[ v14 p289 ]
The decision of the Authority follows:
14 FLRA No. 54 DEPARTMENT OF THE AIR FORCE SCOTT AIR FORCE BASE, ILLINOIS Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23 Charging Party Case Nos. 5-CA-381 5-CA-386 5-CA-406 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the consolidated complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the Charging Party and the General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition thereto. /1A/ 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 recommendation dismissing the complaint. ORDER IT IS ORDERED that the consolidated complaint in Case Nos. 5-CA-381, 5-CA-386, and 5-CA-406 be, and it hereby is, dismissed. Issued, Washington, D.C., April 20, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Lt. Col. Gordon B. Finley, Jr. Capt. Lynn W. Dippold For the Respondent Mark B. Clevenger, Esq. For the Charging Party Sandra J. Lebold, Esq. For the General Counsel Before: ALAN W. HEIFETZ Administrative Law Judge DECISION Statement of the Case This proceeding arose pursuant to the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result of unfair labor practice charges filed January 31, February 2, and February 17, 1980, with the Federal Labor Relations Authority. Consequently, on February 26, 1980, the Regional Director consolidated these cases and issued a complaint alleging that the Department of the Air Force, Scott Air Force Base, violated 5 U.S.C. 7116(a)(1), (2), and (4) by (a) admonishing the president of the National Association of Government Employees, Local R7-23 (the Union or Charging Party) that he had been spending excessive time away from his work because of his duties as a Union representative and not enough time performing work for Respondent; (b) by threatening the president of the Union with the imposition of disciplinary action if he did not perform more work for Respondent and spend less time performing his Union duties; and (c) by issuing a performance appraisal to the president of the Union which was lower than previous appraisals as a result of his continued requests for, and use of official time for representational purposes and/or because of having filed unfair labor practice charges against Respondent. Respondent denies the allegations of the consolidated complaint. A hearing was held on June 11, 1981, at Scott Air Force Base, Illinois. All parties were afforded full opportunity to examine witnesses and to introduce evidence. Post hearing briefs were filed by August 4, 1981, and have been considered. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings, conclusions, and recommended order: Findings of Fact The Union is the recognized representative of all non-supervisory, non-managerial employees at Scott Air Force Base. As such, it represents approximately 3,000 of Respondent's employees. /1/ Carl Denton has been a Computer Systems Analyst at Scott Air Force Base since July 1973. He has been the president of the Union since May 1978 and, as such, he has been an extremely active and visible leader. Management officials, including Mr. Denton's immediate supervisors, Captain Dennis Hohman and Lt. Col. Anthony Serksnas, were aware of his activities on behalf of the Union. The collective bargaining agreement provides that Union officials will be allowed "a reasonable amount of official duty time" to conduct Union business. The Union official must request the time from a supervisor and must report to the supervisor how much time was used. The Consolidated Aerial Port Subsystems (CAPS) program goes to the heart of the Military Airlift Command mission. CAPS is a system designed to automate the handling of cargo and passengers world-wide. A significant aspect of the automation of what was initially a manual process is quality assurance. Mr. Denton was involved in initial meetings and planning and in the design stage of the CAPS project in 1977 and 1978. In the Spring of 1979, there were only three people in the Command Data Automation Office: Mr. Denton; an Air Force Chief Master Sergeant who was soon due to retire; and Captain Hohman who had been on board only a short while. Mr. Denton was the only civilian and therefore, management expected that he would remain in the job at Scott Air Force Base indefinitely while any military personnel assigned would probably be transient. The CAPS program was expected to continue in the developmental stage for several years and therefore, management looked to as much continuity of personnel as possible. All of these considerations led Lt. Col. Serksnas to tell Mr. Denton in May of 1979 that he had a GOL (golden opportunity for leadership) for Mr. Denton, that is, that he would become the CAPS Quality Assurance Manager. That month, Captain Hohman, with Mr. Denton's assistance, rewrote the latter's position description to reflect his new duties as CAPS Quality Assurance Manager. In June 1979, Mr. Denton received 160 hours of training to assist him in assuming those new duties. In recognition of the time demands on Mr. Denton as Union president, Lt. Col. Serksnas and Captain Hohman assigned two military computer specialists to assist him, they assigned some of the computer work to a government contractor, and they diverted much of his routine work to other divisions under Lt. Col. Serksnas' directorate. Both supervisors estimated that Mr. Denton could function both as CAPS Quality Assurance Manager and as Union president if Mr. Denton devoted between 10 and 20 hours per week to the CAPS project. Mr. Denton was not formally appointed to his new position until October 1979. The reason he began functioning in the position as early as May 1979 was to give him enough lead time to prepare for audits of the project in January 1980 which were considered to be major milestones or review points for the project. In sharp contrast to management's view of his new job, Mr. Denton asserts that it is a full time position and, as such, it is totally incompatible with his duties as president of the Union which take more than 40 hours per week. He continually objected to his assignment as CAPS Quality Assurance Manager from the beginning. However, his objections did not take on a more formal tone until the audits of the project approached. The audits of the CAPS project were scheduled from January 14 - 25, 1980. On January 11, 1980, the Friday before the Monday on which the audits were to begin, Mr. Denton wrote to his third line supervisor accusing Lt. Col. Serksnas and Captain Hohman of gross mismanagement in assigning him to be Quality Assurance Manager knowing how much official time he spends on representational Union activities. He wrote: . . . It is ridiculous to put a person who spends practically all his official duty time on representational duties for the Union, into a position of such extreme importance. The job of Quality Assurance Manager is a job that requires full time concentration. There is no way that I can stay up to speed and "manage" a project such as this. On Monday, January 14, 1980, Mr. Denton wrote to the Commander in Chief of the Military Airlift Command requesting an appointment to discuss his assignment. He wrote that both his assignment and his Union position were full time jobs and, as to his assignment, he stated: . . . It is a physical and mental impossibility for me to perform the duties they require of me and I believe that this is detrimental to the mission and represents gross mismanagement of the project. That same day, Mr. Denton filed an unfair labor practice charge (not a part of the consolidated cases at bar) to protest his assignment. During this same week there were regularly scheduled contract negotiations which had been ongoing for some three and one half months. Mr. Denton was the Union's primary representative. Negotiations were scheduled pursuant to ground rules which provided for sessions on Mondays, Wednesdays, and Thursdays from 9 a.m. to noon and from 1 p.m. to 3 p.m. Management expected that he would attend these sessions even during the audits. The audits did not go well. On Wednesday, January 16, Captain Hohman asked Mr. Denton to reschedule one collective bargaining session so that he could assist the audit team for several hours. He declined to do so /2/ and told Captain Hohman that the request was making him nervous and upset. Mr. Denton was out sick for the next two days and returned to work on Monday, January 21. /3/ On that day, Captain Hohman counseled him about his lack of preparation for and participation in the audits. The following chart illustrates the amount of time Mr. Denton devoted to his assigned job as opposed to his Union activities at Scott Air Force Base for the 12-month period beginning February 1979: (CHART OMITTED) /4/ On January 28, 1980, Mr. Denton returned to his worksite following contract negotiations and, at about 4:20 p.m., gave Captain Hohman a copy of his projected work schedule for the rest of the week. The schedule called for Mr. Denton to spend all of his time for Union activities. As Captain Hohman was reviewing the schedule by Mr. Denton's desk, Lt. Col. Serksnas came by and looked at it. Both supervisors told Mr. Denton that they thought it unfair to schedule 100 percent of his time for Union activities and none for his regular job. Mr. Denton indicated that he thought it was fair and that Captain Hohman would probably try to whittle the Union time down considerably. Mr. Denton threw up his hands and said, "Hey, it's kind of close to quitting time to be ganging up on me." Looking up at the clock and seeing that it was 4:30, Mr. Denton stood up to get his coat and said that it was time to leave. During this conversation Mr. Denton was grinning. /5/ As Mr. Denton began to leave he smiled and said, "Good night, Col. Serksnas." The Colonel replied, "Carl, I don't think I'm getting across to you. I think I've lost my sense of humor." Mr. Denton walked out as he was saying, "I only said 'Good night', sir." Col. Serksnas followed him to the hallway and said, "Carl, if you don't start doing more work for me, I'm going to take disciplinary measures against you." Mr. Denton said nothing but continued to walk. Col. Serksnas then said, "What can you do, file an unfair labor practice against me?" Mr. Denton paused and said, "I'm not sure that would be the appropriate action." Captain Hohman made an entry on Mr. Denton's 971 File, the supervisor's record of an employee, complaining that excessive Union time was being scheduled. On the next day, January 29, Mr. Denton filled out his daily request for Union time and give it to Captain Hohman who told him that Lt. Col. Serksnas wanted to meet with them. Mr. Denton was granted his request to have a Union representative with him during the meeting. Lt. Col. Serksnas did all the talking during this meeting of four or five minutes' duration. He told Mr. Denton that he wasn't satisfied with the amount of time he had been spending on the audits and that he did not think he was "up to speed" on the CAPS project. He wanted Mr. Denton to prepare for the next audits and asked him to postpone contract negotiations with the understanding that he would let him make up the time in the future when things quieted down. He repeated that Mr. Denton was not doing enough work for him, that he had provided significant help for Mr. Denton from various offices, and that if he did not pull his share, he would have to take disciplinary action against him. On January 31, Mr. Denton received his regularly scheduled annual supervisor's appraisal of current performance, covering the period May 1979 through January 1980. The appraisal was prepared by Captain Hohman and reviewed by Lt. Col. Serksnas. The appraisal is based on a grading from "A" to "G" according to the amount of supervision the employee would need if assigned a task with any one of the 21 characteristics listed. Overall, the 1980 appraisal was lower than those of 1978 and 1979; of the 21 grades, 10 were lower, 2 were higher and 9 remained the same. On the other than, the 1980 appraisal was significantly higher than those received by Mr. Denton in 1976 and 1977. According to Mr. Denton, nearly all computer specialists at his grade level receive all "A's". His appraisal history is as follows: (CHART OMITTED) Captain Hohman discussed the appraisal with Mr. Denton and criticized him for failing to be up to speed and for not enthusiastically accepting his new role as CAPS Quality Assurance Manager. Captain Hohman said that it was difficult for him to be objective about the rating because their relationship was strained by "outside happenings and outside things". He also said that although Lt. Col. Serksnas was in agreement with the rating, he got the impression that the Colonel thought the rating shouldn't be as high. Captain Hohman also testified credibly that he based his appraisal of Mr. Denton only on his actual job performance and that he did not consider any of Mr. Denton's Union activities in appraising him. Discussion and Conclusions The Complaint alleges that in violation of 5 U.S.C. 7116(a)(1), Captain Hohman, on January 28, "admonished the President of the Union that he had been spending excessive time away from his work because of his duties as a Union representative and not enough time performing work for Respondent. Similarly, the Complaint alleges that on January 28 and 29, Lt. Col. Serksnas "threatened the Union's President with the imposition of disciplinary action if he did not perform more work for Respondent and spend less time performing his Union duties." The evidence does not indicate the precise words of Captain Hohman's allegedly unlawful comments, but I have found that the substance of his remarks consisted of telling Mr. Denton that he thought it unfair to schedule 100 percent of his time for Union activities and none for his regular job. On both January 28 and 29, Lt. Col. Serksnas stated that if Mr. Denton did not start doing more work for him, he would take disciplinary measures against him. In order to evaluate these comments, they must be viewed within the context peculiar to this case. Obviously, Mr. Denton was chosen for the position of CAPS Quality Assurance Manager for two reasons. He had the technical qualifications for the job and, quite frankly, he was the only civilian available with both experience in the project and the capability of performing the required duties. The record does not show that anyone else had similar qualifications, experience, and availability. The conflict in this case arose because, although Respondent believed that Mr. Denton could perform his duties by devoting between 10 and 20 hours per week, Mr. Denton believed that he would have no time available for his official duties since his Union representational responsibilities would entail 100 percent of his work time every week. This conflict of views was not made any easier by the contract which provided that, as Union president, Mr. Denton would be allowed a "reasonable amount" of official time for his Union activities. Mr. Denton believed that 100 percent of his time would be reasonable. Respondent took the position that only 50-75 percent would be reasonable in view of the time it estimated would be necessary for him to devote to the CAPS project. As a matter of fact, during the 6-month period beginning February 197, Mr. Denton devoted an average of 15.08 hours per week of his time to his regular job. During this same period, he was spending 62.3 percent of his time on Union matters. This was within the amount of time contemplated by Respondent. However, during the next 6-month period, Mr. Denton devoted only an average of 8.68 hours per week to his official job, which means that he was spending an average of 78.3 percent of his time on Union matters. On occasion, Union matters took up to almost 92 percent of his time. According to the ground rules for contract negotiations, negotiating sessions were to take only a maximum of 15 hours per week, or 37.5 percent of a 40-hour week. While, on the one hand, contract negotiations began in earnest in the Fall of 1979 and Mr. Denton increased the amount of time he was spending on Union matters, on the other hand, management was becoming more concerned with the progress of the CAPS project as the January audits loomed nearer and nearer. With pressures increasing on both Mr. Denton and management, it is not surprising that matters began to come to a head in January. The first evidence that Mr. Denton took formal, written exception to his appointment as CAPS Quality Assurance Manager was his letter, written at the 11th hour, on the Friday before the Monday that the audits were to begin. On Monday, he wrote another letter and filed an unfair labor practice charge to protest his assignment. On Wednesday, although he was needed for the audit, he was unavailable because of contract negotiations, and, for the next two days, he was out with some form of illness or injury. As far as the audits went, he was less than useful to management in his role as Quality Assurance Manager. Having failed to secure Mr. Denton's assistance during the first week of the crucial audits, it is also not surprising that Lt. Col. Serksnas and Captain Hohman took exception to Mr. Denton's request for 100 percent of his time for representational purposes. While it is true that they had been approving in excess of 78 percent of his time for Union matters and that, on January 28 and 29, by requesting that he spend more time on his regular job, they were requesting that he spend less than 100 percent on Union matters, it is clear on this record that they were merely insisting that he adhere to the terms of the contract and that they believed that 100 percent of his time was not "a reasonable amount of official time". While Mr. Denton may have been encouraged to ask for more and more official time because all of his requests were granted by management, nevertheless, it is not unduly speculative to assume that at some point management would find the amount of time requested to be unreasonable. At 100 percent, that point had certainly been reached. While the short answer to Respondent's frustration might simply have been to deny Mr. Denton's request, citing the terms of the contract as justification, the tendered response was not to become intransigent but, rather to attempt to persuade Mr. Denton to moderate his demands and give consideration to Respondent's mission and his role in furthering it. Furthermore, in view of Mr. Denton's work performance over the several months preceding the audits, and his lack of preparation for and participation in those audits, it is not surprising that an admonishment to pull his load was forthcoming. Taking all of the evidence into consideration, I conclude that Mr. Denton's supervisors were threatening disciplinary action only based upon his work performance during the time he was actually on the job. The threat was not to take disciplinary action if he asked for a certain amount of official time. Under the circumstances, and finding no evidence of union animus, I conclude that the statements were not violative of the Statute and that the charges based on those statements should be dismissed. The Complaint also alleges that in violation of 5 U.S.C. 7116(a)(1), (2) and (4), Captain Hohman issued a Supervisory Appraisal of Employee Performance to Mr. Denton which was lower than previous appraisals and that the appraisal was lower because of his requests for official time and/or because he filed an unfair labor practice charge against Respondent. There is no question that Mr. Denton was engaged in protected activities at all times material to this Complaint, nor is there any question that Respondent was aware of this activity. The appraisal was lower than that received both in 1978 and 1979, but it was significantly higher than that received in 1976 and 1977. Although Mr. Denton testified that nearly all computer specialists at his grade receive all "A's" on their appraisals, Mr. Denton received all "A's" only once out of the seven times he was appraised, and that was on the first one in 1973. This checkered history of evaluation militates against a finding that the 1980 appraisal was, in any ordinary sense, remarkable. Of equal significance are Mr. Denton's own written words that "there is no way that I can stay up to speed and 'manage' a project such as this" and that " . . . It is a physical and mental impossibility for me to perform the duties they require of me." If Mr. Denton is to be taken at his own words, it would be remarkable if his appraisal were any higher than that actually rendered. In view of his admitted inability fully to perform his duties, albeit for reasons he asserts are related to the time demands of his Union office, I must conclude that there is certainly a rational basis, exclusive of any finding as to Union animus, for the appraisal he received in January 1980. That conclusion is buttressed by Captain Hohman's testimony, which I find to be creditable, and his written reasons for the appraisal, /6/ which I find to be unrebutted. Thus, I conclude that even were the General Counsel able to show that Mr. Denton's protected activity was a motivating consideration in his appraisal, Respondent has shown by a preponderance of the evidence that Mr. Denton would have received the same appraisal even in the absence of protected conduct. /7/ However, I conclude that on the evidence as adduced in this case, the General Counsel has not made a prima facie case of discrimination. Respondent's concerns over Mr. Denton's performance related only to his willingness and ability to fulfill his duties as CAPS Quality Assurance Manager. It is beyond cavil that he failed to perform those duties fully and adequately. The nature of the reason for that failure was not shown to be of particular concern to Respondent; only the failure itself was important. The fact that Mr. Denton was engaged in Union activities was only incidental. Other than the timing of the performance appraisal, which was coincidental, there is no other fact of record which could warrant a finding of Union animus. /8/ Under the circumstance, I cannot find that Respondent has violated the Statute as alleged. I recommend that the Federal Labor Relations Authority issue the following order pursuant to 5 C.F.R. 2423.29(c): ORDER ORDERED, that the complaint in Case Nos. 5-CA-381, 386 and 406 is dismissed. ALAN W. HEIFETZ Administrative Law Judge Dated: October 14, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1A/ The General Counsel's exceptions were untimely filed and, hence, were not considered by the Authority in reaching its decision herein. /1/ This finding is based on testimony adduced at the hearing. I reject inconsistent evidence tendered as an attachment to Respondent's brief. No foundation has been laid for its receipt at this late date nor for its substantive value as probative evidence. /2/ Under the ground rules, either party could cancel a negotiation session by notice to the other party. /3/ Mr. Denton filed a claim of traumatic injury under Workman's Compensation procedures. The record does not elaborate on the claim other than to note its connection with these two "sick days", and to indicate that the claim was denied with a finding of no causal relationship between injury and employment. There was no rebuttal evidence. /4/ This figure is calculated by dividing the total work hours available per month (less leave) by 40 hours. /5/ It is not clear why Mr. Denton was grinning or smiling during this episode. He described the situation as "very tense, tight" and that may account for it. Captain Hohman was given the impression that Mr. Denton was aware of the fact that because it was quitting time he could just get up and walk out. Lt. Col. Serksnas thought that Mr. Denton was not taking him seriously. /6/ Joint Exhibit 4. /7/ Cf. Internal Revenue Service and National Treasury Employees Union, 6 FLRA No. 23 (June 17, 1981). /8/ I do not find the comment of Lt. Col. Serksnas on January 28, 1980, to be evidence of Union animus. That comment, "What can you do, file an unfair labor practice against me?", was an isolated incident provoked by Lt. Col. Serksnas' impression that Mr. Denton was going to use the collective bargaining agreement's provision on official time to avoid engaging in any of his regular on-the-job duties. In any event, the appraisal was written by Captain Hohman whose testimony I find creditable and against whom I find no evidence of Union animus.