U.S. SMALL BUSINESS ADMINISTRATION, WASHINGTON, D.C. and JOHN BARENO
U.S. SMALL BUSINESS ADMINISTRATION, WASHINGTON, D.C.
Case No. WA-CA-21106
Gail D. Reinhart
Counsel for the Respondent
Ana de la Torre
Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1), by the statements that three supervisors made to John Bareno which, under the circumstances, allegedly tended to coerce and intimidate Bareno in the exercise of rights protected by section 7102 of the Statute.
Respondent's answer admitted the allegations as to Respondent, the Union, and the charge, but denied any violation of the Statute.
For the reasons set forth below, it is concluded that the statements were not made and that Respondent did not violate the Statute as alleged.
A hearing was held in Washington, D.C. The Respondent and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.
At all times relevant, John T. Bareno was a Program Analyst for the Respondent in the Office of Program Support. His immediate supervisor was Rodney A. Lewis, Director, Office of Program Support. James L. Charney, Director of Program Analysis and Compliance, was his second level supervisor, and Robert Lineberry, Deputy Director, Office of Program Analysis and Quality Assurance (OPAQA), was his third level supervisor.
Bareno became Vice President of Solidarity, U.S.A. (Solidarity) in or about mid-February 1992. Prior to this time, Bareno had been a shop steward for the American Federation of Government Employees, Local 2532, the agent of the exclusive representative of Respondent's employees.
On April 2, 1992, Robert Wildberger, an employee of Respondent, advised Respondent, by letter to the Administrator, that Solidarity "is a new Federal sector labor union seeking to represent federal employees." He identified himself as President of Solidarity, but did not inform Respondent that Bareno was affiliated with Solidarity. On July 13, 1992, Respondent received a letter from the Authority's Denver Regional Office transmitting an election petition filed by Solidarity. One of the attachments to the letter indicated that Bareno was Executive Vice President of Solidarity. This was the first time Respondent learned that Bareno had any official connection with Solidarity.
1. The Alleged Statement By Lewis
John Bareno testified that sometime during mid-April 1992, Rodney Lewis called Bareno into his office and asked Bareno if he had a "death wish?" Bareno thought this to be an odd question,