[ v22 p161 ]
22:0161(17)CA
The decision of the Authority follows:
22 FLRA No. 17
UNITED STATES DEPARTMENT OF AGRICULTURE
ANIMAL AND PLANT HEALTH INSPECTION SERVICE
PLANT PROTECTION AND QUARANTINE
Respondent
and
NATIONAL ASSOCIATION OF AGRICULTURE
EMPLOYEES, BRANCH #15
Charging Party
Case No. 6-CA-50090
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. The General Counsel
and the Charging Party filed exceptions to the Judge's Decision with
supporting briefs.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority adopts the Judge's
findings, conclusions and recommended Order.
The Authority agrees with the Judge's finding that the complaint
alleging a violation of section 7116(a)(1) and (5) of the Statute must
be dismissed because the record does not establish that the Respondent
changed its past practice with respect to leave charged to employees
arriving late to work, and therefore the Respondent had no duty to
notify the Union and bargain as alleged. The Authority notes that the
complaint in this case did not allege a section 7116(a)(2) violation
involving discriminatory treatment against the unit employee in
question, whose request to have his AWOL charge removed was denied.
ORDER
IT IS ORDERED that the complaint in Case No. 6-CA-50090 be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 13, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 6-CA-50090
UNITED STATES DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT
HEALTH
INSPECTION SERVICE, PLANT PROTECTION AND QUARANTINE
Respondent
and
NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES, BRANCH #15
Charging Party
Susan E. Jelen, Esquire
For the General Counsel
Stanley E. Kensky
John A. Vigil
For the Respondent
Judy Jenkin
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7107, et seq. and the Rules and Regulations issued thereunder.
Pursuant to a charge filed on October 26, 1984, by the National
Association of Agriculture Employees, Branch #15 (hereinafter called the
Union or Charging Party), a Complaint and Notice of Hearing was issued
on February 12, 1985, by the Regional Director for Region VI, Federal
Labor Relations Authority, Dallas, Texas. The Complaint alleges that
the United States Department of Agriculture, Animal and Plant Health
Inspection Service, Protection and Quarantine (hereinafter called the
Respondent or Department of Agriculture), violated Sections 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute
(hereinafter called the Statute), by virtue of its action in changing an
existing policy with respect to allowing employees who confused their
scheduled work shifts and reported late for work to take annual leave or
to adjust their respective hours of work rather than be charged with
being absent without leave (AWOL), without first giving the Union notice
of the change and an opportunity to request bargaining over the manner
of implementation and the impact of the change on adversely affected
employees.
A hearing was held in the captioned matter on March 26, 1985, in El
Paso, Texas. All parties were afforded the full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post-hearing briefs on May 28, 1985, which have
been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The Union /1/ is the exclusive representative of Respondent's
"Professional Plant Protection and Quarantine Officers" (PPQ) stationed
in El Paso, Texas. The PPQ's regulate the movement of plant and animal
products into and out of the United States in an effort to prevent the
dissemination of injuries insects and disease. The El Paso, Texas port
includes three international bridges, the airport and a railroad yard.
The approximately 25 unit employees employed in El Paso work on
various shifts from 6 a.m. to midnight, seven days a week. Nine shifts
were scheduled for Monday through Saturday /2/ and seven shifts were
scheduled for Sunday which was counted as an overtime day. /3/
A shift schedule covers a two week period and is posted one week
prior to its effective date. Employees are assigned to various shifts
and report to different locations. Employees are allowed to make shift
changes, in most cases without restriction. There are certain required
shifts that employees work eight days out the two week period without
being able to trade. After PPQ's agree to trade shifts, they sign a
form which is then approved by a supervisor. The trade is then posted
on the shift schedule.
The Animal and Plant Health Inspection Service (APHIS) Directive
dated October 7, 1982 dealing with "Leave" provides in Part 3, Article
III, Absence Without Official Leave (AWOL) as follows:
"Employees whose absence from duty was not authorized or
approved or whose leave request has been denied is charged on the
T&A as AWOL. An employee on AWOL cannot receive pay for such
absence. If and employee later submits acceptable evidence that
the absence without prior authorization was excusable or that the
employee was ill, the AWOL charge may be retroactively changed to
annual or sick leave or leave without pay . . . ."
On April 28, 1984, PPQ Officer Joseph Gross who was scheduled to be
off work on April 30, 1984, agreed to trade shifts with a fellow
employee and work the 11:30 a.m. to 8:00 p.m. shift on April 30, 1984.
In accordance with the existing practice, Mr. Gross submitted a change
in work schedule to the appropriate supervisor which was subsequently
approved.
On April 30, 1984, Mr. Gross, having confused his scheduled hours of
work for that day, reported for work at 1:30 p.m., two hours past his
scheduled starting time. Upon his arrival, Mr. Nick Silva, a
supervisor, informed Mr. Gross that he was two hours late and that he,
Mr. Silva, was charging him two hours AWOL for this period of time. Mr.
Gross then took the matter up with Mr. Ruben Garcia, Assistant Officer
in Charge. In his meeting with Mr. Garcia, Mr. Gross took the position
that he had confused his shift and felt that he should be charged with
annual leave instead of AWOL. However, Mr. Garcia and Mr. silva refused
to change the two hours from AWOL to annual leave on the ground that
since the change in schedule had occurred only two days earlier he, Mr.
Gross, should have remembered his new schedule. Mr. Gross then appealed
the matter to Mr. John Vigil, Officer in Charge. Mr. Gross informed Mr.
Vigil that there should be a definite policy concerning what type of
leave would be assigned an employee when he arrived at the wrong time
and that there should be uniformity among the supervisors with respect
to the type of leave an employee was charged with when he confused the
starting time of his shift. According to Mr. Gross, this was the first
time in his twenty-two years of employment that he had been charged AWOL
for confusing the starting time of a scheduled shift. Mr. Gross could
not recall how many times in the past that he had confused the starting
time of a shift, but stated that he was sure he had done it in the past.
According to Mr. Gross, this was the second time in his twenty-two
year career that he had been charged AWOL. The first time he was
charged AWOL was on March 30, 1984, when he reported back from lunch
late.
Mr. Gross subsequently filed a grievance based upon his being charged
AWOL on March 30, 1984 and April 30, 1984. In support of his grievance
he alleged that he was being discriminated against because other named
PPQ's were allowed to take annual leave in lieu of LWOP when they
confused the starting times of their scheduled shifts. The grievance
did not involve the issue of a change in an existing past practice
without prior notice to the Union.
Ms. Judy Jenkin, a former vice-president of Local 15, who had worked
in El Paso for approximately four and one-half years before being
transferred to Baltimore, Maryland on March 17, 1985, testified that
prior to April 30, 1984, when Mr. Gross was given an AWOL for confusing
the starting time of his shift, employees who confused their respective
shifts were allowed to take annual leave or readjust their hours of
work. In support of her testimony, Ms. Jenkin pointed out that on
October 10, 1982, she confused her shift starting time and reported to
work fifteen to twenty minutes past the scheduled 8 a.m. starting time
for her shift and was paid from 8:15 without any discussion.
Ms. Jenkin further testified that employee Mr. Norman Bebon, who was
scheduled to work the 8:30 to 5 p.m. shift on October 7, 1982, confused
his shift and reported late after being called by his supervisor. Mr.
Bebon was allowed to take one hour of annual leave. According to the
testimony of Ms. Jenkin; Mr. Ramon Alvarez was allowed to work
different shift hours on April 4, 1984, when he confused the starting
time of his shift, and reported in late. He was allowed to work an 8:30
a.m. to 5 p.m. tour of duty rather than his scheduled 6 a.m. to 2:30
p.m. tour of duty.
Mr. Bob Eads was not charged AWOL when he confused his shift and
failed to show up for work thereby forcing another supervisor to be
called in to work his shift. Mr. Ysobel Medrano was allowed to take
annual leave when he confused his shift in early 1982. /4/
Ms. Jenkin acknowledged in her testimony that two employees, Mr.
Ernest Elliot and Mr. Lazaro Holquin were given AWOL's in 1981 and on
November 6, 1984, respectively, when they confused their shift starting
times and failed to report for work.
Mr. Ronald Joseph Veneziea, a PPQ officer in El Paso testified that
he once confused his work schedule in October of 1981, a Sunday, and
that upon reporting to work two hours late he was allowed to work the
remainder of his scheduled shift.
Mr. Aaron Miller a PPQ officer in El Paso testified that once in the
four and one-half years that he had been in El Paso he confused the
starting time of his shift by two hours and was allowed to take tow
hours annual leave by his supervisor Sam Longanecker. Mr. Miller
testified that he was allowed to take two hours annual leave only after
Mr. Longanecker checked the schedules and noted that his 6 a.m. to 2
p.m. shift had been sandwiched in between two 8:30 a.m. to 5 p.m. shifts
and that his other assigned weekly shifts were all 8:30 a.m. to 5 p.m.
Mr. John A. Vigil, the Officer in Charge of the El Paso Area
testified that he has always adhered to the APHIS policy on absences,
tardiness and AWOL and that he has delegated his discretionary
responsibility to his three first line supervisors. According to Mr.
Vigil if an employee had not been granted leave in advance the employee
is considered AWOL when he fails to show up for his scheduled shift.
The decision to subsequently allow an employee to charge his absence to
annual leave as opposed to being AWOL is decided on a case by case
basis. In the case of Mr. Gross, Mr. Vigil refused to change Mr. Gross'
AWOL to annual leave because Mr. Gross had been warned and counseled in
the past about being late, had received an AWOL a few weeks earlier and
had personally requested the shift change only two days earlier.
Accordingly, in view of all the circumstances Mr. Vigil was of the
opinion that the AWOL notation for the April 30, 1984 incident was
justified.
Mr. Nick Silva who has been a supervisor in El Paso for twelve years
testified that awarding an employee an AWOL for confusing his schedule
is not a change in past practice. According to Mr. Silva the awarding
of annual leave rather than AWOL depends on whether the excuse for
confusing a shift is acceptable. Based upon the facts underlying Mr.
Gross' action in confusing his shift as well as his, Mr. Gross', past
record, he decided that Mr. Gross should be given an AWOL rather than
being allowed to take annual leave for confusing his shift on April 30,
1984.
Mr. Charles Parker who has been a supervisor in El Paso for eleven
years testified that it has always been his practice to consider an
employee AWOL when he does not arrive as scheduled. If an acceptable
excuse is later given he will and usually does utilize his discretion
and allows the employee to take annual leave.
Mr. Samuel Longanecker who had been a supervisor in El Paso for
approximately five years testified that confusing a scheduled tour of
duty is not a common occurrence. He further testified to an instance
when he gave an employee an AWOL for failing to report for her shift.
When the employee later called in with an acceptable excuse he changed
the AWOL to annual leave. According to Mr. Longanecker the test for
allowing the use of annual leave in lieu of AWOL is an acceptable excuse
for confusing the work schedule.
Discussion and Conclusions
The General Counsel, citing approximately five instances during the
past three years where employees confused their respective shifts and
were allowed to take annual leave or readjust their shifts rather than
being charged AWOL, takes the position that Respondent's action in
awarding Mr. Gross an AWOL for confusing his shift on April 30, 1984,
amounted to a change in past practice. Further, according to the
General Counsel, in such circumstances the Respondent was under an
obligation to give the Union prior notice of the change and an
opportunity to request bargaining over the impact and manner of
implementation of the change. Having failed to give the Union prior
notice of the change and an opportunity to so bargain, it is the General
Counsel's position that Respondent violated Sections 7116(a)(1) and (5)
of the Statute.
The Respondent on the other hand takes the position that there was no
change in past practice and that the complaint should therefore be
dismissed in its entirety. According to Respondent it has always been
the practice to consider an employee AWOL when he confused his shift and
failed to appear on time for the start of his shift. To the extent that
the five employees cited by the General Counsel had in the past been
allowed to either take annual leave and/or readjust their respective
shifts rather than be charged with an AWOL, Respondent points out that
in accord with the existing APHIS Directive such action was only taken
after the affected employees had proffered an acceptable excuse to their
respective supervisors for their tardiness, etc.
Respondent further contends that the instant complaint is barred by
Section 7116(d) of the Statute since the same issues underlying the
complaint were raised in Mr. Gross' earlier grievance filed with the
Respondent.
Contrary to the contention of the Respondent, I find that the issues
included in the grievance are different than the issues underlying the
instant complaint. The grievance concerned the merits of awarding Mr.
Gross an AWOL for confusing the starting time of his shift, while the
instant complaint concerns a change in past practice without giving
prior notice to the Union and an opportunity to request impact and
implementation bargaining thereon. In such circumstances, I find that
Section 7116(d) of the Statute does not serve as a bar to the processing
of the instant complaint. Cf. United States Air Force, Air Force
Logistics Command, Aerospace Guidance and Metrology Center, Newark,
Ohio, 4 FLRA No. 70 (1980).
Turning now to the merits of the instant complaint, I find that the
General Counsel has failed to sustain the burden imposed upon him by
Section 2423.18 of the Authority's Rules and Regulations, namely to
prove the allegations of the complaint by a preponderance of the
evidence.
In reaching this conclusion it is noted that the General Counsel has
only established that in the past three years some six employees,
including Mr. Gross, were allowed to take annual leave or readjust their
schedules when they confused the starting times of their respective
shifts and reported late for work. /6/ With respect to Mr. Alvarez, Mr.
Eads, Mr. Bebon and Mr. Medrano, the record is barren of any evidence
concerning the circumstances underlying their respective supervisors'
actions in allowing them to take annual leave or readjust their shifts
in lieu of being charged AWOL. In the case of Mr. Miller, his testimony
establishes that he was allowed to take annual leave only after his
supervisor, Mr. Sam Longanecker checked out Mr. Miller's weekly schedule
and past attendance record and satisfied himself that Mr. Miller had an
acceptable reason for having confused his schedule and shown up late for
work.
In view of the foregoing and particularly in the absence of any other
probative evidence contradicting the mutually corroborative and credited
testimony of the four supervisors in the El Paso office of the
Respondent to the effect that the granting of annual leave or allowing
employees to readjust their respective schedules in lieu of being
charged AWOL when they confused their schedules had never been automatic
but rather dependent on the proffer of an acceptable excuse, I find that
the record evidence does not establish, as alleged by the General
Counsel, that Respondent's action in awarding Mr. Gross an AWOL for
confusing his schedule on April 30, 1984, amounted to a change in past
practice over which Respondent was obligated to give the Union prior
notice and an opportunity to bargain over the impact thereof and the
manner of implementation.
Having concluded that the Respondent did not violate the Statute, it
is hereby recommended that the Authority issue the following Order
dismissing the Complaint in its entirety.
ORDER
IT IS HEREBY ORDERED, that the Complaint should be, and hereby is,
dismissed in its entirety.
/s/ BURTON S. STERNBURG
Administrative Law Judge
Dated: June 12, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The record reveals that the "Federal Plant Quarantine Inspector's
National Association" is the duly recognized exclusive representative on
a nationwide basis and that Local #15 is responsible for servicing the
El Paso, Texas office of the Respondent. The record further discloses
that while there has been no official name change, the "Federal Plant
Quarantine Inspectors Association" has been operating or doing business
under the name of "The National Association of Agriculture Employees."
In fact the most recent agreement between the parties lists the District
Director, El Paso, Texas, and National Association of Agriculture
Employees, Branch #15 as signatories.
(2) 6 a.m. to 2:30 p.m., 8 a.m. to 4:30 p.m., 8:30 a.m. to 5 p.m.,
9:30 a.m. to 6 p.m., 11:30 a.m. to 8 p.m., 1:30 p.m. to 10 p.m., 3:30
p.m. to midnight, 2 p.m. to 10 p.m., and 6 a.m.
(3) 6 a.m. to noon, 8 a.m. to 2 p.m., 10 a.m. to 4 p.m., noon to 6
p.m., 2 p.m. to 8 p.m., 4 p.m. to 10 p.m., and 6 p.m. to midnight.
(4) Ms. Jenkin acknowledges in her testimony that she was not aware
of the discussions that occurred with the respective supervisors of the
above named employees prior to allowing the employees to reschedule
their shifts and/or take annual leave. With respect to the incident
involving Ms. Jenkin, the record indicates that October 10, 1982 was a
Sunday, an overtime day, for which an employee could not be charged AWOL
for not working as scheduled.
(6) Mr. Miller, Mr. Eads, Mr. Bebon and Mr. Medrano. Inasmuch as Ms.
Jenkin and Mr. Venezia confused their respective shifts on Sundays, an
overtime day when there could be no AWOL penalty, I find the fact that
they were allowed to readjust their shifts to be of no probative value.