Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma (Respondent) and Local 916, American Federation of Government Employees, AFL-CIO (Complainant)
[ v02 p126 ]
02:0126(13)CA
The decision of the Authority follows:
2 FLRA No. 13
DEPARTMENT OF THE AIR FORCE,
OKLAHOMA CITY AIR LOGISTICS CENTER,
TINKER AIR FORCE BASE, OKLAHOMA
Respondent
and
LOCAL 916, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Complainant
Assistant Secretary
Case No. 63-8033(CA)
DECISION AND ORDER
ON MAY 7, 1979, ADMINISTRATIVE LAW JUDGE STEVEN E. HALPERN ISSUED HIS
RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED
IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, AND
NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 63-8033(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., NOVEMBER 29, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CLAUDE V. SUMNER
ATTORNEY AT LAW
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 916
4444 SOUTH DOUGLAS BOULEVARD
OKLAHOMA CITY, OKLAHOMA 73140
FOR THE COMPLAINANT
MAJOR WILLIAM CREGAR
U.S. AIR FORCE CENTRAL LAW OFFICE
RANDOLPH AIR FORCE BASE
SAN ANTONIO, TEXAS 78148
FOR THE RESPONDENT
BEFORE: STEVEN E. HALPERN
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
PROCEDURAL HISTORY
THIS PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED, WAS
INITIATED BY COMPLAINT FILED DECEMBER 20, 1977. NOTICE OF HEARING WAS
INITIALLY ISSUED ON SEPTEMBER 27, 1978, BY THE REGIONAL ADMINISTRATOR OF
THE UNITED STATES DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES
ADMINISTRATION, KANSAS CITY REGION. THE REGIONAL ADMINISTRATOR
PREVIOUSLY HAVING DISMISSED THE COMPLAINT, SAID NOTICE WAS ISSUED
PURSUANT TO AN AUGUST 22, 1978, REMAND BY THE ASSISTANT SECRETARY, ON
APPEAL FROM THE DISMISSAL, BASED UPON HIS FINDING THAT:
CONTRARY TO THE REGIONAL ADMINISTRATOR, I FIND THAT A REASONABLE
BASIS FOR THE INSTANT
COMPLAINT, WHICH ALLEGES THAT THE RESPONDENT UNILATERALLY CHANGED A
PAST PRACTICE AND, BY SUCH
CONDUCT, DISCRIMINATED AGAINST AN EMPLOYEE BECAUSE OF HIS UNION
AND/OR OTHER PROTECTED
ACTIVITY, HAS BEEN ESTABLISHED.
PURSUANT TO A RESCHEDULING NOTICE A HEARING WAS HELD AT OKLAHOMA
CITY, OKLAHOMA, ON JANUARY 10-11, 1979, AS TO THE ALLEGED VIOLATIONS OF
SECTION 19(A)(1)(2)(4) AND (6) OF THE ORDER.
THE PARTIES HAVE BEEN AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
ADDUCE EVIDENCE, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO MAKE ORAL
ARGUMENT AND TO FILE BRIEFS. /2/ BASED UPON THE EVIDENCE OF RECORD,
HAVING OBSERVED THE WITNESSES AND ASSESSED THEIR CREDIBILITY AND HAVING
CONSIDERED THE ARGUMENTS OF THE PARTIES, I MAKE THE WITHIN:
FINDINGS AND CONCLUSIONS
MOTION TO DISMISS
RESPONDENT HAS MOVED TO DISMISS THE INSTANT ACTION ON THE GROUND THAT
THE ISSUES PRESENTED HERE HAVE BEEN LITIGATED IN A GRIEVANCE PROCEEDING
AND THEREFORE THERE IS PRESENT A SECTION 19(D) BAR. HOWEVER, THE RECORD
DISCLOSES THAT THE ARBITRATOR, BEFORE WHOM WAS A GRIEVANCE BASED UPON AN
INCIDENT SUBSEQUENT TO THE ONCE HERE AT ISSUE, EXCLUDED COMPLAINANT'S
PROOFS AS TO THE CIRCUMSTANCES OF THE PRIOR OCTOBER 1977 INCIDENT WHICH
IS THE SUBJECT MATTER OF THE CASE NOW BEFORE ME. COMPLAINANT'S PETITION
FOR REVIEW OF THE ARBITRATOR'S DECISION WAS DENIED BY THE FEDERAL LABOR
RELATIONS COUNCIL ON DECEMBER 28, 1978, FLRC NO. 78A-113.
IT IS APPARENT THEREFORE THAT COMPLAINANT DID NOT HAVE THE
OPPORTUNITY IN THE GRIEVANCE PROCEEDING TO FULLY LITIGATE THE MATTERS
HERE AT ISSUE IN CONNECTION WITH THE NOW SUBJECT OCTOBER 1977 INCIDENT.
THE FOLLOWING STATEMENT WHICH APPEARS AT PAGE 4 OF THE AUGUST 1, 1978,
ARBITRATOR'S AWARD IS PERTINENT:
THIS CASE CONCERNS ONLY THE QUESTION OF WHETHER THE GRIEVANT SHOULD
BE PAID FOR THE ONE
HOUR THAT HE LEFT HIS DUTY STATION ON FEBRUARY 8, 1978, TO CONDUCT
PERSONAL BUSINESS. THAT
WAS THE ONLY ISSUE ADDRESSED IN THE FORMAL GRIEVANCE AND THE ONLY
ISSUE BEFORE THE
ARBITRATOR. ARTICLE XIII, SECTION D OF THE LABOR-MANAGEMENT
AGREEMENT LIMITS THE ARBITRATOR'S
AUTHORITY TO THE ISSUES RAISED IN THE FORMAL GRIEVANCE. THUS, THE
GRIEVANT'S ABSENCE ON
OCTOBER 28, 1977, (SIC) THE ISSUE OF BREAK TIME, THE GRIEVANT'S
REPRIMAND, AND THE ALLEGATIONS
OF REPRISAL ARE ALL BEYOND THE SCOPE OF THIS CASE.
IN LIGHT OF THE FOREGOING RESPONDENT'S MOTION TO DISMISS IS DENIED.
THE MERITS
AT ALL MATERIAL TIMES COMPLAINANT UNION WAS IN APPROPRIATE
REPRESENTATIVE STATUS.
IT IS NOT IN DISPUTE THAT MR. WAYNE SAIN, A STEWARD OF SAID UNION,
DEPARTED HIS DUTY STATION ON THE MORNING OF OCTOBER 27, 1977, WITHOUT
FIRST OBTAINING FROM HIS SUPERVISOR AN ADMINISTRATIVE PERMIT AND BEING
PLACED ON "OFFICIAL" TIME; AND, THAT HE WAS CHARGED WITH BEING ABSENT
WITHOUT OFFICIAL LEAVE ("AWOL") FOR 15 MINUTES. I FIND THE
PREPONDERANCE OF THE EVIDENCE TO DISCLOSE THAT HE DID NOT RETURN TO HIS
DUTY STATION FOR IN EXCESS OF 15 MINUTES; INDEED, ALTHOUGH THE EVIDENCE
IS LESS THAN CONCLUSIVE AS TO THE PRECISE AMOUNT OF TIME HE WAS ABSENT
IT WOULD NOT BE UNREASONABLE TO FIND THAT SUCH WAS FOR A SUBSTANTIALLY
LONGER PERIOD.
IT IS AGREED BY THE PARTIES, AND IN ANY EVENT I FIND, THAT IN
PRACTICE THE CONTROLLING COLLECTIVE BARGAINING AGREEMENT (ARTICLE XI
SECTION C) /3/ REQUIRES A UNION STEWARD ACTING ON A UNION MATTER DURING
DUTY HOURS TO DO SO ONLY WITH PRIOR MANAGERIAL APPROVAL OF "OFFICIAL"
TIME AND HAVING BEEN ISSUED AN ADMINISTRATIVE PERMIT.
IT IS UNDISPUTED THAT MR. SAIN'S ACTIVITIES DURING HIS ABSENCE FROM
DUTY WERE IN AN EFFORT TO OBTAIN A DOCUMENT NEEDED IN CONNECTION WITH A
PRIOR PENDING ULP. WHETHER OR NOT HE WAS THEN ENGAGED IN A UNION
ACTIVITY IS CONTESTED AND I HAVE FOUND HEREIN THAT HE WAS.
UNION EXHIBIT 3, RECEIVED PURSUANT TO A POST-TRIAL MOTION,
CONSTITUTES EVIDENCE THAT THE PRIOR ULP IN CONNECTION WITH WHICH MR.
SAIN SOUGHT TO OBTAIN SUCH DOCUMENT WAS A DIFFERENT ULP THAN THAT
TESTIFIED TO BY HIM AT THE HEARING. I SHALL DISCUSS COMPLAINANT'S
CONTENTIONS IN RELATION TO BOTH PRIOR ULP'S; HOWEVER, IN SO DOING, I
NOTE PRELIMINARILY THAT THERE APPARENTLY WERE FOUR ADDITIONAL ULP'S THEN
PENDING IN WHICH MR. SAIN WAS INVOLVED; AND, WHICH ONE HE IN FACT WAS
PURSUING AT THE TIME IN ISSUE REMAINS LESS THAN CERTAIN.
A. THE PRIOR ULP AS TESTIFIED BY MR. SAIN AT THE HEARING
THE FOLLOWING EXCERPT FROM THE UNION'S AUGUST 26, 1977, LETTER SIGNED
BY ITS PRESIDENT, SETS FORTH THE CHARGE INVOLVED IN SAID PRIOR ULP:
THIS LETTER CONSTITUTES THE FILING OF AN UNFAIR LABOR PRACTICE CHARGE
AGAINST MANAGEMENT OF
TINKER AIR FORCE BASE BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 916.
. . . .
AFGE LOCAL 916 HEREBY CHARGES THAT MANAGEMENT HAS VIOLATED SECTION
19(A)(1) OF THE
EXECUTIVE ORDER BY NOT ALLOWING PROPER RELEASE OF STEWARD(S) FOR THE
PURPOSE OF EMPLOYEE
REPRESENTATION AS OUTLINED IN THE LABOR MANAGEMENT AGREEMENT, ARTICLE
XI, SECTION F. ON 13
JULY 1977 AND AGAIN ON 18 AUGUST1977, MR. BRITT WAS NOTIFIED BY
VARIOUS SUPERVISORS THAT THEIR
EMPLOYEES REQUESTED A UNION REPRESENTATIVE (MR. WAYNE SAIN). ON BOTH
OCCASIONS, MR. BRITT
DENIED THE RELEASE OF THE UNION REPRESENTATIVE.
THE UNION CHARGES MR. BRITT IS INTENTIONALLY DELAYING THE PROCESSING
OF GRIEVANCES,
THEREFORE INTERFERING WITH THE RIGHTS OF THE EMPLOYEES ATTEMPTING TO
UTILIZE THEIR NEGOTIATED
GRIEVANCE PROCEDURE.
IT IS THE CIRCUMSTANCE THAT MR. SAIN WAS THE UNION REPRESENTATIVE
INVOLVED IN THE SAID PRIOR ULP THAT GIVES RISE TO COMPLAINANT'S
CONTENTION THAT, AT THE TIME IN QUESTION, HE WAS ACTING ON PERSONAL
RATHER THAN UNION BUSINESS AND THAT SUCH BUSINESS WAS PROPERLY CONDUCTED
WITHIN THE ALLOWABLE TIME OF HIS DISCRETIONARY "BREAK" PERIOD AND
WITHOUT SUPERVISORY APPROVAL OF OFFICIAL TIME AND THE ISSUANCE OF AN
ADMINISTRATIVE PERMIT.
I CANNOT ACCEPT COMPLAINANT'S PREMISE. THE INTEREST OF THE UNION QUA
UNION IN OBTAINING A DOCUMENT DEEMED NECESSARY TO A SUCCESSFUL
PROSECUTION OF SAID ULP IS PATENT AND REQUIRES NO ELABORATION. WHILE
MR. SAIN MAY HAVE HAD AN INTEREST IN SAID MATTER SINCE HE WAS THE
STEWARD NAMED THEREIN, SUCH INTEREST WAS NOT PERSONAL TO HIM AS AN
INDIVIDUAL BUT RATHER TO HIM IN HIS OFFICIAL UNION CAPACITY AND
THEREFORE WAS NOT PERSONAL BUSINESS OF THE NATURE ARGUED BY COMPLAINANT.
ALTHOUGH THE CHIEF STEWARD WAS HANDLING SAID ULP, MR. SAIN'S
ACTIVITIES IN CONNECTION WITH OBTAINING THE DOCUMENT DEEMED NECESSARY TO
ITS PROSECUTION WERE AUTHORIZED BY HIM AND WERE ON BEHALF OF THE UNION
TO NO LESSER EXTENT THAT IF THE CHIEF STEWARD HAD SO ACTED RATHER THAN
MR. SAIN IN HIS STEAD. IT CAN HARDLY BE ARGUED THAT THE CHIEF STEWARD
WOULD HAVE BEEN ACTING ON MR. SAIN'S PERSONAL BUSINESS RATHER THAN ON
UNION BUSINESS HAD HE, RATHER THAN MR. SAIN, ATTEMPTED TO OBTAIN THE
DOCUMENT SOUGHT BY SAIN DURING HIS ABSENCE FROM DUTY.
AT BEST, MR. SAIN AT THE TIME IN QUESTION WAS ENGAGED IN A MIXED
PERSONAL AND UNION ENDEAVOR. THE ARGUABLE PERSONAL ASPECT OF SUCH DUAL
INTEREST IN NO WAY SERVES TO NEGATE THE UNION PURPOSE SERVED AND SAIN'S
ACTIVITY, EVEN VIEWED IN THIS LIGHT, REMAINS WITHIN THE AMBIT OF UNION
ACTIVITY.
AS AFORESAID, UNDER THE TERMS OF THE CONTROLLING COLLECTIVE
BARGAINING AGREEMENT, AS INTERPRETED AND PRACTICED BY THE PARTIES, IT IS
UNDISPUTED THAT A STEWARD IS REQUIRED TO OBTAIN AN ADMINISTRATIVE PERMIT
AND BE PLACED ON OFFICIAL TIME WHEN PERFORMING UNION BUSINESS DURING
DUTY HOURS. AND, THE PARTIES ARE IN AGREEMENT /4/ THAT A STEWARD MAY
NOT ENGAGE IN UNION BUSINESS DURING A DISCRETIONARY PERSONAL "BREAK"
PERIOD WITHOUT COMPLYING WITH THE AGREEMENT'S AFORESAID TERMS. THIS IS
SO BECAUSE A "BREAK" (AS OPPOSED, FOR EXAMPLE, TO A NON-PAID LUNCH
PERIOD) IS PAID TIME.
FURTHERMORE, MS. SAIN, ACCORDING TO HIS WRITTEN STATEMENT OF MARCH 2,
1978 (R-7), /5/ UNDERSTOOD THE APPROPRIATE TIME FOR SUCH "BREAK" TO BE
10 MINUTES. WHILE THERE IS SOME CONFLICTING TESTIMONY THAT THE
ALLOWABLE TIME FOR A BREAK IS AS MUCH AS 15 MINUTES, SINCE MR. SAIN IS
THE INDIVIDUAL DIRECTLY INVOLVED I SHALL BIND HIM BY THAT STATEMENT AND
FOR THE PURPOSES OF THIS CASE FIND THE ALLOWABLE PERIOD OF TIME FOR
ABSENCE FROM HIS DUTY STATION ON A DISCRETIONARY "BREAK" PERIOD, AS
ESTABLISHED BY PAST PRACTICE, TO HAVE BEEN 10 MINUTES. THUS, EVEN
ASSUMING ARGUENDO THE MERIT OF COMPLAINANT'S PERSONAL BUSINESS THEORY
(WHICH I REJECT), MR. SAIN, BASED UPON MY PRIOR FINDING OF AN ABSENCE IN
EXCESS OF 15 MINUTES, WOULD HAVE EXCEEDED THE ALLOWABLE "BREAK" TIME AND
BEEN ABSENT FROM HIS DUTY STATION WITHOUT OFFICIAL LEAVE AT THE TIME IN
QUESTION. /6/
B. THE PRIOR ULP AS REPRESENTED BY MR. SAIN POST-HEARING IN EXHIBIT
U-3
AS TO THE PRIOR ULP IN CONNECTION WITH WHICH, BY U-3, COMPLAINANT
CONTENDS MR. SAIN WAS ATTEMPTING TO OBTAIN A NECESSARY DOCUMENT AT THE
TIME HERE IN ISSUE I NOTE THE FOLLOWING: AT A JULY 28, 1977, MEETING
WITH MANAGEMENT IN AN ATTEMPT TO INFORMALLY RESOLVE SAID PRIOR ULP MR.
SAIN APPEARED AS "DESIGNEE FOR THE PRESIDENT AFGE LOCAL 916" (U-3,
ATTACHMENT I B). THUS, TO WHATEVER EXTENT HE MAY HAVE BEEN PERSONALLY
CONCERNED HE WAS ALSO THEN ACTING ON BEHALF OF THE UNION. TO NO LESSER
EXTENT WAS HE ACTING ON BEHALF OF THE UNION AT THE TIME IN QUESTION
HEREIN; AND, I SO FIND. THE DISCUSSION SET FORTH IN A. HEREINABOVE
THEREFORE REMAINS APPLICABLE EVEN IF THE PRIOR ULP WERE THE ONE
PRESENTLY CONTENDED BY COMPLAINANT.
I MUST FURTHER AGAIN COMMENT THAT UPON THE PRESENT CONTRADICTORY
STATE OF THE RECORD IT IS QUESTIONABLE WHICH OF THE SIX PRIOR ULP'S MR.
SAIN IN FACT WAS PURSING AT THE TIME IN QUESTION AND WHICH DOCUMENT HE
WAS ATTEMPTING TO SECURE. WHILE I DO NOT SUGGEST THAT MR. SAIN HAS
DELIBERATELY GIVEN FALSE TESTIMONY I FIND THAT HIS TESTIMONY IN THAT
AREA OF MAJOR CONCERN REFLECTS A TENDENCY TO SPECULATE WHEN HE IS LESS
THAN REASONABLY CERTAIN; AND, IN MY OPINION, HIS OVERALL CREDIBILITY
HAS BEEN DIMINISHED.
HAVING DETERMINED THAT MR. SAIN WAS AWOL, A DETERMINATION WITH WITH I
AGREE UNDER THE CIRCUMSTANCES ABOVE DESCRIBED, RESPONDENT, ACTING
THROUGH SAIN'S SUPERVISOR, OFFERED TO PERMIT HIM TO AVOID AN AWOL CHARGE
BY SIGNING FOR ANNUAL LEAVE. MR. SAIN DECLINED THE OFFER WHEREUPON HE
WAS CHARGED WITH A 15-MINUTE AWOL, SAID AMOUNT BEING THE LEAST
ADMINISTRATIVELY CHARGEABLE; AND, ALTHOUGH FURTHER MEASURES OF A
DISCIPLINARY NATURE COULD HAVE BEEN TAKEN THEY WERE NOT. I FURTHER
CREDIT THE TESTIMONY OF HIS SUPERVISOR THAT MR. SAIN HAD BEEN CAUTIONED
IN THE PAST ABOUT ENGAGING IN UNION ACTIVITIES DURING DUTY HOURS WITHOUT
APPROPRIATE AUTHORIZATION.
THE COMPLAINT
UNDER THESE CIRCUMSTANCES COMPLAINANT HAS CHARGED THAT RESPONDENT
VIOLATED SECTION 19(A)(1), (2), (4), AND (6):
AGENCY MANAGEMENT VIOLATED SECTION 19(A)(2) OF THE EXECUTIVE ORDER
11491 THROUGH THE
DISCRIMINATING ACT OF WITHHOLDING PAY FROM AN EMPLOYEE BECAUSE OF HIS
ACTIVITIES AS A UNION
STEWARD OF LOCAL 916. AGENCY MANAGEMENT COMMITTED THIS CAPRICIOUS
AND VINDICTIVE ACT BY
DISCRIMINATELY CHARGING MR. SAIN 15 MINUTES AWOL FOR BEING AWAY FROM
HIS POST OF DUTY WITHOUT
AN ADMINISTRATIVE PERMIT.
SECTION 19(A)(4) WAS VIOLATED BY TAKING DISCIPLINARY ACTION AND
DISCRIMINATING AGAINST
MR. SAIN BECAUSE HE HAS FILED COMPLAINTS AGAINST MR. BRITT UNDER THE
ORDER. THIS
DISCRIMINATORY ACT WAS COMMITTED WHEN MR. SAIN WAS CHARGED WITH AWOL
FOR NOT HAVING AN
ADMINISTRATIVE PERMIT WHILE BEING AWAY FROM HIS POST OF DUTY. THE
PRACTICE OF REQUIRING
EMPLOYEES TO HAVE AN ADMINISTRATIVE PERMIT WITHIN MR. SAIN'S UNIT IS
NOT CONSISTENT BASEWIDE
OR WITHIN THE ACD DIVISION. THE UNION ALLEGES MR. SAIN WAS CHARGED
AWOL SOLELY BECAUSE OF HIS
FILING COMPLAINTS UNDER THE ORDER AND BECAUSE OF HIS UNION
ACTIVITIES.
SECTION 19(A)(6) WAS VIOLATED WHEN MR. BRITT IMPOSED THE REQUIREMENT
FOR MR. SAIN TO HAVE
AN ADMINISTRATIVE PERMIT WHEN BEING AWAY FROM HIS POST OF DUTY. THE
ESTABLISHED PROCEDURE IN
MR. SAIN'S AREA IS THE USE OF A "SIGN-OUT" BOARD WHEN BEING AWAY FROM
THE WORK AREA. THE
AGENCY HAS NEVER NEGOTIATED A REQUIREMENT TO COMPLETE AN
ADMINISTRATIVE PERMIT WHEN AN
EMPLOYEE IS AWAY FROM HIS POST OF DUTY. THE PRACTICE IS NOT
CONSISTENT THROUGHOUT THE AGENCY
REQUIRING EMPLOYEES TO OBTAIN AN ADMINISTRATIVE PERMIT PRIOR TO
LEAVING THEIR POST OF DUTY.
AS COMPLAINANT IN THIS MATTER THE UNION, OF COURSE, BEARS THE BURDEN
OF PROVING ITS CHARGES BY A PREPONDERANCE OF THE CREDIBLE EVIDENCE. AS
I HAVE ALREADY INDICATED I AM UNABLE TO PLACE ANY GREAT RELIANCE ON THE
TESTIMONY OF MR. SAIN, COMPLAINANT'S MAJOR WITNESS. IN THE FINAL
ANALYSIS, ALTHOUGH COMPLAINANT HAS SO SUGGESTED AND ARGUED, IT HAS
FACTUALLY ESTABLISHED NEITHER THAT THE AWOL ACTION TAKEN AGAINST MR.
SAIN WAS OCCASIONED BY HIS PRIOR ACTIVITIES IN CONNECTION WITH
COMPLAINTS FILED AGAINST MANAGEMENT, NOR BY HIS PAST (PROPER)
PARTICIPATION IN UNION ACTIVITIES, NOR THAT SUCH WAS OTHER THAN
CONSISTENT WITH THE TERMS OF THE PARTIES AGREEMENT AND WARRANTED UNDER
THE CIRCUMSTANCES.
TO THE EXTENT THAT COMPLAINANT'S CONTENTION THAT STEWARD SAIN WAS
SUBJECTED TO DISPARATE TREATMENT IS BASED UPON A COMPARISON BETWEEN THE
ESTABLISHED PRACTICE FOR THE RELEASE FROM DUTY OF NON-UNION STEWARD
EMPLOYEES, AS OPPOSED TO UNION STEWARDS ENGAGED IN UNION-RELATED
ACTIVITIES, IT IS MISPLACED AND SPURIOUS.
AS TO THE SIGN-OUT BOARD IT HAS NOT BEEN ESTABLISHED THAT ITS
FUNCTION WAS OTHER THAN FOR INFORMATIONAL PURPOSES SO AS TO ENABLE ANY
ABSENT EMPLOYEE (INCLUDING A STEWARD ENGAGED IN A UNION ACTIVITY) TO BE
LOCATED IF NECESSARY; SIGNING OUT THEREON DID NOT CONSTITUTE PRIOR
SUPERVISORY APPROVAL OF ABSENCE FROM DUTY. IN ANY CASE, THE PARTIES
NEGOTIATED AGREEMENT SUPERSEDED WHATEVER PRACTICE MAY THERETOFORE HAVE
EXISTED FOR THE RELEASE OF STEWARDS TO PURSUE UNION INTERESTS DURING
DUTY HOURS.
WHILE IT IS EVIDENT THAT LABOR-MANAGEMENT RELATIONS IN MR. SAIN'S
UNIT ARE NOT AT A HIGH WATER MARK AND THAT HIS RELATIONSHIP WITH HIS
SUPERVISOR IS STRAINED, IT HAS NOT BEEN ESTABLISHED BY A PREPONDERANCE
OF THE EVIDENCE THAT THE AWOL CHARGE WAS OTHER THAN WARRANTED AND
PROPER
UNDER THE CIRCUMSTANCES OR IN ANY MANNER WAS DISCRIMINATORY OR MOTIVATED
BY ANTI-UNION CONSIDERATIONS. FURTHERMORE, IF THE IMPOSITION OF THE
AWOL CHARGE WERE AN ILL MOTIVATED AND VINDICTIVE ACT, IT IS UNLIKELY
THAT MR. SAIN WOULD HAVE BEEN OFFERED THE OPTION TO AVOID IT.
I CONCLUDE THAT THE VIOLATIONS OF SECTION 19(A)(2)(4) AND (6) OF THE
ORDER ALLEGED HAVE NOT BEEN PROVEN.
CONCLUSIONARY SUMMARY
IN PRACTICE, THE GOVERNING COLLECTIVE BARGAINING AGREEMENT REQUIRES A
UNION STEWARD, WHO LEAVES HIS DUTY STATION DURING DUTY HOURS (INCLUDING
"BREAK" PERIODS) TO ENGAGE IN UNION CONNECTED ACTIVITY, (A) TO OBTAIN
FROM HIS SUPERVSIOR PRIOR AUTHORIZATION TO DO SO ON "OFFICIAL" TIME AND
(B) TO OBTAIN AN ADMINISTRATIVE PERMIT. STEWARD SAIN, WHOM I HAVE FOUND
TO HAVE BEEN ENGAGED IN A UNION CONNECTED MATTER AT THE TIME IN
QUESTION, DID NEITHER OF THESE THINGS PRIOR TO DEPARTING HIS DUTY
STATION. WHEN APPREHENDED, HE DECLINED RESPONDENT'S OFFER TO PERMIT HIM
TO SIGN FOR ANNUAL LEAVE AND THUS AVOID THE AWOL WITH WHICH HE WAS
PROPERLY CHARGEABLE; INSTEAD, HE HAS CHOSEN TO CAUSE TO BE INSTITUTED
THIS ULP ACTION, THE BASIC PREMISE OF WHICH IS THAT RESPONDENT COMMITTED
A DISCRIMINATORY ANTI-UNION ACT IN ASSIGNING THE AWOL.
TO WHATEVER EXTENT, MR. SAIN'S RELATIONSHIP WITH HIS SUPERVISOR AND
MANAGEMENT IN GENERAL, HAS BEEN SHOWN TO BE LESS THAN CORDIAL, IT HAS
NOT BEEN DEMONSTRATED BY A PREPONDERANCE OF THE CREDIBLE EVIDENCE IN
THIS CASE THAT HE WAS CHARGED AWOL FOR ANY REASON OTHER THAN THAT HE WAS
IN FACT AWOL.
THUS, HAVING CONCLUDED THAT COMPLAINANT HAS NOT ESTABLISHED SECTION
19(A)(2)(4) OR (6) VIOLATIONS AND HAVING FOUND THAT RESPONDENT'S ACTION
HEREIN RISES TO NO HIGHER LEVEL THAN PROPER ENFORCEMENT OF THE PARTIES'
NEGOTIATED AGREEMENT, I FIND THAT THERE HAS BEEN NO INTERFERENCE WITH,
RESTRAINT PR COERCION AS TO THE EXERCISE OF ANY RIGHTS ASSURED BY THE
RESTRAINT OR COERCION AS TO THE EXERCISE OF ANY RIGHTS ASSURED BY THE
IN VIEW OF THE FOREGOING I FIND IT UNNECESSARY TO ADDRESS ANY OF THE
OTHER ISSUES INTRODUCED INTO THIS MATTER.
ORDER
THE WITHIN COMPLAINT IS DISMISSED IN ITS ENTIRETY.
SO ORDERED, IN THE NAME OF THE FEDERAL LABOR RELATIONS AUTHORITY,
THIS 7TH DAY OF MAY, 1979, IN SAN FRANCISCO, CALIFORNIA.
STEVEN E. HALPERN
ADMINISTRATIVE LAW JUDGE
SEH:SCM
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ DUE TO A DELAY IN RECEIPT OF TRANSCRIPT THE PARTIES WERE GIVEN
UNTIL APRIL 13, 1979, TO POST THEIR BRIEFS. SUBSEQUENTLY, FURTHER
EVIDENCE AND COMMENTS WERE FILED TO SUPPLEMENT THE RECORD; THESE HAVE
BEEN DEALT WITH IN A SEPARATE ORDER. THE RECORD WAS FINALLY CLOSED ON
MAY 1, 1979.
/3/ "ADMINISTRATIVE PERMITS WILL BE UTILIZED FOR RELEASE OF STEWARDS
FROM THEIR OFFICIAL WORK ASSIGNMENTS OR LOCATIONS."
/4/ POST-HEARING CONFERENCE CONDUCTED TELEPHONICALLY APRIL 25, 1979.
/5/ ACCORDING TO SAID STATEMENT, MADE UNDER AFFIRMATION TO THE
INVESTIGATING COMPLIANCE OFFICER: "ON 27 OCTOBER 1977, AT APPROXIMATELY
0930 HOURS, I CHOSE TO USE MY TEN MINUTE MORNING BREAK TO CHECK ON SOME
MISSING PAPERWORK CONCERNING A PREVIOUS UNFAIR LABOR PRACTICE."
/6/ ALTHOUGH THERE IS SOME QUESTION AS TO WHETHER THE AWOL WAS
CHARGED FOR THE CORRECT 15-MINUTE SEQUENCE OF TIME ON SAID MORNING I
CONSIDER SUCH TO BE A BOOKKEEPING MATTER HAVING NO REAL SIGNIFICANCE OR
SUBSTANTIVE IMPACT UPON THE MERITS OF THIS CASE. I FURTHER NOTE THAT 15
MINUTES IS THE LEAST AMOUNT OF TIME ADMINISTRATIVELY CHARGEABLE FOR ANY
AWOL, EVEN ONE OF LESSER DURATION.