[ v23 p594 ]
23:0594(82)CA
The decision of the Authority follows:
23 FLRA No. 82
MARINE CORPS LOGISTICS BASE
BARSTOW, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL
1482, AFL-CIO
Charging Party
Case No. 8-CA-50418
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
Charging Party filed exceptions to the Judge's Decision, and the
Respondent filed an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's decision and the entire record, the Authority hereby adopts the
Judge's findings, /1/ conclusions, and recommendation that the complaint
be dismissed.
In agreement with the Judge, we specifically find that the reprimand
and 35 minutes AWOL charged to the employee were not based on the Union
President's activity in meeting with an Authority agent, but rather on
his actions in leaving the premises without prior permission in
violation of the Respondent's interpretation of the
collective-bargaining agreement. Therefore, we conclude, in agreement
with the Judge, that the Respondent did not violate the Statute as
alleged in the complaint. Accordingly, we shall dismiss the complaint.
ORDER
IT IS ORDERED that the complaint in Case No. 8-CA-50418 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., October 16, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 8-CA-50418
MARINE CORPS LOGISTICS BASE BARSTOW, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1482, AFL-CIO
Charging Party
Jonathan S. Leving, Esquire
For the General Counsel
William M. Petty, Esquire
Major Charles Dorman
For the Respondent
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to an amended charge first filed on July 11, 1985, by the
American Federation of Government Employees, Local 1482, AFL-CIO,
(hereinafter called the Union or Local 1482), a Complaint and Notice of
Hearing was issued on October 31, 1985 by the Regional Director for
Region VIII, Federal Labor Relations Authority, Los Angeles, California.
The Complaint alleges that the Marine Corps Logistics Base, Barstow,
California, (hereinafter called the Respondent), violated Sections
7116(a)(1) and (8) of the Federal Service Labor-Management Relations
Statute, (hereinafter called the Statute), by issuing a letter of
reprimand to Mr. Dale Boyce and charging him with thirty-five minutes of
AWOL for meeting during official hours with an agent of the Federal
Labor Relations Authority for purposes of providing evidence in a
pending unfair labor practice proceeding.
A hearing was held in the captioned matter on December 18, 1985, in
Los Angeles, California. All parties were afforded the opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues involved herein. The General Counsel and
the Respondent submitted briefs on January 31 and 29, 1986,
respectively, which have been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The American Federation of Government Employees, (hereinafter called
the AFGE), was certified on October 12, 1982, "as the exclusive
representative in a national consolidated unit of the United States
Marine Corps., Washington, D.C., which includes" the graded and ungraded
employees of the Respondent's Barstow, California installation. Local
1482, the charging party, is the AFGE local representative at Barstow.
The AFGE and the Respondent are parties to a master collective
bargaining labor agreement which became effective April 27, 1985, and
which provides in Article 8, Section 3, that the Local Union President
at Barstow will be entitled to 75% official time to perform
representational functions. The contract further provides in Article 8,
Section 4 as follows:
Stewards and local officers appointed to represent unit
employees will represent employeed at the activity as designated.
Official time will be approved only for representational functions
performed at the activity where the representative is employed
except:
(a) to attend hearings before the FLRA, MSPB, or an arbitrator
concerning a dispute involving employees of the activity where the
representative is employed; or
(b) when representation off the work premises by the individual
has been approved, in writing, by the commanding officers of the
activities involved.
With respect to Article 8, Section 4, the record establishes that the
Respondent has interpreted this provision as prohibiting the Union
President to utilize official time for purposes of conducting
representational functions at the union hall located off the base in
Barstow, California. The record further establishes that Union
President Dale Boyce had been informed of the Respondent's
interpretation of Article 8, Section 4, prior to the events underlying
the instant complaint.
On May 28, 1985, Union President Dale Boyce was informed by the union
secretary located in the off-base Barstow, California union office that
Ms. Linda Gonzalez, (hereinafter referred to as Ms. L. Gonzalez), an
agent of the Federal Labor Relations Authority, had called and wanted
him (Mr. Boyce) to call her the next day at the Respondent's Civilian
Personnel Office (CPO) at 12:30 p.m. /2/ Inasmuch as Mr. Boyce was
scheduled to meet with Respondent's representatives the next morning at
the Civilian Personnel Office he decided to personally meet there with
Ms. L. Gonzalez rather than telephone her.
On May 29, 1985, Mr. Boyce reported for work at 7 a.m. /3/ After
working for two hours, Mr. Boyce approached Mr. Kenneth Graham,
supervisor of the welding shop, and requested six hours of official time
to perform various representational duties. According to Mr. Boyce,
after telling Mr. Graham what union business he would be working on the
rest of the day and where he could be found he left his work site for
the remainder of the day. Further, according to Mr. Boyce he did not
tell Mr. Graham that he was meeting with Ms. L. Gonzalez later in the
afternoon. He could not swear to it, but he might have mentioned that
he "was going to see Linda Gonzalez at CPO".
After departing from his work station Mr. Boyce met with various
management representatives, including Supervisory Labor Relations
Specialist Esther Gonzales. During the course of the meeting with Ms.
Gonzales, Mr. Boyce mentioned, according to Ms. Gonzales, that he was
going to talk to Ms. L. Gonzalez to which Ms. Gonzales replied that she
had an appointment with her around noontime. According to Ms. Gonzales
there was no discussion of what Mr. Boyce and Ms. L. Gonzalez were to
talk about. Finally, Ms. Gonzales testified, without contraction, that
Mr. Boyce never told her that he was going to have a meeting with Ms. L.
Gonzalez.
Around noon Ms. L. Gonzalez arrived at the CPO for her scheduled
meeting with Ms. Esther Gonzales. Prior to starting the scheduled
meeting Ms. L. Gonzalez met and spoke to Mr. Boyce out in the hall about
certain unfair labor practices she was investigating. Inasmuch as Mr.
Boyce's files were in the off-base union office in Barstow, they agreed
to meet there after Ms. L. Gonzalez finished her business with the
Activity representatives. Ms. L. Gonzalez estimated that the meeting
would last approximately one to two hours. At Mr. Boyce's suggestion,
it was agreed that Ms. L. Gonzalez would call him at the union hall when
she finished her business with the Activity officials. Ms. Esther
Gonzales acknowledges that she observed Mr. Boyce and Ms. L. Gonzalez
talking.
Ms. L. Gonzalez then proceeded with her scheduled meeting with
Activity representatives Ms. Esther Gonzales and Mr. Rich Schultz.
During the course of the meeting Ms. L. Gonzalez informed Mr. Schultz
and Ms. Esther Gonzales that if she had time she would like to meet with
Mr. Boyce. When the meeting concluded at approximately 3 p.m. Ms. L.
Gonzalez asked Ms. Esther Gonzales for a telephone number where she
could contact Mr. Boyce. When Ms. Gonzales replied "Do you want the
union office in the Repair Division", Ms. L. Gonzalez responded that she
wanted the off-premises union office in Barstow.
Ms. L. Gonzalez then telephoned Mr. Boyce at the Barstow union
office, informed him that her meeting with the Activity representatives
was over, and that she was on her way. Ms. L. Gonzalez then told the
Activity representatives that she was going to the union office in
Barstow to talk to Mr. Boyce and departed the CPO. The union office in
Barstow is approximately a 15 minute ride from the CPO.
Prior to departing the CPO Ms. L. Gonzalez did not tell the Activity
representatives the specific reason that she was meeting with Mr. Boyce.
Upon arriving at the union office, Ms. L. Gonzalez proceeded to discuss
certain pending unfair labor charges with Mr. Boyce.
At no time did Mr. Boyce inform management that he was leaving the
installation to go to the union office in Barstow. Similarly, at no
time did he tell management of his scheduled appointment with the
Authority representative at the union office in Barstow.
On June 4, 1985, after being informed that Mr. Boyce had been at the
union office in Barstow on May 29, 1985, Mr. Graham, Mr. Boyce's
supervisor, conducted an investigative discussion with Mr. Boyce
regarding his whereabouts on May 29, 1985. During the course of the
investigative discussion, Mr. Graham made it clear that his only concern
was Mr. Boyce's violation of Article 8, Section 4 of the collective
bargaining agreement which according to the Respondent's interpretation
prohibited Mr. Boyce from conducting union representational functions at
the off-base union office without prior permission from management.
On May 26, 1985, Mr. Boyce was given a letter of reprimand and
charged with 35 minutes of AWOL. The letter reads in pertinent part as
follows:
a. On 29 May 1985 at approximately 1455, I was informed by CPO
that you had been contacted by phone at the Union Hall in Barstow
by a representative from the Federal Labor Relations Authority.
The representative was to meet with you at the Union Hall.
b. On 4 June 1985, this matter was discussed with you. You
denied receiving a phone call. I had previously advised you that
the Master Labor Agreement, Article 8, Section 4, provides that
official time will be approved only for representational functions
performed at the activity, etc. I had also advised you on 23 May
1985 that you were not authorized to go to the Barstow Union
Office on official time. You contend that this article does not
apply to you as President of the Union. The reasons you offer on
your whereabouts on 29 May 1985 are not acceptable; therefore,
you have been carried on unauthorized absence status for 35
minutes on 29 May 1985. /4/
The record further establishes that the Respondent and the Authority
have been involved in numerous unfair labor practices and that the
Respondent always released employees on official time when informed by
Authority agents that they wished to talk to such employees in
connection with Authority proceedings. Prior to the events underlying
the instant complaint the Authority never met with an employee on
official time without clearing it with the Respondent. Further, it was
always the Authority agent and not the employee who notified the
Respondent that a meeting was going to be held with an employee.
Discussion and Conclusions
The General Counsel points out that the Authority has held that (1)
the granting of official time to employees pursuant to Section 7131(c)
of the Statute for purposes of participating in the processing of unfair
labor practice charges is within the unreviewable discretion of the
Regional Director or the Regional Director's agents, and (2) that
Section 7104(f)(2)(A) of the Statute specifically empowers the General
Counsel to determine the manner in which investigations are to be
conducted, including the situs of interviews related thereto.
Relying on the foregoing and the fact that the Authority's agent had
informed the Respondent that he was going to meet with Mr. Boyce, the
General Counsel takes the position that the Respondent violated Sections
7116(a)(1) and (8) of the Statute when it reprimanded Mr. Boyce and
charged him with 35 minutes AWOL for his actions in meeting with the
Authority's representative on May 29, 1985 in the Union's off-base
office in Barstow.
The Respondent's counsel, who agrees with the General Counsel's
conclusions with respect to the state of the law, takes the position
that in the absence of prior notice from either the Authority's agent or
Mr. Boyce that Mr. Boyce was going off the base to meet the Authority's
agent in connection with pending unfair labor practices, Mr. Boyce
violated the provisions of the collective bargaining contract as
interpreted by Respondent. According to the Respondent the reprimand
and the 35 minute AWOL were based upon Mr. Boyce's actions in violating
the contract by leaving the base without permission and was unrelated to
the fact that he subsequently met with the Authority's agent for
purposes of discussing pending unfair labor practices.
Inasmuch as the General Counsel has correctly summarized the state of
the law and since Respondent appears to acknowledge same, the sole issue
remaining for resolution is whether, as contended by the Respondent,
under the particular facts of this case Respondent was at liberty to
reprimand and impose a 35 minute AWOL on Mr. Boyce for leaving the
Respondent's premises without permission to prepare for a subsequent
meeting with an Authority agent.
The record establishes that the Respondent and the Union were parties
to a collective bargaining agreement which contained various provisions
concerning the awarding and use of official time by the Union's
President in connection with representational activities. According to
Respondent's interpretation of such provisions, which interpretation had
previously been made known to Union President Boyce, the Union President
was not allowed to utilize official time to conduct representational
activities off the base without prior management permission. The record
further establishes that at all times prior to the instant events
Authority agents when desiring to talk to the Union President or any
other unit employee in connection with a matter of Authority interest
had always given prior notice to management. The record also
establishes that the Respondent had never denied Authority agents the
opportunity to meet with unit employees on official time, nor does it
appear that the Respondent had ever in the past penalized unit employees
for meeting with Authority agents. Finally, the record establishes that
aside from telling Respondent about 3 p.m. on May 29, 1985 that she, the
Authority agent, was on her way to the union office in Barstow to meet
Mr. Boyce, no other notice of the meeting was given to Respondent.
In view of the above facts, I find that the Respondent did not
violate the Statute when it disciplined Mr. Boyce after discovering his
unauthorized visit to the union office in Barstow. In reaching this
conclusion, I find that while the Authority's agents certainly have a
right to meet with employees on official time and to determine where
such meetings will be held, such rights are not paramount to both the
mission of an agency and its responsibility to monitor the activities of
its work force. Here there is no evidence of prior notice of the
meeting or that Mr. Boyce had received permission to go to the union
office in Barstow as required by Respondent's interpretation of the
contract.
Having left the Respondent's premises without prior permission in
defiance of Respondent's announced interpretation of the official time
provisions of the collective bargaining contract and without prior
notice to Respondent from either himself or the Authority's agent that
his actions were for purposes of meeting with the Authority's agent to
discuss a pending unfair labor practice, I find that under the
circumstances the Respondent did not violate the Statute when it
subsequently gave Mr. Boyce a letter of reprimand and a 35 minute AWOL
for such conduct. I further find that the reprimand and 35 minute AWOL
were not based on Mr. Boyce's activity in meeting an Authority agent but
rather his actions in leaving the premises without prior permission in
violation of the Respondent's interpretation of the collective
bargaining agreement.
In sum I find that while the Authority's agents are free to conduct
investigations on official time and determine where such investigations
should be held, sensible administration not to mention common courtesy
require advance notice so that an Agency can make appropriate
arrangements to carry out the mission of the Agency and its
responsibility of knowing at all times the whereabouts of its employees.
Accordingly, I recommend that the Authority adopt the following order
dismissing the complaint in its entirety.
ORDER
It is hereby Ordered that the Complaint in Case No. 8-CA-50418 should
be, and hereby is, dismissed in its entirety.
/s/ BURTON S. STERNBURG
Administrative Law Judge
Dated: March 11, 1986
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 observed 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) Ms. L. Gonzalez had made an appointment to Meet Mr. Rick Schultz,
Labor Relations Specialist and Ms. Esther Gonzales, Supervisory Labor
Relations Specialist around 12 p.m. on May 29, 1985 in connection with
pending unfair labor practice charges that she was investigating. Both
Mr. Schultz and Ms. Gonzales testified that Ms. L. Gonzalez prior to her
arrival at the Barstow CPO never informed them of her intention or
desire to meet with Mr. Boyce. Ms. L. Gonzalez did not testify at the
hearing.
(3) Mr. Boyce's work hours are from 7 a.m. to 3:30 p.m.
(4) It appears that in awarding Mr. Boyce a 35 minute AWOL,
Respondent calculated the time from 2:55 p.m. when it discovered he was
off the premises to the 3:30 p.m. quitting time, reasoning that the
Authority agent could not have met with Mr. Boyce before such quitting
time.