Department of the Navy, Portsmouth Naval Shipyard (Respondent) and American Federation of Government Employees, Local 2026 (Charging Party)

 



[ v06 p491 ]
06:0491(94)CA
The decision of the Authority follows:


 6 FLRA No. 94
 
 DEPARTMENT OF THE NAVY
 PORTSMOUTH NAVAL SHIPYARD
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2026
 Charging Party
 
                                            Case No. 1-CA-351
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
 AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE UNFAIR LABOR
 PRACTICE COMPLAINT, RELATING TO THE RESPONDENT'S ALLEGED VIOLATION OF
 SECTION 7116(A)(1) OF THE STATUTE, BE DISMISSED IN ITS ENTIRETY.  THE
 GENERAL COUNSEL AND THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S
 RECOMMENDED DECISION AND ORDER.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  /1/ UPON CONSIDERATION OF
 THE JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THE
 CASE, INCLUDING THE EXCEPTIONS FILED BY THE GENERAL COUNSEL AND THE
 RESPONDENT, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
 CONCLUSIONS, AND RECOMMENDATIONS.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-351 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 31, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
    PETER DOW, ESQ.
 
    FOR THE GENERAL COUNSEL
 
    A.  GENE NIRO, ESQ.
 
    FOR THE RESPONDENT
 
    BEFORE:  JOHN H. FENTON
 
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED.
 REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R.,CHAPTER XIV, PART
 2411, ET SEQ.
 
    PURSUANT TO CHARGE FILED ON APRIL 28, 1980, AND AN AMENDED CHARGE
 FILED ON JUNE 23, BY LOCAL 2024, AFGE, A COMPLAINT AND NOTICE OF HEARING
 WAS ISSUED ON JUNE 27 BY THE REGIONAL DIRECTOR DIRECTOR FOR REGION 1,
 FEDERAL LABOR RELATIONS AUTHORITY, BOSTON, MASSACHUSETTS.  THE COMPLAINT
 ALLEGED THAT THE PORTSMOUTH NAVAL SHIPYARD VIOLATED SECTION 7116(A)(1)
 OF THE STATUTE ON FEBRUARY 8, 1980, WHEN TECHNICAL SUPPORT BRANCH HEAD
 WILLIAM TURNER STATED TO "AN EMPLOYEE THAT HE WOULD NOT PROMOTE AN
 EMPLOYEE BECAUSE THAT EMPLOYEE'S UNION REPRESENTATIVE HAD CONTACTED
 MANAGEMENT CONCERNING THE EMPLOYEE'S FAILURE TO RECEIVE A PROMOTION."
 
    A HEARING WAS HELD ON AUGUST 21, 1980, IN PORTSMOUTH, N.H.  ALL
 PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
 CROSS-EXAMINE WITNESSES, TO INTRODUCE RELEVANT EVIDENCE AND TO FILE
 BRIEFS.  UPON THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    A MEETING TOOK PLACE IN THE OFFICE OF TECHNICAL SUPPORT BRANCH HEAD
 WILLIAM TURNER ON FEBRUARY 8, BETWEEN TURNER, SUPERVISOR ALBION EDWARDS
 AND MYRA SPARKOWICH, SECOND VICE-PRESIDENT AND STEWARD OF LOCAL 2024.
 IT WAS CONCERNED SOLELY WITH THE FACT THAT GS-2 CLERK-TYPIST CHERYL
 CORBIN HAD NOT RECEIVED A PROMOTION AT THE END OF HER PROBATIONARY YEAR.
 
    THE MEETING TOOK ABOUT TEN OR FIFTEEN MINUTES, AND ON THE BASIS OF
 THIS SPARSE RECORD, AS WELL AS THE DEMEANOR OF TURNER AND SPARKOWICH,
 WAS APPARENTLY NOT PARTICULARLY PLEASANT.  IT BEGAN WITH TURNER, WHO HAD
 BEEN DETAILED FOR SOME TIME TO ANOTHER PROJECT, INQUIRING ABOUT THE
 PURPOSE OF SPARKOWICH'S VISIT.  SHE TOLD HIM THAT CORBIN HAD BEEN
 PROMISED A RAISE BY THIS POINT IN TIME, AND THAT SHE HAD, IN FACT, BEEN
 PERFORMING WORK AT THE GS-3, 4 AND 5 LEVELS.  TURNER RESPONDED BY SAYING
 THAT CORBIN COULD NOT EVEN HANDLE HER GS-2 RESPONSIBILITIES,
 SPECIFICALLY MENTIONING HER ALLEGED INABILITY TO TAKE CARE OF THE MAIL
 CONTROL RECORDS.  SPARKOWICH SAID THAT THESE RECORDS WERE KEPT BY
 TURNER'S SECRETARY, FOR WHOM CORBIN HAD SUBSTITUTED, AND THAT CORBIN WAS
 UNFAMILIAR WITH THEM.  SPARKOWICH ALSO ASSERTED THAT THE MAIL CONTROL
 RECORDS WERE NOT COVERED BY CORBIN'S POSITION DESCRIPTION, WITH WHICH
 TURNER DISAGREED.  EDWARDS, IMMEDIATE SUPERVISOR OF CORBIN, THEN
 UNDERCUT TURNER BY AGREEING WITH SPARKOWICH.  TURNER THEN SHOVED, OR
 THREW CORBIN'S LEAVE RECORDS TOWARD SPARKOWICH AND ASKED WHETHER THAT
 WAS THE RECORD OF SOMEONE WHO DESERVED TO BE A GS-3.  TURNER SAID THAT
 CORBIN WOULD REGULARLY BE OUT FOR A DAY AS SOON AS SHE ACCUMULATED FOUR
 HOURS ANNUAL LEAVE AND FOUR HOURS SICK LEAVE AND THAT HE HAD SPOKEN TO
 EDWARDS ABOUT THE PROBLEM.  SPARKOWICH TOLD HIM, AGAIN WITH AT LEAST
 SOME SUPPORT FROM EDWARDS, THAT CORBIN HAD BEEN INVOLVED IN AN
 AUTOMOBILE ACCIDENT, THAT SHE HAD UNDERGONE SURGERY, AND THAT HER NEED
 FOR LEAVE ALWAYS HAD BEEN SUBSTANTIATED BY SICK LEAVE SLIPS SIGNED BY
 HER DOCTOR.  UPON SPARKOWICH'S STATEMENT THAT CORBIN USED SICK LEAVE
 ONLY FOR PURPOSES OF GOING TO THE DOCTOR, TURNER SAID THAT IN SUCH CASE
 THE PROBLEM COULD BE EASILY SOLVED BY REQUIRING HER TO BRING IN A SICK
 LEAVE SLIP WHENEVER SHE TOOK SUCH LEAVE FOR A DAY.  HE THEN INSTRUCTED
 EDWARDS TO IMPOSE SUCH A REQUIREMENT, WHEREUPON SPARKOWICH TOLD HIM HE
 COULD NOT DO SO WITHOUT FIRST GIVING CORBIN A LETTER OF REQUIREMENT.
 THAT MATTER WAS THEN DROPPED, AND TURNER, IN SOME ANGER, SAID THAT IT
 WAS FOR HIM TO DECIDE WHEN CORBIN WAS READY FOR PROMOTION, THAT HE DID
 NOT FEEL THAT SHE WAS QUALIFIED, AND THAT HE WAS "MORE ADAMANT AFTER YOU
 (POINTING AT SPARKOWICH) COMING OVER HERE TODAY." /2/
 
    AFTER TURNER SAID THIS, SPARKOWICH ASKED HIM A QUESTION WHICH IS VERY
 MUCH DISPUTED.  ACCORDING TO HER, SHE ASKED WHETHER SHE HAD HEARD HIM
 CORRECTLY-- CAUTIONING HIM THAT IF SHE HAD, HE WAS GUILTY OF AN UNFAIR
 LABOR PRACTICE-- AND HE REPLIED BY REPEATING THE STATEMENT.  ACCORDING
 TO TURNER, SHE ASKED WHETHER HE MEANT THAT HE WOULD TAKE REPRISAL
 AGAINST A "POOR GIRL" BECAUSE SHE CAME TO HER UNION, TO WHICH HE
 ANSWERED THAT THAT WAS NOT WHAT HE SAID.  SPARKOWICH DENIES ASKING ANY
 SUCH QUESTION.  EDWARDS RECALLS, RATHER VAGUELY, THAT SPARKOWICH
 REPHRASED THE BASIC STATEMENT IN MORE "LEGAL" OR "CONTRACTUAL" TERMS AND
 THAT TURNER ANSWERED "NO" TO THE QUESTION WHETHER THAT WAS WHAT HE
 MEANT.  ALL AGREE THAT SPARKOWICH TURNED TO EDWARDS AND TOLD HIM TO MAKE
 AN ACCURATE NOTE OF WHAT TURNER HAD SAID, REMARKING THAT SHE THOUGHT
 MANAGEMENT WOULD NEED IT.  I AM UNABLE TO DECIDE PRECISELY WHAT
 SPARKOWICH ASKED TURNER.
 
    I DO NOT CREDIT TURNER'S VERSION OF THE QUESTION PUT BY SPARKOWICH,
 NOR DO I ACCEPT HER CONTENTION THAT SHE SIMPLY ASKED IF SHE HAD HEARD
 CORRECTLY, AND THAT TURNER THEN SIMPLY REPEATED THE REMARK.  I ACCEPT
 THE TESTIMONY OF EDWARDS THAT SPARKOWICH "RECAST" TURNER'S STATEMENT IN
 MORE LEGALISTIC TERMS AND THAT HE RESPONDED "NO" TO THE QUESTION WHETHER
 HE HAD MADE SUCH A STATEMENT.  THUS, I DO NOT FIND THAT TURNER
 REPUDIATED HIS ORIGINAL STATEMENT.
 
    FINALLY, APART FROM THE MATTERS DESCRIBED ABOVE, THERE IS NO EVIDENCE
 OR SUGGESTION THAT TURNER OR OTHER MANAGERS IN THIS UNIT HAVE VIOLATED
 THE LAW OR HARBOR ANY ANIMUS AGAINST THE UNION.
 
                        DISCUSSION AND CONCLUSIONS
 
    AS NOTED, THE MEETING BECAME UNPLEASANT, AND EVEN ANGRY, PERHAPS
 BECAUSE SPARKOWICH'S FORCEFUL MANNER COLLIDED WITH TURNER'S
 INTRANSIGEANCE, PERHAPS ALSO BECAUSE OF SUPERVISOR EDWARDS' UNDERCUTTING
 OF HIS SUPERIOR'S VIEWS.  SUCH SPECULATION ASIDE, TURNER MADE A
 STATEMENT WHICH WAS HIGHLY AMBIGUOUS.  IT WAS CLEARLY SUSCEPTIBLE OF THE
 INTERPRETATION THAT HE WAS EVEN MORE OPPOSED TO A PROMOTION FOR CORBIN
 NOW THAT THE UNION HAD INTERVENED IN HER BEHALF.  IT WAS EQUALLY
 SUSCEPTIBLE OF THE INTERPRETATION THAT TURNER WAS NOW THE MORE CONVINCED
 OF THE CORRECTNESS OF HIS INITIAL DECISION AGAINST PROMOTION, HAVING
 MARSHALLED HIS ARGUMENTS IN SUPPORT OF THAT VIEW AND HAVING LISTENED TO
 THE UNION'S UNPERSUASIVE BRIEF IN HER BEHALF.  STANDING ALONE, WITH NO
 OTHER UNFAIR LABOR PRACTICE ALLEGATION, LET ALONE FINDING, AND NO
 EVIDENCE OF ANIMUS AGAINST THE UNION IN THIS UNIT OR ON THE PART OF
 TURNER, I DO NOT BELIEVE I AM FREE TO CHOOSE THE UNLAWFUL AND ESCHEW THE
 INNOCENT OF TWO EQUALLY AVAILABLE INTERPRETATIONS OF TURNER'S REMARK.
 
    I HAVE ENCOUNTERED NO CASE WHICH CLEARLY SUPPORTS THE PROPOSITION
 THAT A RESPONDENT WHICH HAS MADE AN AMBIGUOUS STATEMENT HAS A DUTY TO
 COME FORWARD WITH SUCH EXPLANATION AS WILL REMOVE THE UNLAWFUL THRUST OF
 ITS WORDS.  IN THE PRIVATE SECTOR, WHERE MANAGEMENT'S RIGHT TO EXPRESS
 IT "VIEWS, ARGUMENT OR OPINION" MAY BE QUITE DIFFERENT FROM THAT
 OBTAINING UNDER THIS STATUTE, THE FACT THAT A STATEMENT IS AMBIGUOUS AND
 HENCE CAPABLE OF AN INNOCENT INTERPRETATION, IS ALONE SUFFICIENT REASON
 TO FIND NO VIOLATION IN THE ABSENCE OF A CONTEXT WHICH BUTTRESSES THE
 COERCIVE INTERPRETATION.  /3/ HERE, I AM FRANKLY CONCERNED ABOUT THE
 CONSEQUENCES WHICH SHOULD ARISE FROM THE FACT THAT THE STEWARD CLEARLY
 COMMUNICATED TO MANAGEMENT THE FACT THAT SHE RECEIVED THE REMARK AS
 UNLAWFUL.  QUERY WHETHER THIS SHOULD NOT PLACE THE BURDEN ON
 MANAGEMENT'S SPOKESMAN TO CLEAR UP THE CONFUSION BY OFFERING A
 PERMISSIBLE EXPLANATION OF HIS WORDS, IF IN FACT HE HARBORED ONE.
 
    I CONCLUDE THAT, WHILE AN AMBIGUOUS STATEMENT, STANDING ALONE, IS NOT
 ACTIONABLE, BECAUSE THE EVIDENCE WOULD NOT PREPONDERATE IN FAVOR OF A
 FINDING OF VIOLATION, SUCH AMBIGUITY IS REMOVED AND THE LATENT THREAT IS
 MADE EXPLICIT UPON A FAILURE TO DISPEL THE UNLAWFUL INFERENCE DRAWN AND
 NOTED BY THE LISTENER.  I AM TEMPTED TO APPLY SUCH REASONING TO THE
 FACTS OF THIS CASE, BUT FEEL CONSTRAINED NOT TO DO SO BECAUSE I AM
 PERSUADED BY EDWARDS' TESTIMONY THAT TURNER GAVE A NEGATIVE RESPONSE TO
 SPARKOWICH'S REPHRASING OF HIS STATEMENT.  WHILE NOT AT ALL SURE THAT
 TURNER DENIED SPARKOWICH'S READING OF THE STATEMENT I FIND HE MADE, AS
 OPPOSED TO DENYING A MORE BLATANTLY COERCIVE INTERPRETATION OFFERED BY
 SPARKOWICH, IT IS CLEAR THAT HE AT LEAST DENIED THE INTERPRETATION SHE
 GAVE HIS WORDS.  WE ARE THUS LEFT, AT MOST, WITH THE REMARK HE MADE,
 UNACCOMPANIED BY THE KIND OF READILY AVAILABLE EXPLANATION WHICH WOULD
 HAVE RENDERED IT UNQUESTIONABLY LAWFUL.  GIVEN THE ABSENCE OF A CONTEXT
 OF UNFAIR LABOR PRACTICES OR EXPRESSIONS OF ANTI-UNION ANIMUS, A FINDING
 THAT THE STATEMENT WAS COERCIVE WOULD, IN MY VIEW, SHIFT THE BURDEN FROM
 THE GENERAL COUNSEL TO RESPONDENT.  I THEREFORE RECOMMEND THAT THE
 COMPLAINT BE DISMISSED.
 
                                   ORDER
 
    HAVING CONCLUDED THAT THE GENERAL COUNSEL HAS NOT SUSTAINED HIS
 BURDEN OF PROVING, BY A PREPONDERANCE OF THE EVIDENCE, THAT A VIOLATION
 HAS OCCURRED, I RECOMMEND THAT THE COMPLAINT BE DISMISSED IN ITS
 ENTIRETY.
 
                              JOHN H. FENTON
 
                      CHIEF ADMINISTRATIVE LAW JUDGE
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
 
    /1/ THE GENERAL COUNSEL EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE
 BY THE JUDGE.  THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
 RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
 OBSERVING THE WITNESSES WHILE THEY TESTIFIED.  THE AUTHORITY HAS
 EXAMINED THE RECORD CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE
 JUDGE'S CREDIBILITY FINDINGS.
 
    /2/ I REJECT TURNER'S TESTIMONY THAT HE SAID THE PRESENCE OF THE
 UNION HAD NOT CHANGED HIS MIND.  SPARKOWICH TESTIFIED THAT TURNER MADE
 EXPLICIT REFERENCE TO THE UNION COMING OVER IN CORBIN'S BEHALF, AND THAT
 TURNER'S REFERENCE TO HIS ADAMANT STANCE WAS PREFACED BY A STATEMENT
 THAT HE DID NOT SUBMIT TO ARM-TWISTING BY THE UNION.  BECAUSE SHE MADE
 NO REFERENCE TO THE LATTER IN A MEMO PREPARED THREE DAYS LATER, AND
 BECAUSE EDWARDS, WHO CREDIBILITY IMPRESSED ME, DID NOT REMEMBER OR
 RECORD SUCH A STATEMENT, I FIND IT WAS NOT MADE.  EDWARDS LIKEWISE
 RECALLED NO EXPLICIT REFERENCE TO THE UNION, THOUGH HE CONCLUDED FROM
 THE CONTEST, AS I DO, THAT THE REFERENCE WAS OBVIOUSLY TO THE UNION.
 
    /3/ SEE, E.G,, BOMBER BAIT COMPANY, INC., 210 NLRB NO. 109;  86 LRRM
 1494;  WHERE THE STATEMENT MADE TO A UNION PROPONENT THAT HE WOULD NOT
 BENEFIT IF THE UNION CAME IN BECAUSE HE WOULD NOT BE THERE LONG ENOUGH
 WAS FOUND TO BE AMBIGUOUS, ISOLATED AND DE MINIMIS.  SEE ALSO MUNRO,
 CO., 217 NLRB NO. 165, 89 LRRM 1169;  WHERE STATEMENTS MADE TO ASSEMBLE
 EMPLOYEES THAT SIGNING UNION AUTHORIZATION CARDS COULD BE FATAL WERE, IN
 THE CIRCUMSTANCES, FOUND NONCOERCIVE REFERENCES TO THE POSSIBILITY THAT
 STRIKES FOR UNREASONABLE DEMANDS MIGHT CAUSE TROUBLES.