[ v11 p521 ]
The decision of the Authority follows:
11 FLRA NO. 91 UNITED STATES DEPARTMENT OF INTERIOR, OFFICE OF THE SECRETARY, U.S. GOVERNMENT COMPTROLLER FOR THE VIRGIN ISLANDS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3514 Charging Party Case Nos. 2-CA-100 2-CA-102 2-CA-342
The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of the complaint with respect to them. Exceptions to the Judge's Decision were filed by the General Counsel, and the Respondent filed an opposition to the General Counsel's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations except as modified below.
The Authority finds that the Respondent's inclusion of a comment in Union President Gardner's performance appraisal relating to Gardner's alleged critical statements to employees of the Government of the Virgin Islands pertaining to the assignment of Comptroller Office staff members to Saipan was improper and independently violative of section 7116(a)(1) of the Statute. Noting particularly that Union President Gardner had filed a grievance against the Comptroller of the Virgin Islands on behalf of three of the affected staff members protesting their assignment [ v11 p521 ] to Saipan, in the Authority's view, the inclusion of such a remark in a performance appraisal infringes upon the exercise of the right of union representatives to engage in protected activity and to freely present the views of the union without fear of penalty or reprisal pursuant to section 7102 of the Statute. However, with respect to the inclusion of the comment in Gardner's performance appraisal pertaining to Gardner's threat to take legal action when informed that personal calls could only be made or received during non-working periods, the Authority reaches a contrary conclusion, noting particularly that there is no evidence that Gardner's use of the telephone was for activity protected by the Statute. 1
With regard to the Order, the Authority agrees with the Judge's determination that the preponderance of the evidence shows that the appraisal would have been the same even in the absence of the comment found herein to have violated the Statute. Thus, the Authority will not order a new appraisal. 2 [ v11 p522 ]
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the United States Department of Interior, Office of the Secretary, United States Government Comptroller for the Virgin Islands, shall:
1. Cease and desist from:
(a) Threatening any employee with unfavorable treatment because of membership in and support for the American Federation of Government Employees, AFL - CIO, Local No. 3514, or any other exclusive representative, and, specifically, threatening any employee with unfavorable treatment because the employee, or the exclusive representative on behalf of the employee, has exercised the right to file grievances.
(b) Including any adverse comment in the performance appraisal of Leo L. Gardner Jr., or any other employee, which interferes with the exercise of protected rights under the Federal Service Labor - Management Relations Statute.
(c) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute:
(a) Post at its facilities at the Office of the Comptroller, St. Thomas, Virgin Islands, copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Comptroller for the Virgin Islands or his designee, 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 insure that said Notices are not altered, defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply herewith. [ v11 p523 ]
IT IS HEREBY FURTHER ORDERED that the complaints in Case Nos. 2-CA-100, 2-CA-102 and 2-CA-342 in all other respects, be, and they hereby are, dismissed.
Issued, Washington, D.C., March 9, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY
[ v11 p524 ]
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OR TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT threaten any employee with unfavorable treatment because of membership in and support for the American Federation of Government Employees, AFL - CIO, Local 3514, or any other exclusive representative, and specifically will not threaten any employee with unfavorable treatment because the employee, or the exclusive representative on behalf of the employee, has exercised the right to file grievances.
WE WILL NOT include any adverse comment on the performance appraisal of Leo L. Gardner Jr. or any other employee which interferes with the exercise of protected rights under the Federal Service Labor - Management Relations Statute.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.
_________________________ (Agency or Activity) Dated: ________________________ By: _________________________ (Signature)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this Notice, or compliance with its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region II, whose address is: Room 24-102, 26 Federal Plaza, New York, New York, 10278, and whose telephone number is: (212) 264-4934. [ v11 p525 ]
UNITED STATES DEPARTMENT OF INTERIOR, OFFICE OF THE SECRETARY, U.S. GOVERNMENT COMPTROLLER FOR THE VIRGIN ISLANDS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3514 Charging Party Case Nos. 2-CA-100 2-CA-100 2-CA-342 James F. Petrucci, Esquire Allan W. Stadtmauer, Esquire For the General Counsel Sherman O. Brawner, Esquire Mr. Herbert Bruce Dimmitt For the Respondent Mr. Leo L. Gardner, Jr. For the Charging Party Before: WILLIAM B. DEVANEY Administrative Law Judge
This proceeding, under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 [ v11 p526 ] U.S.C. 7101, et seq., 3 and the Final Rules and Regulations issued thereunder, Federal Register, Vol. 45, No. 12, January 12, 1980, 5 C.F.R. Chapter XIV, was initiated by a charge filed in Case No. 2-CA-100 on August 7, 1979 (G.C. Exh. 1(a)); a charge filed in Case No. 2-CA-102 on August 13, 1979 (G.C. Exh, 1(c)); a charge filed in Case No. 2-CA-342 on March 10, 1980 (G.C. Exh. 1(e)), a First amended charge in Case No. 2-CA-342 filed on May 20, 1980 (G.C. Exh. 1(g)); and a Second amended charge in Case No. 2-CA-342 filed on May 22, 1980 (G.C. Exh. 1(i)). On February 26, 1980, an Order Consolidating Cases, Complaint and Notice of Hearing, to be held on June 17, 1980, issued in Case Nos. 2-CA-100 and 2-CA-102 (G.C. Exh. 1(k)). Respondent by Motion dated May 21, 1980, requested that the hearing be rescheduled for September 1980 (G.C. Exh. 1(m)); Charging Party filed an Opposition to the Motion to Postpone dated March 26, 1980 (G.C. Exh. 1(n)); and by Order dated June 6, 1980, for good cause shown, the hearing was rescheduled to September 23, 1980 (G.C. Exh. 1(p)).
On, or about, June 30, 1980, the Regional Director issued a partial dismissal letter in Case No. 2-CA-342 (G.C. Exh. 1(q)). 4 On August 20, 1980, an Order Consolidating Case Nos. 2-CA-100, 2-CA-102, and 2-CA-342, Amended Complaint and Notice of Hearing issued (G.C. Exh. 1(r)), alleging violations of 16(a)(1), (2), and (4) of the Statute principally as to Leo L. Garner, Jr., although incidental violations as to Louis Turnbill, Ester Smith, and Helen Gumbs were also alleged (Paragraphs 15, 16, 17, and 21 of the Complaint), it being contended that Respondent had taken the actions described against these employees, in essence, because of their membership in the American Federation of Government Employees, AFL - CIO, Local 3514 (hereinafter, also, referred to as the "Union") and/or because they had engaged in activity protected by the Statute. By letter dated September 9, 1980 (G.C. Exh. 1(s)), Respondent requested a stay for the reason that Mr. Leo L. Gardner, Jr., had, on August 25, 1980, appealed his removal to the Merit Systems Protection Board (MSPS) and had asserted as grounds for his MSPS appeal the same allegations of retaliation for Union activities alleged, as to him, in the Amended [ v11 p527 ] Complaint herein. By letter dated September 10, 1980 (G.C. Exh. 1(t)), Respondent moved to take the deposition of Mr. Darrell Fleming, formerly Comptroller for the Virgin Islands, now retired and residing in Honolulu, Hawaii, who refused voluntarily to appear as a witness in the Virgin Islands because of fear for his personal safety.
By Order dated September 11, 1980 (G.C. Exh. 1(u)), the undersigned denied the request for stay and deferred action on the request to take the deposition of Mr. Fleming. The Order of September 11, 1980, stated, in part, as follows:
"With full recognition of the provisions of 16(d) of the Statute"1.
("1. 'Issues which can properly be raised under and appeals procedure may not be raised as unfair labor practices prohibited under this section ....' (5 U.S.C. 1716(d)")
Mr. Gardner's removal is not an issue in this proceeding, Whether any of the acts alleged in the Complaint as to Mr. Gardner can also properly be raised in the appeals procedure cannot be determined in the absence of an adequate record. Except as specifically precluded by the Statute, jurisdiction of unfair labor practices has been committed to the exclusive jurisdiction of the Authority and such jurisdiction will be exercised fully in this proceeding ...
"By letter dated September 10, 1980, Respondent has set forth grounds for taking the deposition of Mr. Darrell Fleming, who retired in August 1980 ... As there is not sufficient time prior to the hearing to provide for the taking of the deposition if otherwise appropriate, Respondent's request will be held in abeyance and considered further at the hearing if Mr. Fleming does not appear and if his testimony appears necessary." (G.C. Exh. 1(u)).
Pursuant to the Order Rescheduling Hearing of June 6, and the Notice of Hearing of August 20, 1980, a hearing was duly held on September 23, 24, 25, and 26, 1980, in St. Thomas, Virgin Islands; and, following further consideration of Respondent's motion to take the deposition of Mr. Fleming and the finding that his testimony was necessary, inn Washington, D.C. on October 21, 1980, before the undersigned. It was ordered, on September 26, 1980, that the hearing be reconvened on October 21, 1980, in Washington, D.C. for the purpose of taking the testimony of Mr. Fleming. [ v11 p528 ]
All parties were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues involved, and to present oral argument. On September 26, the date for filing post-hearing briefs was fixed as November 21, 1980, which date was reaffirmed at the conclusion of the reconvened hearing on October 21, 1980; however, at the request of the parties, and for good cause shown, including delay in receipt of the transcript, the time for the filing of briefs was subsequently extended, first to December 8, 1980, and finally to January 16, 1981. Counsel for the General Counsel and for Respondent each timely mailed very helpful briefs, received on or before January 21, 1981, which have been carefully considered. Upon the basis of the entire record, 5 including my observation of the witnesses and their demeanor, I make the following findings and conclusions:
Section 16(d) of the Statute provides, in part, as follows:
"(d) Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section ...." (5 U.S.C. 1716(d)).
Although Mr. Gardner was removed from Federal service effective July 25, 1980, and had an appeal of his removal pending before the Merit Systems Protection Board prior to the hearing in this matter, his removal was not an allegation of the Amended Complaint in this consolidated proceeding (See, Tr. 23). It is quite true, of course, that, in his appeal to MSPB of his removal, Mr. Gardner has asserted, in part, that this removal was based on a prohibited personnel practice, namely retaliation for Union activities, which is, also, alleged by the Complaint herein. Nevertheless, for reasons stated in the Order of September 11, 1980, the conclusion that, "... jurisdiction of unfair labor practices has been committed to the exclusive jurisdiction of the Authority and such jurisdiction will be exercised fully in this proceeding" is hereby expressly affirmed. See, also, 5 C.F.R. 752.401, et seq., 1201.151.
Mr. Gardner's removal, as well as his denial of a within-grade [ v11 p529 ] increase for the second consecutive year on February 21, 1980, are subject to a statutory appeals procedure and may not be raised as unfair labor practices (See, G.C. Exh. 1(q)) as to the denial of the within-grade increase and TR. 23 as to the removal). While issues subject to a statutory appeals procedure may not be litigated as unfair labor practices, the basis for such action i.e., denial of within-grade increase, performance evaluations which lead to removal, etc., cannot be divorced wholly from the unfair labor practices alleged. To the contrary, in any case in which it is alleged that action was by management for a proscribed reason, it is unavoidable that consideration must also be given to management's asserted reason for its action. In this case, the record showed, inter alia, that: (a) in 1978, Mr. Gardner's performance on the audit of the Fire Department had been found seriously inadequate to the point that it had not been possible to issue a report on the audit; (b) that Mr. Gardner was both counseled for his deficient performance and placed in a re-training program in 1978; (c) that Mr. Gardner was denied within-grade increases in 1979 and 1980; (d) that on March 30, 1979, Mr. Gardner's auditor-in-change had requested his removal from the audit team for the reason that "Based on the performance of Mr. Gardner ... it is my opinion that he cannot perform at the GS-510-12 grade level ... that Mr. Gardner requires close supervision and training ...." (Res. Exh. 28); (e) that Mr. Gardner's performance evaluation for the period April 2, 1979, to August 23, 1979, was below standard, i.e., either needed improvement or was poor (Res. Exh. 7). The various and consistent instances of Mr. Gardner's inadequate and poor work performance, from at least 1978, was neither denied nor was any evidence or testimony offered to rebut such assertions. 6 Indeed, his performance evaluation for the period August 23, 1979, to February 1, 1980 (G.C. Exh. 22), and in particular the comment, "Mr. Gardner failed to perform at a level generally expected from a GS-12 Auditor. In general, Mr. Gardner's work included substantial misstatements and incorrect conclusions which required an inordinate amount of supervisory review, additional field work to correct errors and the rewriting of draft findings and reports. In my opinion, Mr. Gardner's work is counter-productive and accordingly, I recommend that his future work be closely monitored to determine if he should continue working as a journeyman auditor" (G.C. Exh. 22) and the detailed basis therefor was not denied or challenged although certain comments under "Personal Characteristics", discussed hereinafter, were alleged in Paragraph 14 of the Complaint to have "included reference to his exercise of protected activity." Accordingly, I accept, as [ v11 p530 ] uncontroverted in this proceeding, that Respondent had cause, wholly unrelated to any proscribed reason or purpose, for disciplinary action against Mr. Gardner. Whether Respondent took any action with respect to Mr. Gardner for such proper and legitimate reasons or whether it took any action against Mr. Gardner, other than removal or denial of within grade promotions, because of his protected activity is the sole issue litigated and to be determined herein. Whether Mr. Gardner was, or was not, properly removed from service is subject to determination under, and has been raised under, a statutory appeals procedure; is not before me; and, or course, will not be determined herein.
There is no dispute whatever that Mr. Gardner at all time material has been deeply involved in protected activity and that Respondent was fully aware of his activity. Indeed, Mr. Gardner had been President of Local 3514 since 1974; had been the Union's chief negotiator in 1975 (Jt. Exh. 1); and had, over the years, filed numerous grievances under the negotiated agreement as well as numerous unfair labor practice charges; etc., all of which was well known by Respondent. General Counsel views the actions, set forth inn Paragraphs 8-14, 20, and 24 of the Complaint, taken against Mr. Gardner as having been motivated by Mr. Gardner's protected activity, i.e., in particular his having filed numerous grievances and unfair labor practice charges, as well as his being the focal point of union activity. Respondent asserts that the actions taken against Mr. Gardner were for legitimate reasons wholly unrelated to his Union and/or protected activity. For reasons set forth hereinafter, I agree that the actions taken against Mr. Gardner were neither motivated by his protected activity nor did his protected activity play any part in the decisions resulting in the actions complained of. There is no doubt whatever that if agency management takes action that affects employee terms and conditions of employment because of Union activity there is a violation of 16(a)(1) and (2) of the Statute, or that there was a violation of the essentially identical provisions of Sections 19(a)(1) and (2) of Executive Order 11491, as amended, just as such conduct would violate the essentially similar provision of Sections 8(A)(1) and (3) of the National Labor Relations Act. Internal Revenue Service, Boston District Office, Boston, Massachusetts and Internal Revenue Service, Andover Service Center, Andover, Massachusetts, 5 FLRA No. 96 (1981); Department of Health, Education and Welfare, Social Security Administration, Bureau of Hearings, and Appeals, Region II, San Juan, Puerto Rico, A/SLMR No. 1127, 8 A/SLMR 1092 (1978); Great Dane Trailers, Inc. v. NLRB, 78 LRRM 2384 (4th Cir. 1971) (Enf'g 186 NLRB 267, 76 LRRM 1849 (1970)), cert. denied, 405 U.S. 1041 (1972). Of course, Union activity may not immunize such action for valid reasons unrelated thereto. Department of Health, Education and Welfare, Office of Civil Rights, Region VI, Dallas, Texas, 5 FLRA No. 50 (1981); Department of Housing and Urban Development, Des Moines Insuring Office, A/SLMR No., 641, 6 A/SLMR 191, 6 A/SLMR Supp. 66 (1976); 2024th Communications Squadron, Moody Air Force Base, GA, [ v11 p531 ] A/SLMR No. 248, 3 A/SLMR 116 (1973); Veterans Benefits Office, Washington, D.C., A/SLMR No. 296, 3 A/SLMR 444 (1973); Department of the Navy, Hunters Point Naval Shipyard, A/SLMR No. 373, 4 A/SLMR 225 (1974); NLRB v. Smoky Mountain Stages, Inc., 447 F. 2d 925, 78 LRRM 217 (4th Cir, 1971); NLRB v. Booth American Co., 80 LRRM 3062 (6th Cir, 1972).
Although I have found, as set forth hereinafter, that Mr. Gardner's Union activity played no part in Respondent's decisions to take the actions complained of and, in this sense, no question of mixed motives is involved, nevertheless, I recognize that in any case where action affecting the conditions of employment of an employee involves an employee known to be active in protected union activity there is a suspicion, or presumption, that the action was motivated by the employee's protected activity. The presumption is, or course, rebuttable. Where it is shown that such action was taken for legitimate reasons unrelated to protected union activity and that the employee's protected union activity played no part in the decision to take the action complained of, no violation may be found. Realistically, a conclusion that protected activity played no part in the decision complained of is indistinguishable from a conclusion that the action complained of was not motivated by the employee's protected activity. However stated, obviously, the showing of union activity alone is not sufficient to establish a violation of 16(a)(2) of the Statute, or of 19(a)(2) of the Order; rather, it must be shown that "one of the reasons for agency management's conduct was based on union activity." Department of Health, Education and Welfare, Social Security Administration, Bureau of Hearings and Appeals, Region II, San Juan, Puerto Rico, supra, 8 A/SLMR at 1093; see, also Supplemental Decision, A/SLMR No. 1154, 8 A/SLMR 1266 (1978).
In Internal Revenue Service, Washington, D.C., 6 FLRA No. 23, 6 FLRA 96 (1981), the Authority stated, in part, as follows:
"... the Authority finds that the burden is on the General Counsel to make a prima facie showing that the employee had engaged in protected activity and that this conduct was a motivating factor in agency management's decision not to promote. Once this is established, the agency must show by a preponderance of the evidence that it would have reached the same decision as to the promotion even in the absence of the protected conduct.1
("1. Cf. Mt, Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) (involving conduct protected by the U.S. Constitution).")
"In the Authority's view, the application of such a test will serve to balance the legitimate interests and purposes of government with those [ v11 p532 ] rights assured to employees and their representatives under the Statute. Such a test serves the purposes of the Statute by making it possible to more thoroughly analyze the relationship between the agency action and the protected conduct of an employee. Under this test, therefore, both the General Counsel and the activity will have an opportunity to adduce evidence as to the motivating factors involved in the action or decision of the agency which is the basis of the complaint. If it is established by a preponderance of the evidence that the same action or decision of the agency would have taken place even in the absence of the protected activity, a complaint of violation of section 7116(a)(1) and (2) of the Statute will not be sustained. Conversely, if it is not established by a preponderance of the evidence that the action or decision would have taken place in any event the Authority will find a violation under section 7116(a)(1) and (2) of the Statute." (6 FLRA at 99). 7
Application of the Authority's test, as set forth in Internal Revenue Service, supra, to this case would result in precisely the same result; but the difference would be that, assuming, contrary to my conclusion, protected activity were considered, in part, nevertheless, Respondent did not violate 16(a)(1) and (2) of the Statute since I further find that it would have reached the same decisions, and/or would have taken the same actions, even in the absence of Mr. Gardner's protected activity.
(a) Paragraph 8 of the Complaint alleges:
"On or about March 19, 1979, and at all times thereafter, Respondent by William C. Caton applied a restrictive sick leave policy to Leo L. Gardner, Jr., an employee."
Paragraph 19 of the Complaint alleges that such action was because of "membership in, support for and activities on behalf of the Charging Party" and Paragraph 20 of the Complaint alleges that the action against [ v11 p533 ] "employee Gardner" was also "because he had filed charges under the Statute." 8
It is very true that Mr. Gardner was placed on "restrictive sick leave" and that no other employee had been subjected to such restriction. However, the record shows that:
(i) Section 8 of Article 21 of the parties' negotiated agreement provides:
"Section 8. Normally, employees will not be required to furnish a medical certificate or other acceptable evidence to substantiate a request for sick leave of three days or less. However, this shall not preclude management from requiring a medical certificate for absence of three days or less if management has reason to believe that an employee is abusing the sick leave privilege. When management believes that an employee is abusing the sick leave privilege, normally the employee will be counseled prior to being placed under written requirement to substantiate his request for sick leave and also sick leave taken." (Jt. Exh. 1).
(ii) On September 18, 1978, Mr. Gardner was counseled concerning his use of sick leave, including two specific instances of obvious misuse of sick leave.
(iii) On March 14, 1979, Mr. Caton counseled Mr. Gardner about his use of sick leave. Mr. Caton testified, without contradiction, that following the counseling in September 1978, Mr. Gardner had used little or no sick leave until about February 1979, when his use of sick leave had become quite heavy and his immediate supervisor (auditor-in-charge) reported to Mr. Caton that Mr. Gardner seemed to be on sick leave an excessive amount of time. Mr. Caton very credibly testified that Mr. Gardner on March 14, 1979, told him "the need for sick leave in the future would not be like it had been in the past and he saw no reason why he would need any more sick leave" (Tr. 786). Nevertheless, on March [ v11 p534 ] 16, 1979, Mr. Gardner was, again, absent on sick leave, and on March 19, 1979, Mr. Caton, pursuant to Section 8 of Article 21 of the parties' agreement, placed Mr. Gardner under written requirement to "substantiate his request for sick leave and leave taken." Imposition of such restriction was applicable only as to the future. The record shows that Mr. Gardner was counseled on March 14, 1979, for absence for sick leave for one or more hours on 10 of 19 working days from February 15 through March 8, 1979, or for absence on sick leave for more than 25% of the total hours for the period. In addition, Mr. Gardner had been absent for part of the day on February 14 (two hours annual leave, three hours sick leave) and on March 2, in addition to two hours sick leave, Mr. Gardner also had one hour annual leave. Such extraordinary utilization of sick leave, on seven occasions (eight including February 14) for one to four hours, in the absence of any obvious or apparent justification, coupled with Mr. Gardner's prior known abuse of sick leave for which he was counseled, clearly constituted "reason to believe that an employee is abusing the sick leave privilege" as provided in Section 8 of Article 21. The record shows that Mr. Gardner on March 14, when counseled by Mr. Caton, make no effort to show that his use of sick leave for the period February 15 through March 8 had been due to reasons set forth in Section 7 of Article 21. To the contrary, the record shows that Mr. Gardner told Mr. Caton that "the need for such leave in the future would not be like it had been in the past and he saw no reason why he would need any more sick leave." With no further explanation and the assurance on March 14 that he saw no reason why he would need any more sick leave, his absence, almost immediately thereafter, on March 16, 1979, on sick leave, prompted Mr. Caton's action, in accordance with Section 8, to place Mr. Gardner under written requirement to substantiate his future use of sick leave. I find no credible evidence that Respondent's action was based on any consideration except its reasonable belief that Mr. Gardner was abusing the sick leave privilege; such action was specifically provided for by the negotiated agreement; and Mr. Caton set forth in writing (G.C. Exh. 6) the basis for his belief that Mr. Gardner was abusing the sick leave privilege. 9 Had Mr. Gardner on March 14 shown that, on each occasion in question, his use of sick leave had been bona fide, any further action by Mr. Caton on the basis of such belief might have been suspect; but he made no such showing. Having assured Mr. Caton on March 14 that "he saw no reason why he would need any more sick leave", his absence on sick [ v11 p535 ] leave almost immediately thereafter, on March 16, resulted in Mr. Caton's letter of March 19, 1979, placing Mr. Gardner under written requirement to substantiate his future use of sick leave. Again, Mr. Gardner made no effort to show that Mr. Caton's reasons for believing that he had abused his sick leave privilege were unfounded. To the contrary, in his letter of May 1, 1979 (G.C. Exh. 7), his response had been,
"No proof to date has been presented to prove your allegations and to support your instructions contained in your memo ...." (G.C. Exh. 7).
However, Mr. Caton had set forth in detail his reasons for believing that Mr. Gardner had abused the sick leave privilege and if Mr. Gardner disagreed it was incumbent upon him to show that his use of sick leave had been for legitimate reasons, pursuant to Section 7 of the Agreement. Stated otherwise, Section 8 provides, in effect, that management may require a medical certificate for absence of three days or less "if management has reason to believe that an employee is abusing the sick leave privilege"; Mr. Caton set forth his reasons for believing that Mr. Gardner had abused his use of sick leave; and, unless, and until, refuted Mr. Caton's statement certainly constituted management's reason to believe that Mr. Gardner had abused the use of sick leave.
It is quite true that Mr. Gardner was the first and only employee required to substantiate sick leave of three days or less; however, Mr. Fleming credibly testified that an analysis had been made of the use of sick leave by all employees; that only one other individual's use of sick leave had appeared questionable and that individual had been counseled and that person's use of sick leave had changed considerably (Tr. 1033-1034). The record shows that Mr. Gardner, following his counseling in September 1978, for abuse of sick leave, for a time used little or no sick leave, quite possibly because of his re-training schedule; but in the February to March 1979, period his use of sick leave became unusually heavy and the pattern of his sick leave usage was such as to give Respondent reason to believe that he was abusing the sick privilege and, accordingly, Mr. Gardner was counseled again on March 14, 1979, at which time, as noted above, he assured Mr. Caton that he saw no reason why he would need any more sick leave; however, on March 16, 1979, Mr. Gardner was again absent on sick leave and Mr. Caton issued his letter of March 19, 1979. I have given particular attention to General Counsel's assertion that Mr. Gardner's protected activity played a part in Respondent's decision to invoke its right, pursuant to Article 21, Section 8, to require Mr. Gardner to substantiate his use of sick leave and find the record devoid of evidence that Mr. Gardner's protected activity played any part in Respondent's decision.
I am aware that Mr. Gardner testified that, "... all of these hours (G.C. Exh. 6) mentioned here except for four hours as I recall it, involved my going to see the Substance Abuse Clinic at the Department of [ v11 p536 ] Public Health in order to comply with the Court's Order." (Tr. 103). If Mr. Gardner's testimony were true no substantiation was provided at the hearing; but more important, if his use of sick leave on the dates set forth by Mr. Caton had been for legitimate reasons, as more fully set forth in Article 21, Section 7, Mr. Gardner made no effort on March 14, 1979, when Mr. Caton counseled him or in his response of May 1, 1979, to show that his use of sick leave on the dates in question had been for legitimate reasons, and therefore, that Mr. Caton's stated reasons for believing that he had abused the sick leave privilege were unfounded.
It must be emphasized that Mr. Gardner was never denied sick leave. After March 19, 1979, he was, however, required to substantiate his use of sick leave. Nor does the record show any hostility to the grant of sick leave to Mr. Gardner after March 19, 1979. To the contrary, the record shows that Mr. Fleming fully cooperated in granting Mr. Gardner sick leave on June 21, 1979, for Dr. Wiegand's examination, 10 including travel on official time to return to St. Thomas for the examination; and that his subsequent sick leave was approved without question when he provided substantiation, notwithstanding that some, medical certificates e.g., Res. 2, may have been given as an accommodation and not for actual medical care of Mr. Gardner (Tr. 718).
Accordingly, I concluded that Respondent's sole reason for placing Mr. Gardner under written requirement to substantiate his use of sick leave was its reasonable belief that Mr. Gardner, after counseling, continued to abuse the sick leave privilege and that the evidence fails to show that Mr. Gardner's protected activity played any part in Respondent's decision. Moreover, as stated by the Authority in Internal Revenue Service, Washington, D.C., supra, i further conclude that Respondent has shown by a preponderance of the evidence that, even if, contrary to my conclusion, Mr. Gardner's protected activity had played some part in its decision, it would have reached the same decision as to its invocation of its right under Article 21. Section 8, even in the absence of the protected contact. For the foregoing reasons, the allegations of Paragraph 8 of the Complaint and the portion of Paragraphs 19, 20, and 22-24 relating thereto are hereby dismissed.
(b) Paragraph 9 of the Complaint alleges:
"On or about April 6, and April 11, 1979, and at all times thereafter, Respondent, by Darrell E. Fleming, placed further restrictions on Leo L. Gardner, Jr.'s use of sick leave, in addition to those restrictions referred to above in paragraph 8. [ v11 p537 ]
On April 2, 1979, Mr. Gardner began work in St. Croix under Mr. Gary Kim and the record shows that Mr. Kim was not given authority to approve sick leave for Mr. Gardner. To this extent, approval of sick leave for Mr. Gardner may have been different; however, the record affirmatively shows that the Comptroller, Mr. Fleming, did not establish any restriction beyond those set forth in Mr. Caton's letter of March 19, 1979. That is, Mr. Fleming did not, on or about April 6 or April 11, 1979, place any further restriction on Mr. Gardner's use of sick leave. Indeed, Mr. Kim testified that Mr. Gardner submitted requests to him for sick leave; that he forwarded documentation to Mr. Caton (Tr. 505-507) when Mr. Gardner submitted it; and that it was he, not Mr. Caton, who gave Mr. Gardner initial consent to be absent on sick leave, subject to submission of documentation, although, to be sure, as Mr. Kim testified, he did not have authority to approve sick leave for Mr. Gardner (Tr. 506). Mr. Fleming testified that he did not give Mr. Kim authority to approve Mr. Gardner's sick leave for various reasons, including: Mr. Kim's imminent scheduled departure for Guam; and Mr. Kim's lack of familiarity with the problems of Mr. Gardner's use of sick leave. Mr. Fleming further stated that Mr. Gardner had, previously, failed to follow instructions (Tr. 951) which was fully confirmed by the testimony of Mr. Zelkind (Tr. 576). I find no evidence that indicates that Respondent gave any consideration to Mr. Gardner's protected activity in its decision not to give Mr. Kim authority to approve Mr. Gardner's sick leave; but, to the contrary, the record convincingly shows that Mr. Fleming's reasons were both reasonable, in view of the circumstances which had led to invocation of Section 8 of Article 21, and wholly unrelated to Mr. Gardner's protected activity. Nor does the record show that the decision had any effect whatever on Mr. Gardner. Thus, Mr. Gardner submitted requests for sick leave to Mr. Kim, his immediate supervisor; he submitted the required documentation to Mr. Kim; he was never denied sick leave; and all of his absences for sick leave were approved upon submission of documentation.
The reference to April 11, 1979, is to a statement in Mr. Fleming's letter Dated April 11, 1979 (G.C. Exh.4), to Mr. Bethel in response to Mr. Bethel's letter dated April 6, 1979 (G.C. Exh. 3). For the most part, Mr. Bethel repeated extravagant and unsupported, in part, indeed, knowingly false, 11 assertions by Mr. Gardner. I fully credit Mr. Kim's testimony that, on April 2, 1979, Mr. Gardner told him he had a medical appointment "that night" (Tr. 481) without reference to the actual time. Actually, Mr. Gardner, on cross-examination, stated, "And this appointment was after five o'clock" (tr. 218), not "at 5:00 p.m." as stated by [ v11 p538 ] Mr. Bethel. 12 In any, event, Mr. Bethel had stated that Mr. Gardner's assignment to St. Croix "will make it extremely difficult for him to keep any future appointment" to which Mr. Fleming responded in his letter of April 11, 1979, in pertinent part, as follows:
"He (Gardner) subsequently mentioned that he had several scheduled medical appointments for the future. He was advised that if his doctor would either call me or write me a letter stating that the appointments were urgent and could not be rescheduled following his St. Croix assignment, that I would work with him to be sure that he would be able to keep his medical appointments ..." (G.C. Exh. 4).
Rather than constituting a further restriction on Mr. Gardner's use of sick leave, Mr. Fleming's statement was obviously intended to insure that Mr. Gardner be able to keep all urgent medical appointments and to make the procedure as simple as possible. I find this apparent from the letter itself, which is further fully supported by Mr. Fleming's testimony, which I fully credit, and from the fact that Dr. Wiegand subsequently called Mr. Fleming to say that she would like to see Mr. Gardner at a specified time and Mr. Fleming immediately agreed to arrange for Mr. Gardner to be present and, of course, did so.
For all of the foregoing reasons, the allegations of Paragraph 9 of the Complaint, and the portion of Paragraphs 19, 20, 22-24 relating thereto are hereby dismissed.
(c) Paragraph 10 of the Complaint alleges:
"On or about April 5, 1979, and at all times thereafter, Respondent, by Darrell E. Fleming, disparately denied Leo L. Gardner, Jr. the use of official time for travel between St. Croix and St. Thomas."
Prior to 1978, there had been an Office of the Comptroller in St. Croix, as well as in St. Thomas; but in the summer of 1978 Mr. Fleming closed the St. Croix office. Two of the auditors, Messrs. Harris and De Lemeau, requested transfer to Saipan and were transferred about December 1978 and January 1979; and Mr. Kim, who had been in charge of the office, transferred to Guam about October 1979. While there was an office at St. Croix, employees from St. Thomas seldom were assigned to St. Croix for extended duty, and generally, traveled to and from St. Croix on a daily basis. (See, G.C. Exh. 28). [ v11 p539 ]
In distance, St. Croix is about 40 miles from St. Thomas and the commuting time is only about 20 minutes. Although the distance is less than the distance a large percentage of employees everywhere travel daily to work and the commuting time is less than the time the vast majority of employees routinely spend in travel to and from work, it is very true that travel between islands imposes total dependence on the schedules of carriers. Nevertheless, various air carriers provide frequent scheduled service between the islands.
Travel policy for extended TDY assignments in St. Croix prior to 1977 was somewhat uncertain since, as Comptroller Mosey's memorandum of May 3, 1974, (G.C. Exh. 28) indicated, travel to St. Croix was generally to be carried out by daily travel; but Mr. Edgar Harthman, audit manager, testified, in part, as follows:
"A. Well, the general policy as I recall, laid down many years ago: If you go to St. Croix for more than one day, you were generally expected to stay over. If for your own convenience, you want to travel back and forth on a daily basis, you were suppose to leave early enough, and come back late enough so that you put in your full eight hours of work.
"As I recall, that policy was laid down by (sic) employees some years ago, and I don't remember any Comptroller changing it." (Tr. 680-681).
The record is clear that soon after his assumption of duties as Comptroller in 1977, Mr. Fleming established the policy that anyone traveling to St. Croix would be allowed official time to travel over and to travel back, at the end of the assignment, or to travel back and forth when directed, but if they wanted to go back and forth at any other time, it would have to be on their own time, before and after the regular hours of work, although Mr. Fleming insisted on retaining some flexibility. Thus, he testified:
"... There are always instances and exceptions to a situation of that nature, and that I could state the policy and everybody would know what it would be, but they would also know that there would be instances when there would be exceptions to that." (Tr. 948).
Mr. Fleming stated his travel policy at a staff meeting in 1977 (Tr. 573, 947-948) and Mr. Caton was advised of the policy after he arrived in March 1978. Ms. Esther Smith admitted the policy changed when Mr. Fleming came (Tr. 447) and Mr. Gardner was specifically instructed by Mr. Harold Zelkind, who had been auditor in charge of the Business Licenses Audit, which involved St. Thomas, St. Croix, and St. John, to which Mr. [ v11 p540 ] Gardner had been assigned from late 1978 to early 1979, about a month of which had been spent in St. Croix, that:
"A. I told him that he would be allowed official travel on every first day of the assignment to St. Croix, he would be allowed official time to travel back. And, if he wants to return in-between that time, he would have to be on his own time and not on Government time.
"Q. Did you tell him this in advance of him going over?
"A. Yes." (Tr. 575-576).
Mr. Gardner did not adhere to Mr. Zelkind's instructions and on March 9, 1979, was issued a official reprimand. (G.C. Exh. 18, Tr. 951-952).
There can be no question that Mr. Gardner was fully aware, prior to his assignment to St. Croix on April 2, 1979, that the policy was that official time would be allowed for travel to St. Croix only on the first day and the last day of the TDY assignment unless he was directed to travel at other times or unless Respondent granted an exception. It is quite true that Mr. Fleming had instructed Mr. Caton to grant an exception for Messrs. Harris and De Lemeau, after approval of their requests for transfer to Saipan and pending their departure, whereby they were assigned to TDY from St. Croix to St. Thomas; they were placed on 5-day TDY, pursuant to which they were instructed to travel to St. Thomas on Monday and to return to St. Croix on Friday afternoon, i.e., travel on official time on Monday and Friday; and, in addition, they were allowed to return to St. Croix during the week when required to attend to administrative requirements for their permanent change of station to the Pacific and their work permitted. Mr. Caton was extremely unhappy about the situation and stated, "I could live through it one time but I would not want another travel assignment similar to that at all." (Tr. 793).
It is obvious that Mr. Gardner was aware of the exception granted Messrs. Harris and De Lemeau as was Mr. Kim. Indeed, this practice unquestionably led Mr. Kim to tell Mr. Gardner on April 2, 1979, that:
"I told him that as far as I knew that it was okay with me for him to travel back and forth on official time, Fridays going back and on official time, Mondays coming back." (Tr. 484).
However, when Mr. Kim subsequently discussed the matter with Mr. Fleming, Mr. Fleming told him "... that there would be no official travel allowed on Fridays and Mondays traveling back and forth from St. Thomas, seeing that the audit was on extended TDY assignment ...." (Tr. 485). [ v11 p541 ]
Mr. Gardner was not granted an exemption and Mr. Kim informed Mr. Gardner on April 5, 1979, that he would not be granted official time for travel to and from St. Croix. There was no impediment to Mr. Gardner's traveling to St. Thomas on his own time and, when he chose to do so, his travel was paid by Respondent since it was less than the cost of subsistence. The only justification shown for an exemption for Mr. Gardner was his personal convenience. I have considered carefully the assertions advanced to show Mr. Gardner's "compelling need" for an exemption and find them wholly lacking in merit. For example: (a) Emphasis was given to Mr. Gardner's visitation rights with his minor son; but the Order of the Court shows that, the right to visit with his son was "either Saturday or Sunday from 9:00 a.m. to 7:00 p.m., alternating with visits commencing at 9:00 a.m. on Saturday and concluding at 7:00 p.m. Sunday evening ...." (G.C. Exh. 2); (b) Even greater emphasis was given to the "Order" of the Court; but, strictly speaking, the Order of the Court (G.C. Exh. 3) provided in relevant part as follows:
"ORDERED that the Department of Welfare shall conduct a study of the home of the plaintiff and of the defendant ....
"ORDERED that defendant submit to an examination by the Department of Mental Health ...; and it is further
ORDERED that as to all the reports hereinabove mentioned, that the person or agency conducting the examination submit to the court ... a written report ... within thirty (30) days from the date of this Order (February 2, 1979) ...." (G.C. Exh. 2).
Had the Order been compiled with, the examination and reports provided for would have been completed long prior to Mr. Gardner's assignment to St. Croix; but, in any event, the fact that the Court provided for a study of the home of defendant, Mr. Gardner, and for an examination of defendant, Mr. Gardner, by the Department of Mental Health constituted no justification for exemption of Mr. Gardner from Respondent's travel policy since the record shows that Mr. Fleming fully cooperated in making arrangements for Dr. Wiegand to examine Mr. Gardner at the time she requested, including travel to St. Thomas on official time for such examination; (c) custody of the minor child during the absence, off-island, of his mother, Ms. Molloy, Mr. Gardner's former wife. The Order (G.C. Exh. 2) placed custody of the child in the plaintiff, Lorma Gardner (Molloy), and made no provision whatever for custody by Mr. Gardner. Ms. Molloy very credibly testified that she had made arrangements for the care of her son during her absence; that the Social Worker had gone with her to talk to the person who was to take care of her son was fully [ v11 p542 ] satisfied with the arrangement; that after Mr. Gardner had informed the same Social Worker that regardless of what I (Ms. Molloy) said, he was going to have him (his son) anyway. So, I called my attorney ... So he (Mr. Gardner) finally agreed to do what I wanted ..." (Tr. 713). Ms. Molloy further testified that, in fact, Mr. Gardner had not complied and that she got her son back after she returned "a little after 8:00 after I went to the police and had them accompany me to get him." (Tr. 717). In any event, while custody of the child during Ms. Molloy's absence might have warranted approved leave for Mr. Gardner in the event such contingency should arise, it certainly constituted no justification for exemption of Mr. Gardner from Respondent's travel policy. Indeed, I fail to see that Respondent's travel policy, even if the parties had been blessed with clairvoyance, had any bearing on the custody of the child. Certainly nothing in the record shows that Mr. Gardner could have cared for his son if he traveled on official time but could not if he had to travel on his own time.
Neither Mr. Gardner's assignment to St. Croix nor the establishment of Respondent's travel policy is before me. The travel policy long pre-dated Mr. Gardner's assignment to St. Croix in April 1979, was specifically known to Mr. Gardner, and was consistently followed except for the exception made for Messrs. Harris and De Lemeau after approval of their permanent change of station to the Pacific and pending their actual departure. No like justification existed as to Mr. Gardner and I find no credible evidence of disparate treatment of Mr. Gardner because of his protected activity. Indeed, the record dispels the inference of disparate treatment of Mr. Gardner. Thus, for example, at Mr. Gardner's request, it arranged for him to travel on official time and to work in St. Thomas on local holidays; it gave him tentative approval to work in St. Thomas the week of June 18 and when Respondent became aware that there was serious question concerning Mr. Gardner's representations, it advised him and requested that he submit justification, which was also set forth in Mr. Fleming's letter of June 13, 1979, to Mr. Bethle (Res. Exh. 13). No written justification was submitted, for the reason that, as the record shows, Mr. Gardner's representations were false. Nevertheless, Respondent, authorized Mr. Gardner to work in St. Thomas on June 18, however, Mr. Gardner called in on sick leave on June 18 and again, on June 19. (Tr. 975). In addition, as previously noted, Respondent arranged for Mr. Gardner to be present for Dr. Wiegand's examination. Finally, the allegation that Ms. Molloy was permitted to travel to and from St. Croix on four occasions in January 1979. It is true that she traveled on official time; however, she was counseled for having done so, and further action was not taken because she had been on extended sick leave and had missed the staff meeting and had, also, missed the audit meeting, as a result, as Mr. Fleming testified, there appeared to have been an honest misunderstanding and no prior incident. I find nothing in this incident to indicate disparate treatment of Mr. Gardner. He was fully aware of the travel policy, indeed had received a reprimand in March 1979, for failure to comply with it. [ v11 p543 ]
For the foregoing reasons, the allegations of Paragraph 10 of the Complaint and the portion of Paragraphs 19, 20, 22-24 relating thereto are hereby dismissed.
(d) Paragraph 11 of the Complaint alleges:
"On or about April 26, 1979, Respondent, by Darrell E. Fleming issued a written warning notice to Leo L. Gardner, Jr."
This is very true (See. G.C. Exh. 10); but I find nothing in the record that indicates that Mr. Gardner's protected activity played any part in Mr. Fleming "Warning - conduct" memorandum of April 26, 1979. To the contrary, the record fully supports Mr. Fleming's criticism of Mr. Gardner's conduct. Without detailing all of the events, the record shows, inter alia, that because Mr. Gardner was assigned to work at the Golden Grove Prison, which is at an isolated location in St. Croix, Mr. Kim instructed him to obtain a rental car; Mr. Gardner had a Budget Rent-A-Car credit card and went to the Budget office which was near the prison business office; but a few minutes later he returned and told Mr. Kim he was unable to get a car because a deposit of $300.00 was required, which he did not have, because he declined collision insurance as such insurance is not a reimbursable expense. Mr. Kim called Mr. Fleming and Mr. Fleming called Budget which told him that if an acceptable credit card were used no deposit was required. 13 Mr. Fleming told Mr. Kim that Budget informed him that a deposit was not required, nor was insurance, and Mr. Gardner returned to Budget and, using his credit card, obtained [ v11 p544 ] an automobile. I give no credence to Mr. Gardner's testimony that he "was not willing to use my personal credit card because you cut off your credit." (Tr. 128). First, as Mr. Gardner noted (G.C. Exh. 9), on March 30, 1979, a substantial travel advance had been approved for him for more than $3,300.00. Second, although the record does not show when he received the particular travel advance, and certainly he had not received it by April 4, the record does show that he received a substantial travel advance. Third, I have found that Mr. Gardner did not communicate to Respondent at any time any unwillingness to use his credit card. Fourth, he did return to Budget and used his credit card.
On the following day, April 5, Mr. Gardner requested official time on Friday, April 6, to return the rental car because, he represented, Budget closed at 5:00 p.m. and he had to have time to put gasoline in the car before he turned it in. Mr. Gardner was correct that the posted hours at Budget's Main Office were 0800 to 1700; but the posted hours at the Airport were 0700 to 1930 and Mr. Gardner admitted that he left rental cars at the Airport. (Tr. 220). Moreover, as Mr. Fleming stated, had Mr. Gardner made any effort to inquire, Budget's policy was "(we'll wait for late returns if requested; employee normally in office until 1800)" (Res. Exh. 21); and, of course, there was no requirement by Budget that the car be filled with gasoline when turned in. Without more, and I am aware that Mr. Kim very credibly testified that Mr. Gardner made a vulgar statement concerning Mr. Fleming, Mr. Fleming had ample cause for issuance of his memorandum of April 26, 1979, and there is nothing that even remotely suggests that Mr. Gardner's protected activity played any part in his decision. Accordingly, the allegations of Paragraph 11 of the Complaint and the portion of Paragraphs 19, 20, 22-24 relating thereto are hereby dismissed.
(e) Paragraph 12 of the Complaint alleges:
"On or about December 11, 1979, Respondent, by Jay L. Gerst, suspended Leo L. Gardner, Jr., for two days."
This is also quite true; but I find nothing in the record that indicates that Mr. Gardner's protected activity played any part in Respondent's decision. On March 9, 1979, Mr. Gardner was given a reprimand for failure to be at his work site by 8:00 a.m. and to remain until 5:00 p.m. while on TDY in St. Croix. After his assignment to St. Croix in April 1979, Mr. Gardner was late on repeated occasions, including April 3, May 21, May 30, June 4, and June 11. Messrs. Fleming, Caton, and Kim had repeatedly discussed the matter of his late arrival with Mr. Gardner, and on June 15, Mr. Kim advised Mr. Gardner in writing that, while his request to work in St. Thomas on June 18, 1979, was approved, for Mr. Gardner's personal convenience, he must work until 5:00 p.m. on Friday, June 15, and be at the jobsite at 8:00 a.m. on Tuesday, June 19, 1979. Mr. Gardner did not work in St. Thomas on June 18, but, [ v11 p545 ] rather, called in and requested sick leave on both June 18 and 19. Mr. Gardner was late on June 20 and, while Respondent states that he took the first available flight on June 20 (G.C. Exh. 20), he did not notify Respondent that he would be late, a failure for which Mr. Kim had repeatedly counseled him. Mr. Gardner was late again on June 21 and, from the Flight Number, may have taken the first flight available; but, again, did not advise Respondent that he would be late. On June 22, Mr. Gardner was late for the third consecutive day, and on this occasion, obviously, had not taken the first available flight, nor did he advise Respondent that he would be late. By memorandum dated August 3, 1979 (G.C. Exh. 18), Ms. Lola E. Rowe notified Mr. Gardner that Respondent proposed to suspend him from duty without pay for two working days for failure to follow time and attendance requirements. Mr. Gardner responded by letter dated October 29, 1979 (G.C. Exh. 19) and Respondent, by letter dated November 27, 1979 (G.C. Exh. 20), after consideration of Mr. Gardner's response, found that "the reason for proposing your suspension is valid" and "it is my decision that you will be suspended on December 12 and December 13, 1979 ...." (G.C. Exh. 20). I find no evidence that any consideration entered into Respondent's decision to suspend Mr. Gardner except his consistent failure and refusal to comply with Respondent's instructions. With full recognition that Mr. Gardner wanted to travel back and forth to St. Thomas during the week of June 18, although his representations to Respondent were less than forthright, Mr. Gardner made no effort to notify Respondent on June 20, 21, or 22 that he would be late despite repeated counseling that he must do so and, on June 22, offered no justification for his failure to have taken the first available flight. While other employees were late, as Mr. Gardner had repeatedly been late, the record shows that only Mr. Gardner persisted, after counseling, in failing and refusing to comply with Respondent's instructions.
Accordingly, as the record fails to show that Mr. Gardner's protected activity played any part in Respondent's suspension of Mr. Gardner for two days, the allegations of Paragraph 12 of the Complaint and the portion of Paragraphs 19, 20, 22-24 relating therein are hereby dismissed.
(f) Paragraph 13 of the Complaint alleges:
"On or about January 14, 1980, Respondent, by Michael Rickey, restricted Leo L. Gardner, Jr.'s use of a telephone."
(I am aware that the index of the transcript shows the name as both "Rickey" and "Rickie"; however, the volume containing his testimony shows the name as "Ricki". Hereinafter, I have used the latter spelling.) [ v11 p546 ]
This is true; but I find nothing in the record that indicates that Mr. Gardner's protected activity played any part in Respondent's decision. There is no doubt that telephones are provided for conducting official business (Res. Exh. 9); however, it is equally true, as Mr. Caton testified, that government telephones are used for personal calls and "as long as you don't abuse the privilege no one is really concerned" (Tr. 776); but "If it affects your job, if it detracts from your job, then that is too much." (Tr. 776). Mr. Fleming, in a staff meeting in May 1979, had announced that use of the telephone would be limited, that is all employees should use discretion for personal telephone calls. (Tr. 776). Mr. Gardner was assigned to the Audit of Selective Interior Grounds under the immediate supervision of Mr. Michael Rickie on August 27, 1979. Mr. Rickie testified that Mr. Moore, another auditor-in-charge, told him that Mr. Gardner was on the telephone a lot. Mr. Rickie credibly testified as follows:
"A. It was first brought to my attention by another auditor that he was on the telephone a lot. And I began to observe myself and realized that he seemed to have an unusual amount of incoming calls and this was at the time he was very short of time and was not going to complete his deadline on the job.
"Q. What do you mean an unusual amount of calls?
"A. Four, five, six calls a day.
"Q. And what was the average length of these conversations according to your observation?
"A. Seven to fifteen minutes.
"Q. Did you talk to Leo about his use of the telephone?
"A. Yes, I did.
"Q. What was said at that time?
"A. I asked Leo why he was spending so much time on the phone. And I asked him if they were audit related. He said they were personal." (Tr. 738).
Mrs. Ellison testified that, prior to any restriction on Mr. Gardner, in January 1980, employees under her supervision told her it was taking a good deal of their time to answer the telephone and to take messages for Mr. Gardner because he was already on the telephone; that his individual [ v11 p547 ] calls lasted 30 to 40 minutes in some instances; and that he was getting a great deal more calls than any other employee. 14
After his discussion with Mr. Gardner, Mr. Rickie further testified that he discussed the matter with Mr. Caton, somewhere between January 14 and January 17, and that Mr. Caton told him that:
"... there was nothing that said a person had to take personal phone calls during business and interfered with the job." (Tr. 739).
Mr. Rickie further testified:
"A. Okay, then I went back to Mr. Gardner and I told him that I felt that the phone calls were interfering with his work and I didn't want him receiving or making any phone calls outside of non-working hours and this would be before 8:00, during breaktime in the morning, in the afternoon and after 5:00 ...." (Tr. 740).
Thereafter, when calls came in for Mr. Gardner, a message was taken and the caller informed that Mr. Gardner would call back. Initially all messages were given to Mr. Rickie who delivered then to Mr. Gardner; but after a couple of days, because it was taking too much of his time, Mr. Rickie had the messages delivered directly to Mr. Gardner. I found both Mr. Rickie and Ms. Ellison very credible witnesses. On the other hand, I did not find Mr. Gardner's testimony convincing. For example, his testimony concerning telephone calls,
"Some days none, I'll say one a day on the average." (Tr. 259).
was wholly contrary to all other testimony and was not entirely consistent with his own prior testimony that,
"I had received some calls, personal calls, business calls and also I took two or three calls from the law firm." (Tr. 173-174). [ v11 p548 ]
"I said I didn't receive a lot of telephone calls. I think I said three phone calls is what I received ...." (Tr. 174).
At the hearing, Mr. Gardner testified concerning the purported nature of his use of the telephone and, at one point, stated, "I never had a telephone call for twenty minutes or longer that wasn't FLRA approved" (Tr. 257) but the record does not show that Mr. Gardner even raised with Mr. Rickie the nature of the calls; nor does the record show that Mr. Gardner requested permission to use the telephone for Union business (See, Article 4, Section 5 and Article 25, Section 5 of Joint Exhibit 1). On the other hand, the record shows that Mr. Gardner was having difficulty meeting the time constraints for his assigned audit work; that he was spending a great deal of time on the telephone; that Mr. Rickie reasonably believed that Mr. Gardner's use of the telephone was interfering with his work, as he informed Mr. Gardner. The limitation imposed by Mr. Rickie on Mr. Gardner's use of the telephone remained in effect until Mr. Gardner was released from Mr. Rickie's audit. I conclude, from the preponderance of the evidence, that the restriction on Mr. Gardner's use of the telephone was prompted solely by Mr. Rickie's reasonable belief that Mr. Gardner's telephone calls were interfering with his work. Accordingly, the allegations of Paragraph 13 of the Complaint and the portion of Paragraphs 19, 20, 22-24 relating thereto and hereby dismissed.
(g) Paragraph 14 of the Complaint alleges:
"On or about February 29, 1980, Respondent, by Michael Rickey, issued a poor performance appraisal to Leo L. Gardner, Jr. which included a reference to his exercise of protected activity."
It is very true that Mr. Rickie's performance appraisal of Mr. Gardner was poor. (G.C. Exh. 22). Under "Personal Characteristics", Mr. Rickie did state, in part: Further, Mr. Gardner ... (i) ... threatened legal action when he was informed that personal calls would only be made or received during non-working periods ...." and "It was also brought to my attention by an employee of the Government of the Virgin Islands (GVI) that Mr. Gardner made disparaging remarks to other GVI employees regarding the assignment of Comptroller's Office staff members to Saipan. Such comments to the auditees, even when made during lunch break, are inappropriate because they are internal matters and have the potential of harming the reputation and integrity of this office." (G.C. Exh. 22).
Inclusion in a performance appraisal of any adverse criticism because the employee has announced his intention to file, or has filed, an unfair labor practice is clearly improper. National Labor Relations Board, Region 17, and National Labor Relations Board, A/SLMR No. 671, 6 [ v11 p549 ] A/SLMR 333 (1976). On cross-examination, Mr. Rickie admitted that he learned of assertedly disparaging remarks, not from an employee of the Government of the Virgin Islands, as he stated on the appraisal, but from an auditor of the Comptroller's Office, Lorma Molloy, Mr. Gardner's former wife. Nevertheless, Mr. Gardner admitted that at lunch the matter of the Saipan assignment had come up. (Tr. 183). However, the more basic difficulty is that Mr. Rickie did not state what Mr. Gardner was asserted to have said to employees of the Government. (Tr. 748, 757). From Mr. Gardner's testimony (Tr. 186-187) it is fair to assume that his comments were not complimentary to the Office of the Comptroller; nevertheless, as President of the Union he had the right to present the views of the labor organization "without fear of penalty or reprisal", Veterans Administration, North Chicago Veterans Hospital, North Chicago, Illinois, A/SLMR No. 1024, 8 A/SLMR 430 (1978), and, while the right is not without limitation, the record is devoid of any evidence or testimony that would warrant such restriction of Mr. Gardner's right to comment, cf., Highland Avenue Convalescent Home, Inc., 220 NLRB 998 (1975); Indiana Gear Works v. NLRB, 371 F. 2d 273 (7th Cir. 1967). Indeed, in Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563 (1968), the Supreme Court stated, in part, as follows:
"... in a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.
"In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment ...." (391 U.S. at 574).
Obviously, Pickering, supra, is distinguishable for a variety of reasons; nevertheless, Respondent's regulations on employee responsibilities and conduct, 43 C.F.R. 20.735-32(d), may not, any more than those relied upon by the Board of Education in Pickering as to a teacher, impede Mr. Gardner's statements in the absence of proof that his statement impeded his proper performance of his duties or interfered with the regular operation of the Comptroller's Office. Nothing in the record indicates that Mr. Gardner did more than express disagreement regarding the assignment of Comptroller's Office staff members to Saipan and his own employment by the Comptroller's Office was only "tangentially and insubstantially involved in the subject matter of the public communication".
Although both comments, referred to above, were improper I do not find that either comment constituted a violation of 16(a)(1), (2), or [ v11 p550 ] (4) for the reason that the preponderance of the evidence shows that the appraisal would have been the same even in the absence of such improper comments. First, the appraisal as to: Technical competence, planning, organizative and executive assignments, timely completion or assignments, working papers, oral communication, and written communication (item 1 through 6) was made without regard to "Personal Characteristics". Second, as to Personal Characteristics, Mr. Rickie stated in full as follows:
"Mr. Gardner evidenced a poor attitude, an unprofessional manner, a lack of self-control and inconsideration primarily when dealing with co-workers. At times, Mr. Gardner's surly attitude bordered on insubordination. For example, on two occasions Mr. Gardner referred to my instructions as 'gestapo tactics'. Further, Mr. Gardner made threatening remarks to me on two other occasions: (i) he threatened legal action when he was informed that personal calls can only be made or received during non-working periods, and (ii) he stated that he would deal with me (the AIC) later when informed that his court leave was approved for only the time necessary to testify and not the entire period requested.
"It was also brought to my attention by an employee of the Government of the Virgin Islands (GVI) that Mr. Gardner made disparaging remarks to other GVI employees regarding the assignment of Comptroller's Office staff members to Saipan. Such comments to the auditees, even when made during lunch break, are inappropriate because they are internal matters and have the potential of harming the reputation and integrity of this office."
I have considered the appraisal and Mr. Rickie's testimony and find nothing to indicate that the appraisal as to Personal Characteristics would have been different if the comments had ended following the words, "gestapo tactics". Indeed, Mr. Rickie testified, in part, as follows:
"In general his performance was very poor, it was the worst audit performance I have ever seen of a GS-12 auditor. His working basically unusable and will require extensive work to go through and salvage anything that is salvageable and complete the audit. The audit has not been completed to date." (Tr. 749).
Accordingly, even if the appraisal on item 9, Personal Characteristics, [ v11 p551 ] were upgraded, poor ratings on five items and "needs improvement" on another would not change Mr. Gardner's overall appraisal. Consequently, for the foregoing reasons the allegations of Paragraph 14 of the Complaint and the portion of Paragraphs 19, 20, 22-24 relating thereto are hereby dismissed.
(h) Paragraph 15 of the Complaint alleges:
"On or about October 1979, at all times thereafter, Respondent, by Darrell E. Fleming, disparately denied Louis Turnbull, Esther Smith, and Helen Gumbs, employees the use of official time for travel between St. Croix and St. Thomas."
Respondent's travel policy was changed after Mr. Fleming's arrival in 1977 and was consistently applied thereafter as more fully set forth hereinabove with regard to Mr. Gardner. To be sure, at one time, audit assignments to St. Croix were "generally ... carried out by daily travel to and from St. Croix" (G.C. Exh. 28); but, as previously set forth, this policy was changed and there is no credible evidence whatever to support the allegation that application of the travel policy to employees Turnbull, Smith, and Gumbs was disparate as to them. Indeed, the record is to the contrary. Accordingly, the allegations of Paragraph 15 of the Complaint and the portion of Paragraphs 19, 22-24 relating thereto are hereby dismissed.
(i) Paragraph 16 of the Complaint alleges:
"On or about December 27, 1979, Respondent, by Hal Zelkind, charged Helen Gumbs with AWOL for an absence occurring on or about December 14, 1979."
This is true (G.C. Exh. 27); but I find nothing in the record that indicates that Respondent's action resulted from any consideration except Ms. Gumbs' failure to obtain approval before leaving work on December 14, 1979. Ms. Gumbs was on TDY in St. Croix and had been sent to St. Thomas for a meeting with Mr. Fleming on December 14. The meeting, at which employees Gumbs, Smith, Turnbull, and Fallat were informed of their upcoming TDY assignment to the Pacific, ended at about 3:00 p.m. Ms. Gumbs decided to take time off after the meeting. She testified:
"... I looked for Mr. Zelkind because he came over with us that afternoon 15 and he was somewhere in the building, but I couldn't find him. [ v11 p552 ]
"Anyway, Mr. Caton was still in the meeting with Mr. Fleming, so I figures, I said 'Well, what I'll do, I'll just ask Ellie if Hal--Mr. Zelkind is around.' So, I did. And she said, 'Well, he is supposed to be here, but I can't find him.' So I said, 'Well, whenever Hal come in, tell him I need some time off.' She said, 'Okay, I'll make a note.'
"So, I took off...." (Tr. 396).
Ms. Gumbs admitted that she did not try to contact Mr. Heimer, who was audit manager for the audit to which she was assigned (Mr. Zelkind's immediate supervisor).
Although the record shows that, prior to Mr. Fleming's arrival as Comptroller, approval of leave by a supervisor had not been required, but this practice was changed by Mr. Fleming. For example, Ms. Smith (Tr. 456) and Mr. O'Bryan (Tr, 462) testified that the policy was changed in 1978 and, thereafter, they were required to contact their supervisor. Their testimony was fully confirmed by the testimony of Messrs. Fleming, Caton, and Zelkind and, accordingly, I do not credit Ms. Gumbs' testimony that the change occurred in late 1979. (Tr. 412). Of course, the inference that Ms. Gumbs gave that she would have had to return to St. Croix after the meeting (Tr. 396) and her statement that she "didn't have any work to do after the meeting" (Tr, 396) was directly contradicted by Mr. Zelkind who, very credibly testified, in response to an inquiry as to what she would have been expected to do after the meeting :
"... there is always work in relation to your papers, summarizing write-ups, that could keep you occupied." (Tr. 590).
Mr. Zelkind discussed the matter with Ms. Gumbs on December 17, 1979, and notified her that the would be charged AWOL for the two hours on December 14 (tr. 396, 589) and his memorandum of December 27, 1979 (G.C. Exh. 27) followed. I find no evidence that Ms. Gumbs' protected activity played any part in Respondent's action. To the contrary, the record shows that, as Mr. Zelkind stated in his memorandum of December 27, 1979, his action was taken for the sole reason that she had not followed established procedures for requesting and receiving approval for absence from work (See, also, Tr. 589). Accordingly, the allegation of [ v11 p553 ] Paragraph 16 of the Complaint at the portion of Paragraphs 19, 22-24 relating thereto are hereby dismissed.
(j) Paragraph 17 of the Complaint alleges:
"On or about December 15, 1979, Respondent, by Darrell E. Fleming, charged Louis Turnbull AWOL for that same day."
This is true, except as the date, which was December 17, 1979; however, this record shows that Mr. Turnbull, who was on TDY in St. Croix, had, rather than reporting for duty in St. Croix on December 17, 1979, come to the St. Thomas office. Mr. Turnbull testified as follows:
"Q. Did you go to the Comptroller's Office to speak with him?
"A. Yes, I asked to see him and he told me to come in. And after I got in he asked me what I was doing here and I told him, you said you could come in anytime and speak to you about the Saipan trip. And he said, well, you are supposed to first get approval from your AIC or your supervisor. But it was over a weekend. I had no way to contact my supervisor or anyone else regarding getting time to see the Comptroller. And he always had a open door policy when you come to talk to him. He did say Friday I could come in and talk to him at anytime. So, after going in there he said well, you are on AWOL. If you need leave you will have to go to St. Croix to your supervisor and request it and if he asks me about it I will approve it. So he sent me to St. Croix and put me on two hour leave AWOL, after he had told me that I could come in there anytime and speak about the Saipan trip. But he put me on two hours AWOL and sent me to St. Croix.
"Q. And you did go back to St. Croix?
"A. Yes, I did take the plane and go to St. Croix." (Tr. 303-304).
Mr. Turnbull's testimony, except for his denial that he attempted to contact Mr. Zelkind, i.e., "I had no way to contact my supervisor or [ v11 p554 ] anyone else", and Mr. Fleming's testimony are mutually corroborative. 16 Thus, Mr. Fleming testified as follows:
"Q. Did you ask him if he made arrangements with his supervisor?
"A. I did, and I asked him if he had approval from his immediate supervisor, who would have been Mr. Hal Zelkind, and he said no. I said did you make any attempt to and he said he had on Sunday tried to call Mr. Zelkind a couple of times but couldn't get a hold of him.
"I asked him if he had tried later in the evening, he said no. I asked if he tried to call Mr. Heimer, who is on the other island, he said no. I asked on what basis he decided to do this and he said I decided to come in. I said do you realize that places you in AWOL position, you are absent from your work station without approval, he said, yes, I realize that. I said, do you realize I am going to have to charge you AWOL for this time. He said yes, do what you think you have to do, and I directed him to catch the next plane to St. Croix, which he did." (Tr. 994).
There is no dispute that when Mr. Fleming arrived at the Federal Building on December 17 that he saw Mr. Turnbull with Mr. Gardner. (Tr. 302, 303, 993). I am aware that Mr. Turnbull later testified:
"... I said Mr. Fleming, didn't you really put me on AWOL because you saw me talking to Gardner downstairs, and this was like a man to man conversation. He said yes, I thought you were talking about some Union activities that would cause a next grievance so I put you on AWOL. I know it is not his former practice. I know I can go in there and talk to him at any time." (Tr. 318).
Mr. Fleming categorically denied any such statement. (Tr. 995). Indeed, he further testified, when asked if Mr. Turnbull asked why he was charging him AWOL: [ v11 p555 ]
"A. He didn't have to ask me why, I had already told him. I told him he was away from his duty station without approval." (Tr. 994-995).
I simply do not believe Mr. Turnbull. I found Mr. Fleming to be a very credible witness. On the other hand, I did not find Mr. Turnbull an entirely forthright witness. For example, as noted above, his assertion that he "had no way to contact my supervisor or anyone else" on December 15 or 16, was wholly contrary to his action on January 13, 1980; Mr. Turnbull repeatedly insisted that he "took all the leave that I had and tried to get this thing (his house) completed" (Tr 304, 335) but later admitted that he had more than enough leave to cover the time he worked during the two weeks prior to his scheduled departure for Saipan (Tr. 336, 337, 339) and, finally, that it was money availability (Tr. 378); Mr. Turnbull quite pointedly sought to obscure his absence from his duty station with an assertion that he had always been free to talk to Mr. Fleming (Tr. 318, 341) but admitted that this was the first time he had gone to the Comptroller's Office when assigned to duty on another Island and had not reported for duty (Tr. 341) and admitted that he knew he was suppose to be in St. Croix. (Tr. 345). Indeed, the record overwhelmingly shows that the policy under Mr. Fleming was that employees must request leave from their supervisor prior to leaving their duty site. I do not therefore credit Mr. Turnbill's statement that Mr. Fleming told him he placed him on AWOL because he saw him talking to Mr. Gardner. 17 Nor do I find that Mr. Fleming gave any consideration to the fact that he had seen Mr. Turnbull with Mr. Gardner. To the contrary, I find that the sole reason for Mr. Fleming's action was Mr. Turnbill's failure to obtain approval from his supervisor before absenting himself from his duty station. Accordingly, the allegations of Paragraph 17 of the Complaint at the portion of Paragraphs 19, 22-24 relating thereto are hereby dismissed.
(k) Paragraph 18 of the Complaint alleges:
"On or about January 15 through 18, 1980, Respondent by William C. Caton charged Louis Turnbull AWOL after having disparately denied his request for an extension of time before reporting to travel status."
It is very true that Mr. Turnbull was denied an extension of time, or a delay, of his assignment to Guam and, because Mr. Turnbull failed and refused to report was charged AWOL (Res. Exh. 32), but the record shows no disparate treatment of Mr. Turnbull. [ v11 p556 ]
The TDY assignment of Messrs. Fallat and Turnbull and Ms. Smith and Gumbs is not before me. For background purposes a brief statement concerning the matter will be helpful. The Office of the Comptroller for the Virgin Islands is part of the Office of Territorial Affairs which, in addition to the Office in the Virgin Island, also has a Comptroller's Office in Guam, for Guam, and the Trust Territories of the Pacific, and in American Samoa, for Samoa and the Northern Marianas. In May 1978, the Deputy Director of Territorial Affairs for the Comptroller's Office, Mr. Matt Novick, at a meeting of the entire staff explained that the Comptroller's Offices were being reorganized to achieve greater uniformity of training, operation, and quality of function; and that, to meet any imbalance of mission and resources, people would be detailed from one office to assist another office. Although personnel, including Mr. Heimer, had been sent on TDY from the Virgin Islands to the Pacific prior to May 1978, after Mr. Novick's visit such assignments became more frequent and various persons, including Messrs. Harthman, Hester, and Heimer, again, were sent on TDY to the Pacific. In November 1979, Mr. Novick advised Mr. Fleming that there would probably be a need for assistance from his Office on the annual audit in Saipan. Thereafter, in November 1979, Mr. Fleming disseminated this information at a full staff meeting. On December 11, 1979, a cable was received from Guam (Res. Exh. 30, Tr. 820) requesting four auditors grades 9 and 11 soon after the first of the year. Mr. Fleming responded that he had no grade 11 auditors and only two grade 9 auditors; that he had one grade 8 accounting technician; and offered, if acceptable, to send one GS-13 supervisory auditor, two GS-9 auditors and one GS-8 accounting technician. Mr. Fleming was advised that this was acceptable and he was directed to send them.
Accordingly, on December 14, 1979, Mr. Fleming advised employees Fallat, Turnbull, Smith, and Gumbs that they would be assigned on TDY to the Pacific, departing January 14, 1980. (G.C. Exh. 26). Mr. Fallat, the GS-13 supervisory auditor, was very pleased and left as scheduled on January 14, 1980. Smith and Gumbs were very unhappy about the assignment and, on January 10, 1980, obtained a temporary restraining order in the United States District Court which suspended their transfer. In early February 1980, the District Court dismissed their suit and dissolved the temporary restraining order and they eventually departed for the Pacific on February 6, 1980. 18
Initially, Mr. Turnbull had also been unhappy about the timing of the TDY assignment because he was completing construction of a house on which he had been working for three years. On December 31, 1979, however, he called Mr. Fleming and told him "it looked as if I could [ v11 p557 ] really go at that time, the 14th" (Tr, 335) and in January 1980, came to Mr. Fleming's office and confirmed that he was ready to go. (Tr. 996). Mr. Fleming left for Washington, D.C. on, or about, January 7, 1980.
On Sunday, January 13, 1980, Mr. Turnbull called Mr. Caton at home at about 6:30 or 7:00 p.m. and asked Mr. Caton to meet him at Sparkys. Mr. Caton agreed and met Mr. Turnbull, who was accompanied by a friend, Mr. Verne David, at Sparkys at 8:00 p.m. Later, at Mr. Turnbull's request, Mr. Caton also visited the house on which Mr. Turnbull was working. Mr. Caton was with Mr. Turnbull until about midnight.
There is no question that Mr. Caton told Mr. Turnbull that he could not make a decision on his request for postponement of his departure date (Tr. 44, 307, 352, 835); that Mr. Caton agreed to call Mr. Fleming the following morning; or that Mr. Caton did call Mr. Fleming the following morning at about 6:30 or 7:00 a.m. and portray to him "as closely as I could what I saw and what I had found out." (Tr. 836). Nevertheless, Mr. Fleming refused to postpone Mr. Turnbull's departure; Mr. Caton so informed Mr. Turnbull when he called at about 8:00 a.m. Mr Turnbull later came to the office and told Mr. Caton he was not going to take the plane and Mr. Caton told him he was on AWOL. (Tr. 839). By letter dated January 15, 1980 (Res. Exh. 32), which Mr. Caton delivered to Mr. Turnbull (Tr. 840), Mr. Caton confirmed his conversation of January 14, 1979.
I found Mr. Caton to be a very credible witness and I further find, as he testified, that, on Sunday, January 13, 1980, Mr. Turnbull asked if he had any recommendation and he responded:
"... yes, I did have a recommendation and that was to be packed and close to the airport in case you not get the postponement, he should get on the airplane and go. If he wasn't going to do that then possibly he should pursue a temporary restraining order so at least he will (sic) (be) legal for not going. The only other option was he was going to be AWOL." (Tr. 835-836).
Mr. Turnbull did, on January 14, 1980 (Tr. 312) see the attorney who handled the Smith - Gumbs suit and at about 5:00 p.m. on January 17, 1980, an amended complaint was filed which included Mr. Turnbull and the Court indicated that the temporary restraining order was intended to apply to Mr. Turnbull as of the date the amended complaint was filed. (Res. Exh. 18). Accordingly, Mr. Turnbull was charged AWOL for the period January 14 through January 17, 1980.
Mr. Turnbull's desire to complete his house is understandable, but, while he may have found his former residence too inconvenient because of the steps, his family, well prior to January 13, 1981 (Tr. 319) had moved [ v11 p558 ] out of the house with "103 steps" (Tr. 319) to stay either with his mother or her mother. (Tr 362). While Mr. Caton stated that Mr. Turnbull pointed out a bathroom wall which had not been completed to the ceiling as required by the Building Code, Mr. Turnbull avoided any reference as to when "Construction discrepancies" had been noted by the Public Works Inspector or, indeed, other than the wall Mr. Caton mentioned, what discrepancies "had to be corrected." (See Res. Exh. 33). As for time to correct such "discrepancies", Mr. Turnbull had considerable accumulated leave (Res. Exh. 36) which he could have taken but, instead, elected to work 25 hours during the last two weeks prior to his scheduled departure. (Res. Exh. 35). It is true that he was awaiting delivery of furniture; but he had not bought the furniture until January 10, 1980, in Puerto Rico. Nevertheless, Mr. Turnbull made no request whatever for an extension of time until Sunday, January 13, immediately prior to his scheduled departure on January 14, 1980. 19
Mr. Fleming testified:
"The basis for Mr. Turnbull's request to extend was to have some appliances delivered to his new home. We had been working with Mr. Turnbull for three years to the extent we could to allow him to get his home completed. We were informed as late as the first week in January that everything was okay. Then this is a week later, all of a sudden there is a need for a month extension and I just felt I had to make a management decision. I didn't see why he couldn't have family members, he has all kinds of relatives on the island, he has a lost of friends, very well-known, very well-liked individual, and certainly somebody else could have been there to open the door to receive the appliances.
"It didn't seems like a valid reason to me. Arrangements had been made, airline tickets, hotels, the whole thing." (Tr. 998).
"Disparate" means unequal or dissimilar and, certainly, it cannot be said that Mr. Turnbill was treated in an unequal or dissimilar manner than the other employees on this assignment. Mr. Fallat requested no delay but left on January 14, 1980, and Ms. Smith and Ms. Gumbs were not granted any delay by Respondent; to the contrary, the District Court, on January 10, 1980, had granted them a temporary restraining order. Nor do [ v11 p559 ] I find anything in the record that shows that Mr. Turnbull's protected activity played any part whatsoever in Mr. Fleming's decision. Accordingly, the allegations of Paragraph 18 of the Complaint and the portion of Paragraphs 19, 22-24 relating thereto are hereby dismissed.
(1) Paragraph 21 of the Complaint alleges:
"On or about January 13, 1980 Respondent, by William C. Caton threatened an employee with unfavorable treatment because of his membership in and support for the Charging Party."
This allegation related to Mr. Turnbull and concerned the discussion Mr. Caton had with Messrs. Turnbull and David, first at Sparkys and later at Mr. Turnbull's house. I found Mr. Caton's testimony far more credible than either Mr. David's or Mr. Turnbull's. Nevertheless, because Mr. Caton's own testimony demonstrates that he made some reference to Mr. Gardner's filing of grievances and admitted that he said he had no kind thoughts or feelings or consideration for anyone who harassed management with frivolous grievances, I find that Mr. Caton did say that, "I have no kind feelings for anybody that supports Leo Gardner", as Mr. Turnbull (Tr. 306) and Mr. David (Tr. 38) testified, notwithstanding that I found Mr. Caton's testimony, both as to the circumstances, which led to his statement, and the discussion itself, far more credible than either Mr. David's testimony or Mr. Turnbull's testimony. Thus, the record shows that, order Mr. Caton realized what Mr. Turnbull wanted to talk about, he told Mr. Turnbull:
"... I really shouldn't be there, I should not be meeting with him. Mr. Turnbull asked me why I should not be there. And I explained to him that on Friday, two days before, that the Union had filed a grievance on this very subject and that I should not discuss with him any matter of the grievance without a Union representative and that I was basically in error meeting and talking with him. Mr. Turnbull was surprised. He told me that he had not authorized anybody to file a grievance for him or in his behalf. 20 He said that was, it didn't really make any difference because he was a Steward, he could be the Union representative. I also to told Mr. Turnbull that as Friday, he was no longer Steward, that the Comptroller could talk too, because his name had been [ v11 p560 ] withdrawn from the notice that had been given to us. Well, he said if you are not supposed to be here what are you doing here. And I tried to explain to him that he was a member of my staff, he did have problems, I recognized that. He wouldn't be calling me on Sunday night if he didn't feel he had a very severe problem and I felt that as long as one of my staff needed help I could try to help if I could. 21 We then continued to talk about the house ..." (Tr. 829-830).
Mr. Caton subsequently stated:
"... I explained there was a Union that spoke for him. And it grew from that into the grievance filed with the Union. Over the past year I reminded Mr. Turnbull that over the last year I had spent numbers of hours, maybe hundreds, I don't know, and some of the other people spent equal numbers of hours responding to frivolous grievance ... And I told Mr. Turnbull I had no kind thoughts or feelings or consideration for anyone that would purposefully try to harm or destroy or distract from the mission of the Comptroller's Office ..." (Tr. 834).
On cross-examination, Mr. Caton admitted that there had been reference to Mr. Turnbull's support of Mr. Gardner, as follows:
"Q. Do you remember Mr. Turnbull's objecting to your saying he supported Mr. Gardner; do you remember him saying that?
"A. Yes, I do recall something along those lines." (Tr. 876).
Consequently, even if Mr. Caton did not use the precise words attributed to him by Messrs. David and Turnbull, it is apparent that he made it clear that he had no kind feelings for Mr. Gardner's filing grievances, which he considered frivolous, and that he asserted that Mr. Turnbull had supporting Mr. Gardner. [ v11 p561 ]
Because Mr. Caton first reminded Mr. Turnbull that a grievance had been filed on his behalf by the Union and then criticized the Union, and Mr. Gardner in particular, for filing grievances, which he considered frivolous, his statement did, inherently, interfere with, restrain, or coerce Mr. Turnbull's right, freely and without fear of penalty or reprisal, to file grievances, Internal Revenue Service and National Treasury Employees Union, Case No. 2-CA-72 (ALJ, March 12, 1981), and his further statement, after asserting that Mr. Turnbull had supported Mr. Gardner, that he had no kind feelings for anybody that supports Leo Gardner further violated 16(a)(1) of the Statute by interfering with the right of employees freely to file grievances, notwithstanding that Mr. Turnbull stated that he did not feel threatened (Tr. 352) and that Mr. Caton's statement wasn't said in a threatening manner. (Tr. 379). Indeed, Mr. Turnbull stated that, after Mr. Caton said it he was concerned that he wouldn't get the extension for that reason. (Tr. 379).
Accordingly, I find, as alleged in Paragraph 21 of the Complaint and the portion of Paragraph 22 relating thereto that Mr. Caton, on January 13, 1980, did in violation of 16(a)(1) of Statute threaten Mr. Turnbull with unfavorable treatment because of his membership in and support for the Charging Party and, specifically, because the Charging Party had filed grievances which he, Mr. Caton, considered frivolous.
Having found that Respondent engaged in conduct in violation of 16(a)(1) of the Statute, as alleged in Paragraph 21 of the Complaint and in the portion of Paragraph 22 relating thereto, it is recommended that the Authority issue the order, set forth below, to remedy the violation found, and that all other allegations of the Complaint be dismissed, I have given careful consideration to the violation found and have concluded that the Mr. Caton's statement, which I have found to have violated 16(a)(1), did not affect, or play any part in, the matters alleged in Paragraphs 8 through 18 of the Complaint. Accordingly, it is recommended that the Authority issue the following:
Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby orders that the United States Department of Interior, Office of the Secretary, United States Government Comptroller for the Virgin Islands, shall:
1. Cease and desist from:
(a) Threatening any employee with unfavorable treatment because of membership in and support for [ v11 p562 ] the American Federation of Government Employees, AFL - CIO, Local No. 3514, or any other exclusive representative, and, specifically, threatening any employee with unfavorable treatment because the employee, or the exclusive representative on behalf of the employee, has exercised the right to file grievances.
(b) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute:
(a) Post at its facilities at the Office of the Comptroller, St. Thomas, Virgin Islands, copies of the attached notice marked "Appendix" on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Comptroller for the Virgin Islands, and shall be posted and maintained by him for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Comptroller shall take reasonable steps to insure that said notices are not altered, defaced, or covered by any other material.
(b) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of Region 2, Room 241, 26 Federal Plaza, New York, New York, in writing within 30 days from the date of this order as to what steps have been taken to comply herewith.
WILLIAM B. DEVANEY Administrative Law Judge Dated: August 13, 1981 Washington, D.C.
[ v11 p563 ]
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT threaten any employee with unfavorable treatment because of membership in and support for the American Federation of Government Employees, AFL - CIO, Local 3514, or any other exclusive representative, and specifically will not threaten any employee with unfavorable treatment because the employee, or the exclusive representative on behalf of the employee, has exercised the right to file grievances.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of rights assured by the Statute.
____________________________ (Agency or Activity) Dated: _______________________ By: ____________________________ (Signature)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this Notice, or compliance with its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region 2, whose address is: Room 241, 26 Federal Plaza, New York, New York 10278, and whose telephone number is: (212) 264-4934. [ v11 p564 ]
Footnote 1 7102. Employees' rights "Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right-- (1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and (2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter.
Footnote 2 See Internal Revenue Service Washington, D.C., 6 FLRA No. 23 (1981). Further, in view of the fact, as noted by the Respondent, that Gardner's performance appraisal of February 29, 1980 has been removed from his official personnel folder and destroyed, no affirmative remedy requiring deletion of such comment is necessary.
Footnote 3 For convenience of reference, sections of the Statute hereinafter are also, referred to without inclusion of the initial "71" of the Statute reference, e.g., 7116(a)(1) will be referred to, simply, as "16(a)(1)".
Footnote 4 The text of the Regional Director's letter need not be restated as the letter is an exhibit; however, as the testimony and evidence for various reasons, including background, include references to matters specifically dismissed by the Regional Director, as to which no appeal was taken, it is essential to bear in mind that no allegation of unfair labor practice has, or may, be found as to any allegation specifically dismissed and as to which no Complaint issued.
Footnote 5 Initially, transcript volumes as furnished Respondent were not numbered consecutively. That is, the transcript for certain days was numbered consecutively either for A.M. and P.M. and/or for a particular day. By letter dated March 2, 1981, Respondent submitted a guide to conform page citations in their Brief to the correct transcript references. The letter of March 2, 1981, and the attached conversion table are hereby received as part of Respondent's Brief.
Footnote 6 Mr. Fleming, further, credibly testified that Mr. Phil Atkinson had verbally requested that Mr. Gardner be removed from his audit (Tr. 955). However, as this testimony occurred at the reconvened hearing in Washington, D.C., at which Mr. Gardner was not present, I have not relied on this removal from an audit since: (a) it is cumulative; and (b) Mr. Gardner had no opportunity to controvert it.
Footnote 7 The National Labor Relations Board has adopted a like test as to cases alleging violation of Section 8(a)(3) or (1) of the National Labor Relations Act turning on employer motivation. See, Wright Line, 251 NLRB No. 150, 105 LRRM 1169 (1980).
Footnote 8 Hereafter, reference will be made only to the Paragraph of the Complaint alleging the action complained of; however, the following Paragraphs of the Complaint which allege that such action was because of protected activity and which allege the Sections of the Statute asserted to have been violated, i.e., Paragraph 19 and 20, and the Paragraphs alleging violation of specific sections of the Statute, i.e., Paragraphs 22, 23, and 24, are, of course, part of the allegation even though not specifically repeated.
Footnote 9 In point of fact, Mr. Caton was in St. Croix when his letter of March 19, 1979, was finalized and he had asked Mr. Edgar A. Harthman, another Audit Manager, to sign it for him and deliver it to Mr. Gardner. Any inference that Respondent considered any factor other than the reasons set forth by Mr. Caton is further shown by the fact that: (a) it was not applied retroactively, even as to March 19, 1979, when Mr. Gardner again took sick leave; and (b) the reasons were solely those set forth in Mr. Caton's letter. See, G.C. Exh. 30.
Footnote 10 It is clear that Dr. Wiegand was the person referred to by Mr. Gardner in regard to the examination by the Department of Mental Health provided for in Judge Feuerzeig's order. See. for example, G.C. Exh. 3.
Footnote 11 Specifically, the asserted "directive that Mr. Gardner not return to St. Thomas on weekends". Mr. Gardner initially so testified (Tr. 116), but later admitted this was not true (Tr. 121).
Footnote 12 The record further shows that Mr. Gardner returned to St. Thomas on April 3, 1979, when he was late in arriving for work.
Footnote 13 The record shows, and I find, that Mr. Gardner intentionally misrepresented to Mr. Kim what Budget had told him or intentionally withheld information from Mr. Kim. I specifically do not credit Mr. Gardner's testimony that, on April 4, he "indicated to Mr. Kim, I was not willing to use my personal credit card ...." (Tr. 128). Rather, I fully credit Mr. Kim's testimony that "On April 4, he came back and told me that he could not get the car because he did not want to take out the insurance, and that the Rent-A-Car Office required him $300 deposit, otherwise, that he did not have the $300. April the 4th, that's all he told me" (Tr. 521) and further, that on, or about April 30, after Mr. Fleming's memorandum, "Mr. Gardner then indicated that he could have gotten the car had he used his credit card ... However, he did not tell me this on April the 4th ...." (Tr. 521). In this regard, I fully credit Mr. Fleming's testimony (Tr. 963), as he also stated in his memorandum on April 26, 1979, that the Budget representative on April 4, told him that she had told Mr. Gardner that a deposit was required only "if you don't have a credit card that they accept." (Tr. 963, G.C. Exh. 10). There is no doubt that this is Budget's policy (Res. Exh. 21) as Mr. Gardner well knew. (Tr. 129).
Footnote 14 Mr. Harthman testified that Mr. James Francis, a member of the Department of Conservation and Cultural Affairs of the Virgin Island, had told him that an auditor, identified by Mr. Harthman as Mr. Gardner, while performing as audit of his Department, had spent a lot of time receiving telephone calls. (Tr. 691).
Footnote 15 Actually, Mr. Zelkind did not come over with Smith, Gumbs, and Turnbull but traveled an hour or two later. (Tr. 587). Later Ms. Gumbs stated, "... his desk had all the papers on it and I know he did, because I looked for him. His desk was as if somebody is working here and he just stepped out to the men's room... I'm almost positive that he came. (Tr. 427).
Footnote 16 Mr. Turnbull's assertion that he "had no way to contact my supervisor or anyone else" was thoroughly discredited by his action on January 13, 1980, discussed hereinafter, when he called Mr. Caton.
Footnote 17 It is further interesting that on cross-examination Mr. Turnbull made no reference to any such statement. (Tr. 343, 344).
Footnote 18 Their TDY lasted 60 days rather than the 90 days originally scheduled. (Tr. 936).
Footnote 19 Mr. Turnbull submitted a written request on January 16, 1980 (Res. Exh. 33) to which Mr. Caton responded on January 17, 1980. (Res. Exh. 34).
Footnote 20 Mr. Turnbull later admitted, "There was a grievance submitted in my regard but I didn't personally submit it" (Tr. 380); but he knew it was submitted. (Tr. 380, 381).
Footnote 21 Mr. Turnbull stated, in part: "... we spoke about why he had come. I asked him, I said, if I can recall, he said he came here, you know, not as a favor, he came here because I was, I am employee of the office and my condition just as anyone else should be looked into ...." (Tr. 306).