15:0932(175)CA - Defense General Supply Center and AFGE Local 2047 -- 1984 FLRAdec CA
[ v15 p932 ]
15:0932(175)CA
The decision of the Authority follows:
15 FLRA No. 175
DEFENSE GENERAL SUPPLY CENTER
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2047, AFL-CIO
Charging Party
Case No. 34-CA-30048
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision and a
supporting brief, and the Respondent filed an opposition thereto.
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 recommended Order. /1A/
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 34-CA-30048 be,
and it hereby is, dismissed.
Issued, Washington, D.C., August 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
John W. Kyle, Esq.
Bruce D. Rosenstein, Esq.
For the General Counsel
Karol V. Holmes,
For the Charging Party
William C. Walker, Esq.
For the Respondent
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
This proceeding arises under the Federal Service Labor-Management
Relations Statute (5 U.S.C. 7101 et seq.) and the Final Rules and
Regulations issued thereunder (5 C.F.R. 2423.14 et seq). It is based on
a Complaint issued by the Regional Director of Region III, Federal Labor
Relations Authority, alleging that Respondent engaged in a campaign of
interrogation, intimidation and harassment designed to discourage
employee June Purser from exercising her Section 7102 right to function
as a steward for Local 2047.
Findings of Fact
Background
The American Federation of Government Employees, Local 2047, AFL-CIO
(the Union) represents bargaining unit employees at the Defense Supply
Center. Purser had been employed by Respondent for almost eight years
when in April 1981 she was transferred to the Technical Support
Division, Procurement Quality Assurance Branch, Directorate of Technical
Operations, to work as a Quality Assurance Specialist. She joined the
Union in February of 1982, was appointed Union steward in March and
began her representational duties in April. She was one of four
stewards in the Directorate.
When Purser attempted to act as a newly appointed steward (and a new
Union member), the relationship between Union officers and their
supervisors was governed by a Master Agreement and a Local Agreement.
Article 3, Section 4 of the Master Agreement between the Defense
Logistics Agency and the DLA Council of AFGE Locals provided that:
Each DLA Council Local official/steward will notify his/her
supervisors each time representational duties begin and end in
order that proper time and attendance records may be maintained
and to permit supervisor assessment of the reasonableness of
official time. /1/
The Local Agreement (Jt. Exh. 1, at page 9) added the requirement
that:
Union representatives shall notify their immediate supervisor
when leaving their work area on representational matters and upon
entering another work area, notify the area supervisor.
Compelling workload and the urgency of need for representation may
be a determining factor in leaving or entering the work areas.
In addition, on July 31, 1981, OPM had published FPM Letter 711-61.
It detailed the record-keeping requirements imposed on Federal agencies
in tracking the official time and other costs associated with Union
representational functions. Agencies were instructed to keep records in
the following categories: (1) Basic, Renegotiation or Reopened
Negotiations; (2) Midterm Negotiations; (3) On-going Labor-Management
Relationships. Examples given for the latter were labor-management
committees, consultation, walk-around time for OSHA inspections, FLRA
proceedings, labor relations training for union representatives, and
formal and Weingarten-type meetings.
That directive was to have been implemented by January of 1982,
although it appears clear that it was not in place when the events which
gave rise to this proceeding occurred. Sometime in early May, Robert
Costner, Director of Technical Operations, instructed his supervisors,
including Billy K. Edwards, Purser's immediate supervisor, that certain
questions were to be asked of Union stewards when they requested
official time. Thus, in addition to asking stewards where they were
going and when they expected to return, supervisors were to ascertain
whether the steward would be engaged in negotiations, representing a
"client" or involved as a witness in some proceeding. This was a
claimed response to Costner's concerns about both the FPM Letter and
abuse of official time, and it encountered resistance from the Union.
/2/ While it is not clear what form this resistance took, or whether and
how the matter was ever resolved, a meeting between Costner and various
Union agents, including President Earl and Steward Purser occurred on
May 19. So far as this record shows, no Union agent except Purser
encountered any difficulty and by her own testimony she was not a
particularly active one.
It was in this context that the alleged unfair labor practices
occurred. It was complicated by Purser's disposition to be unclear
about the nature of her representational duties, and supervisor Edwards'
tolerance of such conduct, when she left this office. I credit her
testimony that she would routinely leave her work with the explanation
that she had "union activities" or "representational functions" to
attend to, and I specifically reject his claim that he asked Costner's
questions and quietly suffered her defiance of his refusal to excuse her
on several occasions. It is also clear that she resented and feared
what she perceived as management's unwarranted intrusions into her right
to absent herself from work without any specific explanation as to the
nature of her representational mission.
The Alleged Unfair Labor Practice
(1) The interrogation on April 26, 1982.
On April 22, Purser was called by a Union Vice-President, who
explained that the person designated by the President to attend the
weekly management review staff meeting could not attend, and that she
herself could not attend, and asked whether Purser could attend that
morning. /3/ She replied that she could and then informed Branch Chief
Edwards that she "needed to leave work to go on union duties." He made
no reply.
Purser attended the meeting, which was chaired by Captain Plante and
attended by various Directors including Mr. Costner. Near the end of
the meeting, Captain Plante asked Purser (who had previously attended
such meetings, but never as a Union representative) if she was
representing President Earl and the Union. She said she was and the
Captain asked whether she had any comments to make on behalf of the
Union. She had none. Mr. Costner was in attendance, 20 to 25 feet from
Purser, and two chairs to the left of Captain Plante.
On April 26, Branch Chief Edwards called Purser to his desk and asked
what she was doing at the last staff meeting. She replied that she had
told him she had "union duties" that day and asked what the problem was.
He informed her that Costner had told him to ask the question. She
then asked if Costner had a problem with her attendance and he replied
that he was told to ask the question and that was all he knew.
On these facts, the General Counsel alleges that Edwards unlawfully
interrogated Purser. The record is admittedly unsatisfactory concerning
the purpose of the inquiry. Edwards gave various and conflicting
explanations so as to leave his real purpose essentially unexplained.
On Purser's credited version that she simply requested time for union
duties and that he did not respond, there is the strong suggestion that
Edwards, when confronted with some comment or inquiry from Costner about
her presence, was ignorant of the matter and embarrassed at his
inability to account for her presence. Whatever in fact happened, I
fail to comprehend why Edward's mere inquiry is alleged to be unlawful.
He, of course, had every right to know how she made use of a grant of
official time as a matter of law and under the contract.
(2) The May 5 interrogation concerning Purser's participation in
gate-closing negotiations.
The Master Agreement (Jt. Exh. 2 at 4) authorizes official time for
negotiating supplements and mid-term proposals. A meeting was scheduled
for April 30 to discuss the closing of security gates and a reduction in
guard personnel. On that day a Union Vice-President asked Purser to
attend the session. According to the credited testimony of Purser, she
then informed Edwards that she "had to be away from my work site on
union business." Once again, he did not respond. She attended the
session and, on May 5 was called to Edward's desk. He told her they had
to get together to establish some guidelines for the type of Union
functions she would be allowed to attend. When she asked what the
problem was, Edwards responded that Costner had questioned whether she
was authorized to attend the gate-closing negotiations. According to
Edwards' uncredited version, she had originally told him she was not on
the negotiating team, he refused her request, and she nevertheless
attended. There were no repercussions except for the above discussion,
which Purser perceived as indicating that Costner was spying upon her.
Nor were any guidelines agreed upon or established.
Again, we are presented with a situation where Costner checked with
Edwards to determine whether the steward in his unit was authorized to
attend a representational function. Crediting Purser, as I do, it
follows that Edwards had not the slightest idea where Purser was on the
occasion of the gate-closing negotiations. She didn't tell him and he
didn't inquire. Consistent with what I conclude was his pretense that
he had specifically refused permission for Purser to attend the session
after she acknowledged she was not a negotiator, he followed up on
Costner's inquiry by telling Purser of the report that she attended the
meeting and of the need to establish guidelines for such attendance.
Just as he failed to follow through with any discipline or even reproach
for her claimed defiance of his order that she was not to attend, he
failed to follow through on his request that they get together and
establish guidelines. She continued to do business as usual without
restriction except for such inhibitions as arose from her growing
concern that she was being singled out and watched in her effort to
carry out her representational responsibilities.
I conclude that Edward's question about her attendance at the meeting
was devoid of any illegal aspect, focusing as it did on his
responsibility to monitor official time.
(3) The May 17 removal of Purser's time card and flexsheet by Mr.
Costner, Director of Technical Operations.
On this day, once again, Purser simply informed Edwards that she had
to go to the Union office for a short period of time. She then passed
Costner in the hallway on her way to the Union office. According to
Costner it was in a place he did not normally see her, and he wondered
whether her time was being "costed" correctly. Upon arriving at the
Union office, Purser was told that a co-worker had called to report that
Costner was in her work area asking about her whereabouts, and that
there was concern about some action being taken against her. When she
returned she was informed by a secretary that Costner had requested her
time card and flexsheet. Later that afternoon Purser asked Edwards
whether they had been returned. He said they had not, and she asked
what Costner wanted with them. Edwards said he did not know. The forms
were not returned to her office until the following day.
Costner could not recall going to Purser's work site and speaking to
Edwards, but acknowledged that he sent his secretary to find out "how
her time was costing," and that the secretary returned with the time
cards and flexsheet and told him that they would not provide the needed
information, which would be on the labor cost card. Costner testified
that he then dropped the issue.
If this record establishes anything clearly, it is that Costner was
concerned about policing the appropriate use of official time and
keeping accurate records thereof. It is also clear, from the credited
testimony of Purser, that Edwards was not careful about such matters, as
he regularly released her upon the basis of a request which would not
exclude a purpose of attending to internal Union business. While Purser
on this occasion went to the Union office to work on a grievance, I see
nothing untoward in Costner's decision once again to check on events in
Edwards' office. He had every right to determine whether Purser was in
fact "on his clock" or on official time when he saw her away from her
usual duty station.
(4) The allegation that Costner, on May 20, unlawfully interrogated
Purser about her motivation for becoming a steward and stated that
"certain questions would have to be answered before any steward could be
released to perform union business."
Three days after the time card check, Costner called Purser into his
office and took up the business Edwards had dropped on May 5: he said
that he thought that "we needed to establish some guidelines" for what
kind of Union business she would be allowed to attend. He added by way
of explanation that he had learned that she had been attending functions
he did not think she was authorized to attend. She responded that the
collective bargaining contract covered the kinds of union business a
steward is allowed to attend.
Costner told Purser that he had instructed his supervisors to ask
specific questions of stewards before releasing them for
representational duties: where they were going and for what purpose,
and whether they were to represent an individual or be a witness, (or
undoubtedly, to negotiate). As Purser's testimony makes clear, she felt
he was entitled to know no more than the contract called for-- notice
that she had Union duties to perform. She expressed her belief that
this violated the contract and he replied that that was a matter of
interpretation. She apparently understood his remarks as meaning she
could not represent employees so long as she stood on her right not to
answer such questions. Thus, she told Costner he was putting her in an
awkward position because she, as a steward, had an obligation to look
out for the interests of the employees "and there were things going on
in our Directorate that I personally knew about where the Union should
be involved." He then asked her what kinds of things she was talking
about, and she reported, "she gave him specific examples of things that
I thought the union should be involved in and why a steward was
necessary in the directorate." /4/
I found Costner also to be a convincing witness. It is
understandable that he recalled no discussion of Purser's motivation for
being a steward. Even her own version of their exchange does not
support the claim that he interrogated her about her motivation as such.
Rather, it appears that Purser viewed his insistence upon her
disclosure of the nature of her representational duties as an unlawful
obstacle to her discharge of those responsibilities, and that, feeling
caught between her obligations to her Employer and the Union, she
elaborated upon the need for a steward in the Directorate. There is no
indication that the meeting was not cordial, nor is there any indication
that he did anything more than listen "patiently" to her examples of
problems which needed to be addressed and then promised to look into
them. Perhaps, as her version on cross-examination indicates, he took a
more affirmative role in asking for specific examples of the general
need she had posed. But there is no evidence that he engaged in an
unlawful effort to pry into union affairs or to extract from her the
motives animating her stewardship. There is no suggestion whatever that
he belittled or disparaged her representational functions, indicated
that he disapproved of them or in any way sought to dissuade Purser from
such work. On the contrary, he sought to allay her fears. /5/
If I understand the General Counsel's theory for this allegation, it
is that Costner asked some questions unlawfully probing Purser's reasons
for being a steward. So far as this record shows, he picked up on her
examples of why a steward was needed in his Directorate, expressing (as
one would hope he would) and, interest in such matters, and promising to
look into them. That strikes me as a positive approach to labor
relations, and something less than a remote shirt-tail cousin of classic
interrogation into union activities.
I similarly fail to understand the companion allegation that Costner
violated Sec. 7116(a)(1) by "stating that certain questions would have
to be answered before any steward could be released to perform union
business." This allegation, as elaborated on brief, seems to be a hybrid
derived from rather discrete types of classical labor law violations.
An element pressed in argument is that Costner was thus keeping Purser's
union activities under surveillance. This term, descriptive of spying
on internal union affairs of no legitimate concern to the employer, such
as union meetings or organizational activities, is of very questionable
usefulness in the attempt to analyze the propriety of management efforts
to monitor overt representational functions covered by official time.
Aside from the fact that such activities are open and notorious and
usually involve management, they are otherwise of direct concern to
management, which has the duty rather than to mere right to guard
against abuse of paid time. Another element seems to be that Respondent
attempted to discourage Purser's exercise of her right to represent
others by placing these constraints on her. But there is no evidence
that any such effort focused on her. Costner laid down the rules in his
Directorate, which embraced four stewards, and had in fact met on the
day before this meeting with the Local President and other Union
officials about this very subject. There is no evidence that
application of the rule was limited to Purser. The contention that the
rule was designed to restrict or prevent representational activity in
any event flies in the face of contract provisions which clearly
recognizes management's right to such information as is necessary to
determine whether official time requested or used is reasonable, and
even whether release itself is warranted after weighing the work needs
of the moment against the representational need.
At this point the argument imports another element: that of the
unilateral change in a term and condition of employment established by
practice inconsistent with a once-governing rule, regulation or
contract. While the General Counsel did not seek to amend the Complaint
and allege as unlawful the promulgation of the instruction to ask such
questions of stewards, he nevertheless appears to argue that such
question could not legally be asked because the contract provisions had
been modified by a consistent practice of excusing stewards on no more
than a bare assertion that they had union activities to perform, coupled
with an estimate of the needed time. The General Counsel is right as to
the practice in the Directorate, although the record is silent as to the
unknown balance of the unit of recognition. We therefore do not know
whether there was a consistent, prolonged and widespread practice which
could change a declared policy or, arguably, amend a contract. In such
circumstances the question whether Respondent was free to insist on
answers to its question before it released stewards is one of contract
interpretation, and there exists no background evidence to taint
Respondent's imposition of the requirement on Purser.
(5) The allegation that Supervisor Edwards, on June 2, unlawfully
placed Purser in AWOL status for her attendance at an arbitration
hearing.
On this day, Purser was asked by President Earl to attend an
arbitration hearing, both as an observer, to learn how such
representation is provided, and as a stenographer, to make a record.
/6/ Notwithstanding Costner's orders about questions to be asked of
stewards, Purser simply told the acting supervisor substituting for
Edwards that she was leaving for Union duties (or representational
functions) and was asked no questions. She attended the arbitration
hearing for about an hour and one half, when it broke for lunch until
1:00 p.m. Shortly before that hour she told Edwards she would be gone
for about one hour, and returned to the hearing. Edwards likewise asked
no questions. /7/ Purser then returned to the arbitration proceeding,
which never developed into a hearing. (Rather she sat and talked to the
arbitrator and his wife while the Union attorney and the management
representative haggled in the hallway over a settlement).
At about 2:00 p.m. Purser returned to work and was confronted by
Edwards' demand that she choose between Annual Leave and Leave Without
Pay. She responded that she was on official time and promptly arranged
for Union President Earl and another official to plead her cause.
Edwards remained adamant for reasons which are not clear on this record.
On the following day, apparently having learned that Purser was also
absent for the morning arbitration session, Edwards increased the charge
to leave to 2 1/2 hours, and changed it from LWOP to Absent Without
Leave. The latter change was made on instructions received from
Costner.
The very next day, two management representatives, the Union
President, Vice-President, Chief Steward and Purser met before General
Pedroli, the Commanding Officer, to discuss the validity of the charge
to AWOL for attending the arbitration. /8/ President Earl said that
Purser was present at the arbitration at his request. Management
representative Walker replied that he could see no reason warranting
Purser's attendance. A discussion of managements' right to question
stewards ensued, with the Chief Steward opining that it was essential
for the Union to have the untrammeled right to determine the identity
and number of representatives necessary to carry out particular
representational functions. While such contention may appear startling
in the abstract, it is less than shocking where three Union
representatives handled this issue before the General. When Walker made
the point that the Union, as well as management should give notice of
who would take part in an arbitration (or MSPB) proceeding, there was
further discussion concerning the standards management would apply in
treating such notification as a request for permission to attend.
Finally, General Pedroli said that there should be further discussion
between the parties in an effort to resolve their differences over the
contract, and ruled that Purser's time would not be charged to AWOL.
Again, I am at a loss to understand why this dispute over the
appropriate use of official time should rise to the level of an unfair
labor practice. If it was a sharp departure from a practice of
permitting stewards to attend arbitration proceedings as on-the-job
training in the discharge of representational responsibilities, or even
simply as skilled stenographers capable of furnishing the Union with a
verbatim transcript, there is no indication that Respondent's conduct
was designed to frustrate Purser in the pursuit of her right to
represent others. It was but another example of her persistent (if not
obstinate) exercise of her right to attend to "representational" matters
with no questions asked. When finally confronted with a reaction by her
supervisor which contained the threat of discipline and a charge to
leave, she protested. She immediately got representation by the Union
president, as well as another official, before her supervisor, and got
an audience before the Commanding General on the very next day. The
General promptly reversed her first and second or third level
supervisors on the leave issue. I find here not simply the absence of
evidence of a design to interfere with her rights, but the presence of
positive evidence that Respondent was more than hospitable to the Union
and anxious to resolve the official time dispute.
(6) The conduct of Leon Jones, Chief of the Technical Support
Division, in allegedly interrogating Purser about the use of official
time and making the statement to her that, "when you step in the line of
fire you might get shot."
This encounter occurred on June 16, in Jones' office. Jones was
apparently her second level supervisor, superior to Edwards and
subordinate to Costner, although his testimony indicates his Assistant
Chief occupied the second level and he the third. Much is made of the
issue whether Jones summoned Purser to his office and there uttered his
words amid the trappings of power. It would presumably have been less
intimidating had he taken the unusual step of journeying through two
levels of supervision to her work site to have the conversation
described below.
I find this allegation most troublesome in terms of deciding
precisely what happened and in what context. I find Jones a credible
witness and also, am convinced that the versions of the incident related
by each of them are in large measure true. Where they diverge, I tend
to credit Purser because the incident was much more memorable to her.
There is direct conflict regarding who initiated the meeting. Jones
testified that Purser sought him out, being very anxious about being
"caught between" the two institutions she served, and the prospect that
faithful discharge of her duties as steward would damage her promotion
prospects. She testified that she was called in and asked about her use
of official time on the previous Thursday. I find that he did inquire
about her time, but that much of the ensuing discussion had to do with
her apprehensions, generally about the conflict with supervisors (and
their lack of trust) generated by her Union role and specifically with
her being caught in the dispute between managers determined to know
about proposed use of official time and a Union which opposed answering
any such inquiries. Even more particularly, she expressed her concern
that he was planning to place her on AWOL again, reminding him that it
was improper action on his part when he did so on June 3, which, she
added, was not the first effort to intimidate her since she joined the
Union and became a steward. Jones, who had already assured her that her
duties as a steward would not hurt her career, responded that she should
not take such actions as the AWOL incident as having been directed at
her personally. She replied that she took it very personally when
charged leave for attending an authorized representational function,
adding that it constituted harassment. He then told her, "When you step
in the line of fire, you might get shot." /9/
Such a statement is quite susceptible of the interpretation that
Union representational activity is a dangerous enterprise. Divorced
from its specific and immediate context, it could reasonably be given no
other meaning. Here, they were generally discussing Purser's fears that
managements' efforts to account for her use of official time, and her
resistance, were causing conflict with her supervisors and threatened
adversely to affect her performance appraisals and promotion potential.
She did not dispute Jones' assertion that there was much discussion of
her anxiety at being caught between an employer which insisted upon some
accounting of official time forays and a Union which believed that
management could not properly pry into the nature of representational
duties. Nor is it denied that he sought to allay her fears, and to
assure her that stewardship would not negatively affect her employment.
By her own account, Jones' remark was a direct response to her charge
that she had every reason to take personally (and perhaps, as harassing)
his decision to place her on leave (as well as the prospect that he
might do it again). The leave issue, of course, arose in connection
with the dispute over the conditions in which official time could be
used. His remark is therefore at least equally susceptible to a lawful
interpretation: that her involvement in the dispute and her
unwillingness to disclose the purpose of her representational missions
placed her in the line of fire, vulnerable to the same consequences - a
further charge of leave and a continuation of the pressures which attend
her position and that conflict.
I conclude that the remark was ambiguous, that it occurred in a
discussion centered on conflict with supervisors arising from a dispute
over the circumstances in which official time could properly be used,
and that it stands alone as the only incident which even arguably
indicates hostility to the Union as such. One cannot ignore the fact
that Respondent appears to have been wholly cooperative in other
respects, that no other steward appears to have encountered any
difficulty, and that the alleged effort to discourage Union
representational activity is based solely Respondent's insistence upon
some measure of accountability in the official time process. It is
difficult to attribute an illegal purpose to conduct with surrounds
Respondent's discharge of its responsibility to police the use of
official time, in the absence of evidence strongly tending to buttress
such an allegation. I am persuaded that General Counsel has not here
met the burden of establishing, by a preponderance of the evidence, that
Jones unlawfully threatened Purser.
(7) The conduct of Edwards, on August 20, in asking Purser whether
she knew she enjoyed special consideration status for a promotion and,
if so, whether she thought such status was warranted.
At this time Purser was under consideration for a promotion. The
Office of Civilian Personnel had inadvertently failed to consider her
for a vacancy in January of 1982, and had therefore placed her name (and
that of one Mary Jones) on a special register. This action permitted
management to consider and to select either of them before resorting to
the regular merit promotion register, but did not require a preference.
A list of questions to be asked those interviewed was drawn up by
Edwards and submitted to Jones. Jones considered it inadequate, and
supplemented it with further questions, including those at issue. Each
was asked whether she knew she was on a special consideration register,
and if so, whether and why she believed she warranted such
consideration. Edwards, who was instructed to ask such questions by
Jones, testified that he asked out of curiosity - that he did not know
the reason for such status. Jones, who testified the questions were
designed to give notice of special consideration status, stated that
they were "more or less standardized questions . . . (he) . . . would
expect any supervisor to ask."
General Counsel contends these questions were, in the light of
Respondent's earlier conduct, and of the fact that such status was
already known to Purser and her supervisors, so as to give the questions
no legitimate purpose, a further effort to harass Purser by suggesting
she would not be automatically given special consideration. (Purser was
not in fact selected, although that is not alleged as a violation). If,
as I cannot determine on this record, the question was "nonsensical" as
General Counsel asserts, it was equally nonsensical to put it to Mary
Jones, and I am required to conclude that Mary Jones was subjected to
equivalent treatment not out of valid purpose or innocent mistake, but
to provide cover for a scheme to intimidate Purser. This approach,
coupled with the presently irrelevant but soundly documented evidence of
Purser's excellent work might argue that her nonselection violated Sec.
7116(a)(2), but standing alone it seems a slim reed indeed on which to
construct a veiled threat. Without the support of a finding that Purser
was otherwise the victim of a campaign of steady illegal harassment,
this allegation is based on weak suspicion at best.
Recommendation
Having concluded that none of the allegations is supported by a
preponderance of the evidence, I recommend that the Complaint be
dismissed in its entirety.
JOHN H. FENTON
Chief Administrative Law Judge
Dated: December 1, 1983
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1A/ See e.g., Department of the Air Force, Air Force Logistics
Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, 10 FLRA
88 (1982); Federal Mediation and Conciliation Service, 9 FLRA 199
(1982); and Harry S. Truman Memorial Veterans Hospital, Columbia,
Missouri, 8 FLRA 42 (1982).
/1/ Jt. Exh. 2, at page 4. The Master Agreement provided for
official time, as well as travel and per diem in defined circumstances.
/2/ Costner specifically identified as abuse the use of multiple
Union representatives where only one was required.
/3/ Article VII, Section 4 of the Local Agreement (Jt. Exh. 1, page
10) provides that the "President or his designated representative shall
be invited by the Employee "to the weekly staff meetings."
/4/ Purser gave a number of versions of this exchange. Thus, on
cross-examination Purser related the matter in a manner which made
Costner appear to be more intrusive. Thus, after observing the
perceived need for a steward, she says that Costner asked her what was
happening in the Directorate . . . that we need a steward? Why do you
think we need a steward, . . . ? What kinds of things are going on . .
. like, (she said) he didn't know." In her memorandum prepared that day
to record the incident she stated: "I went to Mr. Costner's office
today, at his request, to discuss my position as a Union steward. I
explained to him my reasons for becoming a steward; he listened
patiently and told me he would check into the things I had told him."
This makes it sound like he reacted courteously, so as not to suggest he
was uninterested in the matters of concern to her.
/5/ As her memorandum of that conversation says, when his insistence
that answers to his questions would be a prerequisite to release was met
with her insistence that such question should neither be asked by
management nor answered by stewards, "(w)e parted with the understanding
that each of us would do what we had to concerning union
representational duties."
/6/ Undenied hearsay establishes that the practice was to permit
observers.
/7/ I do not credit Edwards' claim that he asked her the three
questions, denied her request and suffered her defiance until she
returned. Having chosen to credit Purser, there of course exists no
basis in this record for Respondent's subsequent action. The sense of
those events is that Edwards would not disclose to Costner that he
failed to determine the nature of her representational work, i.e., to be
a stenographer/observer.
/8/ I refer to those numbers, and the quick response to this
controversy by the Commanding General, because they are in my judgement
further evidence that Respondent is accommodating rather than hostile to
the Union. It is interesting to note also that on May 21 Edwards had
refused Purser permission to attend a Union stewards' meeting, and was
apparently promptly called into Costner's office and reversed. While
this incident was drawn out on General Counsel's examination of Edwards
it was, unsurprisingly, not alleged as a violation. But it is
additional evidence respecting an issue which is at the bottom of this
proceeding: was Costner really directly engaged in "surveillance" of
Purser's union activities, or was he, in fact, doing so indirectly by
rather closely monitoring Edwards' compliance with his instructions
regarding the use and misuse of official time?
/9/ Jones denies making this statement. However, his own version,
while less graphic, is to the same effect. Thus, he said that he was
trying to tell her she would get along better with the supervisors if he
would be more relaxed and confident in her dealings with them, and that
he told her that people who are "prone to continually seek out conflicts
. . . get a reputation of stepping in the line of fire."