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20:0761(89)CA - Air Force, Scott AFB, IL and NAGE Local R7-23 -- 1985 FLRAdec CA

[ v20 p761 ]
The decision of the Authority follows:

 20 FLRA No. 89
 Charging Party
                                            Case Nos. 5-CA-381
                       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
    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.
    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
                                       Henry B. Frazier III, Acting
                                       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