers, however, its assertions regarding Moss' patterns of leave usage are misplaced. Similarly, in view of Moss' leave usage and the record as a whole, we find no support for the Judge's finding that "a supervisor might well be suspicious of the validity of Mr. Moss' request[.]" Judge's Decision at 7. As there is no allegation that only employees who made "suspicious" requests could be required to submit documentation, that finding is not dispositive.

Finally, there is nothing in the record which establishes that Monk stated or indicated to Moss in any way that the requirement that Moss provide documentation supporting his request for emergency annual leave for October 28 applied to other employees or applied to future requests by Moss. That is, nothing in the record shows that Moss reasonably could have concluded from Monk's statements that the requirement that he (Moss) provide documentation reflected a change in the process by which requests for emergency annual leave were handled.

In short, there is nothing in this record to connect the requirement that Moss provide documentation with the Respondent's subsequent unlawful change other than the timing of the two events. In this situation, and in view of the parties' agreement that supervisors were authorized to request documentation in individual cases, we are unable to conclude that the requirement that Moss provide documentation constituted implementation of the unlawful change. Accordingly, we reject the General Counsel's request for a make-whole remedy for Moss.

As for the second issue before us, however, we agree with the General Counsel that the Judge's recommended Order requiring that the Notice be signed by the "officer in charge of the Aviation Depot or a designee," should be modified. The remedial purposes of the Statute are best effectuated if a Notice is signed by an official designated by the Authority rather than one determined by a respondent. See, for example, Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 1230 (1990) (Authority ordered that Notice be signed by the Commanding Officer of the Sacramento Air Logistics, rather than a "responsible official"); Army and Air Force Exchange Service, McClellan Base Exchange, McClellan Air Force Base, California, 35 FLRA 764 (1990) (Authority ordered that Notice be signed by the Exchange Manager of the McClellan Air Force Base, rather than by "an authorized representative"); U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky, 34 FLRA 247 (1990) (Authority ordered that the Notice be signed by the Commanding Officer of the Lexington-Blue Grass Army Depot, rather than by "a designee").

We reject the Respondent's contention that this case involves a "technical" violation of the Statute which may be remedied by the signature of a designee. In fact, in none of the cases cited by the Respondent in support of its assertions did the Authority provide for a notice to be signed by a designee. In these circumstances, we find that requiring the Commander of the Naval Aviation Depot to sign the Notice effectuates the remedial purposes of the Notice by signifying that the Respondent acknowledges its obligations under the Statute and intends to comply with those obligations. Accordingly, we will modify the Order to require that the Notice be signed by the Commander of the Naval Aviation Depot.

VII. Order

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Department of the Navy, Navy Aviation Depot, Naval Air Station Alameda, Alameda, California, shall:

1. Cease and desist from:

(a) Unilaterally instituting changes in the conditions of employment of employees exclusively represented by the International Association of Machinists and Aerospace Workers, Lodge 739, AFL-CIO, by requiring documentary evidence before approving all emergency annual leave requests, without first notifying the exclusive representative and affording it the opportunity to bargain on the change.

(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Rescind the requirement announced on November 10, 1988, that all requests for emergency annual leave be accompanied by documentation in support thereof in order to avoid an AWOL for such time off the clock.

(b) Prior to effectuating any changes in procedures utilized for approval of emergency annual leave, notify the International Association of Machinists and Aerospace Workers, Lodge 739, AFL-CIO, and, upon request, negotiate in good faith, to the extent consonant with law and regulation.

(c) Post at its Department of the Navy, Naval Aviation Depot, Naval Air station Alameda, Alameda, California facility, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander of the Naval Aviation Depot, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFF