United States Army, Corpus Christi Army Depot, Corpus Christi, Texas (Respondent) and Jesse O. Hall (Complainant)
[ v04 p588 ]
04:0588(80)CA
The decision of the Authority follows:
4 FLRA No. 80 UNITED STATES ARMY, CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS Respondent and JESSE O. HALL Complainant Assistant Secretary Case No. 63-8792(CA) DECISION AND ORDER THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED HIS DECISION FINDING THAT THE RESPONDENT VIOLATED SECTION 19(A)(2) AND (1) OF EXECUTIVE ORDER 11491, AS AMENDED, BECAUSE DISCRIMINATION BASED ON UNION CONSIDERATIONS PLAYED A PART IN MANAGEMENT'S FAILURE TO SELECT THE COMPLAINANT FOR A TRANSFER, DEPRIVING HIM OF THE OPPORTUNITY TO WORK OVERTIME. THE ADMINISTRATIVE LAW JUDGE ALSO FOUND AN INDEPENDENT VIOLATION OF SECTION 19(A)(1) OF THE ORDER BASED ON THE COMPLAINANT'S BRANCH CHIEF'S SUGGESTION TO HIM THAT HAD HE BEEN ABLE TO REDUCE THE AMOUNT OF OFFICIAL TIME HE SPENT ON UNION ACTIVITIES, THEN HE PROBABLY COULD HAVE GOTTEN THE DESIRED TRANSFER. THE ADMINISTRATIVE LAW JUDGE FOUND NO CREDIBLE EVIDENCE THAT THE RESPONDENT VIOLATED SECTION 19(A)(4) OF THE ORDER. BOTH PARTIES FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S DECISION. THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2400.2). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215). THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S DECISION AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE EXCEPTIONS FILED BY THE PARTIES, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, WITH THE FOLLOWING MODIFICATIONS. /1/ THE RECORD DISCLOSES THAT NOTHING IN THE PARTIES' NEGOTIATED AGREEMENT AUTHORIZED THE COMPLAINANT IN HIS CAPACITY OF PRESIDENT OF LOCAL 2142 OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, TO USE OFFICIAL TIME FOR UNION PURPOSES. HOWEVER, IT IS CLEAR FROM THE RECORD, THE FINDINGS OF THE ADMINISTRATIVE LAW JUDGE, AND THE RESPONDENT'S ARGUMENTS, THAT MANAGEMENT ALLOWED A PAST PRACTICE TO DEVELOP WHEREBY THE COMPLAINANT SPENT APPROXIMATELY 70-80% OF HIS EIGHT HOUR WORK DAYS ON UNION ACTIVITIES. FOR THE PURPOSE OF DECISION IN THE INSTANT CASE, SUCH A PAST PRACTICE HAD THE EFFECT OF GRANTING TO THE COMPLAINANT A RIGHT TO OFFICIAL TIME TANTAMOUNT TO A RIGHT ACCORDED UNDER THE NEGOTIATED AGREEMENT. THE AUTHORITY DOES NOT REACH OR PASS UPON THE ADMINISTRATIVE LAW JUDGE'S OPINION ON PAGE SIX OF HIS DECISION AS TO WHAT RESPONDENT'S PROPER COURSE OF ACTION IN THIS CASE SHOULD HAVE BEEN. ORDER PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE U.S. ARMY, CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS, SHALL: 1. CEASE AND DESIST FROM: (A) FAILING OR REFUSING TO TRANSFER JESSE O. HALL, OR ANY OTHER EMPLOYEE, BECAUSE HE HAS EXERCISED HIS RIGHTS UNDER THE EXECUTIVE ORDER TO ASSIST A LABOR ORGANIZATION BY SERVING AS A UNION OFFICER AND HAS UTILIZED OFFICIAL TIME IN SUCH CAPACITY IN ACCORDANCE WITH A PAST PRACTICE RECOGNIZED BY MANAGEMENT. (B) DISCRIMINATING AGAINST JESSE O. HALL IN ANY MANNER WITH REGARD TO HIRE, TENURE, PROMOTION, TRANSFER, OVERTIME, OR OTHER CONDITIONS OF EMPLOYMENT, IN ORDER TO DISCOURAGE MEMBERSHIP IN OR ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION. (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER: (A) UPON REQUEST, TRANSFER JESSE O. HALL TO THE TRANSMISSION SHOP, POWER TRAIN BRANCH, COMPONENTS DIVISION, U.S. ARMY, CORPUS CHRISTI DEPOT, CORPUS CHRISTI, TEXAS. (B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER, U.S. ARMY, CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (C) PURSUANT TO 5 CFR 2423.30, NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH. IT IS HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT FOUND NOT TO BE VIOLATIVE OF THE EXECUTIVE ORDER BE, AND IT HEREBY IS, DISMISSED. ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1980 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT FAIL OR REFUSE TO TRANSFER JESSE O. HALL, OR ANY OTHER EMPLOYEE, BECAUSE HE HAS EXERCISED HIS RIGHTS UNDER EXECUTIVE ORDER 11491, AS AMENDED, TO ASSIST A LABOR ORGANIZATION BY SERVING AS A UNION OFFICER AND HAS UTILIZED OFFICIAL TIME IN SUCH CAPACITY IN ACCORDANCE WITH A PAST PRACTICE RECOGNIZED BY MANAGEMENT. WE WILL NOT DISCRIMINATE AGAINST JESSE O. HALL, OR ANY OTHER EMPLOYEE, IN ANY MANNER WITH REGARD TO HIRE, TENURE, PROMOTION, TRANSFER, OVERTIME, OR OTHER CONDITIONS OF EMPLOYMENT IN ORDER TO DISCOURAGE MEMBERSHIP IN OR ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED. WE WILL, UPON REQUEST, TRANSFER JESSE O. HALL TO THE TRANSMISSION SHOP, POWER TRAIN BRANCH, COMPONENTS DIVISION, U.S. ARMY, CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS. . . . (AGENCY OR ACTIVITY) DATED: . . . BY: . . . (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: BRYAN & ERVAY STREETS, ROOM 450, DOWNTOWN POST OFFICE STATION, P.O. BOX 2640, DALLAS, TEXAS 75221 AND WHOSE TELEPHONE NUMBER IS: (214) 767-4996. -------------------- ALJ$ DECISION FOLLOWS -------------------- SAMUEL S. HORN, ESQUIRE JAMES G. GILLIAM, ESQUIRE FOR THE RESPONDENT RICHARD E. FLINT, ESQUIRE FOR THE COMPLAINANT BEFORE: GARVIN LEE OLIVER ADMINISTRATIVE LAW JUDGE DECISION STATEMENT OF THE CASE THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A RESULT OF AN AMENDED UNFAIR LABOR PRACTICE COMPLAINT FILED BY JESSE O. HALL, THEN PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2142 (COMPLAINANT) AGAINST THE U.S. ARMY, CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS (RESPONDENT). THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT COMPLAINANT WAS NOT SELECTED FOR REASSIGNMENT TO RESPONDENT'S TRANSMISSION SHOP BECAUSE OF HIS UNION ACTIVITIES. THE COMPLAINT ALSO ALLEGED THAT ONE OF RESPONDENT'S BRANCH CHIEFS SO INFORMED COMPLAINANT ON MAY 27, 1978. COMPLAINANT ALLEGED THAT RESPONDENT'S ACTIONS VIOLATED SECTION 19(A)(1), (2), AND (4) OF THE ORDER. RESPONDENT DENIED THE ALLEGATIONS. PURSUANT TO A NOTICE OF HEARING ISSUED BY THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, DALLAS REGION, A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN CORPUS CHRISTI, TEXAS. BOTH PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO EXAMINE AND CROSS-EXAMINE WITNESSES AND FILE BRIEFS. BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS. FINDINGS OF FACT 1. COMPLAINANT, JESSE HALL, BEGAN HIS EMPLOYMENT WITH THE RESPONDENT AT THE CORPUS CHRISTI ARMY DEPOT IN FEBRUARY 1967 AS A WG-5 IN THE TRANSMISSION SHOP. HE REMAINED IN THE TRANSMISSION SHOP UNTIL 1974 SERVING IN GRADES WG-5 TO WG-8. (TR. 205-206). HE IS CURRENTLY A WG-10 IN THE AIRFRAME DIVISION. (COMPLAINANT'S EX. 2). 2. HALL JOINED THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2142 (THE UNION) IN 1974. HE BECAME A STEWARD IN EARLY 1974, CHIEF STEWARD IN SEPTEMBER 1974, AND WAS ELECTED PRESIDENT OF THE LOCAL IN 1976. (TR. 208-209). IN HIS CAPACITY AS PRESIDENT OF THE LOCAL HE ACTIVELY AND SUCCESSFULLY REPRESENTED INDIVIDUALS IN GRIEVANCES. (TR. 45, 211). DURING 1978 HE ALSO PURSUED OTHER EMPLOYEE COMPLAINTS, BROUGHT UNFAIR LABOR PRACTICE COMPLAINTS, AND ENGAGED IN NEGOTIATIONS CONCERNING THE COLLECTIVE BARGAINING AGREEMENT. (TR. 215-218; RESPONDENT'S EX. 1). HIS ACTIVITIES ON BEHALF OF THE UNION WERE WELL KNOWN TO RESPONDENT. (TR. 45, 107). 3. THE COLLECTIVE BARGAINING AGREEMENT BETWEEN RESPONDENT AND THE UNION ESTABLISHED A PROCEDURE WHEREBY A REASONABLE AMOUNT OF TIME DURING REGULAR DUTY HOURS COULD BE USED BY THE CHIEF STEWARD AND THE STEWARDS TO DISCUSS GRIEVANCES AND OTHER WORK-RELATED MATTERS. (JOINT EX. 1, PP. 13-14). THE AGREEMENT PROVIDED THAT REQUESTS BY A UNION REPRESENTATIVE OR OTHER EMPLOYEE TO LEAVE THE JOB WOULD BE KEPT TO A MINIMUM; THAT REQUESTS WOULD BE MADE TO THE EMPLOYEE'S SUPERVISOR; THAT TIME SPENT BY UNION OFFICERS AND REPRESENTATIVES ON CONSULTATION, DISCUSSION, OR REPRESENTATIONAL DUTIES WOULD BE CHARGED TO NON-PRODUCTIVE TIME; AND THAT "THE EMPLOYER AGREES TO DISCUSS WITH THE PRESIDENT OF THE UNION SPECIFIC CASES WHERE THE EMPLOYER BELIEVES ONE OF THE REPRESENTATIVES MAY BE USING MORE THAN A REASONABLE AMOUNT OF TIME IN PURSUING THE REPRESENTATION FUNCTION." (JOINT EX. 1, PP. 13-14). 4. DURING THE PERIOD JANUARY TO APRIL 1978 MR. HALL SPENT APPROXIMATELY 70-80% OF HIS EIGHT HOUR WORK DAYS ON UNION ACTIVITIES. (TR. 229-230). HALL FOLLOWED ESTABLISHED PROCEDURES CONCERNING THE USE OF SUCH TIME, AND ALSO SUBMITTED INFORMATION ON A DAILY BASIS CONCERNING THE AMOUNT OF TIME USED. THESE REPORTS WERE MADE AVAILABLE TO, AND SEEN BY, MANAGEMENT AT ALL RELEVANT LEVELS. (TR. 65-66, 89-90, 109, 230-231; RESPONDENT EXHIBIT 1). IN THE PAST, ALTHOUGH OCCASIONAL ATTEMPTS WERE MADE TO RESTRICT HALL TO HIS WORK SITE, HE FOLLOWED THE ADVICE OF THE BASE COMMANDER TO TAKE ALL THE TIME HE NEEDED TO RESOLVE GRIEVANCES AND COMPLAINTS. (TR. 220-223). HALL RECEIVED NO COMPLAINTS FROM MANAGEMENT THAT HIS USE OF OFFICIAL TIME WAS IN ANY WAY UNREASONABLE. HE HAD A REPUTATION AS A GOOD WORKER, AND HIS PERFORMANCE AS AN EMPLOYEE WAS CONSISTENTLY RATED IN ALL APPLICABLE ELEMENTS AS ABOVE AVERAGE OR OUTSTANDING. (TR. 48-52; 207; COMPLAINANT'S EXHIBIT 4). 5. IN LATE APRIL 1978 THE TRANSMISSION SHOP AT CORPUS CHRISTI ARMY DEPOT HAD AN URGENT NEED FOR ADDITIONAL EMPLOYEES TO ASSIST WITH AN INCREASED WORKLOAD. (TR. 24,59). RESPONDENT DECIDED TO TRANSFER 21 ENCUMBERED POSITIONS TO THAT SHOP. (TR. 185, 189, 192). NO PROMOTIONS WERE INVOLVED, BUT OVERTIME WOULD BE AVAILABLE TO THE EMPLOYEES TRANSFERRED. (TR. 29, 31-32, 59, 193). 6. MR. ADOLPH CHOVANEC, DEPUTY DIRECTOR OF MAINTENANCE, LEVIED A REQUIREMENT FOR 20 EMPLOYEES TO BE TRANSFERRED FROM THE AIRFRAMES DIVISION TO THE COMPONENTS DIVISION. (TR. 20). CHOVANEC SAID THAT VOLUNTEERS WERE TO BE SOUGHT AS PART OF THE SELECTION PROCEDURE. (TR. 23). AT THIS POINT, JOHN B. JONES, CHIEF OF THE AIR FRAMES DIVISION, ADVISED CHOVANEC THAT HE WAS SURE MR. HALL PROBABLY WOULD BE INTERESTED. CHOVANEC REPLIED, "WELL, MR. HALL IS NOT AVAILABLE ON THE JOB THAT MUCH. IF I SEND MR. HALL DOWN TO THE TRANSMISSION SHOP, I WOULD HAVE TO SEND SOMEBODY ELSE DOWN THERE TO DO THE WORK." (TR. 94). MR. CHOVANEC WAS OF THE OPINION THAT, IF MR. HALL SHOULD INQUIRE ABOUT IT, HE SHOULD BE TOLD THAT HIS NONAVAILABILITY FOR THE JOB, SINCE HE SPENT SO MUCH TIME ON UNION BUSINESS, WAS THE REASON FOR NOT SENDING HIM TO THE TRANSMISSION SECTION. (RESPONDENT'S EXHIBIT 2; TR. 42, 94). MR. CHOVANEC STRESSED THAT PERSONS SELECTED SHOULD BE AVAILABLE TO DO THE JOB 8 HOURS A DAY. (TR. 42). 7. MR. HALL VOLUNTEERED FOR TRANSFER TO THE TRANSMISSION SHOP. (TR. 100). THERE WAS NO QUESTION AS TO HIS TECHNICAL QUALIFICATIONS FOR THE WORK. (TR. 200). IN ADDITION, HE HAD EXPERIENCE IN THE TRANSMISSION SHOP, A DESIRED FACTOR, WHICH MOST OF THE EMPLOYEES EVENTUALLY TRANSFERRED DID NOT HAVE. (TR. 48, 98-100, 132-133). HALL WAS NOT SELECTED FOR TRANSFER, BECAUSE OF HIS NONAVAILABILITY FOR FULL-TIME WORK ON THE JOB DURING THE REGULAR WORK DAY DUE TO HIS USE OF OFFICIAL TIME FOR UNION ACTIVITIES. (TR. 42, 61, 89, 94, 125, 152). HALL WAS SO INFORMED OF THE REASONS FOR HIS REJECTION BY RESPONDENT'S SUPERVISORS JOHN B. JONES AND JERRY ALEXANDER. (TR. 124-,25, 144, 151-152, 222-223; RESPONDENT'S EXHIBIT 2). 8. ANOTHER VOLUNTEER, FERMIN G. SANCHEZ, WAS INITIALLY REJECTED DUE TO HIS EXCESSIVE USE OF SICK LEAVE. WHEN SANCHEZ IMPROVED HIS LEAVE RECORD, HE WAS ACCEPTED IN THE TRANSMISSION SHOP. (TR. 68-70). STEVE FALCON, ANOTHER VOLUNTEER, WAS REJECTED BECAUSE OF A PHYSICAL IMPAIRMENT THAT IMPEDED THE FULL AND FREE MOVEMENT REQUIRED IN THE TRANSMISSION SHOP. (TR. 71). 9. SUBSEQUENT TO HALL'S REJECTION FOR THE TRANSFER, HE HAD ANOTHER CONVERSATION WITH HIS BRANCH CHIEF, JERRY ALEXANDER. ALEXANDER STATED TO HALL THAT HAD HALL BEEN ABLE TO REDUCE HIS AMOUNT OF UNION TIME, HE COULD PROBABLY HAVE GONE TO THE TRANSMISSION SHOP. (TR. 124-125). 10. DURING THE PERIOD MAY 1978 TO JANUARY 1979 THE AVERAGE AMOUNT OF OVERTIME WORKED BY EACH WG-10 ASSIGNED TO THE TRANSMISSION SHOP WAS APPROXIMATELY 24 1/3 HOURS, OR A TOTAL OF APPROXIMATELY 551 1/2 AVERAGE HOURS OVERTIME DURING THE PERIOD. (COMPLAINANT'S EXHIBIT 3). HALL TESTIFIED THAT HE WOULD HAVE VOLUNTEERED FOR SUCH OVERTIME. (TR. 228-229). THE COLLECTIVE BARGAINING AGREEMENT PROVIDED THAT, INSOFAR AS PRACTICABLE, OVERTIME ASSIGNMENTS WOULD FIRST BE FAIRLY DISTRIBUTED AMONG THE PERMANENT EMPLOYEES OF THE ORGANIZATION IN WHICH OVERTIME WAS TO BE WORKED, AND THAT LEAVE FOR "LEGITIMATE UNION SERVICE" WOULD NOT BE USED TO DISQUALIFY AN EMPLOYEE FOR SUCH OVERTIME. (JOINT EXHIBIT 1, P. 36). HALL TESTIFIED THAT HE SOMETIMES WORKED OVERTIME IN HIS PRESENT SHOP AFTER AN EIGHT HOUR DAY IN WHICH HE SPENT SOME TIME ON UNION BUSINESS. (TR. 227). THIS OVERTIME WAS PRODUCTIVE OVERTIME, TIME SPENT ON THE JOB, SINCE THE COLLECTIVE BARGAINING AGREEMENT LIMITED THE USE OF OFFICIAL TIME DURING OVERTIME TO URGENT ITEMS WHICH COULD NOT BE DEFERRED UNTIL THE NEXT NON-OVERTIME DAY. (TR. 228; JOINT EXHIBIT 1, P. 37). HALL WAS ALSO KNOWN TO SOMETIMES WORK ON UNION BUSINESS ON HIS OWN TIME AFTER DUTY HOURS. 11. HALL IS NO LONGER PRESIDENT OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2142. DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS COMPLAINANT ALLEGES THAT RESPONDENT VIOLATED SECTION 19()(1), (2), AND (4) OF THE ORDER. RESPONDENT DENIES ANY VIOLATION AND CONTENDS THAT THE TRANSMISSION SHOP REQUIRED FULL-TIME SERVICE; THAT MR. HALL WAS NOT AVAILABLE FOR SUCH SERVICE, BECAUSE OF HIS USE OF OFFICIAL TIME FOR UNION ACTIVITIES; AND THAT BY KEEPING MR. HALL IN HIS PRESENT SHOP, WHERE HE ABSENCES COULD BE ACCOMMODATED, MANAGEMENT MAINTAINED A NECESSARY BALANCE BETWEEN PERFORMANCE OF ITS MISSION AND PERFORMANCE OF UNION ACTIVITIES. SECTION 1(A) OF THE ORDER GUARANTEES TO EACH EMPLOYEE OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT THE RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR ORGANIZATION OR TO REFRAIN FROM SUCH ACTIVITY. THE RIGHT TO ASSIST A LABOR ORGANIZATION EXTENDS TO PARTICIPATION IN THE MANAGEMENT OF THE ORGANIZATION. AGENCY MANAGEMENT'S ENCOURAGEMENT OR DISCOURAGEMENT OF THESE RIGHTS BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT IS VIOLATIVE OF SECTION 19(A)(2) AND (1) OF THE ORDER. SPECIFICALLY, TO FIND A SECTION 19(A)(2) VIOLATION, A COMPLAINANT MUST ESTABLISH THAT MANAGEMENT HAD DISCRIMINATED IN REGARD TO TERMS AND CONDITIONS OF EMPLOYMENT BASED ON UNION CONSIDERATIONS. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MILWAUKEE AREA OFFICE, MILWAUKEE, WISCONSIN, 7 A/SLMR 948, 949, A/SLMR NO. 925(1977). FURTHER, SUCH A VIOLATION WILL BE FOUND WHERE UNION CONSIDERATIONS ARE SHOWN TO HAVE PLAYED ONLY A PART IN MANAGEMENT'S ACTION. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS, REGION II, SAN JUAN, PUERTO RICO, 8 A/SLMR 1092, 1093, A/SLMR NO. 1127(1978). THUS, IF MANAGEMENT'S FAILURE TO SELECT COMPLAINANT FOR TRANSFER WAS BASED IN WHOLE OR IN PART ON HIS UNION ACTIVITY, A VIOLATION OF SECTION 19(A)(2) WOULD BE ESTABLISHED. DIRECTORATE OF SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY, HEADQUARTERS, DEFENSE LOGISTICS AGENCY, 2 FLRA 118(1980). BY NOT BEING SELECTED FOR TRANSFER TO THE TRANSMISSION SHOP, COMPLAINANT WAS NOT DEPRIVED OF A PROMOTION, BUT WAS DEPRIVED OF THE OPPORTUNITY TO WORK OVERTIME. OVERTIME IS A CONDITION OF EMPLOYMENT. THE RECORD ESTABLISHES THAT COMPLAINANT WAS NOT SELECTED FOR TRANSFER BECAUSE MANAGEMENT DETERMINED THAT HIS USE OF OFFICIAL TIME FOR UNION ACTIVITIES RENDERED HIM UNAVAILABLE FOR FULL-TIME WORK ON THE JOB. THERE WAS NO INDEPENDENT CREDIBLE EVIDENCE OF UNION ANIMUS. THE USE OF OFFICIAL TIME FOR EMPLOYEE REPRESENTATIONAL ACTIVITIES IS A CONTRACTUAL RIGHT, NOT A RIGHT GUARANTEED BY THE ORDER. MOREOVER, MANAGEMENT MAY MONITOR THE AMOUNT OF TIME SPENT ON UNION ACTIVITIES IN ORDER TO MAKE WORK ASSIGNMENTS. HOWEVER, TO PENALIZE OR THREATEN TO PENALIZE EMPLOYEES FOR ASSERTING OR EXERCISING RIGHTS ACCORDED THEM UNDER A NEGOTIATED AGREEMENT MAY VIOLATE THE ORDER WHERE THE EFFECT OF SUCH PENALTY OR THREAT IS TO INTERFERE WITH, RESTRAIN, OR COERCE SUCH EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER, E.G. THE RIGHTS TO FORM, JOIN, OR ASSIST A LABOR ORGANIZATION. DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBURG AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 485, FLRC NO. 75A-25, 4 FLRC 587(1976); DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, A/SLMR NO. 582, FLRC NO. 76A-13, 4 FLRC 390(1976). RESPONDENT MAKES NO CONTENTION THAT THE ABSENCES OCCASIONED BY HALL'S REPRESENTATIONAL ACTIVITIES WERE IN ANY WAY VIOLATIVE OF THE APPLICABLE PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT. SUCH ABSENCES, THEN, WERE PRESUMABLY FOR THE MUTUAL BENEFIT OF BOTH PARTIES. /2/ FOR RESPONDENT TO CONSIDER HALL'S USE OF SUCH TIME AS RENDERING HIM INELIGIBLE FOR TRANSFER MEANT THAT RESPONDENT WAS PENALIZING HALL FOR EXERCISING RIGHTS ACCORDED TO HIM AS A UNION OFFICER UNDER THE NEGOTIATED AGREEMENT. THE OBVIOUS CONSEQUENCE AND EFFECT OF SUCH PENALTY IS TO DISCOURAGE EMPLOYEES FROM JOINING AND ASSISTANT A LABOR ORGANIZATION. THIS IS INHERENTLY DESTRUCTIVE OF RIGHTS ASSURED UNDER SECTION 1(A) OF THE ORDER. BECAUSE DISCRIMINATION BASED ON UNION CONSIDERATIONS PLAYED A PART IN MANAGEMENT'S FAILURE TO SELECT HALL FOR TRANSFER, RESPONDENT VIOLATED SECTION 19(A)(2) AND (1) OF THE ORDER. IN THIS REGARD, THIS CASE IS SIMILAR TO DEPARTMENT OF THE ARMY, UNITED STATES ARMY INFANTRY CENTER, CIVILIAN PERSONNEL OFFICE, FORT BENNING, GEORGIA, A/SLMR NO. 515, 5 A/SLMR 325(1975), WHERE THE ASSISTANT SECRETARY FOUND A VIOLATION OF SECTION 19(A)(1) AND (2), BECAUSE THE EMPLOYEE'S ACTIVITIES AS A UNION STEWARDESS PLAYED SOME PART IN THE DECISION OF MANAGEMENT OFFICIALS NOT TO SELECT THE EMPLOYEE FOR PROMOTION. ALTHOUGH THERE WAS SOME OTHER EVIDENCE OF UNION ANIMUS, IT WAS POINTED OUT THAT IT WAS IMPROPER FOR MANAGEMENT TO CONSIDER THE ABSENCES OF THE EMPLOYEE FROM HER WORK FOR GRIEVANCE ACTIVITY, SINCE, AS IN THE INSTANT CASE, THERE WAS NO CONTENTION THAT THE ABSENCES WERE IN ANY WAY VIOLATIVE OF THE COLLECTIVE BARGAINING AGREEMENT. AS IN THE INSTANT CASE, THESE ABSENCES, IN MANAGEMENT'S OPINION, MADE THE EMPLOYEE LESS DESIRABLE FOR THE POSITIONS UNDER CONSIDERATION. THE INSTANT CASE IS DISTINGUISHABLE FROM DEPARTMENT OF THE AIR FORCE, 4392D AEROSPACE SUPPORT GROUP, VANDENBERG AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 537, 5 A/SLMR 486(1975) AND PUGET SOUND NAVAL SHIPYARD, DEPARTMENT OF THE NAVY, BREMERTON, WASHINGTON, A/SLMR NO. 768, 6 A/SLMR 709, WHERE THE RECORDS DEMONSTRATED THAT EMPLOYEES WERE TRANSFERRED TO LESS DEMANDING POSITIONS SOLELY BECAUSE THEY WERE UNABLE TO MEET THE WORK PERFORMANCE REQUIREMENTS OF THEIR CURRENT POSITIONS, BECAUSE OF THEIR REPRESENTATIONAL DUTIES. THE TRANSFER OF THE EMPLOYEES FOR THIS REASON ACTUALLY ALLOWED THE EMPLOYEES MORE TIME FOR SUCH DUTIES IN THEIR NEW POSITIONS. RESPONDENT'S ACTION, HOWEVER, IN DETERMINING IN ADVANCE OF ANY PERFORMANCE BY MR. HALL IN THE POSITION, THAT HE COULD NOT MEET THE WORK PERFORMANCE REQUIREMENTS OF THE NEW POSITION BECAUSE OF THE DEMANDS OF HIS UNION ACTIVITIES, HAS THE EFFECT OF DISCRIMINATING AGAINST MR. HALL FOR SIMPLY ENGAGING IN SUCH ACTIVITIES. IN MY VIEW, THE PROPER COURSE OF ACTION FOR RESPONDENT TO TAKE, IN ORDER TO BALANCE ITS RIGHTS IN PERFORMING ITS MISSION WITH THOSE OF THE EMPLOYEE'S PROTECTED ACTIVITY AND THE GOALS OF EFFICIENT GOVERNMENT, WAS TO CONSIDER HALL'S REQUEST FOR TRANSFER COMPLETELY APART FROM UNION CONSIDERATIONS, AND IF THE TRANSFER WAS GRANTED AND MR. HALL PROVED TO BE UNABLE TO PERFORM THE REQUIRED WORK, RESPONDENT COULD HAVE TAKEN ACTION CONSISTENT WITH THE ABOVE VANDENBERG AND PUGET SOUND CASES AND TRANSFERRED HIM OUT OF THE POSITION. /3/ AS THE COUNCIL NOTED IN DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBURG AIR FORCE BASE, CALIFORNIA, SUPRA, 4 FLRC AT P. 594, FN. 11: . . . PURSUANT TO SECTION 12(A) OF THE ORDER, IN THE ADMINISTRATION OF THE AGREEMENT THE PARTIES ARE GOVERNED BYLAWS AND CONTROLLING REGULATIONS. FURTHER, THE ORDER MANDATES THE RETENTION TO MANAGEMENT OF CERTAIN RIGHTS WHICH MAY NOT BE BARGAINED AWAY, INCLUDING SPECIFICALLY THE RIGHT "TO DIRECT EMPLOYEES OF THE AGENCY." THUS, WHILE THE ORDER PERMITS A LABOR ORGANIZATION TO NEGOTIATE FOR THE USE OF OFFICIAL TIME FOR CONTRACT ADMINISTRATION AND OTHER EMPLOYEE REPRESENTATIONAL ACTIVITIES AND PROTECTS EMPLOYEES FROM INTERFERENCE WITH RIGHTS ASSURED BY THE ORDER, THE ORDER DOES NOT PRECLUDE AGENCY MANAGEMENT FROM INSISTING THAT EMPLOYEES ABIDE BY THE TERMS OF THE AGREEMENT, APPLICABLE LAWS AND REGULATIONS, AND MOST CERTAINLY DOES NOT PRECLUDE AGENCY MANAGEMENT FROM DIRECTING THOSE EMPLOYEES IN THE PERFORMANCE OF THEIR ASSIGNED DUTIES. THE RECORD REFLECTS THAT SUBSEQUENT TO HALL'S REJECTION FOR THE TRANSFER, HIS BRANCH CHIEF, JERRY ALEXANDER, SUGGESTED TO HALL THAT HAD HALL BEEN ABLE TO REDUCE HIS AMOUNT OF UNION TIME, HE COULD PROBABLY HAVE GONE TO THE TRANSMISSION SHOP. (TR. 124-125; 219). THIS STATEMENT INDICATED THAT HALL'S OPPORTUNITIES WOULD BE LIMITED SO LONG AS HE CONTINUED TO PERFORM HIS AUTHORIZED REPRESENTATIONAL DUTIES, UNDER THE TIME FRAME PROCEDURES PREVIOUSLY NEGOTIATED BY THE PARTIES, AND OSTENSIBLY, AT LEAST, FOUND ACCEPTABLE BY RESPONDENT IN PRACTICE. SEE DEPARTMENT OF THE ARMY, PICATINNY ARSENAL, DOVER, NEW JERSEY, A/SLMR NO. 512, 5 A/SLMR 293(1975); DEPARTMENT OF THE ARMY, UNITED STATES ARMY INFANTRY CENTER, CIVILIAN PERSONNEL OFFICE, FORT BENNING, GEORGIA, SUPRA, 5 A/SLMR AT 326. I FIND THAT THIS STATEMENT INDEPENDENTLY VIOLATED SECTION 19(A)(1) OF THE ORDER. IT INTERFERED WITH, RESTRAINED, AND COERCED HALL IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER TO JOIN AND ASSIST A LABOR ORGANIZATION. THE RECORD ESTABLISHES THAT APART FROM RESPONDENT'S CONSIDERATION OF COMPLAINANT'S UNION ACTIVITIES, HE WOULD HAVE BEEN SELECTED FOR TRANSFER TO THE TRANSMISSION SHOP WITH THE OPPORTUNITY THAT IT PROVIDED TO WORK OVERTIME. THEREFORE, THE RECOMMENDED ORDER PROVIDES THAT HE BE SO TRANSFERRED, UPON HIS REQUEST. HOWEVER, IT CANNOT BE CONCLUDED THAT BUT FOR THE IMPROPER ACTION, COMPLAINANT WOULD HAVE WORKED SUCH OVERTIME. THEREFORE, COMPLAINANT CAN NOT BE ORDERED COMPENSATED FOR ANY LOSS OF BACK PAY OR DIFFERENTIAL WHICH HE MIGHT HAVE EARNED FOR OVERTIME. THE FEDERAL LABOR RELATIONS COUNCIL NOTED THAT IN ORDER TO MAKE A VALID AWARD OF BACKPAY UNDER THE BACK PAY ACT OF 1966, 5 U.S.C. SECTION 5596, IT IS NECESSARY NOT ONLY TO FIND THAT AN EMPLOYEE HAS BEEN ADVERSELY AFFECTED BY AGENCY MANAGEMENT'S IMPROPER ACTION, BUT ALSO THAT "BUT FOR" THE IMPROPER ACTION THE EMPLOYEE WOULD NOT HAVE SUFFERED A LOSS OR REDUCTION IN PAY, ALLOWANCES, OR YARD METAL TRADES COUNCIL, AFL-CIO, 4 FLRA 143, 149, YARD METAL TRADES COUNCIL, AFL-CIO, 4 FLRC 143, 149, FLRC NO. 74A-64(1976); DIRECTORATE OF SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY, HEADQUARTERS, DEFENSE LOGISTICS AGENCY, 1 FLRA 118(1980). COMPARE U.S. CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA, 1 FLRA 108(1979), IN WHICH BACKPAY WAS AWARDED FOR OVERTIME, WHERE THE RECORD SHOWED THAT THE EMPLOYEE HAD REGULARLY WORKED SPECIAL OVERTIME AND BUT FOR MANAGEMENT'S IMPROPER ACTION WOULD HAVE WORKED THIS OVERTIME ON DATES CERTAIN. THERE IS NO CREDIBLE EVIDENCE THAT RESPONDENT VIOLATED SECTION 19(A)(4) OF THE ORDER BY DISCIPLINING OR OTHERWISE DISCRIMINATING AGAINST MR. HALL BECAUSE HE HAS FILED A COMPLAINT OR GIVEN TESTIMONY UNDER THE ORDER. IT IS RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN THIS RESPECT. HAVING FOUND AND CONCLUDED THAT RESPONDENT HAS VIOLATED SECTION 19(A)(1) AND (2) OF EXECUTIVE ORDER 11491, AS AMENDED, I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER: ORDER PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE U.S. ARMY, CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS, SHALL: 1. CEASE AND DESIST FROM: (A) FAILING OR REFUSING TO TRANSFER JESSE O. HALL, OR ANY OTHER EMPLOYEE, BECAUSE HE HAS EXERCISED HIS RIGHTS UNDER THE EXECUTIVE ORDER TO ASSIST A LABOR ORGANIZATION BY SERVING AS A UNION OFFICER AND HAS UTILIZED OFFICIAL TIME IN SUCH CAPACITY PURSUANT TO THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT. (B) DISCRIMINATING AGAINST JESSE O. HALL IN ANY MANNER WITH REGARD TO HIRE, TENURE, PROMOTION, TRANSFER, OVERTIME, OR OTHER CONDITIONS OF EMPLOYMENT, IN ORDER TO DISCOURAGE MEMBERSHIP IN OR ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION. (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER: (A) UPON REQUEST, TRANSFER JESSE O. HALL TO THE TRANSMISSION SHOP, POWER TRAIN BRANCH, COMPONENTS DIVISION, U.S. ARMY CORPUS CHRISTI DEPOT, CORPUS CHRISTI, TEXAS. (B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER, U.S. ARMY CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (C) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH. GARVIN LEE OLIVER ADMINISTRATIVE LAW JUDGE DATED: JUNE 3, 1980 WASHINGTON, D.C. APPENDIX PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT FAIL OR REFUSE TO TRANSFER JESSE O. HALL, OR ANY OTHER EMPLOYEE, BECAUSE HE HAS EXERCISED HIS RIGHTS UNDER EXECUTIVE ORDER 11491, AS AMENDED, TO ASSIST A LABOR ORGANIZATION BY SERVING AS A UNION OFFICER AND HAS UTILIZED OFFICIAL TIME IN SUCH CAPACITY IN ACCORDANCE WITH A COLLECTIVE BARGAINING AGREEMENT. WE WILL NOT DISCRIMINATE AGAINST JESSE O. HALL, OR ANY OTHER EMPLOYEE, IN ANY MANNER WITH REGARD TO HIRE, TENURE, PROMOTION, TRANSFER, OVERTIME, OR OTHER CONDITIONS OF EMPLOYMENT IN ORDER TO DISCOURAGE MEMBERSHIP IN OR ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED. WE WILL, UPON REQUEST, TRANSFER JESSE O. HALL TO THE TRANSMISSION SHOP, POWER TRAIN BRANCH, COMPONENTS DIVISION, U.S. ARMY CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS. (AGENCY OR ACTIVITY) DATED: . . . BY: . . . (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: BRYAN & ERVAY STREET, OLD POST OFFICE BUILDING, ROOM 450, DALLAS, TEXAS 75221. --------------- FOOTNOTES$ --------------- /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED. THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER. /2/ IN THIS REGARD, RESPONDENT'S REJECTION OF OTHER VOLUNTEERS FOR EXCESSIVE SICK LEAVE OR PHYSICAL HANDICAP IS DISTINGUISHABLE, SINCE NO APPARENT BENEFITS ACCRUED TO RESPONDENT FROM THESE ABSENCES OR WORK-RELATED DEFICIENCIES. /3/ IN THIS REGARD, IT IS NOTED THAT HALL TESTIFIED, WITHOUT CONTRADICTION, THAT THE TRANSMISSION SHOP ALLOCATES A PARTICULAR NUMBER OF HOURS TO COMPLETE WORK ON A TRANSMISSION IN ORDER TO DETERMINE TRANSMISSION SHOP, HE COMPLETED SOME WORK IN ONE HALF THE TIME THE COMPARABLE WORK TOOK OTHER EMPLOYEES. (TR. 439-440).