[ v05 p389 ]
05:0389(51)CA
The decision of the Authority follows:
5 FLRA No. 51
NAVY PUBLIC WORKS CENTER,
NORFOLK NAVAL BASE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 53, AFL-CIO
Labor Organization
Case No. 3-CA-458
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING RECOMMENDING THAT THE UNFAIR
LABOR PRACTICE COMPLAINT BE DISMISSED IN ITS ENTIRETY. THE GENERAL
COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER ACCOMPANIED BY A BRIEF, AND THE RESPONDENT FILED A
BRIEF.
THEREFORE, 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
CASE, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS AND BRIEF, AND THE
RESPONDENT'S BRIEF, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-458 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., MARCH 30, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
NONA J. JORDAN, ESQUIRE
FOR THE RESPONDENT
HEATHER BRIGGS GOTTS, ESQUIRE
DONNA DITULLIO, ESQUIRE
PETER B. ROBB, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: WILLIAM B. DEVANEY
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 UNITED STATES
CODE, 5
U.S.C. 7101, ET SEQ. /1/ AND THE FINAL RULES AND REGULATIONS ISSUED
THEREUNDER, 5 C.F.R. CHAPTER XIV, FED.REG., VOL. 45, NO. 12, JANUARY
17,
1980 EFFECTIVE JANUARY 28, 1980 (INTERIM RULES AND REGULATIONS
WERE
ISSUED ON JULY 30, 1979, EFFECTIVE JULY 30, 1979, RED.REG., VOL. 44, NO.
147, JULY 30, 1979; HOWEVER THE FINAL RULES AND REGULATIONS
GOVERN ALL
MATTERS AFTER JANUARY 28, 1980).
A CHARGE WAS FILED HEREIN ON AUGUST 29, 1979, ALLEGING
VIOLATIONS OF
SECS. 16(A)(1), (2), (5) AND (8) OF THE STATUTE (G.C. EXH. 1(A)); AND A
FIRST AMENDED CHARGE WAS FILED ON FEBRUARY 4, 1980, ALLEGING
VIOLATIONS
OF SECS. 16(A)(1), (2) AND (4) OF THE STATUTE (G.C. EXH. 1(C)). ON
FEBRUARY 7, 1980, THE REGIONAL DIRECTOR ISSUED THE COMPLAINT AND
NOTICE
OF HEARING HEREIN WHICH ALLEGED VIOLATIONS OF SEC. 16(A)(1), (2)
AND (4)
OF THE STATUTE AND SET THE HEARING FOR MARCH 13, 1980 (G.C. EXH.
1(E)).
RESPONDENT TIMELY ANSWERED (G.C. EXH. 1(F)), DENYING THE
ALLEGATIONS OF
THE COMPLAINT (PARAGRAPHS 5, 6 AND 7) THAT IT ENGAGED IN ANY
CONDUCT IN
VIOLATION OF THE STATUTE AS ALLEGED. PURSUANT TO THE NOTICE OF
HEARING,
A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON MARCH 13,
1980, IN
NORFOLK, VIRGINIA.
ALL PARTIES WERE REPRESENTED BY COUNSEL, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE
WITNESSES, AND TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN. AT
THE CLOSE
OF THE HEARING, APRIL 14, 1980, WAS FIXED AS THE DATE FOR MAILING
BRIEFS
AND COUNSEL FOR EACH PARTY TIMELY MAILED A BRIEF, EACH OF WHICH
HAS BEEN
CAREFULLY CONSIDERED. UPON THE BASIS OF THE ENTIRE RECORD,
INCLUDING MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING
FINDINGS AND CONCLUSION:
FINDINGS AND CONCLUSION
1. GENERAL COUNSEL'S ERRONEOUS PREMISE.
COUNSEL FOR THE GENERAL COUNSEL ASSERTS THAT
"...THERE WAS NO EVIDENCE INTRODUCED AT HEARING TO ESTABLISH
THAT THE
PERSONNEL CLERK
POSITION...WAS OUTSIDE THE BARGAINING UNIT..." THIS IS NOT
CORRECT,
ARTICLE 1, SECTION 2 OF THE PARTIES' NEGOTIATED AGREEMENT
SPECIFICALLY
EXCLUDES FROM THE BARGAINING UNIT:
"...EXCLUDING SUPERVISORS, MANAGEMENT OFFICIALS, PROFESSIONAL
EMPLOYEES, AND EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK OTHER THAN A PURELY
CLERICAL
CAPACITY. (G.C. EXH. 3) THE EFFECTIVE DATE OF THE AGREEMENT WAS
AUGUST
16, 1977, AND IT WAS FOR A TERM OF THREE YEARS FROM THE DATE OF
THE
APPROVAL BY THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT (ART.
38). /2/
I AGREE WITH GENERAL COUNSEL THAT THE PROVISIONS OF SEC. 20 OF
THE
STATUTE, AND SPECIFICALLY SEC. 20 (E), ARE NOT MATERIAL TO THIS
PROCEEDING; HOWEVER, THE PROVISIONS OF SECS. 12(B) AND 35 ARE
MATERIAL.
SEC. 12(B)(2), (3) AND (4) OF THE STATUTE WOULD EXCLUDE FROM AN
APPROPRIATE UNIT:
"(2) A CONFIDENTIAL EMPLOYEE;
"(3) AN EMPLOYEE ENGAGED IN PERSONNEL WORK IN OTHER THAN A
PURELY
CLERICAL CAPACITY;
"(4) AN EMPLOYEE ENGAGED IN ADMINISTERING THE PROVISIONS OF
THIS
CHAPTER;" SECTION 35(A) OF THE STATUTE PROVIDES THAT "NOTHING
CONTAINED IN THIS CHAPTER SHALL PRECLUDE-- (1) THE...CONTINUATION
OF...A
LAWFUL AGREEMENT...ENTERED INTO BEFORE THE EFFECTIVE DATE OF
THIS
CHAPTER...;" AND SECTION 35 (B) OF THE STATUTE PROVIDES THAT,
"POLICIES...UNDER AND DECISIONS ISSUED UNDER EXECUTIVE ORDERS
11491...SHALL REMAIN IN FULL FORCE AND EFFECT...UNLESS SUPERSEDED
BY
SPECIFIC PROVISIONS OF THIS CHAPTER...OR DECISIONS ISSUED
PURSUANT TO
THIS CHAPTER."
THE EXCLUSION OF THE PARTIES' NEGOTIATED AGREEMENT IS
IDENTICAL TO
SEC. 12(B)(3) OF THE STATUTE; CONTINUATION OF THE NEGOTIATED
EXCLUSION
OF "EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY
CLERICAL CAPACITY," WHICH IS IDENTICAL TO SEC. 12(B)(3) OF THE
STATUTE,
IS MOST ASSUREDLY NOT INCONSISTENT WITH ANY PROVISION OF THE
STATUTE;
AND THE ASSISTANT SECRETARY'S POLICY DETERMINATION THAT
"CONFIDENTIAL"
EMPLOYEES ARE, ALSO, EXCLUDED FROM BARGAINING UNITS IS,
FURTHER, FULLY
CONSISTENT WITH THE SPECIFIC EXCLUSION OF CONFIDENTIAL
EMPLOYEES BY SEC.
12(B)(2) OF THE STATUTE.
ACCORDINGLY, THIS CASE CONCERNS THE POSITION OF PERSONNEL
CLERK; THE
AGREEMENT OF THE PARTIES EXCLUDES "EMPLOYEES ENGAGED IN
FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY;" AND,
FOR
REASONS SET FORTH HEREINAFTER, THE RECORD SHOWS WITHOUT
DISPUTE THAT THE
DUTIES OF THE PERSONNEL CLERK WERE "OTHER THAN A PURELY
CLERICAL
CAPACITY."
2. DUTIES OF PERSONNEL CLERK
THE DUTIES OF PERSONNEL CLERK (TYPING), GS 203-05, PUBLIC WORKS
CENTER, MAINTENANCE DEPARTMENT, ARE SHOWN ON THE POSITION OR
JOB
DESCRIPTION (RES. EXH. 1) AND WERE DISCUSSED IN DETAIL BY MR.
ROBERT
SMITH, SUPERINTENDENT DIRECTOR OF MAINTENANCE; BY MS. FRANCES
KUCHARSKI, OFFICE SERVICE SUPERVISOR; BY MR. BERTON OWENS,
HEAD OF
CIVILIAN PERSONNEL, NAVAL PUBLIC WORKS CENTER; AND BY MS. JULIA
D.
HOBBS, A GS-4 CLERICAL, JOB ORDER CONTROL & SCHEDULING SUPPORT
SECTION.
MS. HOBBS IS ALSO ASSISTANT CHIEF STEWARD FOR LOCAL 53 AND, AS
SUCH, IS
THE HIGHEST RANKING OFFICIAL OF LOCAL 53 IN THE PUBLIC WORKS
CENTER.
THE RECORD SHOWS THAT THE PERSONNEL CLERK SERVES AS A
CONFIDENTIAL
EMPLOYEE TO THE HEAD OF THE MAINTENANCE DEPARTMENT, MR. SMITH,
WHO HAS
SIGNIFICANT RESPONSIBILITY IN LABOR-MANAGEMENT RELATIONS. THUS,
THE
PERSONNEL CLARK, INTER ALIA, HANDLES SUPERVISORY QUESTIONS ON
PERSONNEL
PROBLEMS, SUPPLIES TABLES OF OFFENSES AND PENALTIES, HANDLES
PRE-ACTION
INVESTIGATION OF CHARGES, SEES AND PROCESSES CORRESPONDENCE
TO AND FROM
PERSONNEL, HANDLES REGISTERS FOR APPLICANTS AND FOR
PROMOTION, SITS IN
ON APPEALS ON REMOVALS, TYPES DECISIONS OF THE DIRECTOR ON
GRIEVANCES,
TYPES MANAGEMENT'S POSITION IN NEGOTIATIONS, TYPES EMPLOYEE
PERFORMANCE
RATINGS, ATTENDS MEETINGS WITH SUBORDINATE SUPERVISORS
CONCERNING
GRIEVANCES, ETC. FROM THE RECORD, IT IS CLEAR THAT THE DUTIES OF
THE
PERSONNEL CLERK ARE OTHER THAN A PURELY CLERICAL CAPACITY AND
DO INVOLVE
PERSONNEL WORK. AS NOTED ABOVE, ARTICLE 1, SECTION 2 OF THE
PARTIES'
AGREEMENT EXCLUDED, IN THE PRECISE LANGUAGE OF SECTION 10(B)(2)
OF
EXECUTIVE ORDER 11491, AS AMENDED, EMPLOYEES "ENGAGED IN
FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY." NOT
ONLY DOES
THE RECORD SHOW THAT THE POSITION OF PERSONNEL CLERK
CONSTITUTES FEDERAL
PERSONNEL WORK OF OTHER THAN A PURELY CLERICAL CAPACITY; BUT
THE RECORD
FURTHER SHOWS THAT THE POSITION REQUIRES PERFORMANCE OF
DUTIES WHICH THE
ASSISTANT SECRETARY CONSISTENTLY RECOGNIZED AS EXCLUDED AS
CONFIDENTIAL
EMPLOYEES.
3. WHAT THIS CASE DOES NOT INVOLVE.
THIS CASE DOES NOT INVOLVE ANY ALLEGATION THAT RESPONDENT
REFUSED TO
BARGAIN CONCERNING THE CHANGE IN MS. HOBBS' POSITION
DESCRIPTION ON JULY
18, 1979, WHICH DELETED SUB-PARAGRAPH F WHICH HAD PROVIDED:
"THE INCUMBENT OF THIS POSITION IS REQUIRED TO ASSUME THE
DUTIES OF
THE PERSONNEL CLERK
(TYPING), GS-203-05, IN THE MAINTENANCE DEPARTMENT, DURING
ABSENCE OF
INCUMBENT OF THAT
POSITION AS WELL AS ASSIST ON SAME DURING PERIODS OF HEAVY
WORKLOAD.
TIME-- 05%"
(RES. EXH. 2, AMENDMENT NO. 2)
I AM AWARE THAT: A) FROM ABOUT 1975, MS. HOBBS HAD, ON OCCASION,
RELIEVED OR ASSISTED THE PERSONNEL CLERK; B) IN 1978, MS. HOBBS
HAD
FILED A GRIEVANCE WHICH SOUGHT CREDIT FOR HER PAST WORK AT THE
HIGHER,
GS-5 LEVEL, AND THE GRIEVANCE WAS SETTLED BY CREDITING HER WITH
SUCH
PRIOR EXPERIENCE AND ADDING SUB-PARAGRAPH F TO HER POSITION
DESCRIPTION
ON FEBRUARY 15, 1978 (RES. EXH. 2, AMENDMENT NO. 1); C) THAT
THROUGHOUT
THE TIME MS. HOBBS SPORADICALLY PERFORMED DUTIES OF THE
PERSONNEL CLERK,
THE WORK, WHICH I WOULD REFER TO AS "CONFIDENTIAL," I.E., SITTING IN
ON
DISCUSSIONS OF GRIEVANCES, REMOVALS, TYPING DECISIONS FOR THE
DIRECTOR,
ETC., WAS PERFORMED BY A SUPERVISOR. IN SHORT, WHILE MS. HOBBS
PERFORMED SOME DUTIES OF THE PERSONNEL CLERK, SHE DID NOT
PERFORM THE
FULL RANGE OF DUTIES OF THE JOB. I AM FURTHER AWARE THAT THE
GRAVAMEN
OF THE ORIGINAL CHARGE WAS THAT THE DELETION OF THESE DUTIES
"WAS
EFFECTUATED WITHOUT ADVISING THE EXCLUSIVE REPRESENTATIVE AND
OFFERING
IT AN OPPORTUNITY TO NEGOTIATE ON THE IMPACT." THIS ALLEGATION
WAS
DROPPED IN FIRST AMENDMENT CHARGE AND, OF COURSE, DOES NOT
APPEAR IN THE
COMPLAINT.
CONSEQUENTLY, THE ELIMINATION OF THE LIMITED DUTIES OF
PERSONNEL
CLERK PERFORMED BY MS. HOBBS WAS, PRESUMPTIVELY, A LEGITIMATE
EXERCISE
OF MANAGEMENT AUTHORITY. SIGNIFICANTLY, THEREFORE, THIS CASE
PRESENTS A
JOB, I.E. PERSONNEL CLERK, WHICH IS, PURSUANT TO THE PARTIES'
NEGOTIATED
AGREEMENT, EXCLUDED FROM THE BARGAINING UNIT.
4. THE 16(A)(1), (2) AND (4) ALLEGATIONS.
AS THE JOB OF PERSONNEL CLERK IS EXCLUDED FROM THE BARGAINING
UNIT, I
CAN CONCEIVE OF NO POSSIBLE VIOLATION OF THE STATUTE IN TELLING
MS.
HOBBS THAT IT IS OUTSIDE THE BARGAINING UNIT AND/OR THAT
PERFORMANCE OF
SUCH DUTIES WAS INCOMPATIBLE WITH HER DUTIES AS A UNION OFFICIAL.
THE
CONFLICT WAS OBVIOUS. FOR EXAMPLE, BY HER OWN TESTIMONY, MS.
HOBBS
HANDLED 99% OF ALL GRIEVANCES IN THE PUBLIC WORKS CENTER AND
THE
PERSONNEL CLERK IS ACTIVELY INVOLVED IN MANAGEMENT'S HANDLING
OF
GRIEVANCES, INCLUDING THE TYPING OF DECISIONS; AND MS. HOBBS IS A
MEMBER OF THE UNION'S NEGOTIATING COMMITTEE WHILE THE
PERSONNEL CLERK
PERFORMS DUTIES FOR MANAGEMENT WITH REGARD TO NEGOTIATIONS.
AGAIN, IT
MUST BE EMPHASIZED THAT THE CHANGE IN MS. HOBBS' POSITION
DESCRIPTION IS
NOT BEFORE ME AS THE CHARGING PARTY, BY ITS AMENDED CHARGE,
ABANDONED
ANY ASSERTION THAT SUCH CHANGE WAS AN IMPROPER UNILATERAL
ACT. CF.,
U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW
ORLEANS
DISTRICT, 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).
MS. HOBBS TESTIFIED THAT ON JULY 30, 1979, MS. KUCHARSKI TOLD HER
THAT THE DEPARTMENT FELT IT WAS A CONFLICT OF INTEREST "FOR A
UNION
PERSON" TO BE ON THE PERSONNEL DESK; THAT ON AUGUST 2 MR.
OWENS, WHEN
ASKED ABOUT THE CHANGE IN HER (HOBBS') POSITION DESCRIPTION,
STATED THAT
THERE WAS A CONFLICT OF INTEREST IN MS. HOBBS WORKING AT THE
PERSONNEL
DESK; AND THAT MR. SMITH HAD ASKED HER "WOULD I DROP THE UNION
FOR THE
FIVE PERCENT." MR. CARLISLE FIELDS, A NATIONAL REPRESENTATIVE OF
THE
UNION, TESTIFIED THAT MR. SMITH STATED AT THE AUGUST 1 MEETING,
"WELL,
YOU KNOW, THAT IS NO PROBLEM...YOU CAN HAVE YOUR FIVE PERCENT
BACK...BUT
YOU ARE GOING TO HAVE TO GIVE UP YOUR UNION ACTIVITIES." BOTH MR.
SMITH
AND MR. OWENS DENIED THAT THEY SAID MS. HOBBS COULD HAVE HER
"FIVE
PERCENT" BACK IF SHE DROPPED HER UNION ACTIVITY. I FOUND BOTH
MR. SMITH
AND MR. OWENS VERY CREDIBLE WITNESSES. INDEED, I SPECIFICALLY
CREDIT
MR. OWENS' TESTIMONY THAT, IN RESPONSE TO MS. HOBBS' INQUIRY
ABOUT HER
CAREER POTENTIAL IN THE PERSONNEL MANAGEMENT FIELD, HE SAID
"...'IN A
PERSONNEL POSITION, THE FOUR OR FIVE LEVEL, YOU WOULD HAVE
DUTIES WHICH
WOULD BE INCOMPATIBLE.' IT WAS SUBSTANTIVE DUTIES IN THE
PERSONNEL AREA
THAT WOULD BE INCOMPATIBLE WITH UNION OFFICE." (TR. 107) AT THE
SAME
TIME, IT IS PERFECTLY UNDERSTANDABLE THAT MS. HOBBS AND MR.
FIELDS DREW
SUCH INFERENCE. INDEED, MR. OWENS STATED, WHEN ASKED WHETHER
RETENTION
OF THE FIVE PERCENT WOULD HAVE PRESENTED A CONFLICT IF MS.
HOBBS HAD NOT
BEEN A UNION OFFICER, RESPONDED, "IT COULDN'T HAVE BEEN A
CONFLICT IF
SHE HADN'T BEEN A UNION OFFICIAL..." (TR. 135-136). HOWEVER, EVEN IF
IT
WERE ASSUMED THAT RESPONDENT, ON AUGUST 2, 1979, TOLD MS.
HOBBS SHE
COULD HAVE HER FIVE PERCENT BACK IF SHE GAVE UP HER UNION
ACTIVITIES,
SUCH STATEMENT WOULD NOT HAVE CONSTITUTED A VIOLATION OF
SECS. 16(A)(1)
OR (2) OF THE STATUTE SINCE IT DID NOT MORE THAN INFORM MS. HOBBS
THAT
THE JOB OF PERSONNEL CLERK WAS OUTSIDE THE BARGAINING UNIT AND
IF SHE
WANTED TO PERFORM THE DUTIES OF PERSONNEL CLERK SHE WOULD
HAVE TO DROP
HER ACTIVITIES AS A UNION OFFICER. BY NO STRETCH OF THE
IMAGINATION CAN
INTERFERENCE WITH THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
ASSURED BY
THE STATUTE, OR DISCRIMINATION IN CONNECTION WITH A CONDITION OF
EMPLOYMENT, BE CONJURED FROM A STATEMENT THAT ACCURATELY
INFORMS AN
EMPLOYEE THAT A JOB, HERE PERSONNEL CLERK, IS OUTSIDE THE
BARGAINING
UNIT AND THAT THE DUTIES OF SUCH JOB ARE INCOMPATIBLE WITH
DUTIES AS A
UNION OFFICER. NOR, OF COURSE, DID RESPONDENT VIOLATE SEC.
16(A)(1) OR
(2) OF THE STATUTE WHEN IT INFORMED MS. HOBBS THAT A JOB IN
PERSONNEL,
WHICH SHE WAS OFFERED, WOULD REQUIRE THAT SHE DROP HER
ACTIVITIES AS A
UNION OFFICER. I SPECIFICALLY CREDIT MR. OWENS' TESTIMONY THAT HE
TOLD
MS. HOBBS,
"...ANY JOB IN THE PERSONNEL OFFICE ABOVE THE PURELY CLERICAL
LEVEL...WOULD BE OUTSIDE THE
BARGAINING UNIT...I SAID THE JOB IS OFFERED. IF YOU ACCEPT IT, IT IS
ONE OF THE EXCEPTIONS TO
TAKE YOU OUT OF THE BARGAINING UNIT..." (TR. 135). NOT ONLY DO I
FULLY CREDIT MR. OWENS' TESTIMONY, BUT I FULLY AGREE WITH THE
ACCURACY
AND PROPRIETY OF HIS STATEMENT.
ALTHOUGH I HAVE HELD THAT EXERCISE OF OTHERWISE LEGITIMATE
AUTHORITY
FOR AN UNLAWFUL AND DISCRIMINATORY PURPOSE CONSTITUTES AN
UNFAIR LABOR
PRACTICE, CF., CONSUMER PRODUCT SAFETY COMMISSION, CASE NOS.
3-CA-12,
34, 35, 36, 220, 221 (ALJ MARCH 5, 1980), SUCH PRINCIPLE IS, OBVIOUSLY,
INAPPLICABLE WHERE, AS HERE, THERE IS NO UNLAWFUL OR
DISCRIMINATORY USE
OF MANAGEMENT AUTHORITY. HERE, THE SOLE BASIS FOR THE ALLEGED
SEC.
16(A)(1) AND (2) VIOLATION IS THAT RESPONDENT INFORMED MS. HOBBS,
ACCURATELY AND FULLY IN ACCORDANCE WITH THE AGREEMENT OF THE
PARTIES,
THAT THE JOB OF PERSONNEL CLERK WAS OUTSIDE THE BARGAINING
UNIT AND THAT
HER PERFORMANCE OF SUCH DUTIES WAS INCONSISTENT WITH HER
DUTIES AS A
UNION OFFICIAL. THERE WAS NO DISCRIMINATION BECAUSE OF MS.
HOBBS' UNION
ACTIVITY AND NO INTERFERENCE WITH MS. HOBBS' RIGHTS UNDER THE
STATUTE.
INDEED, MS. HOBBS WAS TOLD, SIMPLY, THAT PERSONNEL MANAGEMENT
POSITIONS,
OTHER THAN THOSE OF A PURELY CLERICAL NATURE, WERE OUTSIDE THE
BARGAINING UNIT AND DID INVOLVE DUTIES INCOMPATIBLE WITH HER
DUTIES AS A
UNION OFFICER; MS. HOBBS WAS OFFERED A POSITION IN PERSONNEL
WHICH WAS
OUTSIDE THE BARGAINING AND WHICH SHE DECLINED. BUT RESPONDENT
HAD THE
RIGHT UNDER THE STATUTE, AND PURSUANT TO THE NEGOTIATED
AGREEMENT, TO
INSIST THAT UPON ACCEPTANCE OF AN EXCEPTED JOB SHE CEASE HER
ACTIVITY AS
AN OFFICIAL OF THE UNION. ACCORDINGLY, NO BASIS FOR A FINDING OF A
VIOLATION OF SEC. 16(A)(1) OR (2) HAS BEEN SHOWN.
FINALLY, AS TO THE 16(A)(4) ALLEGATION, THERE IS NO PROBATIVE
EVIDENCE TO SUPPORT THE ASSERTION THAT MS. HOBBS' POSITION
DESCRIPTION
WAS CHANGED "TO DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN
EMPLOYEE
BECAUSE THE EMPLOYEE HAS FILED A COMPLAINT, AFFIDAVIT, OR
PETITION, OR
HAS GIVEN ANY INFORMATION OR TESTIMONY UNDER THIS CHAPTER."
THE RECORD SHOWS THAT THE PROBLEM OF MS. HOBBS SERVING AS
PERSONNEL
CLERK DURING THE ABSENCE OF THE INCUMBENT WAS BROUGHT TO A
HEAD IN MAY,
1979, WHEN THE PERSONNEL CLERK, MRS. GALLOP, FILED A REQUEST FOR
MATERNITY LEAVE TO BE TAKEN LATER IN 1979. /3/
CONFRONTED WITH THE REALITY THAT THE PERSONNEL CLERK WAS
SOON TO BE
SENT FOR AN EXTENDED PERIOD OF TIME AND THAT MS. HOBBS' POSITION
DESCRIPTION PROVIDED THAT SHE ASSUME THE DUTIES OF THE
PERSONNEL CLERK
DURING ABSENCE OF THE INCUMBENT, MR. SMITH WAS DEEPLY
CONCERNED THAT,
SHOULD MS. HOBBS ASSUME THE DUTIES OF PERSONNEL CLERK FOR AN
EXTENDED
PERIOD, PERFORMANCE OF DUTIES OF PERSONNEL CLERK BY A UNION
OFFICER
WOULD INVOLVE A CONFLICT OF INTEREST /4/ AND, ACCORDINGLY, IN
MID-JUNE,
HE DISCUSSED THE MATTER WITH MR. OWENS. MR. OWENS HAD NOT
PREVIOUSLY
BEEN AWARE OF THE PROVISION IN MS. HOBBS' POSITION DESCRIPTION
AND MR.
SMITH TESTIFIED THAT MR. OWENS ADVISED HIM THAT PERFORMANCE OF
THE
DUTIES OF PERSONNEL CLERK BY A UNION OFFICER DID CONSTITUTE A
CONFLICT
OF INTEREST AND THAT SUB-PARAGRAPH F OF MS. HOBBS' POSITION
DESCRIPTION
COULD LEGALLY BE REMOVED. MR. OWENS STATED THAT HE ADVISED
THAT
SUB-PARAGRAPH F BE REMOVED BECAUSE OF,
"CONFLICT BETWEEN HER ROLE AS AN UNION OFFICIAL AND THE DUTIES
OF THE
POSITION,
INCOMPATIBLE ON THE BASIS OF THE PERSONNEL CLERK HAVING AT
TIMES TO
PREPARE RECORDS OR
MAINTAIN RECORDS OF MANAGEMENT'S POSITION WITH RESPECT TO
MATTERS IN
CONTROVERSY WITH THE
UNION AND SO FORTH." (TR. 104) MOREOVER, MR. OWENS
SUBSEQUENTLY TOLD
MS. HOBBS:
"...THAT I DID NOT CONSIDER THAT ANY GS-4 OR GS-5 PERSONNEL
CLERK
POSITION COULD EVER BE
CONSIDERED TO BE PART OF THE BARGAINING UNIT OR COMPATIBLE
WITH
HOLDING UNION OFFICE...THOSE
PEOPLE WHO WERE WORKING IN PERSONNEL POSITION WOULD FIND A
CONFLICT
OF INTEREST IN TRYING TO
HOLD A UNION OFFICE AND IN TERMS OF OUR AGREEMENT, I
CONSIDERED THAT
THEY WERE EXCLUDED FROM
THE BARGAINING UNIT AS HAVING DUTIES OTHER THAN PURELY
CLERICAL..."
(TR. 108)
IN JUNE, AFTER MR. SMITH HAD GIVEN HER PERMISSION TO FILL THE
GS-4
PERSONNEL CLERK SLOT AND TO DELETE SUB-PARAGRAPH F OF MS.
HOBBS'
POSITION DESCRIPTION, MS. KUCHARSKI SPOKE TO MRS. GALLOP AND
ASKED HER
TO BRING A SLIP FROM HER DOCTOR CERTIFYING THE DATE SHE
EXPECTED TO
BEGIN MATERNITY LEAVE. MRS. GALLOP BROUGHT THE SLIP IN JULY; THE
AMENDED POSITION DESCRIPTION FOR MS. HOBBS WAS SIGNED BY MR.
SMITH ON
JULY 18, 1979, AND WAS SIGNED BY CLASSIFICATION ON JULY 26, 1979
(RES.
EXH. 2); AND THE GS-4 PERSONNEL CLERK POSITION WAS POSTED.
GENERAL COUNSEL'S CONTENTION THAT RESPONDENT'S ACTION IN
DELETING
SUB-PARAGRAPH F WAS IN RETALIATION FOR THE FILING OF THE CHARGE
IN CASE
NO. 3-CA-318 HAS BEEN CAREFULLY CONSIDERED AND FOUND TO BE
WITHOUT
MERIT. FIRST, IN APPARENT RECOGNITION THAT RESPONDENT HAD
UNDERTAKEN
THE DELETION IN JUNE, IT WAS ASSERTED THAT A COPY OF THE CHARGE
WAS
SERVED ON RESPONDENT ON JUNE 27, 1979; HOWEVER, THE RECORD IS
TO THE
CONTRARY. MR. FIELDS AT FIRST TESTIFIED THAT HE SERVED THE
CHARGE ON
THE ACTIVITY ON JUNE 27, 1979 (TR. 47); BUT, ON CROSS-EXAMINATION,
ADMITTED HE DID NOT SERVE THE CHARGE AT ALL AND HAD GIVEN A
COPY TO MS.
HOBBS (TR. 51). MS. HOBBS' TESTIMONY DOES NOT SHOW THAT SHE
SERVED A
COPY ON ANYBODY. INDEED, SHE TESTIFIED AS FOLLOWS WITH RESPECT
TO THE
CHARGE, GENERAL COUNSEL EXHIBIT 4:
"Q. DID YOU FILE THAT YOURSELF?
"A. NO, MR. FIELDS, OUR NATIONAL REPRESENTATIVE, FILED IT IN MY
BEHALF." (TR. 25) MR. SMITH TESTIFIED THAT HE DID NOT KNOW OF THE
CHARGE
UNTIL HE RECEIVED A COPY FROM THE REGIONAL DIRECTOR, WHOSE
LETTER OF
TRANSMITTAL WAS DATED JULY 9, 1979 (RES. EXH. 3). MR. OWENS
TESTIFIED
THAT HE WAS NOT AWARE OF THE CHARGE UNTIL LATE JULY 1979.
SECOND, MS. HOBBS TESTIFIED THAT SHE MET ON JULY 10, 1979, WITH
MR.
SMITH, MR. HUPMAN AND MS. KUCHARSKI TO DISCUSS THE CHARGE IN
3-CA-318.
MR. HUPMAN DID NOT TESTIFY; MS. KUCHARSKI WAS NOT ASKED ABOUT
THE
MATTER; BUT MR. SMITH TESTIFIED THAT THE ONLY MEETING HE
ATTENDED ON
THE CHARGE IN 3-CA-318 WAS ON AUGUST 2, 1979, WHEN THE CHARGE
WAS
SETTLED. MS. HOBBS TESTIFIED THAT MR. SMITH ON JULY 10, 1979, HAD
MADE
PROPOSALS TO SETTLE THE CHARGE; THAT SHE HAD TOLD HIM SHE WAS
NOT
SUPPOSED TO BE THERE WITHOUT MR. FIELDS. THE ONLY
CONVERSATION MR.
FIELDS TESTIFIED HE HAD WITH MS. HOBBS AFTER THE CHARGE WAS
FILED WAS
WHEN,
"...SHE CALLED ME IN BALTIMORE TO TELL BE THAT SOME THINGS HAD
BEEN
HAPPENING SINCE WE HAD
FILED THE UNFAIR LABOR PRACTICE...
"Q. OKAY. SPECIFICALLY, WHAT WAS IT ABOUT?
"A. THE FIVE PERCENT BEING TAKEN FROM HER JOB DESCRIPTION." (TR.
47)
MS. HOBBS TESTIFIED THAT SHE WAS TOLD ON JULY 30, 1979, THAT THE
"FIVE
PERCENT PERSONNEL DUTIES" HAD BEEN REMOVED FROM HER POSITION
DESCRIPTION, SO THAT THE CALL SHE MADE TO MR. FIELDS PRESUMABLY
WAS ON
OR AFTER JULY 30, 1979. AS NOTED ABOVE, THE REGIONAL DIRECTOR'S
LETTER
OF TRANSMITTAL OF THE CHARGE IN 3-CA-318 WAS DATED JULY 9, 1979,
AND,
ALTHOUGH SENT CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
GENERAL COUNSEL
OFFERED NO EVIDENCE AS TO THE DATE THE REGIONAL DIRECTOR'S
LETTER OF
JULY 9, 1979, WAS RECEIVED BY RESPONDENT. IN VIEW OF MR. SMITH'S
TESTIMONY THAT THE ONLY MEETING HE ATTENDED ON THE CHARGE IN
3-CA-318
WAS ON AUGUST 2, 1979; MR. FIELDS' TESTIMONY THAT THE ONLY
CONVERSATION
HE HAD WITH MS. HOBBS AFTER THE CHARGE WAS FILED CONCERNED
"THE FIVE
PERCENT BEING TAKEN FROM HER JOB DESCRIPTION" WHICH, BY MS.
HOBBS'
TESTIMONY WOULD HAVE BEEN ON, OR AFTER, JULY 30, 1979; AND THE
ABSENCE
OF ANY EVIDENCE THAT RESPONDENT HAD RECEIVED THE REGIONAL
DIRECTOR'S
LETTER OF TRANSMITTAL OF THE CHARGE BY JULY 10, 1979, I FIND NO
CONVINCING EVIDENCE THAT THERE WAS A MEETING ON JULY 10, 1979.
THIRD, THE ALLEGED STATEMENT BY MR. SMITH THAT,
"I WILL WRITE THESE STIPULATIONS IN A LETTER AND IF IT IS NOT
ACCEPTED, WE WILL CONTINUE TO
PLAY THIS GAME." (TR. 28) WOULD HAVE BEEN EQUALLY CONSISTENT
WITH THE
MEETING HELD ON AUGUST 2, 1979. IN ANY EVENT, FROM MS. HOBBS'
TESTIMONY, IT PLAINLY APPEARS THAT SUCH STATEMENT, IF MADE AND
WHENEVER
MADE, RELATED WHOLLY TO THE PROPOSED SETTLEMENT OF 3-CA-318.
THUS, SHE
TESTIFIED,
"WE DISCUSSED, YOU KNOW, WHAT HAD BROUGHT IT ABOUT AND WHAT
THE
PROBLEM WAS AND WHAT
PROBLEMS WE WERE HAVING. WE TRIED TO COME TO A RESOLUTION
OF IT AND
MR. SMITH SAID THAT, YOU
KNOW, HE WOULD INSTALL A TELEPHONE UPSTAIRS AND THAT I WOULD
BE
LIMITED AS TO WHEN I COULD USE
IT AND, YOU KNOW, I HAVE TO LOG IN AND OUT LIKE THE METAL TRADES
HAS
TO...HE SAID, "I WILL
WRITE THESE STIPULATIONS IN A LETTER AND IF IT IS NOT ACCEPTED,
WE
WILL CONTINUE TO PLAY THIS
GAME.'" (TR. 27-28)
NOT ONLY DOES THE RECORD AFFIRMATIVELY SHOW THAT THE
DECISION TO
DELETE THE PERSONNEL CLERK DUTIES FROM MS. HOBBS' POSITION
DESCRIPTION
HAD BEEN MADE PRIOR TO THE FILING OF THE UNFAIR LABOR PRACTICE
CHARGE IN
CASE NO. 3-CA-318; BUT THERE IS NO EVIDENCE WHATEVER THAT
RESPONDENT
DELETED THE PERSONNEL CLERK DUTIES TO DISCIPLINE OR OTHERWISE
DISCRIMINATE AGAINST MS. HOBBS BECAUSE SHE HAD "FILED A
COMPLAINT,
AFFIDAVIT, OR PETITION, OR HAS GIVEN ANY INFORMATION OR TESTIMONY
UNDER
THIS CHAPTER." TO THE CONTRARY, THE AGREEMENT OF THE PARTIES
SPECIFICALLY EXCLUDES FROM THE BARGAINING UNIT "EMPLOYEES
ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY;" THE
JOB OF PERSONNEL CLERK INVOLVED PERSONNEL WORK IN OTHER THAN
A PURELY
CLERICAL CAPACITY, AND, IN ADDITION, REQUIRED PERFORMANCE OF
DUTIES OF A
CONFIDENTIAL NATURE WHICH THE ASSISTANT SECRETARY
CONSISTENTLY EXCLUDED
FROM BARGAINING UNITS; AND THE RECORD SHOWS THAT
RESPONDENT'S SOLE
REASON FOR DELETING SUB-PARAGRAPH F OF MS. HOBBS' POSITION
DESCRIPTION,
WHICH REQUIRED THAT SHE "ASSUME THE DUTIES OF THE PERSONNEL
CLERK...DURING ABSENCE OF INCUMBENT OF THAT POSITION...," WAS THE
IMMINENT DEPARTURE OF THE INCUMBENT, MRS. GALLOP, ON EXTENDED
MATERNITY
LEAVE. ANY POSSIBLE INFERENCE OF DISCRIMINATION AGAINST MS.
HOBBS WAS
AFFIRMATIVELY LAID TO REST BY RESPONDENT'S OFFER TO HER
REQUEST, OF A
JOB IN PERSONNEL. OF COURSE, AS MR. OWENS VERY PROPERLY TOLD
HER,
PERSONNEL WORK, OTHER THAN IN A PURELY CLERICAL CAPACITY, IS
EXCLUDED
FROM THE BARGAINING UNIT. THE FACT THAT AN EMPLOYEE MUST ELECT
BETWEEN
MOVING TO A JOB OUTSIDE THE BARGAINING UNIT AND GIVING UP UNION
OFFICE
OR RETAINING UNION OFFICE AND EMPLOYMENT IN THE BARGAINING UNIT
DOES NOT
CONSTITUTE DISCRIMINATION WITHIN THE MEANING OF SEC. 16(A)(4).
ACCORDINGLY, AS THE PREPONDERANCE OF THE EVIDENCE FAILS TO
DEMONSTRATE THAT RESPONDENT HAS ENGAGED IN OR IS ENGAGING IN
ANY UNFAIR
LABOR PRACTICE AS ALLEGED IN THE COMPLAINT, PURSUANT TO SEC.
18(A)(8) OF
THE STATUTE, 5 U.S.C. 7118(A)(8), AND SECS. 2423.28 AND 2423.28 OF THE
REGULATIONS, THE COMPLAINT IS HEREBY DISMISSED:
ORDER
IT HAVING BEEN DETERMINED THAT THE PREPONDERANCE OF THE
EVIDENCE
FAILS TO DEMONSTRATE THAT RESPONDENT, NAVY PUBLIC WORKS
CENTER, NORFOLK
NAVAL BASE, HAS ENGAGED IN OR IS ENGAGING IN ANY UNFAIR LABOR
PRACTICE
IN VIOLATION OF SEC. 16(A)(1), (2) OR (4), OF THE STATUTE, 5 U.S.C.
7116(A)(1), (2) OR (4), AS ALLEGED IN THE COMPLAINT, THE COMPLAINT
HEREIN BE, AND THE SAME IS HEREBY, DISMISSED.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 5, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ HEREINAFTER, FOR CONVENIENCE OR 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 ARE TO CHAPTER 71 OF THE STATUTE.
/2/ JULIA D. HOBBS, THE SUBJECT OF THE ALLEGED UNFAIR LABOR
PRACTICES, WAS A MEMBER OF LOCAL 53'S NEGOTIATING COMMITTEE
AND A
SIGNATORY OF THE AGREEMENT.
OF COURSE, IT IS TRUE THAT EXECUTIVE ORDER 11491, AS AMENDED,
UNDER
WHICH THE AGREEMENT WAS NEGOTIATED, DID NOT MENTION
"CONFIDENTIAL"
EMPLOYEES; HOWEVER, THE ASSISTANT SECRETARY, IN VIRGINIA
NATIONAL
GUARD, HEADQUARTERS, 4TH BATTALION, 111TH ARTILLERY, A/SLMR NO.
69, 1
A/SLMR 332, 335 (1971), HELD THAT "ALTHOUGH CONFIDENTIAL EMPLOYEES
ARE
NOT MENTIONED...I CONSIDER THAT IT WOULD BEST EFFECTUATE THE
POLICIES OF
THE EXECUTIVE ORDER IF EMPLOYEES WHO ASSIST AND ACT IN A
CONFIDENTIAL
CAPACITY TO PERSONS WHO FORMULATE AND EFFECTUATE
MANAGEMENT POLICIES IN
THE FIELD OF LABOR RELATIONS ARE EXCLUDED FROM BARGAINING
UNITS." SEE,
ALSO, DEPARTMENT OF THE TREASURY, BUREAU OF ENGRAVING AND
PRINTING, CASE
NOS. 22-08989 (CA) AND 22-08990 (CA) (ALJ, APRIL 23, 1979).
/3/ IN ADDITION, IN JANUARY, 1979, A POSITION OF PERSONNEL CLERK
GS-4, A SUPPORT POSITION TO THE PERSONNEL CLERK GS-5, WAS
CLASSIFIED; A
REGISTER WAS ESTABLISHED IN FEBRUARY, 1979; BUT, BECAUSE OF THE
CEILING
ON HIRING, THE GS-4 POSITION WAS NOT FILLED AT THAT TIME.
/4/ I AM AWARE THAT MR. SMITH TESTIFIED THAT HE HAD RECEIVED
UNSUBSTANTIATED INFORMATION THAT THE POSITION HAD BEEN
COMPROMISED (TR.
60, 76); BUT ASSUMING THAT MS. HOBBS WAS WHOLLY FREE OF
CRITICISM,
NEVERTHELESS, THE POTENTIAL CONFLICT OF INTEREST WAS, AND IS,
FULLY
RECOGNIZED BY THE PARTIES BY VIRTUE OF THE EXCLUSION OF SUCH
EMPLOYEES
FROM THE BARGAINING UNIT.