United States Army, Corpus Christi Army Depot, Corpus Christi, Texas (Respondent) and Jesse O. Hall (Complainant) (Authority decision, November 12, 1980)

Final FLRA decision. This unfair labor practice order resolves the case before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A Corpus Christi Army Depot employee was denied a transfer that would have allowed overtime, in part because of his union activity. The administrative law judge found discrimination and interference under the earlier executive order, while rejecting another allegation. The Authority adopted those results and clarified how an established official-time practice affected the case. It ordered the depot to cease the discrimination and offer the requested transfer on request.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b).
• Outcome: Judge’s violation and dismissal findings upheld; transfer remedy ordered.
• Key point: A recognized official-time practice could not be used to penalize a union officer seeking a transfer.

Full text (FLRA public release)

[ v04 p588 ]

04:0588(80)CA

The decision of the Authority follows:

4 FLRA No. 80

UNITED STATES ARMY,
CORPUS CHRISTI ARMY DEPOT,
CORPUS CHRISTI, TEXAS
Respondent

and

JESSE O. HALL
Complainant

Assistant Secretary
Case No. 63-8792(CA)

DECISION AND ORDER

THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS DECISION FINDING THAT THE RESPONDENT VIOLATED SECTION 19(A)(2) AND
(1) OF EXECUTIVE ORDER 11491, AS AMENDED, BECAUSE DISCRIMINATION BASED
ON UNION CONSIDERATIONS PLAYED A PART IN MANAGEMENT'S FAILURE TO SELECT
THE COMPLAINANT FOR A TRANSFER, DEPRIVING HIM OF THE OPPORTUNITY TO WORK
OVERTIME. THE ADMINISTRATIVE LAW JUDGE ALSO FOUND AN INDEPENDENT
VIOLATION OF SECTION 19(A)(1) OF THE ORDER BASED ON THE COMPLAINANT'S
BRANCH CHIEF'S SUGGESTION TO HIM THAT HAD HE BEEN ABLE TO REDUCE THE
AMOUNT OF OFFICIAL TIME HE SPENT ON UNION ACTIVITIES, THEN HE PROBABLY
COULD HAVE GOTTEN THE DESIRED TRANSFER. THE ADMINISTRATIVE LAW JUDGE
FOUND NO CREDIBLE EVIDENCE THAT THE RESPONDENT VIOLATED SECTION 19(A)(4)
OF THE ORDER. BOTH PARTIES FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW
JUDGE'S DECISION.

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
(5 CFR 2400.2). 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 NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S DECISION
AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE EXCEPTIONS
FILED BY THE PARTIES, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, WITH THE FOLLOWING
MODIFICATIONS. /1/

THE RECORD DISCLOSES THAT NOTHING IN THE PARTIES' NEGOTIATED
AGREEMENT AUTHORIZED THE COMPLAINANT IN HIS CAPACITY OF PRESIDENT OF
LOCAL 2142 OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
TO USE OFFICIAL TIME FOR UNION PURPOSES. HOWEVER, IT IS CLEAR FROM THE
RECORD, THE FINDINGS OF THE ADMINISTRATIVE LAW JUDGE, AND THE
RESPONDENT'S ARGUMENTS, THAT MANAGEMENT ALLOWED A PAST PRACTICE TO
DEVELOP WHEREBY THE COMPLAINANT SPENT APPROXIMATELY 70-80% OF HIS EIGHT
HOUR WORK DAYS ON UNION ACTIVITIES. FOR THE PURPOSE OF DECISION IN THE
INSTANT CASE, SUCH A PAST PRACTICE HAD THE EFFECT OF GRANTING TO THE
COMPLAINANT A RIGHT TO OFFICIAL TIME TANTAMOUNT TO A RIGHT ACCORDED
UNDER THE NEGOTIATED AGREEMENT. THE AUTHORITY DOES NOT REACH OR PASS
UPON THE ADMINISTRATIVE LAW JUDGE'S OPINION ON PAGE SIX OF HIS DECISION
AS TO WHAT RESPONDENT'S PROPER COURSE OF ACTION IN THIS CASE SHOULD HAVE
BEEN.

ORDER

PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE U.S. ARMY, CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS,
SHALL:

1. CEASE AND DESIST FROM:

(A) FAILING OR REFUSING TO TRANSFER JESSE O. HALL, OR ANY OTHER
EMPLOYEE, BECAUSE HE HAS EXERCISED HIS RIGHTS UNDER THE EXECUTIVE ORDER
TO ASSIST A LABOR ORGANIZATION BY SERVING AS A UNION OFFICER AND HAS
UTILIZED OFFICIAL TIME IN SUCH CAPACITY IN ACCORDANCE WITH A PAST
PRACTICE RECOGNIZED BY MANAGEMENT.

(B) DISCRIMINATING AGAINST JESSE O. HALL IN ANY MANNER WITH REGARD TO
HIRE, TENURE, PROMOTION, TRANSFER, OVERTIME, OR OTHER CONDITIONS OF
EMPLOYMENT, IN ORDER TO DISCOURAGE MEMBERSHIP IN OR ACTIVITIES ON BEHALF
OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER LABOR
ORGANIZATION.

(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.

2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
   PURPOSES AND POLICIES OF THE ORDER:

(A) UPON REQUEST, TRANSFER JESSE O. HALL TO THE TRANSMISSION SHOP,
POWER TRAIN BRANCH, COMPONENTS DIVISION, U.S. ARMY, CORPUS CHRISTI
DEPOT, CORPUS CHRISTI, TEXAS.

(B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER, U.S. ARMY,
CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS, AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.

(C) PURSUANT TO 5 CFR 2423.30, NOTIFY THE FEDERAL LABOR RELATIONS
AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.

IT IS HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT FOUND
NOT TO BE VIOLATIVE OF THE EXECUTIVE ORDER BE, AND IT HEREBY IS,
DISMISSED.

ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1980

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

APPENDIX

NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF

THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO

EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE

UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT

RELATIONS

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT FAIL OR REFUSE TO TRANSFER JESSE O. HALL, OR ANY OTHER
EMPLOYEE, BECAUSE HE HAS EXERCISED HIS RIGHTS UNDER EXECUTIVE ORDER
11491, AS AMENDED, TO ASSIST A LABOR ORGANIZATION BY SERVING AS A UNION
OFFICER AND HAS UTILIZED OFFICIAL TIME IN SUCH CAPACITY IN ACCORDANCE
WITH A PAST PRACTICE RECOGNIZED BY MANAGEMENT.

WE WILL NOT DISCRIMINATE AGAINST JESSE O. HALL, OR ANY OTHER
EMPLOYEE, IN ANY MANNER WITH REGARD TO HIRE, TENURE, PROMOTION,
TRANSFER, OVERTIME, OR OTHER CONDITIONS OF EMPLOYMENT IN ORDER TO
DISCOURAGE MEMBERSHIP IN OR ACTIVITIES ON BEHALF OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION.

WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.

WE WILL, UPON REQUEST, TRANSFER JESSE O. HALL TO THE TRANSMISSION
SHOP, POWER TRAIN BRANCH, COMPONENTS DIVISION, U.S. ARMY, CORPUS CHRISTI
ARMY DEPOT, CORPUS CHRISTI, TEXAS.

. . .

(AGENCY OR ACTIVITY)

DATED: . . . BY: . . .

(SIGNATURE)

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.

IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
BRYAN & ERVAY STREETS, ROOM 450, DOWNTOWN POST OFFICE STATION, P.O. BOX
2640, DALLAS, TEXAS 75221 AND WHOSE TELEPHONE NUMBER IS: (214)
767-4996.

-------------------- ALJ$ DECISION FOLLOWS --------------------

SAMUEL S. HORN, ESQUIRE
JAMES G. GILLIAM, ESQUIRE
FOR THE RESPONDENT

RICHARD E. FLINT, ESQUIRE
FOR THE COMPLAINANT

BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE

DECISION

STATEMENT OF THE CASE

THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
RESULT OF AN AMENDED UNFAIR LABOR PRACTICE COMPLAINT FILED BY JESSE O.
HALL, THEN PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2142 (COMPLAINANT) AGAINST THE U.S. ARMY, CORPUS CHRISTI
ARMY DEPOT, CORPUS CHRISTI, TEXAS (RESPONDENT).

THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT COMPLAINANT WAS NOT
SELECTED FOR REASSIGNMENT TO RESPONDENT'S TRANSMISSION SHOP BECAUSE OF
HIS UNION ACTIVITIES. THE COMPLAINT ALSO ALLEGED THAT ONE OF
RESPONDENT'S BRANCH CHIEFS SO INFORMED COMPLAINANT ON MAY 27, 1978.
COMPLAINANT ALLEGED THAT RESPONDENT'S ACTIONS VIOLATED SECTION 19(A)(1),
(2), AND (4) OF THE ORDER.

RESPONDENT DENIED THE ALLEGATIONS.

PURSUANT TO A NOTICE OF HEARING ISSUED BY THE REGIONAL DIRECTOR,
FEDERAL LABOR RELATIONS AUTHORITY, DALLAS REGION, A HEARING WAS HELD IN
THIS MATTER BEFORE THE UNDERSIGNED IN CORPUS CHRISTI, TEXAS. BOTH
PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO EXAMINE AND CROSS-EXAMINE
WITNESSES AND FILE BRIEFS.

BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.

FINDINGS OF FACT

1. COMPLAINANT, JESSE HALL, BEGAN HIS EMPLOYMENT WITH THE RESPONDENT
   AT THE CORPUS CHRISTI ARMY DEPOT IN FEBRUARY 1967 AS A WG-5 IN THE
   TRANSMISSION SHOP. HE REMAINED IN THE TRANSMISSION SHOP UNTIL 1974
   SERVING IN GRADES WG-5 TO WG-8. (TR. 205-206). HE IS CURRENTLY A WG-10
   IN THE AIRFRAME DIVISION. (COMPLAINANT'S EX. 2).

2. HALL JOINED THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
   AFL-CIO, LOCAL 2142 (THE UNION) IN 1974. HE BECAME A STEWARD IN EARLY
   1974, CHIEF STEWARD IN SEPTEMBER 1974, AND WAS ELECTED PRESIDENT OF THE
   LOCAL IN 1976. (TR. 208-209). IN HIS CAPACITY AS PRESIDENT OF THE
   LOCAL HE ACTIVELY AND SUCCESSFULLY REPRESENTED INDIVIDUALS IN
   GRIEVANCES. (TR. 45, 211). DURING 1978 HE ALSO PURSUED OTHER EMPLOYEE
   COMPLAINTS, BROUGHT UNFAIR LABOR PRACTICE COMPLAINTS, AND ENGAGED IN
   NEGOTIATIONS CONCERNING THE COLLECTIVE BARGAINING AGREEMENT. (TR.
   215-218; RESPONDENT'S EX. 1). HIS ACTIVITIES ON BEHALF OF THE UNION
   WERE WELL KNOWN TO RESPONDENT. (TR. 45, 107).

3. THE COLLECTIVE BARGAINING AGREEMENT BETWEEN RESPONDENT AND THE
   UNION ESTABLISHED A PROCEDURE WHEREBY A REASONABLE AMOUNT OF TIME DURING
   REGULAR DUTY HOURS COULD BE USED BY THE CHIEF STEWARD AND THE STEWARDS
   TO DISCUSS GRIEVANCES AND OTHER WORK-RELATED MATTERS. (JOINT EX. 1, PP.
   13-14). THE AGREEMENT PROVIDED THAT REQUESTS BY A UNION REPRESENTATIVE
   OR OTHER EMPLOYEE TO LEAVE THE JOB WOULD BE KEPT TO A MINIMUM; THAT
   REQUESTS WOULD BE MADE TO THE EMPLOYEE'S SUPERVISOR; THAT TIME SPENT BY
   UNION OFFICERS AND REPRESENTATIVES ON CONSULTATION, DISCUSSION, OR
   REPRESENTATIONAL DUTIES WOULD BE CHARGED TO NON-PRODUCTIVE TIME; AND
   THAT "THE EMPLOYER AGREES TO DISCUSS WITH THE PRESIDENT OF THE UNION
   SPECIFIC CASES WHERE THE EMPLOYER BELIEVES ONE OF THE REPRESENTATIVES
   MAY BE USING MORE THAN A REASONABLE AMOUNT OF TIME IN PURSUING THE
   REPRESENTATION FUNCTION." (JOINT EX. 1, PP. 13-14).

4. DURING THE PERIOD JANUARY TO APRIL 1978 MR. HALL SPENT
   APPROXIMATELY 70-80% OF HIS EIGHT HOUR WORK DAYS ON UNION ACTIVITIES.
   (TR. 229-230). HALL FOLLOWED ESTABLISHED PROCEDURES CONCERNING THE USE
   OF SUCH TIME, AND ALSO SUBMITTED INFORMATION ON A DAILY BASIS CONCERNING
   THE AMOUNT OF TIME USED. THESE REPORTS WERE MADE AVAILABLE TO, AND SEEN
   BY, MANAGEMENT AT ALL RELEVANT LEVELS. (TR. 65-66, 89-90, 109, 230-231;
   RESPONDENT EXHIBIT 1). IN THE PAST, ALTHOUGH OCCASIONAL ATTEMPTS WERE
   MADE TO RESTRICT HALL TO HIS WORK SITE, HE FOLLOWED THE ADVICE OF THE
   BASE COMMANDER TO TAKE ALL THE TIME HE NEEDED TO RESOLVE GRIEVANCES AND
   COMPLAINTS. (TR. 220-223). HALL RECEIVED NO COMPLAINTS FROM MANAGEMENT
   THAT HIS USE OF OFFICIAL TIME WAS IN ANY WAY UNREASONABLE. HE HAD A
   REPUTATION AS A GOOD WORKER, AND HIS PERFORMANCE AS AN EMPLOYEE WAS
   CONSISTENTLY RATED IN ALL APPLICABLE ELEMENTS AS ABOVE AVERAGE OR
   OUTSTANDING. (TR. 48-52; 207; COMPLAINANT'S EXHIBIT 4).

5. IN LATE APRIL 1978 THE TRANSMISSION SHOP AT CORPUS CHRISTI ARMY
   DEPOT HAD AN URGENT NEED FOR ADDITIONAL EMPLOYEES TO ASSIST WITH AN
   INCREASED WORKLOAD. (TR. 24,59). RESPONDENT DECIDED TO TRANSFER 21
   ENCUMBERED POSITIONS TO THAT SHOP. (TR. 185, 189, 192). NO PROMOTIONS
   WERE INVOLVED, BUT OVERTIME WOULD BE AVAILABLE TO THE EMPLOYEES
   TRANSFERRED. (TR. 29, 31-32, 59, 193).

6. MR. ADOLPH CHOVANEC, DEPUTY DIRECTOR OF MAINTENANCE, LEVIED A
   REQUIREMENT FOR 20 EMPLOYEES TO BE TRANSFERRED FROM THE AIRFRAMES
   DIVISION TO THE COMPONENTS DIVISION. (TR. 20). CHOVANEC SAID THAT
   VOLUNTEERS WERE TO BE SOUGHT AS PART OF THE SELECTION PROCEDURE. (TR.
   23). AT THIS POINT, JOHN B. JONES, CHIEF OF THE AIR FRAMES DIVISION,
   ADVISED CHOVANEC THAT HE WAS SURE MR. HALL PROBABLY WOULD BE INTERESTED.
   CHOVANEC REPLIED, "WELL, MR. HALL IS NOT AVAILABLE ON THE JOB THAT
   MUCH. IF I SEND MR. HALL DOWN TO THE TRANSMISSION SHOP, I WOULD HAVE TO
   SEND SOMEBODY ELSE DOWN THERE TO DO THE WORK." (TR. 94). MR. CHOVANEC
   WAS OF THE OPINION THAT, IF MR. HALL SHOULD INQUIRE ABOUT IT, HE SHOULD
   BE TOLD THAT HIS NONAVAILABILITY FOR THE JOB, SINCE HE SPENT SO MUCH
   TIME ON UNION BUSINESS, WAS THE REASON FOR NOT SENDING HIM TO THE
   TRANSMISSION SECTION. (RESPONDENT'S EXHIBIT 2; TR. 42, 94). MR.
   CHOVANEC STRESSED THAT PERSONS SELECTED SHOULD BE AVAILABLE TO DO THE
   JOB 8 HOURS A DAY. (TR. 42).

7. MR. HALL VOLUNTEERED FOR TRANSFER TO THE TRANSMISSION SHOP. (TR.
   100). THERE WAS NO QUESTION AS TO HIS TECHNICAL QUALIFICATIONS FOR THE
   WORK. (TR. 200). IN ADDITION, HE HAD EXPERIENCE IN THE TRANSMISSION
   SHOP, A DESIRED FACTOR, WHICH MOST OF THE EMPLOYEES EVENTUALLY
   TRANSFERRED DID NOT HAVE. (TR. 48, 98-100, 132-133). HALL WAS NOT
   SELECTED FOR TRANSFER, BECAUSE OF HIS NONAVAILABILITY FOR FULL-TIME WORK
   ON THE JOB DURING THE REGULAR WORK DAY DUE TO HIS USE OF OFFICIAL TIME
   FOR UNION ACTIVITIES. (TR. 42, 61, 89, 94, 125, 152). HALL WAS SO
   INFORMED OF THE REASONS FOR HIS REJECTION BY RESPONDENT'S SUPERVISORS
   JOHN B. JONES AND JERRY ALEXANDER. (TR. 124-,25, 144, 151-152, 222-223;
   RESPONDENT'S EXHIBIT 2).

8. ANOTHER VOLUNTEER, FERMIN G. SANCHEZ, WAS INITIALLY REJECTED DUE
   TO HIS EXCESSIVE USE OF SICK LEAVE. WHEN SANCHEZ IMPROVED HIS LEAVE
   RECORD, HE WAS ACCEPTED IN THE TRANSMISSION SHOP. (TR. 68-70). STEVE
   FALCON, ANOTHER VOLUNTEER, WAS REJECTED BECAUSE OF A PHYSICAL IMPAIRMENT
   THAT IMPEDED THE FULL AND FREE MOVEMENT REQUIRED IN THE TRANSMISSION
   SHOP. (TR. 71).

9. SUBSEQUENT TO HALL'S REJECTION FOR THE TRANSFER, HE HAD ANOTHER
   CONVERSATION WITH HIS BRANCH CHIEF, JERRY ALEXANDER. ALEXANDER STATED
   TO HALL THAT HAD HALL BEEN ABLE TO REDUCE HIS AMOUNT OF UNION TIME, HE
   COULD PROBABLY HAVE GONE TO THE TRANSMISSION SHOP. (TR. 124-125).

10. DURING THE PERIOD MAY 1978 TO JANUARY 1979 THE AVERAGE AMOUNT OF
    OVERTIME WORKED BY EACH WG-10 ASSIGNED TO THE TRANSMISSION SHOP WAS
    APPROXIMATELY 24 1/3 HOURS, OR A TOTAL OF APPROXIMATELY 551 1/2 AVERAGE
    HOURS OVERTIME DURING THE PERIOD. (COMPLAINANT'S EXHIBIT 3). HALL
    TESTIFIED THAT HE WOULD HAVE VOLUNTEERED FOR SUCH OVERTIME. (TR.
    228-229). THE COLLECTIVE BARGAINING AGREEMENT PROVIDED THAT, INSOFAR AS
    PRACTICABLE, OVERTIME ASSIGNMENTS WOULD FIRST BE FAIRLY DISTRIBUTED
    AMONG THE PERMANENT EMPLOYEES OF THE ORGANIZATION IN WHICH OVERTIME WAS
    TO BE WORKED, AND THAT LEAVE FOR "LEGITIMATE UNION SERVICE" WOULD NOT BE
    USED TO DISQUALIFY AN EMPLOYEE FOR SUCH OVERTIME. (JOINT EXHIBIT 1, P.
    36). HALL TESTIFIED THAT HE SOMETIMES WORKED OVERTIME IN HIS PRESENT
    SHOP AFTER AN EIGHT HOUR DAY IN WHICH HE SPENT SOME TIME ON UNION
    BUSINESS. (TR. 227). THIS OVERTIME WAS PRODUCTIVE OVERTIME, TIME
    SPENT ON THE JOB, SINCE THE COLLECTIVE BARGAINING AGREEMENT LIMITED THE
    USE OF OFFICIAL TIME DURING OVERTIME TO URGENT ITEMS WHICH COULD NOT BE
    DEFERRED UNTIL THE NEXT NON-OVERTIME DAY. (TR. 228; JOINT EXHIBIT 1,
    P. 37). HALL WAS ALSO KNOWN TO SOMETIMES WORK ON UNION BUSINESS ON HIS
    OWN TIME AFTER DUTY HOURS.

11. HALL IS NO LONGER PRESIDENT OF AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, AFL-CIO, LOCAL 2142.

DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS

COMPLAINANT ALLEGES THAT RESPONDENT VIOLATED SECTION 19()(1), (2),
AND (4) OF THE ORDER. RESPONDENT DENIES ANY VIOLATION AND CONTENDS THAT
THE TRANSMISSION SHOP REQUIRED FULL-TIME SERVICE; THAT MR. HALL WAS NOT
AVAILABLE FOR SUCH SERVICE, BECAUSE OF HIS USE OF OFFICIAL TIME FOR
UNION ACTIVITIES; AND THAT BY KEEPING MR. HALL IN HIS PRESENT SHOP,
WHERE HE ABSENCES COULD BE ACCOMMODATED, MANAGEMENT MAINTAINED A
NECESSARY BALANCE BETWEEN PERFORMANCE OF ITS MISSION AND PERFORMANCE OF
UNION ACTIVITIES.

SECTION 1(A) OF THE ORDER GUARANTEES TO EACH EMPLOYEE OF THE
EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT THE RIGHT, FREELY AND WITHOUT
FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR
ORGANIZATION OR TO REFRAIN FROM SUCH ACTIVITY. THE RIGHT TO ASSIST A
LABOR ORGANIZATION EXTENDS TO PARTICIPATION IN THE MANAGEMENT OF THE
ORGANIZATION. AGENCY MANAGEMENT'S ENCOURAGEMENT OR DISCOURAGEMENT OF
THESE RIGHTS BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
OR OTHER CONDITIONS OF EMPLOYMENT IS VIOLATIVE OF SECTION 19(A)(2) AND
(1) OF THE ORDER. SPECIFICALLY, TO FIND A SECTION 19(A)(2) VIOLATION, A
COMPLAINANT MUST ESTABLISH THAT MANAGEMENT HAD DISCRIMINATED IN REGARD
TO TERMS AND CONDITIONS OF EMPLOYMENT BASED ON UNION CONSIDERATIONS.
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MILWAUKEE AREA OFFICE,
MILWAUKEE, WISCONSIN, 7 A/SLMR 948, 949, A/SLMR NO. 925(1977). FURTHER,
SUCH A VIOLATION WILL BE FOUND WHERE UNION CONSIDERATIONS ARE SHOWN TO
HAVE PLAYED ONLY A PART IN MANAGEMENT'S ACTION. DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF
HEARINGS AND APPEALS, REGION II, SAN JUAN, PUERTO RICO, 8 A/SLMR 1092,
1093, A/SLMR NO. 1127(1978). THUS, IF MANAGEMENT'S FAILURE TO SELECT
COMPLAINANT FOR TRANSFER WAS BASED IN WHOLE OR IN PART ON HIS UNION
ACTIVITY, A VIOLATION OF SECTION 19(A)(2) WOULD BE ESTABLISHED.
DIRECTORATE OF SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY,
HEADQUARTERS, DEFENSE LOGISTICS AGENCY, 2 FLRA 118(1980).

BY NOT BEING SELECTED FOR TRANSFER TO THE TRANSMISSION SHOP,
COMPLAINANT WAS NOT DEPRIVED OF A PROMOTION, BUT WAS DEPRIVED OF THE
OPPORTUNITY TO WORK OVERTIME. OVERTIME IS A CONDITION OF EMPLOYMENT.
THE RECORD ESTABLISHES THAT COMPLAINANT WAS NOT SELECTED FOR TRANSFER
BECAUSE MANAGEMENT DETERMINED THAT HIS USE OF OFFICIAL TIME FOR UNION
ACTIVITIES RENDERED HIM UNAVAILABLE FOR FULL-TIME WORK ON THE JOB.
THERE WAS NO INDEPENDENT CREDIBLE EVIDENCE OF UNION ANIMUS.

THE USE OF OFFICIAL TIME FOR EMPLOYEE REPRESENTATIONAL ACTIVITIES IS
A CONTRACTUAL RIGHT, NOT A RIGHT GUARANTEED BY THE ORDER. MOREOVER,
MANAGEMENT MAY MONITOR THE AMOUNT OF TIME SPENT ON UNION ACTIVITIES IN
ORDER TO MAKE WORK ASSIGNMENTS. HOWEVER, TO PENALIZE OR THREATEN TO
PENALIZE EMPLOYEES FOR ASSERTING OR EXERCISING RIGHTS ACCORDED THEM
UNDER A NEGOTIATED AGREEMENT MAY VIOLATE THE ORDER WHERE THE EFFECT OF
SUCH PENALTY OR THREAT IS TO INTERFERE WITH, RESTRAIN, OR COERCE SUCH
EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER, E.G. THE
RIGHTS TO FORM, JOIN, OR ASSIST A LABOR ORGANIZATION. DEPARTMENT OF THE
AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBURG AIR FORCE BASE,
CALIFORNIA, A/SLMR NO. 485, FLRC NO. 75A-25, 4 FLRC 587(1976);
DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON,
WASHINGTON, A/SLMR NO. 582, FLRC NO. 76A-13, 4 FLRC 390(1976).

RESPONDENT MAKES NO CONTENTION THAT THE ABSENCES OCCASIONED BY HALL'S
REPRESENTATIONAL ACTIVITIES WERE IN ANY WAY VIOLATIVE OF THE APPLICABLE
PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT. SUCH ABSENCES, THEN,
WERE PRESUMABLY FOR THE MUTUAL BENEFIT OF BOTH PARTIES. /2/ FOR
RESPONDENT TO CONSIDER HALL'S USE OF SUCH TIME AS RENDERING HIM
INELIGIBLE FOR TRANSFER MEANT THAT RESPONDENT WAS PENALIZING HALL FOR
EXERCISING RIGHTS ACCORDED TO HIM AS A UNION OFFICER UNDER THE
NEGOTIATED AGREEMENT. THE OBVIOUS CONSEQUENCE AND EFFECT OF SUCH
PENALTY IS TO DISCOURAGE EMPLOYEES FROM JOINING AND ASSISTANT A LABOR
ORGANIZATION. THIS IS INHERENTLY DESTRUCTIVE OF RIGHTS ASSURED UNDER
SECTION 1(A) OF THE ORDER.

BECAUSE DISCRIMINATION BASED ON UNION CONSIDERATIONS PLAYED A PART IN
MANAGEMENT'S FAILURE TO SELECT HALL FOR TRANSFER, RESPONDENT VIOLATED
SECTION 19(A)(2) AND (1) OF THE ORDER. IN THIS REGARD, THIS CASE IS
SIMILAR TO DEPARTMENT OF THE ARMY, UNITED STATES ARMY INFANTRY CENTER,
CIVILIAN PERSONNEL OFFICE, FORT BENNING, GEORGIA, A/SLMR NO. 515, 5
A/SLMR 325(1975), WHERE THE ASSISTANT SECRETARY FOUND A VIOLATION OF
SECTION 19(A)(1) AND (2), BECAUSE THE EMPLOYEE'S ACTIVITIES AS A UNION
STEWARDESS PLAYED SOME PART IN THE DECISION OF MANAGEMENT OFFICIALS NOT
TO SELECT THE EMPLOYEE FOR PROMOTION. ALTHOUGH THERE WAS SOME OTHER
EVIDENCE OF UNION ANIMUS, IT WAS POINTED OUT THAT IT WAS IMPROPER FOR
MANAGEMENT TO CONSIDER THE ABSENCES OF THE EMPLOYEE FROM HER WORK FOR
GRIEVANCE ACTIVITY, SINCE, AS IN THE INSTANT CASE, THERE WAS NO
CONTENTION THAT THE ABSENCES WERE IN ANY WAY VIOLATIVE OF THE COLLECTIVE
BARGAINING AGREEMENT. AS IN THE INSTANT CASE, THESE ABSENCES, IN
MANAGEMENT'S OPINION, MADE THE EMPLOYEE LESS DESIRABLE FOR THE POSITIONS
UNDER CONSIDERATION.

THE INSTANT CASE IS DISTINGUISHABLE FROM DEPARTMENT OF THE AIR FORCE,
4392D AEROSPACE SUPPORT GROUP, VANDENBERG AIR FORCE BASE, CALIFORNIA,
A/SLMR NO. 537, 5 A/SLMR 486(1975) AND PUGET SOUND NAVAL SHIPYARD,
DEPARTMENT OF THE NAVY, BREMERTON, WASHINGTON, A/SLMR NO. 768, 6 A/SLMR
709, WHERE THE RECORDS DEMONSTRATED THAT EMPLOYEES WERE TRANSFERRED TO
LESS DEMANDING POSITIONS SOLELY BECAUSE THEY WERE UNABLE TO MEET THE
WORK PERFORMANCE REQUIREMENTS OF THEIR CURRENT POSITIONS, BECAUSE OF
THEIR REPRESENTATIONAL DUTIES. THE TRANSFER OF THE EMPLOYEES FOR THIS
REASON ACTUALLY ALLOWED THE EMPLOYEES MORE TIME FOR SUCH DUTIES IN THEIR
NEW POSITIONS.

RESPONDENT'S ACTION, HOWEVER, IN DETERMINING IN ADVANCE OF ANY
PERFORMANCE BY MR. HALL IN THE POSITION, THAT HE COULD NOT MEET THE WORK
PERFORMANCE REQUIREMENTS OF THE NEW POSITION BECAUSE OF THE DEMANDS OF
HIS UNION ACTIVITIES, HAS THE EFFECT OF DISCRIMINATING AGAINST MR. HALL
FOR SIMPLY ENGAGING IN SUCH ACTIVITIES. IN MY VIEW, THE PROPER COURSE
OF ACTION FOR RESPONDENT TO TAKE, IN ORDER TO BALANCE ITS RIGHTS IN
PERFORMING ITS MISSION WITH THOSE OF THE EMPLOYEE'S PROTECTED ACTIVITY
AND THE GOALS OF EFFICIENT GOVERNMENT, WAS TO CONSIDER HALL'S REQUEST
FOR TRANSFER COMPLETELY APART FROM UNION CONSIDERATIONS, AND IF THE
TRANSFER WAS GRANTED AND MR. HALL PROVED TO BE UNABLE TO PERFORM THE
REQUIRED WORK, RESPONDENT COULD HAVE TAKEN ACTION CONSISTENT WITH THE
ABOVE VANDENBERG AND PUGET SOUND CASES AND TRANSFERRED HIM OUT OF THE
POSITION. /3/ AS THE COUNCIL NOTED IN DEPARTMENT OF THE AIR FORCE, BASE
PROCUREMENT OFFICE, VANDENBURG AIR FORCE BASE, CALIFORNIA, SUPRA, 4 FLRC
AT P. 594, FN. 11:

. . . PURSUANT TO SECTION 12(A) OF THE ORDER, IN THE ADMINISTRATION
OF THE AGREEMENT THE

PARTIES ARE GOVERNED BYLAWS AND CONTROLLING REGULATIONS. FURTHER,
THE ORDER MANDATES THE

RETENTION TO MANAGEMENT OF CERTAIN RIGHTS WHICH MAY NOT BE BARGAINED
AWAY, INCLUDING

SPECIFICALLY THE RIGHT "TO DIRECT EMPLOYEES OF THE AGENCY." THUS,
WHILE THE ORDER PERMITS A

LABOR ORGANIZATION TO NEGOTIATE FOR THE USE OF OFFICIAL TIME FOR
CONTRACT ADMINISTRATION AND

OTHER EMPLOYEE REPRESENTATIONAL ACTIVITIES AND PROTECTS EMPLOYEES
FROM INTERFERENCE WITH

RIGHTS ASSURED BY THE ORDER, THE ORDER DOES NOT PRECLUDE AGENCY
MANAGEMENT FROM INSISTING THAT

EMPLOYEES ABIDE BY THE TERMS OF THE AGREEMENT, APPLICABLE LAWS AND
REGULATIONS, AND MOST

CERTAINLY DOES NOT PRECLUDE AGENCY MANAGEMENT FROM DIRECTING THOSE
EMPLOYEES IN THE

PERFORMANCE OF THEIR ASSIGNED DUTIES.

THE RECORD REFLECTS THAT SUBSEQUENT TO HALL'S REJECTION FOR THE
TRANSFER, HIS BRANCH CHIEF, JERRY ALEXANDER, SUGGESTED TO HALL THAT HAD
HALL BEEN ABLE TO REDUCE HIS AMOUNT OF UNION TIME, HE COULD PROBABLY
HAVE GONE TO THE TRANSMISSION SHOP. (TR. 124-125; 219). THIS
STATEMENT INDICATED THAT HALL'S OPPORTUNITIES WOULD BE LIMITED SO LONG
AS HE CONTINUED TO PERFORM HIS AUTHORIZED REPRESENTATIONAL DUTIES, UNDER
THE TIME FRAME PROCEDURES PREVIOUSLY NEGOTIATED BY THE PARTIES, AND
OSTENSIBLY, AT LEAST, FOUND ACCEPTABLE BY RESPONDENT IN PRACTICE. SEE
DEPARTMENT OF THE ARMY, PICATINNY ARSENAL, DOVER, NEW JERSEY, A/SLMR NO.
512, 5 A/SLMR 293(1975); DEPARTMENT OF THE ARMY, UNITED STATES ARMY
INFANTRY CENTER, CIVILIAN PERSONNEL OFFICE, FORT BENNING, GEORGIA,
SUPRA, 5 A/SLMR AT 326. I FIND THAT THIS STATEMENT INDEPENDENTLY
VIOLATED SECTION 19(A)(1) OF THE ORDER. IT INTERFERED WITH, RESTRAINED,
AND COERCED HALL IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER TO JOIN
AND ASSIST A LABOR ORGANIZATION.

THE RECORD ESTABLISHES THAT APART FROM RESPONDENT'S CONSIDERATION OF
COMPLAINANT'S UNION ACTIVITIES, HE WOULD HAVE BEEN SELECTED FOR TRANSFER
TO THE TRANSMISSION SHOP WITH THE OPPORTUNITY THAT IT PROVIDED TO WORK
OVERTIME. THEREFORE, THE RECOMMENDED ORDER PROVIDES THAT HE BE SO
TRANSFERRED, UPON HIS REQUEST. HOWEVER, IT CANNOT BE CONCLUDED THAT BUT
FOR THE IMPROPER ACTION, COMPLAINANT WOULD HAVE WORKED SUCH OVERTIME.
THEREFORE, COMPLAINANT CAN NOT BE ORDERED COMPENSATED FOR ANY LOSS OF
BACK PAY OR DIFFERENTIAL WHICH HE MIGHT HAVE EARNED FOR OVERTIME. THE
FEDERAL LABOR RELATIONS COUNCIL NOTED THAT IN ORDER TO MAKE A VALID
AWARD OF BACKPAY UNDER THE BACK PAY ACT OF 1966, 5 U.S.C. SECTION 5596,
IT IS NECESSARY NOT ONLY TO FIND THAT AN EMPLOYEE HAS BEEN ADVERSELY
AFFECTED BY AGENCY MANAGEMENT'S IMPROPER ACTION, BUT ALSO THAT "BUT FOR"
THE IMPROPER ACTION THE EMPLOYEE WOULD NOT HAVE SUFFERED A LOSS OR
REDUCTION IN PAY, ALLOWANCES, OR YARD METAL TRADES COUNCIL, AFL-CIO, 4
FLRA 143, 149, YARD METAL TRADES COUNCIL, AFL-CIO, 4 FLRC 143, 149, FLRC
NO. 74A-64(1976); DIRECTORATE OF SUPPLY OPERATIONS, DEFENSE LOGISTICS
AGENCY, HEADQUARTERS, DEFENSE LOGISTICS AGENCY, 1 FLRA 118(1980).
COMPARE U.S. CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA, 1 FLRA
108(1979), IN WHICH BACKPAY WAS AWARDED FOR OVERTIME, WHERE THE RECORD
SHOWED THAT THE EMPLOYEE HAD REGULARLY WORKED SPECIAL OVERTIME AND BUT
FOR MANAGEMENT'S IMPROPER ACTION WOULD HAVE WORKED THIS OVERTIME ON
DATES CERTAIN.

THERE IS NO CREDIBLE EVIDENCE THAT RESPONDENT VIOLATED SECTION
19(A)(4) OF THE ORDER BY DISCIPLINING OR OTHERWISE DISCRIMINATING
AGAINST MR. HALL BECAUSE HE HAS FILED A COMPLAINT OR GIVEN TESTIMONY
UNDER THE ORDER. IT IS RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN
THIS RESPECT.

HAVING FOUND AND CONCLUDED THAT RESPONDENT HAS VIOLATED SECTION
19(A)(1) AND (2) OF EXECUTIVE ORDER 11491, AS AMENDED, I RECOMMEND THAT
THE AUTHORITY ISSUE THE FOLLOWING ORDER:

ORDER

PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE U.S. ARMY, CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS,
SHALL:

1. CEASE AND DESIST FROM:

(A) FAILING OR REFUSING TO TRANSFER JESSE O. HALL, OR ANY OTHER
EMPLOYEE, BECAUSE HE HAS EXERCISED HIS RIGHTS UNDER THE EXECUTIVE ORDER
TO ASSIST A LABOR ORGANIZATION BY SERVING AS A UNION OFFICER AND HAS
UTILIZED OFFICIAL TIME IN SUCH CAPACITY PURSUANT TO THE TERMS OF A
COLLECTIVE BARGAINING AGREEMENT.

(B) DISCRIMINATING AGAINST JESSE O. HALL IN ANY MANNER WITH REGARD TO
HIRE, TENURE, PROMOTION, TRANSFER, OVERTIME, OR OTHER CONDITIONS OF
EMPLOYMENT, IN ORDER TO DISCOURAGE MEMBERSHIP IN OR ACTIVITIES ON BEHALF
OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER LABOR
ORGANIZATION.

(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.

2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
   PURPOSES AND POLICIES OF THE ORDER:

(A) UPON REQUEST, TRANSFER JESSE O. HALL TO THE TRANSMISSION SHOP,
POWER TRAIN BRANCH, COMPONENTS DIVISION, U.S. ARMY CORPUS CHRISTI DEPOT,
CORPUS CHRISTI, TEXAS.

(B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER, U.S. ARMY
CORPUS CHRISTI ARMY DEPOT, CORPUS CHRISTI, TEXAS, AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.

(C) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.

GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE

DATED: JUNE 3, 1980
WASHINGTON, D.C.

APPENDIX

PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR

RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE

POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES

CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT FAIL OR REFUSE TO TRANSFER JESSE O. HALL, OR ANY OTHER
EMPLOYEE, BECAUSE HE HAS EXERCISED HIS RIGHTS UNDER EXECUTIVE ORDER
11491, AS AMENDED, TO ASSIST A LABOR ORGANIZATION BY SERVING AS A UNION
OFFICER AND HAS UTILIZED OFFICIAL TIME IN SUCH CAPACITY IN ACCORDANCE
WITH A COLLECTIVE BARGAINING AGREEMENT.

WE WILL NOT DISCRIMINATE AGAINST JESSE O. HALL, OR ANY OTHER
EMPLOYEE, IN ANY MANNER WITH REGARD TO HIRE, TENURE, PROMOTION,
TRANSFER, OVERTIME, OR OTHER CONDITIONS OF EMPLOYMENT IN ORDER TO
DISCOURAGE MEMBERSHIP IN OR ACTIVITIES ON BEHALF OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION.

WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.

WE WILL, UPON REQUEST, TRANSFER JESSE O. HALL TO THE TRANSMISSION
SHOP, POWER TRAIN BRANCH, COMPONENTS DIVISION, U.S. ARMY CORPUS CHRISTI
ARMY DEPOT, CORPUS CHRISTI, TEXAS.

(AGENCY OR ACTIVITY)

DATED: . . . BY: . . .

(SIGNATURE)

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.

IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
BRYAN & ERVAY STREET, OLD POST OFFICE BUILDING, ROOM 450, DALLAS, TEXAS
75221.

--------------- FOOTNOTES$ ---------------

/1/ 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.

/2/ IN THIS REGARD, RESPONDENT'S REJECTION OF OTHER VOLUNTEERS FOR
EXCESSIVE SICK LEAVE OR PHYSICAL HANDICAP IS DISTINGUISHABLE, SINCE NO
APPARENT BENEFITS ACCRUED TO RESPONDENT FROM THESE ABSENCES OR
WORK-RELATED DEFICIENCIES.

/3/ IN THIS REGARD, IT IS NOTED THAT HALL TESTIFIED, WITHOUT
CONTRADICTION, THAT THE TRANSMISSION SHOP ALLOCATES A PARTICULAR NUMBER
OF HOURS TO COMPLETE WORK ON A TRANSMISSION IN ORDER TO DETERMINE
TRANSMISSION SHOP, HE COMPLETED SOME WORK IN ONE HALF THE TIME THE
COMPARABLE WORK TOOK OTHER EMPLOYEES. (TR. 439-440).