[ v25 p342 ]
25:0342(23)CA
The decision of the Authority follows:
25 FLRA No. 23
DEPARTMENT OF THE AIR FORCE
OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1592
Charging Party
Case No. 7-CA-50596
DECISION AND ORDER
The Administrative Law Judge issued the attached decision in these
proceedings. He found that the Respondent had not engaged in the unfair
labor practices alleged in the complaint, and he recommended that the
complaint be dismissed. The General Counsel filed exceptions to the
Judge's decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, we have reviewed the rulings of the Judge made at the hearing.
We find that no prejudicial error was committed, and we affirm those
rulings. Upon consideration of the Judge's decision and the entire
record, we adopt the Judge's findings, conclusions and recommended
Order.
ORDER
The complaint in Case No. 7-CA-50596 is dismissed.
Issued, Washington, D.C., January 27, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 7-CA-50596
DEPARTMENT OF THE AIR FORCE, OGDEN AIR
LOGISTICS CENTER, HILL AIR
FORCE BASE, UTAH
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1592, AFL-CIO
Charging Party
Clare A. Jones, Esq.
For the Respondent
William Shoell
For the Charging Party
Michael Farley, Esq. and
Joseph Swerdzewski, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case arose 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.
Upon an unfair labor practice charge filed by the American Federation
of Government Employees, Local 1592, AFL-CIO (herein referred to as the
Union) against the above captioned Respondent, the General Counsel of
the Authority, by the Regional Director for Region VII, issued a
Complaint and Notice of Hearing alleging Respondent violated section
7116(a)(1) and (2) of the Statute by suspending for one day without pay
Union Steward Kelly D. Bartlett for having engaged in activities
protected by the Statute.
A hearing on the Complaint was conducted in Ogden, Utah on December
16, 1985 at which all parties were represented and afforded full
opportunity to adduce evidence, call, examine and cross-examine
witnesses and argue orally. Briefs were filed by counsel for Respondent
and counsel for the General Counsel and have been carefully considered.
Upon the entire record in this case, /1/ my observation of the
witnesses and their demeanor and from my evaluation of the evidence, I
make the following:
Findings of Fact
At all times material herein the American Federation of Government
Employees, AFL-CIO (herein referred to as AFGE) has been the exclusive
collective bargaining representative of a nationwide unit of employees
employed by Headquarters Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio including various employees located at Hill Air
Force Base, Utah, herein referred to as Hill AFB). AFGE'S Council 214
is an affiliate and agent of AFGE and Local 1592 is an affiliate and
agent of Council 214. Employees at Hill AFB are represented by AFGE
through Local 1592.
Kelly D. Bartlett, an employee of Hill AFB, Aircraft Division, has
been Local 1592's steward for the Aircraft Divison within the
Directorate of Maintenance at Hill AFB since November 1984. On May 9,
1985 Bartlett, acting in his capacity as a Union steward, filed an
appeal on behalf of Aircraft Division employee Gilbert Duran whose
security clearance had been previously revoked by the Air Force Security
Clearance Office (herein referred to as AFSCO) in Washington, D.C. The
appeal was essentially a request that AFSCO reconsider the matter and
was sent to Rosemary Adkins, AFSCO, Washington, D.C. who was an
adjudicator in such matters but not part of Hill AFB management. Copies
of the May 9 letter were also sent to the Hill AFB security office,
General McCausland, apparently the Base Commander and Aircraft Division
Chief Ward Jensen. Bartlett signed the letter:
Kelly D. Bartlett
Division Steward, GS-15
AFGE Local 1592
Hill AFB, Utah 84056
Shortly thereafter Ronald Storey, Aircraft General Foreman in the
Aircraft Maintenance Division at Hill AFB and Bartlett's second level
supervisor, was informed by Respondent's Civilian Personnel Branch that
Aircraft Division Chief Jensen was upset about Bartlett signing the May
9 letter as "GS-15" (General Schedule) and told Storey he should look
into the matter and take appropriate action since Bartlett was a Sheet
Metal Mechanic at the WG-10 (Wage Grade) pay level. Storey obtained a
copy of Bartlett's May 9 level and concluded that since Bartlett was not
a GS-15, Bartlett was guilty of misrepresenting his grade and it was
possible that if AFSCO understood Bartlett to be a GS-15, they might
divulge information to Bartlett that he should not have received.
Accordingly, on June 20, 1985 Storey met with Bartlett and presented
him with a Notice of Proposed Suspension wherein Storey proposed to
suspend Bartlett for five days without pay for "deliberate
misrepresentation." The Notice of Proposed Suspension also indicated
that in determining the severity of the proposed discipline, Storey had
taken into consideration Bartlett's disciplinary 3 day suspension in
June 1984 for:
". . . failure to request leave according to established
procedures; unauthorized absence; and making false, malicious,
or unfounded statements against your supervisor with the intent to
damage his reputation."
During the meeting Storey explained that Division Chief Jensen was
very upset because Bartlett signed his name as a GS-15 and related that
Jensen contacted the Civilian Personnel Branch and they contacted Storey
and told him some disciplinary action should be taken. Storey, a
personal friend of Bartlett's, also indicated he didn't feel good about
disciplining Bartlett but felt compelled to discipline him because of
his prior infractions. Bartlett explained he held two distinct
positions: Aircraft Mechanic WG-10; and Aircraft Division Steward,
GS-15. Bartlett went on to state that he didn't understand the concern
over his use of the GS-15 designation since it was strictly an internal
union matter and no one from management had asked him the meaning of its
usage. For all they knew, he added, it stood for general steward 15 or
good steward 15, they had no idea. From Bartlett's explanation, Storey
concluded that when he used the GS-15 in the May 9 letter, Bartlett had
no malicious intent to misrepresent that he was indeed a GS-15 but
Storey nevertheless concluded that a misrepresentation occurred.
By letter of August 8, 1985 William Shoell, President of Local 1592
filed with Storey a written response to the Notice of Proposed
Suspension on behalf of Bartlett. Shoell's letter stated:
"1. On 9 May 1985, Mr. Kelly Bartlett, in the capacity of the
Aircraft Division Steward, filed an appeal to the Office of AFSCO.
In signing the letter, Mr. Barlett used his union title very
clearly, when he signed this as the Aircraft Division Steward for
Local 1592.
"2. There may be some confusion with management in regards to
the GS-15 Mr. Bartlett, when acting in the capacity of the
Aircraft Division Steward, is equivalent to Mr. Ward Jensen, a
GS-15, and Colonel Brown, a full Colonel in the United States Air
Force, and is not acting in his capacity as a federal employee --
which is correctly, a Sheet Metal Mechanics, WG-10.
"3. It is a union retained right to use whatever title they
feel for their officers and stewards and it is strictly an
internal union matter, which management does not have the right,
inaccordance with Public Law 95-454, to interfere with.
"4. There may have been some confusion within management
circles because of the GS-15 applied to Mr. Barett's title, but it
is very clear there was no deliberate misrepresentation. In order
to be a deliberate misrepresentation in Mr. Barrett's case, you
would have had to delete "Aircraft Division Steward, AFGE Local
1592" from the letter, which anyone could very clearly see, Mr.
Bartlett was acting in the capacity of a union official.
"5. Until this proposed action, there has been no
communication with Local 1592 into regard of some possible
confusion and the use of titles/grades assigned to stewards and
officers in this local. The evidence package provided to myself
as Mr. Bartlett's designated representative, further substantiates
this -- that there were no problems in regards to Mr. Bartlett's
representation, only the letter to AFSCO.
"6. Mr. Bartlett had no intention of implying that he was a
GS-15 in the federal government, but only as stated, Aircraft
Division Steward, GS-15, AFGE Local 1592. In accordance with case
law established in numerous cases, Union officials do not fall
under the same criteria as a federal employee when they are acting
in the capacity of union officials. Several of these cases are:
4 FLRA 460, 4 FLRA 540, 4FLRA 668; OALJ Decision 8534, U.S.
Supreme Court Decision Linn VS Plants Guards, 383US53, Old
Dominion Branch 496, NAL Carriers VS Austin 418US264 (1974). They
clearly state that union officials are governed under a different
type of criteria when performing their duties. Further, there was
no evidence presented to me in the evidence package that Mr.
Bartlett was not performing as a representative for AFGE Local
1592.
"7. If the designation of GS-15 is requiring management
officials at Hill AFB any problems, I feel they should address
this to myself in order that I may be able to review it and see
if, in order to promote good union-management relations, we need
to change titles of union officials within my organization.
"8. I can further ensure that Mr. Bartlett has no intentions
of deliberate misrepresentation now or in the future.
"9. I feel that the proposed 5-day suspension should be
cancelled in its entirety. I do request a verbal presentation in
this matter at your convenience."
Storey remained unconvinced that a misrepresentation had not occurred
but felt that Bartlett had not actually intended to mislead any one by
use of the GS-15 designation. Accordingly, on August 23, 1985 Storey
issued his final decision in the matter stating, in relevant part:
"2. Your . . . replay, . . . has been thoroughly reviewed and
been given full and objective consideration. It is found that the
reasons stated in paragraph 2 of the Notice of Proposed Suspension
are sustained and fully supported by the evidence and warrant your
suspension to promote the efficiency of the service. However,
since Air Force policy on discipline is to rehabilitate rather
than punish, the decision has been made to reduce the penalty to a
one (1) day suspension. Therefore, you will be suspended from
duty and pay beginning 29 August 1985 . . . ."
Thereafter, Bartlett was suspended from employment without pay on
August 19, 1985.
With regard to the use of the GS designation, the record reveals that
no official of the Union ever used this designation either before or
after the Bartlett incident. Bartlett testified that sometime around
early May 1985 a group of stewards were informally gathered together
with William Harper, the then President of Local 1592, awaiting the
start of a Union meeting. /2/ Either Bartlett or another steward,
William Carr, suggested to Harper that stewards use a GS grade level,
along with their official Union title, equivalent to the management
representative with whom they regularly dealt on labor-management
matters. According to Bartlett the difference between the various
levels of stewards would then be clearly distinguished. Nothing was
specifically said during the discussion with regard to whether the Union
would use such designations when communicating with management although
Bartlett testified he thought it was just generally understood. /3/
Bartlett further testified that the use of GS designations was
acceptable to President Harper and during this informal meeting he
suggested one of the stewards prepare a rough draft for his signature
and have it typed by the Union's secretary so Harper could send the
names and designations to Riley Skeen, Respondent's Chief Employment
Relations. According to Bartlett he thereafter wrote a "rough draft"
indicating the equivalent GS designations of 10 or 12 individuals and
left it on the Union secretary's desk for typing. The letter was
addressed to Skeen requesting that he recognize the named individuals by
Union title and GS pay grade but the letter was not thereafter signed by
Harper or sent to Skeen. /4/
Shoell succeeded Harper as President of Local 1592 around May 23,
1985. Shoell testified that sometime in April 1985 Harper told him of a
letter requesting something to the effect that Bartlett and steward Carr
be given equivalent status of GS-15 in order to receive privileges in
the Officer's Club. Shoell was not sure of the letter's originator and,
with regard to the addressee, testified, "I'm sure it must have been
going to the Officer's Club." Shoell gave no indication that he had
knowledge of any other such letter. /5/ In any event, apart from his
August 8 letter on behalf of Bartlett, supra, Shoell never notified
Respondent of the use of GS designations by Union stewards. Bartlett
testified the first time he talked to Shoell about the use of GS
designations for stewards was shortly after Bartlett received his Notice
of Proposed Suspension of June 20, 1985 and it was at this time that
Shoell ". . . reaffirmed that we could designate the way the union saw
fit."
With regard to his use of the GS-15 designation in his May 9 letter,
supra, Bartlett testified that in his prior dealings with AFSCO, AFSCO
personnel always indicated the originator's official grade.
Accordingly, after his informal discussion with Local 1592 President
Harper, supra, Bartlett used the GS-15 designation on May 9 as a
"courtesy" and he considered it "proper etiquette" in corresponding with
"an organization that always does that."
Discussion and Conclusions
Counsel for the General Counsel contends Bartlett's use of GS-15
designation was within the scope of protected activity since Bartlett
clearly revealed himself as "Division Steward" to which he attached the
GS-15 designation; the designation was approved by the Union prior to
Bartlett's use of it, thus the designation was a matter internal Union
activity associated with its right to select and designate the title of
its representatives; and in any event, Bartlett's use of the GS-15
designation did not amount to "flagrant misconduct" which would place
Bartlett's conduct outside the ambit of protected activity. Respondent
contends no internal Union approval to use the GS-15 designation ever
occurred and Bartlett's use of GS-15 was misleading or otherwise
deceiving thereby constituting a deliberate misrepresentation outside
the scope of protected activity.
There is no dispute that Union steward Bartlett was indeed engaged in
activity protected by the Statute when he wrote the May 9, 1985 letter
of appeal to AFSCO on behalf of employee Gilbert Duran. However, the
Authority has long held that during the course of otherwise protected
activity by a union representative flagrant misconduct will not receive
the protection of the Statute. Department of the Navy, Puget Sound
Naval Shipyard, Bremerton, Washington, 2 FLRA 54 (1979) and Department
of Defense, Defense Mapping Agency Aerospace Center, St. Louis,
Missouri, 17 FLRA 71 (1985) and cases cited therein. Thus the question
herein is whether Bartlett's designating himself as a GS-15 was, under
the circumstances, conduct protected by the Statute.
I find Bartlett's use of the GS-15 designation herein was a
significant misrepresentation of his pay grade. He was in fact a WG-10.
General Foreman Storey reasonably concluded that this misrepresentation
might have led AFSCO, or indeed any other person with whom Bartlett
communicated, to divulge information or receive benefits he was not
entitled to receive. The fact that the GS-15 designation was also
accompanied by his title of Division Steward, AFGE Local 1592 is not
controlling since the misuse of his grade, or title for that matter, /6/
would nevertheless inherently tend to create confusion in the mind of
the reader who has no idea of the writer's position in the employer's
organization. GS-15 is frequently a managerial grade in the Federal
Service and it is highly improbable in the circumstances of this case
that anyone without special knowledge would conclude that the GS usage
was purely a Union designation. Such misconduct could result in a
variety of mischief and misinterpretation, the possibility of which was
readily foreseeable.
Bartlett claims his use of GS-15 was only to represent that he was
the equivalent grade of a GS-15. However, Respondent was not so
notified beforehand and Bartlett's correspondence to AFSCO did not
designate him as "Equivalent Grade GS-15" nor does the document on its
face lend itself to that interpretation. Further, I find his claim that
he used the GS-15 designation as a "courtesy" or "proper etiquette" to
be disingenuous at best.
I further conclude that the evidence does not establish that
Bartlett's designating himself GS-15 was approved or authorized by the
Union prior to Bartlett's using it in his May 9, 1985 letter to AFSCO.
Even crediting Bartlett's uncorroborated testimony that Union President
Harper was favorably disposed to the idea of stewards using GS
designations, /7/ Harper did not specifically indicate the designation
could be used in communications with the employer or in the manner used
by Bartlett. Clearly the record does not establish that Harper gave a
final approval of the rough draft letter or that he even saw the draft.
Moreover, no document was ever sent to management by the Union
concerning the matter. Thus, the record only indicates that Harper was
agreeable with a concept which was never adopted in final form by the
Union as an organization.
I do not find Bartlett's use of the GS-15 designation was
intrinsically related to his Union stewardship or his pursuit of his
representational activities. Nor do I find that his misrepresentation
of his grade is the type of behavior which one might expect to occur
during performance of representational duties. Thus, balancing the
competing interests herein I find no Statutory protection for a
deliberate misrepresentation of falsification of a matter which has
little to do with the activity of representing employees. In my view
such behavior does not rise to the level of protected activity simply
because it was the action of a union steward or simply happened to occur
while Bartlett was engaged in protected activity. This holding, in my
view, in no way impedes a union representative from engaging in advocacy
or "robust debate" in pursuit of representational activities nor does it
dissuade employees from engaging in the Statutory right "to act for a
labor organization in the capacity of a representative . . ." as
protected by section 7102(1) of the Statute.
One last point. If the Union had approved the use of GS designations
for its representatives, and so notified Respondent, the disciplining of
Bartlett might have been in a different posture. What management would
have done as a response in that case would, of course, be purely
speculative. But the confusion inherently present by the conduct
described herein might well have been avoided. Local 1592 President
Shoell's August 8, 1985 response to the Notice of Proposed Suspension
does not alter this conclusion. That response only attempts to explain,
after the fact, that Bartlett did not attempt to deliberately
misrepresent his grade. The wrong had already been committed. Indeed,
Shoell's letter does not indicate that the Union had adopted a general
policy of so designating all its representative by such equivalent
grades but seems to be concerned only with Bartlett's use of the grade.
Accordingly, in all the circumstances herein I conclude Union steward
Bartlett's use of the GS-15 designation was not conduct protected by the
Statute. I therefore recommend the Authority issue the following:
ORDER
IT IS HEREBY ORDERED that the Complaint in Case No. 7-CA-50596 be,
and hereby is, dismissed.
/s/ SALVATORE J. ARRIGO
Administrative Law Judge
Dated: June 27, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Counsel for the General Counsel's unopposed motion to correct the
transcript as to various minor matters is hereby granted.
(2) Harper is retired and did not testify in these proceedings.
Although according to Bartlett three other named Union stewards and "a
few others" were present at this meeting, only Bartlett testified with
regard to this discussion.
(3) On cross-examination Bartlett acknowledged that in the statement
he gave during the investigation of the unfair labor practice charge
herein he indicated that one of the reasons he wanted the GS designation
was so he could obtain membership in the Officers Club.
(4) The Union secretary was not called as a witness and the proported
letter was not produced at the hearing.
(5) During direct examination Bartlett testified he knew Harper
discussed his agreement regarding the designation of stewards by
equivalent GS grades with Shoell and it was Bartlett's understanding
that there was an agreement between Harper and Shoell on the subject.
Later, on cross-examination Bartlett testified he concluded Harper
shared this information with Shoell because "The two of them were real
close" and, aside from this, he was not aware that Harper had shared any
information on this matter with Shoell.
(6) Bartlett might just as easily have called himself Division Chief,
Foreman, Commander or Colonel.
(7) Bartlett's credibility is highly questionable. Apart from
Bartlett's demeanor with which I was not impressed, Union President
Shoell failed to lend support Bartlett's version of Union President
Harper's purported approval at the informal meeting, supra.
Notwithstanding, no other witness to the approval at the informal
meeting or the existence of the "rough draft" letter was called to
testify nor was the "rough draft" letter produced.