DEPARTMENT OF DEFENSE UNITED STATES AIR FORCE 325TH FIGHTER WING TYNDALL AFB, FLORIDA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1113, AFL-CIO
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
Office of Administrative Law Judges
WASHINGTON, D.C. 20424-0001
MEMORANDUM DATE: September 1, 2006
TO: The Federal Labor Relations Authority
FROM: PAUL B. LANG
Administrative Law Judge
SUBJECT: DEPARTMENT OF DEFENSE
UNITED STATES AIR FORCE
325TH FIGHTER WING
TYNDALL AFB, FLORIDA
and Case No. AT-CA-05-0293
AMERICAN FEDERATION OF
LOCAL 1113, AFL-CIO
Pursuant to Section 2423.34(b) of the Rules and Regulations 5 C.F.R. §2423.34(b), I am hereby transferring the above case to the Authority. Enclosed are copies of my Decision, the service sheet, and the transmittal form sent to the parties. Also enclosed are the transcript, exhibits, and any briefs filed by the parties.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
Office of Administrative Law Judges
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF DEFENSE
UNITED STATES AIR FORCE
325TH FIGHTER WING
TYNDALL AFB, FLORIDA
AMERICAN FEDERATION OF
LOCAL 1113, AFL-CIO
Case No. AT-CA-05-0293
NOTICE OF TRANSMITTAL OF DECISION
The above-entitled case having been heard before the undersigned Administrative Law Judge pursuant to the Statute and the Rules and Regulations of the Authority, the under-signed herein serves his Decision, a copy of which is attached hereto, on all parties to the proceeding on this date and this case is hereby transferred to the Federal Labor Relations Authority pursuant to 5 C.F.R. §2423.34(b).
PLEASE BE ADVISED that the filing of exceptions to the attached Decision is governed by 5 C.F.R. §§2423.40-2423.41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and 2429.27.
Any such exceptions must be filed on or before
OCTOBER 2, 2006, and addressed to:
Office of Case Control
Federal Labor Relations Authority
1400 K Street, NW, 2nd Floor
Washington, DC 20005
PAUL B. LANG
Administrative Law Judge
Dated: September 1, 2006
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
Office of Administrative Law Judges
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF DEFENSE
UNITED STATES AIR FORCE
325TH FIGHTER WING
TYNDALL AFB, FLORIDA
AMERICAN FEDERATION OF
LOCAL 1113, AFL-CIO
Case No. AT-CA-05-0293
Ruth Pippin Dow, Esquire
For the General Counsel
Major Robert M. Gerleman
Major Lawrence Lynch
For the Respondent
For the Charging Party
Before: PAUL B. LANG
Administrative Law Judge
Statement of the Case
On May 25, 2005,1256409220 the American Federation of Government Employees (AFGE), Local 1113, AFL-CIO (Union) filed an unfair labor practice charge against the Department of Defense, United States Air Force, 325th Fighter Wing, Tyndall Air Force Base, Florida (Respondent); an amended charge was filed on October 31 (GC Exs. 1(a) and (b)). On December 28 the Regional Director of the Atlanta Region of the Federal Labor Relations Authority (Authority) issued a Complaint and Notice of Hearing in which it was alleged that, on January 21, the Respondent committed an unfair labor practice in violation of §7116(a)(1) of the Federal Service Labor-Management Relations Statute (Statute) by virtue of the actions of Kimberly D. Zakar, a management representative of the Respondent, who addressed Andrew Colvin, the President of the Union, and Kathryn Blanchard (also known as Becky Blanchard), a member of the bargaining unit represented by the Union, in a loud and threatening manner because they were engaged in activities protected under the Statute. It was also alleged that the Respondent violated §7116(a)(1) of the Statute1496626743 when Zakar initiated a second confrontation with Colvin during which she addressed him inappropriately while he was talking to Wanda Kirkpatrick, another member of the bargaining unit. It was further alleged that, on January 24, the Respondent committed an unfair labor practice in violation of §7116(a)(1) and (8) by holding a formal discussion with Blanchard without giving the Union notice and the opportunity to attend; the aforesaid action by the Respondent was also alleged to be in violation of §7114(a)(2)(A). It was also alleged that, on January 24, the Respondent committed an unfair labor practice in violation of §7116(a)(1) and (5) by changing Blanchard's work schedule without giving prior notice to the Union and by not affording the Union the opportunity to bargain to the extent required by the Statute. Finally, it is alleged that all of the aforesaid actions against Blanchard, along with the fact that she was placed on administrative leave on January 24 and received a notice of proposed suspension on February 11 and a notice of suspension on March 7, were taken by the Respondent because of her protected activity, thus constituting an unfair labor practice in violation of §7116(a)(1) and (2) (GC Ex. 1(c)). The Respondent filed a timely Answer in which it denied the alleged violations
(GC Ex. 1(g)).
A hearing was held in Panama City, Florida on May 25 and 26, 2006. The parties were present with counsel and were afforded the opportunity to present evidence and to cross-examine witnesses. This Decision is based upon consideration of all of the evidence, including the demeanor of witnesses, and of the post-hearing briefs submitted by each of the parties.
Findings of Fact
The Respondent is an agency within the meaning of §7103(a)(3). The Union is a labor organization as defined in §7103(a)(4) and is the exclusive representative of a unit of the Respondent's employees which is appropriate for collective bargaining. Blanchard is an employee as defined in §7103(a)(2) and, at all times pertinent to this case, was a member of the bargaining unit represented by the Union (GC Ex. 1(c) and 1(g)). Her job classification was Military Pay Clerk; she was assigned to the Customer Support Section of the FMF Flight, 325th Comptroller Squadron (Tr. 59).
The Collective Bargaining Agreement
At all times pertinent to this case a collective bargaining agreement (CBA) existed between the Union and Tyndall Air Force Base (Tr. 13; Resp. Ex. 9). Article 5, entitled "UNION RIGHTS AND REPRESENTATION" states, in pertinent part:
Section 6. AUTHORIZED OFFICIAL TIME
. . . If the representational matter involves contact with another employee(s)(in the investigation of grievances), the union official must first obtain permission from the employee's immediate supervisor for release. . . . . Union officials will report to the immediate supervisor and obtain their permission prior to entering the work area. The immediate supervisor will be informed when the union official returns to the duty section.
Article 8, entitled "HOURS OF WORK AND TOURS OF DUTY" states, in pertinent part:
Section 6. CHANGE IN SHIFT HOURS: Shift hours may be changed by the supervisor because of mission requirements or to permit an employee to participate in grievances, appeals, official hearings, investigations, and official training.
Blanchard's Past Problems
Blanchard's work history was somewhat troubled. She testified that, on December 8, 2004, she was held up in traffic on her way to work and telephoned Sergeant Winslow, who has then her supervisor, to inform her that she would be late (it turned out that she was delayed for about 5 minutes). Blanchard told Winslow that she would take leave to cover her tardiness. Later that day Winslow sent Blanchard an e-mail message stating that she would not have to take leave because she had not been late for some time. Winslow also informed Blanchard that there would be administrative action if another such incident occurred (Tr. 61, 62).
Later that day Winslow came into Blanchard's cubicle and, according to Blanchard, "demanded" a copy of an e-mail message and remained in the cubicle while looking over Blanchard's shoulder and stating that she needed the e-mail message right away. Blanchard further testified that the incident left her trembling, so she called the Family Practice line and heard a recording that advised her to call 911 if she felt that she was having a life-threatening emergency. She did so and the security police and the emergency medical technicians responded. Her blood pressure was elevated and a medical technician gave her oxygen and made a hospital appointment for her. Blanchard later went to the hospital where the doctor found that her blood pressure had gone down. He knew that she was having "some anxiety" at work and gave her extra medication to go with the anti-depressants that she was already taking
On January 5 Blanchard was at her desk when she was approached by two security police who ordered her to accompany them. She was taken to the office of Lieutenant Gregory who, along with Lieutenant Smith, was the Flight Chief. Blanchard was then asked if she had a lawyer; she stated that she did not and was allowed to call Colvin. Colvin was unable to come there at that time, so they made an appointment to come to the security office on the afternoon of the next day (Tr. 65, 66).
The next day Colvin and Blanchard went to the security office where Blanchard's statement was taken (GC Ex. 3) in connection with an investigation of the alleged theft of a record in which her training time was recorded.1865130451 Blanchard has no knowledge of the results of the investigation, but she was never charged or disciplined with regard to the alleged theft.955259401 However, she testified that she was criticized for not completing her work on the day of her interrogation at the security office (Tr. 65-69).734982787
Blanchard also testified that she had previously spoken to the Inspector General (IG) to complain about being harassed and followed around. On January 6 Blanchard sent an e-mail message to the IG informing him of the incident involving the training record (Tr. 70). On the same date Colonel Armand Grassi, the IG, sent Blanchard an e-mail message (GC Ex. 4) indicating that her complaint should be directed to the appropriate Civilian Personnel Office and attaching a copy of the form to be used for filing a complaint of reprisal with the IG's office. (It is unclear whether she ever filed a complaint with the IG.) Colonel Grassi also offered to assist Blanchard in any way that he could.
Blanchard stated that she informally complained to Zakar because Winslow kept writing her up for behavior. Blanchard also stated that she was intimidated by Zakar because Zakar attempted to counsel her about her behavior in the presence of another employee whom Zakar identified as a trainee (Tr. 72, 73). Graber testified that he replaced Winslow as Blanchard's immediate supervisor in January because of friction between Blanchard and Winslow and that he so informed Blanchard when the change occurred (Tr. 170-172, 189, 190). However, in describing an incident on January 24, Blanchard testified that Graber was not her supervisor (Tr. 82).
The Incident in Blanchard's Cubicle
Some time around mid-day on January 21 Colvin entered the work area of the 325th Comptroller Squadron to speak to Blanchard. Colvin did not first seek permission from Graber, but proceeded past Graber's cubicle and directly to Blanchard's cubicle.892934601 Both Graber2002634438 and Technical Sergeant Abel Luna were in Graber's cubicle572416589 and saw Colvin go to Blanchard's cubicle1060477561 (Tr. 26, 27, 151, 152, 176).1542343942 Because Graber was under the impression that Colvin was acting improperly, he went to Zakar's office to seek clarification (Tr. 174-178). Zakar was a Human Resources Specialist who was responsible for labor and employee relations for Respondent's civilian employees. Among her duties was the administration of the CBA (Tr. 202, 203).
Zakar confirmed Graber's impression that Colvin was not following the procedure which was laid out in the CBA. She thereupon took a copy of the CBA and proceeded to Blanchard's cubicle along with Graber. Zakar told Colvin that he was not following the contract. There is some divergence in testimony as to how Zakar conducted herself in dealing with Colvin. Colvin and Blanchard testified that Zakar was yelling at Colvin, waving the CBA and acting as if she were "out of control" (Tr. 30, 31, 72). Blanchard testified that she asked Zakar to leave because she was upsetting her by standing about 3 feet from her chair (Tr. 72).
Zakar corroborated the testimony of Colvin and Blanchard with regard to the gist of the conversation, but denied that she had raised her voice or was otherwise out of control. Zakar further testified that Blanchard stood up and started yelling when she entered her cubicle and that Colvin told her to calm down.206181293 According to Zakar she did not speak to Blanchard other than to offer to read her the pertinent portion of the CBA (Tr. 203-207). Graber testified that Zakar raised her voice after Blanchard's outburst; he made the somewhat ambiguous statement that, "I don't think that anybody was yelling at anybody but they got loud" (Tr. 179). Luna, who remained in Graber's cubicle, could hear Zakar's voice over the partition and testified that her voice was somewhat louder than normal (Tr. 156). Lieutenant Gary Smith was the commander of the Financial Services Flight to which Blanchard, Luna and Graber were assigned. On January 21 Smith was in the area looking for Sgt. McCloud, who was one of his noncommissioned officers, with whom he wanted to discuss something when he heard a loud voice which he recognized to be Colvin's.474018388 He proceeded to Blanchard's cubicle to caution Colvin against disrupting customers and others assigned to the area, but by the time he got there the incident was about over and the participants were on their way out.279909548 Blanchard later approached him and complained about being harassed, but did not indicate who was harassing her (Tr. 160-162).
It is undisputed that Colvin acknowledged to Zakar that he should have consulted Graber prior to speaking with Blanchard (Tr. 27, 30). Furthermore, Colvin and Graber testified that Colvin acted to calm Blanchard's reaction to Zakar's appearance in her cubicle (Tr. 29, 179). Although it is unclear how long the confrontation between Zakar, Blanchard and Colvin lasted, it apparently was of relatively short duration. Blanchard first testified that the incident lasted about 30 or 40 minutes; she then said that it wasn't very long and could have been about 30 minutes or less (Tr. 75). Colvin testified that he was in Blanchard's cubicle for a very short time before Zakar's arrival (Tr. 27). He also stated that his conversation with Zakar and Graber lasted about 5 minutes (Tr. 29). Although Luna left Graber's cubicle before Colvin left the area, he (Luna) later saw the participants disperse and estimated that their conversation went on for no more than 5 to 10 minutes (Tr. 157).
Following the incident in her cubicle, Blanchard called the IG and was told that he could not help her but that she could call the security office. Blanchard did so and made a written statement in which she briefly described the incident, indicating that Zakar had addressed Colvin in a "threatening tone" (Tr. 79, 80; GC Ex. 5)1337117634. Colvin submitted a statement (GC Ex. 6) in which he indicated that Zakar explained that he needed to follow the CBA prior to speaking to employees. Colvin made no mention of Zakar's demeanor or of Blanchard's reaction to her arrival. In Graber's statement (Resp. Ex. 1) he made no mention of Zakar's demeanor, but stated that Blanchard became "visibly upset" when Zakar reminded Colvin about the requirement of making an appointment before visiting employees. He also stated that Blanchard interrupted the conversation several times and that Colvin told her to be quiet.
Luna's statement (Resp. Ex. 2) made no mention of outbursts from anyone in Blanchard's cubicle. In Smith's statement (Resp. Ex. 3) he indicated that he went to Blanchard's cubicle because Colvin's voice was so loud that it was disturbing him, his customers and his "troops". Smith further stated that he did not see either Zakar or Graber make any "oral or physical contact" with Blanchard. After the incident, Blanchard told him about being harassed by "them". When Smith asked Blanchard who she meant she did not identify anyone but said that "she" was following her.
In Zakar's statement (Resp. Ex. 4) she indicated that, when she arrived at Blanchard's cubicle, she saw Blanchard and Colvin looking at the wall calendar and talking.1440898462 Zakar also stated that, during her conversation with Colvin, Blanchard stood up and said, "she is the problem". At that point Colvin told her to, "sit down and shut up".
My review of the evidence leads to the conclusion that, while both Colvin and Zakar were speaking in voices which were louder than normal, the incident did not degenerate into a shouting match, nor could either Colvin's or Zakar's tone have been fairly characterized as yelling. Zakar's manner appears to have been somewhat abrupt and might have been an over-reaction to Colvin's appearance in the work area. Nevertheless, Zakar's actions apparently were prompted by Graber's legitimate concern over a breach of the contractual procedure for visits by Union representatives as well as by Blanchard's emotional reaction to Graber's and her appearance. While Zakar might have acted more diplomatically, the credible evidence does not support the allegation that she was out of control. The evidence also leads me to the conclusion that Blanchard's distress, while genuine, was not caused by inappropriate conduct by Zakar, but by Blanchard's perception that Zakar and others were out to get her.
The Incident at the Elevator
Colvin testified that, after the confrontation in Blanchard's cubicle, he proceeded to the elevator. After he had pressed the call button he saw Wanda Kirkpatrick, a former coworker and member of the bargaining unit, come out of the ladies' room. According to Colvin, he had tried to assist Kirkpatrick with regard to a reduction in force which had caused her grade to be reduced from GS-9 to GS-5. Kirkpatrick called Colvin aside to question him when Zakar and Graber came out of the Manpower Office which was across the foyer. When Zakar saw Colvin, she "politely turned", approached him and asked why he was in the building. Colvin told Zakar that she did not have the authority to order him out of the building. Zakar then asked Kirkpatrick why she was not behind her desk. At that point, Colvin got into the elevator and left the building (Tr. 32, 33). Colvin included a generally consistent description of this incident in his written statement to the security police regarding the incident in Blanchard's cubicle (GC Ex. 6).
Kirkpatrick testified that she was on her way back to her office from the ladies' room when she saw Colvin. They began talking when someone, whom she later learned was Zakar, came "rushing out of finance". Zakar asked Kirkpatrick what she was doing out of her office and then told Colvin that he was not allowed in the building other than on official business. According to Kirkpatrick, Zakar's facial expression suggested that she was very angry and she was rushing toward her and Colvin as if she was "on the attack". Kirkpatrick returned to her office without speaking to Zakar (Tr. 141, 142).
Graber testified that he saw Zakar approach Colvin as he was standing by the elevator with a civilian that Graber did not recognize. Zakar spoke to Colvin about conducting business during duty hours. According to Graber, both Zakar and Colvin were speaking somewhat loudly. The incident lasted only a few minutes; Colvin told Graber that he had to do an 1168, which is a witness statement798462941 (Tr. 192, 193). Graber included the following description of this incident in his written statement (Resp. Ex. 1):
Mr Colvin was in the second floor atrium talking to a civilian I don't know. Ms Zakar reminded Mr. Colvin about conducting union business without an approved appointment. Mr. Colvin got defensive and told me I was a "witness", that
Ms Zakar was "harassing" him and he would take care of her through the General. He also told me to write an MFR [presumably a witness statement]. Ms Colvin [sic] told him he could not order management to do anything.
Zakar testified that, after the incident in Blanchard's cubicle, she went to Graber's cubicle to discuss some issues. She then left the Comptroller Squadron area and proceeded to the second floor hallway where she saw Colvin speaking to Kirkpatrick, whom she knew to be a bargaining unit employee with pending issues. According to Zakar, she asked Kirkpatrick if she was on a break or lunch period; when Kirkpatrick said that she was not, Zakar asked Colvin to follow the provisions of the CBA and make arrangements with management to speak with employees during duty hours. She also told Colvin that he should depart the work center (presumably the building) until he had made the appropriate arrangements. Colvin then told Zakar that he was on his way downstairs to see the General at which point Zakar told Colvin to do whatever he felt was necessary. Zakar assumed that Colvin was referring to the Wing Commander whose office was in the building. Zakar further testified that Colvin was entitled to be in the building so long as he made the appropriate arrangements to talk to employees. Zakar denied that she rushed out to the elevator area because, having recently recovered from a heart attack, she was incapable of doing so (Tr. 210-212).
As with the incident in Blanchard's cubicle, the evidence as to the incident at the elevator is unclear. It is likely that Zakar was annoyed because Colvin was again conferring with a bargaining unit employee without having made an appointment with her supervisor. It is also likely that both Zakar and Colvin raised their voices. However, I credit Colvin's written statement, which was made shortly after the incident, that Zakar was polite. It is also clear that Colvin was aware that his conversation with Kirkpatrick, which was more than a casual exchange of greetings, was in violation of the contract since she was not on an authorized break and he had not made the necessary arrangements with her supervisor.
Blanchard's Meeting with Graber
Shortly after Blanchard arrived at work on January 24 Graber came to her cubicle and told her to come with him. Blanchard asked if she could call her Union representative at which time Graber told her that she did not need the representative since it was not a disciplinary meeting. She accompanied Graber to the conference room which was across the hall from her cubicle (see Jt. Ex. 1).26313720 Another person was in the conference room whom Blanchard identified as Deborah Laskiewicz, the MSG Commander.616648618 Laskiewicz said nothing during the meeting (Tr. 87). Graber then handed Blanchard a memorandum (GC Ex. 7) which was addressed to her and signed by him as Superintendent, Financial Management. The memorandum states, in pertinent part:
SUBJECT: Administrative Leave
1. Effective 1200 hours, 24 January 2005, you are being placed in an administrative leave status (i.e., paid, non-duty status) until further notice. . . . . The reason I am taking this action is because your recent disruptive behavior indicates you may be experiencing difficulty handling workplace situations. I realize you have minimal annual and sick leave balances; therefore, it is my sincere hope that by allowing you some paid time off you might better cope with your difficulties when you return to duty. Rest and relaxation should help you in this endeavor.
2. There are numerous agencies, both on the installation and off the installation that might be of assistance to you. You may seek the assistance of the Life Skills Center or the Chaplain. [The telephone numbers of each of those offices is indicated as well as a statement that the Life Skills Center is ready to assist her if she desires to contact an off-base agency.]
3. Please know that management is willing to make reasonable accommodation for any medically related issue you may have. Accordingly, if you choose to seek a medical evaluation, request you provide the following information to me as soon as possible, but no later than close of business 11 February 2005:
[Listing of required information including diagnosis, treatment, estimated date of full recovery and impact on life activities.]
4. Attached is a copy of your core personnel document for any physician to review at your discretion. [Instructions regarding submission of medical information.] I would appreciate your prompt attention to this matter so that I can determine whether or not any accommodations are required for you to perform the essential functions of your job.
5. It is my sincere hope that we can assist you in adjusting to the demands of your duties and responsibilities, and your work environment. I look forward to your return as a productive employee of the 325th Comptroller Squadron.
AFGE Local 1113 is listed as one of the copy addressees. Colvin acknowledged that administrative leave is not discipline (Tr. 48).
Graber handed Blanchard a second memorandum (Resp.
Ex. 10) which was addressed to her from him and which reads as follows:
SUBJECT: Change in Work Schedule
1. In accordance with Article 8, Section 1.b.(3), of the current Memorandum of Agreement between Tyndall AFB and American Federation of Government Employees (AFGE) Local 1113, I am notifying you that effective 6 February 2005 your work schedule will change. Your new schedule will be Monday through Friday, 0730 to 1630 each day, with a one-hour lunch period from 1130-1230 each day. This change is necessary because your presence is required at squadron training each Tuesday morning beginning at 0730.
2. You have been tardy on numerous occasions while working for TSgt Winslow. Tardiness will no longer be tolerated and may result in disciplinary action. I expect you to be at work (i.e., at your desk and ready to begin work) each morning at 0730, leave promptly for lunch at 1130 each day, and return promptly from lunch at 1230 each day. You will be required to depart the workcenter promptly at 1630 each day. Credit hours will not be approved unless you have discussed the reasons for such with me, and obtained my approval, in advance, of any credit hours being worked.
3. If you have any questions or concerns regarding this schedule change please feel free to discuss them with me.
A copy is addressed to AFGE Local 1113. (Tr. 80-83)
Blanchard testified that she was confused by the first paragraph of the first memorandum because it mentioned administrative leave rather than a disciplinary action. She had been placed on administrative leave some years before for medical reasons. She was also upset about the fact that she was to be on leave until further notice as well as the reference to disruptive behavior. Blanchard asked Graber if the memorandum was the result of her having called the security police on January 21 and he nodded in the affirmative (Tr. 83, 84).
Blanchard stated that, at the time she learned of the change in her schedule, she was working from 8:00 to 4:30 with a 30 minute lunch break. She was distressed over the change because it would interfere with her ability to get her daughters to school (Tr. 85). She has two daughters with special needs who attend different schools; she cannot drop them off prior to 7:30 because there is no supervision before that time (Tr. 93, 94). Blanchard was unclear as to when she notified any supervisor of this problem. She did state that Winslow had been aware of her situation, but gave no details as to whether Winslow or anyone else knew of her daughters' school schedule. Blanchard testified that she did not mention this problem during the meeting on January 24 because she was afraid. She did not remember what she said other than that "this is not good" (Tr. 94, 95, 97). Graber told her that the change in schedule was necessary for training. Blanchard had made several requests for training but the requests had not been granted and she was never included in the scheduled training (Tr. 105).
Graber testified that he placed Blanchard on administrative leave because she was stressed and stated that she needed to consult a doctor because of stomach problems and headaches. He thought that a period of leave might allow her to "relax and get back in the game"
(Tr. 182). Graber was of the opinion that Blanchard could not handle work-related stress very well because of a number of incidents. For example, on one occasion Blanchard had left work early; when Winslow mentioned it, Blanchard said that Graber had given her permission to leave early in spite of the fact that he had not done so. When Graber confronted Blanchard her face got red and she kept pounding her fist into her hand while saying that "they" were always after her (Tr. 182, 183). Graber also referred to the incident of January 21 after which Blanchard called 911. This was the second time that she had done so (Tr. 183, 184).
Graber further testified that he had Blanchard come to the conference room so that they could have privacy. When he first approached Blanchard she picked up the telephone and said that she had to call Colvin if this was a disciplinary matter. Graber stated that he told Blanchard that it was not a disciplinary matter, but that she could call Colvin if she wanted to. According to Graber, Blanchard did not call Colvin and followed him to the conference room which was about 20 yards from her cubicle (Tr. 186, 187). Graber wanted a female witness present so as to provide Blanchard with a level of comfort. He did not want to bring Winslow in because of past "head butting" and therefore asked Laskiewicz to attend because her office was just around the corner and she was a civilian. Laskiewicz was not in the room in her official capacity, but only as a witness (Tr. 185).
Graber described the conference as lasting between 10 and 15 minutes. Blanchard had very little to say. At that time Graber was not aware that Blanchard had children with special needs or that the impending change in her work schedule would create difficulties in getting them to school. Graber only learned of those matters about three weeks before the hearing. He took no action because he was no longer Blanchard's supervisor. However, he was under the impression that Blanchard had been allowed to revert to her previous schedule (Tr. 187-189).
Laskiewicz's testimony differs somewhat from Graber's. According to Laskiewicz she was asked by Zakar, rather than by Graber, to attend the meeting as an independent observer. Zakar had informed Laskiewicz that the purpose of the meeting was to deliver a letter to Blanchard placing her on administrative leave, but she was not shown the letter and did not know its exact contents. She understood her function to be limited to observing the delivery of the letter to Blanchard (Tr. 197-199). Laskiewicz testified that she was not sure whether she or Graber arrived first, but she believed that she was first. Graber then arrived alone and, while they waited for Blanchard, she asked Graber if a Union representative was going to be present; Graber answered that Colvin would be attending. Laskiewicz speculated that Colvin called to say he could not make the meeting, but she has no direct knowledge that he made such a call (Tr. 199, 200). Laskiewicz stated that she had no clear memory of what transpired at the meeting, but she remembered that Graber presented the letter867936826 to Blanchard and that Blanchard seemed reluctant to read it. Laskiewicz encouraged Blanchard to read the letter in case she had questions. According to Laskiewicz, the meeting lasted less than five minutes (Tr. 200, 201).
Colvin's testimony is directly contradictory to that of both Blanchard and Graber. According to Colvin, Blanchard called him before the meeting and told him that it was going to occur. Colvin stated that he told Blanchard to ask her supervisor if they were going to discuss disciplinary action. Blanchard called back and said that she was told that there would be no disciplinary action; Colvin thereupon told Blanchard that he did not need to be present (Tr. 35). Colvin also testified that Blanchard later called him (the time and date is unclear) and told him that she had been placed on administrative leave and that her schedule had been changed. Blanchard had not received prior notice of the change in schedule (Tr. 35-37).
Blanchard testified that, at the conclusion of the meeting, Graber told her to log off of her computer, get her passwords and go home. He came to her cubicle and looked over her shoulder while she did so. Blanchard asked Graber how she would know when to come back and he said that he would call her. Blanchard is unsure when she called Graber to ask when she could return, but believes that she first called the next Monday and then periodically thereafter. Graber finally told her that she could return after she had been gone for two weeks. Blanchard came back to work on a Monday (which would have been February 7) (Tr. 88-91). There is no evidence that Blanchard ever provided the Respondent with medical information as described in the memorandum by which she was placed on administrative leave.
On February 11 Graber ordered Blanchard to attend a meeting at which Linda Evans, the Civilian Personnel Chief, and Colvin were also present (Tr. 91-93). Graber then presented Blanchard with a memorandum from him (Resp.
Ex. 5) informing her that he was proposing to suspend her from duty and pay for 12 calendar days. The stated reasons were: tardiness, disruptive behavior (five incidents were cited), failure to complete assigned duties in a timely manner (two incidents were cited) and failure to follow instructions. The letter further informed Blanchard that she had ten working days to respond and that her response should be submitted to Captain Michael Prater, Acting Commander of the 325th Comptroller Squadron. The letter also provided the following information:
1. She could submit medical information, to be provided at her own expense, which she claims to have contributed to her alleged misconduct.
2. She could select a representative to assist her in her response. The representative was to be designated in writing.
3. She could review the material upon which Graber had relied in proposing the suspension; copies of that material were attached to the memorandum (there are 13 attachments).
4. She could submit a written request to Graber for additional time to prepare her response.
5. Full consideration would be given to her response, if any. She would receive a written notice of the final decision; the suspension, if carried out, would not take place earlier than 15 days from her receipt of the memorandum.
6. She would be placed on paid administrative leave for the duration of the advance notice period. If the suspension were to go into effect, she would then go to a non-pay status.
7. She could review pertinent regulations or obtain information as to her procedural rights by contacting Zakar.
It is unclear when Colvin received a copy of the memorandum, but AFGE Local 1113 was among the information addressees.
Blanchard submitted a response to the notice of proposed suspension by a memorandum to Prater dated
March 1 (Resp. Ex. 6) and signed by her and Colvin.208336539 The memorandum is 8 pages in length and addresses most or all of the incidents described in the notice of suspension.
On March 7 Blanchard and Colvin were called to a meeting in Prater's office which was also attended by Zakar (Tr. 104, 105). Blanchard was presented with a memorandum from Prater dated March 7411910272 (Resp. Ex. 7) in which she was informed that Prater had decided to suspend her for seven calendar days. The memorandum also informed Blanchard of her rights under the contractual grievance procedure as well as her right to have Union representation. AFGE Local 1113 is listed as an information addressee. Blanchard signed the memorandum and checked off a blank indicating that she wanted the Union to receive a copy.
Positions of the Parties
The General Counsel
The General Counsel maintains that the Respondent violated §7116(a)(1) by virtue of Zakar's conduct during the two incidents on January 21 which, in both instances, would tend to have a coercive or intimidating effect on a reasonable employee. With regard to the incident in Blanchard's cubicle, Zakar should merely have advised Graber rather than rushing to the cubicle and yelling at both Blanchard and Colvin while waving the contract at them. Zakar's actions were indicative of her intent to provoke a confrontation. Colvin's purpose in entering the work area was to confer with Graber in order to schedule an appointment to speak to Blanchard so as not to disrupt the work schedule. The incident would have been avoided if Graber had simply asked Colvin what he wanted.
Zakar's conduct at the elevator, like that in Blanchard's cubicle, demonstrated a disrespect for Colvin's position in the presence of a bargaining unit employee. Such conduct would have the natural effect of discouraging a reasonable employee from consulting with a Union official, which is a protected activity under the Statute.
The General Counsel further maintains that she has presented a prima facie case of discrimination under §7116(a)(1) and (2) with regard to the incidents of
January 21 and with regard to all of the Respondent's other actions against Blanchard. Blanchard's consultation with the Union, through Colvin, was protected activity as were her calls to the security police. The Respondent's stated reasons for placing Blanchard on administrative leave, changing her work schedule, giving her notice of suspension and, finally, suspending her were pretexts for retaliation because of her protected activity on January 21. According to the General Counsel, the Respondent has failed to rebut her prima facie case and has failed to show that its actions were justified and that it would have taken those actions regardless of Blanchard's protected activity.
The General Counsel further maintains that Graber's meeting with Blanchard on January 24 was a formal discussion and that the Respondent's failure to provide the Union with notice and an opportunity to attend was a violation of §7116(a)(1) and (8). According to the General Counsel, the meeting of January 24 had all of the indicia of a formal meeting. The Respondent, through Graber, acknowledged to Blanchard that her placement on administrative leave was prompted, at least in part, by her reaction to Zakar on January 21. Blanchard's reaction was a form of protest which meets the definition of a "grievance" under §7114(a)(2)(A).
The General Counsel also argues that the Respondent violated §7116(a)(1) and (5) by failing to provide the Union with advance notice of the change in Blanchard's schedule and an opportunity to bargain to the extent allowed by the Statute. While acknowledging that the change in schedule was a management right under §7106(b)(1), the General Counsel maintains that the change in Blanchard's schedule was more than de minimis and that, therefore, the Respondent was obligated to bargain over its impact and implementation.
The General Counsel maintains that the change in Blanchard's schedule was not covered by the language in the CBA which authorizes changes in work schedules so as to allow employees to participate in official training since Blanchard never received training after the change went into effect.
As a remedy the General Counsel proposes that, in addition to the customary posting, the record of Blanchard's suspension be expunged from her personnel file and that she be made whole for the loss of pay and leave which was imposed during the suspension.
The Respondent maintains that the General Counsel has failed to show a violation of §7116(a)(1) because there is no evidence that Zakar or any other representative of the Respondent took any action that could reasonably have been interpreted as coercive or intimidating. The credible testimony of witnesses to the incident in Blanchard's cubicle shows that, although Zakar might have raised her voice, she was not yelling. The loudest voices where those of Colvin and Blanchard, whom Colvin told to calm down. Colvin's testimony that Zakar was "screaming" and out of control was inconsistent with his own written statement which he made to the security police within a few hours after the incident occurred.
The Respondent also maintains that Zakar's conduct during the incident at the elevator could not reasonably have been interpreted as coercive or intimidating. The only evidence to the contrary is the testimony of Kirkpatrick which is at odds with that of Zakar, Graber and Colvin. Furthermore, Zakar testified that she was physically incapable of rushing toward Colvin and Kirkpatrick because she was in the process of recovering from a heart attack and was working half days against medical advice.
The Respondent maintains that the meeting of January 24 was not a formal discussion, nor was its purpose to discuss a grievance. The only management representative who participated was Graber, who was Blanchard's immediate superior. Laskiewicz was present as a witness and did not act in an official capacity. The meeting was held in a conference room in the immediate vicinity of Blanchard's cubicle for the sake of privacy. It was very short in duration and there was neither a formal agenda nor notes taken.
The Respondent argues that it was under no obligation to provide the Union with prior notice and the opportunity to bargain over the change in Blanchard's work schedule since the change was de minimis. Blanchard had complained to Graber that her poor performance was the result of inadequate training and had made several requests for training. The change in Blanchard's schedule was consistent with the fact that the office was closed for training from 7:30 to 8:30 on Tuesdays and Thursdays. Furthermore, such a change in schedule is specifically authorized by the CBA.
The Respondent also argues that there is no evidence that either Blanchard or the Union raised any objections to the change in schedule or informed any responsible representative of the Respondent that Blanchard's new schedule would interfere with her ability to take her daughters to school. Blanchard testified that she discussed the change of schedule with Colvin, yet the Union never requested bargaining.
Finally, the Respondent denies that it restrained or coerced any employee in violation of §7116(a)(1) and (2). In questioning Blanchard on January 5 about the alleged theft of a document the Respondent followed established procedure and Blanchard was neither accused of wrongdoing nor disciplined. Her interrogation was postponed to allow for Colvin's attendance and there was a change in investigators after Blanchard complained that the original investigator was Winslow's husband.
The Respondent maintains that the General Counsel did not offer evidence as to any impropriety in Blanchard's placement on administrative leave. Graber's testimony and his memorandum to Blanchard show that Blanchard was given two weeks off with pay in response to her complaints about stress and because of problems with her behavior.
The Respondent also maintains that the notice of proposed suspension was accompanied by extensive documentation of incidents which justified the proposal. Blanchard was represented by the Union which succeeded in having the suspension reduced from 12 to 7 working days. There was no evidence of discrimination or retaliation.
Discussion and Analysis
The Respondent's Alleged Acts of Interference, Restraint or Coercion
The Authority has adopted an objective standard in determining whether actions taken on behalf of an agency would have an intimidating or coercive effect on employees within the meaning of §7116(a)(1). Neither the employer's motive nor the reaction of individual employees are controlling. Rather, the crucial factor is whether a reasonable employee would be coerced or intimidated, U.S. Department of Agriculture, U.S. Forest Service, Frenchburg Job Corps, Mariba, Kentucky, 49 FLRA 1020, 1034 (1994) (Frenchburg).
In arguing that the Respondent, through Zakar, violated §7116(a)(1) the General Counsel has cited U.S. Penitentiary, Florence, Colorado, 52 FLRA 974 (1997), a case in which a management representative of the agency threatened to "write up" all bargaining unit supervisors if the union pursued an issue on behalf of one of them. Since there are no allegations of such overt threats in the instant case, a coercive or intimidating effect, if any, can only arise by inference from Zakar's and Graber's speech and demeanor. The General Counsel has not alleged that Graber said or did anything which could, in itself, have been construed as threatening; rather, the General Counsel has implied that, as a supervisor, Graber's presence reinforced the intimidating effect of Zakar's conduct.874745417 Therefore, it is Zakar's behavior on January 21 which is the key to my determination of whether a violation occurred.
As stated above, my review of the evidence leads me to the conclusion that Zakar's speech and demeanor at Blanchard's cubicle was somewhat abrupt. While Zakar might have spoken in a louder than normal voice, her tone was apparently a reaction to that of Colvin and Blanchard. It is undisputed that, by speaking with Blanchard while she was on duty without having made an appointment, Colvin violated the CBA and it is also undisputed that Zakar's remarks to Colvin and Blanchard were confined to that fact. Although the language of the CBA does not, in itself, absolve the Respondent of liability for a violation of §7116(a)(1), it is relevant to a determination of the overall effect of the incident in Blanchard's cubicle. Colvin, and possibly Blanchard, was aware of the applicable contract language. In that context, the appearance of Zakar and Graber was unlikely to have intimidated a reasonable employee who, as a member of the bargaining unit, was or should have been familiar with the provisions of the CBA. There is merit to the General Counsel's suggestion that Zakar should have limited her involvement to advising Graber as to the provisions of the CBA while allowing him, as Blanchard's supervisor, to handle the situation on his own. Yet, Zakar's actions, while perhaps imprudent, were not coercive or intimidating within the meaning of §7116(a)(1).
In reaching this conclusion, I have considered Blanchard's obvious distress because of Zakar's appearance in her cubicle. Blanchard had a history of sensitivity to what she characterized as surveillance by supervisors. She felt intimidated by Winslow, Zakar and Graber. She was prone to emotional and excessive reactions to questions or criticism. Her tendency to dial 911 and instigate investigations by the security police demonstrate a significant over-reaction to any challenge to her performance. Colvin himself had to calm her down after such an emotional reaction. The evidence indicates that Blanchard's distress, while genuine, was not that of a reasonable employee as is required by Frenchburg.
The General Counsel seems to imply that the incident at the elevator, especially when viewed in the context of the incident in Blanchard's cubicle which immediately preceded it, suggests a desire by Zakar to provoke a confrontation with Colvin. Yet, the undisputed evidence indicates that, in conferring with Kirkpatrick while she was on duty, Colvin was again violating the CBA, whether or not knowingly.481257630 The testimony of both Colvin and Kirkpatrick indicates that their conversation, like Colvin's conversation with Blanchard, while not of long duration, was more than a casual exchange of greetings and took place away from the immediate vicinity of the elevators. Therefore, Zakar could justifiably question whether Colvin was again violating the contract immediately after he had previously done so with Blanchard. Colvin indicated on his written statement that Zakar was polite. Although both Zakar and Colvin might have raised their voices and Zakar might have had an angry expression on her face, the evidence does not support the proposition that Colvin, or any other reasonable employee1194637586, would have felt coerced or intimidated. In view of Zakar's testimony as to her recent return to a part time work schedule after a major heart attack, I do not credit Kirkpatrick's assertion that Zakar came rushing toward her and Colvin.
In summary, the most that can be said about the actions of Respondent's representatives on January 21 is that they tended to discourage Colvin, Blanchard and Kirkpatrick from ignoring contractual requirements for conferences between Union representatives and employees during duty time. There is no evidence or allegation that the Respondent discouraged Union representatives or bargaining unit employees from conferring during break times or that the Respondent unreasonably failed to cooperate with the Union's efforts to make appointments.
The Nature of the Meeting of January 21
Each of the parties has cited the applicable legal standards for determining whether the meeting of January 21 was a formal discussion within the meaning of §7114(a)(2). That portion of the Statute provides, in pertinent part, that:
An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment
In numerous cases, such as Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 39 FLRA 999, 1012 (1991), the Authority has held that, in order for a formal discussion to occur, there must be (1) a discussion (2) which is formal (3) between one or more representatives of the agency and one or more bargaining unit employees or their representatives (4) concerning any grievance or personnel policy or practices or other general conditions of employment. Each of those criteria will be applied to the meeting on January 21.
The purpose of the meeting was to deliver two memoranda to Blanchard. Although she was invited to ask questions or make comments, the evidence indicates that she said little or nothing. However, in U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania, 38 FLRA 671, 677 (1990) the Authority held that the term "discussion" is to be interpreted broadly so as to apply to meetings at which no actual discussion or dialogue occurs. The meeting occurred at the behest of the Respondent and was not a casual conversation. Thus, it fell within the broad definition of a discussion.
The issue of formality is less clear. In U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois, 32 FLRA 465, 470 (1988) (DOL) the Authority examined the following factors in determining whether a meeting was formal:
(1) whether the meeting was held by a first-level supervisor, (2) whether any other management representative attended, (3) where the meeting took place, (4) how long it lasted, (5) whether the meeting was called with advance notice or spontaneously, (6) whether there was a formal agenda, (7) whether attendance was mandatory, and (8) whether there was a formal record or transcription of attendance and comments.
It is undisputed that the meeting was held by Graber who, in spite of Blanchard's purported uncertainty, was clearly her first-level supervisor. However, the meeting was also attended by Laskiewicz who was a member of management. Although Laskiewicz was only at the meeting as a witness, she was recognized by Blanchard as being more than a rank and file employee. The Respondent has cited no authority for the proposition that the significance of Laskiewicz's presence at the meeting was diminished by the fact that she was not an active participant or part of Blanchard's chain of command. Both Laskiewicz's presence and the fact that Graber wanted a witness support the contention that the meeting was formal.
The meeting took place in a conference room in which Blanchard acknowledged that she had often been present and where she and other employees sometimes ate their lunches. Accordingly, the location of the meeting does not suggest that it was formal. The duration of the meeting, no more than about fifteen minutes, neither adds nor detracts from the General Counsel's position.
Although a formal agenda was not published, there is no doubt that there were three specific purposes for the meeting. The first purpose was to present Blanchard with formal notice of her administrative leave and of the change to her work schedule. The second purpose was to afford Blanchard the opportunity to ask questions and make comments. The third purpose was for Graber to direct Blanchard to turn off her computer and to make other preparations for leaving the building without delay.
While there was no advance notice of the meeting, Graber's appearance at Blanchard's cubicle and his instruction to her that she follow him to the conference room was neither spontaneous nor informal. In spite of the fact that Blanchard did not challenge Graber's instruction or say that she didn't want to follow him, her attendance clearly was mandatory. Although a separate record or attendance sheet was not kept, the purpose of the meeting and Blanchard's attendance were recorded by the contents of the memoranda and by her signature which acknowledging receipt.
The Authority has made it clear that factors other than those cited above may be taken into account and that the totality of facts and circumstances are to be considered in determining whether a meeting was formal, DOL, 32 FLRA at 470. Upon consideration of all of the evidence I have concluded that the meeting of January 21, while not a classic example of a formal discussion, satisfied the criteria of DOL.
The Respondent does not deny that the meeting of
January 24 was attended by at least one representative of the agency, Graber, and one bargaining unit employee, Blanchard. Consequently, my analysis now turns to the purpose of the meeting. The General Counsel contends that the subject of the meeting was a grievance because one of the reasons for Blanchard's administrative leave was that she had called the security police on January 21 to complain of harassment by Zakar. This, according to the General Counsel, is sufficient to come within the definition of "grievance" as set forth in §7103(a)(9)(A).
The General Counsel is correct in asserting that both the Statute and Authority precedent support a broad definition of a "grievance". Section 7103(a)(9)(A) defines the term as encompassing any complaint by an employee concerning any matter relating to his or her employment. In United States Department of the Air Force, Luke Air Force Base, Arizona, 58 FLRA 528, 533 (2003) the Authority confirmed that the definition of a grievance is not limited by the language of a contractual grievance procedure. Nevertheless, the purpose of the meeting of January 21 was not to discuss a grievance, no matter how broadly defined. Graber called the meeting to deliver the memoranda to Blanchard and to discuss their contents if she so desired. The most that can be said about the purpose of the meeting is that it could have given rise to a future grievance. That fact is not sufficient to have triggered the Union's right to be present.954909010 It is of no consequence whether the decision to put Blanchard on administrative leave was caused, wholly or in part, by her outburst and subsequent call to the security police on January 21. The fact remains that those actions were not the subject of the meeting on January 24.
The Union's Right to Notice and the Opportunity to Bargain
The right of a union to receive notice and the opportunity to bargain is well established. Prior to implementing any change in conditions of employment an agency must provide the union with notice of the change and the opportunity to negotiate over those aspects of the change that are within the duty to bargain, U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA 704, 715 (1999). The agency remains under that obligation regardless of whether the proposed change is an exercise of management rights under §7106, United States Department of the Air Force, 913th Air Wing, Willow Grove Reserve Station, Willow Grove, Pennsylvania, 57 FLRA 852, 855 (2002). Exceptions to the duty to bargain include changes that are de minimis, Social Security Administration, Office of Hearings and Appeals, Charleston, South Carolina, 59 FLRA 646 (2004), and, in the case of mid-term bargaining, those that are covered by a CBA, U.S. Customs Service, Customs Management Center, Miami, Florida, 56 FLRA 809, 813 (2000).
The Respondent contends that the change in Blanchard's schedule was de minimis. It is not necessary to resolve that issue in view of other factors which establish that the Respondent did not deprive the Union of notice and the opportunity to bargain. The most obvious factor is that of notice. Graber's memorandum of January 24 (Resp. Ex. 10), with a copy to the Union, stated that the change in Blanchard's schedule would go into effect on February 6, thereby giving Blanchard and the Union approximately two weeks in which to request bargaining.654175422 There is no evidence as to when the Union received the memorandum, but the General Counsel has not denied that the memorandum was in fact received. In the absence of an allegation or evidence of undue delay in forwarding the memorandum to the Union, it is reasonable to assume that the memorandum was received by the Union no later than January 25. It is also likely that Blanchard informed Colvin of the impending change of schedule shortly after she received it and probably on the same day. Notice to the Union from Blanchard would not have absolved the Respondent of its own failure to provide notice; however, the evidence indicates that the Respondent did notify the Union in a timely manner. Regardless of how the Union first learned of the impending change in Blanchard's schedule, there is no evidence of a request from the Union that the Respondent either bargain over the change or delay its implementation until the completion of bargaining.
Even if the Respondent had not notified the Union, there is no credible evidence that the Respondent knew or should have known that Blanchard would be adversely affected by the change. In the first place, the change itself, whether or not de minimis, is not one that a typical employee would necessarily consider to be burdensome. According to Blanchard's testimony, at the time she received the memorandum her workday started at 8:00 a.m. with a 30 minute lunch break; her new schedule had a starting time of 7:30 a.m. with a 60 minute lunch break. Furthermore, the new schedule accommodated her request for training by allowing her to take advantage of unit training periods during which the office was closed to customers from 7:30 to 8:30 on Tuesdays and Thursdays.
Blanchard testified without challenge that she never received training after the change in her schedule and the General Counsel suggests that this takes the change in schedule outside the coverage of the CBA. That argument is not persuasive. Blanchard was on administrative leave until February 7 and again from February 11 to March 7 when her suspension occurred. She also testified that she mentioned the problem with her daughters during a meeting at which Colvin was present, which would have been either on
February 11 or March 7. Therefore, she worked on only two of the days when her office was closed from 7:30 to 8:30 and then went back on administrative leave. Graber's impression that Blanchard was eventually allowed to revert to her old schedule is corroborated by the fact that the General Counsel has not included the restoration of Blanchard's old schedule as a remedy in the proposed order which accompanies her post-hearing brief.
In summary, the evidence indicates that the Respondent gave the Union adequate notice of the change in Blanchard's schedule, that the Union did not make a request to bargain and that, in any event, the change in schedule was covered by the CBA.
The Nature of the Respondent's Actions
In order to meet her burden of proof that the Respondent has violated §7116(a)(1) and (2), the General Counsel must establish by a preponderance of the evidence that the employees, including Union representatives, against whom allegedly adverse action was taken were engaged in protected activity and that consideration of the activity was a motivating factor in the adverse action, Letterkenny Army Depot, 35 FLRA 113, 118 (1990) (Letterkenny). Once the General Counsel has presented a prima facie case, the burden shifts to the Respondent to show, again by a preponderance of the evidence, that there was a legitimate nondiscriminatory justification for the adverse action and that the action would have occurred in the absence of the protected activity, Department of the Air Force, Air Force Materiel Command Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 55 FLRA 1201, 1205 (2000) (Warner Robins).
Colvin's conversations with Blanchard and Kirkpatrick, and his effort to arrange for an appointment with Graber, clearly fell within the definition of "act[ing] for a labor organization as a representative" and, therefore, constituted protected activity within the meaning of §7102. So too were Blanchard's actions in speaking with Colvin in order to enforce what she considered to be her rights under the CBA, U.S. Department of Labor, Employment and Training Administration, San Francisco, California, 43 FLRA 1036, 1039 (1992). Because Blanchard's 911 calls were reactions to perceived harassment by representatives of the Respondent, they were "grievances" within the scope of §7103(a)(9)(A). However, the General Counsel has cited nothing in support of her contention that the calls were protected activity. The most that can be said is that the incidents which gave rise to Blanchard's calls might have given rise to contractual grievances. However, the security police are not charged with vindicating the rights of employees under the CBA or the Statute.
The General Counsel has cited the placement of Blanchard on administrative leave and the change in her schedule as adverse actions. Yet, as stated above, Graber's memorandum clearly explained that the purpose of the leave was to help Blanchard to cope with the workplace stress that had been amply demonstrated by various incidents, including her outburst on January 21. Blanchard was explicitly informed that the administrative leave was not discipline and she could not reasonably have construed as adverse action of any other kind since she acknowledged that she had previously been on administrative leave for medical reasons.
Blanchard was understandably upset over the impending change in her schedule, but the basis for her distress was unknown to the Respondent for more than two weeks after she received Graber's memorandum informing her and the Union of the change. The General Counsel has not shown that, in the absence of the special circumstances involving Blanchard's daughters, her change in schedule, which was authorized under the CBA, could be seen as adverse.
Graber's memorandum of February 11 (Resp. Ex. 5) which informed her of his intention of suspending her for 12 days, was adverse action. Furthermore, there can be no legitimate doubt that Prater's decision to suspend Blanchard for 7 days, as stated in his memorandum of March 7 (Resp. Ex. 7), was disciplinary. Accordingly, I find that the General Counsel has established a prima facie case of discrimination.
The Respondent's Affirmative Defenses
Graber's memorandum of February 11 includes a description of tardiness, five incidents of disruptive behavior, two incidents of failing to complete assignments in a timely manner and one incident of failure to follow instructions. Blanchard and Colvin attempted to justify her actions regarding each of the incidents in their response to the notice of proposed suspension (Resp. Ex. 6). However, the General Counsel has cited nothing to show that the stated grounds for the suspension were pretextual other than to emphasize the proximity in time between the events of January 21 and the memorandum of February 11. While such proximity may support an inference of improper motivation by an agency, it is not conclusive proof of unlawful conduct, Warner Robins, 55 FLRA at 1205.
The merits of the Respondent's decision to put Blanchard and the Union on notice of its intent to subject her to a disciplinary suspension and later to actually suspend her are not properly before me. The sole issue is whether those actions by the Respondent were discriminatory. I have considered the Respondent's stated rationale for the suspension only in the context of determining whether it is so frivolous and devoid of justification as to be considered pretextual. Whatever the merits of the Respondent's actions, it has not been alleged that the Respondent did not follow the proper procedure.678375509 The unrebutted evidence shows that Blanchard and the Union were provided with advance notice of the proposed suspension, a specific statement of the grounds for the suspension, along with documentary support, and a detailed explanation of her appeal rights. That evidence, as well as the testimony of Blanchard's disruptive behavior and her own demeanor as a witness, offset any inference of unlawful conduct arising out of the proximity in time between her protected activity and the actions of which the General Counsel complains. The totality of the evidence, when evaluated according to applicable law, supports the conclusion that the Respondent's actions were justified and would have been taken in the absence of Blanchard's protected activity.
For the foregoing reasons, I have concluded that the Respondent did not commit unfair labor practices by virtue of the actions of its representatives on the dates cited in the Complaint. Accordingly, I recommend that the Authority adopt the following Order:
It is hereby ordered that the Complaint be, and hereby
Issued, Washington, DC, September 1, 2006.
Paul B. Lang
Administrative Law Judge
CERTIFICATE OF SERVICE
I hereby certify that copies of this DECISION, issued
by PAUL B. LANG, Administrative Law Judge, in Case No.
AT-CA-05-0293 were sent to the following parties:
CERTIFIED MAIL AND RETURN RECEIPT CERTIFIED NOS:
Ruth Pippin Dow 7004 2510 0004 2351 2037
Counsel for the General Counsel
Federal Labor Relations Authority
285 Peachtree Center Avenue, Suite 701
Atlanta, Georgia 30303
Major Robert M. Gerleman 7004 2510 0004 2351 2044
Major Lawrence Lynch
1501 Wilson Boulevard, Seventh Floor
Arlington, VA 22209
Andrew Colvin 7004 2510 0004 2351 2051
President, AFGE Local 1113
P.O. Box 10276
Tyndall AFB, Florida 32403
80 F Street, NW
Washington, DC 20001
Dated: September 1, 2006
All subsequently cited dates are in 2005 unless otherwise indicated.
For the sake of brevity, subsequently cited sections of the Statute will be identified only by section numbers.
It is unclear whether the document was used to record only Blanchard's training or the training of a group of employees.
According to Blanchard, her interrogation was to be conducted by Winslow's husband. Another investigator was assigned after she objected (Tr. 66,67).
There is no other evidence to indicate that Blanchard was counseled for failure to complete her work on the day of her interrogation with regard to the alleged theft. However, a memorandum to Blanchard from Winslow (Resp. Ex. 5, p.13) indicates that Blanchard did not complete her work on January 21 when she called the Security Police because of alleged harassment by Zakar. It is possible that Blanchard confused the dates as she did on a number of occasions during her testimony.
The layout of the immediate vicinity of Graber's and Blanchard's cubicles is shown in Joint Ex. 1. Blanchard's cubicle was adjacent to Graber's.
At the time of this incident Graber was still on active duty with the rank of Senior Master Sergeant. Some time after the incidents upon which this case is based Graber retired from active duty and became the Chief Accounting Liaison in the Comptroller Squadron (Tr. 168, 169).
Luna marked his position in Graber's cubicle with a circled "L" and Graber's position with a circled "G" on Joint Exhibit 1 (Tr. 149).
Luna marked Colvin's path from the entrance to the waiting area to Blanchard's cubicle with circled "C2" and "C3" on Joint Exhibit 1 (Tr. 150-152).
Colvin testified that he had intended to request permission from Graber to speak to Blanchard, but that he was distracted by another person before he could do so. When Colvin finished his conversation with the other person Graber was no longer in his office (Tr. 26, 27). As will be shown, Graber's absence was probably due to his consultation with Zakar. The fact that Colvin intended to see Graber indicates that, in spite of Blanchard's purported uncertainty as to the identity of her immediate supervisor, Colvin was aware that Graber had succeeded Winslow in that capacity.
Colvin himself testified that Blanchard accused Zakar of trying to get her fired. According to Colvin, Blanchard also accused Zakar of showing her records to new supervisors and stating that "In less than one week, everybody started coming down on me" (Tr. 27, 28). It is unclear what Blanchard meant by "new supervisors" but, as shown above, Graber replaced Winslow as Blanchard's supervisor some time in January.
Smith marked his location at the time with a circled "M" on Joint Exhibit 1 (Tr. 162).
Smith marked Colvin's position at that time with a circled "C4" on Joint Exhibit 1 (Tr. 162). He marked his own position with a circled "S" (Tr. 166).
Blanchard's statement, as well as all of the others, was made on January 21.
Zakar's description of Colvin's and Blanchard's activities is consistent with Colvin's testimony and written statement that he was in Blanchard's cubicle only to ascertain when she would be available for a substantive discussion.
Each of the written statements taken by the security police were on 1168 forms.
Blanchard acknowledged that she often went to the conference room, which was used for training, and that she and other employees sometimes ate their lunch in the room (Tr. 120).
Laskiewicz later testified that she was the Deputy Commander of the 325th Mission Support Squadron which is separate from the Comptroller Squadron (Tr. 197).
Laskiewicz referred only to a single letter although, in response to a question from Respondent's counsel, she stated that she recommended that Blanchard read the "letters" (Tr. 201). The discrepancy, if any, is of no consequence in view of Laskiewicz's limited role and Blanchard's acknowledgment that she received both memoranda at the meeting.
Blanchard presumably requested and was granted an extension of time to submit her response.
The memorandum is dated March 7, 2004. This is obviously an error since the memorandum refers to events which occurred in 2005.
If anything, Graber might have alleviated the effect of Zakar's conduct since he informed Colvin that he could make an appointment to talk to Blanchard two weeks hence because of an exercise that was scheduled for the week immediately following.
The incident occurred in a non-work area around lunch time; there is no evidence as to whether Colvin knew if Kirkpatrick was on her lunch break. Even if Zakar did not, as she claimed, ask Kirkpatrick if she were on her lunch break, neither Kirkpatrick nor any other witness testified that she was on break.
The General Counsel has not alleged that Zakar's conduct had the effect of coercing or intimidating Kirkpatrick individually.
The General Counsel has not challenged the accuracy of Graber's statement to Blanchard, which she relayed to Colvin, that the meeting was not about discipline. Nor does the General Counsel maintain that the purpose of the meeting was to discuss a personnel policy or practices or other general condition of employment within the meaning of §7114(a)(2)(A).
February 6 was a Sunday and presumably the start