RSS Feeds10:0267(51)CA - NASA, Lewis Research Center, Cleveland, OH and Lewis Engineers and Scientists Association, IFPTE Local 28 -- 1982 FLRAdec CA
[ v10 p267 ]
10:0267(51)CA
The decision of the Authority follows:
10 FLRA No. 51
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION,
LEWIS RESEARCH CENTER,
CLEVELAND, OHIO
Respondent
and
LEWIS ENGINEERS AND SCIENTISTS
ASSOCIATION, INTERNATIONAL
FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, LOCAL 28
Charging Party
Case No. 5-CA-935
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS. THE JUDGE FURTHER FOUND THAT THE RESPONDENT HAD
NOT ENGAGED IN CERTAIN OTHER ALLEGED UNFAIR LABOR PRACTICES AND
RECOMMENDED DISMISSING THE COMPLAINT WITH RESPECT TO THEM. EXCEPTIONS
TO THE JUDGE'S DECISION WERE FILED BY THE RESPONDENT AND THE GENERAL
COUNSEL. THE RESPONDENT ALSO FILED AN OPPOSITION TO THE GENERAL
COUNSEL'S EXCEPTIONS.
AMONG THE ALLEGATIONS CONTAINED IN THE COMPLAINT IS ONE THAT
SUPERVISOR JACK SHINN INTERROGATED EMPLOYEE JOANN MCGUIRE CONCERNING
UNION MEMBERSHIP AND ONE THAT SHINN WARNED MCGUIRE TO BE CAREFUL ABOUT
WHAT SHE SAID TO UNION REPRESENTATIVE JUNE SZUCS. THE GENERAL COUNSEL
CONTENDS THAT THESE ALLEGED ACTIONS VIOLATED SECTION 7116(A)(1) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
TESTIMONY OF THE TWO WITNESSES INVOLVED (SHINN AND MCGUIRE) CONFLICTED
AS TO RELEVANT FACTS. SPECIFICALLY, MCGUIRE TESTIFIED THAT SHINN ASKED
HER ABOUT HER UNION MEMBERSHIP AND WARNED HER TO BE CAREFUL ABOUT WHAT
SHE SAID TO SZUCS IN ONE CONVERSATION AND THAT THEY (MCGUIRE AND SHINN)
DISCUSSED MATTERS PERTAINING TO HER JOB DESCRIPTION AND GRADE IN A
SECOND CONVERSATION LATER THE SAME DAY. SHINN RECALLED ONLY ONE
CONVERSATION IN WHICH HE AND MCGUIRE DISCUSSED A PROMOTION FOR MCGUIRE.
SHINN DENIED ASKING MCGUIRE "AT THAT OR ANY OTHER TIME" WHETHER SHE WAS
A UNION MEMBER OR WARNING HER "AT THAT OR ANY OTHER TIME" TO BE CAREFUL
ABOUT WHAT SHE SAID TO SZUCS.
ALTHOUGH THE JUDGE CREDITED SHINN'S TESTIMONY WITH REGARD TO TELLING
MCGUIRE THAT SHE SHOULD TAKE HER PROBLEM REGARDING THE PROMOTION TO THE
PERSONNEL COORDINATOR OR UNION REPRESENTATIVE, WHOM HE IDENTIFIED AS
SZUCS, THE JUDGE MADE NO SPECIFIC FINDINGS ON SUCH CRITICAL FACTUAL
QUESTIONS AS TO THE NUMBER OF CONVERSATIONS WHICH OCCURRED ON THAT DATE,
WHETHER SHINN ASKED MCGUIRE ABOUT HER UNION MEMBERSHIP, AND WHETHER
SHINN WARNED MCGUIRE TO BE CAREFUL ABOUT WHAT SHE SAID TO SZUCS. THE
AUTHORITY CONCLUDES THAT IT CANNOT RESOLVE ALLEGATIONS OF THIS COMPLAINT
WITHOUT HAVING THESE QUESTIONS ANSWERED.
ACCORDINGLY, THIS CASE IS REMANDED TO THE JUDGE TO MAKE THE
CREDIBILITY DETERMINATIONS NECESSARY TO ESTABLISH THE FACTS RELATING TO
THE ALLEGATIONS THAT SHINN INTERROGATED MCGUIRE ABOUT HER UNION
MEMBERSHIP AND WARNED HER TO BE CAREFUL ABOUT WHAT SHE SAID TO SZUCS.
ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
JUDITH RAMEY, ESQ.
FOR THE GENERAL COUNSEL
ROBERT E. FREED, ESQ.
FOR THE CHARGING PARTY
BEFORE: ELI NASH, JR.
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. (HEREINAFTER REFERRED TO AS THE STATUTE) AND THE RULES AND
REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY, 5 C.F.R. CHAPTER
XIV, SEC. 2410 ET SEQ.
PURSUANT TO A CHARGE FILED ON FEBRUARY 11, 1981 AND AMENDED ON MARCH
9, 1981, THE REGIONAL DIRECTOR FOR REGION 5 ISSUED A COMPLAINT AND
NOTICE OF HEARING ON MARCH 31, 1981 ALLEGING THAT THE NATIONAL
AERONAUTICS AND SPACE ADMINISTRATION, LEWIS RESEARCH CENTER, CLEVELAND,
OHIO, HEREINAFTER CALLED THE "RESPONDENT" VIOLATED SECTION 7116(A)(1) OF
THE STATUTE BY ALLEGEDLY INTERROGATING AN EMPLOYEE CONCERNING WHETHER
SHE WAS A MEMBER OF LEWIS ENGINEERS AND SCIENTISTS ASSOCIATION,
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL
28, HEREINAFTER CALLED THE "UNION", AND WARNING HER TO BE CAREFUL ABOUT
WHAT SHE SAID TO THE DEPARTMENTAL UNION REPRESENTATIVE, AND BY
THREATENING TO CHARGE EMPLOYEES WITH INSUBORDINATION IF THEY WENT OVER
HIS HEAD BY FILING A GRIEVANCE WITH THE UNION.
A HEARING IN THIS MATTER WAS CONDUCTED BEFORE THE UNDERSIGNED IN
CLEVELAND, OHIO. ALL PARTIES WERE REPRESENTED BY COUNSEL AND WERE
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE
WITNESSES, TO INTRODUCE EVIDENCE AND TO ARGUE ORALLY. ALSO ALL PARTIES
FILED TIMELY BRIEFS.
BASED UPON THE ENTIRE RECORD IN THIS MATTER, INCLUDING MY OBSERVATION
OF THE WITNESSES AND THEIR DEMEANOR, AND UPON MY EVALUATION OF THE
EVIDENCE, I MAKE THE FOLLOWING:
FINDINGS OF FACT
THE RESPONDENT AND UNION ARE PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT WHICH WAS EFFECTIVE MAY 22, 1980.
SINCE AROUND THE END OF JULY 1980, MR. JACK SHINN HAS BEEN THE
SUPERVISOR OR HEAD OF THE EQUIPMENT AND CONSTRUCTION SECTION IN THE
RESEARCH SUPPORT BRANCH IN THE ACQUISITION DIVISION AT THE ACTIVITY. IN
THAT CAPACITY, MR. SHINN SUPERVISES EIGHT CONTRACT SPECIALISTS AND FOUR
ADMINISTRATIVE PERSONNEL. THE ADMINISTRATIVE PERSONNEL INCLUDED THREE
PROCUREMENT CLERKS, JOANN MCGUIRE, DOROTHY GOEBEL AND JUNE SZUCS, ALL
GS-4'S AND DEBBIE VOLAN, A CLERK-TYPIST. THESE EMPLOYEES ARE MEMBERS OF
THE BARGAINING UNIT REPRESENTED BY THE UNION. MISS SZUCS IS AN
ALTERNATE UNION REPRESENTATIVE AND HAS SERVED IN THAT CAPACITY FOR
APPROXIMATELY THREE YEARS.
THE CONVERSATIONS OF AUGUST 15, 1980
MS. JOANN MCGUIRE TESTIFIED THAT, AROUND AUGUST 15, 1980, SHE HAD
GONE INTO MR. SHINN'S OFFICE TO ASK HIM SOMETHING REGARDING WORK AND
DURING THE COURSE OF THE CONVERSATION SHINN ALLEGEDLY ASKED HER, IF SHE
WAS A UNION MEMBER. MS. MCGUIRE TESTIFIED THAT SHE RESPONDED, NO.
SHINN THEN SAID, "BE CAREFUL OF SZUCS." MCGUIRE TESTIFIED THAT SHE WAS
FLABERGASTED BECAUSE THE QUESTION WAS OUT OF CONTEXT AND THAT SHINN GAVE
HER NO REASON FOR ASKING HER THIS QUESTION.
MCGUIRE ALSO TESTIFIED TO A SECOND CONVERSATION, ON THAT SAME DAY, IN
WHICH SHE TALKED TO SHINN CONCERNING HER JOB DESCRIPTION AND GRADE. SHE
INFORMED SHINN THAT SHE WAS GOING TO REQUEST A DESK AUDIT.
SHINN RECALLS ONLY ONE CONVERSATION ON AUGUST 15, WHEN MCGUIRE CAME
INTO HIS OFFICE TO TALK ABOUT A PROMOTION. HE STATED THAT, DURING THE
COURSE OF THE CONVERSATION HE ADVISED HER THAT SHE "COULD TAKE THE
MATTER UP WITH THE PERSONNEL COORDINATOR OR HER UNION REPRESENTATIVE."
AFTER THE ABOVE CONVERSATION OR CONVERSATIONS MS. MCGUIRE JOINED THE
UNION AND FILED SEVERAL GRIEVANCES. HOWEVER, THE EVIDENCE DID NOT
ESTABLISH ANY CONNECTION BETWEEN THOSE GRIEVANCES AND A CONVERSATION
WHICH OCCURRED IN JANUARY OF 1981 IN WHICH FURTHER STATEMENTS VIOLATING
THE STATUTE WERE ALLEGEDLY MADE.
THE JANUARY 28, 1981 CONVERSATION
ABOUT JANUARY 28, 1981 SHINN TALKED WITH THE ADMINISTRATIVE PERSONNEL
EMPLOYEES, GOEBEL, SZUCS, AND MCGUIRE IN THEIR WORK AREA. ACCORDING TO
MCGUIRE, SHINN BEGAN THE CONVERSATION BY TALKING ABOUT A MEETING HE HAD
JUST ATTENDED, AND MENTIONING A LETTER WHICH HAD BEEN DRAFTED BY SZUCS
REQUESTING MORE OFFICE SPACE FOR THE ADMINISTRATIVE PERSONNEL. THAT
LETTER WAS ADDRESSED TO SHINN, AS SECTION HEAD, TO THE BRANCH CHIEF, MR.
BOLANDER AND TO THE DIVISION CHIEF, MR. SAGGIO. THE LETTER ALTHOUGH
PREPARED BY SZUCS, WAS ACCORDING TO HER, PREPARED AS A PERSONAL ITEM
RATHER THAN IN HER CAPACITY AS A UNION REPRESENTATIVE.
ACCORDING TO MCGUIRE, AS SHINN SAT DOWN HE SAID, "I HAVE ENOUGH
TROUBLE WITH THE UNION." HE ALSO MENTIONED THAT THEY WERE GOING TO GET
THE NEW OFFICE SPACE. MCGUIRE STATES FURTHER THAT SHINN SAID THAT MR.
SAGGIO, THE DIVISION CHIEF HAD HEARD THAT, "YOU GIRLS HAVE BEEN
COMPLAINING, AND HE CONSIDERS THAT ON THE VERGE OF INSUBORDINATION, AND,
IF YOU GO TO YOUR (U)NION, I WILL DENY IT."
MS. MCGUIRE ALSO STATES THAT SHE THEN ASKED SHINN IF SHE UNDERSTOOD
HIM "CORRECTLY THAT COMPLAINING COULD BE CONSTRUED AS INSUBORDINATION."
SHINN ALLEGEDLY REPLIED THAT SHE "WAS PUTTING WORDS IN HIS MOUTH; THAT
THAT WAS NOT WHAT HE HAD SAID." SHINN THEN ALLEGEDLY STATED, "IF YOU PUT
ME ON THE SPOT AGAIN, IF YOU GO GO YOUR UNION AND PUT ME ON THE SPOT
AGAIN, I'LL DENY IT." SHE THEN STATED, "JACK, IS THAT A THREAT?"
DURING THE COURSE OF THE CONVERSATION ACCORDING TO MCGUIRE, GOEBEL
SAID, "WELL MAYBE HE MEANS ALL OF US." MCGUIRE ASKED GOEBEL "HAVE YOU
GONE TO THE UNION?" GOEBEL RESPONDED, NO. MCGUIRE SAID, "WELL, I HAVE."
THE CONVERSATION ENDED WHEN MCGUIRE LEFT FOR LUNCH.
MCGUIRE ALSO TESTIFIED THAT SHE FELT THREATENED IN HER "RIGHT TO
COMPLAIN ON ANYTHING I WANTED TO COMPLAIN ON."
MS. GOEBEL RECALLED THE CONVERSATION OCCURRED AS FOLLOWS. SHINN
ENTERED THE ROOM AND STATED THAT, "US GIRLS WERE ON THE VERGE OF BEING
CHARGED WITH INSUBORDINATION." ACCORDING TO GOEBEL, SHE ASKED SHINN,
"YOU MEAN JUST US GIRLS, JACK?" HE REPLIED, "THAT'S CORRECT". HIS
COMMENT ACCORDING TO GOEBEL EXCLUDED THE BUYERS. GOEBEL ALSO RECALLS
THAT SHINN STATED "AND, JOANN, DON'T GO TO YOUR UNION, BECAUSE IF YOU
DO, I'LL DENY IT."
MS. SZUCS WHO WAS THE UNION REPRESENTATIVE WHO PREPARED THE
MEMORANDUM REQUESTING ADDITIONAL OFFICE SPACE TESTIFIED RELUCTANTLY WITH
RESPECT TO THE JANUARY 28 CONVERSATION. SHE RECALLS THAT SHE HAD
EARLIER TALKED WITH SHINN AND INDICATED THAT THE ADMINISTRATIVE
PERSONNEL WERE GOING TO SUBMIT A MEMO TO HIM THROUGH CHANNELS, BUT SINCE
THERE WAS SO MUCH CONFUSION, THEY HAD DECIDED, "WE WOULD JUST TABLE IT
FOR A WHILE."
SZUCS RECALLED THAT THE CONVERSATION OF JANUARY 28, 1981 WAS AN ANGRY
DISCUSSION THAT GOT OUT OF HAND AS FAR AS SHE WAS CONCERNED. SHE
TESTIFIED THAT SHINN WAS ANGRY, AND HE JUST PLAIN SAID DIFFERENT KINDS
OF ABSTRACT STATEMENTS ABOUT THERE BEING TOO MUCH COMPLAINING IN OUR
OFFICE. SHE FURTHER TESTIFIED THAT HE MADE WILD TYPE STATEMENTS SUCH AS
"WE CAN DISCUSS THIS WITH OUR UNION IF WE WANT TO . . . "
SHINN GAVE THE FOLLOWING VERSION OF THE CONVERSATION. AFTER LEAVING
A MEETING WITH HIS IMMEDIATE SUPERVISOR, MR. BOLANDER HE ENTERED THE
EMPLOYEE WORK AREA AND OPENED DISCUSSION BY TELLING THE THREE EMPLOYEES
TO TAKE AN INVENTORY WHICH WAS DESIGNED TO IMPROVE WORKING CONDITIONS IN
THE ROOM. HE FURTHER TOLD THE ADMINISTRATIVE PERSONNEL THAT THIS
INVENTORY WAS GOING TO HIGHER MANAGEMENT. ACCORDING TO SHINN, HE THEN
INFORMED ALL THREE EMPLOYEES THAT THEY SHOULD COME TO HIM, THEIR
IMMEDIATE SUPERVISOR CONCERNING ANY PROBLEMS OR CONDITIONS, WORKING
CONDITIONS THERE WITHIN THE SECTION, AND THAT HE IN TURN, IF HE COULD
NOT RESOLVE THE MATTER AT THAT LEVEL, HE WOULD TAKE IT TO HIS IMMEDIATE
SUPERVISOR FOR RESOLUTION. SHINN STATED THAT, WHAT HE TOLD THE
EMPLOYEES WAS JUST FOR GENERAL INFORMATION AND "(W)AS NOT TO BE
CONSIDERED AS A THREAT OR INTIMIDATION OR CONDITION FOR A GRIEVANCE WITH
THE LESA UNION."
SHINN ALSO TESTIFIED THAT HE ADVISED THE ADMINISTRATIVE PERSONNEL
THAT, "BY GOING OVER THEIR IMMEDIATE SUPERVISOR'S HEAD, IT COULD BE
CONSTRUED AS A FORM OF INSUBORDINATION." ACCORDING TO SHINN, MCGUIRE
BECAME SOMEWHAT EMOTIONAL AND DIRECTLY ASKED HIM WHETHER HIS REMARK WAS
A THREAT TO HER. SHINN STATES THAT MCGUIRE LEFT THE ROOM AND HE WAS
LATER INFORMED BY GOEBEL THAT MCGUIRE WAS UPSET BECAUSE OF AN EYE
OPERATION TO BE PERFORMED ON HER MOTHER THAT PARTICULAR DAY. MR. SHINN
DENIES SAYING THAT IF THE EMPLOYEES REPORTED THIS CONVERSATION TO THE
UNION HE WOULD DENY IT.
MR. BOLANDER, THE BRANCH CHIEF TESTIFIED THAT BOTH HE AND SHINN HAD
MET WITH THE DIVISION CHIEF MR. SAGGIO CONCERNING MANY PROBLEMS THAT MS.
SZUCS WAS HAVING, PARTICULARILY WITH HER HEALTH. SAGGIO INSTRUCTED THEM
TO CORRECT WHATEVER PERSONNEL PROBLEMS THERE WERE AT THEIR LEVEL, RATHER
THAN TO NECESSITATE HIS BECOMING INVOLVED IN THEIR RESOLUTION, BECAUSE
IT WAS THEIR RESPONSIBILITY TO DO SO. MR. BOLANDER ALSO TALKED TO SHINN
AND REQUESTED THAT HE TRY TO RESOLVE ALL MATTERS AT HIS LEVEL BEFORE
COMING TO HIM OR GOING TO HIGHER MANAGEMENT.
THERE IS NO QUESTION THAT BOLANDER MET WITH SHINN ON JANUARY 28,
PRIOR TO THE CONVERSATION WITH THE THREE ADMINISTRATIVE EMPLOYEES AND
ASKED HIM TO GET PROBLEMS RESOLVED IN HIS AREA, AT HIS LEVEL, PRIOR TO
HAVING ANY PROBLEMS GO TO BOLANDER OR TO MR. SAGGIO. BOLANDER ALSO
TESTIFIED THAT HE INFORMED SHINN AT THAT TIME THAT THERE WERE LETTERS
GOING AROUND SHINN AND HIMSELF TO MR. SAGGIO AND TO MR. ZIMMERMAN,
ANOTHER HIGH LEVEL MANAGEMENT SUPERVISOR, AND THAT THESE LETTERS COULD
BE CONSIDERED A FORM OF INSUBORDINATION.
DISCUSSION AND CONCLUSIONS
WITH RESPECT TO THE AUGUST 15, 1980 CONVERSATION, I CREDIT SHINN THAT
HE TOLD MCGUIRE THAT SHE COULD TAKE HER PROBLEM REGARDING THE PROMOTION
TO THE PERSONNEL COORDINATOR OR UNION REPRESENTATIVE WHO HE IDENTIFIED
AS MISS SZUCS. CLEARLY, DURING THAT DAY, MCGUIRE DID DISCUSS PROMOTION
POTENTIAL WITH SHINN AND HE WAS NOT RECEPTIVE TO HER IDEA THAT SHE
SHOULD RECEIVE A PROMOTION. IT IS ALSO ENTIRELY CONCEIVABLE THAT DURING
THIS DISCUSSION THE NAME OF THE DIVISION'S UNION REPRESENTATIVE COULD
HAVE BEEN MENTIONED. MOREOVER, IN VIEW OF THE RECORD EVIDENCE OF MISS
SZUCS' PERSONAL AND PERSONNEL PROBLEMS IT IS ALSO NOT UNREASONABLE THAT
SHINN WOULD HAVE WARNED MCGUIRE TO BE CAREFUL ABOUT WHAT SHE SAID TO
SZUCS. I REJECT THE GENERAL COUNSEL'S THEORY THAT SHINN'S REMARKS WERE
THREATENING AND THAT MCGUIRE FELT COMPELLED TO JOIN THE UNION ON THE DAY
OF THE CONVERSATION BECAUSE SHE FELT SHE NEEDED PROTECTION. IT IS CLEAR
FROM THE RECORD THAT MCGUIRE WAS INTERESTED IN OBTAINING A PROMOTION TO
GS-5 AND CONCEIVABLY PURSUANT TO SHINN'S SUGGESTION, COULD HAVE JOINED
THE UNION TO SEEK BENEFITS FROM ITS ASSISTANCE RATHER THAN PROTECTION.
IN VIEW OF THE TOTAL CIRCUMSTANCES SURROUNDING THE AUGUST 15, 1980
CONVERSATION, I FIND THAT THE GEN