[ v14 p289 ]
14:0289(54)CA
The decision of the Authority follows:
14 FLRA No. 54
DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R7-23
Charging Party
Case Nos. 5-CA-381
5-CA-386
5-CA-406
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the consolidated complaint, and
recommending that the complaint be dismissed in its entirety.
Thereafter, the Charging Party and the General Counsel filed exceptions
to the Judge's Decision, and the Respondent filed an opposition thereto.
/1A/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendation dismissing the
complaint.
ORDER
IT IS ORDERED that the consolidated complaint in Case Nos. 5-CA-381,
5-CA-386, and 5-CA-406 be, and it hereby is, dismissed.
Issued, Washington, D.C., April 20, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Lt. Col. Gordon B. Finley, Jr.
Capt. Lynn W. Dippold
For the Respondent
Mark B. Clevenger, Esq.
For the Charging Party
Sandra J. Lebold, Esq.
For the General Counsel
Before: ALAN W. HEIFETZ
Administrative Law Judge
DECISION
Statement of the Case
This proceeding arose pursuant to the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
of unfair labor practice charges filed January 31, February 2, and
February 17, 1980, with the Federal Labor Relations Authority.
Consequently, on February 26, 1980, the Regional Director consolidated
these cases and issued a complaint alleging that the Department of the
Air Force, Scott Air Force Base, violated 5 U.S.C. 7116(a)(1), (2), and
(4) by (a) admonishing the president of the National Association of
Government Employees, Local R7-23 (the Union or Charging Party) that he
had been spending excessive time away from his work because of his
duties as a Union representative and not enough time performing work for
Respondent; (b) by threatening the president of the Union with the
imposition of disciplinary action if he did not perform more work for
Respondent and spend less time performing his Union duties; and (c) by
issuing a performance appraisal to the president of the Union which was
lower than previous appraisals as a result of his continued requests
for, and use of official time for representational purposes and/or
because of having filed unfair labor practice charges against
Respondent. Respondent denies the allegations of the consolidated
complaint.
A hearing was held on June 11, 1981, at Scott Air Force Base,
Illinois. All parties were afforded full opportunity to examine
witnesses and to introduce evidence. Post hearing briefs were filed by
August 4, 1981, and have been considered. Upon the entire record,
including my observation of the witnesses and their demeanor, I make the
following findings, conclusions, and recommended order:
Findings of Fact
The Union is the recognized representative of all non-supervisory,
non-managerial employees at Scott Air Force Base. As such, it
represents approximately 3,000 of Respondent's employees. /1/
Carl Denton has been a Computer Systems Analyst at Scott Air Force
Base since July 1973. He has been the president of the Union since May
1978 and, as such, he has been an extremely active and visible leader.
Management officials, including Mr. Denton's immediate supervisors,
Captain Dennis Hohman and Lt. Col. Anthony Serksnas, were aware of his
activities on behalf of the Union.
The collective bargaining agreement provides that Union officials
will be allowed "a reasonable amount of official duty time" to conduct
Union business. The Union official must request the time from a
supervisor and must report to the supervisor how much time was used.
The Consolidated Aerial Port Subsystems (CAPS) program goes to the
heart of the Military Airlift Command mission. CAPS is a system
designed to automate the handling of cargo and passengers world-wide. A
significant aspect of the automation of what was initially a manual
process is quality assurance.
Mr. Denton was involved in initial meetings and planning and in the
design stage of the CAPS project in 1977 and 1978. In the Spring of
1979, there were only three people in the Command Data Automation
Office: Mr. Denton; an Air Force Chief Master Sergeant who was soon
due to retire; and Captain Hohman who had been on board only a short
while. Mr. Denton was the only civilian and therefore, management
expected that he would remain in the job at Scott Air Force Base
indefinitely while any military personnel assigned would probably be
transient. The CAPS program was expected to continue in the
developmental stage for several years and therefore, management looked
to as much continuity of personnel as possible. All of these
considerations led Lt. Col. Serksnas to tell Mr. Denton in May of 1979
that he had a GOL (golden opportunity for leadership) for Mr. Denton,
that is, that he would become the CAPS Quality Assurance Manager. That
month, Captain Hohman, with Mr. Denton's assistance, rewrote the
latter's position description to reflect his new duties as CAPS Quality
Assurance Manager. In June 1979, Mr. Denton received 160 hours of
training to assist him in assuming those new duties. In recognition of
the time demands on Mr. Denton as Union president, Lt. Col. Serksnas and
Captain Hohman assigned two military computer specialists to assist him,
they assigned some of the computer work to a government contractor, and
they diverted much of his routine work to other divisions under Lt. Col.
Serksnas' directorate. Both supervisors estimated that Mr. Denton could
function both as CAPS Quality Assurance Manager and as Union president
if Mr. Denton devoted between 10 and 20 hours per week to the CAPS
project.
Mr. Denton was not formally appointed to his new position until
October 1979. The reason he began functioning in the position as early
as May 1979 was to give him enough lead time to prepare for audits of
the project in January 1980 which were considered to be major milestones
or review points for the project.
In sharp contrast to management's view of his new job, Mr. Denton
asserts that it is a full time position and, as such, it is totally
incompatible with his duties as president of the Union which take more
than 40 hours per week. He continually objected to his assignment as
CAPS Quality Assurance Manager from the beginning. However, his
objections did not take on a more formal tone until the audits of the
project approached.
The audits of the CAPS project were scheduled from January 14 - 25,
1980. On January 11, 1980, the Friday before the Monday on which the
audits were to begin, Mr. Denton wrote to his third line supervisor
accusing Lt. Col. Serksnas and Captain Hohman of gross mismanagement in
assigning him to be Quality Assurance Manager knowing how much official
time he spends on representational Union activities. He wrote:
. . . It is ridiculous to put a person who spends practically
all his official duty time on representational duties for the
Union, into a position of such extreme importance. The job of
Quality Assurance Manager is a job that requires full time
concentration. There is no way that I can stay up to speed and
"manage" a project such as this.
On Monday, January 14, 1980, Mr. Denton wrote to the Commander in
Chief of the Military Airlift Command requesting an appointment to
discuss his assignment. He wrote that both his assignment and his Union
position were full time jobs and, as to his assignment, he stated:
. . . It is a physical and mental impossibility for me to
perform the duties they require of me and I believe that this is
detrimental to the mission and represents gross mismanagement of
the project.
That same day, Mr. Denton filed an unfair labor practice charge (not
a part of the consolidated cases at bar) to protest his assignment.
During this same week there were regularly scheduled contract
negotiations which had been ongoing for some three and one half months.
Mr. Denton was the Union's primary representative. Negotiations were
scheduled pursuant to ground rules which provided for sessions on
Mondays, Wednesdays, and Thursdays from 9 a.m. to noon and from 1 p.m.
to 3 p.m. Management expected that he would attend these sessions even
during the audits.
The audits did not go well. On Wednesday, January 16, Captain Hohman
asked Mr. Denton to reschedule one collective bargaining session so that
he could assist the audit team for several hours. He declined to do so
/2/ and told Captain Hohman that the request was making him nervous and
upset. Mr. Denton was out sick for the next two days and returned to
work on Monday, January 21. /3/ On that day, Captain Hohman counseled
him about his lack of preparation for and participation in the audits.
The following chart illustrates the amount of time Mr. Denton devoted
to his assigned job as opposed to his Union activities at Scott Air
Force Base for the 12-month period beginning February 1979: (CHART
OMITTED) /4/
On January 28, 1980, Mr. Denton returned to his worksite following
contract negotiations and, at about 4:20 p.m., gave Captain Hohman a
copy of his projected work schedule for the rest of the week. The
schedule called for Mr. Denton to spend all of his time for Union
activities. As Captain Hohman was reviewing the schedule by Mr.
Denton's desk, Lt. Col. Serksnas came by and looked at it. Both
supervisors told Mr. Denton that they thought it unfair to schedule 100
percent of his time for Union activities and none for his regular job.
Mr. Denton indicated that he thought it was fair and that Captain Hohman
would probably try to whittle the Union time down considerably. Mr.
Denton threw up his hands and said, "Hey, it's kind of close to quitting
time to be ganging up on me." Looking up at the clock and seeing that it
was 4:30, Mr. Denton stood up to get his coat and said that it was time
to leave. During this conversation Mr. Denton was grinning. /5/ As Mr.
Denton began to leave he smiled and said, "Good night, Col. Serksnas."
The Colonel replied, "Carl, I don't think I'm getting across to you. I
think I've lost my sense of humor." Mr. Denton walked out as he was
saying, "I only said 'Good night', sir." Col. Serksnas followed him to
the hallway and said, "Carl, if you don't start doing more work for me,
I'm going to take disciplinary measures against you." Mr. Denton said
nothing but continued to walk. Col. Serksnas then said, "What can you
do, file an unfair labor practice against me?" Mr. Denton paused and
said, "I'm not sure that would be the appropriate action." Captain
Hohman made an entry on Mr. Denton's 971 File, the supervisor's record
of an employee, complaining that excessive Union time was being
scheduled.
On the next day, January 29, Mr. Denton filled out his daily request
for Union time and give it to Captain Hohman who told him that Lt. Col.
Serksnas wanted to meet with them. Mr. Denton was granted his request
to have a Union representative with him during the meeting. Lt. Col.
Serksnas did all the talking during this meeting of four or five
minutes' duration. He told Mr. Denton that he wasn't satisfied with the
amount of time he had been spending on the audits and that he did not
think he was "up to speed" on the CAPS project. He wanted Mr. Denton to
prepare for the next audits and asked him to postpone contract
negotiations with the understanding that he would let him make up the
time in the future when things quieted down. He repeated that Mr.
Denton was not doing enough work for him, that he had provided
significant help for Mr. Denton from various offices, and that if he did
not pull his share, he would have to take disciplinary action against
him.
On January 31, Mr. Denton received his regularly scheduled annual
supervisor's appraisal of current performance, covering the period May
1979 through January 1980. The appraisal was prepared by Captain Hohman
and reviewed by Lt. Col. Serksnas. The appraisal is based on a grading
from "A" to "G" according to the amount of supervision the employee
would need if assigned a task with any one of the 21 characteristics
listed. Overall, the 1980 appraisal was lower than those of 1978 and
1979; of the 21 grades, 10 were lower, 2 were higher and 9 remained the
same. On the other than, the 1980 appraisal was significantly higher
than those received by Mr. Denton in 1976 and 1977. According to Mr.
Denton, nearly all computer specialists at his grade level receive all
"A's". His appraisal history is as follows: (CHART OMITTED)
Captain Hohman discussed the appraisal with Mr. Denton and criticized
him for failing to be up to speed and for not enthusiastically accepting
his new role as CAPS Quality Assurance Manager. Captain Hohman said
that it was difficult for him to be objective about the rating because
their relationship was strained by "outside happenings and outside
things". He also said that although Lt. Col. Serksnas was in agreement
with the rating, he got the impression that the Colonel thought the
rating shouldn't be as high. Captain Hohman also testified credibly
that he based his appraisal of Mr. Denton only on his actual job
performance and that he did not consider any of Mr. Denton's Union
activities in appraising him.
Discussion and Conclusions
The Complaint alleges that in violation of 5 U.S.C. 7116(a)(1),
Captain Hohman, on January 28, "admonished the President of the Union
that he had been spending excessive time away from his work because of
his duties as a Union representative and not enough time performing work
for Respondent. Similarly, the Complaint alleges that on January 28 and
29, Lt. Col. Serksnas "threatened the Union's President with the
imposition of disciplinary action if he did not perform more work for
Respondent and spend less time performing his Union duties."
The evidence does not indicate the precise words of Captain Hohman's
allegedly unlawful comments, but I have found that the substance of his
remarks consisted of telling Mr. Denton that he thought it unfair to
schedule 100 percent of his time for Union activities and none for his
regular job. On both January 28 and 29, Lt. Col. Serksnas stated that
if Mr. Denton did not start doing more work for him, he would take
disciplinary measures against him.
In order to evaluate these comments, they must be viewed within the
context peculiar to this case. Obviously, Mr. Denton was chosen for the
position of CAPS Quality Assurance Manager for two reasons. He had the
technical qualifications for the job and, quite frankly, he was the only
civilian available with both experience in the project and the
capability of performing the required duties. The record does not show
that anyone else had similar qualifications, experience, and
availability. The conflict in this case arose because, although
Respondent believed that Mr. Denton could perform his duties by devoting
between 10 and 20 hours per week, Mr. Denton believed that he would have
no time available for his official duties since his Union
representational responsibilities would entail 100 percent of his work
time every week. This conflict of views was not made any easier by the
contract which provided that, as Union president, Mr. Denton would be
allowed a "reasonable amount" of official time for his Union activities.
Mr. Denton believed that 100 percent of his time would be reasonable.
Respondent took the position that only 50-75 percent would be reasonable
in view of the time it estimated would be necessary for him to devote to
the CAPS project. As a matter of fact, during the 6-month period
beginning February 197, Mr. Denton devoted an average of 15.08 hours per
week of his time to his regular job. During this same period, he was
spending 62.3 percent of his time on Union matters. This was within the
amount of time contemplated by Respondent. However, during the next
6-month period, Mr. Denton devoted only an average of 8.68 hours per
week to his official job, which means that he was spending an average of
78.3 percent of his time on Union matters. On occasion, Union matters
took up to almost 92 percent of his time. According to the ground rules
for contract negotiations, negotiating sessions were to take only a
maximum of 15 hours per week, or 37.5 percent of a 40-hour week.
While, on the one hand, contract negotiations began in earnest in the
Fall of 1979 and Mr. Denton increased the amount of time he was spending
on Union matters, on the other hand, management was becoming more
concerned with the progress of the CAPS project as the January audits
loomed nearer and nearer. With pressures increasing on both Mr. Denton
and management, it is not surprising that matters began to come to a
head in January. The first evidence that Mr. Denton took formal,
written exception to his appointment as CAPS Quality Assurance Manager
was his letter, written at the 11th hour, on the Friday before the
Monday that the audits were to begin. On Monday, he wrote another
letter and filed an unfair labor practice charge to protest his
assignment. On Wednesday, although he was needed for the audit, he was
unavailable because of contract negotiations, and, for the next two
days, he was out with some form of illness or injury. As far as the
audits went, he was less than useful to management in his role as
Quality Assurance Manager.
Having failed to secure Mr. Denton's assistance during the first week
of the crucial audits, it is also not surprising that Lt. Col. Serksnas
and Captain Hohman took exception to Mr. Denton's request for 100
percent of his time for representational purposes. While it is true
that they had been approving in excess of 78 percent of his time for
Union matters and that, on January 28 and 29, by requesting that he
spend more time on his regular job, they were requesting that he spend
less than 100 percent on Union matters, it is clear on this record that
they were merely insisting that he adhere to the terms of the contract
and that they believed that 100 percent of his time was not "a
reasonable amount of official time".
While Mr. Denton may have been encouraged to ask for more and more
official time because all of his requests were granted by management,
nevertheless, it is not unduly speculative to assume that at some point
management would find the amount of time requested to be unreasonable.
At 100 percent, that point had certainly been reached. While the short
answer to Respondent's frustration might simply have been to deny Mr.
Denton's request, citing the terms of the contract as justification, the
tendered response was not to become intransigent but, rather to attempt
to persuade Mr. Denton to moderate his demands and give consideration to
Respondent's mission and his role in furthering it. Furthermore, in
view of Mr. Denton's work performance over the several months preceding
the audits, and his lack of preparation for and participation in those
audits, it is not surprising that an admonishment to pull his load was
forthcoming. Taking all of the evidence into consideration, I conclude
that Mr. Denton's supervisors were threatening disciplinary action only
based upon his work performance during the time he was actually on the
job. The threat was not to take disciplinary action if he asked for a
certain amount of official time. Under the circumstances, and finding
no evidence of union animus, I conclude that the statements were not
violative of the Statute and that the charges based on those statements
should be dismissed.
The Complaint also alleges that in violation of 5 U.S.C. 7116(a)(1),
(2) and (4), Captain Hohman issued a Supervisory Appraisal of Employee
Performance to Mr. Denton which was lower than previous appraisals and
that the appraisal was lower because of his requests for official time
and/or because he filed an unfair labor practice charge against
Respondent.
There is no question that Mr. Denton was engaged in protected
activities at all times material to this Complaint, nor is there any
question that Respondent was aware of this activity. The appraisal was
lower than that received both in 1978 and 1979, but it was significantly
higher than that received in 1976 and 1977. Although Mr. Denton
testified that nearly all computer specialists at his grade receive all
"A's" on their appraisals, Mr. Denton received all "A's" only once out
of the seven times he was appraised, and that was on the first one in
1973. This checkered history of evaluation militates against a finding
that the 1980 appraisal was, in any ordinary sense, remarkable. Of
equal significance are Mr. Denton's own written words that "there is no
way that I can stay up to speed and 'manage' a project such as this" and
that " . . . It is a physical and mental impossibility for me to perform
the duties they require of me." If Mr. Denton is to be taken at his own
words, it would be remarkable if his appraisal were any higher than that
actually rendered. In view of his admitted inability fully to perform
his duties, albeit for reasons he asserts are related to the time
demands of his Union office, I must conclude that there is certainly a
rational basis, exclusive of any finding as to Union animus, for the
appraisal he received in January 1980. That conclusion is buttressed by
Captain Hohman's testimony, which I find to be creditable, and his
written reasons for the appraisal, /6/ which I find to be unrebutted.
Thus, I conclude that even were the General Counsel able to show that
Mr. Denton's protected activity was a motivating consideration in his
appraisal, Respondent has shown by a preponderance of the evidence that
Mr. Denton would have received the same appraisal even in the absence of
protected conduct. /7/ However, I conclude that on the evidence as
adduced in this case, the General Counsel has not made a prima facie
case of discrimination. Respondent's concerns over Mr. Denton's
performance related only to his willingness and ability to fulfill his
duties as CAPS Quality Assurance Manager. It is beyond cavil that he
failed to perform those duties fully and adequately. The nature of the
reason for that failure was not shown to be of particular concern to
Respondent; only the failure itself was important. The fact that Mr.
Denton was engaged in Union activities was only incidental. Other than
the timing of the performance appraisal, which was coincidental, there
is no other fact of record which could warrant a finding of Union
animus. /8/ Under the circumstance, I cannot find that Respondent has
violated the Statute as alleged. I recommend that the Federal Labor
Relations Authority issue the following order pursuant to 5 C.F.R.
2423.29(c):
ORDER
ORDERED, that the complaint in Case Nos. 5-CA-381, 386 and 406 is
dismissed.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: October 14, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1A/ The General Counsel's exceptions were untimely filed and, hence,
were not considered by the Authority in reaching its decision herein.
/1/ This finding is based on testimony adduced at the hearing. I
reject inconsistent evidence tendered as an attachment to Respondent's
brief. No foundation has been laid for its receipt at this late date
nor for its substantive value as probative evidence.
/2/ Under the ground rules, either party could cancel a negotiation
session by notice to the other party.
/3/ Mr. Denton filed a claim of traumatic injury under Workman's
Compensation procedures. The record does not elaborate on the claim
other than to note its connection with these two "sick days", and to
indicate that the claim was denied with a finding of no causal
relationship between injury and employment. There was no rebuttal
evidence.
/4/ This figure is calculated by dividing the total work hours
available per month (less leave) by 40 hours.
/5/ It is not clear why Mr. Denton was grinning or smiling during
this episode. He described the situation as "very tense, tight" and
that may account for it. Captain Hohman was given the impression that
Mr. Denton was aware of the fact that because it was quitting time he
could just get up and walk out. Lt. Col. Serksnas thought that Mr.
Denton was not taking him seriously.
/6/ Joint Exhibit 4.
/7/ Cf. Internal Revenue Service and National Treasury Employees
Union, 6 FLRA No. 23 (June 17, 1981).
/8/ I do not find the comment of Lt. Col. Serksnas on January 28,
1980, to be evidence of Union animus. That comment, "What can you do,
file an unfair labor practice against me?", was an isolated incident
provoked by Lt. Col. Serksnas' impression that Mr. Denton was going to
use the collective bargaining agreement's provision on official time to
avoid engaging in any of his regular on-the-job duties. In any event,
the appraisal was written by Captain Hohman whose testimony I find
creditable and against whom I find no evidence of Union animus.