[ v20 p761 ]
The decision of the Authority follows:
20 FLRA No. 89 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 ON REMAND On September 3, 1985, the United States Court of Appeals for the district of Columbia Circuit remanded this case to the Authority /1/ for further consideration of the Judge's conclusion adopted by the Authority in Department of the Air Force, Scott Air Force Base, Illinois, 14 FLRA 289 (1984), that the Respondent did not commit certain alleged unfair labor practices and his recommendation that complaint be dismissed as to those allegations. /2/ As explained by the court in its remand, the matters at issue pertain to allegations that the Respondent violated section 7116(a)(1) of the Statute by virtue of certain comments made by its supervisors to an employee regarding his use of official time for representational activities on behalf of the exclusive representative. Noting that the Authority had adopted without discussion the Judge's conclusion that these allegations should be dismissed, the court concluded that the Judge's findings did not support this conclusion. However, noting further that there might by other valid reasons on which the Judge's ultimate conclusion could be sustained, the court remanded the case to the authority for further consideration. Upon reconsideration, the Authority has concluded, based upon an analysis of the facts and circumstances as to these allegations in the entire record, discussed below, that there are valid reasons to support the Judge's ultimate conclusion that the consolidated complaint as to these allegations should be dismissed. In 1977 and 1978, the employee in question, Carl Denton, was involved in the design of the Respondent's Consolidated Aerial Port Subsystems (CAPS) project, a system for automating the tracking of cargo and passengers world-wide for the Military Airlift Command. Denton was informally assigned to be the Quality Assurance Manager for the project and its further development in May 1979, because of his prior work, his expertise in the subject matter, and the shortage of other civilian employees with such abilities. He was unsuccessful in objecting to the assignment on the basis that, as president of the Union, he devoted a substantial amount of duty hours on official time to representational functions. He received special training in his duties on the project in June 1979. Although he continued to object to the assignment, the assignment was formalized in October. However, in consideration of his representational activities, two computer specialists in the military service were assigned to assist Denton, some of the work was assigned to an outside contractor, and much of Denton's other routine work was transferred to other personnel. Continued development of the project depended upon successful completion of audits scheduled to begin in mid-January 1980, and the audits would not succeed if Denton's work was not completed. Among other things, without Denton's work the outside contractors could not do theirs. Shortly before the audits, for the first time Denton formally objected to his assignment to CAPS work, asserting to higher management officials that, given the amount of official time that he devoted to representational functions on the Union's behalf, his assignment to the project constituted gross mismanagement. At about the same time, Denton filed an unfair labor practice charge concerning the assignment. He did not succeed with either objection. The Regional Director responsible for investigating the charge ultimately declined to issue an unfair labor practice complaint based on the charge, and higher management did not terminate the assignment. During the scheduled audits Denton was involved in collective bargaining negotiations with the Respondent, as the Union's primary representative. Although the record indicates that he was devoting official time to these negotiations, it does not indicate whether he was devoting all of his time thereto or whether he was also engaged in other representational functions, and further does not disclose how much longer the negotiations were expected to continue. However, because the Respondent was having difficulties with the audits, one of Denton's supervisors on the project asked him to devote some time to the audits and suggested, for that purpose, that one of the upcoming negotiating sessions be postponed. Denton declined, stating that the request was upsetting. He was out sick for the remaining days of that week. Denton filed a workmen's compensation claim for this time, which was denied because it was not demonstrated that there was a causal connection between the alleged incapacity and his employment. On his return to work at the beginning of the following week, his first-level supervisor counseled him concerning his participation, or lack thereof, on the audits. Later that month, near the end of the work day, Denton presented a time schedule to his first-level supervisor for the following days. The schedule indicated that he would be spending all of his time on representational functions. After his supervisor and his second-level the second-level supervisor (Serksnas) commented that it was unfair that he was spending all of his time on representational functions and none on his CAPS work. Denton commented that he thought it was fair, adding that they would probably find a way to whittle down the union time. Denton's response was that it was close to quitting time. He said "goodnight," and proceeded to depart. As he was leaving, Serksnas said that he did not think he was getting across to Denton and that he (Serksnas) had lost his sense of humor. Stating that he had only said "goodnight," Denton continued to walk out, which gave rise to comments by Serksnas that if Denton did not start to do some work for him he would take disciplinary measures, and an inquiry as to whether Denton might file an unfair labor practice charge in response. Departing, Denton's closing comment was that he didn't think that would be the appropriate action. The next day, Denton filed a schedule for that day, consistent with his prior submission, indicating that he would be using all of that day's time for representational functions. He was requested to and did attend a meeting with Serksnas, accompanied by another Union representative. Serksnas said that he was not satisfied with the amount of time Denton was putting into the audits and that he was not up to speed on the project. He said that he wanted Denton to prepare for forthcoming new audits, and asked that certain of the contract negotiations be postponed for that purpose, with the understanding that Denton would be provided with make-up time later. He repeated that Denton was not doing enough work and that if he did not pull his share, Serksnas would have to take disciplinary action. In addition to these facts, upon which the complaint is based, the record shows the following: First, although Denton complained about his assignment to the CAPS project, as indicated above, it is undisputed that the Respondent acted in accordance with its rights in initiating and continuing the assignment. Second, the use of a "reasonable" amount of official time for representational functions was authorized under the parties' collective bargaining agreement. Although this agreement provision would not pertain to the negotiation of a new collective bargaining agreement, as previously mentioned the record does not establish how much of Denton's time was being devoted to negotiations as compared with other representational functions. Third, there is no indication in the record that the supervisor's actions were motivated by union animus or out of any concern as to what the employee was doing while performing representational functions. The supervisors were not directly involved in the contract negotiations and the record does not show that they had any contact with Denton in his performance of representational functions. Nor is there a showing that any of the Respondent's other officials made any comment to them regarding his union activity. Fourth, based on Denton's testimony, in his capacity as Union president he routinely assigned representational functions to himself. It has not been shown that he could not have delegated or assigned some of these functions to another Union representative. The question we are asked to consider again is whether the Respondent violated the Statute when its supervisors, Serksnas and Hohman, stated to employee Denton in the above-described meetings that Denton was spending too much time on union work and too little on the Respondent's work and that disciplinary action might be taken against him if he did not put more work into the CAPS project. The Authority concludes that the conduct complained of, in the particular facts and circumstances of this case, did not constitute a violation. Based on the above-described facts and the entire record, it appears that the events complained of arose out of a conflict between the employee's need for official time for representational functions and the Respondent's need for his time and work on the CAPS project, which conflict reached an acute stage when the CAPS audits were in progress. As the Authority has explained in other contexts, such conflicts between employees' entitlements to official time for representational functions under section 7131 of the Statute and the entitlements of management under section 7106 of the Statute to manage consistent with an effective and efficient Government can be expected, and when such conflicts arise, the parties must recognize the need for and seek a reasonable accommodation. See American Federation of Government Employees, AFL-CIO, Council of Locals No. 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA No. 23 (1985) (hereinafter "Council of Locals"), petition for review filed, No. 85-1500 (D.C. Cir. Aug. 12, 1985); Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 15 FLRA No. 165 (1984); American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004, 1014-15 (1982); American Federation of Government Employees, AFL-CIO, New York-New Jersey Council of District Office Locals, Social Security Administration and Department of Health and Human Services, Social Security Administration District Office Operations, 7 FLRA 413, 417 (1981). In this regard, section 7101 of the Statute provides both for the right of employees to participate in the collective bargaining process through labor organizations of their own choosing and for the safeguarding of the public interest in maintaining an effective and efficient Government. Thus, the Authority has held that management cannot deny official time for representational functions to a representative of the exclusive representative unless it can show that the use of official time will interfere with the accomplishment of the agency's work. Nor may management reassign an employee unless it can demonstrate that the employee's use of official time for representational functions interferes with the employee's performance of assigned work. On the other hand, the Authority has also explained that an exclusive representative cannot claim that it is entitled to negotiate or administer a contract provision regarding the allocation of official time for representational functions by a particular employee without regard to management's needs and requirements regarding the performance of its assigned work. Council of Locals, 19 FLRA No. 23 (1985); Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 15 FLRA No. 165 (1984); Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri and American Federation of Government Employees (AFL-CIO), Local No. 3399, 14 FLRA 103 (1984); Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 18 FLRA No. 9 (1985). Cf. Bigelow v. Department of Health and Human Services, 750 F.2d 962 (Fed. Cir. 1984) (an employee may not refuse a training assignment based on a claim that he or she was entitled to 100% official time for representational functions). Having restated the foregoing principles, the Authority notes that the question of whether employee Denton or the Respondent's supervisors should have yielded concerning their mutual difficulties regarding Denton's use of official time is not directly presented in this case. However, the Authority concludes, based on the entire record, that it was this issue which gave rise to and wholly underlies the dispute. The CAPS project had reached a point where its further development depended on the success of the audits. The work which had been assigned to Denton was crucial for the audits, and that work was not being done. At about the same time that the completion of his assigned work on the project was becoming more important, Denton was devoting increasing amounts of his time to the performance of representational functions, and correspondingly less time to the project. Acutely aware of their problems, the supervisors sought an accommodation. Based on our reading of the record, the supervisors were merely seeking an accommodation with Denton in discussing the matter with him. They needed Denton to perform a certain amount of work during the brief period remaining before the next audit of the CAPS project, which he alone was qualified to perform, and therefore twice attempted to talk him into it. Denton did not cooperate, however. At the first late afternoon meeting, he simply smiled and walked out. At the second meeting the next day, he was silent and unresponsive. On both occasions Serksnas, the second-level supervisor, appears to have become exasperated. Interchangeably he referred to his need for some work, his need for some time, how much time the employee was spending on representational functions, and the possibility of disciplinary action. In the context of the instant case, the Authority concludes that Serksnas was solely and wholly interested in reaching a meaningful accommodation with Denton regarding completion of Denton's work on the CAPS project, and that Denton reasonably should have understood that and that the Supervisor's comments were, in large part, provoked by Denton's own unresponsiveness and seeming lack of cooperation. In this factual context, we are unable to conclude that Serksnas' comment that it was unfair for Denton to schedule all of his time for union activities constituted a violation of the Statute, particularly where this comment amounted to no more than the converse of the supervisor's additional statement that the employee was not completing his assigned work. Regarding Serksnas' related comments on potential disciplinary action, the court stated in its remand decision that it was not clear to the court what the supervisor meant, suggesting that he may have meant only that he would begin to deny the employee's unreasonable requests for official time to perform representational functions in the future. As the court further indicated, such a denial might accord with the Respondent's rights, and a threat of such action would therefore not constitute a violation of the Statute. Upon reevaluation of the entire record, we conclude that these remarks, as explained above, were not, in their entire context, unlawful threats against an employee for his exercise of rights protected by the Statute, but rather an attempt by management to impress upon the employee how important it was for him to perform his work assignments during the period immediately ahead. Moreover, in the absence of any record evidence of union animus by the Respondent, and from the entire context of the conversations, we further conclude that the supervisor's remarks should reasonably have been understood by Denton as pertaining to the need for him to complete his work on the CAPS project. Further, the record does not show that Denton was in fact disciplined, or that any future requests for official time to engage in protected activities (reasonable or otherwise) were denied, or indeed that the Respondent denied the very requests that gave rise to the incidents here in question. We are thus also unable to conclude that Denton, or any other employee, was restrained, coerced, or threatened in the exercise of any right accorded them under the Statute. Accordingly, having reconsidered all the facts and circumstances of this case in light of the court's concerns in remanding the case to us, we reaffirm our original Order that the consolidated complaint in these cases be dismissed. 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., November 27, 1985 (s)--- Henry B. Frazier III, Acting Chairman (s)--- William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ National Association of Government Employees, Local R7-23 v. FLRA, 770 F.2d 1223 (1985). /2/ The court affirmed the remainder of the Authority's findings and conclusions.