10:0267(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, MCGUI