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 (Complainant) (Authority decision, January 25, 1980)

Final FLRA decision under Executive Order 11491. The Authority adopted the judge's dismissal of the unfair labor practice complaint. The decision says this transferred case was decided solely under the Executive Order, without determining how the later statute would apply.

Plain-English summary

A union challenged the Air Force's noncompetitive reassignment of an employee at Hill Air Force Base, alleging that it violated an earlier arbitration award and Executive Order 11491. The judge found that the Air Force had assessed whether the new position would increase the employee's future promotion prospects, as the award required. The union also presented no evidence that the reassignment was tied to union membership or activity. The Authority adopted the dismissal, rejected the union's exceptions based on new evidence, and denied a rehearing.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491, § 19(a)(1) and (2).
• Outcome: Judge's dismissal affirmed; rehearing denied.
• Key point: The reassignment followed the arbitrator's required promotion potential review, and no union discrimination was shown.

Full text (FLRA public release)

[ v02 p515 ]

02:0515(70)CA

The decision of the Authority follows:

2 FLRA No. 70

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
Complainant

Assistant Secretary
Case No. 61-3921(CA)

DECISION AND ORDER

ON JULY 2, 1979, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE
ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS
WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER, AND REQUESTED A REHEARING IN THIS MATTER. ON NOVEMBER 19, 1979,
THE COMPLAINANT FILED A "SUPPLEMENT TO REQUEST FOR EXCEPTION."

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741,JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).

THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
INCLUDING THE COMPLAINANT'S EXCEPTIONS, /1/ THE AUTHORITY HEREBY ADOPTS
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.
/2/

ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 61-3921(CA) BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., JANUARY 25, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

CLARE A. JONES, ESQUIRE

ATTORNEY ADVISOR

OFFICE OF THE STAFF JUDGE ADVOCATE

HILL AIR FORCE BASE, UTAH 84056

FOR THE RESPONDENT

MRS. ELMA DENNING

DIVISION STEWARD, AFGE LOCAL 1592

BUILDING 362

HILL AIR FORCE BASE, UTAH 84056

FOR THE COMPLAINANT

BEFORE: BURTON S. STERNBURG

ADMINISTRATIVE LAW JUDGE

RECOMMENDED DECISION AND ORDER

STATEMENT OF THE CASE

PURSUANT TO A COMPLAINT FILED ON MARCH 16, 1978, UNDER EXECUTIVE
ORDER 11491, AS AMENDED, BY LOCAL 1592, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, (HEREINAFTER CALLED THE UNION OR
COMPLAINANT), AGAINST DEPARTMENT OF THE AIR FORCE, OGDEN AIR LOGISTICS
CENTER, HILL AIR FORCE BASE, UTAH, (HEREINAFTER CALLED THE RESPONDENT OR
ACTIVITY), A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE REGIONAL
DIRECTOR FOR THE KANSAS CITY REGION ON APRIL 17, 1979.

THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTIONS 19(A)(1)
AND (2) OF THE ORDER BY REASSIGNING EMPLOYEE JEANNIE HATHENBRUCK ON A
NON-COMPETITIVE BASIS IN VIOLATION OF AN OUTSTANDING ARBITRATION AWARD.

A HEARING WAS HELD IN THE CAPTIONED MATTER ON MAY 8, 1979, IN OGDEN,
UTAH. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING
ON THE ISSUES INVOLVED HEREIN.

UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATION.

FINDINGS OF FACT /3/

ON OCTOBER 21, 1977, ARBITRATOR REED C. RICHARDSON ISSUED A DECISION
PREDICATED ON A GRIEVANCE FILED BY THE UNION ON SEPTEMBER 3, 1976. THE
UNION ALLEGED IN THE SEPTEMBER 3, 1976 GRIEVANCE THAT EMPLOYEE BETTY
SMITH WAS DETAILED ON A NON-COMPETITIVE BASIS IN VIOLATION OF THE MERIT
PROMOTION PLAN (OOAMAR-40-6) IN EFFECT AT HILL AIR FORCE BASE AND THE
PARTIES COLLECTIVE BARGAINING AGREEMENT.

ARBITRATOR RICHARDSON FOUND IN HIS DECISION THAT PARAGRAPHS 2 AND 12
OF THE MERIT PROMOTION PLAN HAD BEEN VIOLATED WITH RESPECT TO EMPLOYEE
BETTY SMITH'S DETAIL AND ORDERED THE FOLLOWING REMEDY.

REMEDY

MANAGEMENT IS ORDERED TO CEASE AND DESIST FROM ALLOWING DETAILS BY
ASSIGNMENT TO BE

EFFECTED WITHOUT COMPETITION IN SITUATIONS THAT ARE THE PURVIEW OF
THE REQUIREMENTS OF THE

LAST PART OF PARAGRAPH 12 OF OOAMA REGULATION 40-6. WHEN THIS PART
OF PARAGRAPH 12 APPLIES,

MANAGEMENT, FIRST, MUST CONDUCT AN EVALUATION TO DETERMINE WHETHER
'LONG RANGE CAREER

OPPORTUNITIES OF THE EMPLOYEE ASSIGNED . . . WOULD BE INCREASED BY
THE MOVE' AND, IF THE

EVALUATION IS POSITIVE, SECOND, MUST ASSIGN THE DETAIL THROUGH THE
COMPETITIVE PROCESS. /4/

FOLLOWING THE ISSUANCE OF THE AFORESAID ARBITRATOR'S DECISION, MR.
RALPH PETERSEN, CHIEF OF THE STAFFING SECTION IN THE CIVILIAN PERSONNEL
OFFICE, SUMMONED HIS SUPERVISORY PERSONNEL TO A MEETING FOR PURPOSES OF
DISCUSSING THE IMPACT OF THE ARBITRATOR'S DECISION. DURING THE MEETING
WHICH WAS HELD IN NOVEMBER OF 1977, MR. PETERSEN INFORMED HIS
SUBORDINATES THAT ALL FUTURE DETAILS OR REASSIGNMENTS WERE TO BE
REVIEWED FOR PURPOSES OF DETERMINING "WHETHER OR NOT THE NEW POSITION
WOULD OFFER MORE OR INCREASED LONG-RANGE PROMOTION POSSIBILITIES THAN
THE OLD POSITION". IN THE EVENT THAT THE REVIEW DISCLOSED FUTURE
PROMOTION POSSIBILITIES, THEN THE DETAIL OR REASSIGNMENT WAS TO BE MADE
ON A COMPETITIVE BASIS. THE FOLLOWING MONTH, ON DECEMBER 28, 1977, MR.
PETERSEN ISSUED A MEMORANDUM TO ALL HIS STAFFING SPECIALISTS WHEREIN HE
REITERATED IN WRITING THE INSTRUCTIONS HE HAD ORALLY SET FORTH IN THE
NOVEMBER MEETING CONCERNING DETAILS AND REASSIGNMENTS.

SOMETIME PRIOR TO JANUARY 30, 1978, MRS. DELORES JUDSON, A STAFFING
SPECIALIST, RECEIVED A FORM 52 VACANCY ANNOUNCEMENT FROM A SUPERVISOR.
THE FORM 52 WAS ACCOMPANIED BY A REQUEST FROM THE SUPERVISOR THAT MRS.
JEANNIE HATHENBRUCK BE REASSIGNED INTO THE VACANCY "IF SHE WAS QUALIFIED
AND IF (MRS. JUDSON) COULD CLEAR THE PRIORITY". THEREUPON MRS. JUDSON,
PURSUANT TO OUTSTANDING INSTRUCTIONS, REVIEWED MRS. HATHENBRUCK'S FILE
FOR PURPOSES OF DETERMINING WHETHER OR NOT THE REASSIGNMENT WOULD
INCREASE MRS. HATHENBRUCK'S LONG RANGE PROMOTION POSSIBILITIES. UPON
CONCLUDING THAT THE REASSIGNMENT OF MRS. HATHENBRUCK FROM A WAGE GRADE 4
TO A GS-5 SUPPLY CLERK WOULD NOT IMPROVE MRS. HATHENBRUCK'S PROMOTION
POSSIBILITIES, MRS. JUDSON MADE THE REASSIGNMENT ON A NON-COMPETITIVE
BASIS. /5/ IN REACHING HER CONCLUSION THAT THE REASSIGNMENT WOULD NOT
IMPROVE MRS. HATHENBRUCK'S PROMOTION POSSIBILITIES, MRS. JUDSON RELIED
PRIMARILY UPON THE FACT THAT GS-5 SUPPLY CLERKS HAD NOT BEEN PROMOTED
"FOR UPWARDS OF TWENTY YEARS".

ACCORDING TO THE UNCONTESTED TESTIMONY OF MRS. JUDSON, SINCE JANUARY
30, 1978, WHEN MRS. HATHENBRUCK WAS REASSIGNED ALL BUT ONE OF THE WAGE
GRADE-4 EMPLOYEES HAVE BEEN PROMOTED. THERE HAVE BEEN NO PROMOTIONS
GIVEN TO THE GS-5 EMPLOYEES.

WITH RESPECT TO THE 19(A)(2) ALLEGATION OF THE COMPLAINT,
COMPLAINANT'S COUNSEL, IN RESPONSE TO A QUESTION FROM THE UNDERSIGNED
ADMINISTRATIVE LAW JUDGE, MADE IT CLEAR THAT SHE HAD NO EVIDENCE
INDICATING THAT REASSIGNMENT OF MRS. HATHENBRUCK WAS IN ANYWAY RELATED
TO MRS. HATHENBRUCK'S MEMBERSHIP IN, OR ACTIVITIES ON BEHALF OF, A LABOR
ORGANIZATION.

DISCUSSION AND CONCLUSIONS

SECTION 203.15 OF THE REGULATIONS CURRENTLY IN EFFECT IMPOSES UPON
THE COMPLAINANT THE BURDEN OF PROVING THE ALLEGATIONS OF THE COMPLAINT
BY A PREPONDERANCE OF THE EVIDENCE. COMPLAINANT HAS FAILED TO CARRY
THIS BURDEN. THUS, CONTRARY TO THE ALLEGATIONS OF THE COMPLAINT, THE
RECORD SUPPORTS THE CONCLUSION THAT RESPONDENT DID IN FACT FOLLOW THE
INSTRUCTIONS SET FORTH IN THE "REMEDY" SECTION OF THE ARBITRATOR'S
DECISION. THE UNCONTESTED AND CREDITED TESTIMONY OF MRS. JUDSON
ESTABLISHES THAT RESPONDENT EVALUATED THE PROMOTIONAL POSSIBILITIES OF A
GS-5 VIS A VIS A WG-4 AND SANCTIONED THE REASSIGNMENT OF MRS.
HATHENBRUCK ON A NON-COMPETITIVE BASIS ONLY AFTER CONCLUDING THAT SUCH
REASSIGNMENT WOULD NOT INCREASE MRS. HATHENBRUCK'S FUTURE PROMOTIONAL
POSSIBILITIES. ALTHOUGH NOT PERTINENT TO THE RESOLUTION OF THE INSTANT
CONTROVERSY, IT IS INTERESTING TO NOTE THAT RESPONDENT'S EVALUATION OF
THE PROMOTIONAL POSSIBILITIES WAS CORRECT SINCE THE ONLY PROMOTIONS
WHICH DID SUBSEQUENTLY OCCUR INVOLVED THE WG-4 GRADE OR POSITION FROM
WHICH MRS. HATHENBRUCK HAD TRANSFERRED.

IN VIEW OF THE FOREGOING AND IN THE ABSENCE OF ANY EVIDENCE TO
SUPPORT THE 19(A)(2) ALLEGATION OF THE COMPLAINT, I SHALL RECOMMEND THAT
THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.

RECOMMENDED ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.

BURTON S. STERNBURG

ADMINISTRATIVE LAW JUDGE

DATED: JULY 2, 1979

WASHINGTON, D.C.

/1/ WE FIND NO MERIT TO THE COMPLAINANT'S EXCEPTIONS. WE NOTE THAT
THE EXCEPTIONS ARE BASED ON NEWLY PRESENTED EVIDENCE NOT SHOWN TO HAVE
BEEN UNAVAILABLE AT THE TIME OF THE HEARING. MOREOVER, THE EVIDENCE
WOULD NOT WARRANT A DIFFERENT OUTCOME. ON THE SAME BASIS, THE MOTION
FOR REHEARING IS DENIED.

FURTHER, WITH RESPECT TO THE "SUPPLEMENT TO REQUEST FOR EXCEPTION,"
THE COMPLAINANT ALLEGES THAT AFTER THE ADMINISTRATIVE LAW JUDGE ISSUED
HIS DECISION, THE EMPLOYEE WHOSE REASSIGNMENT IS THE SUBJECT OF THIS
CASE WAS PROMOTED. THIS SUBMISSION DOES NOT AFFECT THE FINDING THAT THE
RESPONDENT ASSESSED THE PROMOTION POTENTIAL OF THE EMPLOYEE WITH RESPECT
TO THE JOB AS REQUIRED BY THE ARBITRATOR'S AWARD.

/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.

/3/ COMPLAINANT, OTHER THAN SUBMITTING COPIES OF THE ARBITRATOR'S
AWARD, THE MERIT PROMOTION PLAN IN EFFECT AT HILL AIR FORCE BASE,
EXCERPTS FROM THE FEDERAL PERSONNEL MANUAL AND A "CONSULTATION FORM"
INDICATING THAT EMPLOYEE JEANNIE HATHENBRUCK WAS REASSIGNED ON A
NON-COMPETITIVE BASIS, PRESENTED NO OTHER EVIDENCE IN SUPPORT OF ITS
CASE.

/4/ PARAGRAPH 12 OF OOAMA REGULATION 40-6 PROVIDES THAT "COMPETITIVE
PROMOTION PROCEDURES MUST BE APPLIED WHEN INITIALLY FILLING A POSITION
WITH KNOWN PROMOTION POTENTIAL SINCE THE EMPLOYEE SELECTED WOULD THEN BE
EXEMPT FROM COMPETING FOR SUBSEQUENT CAREER PROMOTIONS".

/5/ INASMUCH AS A WAGE GRADE 4 MAKES MORE MONEY THAN A GS-5, THE
REASSIGNMENT WAS NOT A PROMOTION FOR MRS. HATHENBRUCK. THE RECORD
FURTHER REVEALS THAT IN APRIL OF 1977, MRS. HATHENBRUCK HAD TRANSFERRED
FROM A GS-4 TO A WG-1/4 ON A COMPETITIVE BASIS.