[ v04 p736 ]
04:0736(98)CA
The decision of the Authority follows:
4 FLRA No. 98
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, REGION V,
CHICAGO, ILLINOIS
Respondent
and
LOCAL 3400, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Case Nos. 5-CA-37
5-CA-72
5-CA-116
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER 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. THEREAFTER, BOTH THE
CHARGING PARTY AND THE GENERAL COUNSEL FILED EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE
RESPONDENT FILED AN OPPOSITION TO SUCH EXCEPTIONS.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY HAS REVIEWED THE
RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS
THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE EXCEPTIONS FILED BY THE CHARGING PARTY AND GENERAL
COUNSEL AND THE RESPONDENT'S OPPOSITION TO SUCH EXCEPTIONS, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS, AS MODIFIED BELOW.
IN THE INSTANT CASE, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE
RESPONDENT DID NOT VIOLATE SECTION 7116(A)(1), (2) AND (5) OF THE
STATUTE, AS ALLEGED, BY REQUIRING THE LOCAL UNION PRESIDENT AND ANOTHER
UNION REPRESENTATIVE TO OBTAIN ADVANCE APPROVAL FOR RELEASE FROM DUTY IN
ORDER TO ENGAGE IN UNION ACTIVITIES DURING WORKING HOURS PURSUANT TO THE
TERMS OF THE PARTIES' AGREEMENT, AND BY ISSUING A REPRIMAND TO THE UNION
PRESIDENT FOR HIS EXPRESS REFUSAL TO COMPLY WITH SUCH REQUIREMENT. IN
SO CONCLUDING, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE PARTIES'
AGREEMENT SPECIFICALLY REQUIRED LOCAL UNION OFFICERS AND STEWARDS TO BE
RELEASED FROM DUTY BY THEIR IMMEDIATE SUPERVISORS BEFORE ENGAGING IN
UNION ACTIVITIES DURING WORKING HOURS AND SUCH REQUIREMENT HAD BEEN
FOLLOWED CONSISTENTLY IN THE REGION. HE FURTHER FOUND THAT THE LOCAL
UNION PRESIDENT FOR A NUMBER OF MONTHS HAD BEEN ACCOUNTING FOR HIS TIME
SPENT ON UNION ACTIVITIES BY SUBMITTING A WEEKLY WRITTEN REPORT TO HIS
SUPERVISOR; THAT SUCH PRACTICE HAD BECOME AN ESTABLISHED TERM AND
CONDITION OF EMPLOYMENT AS TO THE LOCAL UNION PRESIDENT WHICH THE
RESPONDENT COULD NOT UNILATERALLY CHANGE; BUT THAT THE RESPONDENT WAS
NOT PRECLUDED FROM CHANGING THAT PRACTICE BY REQUIRING COMPLIANCE WITH
THE NEGOTIATED AGREEMENT AFTER THE PARTIES HAD NEGOTIATED IN GOOD FAITH
AT THE UNION'S REQUEST CONCERNING THE MATTER.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, BUT IN PART FOR
DIFFERENT REASONS, THE AUTHORITY FINDS THAT THE RESPONDENT DID NOT
VIOLATE SECTION 7116(A)(1), (2) AND (5) OF THE STATUTE IN THE
CIRCUMSTANCES OF THIS CASE, AND THAT THE CONSOLIDATED COMPLAINT HEREIN
SHOULD BE DISMISSED IN ITS ENTIRETY. MORE SPECIFICALLY, THE AUTHORITY
FINDS THAT THE RESPONDENT DID NOT VIOLATE THE STATUTE IN THE PARTICULAR
CIRCUMSTANCES OF THIS CASE BY INSISTING THAT THE LOCAL UNION PRESIDENT
COMPLY WITH THE TERMS OF THE PARTIES' NEGOTIATED AGREEMENT, AS
CONSISTENTLY INTERPRETED AND APPLIED, WHICH REQUIRE THAT LOCAL UNION
OFFICERS BE RELEASED FROM DUTY BY THEIR IMMEDIATE SUPERVISORS BEFORE
ENGAGING IN UNION ACTIVITIES DURING WORKING TIME. IN THIS REGARD, THE
AUTHORITY CONCLUDES THAT THE RESPONDENT'S NOTICE TO THE LOCAL UNION
PRESIDENT CONCERNING HIS NEED TO OBTAIN ADVANCE APPROVAL FOR RELEASE
FROM DUTY BEFORE ENGAGING IN UNION ACTIVITIES DID NOT CONSTITUTE A
CHANGE IN CONDITIONS OF EMPLOYMENT BUT RATHER WAS A REAFFIRMATION OF THE
ESTABLISHED POLICY WHICH WAS INTENDED TO ENSURE UNIFORMITY OF
ENFORCEMENT AMONG ALL EMPLOYEES OF THE RESPONDENT. THUS, AS THE
ADMINISTRATIVE LAW JUDGE FOUND AND THE RECORD DEMONSTRATES, DURING THE
LIFE OF THE PARTIES' AGREEMENT ALL UNION REPRESENTATIVES-- INCLUDING THE
UNION PRESIDENT'S PREDECESSOR IN THAT OFFICE-- HAD BEEN REQUIRED TO
REQUEST RELEASE TIME, IN ADVANCE, TO ENGAGE IN UNION REPRESENTATIONAL
ACTIVITIES. ACCORDINGLY, IN CONCLUDING THAT THE RESPONDENT DID NOT
VIOLATE SECTION 7116(A)(1), (2) AND (5) OF THE STATUTE IN THE
CIRCUMSTANCES PRESENTED, THE AUTHORITY FINDS IT UNNECESSARY TO REACH OR
PASS UPON WHETHER OR UNDER WHAT CIRCUMSTANCES THE SPECIFIC PROVISIONS OF
A NEGOTIATED AGREEMENT MAY BE SUPERSEDED BY THE PARTIES' INCONSISTENT
ESTABLISHED PRACTICE.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN FLRA CASE NOS. 5-CA-37,
5-CA-72 AND 5-CA-116 BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., DECEMBER 15, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
EDWARD L. KOVEN, ESQUIRE
GENERAL ATTORNEY
OFFICE OF GENERAL COUNSEL
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE
REGION V
18TH FLOOR
300 SOUTH WACKER DRIVE
CHICAGO, ILLINOIS 60606
FOR THE RESPONDENT
BRENDA M. ROBINSON, ESQUIRE
REGIONAL ATTORNEY
FEDERAL LABOR RELATIONS AUTHORITY
ROOM 1638
DIRKSEN FEDERAL BUILDING
219 SOUTH DEARBORN STREET
CHICAGO, ILLINOIS 60604
FOR THE GENERAL COUNSEL
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
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.
SECTION 7101, ET SEQ., /1/ AND THE INTERIM RULES AND REGULATIONS ISSUED
THEREUNDER, FED. REG., VOL. 44, NO. 147, JULY 30, 1979, 5 C.F.R. CHAPTER
XIV, PART 2411, ET SEQ.
THE CHARGE IN CASE NO. 5-CA-37 WAS FILED ON MARCH 21, 1979; THE
CHARGE IN CASE NO. 5-CA-72 -AS FILED ON APRIL 17, 1979; AND THE CHARGE
IN CASE NO. 5-CA-116 WAS FILED ON MAY 22, 1979. ON AUGUST 31, 1979, THE
REGIONAL DIRECTOR ISSUED AN ORDER CONSOLIDATING CASES, COMPLAINT, AND
NOTICE OF HEARING TO COMMENCE ON SEPTEMBER 25, 1979. RESPONDENT FILED A
TIMELY ANSWER ON SEPTEMBER 17, 1979, AND, PURSUANT TO THE NOTICE OF
HEARING, A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON SEPTEMBER 25
AND 26, 1979, IN CHICAGO, ILLINOIS. ON SEPTEMBER 26, 1976, GENERAL
COUNSEL FILED A MOTION TO AMEND CONSOLIDATED COMPLAINT, RECEIVED BY THIS
OFFICE ON OCTOBER 2, 1979; ON OCTOBER 3, 1979, RESPONDENT STATED IT HAD
NO OBJECTION TO GENERAL COUNSEL'S MOTION TO AMEND AND MOVED TO AMEND ITS
ANSWER TO DENY THE AMENDED ALLEGATION. BOTH MOTIONS ARE HEREBY GRANTED.
ALL PARTIES WERE REPRESENTED BY ABLE COUNSEL, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED. AT THE CLOSE OF THE
HEARING, OCTOBER 25, 1979, WAS FIXED AS THE MAILING DATE FOR
POST-HEARING BRIEFS AND COUNSEL FOR EACH PARTY TIMELY MAILED EXCELLENT
BRIEFS WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON THE BASIS OF THE
ENTIRE RECORD, /2/ INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND ORDER:
BACKGROUND
THE THREE CASES, CONSOLIDATED BY THE REGIONAL DIRECTOR, INVOLVE A
COMMON QUESTION OF LAW AND FACT. ARTICLE XXII, SECTION E, OF THE
COLLECTIVE BARGAINING AGREEMENT OF THE PARTIES OF JUNE 6, 1975 (G.C.
EXH. 8) PROVIDED FOR ABSENCES FROM DUTY FOR A REASONABLE PERIOD OF TIME
BY STEWARDS AND/OR LOCAL UNION OFFICERS UNDER STATED CONDITIONS.
THE AGREEMENT SPECIFICALLY CONDITIONS SUCH ABSENCES ON RELEASE BY THE
IMMEDIATE SUPERVISOR; MR. MARTIN J. KOZAK, PRESENTLY AN ASSISTANT
REGIONAL AUDIT DIRECTOR, IN 1975 WAS AN ASSISTANT REGIONAL HEALTH
ADMINISTRATOR AND A MEMBER OF RESPONDENT'S NEGOTIATING TEAM WHICH
NEGOTIATED THE 1975 AGREEMENT, TESTIFIED THAT, AS A MEMBER OF THE
MANAGEMENT NEGOTIATING TEAM, IT WAS HIS UNDERSTANDING OF ARTICLE XXII
THAT UNION REPRESENTATIVES WERE REQUIRED TO OBTAIN ADVANCE APPROVAL FOR
RELEASE; AND THE RECORD OTHERWISE SHOWS THAT THE PARTIES SO CONSTRUED
AND APPLIED ARTICLE XXII (SEE, FOR EXAMPLE, HEW EXHS, 4, 5, 6, 8, 10,
13). ALTHOUGH THE RECORD WOULD FULLY SUPPORT A FINDING THAT ARTICLE
XXII REQUIRED ADVANCE APPROVAL FOR RELEASE OF UNION OFFICERS AND
STEWARDS, INASMUCH AS THE GENERAL COUNSEL STATED THAT THERE WAS NOT
DISAGREEMENT AS TO THE LANGUAGE OF ARTICLE XXII, I SIMPLY ACCEPT FOR THE
PURPOSES OF THIS PROCEEDING, RESPONDENT'S REPRESENTATION THAT THE 1975
AGREEMENT DID REQUIRE THAT UNION REPRESENTATIVES OBTAIN ADVANCE APPROVAL
FOR APPROPRIATE UNION ACTIVITIES DURING WORKING HOURS. /3/ THE GENERAL
COUNSEL FULLY ACCEPTED THIS PREMISE, ASSUMED THAT THE AGREEMENT REQUIRED
ADVANCE APPROVAL FOR RELEASE OF UNION OFFICERS AND STEWARDS FOR UNION
ACTIVITIES DURING WORKING HOURS, AND THE THEORY OF THE ALLEGED
VIOLATIONS IS THAT A PRACTICE AND/OR SIDE AGREEMENT WHICH DIFFERED FROM
ARTICLE XXII AS TO THE MANNER OF REPORTING ABSENCES, AT LEAST, BY THE
PRESIDENT OF LOCAL 3400, HAD RIPENED INTO A CONDITION OF EMPLOYMENT
WHICH RESPONDENT COULD NOT UNILATERALLY CHANGE EVEN THOUGH THE "CHANGE"
WAS TO INSIST UPON COMPLIANCE WITH THE PARTIES' NEGOTIATED AGREEMENT.
DURING 1978, THE PARTIES NEGOTIATED A NEW AGREEMENT, SIGNED BY BOTH
THE UNION AND MANAGEMENT NEGOTIATORS ON JUNE 28, 1978. THE NEW
PROVISION, AS TO ADVANCE APPROVAL OF ABSENCES FOR UNION ACTIVITY, WHILE
IN MANY RESPECTS WAS SUBSTANTIALLY UNCHANGED FROM THE 1975 PROVISION,
WAS, TO THE EXTENT THAT IT DIFFERED IN SUBSTANCE, MORE STRINGENT AND
MORE SPECIFIC THAN THE 1975 PROVISION HAD BEEN (SEE, HEW EXH. 34).
RENEGOTIATED ARTICLE XXII DID NOT CONTAIN ANY EXCEPTION, OR SPECIAL
PROCEDURE, FOR THE PRESIDENT OF LOCAL 3400. HOWEVER, THE JUNE 28, 1978,
AGREEMENT WAS NOT RATIFIED BY THE MEMBERSHIP OF LOCAL 3400, BUT WAS
REJECTED ON OCTOBER 16, 1978.
THERE IS NO DISPUTE THAT ON MARCH 12, 1976, RESPONDENT MADE A SPECIAL
ARRANGEMENT FOR THE THEN PRESIDENT OF LOCAL 3400, MS. ROSE MARY SMITH.
THIS ARRANGEMENT WAS MADE TO ACCOMODATE FOR THE FACT THAT MS. SMITH
WORKED IN A BUILDING SEVERAL BLOCKS FROM THE BUILDING IN WHICH THE GREAT
BULK OF THE UNIT EMPLOYEES WERE LOCATED. PURSUANT TO THIS ARRANGEMENT,
MS. SMITH WAS AUTHORIZED BLANKET RELEASE TIME EACH MONDAY FROM THE ONSET
OF WORK UNTIL 12:15 P.M. AT THE UNION OFFICE AND SHE WAS TO REQUEST
RELEASE TIME, IN ADVANCE, FOR OTHER UNION ACTIVITIES (HEW EXH. 10). A
FORM FOR REQUEST FOR RELEASE, SUBSEQUENTLY DEVELOPED BY THE LABOR
RELATIONS POLICY COMMITTEE, WAS AGREED TO BY THE UNION (HEW EXH. 8).
MS. SMITH WAS SUCCEEDED AS PRESIDENT, IN MARCH 1977, BY MR. WILLIAM
LOFTIS. MR. LOFTIS WAS LOCATED IN THE SAME BUILDING IN WHICH THE GREAT
MAJORITY OF UNIT EMPLOYEES WERE LOCATED. THE ARRANGEMENT MADE FOR MS.
SMITH WAS NEVER APPLIED TO MR. LOFTIS. THE PRECISE METHOD MR. LOFTIS
FOLLOWED TO OBTAIN OFFICIAL TIME FOR UNION ACTIVITIES FROM MARCH 1977,
UNTIL APRIL OR MAY 1976, WAS NOT SHOWN.
THERE IS NO DISPUTE THAT IN APRIL OR MAY 1978, THE THEN ASSISTANT
REGIONAL COMMISSIONER FOR SUPPLEMENTAL SECURITY INCOME, MS. LEZA GOODEN,
AGREED TO A PROCEDURE WHEREBY MR. LOFTIS WOULD USE THE REQUEST FOR
RELEASE FORM (HEW EXH. 8) TO REQUEST ADVANCE APPROVAL OF TIME FOR
MEETINGS WITH MANAGEMENT /4/ AND WOULD ACCOUNT FOR ALL OTHER TIME SPENT
ON UNION ACTIVITIES /5/ ON A WEEKLY BASIS ON A FORM DESIGNED BY MR.
LOFTIS AND APPROVED BY MS. GOODEN (G.C. EXH. 2). THERE IS NO DISPUTE
THAT: (A) MS. GOODEN DID NOT HAVE AUTHORITY TO BARGAIN WITH THE UNION;
(B) THIS WAS KNOWN BY MR. LOFTIS (SEE, HEW EXHIBITS 2 AND 4); AND (C)
THE ARRANGEMENT AGREED TO BY MS. GOODEN AND MR. LOFTIS WAS NOT
COMMUNICATED TO THE DIRECTOR, OR TO THE LABOR RELATIONS OFFICER, WHO HAD
BEEN DESIGNATED AS THE SPOKESPERSON FOR THE DIRECTOR IN MATTERS
APPROPRIATE TO COLLECTIVE BARGAINING. NEVERTHELESS, MR. LOFTIS FOLLOWED
THIS PROCEDURE FROM APRIL OR MAY 1978, WHEN IT WAS AGREED TO BY MS.
GOODEN.
MS. GOODEN LEFT THE CHICAGO REGION ON, OR ABOUT, SEPTEMBER 3, 1978,
AND BECAME ASSISTANT REGIONAL COMMISSIONER-FAMILY ASSISTANCE, IN DENVER,
COLORADO. SHE WAS SUCCEEDED INITIALLY BY MS. JO ELLEN LUSCOMBE, WHO
SERVED AS ACTING ASSISTANT REGIONAL COMMISSIONER-SS1, FROM SEPTEMBER 3,
1978, UNTIL OCTOBER 22, 1978, WHEN MS. RUTH J. RUBY BECAME ASSISTANT
REGIONAL COMMISSIONER. MS. LUSCOMBE ACCEPTED MR. LOFTIS' PRACTICE. IN
AUGUST 1978, WHEN MS. RUBY WAS DIRECTOR OF THE DIVISION OF MANAGEMENT
AND ADMINISTRATION, IN CONNECTION WITH RELEASE TIME FOR A STEWARD, SHE
ADVISED MR. LOFTIS THAT ADVANCE APPROVAL WAS NECESSARY FOR ALL UNION
ACTIVITIES. SHORTLY AFTER SHE BECAME ASSISTANT REGIONAL COMMISSIONER,
SS1, MS. RUBY TOLD MR. LOFTIS THAT ADVANCE APPROVAL WAS REQUIRED BY
ARTICLE XXII BUT SHE AGREED TO HONOR HIS AGREEMENT WITH MS. GOODEN UNTIL
SUCH TIME AS "THE CONTRACT WAS RENEGOTIATED." BY THE END OF NOVEMBER
1978, UNION HAD INFORMED RESPONDENT THAT ONE OF THE ARTICLES TO BE
REOPENED FOR NEGOTIATION WAS ARTICLE XXII.
IN JANUARY 1979, MS. RUBY CALLED MR. LOFTIS TO HER OFFICE AND
INFORMED HIM THAT SHE WAS GOING TO INVOKE HER INTERPRETATION OF ARTICLE
XXII AND THAT HE WOULD HAVE TO REQUEST OFFICIAL TIME IN ADVANCE FOR ALL
UNION ACTIVITY. MR. LOFTIS OBJECTED AND INFORMED MS. RUBY THAT HE GOING
TO TAKE THE MATTER TO THE DIRECTOR, MR. CHRISTOPHER COHEN. BY LETTER
DATED JANUARY 11, 1979, MR. LOFTIS REQUESTED A MEETING WITH MR. COHEN
(G.C. EXH. 9); AND A MEETING WAS HELD ON FEBRUARY 6, 1979. PRESENT FOR
THE UNION WERE: MR. AL KAPLAN; NATIONAL VICE PRESIDENT OF AFGE, MR.
PHIL PAGE, VICE PRESIDENT OF LOCAL 3400, MS. JANET WILLIAMS, STEWARD;
AND MR. LOFTIS. PRESENT FOR RESPONDENT WERE: MR. GEORGE BARTAL,
DIRECTOR OF THE REGIONAL ADMINISTRATIVE SUPPORT STAFF; MS. CYNTHIA
SOLTES, LABOR RELATIONS OFFICER; AND MR. COHEN. MR. LOFTIS TESTIFIED
THAT THE ISSUE OF RELEASE TIME WAS DISCUSSED; THAT HE GAVE MR. COHEN
THE UNION'S PROPOSAL; AND THAT HE STATED WHY UNION FELT A NEED FOR HIM,
MR. COHEN, TO LOOK AT THE RELEASE TIME FORM. MR. LOFTIS FURTHER
TESTIFIED THAT MR. COHEN REFERRED THE MATTER BACK TO MS. SOLTES AND
THAT MS. SOLTES SAID SHE WOULD "LOOK INTO IT AND GET BACK TO ME." (TR.
147).
ON FEBRUARY 8, 1979, MS. SOLTES ADVISED MR. LOFTIS THAT MANAGEMENT
SUPPORTED MR. RUBY'S POSITION THAT ADVANCE APPROVAL FOR APPROPRIATE
UNION ACTIVITIES WAS REQUIRED (G.C. EXH. 16). THIS POSITION WAS
REITERATED BY MR. COHEN IN A MEMORANDUM TO MR. LOFTIS, DATED MARCH 13,
1979 (G.C. EXH. 10). BY MEMORANDUM DATED MARCH 19, 1979, MS. RUBY
FORMALLY REQUESTED MR. LOFTIS TO ADHERE TO AN ATTACHED FORM /6/ TO BE
USED TO REQUEST "ALL OFFICIAL TIME DESIRED FOR UNION ACTIVITIES." (G.C.
EXH. 15). BY MEMORANDUM TO MS. RUBY, DATED MARCH 21, 1979, MR. LOFTIS
REFUSED TO COMPLY (G.C. EXH. 13). ON MARCH 27, 1979, MS. RUBY ADVISED
MR. LOFTIS, IN WRITING, THAT HIS FAILURE TO COMPLY WITH THE REQUIREMENT
TO REQUEST ADVANCE APPROVAL FOR ALL APPROPRIATE UNION ACTIVITIES DURING
WORKING HOURS WOULD RESULT IN AN ADVERSE ACTION BEING TAKEN (G.C. EXH.
11). ON APRIL 2, 1979, MR. LOFTIS REPLIED, IN WRITING, THAT HIS
POSITION WAS UNCHANGED AND THAT HE WOULD NOT COMPLY (G.C. EXH. 17). A
PROPOSAL TO REPRIMAND ISSUED ON APRIL 10, 1979 (G.C. EXH. 12) AND A
REPRIMAND WAS SUBSEQUENTLY ISSUED.
THERE IS NO DISPUTE THAT ON MARCH 23, 1979, MR. BILL WADDAMS, A NEWLY
EMPLOYED /7/ SECOND LINE SUPERVISOR IN THE OFFICE OF EDUCATION, SENT A
MEMORANDUM TO THE NEWLY EMPLOYED /8/ FIRST LINE SUPERVISOR, MS. MARY
DONNELL, OF STEWARD NARVELLA KENNEDY, INQUIRING HOW THE PROCEDURE
REGARDING MS. KENNEDY'S REQUESTING ADVANCE APPROVAL FOR UNION ACTIVITIES
WAS WORKING OUT (HEW EXH. 18). BY MEMORANDUM DATED MARCH 23, 1979, MS.
DONNELL REMINDED MS. KENNEDY THAT SHE MUST REQUEST ADVANCE APPROVAL FOR
UNION ACTIVITY DURING WORKING HOURS (G.C. EXH. 5). MS. KENNEDY
OBJECTED BY MEMORANDUM DATED MARCH 29, 1979 (G.C. EXH. 6); BUT MR.
WADDAMS ADVISED MS. KENNEDY BY MEMORANDUM ALSO DATED MARCH 29, 1979,
THAT SHE MUST COMPLY (HEW EXH. 19). HOWEVER, FOLLOWING A CONFERENCE
WITH MS. KENNEDY, MR. WADDAMS ON APRIL 3, 1979, AGREED THAT MS. KENNEDY
COULD FOLLOW THE PROCEDURE USED BY MR. LOFTIS, I.E., REQUEST APPROVAL IN
ADVANCE FOR MEETINGS WITH MANAGEMENT AND REPORT ALL OTHER TIME SPENT ON
UNION MATTERS ON A WEEKLY BASIS (HEW EXH. 21). ON APRIL 30, 1979, MR.
THOMAS PESTKA, MR. WADDAMS' IMMEDIATE SUPERVISOR, RECEIVED WEEKLY
SUMMARIES SUBMITTED BY MS. KENNEDY FOR THE WEEKS ENDING APRIL 20 AND 27
(HEW EXH. 20), AND ON MAY 7, 1979, MR. PESTKA SENT MR. WADDAMS A
MEMORANDUM ADVISING HIM THAT SUCH PROCEDURE, I.E., WEEKLY SUMMARIES FOR
"ALL OTHER TIME" WAS INCONSISTENT WITH ARTICLE XXII AND ORDERED HIM TO
RESCIND THE ARRANGEMENT (HEW EXH. 22), WHICH MR. WADDAMS DID BY
MEMORANDUM DATED MAY 10, 1979 (G.C. EXH. 7).
THE ISSUES
A. DID RESPONDENT VIOLATE SECTIONS 16(A)(1), (2) AND (5) OF THE
STATUTE, 5 U.S.C. 7116(A)(1), (2) AND (5), BY VIRTUE OF THE ALLEGED
UNILATERAL ABROGATION OF THE AGREEMENT, AND/OR PRACTICE, AS TO MR.
LOFTIS OF HIS REPORTING "OTHER TIME" SPENT ON UNION ACTIVITIES ON A
WEEKLY BASIS ON, OR ABOUT, MARCH 13, 1979? (PARAGRAPHS V(A)), VII AND
IX OF THE COMPLAINT).
B. DID RESPONDENT VIOLATE SECTIONS 16(A)(1), (2) AND (5) OF THE
STATUTE BY VIRTUE OF THE NOTICE OF PROPOSED REPRIMAND ON, OR ABOUT,
APRIL 10, 1979, OF MR. LOFTIS FOR HIS REFUSAL TO COMPLY WITH
RESPONDENT'S INSTRUCTIONS TO REQUEST PRIOR APPROVAL FOR ALL ABSENCES FOR
UNION ACTIVITIES ON DUTY TIME? (PARAGRAPH VI AND IX, AS AMENDED, OF THE
COMPLAINT).
C. DID RESPONDENT VIOLATE SECTIONS 16(A)(1), (2) AND (5) BY VIRTUE
OF ITS ABROGATION OF THE AGREEMENT, AND/OR ARRANGEMENT, AS TO MS.
KENNEDY OF HER REPORTING "OTHER TIME" SPENT ON UNION ACTIVITIES ON A
WEEKLY BASIS ON, OR ABOUT, MAY 10, 1979? (PARAGRAPHS V(B), VII AND IX
OF THE COMPLAINT).
CONCLUSIONS
1. TERMINATION OF MR. LOFTIS' REPORTING PROCEDURE
THE "AGREEMENT" BETWEEN MS. GOODEN AND MR. LOFTIS WAS THE FORM
PREPARED BY MR. LOFTIS (G.C. EXH. 2), WHICH REPORTED "TIME SPENT ON
LABOR-MANAGEMENT MATTERS FOR ACTIVITIES OTHER THAN 'REQUEST FOR RELEASE
TIME'" /9/ WEEKLY (THE AMOUNT OF TIME SPENT WAS SHOWN FOR EACH DAY),
AND, OF COURSE, MS. GOODEN'S ACCEPTANCE OF THE REPORTING PROCEDURE
REFLECTED THEREBY. AS NOTED ABOVE, MR. LOFTIS, FOLLOWING MS. GOODEN'S
ACCEPTANCE OF HIS FORM: (A) REQUESTED ADVANCE APPROVAL FOR MANAGEMENT
MEETINGS ON HEW EXHIBIT 8 (PURSUANT TO ARTICLE XXII, SECTION E,
SUBSECTION 3 A-E); AND (B) REPORTED ALL OTHER TIME (ARTICLE XXII,
SECTION E, SUBSECTION F), AFTER THE FACT, WEEKLY ON GENERAL COUNSEL
EXHIBIT 2. HIS PREDECESSOR AS PRESIDENT OF LOCAL 3400, MS. SMITH, HAD
HAD A QUITE DIFFERENT ARRANGEMENT WHEREBY SHE HAD BLANKET, ADVANCE
AUTHORITY FOR ABSENCE FOR UNION ACTIVITY EACH MONDAY FROM THE BEGINNING
OF WORK UNTIL 12:15, AS TO WHICH TIME SHE MADE NO REPORT; AND SHE
REQUESTED ADVANCE APPROVAL FOR OFFICIAL TIME FOR ALL OTHER UNION
ACTIVITY, INCLUDING, BUT NOT LIMITED TO, MANAGEMENT MEETINGS. /10/
THE ARRANGEMENT FOR MS. SMITH DIFFERED IN ANOTHER SIGNIFICANT RESPECT
FROM THE ARRANGEMENT OBTAINED BY MR. LOFTIS, NAMELY, THAT THE SMITH
ARRANGEMENT WAS FULLY APPROVED BY RESPONDENT, WHEREAS MS. GOODEN'S
ACCEPTANCE OF MS. LOFTIS' REPORTING PROCEDURE WAS NOT. MS. GOODEN
DENIED ANY INTENT TO NEGOTIATE ANY CHANGE IN ARTICLE XXII AND THE RECORD
SIMPLY SHOWS THAT SHE ACCEPTED MR. LOFTIS' PROCEDURE AS SATISFYING THE
REQUIREMENTS OF ARTICLE XXII AS TO MR. LOFTIS. TO BE SURE, THE EFFECT
OF HER ACTION WAS TO GRANT MR. LOFTIS ADVANCE AUTHORITY FOR "OTHER"
UNION ACTIVITY WHICH SHE MONITORED BY HIS WEEKLY REPORTS. ARTICLE XXII
DID PROVIDE THAT ". . . LOCAL OFFICERS ARE AUTHORIZED TO BE ABSENT FROM
THEIR DUTIES FOR A REASONABLE PERIOD OF TIME . . ." AND SHE DID " . . .
ADVISE HIM OF THE CONDITION OF THE RELEASE . . . ", NAMELY THAT HE
REPORT THE TIME SPENT ON SUCH "OTHER" ACTIVITIES EACH DAY ON A WEEKLY
REPORT. WHETHER MS. GOODEN WAS CORRECT, THAT SUCH PROCEDURE SATISFIED
THE REQUIREMENTS OF ARTICLE XXII, THERE IS NO BASIS IN THE RECORD TO
CONCLUDE THAT SHE NEGOTIATED ANY CHANGE OF ARTICLE XXII. TO THE
CONTRARY, AS STATED ABOVE, SHE SIMPLY ACCEPTED MR. LOFTIS' PROCEDURE AS
SATISFYING THE REQUIREMENTS OF ARTICLE XXII. AS AN ASSISTANT REGIONAL
COMMISSIONER, MS. GOODEN'S KNOWLEDGE OF, AND ACQUIESCENCE IN, MR.
LOFTIS' REPORTING PROCEDURE CONSTITUTED NOTICE TO RESPONDENT OF THE
PROCEDURE. THE PRACTICE, AS TO MR. LOFTIS, CONTINUED FROM APRIL OR MAY
1978, UNTIL MS. GOODEN LEFT IN SEPTEMBER 1978; WAS KNOWN TO AND
ACCEPTED BY THE ACTING ASSISTANT REGIONAL COMMISSIONER-SS1, MS.
LUSCOMBE; AND WAS KNOWN TO MS. GOODEN'S SUCCESSOR AS ASSISTANT REGIONAL
COMMISSIONER, MS. RUBY, IN OCTOBER 1978, WHO AGREED TO HONOR MS. LOFTIS'
AGREEMENT WITH MS. GOODEN UNTIL SUCH TIME AS "THE CONTRACT WAS
RENEGOTIATED." LAX ENFORCEMENT, AND/OR DEPARTURES, BY INDIVIDUAL
SUPERVISORS FROM THE PROVISIONS OF A COLLECTIVE BARGAINING AGREEMENT
DOES NOT PRECLUDE MANAGEMENT ENFORCEMENT OF THE COLLECTIVE BARGAINING
AGREEMENT. AS A COROLLARY, PRACTICES OR PROCEDURES FOLLOWED BY
INDIVIDUAL EMPLOYEES DO NOT, WITHOUT MORE, BECOME CONDITIONS OF
EMPLOYMENT. TO CONSTITUTE A CONDITION OF EMPLOYMENT CONTRARY TO A
NEGOTIATED AGREEMENT, SUCH PRACTICE MUST: (A) BE KNOWN TO MANAGEMENT;
(B) RESPONSIBLE MANAGEMENT MUST KNOWINGLY ACQUIESCE; AND (C) SUCH
PRACTICE MUST CONTINUE FOR SOME SIGNIFICANT PERIOD OF TIME. THE
ALTERNATIVE WOULD BE CHAOS AND COLLECTIVE BARGAINING AGREEMENTS WOULD BE
RENDERED MEANINGLESS IF EVERY DEPARTURE CREATED A NEW CONDITION OF
EMPLOYMENT. NEVERTHELESS UNDER CIRCUMSTANCES SET FORTH ABOVE, THE
PRACTICE OF MR. LOFTIS REPORTING TIME SPENT ON "OTHER" UNION ACTIVITY ON
A WEEKLY BASIS, CONTRARY TO THE REQUIREMENT OF ARTICLE XXII, HAD BECOME
AN ESTABLISHED TERM AND CONDITION OF HIS EMPLOYMENT, INASMUCH AS THE
PRACTICE WAS KNOWINGLY ACQUIESCED IN BY RESPONSIBLE MANAGEMENT OFFICIALS
FOR A PERIOD OF MONTHS, WHICH RESPONDENT WAS NOT AT LIBERTY TO
UNILATERALLY CHANGE. U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, NEW ORLEANS LOUISIANA, A/SLMR NO. 1034, 8 A/SLMR 497 (1978);
INTERNAL REVENUE SERVICE, SOUTHEASTERN REGION, APPELLATE BRANCH OFFICE,
NEW ORLEANS, LOUISIANA, A/SLMR NO. 1153, 8 A/SLMR 1254 (1978).
HOWEVER, UNLIKE THE SITUATION PRESENTED IN THE NEW ORLEANS DISTRICT
AND APPELLATE BRANCH OFFICE CASES, SUPRA, RESPONDENT DID NOT
UNILATERALLY TERMINATE THE PRIVILEGE GRANTED MR. LOFTIS. IN OCTOBER
1978, MS. RUBY HAD TOLD MR. LOFTIS THAT ADVANCE APPROVAL FOR ALL UNION
ACTIVITY WAS REQUIRED BY ARTICLE XXII BUT THAT SHE WOULD HONOR HIS
AGREEMENT WITH MS. GOODEN UNTIL "THE CONTRACT WAS RENEGOTIATED." BY
LETTER DATED NOVEMBER 27, 1978 (G.C. EXH. 20), THE UNION HAD INFORMED
RESPONDENT THAT ONE OF THE ARTICLES TO BE REOPENED FOR NEGOTIATION WAS
ARTICLE XXII. IN JANUARY 1979, MS. RUBY INFORMED MR. LOFTIS THAT SHE
WAS GOING TO INVOKE HER INTERPRETATION OF ARTICLE XXII AND THAT HE WOULD
HAVE TO REQUEST OFFICIAL TIME IN ADVANCE FOR ALL UNION ACTIVITY.
WHETHER MR. LOFTIS COULD HAVE INSISTED THAT NO CHANGE BE MADE IN HIS
PROCEDURE OF REPORTING "OTHER" TIME SPENT ON UNION ACTIVITIES PENDING
RENEGOTIATION OF THE CONTRACT, AS MS. RUBY HAD AGREED IN OCTOBER 1978,
IS NOT AN ISSUE BEFORE ME, INASMUCH AS MR. LOFTIS ELECTED TO NEGOTIATE
THE MATTER OF OFFICIAL TIME FOR THE UNION PRESIDENT SEPARATELY. HIS
REQUEST FOR A MEETING WITH MR. COHEN WAS DATED JANUARY 18, 1979 (G.C.
EXH. 9) AND, PURSUANT THERETO, A MEETING WAS HELD ON FEBRUARY 6, 1979.
MR. LOFTIS TESTIFIED THAT THE ISSUE OF RELEASE TIME WAS DISCUSSED; THAT
HE GAVE MR. COHEN THE UNION'S PROPOSAL; AND THAT HE STATED WHY THE
UNION FELT A NEED FOR HIM, MR. COHEN, TO LOOK AT THE RELEASE TIME FORM.
MR. LOFTIS FURTHER TESTIFIED THAT MR. COHEN REFERRED THE MATTER BACK TO
MS. SOLTES, THE LABOR RELATIONS OFFICER, AND THAT MS. SOLTES SAID SHE
WOULD "LOOK INTO IT AND GET BACK TO ME." ON FEBRUARY 8, 1979, MS. SOLTES
DID ADVISE MR. LOFTIS THAT MANAGEMENT SUPPORTED MS. RUBY'S POSITION THAT
ADVANCE APPROVAL FOR APPROPRIATE UNION ACTIVITY WAS REQUIRED. BY
MEMORANDUM DATED FEBRUARY 9, 1979, ADDRESSED TO MR. COHEN, MR. LOFTIS
AGAIN STATED HIS POSITION; ACKNOWLEDGED MS. SOLTES' ORAL ADVICE OF
FEBRUARY 8, 1973, THAT MANAGEMENT WOULD SUPPORT MS. RUBY'S POSITION;
AND REQUESTED A WRITTEN RESPONSE TO THE UNION'S PROPOSAL (G.C. EXH. 16).
MR. COHEN RESPONDED BY MEMORANDUM DATED MARCH 13, 1979 (G.C. EXH. 10).
MR. COHEN'S MEMORANDUM STATED, IN PART, AS FOLLOWS:
" . . . UNDER THE TERMS OF THE CONTRACT, THE UNION IS TO REQUEST
OFFICIAL TIME IN ADVANCE
AND TO UTILIZE REASONABLE AMOUNTS OF TIME FOR APPROPRIATE UNION
ACTIVITIES. MANAGEMENT ALSO
HAS THE RIGHT AND OBLIGATION TO DETERMINE AND IMPOSE RESTRICTIONS
UPON WHEN AND HOW MUCH TIME
IS USED. THE PURPOSE OF THIS MANAGEMENT RIGHT IS TO ENABLE
MANAGEMENT TO PLAN AND UTILIZE
MOST EFFICIENTLY THE STAFF RESOURCES AVAILABLE TO THEM IN CARRYING
OUT THEIR
FUNCTIONS. MANAGEMENT HAS NO INTENTION OF INTERFERRING WITH YOUR
RIGHT TO REQUEST AND USE
OFFICIAL TIME IN ACCORDANCE WITH EXECUTIVE ORDER 11491 AS AMENDED AND
5 USC 71.
"IN CONCLUSION, I SUPPORT MS. RUBY'S AND MS. LUSCOMBE'S POSITION WITH
RESPECT TO THEIR
INTERPRETATION AND IMPLEMENTATION OF THE CONTRACT.
. . . " (G.C. EXH. 10).
FOLLOWING RESPONDENT'S JANUARY 1979, NOTICE OF INTENT TO TERMINATE
THE DEPARTURE FROM THE REQUIREMENT OF ARTICLE XXII FOR ADVANCE APPROVAL
OF OFFICIAL TIME FOR ALL APPROPRIATE UNION ACTIVITIES, WHICH HAD BEEN
ALLOWED AS TO MR. LOFTIS, MR. LOFTIS REQUESTED NEGOTIATIONS WITH
RESPONDENT'S PRINCIPAL REGIONAL OFFICIAL, MR. COHEN. A NEGOTIATING
MEETING WAS HELD, AS REQUESTED, ON FEBRUARY 6, 1979, AT WHICH TIME THE
ISSUE OF RELEASE TIME WAS DISCUSSED; MR. LOFTIS PRESENTED THE UNION'S
PROPOSAL, I.E. THAT HE REPORT "OTHER" UNION ACTIVITY ON G.C. EXH. 2 AND
REQUEST ADVANCE APPROVAL FOR MANAGEMENT MEETINGS ON HEW EXH. 8. IN
SHORT, MR. LOFTIS SOUGHT TO OBTAIN AN EXCEPTION FROM ARTICLE XXII FOR
HIMSELF, AS PRESIDENT OF THE UNION. HAVING GIVEN NOTICE THAT IT
INTENDED TO TERMINATE THE DEPARTURE FROM ARTICLE XXII ALLOWED MR. LOFTIS
AND HAVING MET WITH THE UNION AT ITS REQUEST TO NEGOTIATE, AS TO
OFFICIAL TIME FOR THE UNION PRESIDENT, RESPONDENT WAS REQUIRED TO
BARGAIN IN GOOD FAITH; BUT RESPONDENT WAS NOT REQUIRED TO ACCEPT THE
UNION'S PROPOSAL. ARTICLE XXII, AS NEGOTIATED IN 1975, HAD NOT MADE ANY
EXCEPTION FROM ITS TERMS FOR THE PRESIDENT OF THE UNION. IN 1976,
RESPONDENT HAD AUTHORIZED A SPECIAL ARRANGEMENT FOR THE THEN PRESIDENT
OF THE UNION, MS. SMITH, TO ACCOMODATE FOR THE FACT THAT SHE WAS LOCATED
IN A BUILDING SEVERAL BLOCKS FROM THE BUILDING IN WHICH THE GREAT BULK
OF THE UNIT EMPLOYEES WERE LOCATED. THIS CONDITION DID NOT PERTAIN TO
MR. LOFTIS WHEN HE SUCCEEDED MS. SMITH AS PRESIDENT IN 1977, AND THE
ARRANGEMENT MADE FOR MS. SMITH WAS NEVER EXTENDED TO MR. LOFTIS. IN
APRIL OR MAY 1978, MS. GOODEN ACCEPTED MR. LOFTIS' PROPOSED FORM FOR
THE REPORTING OF "OTHER" UNION ACTIVITY WEEKLY. WHILE I HAVE FOUND THAT
THE PROCEDURE ALLOWED BY MS. GOODEN HAD RIPENED INTO A CONDITION OF
EMPLOYMENT AS TO MR. LOFTIS WHICH RESPONDENT COULD NOT UNILATERALLY
CHANGE, RESPONDENT WAS NOT PRECLUDED FROM CHANGING THAT PRACTICE, AFTER
NOTICE AND BARGAINING, AT THE UNION'S REQUEST, AND TO INSIST THAT MR.
LOFTIS THEREAFTER COMPLY WITH THE TERMS OF ARTICLE XXII OF THE 1915
AGREEMENT WHICH HAD BEEN CONTINUED IN EFFECT. NOR IS THERE ANY BASIS
FOR A FIND'NG THAT RESPONDENT DID NOT BARGAIN IN GOOD FAITH. THE 1975
AGREEMENT HAD REQUIRED ADVANCE APPROVAL FOR OFFICIAL TIME FOR ALL UNION
ACTIVITY. THE RENEGOTIATED 1978 AGREEMENT, ALTHOUGH NOT RATIFIED BY THE
EMPLOYEES, HAD LIKEWISE REQUIRED ADVANCE APPROVAL FOR OFFICIAL TIME FOR
ALL UNION ACTIVITY. AS OPPOSED TO RESPONDENT'S INSISTANCE THAT MR.
LOFTIS COMPLY WITH THE TERMS OF THE NEGOTIATED AGREEMENT, MR. LOFTIS'
POSITION WAS THAT, NOTWITHSTANDING THE PROVISIONS OF ARTICLE XXII, HE,
AS PRESIDENT OF THE UNION, SHOULD HAVE COMPLETE CONTROL OF ALL "OTHER"
TIME SPENT ON UNION ACTIVITIES AND SIMPLY REPORT THE TIME SPENT ON SUCH
ACTIVITIES WEEKLY. RESPONDENT'S INSISTANCE ON COMPLIANCE WITH THE TERMS
OF THE NEGOTIATED AGREEMENT DOES NOT CONSTITUTE BAD FAITH.
NOR IS THERE ANY PROBATIVE EVIDENCE THAT RESPONDENT TERMINATED THE
REPORTING PROCEDURE, WHICH MS. GOODEN HAD ALLOWED MR. LOFTIS TO FOLLOW,
IN VIOLATION OF SECTION 16(A)(2) OF THE STATUTE. WHILE IT IS TRUE THAT
MR. LOFTIS TESTIFIED THAT MR. THOMAS W. DUDSON, REGIONAL PERSONNEL
OFFICER, TOLD HIM THAT MANAGEMENT WAS IRRITATED BECAUSE THE UNION HAD
NOT RATIFIED THE 1978 CONTRACT, SUCH STATEMENT DOES NOT SUPPORT ANY
INFERENCE THAT RESPONDENT TERMINATED MR. LOFTIS' REPORTING PROCEDURE
BECAUSE OF IRRITATION OVER THE FAILURE OF THE MEMBERSHIP TO RATIFY THE
CONTRACT. INDEED, THE EVIDENCE IS TO THE CONTRARY. THUS, IN AUGUST
1978, MR. LOFTIS, IN CONNECTION WITH RELEASE TIME FOR A STEWARD, HAD
BEEN TOLD BY MS. RUBY, WHO WAS THEN DIRECTOR OF THE DIVISION OF
MANAGEMENT AND ADMINISTRATION, THAT ADVANCE APPROVAL WAS REQUIRED BY
ARTICLE XXII FOR ALL UNION ACTIVITY. BY MEMORANDUM DATED OCTOBER 17,
1978, MR. LOFTIS HAD INFORMED RESPONDENT THAT LOCAL 3400 MEMBERSHIP HAD
NOT RATIFIED THE NEW AGREEMENT AT A VOTE TAKEN ON OCTOBER 16, 1978 (G.C.
EXH. 19). MS. RUBY BECAME ASSISTANT REGIONAL COMMISSIONER ON OCTOBER
22, 1978, AND SOMETIME SHORTLY THEREAFTER TOLD MR. LOFTIS THAT ADVANCE
APPROVAL WAS REQUIRED BY ARTICLE XXII FOR OFFICIAL TIME FOR ALL UNION
ACTIVITY BUT THAT SHE WOULD HONOR HIS AGREEMENT WITH MS. GOODEN UNTIL
"THE CONTRACT WAS RENEGOTIATED." CERTAINLY, MS. RUBY'S ACTION, AFTER THE
MEMBERSHIP HAD FAILED TO RATIFY THE 1978 AGREEMENT, DID NOTHING TO
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN THE UNION BY DISCRIMINATION IN
CONNECTION WITH HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF
EMPLOYMENT. ASSUMING THAT RESPONDENT WAS IRRITATED BY THE FAILURE OF
THE MEMBERSHIP TO RATIFY THE 1978 AGREEMENT, THE RECORD SHOWS THAT,
NOTWITHSTANDING SUCH IRRITATION, MS. RUBY AGREED TO HONOR MR. LOFTIS'
AGREEMENT WITH MS. GOODEN. MR. LOFTIS TESTIFIED THAT WHEN MS. RUBY
CALLED HIM TO HER OFFICE IN JANUARY 1979, /11/ SHE STATED:
" . . . SHE FELT IT WAS GOING TO TAKE TOO LONG FOR RATIFICATION. SHE
DIDN'T KNOW WHEN IT
WAS GOING TO HAPPEN. SHE WAS GOING TO INVOKE HER INTERPRETATION OF
THE CONTRACT, AND I ASKED
HER WHAT DID THAT MEAN, AND SHE TOLD ME THAT MEANT THAT I WOULD
REQUEST OFFICIAL TIME FOR ALL
LABOR/MANAGEMENT RELATIONS ACTIVITIES IN ADVANCE." (TR. 142). MR.
LOFTIS STATED THAT HIS OBJECTIVE IN GOING TO MR. COHEN WAS THAT:
" . . . WE COULD SORT OF TAKE THIS OUT ON THE SIDE AND TRY TO
EXPEDITE NEGOTIATIONS OF
OFFICIAL TIME, AT LEAST FOR ME . . . " (TR. 144).
FROM THE RECORD, I CAN ONLY CONCLUDE THAT: (A) MS. RUBY, BY
MID-JANUARY 1979, HAD CONCLUDED THAT THERE WAS LITTLE PROSPECT FOR THE
EARLY COMPLETION OF A NEW CONTRACT AND SHE WAS NOT WILLING TO PERMIT THE
GOODEN ARRANGEMENT FOR MR. LOFTIS TO CONTINUE INDEFINITELY; AND (B) MR.
LOFTIS SAW AN OPPORTUNITY TO NEGOTIATE SEPARATELY THE QUESTION OF
OFFICIAL TIME FOR THE UNION PRESIDENT. AS MR. LOFTIS REQUESTED THE
SEPARATE NEGOTIATION OF OFFICIAL TIME FOR THE UNION PRESIDENT (G.C. EXH.
9) AND THE REQUESTED NEGOTIATIONS WERE HAD, I CANNOT, AND DO NOT, FIND
ANY BASIS WHATEVER FOR A 16(A)(2) VIOLATION. NO INDEPENDENT BASIS FOR A
VIOLATION OF SECTION 16(A)(1) WAS SHOWN.
ACCORDINGLY, HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTIONS
16(A)(1), (2), OR (5) OF THE STATUTE, 5 U.S.C. 7116(A)(1), (2), OR (5)
BY VIRTUE OF THE TERMINATION, AFTER NOTICE AND BARGAINING, OF THE
ARRANGEMENT WHEREBY MR. LOFTIS, CONTRARY TO ARTICLE XXII OF THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT, REPORTED "OTHER" TIME SPENT ON UNION
ACTIVITIES ON A WEEKLY BASIS, PARAGRAPH V(A), VII AND IX OF THE
COMPLAINT ARE HEREBY DISMISSED.
2. REPRIMAND OF MR. LOFTIS
FOLLOWING MR. COHEN'S MEMORANDUM OF MARCH 13, 1979, MS. RUBY BY
MEMORANDUM DATED MARCH 19, 1979, FORMALLY REQUESTED MR. LOFTIS TO USE
THE FORM ATTACHED TO REQUEST, IN ADVANCE, ALL OFFICIAL TIME DESIRED
(G.C. EXH. 15). BY MEMORANDUM DATED MARCH 21, 1979, MR. LOFTIS
REFUSED, STATING THAT HE WOULD CONTINUE HIS PRIOR PRACTICE (G.C. EXH.
13). BY MEMORANDUM DATED MARCH 27, 1979, MS. RUBY ADVISED MR. LOFTIS
THAT THE PRIOR FORM (HEW EXH. 8) WAS SATISFACTORY; THAT HE (LOFTIS) AND
RON TEUBER MUST REQUEST OFFICIAL TIME IN ADVANCE FOR ALL APPROPRIATE
UNION ACTIVITIES IN ACCORDANCE WITH THE CURRENT UNION CONTRACT; AND
THAT A FAILURE TO COMPLY WOULD RESULT IN AN ADVERSE ACTION BEING TAKEN
(G.C. EXH. 11). BY MEMORANDUM DATED APRIL 2, 1979, MR. LOFTIS AGAIN
REFUSED TO COMPLY AND AGAIN ASSERTED THAT INTENDED TO FOLLOW HIS PAST
PRACTICE OF REPORTING "OTHER" TIME WEEKLY (G.C. EXH. 17). ON APRIL 3,
1979, MR. LOFTIS TOLD MS. LUSCOMBE THAT HE WOULD NOT REQUEST TIME IN
ADVANCE FOR ACTIVITIES OTHER THAN MANAGEMENT CALLED MEETINGS, I.E.,
"OTHER" TIME, AND REJECTED MS. LUSCOMBE'S SUGGESTION THAT HE COMPLY
"UNDER PROTEST." ACCORDINGLY, BY MEMORANDUM DATED APRIL 10, 1979 (G.C.
EXH. 12), MR. LUSCOMBE ISSUED HER PROPOSAL TO REPRIMAND AND A REPRIMAND
WAS SUBSEQUENTLY ISSUED.
FOR THE REASONS SET FORTH IN PARAGRAPH 1, RESPONDENT DID NOT
UNILATERALLY TERMINATE MR. LOFTIS' PROCEDURE OF REPORTING, AFTER THE
FACT, TIME SPENT ON "OTHER" UNION ACTIVITIES, RATHER THAN OBTAINING
ADVANCE APPROVAL FOR ALL TIME, INCLUDING "OTHER" TIME, SPENT ON UNION
ACTIVITIES AS REQUIRED BY ARTICLE XXII, WHICH PROCEDURE HAD BEEN ALLOWED
BY MS. GOODEN. TO THE CONTRARY, AS MORE FULLY STATED IN PARAGRAPH 1,
RESPONDENT TERMINATED THE DEPARTURE FROM ARTICLE XXII ONLY AFTER NOTICE
AND NEGOTIATIONS, REQUESTED BY MR. LOFTIS, AND TERMINATION OF SUCH
PROCEDURE WAS NOT IN VIOLATION OF THE STATUTE.
HAVING LAWFULLY TERMINATED THE PRACTICE, WHICH HAD BEEN ALLOWED MR.
LOFTIS, RESPONDENT'S INSTRUCTION TO MR. LOFTIS THAT HE MUST COMPLY WITH
THE TERMS OF THE NEGOTIATED AGREEMENT AND REQUEST APPROVAL OF OFFICIAL
TIME IN ADVANCE FOR ALL UNION ACTIVITY, AND NOT MERELY MANAGEMENT CALLED
MEETINGS, DID NOT VIOLATE SECTIONS 16(A)(1), (2), OR (5) OF THE STATUTE.
FROM THE CHRONOLOGY SET FORTH ABOVE IT IS APPARENT THAT RESPONDENT
EXERCISED THE UTMOST CONSIDERATION IN AFFORDING MR. LOFTIS EVERY
OPPORTUNITY TO COMPLY WITH ITS INSTRUCTIONS AND THAT IT ISSUED THE
PROPOSAL TO REPRIMAND ONLY AFTER MR. LOFTIS HAD CATEGORICALLY REFUSED TO
COMPLY, INCLUDING THE SUGGESTION THAT HE COMPLY "UNDER PROTEST."
CLEARLY, RESPONDENT EXERCISED RESTRAINT AND PATIENCE IN AN EFFORT TO
AVOID THE NECESSITY FOR ANY ADVERSE ACTION AND RESPONDENT DID NOT
VIOLATE SECTIONS 16(A)(1), (2), OR (5) OF THE STATUTE BY ITS PROPOSAL TO
REPRIMAND OR BY ITS SUBSEQUENT REPRIMAND OF MR. LOFTIS.
IN REACHING THIS CONCLUSION, THE VARIOUS ASSERTIONS OF GENERAL
COUNSEL HAVE BEEN CAREFULLY CONSIDERED AND HAVE BEEN FOUND WHOLLY
LACKING IN MERIT. THUS, BY WAY OF EXAMPLE, GENERAL COUNSEL ARGUES THAT
" . . . OTHER UNION STEWARDS, AND OFFICERS DID NOT ADHERE TO RULES
ISSUED FOR REPORTING OFFICIAL TIME, THEY WERE NOT DISCIPLINED. THE
ACTIVITY COMPLAINED OF THE RESPONDENT'S SELECTIVE ENFORCEMENT OF ITS
RULES . . . THAT THE RESPONDENT DISCRIMINATELY APPLIED ITS RULE TO
LOFTIS, AND THEREBY CONVEYED THE MESSAGE TO HIS MEMBERSHIP THAT THEY
CONTROLLED LOFTIS." (G.C. BRIEF P. 11). RESPONDENT'S POLICY WITH
RESPECT TO ARTICLE XXII AND ITS REQUIREMENT FOR ADVANCE APPROVAL OF
OFFICIAL TIME FOR ALL UNION ACTIVITY HAD BEEN CONSISTENT FROM 1975 (SEE,
FOR EXAMPLE, HEW EXHS. 4, 5, 6, 8, 10, 13, 18, 22); EMPLOYEES,
INCLUDING STEWARDS (HEW EXH. 17) COMPLIED (HEW EXH. 26-A THROUGH 26-F);
AND THE REQUEST FOR RELEASE FORM (HEW EXH. 8) DEVELOPED BY THE LABOR
RELATIONS POLICY COMMITTEE WAS AGREED TO BY THE UNION. WHETHER EACH
SUPERVISOR CONSISTENTLY REQUIRED THE REQUEST FOR RELEASE BE SUBMITTED IN
WRITING, THE ONLY AUTHORIZED DEPARTURE FROM THE REQUIREMENT FOR ADVANCE
APPROVAL OF OFFICIAL TIME FOR UNION ACTIVITIES WAS THE ARRANGEMENT FOR
MS. SMITH WHEREBY SHE WAS GIVEN BLANKET AUTHORIZATION TO BE AT THE UNION
OFFICE EACH MONDAY FROM THE BEGINNING OF WORK UNTIL 12:15 P.M.; HOWEVER
MS. SMITH WAS REQUIRED TO, AND DID, REQUEST ADVANCE APPROVAL FOR
OFFICIAL TIME FOR ALL OTHER UNION ACTIVITIES. IN ADDITION, MS. GOODEN
HAD ALLOWED MR. LOFTIS, FROM APRIL OR MAY 1978, TO REPORT TIME SPENT ON
"OTHER" UNION ACTIVITIES WEEKLY. NO UNION OFFICIAL OR EMPLOYEE OTHER
THAN MR. LOFTIS WAS SHOWN TO HAVE BEEN ALLOWED OFFICIAL TIME FOR UNION
ACTIVITIES WITHOUT ADVANCE APPROVAL, EXCEPT MS. NARVELLA KENNEDY,
DISCUSSED HEREINAFTER, AS TO WHOM RESPONDENT PROMPTLY UPON NOTICE TOOK
ACTION TO ACHIEVE COMPLIANCE WITH ARTICLE XXII. FOLLOWING TERMINATION
OF THE PRACTICE AS TO MR. LOFTIS, AFTER NOTICE AND NEGOTIATIONS,
RESPONDENT, AS NOTED ABOVE, MADE EVERY REASONABLE EFFORT TO SECURE MR.
LOFTIS' COMPLIANCE WITH ITS LAWFUL INSTRUCTION BUT MR. LOFTIS FLATLY
REFUSED TO COMPLY. THE RECORD DOES NOT SHOW SELECTIVE ENFORCEMENT OF
RESPONDENT'S RULES NOR ANY DISCRIMINATION IN THE APPLICATION OF ITS
RULES TO MR. LOFTIS. WHILE THE RECORD DOES NOT SHOW THAT ANY OTHER
EMPLOYEE WAS DISCIPLINED NO OTHER EMPLOYEE REFUSED, ABSOLUTELY, TO
COMPLY WITH RESPONDENT'S INSTRUCTIONS.
ACCORDINGLY, HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTIONS
16(A)(1), (2), OR (5) OF THE STATUTE, 5 U.S.C. 7116(A)(1), (2), OR (5),
BY THE DISCIPLINE OF MR. LOFTIS, PARAGRAPHS VI AND IX OF THE COMPLAINT
ARE HEREBY DISMISSED.
3. MS. KENNEDY REQUIRED TO COMPLY WITH CONTRACT
ALTHOUGH MS. KENNEDY WAS ADVISED ON MARCH 23 AND 29, 1979, THAT SHE
MUST REQUEST ADVANCE APPROVAL FOR UNION ACTIVITY DURING WORKING HOURS,
AT THE URGING OF MR. LOFTIS (TR. 155) SHE SOUGHT AND OBTAINED THE
AGREEMENT OF HER SECOND LINE SUPERVISOR, MS. WADDAMS, ON APRIL 3, 1979,
THAT SHE COULD FOLLOW THE PROCEDURE USED BY MR. LOFTIS. WHEN MR.
PESTKA, WADDAMS' IMMEDIATE SUPERVISOR, RECEIVED MS. KENNEDY'S WEEKLY
SUMMARIES FOR THE WEEKS ENDING APRIL 20 AND 27 ON APRIL 30, 1979, MR.
PESTKA ON MAY 7, 1979, ADVISED MR. WADDAMS THAT SUCH PROCEDURE WAS
INCONSISTENT WITH ARTICLE XXII AND ORDERED HIM TO RESCIND THE
ARRANGEMENT WHICH MR. WADDAMS DID ON MAY 10, 1979. THEREAFTER MR.
KENNEDY COMPLIED (HEW EXH. 25).
A PRACTICE CONTRARY TO EXISTING AGREEMENTS, RULES OR REG REGULATIONS
MAY UNDER CERTAIN CIRCUMSTANCES RIPEN INTO A CONDITION OF EMPLOYMENT,
U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW ORLEANS
DISTRICT, NEW ORLEANS, LOUISIANA, SUPRA; INTERNAL REVENUE SERVICE
SOUTHEASTERN REGION, APPELLATE BRANCH OFFICE, NEW ORLEANS, LOUISIANA,
SUPRA, NONE OF WHICH CIRCUMSTANCES WERE PRESENT AS TO MS. KENNEDY. MR.
WADDAMS, A SECOND LINE SUPERVISOR, WAS WITHOUT AUTHORITY TO BIND
RESPONDENT; PROMPTLY UPON NOTICE OF THE EXISTENCE OF THE PRACTICE, MR.
PESTKA ORDERED THE ARRANGEMENT RESCINDED; AND MR. KENNEDY FOLLOWED THE
ARRANGEMENT FOR ONLY ABOUT ONE MONTH.
EXCEPT UNDER SPECIAL CIRCUMSTANCES, WHICH WERE NOT PRESENT AS TO MS.
KENNEDY, REAFFIRMATION OF AN AGENCY, OR ACTIVITY'S, EXISTING POLICY TO
ENSURE UNIFORMILY OF ENFORCEMENT OF EXISTING POLICY AMONG SUBORDINATE
SUPERVISORS IS NOT INCONSISTENT WITH BARGAINING OBLIGATION. ALABAMA
NATIONAL GUARD, MONTGOMERY, ALABAMA, A/SLMR NO. 895, 7 A/SLMR 767
(1977); DEPARTMENT OF DEFENSE, UNITED STATES ARMY, FORT SAN HOUSTON,
TEXAS, 1 FLRA NO. 68, FLRA REPORT NO. 10, JULY 11, 1979. HERE, THE
EXISTING POLICY WAS ARTICLE XXII OF THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT AND, AS NO CONDITION OF EMPLOYMENT CONTRARY THERETO AS TO MS.
KENNEDY EXISTED, RESPONDENT DID NOT VIOLATE SECTION 16(A)(1), (2), OR
(5) OF THE STATUTE BY ITS UNILATERAL ABROGATION OF THAT ARRANGEMENT,
CONTRARY TO ARTICLE XXII, AND REAFFIRMING ITS EXISTING POLICY THAT
ADVANCE APPROVAL OF OFFICIAL TIME FOR ALL UNION ACTIVITIES WAS
REQUESTED. ACCORDINGLY, PARAGRAPH V, VII AND IX OF THE COMPLAINT ARE
HEREBY DISMISSED.
ORDER
HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTION 16(A)(1), (2),
OR (5) OF THE STATUTE, 5 U.S.C. SECTION 7116(A)(1), (2), OR (5), AS
CHARGED, THE COMPLAINT HEREIN IS DISMISSED IN ITS ENTIRETY.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 4, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ HEREINAFTER, FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE
STATUTE ARE ALSO REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71"
PORTION OF THE STATUTE REFERENCE. FOR EXAMPLE, SECTION 7116(A)(1)
SIMPLY AS "16(A)(1);" HOWEVER, UNLESS OTHERWISE SPECIFICALLY INDICATED,
ALL SUCH REFERENCES REFER TO CHAPTER 71 OF THE STATUTE.
/2/ THE REPORTER, HOOVER REPORTING CO., INC., FAILED TO FURNISH THIS
OFFICE WITH ANY OF THE EXHIBITS IN THIS CASE. WHEN THIS DEFICIENCY WAS
NOTED, THE REGIONAL OFFICE WAS CONTACTED AND HAS FORWARDED THE ORIGINAL
EXHIBITS WHICH WERE RECEIVED IN THIS OFFICE ON DECEMBER 28, 1979.
/3/ I DO NOT AGREE WITH GENERAL COUNSEL'S ASSERTION IN HIS BRIEF
THAT," . . . THE PROVISION IS SILENT AS TO THE RELEASE OF THE UNION
REPRESENTATIVES . . . FOR ANY UNION MATTER NOT INVOLVING MANAGEMENT."
(G.C. BRIEF, P.2). SECTION E, SUBSECTION 3.F. OF ARTICLE XXII PROVIDES:
"F. ANY LABOR MANAGEMENT RELATIONS MATTER WHICH THE EMPLOYER AND THE
UNION AGREE IS OF
MUTUAL BENEFIT TO THE PARTIES." (G.C. EXH. 8) SUBSECTION 1. REFERS TO
RELEASE WHEN "AN APPROPRIATE MANAGEMENT OFFICIAL NOTIFIES THE STEWARD'S
IMMEDIATE SUPERVISOR OF THE TIME, PLACE, AND ESTIMATED DURATION OR A
MEETING WHERE HIS PRESENCE IS REQUIRED." SUBSECTION 2, DEALS WITH ACTUAL
RELEASE OF THE STEWARD BY THE IMMEDIATE SUPERVISOR AND, WHILE IT
OBVIOUSLY ENCOMPASSES MEETINGS IN SUBSECTION 1, IS NOT BY ITS TERMS
LIMITED TO SUCH MEETINGS. SUBSECTION 3 THEN LISTS SITUATIONS
APPROPRIATE FOR STEWARDS TO BE RELEASED, THE FINAL SITUATION BEING "F",
SET FORTH ABOVE, WHICH DOES NOT REFER TO MEETINGS WITH MANAGEMENT WHICH
WERE EITHER INITIATED OR ARRANGED BY MANAGEMENT. TO THE CONTRARY,
MEETINGS WITH MANAGEMENT WHICH WERE EITHER INITIATED OR ARRANGED BY
MANAGEMENT ARE, SPECIFICALLY PROVIDED FOR IN A THROUGH E OF SUBSECTION 3
AND "F" COVERS ANY OTHER "MATTER."
/4/ ARTICLE XXII, SECTION E. SUBSECTION 3 A-E.
/5/ IBID, F.
/6/ THE RECORD IS CLEAR THAT RESPONDENT DID NOT INSIST UPON THE USE
OF THIS PARTICULAR FORM AND THAT THE PRIOR FORM (HEW EXH. 8) WAS FULLY
ACCEPTABLE TO RESPONDENT. INDEED, MR. LOFTIS CONTINUED TO USE HEW
EXHIBIT 8 FOR ADVANCE APPROVAL OF TIME FOR MEETINGS WITH MANAGEMENT.
/7/ FEBRUARY 5, 1979.
/8/ JANUARY 14, 1919.
/9/ REQUEST FOR RELEASE TIME WAS SPECIFICALLY STATED ON GENERAL
COUNSEL EXHIBIT 2 TO MEAN " . . . RELEASE TIME APPROVED FOR MANAGEMENT
MEETINGS, ETC. . . . "
/10/ I AM AWARE OF MR. LOFTIS' TESTIMONY THAT MS. SMITH USED HEW EXH.
8 ONLY TO REQUEST ADVANCE APPROVAL FOR MANAGEMENT MEETINGS. THE RECORD
NOT ONLY DOES NOT SUPPORT THE INFERENCE THAT HEW EXH. 8 WAS INTENDED
ONLY FOR MANAGEMENT MEETINGS; BUT AFFIRMATIVELY SHOWS, THAT MS. SMITH
WAS INSTRUCTED TO USE THE FORM TO REQUEST ADVANCE APPROVAL FOR ALL UNION
ACTIVITY OCCURRING OUTSIDE THE BLANKET, ADVANCE, AUTHORIZATION FOR
MONDAY OF EACH WEEK (SEE, HEW EXH. 10) AND, WHILE MS. SMITH DID NOT
TESTIFY, REQUESTS MADE BY HER SHOW THAT SHE USED HEW EXH. 8 FOR ADVANCE
APPROVAL FOR ABSENCE FROM HER REGULAR DUTIES FOR REASONS OTHER THAN
MEETINGS WITH MANAGEMENT (SEE HEW EXHS. 12-A THROUGH 12-M).
/11/ THE DATE OF THE MEETING WAS NOT DEFINITELY FIXED. MS. RUBY WAS
OUT OF THE COUNTRY AT THE TIME OF THE HEARING AND, ACCORDINGLY, WAS NOT
AVAILABLE AS A WITNESS. MR. LOFTIS STATED THAT MR. GUY JUSTIS RETIRED
ON, OR ABOUT, JANUARY 12, 1979, AND THAT THE MEETING WITH MS. RUBY
OCCURRED AFTER THE DATE OF MR. JUSTIS' RETIREMENT AND, OF COURSE, PRIOR
TO JANUARY 18, 1979 (G.C. EXH. 9).