16:0631(93)CA - DOD, Army and Air Force Exchange Service, Fort Eustis Exchange, Fort Eustis, Virginia and NAGE Local R4-114 -- 1984 FLRAdec CA



[ v16 p631 ]
16:0631(93)CA
The decision of the Authority follows:


 16 FLRA No. 93
 
 DEPARTMENT OF DEFENSE
 ARMY AND AIR FORCE EXCHANGE SERVICE
 FORT EUSTIS EXCHANGE
 FORT EUSTIS, VIRGINIA
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R4-114
 Charging Party
 
                                            Case No. 4-CA-30433
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in certain unfair labor practices under section 7116(a)(1) and (2) of
 the Federal Service Labor-Management Relations Statute (the Statute),
 and recommending that the complaint be dismissed in its entirety.
 Thereafter, the General Counsel filed exceptions to the Judge's
 Decision.  /1/
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of 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, the Authority hereby adopts the
 Judge's findings, conclusions and recommendation.
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 4-CA-30433 be,
 and it hereby is, dismissed.  Issued, Washington, D.C., November 30,
 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -----------------
 
 OWS ---
    ARMY AND AIR FORCE EXCHANGE SERVICE
    FORT EUSTIS EXCHANGE
    FORT EUSTIS, VIRGINIA
                                Respondent
 
    and
 
    NATIONAL ASSOCIATION OF GOVERNMENT
    EMPLOYEES, LOCAL R4-114
                              Charging Party
 
                                       Case No.: 4-CA-30433
 
    Luther G. Jones, III, Esq.
    For the Respondent
 
    George L. Reaves, Jr.
    For the Charging Party
 
    Regina N. Kane, Esq.
    For the General Counsel
 
    Before:  FRANCIS E. DOWD
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
 U.S.C. 7101, et seq.  It was instituted by the Regional Director of the
 Fourth Region of the Federal Labor Relations Authority by the issuance
 of a complaint and notice of hearing dated August 30, 1983.  The
 complaint was issued following an investigation of an unfair labor
 practice charge filed on May 23, 1983, and an amended charge filed on
 August 3, by National Association of Government Employees, Local R4-114,
 herein the Union, NAGE or Charging Party.  The complaint alleges that
 Department of Defense, Army and Air Force Exchange Service, Fort Eustis
 Exchange, Fort Eustis, Virginia, herein the Respondent, violated section
 7116(a)(1) and (2) of the Statute by requiring Union President Susan
 Moody to sign a revised AAFES Standards of Conduct Review Certificate
 Form 1100-30 and orally reprimanding her for failing to sign the form.
 The complaint alleges that the Respondent's conduct was motivated by
 Moody's activities in and on behalf of the Union.  Respondent denies any
 violations and asserts that the General Counsel has not proven a prima
 facie case and, in any event, Moody would have been disciplined for
 insubordination and even in the absence of her alleged protected
 activity.
 
    A hearing was held in Norfolk, Virginia at which the parties were
 represented by counsel and afforded full opportunity to adduce evidence
 and call, examine, and cross-examine witnesses and argue orally.  Briefs
 were filed by the General Counsel and Respondent.  In addition
 Respondent moved to file an amended brief.  The General Counsel filed no
 response to the motion, which is hereby granted.
 
    Upon consideration of the entire record in this case, including my
 evaluation of the testimony and evidence presented at the hearing, and
 from my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions of law, and recommended order.
 
                             Findings of Fact
 
    1.  The Department of Defense has been and is now an agency within
 the meaning of section 7103(a)(3) of the Statute.  Army and Air Force
 Exchange Service, and Fort Eustis Exchange, Fort Eustis, Virginia, have
 been and are now activities of the Department of Defense within the
 meaning of section 2421.4 of the Rules and Regulations of the Authority.
 
    2.  At all times material herein, the following named persons
 occupied the positions set forth opposite their respective names and
 have been and/or are now supervisors or management officials within the
 meaning of section 7103(a)(10) and (11) of the Statute, and/or agents of
 Respondent:
 
    Joel R. Sontag
 
    General Manager
 
    Tidewater Area Exchange
 
    Langley Air Force Base, Virginia
 
    Robert Campbell
 
    Exchange Manager
 
    Fort Eustis Exchange
 
    Fort Eustis, Virginia
 
    David E. Ellison
 
    Director, Personnel
 
    Headquarters, AAFES
 
    Robert Stiles
 
    Food Manager
 
    Fort Eustis Exchange
 
    3.  The National Association of Government Employees, herein called
 NAGE National, has been and remains the exclusive representative of
 certain employees of the Army and Air Force Exchange Service in a
 consolidated unit as set forth and described in a collective bargaining
 agreement between NAGE National and the Army and Air Force Exchange
 Service which is effective by its terms until at least on or about
 October 26, 1985.  The unit herein is as set forth and described in the
 collective bargaining agreement described above (See G.C. Exh. 1.D.
 (para. 5b).  The Union has been and is now an administrative subdivision
 of NAGE National and responsible for administration of the collective
 bargaining agreement described above for employees in the unit described
 in paragraph 5(b) of the complaint, at Respondent's Ft. Eustis, Virginia
 Facility.  The Union has been and is now a labor organization within the
 meaning of section 7103(a)(4) of the Statute.
 
    4.  Employees of Respondent are required twice a year to sign a
 Standards of Conduct Review Certificate (G.C. Exh. No. 2).  The same
 form may be used year after year as there is room on the front page to
 "reaffirm" each time it is signed and dated.  The reverse side of the
 form contains a list of basic rules of conduct, rules concerning
 gratuities and general prohibited practices.  Of course, when a copy of
 the form is made, there are two sheets of paper, one being a copy of the
 front of the form and one being the reverse side of the form.  In August
 of 1982, the form was slightly revised (G.C. Exh. No. 3).  It still
 consisted of one page with printing on each side but there were two
 copies;  the original was colored white and the carbon was colored
 yellow.  The new form contained one new prohibited practice (#10) and a
 requirement to report arrests and indictments (#11).
 
    5.  The events of April 6.
 
    a.  On April 6, Food Manager Robert Stiles asked Union steward Janice
 Harrell to update her Standards of Conduct Review Certificate.  She
 recognized immediately that the form was a new one and told Stiles she
 preferred to sign her old form.  Stiles promptly walked over to the file
 cabinet, obtained her counseling folder and gave her the old form, which
 she signed.  In response to a leading question by the General Counsel,
 Harrell stated that Stiles did not appear "upset" when she signed the
 old form.
 
    b.  Also on April 6, Stiles approached Lillian Wright, a steward and
 Secretary-Treasurer of the Union.  He asked her to sign her Standards of
 Conduct review Certificate.  The form proffered her was the old form.
 
    c.  Based upon the testimony of Harrell and Wright, I conclude that
 Stiles did not discern any significant difference between the old and
 the new form, that he didn't care which ones were signed, and he made no
 special effort to insist on one or the other being signed.
 
    6.  The events of April 7.
 
    a.  On April 7, Stiles asked Supervisor Clara Carter to request the
 employees under her supervision to sign their Standards of Conduct
 Review Certificates.  He did not specify which form should be signed.
 Carter testified that she gave each of these employees the old form from
 their personnel file.  The following employees signed:  Veda Hunter, Kim
 Brown, Doris Nazareth and Alma Jones.  /2/ According to Carter, Susan
 Moody failed to sign her old form.  /3/ As to the reason for this
 refusal to sign the old form, I accept the credited version of Stiles
 who said he inquired of Carter whether she had collected all the
 necessary signatures and was informed that Moody refused until some
 outdated annotations were removed from her counseling cards.  /4/ It
 seems to me that only this type of reason would cause Stiles to conclude
 that there was a "problem".
 
    b.  After being informed by Carter that Moody was refusing to sign
 the certificate, Stiles apparently arranged to meet with Carter and
 Moody.  Somewhere or other-- the testimony is conflicting-- they all
 wound up seated at the same table.  /5/ Although Moody had in front of
 her the personnel folder containing her old form, which she had signed
 in previous years, she had not yet signed the old form.  There is also a
 conflict of testimony as to the order in which words were spoken and
 actions taken by those present.  Somehow or other, a copy of the newly
 revised form appeared on the table.  The person who put the new form
 there was Stiles.  His explanation, is that he noticed Moody's old form
 did not have a copy of the reverse side so he went and got it in order
 to be helpful.  Although I am puzzled by this explanation, it is not
 unreasonable and I accept it.  A more plausible explanation, however, is
 that it was at this point in the meeting when Moody refused to sign
 because it was a xerox copy.  Logically this would have to have occurred
 prior to being presented with a new form.  G.C. Exhibit No. 7 and the
 testimony of Campbell (Tr. 82) clearly indicate that a refusal, because
 it was a xerox copy, occurred.  It seems to me that this objection by
 Moody best explains why Stiles-- without having been asked-- went to his
 office and got the new form so that Moody could read what was on the
 back.  Certainly, the difference between the two forms was insignificant
 and, as we have already seen, Stiles treated the two forms alike in his
 dealings with other employees.  Accordingly, I can readily understand
 why he would pick up a copy of the new form rather than look for an
 original copy of the superceded old form.  /6/ Logically, it also seems
 that it must have been somewhere at the beginning of this meeting that
 Stiles told Moody outdated notations of her counseling card had nothing
 to do with whether she should sign her Standards of Conduct Review
 Certificate.  According to Stiles, she seemed to accept what he said.
 
    c.  With respect to the remainder of this meeting there are numerous
 conflicts in the testimony.  Both Stiles and Moody agree that Carter was
 there throughout the entire meeting which, based upon Stiles' testimony,
 I find lasted about 15 minutes.  Carter said she was only there for
 about five minutes and her recollection was somewhat limited.  My
 impression at the hearing, based upon my observation of her demeanor
 while giving testimony, was that Carter was withholding information as
 to exactly what was said at this meeting and her "excuse" for having a
 limited recollection was that she was "in and out" of the meeting.  As a
 result, Carter's testimony was almost valueless in terms of reconciling
 the conflict between the differing versions given by Stiles and Moody.
 Accordingly, the account that follows is primarily based upon the
 credited testimony of Stiles whose version was the most plausible
 explanation of what happened.
 
    d.  When Moody saw the new form she immediately recognized that it
 was different from the old form.  Without reading a single word, the
 mere appearance indicated it was new.  Moreover, at the bottom of the
 front page it said it was revised in August, 1982, some eight months
 previous.  Then Moody read the new form and stated that she was afraid
 to sign it because she didn't have all the material referred to in the
 form.  Stiles then offered to obtain whatever information she needed but
 she replied it wasn't necessary and "I can't sign this form until I
 check with my union representative and they tell me it's okay.  Stiles
 then said to Moody "well you have reviewed the form, I have offered to
 get you the information required, and she cut me off and she said . . .
 I haven't received a copy of this form in the mail." /7/ The meeting
 ended upon this note.  With respect to the conflicting testimony, I have
 concluded, after much deliberation, that Stiles did not insist upon
 Moody signing the new form and that at no time did Moody express any
 willingness to sign the old form.
 
    e.  Moody also testified that during this meeting she went to Stiles'
 office, called a Union representative, told him about the new form, was
 asked to send copies of both forms to the Union, and was advised not to
 sign anything she didn't understand.  Stiles denied the foregoing and
 Carter didn't mention it.  I believe Stiles.  This is not to say that
 she didn't make the call at a different time.  Thus, it appears to me
 that she is confused as to an event which occurred, not during this
 meeting, but afterwards.  (Reference to this is made in G.C. Exh. No. 8
 (para. 6) as having made in the subsequent meeting with Campbell,
 discussed infra.)
 
    f.  After Moody returned to work, Stiles prepared a memo (Resp. Exh.
 No. 1) which Carter, who had been present during the entire meeting,
 signed.  It stated as follows:
 
          At 0950 hrs Mrs. Susan Moody refused to sign standards of
       Conduct AAFES form (Rev. Aug. 82) 1100-30.  She advised she would
       not sign until she checked with the Union Representative (sic)
       advised her it was ok to sign, Mrs. Moody did state that it was a
       new form to her.
 
 Both Stiles and Carter signed the memo.  I credit Stiles' testimony that
 before she signed this memo Carter verified that it was accurate.  /8/
 Stiles then reported what happened to Exchange Manager Robert Campbell.
 I find and conclude that Stiles, without distinguishing between the old
 and new form, merely reported that Moody had not signed the Standards of
 Conduct Review Certificate.  Campbell asked for a copy of the memo and
 said he wanted to see Moody.  Campbell's recollection of the
 conversation is that Moody's refusal related to the fact that the back
 of the new form had some information pertaining to procurement,
 something not germane to her job.  Campbell's recollection is that
 Stiles was only referring to the new form.  However, Campbell credibly
 testified that in this or some other conversation with Stiles, he
 learned that Moody had said that the xerox copy in her file had no
 information on the reverse side.  Thus, there was some discussion of the
 old form and Moody's reason for not signing it.
 
    g.  Stiles also informed Catherine Vader, Chief of Personnel, about
 the incident.  He told her that Moody refused to sign because she didn't
 receive a copy of the new form.
 
    h.  According to Moody, later that same day while Moody was
 explaining what had occurred in the Stiles-Moody-Carter meeting to
 Lillian Boyd, (hereinafter Boyd) Union steward, Campbell came out of his
 office.  Boyd suggested that Moody ask Campbell about the matter.  Moody
 did so, and Campbell told Moody that he could not discern a difference
 between the two forms.  Boyd did not testify and Campbell did not recall
 the incident.  This evidence offered by the General Counsel, together
 with the credited testimony of Campbell, shows that management's
 attention was being directed not to a particular form (old or new) but,
 rather, to the fact of Moody's refusal.
 
    i.  According to Moody, it was this same day /9/ that she talked to
 Janice Harrell, who showed Moody a letter dated March 31, 1983 from
 Director of Personnel, (G.C. Exh. No. 6) which provided in part, that
 "(t)he revised form is to be used for all new hire employees only."
 (G.C. Exh. No. 6) Moody and Harrell went to Campbell's office and showed
 Campbell the letter.  He read it, and drew a line under the phrase, "new
 hire employees only." (G.C. Exh. No. 6) Moody asked Campbell whether or
 not she was considered a new employee, and he replied that she was not.
 Although Harrell was a witness at the hearing she wasn't asked about
 this conversation with Campbell.  He didn't recall the conversation but
 didn't dispute it.  I do not see where this evidence helps the General
 Counsel's case.  What is shows me is that Campbell was oblivious to any
 distinction between the old and the new form.  His awareness of the
 situation was that an employee was refusing to sign the Standards of
 Conduct Review Certificate.  What is missing from Moody's testimony is
 even more significant.  She did not testify that while in Campbell's
 office she offered or attempted in any way to make clear to Campbell
 that she was, in fact, willing to sign the old form as she contends in
 this proceeding.  Surely, if she was willing to sign the old form she
 could have made this clear while she had another Union official present
 as a witness.  It should also be noted that during her meeting with
 Stiles she was not aware of G.C. Exh. No. 6 (referred to above), and,
 therefore, her refusal could not have been based upon the reason that
 she was not a new employee.
 
    j.  Lois Lee Lawson, a supervisor at the Wings and Wheels Snack Bar
 testified that the only instructions she received from Stiles were to
 have employees read and sign their standards of conduct.  He gave no
 specific instructions as to forms and she used the old ones in their
 folders.  Delores Wallace, a food foreman testified similarly.  Thus,
 they corroborated the testimony of Stiles and Carter.
 
    7.  Events of April 8.
 
    a.  Pursuant to a call from Campbell, Stiles went to Moody's work
 area and told her Campbell wanted to see her "as an employee." Moody
 replied that she didn't have time to go to Mr. Campbell's office because
 she was busy.  On cross-examination, Stiles conceded that Moody may have
 also asked him to make an appointment when she was less busy.  With
 respect to this conflict in testimony, I am inclined to believe that
 Moody balked about going directly to see Campbell and Stiles correctly
 concluded that she was being somewhat "difficult." Whether or not
 Moody's response could properly be characterized as a "refusal" depends
 upon what she said and how she said it.  In any event Stiles reported
 back to Campbell and characterized it as a "refusal." Naturally,
 Campbell replied as might be expected and sent Stiles back to Moody to
 tell her he would not take no for an answer.  But, even on the second
 trip, Stiles didn't obtain the kind of prompt compliance one should
 expect of an employee.  Thus, Moody's version is that she asked Stiles
 whether Campbell wanted to see her as an employee or as a Union
 official.  Stiles' version, which I credit, is that he again made clear
 that Campbell wanted to see her as an employee, to which Moody inquired
 whether he was "asking" or "directing" her to go.  Stiles replied that
 he was directing her to go to Campbell's office.  She thereupon went to
 the office of Campbell, followed by Stiles.
 
    b.  At the meeting in Campbell's office, Moody was asked by Campbell
 to review and update her standards of conduct.  She replied, "I cannot
 sign it until I check with the Union to see if it's okay for me to
 sign." From the testimony of Campbell it's sufficiently clear that it
 was the revised form which was the subject of the conversation and that
 Campbell advised Moody he felt she was incorrect in saying the revised
 form was only for new employees.  Further, Campbell pointed out to her
 that this was standard form required of all AAFES employees to sign
 periodically.  The meeting lasted only 5 or 10 minutes.  Moody admitted
 she refused to sign (Tr. 34) and she assumed they were talking about the
 revised form.  There is no evidence that Moody offered to sign the old
 form, and, in my opinion, it was incumbent upon her to make such an
 offer to clarify and explain her refusal.
 
    8.  On April 12, Stiles hand-delivered to Moody a Notice of Proposed
 Written Reprimand (G.C. Exh. No. 7) which in pertinent part, states as
 follows:
 
          a.  Specifically, on 7 April 1983, you refused to sign your
       Standards of Conduct Review Certificate (AAFES Form 1100-30)
       stating it was a xerox copy.  However, when given an updated AAFES
       Form 1100-30, you refused to sign it, stating that you objected to
       the procurement and reporting of arrests/indictments section and
       would not sign until you checked with your union.
 
          b.  On 8 April 1983, Mr. Bob Stiles, your manager, informed you
       that Mr. Robert Campbell, Exchange Manager, Fort Eustis, wished to
       see you in his office.  You told Mr. Stiles that you did not have
       time for a meeting.  Only after Mr. Stiles told you that Mr.
       Campbell would not accept a "No" did you meet with Mr. Campbell.
       During your meeting Mr. Campbell explained that he was talking to
       you as an exchange employee, and that all exchange employees were
       to sign/reaffirm the Standards of Conduct Review Certificate.  You
       told Mr. Campbell that you had been directed by your union not to
       sign.  Furthermore, you had been directed by the union to send a
       copy of your old xerox form and a copy of the new form to them.
       You again stated that you would not sign the Standards of Conduct
       Review Certificate until your union gave you permission.
 
          3.  In refusing to sign the statement reaffirming your AAFES
       Standards of Conduct Review Certificate, you have violated
       paragraph 1-19, Exchange Service Manual (ESM) 15-4, Standards of
       Conduct and paragraph 1-25, AR 60-21/AFR 147-15, Exchange
       Personnel Policies.  you are again directed to sign the AAFES
       Standards of Conduct Review Certificate Form 1100-30 within 20
       calendar days of your receipt of this letter.
 
          4.  You are advised that consistent with the principle of long
       standing practice in the work place of "Comply Now, Grieve Later",
       if you refuse to comply with this order within the allotted time
       of 20 calendar days, your refusal will be considered a serious act
       of insubordination, and you may be separated from employment with
       the Army and Air Force Exchange Service for that act.
 
          5.  If you have questions about whether the requirement
       directed of you conforms to regulation or other proper authority,
       you are advised that you should file a grievance or seek redress
       with the Federal Labor Relations Authority after you comply with
       the requirement.
 
    9.  On April 21 Moody and her Union Representative, George Reaves met
 with Campbell and General Manager Joel Sontag.  During the meeting
 Sontag asked whether Moody would sign the old form and she said she
 would.  He then called Stiles at the Snack Bar and asked him to bring
 over her old form, which she then signed.
 
    10.  On May 5 Moody was told by Stiles to report to Campbell's
 office.  In contrast to her conduct on April 8, supra, she "assumed" she
 was being called as an "employee" and therefore stopped enroute to ask
 Union Steward Boyd to accompany her.  When the got there, Campbell
 informed her she was being given an oral reprimand, rather than a
 written one, and he noted this on her counseling card which she then
 acknowledged in writing.  Later, she received written notification (G.C.
 Exh. No. 9) of the oral reprimand which, in pertinent part, stated:
 
          . . . However, I have taken into consideration the possibility
       that you misinterpreted the requirement to comply with paragraph
       1-19, Exchange Service Manual (ESM) 15-4, Standards of Conduct.
       Accordingly, it is my final decision that the proposed written
       reprimand be reduced to an oral reprimand which will be
       administered by Mr. Robert Campbell, Exchange Manager."
 
          4.  The specific basis relied upon in making the final decision
       to orally reprimand you is as follows:
 
          Specifically, on 7 April 1983, you refused to sign your
       Standards of Conduct Review Certificate (AAFES Form 1100-30).
       Again on 8 April 1983, you refused to sign when asked by your
       Exchange Manager, Mr. Robert Campbell.
 
 Thus, the April 8 "refusal" to promptly meet with Campbell was omitted
 as a specific basis for the oral reprimand.
 
                         Positions of the Parties
 
    The General Counsel contends:  (1) that Moody was engaged in
 protected union activity when she sought advice from the Union,
 especially when she felt that, as Union President, she should have been
 notified of any change in the Standards of Conduct Review Certificate;
 (2) that Respondent had knowledge of such "protected" activity;  and (3)
 that the oral reprimand was discriminatorily motivated because she was
 singled out as the only "old" employee who was being required to sign
 the newly revised form.  In this latter regard, it is asserted that
 Respondent's defense of "insubordination" is a pretext designed to mask
 its real reason;  i.e. Moody's resort to the Union for assistance in
 carrying out her representational duties as Union President.
 
    The Respondent denies that Moody was engaged in protected activity,
 Respondent asserts Moody was orally reprimanded for being insubordinate
 by refusing to comply with a requirement uniformly imposed upon all
 employees, and that her refusal warranted disciplinary action.  In its
 amended brief, Respondent argues that Moody was not engaged in concerted
 activity because she was not acting "with or on the authority of other
 employees, but was engaged in activity solely by and on behalf of
 herself." /10/
 
                     Discussion and Conclusions of Law
 
    The Authority has held that it will not condone any action by an
 employee, regardless of his union activity or position, which would
 result in a breach of a lawful agency regulation.  /11/ There is no
 dispute that Moody was being asked to comply with a lawful agency
 regulation when she was asked to sign and date her Standards of Conduct
 Review Certificate.
 
    In a recent arbitration decision, /12/ the Authority dealt with a
 Union's contention that a grievant, the Union president, was engaged in
 activities protected under the Statute and consequently was not subject
 to discipline while so engaged.  The Authority held as follows:
 
          There is no authority under the Statute to support the
       assertion that the grievant was immune from discipline until such
       time as he determined that his responsibilities as union president
       had been fulfilled.  To the contrary, nothing in the Statute
       operates to insulate the grievant from discipline in the
       circumstances of this case.  See United States Forces Korea/Eighth
       United States Army and National Federation of Federal Employees,
       Local 1363, 11 FLRA No. 79 (1983), at 3 n. 3.  Accordingly, the
       Union's exception is denied.
 
 In my opinion, the foregoing case law is applicable to this proceeding.
 
    By refusing to sign either the old or the new form, Moody acted at
 her peril and risked possible discipline.  She refused to sign the old
 form for Carter on April 7;  she refused to sign either the old or new
 form for Stiles on April 7;  and she refused to sign the new form for
 Campbell on April 8.  I find and conclude that the sole reason for
 Respondent's proposed written reprimand of April 12 and its oral
 reprimand of May 5 was her refusal to fulfill a requirement imposed upon
 all employees, namely, to sign a Standards of Conduct Review
 Certificate.  Accordingly, I find that the General Counsel has failed to
 prove by a preponderance of the evidence that Respondent committee an
 unfair labor practice in violation of section 7116(a)(1) and (2).
 
    Even if I were to accept Moody's testimony that she needed time to
 read it over and understand it, enough time went by between April 7 and
 April 12 for her to accomplish this.  She also had ample time in which
 to consult with the Union and to read all the applicable regulations.
 But the plain and simple fact is that she was being obstinate and
 recalcitrant.  As things worked out she didn't sign the form until April
 21, two weeks after her initial refusal for the clearly irrelevant
 reason that she wanted some annotations removed from her counseling
 card.  It was this initial refusal followed by her complaint that the
 old form was a xerox copy that started this entire incident.  Since
 these refusals preceded her being shown and asked to sign the new form,
 grounds for insubordination had already been established in her capacity
 as an employee before any factual issues arose concerning whether she
 then began to conduct herself as union president in a representational
 capacity.  My view of the facts is that she was not engaged in union
 activity in a representational capacity.  But, even if so engaged, the
 General Counsel has not established a nexus between such activity and
 the discipline imposed.  Further, the record is barren of any evidence
 of hostility towards the Union or Moody by Respondent or its agents.
 
    Finally, I find no merit in the General Counsel's contention that
 Moody was the victim of disparate treatment.  Although Stiles approached
 two other employees and sought their signatures, he was not upset
 because Harrell preferred to sign her old form or because Jones was busy
 and couldn't sign hers right away.  He didn't even approach Moody
 himself.  She was just one of five employees who Carter requested to
 sign the old form-- the same form (G.C. Exh. No. 2) Moody had been
 signing since 1977.  I am satisfied that Stiles did not care which form
 was signed so long as he accomplished his assignment of ensuring that
 all employees under his supervision complied with this requirement.  The
 only employee to refuse was Moody.  In the circumstances of this case,
 Moody was not immune from discipline.  /13/
 
    Section 7116(a)(1) of the Statute makes it an unfair labor practice
 for an agency "to interfere with, restrain, or coerce any employee in
 the exercise by the employee of any right" protected by the Statute,
 including the right to engage in activities on behalf of a labor
 organization.  Section 7116(a)(2) makes it an unfair labor practice for
 an agency "to encourage or discourage membership in any labor
 organization by discrimination in connection with hiring, tenure,
 promotion, or other conditions of employment."
 
    The General Counsel has the burden of proving the allegations of the
 complaint by a preponderance of the evidence.  Based upon my review of
 the entire record, I conclude that the General Counsel has not sustained
 its burden of proving that Moody's oral reprimand was motivated by
 anti-union reasons.
 
    Having found that Respondent did not engage in any unfair labor
 practices by the actions and conduct described above, and therefore has
 not violated section 7116(a)(1) and (2) as alleged in the complaint, it
 is recommended that the Authority issue the following:
 
                                   ORDER
 
    That the complaint in Case No. 4-CA-30433 be, and it hereby is,
 dismissed.
 
                                       FRANCIS E. DOWD
                                       Administrative Law Judge
 
    Dated:  July 5, 1984
    Washington, DC
 
 
 
 
 
 
 --------------- 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 will not
 overrule a Judge's resolution with respect to credibility unless a clear
 preponderance of all the relevant evidence demonstrates that such
 resolution was incorrect.  The Authority has examined the record
 carefully, and finds no basis for reversing the Judge's credibility
 findings.
 
 
    /2/ Jones' signature was first solicited on the old form by Stiles
 but Jones was busy.  She asked him if it would be all right if she
 signed later.  He said that would be okay.  Later, that same day (April
 7) Carter solicited Jones' signature.  Jones testified she signed in
 April or May.  I find she singed on April 7 and inadvertantly wrote
 March 7, probably because the date on the preceding line was also the
 month of March.
 
 
    /3/ I believe Carter was telling the truth when she said she asked
 Moody to sign her old form.  Therefore, I discredit Moody's denial and,
 because I believe she was untruthful with respect to this matter I have
 found it hard to credit much of her testimony overall when in conflict
 with other witnesses.
 
 
    /4/ I find it hard to believe that Moody, who'd been working there
 for 22 years, and who had been signing this same form (G.C. Exh. No. 2)
 for many years, would refuse simply because she needed time to read it
 over.  There obviously had to be more to it than that.  Although Carter
 testified she couldn't recall the exact words used by Moody, the thrust
 of her testimony was that Moody "wasn't ready" to sign.  I do not accept
 Carter's characterization of Moody's actions as not being a "refusal" to
 sign.
 
 
    /5/ The most accurate account is that of Stiles.  He testified that
 Carter and Moody were both seated at a table and Carter came to him and
 told him Moody wouldn't sign until some outdated annotations were
 removed from her counseling card.  Stiles told Carter this had nothing
 to do with standards of conduct and the two of them joined Moody at a
 table where Moody had her file in front of her, with the old form.  As
 of this point, the old form was unsigned.
 
 
    /6/ Moody claims Stiles was gone for a half hour, but this testimony
 is contradicted by both Stiles and Carter and is in any event not
 plausible.
 
 
    /7/ Respondent disputes that she was entitled to any notice and, in
 any event, points out that signing the form would not preclude her or
 the Union from filing a grievance or unfair labor practice charge.
 There is no evidence that a grievance or charge were filed, or that this
 incident generated correspondence from the Union to the Respondent
 concerning the new form or defending Moody's refusal.
 
 
    /8/ I place no significance in the fact that Stiles did not attempt
 to provide a detailed summary of the entire incident.  The mere failure
 to include all the reasons given by Moody for refusing to sign does not
 mean his testimony is untrue.
 
 
    /9/ In another conflict of testimony, Harrell placed this
 conversation as 5 or 6 days after April 5 (Tr. 60).
 
 
    /10/ In support of this argument, Respondent cites the following NLRB
 cases which it asserts are analogous:  Meyers Industries, Inc. and
 Kenneth P. Prill, 268 NLRB No. 73, 115 LRRM 1025.  See also Briley
 Marine and Michael A. Fuller, 269 NLRB No. 122, 115 LRRM 1310;  Central
 Georgia Electric Membership Corporation and Stanley H. Allen, 269 NLRB
 No. 123, 115 LRRM 1311.  In reaching my decision herein I have found it
 unnecessary to decide whether Moody was engaged in "concerted" activity.
  Rather, I have only considered whether it was "protected" activity and,
 if so, whether such activity motivated Respondent's decision to
 discipline her.
 
 
    /11/ United States Forces Korea/Eighth United States Army, 11 FLRA
 No. 79, 11 FLRA 434 (1983), note 3.
 
 
    /12/ Harry S. Truman Memorial, Veterans Hospital, Columbia, Missouri,
 14 FLRA No. 20, 14 FLRA 103, (March 16, 1984).  There, a union presiden