[ v25 p342 ]
The decision of the Authority follows:
25 FLRA No. 23 DEPARTMENT OF THE AIR FORCE OGDEN AIR LOGISTICS CENTER HILL AIR FORCE BASE, UTAH Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1592 Charging Party Case No. 7-CA-50596 DECISION AND ORDER The Administrative Law Judge issued the attached decision in these proceedings. He found that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and he recommended that the complaint be dismissed. The General Counsel filed exceptions to the Judge's decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, we have reviewed the rulings of the Judge made at the hearing. We find that no prejudicial error was committed, and we affirm those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order. ORDER The complaint in Case No. 7-CA-50596 is dismissed. Issued, Washington, D.C., January 27, 1987 /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 7-CA-50596 DEPARTMENT OF THE AIR FORCE, OGDEN AIR LOGISTICS CENTER, HILL AIR FORCE BASE, UTAH Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1592, AFL-CIO Charging Party Clare A. Jones, Esq. For the Respondent William Shoell For the Charging Party Michael Farley, Esq. and Joseph Swerdzewski, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION Statement of the Case This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101 et seq. Upon an unfair labor practice charge filed by the American Federation of Government Employees, Local 1592, AFL-CIO (herein referred to as the Union) against the above captioned Respondent, the General Counsel of the Authority, by the Regional Director for Region VII, issued a Complaint and Notice of Hearing alleging Respondent violated section 7116(a)(1) and (2) of the Statute by suspending for one day without pay Union Steward Kelly D. Bartlett for having engaged in activities protected by the Statute. A hearing on the Complaint was conducted in Ogden, Utah on December 16, 1985 at which all parties were represented and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by counsel for Respondent and counsel for the General Counsel and have been carefully considered. Upon the entire record in this case, /1/ my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following: Findings of Fact At all times material herein the American Federation of Government Employees, AFL-CIO (herein referred to as AFGE) has been the exclusive collective bargaining representative of a nationwide unit of employees employed by Headquarters Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio including various employees located at Hill Air Force Base, Utah, herein referred to as Hill AFB). AFGE'S Council 214 is an affiliate and agent of AFGE and Local 1592 is an affiliate and agent of Council 214. Employees at Hill AFB are represented by AFGE through Local 1592. Kelly D. Bartlett, an employee of Hill AFB, Aircraft Division, has been Local 1592's steward for the Aircraft Divison within the Directorate of Maintenance at Hill AFB since November 1984. On May 9, 1985 Bartlett, acting in his capacity as a Union steward, filed an appeal on behalf of Aircraft Division employee Gilbert Duran whose security clearance had been previously revoked by the Air Force Security Clearance Office (herein referred to as AFSCO) in Washington, D.C. The appeal was essentially a request that AFSCO reconsider the matter and was sent to Rosemary Adkins, AFSCO, Washington, D.C. who was an adjudicator in such matters but not part of Hill AFB management. Copies of the May 9 letter were also sent to the Hill AFB security office, General McCausland, apparently the Base Commander and Aircraft Division Chief Ward Jensen. Bartlett signed the letter: Kelly D. Bartlett Division Steward, GS-15 AFGE Local 1592 Hill AFB, Utah 84056 Shortly thereafter Ronald Storey, Aircraft General Foreman in the Aircraft Maintenance Division at Hill AFB and Bartlett's second level supervisor, was informed by Respondent's Civilian Personnel Branch that Aircraft Division Chief Jensen was upset about Bartlett signing the May 9 letter as "GS-15" (General Schedule) and told Storey he should look into the matter and take appropriate action since Bartlett was a Sheet Metal Mechanic at the WG-10 (Wage Grade) pay level. Storey obtained a copy of Bartlett's May 9 level and concluded that since Bartlett was not a GS-15, Bartlett was guilty of misrepresenting his grade and it was possible that if AFSCO understood Bartlett to be a GS-15, they might divulge information to Bartlett that he should not have received. Accordingly, on June 20, 1985 Storey met with Bartlett and presented him with a Notice of Proposed Suspension wherein Storey proposed to suspend Bartlett for five days without pay for "deliberate misrepresentation." The Notice of Proposed Suspension also indicated that in determining the severity of the proposed discipline, Storey had taken into consideration Bartlett's disciplinary 3 day suspension in June 1984 for: ". . . failure to request leave according to established procedures; unauthorized absence; and making false, malicious, or unfounded statements against your supervisor with the intent to damage his reputation." During the meeting Storey explained that Division Chief Jensen was very upset because Bartlett signed his name as a GS-15 and related that Jensen contacted the Civilian Personnel Branch and they contacted Storey and told him some disciplinary action should be taken. Storey, a personal friend of Bartlett's, also indicated he didn't feel good about disciplining Bartlett but felt compelled to discipline him because of his prior infractions. Bartlett explained he held two distinct positions: Aircraft Mechanic WG-10; and Aircraft Division Steward, GS-15. Bartlett went on to state that he didn't understand the concern over his use of the GS-15 designation since it was strictly an internal union matter and no one from management had asked him the meaning of its usage. For all they knew, he added, it stood for general steward 15 or good steward 15, they had no idea. From Bartlett's explanation, Storey concluded that when he used the GS-15 in the May 9 letter, Bartlett had no malicious intent to misrepresent that he was indeed a GS-15 but Storey nevertheless concluded that a misrepresentation occurred. By letter of August 8, 1985 William Shoell, President of Local 1592 filed with Storey a written response to the Notice of Proposed Suspension on behalf of Bartlett. Shoell's letter stated: "1. On 9 May 1985, Mr. Kelly Bartlett, in the capacity of the Aircraft Division Steward, filed an appeal to the Office of AFSCO. In signing the letter, Mr. Barlett used his union title very clearly, when he signed this as the Aircraft Division Steward for Local 1592. "2. There may be some confusion with management in regards to the GS-15 Mr. Bartlett, when acting in the capacity of the Aircraft Division Steward, is equivalent to Mr. Ward Jensen, a GS-15, and Colonel Brown, a full Colonel in the United States Air Force, and is not acting in his capacity as a federal employee -- which is correctly, a Sheet Metal Mechanics, WG-10. "3. It is a union retained right to use whatever title they feel for their officers and stewards and it is strictly an internal union matter, which management does not have the right, inaccordance with Public Law 95-454, to interfere with. "4. There may have been some confusion within management circles because of the GS-15 applied to Mr. Barett's title, but it is very clear there was no deliberate misrepresentation. In order to be a deliberate misrepresentation in Mr. Barrett's case, you would have had to delete "Aircraft Division Steward, AFGE Local 1592" from the letter, which anyone could very clearly see, Mr. Bartlett was acting in the capacity of a union official. "5. Until this proposed action, there has been no communication with Local 1592 into regard of some possible confusion and the use of titles/grades assigned to stewards and officers in this local. The evidence package provided to myself as Mr. Bartlett's designated representative, further substantiates this -- that there were no problems in regards to Mr. Bartlett's representation, only the letter to AFSCO. "6. Mr. Bartlett had no intention of implying that he was a GS-15 in the federal government, but only as stated, Aircraft Division Steward, GS-15, AFGE Local 1592. In accordance with case law established in numerous cases, Union officials do not fall under the same criteria as a federal employee when they are acting in the capacity of union officials. Several of these cases are: 4 FLRA 460, 4 FLRA 540, 4FLRA 668; OALJ Decision 8534, U.S. Supreme Court Decision Linn VS Plants Guards, 383US53, Old Dominion Branch 496, NAL Carriers VS Austin 418US264 (1974). They clearly state that union officials are governed under a different type of criteria when performing their duties. Further, there was no evidence presented to me in the evidence package that Mr. Bartlett was not performing as a representative for AFGE Local 1592. "7. If the designation of GS-15 is requiring management officials at Hill AFB any problems, I feel they should address this to myself in order that I may be able to review it and see if, in order to promote good union-management relations, we need to change titles of union officials within my organization. "8. I can further ensure that Mr. Bartlett has no intentions of deliberate misrepresentation now or in the future. "9. I feel that the proposed 5-day suspension should be cancelled in its entirety. I do request a verbal presentation in this matter at your convenience." Storey remained unconvinced that a misrepresentation had not occurred but felt that Bartlett had not actually intended to mislead any one by use of the GS-15 designation. Accordingly, on August 23, 1985 Storey issued his final decision in the matter stating, in relevant part: "2. Your . . . replay, . . . has been thoroughly reviewed and been given full and objective consideration. It is found that the reasons stated in paragraph 2 of the Notice of Proposed Suspension are sustained and fully supported by the evidence and warrant your suspension to promote the efficiency of the service. However, since Air Force policy on discipline is to rehabilitate rather than punish, the decision has been made to reduce the penalty to a one (1) day suspension. Therefore, you will be suspended from duty and pay beginning 29 August 1985 . . . ." Thereafter, Bartlett was suspended from employment without pay on August 19, 1985. With regard to the use of the GS designation, the record reveals that no official of the Union ever used this designation either before or after the Bartlett incident. Bartlett testified that sometime around early May 1985 a group of stewards were informally gathered together with William Harper, the then President of Local 1592, awaiting the start of a Union meeting. /2/ Either Bartlett or another steward, William Carr, suggested to Harper that stewards use a GS grade level, along with their official Union title, equivalent to the management representative with whom they regularly dealt on labor-management matters. According to Bartlett the difference between the various levels of stewards would then be clearly distinguished. Nothing was specifically said during the discussion with regard to whether the Union would use such designations when communicating with management although Bartlett testified he thought it was just generally understood. /3/ Bartlett further testified that the use of GS designations was acceptable to President Harper and during this informal meeting he suggested one of the stewards prepare a rough draft for his signature and have it typed by the Union's secretary so Harper could send the names and designations to Riley Skeen, Respondent's Chief Employment Relations. According to Bartlett he thereafter wrote a "rough draft" indicating the equivalent GS designations of 10 or 12 individuals and left it on the Union secretary's desk for typing. The letter was addressed to Skeen requesting that he recognize the named individuals by Union title and GS pay grade but the letter was not thereafter signed by Harper or sent to Skeen. /4/ Shoell succeeded Harper as President of Local 1592 around May 23, 1985. Shoell testified that sometime in April 1985 Harper told him of a letter requesting something to the effect that Bartlett and steward Carr be given equivalent status of GS-15 in order to receive privileges in the Officer's Club. Shoell was not sure of the letter's originator and, with regard to the addressee, testified, "I'm sure it must have been going to the Officer's Club." Shoell gave no indication that he had knowledge of any other such letter. /5/ In any event, apart from his August 8 letter on behalf of Bartlett, supra, Shoell never notified Respondent of the use of GS designations by Union stewards. Bartlett testified the first time he talked to Shoell about the use of GS designations for stewards was shortly after Bartlett received his Notice of Proposed Suspension of June 20, 1985 and it was at this time that Shoell ". . . reaffirmed that we could designate the way the union saw fit." With regard to his use of the GS-15 designation in his May 9 letter, supra, Bartlett testified that in his prior dealings with AFSCO, AFSCO personnel always indicated the originator's official grade. Accordingly, after his informal discussion with Local 1592 President Harper, supra, Bartlett used the GS-15 designation on May 9 as a "courtesy" and he considered it "proper etiquette" in corresponding with "an organization that always does that." Discussion and Conclusions Counsel for the General Counsel contends Bartlett's use of GS-15 designation was within the scope of protected activity since Bartlett clearly revealed himself as "Division Steward" to which he attached the GS-15 designation; the designation was approved by the Union prior to Bartlett's use of it, thus the designation was a matter internal Union activity associated with its right to select and designate the title of its representatives; and in any event, Bartlett's use of the GS-15 designation did not amount to "flagrant misconduct" which would place Bartlett's conduct outside the ambit of protected activity. Respondent contends no internal Union approval to use the GS-15 designation ever occurred and Bartlett's use of GS-15 was misleading or otherwise deceiving thereby constituting a deliberate misrepresentation outside the scope of protected activity. There is no dispute that Union steward Bartlett was indeed engaged in activity protected by the Statute when he wrote the May 9, 1985 letter of appeal to AFSCO on behalf of employee Gilbert Duran. However, the Authority has long held that during the course of otherwise protected activity by a union representative flagrant misconduct will not receive the protection of the Statute. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54 (1979) and Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 17 FLRA 71 (1985) and cases cited therein. Thus the question herein is whether Bartlett's designating himself as a GS-15 was, under the circumstances, conduct protected by the Statute. I find Bartlett's use of the GS-15 designation herein was a significant misrepresentation of his pay grade. He was in fact a WG-10. General Foreman Storey reasonably concluded that this misrepresentation might have led AFSCO, or indeed any other person with whom Bartlett communicated, to divulge information or receive benefits he was not entitled to receive. The fact that the GS-15 designation was also accompanied by his title of Division Steward, AFGE Local 1592 is not controlling since the misuse of his grade, or title for that matter, /6/ would nevertheless inherently tend to create confusion in the mind of the reader who has no idea of the writer's position in the employer's organization. GS-15 is frequently a managerial grade in the Federal Service and it is highly improbable in the circumstances of this case that anyone without special knowledge would conclude that the GS usage was purely a Union designation. Such misconduct could result in a variety of mischief and misinterpretation, the possibility of which was readily foreseeable. Bartlett claims his use of GS-15 was only to represent that he was the equivalent grade of a GS-15. However, Respondent was not so notified beforehand and Bartlett's correspondence to AFSCO did not designate him as "Equivalent Grade GS-15" nor does the document on its face lend itself to that interpretation. Further, I find his claim that he used the GS-15 designation as a "courtesy" or "proper etiquette" to be disingenuous at best. I further conclude that the evidence does not establish that Bartlett's designating himself GS-15 was approved or authorized by the Union prior to Bartlett's using it in his May 9, 1985 letter to AFSCO. Even crediting Bartlett's uncorroborated testimony that Union President Harper was favorably disposed to the idea of stewards using GS designations, /7/ Harper did not specifically indicate the designation could be used in communications with the employer or in the manner used by Bartlett. Clearly the record does not establish that Harper gave a final approval of the rough draft letter or that he even saw the draft. Moreover, no document was ever sent to management by the Union concerning the matter. Thus, the record only indicates that Harper was agreeable with a concept which was never adopted in final form by the Union as an organization. I do not find Bartlett's use of the GS-15 designation was intrinsically related to his Union stewardship or his pursuit of his representational activities. Nor do I find that his misrepresentation of his grade is the type of behavior which one might expect to occur during performance of representational duties. Thus, balancing the competing interests herein I find no Statutory protection for a deliberate misrepresentation of falsification of a matter which has little to do with the activity of representing employees. In my view such behavior does not rise to the level of protected activity simply because it was the action of a union steward or simply happened to occur while Bartlett was engaged in protected activity. This holding, in my view, in no way impedes a union representative from engaging in advocacy or "robust debate" in pursuit of representational activities nor does it dissuade employees from engaging in the Statutory right "to act for a labor organization in the capacity of a representative . . ." as protected by section 7102(1) of the Statute. One last point. If the Union had approved the use of GS designations for its representatives, and so notified Respondent, the disciplining of Bartlett might have been in a different posture. What management would have done as a response in that case would, of course, be purely speculative. But the confusion inherently present by the conduct described herein might well have been avoided. Local 1592 President Shoell's August 8, 1985 response to the Notice of Proposed Suspension does not alter this conclusion. That response only attempts to explain, after the fact, that Bartlett did not attempt to deliberately misrepresent his grade. The wrong had already been committed. Indeed, Shoell's letter does not indicate that the Union had adopted a general policy of so designating all its representative by such equivalent grades but seems to be concerned only with Bartlett's use of the grade. Accordingly, in all the circumstances herein I conclude Union steward Bartlett's use of the GS-15 designation was not conduct protected by the Statute. I therefore recommend the Authority issue the following: ORDER IT IS HEREBY ORDERED that the Complaint in Case No. 7-CA-50596 be, and hereby is, dismissed. /s/ SALVATORE J. ARRIGO Administrative Law Judge Dated: June 27, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) Counsel for the General Counsel's unopposed motion to correct the transcript as to various minor matters is hereby granted. (2) Harper is retired and did not testify in these proceedings. Although according to Bartlett three other named Union stewards and "a few others" were present at this meeting, only Bartlett testified with regard to this discussion. (3) On cross-examination Bartlett acknowledged that in the statement he gave during the investigation of the unfair labor practice charge herein he indicated that one of the reasons he wanted the GS designation was so he could obtain membership in the Officers Club. (4) The Union secretary was not called as a witness and the proported letter was not produced at the hearing. (5) During direct examination Bartlett testified he knew Harper discussed his agreement regarding the designation of stewards by equivalent GS grades with Shoell and it was Bartlett's understanding that there was an agreement between Harper and Shoell on the subject. Later, on cross-examination Bartlett testified he concluded Harper shared this information with Shoell because "The two of them were real close" and, aside from this, he was not aware that Harper had shared any information on this matter with Shoell. (6) Bartlett might just as easily have called himself Division Chief, Foreman, Commander or Colonel. (7) Bartlett's credibility is highly questionable. Apart from Bartlett's demeanor with which I was not impressed, Union President Shoell failed to lend support Bartlett's version of Union President Harper's purported approval at the informal meeting, supra. Notwithstanding, no other witness to the approval at the informal meeting or the existence of the "rough draft" letter was called to testify nor was the "rough draft" letter produced.