[ v18 p532 ]
18:0532(71)CA
The decision of the Authority follows:
18 FLRA No. 71
DEFENSE MAPPING AGENCY
HYDROGRAPHIC/TOPOGRAPHIC CENTER
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3407, AFL-CIO
Charging Party
Case No. 3-CA-40073
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 practice alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
Charging Party filed exceptions to the Judge's Decision. /1/
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, /2/ the Authority hereby adopts
the Judge's findings, conclusions and recommended Order.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-40073 be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 21, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Mr. Joseph D. Fitzgerald
On Brief: John E. Perruzzi, Esquire
For the Respondent
David B. Scholl, Esquire
Peter A. Sutton, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY, Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /3/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., concerns whether Respondent violated the Statute
by charging the Union's chief negotiator 15 minutes AWOL for being 23
minutes late for a negotiating session scheduled for 30 minutes. This
case was initiated by a charge filed on November 21, 1983 (G.C. Exh.
1(a)), which alleged violations of Secs. 16(a)(1), (4) and (B) (sic) of
the Statute; and by a first amended charge filed on January 25, 1984
(G.C. Exh. 1(c)), which alleged violations of Secs. 16(a)(1), (2) and
(8) of the Statute. The Complaint and Notice of Hearing issued on
February 8, 1984 (G.C. Exh. 1(e)); the Complaint alleged violations of
Secs. 16(a)(1), (2) and (8) of the Statute; and set the hearing for
March 6, 1984, pursuant to which a hearing was duly held on March 6,
1984, in Washington, D.C., before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues, and were afforded the
opportunity to present oral argument which each party waived. At the
close of the hearing, April 6, 1984, was fixed as the date for mailing
post hearing briefs which time was subsequently extended, upon motion of
Respondent, for good cause shown to April 20, 1984, which have been
carefully considered. Upon the basis of the entire record, /4/ I make
the following findings and conclusions:
1. Mr. Patrick Weed is employed by Respondent as a GS-11
Cartographer in the Geodetic Positioning Division of the Geodesy and
Surveys Department (Tr. 9). Mr. Weed has served as President of
American Federation of Government Employees, Local 3407 (hereinafter
referred to as the "Union"), since 1979 (Tr. 9). Mr. Weed states that
on September 2, 1983, he was notified that thereafter he would be
allowed only two hours per day, plus four additional hours per week
(total of 14 hours per week) for Union activities; that prior to
September 2, 1983, " . . . I was full time. As many hours as I wanted
to put in." (Tr. 14). Mr. Weed " . . . set the time to meet with
employees between the time from 9-11. They curtailed my time and
management wants to have a meeting between the 9-11 time, (sic) kind of
resisted. I would rather meet any other time besides the time 9-11."
(Tr. 14-15).
2. Negotiations had been scheduled for 10:30 a.m. on September 29,
1983 (Tr. 35, 36, 37) and sometime prior to 9:00 a.m. on September 29,
1983, Ms. Caroline Leroy, currently Deputy Department Chief, Geodesy and
Surveys Department, and on September 29, 1983, Chief of the Geodetic
Positioning Division and then Mr. Weed's third line supervisor and
Respondent's chief negotiator in the negotiations in question, asked Mr.
Weed, normally the Union's chief negotiator, " . . . if I was going to
be at the negotiating table" (Tr. 37) and Mr. Weed responded, " . . .
no, I was not . . . I first said I was not going to be at the
negotiating session . . . I meant that I was not going to be at the
negotiations at 10:30." (Tr. 37). Mr. Weed did not tell Ms. Leroy that
he was sending anyone else to the negotiations and Ms. Leroy assumed
that, as Mr. Weed would not be present, negotiations that day would not
go forward and Respondent did not appear. Mr. Weed sent Messrs. John
Dalzell, Chief Steward, and Larry Blevins, Vice President, to the
designated place for negotiations but Respondent did not show up (Tr.
35-38).
3. Mr. Weed on September 29, 1983, delivered a letter addressed to
Ms. Bonnie J. Carroll, Labor Relations Specialist, which was received at
4:44 p.m. (G.C. Exh. 2, Tr. 76). In his letter, Mr. Weed stated, in
part, as follows:
"3. Please be advised that I will be available at 0830 hours
on September 30th to start these negotiations at a place of your
choosing upon the following terms.
a) If these negotiations continue beyond 0900 then I will
expect a compensatory minute credit to my illegally approved two
hour period, to be used at my discretion.
b) . . . Again I will be on sick leave Friday (September 30)
afternoon." (G.C. Exh. 2).
4. Ms. Carroll was uncertain whether she was in the office when Mr.
Weed's letter arrived and was date stamped on September 29 (Tr. 76), as
this was beyond her scheduled work day and Ms. Leroy had left her office
by 4:44 p.m. (Tr. 67). Accordingly, on the morning of September 30, Ms.
Carroll first took steps to obtain a conference room (Tr. 76-77) and
then called Ms. Leroy at 8:00 a.m. and informed her of Mr. Weed's
request to start negotiations at 8:30 a.m. that day. Ms. Leroy
indicated that she would be prepared to negotiate at 8:30 a.m. and that
she would notify Mr. Weed.
5. Ms. Leroy testified that she, ". . . Immediately . . . walked
over (her office and Mr. Weed's were both on the 3rd floor of Aber Hall)
and talked to Mr. Weed." (Tr. 68). Mr. Weed places the time as
"approximately 8:10" (Tr. 13). Ms. Leroy testified that the following
transpired:
"I told Mr. Weed that we agreed to the negotiation session at
8:30 . . . but that we would not go beyond 9:00 if he wanted to be
compensated for that time after 9:00 a.m. as requested in the memo
. . . ." (Tr. 68).
6. Mr. Weed testified that the following transpired:
". . . Approximately 10 minutes after 8, she came back to me
and said that we can meet at 8:30 on the fifth floor Conference
Room of the Geodesy and Surveys Department.
. . . .
"Q. Did you ever reply to her?
"A. Yes. At this time, I requested to leave the area right
then because I told her that I needed to get materials out of my
office--
. . . .
"A. She denied my request and I asked her to use the phone if
I could at least call someone to at least be on the negotiating
team . . . and she told me that I am not suppose to use the (sic)
for Union business except between 9-11.
"Therefore, I could not use the phone.
"Q. What, if anything, happened after that?
"A. After that, she walked into my second line supervisor's
office, Mr. Norman Reece, and told him that he could release me--
and she pointed to a clock-- when the clock says 8:30.
"You may release Mr. Weed for union business." (Tr. 15-17).
7. Mr. Reece, Branch Chief Department of Geodesy and Mr. Weed's
second line supervisor, testified, in part, as follows:
"Q. Did you have a discussion with Ms. Leroy and Mr. Weed that
morning?
"A. Not with Ms. Leroy and Mr. Weed. I did have-- Mr. Weed
informed me that he had a meeting set up for discussion and
negotiations with Caroline Leroy and asked my permission to leave
at that time for this negotiation.
"Q. Did you grant that permission?
"A. Yes I did.
"Q. What time did Mr. Weed depart?
"A. Somewhere between 8 and 8:30, Mr. Weed requested
permission to leave for an 8:30 meeting. I granted that request
at that time. However, I don't know exactly what time he left
because I did not see him as he left the office.
"But as a normal thing, he would ask me a few minutes ahead of
time and I would say yes, okay, the leave is granted and at that
time, he should allow for the time it takes him to get from the
office to the place of the meeting.
"I never restricted him to the minute leaving. So I don't
really know exactly what time he left that morning." (Tr. 60).
8. Mr. Weed testified that, following his conversation with Ms.
Leroy, the following transpired:
"A. After that I waited until the clock that she said said
8:30. I made a phone call to Mr. Larry Blevins who is the Vice
President of the union and asked him if he could accompany me on
these negotiations.
"He had to get approval from his supervisor which I assume he
got right away because he put me on hold and got back and said,
yes, I will meet you.
"I asked him to meet me in the union office.
"Q. What happened after that?
"A. After that, I left my office and took the elevator to the
second floor of Aber Hall, went across the crosswalk and took the
elevator to the fourth floor of Erskine Hall and I went into my
office (Union office).
"Mr. Blevins was already there.
"Q. Was anybody else present?
"A. Yes. Mr. John Dalzell was also present. He is the Chief
Steward for AFGE-Local 3407.
"Q. Upon arriving at the union office, what, if anything
occurred?
"A. Okay. When I got to the union office--
"Q. What time did you get to the union office?
"A. I got to the union office approximately 20 minutes of
nine, by the union office clock. I had the night before worked on
this reorganization and I had papers laid on every table on every
desk.
"I had many PD's and many regulations that I was going through.
I noticed the clock was just a little bit after 8:40 and I asked
Mr. Blevins-- I said I advised Ms. Leroy that I would be a little
late for these which I did in a previous conversation.
"Would you go up and tell them that I will be right up. I want
to get these papers in some kind of order so we can negotiate.
"Q. Did he reply?
"A. Mr. Blevins said, okay, I will meet you up there. He went
up to the negotiations.
"Q. What happened after Mr. Blevins left the office?
"A. After Mr. Blevins left the office, I was sorting papers
and putting them in folders and Mr. Dalzell was helping me and I
said well, look, let's just put them in some boxes and I will go
before (sic) I am suppose to get a briefing up there and the
briefing will probably take about a half an hour and while I am
being briefed, I can lay my papers out.
"He assisted me in putting these papers together.
"Q. Then you proceeded--
"A. Then I proceeded to the elevator, took it to the fifth
floor and arrived at the Geodesy and Surveys Conference Room at
approximately 8:45.
"Q. Was anyone else present when you arrived at the conference
room?
"A. When I arrived at the conference room, Ms. Bonnie Carroll
from Labor Relations, Ms. Caroline Leroy . . . and Larry Blevins .
. . were present.
"Q. Okay. What transpired when you arrived?
. . . .
"A. Yes. I went to lay out my papers and I asked Ms. Leroy
why didn't she start her brief while I lay these papers out.
"Q. Was there any reply?
"A. Yes. Ms. Leroy stated that my briefing is that I am
formalizing everything that has been informal for the last three
years.
"She had an open book with papers in it, like a folder. She
closed that and walked out of the room.
"Q. What happened after Ms. Leroy walked out of the room?
"A. Bonnie Carroll said that she would stay and answer any
questions I had. I said that I don't think you can answer any of
these questions. It will have to be somebody that knows about the
work that is going on over there.
"We work in a highly sensitive area where you need a high
clearance and Ms. Carroll did not have that.
"Q. So, essentially, was that the end of the meeting?
"A. No, Ms. Leroy did return . . . .
"She did come back in and said we can talk ten more minutes.
Somebody else has this room at 9:00 and I have another meeting at
9:00. We can only talk 10 minutes. At this time, she denied my
request for comp-time.
"I said it is going to take longer than 9:00. She said you are
just doing that to get your comp minutes and you are not going to
get the comp minutes. I am denying your comp minutes.
"Q. Was there any discussion regarding the organization?
"A. We had some talk on the organization. I was advised that
they would be moving people and taking out walls and that I was
not advised of it at that time.
"I had much concern about this because I have had people
working in that office before when a cinder block came out and hit
them on the head.
"Q. What time did the meeting end?
"A. It ended at 9:00." (Tr. 17-21).
9. Mr. Blevins testified, in part, as follows:
"Q. What did you do after you spoke to Mr. Weed?
"A. I informed my group leader who is Ken Woods, at the time,
that I was going into negotiations and he said fine, go ahead.
"I went over to the union office about-- I looked at my watch
and it was about 8:40 when I arrived there. Mr. Dalzell was
there.
"Q. What time did you leave your work area?
"A. As soon as I was notified. Right around 8:35.
"Q. What time did you arrive at your union office?
"A. Approximately 8:40. I looked at my watch and it was 8:40
when I walked in.
"Q. Who was there when you got there?
"A. Dalzell. Mr. John Dalzell.
"Q. Did you have any conversation with Mr. Dalzell?
"A. I just asked him what time the negotiations were supposed
to start. I think he mentioned somewhere around 8:30. I asked
him where Pat was and he said he is on his way.
"Q. Did Mr. Weed come to the union office?
"A. Yes, he did, about two minutes after I arrived.
"Q. Did you have any conversations with Mr. Weed?
"A. No. Pat mentioned that his leg was hurting and he had a
box of materials there that he was going through. He told me he
was a little bit late.
"He asked me to go up and tell them that I will be right up.
"Q. What did you do after talking with Mr. Weed?
"A. I walked up the stairs to the fifth floor.
"Q. Did you go to the negotiating session?
"A. Yes I did.
"Q. What time did you arrive there?
"A. Probably around 8:43 or 8:45."
. . . .
"A. I apologized for being late and I told them (Ms. Leroy and
Ms. Carroll) that Pat would be right up. Ms. Leroy said something
to effect that he is on his time because we only have the room
reserved till 9:00.
. . . .
"A. About two or three minutes later, Pat came in carrying a
box of stuff and he apologized the second time for being late.
"He said he had all these materials, etc.
"Q. Was there any further discussion?
"A. Right after that, after he had gone through the materials
and sat them in the chair, Ms. Leroy walked out of the room.
"She said something to the effect that we were going to
formalize what had been informal for three years. She walked out
and left the room.
"She seemed a little upset about the fact that Pat was running
late. She walked out of the room and Bonnie was sitting there
talking and Pat was relating to her that he did not think it was
good faith for her to do that.
"That she was acting in bad faith when she went storming out
like that. About a minute later, she came back in and said that
she had ten minutes. We only have the conference room reserved
till 9:00." (Tr. 50-52).
10. Mr. Dalzell testified, in part, as follows:
"Q. Did anybody else come into the union office while you were
there?
"A. Yes.
"Q. Who would that have been?
"A. Mr. Larry Blevins.
"Q. What time did he get into the union office?
"A. I would say about 8:40.
"Q. How do you know that?
"A. Well, I was kind of worried when I got into the office
that morning and I saw all of these papers thrown around. I knew
that negotiations were coming down and I was worried about time
because the attorney was supposed to come out to the office to see
Pat and myself at 9:30.
"Q. Did you have any conversations with Mr. Blevins?
"A. Yes. I just made a statement that I see that we are
getting ready to negotiate with Geodesy.
"Q. What happened after that?
"A. Just then, Mr. Weed came in the door and I noticed he was
limping and I asked him what had happened. He said he was running
the-- shuttle and he hit something and he did not know what it
was. He cut his leg and sprained his ankle.
"Q. Did you have any further conversations with anybody else?
"A. No because it was at this point that Pat told Larry to go
on up stairs and let Ms. Leroy and Bonnie Carroll know that he
would be a few minutes late.
"He was getting his papers together for the negotiations.
"Q. What, if anything did you do after that?
"A. After that, Pat asked me if I would help him put the stuff
in order because the stuff was strewn around on my desk, his desk
and on our table.
"I started helping him put the stuff in order and stapling
papers together. He looked up at the clock and said forget about
it. Just grab everything and throw it in a box and I will get it
straightened out when I get upstairs.
. . . .
"Q. Do you know what time he left the office?
"A. It was about ten of 9 because just before he left I said,
do you want me to cancel out with the attorney.
"Pat said no, go ahead and do it yourself. . . ." (Tr. 56-57).
11. Ms. Leroy testified, in part, as follows:
"A. Mr. Weed showed up at 8:53.
"Q. How did you know that it was 8:53.
"A. Because I looked at the clock. We had been waiting for 23
minutes." (Tr. 68).
12. Ms. Carroll testified, in part, as follows:
"Q. What time did Mr. Weed arrive?
"A. He arrived at 8:53?
"Q. How do you know it was 8:53?
"A. I checked my watch. I was taking minutes as I often do
when we have negotiations. I put down the reasons for the
negotiations, the parties that are going to be at the negotiating
sessions and I will also indicate the starting time and the
completion time of the session." (Tr. 78).
13. By memorandum dated October 25, 1983, Mr. Weed was charged with
being AWOL (absent without leave) on three occasions, including 15
minutes on September 30. With regard to the September 30 incident,
which is the only AWOL charge involved in this proceeding, the
memorandum stated:
"C. On 30 September 1983, you were granted official time for
purposes of negotiating the GSP reorganization with management
officials. You departed your work place at 0830 but did not
appear at the negotiating session until 0853. Thus, you were AWOL
/5/ in excess of the 15 minutes I recommended on your Time and
Attendance card." (Jt. Exh. 1).
14. Mr. Blevins was not placed on AWOL for any period on September
30 (Tr. 52).
Conclusions
The Complaint alleges in relevant part that:
"6. On September 30, 1983, Union President Patrick A. Weed was
engaged in collective-bargaining negotiations . . . from 8:30
a.m.to approximately 9:00 a.m.
"7. On or about September 30, 1983, Respondent placed Union
President Patrick A. Weed on Absent Without Leave (AWOL) for the
period of 8:30 to 8:45 a.m. on September 30, 1983.
. . . .
"10. By engaging in the acts and conduct described in
paragraph 7 above, Respondent has failed and continues to fail to
comply with the provisions of section 7131(a) of the Statute.
. . . .
"12. . . . in violation of section 7116(a)(1), (2) and (8) . .
. ." (G.C. Exh. 1(e).
I find that Mr. Weed arrived for negotiations at 8:53 a.m. as
credibly testified by Ms. Leroy and Ms. Carroll. Their testimony is
fully corroborated by the equally credibly testimony of Mr. Dalzell that
Mr. Weed left the Union office at 8:50 a.m. ("ten of 9"). General
Counsel, based on Mr. Weed's testimony, asserts that Ms. Leroy, ". . .
refused to allow Mr. Weed to leave his work station . . . until 8:30
a.m., the scheduled starting time for these negotiations (Tr. 17)" (G.C.
Brief p. 7). I do not credit Mr. Weed's testimony in this regard.
First, while I credit Mr. Weed's testimony, which was not refuted, that
Ms. Leroy denied his request to go to the Union office at the time of
their conversation of September 30, either at 8:00 a.m., as testified by
Ms. Carroll and by Ms. Leroy, or at 8:00 a.m., as testified by Mr. Weed,
I do not credit Mr. Weed's further testimony that Ms. Leroy restricted
Mr. Weed leaving his work station until 8:30. Mr. Weed testified, it is
true, that Ms. Leroy went to Mr. Reece's office and informed him that
Mr. Weed could not be released until 8:30. Ms. Leroy was not asked
about this alleged conversation; but Mr. Reece, whom I found to be a
very credible witness, denied any such discussion. Mr. Reece very
credibly testified that, ". . . Mr. Weed informed me that he had a
meeting set for discussion and negotiations with Carolyn (sic) Leroy and
asked my permission to leave at that time for the negotiations" (Tr.
60), which he granted; and further that, " . . . as a normal thing, he
would ask me a few minutes ahead of time and I would say yes, okay, the
leave is granted and at that time, he should allow for time it takes him
to get from the office to the place of the meeting. I never restricted
him to the minute leaving." (Tr. 60). Consequently, as I fully credit
Mr. Reece's testimony, I find that no restriction was placed on Mr.
Weed's leaving, pursuant to normal practice, sufficiently prior to the
scheduled time of negotiations in order to "allow for time it takes him
to get from the office to the place of the meeting."
Nor do I find credible Mr. Weed's testimony /6/ that Ms. Leroy told
Mr. Weed he could not use the telephone to notify another employee on
the negotiating team of the impending negotiating session until 9:00
a.m., i.e., that he could not use the phone for Union business except
during the hours of 9:00 a.m. to 11:00 a.m. If Mr. Weed's testimony
were true, he was no more authorized to use the telephone at his work
station to call Mr. Blevins at 8:30 than prior thereto. As Mr. Weed
admittedly called Mr. Blevins at 8:30, I find no credible evidence that
he was under any restriction to have called Mr. Blevins at any time
after he was notified that Respondent agreed to his request to commence
negotiations at 8:30.
I found Ms. Leroy a wholly credible witness and I credit her
testimony that she, " . . . told Mr. Weed that we agreed to the
negotiation session at 8:30 . . . but that we would not go beyond 9:00
if he wanted to be compensated for that time after 9:00 a.m. as
requested in the memo . . . ." (Tr. 68). Mr. Weed asserted that during
negotiations Ms. Leroy denied his request for comp-time; but Mr.
Blevins, whom I found to be a very credible witness, testified to no
such statement and testified only that Ms. Leroy stated, "We only have
the conference room reserved till 9:00." (Tr. 52).
Therefore, I find that at 8:00 or 8:10 a.m. on September 30 Mr. Weed
was told by Ms. Leroy that negotiations, which Mr. Weed had requested
for 8:30 a.m. that day, would not go beyond 9:00 a.m., if he wanted to
be compensated for time after 9:00 a.m. as he had insisted in his
memorandum of September 29 (G.C. Exh. 2). I have found further that,
although Ms.Leroy refused to release Mr. Weed at 8:00 or 8:10 a.m. to go
to the Union office, no restriction was placed on Mr. Weed leaving his
work station, in accordance with normal practice, in sufficient time
prior to the scheduled time of the meeting to get to the meeting on
time; nor was Mr. Weed prohibited from using his office telephone to
notify the Union's other selected negotiator, Mr. Blevins, of the
negotiations prior to 8:30 a.m. The record firmly shows that Mr. Weed
"had his nose out of joint" as the result of what he viewed as
"illegally approved" limitation on the amount of time he could spend on
Union activity. /7/ He obviously was further annoyed by Ms. Leroy's
refusal to release him from duty at 8:00 a.m. or 8:10 a.m. to go to the
Union office at that time and, therefore, I conclude that he quite
deliberately waited until 8:30 a.m. to call Mr. Blevins and left his
duty station shortly thereafter. Rather than telling Mr. Blevins to
meet him at the conference room, Mr. Weed instructed Mr. Blevins to meet
him at the Union office, and instead of going directly to the conference
room, Mr. Weed went first to the Union office and, finally, arrived at
the conference room at 8:53, twenty-three minutes late for a negotiating
session scheduled for only 30 minutes. To be sure, Mr. Weed laid heavy
stress on his gathering up material at the Union office. Had he needed
documents during negotiations he certainly would have been entitled to
time to obtain them; but it seems apparent that Mr. Weed fully intended
to keep Ms. Leroy and Ms. Carroll waiting in retaliation for the
limitation on his time for Union activity and more immediately because
Ms. Leroy had refused to release him for Union activity at 8:00 or 8:10
a.m.
Neither Respondent nor Mr. Weed deserve any commendation; but under
the circumstances the record shows no departure by Respondent from its
normal practice. Eight minutes was a reasonable time for Mr. Weed to go
from his duty station to the immediately adjacent building, joined by a
crosswalk, to the Union office and to the Conference room, including his
taking an elevator three times. Indeed, the record shows that it
actually took Mr. Weed no more than seven minutes by his reckoning.
While, as I have found, Mr. Weed was free to leave prior to 8:30 a.m. in
order to arrive on time, Respondent, in assessing Mr. Weed for 15
minutes AWOL, assumed a departure time of 8:30, notwithstanding that Mr.
Reece very credibly testified that he did not know what time he left,
that he had granted Mr. Weed's request to leave when he made it sometime
between 8:00 and 8:30 a.m., and Respondent charged Mr. Weed only 15
minutes AWOL although Mr. Weed did not arrive until 8:53 a.m., 23
minutes after the agreed time for the commencement of negotiations.
Because Mr. Weed was charged 15 minutes AWOL for time he was not
present for negotiations, although released from duty for such purpose,
with due allowance for time to travel to the place of the meeting, he
was not charged AWOL for any time he was engaged in collective
bargaining negotiations as alleged in the complaint, but, rather,
because he was not engaged in collective bargaining during such period.
I have given careful consideration to the fact that Mr. Blevins,
although he was released to attend negotiations at about 8:35 and did
not arrive until "around 8:43 or 8:45" (Tr. 48, 50), was not charged
AWOL; but, with the same allowance of travel time as for Mr. Weed, Mr.
Blevins was not absent from negotiations during the period of his
release from duty for that purpose and I discern no disparate treatment
of Mr. Weed.
I do not hold, nor should it be inferred, that a union negotiator is
not entitled to reasonable time prior to the commencement of a scheduled
negotiating meeting with management to obtain documents for use in the
negotiations. Not only is he entitled to such reasonable time prior to
the scheduled time of any such meeting, but, as previously noted, he
would be entitled to reasonable time after the commencement of
negotiations to obtain documents needed in negotiations. I have found
that Respondent, as a matter of practice, allowed Mr. Weed to leave his
work station prior to the scheduled time of meetings in order to arrive
on time and that no restriction was placed on Mr. Weed's doing so on
September 30, 1983. Because I credit Mr. Reece's denial that such a
discussion took place, I have not credited Mr. Weed's testimony that Mr.
Reece was instructed not to release Mr. Weed until 8:30, the time the
meeting was scheduled to begin. Because Mr. Weed did not request
permission to leave his duty station sufficiently prior to 8:30 in order
to get to the meeting on time, he was entitled only to reasonable travel
time, after the scheduled commencement time for the meeting, which
Respondent allowed. Accordingly, it is recommended that the Authority
adopt the following:
ORDER
The complaint in Case No. 3-CA-40073 be, and the same is hereby,
dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: November 29, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The Charging Party excepted to certain credibility findings made
by the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge has had the advantage of
observing the witnesses while they testified. The Authority will not
overrule a Judge's resolution with respect to credibility unless a clear
preponderance of all the relevant evidence demonstrates that such
resolution was incorrect. The Authority has examined the record
carefully, and finds no basis for reversing the Judge's credibility
findings.
/2/ The Charging Party's exceptions contain documents not included in
the record. In reaching its decision herein, the Authority has only
considered facts contained in the record.
/3/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(8) will be referred to, simply,
as "Sec. 16(a)(8)."
/4/ General Counsel filed a Motion to Correct Transcript, to which no
opposition was filed, and the motion is hereby granted except the
requested changes at page 40 lines 1, 4 and 12 of the transcript which
are denied. The transcript is hereby corrected as more fully set forth
in the Appendix hereto.
/5/ Colonel Thomas Paul Baker, who signed the memorandum, testified
that a charge of AWOL is not a disciplinary action (Tr. 72, 73),
although discipline could be pursued from AWOL (Tr. 72); rather, the
person charged with AWOL does not get paid for the period of time he has
been recorded or charged with AWOL (Tr. 73).
/6/ In certain other expects I did not find Mr. Weed's testimony
convincing. For example: a) The record shows that after Mr. Weed
arrived at the conference room Ms. Leroy gave her briefing, which was
brief indeed, and left the conference room momentarily and returned. Mr.
Weed testified:
"A. Bonnie Carroll said that she would stay and answer any of
these questions I had. I said that I didn't think you can answer
any of these questions. It will have to be somebody that knows
about the work that is going on over there." (Tr. 20).
Mr. Blevins testified that:
". . . She (Ms. Leroy) walked out of the room and Bonnie was
sitting there talking and Pat was relating to her that he did not
think it was good faith for her to do that.
"That she was acting in bad faith when she went storming out
like that. About a minute late, she came back in . . . ." (Tr.
51).
I found Mr. Blevins a credible witness and his testimony reflects
precisely the response one would expect under such circumstances while
Mr. Weed's version lacks conviction and Mr. Weed's further comment (Tr.
20-21) concerning Ms. Carroll's lack of a high security clearance
further detracts from the credibility of his version. Accordingly, I
fully credit Mr. Blevins' testimony in this regard.
b) I do not credit Mr. Weed's testimony that he told Ms. Leroy at
their 8:00 or 8:10 a.m. conversation that he was going to be, ". . . a
little late" as he asserted he told Mr. Blevins (Tr. 18). As previously
noted, I have found that no restriction was placed on Mr. Weed leaving
his work station in advance of the scheduled time for negotiations to
enable him to get from his office to the place of the meeting on time.
Moreover, neither Mr. Blevins nor Mr. Dalzell, each of whom I found to
be very credible witnesses, testified to any such statement. Mr.
Blevins testified that, "He (Mr. Weed) told me he was a little bit late.
He asked me to go up and tell them that I (Weed) will be right up."
(Tr. 50), and Mr. Dalzell testified that, " . . . Pat (Weed) told Larry
(Blevins) to go on up stairs and let Ms. Leroy and Bonnie Carroll know
that he would be a few minutes late." (Tr. 57).
/7/ As General Counsel notes,
"The terms of the applicable collective-bargaining agreement
provide that the Union president . . . will be on official time to
conduct Union business from 9 to 11 a.m. each work day, and can
have an additional four hours per week, not to exceed two hours
per day, to conduct additional Union business (Tr. 14-15, 34-35
and 69-70). The negotiated agreement provides further that time
spent in negotiations between the Union and management will not be
counted against the block of time set forth above for the purpose
of conducting Union business (Tr. 35)." (G.C. Brief, p. 2).
Notwithstanding the provisions of the parties' agreement, Mr. Weed
testified that prior to September 2, 1983, he had been " . . . fulltime
President . . . ." (Tr. 14).
As the complaint is limited to the AWOL charge of September 30 (Tr.
46), I express no opinion whatever concerning the propriety of the
September 2, 1983, notification.