[ v14 p311 ]
The decision of the Authority follows:
14 FLRA No. 58 UNITED STATES AIR FORCE AIR FORCE LOGISTICS COMMAND WRIGHT-PATTERSON AIR FORCE BASE, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1138 Case Nos. 5-CA-519 5-CA-521 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices alleged in the consolidated complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge found further that the Respondent had not engaged in certain other unfair labor practices alleged in the consolidated complaint, and recommended dismissal of those portions of the consolidated complaint. Thereafter, the General Counsel, the Respondent and the Charging Party filed exceptions to the Judge's Decision and supporting briefs. 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 entire record in this case, the Authority hereby adopts the Judge's findings, /1/ conclusions and recommended Order. /2/ In adopting the Judge's conclusion that Respondent violated section 7116(a)(1) of the Statute when its supervisor took into consideration an employee's union activity in developing her annual appraisal, the Authority notes the Judge's finding that Respondent failed to show that there was any explanation other than union activity for the employee's lower rating. In adopting the Judge's conclusion that the Respondent did not violate the Statute when its supervisor talked to unit employees over the telephone concerning their purpose in attempting to reach the Union steward under his supervision, it is concluded that under the circumstances the supervisor's actions cannot reasonably be said to have tended to interfere with, restrain or coerce employees in the exercise of their rights under the Statute. Thus, after asking the employees whether their business with the steward was union-related, he informed each employee of the proper procedure under the parties' negotiated agreement for contacting the steward. This was done in a matter-of-fact manner, accompanied by no anti-union comments. No limits regarding employee access to the Union were suggested other than to inform employees of the proper procedure, and no impression reasonably could have been created that they should not seek union assistance. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, shall: 1. Cease and desist from: (a) Permitting supervisors and managers to consider union activities of Betty Jean Carroll, or any other employee, in the development of their performance appraisals. (b) Interfering with, restraining, and coercing Betty Jean, Carroll, or any other employee, in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Rescind the March 1, 1980, appraisal of Betty Jean Carroll, expunge it from her personnel file, and prepare a new appraisal which does not take into consideration her lawful activity as a union representative. (b) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding General of the Respondent, or his designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin 0oards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region V, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that those portions of the consolidated complaint in Case Nos. 5-CA-519 and 5-CA-521 found not to have violated the Statute, be, and they hereby are, dismissed. Issued, Washington, D.C., April 26, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY 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 permit supervisors and managers to consider union activities of Betty Jean Carroll, or any other employee, in the development of their performance appraisals. WE WILL NOT interfere with, restrain, and coerce Betty Jean Carroll, or any other employee, in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL rescind the March 1, 1980, appraisal of Betty Jean Carroll, expunge it from her personnel file and prepare a new appraisal which does not take into consideration her lawful activity as a union representative. (Activity) Dated: . . . By: (Signature) (Title) 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 questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region V, Federal Labor Relations Authority, whose address is: Suite 1359-A, 175 W. Jackson Boulevard, Chicago, Illinois 60604 and whose telephone number is: (312) 353-6306. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case Nos. 5-CA-519, 5-CA-521 Fred Hustad, Counsel For the Respondent Judith A. Ramey, Esq. For the General Counsel Before: FRANCIS E. DOWD Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute (Statute), 92 Stat. 1191, 5 U.S.C. 7101, et seq. It was instituted by the Regional Director of Region 5 by the issuance of an Order Consolidating Cases, Complaint and Notice of Hearing on July 30, 1980 based upon charges filed by American Federation of Government Employees, Local 1138, AFL-CIO, herein referred to as the Union or Local 1138. The original charge as well as the first and second amended charges in Case No. 5-CA-519 and the original and first amended charges in Case No. 5-CA-521 were served, by certified mail, on "Base Commander, 2750th Air Base Wing, Wright-Patterson AFB, Ohio 45433, Attn: Col. James E. Rigney Jr." (Jt. Exh. 1(b), (d), (f), (h), (j)). The dates of service were May 5, 1980, May 23, 1980, June 26, 1980 and July 23, 1980. The second amended charge (the final document of the series) was served by certified mail on Col. Rigney as well as on "General Bryce Poe, AFLC Commander, Wright-Patterson AFB, Ohio 45433," on July 26, 1980 (Jt. Exh. 1(1)). The "Order Consolidating Cases, Complaint and Notice of Hearing" was served on July 30, 1980, by certified mail, on "James R. George, Labor Relations Officer, 2750th Air Base Wing, Wright-Patterson AFB, Ohio 45433," and on "Fred Hustad, Office of the Staff Judge Advocate, 2750th Air Base Wing, Wright-Patterson AFB, OH 45433" (Jt. Exh. 1(h)). The Complaint was answered on August 18, 1980 by Mr. Fred Hustad who attests by his signature to the title of "Counsel for Respondent" (Jt. Exh. 1(o), p. 3). The Complaint alleges that Respondent, herein also referred to as AFLC violated Section 7116(a)(1) by interrogating employees and interfering with the Union activities of Vice President Betty Jean Carroll; violated Section 7116(a)(1) and (2) by suspending James W. Griffin for 3 days because of his membership and activities on behalf of the Union; and violated Section 7116(a)(1) by substantially lowering the performance appraisal of Vice-President Betty Jean Carroll from the preceding appraisal year. Respondent denies committing any unfair labor practices and asserts that the Authority does not properly have jurisdiction over AFLC or the 2750th Air Base Wing. /3/ A hearing was held in Dayton, Ohio at which the parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine, and cross-examine witnesses and argue orally. Briefs filed by Respondent and the General Counsel have been duly considered. Upon consideration of the entire record in this case, including my evaluation of the testimony and evidence presented at the hearing, and from my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact 1. The Air Force Logistics Command has a number of subordinate field facilities throughout the United States. The 2750th Air Base Wing, herein the 2750th, is one of those field facilities and, at all times material herein, has been an independent organizational structure, subordinate in the military structure at AFLC. 2. The 2750th Air Base Wing is located at Wright-Patterson Air Force Base, Ohio. Also located there is Headquarters, AFLC. Both AFLC and the 2750th are serviced by the Civilian Personnel Office of the 2750th and by the Office of Staff Judge Advocate. The latter employs Fred Hustad, Respondent's counsel in this proceeding. 3. At all times material herein, the following named persons occupied positions set opposite their names: Anthony Pansza - Supervisor, Resources Control Division, HQ, AFLC/LMDR Jan Webb - Supervisory Clerk Typist HQ AFLC/LMD John Ritner - Assistant to Directorate of APD Resources, HQ AFLC/LMD Terry Bockhorn - Computer Equipment Analyst (at occasional undetermined times material herein, Acting Supervisor, Resources Control Division), HQ AFLC/LMDR James H. Rigney, Jr. - Colonel, USAF, Commander 2750th Air Base Wing Patrick Fleming - Employee Relations Specialist, Civilian Personnel Branch, 2750/DPCER Carl E. Clay - Chief, Operations Branch, Security Police Division, 2750/SPA 4. On January 13, 1978, the National Office, American Federation of Government Employees (AFGE), AFL-CIO, a labor organization within the meaning of 5 U.S.C. 7103(a), was designated the certified bargaining agent for a consolidated bargaining unit of the employees of AFLC, as set forth in Articles I and II of the Collective Bargaining Agreement which was entered into between these parties. Accordingly, the National Office, AFGE is the exclusive representative. 5. Local 1138, AFGE, a labor organization within the meaning of Section 7103(a)(4) of the Statute is the designated representative for approximately 4700 employees of AFLC at Wright-Patterson. Some of these employees work for AFLC Headquarters; some of them work for the 2750th Air Base Wing. The relationship of the parties is governed by two documents, the AFLC-AFGE Master Labor Agreement effective April 1979 (Jt. Exh. 3) and a preceding local labor agreement, parts of which have carried over and are effective at the present time (Jt. Exh. 4). Local 1138 is an agent of National Office, AFGE. 6. Article 4 of the Master Agreement concerns the subject of "Official Time/Union Representation." Section 4:01 states, inter alia, that the "Employer agrees to recognize a total number of stewards at each activity equal to one steward to 80 employees in the bargaining unit or fraction thereof." Section 4:02 states that the Union will furnish the Employer with a list of the names of designated stewards "along with organizational symbols, designated area of representation and work station if appropriate, and base telephone extension(s)." Article 4:05 provides that if no shop steward is designated for a particular organization element, the steward at the next higher organizational element or the nearest available steward shall serve in that capacity for purposes of representing employees in Step 1 grievances. Article 4:07 provides a grant by the Employer for official government time to recognized stewards and elected officers to accomplish specified functions, including release from their work station. Article 4:08 grants each shop steward 25 hours official time on the first successive two-month period to assist employees in the shop steward's designated area in the preparation of informal grievances. Article 4:09 grants "a reasonable amount of official time" to stewards and elected officials for what may be characterized as more formal matters such as participation in grievance and arbitration proceedings, negotiations, serving on committees and attending meetings arranged by management. 7. Other relevant contractual provisions concerning official time for employees and union representatives are set forth below: SECTION 4:11: RESTRICTIONS ON OFFICIAL TIME No official time shall be authorized for functions not listed or referenced in this Article, unless otherwise mutually agreed by the parties. Moreover, official time is prohibited for any activity performed by an employee relating to the internal business of the Union (including the solicitation of membership, elections of Union officials, collection of membership dues, etc. SECTION 4:12: OFFICIAL TIME FOR EMPLOYEES Employees will be granted official time to prepare and present appeals and grievances under the Negotiated Grievance Procedure in accordance with Article 6. SECTION 4:13: OFFICIAL TIME RELEASE PROCEDURE The following procedures shall apply to employees and Union representatives who wish to leave their assigned work area on official time, as authorized under this Agreement. a. When a Union representative desires to leave his assigned work station to conduct authorized Union-Management business, that Union representative must first report to and obtain permission of his immediate supervisor. In requesting release, the Union representative will inform the supervisor of the nature of the function to be performed, destination, name(s) of employee(s) to be contacted, estimate duration, etc. b. Subject to the provision of this Article, and if work load conditions permit, the Union representative shall be released. If release cannot be granted because of work load considerations, the supervisor shall advise the Union representative when release would be appropriate. c. When the Union representative intends to meet with employees in another work area, the representative's supervisor shall make arrangements for such meeting with the first level supervisor of the employees involved, subject to work load conditions. d. Upon release, applicable portions of the AFLC Form 949 will be completed by the supervisor and the Union representative (see Appendix 1). e. Upon entering a work area other than his own to meet with unit employees, the Union representative shall advise the immediate supervisor of this presence, the employees to be contacted, and estimated duration. f. Upon completion of authorized Union-Management business, the Union representative shall advise the immediate supervisor of the contacted employees of his departure. g. Upon return to his work area, the Union representative shall advise his supervisor of his return. The supervisor shall sign the representative in on AFLC Form 949 and retain the form for accounting purposes. The Union representative shall be given a copy of the form when it is completed. h. For meetings called or approved by Management officials which require the presence of a steward, the management official arranging such meeting shall arrange for the steward's release through contact with the steward's supervisor. The management official arranging such meeting shall provide to that supervisor the information necessary for release. All other provisions of this section shall apply. This paragraph shall also apply to grievance presentation meetings held in accordance with Article 6, Grievance Procedure. 8. Also of relevance to this case is Article XXVIV, Sections B and C, of Joint Exhibit No. 4 dealing with carry-over provisions of the Master Agreement: Section B. Union representatives will be permitted to use Government telephones for local use, when necessary to conduct proper labor-management relations activities. The use of Government telephones for long distance calls (either through AUTOVON for commercial facilities) is not authorized. The telephone number of the AFGE Fairborn office will be listed in the WPAFB telephone directory. Section C. When a member of the bargaining unit desires to discuss a personal matter in private with the Union, existing space, suitable for a private discussion, will be made available as near the work site as practical. Arrangements for such space will be conducted by the Union representative with the supervisor concerned. Thus, Section B permits use of telephones by Union representatives during working hours, but does not specify what restrictions exist, if any, with respect to the amount of time to be used in such use. Section C permits a Union representative to make arrangements for space with the supervisor concerned but does not specify whether arrangements must be made orally (in person or over the telephone) or in writing. 9. Betty Jean Carroll was a computer specialist general in the Directorate of Resources Management during the pertinent period from December 1, 1979 through May, 1980 when the alleged events occurred, which are alleged unfair labor practices. Carroll was assigned to a Funds Management Work Group under the supervision at that time by Anthony Pansza. Carroll's work site is one large room, without partitions, populated by about 40 to 45 persons sitting at desks lined up in 8 rows, with about 5 desks in each row. She was in the middle of the room in the front of the 5th row of desks. The record does not disclose the size of the room or the distance between desks. 10. Carroll testified that she served as shop steward or chief steward, as well as being the Local Vice-President. Her major responsibility is to appoint and train shop stewards and supervise their activities. She also testified that in the past couple of years she has taken on the responsibility of prosecuting arbitration cases, testifying in unfair labor practice hearings, developing arguments for the FSIP, meeting with the FMCS, and negotiating at the local levels and for Council No. 214. She is chief steward for organizational entities without a designated steward and she handles a heavy grievance caseload. She represents about 3,000 employees, many of whom are located in her building. However, as vice-president she also services the base hospital, the Air Force Institute of Technology, and the AFALD organization, which are located throughout the area. She described her Union workload as extremely demanding and emphasized that management had the responsibility to communicate with her (and not the Local president) - as the contact point for all managers in the organization - for all briefings on reorganizations, changes in employment conditions, training, and any matters covered by the contract. Altogether, the Local represents about 4700 employees. To assist her, she has 9 other shop stewards. 11. Section 6:07 of the Master Agreement contains procedures for employee grievances. Step One requires an informal discussion between the employee and his or her supervisor. If the employee desires the assistance of a steward, the employee "will inform his supervisor of the nature of the grievance and request the assistance of the Area Shop Steward so that arrangements may be made to informally discuss the grievance." Upon being informed of the nature of the grievance, the supervisor may determine that it is not within his authority to resolve the matter, in which case he shall make arrangements with the appropriate management official with requisite authority to informally discuss the grievance with the employee and steward. 12. According to Carroll, bargaining unit employees were not familiar with the contract terms and procedures and for this reason she would receive telephone calls directly from employees, rather than from the employee's supervisor, as required in Section 6:0007(a)(1). When this happened she would ascertain the nature of the complaint or grievance and advise the employee that he or she should have their supervisor contact Carroll directly to arrange a meeting at a mutually acceptable time for all concerned. Carroll would complete a Form 949 Official Release Permit containing the names of the grievant, the supervisor, the building location, the work area, and the amount of time required. After her supervisor, Tony Pansza, approved her release, the form 949 would be placed on a clip board outside his office where it could be readily seen by the women working in what was called the "Administrative cluster." /4/ 13. The four women who worked in the administrative cluster, under the immediate supervision of Jan Webb, had the responsibility of answering the telephones. When they were not on the phone, they had typing duties to perform. 14. Supervisor Pansza testified that around October 1, 1979 a decision was made to upgrade their telephone capabilities and relocate phones, if necessary. So, at some time after that, he instituted a survey to ascertain how many telephone calls were being received and by which employees. He instructed Jan Webb to instruct the administrative cluster to make a record of all telephone calls for a period of two weeks. According to Pansza, the survey showed that Carroll, received a large number of calls, 3 to 5 times as many as any other employee. He stated that on some days there would be 25 phone calls in contrast to other employees receiving 2 to 4 calls. Pansza then examined the survey more closely, looking only at the 3-member group of which Carroll was a part. The GS-13 ADP Funds Manager received 18 or 19 calls, the GS-12 Journeyman received 34 or 35 calls, and Betty Jean Carroll received somewhere in the neighborhood of 118 or 119 calls. 15. Pansza also testified that he had received complaints from cluster employees to the effect that the excessive number of calls to Carroll interfered with their own work. Also, Carroll's own colleagues in her work group complained that when she was away from her desk or on the phone, they had to answer her intercom to explain that she was absent or on the phone and that this interfered with their work. 16. Carroll's excessive use of the telephone is also demonstrated by two witnesses for the General Counsel, Leslie Henderson and Lora Fite, both being cluster employees. Thus, Henderson testified that Carroll received a lot of calls, some of which lasted 20 minutes and that while Carroll was on the phone, other calls sometimes were waiting for her. Furthermore, Henderson admitted that she had spoken to her supervisor about this, that other cluster employees had complained, and that callers asking for Carroll were sometimes upset when Carroll had not returned their call or that Henderson did not know Carroll's whereabouts. 17. Lora Fite testified that Carroll received a large number of calls ranging from 1 to 20 minutes in length, that some callers were irritated when Fite couldn't explain Carroll's whereabouts, and that Carroll was still receiving, as of the date of the hearing, 10 to 20 calls each day. Further, Fite stated that sometimes there would be calls for Carroll on three lines at the same time. Fite admitted that she had mentioned this situation to her colleague and her supervisor. 18. On January 16, Carroll arrived at work at 8:55 a.m. and found that her supervisor had not approved her release to attend a 9:00 meeting with a grievant and Mrs. Mesher, who is in charge of workmen's compensation. She went to the meeting anyway. Upon her return, Pansza told her he wanted to discuss this matter as well as some other things. In their meeting, Carroll refused to take either annual leave or LWOP for the 1 1/2 hours she was gone. The record is silent as to what eventually resulted from this deviation from the contractual procedure. According to Carroll, it was during this January 16 meeting when Pansza told her of the survey and the fact that it showed she was receiving 90 percent of the calls. Carroll acknowledged that this was probably the right percentage because she admittedly had a very heavy telephone audience. Pansza inquired whether it was Union business and she replied that "for the most part," it was Union business. /3/ Carroll admits that Pansza told her that her excessive receipt of phone calls was working a hardship on the women in the cluster and that other employees were complaining. He also told her she was not carrying her share of the workload. Her response was that she was entitled by law to represent people and had to have time in her workday for such duties. His response was that she might do some of it at night. The record does not indicate whether Pansza and Carroll actually discussed how much time would be a reasonable amount of time or how much time represented compliance with the contractual provisions previously recited in this decision. 19. The complaint alleges that on January 18, 23, 25, 29, and at other times material herein, Pansza unilaterally scheduled and/or rescheduled meetings of Carroll in violation of Section 7116(a)(1). During this same January 16 meeting which commenced at 11:00, Pansza called in Terry Bockhorn and said he would like Bockhorn, Carroll, Ken Kora and the funds manager to meet with him at 1:00 that afternoon to discuss a new project. He then realized he had a conflict and instead set the meeting for the following morning. When Carroll pointed out that she had a conflicting meeting on a 3-hour negotiation session on transfer of workload schedules, Pansza replied, "Well, we will just cancel that." Although this particular meeting was cancelled and rescheduled, Carroll was permitted to attend two other meetings she had scheduled the afternoon of January 16. In summary, Carroll actually attended three meetings on January 16 concerning Union business, two with management's approval, and one without such approval. 20. Carroll testified that on January 18 she was advised she could only have one meeting per day and, since she had two scheduled, her meeting with Larry Charter on a grievance was rescheduled to January 23. However, on January 23 Carroll had a meeting with an FLRA investigator, which began in the morning and lasted until 3:00 thus preventing her from attending her 1:00 meeting with Charter. Instead of having her supervisor reschedule the Charter meeting, she herself called Crimm, Charter's supervisor and rescheduled the meeting for January 25, the same day she already had a meeting scheduled with workmen's compensation. So, since Carroll now had two meetings scheduled for the same day, January 25, acting supervisor Bockhorn rescheduled the latter one to January 29 at 9:00 a.m. As it happened, Carroll already had a negotiation session on ground rules scheduled for January 29 with Union President Cook, at 9:30 a.m. Since the meeting times conflicted, and since the 21-day time limit for grievances was running out, she chose to attend the meeting with Charter. Cook cancelled his meeting with Carroll and the record does not indicate whether it was rescheduled. In terms of past practice, Carroll testified that she used to make her own meeting arrangements and thus avoid any scheduling conflicts. Panzsa's involvement was to talk to other management officials about the nature of the meeting and the amount of time to be authorized. He did not have contact with the grievants themselves. 21. After the January 16 meeting at which Carroll was told about the survey, Carroll received some telephone calls at home and in this way learned that employees who called her at the office were being asked the purpose of their call. Actually, Carroll received calls dealing with a number of subjects, including grievances, classification appeals, promotion actions and back pay claims. Pansza admits that over a 2-day period he asked Webb to instruct the girls in the cluster to inquire with respect to anyone calling Carroll, whether the purpose of the call was to discuss Union business and if it was, the caller was referred to Pansza. Henderson, a cluster employee, did this 2 or 3 times; Fite didn't state how often she did it. Fite did say that if Pansza was not there she would ask the caller to leave a message which, of course, required the caller to identify himself or herself. a. One of the callers during this period was Betty Jane Malavich. She said that Pansza identified himself to her as Carroll's supervisor and inquired "Is this a personal call or a Union call? She replied "Union business" and Pansza said, "Well, according to the contract, I cannot allow you to speak to Miss Carroll." Malavich apologized, hung up, and called Carroll at home. b. Another caller, Mary Evelyn Hacker also testified as to her experience. When she first called Carroll she talked for 20 to 25 minutes, was told to obtain the job series from personnel and call back. On one of the occasions when she called back, she was told she would have to talk to Carroll's supervisor, who wasn't there at the moment. Later, Pansza called her, identified himself and, according to Hacker, asked her the nature of her complaint, which she began to relate. Pansza apparently thought she wanted to arrange a meeting with Carroll and told Hacker that he couldn't release Carroll to meet with her. Pansza also told her that she should see her supervisor who could call him and arrange for Carroll's release. She then went to her immediate supervisor, Major Johnson, who called Pansza and arranged for Carroll's release. Based upon my observation of Hacker, and her demeanor while testifying, I cannot accept her characterization of Panzsa's tone of voice as "threatening." She obviously is a sensitive person who may be upset easily, as shown by her reaction to the incident which triggered her grievance in the first place (and which I have not related herein). That she felt Pansza was "talking down" to her is probably more accurate and closer to the truth. c. Pansza stated that altogether there were about 8 to 12 calls referred to him during the 2-day period. His procedure was to first identify himself as Carroll's supervisor, then explain that under the provisions of the Master Agreement he could only release her on official business under certain conditions and that he would have to talk to the employee's supervisor. He recalled his conversations with both Malavich and Hacker. In the case of the latter, he needed to know a bit more about the reason she needed to see Carroll in order for him to decide whether it was proper to authorize official time. He finally concluded Hacker hadn't talked to her own supervisor and suggested she do so. 22. In March 1980, all employees in Carroll's work area (except herself and an employee who was soon to retire) received their annual appraisals. Panzsa's explanation for this delay was unsatisfactory and cannot be accepted. Eventually, on April 24, Carroll met with Pansza for a performance appraisal interview. Upon receipt of her written appraisal, Carroll quickly computed her "score" of 89 percent and remarked to Pansza that he had lowered her score considerably. (She received 93 percent in 1978 and 1979). According to Carroll, Pansza said that he felt it was justifiable, because she had a heavy Union workload all year, and had not carried her full load of the work. The foregoing testimony by Carroll was undenied by Pansza and unexplained in any manner. Pansza credibly testified, however, that there is no cut-off-score per se; rather, when a panel meets to establish a register it is influenced by the number of vacancies and prospective vacancies to be filled in determining the number of persons to be interviewed. Thus if 25 persons are needed, a line will be drawn on the list after the 25th name, regardless of the score. Of course, the lower one's score, the lower one's placement on the list. Therefore, if only a few names were needed, the scores of those selected would be "in the 90's or 95's." I find that the lowered score had the effect of limiting Carroll's opportunities to be considered for promotion. However, the record does not establish that but for the lowered rating, she would have been promoted. Case No. 5-CA-521 23. Don Cook became President of AFGE Local 1138 in January, 1980. Also, in January 1980, Local 1138 won a decertification election in a separate unit involving the Security Police which, until then, had been represented by Local 526, International Brotherhood of Police Officers (IBPO). Shortly after the election, James W. Griffin, the President of IBPO was appointed by AFGE as unit vice-president of AFGE. 24. On January 29, Griffin was on duty at a gatehouse at Gate 1-C. The gatehouse is a small building, about 5 x 9 feet in size, located at one of the entrance/exits to the base. Two lanes of traffic passed by the gatehouse entering the base; two additional lanes carried traffic leaving the base. The gatehouse was located in the middle of the street. The duties of the police officer assigned to Gate 1-C are set forth in Special Security Instruction Number 25 (Jt. Exh. 7(g)) which is posted in the gatehouse. The duties set forth therein were substantially more than merely checking cars for identification decals, as testified by Griffin. Moreover, the instruction clearly states that, with certain exceptions, the police officer is to remain outside of the gatehouse. More specifically, paragraph "m" states that loitering is not permitted and that visitor's questions will be answered without requiring them to enter the gatehouse. At approximately, 8:00 p.m. Griffin received a visitor at Gate 1-C while on duty. The visitor was AFGE Local President Don Cook who parked in his car near the gatehouse in a "no parking" area and left his emergency flasher on. He was in the gatehouse for 10 to 15 minutes. While there, he was seen by Patrick Fleming, an employee relations specialist, who was departing the base after having tutored a group of individuals in Social Studies at Bldg. 110. His written report (Jt. Exh. 7(a)) stated that the discussion between Cook and Griffin was so involved that Griffin "seemed to totally ignore the fact that a vehicle was leaving the base. The next day, Chief Clay called Griffin to his office and verified that Griffin permitted a visitor to enter the gatehouse. He asked the identity of the visitor and Griffin denied knowing his identity. Of course this was not true. In Joint Exhibit 7(d), Griffin stated that the visitor was asking for directions. This also was not true. At approximately 4:00 that same day, Chief Clay had Griffin report to his office and told him that "investigation" revealed the identity of the visitor as Union President Cook. Griffin declined to answer any further questions without union representation and the meeting was terminated. On February 1, a meeting was held with Chief Clay, Griffin, Union representative Betty Carroll and two other persons. Joint Exhibit 7(d) is a transcript of that meeting wherein Griffin states that Cook asked for directions concerning the positions of other gate shacks. At the hearing herein, Cook testified that he was making a safety inspection. What Griffin and Cook were talking about for 10 to 15 minutes is not particularly crucial to the outcome of this case. Suffice to say, I am unable to credit the testimony of Griffin and Cook in any respect. Griffin tried to cover up for Cook by not disclosing his identity when first confronted by Chief Clay and lied about the purpose of Cook's visit. Cook, tried to help Griffin (and himself), by attempting to have me believe that he was engaged in some sort of official business. Of course, if Cook really had a right to be there while Griffin was on duty and without some management official accompanying him, there was no need for Griffin to lie to Clay on January 30 or not to disclose this information during the February 1 meeting. In any event, Article 25, Section 14, states that safety inspections will be conducted by the employer, but the Union may accompany the inspection, which shall be conducted in a manner so as to preclude any disruption with the operations at a work site. 25. On February 21, Respondent issued a Proposal to Suspend Griffin for 5 days. A previous offense resulting in a 5-day suspension was considered in arriving at this proposed decision. Griffin replied in writing. The final decision was a 3-day suspension which was carried out on April 16-18. 26. Apart from Griffin and Cook, whom I do not credit, the General Counsel offered no other witnesses to support a theory of disparate treatment in the enforcement of the regulations described above. Discussion and Conclusions of Law Jurisdiction Respondent contends that Air Force Logistics Command is not an agency within the meaning of Section 7103(a)(3) of the Statute, but even if it is an agency, it is entitled to be separately named and served both in the charge and the complaint. Respondent appears to be contending that AFLC is independent from the 2750th Air Base Wing and, therefore, the two organizations should not be joined in the same charge and complaint. Stated differently, Respondent contends that AFLC is "entitled" to be separately named and separately served both in the charge and the complaint. The foregoing contentions eventually lead to the main contention that service of a charge as the 2750th as an "agent" of AFLC is improper service and, in a vain effort to show prejudice, Respondent alleges that it was "deprived" of an opportunity to be involved in pre-complaint settlement discussions. In resolving the foregoing contentions, I conclude first of all that Respondent, whether an agency or an activity, was properly named in the complaint and properly served. Secondly, Respondent is not "entitled" as a matter of right to be separately named in charges and complaints, such matters being within the discretion of the charging party and the General Counsel, respectively. Thirdly, having concluded that Respondent was properly served, I further conclude that it was not deprived of any pre-complaint settlement opportunity. Assuming, arguendo, that Respondent did not have a pre-complaint settlement opportunity, it nevertheless still could have elected to settle this case subsequent to issuance of complaint and chose not to. In my opinion, Respondent has not in any event demonstrated that it has been prejudiced by any actions by the Region. Accordingly, Respondent's contentions are rejected. Finally, in view of my decision herein to dismiss the allegations in Case No. 5-CA-521 concerning the acts attributed to agents of the 2750th Wing, I need not resolve the question of whether the General Counsel erred in not naming the 2750th Wing as a co-respondent. On the one hand, employees of the 2750th appears to be included in the same unit as AFLC employees (Jt. Exh. No. 4) and both AFLC and 2750th employees are served by the same personnel office and labor attorneys. On the other hand, it is not clear from the evidence in this record whether the 2750th is a separate and distinct entity and so operationally independent from the AFLC that it can stand alone for purposes of Section 7116(a)(1) and (2) violations. /6/ This same issue involving these same parties was raised by Respondent before Judge Sternburg and rejected by him in Case No. 5-CA-390 (OALJ-80-89, Sept. 12, 1980). /7/ That decision, which is still pending before the Authority on appeal, held that the 2750th was an agent of its parent organization, AFLC, and did not specifically have to be named as a co-respondent. /8/ In summary, and for the reasons stated above, Respondent's motion to dismiss for lack of jurisdiction is hereby denied. Monitoring of Telephone Calls to a Union Official There is no dispute that a telephone survey of incoming calls revealed that Betty Carroll received a substantial number of telephone calls, when compared with other employees. There is no dispute that Carroll's colleagues as well as the employees who had to answer the phones, complained to management that the excessive number of calls was a problem. Whether these calls were related to (1) business, (2) the union, or (3) personal matters, could only be determined by asking the caller to state the purpose of the call. In these circumstances, I believe it was reasonable for Respondent to instruct the employees who answered telephones to inquire whether the purpose of the call was Union business. The Respondent had justification for its action and by so doing did not violate Section 7116(a)(1). I also find that when the telephone caller was asked whether the purpose of the call was Union business, that this did not constitute interrogation within the meaning of Section 7116(a)(1). In the circumstances of this case, Respondent had justification for its conduct because this was a reasonable method of policing the contract which specifically limits the use of official time for Union activity to "a reasonable amount." I further find no violation of Section 7116(a)(1) in requiring employees who answered the phones to refer callers to the supervisor who could explain to the caller the proper procedures to follow in being released to see their steward, and vice versa. This is particularly so in this case where Carroll did not agree with the contractual procedure and had formulated her own procedure simply because she thought it was better and more convenient. As authority for the foregoing conclusions of law, see Department of the Treasury, Internal Revenue Service and IRS Richmond Office, 3 FLRA 18. With respect to the allegation that Pansza scheduled and rescheduled meetings of Betty Carroll, all he did was to establish a policy of limiting her meetings to one per day and then tried to enforce this policy. From the testimony of Carroll it seems obvious that her first priority was attending to her Union business no matter how many meetings were scheduled the same day. Nor was she the least bit concerned that 90 percent of the telephone calls were for her. I don't believe that Respondent's conduct was unlawful in the circumstances of this case. Furthermore, this situation must be viewed in terms of what could happen if Pansza continued to permit Carroll to deviate from the terms of the contract with management's acquiescence. Such condonation by management could mean that Carroll's release procedures would ripen into a past practice and become a condition of employment. But management has a right to prevent this from happening by taking appropriate steps to reaffirm established policy and assure uniformity in enforcement. HEW, Region 5, Chicago, 4 FLRA No. 98. Cf. Norfolk Naval Shipyard, 4 FLRA No. 91. Finally, with respect to all the alleged violations shown above the evidence does not establish an anti-union intent by Respondent. In fact, I agree with Respondent that what we really have here is a running dispute between Carroll and Pansza concerning her use of official time to conduct Union business. In this regard, it is the Respondent's view that such differences would be better resolved through the negotiated grievance procedure. However, I make no commend on this point. Lowering Carroll's Appraisal Rating The General Counsel contends, and there is no dispute, that Carroll received a lower performance appraisal rating than in previous years. According to the General Counsel, the reason for the lowered rating was Carroll's protected activity of representing the Union in a variety of ways as a steward and Union official. To establish a causal relationship between the lowered rating, on the one hand, and Carroll's protected activity, on the other hand, Carroll testified that she asked Pansza for an explanation at the time he handed her the appraisal and his answer was that she had had a heavy Union work load all year, and that had not carried her full load of the work. This testimony presents a prima facie case that Carroll's protected Union activity was a factor, perhaps even the sole factor, in her lowered rating. As noted previously, Carroll's testimony is undenied and, although Pansza testified at the hearing, he failed to explain the reasons for the lowered rating, and failed to show that rating was unconnected with Carroll's Union activities. There might well have been other explanations for the lowered rating but, if there were, Pansza failed to explicate them. Also, I conclude that his explanation for the unusual delay in giving her a rating was unsatisfactory and not credible. Accordingly, I find that Respondent violated Section 7116(a)(1) when it lowered her performance rating from previous years because, in my opinion, such conduct interfered with, restrained and coerced an employee in the exercise of her statutory right to engage in Union activity. U.S. Army, Corpus Christi Army Depot, Corpus Christi, Texas, 4 FLRA No. 80 and cases cited therein; Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, OALJ-81-161 (August 28, 1981). It is also my view that this violation can only be remedied by ordering Respondent to rescind and withdraw the 1980 appraisal which was tainted by considering Carroll's lawful Union activities, and by ordering a reappraisal without consideration of such lawful activities. San Antonio Air Logistics Center, 5 FLRA No. 22. Suspension of Griffin The General Counsel has the burden of proving that, in fact, the suspension of James Griffin was because of his membership in and his activities on behalf of the Union. That burden has not been satisfied herein. The fact of the matter is that Respondent had good cause to discipline Griffin because he violated regulations. The General Counsel may suspect that Griffin was being singled out because he was a Union official or because his "visitor" was a Union official, but suspicion is not enough. Likewise, Respondent may have suspected that Griffin and Cook were engaged in internal Union business on official time, but they couldn't prove that either. The credited evidence does not establish that Griffin was the subject of disparate treatment, nor am I able to find any anti-union animus on the part of Respondent. Accordingly, I recommend dismissal of this allegation in the complaint. Having found and concluded that Respondent violated Section 7116(a)(1) of the Statute, I recommend that the Authority issue the following order: ORDER Pursuant to 5 U.S.C. 7118(a)(7) and Section 2423.26 of the Final Rules and Regulations of the Federal Labor Relations Authority, U.S. Fed. Reg. 3842, 3510 (1980), it is hereby ordered that United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, shall: 1. Cease and desist from: (a) Permitting supervisors and managers to consider union activities of any employee in the development of their performance appraisals. (b) Interfering with, restraining, and coercing Betty Jean Carroll or any other employee in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. (c) In any like or related manner interfering with, restraining, or coercing its employees 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) Rescind the March 1, 1980 appraisal of Betty Jean Carroll, withdraw it from her personnel file, and prepare a new appraisal which does not take into consideration her lawful activity as a union representative. (b) Post at the Air Force Logistics Command facility at Wright-Patterson Air Force Base in Ohio copies of the attached Notice marked "Appendix" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Base Commander and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. The Base Commander shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Pursuant to Section 2423.30 of the Final Rules and Regulations, 45 Fed.Reg.at 3511, notify the Regional Director of Region V, Suite A-1359, 175 W. Jackson Boulevard, Chicago, Illinois 60604, in writing, within thirty days from the date of this Order, as to what steps have been taken to comply herewith. FRANCIS E. DOWD Administrative Law Judge Dated: March 11, 1982 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER TO THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL rescind the March 1, 1980 appraisal of Betty Jean Carroll, withdraw it from her personnel file, and prepare a new appraisal which does not take into consideration her lawful activity as a Union representative. WE WILL not permit supervisors or managers to consider the Union activities of any employee in the development of performance appraisals of those employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce Betty Jean Carroll of any other 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 questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Suite A-1359, 175 W. Jackson Boulevard, Chicago, Illinois 60604. --------------- FOOTNOTES$ --------------- /1/ The Charging Party excepted to certain credibility findings made by the Judge. The demeanor of witnesses is a factor of consequence in resolving issues of credibility, and the Judge has had the advantage of observing the witnesses while they testified. The Authority will not overrule a Judge's resolution with respect to credibility unless a clear preponderance of all the relevant evidence demonstrates such resolution was incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings. /2/ In its exceptions, the Respondent renewed its argument that it was not properly served with the charges or with the consolidated complaint herein and therefore the Authority lacks jurisdiction over it in this matter. In regard to the allegation found to have merit herein, the second amended charge in Case No. 5-CA-521 was served properly on the Commanding General of the Respondent and it was properly named as the Respondent therein. Further, the Respondent's agent, Fred Hustad, was properly served with the consolidated complaint. Thus, as material herein, the Authority finds that the Respondent's contention lacks merit. /3/ The original charge in Case No. 5-CA-521 named the Activity in Section 1.A. as 2750th Air Base Wing, Wright-Patterson Air Force Base but in Section 1.F. stated that the Activity was part of an agency called Air Force Logistics Command, United States Air Force. All other charges named the 2750th as well as the Air Force Logistics Command in Section 1.A. /4/ Carroll testified that prior to the Master Agreement, she had an arrangement whereby she "was free to come and go" as she pleased. From her testimony I conclude that she resented and resisted efforts by management to require her to follow the contractual procedure. She characterized management's actions as a difference of opinion as to contract interpretation but it is obvious from her own admissions that she was deviating from the release procedure set forth in Article 4:13. /5/ During the hearing I asked Carroll whether she was allotted a certain number of hours per week by management to work on Union affairs and she replied (Tr. 28), that she had no time limit. I note, however, that the Master Agreement does contain specific limitations, as quoted elsewhere in this decision. /6/ United States Air Force, 8 A/SLMR 1248. /7/ See also Judge Mason's decision involving the same parties in Case No. 5-CA-179, 180 (July 9, 1980). /8/ The problem of identifying the proper Respondent is a real one. See Judge Arrigo's in Internal Revenue Service, 4 FLRA No. 37 and my decision in Defense Logistics Agency, Case No. 1-CA-213 (July 7, 1981), and Headquarters, Defense Logistics Agency, Case Nos. 3-CA-664 et al (July 10, 1981). The latter cases are pending before the Authority.