50:0051(12)CA - - Redstone Arsenal Exchange, Army and Air Force Exchange Service, Redstone Arsenal, AL and AFGE, Local 1858 - - 1994 FLRAdec CA - - v50 p51
[ v50 p51 ]
The decision of the Authority follows:
50 FLRA No. 12
FEDERAL LABOR RELATIONS AUTHORITY
REDSTONE ARSENAL EXCHANGE
ARMY AND AIR FORCE EXCHANGE SERVICE
REDSTONE ARSENAL, ALABAMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
December 20, 1994
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
The Administrative Law Judge issued the attached decision, finding that the Respondent did not violate section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by reassigning a Union official to another position. The Judge also found that the Respondent did not violate section 7116(a)(1) of the Statute by making certain statements about the role of the Union official. The Charging Party filed exceptions to the Judge's decision. No opposition to the Charging Party's exceptions was filed.
The Charging Party's exceptions dispute the Judge's credibility findings on which his findings of fact are based. The demeanor of witnesses is an important factor in resolving issues of credibility and only the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. We have examined the record and find no basis for reversing the Judge's credibility findings. See Defense Distribution Region Central, F/K/A Defense Depot Memphis, Memphis, Tennessee, 49 FLRA 711 (1994); U.S. Department of Transportation, Federal Aviation Administration, Southwest Region, Airways Facilities Sector, Austin, Texas, 43 FLRA 1581 (1992), reconsideration denied, 44 FLRA 1095 (1992).
Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
The complaint is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
REDSTONE ARSENAL EXCHANGE, ARMY
AND AIR FORCE EXCHANGE SERVICE,
REDSTONE ARSENAL, ALABAMA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858
Case No. AT-CA-30774
Peter A. Campagna, Esq.
For the Respondent
Brent S. Hudspeth, Esq.
For the General Counsel
Vicki L. Fuller
For the Charging Party
Before: SALVATORE J. ARRIGO
Administrative Law Judge
Statement of the Case
This case arose 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. (herein the Statute).
Upon an unfair labor practice charge having been filed by the captioned Charging Party (herein the Union) against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for the Atlanta Regional Office, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by reassigning a Union representative and allegedly making statements concerning the representative and dealing with Union, which interfered with Statutory rights.
A hearing on the Complaint was conducted in Huntsville, Alabama, at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel and have been carefully considered.
Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:
Findings of Fact
At all times material the Union has been the exclusive collective bargaining representative of various of Respondent's employees.
In early January 1993 Charles Lisgaris joined Respondent as its General Manager. Shortly after arriving at the Redstone Arsenal Exchange he attended a party given for the departing General Manager, Stanley Drejewski, after which Drejewski gave him a tour of the facility. Upon entering the stock room Drejewski introduced Lisgaris to Lee Chatman who was primarily responsible for shipping damaged merchandise and performed other stock room duties as well. Chatman indicated he was the Union representative at the facility and, according to Lisgaris, he smiled and told Chatman he was going to put him out of business because unions and management have the same goal of taking care of employees and he took care of his employees. Lisgaris recalled no reply by Chatman.
Chatman testified he first met Lisgaris in the stock room in early January 1993 around 8:00 a.m. when his first line supervisor, Edward Wilson, introduced them after Lisgaris had met the other stock room employees. Chatman was introduced as a Union steward and, according to Chatman, after Lisgaris greeted him he said, "Oh, I know you; I have heard about you . . ." and went on to say he was going to take Chatman's job from him and put him out of business. Chatman testified Lisgaris made this statement repeatedly and Chatman replied that he had "gone through this type of conduct before" and he had a friend in Dallas, to which Lisgaris merely replied, "I see."(1) As Lisgaris was about to leave he asked Chatman what his duties were. After Chatman told him his duties, Lisgaris, on his way out, turned to the stock room employees and said, "We are a family and I want you to be in the family", and again told Chatman he was going to put him out of business and Chatman wouldn't have to worry about the employees.
During his first few weeks at the Redstone Arsenal Exchange Lisgaris met with his managers. At these meetings Lisgaris conveyed his intention to effectuate various changes, including his plans to restructure the stock room and reorganize its operation. A recurrent theme from his managers was that Chatman would be an obstacle to his reorganization plans. The impression Lisgaris received was that Chatman was a poor worker and indeed was overheard telling a new employee, "Don't work hard; don't kill yourself for this organization. I have learned how to work and not get in trouble -- how to work as little as possible and not get in trouble." However, Lisgaris was also told by Operations Manager John Setzer, who supervised the stock room that everybody in the stock room looked at Chatman as "the final word" and when a supervisor asked an employee to do something, the employee looked to Chatman and if he said "yes", the employee did it. Lisgaris himself observed Chatman working at what he considered to be an extremely slow pace. In addition, Lisgaris was told of an incident which occurred in the spring of 1992 when Beverly Martin, a Sales Manager, observed Chatman and Lafayette Townsend, another stock room employee, bring lawnmowers to the garden shop and put them into aisles. When Martin asked the two stock room employees to put the lawnmowers onto a stack where they belonged, Chatman stated it wasn't his job and the two refused to stock the lawnmowers. Martin told the two she was asking them as a manager to stack the lawnmowers but they again refused and left laughing(2) Martin brought this incident to the attention of Edward Wilson, the stock room manager, who, rather than confront Chatman with the matter, stocked the lawnmowers himself. Martin complained to General Manager Drejewski who said he would "talk to Wilson." Martin testified she subsequently had similar incidents involving Chatman and stock room employees and after she complained to Wilson and Operations Manager Setzer with no results, she complained to Drejewski who told her, "don't make waves." Martin also complained to Lisgaris of a similar, more recent, incident involving Chatman, Townsend and stock room employee James Newsome.
In addition to the above, Lisgaris was informed by his subordinate managers that no one took corrective action in Chatman's case because they were intimidated by him and wished to avoid problems with the Union. According to Operations Manager Setzer, Chatman's supervisor Edward Wilson wished to avoid confrontation to such an extent that on many occasions he would perform a task himself if the specter of confrontation with an employee appeared. Setzer further testified that he also avoided confronting Chatman over his work conduct and stock room problems because Setzer's supervisors, prior to Lisgaris, were also intimidated by Chatman and wished to avoid any conflict with Chatman and therefore would not support him, encouraging Setzer not to "make waves." Thus, even though Chatman's prior performance appraisals reveal that he was rated by Wilson as "above average" for the 1992-1993 period and "outstanding" for the four appraisal periods prior to that, Setzer, who concurred in the ratings, indicated the appraisals did not reflect the rater's nor his honest opinion of Chatman's performance.(3) I also note that in each of Chatman's last three appraisals he was rated not "outstanding", but" above average" in the categories of "quantity of work" and "initiative", respec- tively defined as "amount of work produced under routine day-to-day conditions, regardless of number of errors" and "willingness and ability to act independently and effectively in the absence of specific instructions."
Chatman was asked on direct examination about a meeting which occurred on January 11, 1993.(4) Chatman testified that Lisgaris called him to the meeting and Respondent's then training coordinator, Felecia Orr, was also present. Lisgaris began by saying he wanted to "clean the place up" and wanted Chatman to work with him.(5) It appears that Lisgaris was critical of the unclean conditions of the Exchange, and the employees' lunch room in particular, and suggested that employees should pick up papers, etc., which they saw lying around and wanted Chatman to "work with him as a family" to improve conditions. Chatman pointed out that custodial work was not in his job description, nor in most other employees, and that if employees are required to perform duties which are outside their job descriptions, grievances would be filed. Chatman related prior attempts to have employees work outside their job descriptions. Lisgaris said he didn't want to discuss the past or the contract or regulations and that he was the manager and wanted Chatman's cooperation. Lisgaris was mainly concerned with the condition of the lunch room, which he characterized as "filthy", and asked Orr to make up some signs which would convey the message that employee's mothers were not around to pick up for them. Chatman stated that employees might resent such a comment but Lisgaris replied that the lunch room had to be cleaned up and told Orr to make up four signs.
According to Chatman, near the conclusion of the meeting Lisgaris told Chatman that the stock room was also a mess and had to be cleaned up. Lisgaris questioned how inventory could be taken in the condition the room was in and Chatman replied that if the inventory went poorly, it was the fault of the managers. Lisgaris again told Chatman he was the general manager, indicated there would be changes and told Chatman that they would work together. Chatman said he would work with Lisgaris but within the limitations of the job descriptions.
Lisgaris was not asked about a January 11, 1993 meeting with Lisgaris but was asked on direct examination whether he had a discussion with Chatman concerning keeping the break room clean. Lisgaris testified as follows:
Q Did you ever have a discussion with Mr. Chatman about the break room -- keeping the break room clean?
A I may have. But not specifically, no, because the break room when I got there became a very short issue. And the issue was a pigpen. People were eating; they were leaving their food on the tables; their dirty dishes were in the sink. They were piled up and left overnight.
And I told my people, the managers and the staff -- I said, This is not going to continue. You clean up after yourself. In fact, we put -- somebody put a sign up there. I may have authored it -- I didn't author it; I suggested it, that your mother doesn't work here; clean up after yourself.
Now, I didn't task anybody in particular to clean up. I said, Everyone clean up after yourself. And we had a janitor that tried to do it, and she even complained. The task was too great, because the refrigerator was dirty and so forth.
So I told everyone they were going to have to pick up after themselves -- the short and sweet of it. Now --
Q Did anyone ever complain that this was outside their job description?
A Vaguely, I recall -- if that was discussed, it had to come from Mr. Chatman. And there is not job -- look, you eat; you pick up your garbage. There is no job description for that. I mean, that is just common courtesy. And, you know, you just don't leave your trash in front -- at the table where other people are going to eat.
So if he addressed the job description, I told him exactly what I felt. There is nothing in the job description that covers that. No one was being tasked specifically to clean up the break room, period. That was a non-issue.
General Manager Lisgaris, accompanied by Peoples Resource Manager Maxine Keyes, met with AFGE Local 1858 Chief of Labor Relations Vicki Fuller on January 19, 1993 for an introductory meeting.(6) Lisgaris discussed his background and employment philosophy, stating he was a "human relations person." During the meeting Lisgaris indicated that before he came to Redstone he had heard that "Union Steward" Chatman was about the worst employee at the Exchange, that he was an unproductive employee who exerted undo influence on other employees and Lisgaris was going to "take care" of that situation. Fuller replied she was not in a position to talk to Lisgaris about Chatman's behavior and suggested he talk with Union President Linda George who was unable to be present at the meeting that day.
On February 4, 1993 Lisgaris and his supervisors Setzer and Wilson met with the five stock room employees including Chatman, Townsend and Newsome. According to Chatman's version of this meeting, after Lisgaris joked about the camera mounted in his office which could view the facility, including the stock room, Setzer opened the meeting by discussing a planned new method of receiving merchandise which was anticipated to expedite the process. After that, Lisgaris added he was going to make some additional changes at the Exchange such as bringing in early morning stockers and converting some intermittent employees to regular part-time employees. Chatman testified that Lisgaris said he was going to give Chatman some additional duties and Chatman replied that they had a discussion of this previously which Lisgaris acknowledged and stated, "As I said before, I am going to move you. I am going to take your job from you." Lisgaris purportedly then commented that Chatman had gotten angry at him at their prior meeting on January 11, which Chatman denied, but Lisgaris insisted was the case. Chatman again denied getting angry and said he could repeat what occurred regarding Lisgaris' desire to "clean up." Lisgaris responded that he didn't want to get into "the regulations" and after another accusation and denial of Chatman being angry at the January 11 meeting, Lisgaris rose, and pointing at Chatman, said, "I am going to move you as of now." Chatman went on to testify:
I said, Well, when are you going to move me? Well, within 30 days. He said, First, I am going to put a body back there to work in your place. Will you train that person? I said, Sure. I will train that person 100 percent.
And I said, I will train that person two ways, Mr. Lisgaris: I will train him the bargain way under the contract and with the job description and with the regulations. I will train that person wholeheartedly. I have no problem with that, I said, even though that person is taking my job, working in here where I am working.
He said, Well, that will done. . . . Then Wally spoke up. . . . He said, This has nothing to do with us. Why would you call us in here?
He said, Well, I want the stock room cleaned up. That is what I want. . . . He said, You don't work, Chatman. I said, Yes, I do work. I said, Why don't you come back there and work with me one week and you will see how much I have to do?
He said, No, that is not necessary. . . .
According to Chatman, Lisgaris asked him if he had anything else to say and when Chatman said "no", Lisgaris concluded the meeting by telling Chatman he was going to "post" his job that day.(7)
Stock room worker Lafayette Townsend testified with regard to an approximately 45 minute meeting between Lisgaris and stock room workers in early February. Townsend's testimony on this subject was conclusionary and abbreviated, merely indicating that Lisgaris "was talking about changing stuff around" and during the meeting told Chatman he was going to take his job. Townsend testified:
. . . in fact, I think he repeated it about three times while we was in there. I didn't know whether he was going to, you know, suspend him or fire him or what. He said he was going to take his job.
On cross-examination Townsend testified he didn't remember Lisgaris saying that if he did his job properly, the Union wouldn't have anything to do. Townsend denied anything at the meeting being said concerning a new receiving policy and testified he did not hear Lisgaris tell Chatman that he was going to move him.
Stock room employee James Newsome testified to a meeting in "early January" 1993 with Lisgaris and other warehouse employees.(8) Newsome's recollection was extremely sketchy and he could only testify that Lisgaris "talked about a few things that were going on in the warehouse . . . because he had a monitor in his office" and that Lisgaris told Chatman he was going to take his job. Newsome testified that he could not recall Lisgaris saying anything else to Chatman. On cross-examination Newsome acknowledged that his recollection of the meeting was poor, and he did not recall any discussion of a new receiving policy; any mention that Lisgaris was going to move Chatman to a different position; nor Lisgaris saying he would treat employees so well that there wouldn't be any work for the Union to do.
Lisgaris testified that he called the February 4 meeting of stock room employees to discuss the details of what needed to be done in the stock room to accommodate the new shipping program that was about to be implemented. Lisgaris testified:
A We just -- I explained what was happening and the importance of what was going on and so forth. In fact, it was at the meeting that Mr. Chatman, I think, started to quote me. He mentioned that about job descriptions and so forth.
And then he started quoting the Union book by verse and paragraph. I said, Mr. Chatman -- I said, Look, you have me at a disadvantage. I don't know; I am not that familiar with your book. I said, Let's discuss this later in detail . . .
But -- and I told them that no one would be working out of their job description, and I said it just means that we are going to have to concentrate on doing better what we are doing now, in essence.
Lisgaris further testified with regard to this meeting:
. . . And the discussion basically was that they would not be mistreated. I take care of my people. In fact, I said something to the effect that I even told Mr. Chatman that I was going to put him out of business because I take care of my employees, and the Union and management do the same thing, take care of the employees.
And by doing that, he is not going to have much work to do as a Union rep. I said it (at) that meeting in that context, and that is it.
Q At that meeting on February 4, did you tell Mr. Chatman you were going to transfer him within 30 days?
A No. Why would I? No.
According to Operations Manager Setzer, the February 4, 1993 meeting with stock room employees was a training session on the new "assured receiving" program being implemented at the facility. Setzer's abbreviated testimony on this subject was simply to identify the subject of the meeting and to testify that during the discussion between Lisgaris and Chatman, Lisgaris remarked to Chatman that he wished to put him out of business, explaining that management doing its job properly would result in eliminating problems which concerned the Union. Setzer further testified that he did not hear Lisgaris tell Chatman that he was going to move him.
On February 10, 1993 Lisgaris and Peoples Resource Manager Keys met with Union representatives Linda George and Vicki Fuller. After some introductory conversation, Lisgaris brought up Chatman, characterizing him as a "bad" employee, slow, and an "undue influence" on other employees. Lisgaris mentioned that he had personally viewed Chatman's slowness on his camera monitor. Lisgaris put the matter in the form of a problem he had and during the discussion, George mentioned the possibility of transferring Chatman. Lisgaris stated there was a vacancy at the Class Six Store, a smaller beverage warehouse which was isolated from the main store and had only six employees, and indicated he would have Chatman transferred to the Class Six Store. George expressed no opposition to the transfer and the meeting ended.
On February 22, 1993 Lisgaris convened an assembly of all of the approximately 300 Exchange employees. Chatman, in a rather disjointed way, testified that at the meeting Lisgaris introduced himself, gave a "short speech" and asked if anyone knew Lee Chatman.(9) According to Chatman, Lisgaris then said he wanted his supervisors to know that supervisors do not fire employees, employees fire themselves, and Lisgaris went on to say that if an employee had a problem and the supervisor was going to talk to the employee, the next thing you know the employee would go to the Union and ". . . bam you have got to know how to fight back." Lisgaris then apparently characterized as "fraud" employee failure to correctly report work hours and told supervisors he expected them to take "action" in such situations. Chatman testified that sometime later in this speech Lisgaris asked if the Union people were there and since they did not attend the meeting, Lisgaris announced that Lee Chatman was the Union representative for AAFES (Army and Air Force Exchange Service) employees.
Lisgaris testified that at the February 22 meeting he identified Chatman as the local Union representative but denied making a statement to the effect that if a problem arises, the first thing you know the Union jumps in and - bam then you have a problem.(10) Lisgaris acknowledged that he might have said something similar to that to his managers when encouraging the proper treatment of employees. Setzer testified that at the February 22 meeting Lisgaris introduced Chatman as the Union steward but recalled no other comment made about the Union.
On February 23, 1994 Lisgaris sent Chatman and George notification that effective March 4, Chatman would be transferred to the Class Six Store at no loss of benefits and on March 4 Chatman was transferred. Lisgaris testified that he wished to get ". . . Chatman away from the main store for no other reason than to put him somewhere where he would have less impact on the total operation."
Additional Findings, Discussion and Conclusions
Counsel for the General Counsel essentially contends that Chatman's reassignment to the Class Six Store occurred because of Chatman's protected activity of advising employees of their contractual rights of working only within their job descriptions. Thus, counsel argues, Respondent's motive in transferring Chatman was "to reduce the Union's influence in the main exchange during the restructuring of the warehouse." Counsel for the General Counsel also alleges that Respondent violated section 7116(a)(1) of the Statute by Lisgaris' statements of January 8, 1993 to the effect that he was going to put Chatman out of business and that Lisgaris would take care of the employees and Chatman would no longer have to worry about them; by Lisgaris' statement on February 4 that he was going to take Chatman's job and put the Union out of business; and by Lisgaris' purported reference, at the February 22 meeting with all employees, to an employee having a problem with a supervisor, going to the Union and stating; "bam -- you have got to know how to fight back." Counsel for the General Counsel argues that these statements imply Union activities can result in loss of jobs and that preferential treatment would be given to employees who brought their problems to management rather than the Union, thereby interfering with the exercise of Statutory rights.
Counsel for Respondent contends that Respondent reassigned Chatman for legitimate reasons and that the actual statements made by Lisgaris do not constitute threats nor intimidation as alleged.
In Letterkenny Army Depot, 35 FLRA 113, 118-123, (1990) the Authority ruled that in a case involving alleged discrimination under section 7116(a)(2) of the Statute, the General Counsel must establish that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion or other conditions of employ-ment. The Authority further held that even if the General Counsel makes the required prima facie showing, an agency will not be found to have violated section 7116(a)(2) of the Statute if the agency can demonstrate, by a preponderance of the evidence, that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken even in the absence of protected activity. Id.
In the case herein Chatman, as Union Vice President, had processed grievances on behalf of employees and had enforced the collective bargaining agreement by challenging Respondent with regard to attempting to require employees to perform duties outside their job descriptions. Such conduct is clearly protected activity. Further, I find and conclude that Chatman's aggressive style with regard to enforcing the agreement and performing his duties as a Union representative was part of the "intimidation" that Chatman was found to have exercised and concern with this "intimidation" constituted a motivating factor in Lisgaris' decision to transfer Chatman. Thus, when Lisgaris was asked to cite examples of intimidation by Chatman, Lisgaris testified:
A He tried to intimidate me on two occasions: the one I mentioned -- he started quoting me -- walked up and started Union, chapter and verse. I said, Mr. Chatman, I am at a disadvantage. I don't know them. We will discuss them later.
He tried at another meeting. And again, I said, This is not the time to discuss it. After that meeting with the employees, I asked Mr. Chatman to stay back so we could just talk and get to know each other and just talk. I think that meeting lasted for a good part of two hours.
I did very little talking. I basically explained to him what I wanted to do at the Redstone Arsenal, how I feel about employees, taking care of them, and what I have done in the past, and what I intended on doing in the future.
And Mr. Chatman in conversation -- he did a lot of talking. He told me of all the cases he won. I says, Fine. And then he would ask me question and when I would answer, then he would go back and -- Tell me that again, Mr. Lisgaris. I want to make sure I remember that when I write my report.
Well, you know, he did that about ten or fifteen times. You know, I am not stupid. He is going to write a report, and he wants me to repeat so he will remember it. Now, that is intimidation, in my book. I am not intimidated, simply because I know my job, and I wasn't doing anything wrong.
And if Mr. Chatman wanted to do what he wanted to do, it is open. I mean -- but don't -- and his tone of voice and in his mannerisms, he was intimidating. . . .
Indeed, the complaints from supervisors to Lisgaris reflected similar concern, Chatman being characterized as both argumen-tative and uncooperative, which I find in part referred to his confrontational representational style. Thus, I find and conclude a motivating consideration in Lisgaris' transfer of Chatman directly involved Chatman's protected activity.
However, I also find and conclude Chatman's conduct as a stock room employee presented Lisgaris with legitimate justification to have him transferred so that stock room changes could proceed in an orderly fashion. The record reveals that Chatman generally worked at a slow pace. He was overhead to acknowledge this characteristic and indeed attempted to spread this work outlook to a new employee, telling that employee not to work hard, and encouraging the employee to work at a pace so as to do as little as possible and yet not get in trouble. Further, supervisor Martin's experience with Chatman's refusal to carry out a legitimate work request further demonstrated an uncooperative attitude as an employee, apart from his Union representational capacity. Such conduct need not be condoned by an employer.
Other employees, at least stock room employees Townsend and Newsome, followed Chatman's leadership, perhaps because they erroneously concluded that whatever Chatman did was within the terms of the collective bargaining agreement, the terms of which Chatman presumably knew and enforced. In any event, Chatman, because of this background, was viewed by Lisgaris as an individual who had a bad work outlook and whose continued presence in the stock room, when a reorganization was being implemented could be expected to subvert or disrupt an expeditious transition, largely because other employees viewed Chatman as a leader and looked to him for direction. Unfortunately those employees could reasonably be expected to follow Chatman's leadership in unprotected matters.
In sum I find and conclude that a motivating factor in Lisgaris' decision to have Chatman removed from the stock room, which was located in the main Exchange, was to place him in a more remote location where he would not, as a Union representative, be a hinderance to question any facet of the reorganization, and to separate Chatman from other employees who looked upon him as a leader and readily followed his direction. However, I further conclude that Chatman would have been transferred, in any event, based solely upon his objectionable non-representational activities and disposition found herein. In these circumstances I conclude Respondent's conduct of transferring Union representative Chatman did not violate the Statute. Id.
With regard to statements allegedly made by Lisgaris which counsel for the General Counsel contends violated the Statute, I find that Lisgaris told Chatman, in their early January meeting, words to the effect that he was going to put Chatman out of business and Chatman would not have to worry about the employees. I find that the statement was made in such a manner as to clearly convey the concept that it was Lisgaris' intent to treat employees in such a fashion that the employees would not have grievances and therefore would not need representation for that purpose. I conclude that such a statement does not interfere, restrain, or coerce employees in the exercise of any right assured by the Statute.
As to Lisgaris' February 4, 1993 statement, made to Chatman in a meeting with all stock room employees, that he was going to take Chatman's job and put the Union out of business, this statement most resembles that which Lisgaris acknowledged making.(11) Thus, during his testimony, which I credit, Lisgaris testified that during this meeting he made a statement to the effect that he took care of his employees, did not mistreat them, and that he was going to put Chatman out of business since the Union and management do the same thing, "take care of the employees." Operations Manager Setzer substantially corroborates Lisgaris and testified that he interpreted Lisgaris to have said that if management did its job properly, that would eliminate the problems which concerned the Union, and in that way "put Chatman out of business." As with the Lisgaris statement made at the January 1993 meeting, above, I conclude that the statement does not interfere, restrain, or coerce employees in the exercise of any right assured by the Statute.
Lastly, counsel for the General Counsel alleges that a statement made by Lisgaris at the February 22, 1993 meeting with all employees violated the Statute. Chatman's testimony regarding this statement is as follows:
He says, I want my supervisors to understand that employees don't fire themselves -- no, supervisors don't fire themselves. . . . The employee fires himself.
And . . . he said, Do you all understand what I am saying? Nobody was saying anything. He said, Let's say that an employee (has) a problem, and the supervisor -- let's say -- is going to talk to that employee.
The next thing you know, the employee would go to the Union, and this is -- bam -- you have got to know how to fight back.
Lisgaris denied making such a remark to employees and Operations Manager Setzer, the only other witness to testify on this matter, recalled no comment being made at that meeting regarding the Union. I credit their testimony in this regard.
Counsel for the General Counsel argues that this statement, and the other statements alleged to have violated the Statute:
. . . tie together union activities and the loss of jobs, which results in a threatening situation to union officers and unit employees alike. In addition, Lisgaris' statements that he was going to take care of the employees and put the Union out of business communicates to employees that management would give preferential treatment to employees who brought their problems to management rather than the Union. This is also reflected in Lisgaris' February 22 statement.
I find no actual nor implied threat to Union officers or employees nor promise of benefit in the February 22 statement Chatman testified was made or the other statements alleged to have violated the Statute. Rather, the statements appear to be merely expressions of the opinion that if management does a good job there will be less likelihood of Union - management confrontation and in such circumstances, since there will be less grievances, there will be less of a need for Union representation of employees for that purpose. Thus, I conclude that even if made, the February 22 statement also does not interfere, restrain, or coerce employees in the exercise of any right assured by the Statute.
Accordingly, based upon the entire foregoing and the record herein I conclude it has not been established that Respondent violated the Statute as alleged and I recommend the Authority issue the following:
It is hereby ordered that the Complaint in Case No. AT-CA-30774 be, and hereby is, dismissed.
Issued, Washington, DC, August 23, 1994
SALVATORE J. ARRIGO
Administrative Law Judge
(If blank, the decision does not have footnotes.)
ALJ's Footnotes Follow:
1. Dallas is the headquarters office or the Redstone Arsenal Exchange.
2. Martin was the only manager on duty when this occurred and, in any event, the record reveals that when stock room employees bring items to Martin's sales area they are under her supervision with regard to the proper storing of such items, which is part of a stock room employees' duties.
3. Six appraisals placed in evidence for various other stock room employees for various periods from 1991 to 1993 all were rated "outstanding", except one which was rated "above average."
4. Chatman was led on direct examination into the date of this meeting and, from my evaluation of Chatman as a witness, I find that the specific date of this event is highly questionable.
5. Orr did not testify at the hearing. She was no longer employed at the facility when the hearing in this case was conducted.
6. The following represents a composite of the credited testimony of those testifying regarding what transpired during Lisgaris' meeting with Union representative Fuller.
7. According to Chatman, sometime during the meeting Lisgaris stated that while he didn't back down from adverse action, he was not going to butt heads with "you people."
8. Obviously neither Townsend nor Newsome had any clear recollection regarding the dates of meetings.
9. Chatman testified that Union representatives Fuller and George had also been invited to the meeting. Neither of them attended the meeting.
10. This is as this statement was alleged in the Complaint to have been made by Lisgaris.
11. Neither Townsend nor Newsome recalled Lisgaris saying he was going to move Chatman's job.