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The decision of the Authority follows:
22 FLRA No. 17 UNITED STATES DEPARTMENT OF AGRICULTURE ANIMAL AND PLANT HEALTH INSPECTION SERVICE PLANT PROTECTION AND QUARANTINE Respondent and NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES, BRANCH #15 Charging Party Case No. 6-CA-50090 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. The General Counsel and the Charging Party filed exceptions to the Judge's Decision with 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 Judge's Decision and the entire record, the Authority adopts the Judge's findings, conclusions and recommended Order. The Authority agrees with the Judge's finding that the complaint alleging a violation of section 7116(a)(1) and (5) of the Statute must be dismissed because the record does not establish that the Respondent changed its past practice with respect to leave charged to employees arriving late to work, and therefore the Respondent had no duty to notify the Union and bargain as alleged. The Authority notes that the complaint in this case did not allege a section 7116(a)(2) violation involving discriminatory treatment against the unit employee in question, whose request to have his AWOL charge removed was denied. ORDER IT IS ORDERED that the complaint in Case No. 6-CA-50090 be, and it hereby is, dismissed. Issued, Washington, D.C., June 13, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 6-CA-50090 UNITED STATES DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICE, PLANT PROTECTION AND QUARANTINE Respondent and NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES, BRANCH #15 Charging Party Susan E. Jelen, Esquire For the General Counsel Stanley E. Kensky John A. Vigil For the Respondent Judy Jenkin For the Charging Party Before: BURTON S. STERNBURG Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7107, et seq. and the Rules and Regulations issued thereunder. Pursuant to a charge filed on October 26, 1984, by the National Association of Agriculture Employees, Branch #15 (hereinafter called the Union or Charging Party), a Complaint and Notice of Hearing was issued on February 12, 1985, by the Regional Director for Region VI, Federal Labor Relations Authority, Dallas, Texas. The Complaint alleges that the United States Department of Agriculture, Animal and Plant Health Inspection Service, Protection and Quarantine (hereinafter called the Respondent or Department of Agriculture), violated Sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (hereinafter called the Statute), by virtue of its action in changing an existing policy with respect to allowing employees who confused their scheduled work shifts and reported late for work to take annual leave or to adjust their respective hours of work rather than be charged with being absent without leave (AWOL), without first giving the Union notice of the change and an opportunity to request bargaining over the manner of implementation and the impact of the change on adversely affected employees. A hearing was held in the captioned matter on March 26, 1985, in El Paso, Texas. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post-hearing briefs on May 28, 1985, which have been duly considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations. Findings of Fact The Union /1/ is the exclusive representative of Respondent's "Professional Plant Protection and Quarantine Officers" (PPQ) stationed in El Paso, Texas. The PPQ's regulate the movement of plant and animal products into and out of the United States in an effort to prevent the dissemination of injuries insects and disease. The El Paso, Texas port includes three international bridges, the airport and a railroad yard. The approximately 25 unit employees employed in El Paso work on various shifts from 6 a.m. to midnight, seven days a week. Nine shifts were scheduled for Monday through Saturday /2/ and seven shifts were scheduled for Sunday which was counted as an overtime day. /3/ A shift schedule covers a two week period and is posted one week prior to its effective date. Employees are assigned to various shifts and report to different locations. Employees are allowed to make shift changes, in most cases without restriction. There are certain required shifts that employees work eight days out the two week period without being able to trade. After PPQ's agree to trade shifts, they sign a form which is then approved by a supervisor. The trade is then posted on the shift schedule. The Animal and Plant Health Inspection Service (APHIS) Directive dated October 7, 1982 dealing with "Leave" provides in Part 3, Article III, Absence Without Official Leave (AWOL) as follows: "Employees whose absence from duty was not authorized or approved or whose leave request has been denied is charged on the T&A as AWOL. An employee on AWOL cannot receive pay for such absence. If and employee later submits acceptable evidence that the absence without prior authorization was excusable or that the employee was ill, the AWOL charge may be retroactively changed to annual or sick leave or leave without pay . . . ." On April 28, 1984, PPQ Officer Joseph Gross who was scheduled to be off work on April 30, 1984, agreed to trade shifts with a fellow employee and work the 11:30 a.m. to 8:00 p.m. shift on April 30, 1984. In accordance with the existing practice, Mr. Gross submitted a change in work schedule to the appropriate supervisor which was subsequently approved. On April 30, 1984, Mr. Gross, having confused his scheduled hours of work for that day, reported for work at 1:30 p.m., two hours past his scheduled starting time. Upon his arrival, Mr. Nick Silva, a supervisor, informed Mr. Gross that he was two hours late and that he, Mr. Silva, was charging him two hours AWOL for this period of time. Mr. Gross then took the matter up with Mr. Ruben Garcia, Assistant Officer in Charge. In his meeting with Mr. Garcia, Mr. Gross took the position that he had confused his shift and felt that he should be charged with annual leave instead of AWOL. However, Mr. Garcia and Mr. silva refused to change the two hours from AWOL to annual leave on the ground that since the change in schedule had occurred only two days earlier he, Mr. Gross, should have remembered his new schedule. Mr. Gross then appealed the matter to Mr. John Vigil, Officer in Charge. Mr. Gross informed Mr. Vigil that there should be a definite policy concerning what type of leave would be assigned an employee when he arrived at the wrong time and that there should be uniformity among the supervisors with respect to the type of leave an employee was charged with when he confused the starting time of his shift. According to Mr. Gross, this was the first time in his twenty-two years of employment that he had been charged AWOL for confusing the starting time of a scheduled shift. Mr. Gross could not recall how many times in the past that he had confused the starting time of a shift, but stated that he was sure he had done it in the past. According to Mr. Gross, this was the second time in his twenty-two year career that he had been charged AWOL. The first time he was charged AWOL was on March 30, 1984, when he reported back from lunch late. Mr. Gross subsequently filed a grievance based upon his being charged AWOL on March 30, 1984 and April 30, 1984. In support of his grievance he alleged that he was being discriminated against because other named PPQ's were allowed to take annual leave in lieu of LWOP when they confused the starting times of their scheduled shifts. The grievance did not involve the issue of a change in an existing past practice without prior notice to the Union. Ms. Judy Jenkin, a former vice-president of Local 15, who had worked in El Paso for approximately four and one-half years before being transferred to Baltimore, Maryland on March 17, 1985, testified that prior to April 30, 1984, when Mr. Gross was given an AWOL for confusing the starting time of his shift, employees who confused their respective shifts were allowed to take annual leave or readjust their hours of work. In support of her testimony, Ms. Jenkin pointed out that on October 10, 1982, she confused her shift starting time and reported to work fifteen to twenty minutes past the scheduled 8 a.m. starting time for her shift and was paid from 8:15 without any discussion. Ms. Jenkin further testified that employee Mr. Norman Bebon, who was scheduled to work the 8:30 to 5 p.m. shift on October 7, 1982, confused his shift and reported late after being called by his supervisor. Mr. Bebon was allowed to take one hour of annual leave. According to the testimony of Ms. Jenkin; Mr. Ramon Alvarez was allowed to work different shift hours on April 4, 1984, when he confused the starting time of his shift, and reported in late. He was allowed to work an 8:30 a.m. to 5 p.m. tour of duty rather than his scheduled 6 a.m. to 2:30 p.m. tour of duty. Mr. Bob Eads was not charged AWOL when he confused his shift and failed to show up for work thereby forcing another supervisor to be called in to work his shift. Mr. Ysobel Medrano was allowed to take annual leave when he confused his shift in early 1982. /4/ Ms. Jenkin acknowledged in her testimony that two employees, Mr. Ernest Elliot and Mr. Lazaro Holquin were given AWOL's in 1981 and on November 6, 1984, respectively, when they confused their shift starting times and failed to report for work. Mr. Ronald Joseph Veneziea, a PPQ officer in El Paso testified that he once confused his work schedule in October of 1981, a Sunday, and that upon reporting to work two hours late he was allowed to work the remainder of his scheduled shift. Mr. Aaron Miller a PPQ officer in El Paso testified that once in the four and one-half years that he had been in El Paso he confused the starting time of his shift by two hours and was allowed to take tow hours annual leave by his supervisor Sam Longanecker. Mr. Miller testified that he was allowed to take two hours annual leave only after Mr. Longanecker checked the schedules and noted that his 6 a.m. to 2 p.m. shift had been sandwiched in between two 8:30 a.m. to 5 p.m. shifts and that his other assigned weekly shifts were all 8:30 a.m. to 5 p.m. Mr. John A. Vigil, the Officer in Charge of the El Paso Area testified that he has always adhered to the APHIS policy on absences, tardiness and AWOL and that he has delegated his discretionary responsibility to his three first line supervisors. According to Mr. Vigil if an employee had not been granted leave in advance the employee is considered AWOL when he fails to show up for his scheduled shift. The decision to subsequently allow an employee to charge his absence to annual leave as opposed to being AWOL is decided on a case by case basis. In the case of Mr. Gross, Mr. Vigil refused to change Mr. Gross' AWOL to annual leave because Mr. Gross had been warned and counseled in the past about being late, had received an AWOL a few weeks earlier and had personally requested the shift change only two days earlier. Accordingly, in view of all the circumstances Mr. Vigil was of the opinion that the AWOL notation for the April 30, 1984 incident was justified. Mr. Nick Silva who has been a supervisor in El Paso for twelve years testified that awarding an employee an AWOL for confusing his schedule is not a change in past practice. According to Mr. Silva the awarding of annual leave rather than AWOL depends on whether the excuse for confusing a shift is acceptable. Based upon the facts underlying Mr. Gross' action in confusing his shift as well as his, Mr. Gross', past record, he decided that Mr. Gross should be given an AWOL rather than being allowed to take annual leave for confusing his shift on April 30, 1984. Mr. Charles Parker who has been a supervisor in El Paso for eleven years testified that it has always been his practice to consider an employee AWOL when he does not arrive as scheduled. If an acceptable excuse is later given he will and usually does utilize his discretion and allows the employee to take annual leave. Mr. Samuel Longanecker who had been a supervisor in El Paso for approximately five years testified that confusing a scheduled tour of duty is not a common occurrence. He further testified to an instance when he gave an employee an AWOL for failing to report for her shift. When the employee later called in with an acceptable excuse he changed the AWOL to annual leave. According to Mr. Longanecker the test for allowing the use of annual leave in lieu of AWOL is an acceptable excuse for confusing the work schedule. Discussion and Conclusions The General Counsel, citing approximately five instances during the past three years where employees confused their respective shifts and were allowed to take annual leave or readjust their shifts rather than being charged AWOL, takes the position that Respondent's action in awarding Mr. Gross an AWOL for confusing his shift on April 30, 1984, amounted to a change in past practice. Further, according to the General Counsel, in such circumstances the Respondent was under an obligation to give the Union prior notice of the change and an opportunity to request bargaining over the impact and manner of implementation of the change. Having failed to give the Union prior notice of the change and an opportunity to so bargain, it is the General Counsel's position that Respondent violated Sections 7116(a)(1) and (5) of the Statute. The Respondent on the other hand takes the position that there was no change in past practice and that the complaint should therefore be dismissed in its entirety. According to Respondent it has always been the practice to consider an employee AWOL when he confused his shift and failed to appear on time for the start of his shift. To the extent that the five employees cited by the General Counsel had in the past been allowed to either take annual leave and/or readjust their respective shifts rather than be charged with an AWOL, Respondent points out that in accord with the existing APHIS Directive such action was only taken after the affected employees had proffered an acceptable excuse to their respective supervisors for their tardiness, etc. Respondent further contends that the instant complaint is barred by Section 7116(d) of the Statute since the same issues underlying the complaint were raised in Mr. Gross' earlier grievance filed with the Respondent. Contrary to the contention of the Respondent, I find that the issues included in the grievance are different than the issues underlying the instant complaint. The grievance concerned the merits of awarding Mr. Gross an AWOL for confusing the starting time of his shift, while the instant complaint concerns a change in past practice without giving prior notice to the Union and an opportunity to request impact and implementation bargaining thereon. In such circumstances, I find that Section 7116(d) of the Statute does not serve as a bar to the processing of the instant complaint. Cf. United States Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center, Newark, Ohio, 4 FLRA No. 70 (1980). Turning now to the merits of the instant complaint, I find that the General Counsel has failed to sustain the burden imposed upon him by Section 2423.18 of the Authority's Rules and Regulations, namely to prove the allegations of the complaint by a preponderance of the evidence. In reaching this conclusion it is noted that the General Counsel has only established that in the past three years some six employees, including Mr. Gross, were allowed to take annual leave or readjust their schedules when they confused the starting times of their respective shifts and reported late for work. /6/ With respect to Mr. Alvarez, Mr. Eads, Mr. Bebon and Mr. Medrano, the record is barren of any evidence concerning the circumstances underlying their respective supervisors' actions in allowing them to take annual leave or readjust their shifts in lieu of being charged AWOL. In the case of Mr. Miller, his testimony establishes that he was allowed to take annual leave only after his supervisor, Mr. Sam Longanecker checked out Mr. Miller's weekly schedule and past attendance record and satisfied himself that Mr. Miller had an acceptable reason for having confused his schedule and shown up late for work. In view of the foregoing and particularly in the absence of any other probative evidence contradicting the mutually corroborative and credited testimony of the four supervisors in the El Paso office of the Respondent to the effect that the granting of annual leave or allowing employees to readjust their respective schedules in lieu of being charged AWOL when they confused their schedules had never been automatic but rather dependent on the proffer of an acceptable excuse, I find that the record evidence does not establish, as alleged by the General Counsel, that Respondent's action in awarding Mr. Gross an AWOL for confusing his schedule on April 30, 1984, amounted to a change in past practice over which Respondent was obligated to give the Union prior notice and an opportunity to bargain over the impact thereof and the manner of implementation. Having concluded that the Respondent did not violate the Statute, it is hereby recommended that the Authority issue the following Order dismissing the Complaint in its entirety. ORDER IT IS HEREBY ORDERED, that the Complaint should be, and hereby is, dismissed in its entirety. /s/ BURTON S. STERNBURG Administrative Law Judge Dated: June 12, 1985 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) The record reveals that the "Federal Plant Quarantine Inspector's National Association" is the duly recognized exclusive representative on a nationwide basis and that Local #15 is responsible for servicing the El Paso, Texas office of the Respondent. The record further discloses that while there has been no official name change, the "Federal Plant Quarantine Inspectors Association" has been operating or doing business under the name of "The National Association of Agriculture Employees." In fact the most recent agreement between the parties lists the District Director, El Paso, Texas, and National Association of Agriculture Employees, Branch #15 as signatories. (2) 6 a.m. to 2:30 p.m., 8 a.m. to 4:30 p.m., 8:30 a.m. to 5 p.m., 9:30 a.m. to 6 p.m., 11:30 a.m. to 8 p.m., 1:30 p.m. to 10 p.m., 3:30 p.m. to midnight, 2 p.m. to 10 p.m., and 6 a.m. (3) 6 a.m. to noon, 8 a.m. to 2 p.m., 10 a.m. to 4 p.m., noon to 6 p.m., 2 p.m. to 8 p.m., 4 p.m. to 10 p.m., and 6 p.m. to midnight. (4) Ms. Jenkin acknowledges in her testimony that she was not aware of the discussions that occurred with the respective supervisors of the above named employees prior to allowing the employees to reschedule their shifts and/or take annual leave. With respect to the incident involving Ms. Jenkin, the record indicates that October 10, 1982 was a Sunday, an overtime day, for which an employee could not be charged AWOL for not working as scheduled. (6) Mr. Miller, Mr. Eads, Mr. Bebon and Mr. Medrano. Inasmuch as Ms. Jenkin and Mr. Venezia confused their respective shifts on Sundays, an overtime day when there could be no AWOL penalty, I find the fact that they were allowed to readjust their shifts to be of no probative value.