14:0311(58)CA - Air Force, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Local 1138 -- 1984 FLRAdec CA
[ v14 p311 ]
14:0311(58)CA
The decision of the Authority follows:
14 FLRA No. 58
UNITED STATES AIR FORCE
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE
BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1138
Case Nos. 5-CA-519
5-CA-521
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the consolidated complaint,
and recommending that it be ordered to cease and desist therefrom and
take certain affirmative action. The Judge found further that the
Respondent had not engaged in certain other unfair labor practices
alleged in the consolidated complaint, and recommended dismissal of
those portions of the consolidated complaint. Thereafter, the General
Counsel, the Respondent and the Charging Party filed exceptions to the
Judge's Decision and 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
entire record in this case, the Authority hereby adopts the Judge's
findings, /1/ conclusions and recommended Order. /2/ In adopting the
Judge's conclusion that Respondent violated section 7116(a)(1) of the
Statute when its supervisor took into consideration an employee's union
activity in developing her annual appraisal, the Authority notes the
Judge's finding that Respondent failed to show that there was any
explanation other than union activity for the employee's lower rating.
In adopting the Judge's conclusion that the Respondent did not violate
the Statute when its supervisor talked to unit employees over the
telephone concerning their purpose in attempting to reach the Union
steward under his supervision, it is concluded that under the
circumstances the supervisor's actions cannot reasonably be said to have
tended to interfere with, restrain or coerce employees in the exercise
of their rights under the Statute. Thus, after asking the employees
whether their business with the steward was union-related, he informed
each employee of the proper procedure under the parties' negotiated
agreement for contacting the steward. This was done in a matter-of-fact
manner, accompanied by no anti-union comments. No limits regarding
employee access to the Union were suggested other than to inform
employees of the proper procedure, and no impression reasonably could
have been created that they should not seek union assistance.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the United States Air Force, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, shall:
1. Cease and desist from:
(a) Permitting supervisors and managers to consider union activities
of Betty Jean Carroll, or any other employee, in the development of
their performance appraisals.
(b) Interfering with, restraining, and coercing Betty Jean, Carroll,
or any other employee, in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind the March 1, 1980, appraisal of Betty Jean Carroll,
expunge it from her personnel file, and prepare a new appraisal which
does not take into consideration her lawful activity as a union
representative.
(b) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Commanding General of the
Respondent, or his designee, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin 0oards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, in writing, within
30 days from the date of this Order, as to what steps have been taken to
comply herewith.
IT IS FURTHER ORDERED that those portions of the consolidated
complaint in Case Nos. 5-CA-519 and 5-CA-521 found not to have violated
the Statute, be, and they hereby are, dismissed.
Issued, Washington, D.C., April 26, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT permit supervisors and managers to consider union
activities of Betty Jean Carroll, or any other employee, in the
development of their performance appraisals.
WE WILL NOT interfere with, restrain, and coerce Betty Jean Carroll,
or any other employee, in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL rescind the March 1, 1980, appraisal of Betty Jean Carroll,
expunge it from her personnel file and prepare a new appraisal which
does not take into consideration her lawful activity as a union
representative.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is:
Suite 1359-A, 175 W. Jackson Boulevard, Chicago, Illinois 60604 and
whose telephone number is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 5-CA-519, 5-CA-521
Fred Hustad, Counsel
For the Respondent
Judith A. Ramey, Esq.
For the General Counsel
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute (Statute), 92 Stat. 1191, 5 U.S.C. 7101, et seq. It
was instituted by the Regional Director of Region 5 by the issuance of
an Order Consolidating Cases, Complaint and Notice of Hearing on July
30, 1980 based upon charges filed by American Federation of Government
Employees, Local 1138, AFL-CIO, herein referred to as the Union or Local
1138.
The original charge as well as the first and second amended charges
in Case No. 5-CA-519 and the original and first amended charges in Case
No. 5-CA-521 were served, by certified mail, on "Base Commander, 2750th
Air Base Wing, Wright-Patterson AFB, Ohio 45433, Attn: Col. James E.
Rigney Jr." (Jt. Exh. 1(b), (d), (f), (h), (j)). The dates of service
were May 5, 1980, May 23, 1980, June 26, 1980 and July 23, 1980. The
second amended charge (the final document of the series) was served by
certified mail on Col. Rigney as well as on "General Bryce Poe, AFLC
Commander, Wright-Patterson AFB, Ohio 45433," on July 26, 1980 (Jt. Exh.
1(1)).
The "Order Consolidating Cases, Complaint and Notice of Hearing" was
served on July 30, 1980, by certified mail, on "James R. George, Labor
Relations Officer, 2750th Air Base Wing, Wright-Patterson AFB, Ohio
45433," and on "Fred Hustad, Office of the Staff Judge Advocate, 2750th
Air Base Wing, Wright-Patterson AFB, OH 45433" (Jt. Exh. 1(h)). The
Complaint was answered on August 18, 1980 by Mr. Fred Hustad who attests
by his signature to the title of "Counsel for Respondent" (Jt. Exh.
1(o), p. 3).
The Complaint alleges that Respondent, herein also referred to as
AFLC violated Section 7116(a)(1) by interrogating employees and
interfering with the Union activities of Vice President Betty Jean
Carroll; violated Section 7116(a)(1) and (2) by suspending James W.
Griffin for 3 days because of his membership and activities on behalf of
the Union; and violated Section 7116(a)(1) by substantially lowering
the performance appraisal of Vice-President Betty Jean Carroll from the
preceding appraisal year. Respondent denies committing any unfair labor
practices and asserts that the Authority does not properly have
jurisdiction over AFLC or the 2750th Air Base Wing. /3/
A hearing was held in Dayton, Ohio at which the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine, and cross-examine witnesses and argue orally. Briefs
filed by Respondent and the General Counsel have been duly considered.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
Findings of Fact
1. The Air Force Logistics Command has a number of subordinate field
facilities throughout the United States. The 2750th Air Base Wing,
herein the 2750th, is one of those field facilities and, at all times
material herein, has been an independent organizational structure,
subordinate in the military structure at AFLC.
2. The 2750th Air Base Wing is located at Wright-Patterson Air Force
Base, Ohio. Also located there is Headquarters, AFLC. Both AFLC and
the 2750th are serviced by the Civilian Personnel Office of the 2750th
and by the Office of Staff Judge Advocate. The latter employs Fred
Hustad, Respondent's counsel in this proceeding.
3. At all times material herein, the following named persons
occupied positions set opposite their names:
Anthony Pansza - Supervisor, Resources Control Division, HQ,
AFLC/LMDR
Jan Webb - Supervisory Clerk Typist HQ AFLC/LMD
John Ritner - Assistant to Directorate of APD Resources, HQ AFLC/LMD
Terry Bockhorn - Computer Equipment Analyst (at occasional
undetermined times material herein, Acting Supervisor, Resources Control
Division), HQ AFLC/LMDR
James H. Rigney, Jr. - Colonel, USAF, Commander 2750th Air Base Wing
Patrick Fleming - Employee Relations Specialist, Civilian Personnel
Branch, 2750/DPCER
Carl E. Clay - Chief, Operations Branch, Security Police Division,
2750/SPA
4. On January 13, 1978, the National Office, American Federation of
Government Employees (AFGE), AFL-CIO, a labor organization within the
meaning of 5 U.S.C. 7103(a), was designated the certified bargaining
agent for a consolidated bargaining unit of the employees of AFLC, as
set forth in Articles I and II of the Collective Bargaining Agreement
which was entered into between these parties. Accordingly, the National
Office, AFGE is the exclusive representative.
5. Local 1138, AFGE, a labor organization within the meaning of
Section 7103(a)(4) of the Statute is the designated representative for
approximately 4700 employees of AFLC at Wright-Patterson. Some of these
employees work for AFLC Headquarters; some of them work for the 2750th
Air Base Wing. The relationship of the parties is governed by two
documents, the AFLC-AFGE Master Labor Agreement effective April 1979
(Jt. Exh. 3) and a preceding local labor agreement, parts of which have
carried over and are effective at the present time (Jt. Exh. 4). Local
1138 is an agent of National Office, AFGE.
6. Article 4 of the Master Agreement concerns the subject of
"Official Time/Union Representation." Section 4:01 states, inter alia,
that the "Employer agrees to recognize a total number of stewards at
each activity equal to one steward to 80 employees in the bargaining
unit or fraction thereof." Section 4:02 states that the Union will
furnish the Employer with a list of the names of designated stewards
"along with organizational symbols, designated area of representation
and work station if appropriate, and base telephone extension(s)."
Article 4:05 provides that if no shop steward is designated for a
particular organization element, the steward at the next higher
organizational element or the nearest available steward shall serve in
that capacity for purposes of representing employees in Step 1
grievances. Article 4:07 provides a grant by the Employer for official
government time to recognized stewards and elected officers to
accomplish specified functions, including release from their work
station. Article 4:08 grants each shop steward 25 hours official time
on the first successive two-month period to assist employees in the shop
steward's designated area in the preparation of informal grievances.
Article 4:09 grants "a reasonable amount of official time" to stewards
and elected officials for what may be characterized as more formal
matters such as participation in grievance and arbitration proceedings,
negotiations, serving on committees and attending meetings arranged by
management.
7. Other relevant contractual provisions concerning official time
for employees and union representatives are set forth below:
SECTION 4:11: RESTRICTIONS ON OFFICIAL TIME
No official time shall be authorized for functions not listed
or referenced in this Article, unless otherwise mutually agreed by
the parties. Moreover, official time is prohibited for any
activity performed by an employee relating to the internal
business of the Union (including the solicitation of membership,
elections of Union officials, collection of membership dues, etc.
SECTION 4:12: OFFICIAL TIME FOR EMPLOYEES
Employees will be granted official time to prepare and present
appeals and grievances under the Negotiated Grievance Procedure in
accordance with Article 6.
SECTION 4:13: OFFICIAL TIME RELEASE PROCEDURE
The following procedures shall apply to employees and Union
representatives who wish to leave their assigned work area on
official time, as authorized under this Agreement.
a. When a Union representative desires to leave his assigned
work station to conduct authorized Union-Management business, that
Union representative must first report to and obtain permission of
his immediate supervisor. In requesting release, the Union
representative will inform the supervisor of the nature of the
function to be performed, destination, name(s) of employee(s) to
be contacted, estimate duration, etc.
b. Subject to the provision of this Article, and if work load
conditions permit, the Union representative shall be released. If
release cannot be granted because of work load considerations, the
supervisor shall advise the Union representative when release
would be appropriate.
c. When the Union representative intends to meet with
employees in another work area, the representative's supervisor
shall make arrangements for such meeting with the first level
supervisor of the employees involved, subject to work load
conditions.
d. Upon release, applicable portions of the AFLC Form 949 will
be completed by the supervisor and the Union representative (see
Appendix 1).
e. Upon entering a work area other than his own to meet with
unit employees, the Union representative shall advise the
immediate supervisor of this presence, the employees to be
contacted, and estimated duration.
f. Upon completion of authorized Union-Management business,
the Union representative shall advise the immediate supervisor of
the contacted employees of his departure.
g. Upon return to his work area, the Union representative
shall advise his supervisor of his return. The supervisor shall
sign the representative in on AFLC Form 949 and retain the form
for accounting purposes. The Union representative shall be given
a copy of the form when it is completed.
h. For meetings called or approved by Management officials
which require the presence of a steward, the management official
arranging such meeting shall arrange for the steward's release
through contact with the steward's supervisor. The management
official arranging such meeting shall provide to that supervisor
the information necessary for release. All other provisions of
this section shall apply. This paragraph shall also apply to
grievance presentation meetings held in accordance with Article 6,
Grievance Procedure.
8. Also of relevance to this case is Article XXVIV, Sections B and
C, of Joint Exhibit No. 4 dealing with carry-over provisions of the
Master Agreement:
Section B. Union representatives will be permitted to use
Government telephones for local use, when necessary to conduct
proper labor-management relations activities. The use of
Government telephones for long distance calls (either through
AUTOVON for commercial facilities) is not authorized. The
telephone number of the AFGE Fairborn office will be listed in the
WPAFB telephone directory.
Section C. When a member of the bargaining unit desires to
discuss a personal matter in private with the Union, existing
space, suitable for a private discussion, will be made available
as near the work site as practical. Arrangements for such space
will be conducted by the Union representative with the supervisor
concerned.
Thus, Section B permits use of telephones by Union representatives
during working hours, but does not specify what restrictions exist, if
any, with respect to the amount of time to be used in such use. Section
C permits a Union representative to make arrangements for space with the
supervisor concerned but does not specify whether arrangements must be
made orally (in person or over the telephone) or in writing.
9. Betty Jean Carroll was a computer specialist general in the
Directorate of Resources Management during the pertinent period from
December 1, 1979 through May, 1980 when the alleged events occurred,
which are alleged unfair labor practices. Carroll was assigned to a
Funds Management Work Group under the supervision at that time by
Anthony Pansza. Carroll's work site is one large room, without
partitions, populated by about 40 to 45 persons sitting at desks lined
up in 8 rows, with about 5 desks in each row. She was in the middle of
the room in the front of the 5th row of desks. The record does not
disclose the size of the room or the distance between desks.
10. Carroll testified that she served as shop steward or chief
steward, as well as being the Local Vice-President. Her major
responsibility is to appoint and train shop stewards and supervise their
activities. She also testified that in the past couple of years she has
taken on the responsibility of prosecuting arbitration cases, testifying
in unfair labor practice hearings, developing arguments for the FSIP,
meeting with the FMCS, and negotiating at the local levels and for
Council No. 214. She is chief steward for organizational entities
without a designated steward and she handles a heavy grievance caseload.
She represents about 3,000 employees, many of whom are located in her
building. However, as vice-president she also services the base
hospital, the Air Force Institute of Technology, and the AFALD
organization, which are located throughout the area. She described her
Union workload as extremely demanding and emphasized that management had
the responsibility to communicate with her (and not the Local president)
- as the contact point for all managers in the organization - for all
briefings on reorganizations, changes in employment conditions,
training, and any matters covered by the contract. Altogether, the
Local represents about 4700 employees. To assist her, she has 9 other
shop stewards.
11. Section 6:07 of the Master Agreement contains procedures for
employee grievances. Step One requires an informal discussion between
the employee and his or her supervisor. If the employee desires the
assistance of a steward, the employee "will inform his supervisor of the
nature of the grievance and request the assistance of the Area Shop
Steward so that arrangements may be made to informally discuss the
grievance." Upon being informed of the nature of the grievance, the
supervisor may determine that it is not within his authority to resolve
the matter, in which case he shall make arrangements with the
appropriate management official with requisite authority to informally
discuss the grievance with the employee and steward.
12. According to Carroll, bargaining unit employees were not
familiar with the contract terms and procedures and for this reason she
would receive telephone calls directly from employees, rather than from
the employee's supervisor, as required in Section 6:0007(a)(1). When this
happened she would ascertain the nature of the complaint or grievance
and advise the employee that he or she should have their supervisor
contact Carroll directly to arrange a meeting at a mutually acceptable
time for all concerned. Carroll would complete a Form 949 Official
Release Permit containing the names of the grievant, the supervisor, the
building location, the work area, and the amount of time required.
After her supervisor, Tony Pansza, approved her release, the form 949
would be placed on a clip board outside his office where it could be
readily seen by the women working in what was called the "Administrative
cluster." /4/
13. The four women who worked in the administrative cluster, under
the immediate supervision of Jan Webb, had the responsibility of
answering the telephones. When they were not on the phone, they had
typing duties to perform.
14. Supervisor Pansza testified that around October 1, 1979 a
decision was made to upgrade their telephone capabilities and relocate
phones, if necessary. So, at some time after that, he instituted a
survey to ascertain how many telephone calls were being received and by
which employees. He instructed Jan Webb to instruct the administrative
cluster to make a record of all telephone calls for a period of two
weeks. According to Pansza, the survey showed that Carroll, received a
large number of calls, 3 to 5 times as many as any other employee. He
stated that on some days there would be 25 phone calls in contrast to
other employees receiving 2 to 4 calls. Pansza then examined the survey
more closely, looking only at the 3-member group of which Carroll was a
part. The GS-13 ADP Funds Manager received 18 or 19 calls, the GS-12
Journeyman received 34 or 35 calls, and Betty Jean Carroll received
somewhere in the neighborhood of 118 or 119 calls.
15. Pansza also testified that he had received complaints from
cluster employees to the effect that the excessive number of calls to
Carroll interfered with their own work. Also, Carroll's own colleagues
in her work group complained that when she was away from her desk or on
the phone, they had to answer her intercom to explain that she was
absent or on the phone and that this interfered with their work.
16. Carroll's excessive use of the telephone is also demonstrated by
two witnesses for the General Counsel, Leslie Henderson and Lora Fite,
both being cluster employees. Thus, Henderson testified that Carroll
received a lot of calls, some of which lasted 20 minutes and that while
Carroll was on the phone, other calls sometimes were waiting for her.
Furthermore, Henderson admitted that she had spoken to her supervisor
about this, that other cluster employees had complained, and that
callers asking for Carroll were sometimes upset when Carroll had not
returned their call or that Henderson did not know Carroll's
whereabouts.
17. Lora Fite testified that Carroll received a large number of
calls ranging from 1 to 20 minutes in length, that some callers were
irritated when Fite couldn't explain Carroll's whereabouts, and that
Carroll was still receiving, as of the date of the hearing, 10 to 20
calls each day. Further, Fite stated that sometimes there would be
calls for Carroll on three lines at the same time. Fite admitted that
she had mentioned this situation to her colleague and her supervisor.
18. On January 16, Carroll arrived at work at 8:55 a.m. and found
that her supervisor had not approved her release to attend a 9:00
meeting with a grievant and Mrs. Mesher, who is in charge of workmen's
compensation. She went to the meeting anyway. Upon her return, Pansza
told her he wanted to discuss this matter as well as some other things.
In their meeting, Carroll refused to take either annual leave or LWOP
for the 1 1/2 hours she was gone. The record is silent as to what
eventually resulted from this deviation from the contractual procedure.
According to Carroll, it was during this January 16 meeting when Pansza
told her of the survey and the fact that it showed she was receiving 90
percent of the calls. Carroll acknowledged that this was probably the
right percentage because she admittedly had a very heavy telephone
audience. Pansza inquired whether it was Union business and she replied
that "for the most part," it was Union business. /3/ Carroll admits
that Pansza told her that her excessive receipt of phone calls was
working a hardship on the women in the cluster and that other employees
were complaining. He also told her she was not carrying her share of
the workload. Her response was that she was entitled by law to
represent people and had to have time in her workday for such duties.
His response was that she might do some of it at night. The record does
not indicate whether Pansza and Carroll actually discussed how much time
would be a reasonable amount of time or how much time represented
compliance with the contractual provisions previously recited in this
decision.
19. The complaint alleges that on January 18, 23, 25, 29, and at
other times material herein, Pansza unilaterally scheduled and/or
rescheduled meetings of Carroll in violation of Section 7116(a)(1).
During this same January 16 meeting which commenced at 11:00, Pansza
called in Terry Bockhorn and said he would like Bockhorn, Carroll, Ken
Kora and the funds manager to meet with him at 1:00 that afternoon to
discuss a new project. He then realized he had a conflict and instead
set the meeting for the following morning. When Carroll pointed out
that she had a conflicting meeting on a 3-hour negotiation session on
transfer of workload schedules, Pansza replied, "Well, we will just
cancel that." Although this particular meeting was cancelled and
rescheduled, Carroll was permitted to attend two other meetings she had
scheduled the afternoon of January 16. In summary, Carroll actually
attended three meetings on January 16 concerning Union business, two
with management's approval, and one without such approval.
20. Carroll testified that on January 18 she was advised she could
only have one meeting per day and, since she had two scheduled, her
meeting with Larry Charter on a grievance was rescheduled to January 23.
However, on January 23 Carroll had a meeting with an FLRA investigator,
which began in the morning and lasted until 3:00 thus preventing her
from attending her 1:00 meeting with Charter. Instead of having her
supervisor reschedule the Charter meeting, she herself called Crimm,
Charter's supervisor and rescheduled the meeting for January 25, the
same day she already had a meeting scheduled with workmen's
compensation. So, since Carroll now had two meetings scheduled for the
same day, January 25, acting supervisor Bockhorn rescheduled the latter
one to January 29 at 9:00 a.m. As it happened, Carroll already had a
negotiation session on ground rules scheduled for January 29 with Union
President Cook, at 9:30 a.m. Since the meeting times conflicted, and
since the 21-day time limit for grievances was running out, she chose to
attend the meeting with Charter. Cook cancelled his meeting with
Carroll and the record does not indicate whether it was rescheduled. In
terms of past practice, Carroll testified that she used to make her own
meeting arrangements and thus avoid any scheduling conflicts. Panzsa's
involvement was to talk to other management officials about the nature
of the meeting and the amount of time to be authorized. He did not have
contact with the grievants themselves.
21. After the January 16 meeting at which Carroll was told about the
survey, Carroll received some telephone calls at home and in this way
learned that employees who called her at the office were being asked the
purpose of their call. Actually, Carroll received calls dealing with a
number of subjects, including grievances, classification appeals,
promotion actions and back pay claims. Pansza admits that over a 2-day
period he asked Webb to instruct the girls in the cluster to inquire
with respect to anyone calling Carroll, whether the purpose of the call
was to discuss Union business and if it was, the caller was referred to
Pansza. Henderson, a cluster employee, did this 2 or 3 times; Fite
didn't state how often she did it. Fite did say that if Pansza was not
there she would ask the caller to leave a message which, of course,
required the caller to identify himself or herself.
a. One of the callers during this period was Betty Jane Malavich.
She said that Pansza identified himself to her as Carroll's supervisor
and inquired "Is this a personal call or a Union call? She replied
"Union business" and Pansza said, "Well, according to the contract, I
cannot allow you to speak to Miss Carroll." Malavich apologized, hung
up, and called Carroll at home.
b. Another caller, Mary Evelyn Hacker also testified as to her
experience. When she first called Carroll she talked for 20 to 25
minutes, was told to obtain the job series from personnel and call back.
On one of the occasions when she called back, she was told she would
have to talk to Carroll's supervisor, who wasn't there at the moment.
Later, Pansza called her, identified himself and, according to Hacker,
asked her the nature of her complaint, which she began to relate.
Pansza apparently thought she wanted to arrange a meeting with Carroll
and told Hacker that he couldn't release Carroll to meet with her.
Pansza also told her that she should see her supervisor who could call
him and arrange for Carroll's release. She then went to her immediate
supervisor, Major Johnson, who called Pansza and arranged for Carroll's
release. Based upon my observation of Hacker, and her demeanor while
testifying, I cannot accept her characterization of Panzsa's tone of
voice as "threatening." She obviously is a sensitive person who may be
upset easily, as shown by her reaction to the incident which triggered
her grievance in the first place (and which I have not related herein).
That she felt Pansza was "talking down" to her is probably more accurate
and closer to the truth.
c. Pansza stated that altogether there were about 8 to 12 calls
referred to him during the 2-day period. His procedure was to first
identify himself as Carroll's supervisor, then explain that under the
provisions of the Master Agreement he could only release her on official
business under certain conditions and that he would have to talk to the
employee's supervisor. He recalled his conversations with both Malavich
and Hacker. In the case of the latter, he needed to know a bit more
about the reason she needed to see Carroll in order for him to decide
whether it was proper to authorize official time. He finally concluded
Hacker hadn't talked to her own supervisor and suggested she do so.
22. In March 1980, all employees in Carroll's work area (except
herself and an employee who was soon to retire) received their annual
appraisals. Panzsa's explanation for this delay was unsatisfactory and
cannot be accepted. Eventually, on April 24, Carroll met with Pansza
for a performance appraisal interview. Upon receipt of her written
appraisal, Carroll quickly computed her "score" of 89 percent and
remarked to Pansza that he had lowered her score considerably. (She
received 93 percent in 1978 and 1979). According to Carroll, Pansza
said that he felt it was justifiable, because she had a heavy Union
workload all year, and had not carried her full load of the work. The
foregoing testimony by Carroll was undenied by Pansza and unexplained in
any manner. Pansza credibly testified, however, that there is no
cut-off-score per se; rather, when a panel meets to establish a
register it is influenced by the number of vacancies and prospective
vacancies to be filled in determining the number of persons to be
interviewed. Thus if 25 persons are needed, a line will be drawn on the
list after the 25th name, regardless of the score. Of course, the lower
one's score, the lower one's placement on the list. Therefore, if only
a few names were needed, the scores of those selected would be "in the
90's or 95's." I find that the lowered score had the effect of limiting
Carroll's opportunities to be considered for promotion. However, the
record does not establish that but for the lowered rating, she would
have been promoted.
Case No. 5-CA-521
23. Don Cook became President of AFGE Local 1138 in January, 1980.
Also, in January 1980, Local 1138 won a decertification election in a
separate unit involving the Security Police which, until then, had been
represented by Local 526, International Brotherhood of Police Officers
(IBPO). Shortly after the election, James W. Griffin, the President of
IBPO was appointed by AFGE as unit vice-president of AFGE.
24. On January 29, Griffin was on duty at a gatehouse at Gate 1-C.
The gatehouse is a small building, about 5 x 9 feet in size, located at
one of the entrance/exits to the base. Two lanes of traffic passed by
the gatehouse entering the base; two additional lanes carried traffic
leaving the base. The gatehouse was located in the middle of the
street. The duties of the police officer assigned to Gate 1-C are set
forth in Special Security Instruction Number 25 (Jt. Exh. 7(g)) which is
posted in the gatehouse. The duties set forth therein were
substantially more than merely checking cars for identification decals,
as testified by Griffin. Moreover, the instruction clearly states that,
with certain exceptions, the police officer is to remain outside of the
gatehouse. More specifically, paragraph "m" states that loitering is
not permitted and that visitor's questions will be answered without
requiring them to enter the gatehouse. At approximately, 8:00 p.m.
Griffin received a visitor at Gate 1-C while on duty. The visitor was
AFGE Local President Don Cook who parked in his car near the gatehouse
in a "no parking" area and left his emergency flasher on. He was in the
gatehouse for 10 to 15 minutes. While there, he was seen by Patrick
Fleming, an employee relations specialist, who was departing the base
after having tutored a group of individuals in Social Studies at Bldg.
110. His written report (Jt. Exh. 7(a)) stated that the discussion
between Cook and Griffin was so involved that Griffin "seemed to totally
ignore the fact that a vehicle was leaving the base. The next day,
Chief Clay called Griffin to his office and verified that Griffin
permitted a visitor to enter the gatehouse. He asked the identity of
the visitor and Griffin denied knowing his identity. Of course this was
not true. In Joint Exhibit 7(d), Griffin stated that the visitor was
asking for directions. This also was not true. At approximately 4:00
that same day, Chief Clay had Griffin report to his office and told him
that "investigation" revealed the identity of the visitor as Union
President Cook. Griffin declined to answer any further questions
without union representation and the meeting was terminated. On
February 1, a meeting was held with Chief Clay, Griffin, Union
representative Betty Carroll and two other persons. Joint Exhibit 7(d)
is a transcript of that meeting wherein Griffin states that Cook asked
for directions concerning the positions of other gate shacks. At the
hearing herein, Cook testified that he was making a safety inspection.
What Griffin and Cook were talking about for 10 to 15 minutes is not
particularly crucial to the outcome of this case. Suffice to say, I am
unable to credit the testimony of Griffin and Cook in any respect.
Griffin tried to cover up for Cook by not disclosing his identity when
first confronted by Chief Clay and lied about the purpose of Cook's
visit. Cook, tried to help Griffin (and himself), by attempting to have
me believe that he was engaged in some sort of official business. Of
course, if Cook really had a right to be there while Griffin was on duty
and without some management official accompanying him, there was no need
for Griffin to lie to Clay on January 30 or not to disclose this
information during the February 1 meeting. In any event, Article 25,
Section 14, states that safety inspections will be conducted by the
employer, but the Union may accompany the inspection, which shall be
conducted in a manner so as to preclude any disruption with the
operations at a work site.
25. On February 21, Respondent issued a Proposal to Suspend Griffin
for 5 days. A previous offense resulting in a 5-day suspension was
considered in arriving at this proposed decision. Griffin replied in
writing. The final decision was a 3-day suspension which was carried
out on April 16-18.
26. Apart from Griffin and Cook, whom I do not credit, the General
Counsel offered no other witnesses to support a theory of disparate
treatment in the enforcement of the regulations described above.
Discussion and Conclusions of Law
Jurisdiction
Respondent contends that Air Force Logistics Command is not an agency
within the meaning of Section 7103(a)(3) of the Statute, but even if it
is an agency, it is entitled to be separately named and served both in
the charge and the complaint. Respondent appears to be contending that
AFLC is independent from the 2750th Air Base Wing and, therefore, the
two organizations should not be joined in the same charge and complaint.
Stated differently, Respondent contends that AFLC is "entitled" to be
separately named and separately served both in the charge and the
complaint. The foregoing contentions eventually lead to the main
contention that service of a charge as the 2750th as an "agent" of AFLC
is improper service and, in a vain effort to show prejudice, Respondent
alleges that it was "deprived" of an opportunity to be involved in
pre-complaint settlement discussions.
In resolving the foregoing contentions, I conclude first of all that
Respondent, whether an agency or an activity, was properly named in the
complaint and properly served. Secondly, Respondent is not "entitled"
as a matter of right to be separately named in charges and complaints,
such matters being within the discretion of the charging party and the
General Counsel, respectively. Thirdly, having concluded that
Respondent was properly served, I further conclude that it was not
deprived of any pre-complaint settlement opportunity. Assuming,
arguendo, that Respondent did not have a pre-complaint settlement
opportunity, it nevertheless still could have elected to settle this
case subsequent to issuance of complaint and chose not to. In my
opinion, Respondent has not in any event demonstrated that it has been
prejudiced by any actions by the Region. Accordingly, Respondent's
contentions are rejected.
Finally, in view of my decision herein to dismiss the allegations in
Case No. 5-CA-521 concerning the acts attributed to agents of the 2750th
Wing, I need not resolve the question of whether the General Counsel
erred in not naming the 2750th Wing as a co-respondent. On the one
hand, employees of the 2750th appears to be included in the same unit as
AFLC employees (Jt. Exh. No. 4) and both AFLC and 2750th employees are
served by the same personnel office and labor attorneys. On the other
hand, it is not clear from the evidence in this record whether the
2750th is a separate and distinct entity and so operationally
independent from the AFLC that it can stand alone for purposes of
Section 7116(a)(1) and (2) violations. /6/ This same issue involving
these same parties was raised by Respondent before Judge Sternburg and
rejected by him in Case No. 5-CA-390 (OALJ-80-89, Sept. 12, 1980). /7/
That decision, which is still pending before the Authority on appeal,
held that the 2750th was an agent of its parent organization, AFLC, and
did not specifically have to be named as a co-respondent. /8/
In summary, and for the reasons stated above, Respondent's motion to
dismiss for lack of jurisdiction is hereby denied. Monitoring of
Telephone Calls to a Union Official
There is no dispute that a telephone survey of incoming calls
revealed that Betty Carroll received a substantial number of telephone
calls, when compared with other employees. There is no dispute that
Carroll's colleagues as well as the employees who had to answer the
phones, complained to management that the excessive number of calls was
a problem. Whether these calls were related to (1) business, (2) the
union, or (3) personal matters, could only be determined by asking the
caller to state the purpose of the call. In these circumstances, I
believe it was reasonable for Respondent to instruct the employees who
answered telephones to inquire whether the purpose of the call was Union
business. The Respondent had justification for its action and by so
doing did not violate Section 7116(a)(1). I also find that when the
telephone caller was asked whether the purpose of the call was Union
business, that this did not constitute interrogation within the meaning
of Section 7116(a)(1). In the circumstances of this case, Respondent
had justification for its conduct because this was a reasonable method
of policing the contract which specifically limits the use of official
time for Union activity to "a reasonable amount." I further find no
violation of Section 7116(a)(1) in requiring employees who answered the
phones to refer callers to the supervisor who could explain to the
caller the proper procedures to follow in being released to see their
steward, and vice versa. This is particularly so in this case where
Carroll did not agree with the contractual procedure and had formulated
her own procedure simply because she thought it was better and more
convenient. As authority for the foregoing conclusions of law, see
Department of the Treasury, Internal Revenue Service and IRS Richmond
Office, 3 FLRA 18.
With respect to the allegation that Pansza scheduled and rescheduled
meetings of Betty Carroll, all he did was to establish a policy of
limiting her meetings to one per day and then tried to enforce this
policy. From the testimony of Carroll it seems obvious that her first
priority was attending to her Union business no matter how many meetings
were scheduled the same day. Nor was she the least bit concerned that
90 percent of the telephone calls were for her. I don't believe that
Respondent's conduct was unlawful in the circumstances of this case.
Furthermore, this situation must be viewed in terms of what could happen
if Pansza continued to permit Carroll to deviate from the terms of the
contract with management's acquiescence. Such condonation by management
could mean that Carroll's release procedures would ripen into a past
practice and become a condition of employment. But management has a
right to prevent this from happening by taking appropriate steps to
reaffirm established policy and assure uniformity in enforcement. HEW,
Region 5, Chicago, 4 FLRA No. 98. Cf. Norfolk Naval Shipyard, 4 FLRA
No. 91.
Finally, with respect to all the alleged violations shown above the
evidence does not establish an anti-union intent by Respondent. In
fact, I agree with Respondent that what we really have here is a running
dispute between Carroll and Pansza concerning her use of official time
to conduct Union business. In this regard, it is the Respondent's view
that such differences would be better resolved through the negotiated
grievance procedure. However, I make no commend on this point.
Lowering Carroll's Appraisal Rating
The General Counsel contends, and there is no dispute, that Carroll
received a lower performance appraisal rating than in previous years.
According to the General Counsel, the reason for the lowered rating was
Carroll's protected activity of representing the Union in a variety of
ways as a steward and Union official. To establish a causal
relationship between the lowered rating, on the one hand, and Carroll's
protected activity, on the other hand, Carroll testified that she asked
Pansza for an explanation at the time he handed her the appraisal and
his answer was that she had had a heavy Union work load all year, and
that had not carried her full load of the work. This testimony presents
a prima facie case that Carroll's protected Union activity was a factor,
perhaps even the sole factor, in her lowered rating. As noted
previously, Carroll's testimony is undenied and, although Pansza
testified at the hearing, he failed to explain the reasons for the
lowered rating, and failed to show that rating was unconnected with
Carroll's Union activities. There might well have been other
explanations for the lowered rating but, if there were, Pansza failed to
explicate them. Also, I conclude that his explanation for the unusual
delay in giving her a rating was unsatisfactory and not credible.
Accordingly, I find that Respondent violated Section 7116(a)(1) when it
lowered her performance rating from previous years because, in my
opinion, such conduct interfered with, restrained and coerced an
employee in the exercise of her statutory right to engage in Union
activity. U.S. Army, Corpus Christi Army Depot, Corpus Christi, Texas,
4 FLRA No. 80 and cases cited therein; Department of the Navy, Norfolk
Naval Shipyard, Portsmouth, Virginia, OALJ-81-161 (August 28, 1981).
It is also my view that this violation can only be remedied by
ordering Respondent to rescind and withdraw the 1980 appraisal which was
tainted by considering Carroll's lawful Union activities, and by
ordering a reappraisal without consideration of such lawful activities.
San Antonio Air Logistics Center, 5 FLRA No. 22.
Suspension of Griffin
The General Counsel has the burden of proving that, in fact, the
suspension of James Griffin was because of his membership in and his
activities on behalf of the Union. That burden has not been satisfied
herein. The fact of the matter is that Respondent had good cause to
discipline Griffin because he violated regulations. The General Counsel
may suspect that Griffin was being singled out because he was a Union
official or because his "visitor" was a Union official, but suspicion is
not enough. Likewise, Respondent may have suspected that Griffin and
Cook were engaged in internal Union business on official time, but they
couldn't prove that either. The credited evidence does not establish
that Griffin was the subject of disparate treatment, nor am I able to
find any anti-union animus on the part of Respondent. Accordingly, I
recommend dismissal of this allegation in the complaint.
Having found and concluded that Respondent violated Section
7116(a)(1) of the Statute, I recommend that the Authority issue the
following order:
ORDER
Pursuant to 5 U.S.C. 7118(a)(7) and Section 2423.26 of the Final
Rules and Regulations of the Federal Labor Relations Authority, U.S.
Fed. Reg. 3842, 3510 (1980), it is hereby ordered that United States Air
Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, shall:
1. Cease and desist from:
(a) Permitting supervisors and managers to consider union
activities of any employee in the development of their performance
appraisals.
(b) Interfering with, restraining, and coercing Betty Jean
Carroll or any other employee in the exercise of rights assured by
the Federal Service Labor-Management Relations Statute.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Rescind the March 1, 1980 appraisal of Betty Jean Carroll,
withdraw it from her personnel file, and prepare a new appraisal
which does not take into consideration her lawful activity as a
union representative.
(b) Post at the Air Force Logistics Command facility at
Wright-Patterson Air Force Base in Ohio copies of the attached
Notice marked "Appendix" on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms they shall
be signed by the Base Commander and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places,
including bulletin boards and other places where notices to
employees are customarily posted. The Base Commander shall take
reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to Section 2423.30 of the Final Rules and
Regulations, 45 Fed.Reg.at 3511, notify the Regional Director of
Region V, Suite A-1359, 175 W. Jackson Boulevard, Chicago,
Illinois 60604, in writing, within thirty days from the date of
this Order, as to what steps have been taken to comply herewith.
FRANCIS E. DOWD
Administrative Law Judge
Dated: March 11, 1982
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER TO THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL rescind the March 1, 1980 appraisal of Betty Jean Carroll,
withdraw it from her personnel file, and prepare a new appraisal which
does not take into consideration her lawful activity as a Union
representative.
WE WILL not permit supervisors or managers to consider the Union
activities of any employee in the development of performance appraisals
of those employees.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce Betty Jean Carroll of any other employee in the exercise of
rights assured by the Federal Service Labor Management Relations
Statute.
(Agency or Activity)
Dated: . . . BY: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Suite A-1359, 175
W. Jackson Boulevard, Chicago, Illinois 60604.
--------------- 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 has had the advantage of
observing 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 such resolution
was incorrect. The Authority has examined the record carefully, and
finds no basis for reversing the Judge's credibility findings.
/2/ In its exceptions, the Respondent renewed its argument that it
was not properly served with the charges or with the consolidated
complaint herein and therefore the Authority lacks jurisdiction over it
in this matter. In regard to the allegation found to have merit herein,
the second amended charge in Case No. 5-CA-521 was served properly on
the Commanding General of the Respondent and it was properly named as
the Respondent therein. Further, the Respondent's agent, Fred Hustad,
was properly served with the consolidated complaint. Thus, as material
herein, the Authority finds that the Respondent's contention lacks
merit.
/3/ The original charge in Case No. 5-CA-521 named the Activity in
Section 1.A. as 2750th Air Base Wing, Wright-Patterson Air Force Base
but in Section 1.F. stated that the Activity was part of an agency
called Air Force Logistics Command, United States Air Force. All other
charges named the 2750th as well as the Air Force Logistics Command in
Section 1.A.
/4/ Carroll testified that prior to the Master Agreement, she had an
arrangement whereby she "was free to come and go" as she pleased. From
her testimony I conclude that she resented and resisted efforts by
management to require her to follow the contractual procedure. She
characterized management's actions as a difference of opinion as to
contract interpretation but it is obvious from her own admissions that
she was deviating from the release procedure set forth in Article 4:13.
/5/ During the hearing I asked Carroll whether she was allotted a
certain number of hours per week by management to work on Union affairs
and she replied (Tr. 28), that she had no time limit. I note, however,
that the Master Agreement does contain specific limitations, as quoted
elsewhere in this decision.
/6/ United States Air Force, 8 A/SLMR 1248.
/7/ See also Judge Mason's decision involving the same parties in
Case No. 5-CA-179, 180 (July 9, 1980).
/8/ The problem of identifying the proper Respondent is a real one.
See Judge Arrigo's in Internal Revenue Service, 4 FLRA No. 37 and my
decision in Defense Logistics Agency, Case No. 1-CA-213 (July 7, 1981),
and Headquarters, Defense Logistics Agency, Case Nos. 3-CA-664 et al
(July 10, 1981). The latter cases are pending before the Authority.