[ v13 p180 ]
13:0180(38)CA
The decision of the Authority follows:
13 FLRA No. 38
UNITED STATES DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT, REGION VI
SAN ANTONIO AREA OFFICE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3320
Case No. 6-CA-985
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action. The
Judge further found that the Respondent had not engaged in certain other
alleged unfair labor practices and recommended dismissal of the
complaint with respect to them. Exceptions to the Judge's Decision were
filed by the Respondent and the General Counsel filed an opposition to
the Respondent's exceptions. /1A/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and Recommended Order.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the United States Department of Housing and
Urban Development, Region VI, San Antonio Area Office, shall:
1. Cease and desist from:
(a) Making changes in the mileage rates for the use of
privately-owned vehicles, without affording Local 3320 of the American
Federation of Government Employees, AFL-CIO, prior notice and an
opportunity to bargain concerning such change, to the extent consonant
with the law.
(b) Discriminating against employees who assist Local 3320, invoke
its representation, or otherwise engage in protected union activity
under the Statute.
(c) In any like or related manner, failing to bargain, discriminating
against employees for protected union activity, or interfering with,
restraining, or coercing employees in the exercise of rights assured by
the Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Remove and expunge from the personnel folder of Arthur R.
Marroquin all evidence of the reprimand issued to him on December 8,
1980.
(b) Post copies of the attached Notice on forms to be furnished by
the Authority. Upon receipt of such forms, they shall be signed by the
Area Director, or his designee, and shall be posted and maintained for
60 consecutive days thereafter in conspicuous places, including bulletin
boards and all other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said Notices are
not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor
Relations Authority, in writing, within 30 days of this Order, as to
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the remaining allegations of the amended
complaint be, and it hereby is, dismissed.
Issued, Washington, D.C., September 29, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT make any changes in the mileage rates for the use of
privately-owned vehicles, without affording Local 3320 of the American
Federation of Government Employees, AFL-CIO, prior notice and an
opportunity to bargain concerning them, to the extent consonant with the
law. WE WILL NOT discriminate against employees who assist Local 3320,
invoke its representation, or otherwise engage in protected union
activity under the Federal Service Labor-Management Relations Statute.
WE WILL remove from the personnel folder of Arthur R. Marroquin all
evidence of the reprimand issued to him on December 8, 1980. WE WILL
NOT, in any like or related manner, fail to bargain, or discriminate
against, interfere with, restrain, or coerce employees in the exercise
of rights assured by the Federal Service Labor-Management Relations
Statute.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting, and must not be altered,
defaced, or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Region VI, Federal Labor Relations Authority, whose address is: Bryan &
Ervay Streets, Room 450, P.O. Box 2640, Dallas, Texas 75221, and whose
telephone number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 6-CA-985
William C. Cregar,
Counsel for Respondent
James E. Dumerer,
Counsel for the General Counsel, Federal Labor Relations Authority
Steven M. Angel,
Counsel for the Charging Party
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, 5 U.S.C. 7101 et seq. (Supp. IV, 1980, hereinafter referred to
as the "Statute"), and the rules and regulations issued thereunder and
published at 5 CFR 2411 et seq. : ISABELLE R. CAPPELLO
Pursuant to a charge filed by the Charging Party on February 17, 1981
and amended on June 1, 1981, the General Counsel of the Federal Labor
Relations Authority (hereinafter the "Authority"), investigated the
allegations of the charge, filed this complaint on May 30, 1981, and
amended it on January 28, 1982. As amended, the complaint alleges that
Respondent has violated Sections 7116(a)(1), (2) and (5) of the Statute.
/1/
The alleged violative acts and conduct are described as being the
"threatening of an employee with unspecified reprisals because of the
employees' activities on behalf of the Union," on or about October 16,
1980 (count 8 of the amended complaint); "discriminat(ing) against
Arthur R. Marroquin . . . in connection with hiring, tenure, promotion
or other condition of employment by issuing a reprimand because of his
membership in and activities on behalf of the Union," on or about
December 8 (count 9 of the amended complaint); and "unilaterally
chang(ing) the terms and conditions of employment concerning mileage
rates for use of privately owned vehicles, without affording the Union
an opportunity to bargain," on or about December 8 (count 10 of the
amended complaint). /2/
A hearing was held on April 29 and 30, 1982, in San Antonio, Texas.
The parties appeared, adduced evidence, and examined witnesses. Briefs
were filed by all the parties on June 15, 1982. A Motion to Reopen the
Record was filed by the Charging Party, on July 15. A Motion for
Payment of Attorney's Fees was filed by Steven M. Angel on July 12,
pursuant to a June 25 Order that he submit an affidavit in support of
the fee request made in the brief he filed on behalf of the Charging
Party. Respondent was given until July 26 to respond to the fee
request. On July 27 Respondent filed a Motion to Accept Late Filing of
its response to the fee request, on the ground of secretarial error.
Respondent's motion is granted and its letter-response is accepted.
Motion to Reopen Record
The basis for this motion is the discovery of a document which
allegedly corroborates testimony of witnesses for the Charging Party on
the issue of whether Arthur R. Marroquin invoked its assistance on
October 17, 1980. It is admitted that the document was in the
possession of the chief steward, Antonio C. Cabral, at the time of the
hearing. It is argued that Mr. Cabral was unaware of its significance
because, as a witness, he was under a sequestration rule.
In his testimony, Mr. Cabral demonstrated some confusion as to the
date the union intervened. After leaving the stand, he checked his
records and found some notes and his calendar, which refreshed his
recollection. He was then recalled as a witness and testified that he
was certain that the union intervened on October 17. He was a credible
witness and, for reasons set forth more fully, infra, I have credited
his testimony.
Upon these facts and circumstances, I see no justification for
reopening the record, even though Respondent does not oppose the motion.
The motion is denied.
Based upon the record made in this proceeding, my observation of the
demeanor of the witnesses, the briefs, and the representations made in
the motions and responses thereto, I make the following findings of
fact, conclusions of law, and recommended decision.
Findings of Fact
1. It is admitted that the United States Department of Housing and
Urban Development ("HUD") is an agency, and that the American Federation
of Government Employees ("AFGE") is a labor organization, within the
meaning of Section 7103(a)(3) and (4) of the Statute. AFGE is the
exclusive representative of professional and non-professional employees
at certain HUD offices, including the San Antonio Area Office, here
involved. Local 3320 ("Union") is the representative of AFGE at the San
Antonio Area Office.
Count 10 of the amended complaint
2. In its answer to the amended complaint, which added this
allegation, Respondent admitted that on or about December 8 it
unilaterally changed the terms and conditions concerning mileage rates
for use of privately owned vehicles, without affording the Union an
opportunity to bargain. At the start of the hearing, Respondent
conceded that the change had a "substantial impact upon employees" (TR
10). /3/ The change was to lower the 16 1/2 cents mileage rate to 10
cents. It was stipulated at the hearing that employees who were
affected by the change had already been reimbursed. See TR 4-5.
Respondent voluntarily went back to the 16 1/2 rate, and offered to
reimburse employees who travelled at the 10 cents a mile rate. Its
voluntary action took place shortly after the amended charge alleging a
violation was filed, and before the complaint was issued by the General
Counsel.
Counts 8 and 9 of the complaint
3. The San Antonio Area Office operates under a regional office in
Fort Worth. The size of the San Antonio Area Office was not
established. One of its subdivisions is the Community Planning and
Development Department ("CPD"). The function of the CPD is to oversee
the award of Federal housing grants and to monitor them. Monitoring
involves trips to communities receiving the grants. Except for the
Director of the CPD, employees in the CPD sit in cubicles, in one large
area, and can easily overhear conversations in the CPD area. Employees
in the CPD are all professionals. They are often required to travel out
of the San Antonio area. The method of transportation, whether by
government vehicle ("GOV" or "GSA"), or by a personally-owned vehicle
("POV"), is a matter of great concern to these employees, because
generally they prefer travel by POV. The CPD employees often travel in
teams. When team travel is involved, the employee who is the program
manager makes the motel and travel arrangements.
4. The employees involved in this proceeding are as follows:
a. Arthur R. Marroquin ("Rudy") is one of seven program
managers in the CPD. He is the employee against whom the adverse
action here involved was taken.
b. Phillip R. Aguirre is the president of the Union and an
employee in the CPD.
c. Antonio C. Cabral ("Tony") is the vice president and chief
steward of the Union. He is also an employee in the CPD.
d. Franklin M. Buie ("Frank") is one of two section heads in
the CPD. He is the first-line supervisor of Mr. Marroquin, Mr.
Cabral, and Mr. Aguirre.
e. Charles Steitle was the other CPD section head during the
period here involved. He is now retired, and did not testify at
the hearing.
f. James Byam has been the deputy director of the San Antonio
Area Office since 1974 and has direct responsibility for the
handling of labor relations.
g. William O'Neal ("Bill") is the labor-relations officer for
the regional office in Fort Worth. Mr. O'Neal was at a meeting in
Washington at the time of the hearing and was not called to
testify.
h. Kenneth Willenberg, Lowell G. Salyer, Robert Dominquez
("Bob"), and Leslie A. Morgan ("Jack") were all employees in the
CPD and were supervised by Mr. Steitle, during the period here
involved. Mr. Willenberg is now self-employed.
i. Leroy Moczygemba is an employee in CPD and is supervised by
Mr. Buie.
j. Ramon A. Galindo is the director of the CPD. During the
October 16-17 episode here at issue, he was out of town; Mr. Buie
was acting in his stead.
5. The instant case involves facts surrounding the arrangements for
a team trip to Edinberg, Texas. Mr. Marroquin was the program manager.
Messrs. Willenberg, Salyer, Dominquez, and Morgan were the other team
members. On October 12, Mr. Marroquin confirmed arrangements with the
City of Edinberg for the monitoring team to arrive on Monday, October
20th. He also confirmed the motel arrangements which had been made, and
arranged with the other members of the team to use two POV's. By
October 16, only Mr. Salyer did not know how he was to travel to
Edinberg; and this was because he had been out of the office, on
vacation.
6. Mr. Buie was made aware of the intended use of two POV's by means
of Mr. Marroquin's travel itinerary dated October 14. This itinerary
was returned to Mr. Marroquin on October 16 with the notation by Mr.
Buie: "Must use GSA cars if available" (GC 2). Mr. Marroquin went to
see Mr. Buie, to protest that requiring use of GSA vehicles was contrary
to office policy. Their discussion was apparently a heated one. When
Mr. Buie repeated that he wanted the GSA cars used on the trip, Mr.
Marroquin informed him "that this was a change in our working conditions
and as a shop steward (he) was going to require him to put his order in
writing, so there'd be no mistake" (TR 120). /4/ Mr. Buie replied: "I
don't have to give you a God damned thing. You're going by GSA-- you're
going to use GSA" (TR 121). Mr. Marroquin resisted making these
arrangements.
7. Mr. Marroquin then left Mr. Buie's vehicle and filled out a Rapid
Reply Letter directed to Mr. Buie, and informing him that his comment on
the travel itinerary was incorrect; that the travelers on the Edinberg
trip had made no commitment to use GOV's; that they were planning to go
by POV; and that, if there were any further questions, "please check
with Administration" (R 1.2). In the "Reply" portion of the Rapid Reply
Letter, Mr. Buie wrote: "GSA cars (2) are available in the CPD Division
and are reserved for your use on the trip. They will be used." (R 1.2)
The reply was dated October 16th.
8. Mr. Marroquin then went to see Mr. Byam about the matter. Mr.
Marroquin often consulted with Mr. Byam about business matters. See TR
193-194. At about the same time, Mr. Buie was seeing Mr. Steitle. Mr.
Buie stated to Mr. Steitle that "he was making a management decision
that his people were going to drive GOV's" (TR 139).
9. Meanwhile, Mr. Byam was agreeing with Mr. Marroquin that it was
office policy not to require the use of GOV's. Mr. Byam immediately
went to see Mr. Buie and told him: "Frank, you're wrong, Rudy can take
his own vehicle if he takes it at the going GSA rate" (TR 181). Mr.
Buie then informed Mr. Marroquin that he did not have to take GOV's, but
that only two cars could be taken, and that he was to make arrangements
as to how the travelers would split up in the two cars. Mr. Marroquin
continued to resist making the arrangements he was instructed to make.
Events on October 17
10. Early on Friday morning, October 17, Mr. Buie presented Mr.
Marroquin with a memorandum stating:
At your request, I am instructing you, as team leader of this
monitoring trip, to coordinate with the appropriate travelers for
the trip. We cannot authorize more than two cars for this trip.
Please arrange your travel accordingly. I understand that Mack
(Morgan) and Bob (Dominquez) are using a Government automobile (TR
49).
11. Later, Mr. Buie called Mr. Marroquin to his cubicle to discuss
the travel arrangements. A heated discussion ensued. Mr. Marroquin
refused to make the arrangements for the other team members, on the
ground that Mr. Steitle was interfering. Mr. Buie accused Mr. Marroquin
of insubordination. Mr. Marroquin left the meeting to seek
representation from the Union, because he heard that a disciplinary
action, in the form of a reprimand, was being contemplated. Mr. Cabral,
on Mr. Aguirre's instruction, then accompanied Mr. Marroquin back to Mr.
Buie's cubicle and asked Mr. Buie what the problem was. Mr. Buie asked
Mr. Cabral why he was getting involved. Mr. Cabral explained that he
was representing Mr. Marroquin, under the collective bargaining
agreement, because Mr. Marroquin was afraid of a detrimental action
against him. Mr. Buie replied that he didn't think "the Union has any
business getting involved with this" (TR 101), and called Mr. Byam. Mr.
Byam advised Mr. Buie that Mr. Marroquin could have representation. Mr.
Cabral then stayed, and again asked what the problem was. Mr. Buie
informed him that Mr. Marroquin had failed to perform his
responsibilities and that action was going to be taken against him. Mr.
Cabral tried to seek an informal resolution of the matter. Mr. Buie
replied that there was nothing else he could do. /5/
12. Mr. Cabral left then with Mr. Marroquin and, after discussing
the matter with Mr. Marroquin, returned again to Mr. Buie, to be sure
that he did not want to discuss it. Mr. -buie said it was "out of his
hand" (TR 102, 113). Mr. Cabral then said he would have to discuss it
with the front office. Mr. Buie indicated, in "almost these words:"
(W)ell, you go ahead and do what you want, but personally, I
don't think that you should be involved. I think this is one of
the problems with HUD, and with the Federal Government, that the
Union is getting involved in any little thing, and the Unions are
getting too strong, so that management can't do anything anymore
(TR 113). /6/
13. Mr. Cabral then went to see Mr. Byam and explained that, under
the Union agreement, the Marroquin matter could be resolved between
them. Mr. Byam told him that the matter was already in the regional
office. At Mr. Cabral's suggestion, Mr. O'Neal was called on a
conference call, and all three of them discussed the matter. Mr. Cabral
explained that he wanted an informal agreement on the Marroquin case.
Mr. O'Neal said that it was "already too far advanced, we're just going
to have to let it follow its course" (TR 104). /7/ This may have been a
reference to the fact that the regional office was preparing a draft of
a proposed disciplinary action against Mr. Marroquin. See TR 61-62.
14. Subsequent to all this, Mr. Salyer advised Mr. Buie that he did
not know how he was going on the trip (TR 35).
15. At that juncture, Mr. Buie prepared and presented a memorandum
to Mr. Marroquin. The memorandum recited the past events, on October 16
and 17 and stated:
During this conversation (on the morning of October 17) you
became insubordinate that (sic.) you were loud, boisterous, and I
had to strongly insist that you stay in my office and discussed
(sic.) the matter. You violated every aspect of Secretary Moon
Landrieu's policy statement on good manners and courtesy in the
United States Government dated September 17, 1980, since this
created general confusion in the office. This conduct
will
not be condoned in the future.
At 2:00 p.m. on Friday, October 17, 1980, the other team
members do not know what the traveling arrangements are for next
Monday morning; and I am instructing you to settle this matter
immediately. (R 1.1)
16. Around 3:00 p.m. on October 17, a Friday, Mr. Buie learned that
Mr. Willenberg did not know how he was going on the trip. Quitting time
was 4:15 p.m. The trip was set for Monday morning.
17. Mr. Buie then asked Mr. Byam to be a witness to his asking Mr.
Marroquin whether he had made the travel coordination for the trip
insofar as who was traveling in which car. The three assembled in the
privacy of Mr. Galindo's office. Mr. Marroquin was asked by Mr. Buie
whether he had made the travel arrangements. Mr. Marroquin stated that
he had, on his travel itinerary. Mr. Buie then said that Mr. Steitle's
group did not know how they were going. Mr. Marroquin replied that he
understood, from "scuttle butt," that Mr. Steitle had arranged for them
to go by GSA car (TR 129). Mr. Buie then ordered Mr. Marroquin to go to
the work area of Mr. Steitle to tell Mr. Steitle's people how they were
going to travel. Mr. Marroquin argued that this was "improper", as he
had no supervisory responsibility over them (TR 129-130). /8/ Mr.
Marroquin did not respond when asked, at the hearing, whether he replied
"no" to a direct order to go tell the others how they were to travel (TR
130). He then responded negatively to the question: "Did you simply
say 'no', when told to go tell these employees their travel
arrangements" (TR 130). When then asked what he had responded, he
explained: "That I thought the order that Mr. Buie had given me was
improper" (TR 130). The gist of this testimony seems to be that Mr.
Marroquin did say "no" to a direct order, but qualified it by explaining
that the order was improper.
18. Even before October 17, Mr. Morgan and Mr. Dominquez had agreed
to travel together in a GOV. See TR 169. Mr. Marroquin did not contact
Mr. Morgan on October 16 or 17. But Mr. Morgan testified that Mr.
Marroquin "knew that we had a way down," and that his not contacting
them was not unusual (Tr 172).
19. Late in the afternoon on October 17, Mr. Steitle asked Mr.
Morgan to pick up Mr. Willenberg. Mr. Willenberg had been scheduled to
go with Mr. Marroquin; but after "Mr. Marroquin's confrontation" on the
afternoon of October 16, it was "up in the air as to who (he) was going
with" (TR 139). Mr. Marroquin's only contact with Mr. Willenberg, on
October 16 or 17, was to tell Mr. Willenberg that he, Mr. Marroquin, was
not going to take anyone with him.
20. Mr. Salyer was first told that Mr. Marroquin was taking him.
After Mr. Salyer heard "all kinds of yelling, shouting" (TR 156), in a
Buie-Marroquin encounter that "sounded like a kindergarten class" (TR
150), Mr. Steitle came to Mr. Salyer and made a request, that sounded
"like an order" (TR 157), that Mr. Salyer drive a GOV on the trip. Mr.
Salyer agreed that he or Mr. Willenberg would drive one. Finally, on
Friday afternoon, Mr. Marroquin came over to Mr. Salyer and said "I'll
pick you up Monday morning at 7:30" (TR 151).
Subsequent events
21. Sometime between October 20 and November 4, Mr. Galindo returned
from a trip and learned that Mr. Buie was proposing a suspension of Mr.
Marroquin. Mr. Buie told Mr. Galindo that he had discussed the matter
with Mr. O'Neal, in the regional office, and that a draft of the
proposed suspension was being prepared by the regional office. See TR
62.
22. On November 4, Mr. Buie signed a "Notice of Proposed Suspension"
(Jt 4.1). In it, Mr. Buie charged Mr. Marroquin with "loud boisterous
behavior which disrupted the normal operations of the office" (Jt 4.2
par. 1(d)) and with "failure to carry out an order on three (3) separate
occasions" (Jt 4.2, par. 1(b)).
23. On or about November 5, Mr. Buie attempted to present Mr.
Marroquin with the Notice of Proposed Suspension. Mr. Marroquin refused
to accept it, without a witness. Mr. Buie called Mr. Byam for advice.
Finally, Mr. Marroquin was allowed to have Mr. Cabral, as a witness, and
Mr. Buie obtained Mr. Steitle. In front of these witnesses, Mr. Buie
presented the Notice to Mr. Marroquin. /9/
24. Mr. Galindo, on December 8, sent a "Notice of Decision to Issue
Official Reprimand" to Mr. Marroquin (Jt 5). This Notice was also
prepared in the Regional Office. The Notice states that Mr. Buie
considered all the information presented by Mr. Marroquin's attorney, on
his behalf. Mr. Galindo dismissed the charge concerning loud and
boisterous behavior. He found the insubordination charge fully
supported by the evidence. However, he lessened the penalty proposed by
Mr. Buie to an official reprimand, to be placed in Mr. Buie's official
personnel folder.
25. Mr. Galindo's reprimand was made after he had contacted
witnesses, including Mr. Buie, Mr. Marroquin, Mr. Steitle, Mr. Byam, and
the 4-team members who also made the October trip.
a. Three of the team members told Mr. Galindo that, as late at 3:00
p.m. on Friday, October 17, they did not know how they were to travel to
Edinberg.
b. Mr. Galindo knew of the disagreement between Mr. Buie and Mr.
Marroquin over the required use of Government cars rather than private
ones. Mr. Galindo considered this fact in making his decision on the
reprimand, in that he wondered if Mr. Buie was retaliating against Mr.
Marroquin. Mr. Galindo also considered whether Mr. Steitle might have
interfered with the transportation arrangements because three of the
team members worked for Mr. Steitle.
c. Mr. Galindo dismissed the charge of loud and boisterous language
because he felt that "we all blow our tops once in a while" (TR 70), and
that operations were not disrupted.
d. Mr. Galindo has held his position since April 1976 and had never
before learned of an employee under his supervision who had refused to
obey an order.
Evidence pertaining to union animus
26. For at least the past three years, there have been some
"(f)airly well heated discussions" between the Union and management
officials at the San Antonio Area Office (TR 17). Mr. Byam or the Area
Director represent management at these meetings.
27. One issue has been over the number of shop stewards and the
allowance of official time. Respondent interprets the collective
bargaining agreement to allow for only four designated union
representatives and recognizes only four for purposes of receiving
official time. An exception is made for representation of employees in
grievance and appeal matters. Mr. Byam also acknowledged that, on
occasion, employees other than the four designated ones sit in on
labor-management meetings. This issue appears to be a sore one between
the Union and Respondent. Thus far, the Union has not filed a grievance
or instituted a proceeding under the Statute.
28. Since 1976, Mr. Marroquin has been considered a shop steward, by
the Union. On occasion he has sat in on labor-management meetings. Mr.
Marroquin has represented the Union on his own time. He had not had any
contact with managers in his office, in a Union capacity, during the
period of 1980 preceding the October 16 episode.
29. Mr. Buie has never before recommended disciplinary action
against a CPD employee, even though "(c)onfrontational politics is
really the norm," in the CPD office (TR 20). Mr. Buie gets "irritated
easily," as Respondent's labor relations officer testified (TR 184). At
least one other CPD employee has challenged the authority of Mr. Buie,
by throwing some papers on the floor and proclaiming that she was "not
going to do that" and telling him that he could do "this damn thing"
himself (TR 160). Another CPD employee, on several occasions, has
gotten "to the point of threatening Mr. Buie . . . in a violent manner,"
and once told Mr. Buie to get out of his office (TR 158).
Discussion and Conclusions
The General Counsel has proved, by a preponderance of the evidence,
that violations of Sections 7116(a)(1), (2) and (5) occurred by the acts
and conduct alleged in counts 9 and 10 of the complaint. The facts
alleged in count 8 were not so proved.
Count 10
This failure-to-bargain count was clearly established; and
Respondent does not contest the fact. It acknowledges that a "posting"
would be "appropriate" (TR 9). Such a posting will be recommended, as
well as an order against any further violations of this nature.
Count 9
The findings and credibility resolutions made, supra, compel the
conclusion that the disciplinary action here at issue was initiated
solely on considerations of protected union activity, and therefore
constituted an unfair labor practice, as alleged in the complaint.
The protected union activity may be found in two instances during the
continuing confrontation between Mr. Marroquin and his first-line
supervisor, Mr. Buie-- a confrontation that spanned a Thursday and
Friday, and began with a disagreement over office policy as to the use
of POV's by a 5-member team for a following Monday morning trip. The
clash began when Mr. Marroquin, who was team leader, invoked his status
as a shop steward to challenge Mr. Buie's unilateral change in office
policy concerning the use of POV's, and went over his head to get him
reversed. Respondent disputes Mr. Marroquin's status as a shop steward.
However, the facts indicate otherwise. While Mr. Marroquin was not
given official time while so acting, he did act as a shop steward, on
occasion, was so recognized by his Union, and so informed Mr. Buie when
he registered his protest over the change.
Respondent also argues that Mr. Marroquin was expressing a personal
concern, and that commingling of personal with general employment
concerns does not insulate a union representative from a disciplinary
action for insubordination. See RBr 9. Respondent cites National Labor
Relations Board and Ronald Lasky, 5 FLRA No. 87 (1981). That case,
however, was a close one which "might well" have gone the other way, had
the supervisor "invited the discussion . . . ." See page 8 of the
decision of Administrative Law Judge Burton S. Sternburg, which the
Authority affirmed without comment. In the instant case, Mr. Buie did
invite the discussion, by making the unilateral change and insisting
that the team follow it on the Monday morning trip. This was a matter
of general concern to the bargaining unit, whose members travel
regularly and prefer to use their own automobiles, in lieu of GSA ones.
A shop steward, made aware of such an unilateral change, would naturally
make a union issue out of the matter. The fact that the steward may be
personally affected by the change should not serve to strip the steward
of protected status, under the Statute, when invoking the union's right
to challenge the unilateral change. Most stewards would lose
protection, if the contrary became a principle of labor law. The
challenge by Mr. Marroquin as a shop steward, was protected activity
under Section 7102(1) of the Statute.
The confrontation over the use of POV's immediately gave way to one
over whether Mr. Marroquin should tell the other team members how they
were to make the trip. The problem for Mr. Marroquin was that the other
team members were under the supervision of someone other than Mr. Buie;
and Mr. Marroquin had learned that the other team members were using a
GOV. Mr. Marroquin was reluctant to interfere in another supervisor's
jurisdiction; and he expressed this reluctance to Mr. Buie. Mr. Buie
repeatedly insisted that Mr. Marroquin make the arrangements which led
to several heated encounters. During one of them, Mr. Marroquin left
the meeting to seek help from his union. When the help arrived, Mr.
Buie objected, but was again overruled by higher authority, which agreed
that Mr. Marroquin was entitled to representation by his union. Seeking
union representation during an examination in connection with an
investigation, which the employee reasonably believes may result in
disciplinary action, is a protected right under Section 7114(a)(2)(B) of
the Statute. /10/
Several facts are persuasive that the basis for the disciplinary
action was the protected union activity, and not the given ground,
"insubordination" of Mr. Marroquin. First of all, the "insubordination"
did not justify the brouhaha that was raised over the matter. Mr.
Marroquin did resist following Mr. Buie's orders to make the travel
arrangements. But he finally did complete them. And his resistance was
understandable-- he understood that the arrangements had been made, and
he was reluctant to step in and countermand what had been arranged for
or by employees who worked for another supervisor.
Secondly, Mr. Buie was very tolerant of acts of insubordination by
others on his staff, some of which would seem to have been more
provocative than that of Mr. Marroquin. Yet nothing provoked him into
resorting to disciplinary action until one of his staff exercised union
rights. For a supervisor of Mr. Buie's ilk, easily irritated in an
office where confrontations with staff were the norm, having a union
intercede would be a real irritant, of course.
Finally, Mr. Buie's animus toward union interference was established
by credible evidence. He considers it to be a problem at HUD, and
throughout the Federal government, to the point that management cannot
do anything anymore.
The fact that the disciplinary action was not imposed until Mr.
Marroquin's second-line supervisor had made an independent investigation
does not purge the action of the taint of discrimination. The matter
would not have reached the attention of the second-line supervisor were
it not for the resentment of the first-line supervisor over the
protected union activities.
Count 8
Respondent argues that this count should be dismissed for reason of a
"total failure of proof" (RBr 7, fn. 6). The General Counsel does not
even state it as an issue in the case. See GCBr 1. The Charging Party
notes it as an issue (CPBr 1), but addresses its brief to the count 9
allegation of a reprimand as the violative act. Evidence in support of
count 8 is obscure. See e.g. TR 131. It is clearly not supported by a
preponderance of the evidence, which is the standard required by Section
7118(a)(7) of the Statute. It should be dismissed.
Motion for Payment of Attorney's Fees
The motion for attorney's fees is made in connection with the
Sections 7116(a)(1) and (5) violation arising from the unilateral change
in mileage rates. The Charging Party argues that the Backpay Act, 5
U.S.C. 5596 and the implementing regulations, 5 CFR 550.806 (1982),
entitle it to attorney's fees for work connected to recovery of the
allowances for travel unlawfully withheld. Moreover, it is argued that
the withholding was clearly without merit, and so fees are appropriate
in the interests of justice, as defined by 5 U.S.C. 7701(g).
Respondent opposes the motion, on the ground that none of the
requirements set forth in 5 U.S.C. 5596 and 7701(g) have been met.
Section 702 of the Civil Service Reform Act of 1978 amended 5 U.S.C.
5596(b)(1) to provide that:
An employee of an agency who, on the basis of . . . a decision
relating to an unfair labor practice . . . is found by appropriate
authority under applicable law . . . to have been affected by an
unjustified or unwarranted personnel action which has resulted in
the withdrawal or reduction of all or part of the pay, allowances,
or differentials of the employee - (A) is entitled, on correction
of the personnel action, to receive for the period for which the
personnel action was in effect - . . . (ii) reasonable attorney
fees related to the personnel action which, with respect to any
decision relating to an unfair labor practice . . . shall be
awarded in accordance with standards established under section
7701(g) of this title . . . .
The standard in Section 7701(g)(1) is that:
"(T)he Board (Merit Systems Protection Board), or an
administrative law judge . . . may require payment by the agency
involved of reasonable attorney fees incurred by the employee . .
. if the employee . . . is the prevailing party and the . . .
administrative law judge . . . determines that the payment by the
agency is warranted in the interest of justice, including any case
in which a prohibited personnel practice was engaged in by the
agency or any case in which the agency's action was clearly
without merit.
In Allen v. U.S. Postal Service, Docket No. AT075299011, decided July
22, 1980, Federal Merit Systems Reporter, Sec. 7015, XI- 72, the Merit
Systems Protection Board (MSPB) lays out the legislative history of 5
U.S.C. 7701(g)(1) and considers how to apply the "interests of justice"
standard. Since the MSPB is primarily charged with the responsibility
for interpreting the provisions of 5 U.S.C. 7701(g)(1), its decisions
may be looked to as precedent. The MSPB drew several conclusions of
relevance here. One is that the burden of proof falls upon the
applicant. Another is that substantial discretion rests upon the
deciding body in determining when an award is warranted. And another is
that Congress expected that discretion to award attorney's fees would
normally be exercised where agency action was clearly without merit, but
that discretion permitted the deciding body to deny fees even where such
circumstances are present. See XI Federal Merit Systems Reporter at
page 75.
In the instant case, discretion is exercised to deny the award, as
not warranted in the interest of justice, on the basis of finding 2,
supra.
I conclude that Respondent acted responsibly and without undue delay,
in responding affirmatively to the charge. It did not delay
proceedings, put any party to unnecessary proof, or act in an obdurate
manner. It reverted back to the old rate and offered to reimburse any
employee paid at the changed rate-- all before the complaint in this
action was filed. Its actions were taken voluntarily, and not pursuant
to a settlement agreement or order of this Authority. Counsel for the
General Counsel, acting on information in his possession, represented
that all employees affected by the change had been reimbursed; and it
was so stipulated. See TR 4-5. Under these circumstances, an award
cannot be justified as "warranted in the public interest." Indeed, it
would be contrary to the public interest, to a degree, in that it might
discourage agencies from voluntary actions taken to correct personnel
mistakes.
Other issues are raised by the parties. In view of the conclusions
already reached, resolution of them were serve only to lengthen, not
alter this decision. Accordingly, judicial restraint is exercised.
Ultimate Findings and Recommended Order
1. The facts alleged in count 8 of the amended complaint were not
proved by the preponderance of the evidence and that count must,
therefore, be dismissed.
2. Violations of Sections 7116(a)(1), (2), and (5) of the Statute
have been established by a preponderance of the evidence, as alleged in
counts 9, 10, and 11 of the complaint.
Pursuant to Section 7118 of the Statute and Section 2423.29 of the
implementing rules and regulations, the Authority hereby ORDERS that:
1. Count 8 of the complaint be, and hereby is dismissed.
2. The Respondent shall cease and desist from:
(a) Making changes in the mileage rates for the use of
privately-owned vehicles, without affording Local 3320 of the
American Federation of Government Employees, AFL-CIO, prior notice
and an opportunity to bargain concerning such change, to the
extent consonant with the law.
(b) Discriminating against employees who assist Local 3320 or
invoke its representation, to the extent consonant with the law.
(c) In any like or related manner, failing to bargain,
discriminating against employees for protected union activity, or
interfering with, restraining, or coercing employees in the
exercise of rights protected by the Statute.
3. The Respondent shall:
(a) Remove and expunge from the personnel folder of Arthur R.
Marroquin all evidence of the reprimand issued to him on December
8, 1980.
(b) Post copies of the attached Notice (see Appendix A) on
forms to be furnished by the Authority. Upon receipt of such
forms, they should be signed by the Area Director, posted, and
maintained for 60 consecutive days thereafter in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. The Area Director
shall take reasonable steps to insure that the notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to Section 2423.30 of the Authority's rules and
regulations, notify the Regional Director, Region VI, Federal
Labor Relations Authority, in writing, within 30 days of this
order, as to what steps have been taken to comply herewith.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: August 9, 1982
Washington, D.C.
APPENDIX A
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT make any changes in the mileage rates for the use of
privately-owned vehicles, without affording Local 3320 of the American
Federation of Government Employees, AFL-CIO, prior notice and an
opportunity to bargain concerning them, to the extent consonant with the
law. WE WILL NOT discriminate against employees who assist Local 3320
or invoke its representation, to the extent consonant with the law. WE
WILL remove from the personnel folder of Arthur R. Marroquin all
evidence of the reprimand issued to him on December 8, 1980. WE WILL
NOT, in any like or related manner fail to bargain, or discriminate
against, interfere with, restrain, or coerce employees in the exercise
of rights assured by Chapter 71 of Title 5 of the United States Code.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting and must not be altered,
defaced, or covered by any other material. If employees have any
question concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Federal Labor Relations Authority, Region VI, P.O. Box 2640, Dallas,
Texas 75221, and whose telephone number is (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1A/ The Respondent excepted to certain credibility findings made by
the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge has had the advantage of
observing the witnesses while they testified. The Authority will not
overrule a Judge's resolution with respect to credibility unless a clear
preponderance of all the relevant evidence demonstrates that such
resolution is incorrect. The Authority has examined the record
carefully, and finds no basis for reversing the Judge's credibility
findings.
/1/ Section 7116 of the Statute provides, in pertinent part, that:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency -
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
(2) to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment; . . . (or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter; . . . .
/2/ The amended complaint is General Counsel Exhibit 1(n).
/3/ "TR" refers to the transcript. Corrections to the transcript are
to be found in Appendix B to this decision. Other abbreviations to be
used herein are as follows. "GC" refers to the exhibits of the General
Counsel and "GCBr" to his brief. "R" refers to the exhibits of the
Respondent and "RBr" to its brief, "CP" refers to the exhibits of the
Charging Party and "CPBr" to its brief. Multipage exhibits will be
referenced by an exhibit number, followed by page or paragraph number.
All dates referenced herein are in 1980, unless otherwise specified.
/4/ This finding is based upon the testimony of Mr. Marroquin, who
seemed to be honest and forthright in giving his testimony, albeit
confused as to some dates and times. His testimony is bolstered by the
fact that he did, on occasion, sit in on various committees for the
Union with management and act as a shop steward, and by the fact that
this was a matter which merited the attention of the Union, as it
affected the bargaining unit on a matter of great concern to it.
Mr. Buie denied any knowledge that Mr. Marroquin was acting as a
Union representative. As a witness, I find that Mr. Buie seemed less
candid and unrehearsed than Mr. Marroquin, and therefore less credible.
I do not attach any significance to the fact that Mr. Marroquin, in
his representation of the Union, did not receive official time. See
finding 27, supra.
/5/ Finding 11 is based upon testimony of Mr. Cabral, corroborated in
part by that of Mr. Marroquin and Mr. Aguirre. Mr. Cabral impressed one
as an honest and candid witness. He initially had some difficulty
recalling whether this meeting occurred on October 16 or 17. However,
he was recalled to the stand, after checking some notes and his
calendar, and was able to state, with certitude, that it occurred on
October 17.
Respondent's Exhibit 4, a written statement by Mr. Buie to Mr.
Galindo, shows that Mr. Marroquin did walk out of the meeting and then
return. And Mr. Buie admitted that Mr. Cabral intervened on behalf of
Mr. Marroquin, but thought it occurred on November 5 or 6, in connection
with Mr. Buie giving Mr. Marroquin his notice of proposed disciplinary
action.
Mr. Buie does not recall that Mr. Cabral ever identified the fact
that he was intervening as a Union representation. I find Mr. Cabral to
have been a more credible witness than Mr. Buie and where their
testimony is in conflict, I have credited that of Mr. Cabral. Mr. Buie
did not strike me as being completely candid, in giving his testimony.
/6/ This finding is based on the testimony of Mr. Cabral. Mr. Buie
denied that the Union was ever mentioned, in his conversation with Mr.
Cabral over the Marroquin matter. See TR 213. I have not credited this
denial. See footnote 5, supra.
/7/ This finding is based on the testimony of Mr. Cabral. Mr. Byam
does not recall this happening. At first he seemed sure that it did not
take place. See TR 188-189. Then, less sure. See TR 190 and 197-198.
He admitted also that he had so many meetings with so many people that
he had difficulty recollecting specifics. See TR 206.
/8/ This finding is based on the testimony of Mr. Marroquin. Mr.
Byam denies that Mr. Marroquin made this statement. See TR 185. Mr.
Byam also testified that much of what went on at the meeting was a
"mish-mash" to him, that he could not "even remember what it was about"
(TR 82), and that both Mr. Marroquin and Mr. Buie were "talking at the
same time" (TR 202). Therefore, it is likely that Mr. Byam just did not
hear Mr. Marroquin make this statement.
/9/ This may have been "the disciplinary time" which Mr. Moczygemba
witnesses. See TR 245. The General Counsel relies heavily on Mr.
Mocyzgemba's testimony to support a finding that the Union intervened on
Mr. Marroquin's behalf on October 17. See GCBr 5-6. I find that his
testimony, as to dates, was too uncertain to place reliance upon.
Otherwise, he was an unbiased witness whose testimony has been fully
credited.
/10/ Since Respondent's labor relations officer agreed that Mr.
Marroquin was entitled to union representation during this encounter,
there does not seem to be an issue that this was a Section 7114(a)(2)(B)
examination. In any event, the findings show that it qualifies. Mr.
Buie was examining Mr. Marroquin to find out whether he had obeyed prior
orders. Mr. Buie was very irritated over the matter. Disciplinary
action was initiated shortly after the encounter took place.