13:0654(107)CA - Army Corps of Engineers, Kansas City District, Kansas City, MO and NFFE Local 29 -- 1984 FLRAdec CA

 13 FLRA No. 107
 
 U.S. ARMY CORPS OF ENGINEERS
 KANSAS CITY DISTRICT
 KANSAS CITY, MISSOURI
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 29
 Charging Party
 
                                            Case No. 7-CA-30246
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 General Counsel filed exceptions to the Judge's Decision, and an
 opposition was filed by the Respondent.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 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.  Upon consideration of the
 Judge's Decision and the entire record in this case, the Authority
 hereby adopts the Judge's findings, conclusions and recommendation
 dismissing the complaint.  /1/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 7-CA-30246 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., January 13, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    U.S. ARMY CORPS OF ENGINEERS
    KANSAS CITY DISTRICT
    KANSAS CITY, MISSOURI
                                Respondent
 
    and
 
    NATIONAL FEDERATION OF FEDERAL
    EMPLOYEES, LOCAL 29
                              Charging Party
 
                                       Case No. 7-CA-30246
 
    Darcy Hennessy, Esquire
    For the Respondent
 
    Nicholas J. LoBurgio, Esquire
    For the General Counsel
 
    Mr. Gary Divine
    For the Charging Party
 
    Before:  BURTON S. STERNBURG
    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.Section 7101, et seq. and the Rules and Regulations issued
 thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46,
 No. 154, August 11, 1981, 5 C.F.R.ChapterXIV, Part 2411, et seq.
 
    Pursuant to an amended charge first filed on February 28, 1983, by
 Local 29, National Federation of Federal Employees (hereinafter called
 NFFE or the Union), a Complaint and Notice of Hearing was issued on
 April 19, 1983, by the Acting Regional Director for Region VII, Federal
 Labor Relations Authority, Denver, Colorado.  The Complaint alleges that
 the U.S. Army Corps of Engineers, Kansas City District, Kansas City,
 Missouri (hereinafter called the Respondent or Corps of Engineers),
 violated Section 7116(a)(1) of the Federal Service Labor-Management
 Relations Statute (hereinafter called the Statute), by virtue of the
 actions of one of its supervisors in telling a unit employee that (1)
 she was disloyal for seeking the assistance of the Union, (2) that her
 position would not be converted to an upward mobility position because
 she sought the assistance of the Union, and (3) that if she could not
 complete her duty assignments in a timely manner due to her
 participation in collective bargaining negotiations she would be issued
 a disciplinary letter.
 
    A hearing was held in the captioned matter on May 19, 1983, in Kansas
 City, Missouri.  All parties were afforded the full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The General Counsel and the
 Respondent submitted post-hearing briefs which have been duly
 considered.
 
    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 recommendations.
 
                             Findings of Fact
 
    The Union is the exclusive representative of all non-supervisory GS
 and Wage Board employees, with certain limited exclusions, working in
 Respondent's Kansas City District.
 
    Ms. Sheri Lynn Williams had been employed in Respondent's EEO Office
 as a clerk typist from January 27, 1981 through April 25, 1983.  Since
 October 1982, Ms. Williams had been a Union Steward and a member of the
 Union's bargaining team.
 
    Prior to November 1982, she was under the supervision of Mr. Luther
 Smith, an EEO Specialist.  For the appraisal period ending January 10,
 1983, Mr. Smith rated Ms. Williams "highly successful".
 
    As the only clerk-typist in the EEO Office, Ms. Williams was
 responsible for doing the typing for all the components of the EEO
 Office.  Admittedly, during the times Ms. Williams was away from the
 office for Union or other activities the productivity of the EEO Office
 declined.
 
    In November of 1982, Mr. Elvin J. Gant, Jr. became Respondent's EEO
 Manager and by virtue of such position became Ms. Williams and Mr.
 Smith's supervisor.  Subsequently, in the latter part of November Mr.
 Gant held a meeting with Mr. Smith and Ms. Williams wherein he set forth
 his expectations for the role of the EEO Office and told Ms. Williams
 and Mr. Smith that they would have to assume more responsibilities
 within the EEO Office.  Additionally, Mr. Gant informed Ms. Williams and
 Mr. Smith that he intended to ask the Civilian Personnel Office to
 review their respective positions for possible upgrade.  He also
 indicated that he was of the opinion that Ms. Williams' position was
 eligible for upgrade under the "upward mobility" program.
 
    According to Ms. Williams, in late December 1982, Mr. Gant visited
 the Respondent's District Office in Dallas, Texas, and discovered that
 his counter part in the EEO Office in Dallas had successfully advanced
 his GS-3 clerk-typist to the position of EEO Assistant through "upward
 mobility".  Mr. Gant requested and received from the Dallas EEO Manager
 copies of the training materials and paperwork utilized in the promotion
 of his GS-3 typist and brought such materials back to Kansas City.  Upon
 his return from Dallas, Texas, Mr. Gant informed Ms. Williams and Mr.
 Smith that he had obtained the "upward mobility" data utilized in the
 Dallas District Office.
 
    Around the 15th of December 1982, the Union and the Respondent
 reached agreement on the ground rules for the up and coming mid-term
 bargaining negotiations.  According to the uncontroverted testimony of
 Ms. Williams, the ground rules provided that the parties would meet 3
 days per week for negotiations for approximately 4 hours per day, namely
 9:00 a.m. until 11:00 a.m. and 1:00 p.m. to 3:00 p.m.  Ms. Williams
 subsequently advised Mr. Gant of the agreement and the fact, that as
 part of the Union negotiating team, she would be absent from the EEO
 office for a period of approximately 4 hours, 3 days per week, following
 commencement of negotiations on January 17, 1983.
 
    On the morning of January 10, 1983, according to Ms. Williams, she
 had a conversation with Mr. Gant wherein Mr. Gant informed her that due
 to the fact that she would be spending a lot of time away from the
 office participating in the forthcoming bargaining negotiations he
 intended to cut her hours to 32 per week.  Whereupon, Ms. Williams
 replied that he could not do it because he "would be taking 16 hours
 away a pay period, from my pay." After Mr. Gant replied "that he was not
 aware of that," Ms. Williams left the office to see Union Steward
 Foxworth, for purposes of informing him, Mr. Foxworth, of Mr. Gant's
 intentions.  Mr. Foxworth suggested that Ms. Williams see Dianne Carney,
 the Union's Chief Steward, which she did.
 
    Mr. Gant admits having a discussion with Ms. Williams wherein he
 asked her to get a standard form 52 so that he "could go ahead and
 initiate an action to get a 32 hour person in the office." However,
 according to Mr. Gant, it was his intention to hire a part time
 temporary person for 32 hours per week for the period during which Ms.
 Williams would be involved in the collective bargaining negotiations.
 Further, according to Mr. Gant, he had no intention of cutting back on