[ v04 p170 ]
04:0170(28)CA
The decision of the Authority follows:
4 FLRA No. 28
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS 438TH AIR BASE
GROUP (MAC), McGUIRE AFB,
NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1778
Complainant
Assistant Secretary
Case No. 32-05465(CA)
DECISION AND ORDER
ON FEBRUARY 12, 1980, ADMINISTRATIVE LAW JUDGE FRANCIS E. DOWD ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDINGS,
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. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978, 43 F.R. 36040, WHICH TRANSFER OF FUNCTIONS IS IMPLEMENTED
BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR
2400.2. THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE
OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7135(B)).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND IN HIS DECISION AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.
THE RULINGS ARE AFFIRMED. ON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS,
AND RECOMMENDATION. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 32-05465(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
NICHOLAS J. ANGELIDES, LT. COL.
USAF CENTRAL LABOR LAW OFFICE
RANDOLPH AFB, TEXAS 78148
AND
JAMES L. LINSEY, CAPT.
438 ABG/JA
MCGUIRE AFB, NEW JERSEY 08641
FOR THE RESPONDENT
JOSEPH F. GIRLANDO
NATIONAL REPRESENTATIVE, AFGE
300 MAIN STREET
ORANGE, NEW JERSEY 07050
AND
HERMAN A. WINTERS, JR.
PRESIDENT, LOCAL 1778, AFGE
P.O. BOX 278
WRIGHTSTOWN, NEW JERSEY 08562
FOR THE COMPLAINANT
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
PRELIMINARY STATEMENT
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER REFERRED TO AS THE ORDER). ON JULY 7, 1978, LOCAL 1778 OF
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, (HEREIN THE COMPLAINANT
OR UNION) FILED A COMPLAINT ALLEGING VIOLATIONS OF SECTIONS 19(A)(1) AND
(6) OF THE ORDER BASED UPON THE REMOVAL OF PROBATIONARY EMPLOYEE JESSE
CAMPBELL "BY DENIAL OF RIGHTS GRANTED OTHER EMPLOYEES." THE COMPLAINT
WAS DISMISSED BY THE REGIONAL ADMINISTRATOR.
ON AUGUST 21, 1979, THE FEDERAL LABOR RELATIONS AUTHORITY REVERSED
THE REGIONAL ADMINISTRATOR'S DISMISSAL CONCLUDING THERE WAS A REASONABLE
BASIS FOR THE COMPLAINT "WHICH ALLEGES THAT THE ACTIVITY DENIED MR.
JESSE CAMPBELL, A PROBATIONARY EMPLOYEE, HIS RIGHTS BY PREVENTING HIM
FROM FILING A GRIEVANCE UNDER THE NEGOTIATED AGREEMENT CONCERNING THE
MATTER OF HIS REMOVAL." ON SEPTEMBER 18, 1979, A NOTICE OF HEARING WAS
ISSUED BY REGIONAL DIRECTOR RONALD T. SMITH AND, PURSUANT THERETO, A
HEARING WAS HELD IN LAKEHURST, NEW JERSEY.
AT THE HEARING, BOTH PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND ARGUE
ORALLY. THEREAFTER, BOTH PARTIES FILED BRIEFS WHICH HAVE BEEN DULY
CONSIDERED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
FINDINGS OF FACT
A. BACKGROUND /2/
1. THE COMPLAINANT IS, AND AT ALL RELEVANT TIMES HAS BEEN, THE
EXCLUSIVE BARGAINING REPRESENTATIVE FOR A UNIT OF APPROPRIATED FUND
EMPLOYEES AT MCGUIRE AIR FORCE BASE, NEW JERSEY.
2. PURSUANT TO THEIR RIGHTS AND OBLIGATIONS UNDER EXECUTIVE ORDER
11491, AS AMENDED, THE PARTIES ENTERED INTO SUCCESSIVE COLLECTIVE
BARGAINING AGREEMENTS COVERING THE UNIT. UNDER THE 1974 AGREEMENT A
DISPUTE AROSE INVOLVING THE ISSUE OF THE APPLICABILITY OF THE NEGOTIATED
GRIEVANCE PROCEDURE TO TEST THE TERMINATION OF MRS. MARCELINE A.
FYLSTRA, A PROBATIONARY EMPLOYEE. THE MATTER WAS PROCESSED THROUGH THE
NEGOTIATED GRIEVANCE PROCEDURE TO ARBITRATION. FOLLOWING A HEARING IN
JUNE 1975, THE ARBITRATOR FOUND A "PRIMACY" OF APPLICABLE LAWS AND
REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING THE FPM, UNDER THE
COLLECTIVE AGREEMENT PROVISIONS AND CONCLUDED AT PAGE 11 IN HIS AWARD
THAT:
SECTION 8-4-3, SUBCHAPTER 8 OF THE FEDERAL PERSONNEL MANUAL
SPECIFICALLY HOLDS THAT A
PROBATIONARY EMPLOYEE IS NOT GIVEN A RIGHT TO REPLY TO HIS OR HER
SEPARATION. ABSENT THE
RIGHT OF THE EMPLOYEE TO REPLY THERE IS NO REASON TO CONCLUDE THAT
THE UNION HAS SUCH A
RIGHT. IT IS HELD THAT THE SEPARATION OF MRS. FYLSTRA (A
PROBATIONARY EMPLOYEE) IS NOT A
GRIEVABLE MATTER UNDER THE AGREEMENT. THE ARBITRATOR CAN FIND NO
MERIT IN THE OTHER ISSUES
RAISED BY THE UNION. THE ARBITRATOR HOLDS AGAINST THE UNION.
3. AFTER THE FYLSTRA DECISION AND PRIOR TO THE EFFECTIVE DATE OF THE
SUCCEEDING MEMORANDUM OF AGREEMENT ON AUGUST 11, 1977, ELEVEN EMPLOYEES
WERE SEPARATED DURING THEIR PROBATIONARY PERIODS. THE TESTIMONY OF
EARNEST HADFIELD DISCLOSES THAT THESE EMPLOYEES WERE NOT AFFORDED THE
RIGHT TO GRIEVE THEIR SEPARATIONS UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE AND THAT RESPONDENT HAS CONSISTENTLY MAINTAINED THE POSITION
THAT THE SEPARATION OF PROBATIONARY EMPLOYEES IS NOT GRIEVABLE.
4. THERE IS A SPECIFIC REFERENCE TO PROBATIONARY EMPLOYEES IN THE
CURRENT 1977 AGREEMENT AS BEING INCLUDED WITHIN THE UNIT, ALONG WITH
TEMPORARY EMPLOYEES, IN ARTICLE 2, SECTION 1, "RECOGNITION AND UNIT
DESIGNATION"-- A STATUS CONCEDED BY RESPONDENT BOTH AT THE FYLSTRA
ARBITRATION AND THE HEARING OF THE INSTANT CASE.
B. THE LEAVE USAGE LETTER
5. MR. JESSE CAMPBELL BECAME A PROBATIONARY EMPLOYEE, WITHIN THE
APPROPRIATED FUND UNIT OF EMPLOYEES REPRESENTED BY THE COMPLAINANT, ON
SEPTEMBER 19, 1977. MR. WILLIAM HARPER, AN EMPLOYEE AT MCGUIRE AFB,
TESTIFIED THAT WHILE ACTING AS VICE-PRESIDENT FOR THE COMPLAINANT, HE
WAS APPROACHED BY JESSE CAMPBELL ON OR ABOUT DECEMBER 9, 1977.
ACCORDING TO HARPER, MR. CAMPBELL COMPLAINED THAT HE HAD BEEN GIVEN A
WARNING LETTER CONCERNING USAGE (COMPLAINANT'S EXHIBIT NO. 2). /3/ THE
LETTER WAS NOT ACTUALLY IDENTIFIED AS A WARNING BUT I AGREE THAT IT
REASONABLY COULD BE INTERPRETED AS A WARNING. I DO NOT AGREE THAT IT
REASONABLY COULD BE INTERPRETED AS A WARNING. I DO NOT AGREE THAT IT
CONSTITUTED A PROPOSED DISCIPLINARY ACTION.
6. MR. CAMPBELL COMPLETED A GRIEVANCE REPORT ON AN INTERNAL UNION
FORM, COMPLAINING OF HARRASSMENT AND INTERFERENCE IN HIS PERSONAL
AFFAIRS BY HIS SUPERVISOR. THE FORM DID NOT SPECIFICALLY REFER TO THE
LEAVE USAGE LETTER AND IT WAS NOT TRANSMITTED TO THE RESPONDENT. I FIND
THAT IT WAS NOT ACTUALLY A GRIEVANCE.
7. ON DECEMBER 13, THE UNION SENT A LETTER TO RESPONDENT'S LABOR
MANAGEMENT RELATIONS SPECIALIST, ORLANDO BERGERSEN. THE LETTER WAS IN
THE NATURE OF A COMPLAINT ACCORDING TO HARPER (TR. 39); IT WASN'T
DESIGNATED AS A GRIEVANCE AND DID NOT CONTAIN A GRIEVANCE CASE NUMBER AS
WAS CUSTOMARY. (COMPARE, FOR EXAMPLE, COMPLAINANT'S EXHIBIT NO. 5 AND
RESPONDENT'S EXHIBIT NO. 6) I AGREE WITH RESPONDENT THAT IT WAS NOT A
GRIEVANCE.
8. BETWEEN DECEMBER 13 AND JANUARY 6 THE RESPONDENT DECIDED TO
REMOVE THE LEAVE USAGE LETTER FROM CAMPBELL'S FILE. THE UNION
APPARENTLY LEARNED OF THIS AND THOUGHT ITS COMPLAINT HAD BEEN EFFECTIVE.
ACTUALLY, HOWEVER, THE REASON FOR THE REMOVAL WAS THAT THE ACTIVITY
REALIZED THAT THE LEAVE USAGE LETTER WAS UNSIGNED AND UNDATED. AS OF
THIS POINT IN TIME, NO FORMAL MEETING TO DISCUSS THIS MATTER HAD BEEN
HELD.
9. ON JANUARY 6, THE LEAVE USAGE LETTER TO CAMPBELL WAS REISSUED
WITHOUT ANY CHANGE AND THIS WAS BROUGHT TO THE UNION'S ATTENTION. IN
THE MEANTIME THE UNION LEARNED THAT THE LEAVE USAGE LETTER HAD BEEN
ISSUED TO AT LEAST 2 OTHER EMPLOYEES, INCLUDING WALLY JONES.
10. ON JANUARY 16, 1980, A LETTER WAS SENT TO BERGERSEN FROM HARPER
ENTITLED "UNION GRIEVANCE-- LEAVE USAGE LETTER CASE # 972" SPECIFICALLY
INVOKING ARTICLE 34-- THE GRIEVANCE PROCEDURE. PARAGRAPH 6 THEREOF
MAKES REFERENCE TO PROBATIONARY EMPLOYEES AND PARAGRAPH 4 REFERS TO THE
ACTIVITY'S UNDATED RESPONSE "RECEIVED DECEMBER 21, 1977" (NOT IN
EVIDENCE) WHICH I INFER WAS IN REPLY TO THE UNION'S LETTER OF DECEMBER
13. FROM THE TESTIMONY OF HARPER, IT IS CLEAR THAT THIS WAS NOT ONLY A
UNION GRIEVANCE BUT IT WAS ON BEHALF OF THE EMPLOYEES, INCLUDING
CAMPBELL. (TR. 28, 40)
11. ON JANUARY 18, 1978, A MEETING ATTENDED BY UNION OFFICIALS
WINTERS AND HARPER AND RESPONDENT OFFICIALS BERGERSEN AND HADFIELD, WAS
HELD IN AN ATTEMPT TO RESOLVE THE UNION'S DISSATISFACTION WITH THE LEAVE
USAGE LETTER PROCEDURE. THE MEETING RESULTED IN A "RESOLUTION" OF THE
GRIEVANCE, ACCORDING TO HARPER, HADFIELD AND BERGERSEN. RESPONDENT
AGREED NOT TO EMPLOY A "SHOTGUN APPROACH" AND USE THE SAME LETTER FOR
EVERYONE. RESPONDENT AGREED TO TAILOR THE LETTER MORE SPECIFICALLY TO
EACH INDIVIDUAL CASE. RESPONDENT DID NOT AGREE TO CHANGE CAMPBELL'S
LETTER BECAUSE NO CHANGE WAS NECESSARY SINCE HE HAD ABUSED BOTH ANNUAL
AND SICK LEAVE. RESPONDENT ALSO DID NOT CHANGE THE LETTER TO WALLY
JONES, A NONPROBATIONARY EMPLOYEE, FOR THE SAME REASON. I AM UNABLE TO
CREDIT THE CONFUSING TESTIMONY OF HARPER WHO SEEMED TO THINK THE
DECISION WITH RESPECT TO CAMPBELL WAS BECAUSE OF IS STATUS AS A
PROBATIONARY. I ACCEPT RESPONDENT'S EXPLANATION.
C. THE TERMINATION OF CAMPBELL
13. A LETTER GIVING NOTICE OF PROPOSED SEPARATION DURING
PROBATIONARY PERIOD WAS ISSUED ON FEBRUARY 9, 1978 AND SERVED ON JESSE
CAMPBELL WHO BROUGHT THE MATTER TO THE ATTENTION OF WILLIAM HARPER, THE
UNION'S REPRESENTATIVE. IN PERTINENT PART, THE BASIS FOR THE PROPOSED
SEPARATION WAS SET FORTH AS FOLLOWS:
A. EXCESSIVE ABSENTEEISM: SINCE YOUR ENTRANCE ON DUTY YOU HAVE BEEN
ABSENT FROM YOUR
DUTIES FOR 97 HOURS. THE MAJORITY OF THIS TIME WAS NOT SCHEDULED IN
ADVANCE. ON 6 DECEMBER
1977, YOU WERE GIVEN A LETTER PROVIDING EXPLICIT INSTRUCTIONS FOR YOU
TO FOLLOW TO REQUEST
LEAVE. SINCE THAT TIME YOU HAVE TAKEN 22 HOURS OF LEAVE, NONE OF
WHICH WAS SCHEDULED IN
ADVANCE. YOU HAVE BEEN COUNSELED BY THE UNDERSIGNED ON SEVERAL
OCCASIONS REGARDING THE PROPER
METHOD OF REQUESTING LEAVE, SPECIFICALLY, 30 SEPTEMBER, 21 OCTOBER, 2
DECEMBER AND 5 DECEMBER,
1977.
B. EXCESSIVE TARDINESS: SINCE YOUR ENTRANCE ON DUTY YOU HAVE BEEN
LATE FOR WORK ON 2, 3,
4, 28, 30 NOVEMBER 1977; 5, 6, 8, DECEMBER 1977; AND 10, 19, 23,
26, 30 JANUARY 1978. YOU
HAVE BEEN COUNSELED SEVERAL TIMES BY THE UNDERSIGNED CONCERNING YOUR
TARDINESS, SPECIFICALLY,
4 NOVEMBER 1977; 5 DECEMBER 1977 AND 14 DECEMBER 1977.
I FIND NO EVIDENCE THAT CAMPBELL PERSONALLY FILED OR EVEN ATTEMPTED
TO FILE A GRIEVANCE, ORAL OR WRITTEN, WITH THE ACTIVITY. ON THE
CONTRARY, HE WAS RELYING ON THE UNION FOR ASSISTANCE.
14. ON FEBRUARY 16, 1978, AFTER SERVICE OF THE NOTICE OF PROPOSED
SEPARATION, AN UNSCHEDULED MEETING WAS HELD IN MR. BERGERSON'S OFFICE
CONCERNING THE PROPOSED SEPARATION OF CAMPBELL. PRESENT WERE MR. HARPER
AND MR. WINTERS, FOR THE UNION, AND MR. BERGERSON AND MR. HADFIELD, FOR
RESPONDENT. TO THE EXTENT THAT THERE IS A CONFLICT IN THE TESTIMONY
WITH RESPECT TO CERTAIN MATTERS DISCUSSED AT THIS MEETING, I ACCEPT AND
CREDIT THE MUTUALLY CORROBORATIVE TESTIMONY OF HADFIELD AND BERGERSON,
BOTH OF WHOM WERE CREDIBLE WITNESSES WHOSE VERSION WAS MOST PLAUSIBLE
AND CONSISTENT WITH OTHER ASPECTS OF THIS CASE. I MUST REJECT HARPER'S
TESTIMONY WHERE IT CONFLICTS WITH RESPONDENT'S WITNESSES. HARPER HAD A
POOR MEMORY FOR DETAILS AND WAS CONFUSED ABOUT DATES AND EVENTS.
ACCORDINGLY, I CONCLUDE THAT RESPONDENT AT THIS FEBRUARY 16 MEETING
INFORMED THE UNION OF ITS POSITION, AS FOLLOWS:
A. BECAUSE THE SEPARATION OF CAMPBELL WAS ONLY "PROPOSED", IT WAS
PREMATURE TO GRIEVE.
B. PROBATIONARY EMPLOYEES HAD A RIGHT TO FILE GRIEVANCES UNDER THE
CONTRACT BUT SUCH RIGHT DID NOT EXTEND TO THEIR TERMINATION. THEREFORE,
IF THE UNION SHOULD DECIDE TO FILE A GRIEVANCE OR THE TERMINATION,
RESPONDENT MERELY STATED IN ADVANCE WHAT ITS POSITION WOULD BE, NAMELY,
THAT PROBATIONARY EMPLOYEES HAD NO RIGHT UNDER THE CONTRACT TO GRIEVE
THEIR TERMINATION BECAUSE A STATUTORY APPEALS SYSTEM EXISTS FOR THAT
PURPOSE.
C. THE UNION DID NOT FILE AN ORAL GRIEVANCE AT THIS MEETING.
D. RESPONDENT'S REPRESENTATIVE DID NOT PREVENT OR ATTEMPT TO PREVENT
THE UNION FROM FILING A GRIEVANCE ON BEHALF OF CAMPBELL.
15. ON FEBRUARY 17 THE DAY AFTER THE MEETING CONCERNING CAMPBELL,
ANOTHER MEETING WAS CONDUCTED WITH REPRESENTATIVES OF RESPONDENT AND
THE
UNION. THEIR MEETING DEALT WITH THE PROPOSED SEPARATION OF A DIFFERENT
EMPLOYEE, CONRAD HOLLAND, ALSO A PROBATIONARY EMPLOYEE.
16. ON MARCH 7 THE UNION WROTE TO THE ACTIVITY IN RESPONSE TO THE
PROPOSED SEPARATION OF CAMPBELL. THIS WAS NOT A GRIEVANCE, BECAUSE IT
WAS NOT DESIGNATED AS SUCH AND NOT ASSIGNED A GRIEVANCE CASE NUMBER BY
THE UNION.
17. ON MARCH 10 THE RESPONDENT ISSUED ITS "NOTICE OF DECISION"
SEPARATING CAMPBELL, EFFECTIVE MARCH 14.
18. ON APRIL 5 THE RESPONDENT FILED A GRIEVANCE NOT ON BEHALF OF
CAMPBELL BUT, RATHER, ON BEHALF OF HOLLAND, EVEN THOUGH IT WAS AWARE OF
RESPONDENT'S POSITION THAT THE MATTER WAS NON-GRIEVABLE. WHEN
RESPONDENT FORMALLY REPLIED TO THE GRIEVANCE, THE UNION INITIATED
ARBITRATION.
APPLICABLE LAW
SECTION 6(A)(5) OF EXECUTIVE ORDER 11491, AS AMENDED, PROVIDES THAT
"THE ASSISTANT SECRETARY SHALL . . . DECIDE QUESTIONS AS TO WHETHER A
GRIEVANCE IS SUBJECT TO A NEGOTIATED GRIEVANCE PROCEDURE OR SUBJECT TO
ARBITRATION UNDER AN AGREEMENT AS PROVIDED IN SECTION 13(D) OF THIS
ORDER." SECTION 13(D) OF THE ORDER PROVIDES:
QUESTIONS THAT CAN NOT BE RESOLVED BY THE PARTIES AS TO WHETHER OR
NOT A GRIEVANCE IS ON A
MATTER FOR WHICH A STATUTORY APPEAL PROCEDURE EXISTS, SHALL BE
REFERRED TO THE ASSISTANT
SECRETARY FOR DECISION. OTHER QUESTIONS AS TO WHETHER OR NOT A
GRIEVANCE IS ON A MATTER
SUBJECT TO THE GRIEVANCE PROCEDURE IN AN EXISTING AGREEMENT, OR IS
SUBJECT TO ARBITRATION
UNDER THAT AGREEMENT, MAY BY AGREEMENT OF THE PARTIES BE SUBMITTED TO
ARBITRATION OR MAY BE
REFERRED TO THE ASSISTANT SECRETARY FOR DECISION.
IT IS WELL SETTLED THAT THIS SECTION PROVIDES THE EXCLUSIVE AVENUE
AVAILABLE FOR UNIONS TO TEST GOOD FAITH ASSERTIONS BY MANAGEMENT THAT
MATTERS ARE NOT WITHIN THE SCOPE OF THEIR NEGOTIATED GRIEVANCE
PROCEDURE. U.S. AIR FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP
(TAC), HOMESTEAD AFB, FLORIDA, FLRC NO. 75A-82, 3 FLRC 752(1975);
PENNSYLVANIA ARMY AND AIR NATIONAL GUARD, A/SLMR NO. 1087(1978);
DEPARTMENT OF THE ARMY, U.S. ARMY MATERIEL DEVELOPMENT AND READINESS
COMMAND, A/SLMR NO. 1025(1978); NAVAL AIR REWORK FACILITY, CHERRY
POINT, NORTH CAROLINA, A/SLMR NO. 849(1977); AND VETERANS
ADMINISTRATION HOSPITAL, WACO, TEXAS, A/SLMR NO. 735(1976).
IN THE PENNSYLVANIA ARMY AND AIR NATIONAL GUARD CASE, SUPRA,
MANAGEMENT WAS ALLEGED TO HAVE VIOLATED THE ORDER BY REFUSING TO PROCESS
A GRIEVANCE IN ACCORDANCE WITH THE NEGOTIATED PROCEDURE. IN HIS
RECOMMENDED DISMISSAL OF THE COMPLAINT, ACCEPTED BY THE ASSISTANT
SECRETARY, THE ADMINISTRATIVE LAW JUDGE REAFFIRMED THE RULE THAT "A
REFUSAL TO PROCESS A GRIEVANCE THROUGH A NEGOTIATED GRIEVANCE PROCEDURE
WITHOUT BAD FAITH DOES NOT CONSTITUTE AN UNFAIR LABOR PRACTICE, AS A
COMPLAINANT IN SUCH CASES HAS A RIGHT UNDER SECTION 13(D) OF THE ORDER
TO FILE AN APPLICATION REQUESTING THE ASSISTANT SECRETARY TO DECIDE THE
QUESTION AS TO GRIEVABILITY AND ARBITRABILITY OF THE GRIEVANCE
INVOLVED."
THUS, AS POINTED OUT BY RESPONDENT IN ITS BRIEF, THE ELEMENTS OF
PROOF REQUIRED TO ESTABLISH A VIOLATION BY ANY ALLEGED FAILURE OR
REFUSAL BY RESPONDENT TO PROCESS A GRIEVANCE ARE TWO FOLD: FIRST, THE
COMPLAINANT MUST DEMONSTRATE THAT THERE WAS A MANAGEMENT REFUSAL TO
PROCESS A GRIEVANCE THROUGH THE NEGOTIATED PROCEDURE; AND, SECOND, THAT
THE REFUSAL WAS IN BAD FAITH.
DISCUSSION AND CONCLUSIONS OF LAW
A. THE LEAVE USAGE LETTER
COMPLAINANT CONTENDS THAT RESPONDENT DENIED CAMPBELL THE BENEFIT OF,
OR ACCESS TO, THE NEGOTIATED GRIEVANCE PROCEDURE. THE MOST THAT
CAMPBELL DID WAS TO FILE A "GRIEVANCE REPORT" WITH THE UNION AND RELY ON
THE UNION TO TAKE THE NEXT STEP. ACCORDINGLY, THERE IS NO EVIDENCE THAT
CAMPBELL PERSONALLY ATTEMPTED TO FILE A GRIEVANCE WITH RESPONDENT OR WAS
PREVENTED FROM FILING A GRIEVANCE.
THE RECORD DOES SHOW THAT THE UNION FILED A GRIEVANCE ON JANUARY 16
AND I HAVE FOUND, BASED UPON THE RECORD, THAT CAMPBELL'S GRIEVANCE WAS
ENCOMPASSED BY THIS GRIEVANCE, THE PURPOSE OF WHICH WAS TO OBJECT TO THE
USE OF THE FORM LETTER WHICH REPRESENTED, ACCORDING TO THE UNION, A
CHANGE IN PERSONNEL POLICIES AND PRACTICES AFFECTING THE WORKING
CONDITIONS OF THE EMPLOYEES IN THE UNIT WITHOUT PRIOR NOTICE AND
CONSULTATION WITH THE UNION. THE UNION COULD HAVE ELECTED TO FILE AN
UNFAIR LABOR PRACTICE CHARGE ON THIS ISSUE BUT, INSTEAD, ELECTED TO
INVOKE THE NEGOTIATED GRIEVANCE PROCEDURE. ACCORDINGLY, IT IS NOW
BARRED BY SECTION 19(D) FROM RAISING THIS ISSUE IN THE CONTEXT OF AN
UNFAIR LABOR PRACTICE PROCEEDING.
B. THE TERMINATION OF CAMPBELL
BEFORE REACHING THE QUESTION OF WHETHER THE RESPONDENT HAS REFUSED TO
PROCESS A GRIEVANCE ON CAMPBELL'S SEPARATION IT IS NECESSARY TO DECIDE
WHETHER CAMPBELL OR THE UNION FILED OR ATTEMPTED TO FILE A GRIEVANCE IN
THE FIRST PLACE.
WITH RESPECT TO CAMPBELL'S ACTIONS IN THIS RECORD, THE RECORD SHOWS
THAT UPON RECEIPT OF THE FEBRUARY 9 LETTER PROPOSING HIS SEPARATION,
CAMPBELL FIRST WENT TO SEE HIS UNION REPRESENTATIVE, HARPER, AND THEN
WENT TO SEE SGT. BAXTER, A LEVEL OF SUPERVISION HIGHER THAN HIS
IMMEDIATE SUPERVISOR, ANN SIMPSON. CAMPBELL DID NOT TESTIFY THAT HE
ATTEMPTED TO FILE A GRIEVANCE OR WAS PREVENTED FROM FILING A GRIEVANCE.
HE APPARENTLY INQUIRED TO WHAT HE COULD DO TO AVOID BEING SEPARATED AND
WAS TOLD TO WRITE A LETTER "STATING WHY HE SHOULD NOT BE TERMINATED."
BASED UPON THIS EVIDENCE I AM UNABLE TO CONCLUDE THAT CAMPBELL
PERSONALLY ATTEMPTED TO GRIEVE HIS PROPOSED SEPARATION OR THAT
RESPONDENT PREVENTED HIM FROM DOING SO.
THE UNION, HOWEVER, DID (1) MEET WITH RESPONDENT TO DISCUSS
CAMPBELL'S PROPOSED SEPARATION, AND (2) WRITE TO RESPONDENT ON MARCH 7
IN REPLY TO THE FEBRUARY 9 LETTER PROPOSING SEPARATION. BASED UPON THE
RECORD EVIDENCE, I HAVE CONCLUDED THAT THE UNION DID NOT FILE OR ATTEMPT
TO FILE A GRIEVANCE ON BEHALF OF CAMPBELL. RATHER, I HAVE FOUND THAT
RESPONDENT INFORMED THE UNION THAT IF A GRIEVANCE WERE FILED, IT WOULD
BE REJECTED ON THE GROUND THAT A PROBATIONARY EMPLOYEE COULD NOT GRIEVE
A SEPARATION BECAUSE HE HAD TO UTILIZE AN EXISTING STATUTORY APPEALS
PROCEDURE. I FURTHER CONCLUDE THAT THIS DID NOT PREVENT THE UNION FROM
FILING A GRIEVANCE AND THEN UTILIZING SECTION 13(D) OF THE ORDER TO
OBTAIN A DECISION FROM THE ASSISTANT SECRETARY AS TO WHETHER THE
GRIEVANCE IS ON A "MATTER FOR WHICH A STATUTORY APPEALS PROCEDURE
EXISTS."
DURING THE HEARING, UNION WITNESS HARPER ASSERTED THAT BECAUSE OF
RESPONDENT'S "REFUSAL" TO PROCESS A GRIEVANCE THE UNION HAD NO CHOICE
BUT TO FILE AN UNFAIR LABOR PRACTICE CHARGE. OF COURSE THIS IS NOT TRUE
AS DEMONSTRATED BY THE FACT THAT BEFORE FILING THE INSTANT CHARGE ON
APRIL 24 THE UNION FILED A GRIEVANCE ON BEHALF OF ANOTHER PROBATIONARY
EMPLOYEE, HOLLAND, INVOLVING HIS SEPARATION. THE UNION COULD HAVE DONE
THE SAME THING FOR CAMPBELL. THE UNION DID HAVE A CHOICE AND I CONCLUDE
THAT IT ELECTED TO UTILIZE THE UNFAIR LABOR PRACTICE PROCEDURE. HAVING
DONE SO, THE UNION HAS THE BURDEN OF PROVING THAT RESPONDENT, BY ITS
CONDUCT, VIOLATED THE ORDER.
THE AUTHORITY, IN REVERSING THE REGIONAL DIRECTOR'S DISMISSAL, FOUND
THAT A REASONABLE BASIS HAD BEEN ESTABLISHED FOR A HEARING TO DETERMINE
WHETHER THE ACTIVITY DENIED CAMPBELL, A PROBATIONARY EMPLOYEE, HIS
RIGHTS BY PREVENTING HIM FROM FILING A GRIEVANCE CONCERNING HIS REMOVAL.
BASED UPON MY CONSIDERATION OF ALL THE EVIDENCE, I AM UNABLE TO
CONCLUDE THAT RESPONDENT PREVENTED CAMPBELL OR THE UNION FROM FILING A
GRIEVANCE. ASSUMING, ARGUENDO, THAT A GRIEVANCE WAS FILED, I FIND NO
EVIDENCE OF A REFUSAL TO PROCESS SAID GRIEVANCE.
ASSUMING, FURTHER, THAT THE RESPONDENT REFUSED TO PROCESS A GRIEVANCE
FILED BY THE UNION ON CAMPBELL'S BEHALF, I WOULD FURTHER FIND THAT
RESPONDENT'S REFUSAL WAS NOT IN BAD FAITH.
UNLIKE THE CONTRACT BETWEEN RESPONDENT AND THE UNION FOR A DIFFERENT
UNIT, /4/ THE INSTANT CONTRACT DOES NOT CONTAIN A PROVISION SPECIFICALLY
GRANTING PROBATIONARY EMPLOYEES A RIGHT TO GRIEVE THEIR SEPARATION.
INSTEAD, THE INSTANT CONTRACT SPECIFICALLY INCLUDES MATTERS FOR WHICH
"STATUTORY APPEALS PROCEDURES EXIST" AND AT THE TIME THE CONTRACT WAS
NEGOTIATED THE ARBITRATOR IN THE FYLSTRA CASE HAD ALREADY RESOLVED THIS
ISSUE IN FAVOR OF RESPONDENTS. IN MY OPINION, IT WAS NOT UNREASONABLE
FOR RESPONDENT TO BELIEVE THAT THIS ISSUE HAD BEEN LAID TO REST BY THE
ARBITRATOR'S DECISION. /5/ ACCORDINGLY, I CONCLUDE THERE IS AMPLE
EVIDENCE TO SUPPORT RESPONDENT'S LEGAL ARGUMENT THAT IT ACTED IN GOOD
FAITH BY ADHERING TO THIS POSITION.
RECOMMENDATION
IT HAVING BEEN FOUND THAT RESPONDENT DID NOT VIOLATE SECTIONS
19(A)(1) AND (6) OF THE ORDER BY REFUSING TO PROCESS A GRIEVANCE, I
RECOMMEND THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 12, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THIS CASE WAS DECIDED SOLELY ON THE BASIS OF
E.O. 11491, AS AMENDED, AND AS IF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7101-7135) HAD NOT BEEN ENACTED. THE
DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
THE APPLICATION OF RELATED PROVISIONS OF THE STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ TO THE EXTENT POSSIBLE, I HAVE ADOPTED MUCH OF THE PROPOSED
FINDINGS SUBMITTED BY RESPONDENT. REFERENCES TO THE TRANSCRIPT AND
EXHIBITS HAVE BEEN OMITTED IN MOST INSTANCES.
/3/ FROM THE TESTIMONY IT SEEMS CLEAR THAT SUSPECTED "ABUSE OF LEAVE"
IS WHAT PROMPTS THE ISSUANCE OF THE LEAVE USAGE LETTER. THE TRANSCRIPT
IS HEREBY CORRECTED (P. 18 ET AL) TO REFLECT THAT "ABUSIVE LEAVE" SHOULD
READ "ABUSE OF LEAVE."
/4/ AT THE HEARING, I REJECTED RESPONDENT'S EXHIBIT NO. 9, AN
AGREEMENT NEGOTIATED BETWEEN THE SAME PARTIES FOR A DIFFERENT UNIT
CONSISTING OF NON-APPROPRIATED FUND EMPLOYEES ALSO AT MCGUIRE AFB. UPON
RECONSIDERATION, I REVERSE THIS RULING AND RECEIVE IT INTO EVIDENCE AS
BEING RELEVANT TO RESPONDENT'S "GOOD FAITH" DEFENSE.
/5/ I AM NOT HERE DECIDING WHETHER RESPONDENT'S POSITION IS LEGALLY
CORRECT. PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, A/S CASE
NO. 71-3492, FLRC 76A-57; DEPARTMENT OF THE ARMY, HEADQUARTERS, 172ND
INFANTRY BRIGADE, FORT RICHARDSON, ALASKA, CASE NO. 71-4695(CA) A/S
RULING ON REQUEST FOR REVIEW, SEPT. 15, 1972. NOR AM I DECIDING THE
THRESHOLD QUESTION OF WHETHER THE GRIEVANCE IS A MATTER SUBJECT TO THE
GRIEVANCE PROCEDURE (SEE SECTION 13(D) OF THE ORDER).