National Ass'n of Government Employees, Local R7-23 v. Federal Labor Relations Authority

• Decision Date: 03 September 1985
• Docket Number: No. 84-1242,84-1242
• Citation: 770 F.2d 1223
• Parties: 120 L.R.R.M. (BNA) 2299, 248 U.S.App.D.C. 310 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1223

770 F.2d 1223

120 L.R.R.M. (BNA) 2299, 248 U.S.App.D.C. 310

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 84-1242.

United States Court of Appeals, District of Columbia Circuit.

Argued May 7, 1985.

Decided Sept. 3, 1985.

Petition for Review of an Order of the Federal Labor Relations authority.

Gordon P. Ramsey, Boston, Mass., for petitioner.

Robert J. Englehart, Atty., Federal Labor Relations Authority, Washington, D.C., with whom Ruth E. Peters, Sol., Steven H. Svartz, Deputy Sol., and William E. Persina, Associate Sol., Federal Labor Relations Authority, Washington, D.C., were on the brief, for respondent.

Before EDWARDS, SCALIA and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

This petition arises out of unfair labor practice proceedings under the Federal Service Labor-Management Relations statute, 5 U.S.C. Secs. 7101-35 (1982). The National Association of Government Employees, Local R7-23 ("NAGE") seeks review of a Federal Labor Relations Authority decision involving the Department of the Air Force, Scott Air Force Base, Illinois. The Authority concluded that the agency did not interfere with statutorily guaranteed union rights in evaluating an employee's performance and in requesting the employee to devote more time to job-related work. The issue presented for review is whether this conclusion was arbitrary or capricious.

I

Carl Denton has been a Computer Systems Analyst at Scott Air Force Base since 1973. In 1978, he was elected president of NAGE Local R7-23, the union representing all of the 3,000 civilian employees at the base. Since then, he has been an "active" and "visible" union advocate. Under the collective bargaining agreement in effect between the union and the base, Denton was entitled to a "reasonable" amount of official time to conduct union representational activities. These activities took up a substantial portion of his work week--between 47 percent and 92 percent during the period from May 1978 through January 1980. The remainder of his 40-hour work week was spent at his computer-analyst duties.

In May 1979, Denton was appointed to a new position--Quality Assurance Manager for the Consolidated Aerial Port Subsystems project ("CAPS"). In this position, he was expected to coordinate periodic audits of the CAPS program. In September 1979, in his capacity as union president, Denton began negotiations with the base to conclude a collective bargaining agreement. Negotiations were regularly scheduled for Mondays, Wednesdays, and Thursdays from 9 a.m. to noon and from 1 p.m. to 3 p.m. These continued through January 1980. During that last month, an important CAPS audit was scheduled, in which Denton, as audit manager, was expected to play an important role. On January 16, Captain Dennis Hohman, Denton's first-line supervisor, requested Denton to delay or reschedule contract negotiations. Denton refused and said the discussion was making him very "nervous" and "sick." He thereafter took sick leave for the next two days and filed a claim of traumatic injury. (The claim was later dismissed because no causal relationship was found between any injury and the job.) When Denton returned to work on Monday, January 21, Hohman advised Denton that he was disappointed with Denton's participation in the audit. The audit, which did not go well, was completed on Friday, January 25.

On Monday, January 28, after completion of the contract negotiations for the day, Denton returned to his worksite. He then submitted to Hohman his projected work schedule for the remainder of the week, showing that 100 percent of his time would be spent on union business. As Hohman was reviewing the schedule, Lieutenant Colonel Anthony Serksnas, Denton's second-line supervisor, came by and looked at the schedule as well. Both Hohman and Serksnas then told Denton that they thought it was "unfair" for him to schedule all of his time for union activities. Denton replied that he thought it was fair, and that it was "kind of close to quitting time to be ganging up" on him. It was 4:30 p.m., and Denton then got up, put on his coat, and said it was time to leave. Serksnas replied, "Carl, I don't think I'm getting across to you. I think I've lost my sense of humor." Denton responded, "I only said 'good night,' sir" and kept walking towards the main corridor. Serksnas followed Denton and said, "Carl, if you don't start doing more work for me, I'm going to take disciplinary measures against you."

The next day, January 29, Denton filled out his daily report of time to be spent on representational duties and gave it to Hohman. Hohman told Denton that Serksnas wanted to meet with him. Denton was granted his request to have a union representative with him at the meeting. The meeting lasted four or five minutes, and Serksnas did all the talking. He told Denton that he was not satisfied with the amount of time Denton had been spending on the audits. He asked Denton to postpone contract negotiations with the understanding that he would let Denton make up the time in the future when things quieted down. He said that he would take disciplinary action if Denton did not "start pulling his share."

Coincidentally, the end of January was also the time when Denton was scheduled to receive a performance evaluation from his supervisors. The evaluation rates employees on how much supervision they need to perform in twenty-one separate categories. Denton's 1980 appraisal by Serksnas and Hohman was lower than their appraisal for the previous year. Hohman said that it was difficult for him to be objective about the rating because of "outside happenings and outside things." But he also testified that his appraisal was based only on Denton's actual job performance and not on consideration of any of Denton's union activities.

The union filed three unfair labor practice charges with the appropriate Authority regional office, and the Authority's General Counsel issued a consolidated complaint on the charges. The complaint alleged that the base violated Sec. 7116(a)(1), (2), and (4) by giving Denton a low performance appraisal because of his union activities. The complaint further alleged that the agency violated Sec. 7116(a)(1) on January 28, 1980, when Hohman told Denton that he was spending too much time away from his CAPS work because of union responsibilities; and on January 28 and 29, 1980, when Serksnas threatened disciplinary action unless Denton started doing more CAPS work. A hearing was held before an administrative law judge, at which Denton, Hohman, and Serksnas testified.

On October 14, 1981, the ALJ issued his decision. With respect to the performance evaluation, he found that the rating was unrelated to Denton's union activities. With respect to the requests by Hohman and Serksnas that Denton devote more time to his job-related task, the ALJ concluded that "Mr. Denton's supervisors were threatening disciplinary action only based upon his work performance during the time he was actually on the job." The ALJ therefore recommended dismissal of the complaints....