Navy Public Works Center, Norfolk Naval Base (Respondent) and American Federation of Government Employees, Local 53, AFL-CIO (Labor Organization) 

 5 FLRA No. 51
 
 NAVY PUBLIC WORKS CENTER,
 NORFOLK NAVAL BASE
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 53, AFL-CIO
 Labor Organization
 
                                            Case No. 3-CA-458
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING RECOMMENDING THAT THE UNFAIR
 LABOR PRACTICE COMPLAINT BE DISMISSED IN ITS ENTIRETY.  THE GENERAL
 COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER ACCOMPANIED BY A BRIEF, AND THE RESPONDENT FILED A
 BRIEF.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), 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 THE
 CASE, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS AND BRIEF, AND THE
 RESPONDENT'S BRIEF, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-458 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MARCH 30, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    NONA J. JORDAN, ESQUIRE
    FOR THE RESPONDENT
 
    HEATHER BRIGGS GOTTS, ESQUIRE
    DONNA DITULLIO, ESQUIRE
    PETER B. ROBB, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    BEFORE:  WILLIAM B. DEVANEY
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE
 LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 CODE, 5
 U.S.C. 7101, ET SEQ.  /1/ AND THE FINAL RULES AND REGULATIONS ISSUED
 THEREUNDER, 5 C.F.R. CHAPTER XIV, FED.REG., VOL. 45, NO. 12, JANUARY
 17,
 1980 EFFECTIVE JANUARY 28, 1980 (INTERIM RULES AND REGULATIONS
 WERE
 ISSUED ON JULY 30, 1979, EFFECTIVE JULY 30, 1979, RED.REG., VOL. 44, NO.
 147, JULY 30, 1979;  HOWEVER THE FINAL RULES AND REGULATIONS
 GOVERN ALL
 MATTERS AFTER JANUARY 28, 1980).
 
    A CHARGE WAS FILED HEREIN ON AUGUST 29, 1979, ALLEGING
 VIOLATIONS OF
 SECS. 16(A)(1), (2), (5) AND (8) OF THE STATUTE (G.C. EXH. 1(A));  AND A
 FIRST AMENDED CHARGE WAS FILED ON FEBRUARY 4, 1980, ALLEGING
 VIOLATIONS
 OF SECS. 16(A)(1), (2) AND (4) OF THE STATUTE (G.C. EXH. 1(C)).  ON
 FEBRUARY 7, 1980, THE REGIONAL DIRECTOR ISSUED THE COMPLAINT AND
 NOTICE
 OF HEARING HEREIN WHICH ALLEGED VIOLATIONS OF SEC. 16(A)(1), (2)
 AND (4)
 OF THE STATUTE AND SET THE HEARING FOR MARCH 13, 1980 (G.C. EXH.
 1(E)).
 RESPONDENT TIMELY ANSWERED (G.C. EXH. 1(F)), DENYING THE
 ALLEGATIONS OF
 THE COMPLAINT (PARAGRAPHS 5, 6 AND 7) THAT IT ENGAGED IN ANY
 CONDUCT IN
 VIOLATION OF THE STATUTE AS ALLEGED.  PURSUANT TO THE NOTICE OF
 HEARING,
 A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON MARCH 13,
 1980, IN
 NORFOLK, VIRGINIA.
 
    ALL PARTIES WERE REPRESENTED BY COUNSEL, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE
 WITNESSES, AND TO
 INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN.  AT
 THE CLOSE
 OF THE HEARING, APRIL 14, 1980, WAS FIXED AS THE DATE FOR MAILING
 BRIEFS
 AND COUNSEL FOR EACH PARTY TIMELY MAILED A BRIEF, EACH OF WHICH
 HAS BEEN
 CAREFULLY CONSIDERED.  UPON THE BASIS OF THE ENTIRE RECORD,
 INCLUDING MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
 FOLLOWING
 FINDINGS AND CONCLUSION:
 
                          FINDINGS AND CONCLUSION
 
                 1.  GENERAL COUNSEL'S ERRONEOUS PREMISE.
 
    COUNSEL FOR THE GENERAL COUNSEL ASSERTS THAT
 
    "...THERE WAS NO EVIDENCE INTRODUCED AT HEARING TO ESTABLISH
 THAT THE
 PERSONNEL CLERK
 
    POSITION...WAS OUTSIDE THE BARGAINING UNIT..." THIS IS NOT
 CORRECT,
 ARTICLE 1, SECTION 2 OF THE PARTIES' NEGOTIATED AGREEMENT
 SPECIFICALLY
 EXCLUDES FROM THE BARGAINING UNIT:
 
    "...EXCLUDING SUPERVISORS, MANAGEMENT OFFICIALS, PROFESSIONAL
 EMPLOYEES, AND EMPLOYEES
 
    ENGAGED IN FEDERAL PERSONNEL WORK OTHER THAN A PURELY
 CLERICAL
 CAPACITY.  (G.C. EXH. 3) THE EFFECTIVE DATE OF THE AGREEMENT WAS
 AUGUST
 16, 1977, AND IT WAS FOR A TERM OF THREE YEARS FROM THE DATE OF
 THE
 APPROVAL BY THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT (ART.
 38).  /2/
 
    I AGREE WITH GENERAL COUNSEL THAT THE PROVISIONS OF SEC. 20 OF
 THE
 STATUTE, AND SPECIFICALLY SEC. 20 (E), ARE NOT MATERIAL TO THIS
 PROCEEDING;  HOWEVER, THE PROVISIONS OF SECS. 12(B) AND 35 ARE
 MATERIAL.
  SEC. 12(B)(2), (3) AND (4) OF THE STATUTE WOULD EXCLUDE FROM AN
 APPROPRIATE UNIT:
 
    "(2) A CONFIDENTIAL EMPLOYEE;
 
    "(3) AN EMPLOYEE ENGAGED IN PERSONNEL WORK IN OTHER THAN A
 PURELY
 CLERICAL CAPACITY;
 
    "(4) AN EMPLOYEE ENGAGED IN ADMINISTERING THE PROVISIONS OF
 THIS
 
    CHAPTER;" SECTION 35(A) OF THE STATUTE PROVIDES THAT "NOTHING
 CONTAINED IN THIS CHAPTER SHALL PRECLUDE-- (1) THE...CONTINUATION
 OF...A
 LAWFUL AGREEMENT...ENTERED INTO BEFORE THE EFFECTIVE DATE OF
 THIS
 CHAPTER...;" AND SECTION 35 (B) OF THE STATUTE PROVIDES THAT,
 "POLICIES...UNDER AND DECISIONS ISSUED UNDER EXECUTIVE ORDERS
 11491...SHALL REMAIN IN FULL FORCE AND EFFECT...UNLESS SUPERSEDED
 BY
 SPECIFIC PROVISIONS OF THIS CHAPTER...OR DECISIONS ISSUED
 PURSUANT TO
 THIS CHAPTER."
 
    THE EXCLUSION OF THE PARTIES' NEGOTIATED AGREEMENT IS
 IDENTICAL TO
 SEC. 12(B)(3) OF THE STATUTE;  CONTINUATION OF THE NEGOTIATED
 EXCLUSION
 OF "EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
 THAN A PURELY
 CLERICAL CAPACITY," WHICH IS IDENTICAL TO SEC.  12(B)(3) OF THE
 STATUTE,
 IS MOST ASSUREDLY NOT INCONSISTENT WITH ANY PROVISION OF THE
 STATUTE;
 AND THE ASSISTANT SECRETARY'S POLICY DETERMINATION THAT
 "CONFIDENTIAL"
 EMPLOYEES ARE, ALSO, EXCLUDED FROM BARGAINING UNITS IS,
 FURTHER, FULLY
 CONSISTENT WITH THE SPECIFIC EXCLUSION OF CONFIDENTIAL
 EMPLOYEES BY SEC.
 12(B)(2) OF THE STATUTE.
 
    ACCORDINGLY, THIS CASE CONCERNS THE POSITION OF PERSONNEL
 CLERK;  THE
 AGREEMENT OF THE PARTIES EXCLUDES "EMPLOYEES ENGAGED IN
 FEDERAL
 PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY;" AND,
 FOR
 REASONS SET FORTH HEREINAFTER, THE RECORD SHOWS WITHOUT
 DISPUTE THAT THE
 DUTIES OF THE PERSONNEL CLERK WERE "OTHER THAN A PURELY
 CLERICAL
 CAPACITY."
 
                       2.  DUTIES OF PERSONNEL CLERK
 
    THE DUTIES OF PERSONNEL CLERK (TYPING), GS 203-05, PUBLIC WORKS
 CENTER, MAINTENANCE DEPARTMENT, ARE SHOWN ON THE POSITION OR
 JOB
 DESCRIPTION (RES. EXH. 1) AND WERE DISCUSSED IN DETAIL BY MR.
 ROBERT
 SMITH, SUPERINTENDENT DIRECTOR OF MAINTENANCE;  BY MS.  FRANCES
 KUCHARSKI, OFFICE SERVICE SUPERVISOR;  BY MR. BERTON OWENS,
 HEAD OF
 CIVILIAN PERSONNEL, NAVAL PUBLIC WORKS CENTER;  AND BY MS. JULIA
 D.
 HOBBS, A GS-4 CLERICAL, JOB ORDER CONTROL & SCHEDULING SUPPORT
 SECTION.
 MS. HOBBS IS ALSO ASSISTANT CHIEF STEWARD FOR LOCAL 53 AND, AS
 SUCH, IS
 THE HIGHEST RANKING OFFICIAL OF LOCAL 53 IN THE PUBLIC WORKS
 CENTER.
 THE RECORD SHOWS THAT THE PERSONNEL CLERK SERVES AS A
 CONFIDENTIAL
 EMPLOYEE TO THE HEAD OF THE MAINTENANCE DEPARTMENT, MR. SMITH,
 WHO HAS
 SIGNIFICANT RESPONSIBILITY IN LABOR-MANAGEMENT RELATIONS.  THUS,
 THE
 PERSONNEL CLARK, INTER ALIA, HANDLES SUPERVISORY QUESTIONS ON
 PERSONNEL
 PROBLEMS, SUPPLIES TABLES OF OFFENSES AND PENALTIES, HANDLES
 PRE-ACTION
 INVESTIGATION OF CHARGES, SEES AND PROCESSES CORRESPONDENCE
 TO AND FROM
 PERSONNEL, HANDLES REGISTERS FOR APPLICANTS AND FOR
 PROMOTION, SITS IN
 ON APPEALS ON REMOVALS, TYPES DECISIONS OF THE DIRECTOR ON
 GRIEVANCES,
 TYPES MANAGEMENT'S POSITION IN NEGOTIATIONS, TYPES EMPLOYEE
 PERFORMANCE
 RATINGS, ATTENDS MEETINGS WITH SUBORDINATE SUPERVISORS
 CONCERNING
 GRIEVANCES, ETC.  FROM THE RECORD, IT IS CLEAR THAT THE DUTIES OF
 THE
 PERSONNEL CLERK ARE OTHER THAN A PURELY CLERICAL CAPACITY AND
 DO INVOLVE
 PERSONNEL WORK.  AS NOTED ABOVE, ARTICLE 1, SECTION 2 OF THE
 PARTIES'
 AGREEMENT EXCLUDED, IN THE PRECISE LANGUAGE OF SECTION 10(B)(2)
 OF
 EXECUTIVE ORDER 11491, AS AMENDED, EMPLOYEES "ENGAGED IN
 FEDERAL
 PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY." NOT
 ONLY DOES
 THE RECORD SHOW THAT THE POSITION OF PERSONNEL CLERK
 CONSTITUTES FEDERAL
 PERSONNEL WORK OF OTHER THAN A PURELY CLERICAL CAPACITY;  BUT
 THE RECORD
 FURTHER SHOWS THAT THE POSITION REQUIRES PERFORMANCE OF
 DUTIES WHICH THE
 ASSISTANT SECRETARY CONSISTENTLY RECOGNIZED AS EXCLUDED AS
 CONFIDENTIAL
 EMPLOYEES.
 
                   3.  WHAT THIS CASE DOES NOT INVOLVE.
 
    THIS CASE DOES NOT INVOLVE ANY ALLEGATION THAT RESPONDENT
 REFUSED TO
 BARGAIN CONCERNING THE CHANGE IN MS. HOBBS' POSITION
 DESCRIPTION ON JULY
 18, 1979, WHICH DELETED SUB-PARAGRAPH F WHICH HAD PROVIDED:
 
    "THE INCUMBENT OF THIS POSITION IS REQUIRED TO ASSUME THE
 DUTIES OF
 THE PERSONNEL CLERK
 
    (TYPING), GS-203-05, IN THE MAINTENANCE DEPARTMENT, DURING
 ABSENCE OF
 INCUMBENT OF THAT
 
    POSITION AS WELL AS ASSIST ON SAME DURING PERIODS OF HEAVY
 WORKLOAD.
 
                                TIME-- 05%"
 
                      (RES. EXH. 2, AMENDMENT NO. 2)
 
 I AM AWARE THAT:  A) FROM ABOUT 1975, MS. HOBBS HAD, ON OCCASION,
 RELIEVED OR ASSISTED THE PERSONNEL CLERK;  B) IN 1978, MS. HOBBS
 HAD
 FILED A GRIEVANCE WHICH SOUGHT CREDIT FOR HER PAST WORK AT THE
 HIGHER,
 GS-5 LEVEL, AND THE GRIEVANCE WAS SETTLED BY CREDITING HER WITH
 SUCH
 PRIOR EXPERIENCE AND ADDING SUB-PARAGRAPH F TO HER POSITION
 DESCRIPTION
 ON FEBRUARY 15, 1978 (RES. EXH. 2, AMENDMENT NO. 1);  C) THAT
 THROUGHOUT
 THE TIME MS. HOBBS SPORADICALLY PERFORMED DUTIES OF THE
 PERSONNEL CLERK,
 THE WORK, WHICH I WOULD REFER TO AS "CONFIDENTIAL," I.E., SITTING IN
 ON
 DISCUSSIONS OF GRIEVANCES, REMOVALS, TYPING DECISIONS FOR THE
 DIRECTOR,
 ETC., WAS PERFORMED BY A SUPERVISOR.  IN SHORT, WHILE MS. HOBBS
 PERFORMED SOME DUTIES OF THE PERSONNEL CLERK, SHE DID NOT
 PERFORM THE
 FULL RANGE OF DUTIES OF THE JOB.  I AM FURTHER AWARE THAT THE
 GRAVAMEN
 OF THE ORIGINAL CHARGE WAS THAT THE DELETION OF THESE DUTIES
 "WAS
 EFFECTUATED WITHOUT ADVISING THE EXCLUSIVE REPRESENTATIVE AND
 OFFERING
 IT AN OPPORTUNITY TO NEGOTIATE ON THE IMPACT." THIS ALLEGATION
 WAS
 DROPPED IN FIRST AMENDMENT CHARGE AND, OF COURSE, DOES NOT
 APPEAR IN THE
 COMPLAINT.
 
    CONSEQUENTLY, THE ELIMINATION OF THE LIMITED DUTIES OF
 PERSONNEL
 CLERK PERFORMED BY MS. HOBBS WAS, PRESUMPTIVELY, A LEGITIMATE
 EXERCISE
 OF MANAGEMENT AUTHORITY.  SIGNIFICANTLY, THEREFORE, THIS CASE
 PRESENTS A
 JOB, I.E. PERSONNEL CLERK, WHICH IS, PURSUANT TO THE PARTIES'
 NEGOTIATED
 AGREEMENT, EXCLUDED FROM THE BARGAINING UNIT.
 
                4.  THE 16(A)(1), (2) AND (4) ALLEGATIONS.
 
    AS THE JOB OF PERSONNEL CLERK IS EXCLUDED FROM THE BARGAINING
 UNIT, I
 CAN CONCEIVE OF NO POSSIBLE VIOLATION OF THE STATUTE IN TELLING
 MS.
 HOBBS THAT IT IS OUTSIDE THE BARGAINING UNIT AND/OR THAT
 PERFORMANCE OF
 SUCH DUTIES WAS INCOMPATIBLE WITH HER DUTIES AS A UNION OFFICIAL. 
 THE
 CONFLICT WAS OBVIOUS.  FOR EXAMPLE, BY HER OWN TESTIMONY, MS.
 HOBBS
 HANDLED 99% OF ALL GRIEVANCES IN THE PUBLIC WORKS CENTER AND
 THE
 PERSONNEL CLERK IS ACTIVELY INVOLVED IN MANAGEMENT'S HANDLING
 OF
 GRIEVANCES, INCLUDING THE TYPING OF DECISIONS;  AND MS. HOBBS IS A
 MEMBER OF THE UNION'S NEGOTIATING COMMITTEE WHILE THE
 PERSONNEL CLERK
 PERFORMS DUTIES FOR MANAGEMENT WITH REGARD TO NEGOTIATIONS. 
 AGAIN, IT
 MUST BE EMPHASIZED THAT THE CHANGE IN MS. HOBBS' POSITION
 DESCRIPTION IS
 NOT BEFORE ME AS THE CHARGING PARTY, BY ITS AMENDED CHARGE,
 ABANDONED
 ANY ASSERTION THAT SUCH CHANGE WAS AN IMPROPER UNILATERAL
 ACT.  CF.,
 U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW
 ORLEANS
 DISTRICT, NEW ORLEANS, LOUISIANA, A/SLMR NO. 1034, 8 A/SLMR
 497(1978);
 INTERNAL REVENUE SERVICE, SOUTHEASTERN REGION, APPELLATE
 BRANCH OFFICE,
 NEW ORLEANS, LOUISIANA, A/SLMR NO. 1153, 8 A/SLMR 1254(1978).
 
    MS. HOBBS TESTIFIED THAT ON JULY 30, 1979, MS. KUCHARSKI TOLD HER
 THAT THE DEPARTMENT FELT IT WAS A CONFLICT OF INTEREST "FOR A
 UNION
 PERSON" TO BE ON THE PERSONNEL DESK;  THAT ON AUGUST 2 MR.
 OWENS, WHEN
 ASKED ABOUT THE CHANGE IN HER (HOBBS') POSITION DESCRIPTION,
 STATED THAT
 THERE WAS A CONFLICT OF INTEREST IN MS. HOBBS WORKING AT THE
 PERSONNEL
 DESK;  AND THAT MR.  SMITH HAD ASKED HER "WOULD I DROP THE UNION
 FOR THE
 FIVE PERCENT." MR. CARLISLE FIELDS, A NATIONAL REPRESENTATIVE OF
 THE
 UNION, TESTIFIED THAT MR. SMITH STATED AT THE AUGUST 1 MEETING,
 "WELL,
 YOU KNOW, THAT IS NO PROBLEM...YOU CAN HAVE YOUR FIVE PERCENT
 BACK...BUT
 YOU ARE GOING TO HAVE TO GIVE UP YOUR UNION ACTIVITIES." BOTH MR.
 SMITH
 AND MR. OWENS DENIED THAT THEY SAID MS. HOBBS COULD HAVE HER
 "FIVE
 PERCENT" BACK IF SHE DROPPED HER UNION ACTIVITY.  I FOUND BOTH
 MR. SMITH
 AND MR. OWENS VERY CREDIBLE WITNESSES.  INDEED, I SPECIFICALLY
 CREDIT
 MR. OWENS' TESTIMONY THAT, IN RESPONSE TO MS.  HOBBS' INQUIRY
 ABOUT HER
 CAREER POTENTIAL IN THE PERSONNEL MANAGEMENT FIELD, HE SAID
 "...'IN A
 PERSONNEL POSITION, THE FOUR OR FIVE LEVEL, YOU WOULD HAVE
 DUTIES WHICH
 WOULD BE INCOMPATIBLE.' IT WAS SUBSTANTIVE DUTIES IN THE
 PERSONNEL AREA
 THAT WOULD BE INCOMPATIBLE WITH UNION OFFICE." (TR.  107) AT THE
 SAME
 TIME, IT IS PERFECTLY UNDERSTANDABLE THAT MS. HOBBS AND MR.
 FIELDS DREW
 SUCH INFERENCE.  INDEED, MR. OWENS STATED, WHEN ASKED WHETHER
 RETENTION
 OF THE FIVE PERCENT WOULD HAVE PRESENTED A CONFLICT IF MS.
 HOBBS HAD NOT
 BEEN A UNION OFFICER, RESPONDED, "IT COULDN'T HAVE BEEN A
 CONFLICT IF
 SHE HADN'T BEEN A UNION OFFICIAL..." (TR. 135-136).  HOWEVER, EVEN IF
 IT
 WERE ASSUMED THAT RESPONDENT, ON AUGUST 2, 1979, TOLD MS.
 HOBBS SHE
 COULD HAVE HER FIVE PERCENT BACK IF SHE GAVE UP HER UNION
 ACTIVITIES,
 SUCH STATEMENT WOULD NOT HAVE CONSTITUTED A VIOLATION OF
 SECS. 16(A)(1)
 OR (2) OF THE STATUTE SINCE IT DID NOT MORE THAN INFORM MS. HOBBS
 THAT
 THE JOB OF PERSONNEL CLERK WAS OUTSIDE THE BARGAINING UNIT AND
 IF SHE
 WANTED TO PERFORM THE DUTIES OF PERSONNEL CLERK SHE WOULD
 HAVE TO DROP
 HER ACTIVITIES AS A UNION OFFICER.  BY NO STRETCH OF THE
 IMAGINATION CAN
 INTERFERENCE WITH THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
 ASSURED BY
 THE STATUTE, OR DISCRIMINATION IN CONNECTION WITH A CONDITION OF
 EMPLOYMENT, BE CONJURED FROM A STATEMENT THAT ACCURATELY
 INFORMS AN
 EMPLOYEE THAT A JOB, HERE PERSONNEL CLERK, IS OUTSIDE THE
 BARGAINING
 UNIT AND THAT THE DUTIES OF SUCH JOB ARE INCOMPATIBLE WITH
 DUTIES AS A
 UNION OFFICER.  NOR, OF COURSE, DID RESPONDENT VIOLATE SEC.
 16(A)(1) OR
 (2) OF THE STATUTE WHEN IT INFORMED MS. HOBBS THAT A JOB IN
 PERSONNEL,
 WHICH SHE WAS OFFERED, WOULD REQUIRE THAT SHE DROP HER
 ACTIVITIES AS A
 UNION OFFICER.  I SPECIFICALLY CREDIT MR. OWENS' TESTIMONY THAT HE
 TOLD
 MS. HOBBS,
 
    "...ANY JOB IN THE PERSONNEL OFFICE ABOVE THE PURELY CLERICAL
 LEVEL...WOULD BE OUTSIDE THE
 
    BARGAINING UNIT...I SAID THE JOB IS OFFERED.  IF YOU ACCEPT IT, IT IS
 ONE OF THE EXCEPTIONS TO
 
    TAKE YOU OUT OF THE BARGAINING UNIT..." (TR. 135).  NOT ONLY DO I
 FULLY CREDIT MR. OWENS' TESTIMONY, BUT I FULLY AGREE WITH THE
 ACCURACY
 AND PROPRIETY OF HIS STATEMENT.
 
    ALTHOUGH I HAVE HELD THAT EXERCISE OF OTHERWISE LEGITIMATE
 AUTHORITY
 FOR AN UNLAWFUL AND DISCRIMINATORY PURPOSE CONSTITUTES AN
 UNFAIR LABOR
 PRACTICE, CF., CONSUMER PRODUCT SAFETY COMMISSION, CASE NOS.
 3-CA-12,
 34, 35, 36, 220, 221 (ALJ MARCH 5, 1980), SUCH PRINCIPLE IS, OBVIOUSLY,
 INAPPLICABLE WHERE, AS HERE, THERE IS NO UNLAWFUL OR
 DISCRIMINATORY USE
 OF MANAGEMENT AUTHORITY.  HERE, THE SOLE BASIS FOR THE ALLEGED
 SEC.
 16(A)(1) AND (2) VIOLATION IS THAT RESPONDENT INFORMED MS. HOBBS,
 ACCURATELY AND FULLY IN ACCORDANCE WITH THE AGREEMENT OF THE
 PARTIES,
 THAT THE JOB OF PERSONNEL CLERK WAS OUTSIDE THE BARGAINING
 UNIT AND THAT
 HER PERFORMANCE OF SUCH DUTIES WAS INCONSISTENT WITH HER
 DUTIES AS A
 UNION OFFICIAL.  THERE WAS NO DISCRIMINATION BECAUSE OF MS.
 HOBBS' UNION
 ACTIVITY AND NO INTERFERENCE WITH MS. HOBBS' RIGHTS UNDER THE
 STATUTE.
 INDEED, MS. HOBBS WAS TOLD, SIMPLY, THAT PERSONNEL MANAGEMENT
 POSITIONS,
 OTHER THAN THOSE OF A PURELY CLERICAL NATURE, WERE OUTSIDE THE
 BARGAINING UNIT AND DID INVOLVE DUTIES INCOMPATIBLE WITH HER
 DUTIES AS A
 UNION OFFICER;  MS. HOBBS WAS OFFERED A POSITION IN PERSONNEL
 WHICH WAS
 OUTSIDE THE BARGAINING AND WHICH SHE DECLINED.  BUT RESPONDENT
 HAD THE
 RIGHT UNDER THE STATUTE, AND PURSUANT TO THE NEGOTIATED
 AGREEMENT, TO
 INSIST THAT UPON ACCEPTANCE OF AN EXCEPTED JOB SHE CEASE HER
 ACTIVITY AS
 AN OFFICIAL OF THE UNION.  ACCORDINGLY, NO BASIS FOR A FINDING OF A
 VIOLATION OF SEC. 16(A)(1) OR (2) HAS BEEN SHOWN.
 
    FINALLY, AS TO THE 16(A)(4) ALLEGATION, THERE IS NO PROBATIVE
 EVIDENCE TO SUPPORT THE ASSERTION THAT MS. HOBBS' POSITION
 DESCRIPTION
 WAS CHANGED "TO DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN
 EMPLOYEE
 BECAUSE THE EMPLOYEE HAS FILED A COMPLAINT, AFFIDAVIT, OR
 PETITION, OR
 HAS GIVEN ANY INFORMATION OR TESTIMONY UNDER THIS CHAPTER."
 
    THE RECORD SHOWS THAT THE PROBLEM OF MS. HOBBS SERVING AS
 PERSONNEL
 CLERK DURING THE ABSENCE OF THE INCUMBENT WAS BROUGHT TO A
 HEAD IN MAY,
 1979, WHEN THE PERSONNEL CLERK, MRS. GALLOP, FILED A REQUEST FOR
 MATERNITY LEAVE TO BE TAKEN LATER IN 1979.  /3/
 
    CONFRONTED WITH THE REALITY THAT THE PERSONNEL CLERK WAS
 SOON TO BE
 SENT FOR AN EXTENDED PERIOD OF TIME AND THAT MS. HOBBS' POSITION
 DESCRIPTION PROVIDED THAT SHE ASSUME THE DUTIES OF THE
 PERSONNEL CLERK
 DURING ABSENCE OF THE INCUMBENT, MR. SMITH WAS DEEPLY
 CONCERNED THAT,
 SHOULD MS. HOBBS ASSUME THE DUTIES OF PERSONNEL CLERK FOR AN
 EXTENDED
 PERIOD, PERFORMANCE OF DUTIES OF PERSONNEL CLERK BY A UNION
 OFFICER
 WOULD INVOLVE A CONFLICT OF INTEREST /4/ AND, ACCORDINGLY, IN
 MID-JUNE,
 HE DISCUSSED THE MATTER WITH MR. OWENS.  MR. OWENS HAD NOT
 PREVIOUSLY
 BEEN AWARE OF THE PROVISION IN MS. HOBBS' POSITION DESCRIPTION
 AND MR.
 SMITH TESTIFIED THAT MR. OWENS ADVISED HIM THAT PERFORMANCE OF
 THE
 DUTIES OF PERSONNEL CLERK BY A UNION OFFICER DID CONSTITUTE A
 CONFLICT
 OF INTEREST AND THAT SUB-PARAGRAPH F OF MS. HOBBS' POSITION
 DESCRIPTION
 COULD LEGALLY BE REMOVED.  MR. OWENS STATED THAT HE ADVISED
 THAT
 SUB-PARAGRAPH F BE REMOVED BECAUSE OF,
 
    "CONFLICT BETWEEN HER ROLE AS AN UNION OFFICIAL AND THE DUTIES
 OF THE
 POSITION,
 
    INCOMPATIBLE ON THE BASIS OF THE PERSONNEL CLERK HAVING AT
 TIMES TO
 PREPARE RECORDS OR
 
    MAINTAIN RECORDS OF MANAGEMENT'S POSITION WITH RESPECT TO
 MATTERS IN
 CONTROVERSY WITH THE
 
    UNION AND SO FORTH." (TR. 104) MOREOVER, MR. OWENS
 SUBSEQUENTLY TOLD
 MS. HOBBS:
 
    "...THAT I DID NOT CONSIDER THAT ANY GS-4 OR GS-5 PERSONNEL
 CLERK
 POSITION COULD EVER BE
 
    CONSIDERED TO BE PART OF THE BARGAINING UNIT OR COMPATIBLE
 WITH
 HOLDING UNION OFFICE...THOSE
 
    PEOPLE WHO WERE WORKING IN PERSONNEL POSITION WOULD FIND A
 CONFLICT
 OF INTEREST IN TRYING TO
 
    HOLD A UNION OFFICE AND IN TERMS OF OUR AGREEMENT, I
 CONSIDERED THAT
 THEY WERE EXCLUDED FROM
 
    THE BARGAINING UNIT AS HAVING DUTIES OTHER THAN PURELY
 CLERICAL..."
 (TR. 108)
 
    IN JUNE, AFTER MR. SMITH HAD GIVEN HER PERMISSION TO FILL THE
 GS-4
 PERSONNEL CLERK SLOT AND TO DELETE SUB-PARAGRAPH F OF MS.
 HOBBS'
 POSITION DESCRIPTION, MS.  KUCHARSKI SPOKE TO MRS. GALLOP AND
 ASKED HER
 TO BRING A SLIP FROM HER DOCTOR CERTIFYING THE DATE SHE
 EXPECTED TO
 BEGIN MATERNITY LEAVE.  MRS. GALLOP BROUGHT THE SLIP IN JULY;  THE
 AMENDED POSITION DESCRIPTION FOR MS. HOBBS WAS SIGNED BY MR.
 SMITH ON
 JULY 18, 1979, AND WAS SIGNED BY CLASSIFICATION ON JULY 26, 1979
 (RES.
 EXH. 2);  AND THE GS-4 PERSONNEL CLERK POSITION WAS POSTED.
 
    GENERAL COUNSEL'S CONTENTION THAT RESPONDENT'S ACTION IN
 DELETING
 SUB-PARAGRAPH F WAS IN RETALIATION FOR THE FILING OF THE CHARGE
 IN CASE
 NO. 3-CA-318 HAS BEEN CAREFULLY CONSIDERED AND FOUND TO BE
 WITHOUT
 MERIT.  FIRST, IN APPARENT RECOGNITION THAT RESPONDENT HAD
 UNDERTAKEN
 THE DELETION IN JUNE, IT WAS ASSERTED THAT A COPY OF THE CHARGE
 WAS
 SERVED ON RESPONDENT ON JUNE 27, 1979;  HOWEVER, THE RECORD IS
 TO THE
 CONTRARY.  MR. FIELDS AT FIRST TESTIFIED THAT HE SERVED THE
 CHARGE ON
 THE ACTIVITY ON JUNE 27, 1979 (TR. 47);  BUT, ON CROSS-EXAMINATION,
 ADMITTED HE DID NOT SERVE THE CHARGE AT ALL AND HAD GIVEN A
 COPY TO MS.
 HOBBS (TR. 51).  MS. HOBBS' TESTIMONY DOES NOT SHOW THAT SHE
 SERVED A
 COPY ON ANYBODY.  INDEED, SHE TESTIFIED AS FOLLOWS WITH RESPECT
 TO THE
 CHARGE, GENERAL COUNSEL EXHIBIT 4:
 
    "Q.  DID YOU FILE THAT YOURSELF?
 
    "A.  NO, MR. FIELDS, OUR NATIONAL REPRESENTATIVE, FILED IT IN MY
 BEHALF." (TR. 25) MR. SMITH TESTIFIED THAT HE DID NOT KNOW OF THE
 CHARGE
 UNTIL HE RECEIVED A COPY FROM THE REGIONAL DIRECTOR, WHOSE
 LETTER OF
 TRANSMITTAL WAS DATED JULY 9, 1979 (RES.  EXH. 3).  MR. OWENS
 TESTIFIED
 THAT HE WAS NOT AWARE OF THE CHARGE UNTIL LATE JULY 1979.
 
    SECOND, MS. HOBBS TESTIFIED THAT SHE MET ON JULY 10, 1979, WITH
 MR.
 SMITH, MR. HUPMAN AND MS. KUCHARSKI TO DISCUSS THE CHARGE IN
 3-CA-318.
 MR. HUPMAN DID NOT TESTIFY;  MS. KUCHARSKI WAS NOT ASKED ABOUT
 THE
 MATTER;  BUT MR. SMITH TESTIFIED THAT THE ONLY MEETING HE
 ATTENDED ON
 THE CHARGE IN 3-CA-318 WAS ON AUGUST 2, 1979, WHEN THE CHARGE
 WAS
 SETTLED.  MS.  HOBBS TESTIFIED THAT MR. SMITH ON JULY 10, 1979, HAD
 MADE
 PROPOSALS TO SETTLE THE CHARGE;  THAT SHE HAD TOLD HIM SHE WAS
 NOT
 SUPPOSED TO BE THERE WITHOUT MR. FIELDS.  THE ONLY
 CONVERSATION MR.
 FIELDS TESTIFIED HE HAD WITH MS. HOBBS AFTER THE CHARGE WAS
 FILED WAS
 WHEN,
 
    "...SHE CALLED ME IN BALTIMORE TO TELL BE THAT SOME THINGS HAD
 BEEN
 HAPPENING SINCE WE HAD
 
    FILED THE UNFAIR LABOR PRACTICE...
 
    "Q.  OKAY.  SPECIFICALLY, WHAT WAS IT ABOUT?
 
    "A.  THE FIVE PERCENT BEING TAKEN FROM HER JOB DESCRIPTION." (TR.
 47)
 MS. HOBBS TESTIFIED THAT SHE WAS TOLD ON JULY 30, 1979, THAT THE
 "FIVE
 PERCENT PERSONNEL DUTIES" HAD BEEN REMOVED FROM HER POSITION
 DESCRIPTION, SO THAT THE CALL SHE MADE TO MR. FIELDS PRESUMABLY
 WAS ON
 OR AFTER JULY 30, 1979.  AS NOTED ABOVE, THE REGIONAL DIRECTOR'S
 LETTER
 OF TRANSMITTAL OF THE CHARGE IN 3-CA-318 WAS DATED JULY 9, 1979,
 AND,
 ALTHOUGH SENT CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
 GENERAL COUNSEL
 OFFERED NO EVIDENCE AS TO THE DATE THE REGIONAL DIRECTOR'S
 LETTER OF
 JULY 9, 1979, WAS RECEIVED BY RESPONDENT.  IN VIEW OF MR. SMITH'S
 TESTIMONY THAT THE ONLY MEETING HE ATTENDED ON THE CHARGE IN
 3-CA-318
 WAS ON AUGUST 2, 1979;  MR. FIELDS' TESTIMONY THAT THE ONLY
 CONVERSATION
 HE HAD WITH MS. HOBBS AFTER THE CHARGE WAS FILED CONCERNED
 "THE FIVE
 PERCENT BEING TAKEN FROM HER JOB DESCRIPTION" WHICH, BY MS.
 HOBBS'
 TESTIMONY WOULD HAVE BEEN ON, OR AFTER, JULY 30, 1979;  AND THE
 ABSENCE
 OF ANY EVIDENCE THAT RESPONDENT HAD RECEIVED THE REGIONAL
 DIRECTOR'S
 LETTER OF TRANSMITTAL OF THE CHARGE BY JULY 10, 1979, I FIND NO
 CONVINCING EVIDENCE THAT THERE WAS A MEETING ON JULY 10, 1979.
 
    THIRD, THE ALLEGED STATEMENT BY MR. SMITH THAT,
 
    "I WILL WRITE THESE STIPULATIONS IN A LETTER AND IF IT IS NOT
 ACCEPTED, WE WILL CONTINUE TO
 
    PLAY THIS GAME." (TR. 28) WOULD HAVE BEEN EQUALLY CONSISTENT
 WITH THE
 MEETING HELD ON AUGUST 2, 1979.  IN ANY EVENT, FROM MS. HOBBS'
 TESTIMONY, IT PLAINLY APPEARS THAT SUCH STATEMENT, IF MADE AND
 WHENEVER
 MADE, RELATED WHOLLY TO THE PROPOSED SETTLEMENT OF 3-CA-318. 
 THUS, SHE
 TESTIFIED,
 
    "WE DISCUSSED, YOU KNOW, WHAT HAD BROUGHT IT ABOUT AND WHAT
 THE
 PROBLEM WAS AND WHAT
 
    PROBLEMS WE WERE HAVING.  WE TRIED TO COME TO A RESOLUTION
 OF IT AND
 MR. SMITH SAID THAT, YOU
 
    KNOW, HE WOULD INSTALL A TELEPHONE UPSTAIRS AND THAT I WOULD
 BE
 LIMITED AS TO WHEN I COULD USE
 
    IT AND, YOU KNOW, I HAVE TO LOG IN AND OUT LIKE THE METAL TRADES
 HAS
 TO...HE SAID, "I WILL
 
    WRITE THESE STIPULATIONS IN A LETTER AND IF IT IS NOT ACCEPTED,
 WE
 WILL CONTINUE TO PLAY THIS
 
    GAME.'" (TR. 27-28)
 
    NOT ONLY DOES THE RECORD AFFIRMATIVELY SHOW THAT THE
 DECISION TO
 DELETE THE PERSONNEL CLERK DUTIES FROM MS. HOBBS' POSITION
 DESCRIPTION
 HAD BEEN MADE PRIOR TO THE FILING OF THE UNFAIR LABOR PRACTICE
 CHARGE IN
 CASE NO. 3-CA-318;  BUT THERE IS NO EVIDENCE WHATEVER THAT
 RESPONDENT
 DELETED THE PERSONNEL CLERK DUTIES TO DISCIPLINE OR OTHERWISE
 DISCRIMINATE AGAINST MS. HOBBS BECAUSE SHE HAD "FILED A
 COMPLAINT,
 AFFIDAVIT, OR PETITION, OR HAS GIVEN ANY INFORMATION OR TESTIMONY
 UNDER
 THIS CHAPTER." TO THE CONTRARY, THE AGREEMENT OF THE PARTIES
 SPECIFICALLY EXCLUDES FROM THE BARGAINING UNIT "EMPLOYEES
 ENGAGED IN
 FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
 CAPACITY;" THE
 JOB OF PERSONNEL CLERK INVOLVED PERSONNEL WORK IN OTHER THAN
 A PURELY
 CLERICAL CAPACITY, AND, IN ADDITION, REQUIRED PERFORMANCE OF
 DUTIES OF A
 CONFIDENTIAL NATURE WHICH THE ASSISTANT SECRETARY
 CONSISTENTLY EXCLUDED
 FROM BARGAINING UNITS;  AND THE RECORD SHOWS THAT
 RESPONDENT'S SOLE
 REASON FOR DELETING SUB-PARAGRAPH F OF MS. HOBBS' POSITION
 DESCRIPTION,
 WHICH REQUIRED THAT SHE "ASSUME THE DUTIES OF THE PERSONNEL
 CLERK...DURING ABSENCE OF INCUMBENT OF THAT POSITION...," WAS THE
 IMMINENT DEPARTURE OF THE INCUMBENT, MRS. GALLOP, ON EXTENDED
 MATERNITY
 LEAVE.  ANY POSSIBLE INFERENCE OF DISCRIMINATION AGAINST MS.
 HOBBS WAS
 AFFIRMATIVELY LAID TO REST BY RESPONDENT'S OFFER TO HER
 REQUEST, OF A
 JOB IN PERSONNEL.  OF COURSE, AS MR. OWENS VERY PROPERLY TOLD
 HER,
 PERSONNEL WORK, OTHER THAN IN A PURELY CLERICAL CAPACITY, IS
 EXCLUDED
 FROM THE BARGAINING UNIT.  THE FACT THAT AN EMPLOYEE MUST ELECT
 BETWEEN
 MOVING TO A JOB OUTSIDE THE BARGAINING UNIT AND GIVING UP UNION
 OFFICE
 OR RETAINING UNION OFFICE AND EMPLOYMENT IN THE BARGAINING UNIT
 DOES NOT
 CONSTITUTE DISCRIMINATION WITHIN THE MEANING OF SEC. 16(A)(4).
 
    ACCORDINGLY, AS THE PREPONDERANCE OF THE EVIDENCE FAILS TO
 DEMONSTRATE THAT RESPONDENT HAS ENGAGED IN OR IS ENGAGING IN
 ANY UNFAIR
 LABOR PRACTICE AS ALLEGED IN THE COMPLAINT, PURSUANT TO SEC.
 18(A)(8) OF
 THE STATUTE, 5 U.S.C. 7118(A)(8), AND SECS. 2423.28 AND 2423.28 OF THE
 REGULATIONS, THE COMPLAINT IS HEREBY DISMISSED:
 
                                   ORDER
 
    IT HAVING BEEN DETERMINED THAT THE PREPONDERANCE OF THE
 EVIDENCE
 FAILS TO DEMONSTRATE THAT RESPONDENT, NAVY PUBLIC WORKS
 CENTER, NORFOLK
 NAVAL BASE, HAS ENGAGED IN OR IS ENGAGING IN ANY UNFAIR LABOR
 PRACTICE
 IN VIOLATION OF SEC. 16(A)(1), (2) OR (4), OF THE STATUTE, 5 U.S.C.
 7116(A)(1), (2) OR (4), AS ALLEGED IN THE COMPLAINT, THE COMPLAINT
 HEREIN BE, AND THE SAME IS HEREBY, DISMISSED.
 
                         WILLIAM B. DEVANEY
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUNE 5, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ HEREINAFTER, FOR CONVENIENCE OR REFERENCE, SECTIONS OF THE
 STATUTE ARE ALSO REFERRED TO WITHOUT INCLUSION OF THE INITIAL
 "71"
 PORTION OF THE STATUTE REFERENCE.  FOR EXAMPLE, SECTION
 7116(A)(1)
 SIMPLY AS "16(A)(1);" HOWEVER, UNLESS OTHERWISE SPECIFICALLY
 INDICATED,
 ALL SUCH REFERENCES ARE TO CHAPTER 71 OF THE STATUTE.
 
    /2/ JULIA D. HOBBS, THE SUBJECT OF THE ALLEGED UNFAIR LABOR
 PRACTICES, WAS A MEMBER OF LOCAL 53'S NEGOTIATING COMMITTEE
 AND A
 SIGNATORY OF THE AGREEMENT.
 
    OF COURSE, IT IS TRUE THAT EXECUTIVE ORDER 11491, AS AMENDED,
 UNDER
 WHICH THE AGREEMENT WAS NEGOTIATED, DID NOT MENTION
 "CONFIDENTIAL"
 EMPLOYEES;  HOWEVER, THE ASSISTANT SECRETARY, IN VIRGINIA
 NATIONAL
 GUARD, HEADQUARTERS, 4TH BATTALION, 111TH ARTILLERY, A/SLMR NO. 
 69, 1
 A/SLMR 332, 335 (1971), HELD THAT "ALTHOUGH CONFIDENTIAL EMPLOYEES
 ARE
 NOT MENTIONED...I CONSIDER THAT IT WOULD BEST EFFECTUATE THE
 POLICIES OF
 THE EXECUTIVE ORDER IF EMPLOYEES WHO ASSIST AND ACT IN A
 CONFIDENTIAL
 CAPACITY TO PERSONS WHO FORMULATE AND EFFECTUATE
 MANAGEMENT POLICIES IN
 THE FIELD OF LABOR RELATIONS ARE EXCLUDED FROM BARGAINING
 UNITS." SEE,
 ALSO, DEPARTMENT OF THE TREASURY, BUREAU OF ENGRAVING AND
 PRINTING, CASE
 NOS. 22-08989 (CA) AND 22-08990 (CA) (ALJ, APRIL 23, 1979).
 
    /3/ IN ADDITION, IN JANUARY, 1979, A POSITION OF PERSONNEL CLERK
 GS-4, A SUPPORT POSITION TO THE PERSONNEL CLERK GS-5, WAS
 CLASSIFIED;  A
 REGISTER WAS ESTABLISHED IN FEBRUARY, 1979;  BUT, BECAUSE OF THE
 CEILING
 ON HIRING, THE GS-4 POSITION WAS NOT FILLED AT THAT TIME.
 
    /4/ I AM AWARE THAT MR. SMITH TESTIFIED THAT HE HAD RECEIVED
 UNSUBSTANTIATED INFORMATION THAT THE POSITION HAD BEEN
 COMPROMISED (TR.
 60, 76);  BUT ASSUMING THAT MS.  HOBBS WAS WHOLLY FREE OF
 CRITICISM,
 NEVERTHELESS, THE POTENTIAL CONFLICT OF INTEREST WAS, AND IS,
 FULLY
 RECOGNIZED BY THE PARTIES BY VIRTUE OF THE EXCLUSION OF SUCH
 EMPLOYEES
 FROM THE BARGAINING UNIT.