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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, REGION IX, SAN
FRANCISCO, CALIFORNIA |
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and Charging Party |
Case No. SF-CA-20537
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Kim Marlia and Beverly G. Agee, Esqs. For the Respondent
Stefanie Arthur, Esq. For the General Counsel
Before: ELI NASH, JR. Administrative Law Judge
On August 28, 1992, the Regional Director of the San Francisco
Region of the Federal Labor Relations Authority (herein called the
Authority), pursuant to a charge filed May 17, 1992, and first
amended on August 19, 1992(1) by the
National Federation of Federal Employees, Local 1450 (herein called
the Union), issued a Complaint and Notice of Hearing alleging that
the Department of Housing and Urban Development, Region IX, San
Francisco, California (herein called Respondent or SRO), engaged in
unfair labor practices within the meaning of section 7116(a)(1) and
(2) of the Federal Service Labor-Management Relations Statute
(herein called the Statute). The Complaint alleged that Respondent
violated section 7116(a)(1) of the Statute by issuing an overly
broad rule prohibiting employees from discussing union business in
the office; by prohibiting an employee from reading the union
contract in the office; by proposing to discipline union steward
Terry K. Aleshire, Sr., for possession of an attendance record
which he had obtained in order to represent an employee; by
proposing discipline for Aleshire's allegedly failing to obtain
permission to go with an employee to the union office to assist the
employee in a representational matter; and by proposing to charge
union steward Aleshire with AWOL for having attended a union safety
meeting on approved official time. It further alleges a violation
of section 7116(a)(1) and (2) by issuing a reprimand and an AWOL to
Aleshire.
A hearing on the Complaint was conducted in San Francisco,
California at which all parties were afforded full opportunity to
adduce evidence, call, examine and cross-examine witnesses and
argue orally. All parties filed timely briefs which have been
carefully considered.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor and from all the testimony and
evidence at the hearing, I make the following:
1. There is no issue in this case as to jurisdiction or to the
Union's status as the exclusive representative of Respondent's
employees.
2. From July 1986 until he was detailed in May 1992,(2) Terry K. Aleshire, Sr., was a contractor
industrial relations specialist in Respondent's Labor Relations
Office (herein called LRO). In March, when the events occurred
forming the basis for this case, Carol B. Clark was the Regional
Labor Relations Officer and Aleshire's supervisor. The function of
the Regional Labor Relations Office is to monitor HUD recipients
and sub-contractors for compliance with federal labor standards
provisions, such as the Davis-Bacon Act. At the time of the events
involved in this case, in addition to Aleshire and Clark, there was
another contractor industrial relations specialist in the office
working part-time; a wage assistant, Martha Driskill; and a
secretary, Adriene Mayfield. As secretary, Mayfield, had primary
responsibility for answering the telephone. All incoming telephone
calls to the LRO are handled by the secretary, as are most walk-in
inquiries. The wage assistant, Driskill, served as her primary
back-up.
3. Respondent and the Union are parties to a collective
bargaining agreement. Article 4 of the agreement, is entitled
"Union Representation and Official Time. Official time includes all
representational functions including statutory functions." The
agreement provides for a certain number of representatives in each
office based on the number of employees. The SRO has a Principal
Office Representative (herein called POR) who is allotted 50
percent official time, as well as several 10 percent stewards.
Article 4, Section 9 contains the following procedure for use of
official time:
1. When it is necessary for a representative to use official time
or to leave his/her work area to perform representational
functions, the representative shall first obtain approval from
his/her immediate supervisor or designee, who has supervisory
authority . . . Prior supervisory approval shall not be necessary
for brief absences by UNION representatives so long as the
representative assures that such absences do not unduly interfere
with the performance of work.
2. Approval under this section shall be granted unless such absence would cause an undue interruption of work. If approval is denied or delayed, the reason shall be given as soon as practicable.
Article 6, Section 4 of the agreement, entitled "Telephone Usage", provides that "Union representatives may use telephones at their individual work stations for local calls or FTS long distance calls while performing representational functions."
4. Union representatives account for their use of official time
on the Individual Daily Time Report (IDTRs) completed by each
employee and submitted on a monthly basis.
5. On March 9, Aleshire was a 10 percent steward. Aleshire
testified that when he became a steward, Clark told him that she
wanted him to let her know when he was planning to conduct union
business. Aleshire normally informed Clark when he was leaving the
office for any scheduled meetings. When employees stopped by the
office with questions or seeking advice, however, or when he
received telephone calls from employees or other union officials,
Aleshire handled the matters without requesting prior official time
from Clark. Aleshire testified that it was his practice to keep
track of his daily use of "any significant union business" on his
desk calendar and then to aggregate it for recording on the monthly
IDTRs report. Aleshire also acknowledged that he might not count
brief telephone calls or a walk-in with a specific question, in
accounting for his official time usage. In preparing his monthly
IDTRs, however Aleshire included both time requested in advance and
that which was not. I credit Aleshire.
6. John Kasper, the POR in the SRO, testified that both he and
Gary Kahn, one of the 10% stewards in the office, regularly perform
union representational functions at their desks. Kasper stated that
he spends about 10-15 percent of his official time in so-called
representational activities, i.e. meeting with employees and/or
dealing with employee grievances, as opposed to dealing directly
with management. According to Kasper, he does not obtain prior
permission to use official time while performing work at his desk;
and that for brief absences from the office, up to as much as a
half hour, he neither obtains prior permission nor notifies anyone
that he is leaving. In the case of longer absences, such as
meetings, Kasper informs the secretary of his whereabouts. Also
Kasper does account for all such official time, whether in the
office or during a brief absence from the office, on his IDTRs at
the end of each month. Another 10% steward, Thomas Gonzales,
testified that he is constantly "putting out fires." Thus, if
employees call him or come to his desk, he takes the time to find
out what the problem is, particularly if it is a crisis situation.
Where the matter can be handled right away, for instance, by
looking something up in the contract, he does so; if it is a more
serious situation, he will make an appointment to meet with the
employee at a later time in the union office. Gonzales asserted
that he does not notify his supervisor prior to talking to
employees at his desk nor does he notify his supervisor of brief
absences from the office in order to informally handle employee
problems. He does so only when involved in more formal situations,
such as a grievance meeting or attendance at a regional committee
meeting. Gonzales also says that he tries to keep track of his
official time usage on his desk calendar and then prepares a
monthly accounting IDTRs form. I credit both Kasper and
Gonzales.
7. In the morning of March 9, Driskill, the wage assistant in
the LRO, had an testy encounter with Clark which left her upset and
intending to resign from her position.(3) After leaving Clark's office, Driskill
returned to her desk where she proceeded to prepare her
resignation. When Clark left the office, Driskill went over to
speak with Aleshire. Before they had the opportunity to talk, Clark
returned to the office and interrupted their conversation,
demanding to know if their conversation was work related. Rather
than provoke another confrontation with Clark, Driskill returned
immediately to her desk. When Clark left the office again, Driskill
went over to Aleshire's desk to talk with him about her plans to
resign. Aleshire attempted to dissuade her from doing so,
suggesting that her complaints could be resolved through the
grievance procedure. Aleshire also suggested that Driskill talk
with Kasper about the problem. As they were speaking, Clark
returned to Aleshire's desk and in a voice loud enough to be heard
by Mayfield at the front of the office, asked whether they were
conducting union business. When Aleshire replied that they were,
Clark declared that she would not tolerate them discussing union
business at his desk or in her office.(4) Aleshire then told Clark that he and
Driskill would go upstairs to the Union office to "take care of
this issue." Clark did not respond. Without a word, she turned and
walked back to her office.(5)
Aleshire told Mayfield, that they were going upstairs to the union
office and Aleshire and Driskill left. Aleshire and Driskill
actually ended up talking with Union representative Gary Kahn about
the matter in his office. Driskill and Aleshire returned to the LRO
separately, about twenty minutes later. While they were gone,
Mayfield remained in the office and covered the telephones.
Mayfield testified that it was quiet during the short time Aleshire
and Driskill were gone, with few calls and none for
Aleshire.(6) The accounts of
Aleshire, Driskill and Mayfield are credited.
8. Sometime, in the afternoon of March 9, Aleshire was at his
desk reading the union contract in preparation for a safety meeting
that afternoon. Clark, seemingly unable to let well enough alone,
questioned what he was doing and told Aleshire that he could not
conduct union business at his desk. Aleshire understood Clark to be
telling him that he was prohibited from reading the contract at his
desk and since that date, no one in management has informed
Aleshire to the contrary.
9. In March, Aleshire was a member of the Regional Safety and
Health Committee which consists of three union and three management
members. Earlier in the year, the Committee commissioned an indoor
air quality evaluation, in part because of employee complaints
following the office move from the eighth to the ninth floor. That
report was scheduled for discussion by the Committee on March 10.
In preparation for this Committee meeting, on March 9, union
members Aleshire and Thomas Gonzales met to review the report and
to prepare their recommendations. At the meeting of the Committee
on March 10, Aleshire and Gonzales' recommendations were adopted
and Aleshire was assigned to prepare the Committee's report to the
Regional Administrator. Aleshire notified Clark in advance that he
was attending a safety committee meeting on March 9.(7) However, when he returned from the
meeting, Aleshire learned from Mayfield that Clark was questioning
his whereabouts. Aleshire went into Clark's office and told her
that she could contact Thomas Gonzales or Joan Glassheim, the other
union members of the safety committee, to verify that the union
member had been meeting that day. Clark did not make an effort to
do so.(8) Aleshire is credited.
10. On March 27, Aleshire received a Notice of Proposed
Suspension from Clark which included a charge of "Failure to Follow
Instructions" as well as "Absence Without Leave" (herein called
AWOL) for discussing Union business in the Labor Relations Office
and for leaving the office with Martha Driskill on the morning of
March 9; a charge of "Failure to Follow Instructions" and "AWOL"
for his use of official time to attend the meeting of the Union
safety committee members on March 9; and a charge of "Unauthorized
Acquisition and Possession of Government Property" because of his
possession of a photocopy of the March 9, sign-in sheet. Aleshire
submitted a reply to the proposed suspension. Thereafter, on May 5,
Deputy Regional Administrator, John E. Wilson issued a Notice of
Decision on Proposed Suspension, sustaining the specification of
the charge of "Failure to Follow Instructions" and "AWOL" relating
to the incident on the morning of March 9, and finding a reprimand
to be warranted. The reprimand itself, issued that same date, finds
that Aleshire, by "conducting Union business with Martha Driskill
in the Labor Relations Office" had failed to comply with his
supervisor's instruction to comply with Article 4 of the HUD Region
IX/NFFE Local 1450 Labor-Management Agreement and obtain
supervisory approval before performing representational functions
during duty hours." In addition it states that, Aleshire left the
office accompanied by Driskill without "supervisory approval to
leave the office to conduct Union business."
Conclusions
Positions of the Parties
This case presented a situation where a union steward,
Aleshire, was issued a Notice of Proposed Suspension containing
three Charges: Failure to Follow Instructions; AWOL; and
Unauthorized Acquisition and Possession of Government Property. The
Charges were supported by five Specifications all of which occurred
on either March 9 or 10. One of the Charges, Failure to Follow
Instructions was totally sustained by the deciding official. One
specification of Charge 2, AWOL was also sustained by the deciding
official. Charge 3 was dismissed entirely, as was Specification 2
of Charge 2. The General Counsel maintains that all of the conduct
forming the basis of the proposed suspension was protected activity
under the Statute and since in none of these situations Aleshire's
conduct was not so outrageous or flagrant as to remove it from the
ambit of protection afforded by the Statute, issuance of a proposal
to suspend, in and of itself, interfered with, restrained and
coerced him in violation of section 7116(a)(1) of the Statute.
Grounding a proposal to suspend an employee for protected conduct
undeniably sends a message to bargaining unit members that
discipline and/or harassment would follow as a direct result of the
pursuit of legitimate union interests. National
Institute for Occupational Safety and Health, Cincinnati
Operations, Cincinnati, Ohio, 22 FLRA 1037 (1986).
Since the General Counsel felt that Aleshire's conduct did not
exceed the bounds of protected activity afforded by the Statute, it
argues further that the reprimand and AWOL sustaining Charge 1 and
Specification 2 of Charge 2 in the proposal to suspend further
violated section 7116(a)(1) and (2) of the Statute. Department of Housing and Urban Development, San Francisco
Region, 4 FLRA 460 (1980); U.S. Air Force
Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma
and American Federation of Government Employees, Local 916,
34 FLRA 385 (1990).
The General Counsel also claims that on two separate occasions
on March 9, Clark placed overly broad restrictions on employees
which interfered with their rights to engage in activity protected
by the Statute and these restrictions were in themselves violations
of the Statute. The restrictions which both surfaced on March 9,
involved Clark's statement to employees that they could not discuss
union business in the office and her subsequent statement to
Aleshire that he could not read the collective bargaining agreement
at his desk. These events, it is alleged, improperly restricted
employees in the exercise of rights guaranteed by the Statute and
constituted independent unfair labor practices in violation of
section 7116(a)(1) of the Statute. Naval Aviation
Depot, Naval Air Station Alameda, Alameda, California, 36
FLRA 705 (1990).
Respondent is unyielding in its position that only a contract
problem exists in the matter. It characterizes Aleshire's
involvement here as an "impromptu counselling session" which
required prior approval before he could use official time. In its
view, Aleshire should have obtained permission before he stopped
his work to counsel Driskill and before he left the work area to
continue handling the matter with Driskill. As a consequence of
this position, Respondent argues, in short, that the proposal to
discipline was not an unfair labor practice because Aleshire did
not have prior approval for his activities; that the proposal is
subsumed in the final decision and is necessary to provide full due
process to the employee; that the proposal and reprimand were fully
supported not only by employee admissions, but by the collective
bargaining agreement.
A. Can a proposed disciplinary action
form the basis of an unfair labor practice and is the proposed
action subsumed in a final action?
Both sides cite Bureau of the Census, 46 FLRA 526 (1992); Department of Commerce, Bureau of the Census v. FLRA, 910 F.2d 964 (4th Cir. 1992) Bureau of the Census, 41 FLRA 42 (1991) on the issue of whether a proposal to take disciplinary action may be an unfair labor practice. In Hanlon, supra is inapposite since there it was the specific statement in the proposal which was found violative, rather than issuance of the proposal itself. Furthermore, this matter does not involve an adverse action issued under 5 U.S.C section 7513 for which there is a statutory appeals procedure and thus, this case does not raise the section 7116(d) statutory appeals procedure bar issue. What can be learned from Hanlon, however, is that the Authority did not find the final decision "subsumed" the proposal to suspend. Instead, the Authority considered whether the issues raised by the proposal and by the final decision were the same so as to preclude consideration of the proposal in the unfair labor practice charge. Thus, the Hanlon decision more likely should be read as showing that a proposed disciplinary action does, regardless of the final outcome, interfere with, restrain or coerce employees in the exercise of rights assured by the Statute.
While I am in total agreement with Respondent that it has an
intractable interest in proposing and determining proper and fair
discipline for its employees, its argument turns a blind eye to the
main issues of this case. Reducing a proposed suspension to a
reprimand, while ignoring the privileged protection of the Statute
does little to ameliorate the proposal or affect a finding that
issuance of the proposal itself constituted an interference with
rights granted under the Statute. Clearly, where a proposal to
suspend is grounded on protected activity, the Authority requires
that it know whether that protection is lost by the actions of the
employee. Where the statutory protection is unaltered, there can be
no valid basis for disciplinary action, whether it is the action
recommended by the proposing official or otherwise. See, Long Beach Naval Shipyard,
44 FLRA 1021(1992). Besides, if the threat to discipline an
employee for protected activity violates the Statute, it logically
follows that the issuance of a proposed action for that very same
activity, is no less of a threat.
Here, Clark's proposal to suspend Aleshire for his protected
representation of Driskill simply reinforces the threat, while
sending an additional message that such protected activity would
not be tolerated and would be severely dealt with if there was a
reoccurrence. It is also inescapable, that any action taken by the
deciding official on such a proposal is immaterial, unless it is
evidence that the deciding official considered all of the statutory
implications of the case before making his decision, and in fact
provided relief consistent with statutory requirements. Unless this
is done, it cannot be presupposed that the final decision in fact
disposes of the unfair labor practice issue. This is essential,
even where the final decision does not sustain any of the
recommended action, but fails to consider the unfair labor practice
issues, because the final decision would do nothing to eliminate
the threat of the proposal itself or to assure that employees would
not continue to be threatened when engaged in such protected
activity by even more disciplinary actions in the future.
National Institute for Occupational Safety and
Health, supra.
As previously noted, since a final decision issued on the
proposed suspension in this case, Respondent maintains that, as a
matter of law, the proposed suspension may not form the basis of
the instant unfair labor practice contention. I am in agreement
with the General Counsel's reasoning that there is no basis in the
Statute or case law for concluding that a proposal to suspend may
not form the gist of an unfair labor practice.
Accordingly, it is found that the proposal to suspend Aleshire can indeed form the basis of an unfair labor practice and that a final decision on that proposal would not diminish the impact of a violation created by the proposal.
B. Did the prohibition against union
activity in LRO violate section 7116(a)(1) of
the
Statute?
On March 9, Clark announced to the employees that all union
activity was prohibited in the LRO. Such a statement, when the
circumstances are considered, could only be seen as a sweeping
prohibition against union activity, and not as just a reminder to
Aleshire or others that he was to obtain permission prior to
conducting union business. According to the General Counsel,
support for such a finding literally jumps out of Clark's statement
in the proposed suspension issued to Aleshire where she stated, as
follows:
I have repeatedly advised you that you are not to conduct Union business in the LRO and, further, that you are not to leave your work station to conduct Union business without first obtaining my permission.
This statement it is argued shows Clark imposing two separate rules: first, a rule that Aleshire was not to conduct union business in the LRO at all; and a second rule, that he was not to leave his work station to conduct union business without first obtaining permission. Additionally, it is urged that not only did Clark attempt to prohibit Aleshire from engaging in representational activities in the LRO, but she actively interfered with any discussion by the employees of union related matters, as illustrated by her separate interruptions of Aleshire and Driskill's conversations on March 9. In my view, Clark's continued interference and her refusal to allow the discussion to continue, even outside the LRO, provides substance not only for the General Counsel's claim that the rule prohibited any union business in the LRO, but, also to its contention that there could be no legitimate reprimand in this case.
The record supports a finding that Aleshire was engaged in
assisting Driskill, as a union representative on the morning of
March 9 and that Clark was aware of, as well as upset about
Driskill having gone to Aleshire with the problem. Clark's denials
aside, there is little doubt, given the earlier clash between Clark
and Driskill that morning, that Clark at least suspected Driskill
had gone to Aleshire, the steward in the office, with complaints
about Clark. Additionally, it is clear from the record that when
Clark discovered Aleshire and Driskill discussing union matters,
i.e. Driskill's complaints about Clark, on March 9, Clark loudly
reminded all of the employees in the office that there was to be no
union activity in her office. Here, it is worthy of note that the
collective bargaining agreement in Article 4, section 9 also states
that "the EMPLOYEE will likewise obtain advance approval from
his/her supervisor. . . ." Although neither Driskill nor Aleshire
had advance approval, Clark's complaint was not that they did not
have permission, but that there was to be no union activity in her
office. While Clark may have had several options to stop their
conversation, at least until permission was obtained, banning all
union activity by this broad prohibition was not one of them.
When viewed in the context of what occurred in the LRO that
morning, it becomes abundantly clear that this prohibition against
any union activity in the office, which clearly encompassed all
discussion by the employees of representational matters, interfered
with employees' rights protected by the Statute. The key to whether
such a broad prohibition in a work area is valid is, can it be
justified because without the rule, the activities it bans might
interfere with employees in the performance of their duties.
Naval Aviation Depot, supra. The record shows no justification for such a
prohibition in this case. Nor did Respondent offer any valid
justification for such a rule. Where there is no real necessity for
such a broad prohibition it must be viewed with skepticism. In an
office setting, such as here, where it is undenied that employees
take "common sense" breaks, there is no doubt that these employees
are free to and do regularly discuss all sorts of work and even
non-work related matters. Therefore, establishing a broad
prohibition against the discussion of union matters, without
providing ample justification for the ban violates section
7116(a)(1) of the Statute.
If the lack of justification for the broad prohibition is not
enough to establish a violation of the Statute, the prohibition
here is contrary to the collective bargaining agreement, which
specifically allows representatives to use telephones at their
individual work stations while performing representational
functions and, by extension endorses the handling of
representational functions in the individual offices. Furthermore,
the record shows that prior to the March 9 incident, Aleshire, as
well as other stewards in the SRO, regularly conducted union
business at their desks, as permitted by the collective bargaining
agreement without obtaining prior permission. The undisputed
evidence also disclosed that no permission was received when
employees stopped by union representatives' desks seeking advice or
asking questions and that permission was not sought when union
representatives received telephone calls at their desks. I do not
see and Respondent has not explained, how the situation between
Aleshire and Driskill was any different from those contacts between
union stewards and employees, which commonly occurred in the SRO,
and which were conducted without permission.
Accordingly, it is found that the broad restriction imposed by
Clark unduly restricted employees, including the steward, in their
rights to discuss union related matters and thus, independently
violated section 7116(a)(1) of the Statute.
C. Was Clark's prohibition against
reading the union contract in the office violative
of section 7116(a)(1) of the Statute?
On March 9, Clark also prohibited Aleshire from reading the
collective bargaining agreement at his work station. Whether Clark
was simply reinforcing her overly broad prohibition against
Aleshire performing union activity at his desk, or objecting
because he had not received prior permission for such activity, the
General Counsel submits that Clark's prohibition against reading
the contract in the office violated section 7116(a)(1). As
discussed above, Clark's prohibition against union activity in the
LRO constituted an overly broad restriction on employees' rights
under the Statute. If Clark objected to Aleshire's activity because
he had not received prior permission, then her objection was
inconsistent with the terms of the collective bargaining agreement
which permits brief absences from the office without prior
permission and, again by implication, the conduct of union activity
in the office without prior permission.
Respondent submitted no evidence at all to show that Aleshire's
brief study of the contract interfered with or disrupted the
performance of his work or in any way disrupted other employees in
the office. Nor did Respondent offer any evidence to show that any
other restrictions were imposed on what employees discussed or read
in the SRO. Therefore, except for Clark's curb on the conduct of
union activity in the LRO and her edict on reading the collective
bargaining agreement, no other restrictions emerged. The clear
implication being, that while the contract required permission in
some matters, the practices of all the stewards modified the
permission requirement almost out of existence. Thus, it is clear
that stewards performed a number of representational functions
without obtaining permission which were approved after the fact, by
acceptance of their monthly accounting IDTRs form. Under these
circumstances, it is found that Clark's prohibition on reading the
collective bargaining agreement in the LRO imposed on March 9, was
not consistent with the collective bargaining agreement or the
practices of the office and, interfered with employees' rights
under the Statute and constituted an independent unfair labor
practice in violation of section 7116(a)(1) of the Statute.
D. Did Respondent's issuance of a
proposed suspension to Aleshire for conduct protected by the
Statute violate section 7116(a)(1) of the Statute?
1. Discussing A Representational Matter In The LRO And Failing
To Obtain Permission To Go With An Employee To The Union Office
Concerning A Representational Matter.
The General Counsel urges that management cannot propose a
disciplinary action, such as here, for activity protected by the
Statute, absent a showing that the steward's conduct exceeded the
bounds of protected activity since such a proposal necessarily
interferes with, restrains and coerces employees in the exercise of
rights protected by section 7102 of the Statute and violates
7116(a)(1) of the Statute.
The proposed suspension charged Aleshire with "Failure to
Follow Instructions" for discussing "Union business" in the LRO,
contrary to Clark's instructions, and for leaving the office "to
conduct Union business" without first obtaining Clark's permission,
as she had previously instructed. Again the credited evidence
reveals that Aleshire's discussion with Driskill on the morning of
March 9, came on the heels of an argument between Clark and
Driskill that very morning. Driskill sought his advice, as her
union steward, on her intention to resign. It also shows that
Aleshire and Driskill left the office to continue this discussion
in the union office after telling Clark where they were going and
without any objection from Clark. Furthermore, it is undisputed
that the entire incident, including Aleshire's discussion with
Driskill in the LRO, as well as his further discussion with her
when they left the LRO, involved Aleshire's acting in his capacity
as a union representative in assisting Driskill with the
technicalities of her intended resignation as well as the
possibility of filing a grievance.
The Authority has found flagrant misconduct in situations where
work stoppages or interference with emergency situations were
present. Respondent only implies that Aleshire's conduct interfered
with the work of the LRO. The evidence presented to show any
interruption of office procedures is woefully inadequate to remove
the conduct from the orbit of activity protected by the Statute. In
this regard, it is noted that Respondent's contention that Aleshire
left the office "inadequately staffed" is purely conclusionary. In
defending its position, Respondent has an obligation to present
affirmative evidence to support such a conclusion. Otherwise, it
runs a clear risk that the finder of fact might draw a different
conclusion. In contrast to Respondent's position, credited evidence
reveals that the office was staffed. Thus, Respondent failed to
show how Aleshire's short absence disrupted the LRO or had any
influence on its work of that day. Absent any evidence of
disruption to the office, it becomes even more doubtful that
Aleshire's conduct was flagrant. E.g.,
U.S. Department of the Air Force, Tinker Air Force
Base, Oklahoma and American Federation of Government Employees,
Local 916, 35 FLRA 1146 (1990); Veterans
Administration Medical Center, Birmingham, Alabama and American
Federation of Government Employees, Local 2207, 35 FLRA 553
(1990).
In this case, Respondent could propose to discipline and could
discipline Aleshire for his protected activity only if it shows
that his actions exceeded the bounds of that protection. In such
cases, it is inadequate merely to assert that the discipline is for
failing to follow an instruction, which is tantamount to
insubordination. When insubordination is claimed and the employee
is involved in protected activity, the Authority will go on to
examine whether the employee's actions constituted flagrant
misconduct; or, whether the actions were "of such an outrageous or
insubordinate nature to remove them from the protection of the
Statute[.]" Federal Aviation Administration, St.
Louis Tower, Bridgeton, Missouri, 6 FLRA 678, 687 (1981);
Tinker AFB, supra,
U.S. Department of Justice, Immigration and
Naturalization Service and National Border Patrol Council,
43 FLRA 939, 949 (1992); Department of Justice,
Bureau of Prisons, Butner, North Carolina, 18 FLRA 831
(1985).
It cannot be seriously disputed that all of Aleshire's conduct forming the basis of Clark's proposed suspension was protected by section 7102. Consequently, insofar as the proposal sought to discipline Aleshire for such protected activity, it is limited to activities which "are not specifically on behalf of the exclusive representative or which exceed the boundaries of protected activity such as flagrant misconduct." Long Beach Naval Shipyard and Long Beach Naval Station, Long Beach, California, 25 FLRA 1002, 1005 (1987). The undersigned was unable to find a single strand of evidence in this case which would support a finding that Aleshire's conduct involved any misconduct which would remove its statutory protection. Instead, it clearly reveals a steward who was sought out by an employee, who responded in an appropriate manner to an office "fire". Moreover, Clark's actions, appear to me, designed to intimidate both Aleshire and Driskill. Clark's hand is certainly tipped when she would not allow protected activity in the LRO and then sought to discipline Alshire for taking the problem out of the LRO for discussion. Refusing to allow this steward and employee an opportunity to explore the situation on that morning is certainly not consistent with previous practices throughout SRO and do not appear to be consistent with the terms of the contract. In reality, the record as a whole supports, in my opinion, a finding that Clark's rampage of March 9 simply exacerbated an already touchy situation with Driskill. Her actions of that day, left a trail of intimidation and reprisals, ending in a proposal to suspend Aleshire which is hard to miss.
The issue of whether the alleged acts of Aleshire involved
flagrant misconduct was completely ignored by Respondent. Even if
it is true, and Aleshire failed to obey his supervisor's
instructions, Clark's directions as already noted, improperly
limited Aleshire's performance in his representational capacity. As
already found, Clark's guidelines that Aleshire not conduct union
business in LRO was overly broad, inconsistent with the practice of
union stewards in the SRO and inimical with the spirit, if not the
intent of the collective bargaining agreement. Further, Clark's
requirement that Aleshire obtain permission before leaving the
office to conduct representational activities is inconsistent with
the plain language of the contract.
Additionally, and contrary to Respondent's assertion, Aleshire
did not leave the office without obtaining permission because it is
clear from the evidence that he informed Clark exactly where he and
Driskill were going and Clark did not object. Under the contract,
the only reason that Clark could deny such permission would be that
Alshire's absence would cause an "undue interruption of work."
Clark never denied permission on that basis, but said nothing. Nor
did Respondent establish that an undue interruption of work
occurred in the LRO on March 9. Since the credited evidence showed
that Mayfield was in the office to answer the telephones and greet
visitors, and also showed that the work in the LRO was slow that
day, there was no contractual basis on which Clark could deny
permission to leave the LRO and discuss "union" business. Charging
Aleshire with AWOL for attempting to defuse an already touchy
situation certainly helps reveal Clark's true motivation.
Accordingly, it is found and concluded that Respondent failed
to show that Aleshire engaged in any misconduct which would remove
his privileged representational endeavors from protection of the
Statute. Inasmuch as Respondent proposed to discipline Aleshire,
absent any showing that his protected activity in seeking to
represent Driskill on March 9, exceeded the bounds of protected
activity, the proposal to discipline is found to have violated
section 7116(a)(1) of the Statute.
2. The Proposal To Suspend For Possession Of An Attendance Record Which Was Obtained In Order To Represent An Employee.
It is undisputed that Aleshire obtained a photocopy of the
March 9 sign-in sheet in his capacity as a union steward and for
the sole purpose of representing Driskill and himself regarding the
AWOL marked on the form. Although Clark was profoundly concerned
over Aleshire's possession of the form, Respondent provided no
basis for Clark's charge of "unauthorized acquisition and
possession of government property." A sign-in sheet is not a
confidential document, but, in this case was the very form that the
employees signed in and out each day. Nothing on the form stated
that it could not be copied and no reason whatsoever was provided
to show any prohibition against copying it. Neither Driskill nor
Aleshire removed or altered the original document, so no misconduct
was involved concerning this particular document. Here, Respondent
created a puzzle, which only it can solve.
The undisputed facts disclose, Driskill copied the document and
gave it to Aleshire as part of her protected right to seek
representation concerning her working conditions. Aleshire,
consistent with his representational role, sought to use the form
for precisely that purpose, i.e. to represent himself and Driskill
concerning the alleged AWOL. In my view, Aleshire's possession of
the attendance sheet was fully in accord with and protected by
section 7102. It is no less than bewildering to me, for Respondent
to make such a charge about a document which the employee has a
clear right to have, without presenting any basis for the charge.
Respondent's unsupported claim that Aleshire had a history of
improper government document use provided no reason for proposed
discipline in the case of the attendance record. In such
circumstances, it can only be surmised that by proposing to
discipline Aleshire for possession of a copy of this document,
Clark was sending the message to Aleshire, Driskill and to other
employees, that in her office, attempts to resolve problems through
the Union would not be tolerated. Any reasonable employee, knowing
that discipline was proposed against Aleshire just for copying a
sign-in sheet in order to defend himself against discipline would
surely think again, before attempting to exercise any protected
right or even to complain. Furthermore, it is unimportant that the
charge was not sustained since neither Aleshire nor the other
employees have ever been informed that Aleshire's possession of the
attendance sheet was a proper exercise of his protected right to
engage in representational activities under the Statute.
National Institute of Occupational Health and
Safety, supra.
Accordingly, it is found that Clark's proposing to suspend
Aleshire for possession of the March 9 attendance sheet interfered
with, restrained and coerced employees in the exercise of rights
protected by the Statute and, thereby, independently violated
section 7116(a)(1).
3. AWOL For Attending Union Safety Meeting On Approved Official
Time.
The uncontroverted evidence on this issue is illuminating
because it reveals, in my opinion, the continuation of a pattern of
harassment and intimidation exercised by Clark on March 9. It shows
that on the afternoon of March 9, Aleshire met with union
representative Thomas Gonzales to review the air quality report in
preparation for a meeting of the Regional Safety and Health
Committee the following day. Aleshire's meeting with Gonzales was
clearly undertaken in a representational capacity and undeniably
constituted activity protected under section 7102. Thus, Clark's
proposing to mark Aleshire AWOL for attending the union safety
meeting on the afternoon of March 9, when he was, in fact, engaged
in protected activity can only be found as a further independent
violation of section 7116(a)(1) of the Statute.
Respondent argues, in essence, that Aleshire did not go to a
Safety Committee meeting with three members from the Union and
three members from management that afternoon and, as such the
meeting which Aleshire did have permission to attend, never
occurred. Such an argument is disingenuous when viewed in the
setting of what actually occurred. The undisputed fact is that
Aleshire was involved in his representational capacity for the
period of time that he was marked for AWOL.
Clearly this proposal was not based on any misunderstanding
which might lead Clark to include such a specification in the
proposal. Aleshire specifically told Clark that if she had any
doubts about his whereabouts, she could check with the other union
members of the committee. Instead Clark chose not to investigate
the matter. She also chose not to confirm that Aleshire was meeting
with another union representative or to find out that the
recommendations Aleshire and Gonzales arrived at that day were
adopted by the Committee the following day. Clark did choose not to
find out whether Aleshire's attendance at such a union meeting
would be a proper use of official time and she also chose not to
try to resolve the dispute with Aleshire at the time. In short,
Clark chose to do nothing except add another specification in a
proposed disciplinary action. Forging ahead with a disciplinary
action which could have easily been resolved, certainly sheds some
light on Clark's motives for proposing disciplinary actions for
Aleshire's activities on March 9. Respondent all but concedes that
Aleshire's attendance at the March 9 meeting was a proper use of
his official time under the contract and implicitly acknowledges
that Aleshire was engaged in protected activity in the process.
Under these circumstances, this specification is so plainly
unsupported that any claim by Respondent that there was
misunderstanding, must be disregarded. Again, it appears to be part
of Clark's effort to intimidate Aleshire about his representational
functions.
In any event, the test for determining whether Respondent's
threat to mark Aleshire AWOL violates the Statute is not a
subjective one. If Aleshire was engaged in activity protected by
the Statute when he attended the union safety meeting, then the
proposal to discipline him for that protected activity is nothing
less than a threat which violates the Statute, as alleged.
Long Beach Naval Shipyard, supra.
As with the Charge for possession of the attendance record, it
is immaterial whether this specification was sustained or not,
since nothing in the final decision explained the reason for not
sustaining the charge or assured Aleshire of his right to fully
engage in such protected activity free of threats or harassment
from a supervisor. Accordingly, the proposal to suspend Aleshire
for activity fully protected by the Statute, interfered with
Aleshire's protected right to act as a representative of the
employees and is also found to constitute an independent violation
of section 7116(a)(1) of the Statute.
E. Respondent's issuance of a
reprimand to Aleshire violated section 7116(a)(1)
and
(2) of the Statute.
Regarding this section 7116(a)(1) and (2) allegation, the
General Counsel need only make a prima
facie showing that there was protected
activity and that such activity was a motivating factor in the
discriminatory treatment involved. Then the burden shifts to the
respondent to establish by a preponderance of the evidence that
there was justification for its action and that the same action
would have been taken in the absence of the protected activity.
Letterkenny Army Depot, 35 FLRA 113 (1990).
In my view, the General Counsel showed Aleshire engaged in a
protected situation and, because of that privileged action the
supervisor engaged in a course of intimidation and harassment
resulting in a proposed disciplinary action and a reprimand and
AWOL. Further, Respondent failed to show, by a preponderance of the
evidence, any justification for proposing to suspend Aleshire for
engaging in protected activity and in disciplining him for that
activity. Moreover, it was unable to show that the same action
would have been taken if Aleshire had not been engaged in protected
activity.
Deputy Regional Administrator Wilson issued his decision on Clark's proposed suspension on May 5, finding that Aleshire had failed to follow his supervisor's instructions on March 9 when he and Driskill spoke in the LRO about her work related complaint and thereafter, left the office to continue their discussion; and further, that he was AWOL for leaving the office. Wilson decided that Aleshire should receive a reprimand for the alleged misconduct and therefore, a reprimand issued that same day. The General Counsel's theory here is that the reprimand issued to Aleshire is unlawful because, as discussed above, it was based solely on activity protected by the Statute. Very simply, if the grounds for the proposed suspension were invalidated there would be absolutely no basis for a reprimand. I agree with the General Counsel that no reprimand should have issued in this matter.
Wilson's suggestion that he was not aware of all of the facts
which, he agreed, might warrant a conclusion that Aleshire's
conduct was protected, does not affect the above conclusion. This
admission, with a single swipe, wipes out Respondent's assertion
that a "fair and appropriate decision" was reached in this case.
Although Wilson can be credited with finding no merit in several of
the obviously unwarranted Charges and Specifications, he presumably
swallowed Clark's representation on the very core of the case, that
Aleshire was acting without "approval" and did not follow
instructions, hook, line, and sinker. The very basis of the charges
Wilson sustained in reprimanding Aleshire involved activity
Aleshire was undertaking as a union steward, i.e. Aleshire's
admitted conducting of "Union business" in the LRO, as well as his
leaving the office to conduct "Union business." With this clearly
outlined for him, Wilson had to be aware of, or should have been
aware that Aleshire was engaged in activity which was protected and
that Aleshire's action might be entitled to some special
consideration. Instead, Wilson relied solely on the collective
bargaining agreement. In so doing, he ignored or saw no connection
with the string of threats and reprisals engaged in by Clark. The
flaw in Wilson's assessment of the matter is, that he did not
really consider whether Aleshire was engaged in protected activity
and whether or not he was engaged in any outrageous or flagrant
misconduct which removed his Statutory protection. Therefore, since
Aleshire was engaged in conduct fully protected by the Statute,
Wilson's professed ignorance of the total picture, even if true,
neither changes the protection afforded to Aleshire nor otherwise
renders the reprimand privileged. Absent any evidence that
Respondent even considered whether Aleshire's alleged misconduct
was protected or sufficiently outrageous or insubordinate to lose
its privileged status, it is found that the reprimand issued to him
was in violation of the Statute.
As already found, Aleshire's conduct on the morning of March 9
was protected activity. Furthermore, it has also been found that
not one iota of evidence supports a finding that Aleshire was
engaged in any misconduct on the morning of March 9, which would
cause him to lose the protection afforded him by the Statute.
Driskill approached him as a steward seeking his assistance
concerning her work crisis. Thus, even if it is true that
Aleshire's talking with Driskill in the LRO that morning, or
leaving when Clark refused to permit them to continue, were
contrary to Clark's instructions, those instructions interfered
with the performance of his protected status and under the
circumstances, were not permissible. Moreover, as I view the
record, Aleshire did not leave the LRO that morning without
obtaining approval. Thus, Aleshire told Clark exactly where he and
Driskill were going and Clark did not object. It is also my view
that Aleshire could readily interpret Clark's silence as a grant of
approval. Lastly, it is absurd for Clark not to have said anything
when Aleshire told her where he was going and then attempt to
discipline him for going there without permission. Control of that
situation was in her hands and if anyone bobbled the ball, it was
Clark.
A look at the actual practices in SRO and the collective bargaining agreement provides additional grounds to invalidate the reprimand. The record demonstrated that union represen- tatives in the SRO, operating under the same collective bargaining agreement, do not obtain permission before conducting union activity and that such use of official time is routinely approved, after the fact, by their supervisors. Additionally, notwithstanding language in the contract dealing with obtaining permission from the supervisor, the contract also clearly permits the performance of representational activities without obtaining prior permission. Therefore, it is reasonable to assume that where brief absences from the office are allowed without prior permission under the contract, brief conversations in the office must also be sanctioned. Certainly, contractual language granting union representatives the right to use telephones at their work stations for representational activities clearly implies or, at least, acknowledges that such activities will and do take place without prior permission.
Added to the above, Wilson's statement that he was sustaining
Specification 1 of the "Failure to Follow Instructions" charge, he
actually modified the basis in the proposal. The proposal itself
did not state that Aleshire had not followed Clark's instructions
which "required [Aleshire] to comply with Article 4 of the HUD
Region IX/NFFE Local 1450 Labor-Management Agreement and obtain
supervisory approval before performing representational functions
during duty hours" as stated in the reprimand; rather, the proposal
simply faulted Aleshire for failing to follow Clark's instruction
that he not conduct union business in the LRO, as well as that he
obtain permission before leaving the office. In failing to offer
any well-grounded reason for its action, Respondent left the
General Counsel's case untouched.
On the instant record, it is not unreasonable to assume that
the reprimand issued to Aleshire for his failure to obtain
permission before responding to Driskill's work- related concerns,
is inconsistent with either the collective bargaining agreement or
the established practice in SRO. While there might be a contractual
dispute about whether a steward needs to obtain prior approval
before engaging in any representational activities, this is not
such a case. In this particular situation, there is no dispute at
all, that on March 9 Driskill twice solicited Aleshire's advice on
her plan to resign from her job because of her complaints about
Clark. There is also no debate that Aleshire was engaged in one of
the most vital functions of a union steward in advising and
assisting Driskill in a serious work-related conflict. A conflict
involving the very supervisor who was undaunted in her efforts to
stop them, without realizing what was involved at that juncture,
was protected activity. Respondent's contention that what was
involved in this case was an "impromptu counselling session" shows
its lack of understanding of the protected status of union stewards
attempting to solve typical work place problems. Absent that
awareness, it comes as no surprise that Respondent might overlook a
well marked trail of threats, intimidation and reprisals by its
supervisor and see this only as a contractual problem. In view of
the whole record, this approach is rejected.
In conclusion, it is my opinion that, even if Aleshire's
actions were somehow at variance with the collective bargaining
agreement, under all the circumstances it would still be
inappropriate to find that his handling of Driskill's work related
complaint was not protected activity. Thus, Aleshire allegedly
needed approval from a supervisor, who played a major role in the
conflict giving rise to the incidents for which he was disciplined,
the supervisor engaged in a course of discriminatory treatment
against him which was clearly retribution for his handling the
Driskill matter and, Aleshire engaged in no outrageous or
insubordinate misconduct. In considering these facts, it is
concluded that Aleshire did nothing which could be found to remove
his otherwise protected status. Bureau of
Prisons, supra. Accordingly, it is
found that issuance of a reprimand for Aleshire's protected
conversation with employee Driskill in the LRO on March 9, violated
section 7116(a)(1) and (2) of the Statute.
For the same reasons already discussed, it is also found that
Aleshire's leaving the LRO with Driskill did not constitute
outrageous or insubordinate misconduct. Accordingly, since it is
found that the AWOL issued for engaging in protected activity, it
too violated section 7116(a)(1) and (2) of the Statute.(9)
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that the Department of Housing and Urban
Development, Region IX, San Francisco, California, shall:
1. Cease and desist from:
(a) Promulgating rules which prohibit employees from
reading their collective bargaining agreement or discussing union
representational matters, during non-work time in work areas where
there is no disruption of work.
(b) Proposing to discipline union steward Terry K.
Aleshire, Sr., for "unauthorized possession" of an attendance sheet
when he was using the attendance sheet for represen- tational
activity.
(c) Proposing to mark union steward Terry K. Aleshire,
Sr. absent without leave for having attended a union safety meeting
on approved official time.
(d) Proposing to discipline union steward Terry K.
Aleshire, Sr., for discussing a representational matter in the
office and for not obtaining permission to go with an employee to
the union office to discuss the representational matter when
Aleshire told the supervisor he was leaving and she did not
object.
(e) Issuing a reprimand to union steward Terry K.
Aleshire, Sr., for his protected activity in discussing a
representational matter with an employee in the office and for
leaving his work place to meet with the employee at the union
office concerning the same representational matter.
(f) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate
the purposes and policies of the Federal Service Labor-Management
Relations Statute:
(a) Rescind the reprimand issued to union steward Terry
K. Aleshire, Sr., because of his protected activity in discussing a
representational matter with an employee in the office and for
leaving his work place to meet with the employee at the union
office concerning the same representational matter; and expunge all
references to the unauthorized absence without leave and reprimand
from all records.
(b) Post at its facilities at Department of Housing and
Urban Development, Region IX, San Francisco, California where
bargaining unit members represented by the National Federation of
Federal Employees, Local 1450, are located, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Regional Administrator, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that
such Notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director of the San
Francisco Region, 901 Market Street, Suite 220, San Francisco, CA
94103, in writing, within 30 days from the date of this Order, as
to what steps have been taken to comply herewith.
Issued, Washington, DC, November 15, 1993
ELI NASH, JR.
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT promulgate rules which prohibit employees from reading their collective bargaining agreement or discussing union representational matters, during non-work time in work areas where there is no disruption of work.
WE WILL NOT propose to discipline union steward Terry K. Aleshire,
Sr., for "unauthorized possession" of an attendance sheet when he
was using the attendance sheet for representational activity.
WE WILL NOT propose to mark union steward Terry K. Aleshire, Sr.,
AWOL for having attended a union safety meeting on approved
official time.
WE WILL NOT propose to discipline union steward Terry K. Aleshire,
Sr., for discussing a representational matter in the office and for
not obtaining permission to go with an employee to the union office
to discuss the representation matter when Aleshire told the
supervisor he was leaving and she did not object.
WE WILL NOT discriminate against union steward Terry K. Aleshire,
Sr., or any other employee, because of his union activities, by
issuing an absent without leave and a reprimand to union steward
Terry K. Aleshire, Sr., for his protected activity in discussing a
representational matter with an employee in the office or for
leaving his work place to meet with the employee at the union
office concerning the same representational matter.
WE WILL NOT in any like or related manner interfere with, restrain
or coerce our employees in the exercise of their rights assured by
the Federal Service Labor-Management Relations Statute.
WE WILL rescind the May 5, 1992 absent without leave and reprimand
issued to union steward Terry K. Aleshire, Sr., for his March 9,
1992 protected activity of discussing a representational matter in
the office and for leaving the work place to conduct
representational activity at the union office; and expunge all
references to the unauthorized absence without leave and reprimand
from all records.
(Activity)
Date: _____________________ By: ___________________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
other material.
If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor Relations
Authority, San Francisco Region, 901 Market Street, Suite 220, San
Francisco, CA 94103, and whose telephone number is: (415)
744-4000.
1. The Complaint was also amended at the hearing.
2. All dates hereinafter are 1992 unless otherwise noted.
3. Clark's saying that she was unaware that Driskill was upset as a result of their meeting is incredible. Her write-up of the incident, in a reprimand issued to Driskill, reveals an agitated Driskill, responded to Clark that she "could not tolerate it anymore"; pointed her finger at Clark; and, told Clark that she did not like her tone and that Clark had a personal problem. Thus, Driskill was in an agitated state that was hard to miss.
4. Mayfield's recollection of Clark's statement might well be the most accurate since she was the least involved in the situation. Further, it is fully corroborated by Aleshire's reply to the proposed suspension, prepared closer in time to the event, in which Aleshire states that Clark said "that [he] could not conduct any union business at [his] desk on (sic) in her office." Aleshire's testimony at hearing, that Clark said "you cannot conduct union business at your desk" carries much the same meaning, i.e. that there will be no union discussion in this office. Moreover, Mayfield's recollection is fully consistent with Clark's admission in the proposed suspension that she had "on repeated occasions told [Aleshire] not to conduct Union business in the Labor Relations Office." The second page of the proposed suspension, in which Clark makes her position crystal clear states as follows: "I have repeatedly advised you that you are not to conduct Union business in the Labor Relations Office, and, further, that you are not to leave your work station to conduct Union business without first obtaining my permission."
5. Under these circumstances, it is my opinion that Aleshire can hardly be faulted for continuing his effort to deal with Driskill's immediate work crisis.
6. Clark's testimony that there was no one in the LRO, except her, during Aleshire and Driskill's absence cannot be credited over the consistent credited testimony of Aleshire, Driskill and Mayfield, both at hearing and previously in Aleshire's appeal to the proposed suspension, that Mayfield was present in the office while they were gone. Surely, if there was no one in the office, Clark's proposal would have stated that Aleshire left the office unstaffed, or similar wording, rather than "inadequately staffed." More to the point, since the attendance sheet shows that Mayfield was at work on March 9, Clark's failure to offer any explanation for Mayfield's alleged absence during the relevant time, exposes the spurious nature of her claim. Respondent's attempt to impeach Mayfield by showing that she was not working at the computer she claimed to have been at is lamentable, since it offered nothing to show that Mayfield was not in a position to overhear the events of March 9.
7. Clark's testimony that Aleshire told her he had a meeting with Beverly Hollingsworth, one of the management members of the committee, on March 9, is inconsistent with Clark's description of the incident in the proposed suspension, where she merely stated that he was absent without her permission.
8. Whether this conversation occurred on March 9, as Aleshire states or March 10, as Clark testified, is immaterial since there is no question that Aleshire told Clark he had been meeting with Gonzales long before Clark ever issued the March 27 proposal to suspend.
9. Respondent filed a motion for summary judgment prior to the hearing and renewed that motion at the hearing. After taking the motion under advisement and reviewing the record as a whole, it is my conclusion that not only were factual issues in dispute here, but credibility issues as well. Therefore,
a motion for summary judgment is inappropriate in this case. Accordingly, Respondent's motions are denied.