FEDERAL LABOR RELATIONSAUTHORITY
Office of Administrative Law Judges
WASHINGTON, D.C.
DEPARTMENT OF JUSTICEFEDERAL BUREAU OF PRISONSFEDERAL CORRECTIONAL INSTITUTIONOAKDALE, LOUISIANARespondent and DEPARTMENT OF JUSTICEFEDERAL BUREAU OF PRISONSFEDERAL DETENTION CENTEROAKDALE, LOUISIANARespondentandAMERICAN FEDERATION OF GOVERNMENTEMPLOYEES, LOCAL 3957Charging Party | Case Nos. DA-CA-00303DA-CA-00397 Case No. DA-CA-00281 |
Steven R. Simon, EsquireTyrone ClementsFor the Respondents
Tiffany A. Foreman, EsquireJohn M. Bates, EsquireFor the General Counsel Before: RICHARD A. PEARSONAdministrative Law Judge
DECISION
Statement of the Case
On April 27, 2000, the General Counsel of the Federal LaborRelations Authority, by the Regional Director of the Dallas Region,issued an unfair labor practice complaint, alleging that theDepartment of Justice, Federal Bureau of Prisons, Federal DetentionCenter, Oakdale, Louisiana (the FDC), violated section 7116(a)(1)and (5) of the Federal Service Labor-Management Relations Statute(the Statute), by implementing a change in reporting requirementswithout providing the American Federation of Government Employees(AFGE) Local 3957 (Charging Party/Local 3957) with adequate noticeand an opportunity to negotiate. On May 31, 2000, the RegionalDirector issued a second unfair labor practice complaint, allegingthat the Department of Justice, Federal Bureau of Prisons, FederalCorrectional Institution, Oakdale, Louisiana (the FCI) violatedsection 7116(a)(1) and (5) by repudiating a grievance settlementagreement as well as its collective bargaining agreement withregard to leave year scheduling. On June 30, 2000, the RegionalDirector issued a third unfair labor practice complaint, allegingthat the FCI violated section 7116(a)(1) and (4) of the Statute bydiscriminating against employee Fredrick Gilley because of hisprotected union activity. The FCI and FDC (jointly referred to asthe Respondents) filed answers to the complaints, denying that theyhad committed any unfair labor practices.
A hearing on these cases was held in Alexandria, Louisiana, onDecember 14 and 15, 2000, and January 24, 2001, at which time allparties were represented and afforded an opportunity to be heard,to introduce evidence, and to examine and cross-examine witnesses.At the outset of the hearing, I consolidated the hearing on thethree complaints, over the objection of the GeneralCounsel.(1) Because the parties areidentical in these three cases and many of the same witnesses wouldbe testifying, a single hearing constituted the most efficientmethod of conducting the hearing. Subsequently, the General Counseland the Respondents filed post-hearing briefs, which I have fullyconsidered.
Based on the entire record,(2)including my observation of the witnesses and their demeanor, Imake the following findings of fact, conclusions of law, andrecommendations.
FINDINGS OF FACT
The Federal Bureau of Prisons (the BOP) maintains twocorrectional facilities in Oakdale, Louisiana, the FDC and the FCI.AFGE's Council of Prison Locals is the exclusive representative ofa nationwide unit of BOP employees, and the parties have executed aMaster Agreement for that unit. Locals 3957 and 1007 each serve asagents of the Council of Prison Locals to represent employees atthe Oakdale facilities, with Local 3957 primarily servicingemployees at the FCI and Local 1007 primarily servicing employeesat the FDC.
Case No. DA-CA-00281: The Chit Board and the KeyLine
The front entrance building serves as the main entry area forall FDC employees. This building is situated at the perimeter ofthe secured area of the institution; upon entry into this building,an employee can be allowed passage into the secure facility by aguard controlling an electronic door. Once an employee is allowedto enter the secure facility, he can then walk in one of severaldirections to different areas of the FDC. In order to reach theirwork areas, most employees walk through a series of electronicallycontrolled doors to the control center, where they are issued theirequipment, such as keys, radios and alarms. The area at the controlcenter where employees wait to be issued their equipment is calledthe key line.(3) Once they receivetheir keys, employees walk to their assigned work areas in theFDC.
In December of 1997,(4) the FDCestablished a new procedure for keeping track of which employeesare in the institution at any given time. A "chit board" was placedin the lobby of the front entrance building, and each employee isassigned a numbered, plastic rectangular "chit" that sits on a hookon the board and identifies him. One side of the chit is white, andthe other side is blue; as the employee enters the FDC, he turnsover his chit so that the white side is showing, and when he leavesthe FDC he turns it again so that the blue side shows.(5) The implementation of this procedure wasnegotiated with Local 3957 in 1997 and has continued essentiallyunchanged ever since.
The BOP personnel manual, applicable to employees nationwide,sets forth a policy for the starting and stopping times ofemployees' shifts. Respondent's Exhibit 4, an excerpt from thatmanual, states in pertinent part:
Each institution shall have approved work schedules withshift starting and stopping times . . . to begin and end at thepoint employees pick-up and drop-off equipment (keys, radios, bodyalarms, work detail pouches, etc.) at the control center.Therefore, employees who pick-up equipment at the control center,shall have their shifts scheduled to include reasonable time totravel from the control center to their assigned duty post andreturn (at the end of the shift). If an employee arrives at the keyline in a reasonable time to get equipment by the beginning of theshift, this employee is not to be considered late. [emphasisadded.]
Although the above-quoted document clearly requires employees toreport to the "control center" (or the "key line," which issynonymous in this context) by the starting time of their shift, toavoid being considered late, employees testifying for the GeneralCounsel stated that they were unaware of this rule. Rather, theytestified that it was their understanding that employees weresimply required to turn over their chit in the front entrancebuilding by the start of their shift. While most of these employeescouldn't explain the basis for their understanding of the rule, onewitness, Alen Arnold, testified that in early 1998, then-WardenRobert Miles had told employees at a staff meeting that they wouldnot be considered late as long as they turned over their chitbefore the starting time of their shift. Warden Miles, however,testified that he never made such a statement to employees. Both heand current-Warden Jordan, as well as other FDC officials,testified that at all relevant times, employees have been requiredto be in the key line by the start of their shift, and that theyhave not told employees anything to the contrary.
In the context of these differing understandings, Mr. Arnoldreported for work on December 14, 1999. His shift started at 7:30a.m. and ended at 4:00 p.m. According to his testimony, he arrivedat the front entry building at approximately 7:25 a.m. andimmediately turned over his chit to indicate he was present. Then,rather than walking to the key line, he "stepped into Personnel forjust a second and then proceeded on to the key line." (Tr. at 110).He arrived at the key line at 7:40 a.m., which prompted hissupervisor, Jimmy Patton, to issue him a letter of counseling forreporting late (Respondent's Exhibit 3).(6) The letter of counseling quoted to Mr.Arnold the above-cited rule from the personnel manual, requiringemployees to arrive at the key line at the starting time for theirshift.
Another employee, Kerry Fusalier, confirmed that he and Arnoldturned their chits at about the same time, 7:25 or 7:26 a.m.Fusalier then headed directly toward the key line, while Arnoldheaded in a different direction. Fusalier testified that it tookhim 6 or 7 minutes to get to the key line (which in his estimation,resulted in his arriving at the key line a minute or two after7:30), and it took another several minutes until he was given hiskeys and radio. A few days later, Mr. Patton approached him andsaid that because he had reported to work late on the14th, he would need to use 15 minutes of leave for thattime.(7)
Case No. DA-CA-00303: Leave-YearScheduling
In March of 1998, the BOP and the AFGE Council of Prison Localsentered into a nationwide Master Agreement. Article 19 of thatagreement covers Annual Leave and provides, among other things,that "[a]ll departments will use total-leave year scheduling." Thatis, employees are given the opportunity prior to January 1 torequest and schedule their vacations for the entire year; conflictsare resolved by seniority. Article 19, Section 1 furtherprovides:
Total leave-year scheduling procedures may be negotiated locallyprovided that:
1. a leave committee of at least one (1) supervisor and at leastone (1) Union representative, the number to be negotiated locally,will be responsible for implementing the seniority requirements ofthis article regarding total leave-year scheduling; and
2. after considering the views and input of the Union, theEmployer will determine the maximum number of employees that may beon scheduled annual leave during each one (1) week [seven (7)consecutive days] period . . . .
According to witnesses, the above-cited paragraph 2 was new inthe 1998 Master Agreement, in that it allowed the Union to provide"input" to local management concerning the maximum number ofemployees who could be on annual leave at the same time, wherepreviously the Union had no say whatever. At the FCI, the leavecommittee consisted of the union president and the facilitymanager.
Historically, the FCI and Local 3957 maintained one senioritylist for facility department employees (also called foremen), whilethe FDC and Local 1007 maintained another seniority list. Pursuantto the annual leave provisions of the Master Agreement, managementof the two institutions would determine the maximum number ofemployees who could schedule annual leave in a given week andannounce this to the staff in the late fall of the year; employeeswould then select weeks for vacation. If more than the maximumnumber of employees selected the same week, the junior employeeswould be notified and would make alternate selections. In mostyears, the maximum number was three facility department employeesper week, except during two holiday weeks, when five employeescould schedule vacation. In practice, this meant that three FCIemployees and three FDC employees in the facility department couldtake vacation per week, for a total of six.
In the fall of 1998, after FCI management began the process ofsoliciting employee requests for annual leave for the 1999 year,Local 3957 filed a grievance protesting the Respondent's failure toproperly notify and consult with the Union on this issue. (SeeRespondent's Exhibit 2). The records of that grievance alsoindicate that the parties had gone to arbitration on a relatedissue in 1998, concerning the scheduling of leave for the 1998year.) That grievance was ultimately resolved in a settlementagreement dated October 22, 1999, in which both parties denied anywrongdoing and FCI management agreed to "consider the views andinput of the Union before determining the maximum number ofemployees that may be on scheduled annual leave during each oneweek period." (The full text of the settlement agreement is in theGeneral Counsel's Exhibit 2(c)).
Five days after executing the grievance settlement for the 1999leave year, FCI management sent a memo to Dale Deshotel, presidentof Local 3957, advising him of the proposed procedures forscheduling annual leave for 2000. In an e-mail cover letter,General Foreman Kim Hebert asked Deshotel to review the memo andcontact Hebert for discussion. Deshotel responded on November 4,1999, by sending a memo to Human Resource Manager Dwight Greene"requesting negotiation on the annual leave scheduling" for thefacility department (sometimes referred to as the CMS department).Four days later, Deshotel circulated an agenda of items he wishedto discuss at the regular labor-management relations meeting. Oneof these items concerned leave scheduling: "There are newcircumstances involving CMS annual Leave scheduling which I wouldlike to address or negotiate through. I believe this is due toconsolidation." The issue was discussed briefly at the LMR meeting(which occurred on approximately November 15, 1999), but there wasno actual negotiation at that time. HR Manager Greene testifiedthat he told Deshotel to discuss any issues regarding the facilitydepartment with Rick Batten, the department manager.
Starting in 1998 and continuing into 1999, the FCI and FDC beganconsolidating different staff and management functions at the twoinstitutions. The human resource departments merged in 1998, and inapproximately May of 1999 the two facility departments merged. RickBatten, who had previously managed the facility department at theFCI, became facility manager at both the FCI and FDC. Although theinstitutions themselves remained separate, and Local 3957 continuedto represent primarily employees of the FCI, while Local 1007represented primarily employees of the FDC, some staff functionswere combined and there was some overlap of the unions andemployees.
With the consolidation of the facility departments in mid-1999,Mr. Deshotel of Local 3957 saw a variety of issues relating to thescheduling of leave that required negotiation and clarification. Hefelt that the increased size of the consolidated department (from15-17 in each institution to over 30) gave management greaterflexibility to accommodate more employees on leave at a time, andthat procedures could be negotiated to help both employees andmanagement. Nonetheless, the two unions remained separate, andLocal 1007 had already approved the procedures for scheduling leavefor the 2000 calendar year, while Local 3957 was requestingnegotiations.
On November 16, 1999, after the LMR meeting failed to produceany negotiations over consolidated leave scheduling procedures, Mr.Deshotel sent another memo, this time to Mr. Batten (Respondent'sExhibit 11 at 5). It began: "Due to the consolidation of the twofacility departments I would like to propose that your memo datedOctober 27, 1999 be negotiated to include the following changes . .. ." The memo then proposed to increase the maximum number ofemployees on scheduled leave from three to five, and that duringfour weeks per year (rather than two) the maximum would be sixemployees (rather than five).(8) Theproposals did not cover any issues except for the maximum number ofemployees on leave per week. Unlike Mr. Deshotel's memos ofNovember 4 and 8, which were sent on behalf of Local 3957 only, theNovember 16 memo was signed by Donald Turner, President of Local1007, as well as by Mr. Deshotel. On November 19, HR Manager Greeneresponded to Mr. Deshotel's "request to negotiate a consolidatedannual leave procedure for Facilities." Mr. Greene stated that suchprocedures "can be negotiated if both parties agree[,]" but thatmanagement would not agree to negotiate; he insisted that "the wellestablished past practice" be continued on this issue (GeneralCounsel's Exhibit 6(c)).
On November 29, 1999, Facility Manager Batten tried to obtainMr. Deshotel's signature on the leave scheduling memo that was tobe sent to employees, but Mr. Deshotel refused. Batten said he hadreviewed Deshotel's proposals seeking to modify themanagement-proposed procedures, but that he disagreed with theunion's reasoning and that he had decided to continue the three-manrule for most weeks. On December 1, FCI management announced tofacility department employees that leave selection would beginimmediately.
Case No. DA-CA-00397: Gilley's PIP
Fredrick Gilley, Jr., has been a plumbing foreman(9) at the FCI for approximately fifteenyears, and since 1990 he has served first as the vice president andthen as the chief steward for Local 3957. It is clear from therecord that in his union capacities, Mr. Gilley has engaged inconsiderable protected activity over the years, including thefiling of grievances and unfair labor practice (ULP) charges on hisown behalf and on behalf of other employees. He filed five ULPcharges in 1999 and 2000 alone. In early June of 1999, Kim Hebertwas made General Foreman at the FCI and became Gilley's immediatesupervisor.
Within a week or two after becoming General Foreman, Mr. Hebertand Mr. Gilley got into a dispute. After assigning Gilley toinvestigate the cause of a water leak, Hebert told him to prepare awritten plan of how he proposed to fix the problem. Gilley objectedto being required to document his work, felt that Hebert wastreating him differently than other employees, and suspected thatHebert was setting him up for disciplinary action. On June 10,1999, Gilley sent Hebert a memo saying that Hebert "must be blind"and indicating his intent to file a grievance and a ULP chargeagainst Hebert (Respondent's Exhibit 5). According to Mr. Gilley,Hebert then issued him a counseling letter for threatening to filea ULP charge; as a result, Gilley did indeed file a ULP charge onJune 28, and the FLRA's Dallas Regional Director issued a complainton September 30, 1999, alleging that Hebert's action violatedsection 7116(a)(1) and (2) of the Statute. On July 21, 1999, Hebertput a "minimally satisfactory" entry into Gilley's performance logregarding the same water leak problem that had prompted Gilley'smemo of June 10; this action caused Gilley to file a second ULPcharge on August 9, and the Regional Director issued a complaintregarding this incident on March 29, 2000. Both complaints wereultimately settled, with the Respondent posting a notice concerningthe first in December 1999 and the second in June 2000.(10)
On January 11, 2000, Mr. Hebert called Mr. Gilley and told himto investigate and repair a problem with hot water in the showerroom of the Evangeline II unit of the prison. The next day, a workrequest was prepared, reflecting that Gilley had been assigned thistask. Mr. Gilley spoke to some Evangeline inmates who worked forhim, and they confirmed that the showers there were running out ofhot water very quickly. Gilley didn't go to the shower roomhimself, but instead he went to the mechanical room, where the hotwater heaters serving Evangeline II were located. In the mechanicalroom, he noted that the circulating pump, which was supposed tokeep a constant supply of hot water for the Evangeline II showerroom, was cold, and he suspected that this was the cause of theproblem. He advised Hebert that the circulating pump needed to bereplaced, and Hebert approved the purchase of a new pump. Becausethe supplier also had to order the part, it took several days for anew circulating pump to arrive. Hebert asked Gilley about thestatus of the problem on January 18, and when Gilley said the partwas not due to arrive until the 20th, Hebert directedhim to find another supplier. Gilley then found a dealer who coulddeliver a pump on the 19th, and Hebert approved a second purchaseorder.
Around noon on January 19th, Hebert contacted Gilley andasked whether the circulating pump had arrived. The pump hadn't yetarrived, but was due any minute, and Mr. Gilley was in themechanical room investigating the hot water problem further.According to Gilley, the circulating pump there was still cold, buthe had begun to suspect that the problem was not with thecirculating pump but with the thermostat regulating the hot watertemperature. He recalled a similar problem that had occurredseveral years ago, in which a contractor had been hired by the FCIand had fixed the problem by raising the temperature on the waterheaters themselves. When Hebert called him around noon, Gilleyadvised him of his changed view of the problem. This alarmedHebert, who immediately went down to the mechanical room andlistened to Gilley explain the situation further. As Hebertinvestigated, however, it appeared to him that the hot waterheaters in the mechanical room were working properly. He checkedthe temperature gauges on the two heaters and they both read over100 degrees, which indicated to him that they were heatingproperly, and he then examined the mixing valves, which also readabove 100 degrees. Hebert therefore doubted the accuracy of eitherof Gilley's diagnoses, because neither the circulating pump nor theheaters seemed to Hebert to be malfunctioning. So Hebert left themechanical room and went up to the Evangeline II shower room toinvestigate further.
When Mr. Hebert arrived at the shower room, he first turned onthe water in a mop sink; the water was hot immediately and stayedhot as he ran it for a minute or so. He went to the individualshowers, turned on the water at each, and found that while some ofthe showers received a continuous flow of hot water, two of thethem did not receive hot water. Hebert then concluded that thesource of the problem was in the showers themselves. It was thenagreed that the balancing cartridges in the heads of the twodefective showers would be replaced, and this work was completedthe next day.
Apparently during the time that Mr. Hebert was in the Evangelineshower room on the 19th, however, Mr. Gilley continued working onhis own diagnosis of the problem in the mechanical room. Accordingto his testimony, Gilley adjusted the temperatures on thethermostats on the two water heaters, a gradual process thatultimately succeeded in raising the water temperature to about 118degrees. In Gilley's view, it was his adjustment of the waterheater temperature that fixed the problem with the showers; inHebert's view, there was no problem with the heater temperature,and it was the replacement of the two balancing cartridges thatfixed the problem. Concerning the water heaters, the testimony ofGilley and Hebert differed on one main fact: Hebert said that thethermostats in the mechanical room read over 100 degrees, whileGilley said that this was impossible; he believed they couldn'thave read higher than 80 degrees when Hebert was there.
Based on what Hebert perceived to be Mr. Gilley's unsatisfactoryhandling of this problem, Hebert discussed the situation withGilley on January 28, 2000, and put an unsatisfactory work entryinto Gilley's performance log for Element #2 of Gilley'sperformance standards on February 18. According to BOP policy, ifan employee receives an unsatisfactory performance citation, hemust be placed on a performance improvement plan (PIP), and Mr.Gilley was placed on such a plan on March 13. According to Hebert,Gilley's performance has improved since that time, and in Gilley'sannual performance appraisal for the year ending March 31, 2000,Hebert rated Gilley's performance on Element #2 as "FullySatisfactory."
DISCUSSION AND CONCLUSIONS
Case No. DA-CA-00281
In the complaint, the General Counsel alleges that theRespondent FDC, through supervisor Patton, unilaterally changedworking conditions "by requiring bargaining unit employees to'chit' in before their regular duty hours, prior to clocking in fortheir regular tour of duty." In its prehearing disclosure, theGeneral Counsel stated the theory of its case slightly differently,alleging that the Respondent "unilaterally changed the portalentrance
. . . ." The Respondent objects that the General Counsel haschanged the alleged unfair labor practice, and the Respondent alsodenies that it changed employees' working conditions in any way.Rather, the Respondent insists that at all relevant times, the keyline at the control center has been the "portal" for employees tostart their shift; in other words, they have always been requiredto arrive at the key line, not the chit board, by the starting timeof their shift.
I do not agree with the Respondent's first argument, namely thatthe General Counsel changed the theory of its case so significantlythat it denied the Respondent due process. Instead, I find that anydiscrepancy between the General Counsel's theory of its case in thecomplaint and at the hearing was insignificant, because theunderlying nature of the alleged unfair labor practice remainedessentially the same. Although the complaint focused on the time ofemployees "chitting in" for work, and the General Counsel'sevidence focused on the location of the "portal," the gist of theallegation is the same: a unilateral change in the place foremployees to report for work. That is, if the key line is the"portal" demarcating the start of an employee's work day, theemployees and the General Counsel allege that in December 1999 theRespondent either changed the portal or began requiring employeesto perform work (by chitting in) before the start of their workday. These are really two ways of arguing the same point, and Idon't believe that the Respondent was misled or prejudiced in anyway by the General Counsel's case. See, AmericanFederation of Government Employees, Local 2501, Memphis,Tennessee, 51 FLRA 1657, 1660-64 (1996).
Moving to the merits of the complaint, there is no dispute as tothe applicable law. The Authority has held since its earliest daysthat "the duty to negotiate in good faith under the Statuterequires that a party meet its obligation to negotiate prior tomaking changes in established conditions of employment[.]"Department of the Air Force, Scott Air Force Base,Illinois, 5 FLRA 9 (1981). Although the Statute does notexplicitly include such unilateral actions among the unfair laborpractices listed in section 7116(a), the Authority has made itclear that an agency's unilateral change in a condition ofemployment violates section 7116(a)(1) and (5).
Additionally, it has long been held that terms and conditions ofemployment may be established not only by a collective bargainingagreement, but also by the parties' practice or other form ofinformal or tacit agreement. Norfolk Naval Shipyard, 25FLRA 277, 286 (1987). In order to find that a condition ofemployment has become established by a past practice, the GeneralCounsel must show that the practice was "consistently exercised foran extended period of time, with the agency's knowledge and expressor implied consent." U.S. Department of the Treasury, InternalRevenue Service, Louisville District, Louisville, Kentucky, 42FLRA 137, 142 (1991).
The Respondent does not dispute that the alleged change relatedto a condition of employment. Although the decision to use a chitboard to account for employees in a prison may be reserved tomanagement as an internal security practice, the determination ofwhere an employee must report at the start of work is not directlyrelated to that internal security decision. Rather, it is apersonnel policy affecting working conditions of unit employees,and any change in such a policy (as well as the effects of thechange) should be negotiated. See, Planners, Estimators andProgressmen Association, Local No. 8 and Department of the Navy,Charleston Naval Shipyard, Charleston, South Carolina, 13 FLRA455 (1983).
However, the General Counsel has failed to prove that the FDCchanged its policy or practice relating to the chit board and thekey line in December 1999. Although the General Counsel's witnessestestified that they understood the Respondent's policy as requiringthem to turn their chit by 7:30 a.m., I do not find their testimonypersuasive. First, these witnesses were simply testifying as totheir understanding of the Respondent'spolicy, and such testimony is by its nature hearsay: while it maybe admissible evidence, it is inherently subjective and prone tomisunderstandings, the existence of which cannot be evaluated orcross-examined. If these employees' subjective testimony were theonly evidence concerning the Respondent's policy, it might carrymore weight, but in this case the best evidence of the Respondent'spolicy is the written policy itself. Program Statement 3000.02 ofthe Respondent's nationwide personnel manual (Respondent's Exhibit4) is quite clear in this regard: an employee's shift begins at theplace where he picks up his equipment, and it specifies that placeas the control center. The Respondent's witnesses were just asemphatic in testifying that the "portal" at the FDC was the controlcenter or key line as the General Counsel's witnesses were intestifying that it was the chit board, but the Respondent'switnesses were corroborated by the written policy itself, and thatis a crucial difference.
One of the General Counsel's witnesses, Alen Arnold, alsotestified that in 1998, then-Warden Miles told employees theysimply needed to report to the key line by the start of theirshifts, but his testimony was directly refuted by Warden Mileshimself. The other General Counsel witnesses could not even specifyhow they came to their understanding of the FDC policy on thisissue. In light of the conflicting testimony, I give strongerprobative value to the testimony that is supported by theRespondent's written policy, which also appears to me to representthe most reasonable interpretation of the facts.(11)
The Respondent's policy of requiring employees to report to thecontrol center by the start of their shifts pre-dated theimplementation of the chit board at the FDC. The introduction ofthe chit board, with the requirement that employees turn theirchits when they first enter the FDC and before they go to thecontrol center, may plausibly have given employees the mistakenimpression that the chit board constituted the new "portal" forreporting purposes. But in the face of the Respondent'slongstanding official policy and the testimony of FDC officialsthat the control center has always been the "portal" and that theydidn't tell employees it was the chit board, I cannot accept thatthe subjective impression of some employees demonstrates theestablishment of a past practice to the contrary.
The General Counsel argues that by requiring employees to "chitin" at the front entrance, the Respondent was requiring employeesto perform "work," which is consistent with a finding that the chitboard was the official "portal" marking the start of a shift. Toconsider the control center as the "portal" would, in the GeneralCounsel's view, conflict with "other Federal law which is not thesubject of this proceeding." (G.C. Post-Hearing Brief at 11). Thisis apparently a reference to the Portal-to-Portal Act, 29 U.S.C. §§251 et seq. It would indeed be improper to apply thatstatute here, but the General Counsel's oblique reference appearsto seek to do just that. As evidenced by court cases such asSteiner v. Mitchell, 350 U.S. 247 (1956), a complex bodyof law is devoted to identifying what types of "preliminary" and"postliminary" activities are such "an integral part of andindispensable to" an employee's "principal activities" as toentitle the employee to compensation. Id. at 255. I wouldnot presume to resolve whether the simple requirement of turningover a plastic chit prior to reaching the official "portal"constitutes a violation of that law, but the Respondent's locationof the chit board separate from and prior to the "portal" does notstrike me as unreasonable on its face.
There was considerable and varying testimony at the hearingconcerning the time it takes employees to travel from the chitboard to the control center. If the Respondent had indeed changedthe "portal" from the chit board to the control center, as alleged,then it might be necessary to determine whether that change wasde minimis. In light of my finding that there was nochange in conditions of employment, however, that question isimmaterial.
I therefore conclude that the Respondent did not violate theStatute as alleged in Case No. DA-CA-00281.
Case No. DA-CA-00303
This complaint alleges that the Respondent has refused to complywith Article 19, Section l of the Master Agreement and with theterms of the October 1999 settlement agreement by refusing tonegotiate over the scheduling of leave for calendar year 2000. Morespecifically, the General Counsel argues that the Respondent'sactions constitute a repudiation of essential provisions of thesetwo agreements: management refused to negotiate locally overleave-year scheduling procedures, and it refused to consider Local3957's views prior to setting the maximum number of foremen onscheduled leave per week. The Respondent asserts that it compliedwith the requirements of the Master Agreement and the settlementagreement: on the issue of how many employees could schedule leaveper week, management asked for, received and considered the union'sinput, precisely as required by the agreements; on other issuesrelating to leave scheduling, the Respondent says it "may," but isnot required, to negotiate locally. On this latter point, theRespondent argues that the Master Agreement uses the word "will"when something is mandatory and "may" when it is optional; thus thephrase in Article 19, Section l that "[t]otal leave-year schedulingprocedures may be negotiated locally" must be interpreted to alloweither party to decline such negotiation. The Respondent finallynotes that only Local 3957 requested to negotiate a consolidatedleave procedure, putting FCI management into a potential conflictwith Local 1007, which had already approved the leave proceduresfor calendar year 2000.
Both parties agree, and the law is clear, that not every violationof a collective bargaining agreement is an unfair labor practice.But when "the nature and scope of the breach amount to arepudiation of an obligation imposed by the agreement's terms," aviolation of the Statute will be found. Department of Defense,Warner Robins Air Logistics Center, Robins Air Force Base,Georgia, 40 FLRA 1211, 1219 (1991). In Department of theAir Force, 375th Mission Support Squadron, Scott AirForce Base, Illinois, 51 FLRA 858, 862 (1996)(ScottAFB), the Authority further explained its analysis:
[T]wo elements are examined in analyzing an allegation ofrepudiation: (1) the nature and scope of the alleged breach of anagreement (i.e., was the breach clear andpatent?); and (2) the nature of the agreement provision allegedlybreached (i.e., did the provision go to theheart of the parties' agreement?).
In evaluating these two elements, it may be necessary toascertain the meaning of the contract provision allegedly breached,but in some cases that may not be needed. Id. at 862.
While the General Counsel has alleged that the Respondentrepudiated both the Master Agreement and the settlement agreement,the latter allegation is totally unsupported by the evidence.Although Article 19, Section l of the Master Agreement addressesthe larger subject of local negotiations concerning leave-yearscheduling, the settlement agreement is very narrowly focused on"the maximum number of employees that may be on scheduled annualleave during each one week period." Moreover, the settlementagreement obligates the Respondent simply to "consider the viewsand input of the Union before determining" that number. The meaningof the settlement agreement is quite clear that the Respondent'sobligation is not to "bargain" in the fullest sense, but merely to"consider" the views of the Union.(12) The evidence submitted at the hearingleaves no doubt that Facility Manager Batten fulfilled his limitedduty on this score. The Union was sent a copy of the proposedprocedures on October 27, 1999, in advance of employees receivingnotice, and Mr. Deshotel's input was requested.(13) Mr. Deshotel brought up the issue atthe November LMR meeting, and when he was instructed by HR ManagerGreene to discuss the topic with Facility Manager Batten, Deshotelsent detailed proposals to Mr. Batten. On November 29, Battenadvised Deshotel that he had considered those proposals but did notfind them persuasive. Mr. Batten's testimony at the hearing alsoreflects that he understood Mr. Deshotel's reasons for wanting ahigher number of employees to be allowed to schedule leave perweek, but that he disagreed with those reasons. Under thesettlement agreement, that was all the Respondent was required todo.
The General Counsel argues that "any attempt to offer theUnion's input . . . would be futile", based on the Respondent'sOctober 27 memo announcing the new year's leave procedures. (G.C.Post-Hearing Brief at 11). But the evidence contradicts thisargument. Even if Mr. Deshotel didn't receive the e-mail coverletter soliciting his response (an assertion I cannot accept, inlight of the e-mail receipt documented by Respondent's Exhibit 11at 2 and 4, and in light of Mr. Deshotel's own statement in hisNovember 4 memo that he had "received a Memo from Kim Hebert on10-27-99"), the October 27 memo itself is addressed "THRU: DaleDeshotel, Union Representative". This indicates that Local 3957 wasbeing notified of the proposed procedures prior to theirdistribution to employees. Local 3957 did submit its views andinput to Mr. Batten, and the record reflects that Mr. Battenconsidered and rejected them. Thus, the General Counsel has failedto prove that the Respondent committed a "clear and patent" breachof the settlement agreement; on the contrary, the General Counselhas proved no violation whatever of the settlement agreement.
On the question of whether the Respondent repudiated the MasterAgreement, the matter is subject to greater dispute, but theultimate resolution is the same. The complaint alleges that FCImanagement refused to comply with the Master Agreement'srequirements to negotiate locally over total leave-year schedulingprocedures and to consider Local 3957's views and input beforedetermining the maximum number of employees on scheduled leave. Ihave already explained that the Respondent complied with itsobligation under the settlement agreement to consider the union'sviews and input on the latter issue, and that rationale appliesequally to the Master Agreement. The Master Agreement imposes thesame minimal obligation on the Respondent before it determines themaximum number of employees who can schedule leave per week, andFCI management fulfilled that obligation. The only remainingquestion, therefore, is whether FCI's refusal to negotiate localleave scheduling procedures constituted a clear and patent breach,going to the heart of the Master Agreement.
The first problem that arises in answering this question is thatthe precise nature of Local 3957's bargaining request is unclear.The union's initial request on November 4 stated that it was"requesting negotiation on the annual leave scheduling . . . ." Onthe LMR agenda dated November 8, Mr. Deshotel stated, "There arenew circumstances involving CMS annual Leave scheduling which Iwould like to address or negotiate through. I believe this is dueto consolidation." These statements suggest that Local 3957 wasmaking a broad request to negotiate a variety of issues relating tothe scheduling of leave. Consistent with this interpretation, Mr.Deshotel explained in his testimony at the hearing (see, e.g. Tr.at 47-50, 484-86) that he wanted "to look at all of the angles"related to the department's consolidation "and see how it wouldaffect everyone involved." According to Mr. Deshotel, he wanted todeal with consolidation-related questions such as how to afford theFCI and FDC adequate coverage when foremen with the same specialtyat the two institutions request leave for the same week. But whenMr. Deshotel submitted actual proposals to management on November16, they only concerned the maximum number of employees who couldschedule leave per week (Respondent's Exhibit 11 at 5). It was tothese proposals that Facility Department Manager Batten respondedwhen he discussed the proposed leave procedures with Deshotel onNovember 29 and expressed management's intent to implement them(see Respondent's Exhibit 11 at 6). In contrast, HR ManagerGreene's memo of November 19 doesn't refer to the union's proposedincrease in the number of employees on leave per week, but respondsinstead to Deshotel's "request to negotiate a consolidated annualleave procedure for Facilities."
It appears from the record that the Respondent understood Local3957 to be making two basic requests: to increase the total numberof employees who could schedule leave each week, and to combineLocal 3957 and Local 1007 seniority lists and leave schedulingprocedures. Moreover, the Respondent's understanding of Local3957's bargaining requests was a reasonable one, in view of thediffering language used by the union at different times. Mr. Battenresponded to the first request on its merits, and Mr. Greeneresponded to the second request by stating that negotiations wereoptional, not mandatory, and that FCI declined to enter into suchnegotiations. For the following reasons, I cannot conclude that theRespondent's action was a clear and patent breach of the MasterAgreement.
The Master Agreement is nationwide in scope and addressessubjects on both a national and local scale. It sets out aframework in which nationwide bargaining will occur, and it furtherpermits local bargaining under certain circumstances. In thiscontext, Article 19 establishes a national policy of "[t]otalleave-year scheduling" and of using seniority to resolve schedulingconflicts between employees; Section l further provides that totalleave-year scheduling procedures "may be negotiated locally". Itwas this language that formed the basis of Mr. Greene's November 19memo asserting that "the procedures can be negotiated if bothparties agree." A review of the Master Agreement certainly reflectsa pattern of language, in which "will" is used to denote amandatory obligation and "may" is used to denote a conditionalobligation or an optional choice. For instance, Section f ofArticle 19 provides that "the Employer may grant administrativeleave . . . during emergency situations". This clearly allowsmanagement to exercise its discretion (subject to applicable law)in choosing whether to grant administrative leave. Similarly, inArticle 2, Section f, a procedure for joint labor managementrelations meetings is established at both the nationwide and thelocal level, and it further states that "The actual procedures forlocal labor management meetings will be negotiated locally." Theuse of "will" constitutes an obligation on both unions andmanagement to negotiate such procedures. Given this contractualcontext, the meaning of Article 19, Section l is far from clear.Where the word "may" is placed after "the union" or "the employer,"it would logically indicate that a party has the choice of actingor not acting; but where, as here, the word "may" could relate toeither or both parties, it can be argued that either party is freeto exercise its choice unilaterally, or that mutual consent isrequired. Both arguments can be supported from the language of theMaster Agreement as a whole, but neither argument is "clear andpatent." Especially in contrast to the above-cited language ofArticle 2, Section f (requiring local negotiation of LMR proceduresby the use of "will"), the Respondent has a strong argument thatthe use of "may" in regard to local leave-scheduling negotiationsallows it to decline such negotiations. The General Counsel did notoffer evidence of the parties' intent or bargaining history thatwould negate such an interpretation.
In light of these factors, I do not find it necessary todetermine the precise meaning of Article 19, Section l of theMaster Agreement. See, Scott AFB, 51 FLRA at862-63. Rather, it is sufficient that FCI management acted inaccordance with a reasonable interpretation of that provision, forme to conclude that it did not clearly and patently breach thecontract.
It is also significant that Local 3957's request to negotiate aconsolidated seniority list and leave procedure improperly exceededthe scope of Local 3957's representation and placed FCI managementin a potential conflict with Local 1007. While Local 1007apparently joined with Local 3957 in requesting that a highernumber of employees be permitted to schedule leave, Local 1007 didnot join in the request for a combined seniority list orschedule.(14) The parties had alongstanding practice of separate seniority lists and leavescheduling, and the consolidation requested by Local 3957 mighthave adversely affected employees represented by Local 1007. Absenta joint request by the two unions for a consolidated procedure, Ifind that the Respondent had legitimate reasons for refusing Local3957's request.(15)
Accordingly, I conclude that the Respondent did not violate theStatute as alleged in Case No. DA-CA-00303.
Case No. DA-CA-00397
This complaint alleges that the FCI violated section 7116(a)(1)and (4) by placing Fred Gilley on a Performance Improvement Plan(PIP) because of his protected activity.
The Authority explained the analytical framework for evaluatingalleged violations of section 7116(a)(2) of the Statute inLetterkenny Army Depot, 35 FLRA 113, 118-19(1990)(Letterkenny).(16)The General Counsel bears the burden in all such cases ofestablishing by a preponderance of the evidence that an unfairlabor practice has been committed. The General Counsel mustdemonstrate (1) that the employee against whom allegedlydiscriminatory action was taken was engaged in protected activity;and (2) that such activity was a motivating factor in the agency'streatment of the employee in connection with hiring, tenure,promotion or other conditions of employment. If the General Counseldoes so, it has established a prima facie case of unlawfuldiscrimination. The Respondent can, in turn, rebut the primafacie case by establishing, by a preponderance of theevidence, the affirmative defense that (1) there was a legitimatejustification for its actions; and (2) the same action would havebeen taken in the absence of protected activity. Citing a SupremeCourt decision approving the NLRB practice on whichLetterkenny is based, the Authority explained that theGeneral Counsel must first persuade it that "antiunion sentimentcontributed to the employer's decision[]"; if that is done, theemployer then has the burden of persuasion as to its affirmativedefense. Federal Emergency Management Agency, 52 FLRA 486,490-91 n. 2 (1996), citing Office of Workers'Compensation Programs, Dep't of Labor v. Greenwich Collieries,512 U.S. 267, 278 (1994).
The parties agree that Mr. Gilley has engaged in considerableprotected activity and that the Respondent in general, and Mr.Hebert in particular, were aware of that activity. In Hebert'sview, Gilley files many more grievances than Hebert had experiencedin other BOP facilities (Tr. at 321-22). Mr. Hebert and theRespondent deny, however, that Gilley's protected activity was afactor in the decision to issue an unsatisfactory performance logentry in January 2000; they further insist that Mr. Gilley'smisdiagnosis and delayed treatment of the Evangeline plumbingproblem was a valid basis for the entry, and that it would havewarranted such action regardless of Gilley's protectedactivity.
In support of the complaint, the General Counsel points to Mr.Gilley's filing of five ULP charges and nine grievances in 1999 and2000, in addition to his prior years as a union official. Mostsignificant, in the General Counsel's view, are the two ULP chargesGilley filed against Hebert prior to the instant charge: these twocharges both originated in a dispute in June 1999, shortly afterHebert took over as General Foreman and as Gilley's supervisor, inwhich Hebert instructed Gilley to document his plan for treating awater leak. Gilley protested the requested documentation andthreatened to file a grievance and/or ULP; Hebert took offense atGilley's threat, issued a counseling letter, and documentedGilley's minimally satisfactory handling of the water leak. As aresult, ULP complaints were issued by the General Counsel in 1999,and although both complaints were ultimately settled, those caseswere still pending and were prominent in Hebert's mind in January2000.
The General Counsel also takes issue with Mr. Hebert's evaluationof how Mr. Gilley handled the Evangeline plumbing problem and withthe Respondent's lack of tangible guidelines for putting employeeson a PIP. The General Counsel argues that Gilley acted diligentlyand exercised good professional judgment in treating the hot waterproblem - at worst, it is argued, Gilley may possibly havemisdiagnosed the problem initially on January 12, but theRespondent never demonstrated conclusively that Gilley's seconddiagnosis (i.e., that the heater temperatures needed adjusting) waswrong. Moreover, the General Counsel argues that Hebert's bias isevidenced by his precipitous action in putting Gilley, alongstanding employee with a history of good appraisals, on a PIPfor this single incident. Mr. Hebert had not given any otheremployees an unsatisfactory log entry in eighteen months as GeneralForeman; thus he appears to be judging Mr. Gilley's work in adifferent light than that of other employees.
I find, however, that the General Counsel's case is fatallyflawed in two respects. First, I conclude that it has failed toestablish, by a preponderance of the evidence, that Gilley'sprotected activity was a motivating factor in Hebert's putting himon a PIP; thus, it has failed to make a prima facie caseagainst the Respondent. Second, the Respondent has established thatit had a legitimate justification for its action against Gilley andthat it would have taken this action regardless of Gilley'sprotected activity. In many respects, the evidence for these twoconclusions is the same or overlapping, because even if the GeneralCounsel has produced enough evidence to survive a motion todismiss, it has not offered persuasive evidence that theRespondent's explanation for its action against Gilley waspretextual. See, Letterkenny, 35 FLRA at 119.
As noted above, I fully accept the threshold premise that Gilley'sprotected activity was well known both to the Respondent and to hissupervisor, Hebert. Gilley made it quite clear to Hebert,practically from the first day Hebert became General Foreman, thatGilley would vigorously assert his rights under the contract andunder the law. I also accept the fact that the work incident whichresulted in Gilley being placed on a PIP occurred at a time whenGilley's two prior ULP charges against Hebert were still pendingand fresh in everyone's minds. In January and February of 2000, theRespondent had just settled the first charge and had posted anotice to employees concerning the settlement; the second chargewas being investigated and Gilley was giving evidence to theGeneral Counsel. While this evidence maysupport an inference that Hebert was acting in retaliation inJanuary 2000 for Gilley's earlier ULP charges, or that Hebert wasat least partially motivated by Gilley's protected activity, I amnot persuaded to draw either of those inferences.
First, the General Counsel's finding of merit in the two 1999ULP charges against Hebert is not proof that Hebert actedimproperly. Those two cases were settled short of hearing, and mostof the evidence regarding those two charges is not before me inthis record. While the evidence of record here does suggest thepotential for Hebert to harbor animosity to Gilley's protectedactivity, the evidence does not cross the threshold from potentialto actual. On the contrary, Gilley's letter to Hebert of June 10,1999 (Respondent's Exhibit 5), corroborated by Gilley's testimony,suggests to me that Gilley has a hair-trigger temper and may beoverly hasty in attributing ulterior motives to every supervisoryaction.(17) In light of the factthat Hebert had just become Gilley's supervisor at the time of theJune 10 letter, Hebert's request that Gilley provide a written planof what he proposed to do to fix a water leak appears entirelyreasonable to me, and Gilley's accusation that Hebert intended to"manipulate and misconstrue" Gilley's words against him appearstotally without factual support. While this event, and the ULPcharges that arose out of it, certainly got the Gilley-Hebertrelationship off to a bad start, and those emotions were stillfresh in January 2000, I do not infer unlawful animus on Hebert'spart, absent some more direct evidence of such in the incident ofJanuary 11-19 itself.
Notwithstanding the pending ULP charges against Hebert inJanuary 2000, the evidence regarding Hebert's evaluation ofGilley's attempts to repair the hot water problem in Evangeline IIdoes not reflect hostility or impropriety on Hebert's part. Inresponding to the situation in the Evangeline unit on January 19and thereafter, Hebert did not refer to Gilley's union or otherprotected activity; rather, his words and actions appear to bedirectly related to his view of the plumbing problem itself. TheGeneral Counsel portrays Mr. Gilley's work performance on thisproblem as "conscientious" and "tenacious" and argues that Gilley"did everything he could" to fix the problem as soon as possible.But this is inaccurate, even viewing Gilley's actions in the bestlight. The fact is, by Gilley's own testimony, that he had beenassigned to fix the hot water problem on January 11; on January 12he diagnosed the problem as a broken circulating pump; he didnothing further to resolve the problem until January 19, and hisefforts then occurred mainly at Hebert's prodding. Gilley admittedhe made his initial diagnosis without personally inspecting theplumbing in the shower room, based on conversations with Evangelineinmates and his own inspection of the equipment in the mechanicalroom. On the 19th, Gilley changed his diagnosis, basedon further investigation, and suggested a different solution thatrequired only adjusting some water heater settings. If this werethe true cause of the problem, as Gilley now insists, Gilley couldhave tried this solution at any time between the 12thand the 19th, without waiting for a new part to arrive.With an entire unit of federal prisoners lacking adequate hotwater, Gilley simply waited for a part to arrive that was notactually needed. Whatever troubleshooting Gilley did on the19th to reach his new diagnosis, he could have done inthe intervening week. Moreover, it was at Hebert's prodding on the18th that Gilley found a dealer who could deliver the"needed" circulating pump in one day rather than nine. If Gilleyhad demonstrated more sensitivity to the urgency of the plumbingproblem, he might have remembered the contractor's solution severaldays sooner.
Hebert was justly alarmed on January 19, when he asked Gilleywhether the circulating pump had arrived and was told that Gilleyno longer believed the circulating pump needed replacement.Hebert's own supervisor was then aware of the situation, and Hebertwent to the Evangeline unit personally to investigate. Thetestimony of Hebert and Gilley differed as to whether Gilley thensuggested calling in a contractor to fix the problem, but it is notnecessary to resolve that discrepancy here. According to Hebert,Gilley thought the problem was in the water heaters and not thecirculating pump, but when Hebert checked the gauges on the twoheaters, the temperatures both read over 100 degrees. Gilleytestified, however, that the water heater temperatures were nohigher than 80 degrees, but he also testified that the hot waterline feeding water to the Evangeline unit was 120 degrees (Tr. at248-55). Whatever explanation of the problem Gilley gave to Hebert,it is clear that it was not satisfactory to Hebert, and Hebertwalked from the mechanical room to the shower room to investigatefurther. I cannot accept Gilley's testimony concerning thetemperature of the water heater settings. If the water there wereindeed cold, there would have been no reason for Hebert to go tothe shower room, even assuming Hebert was "out to get" Gilley.Gilley's testimony is not internally consistent, and it requires anassumption not only that Hebert was willing to lie to punishGilley, but that Hebert would engage in illogical and unnecessarywork to do so. I therefore accept Hebert's testimony that the waterheaters were producing hot water, and that Gilley's revised planfor fixing the problem was inaccurate. This finding is corroboratedby the fact that when Hebert went to the shower room, he found thata mop sink and some of the showers did have hot water, and thatonly two showers were cold.
Therefore, a review of the record demonstrates to me thatHebert's actions, upon learning of the unresolved plumbing problemon January 19, were reasonable and do not suggest that he wasmotivated by antiunion animus. Although it is still unclear whetherthe true cause of the hot water problem was faulty water heatersettings (as Gilley insists) or faulty cartridges in the showerheads (as Hebert insists), it is clear that the problem was not inthe circulating pump, as Gilley originally believed.(18) Thus a problem persisted for nine days(and two circulating pumps were ordered) based on Gilley's initial,faulty diagnosis. The information which led Gilley to change hisdiagnosis on the 19th was available to him on the12th, and thus the delay is at least partly attributableto him. Moreover, if Gilley discovered on the 18th thata new pump could be obtained in one day rather than nine, theinitial delay in obtaining the part also is partly attributable tohim. And while neither the Respondent nor I can conclusivelydetermine whether Hebert or Gilley finally fixed the problem, theevidence appears more credible to me that the source of the hotwater problem was in the shower room, not in the mechanical room.Most significantly, whether Hebert was right or wrong about theactual cause of the problem, I find that Hebert acted reasonablyand without unlawful malice in evaluating the situation.Accordingly, the General Counsel has not established a primafacie violation, by a preponderance of the evidence.
For similar reasons, I accept the Respondent's justification forplacing Gilley on a PIP and find that this action would have beentaken even in the absence of any protected activity. I have alreadyexplained why I believe that Gilley's response to the hot waterproblem was less than acceptable for a journeyman plumber. TheGeneral Counsel argues that the "punishment" - placing Gilley on aPIP - was disproportionate to the "crime" - a single instance ofmisdiagnosing a plumbing problem. I initially questioned this aswell, but the Respondent's explanation is appropriate, in the factsof this case. BOP policy, evidenced by Program Statement 3000.02(Respondent's Exhibit 12), requires that supervisors documentemployees' good and bad work performance as they occur in theemployee's performance log; when "an instance of unacceptableperformance in one or more elements of the performance standards"occurs, section 22 of that policy requires the supervisor to issuethe employee a warning letter and place him on a PIP. There is nopolicy requiring progressively more severe action in advance ofplacing an employee on a PIP. While the Respondent had andexercised discretion in determining that Mr. Gilley's performancein this instance was "unacceptable" rather than "minimallysuccessful," there is no credible evidence that Hebert exercisedthat discretion inappropriately here. Although Hebert had notplaced any other employees on a PIP in his 18 months as GeneralForeman, he had previously given Gilley a "minimally satisfactory"entry for a different element of his standards, and he had given adifferent employee a "minimally satisfactory" entry as well. I donot find that the General Counsel has established any sort ofdisparate treatment by Hebert or the Respondent, and the Respondenthas carried the burden of persuasion on its affirmativedefense.
Accordingly, I conclude that the Respondent did not commit anunfair labor practice by placing Mr. Gilley on a PIP.
Based on the foregoing, I recommend that the Authority adopt thefollowing Order:
ORDER
IT IS ORDERED that the Complaints in Case Nos. DA-CA-00281,DA-CA-00303, and DA-CA-00397 be, and hereby are, dismissed.
Issued, Washington, DC, February 13, 2002.
_________________________
RICHARD A. PEARSON
Administrative Law Judge
1. I did not consolidate a fourthcomplaint, Case No. DA-CA-00621, which was issued against the FDCbased on a charge filed by a different union, AFGE Local 1007. Thehearing on that case was also scheduled for, and was completed on,December 14, 2000, immediately before the start of the instanthearing, and a separate decision on that complaint has already beenissued. OALJ Decision No. 01-54.
2. The Index of Exhibits in volume1 of the transcript incorrectly fails to reflect that Respondent'sExhibits 1 (the parties' collective bargaining agreement) and 2(seven pages of documents relating to a grievance and itssettlement) were admitted into evidence. The record is herebycorrected to reflect the admission of these exhibits.
3. Witnesses estimated the distancefrom the chit board to the control center is anywhere from 30 yardsto 250 feet, although I do not consider this to be a material fact.Witnesses also disagreed as to how long it takes to travel thisdistance: management witnesses generally minimized the timerequired and the frequency of security delays, while unionwitnesses stated that security guards frequently made them wait toproceed through each secured door and to receive their keys. Forreasons I will explain later, I do not consider this disputed factmaterial either.
4. Witnesses variously estimatedthat the chit board was implemented in 1997 or 1998; GeneralCounsel's Exhibit 5(b), a memorandum dated December 10, 1997,setting forth the rules for use of the chit board, appears toreflect the most likely date on which the chit board and its ruleswere implemented.
5. When Warden Martha Jordantestified, she showed a sample chit (Tr. at 433-34), which had ablue side and a white side, as described above. General Counsel'sExhibit 5(b), the December 1997 memorandum describing the new chitboard procedures, indicates that the chits were red and blue. Thisdiscrepancy was not explained at the hearing, but I will acceptWarden Jordan's testimony as reflecting the current practice.
6. The letter of counseling issuedto Mr. Arnold specifies that he reported for work late on December15, 1999; Mr. Arnold and his fellow employee, Mr. Fusalier, insistthat the incident in question occurred on December 14, not 15.While the discrepancy is not material to the alleged unfair laborpractice, I credit the testimony of the witnesses that the incidentoccurred on December 14.
7. Mr. Patton explained that heissued a counseling letter to Mr. Arnold because Arnold hadpreviously been verbally counseled for lateness; since this was Mr.Fusalier's first such offense, however, he was simply counseledverbally and required to use 15 minutes of leave.
8. Although no witness explicitlytestified as to the meaning of this proposal, it is clear thatthese numbers were for each institution and that the maximum totalnumber of employees on leave was meant to be twice these amounts.Otherwise, the union proposal would have represented a decrease inthe numbers allowed to be on vacation.
9. The term "supervisor" issometimes used to describe the positions of employees overseeingwork details of prison inmates, and sometimes the term "foreman" isused. Since it is agreed that these employees are not supervisorswithin the meaning of the Statute, I will use the term"foreman."
10. Although the second complaintwas settled with the posting of a notice, the record does notindicate that the "minimally satisfactory" performance entry wasrescinded.
11. In making this credibilitydetermination, I have not considered the evidence offered by theRespondent to impeach Mr. Arnold's truthfulness.
12. With regard to "the maximumnumber of employees that may be on scheduled annual leave", thelanguage of the Master Agreement is nearly identical to thesettlement agreement, and the Respondent's bargaining obligation isequally limited in both documents.
13. While Mr. Deshotel deniedreceiving Mr. Hebert's e-mail cover letter to the October 27 memo,he does not deny receiving the memo itself or having an opportunityto respond prior to implementation. Indeed, Mr. Deshotel didrespond and offer his input on at least two occasions prior toimplementation on December 1.
14. I say "apparently" becauseMr. Turner's signature at the bottom of Mr. Deshotel's November 16proposals (Respondent's Exhibit 11 at 5) was never explained byanyone from Local 1007. That exhibit proposed only to increase themaximum number of employees on leave per week. Nobody from Local1007 signed or indicated any agreement with Local 3957's memosrequesting consolidated leave scheduling, and I cannot accept Mr.Deshotel's assertion that the two unions were making a jointrequest for negotiations.
15. I make no finding as towhether the Respondents would have been obligated to negotiate ifthe two unions had jointly requested a consolidated procedure, asthat issue is not presented in this case.
16. The Authority applies thesame analysis in resolving section 7116(a)(4) allegations.Department of Veterans Affairs Medical Center, Brockton andWest Roxbury, Massachusetts, 43 FLRA 780, 781 (1991).
17. In saying this, I am notmaking any comment or conclusion as to the merits of the underlyingcharge in that case which was settled by the parties.
18. The circulating pump wasnever replaced, but the problem disappeared after January 20.