[ v23 p594 ]
The decision of the Authority follows:
23 FLRA No. 82 MARINE CORPS LOGISTICS BASE BARSTOW, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO Charging Party Case No. 8-CA-50418 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. Thereafter, the Charging Party filed exceptions to the Judge's Decision, and the Respondent filed an opposition to the exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's decision and the entire record, the Authority hereby adopts the Judge's findings, /1/ conclusions, and recommendation that the complaint be dismissed. In agreement with the Judge, we specifically find that the reprimand and 35 minutes AWOL charged to the employee were not based on the Union President's activity in meeting with an Authority agent, but rather on his actions in leaving the premises without prior permission in violation of the Respondent's interpretation of the collective-bargaining agreement. Therefore, we conclude, in agreement with the Judge, that the Respondent did not violate the Statute as alleged in the complaint. Accordingly, we shall dismiss the complaint. ORDER IT IS ORDERED that the complaint in Case No. 8-CA-50418 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., October 16, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 8-CA-50418 MARINE CORPS LOGISTICS BASE BARSTOW, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO Charging Party Jonathan S. Leving, Esquire For the General Counsel William M. Petty, Esquire Major Charles Dorman For the Respondent 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. 7101, et seq. and the Rules and Regulations issued thereunder. Pursuant to an amended charge first filed on July 11, 1985, by the American Federation of Government Employees, Local 1482, AFL-CIO, (hereinafter called the Union or Local 1482), a Complaint and Notice of Hearing was issued on October 31, 1985 by the Regional Director for Region VIII, Federal Labor Relations Authority, Los Angeles, California. The Complaint alleges that the Marine Corps Logistics Base, Barstow, California, (hereinafter called the Respondent), violated Sections 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute, (hereinafter called the Statute), by issuing a letter of reprimand to Mr. Dale Boyce and charging him with thirty-five minutes of AWOL for meeting during official hours with an agent of the Federal Labor Relations Authority for purposes of providing evidence in a pending unfair labor practice proceeding. A hearing was held in the captioned matter on December 18, 1985, in Los Angeles, California. All parties were afforded the 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 briefs on January 31 and 29, 1986, respectively, 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 American Federation of Government Employees, (hereinafter called the AFGE), was certified on October 12, 1982, "as the exclusive representative in a national consolidated unit of the United States Marine Corps., Washington, D.C., which includes" the graded and ungraded employees of the Respondent's Barstow, California installation. Local 1482, the charging party, is the AFGE local representative at Barstow. The AFGE and the Respondent are parties to a master collective bargaining labor agreement which became effective April 27, 1985, and which provides in Article 8, Section 3, that the Local Union President at Barstow will be entitled to 75% official time to perform representational functions. The contract further provides in Article 8, Section 4 as follows: Stewards and local officers appointed to represent unit employees will represent employeed at the activity as designated. Official time will be approved only for representational functions performed at the activity where the representative is employed except: (a) to attend hearings before the FLRA, MSPB, or an arbitrator concerning a dispute involving employees of the activity where the representative is employed; or (b) when representation off the work premises by the individual has been approved, in writing, by the commanding officers of the activities involved. With respect to Article 8, Section 4, the record establishes that the Respondent has interpreted this provision as prohibiting the Union President to utilize official time for purposes of conducting representational functions at the union hall located off the base in Barstow, California. The record further establishes that Union President Dale Boyce had been informed of the Respondent's interpretation of Article 8, Section 4, prior to the events underlying the instant complaint. On May 28, 1985, Union President Dale Boyce was informed by the union secretary located in the off-base Barstow, California union office that Ms. Linda Gonzalez, (hereinafter referred to as Ms. L. Gonzalez), an agent of the Federal Labor Relations Authority, had called and wanted him (Mr. Boyce) to call her the next day at the Respondent's Civilian Personnel Office (CPO) at 12:30 p.m. /2/ Inasmuch as Mr. Boyce was scheduled to meet with Respondent's representatives the next morning at the Civilian Personnel Office he decided to personally meet there with Ms. L. Gonzalez rather than telephone her. On May 29, 1985, Mr. Boyce reported for work at 7 a.m. /3/ After working for two hours, Mr. Boyce approached Mr. Kenneth Graham, supervisor of the welding shop, and requested six hours of official time to perform various representational duties. According to Mr. Boyce, after telling Mr. Graham what union business he would be working on the rest of the day and where he could be found he left his work site for the remainder of the day. Further, according to Mr. Boyce he did not tell Mr. Graham that he was meeting with Ms. L. Gonzalez later in the afternoon. He could not swear to it, but he might have mentioned that he "was going to see Linda Gonzalez at CPO". After departing from his work station Mr. Boyce met with various management representatives, including Supervisory Labor Relations Specialist Esther Gonzales. During the course of the meeting with Ms. Gonzales, Mr. Boyce mentioned, according to Ms. Gonzales, that he was going to talk to Ms. L. Gonzalez to which Ms. Gonzales replied that she had an appointment with her around noontime. According to Ms. Gonzales there was no discussion of what Mr. Boyce and Ms. L. Gonzalez were to talk about. Finally, Ms. Gonzales testified, without contraction, that Mr. Boyce never told her that he was going to have a meeting with Ms. L. Gonzalez. Around noon Ms. L. Gonzalez arrived at the CPO for her scheduled meeting with Ms. Esther Gonzales. Prior to starting the scheduled meeting Ms. L. Gonzalez met and spoke to Mr. Boyce out in the hall about certain unfair labor practices she was investigating. Inasmuch as Mr. Boyce's files were in the off-base union office in Barstow, they agreed to meet there after Ms. L. Gonzalez finished her business with the Activity representatives. Ms. L. Gonzalez estimated that the meeting would last approximately one to two hours. At Mr. Boyce's suggestion, it was agreed that Ms. L. Gonzalez would call him at the union hall when she finished her business with the Activity officials. Ms. Esther Gonzales acknowledges that she observed Mr. Boyce and Ms. L. Gonzalez talking. Ms. L. Gonzalez then proceeded with her scheduled meeting with Activity representatives Ms. Esther Gonzales and Mr. Rich Schultz. During the course of the meeting Ms. L. Gonzalez informed Mr. Schultz and Ms. Esther Gonzales that if she had time she would like to meet with Mr. Boyce. When the meeting concluded at approximately 3 p.m. Ms. L. Gonzalez asked Ms. Esther Gonzales for a telephone number where she could contact Mr. Boyce. When Ms. Gonzales replied "Do you want the union office in the Repair Division", Ms. L. Gonzalez responded that she wanted the off-premises union office in Barstow. Ms. L. Gonzalez then telephoned Mr. Boyce at the Barstow union office, informed him that her meeting with the Activity representatives was over, and that she was on her way. Ms. L. Gonzalez then told the Activity representatives that she was going to the union office in Barstow to talk to Mr. Boyce and departed the CPO. The union office in Barstow is approximately a 15 minute ride from the CPO. Prior to departing the CPO Ms. L. Gonzalez did not tell the Activity representatives the specific reason that she was meeting with Mr. Boyce. Upon arriving at the union office, Ms. L. Gonzalez proceeded to discuss certain pending unfair labor charges with Mr. Boyce. At no time did Mr. Boyce inform management that he was leaving the installation to go to the union office in Barstow. Similarly, at no time did he tell management of his scheduled appointment with the Authority representative at the union office in Barstow. On June 4, 1985, after being informed that Mr. Boyce had been at the union office in Barstow on May 29, 1985, Mr. Graham, Mr. Boyce's supervisor, conducted an investigative discussion with Mr. Boyce regarding his whereabouts on May 29, 1985. During the course of the investigative discussion, Mr. Graham made it clear that his only concern was Mr. Boyce's violation of Article 8, Section 4 of the collective bargaining agreement which according to the Respondent's interpretation prohibited Mr. Boyce from conducting union representational functions at the off-base union office without prior permission from management. On May 26, 1985, Mr. Boyce was given a letter of reprimand and charged with 35 minutes of AWOL. The letter reads in pertinent part as follows: a. On 29 May 1985 at approximately 1455, I was informed by CPO that you had been contacted by phone at the Union Hall in Barstow by a representative from the Federal Labor Relations Authority. The representative was to meet with you at the Union Hall. b. On 4 June 1985, this matter was discussed with you. You denied receiving a phone call. I had previously advised you that the Master Labor Agreement, Article 8, Section 4, provides that official time will be approved only for representational functions performed at the activity, etc. I had also advised you on 23 May 1985 that you were not authorized to go to the Barstow Union Office on official time. You contend that this article does not apply to you as President of the Union. The reasons you offer on your whereabouts on 29 May 1985 are not acceptable; therefore, you have been carried on unauthorized absence status for 35 minutes on 29 May 1985. /4/ The record further establishes that the Respondent and the Authority have been involved in numerous unfair labor practices and that the Respondent always released employees on official time when informed by Authority agents that they wished to talk to such employees in connection with Authority proceedings. Prior to the events underlying the instant complaint the Authority never met with an employee on official time without clearing it with the Respondent. Further, it was always the Authority agent and not the employee who notified the Respondent that a meeting was going to be held with an employee. Discussion and Conclusions The General Counsel points out that the Authority has held that (1) the granting of official time to employees pursuant to Section 7131(c) of the Statute for purposes of participating in the processing of unfair labor practice charges is within the unreviewable discretion of the Regional Director or the Regional Director's agents, and (2) that Section 7104(f)(2)(A) of the Statute specifically empowers the General Counsel to determine the manner in which investigations are to be conducted, including the situs of interviews related thereto. Relying on the foregoing and the fact that the Authority's agent had informed the Respondent that he was going to meet with Mr. Boyce, the General Counsel takes the position that the Respondent violated Sections 7116(a)(1) and (8) of the Statute when it reprimanded Mr. Boyce and charged him with 35 minutes AWOL for his actions in meeting with the Authority's representative on May 29, 1985 in the Union's off-base office in Barstow. The Respondent's counsel, who agrees with the General Counsel's conclusions with respect to the state of the law, takes the position that in the absence of prior notice from either the Authority's agent or Mr. Boyce that Mr. Boyce was going off the base to meet the Authority's agent in connection with pending unfair labor practices, Mr. Boyce violated the provisions of the collective bargaining contract as interpreted by Respondent. According to the Respondent the reprimand and the 35 minute AWOL were based upon Mr. Boyce's actions in violating the contract by leaving the base without permission and was unrelated to the fact that he subsequently met with the Authority's agent for purposes of discussing pending unfair labor practices. Inasmuch as the General Counsel has correctly summarized the state of the law and since Respondent appears to acknowledge same, the sole issue remaining for resolution is whether, as contended by the Respondent, under the particular facts of this case Respondent was at liberty to reprimand and impose a 35 minute AWOL on Mr. Boyce for leaving the Respondent's premises without permission to prepare for a subsequent meeting with an Authority agent. The record establishes that the Respondent and the Union were parties to a collective bargaining agreement which contained various provisions concerning the awarding and use of official time by the Union's President in connection with representational activities. According to Respondent's interpretation of such provisions, which interpretation had previously been made known to Union President Boyce, the Union President was not allowed to utilize official time to conduct representational activities off the base without prior management permission. The record further establishes that at all times prior to the instant events Authority agents when desiring to talk to the Union President or any other unit employee in connection with a matter of Authority interest had always given prior notice to management. The record also establishes that the Respondent had never denied Authority agents the opportunity to meet with unit employees on official time, nor does it appear that the Respondent had ever in the past penalized unit employees for meeting with Authority agents. Finally, the record establishes that aside from telling Respondent about 3 p.m. on May 29, 1985 that she, the Authority agent, was on her way to the union office in Barstow to meet Mr. Boyce, no other notice of the meeting was given to Respondent. In view of the above facts, I find that the Respondent did not violate the Statute when it disciplined Mr. Boyce after discovering his unauthorized visit to the union office in Barstow. In reaching this conclusion, I find that while the Authority's agents certainly have a right to meet with employees on official time and to determine where such meetings will be held, such rights are not paramount to both the mission of an agency and its responsibility to monitor the activities of its work force. Here there is no evidence of prior notice of the meeting or that Mr. Boyce had received permission to go to the union office in Barstow as required by Respondent's interpretation of the contract. Having left the Respondent's premises without prior permission in defiance of Respondent's announced interpretation of the official time provisions of the collective bargaining contract and without prior notice to Respondent from either himself or the Authority's agent that his actions were for purposes of meeting with the Authority's agent to discuss a pending unfair labor practice, I find that under the circumstances the Respondent did not violate the Statute when it subsequently gave Mr. Boyce a letter of reprimand and a 35 minute AWOL for such conduct. I further find that the reprimand and 35 minute AWOL were not based on Mr. Boyce's activity in meeting an Authority agent but rather his actions in leaving the premises without prior permission in violation of the Respondent's interpretation of the collective bargaining agreement. In sum I find that while the Authority's agents are free to conduct investigations on official time and determine where such investigations should be held, sensible administration not to mention common courtesy require advance notice so that an Agency can make appropriate arrangements to carry out the mission of the Agency and its responsibility of knowing at all times the whereabouts of its employees. Accordingly, I recommend that the Authority adopt the following order dismissing the complaint in its entirety. ORDER It is hereby Ordered that the Complaint in Case No. 8-CA-50418 should be, and hereby is, dismissed in its entirety. /s/ BURTON S. STERNBURG Administrative Law Judge Dated: March 11, 1986 Washington, D.C. --------------- 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 observed 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 that such resolution was incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings. (2) Ms. L. Gonzalez had made an appointment to Meet Mr. Rick Schultz, Labor Relations Specialist and Ms. Esther Gonzales, Supervisory Labor Relations Specialist around 12 p.m. on May 29, 1985 in connection with pending unfair labor practice charges that she was investigating. Both Mr. Schultz and Ms. Gonzales testified that Ms. L. Gonzalez prior to her arrival at the Barstow CPO never informed them of her intention or desire to meet with Mr. Boyce. Ms. L. Gonzalez did not testify at the hearing. (3) Mr. Boyce's work hours are from 7 a.m. to 3:30 p.m. (4) It appears that in awarding Mr. Boyce a 35 minute AWOL, Respondent calculated the time from 2:55 p.m. when it discovered he was off the premises to the 3:30 p.m. quitting time, reasoning that the Authority agent could not have met with Mr. Boyce before such quitting time.