[ v13 p654 ]
The decision of the Authority follows:
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 Ms. Williams hours of employment. In any event, again according to Mr. Gant, following his request to Ms. Williams to obtain a standard form 52, Ms. Williams accused him of "messing" with her money and immediately left the room. According to Mr. Gant, while Ms. Williams was out of the office he received a telephone call from Union Steward Foxworth who informed him that he, Mr. Foxworth, was representing Ms. Williams and that he had been informed that Gant was intending to downgrade Ms. Williams to a 32 hour per week position. Mr. Gant told Mr. Foxworth that he was "somewhat appalled," that he had not said that to Ms. Williams, and that certainly was not what he had meant. Mr. Gant went on to tell Mr. Foxworth that he had informed Ms. Williams that he would like to initiate an action to get a part time temporary who would work 32 hours per week in the office during the period that Ms. Williams was in negotiations. According to Mr. Gant, the conversation then ended. Mr. Gant admitted during the hearing that the telephone call from Mr. Foxworth upset him. Subsequently, following her return to the office, Ms. Williams approached Mr. Gant and asked him if he was going to change her job to a 32 hour week. Mr. Gant then informed her that he was not going to change her job, but that he intended to "hire a part time person, clerk-typist, in the office, while she was in negotiations." Later in the day, according to Ms. Williams, Mr. Gant called her over to his desk and in a loud voice told her that he "did not appreciate her going to Mr. Foxworth and taking out business out of the office." Further, according to Ms. Williams, Mr. Gant told her that she "was supposed to be his right arm person, and that (she) was supposed to be loyal to him, and to the office; and that, with taking my business, or our conversation to Mr. Foxworth, I was being disloyal, and that he would not change the upward mobility job, well, the clerk-typist job to an upward mobility position." Mr. Gant acknowledges having a conversation with Ms. Williams, on her return to the office, wherein he informed Ms. Williams that he was upset because she had gone to Mr. Foxworth and given him the wrong information. Mr. Gant denied making any reference to "loyalty". Mr. Gant further acknowledged having another conversation with Ms. Williams later in the day wherein the subject of promoting Ms. Williams through "upward mobility" procedures was discussed. According to Mr. Gant, the conversation commenced with a question from Ms. Williams concerning the status of her "upgrade" or her "upward mobility position." According to Mr. Gant, he informed her that he had not taken any steps in that direction and "indicated" to her that he was concerned that she had not been carrying out some of her responsibilities that had been assigned to her and that he could not consider an upgrade until such time as she fulfilled such responsibilities. According to Ms. Williams, on or about February 14, 1983, at about 8:15 a.m., approximately 30 minutes before Ms. Williams was to leave the office to participate in bargaining negotiations, the Black Employment Program Manager brought four letters into Ms. Williams' office for typing. The letters were given to Mr. Gant who in turn gave them to Ms. Williams for typing at approximately 8:25 a.m. Ms. Williams typed two of the letters and then left for the bargaining negotiations which were scheduled to begin at 9:00 a.m. Upon returning from the negotiations Ms. Williams was informed by Mr. Gant that the two letters had to be retyped and that if she, Ms. Williams, could not get her work out due to the negotiations, "that he would have to write a letter" and "place it in (her) folder." According to Ms. Williams, she understood the reference to "a letter" to mean a disciplinary letter. With respect to Ms. Williams typing accuracy, Mr. Gant acknowledges talking to her about her typing on two occasions, but denied ever threatening to discipline her. Discussion and Conclusions A reading of the above statement of facts makes it clear that resolution of the allegations underlying the instant complaint turns on a determination of credibility between the conflicting testimony of Ms. Williams and Mr. Gant with respect to the substance of their conversations. Having observed the witnesses and their demeanor and analyzed their respective testimony, I credit Mr. Gant's testimony with respect to the substance of the conversations and, accordingly, find that Mr. Gant did not make the alleged coercive statements attributed to him by Ms. Williams. In view of the above findings and conclusions, it is recommended that the Authority issue the following Order dismissing the complaint in its entirety. ORDER It is hereby ordered that the complaint in Case No. 7-CA-30246 be, and it hereby is, dismissed in its entirety. BURTON S. STERNBURG Administrative Law Judge Dated: July 19, 1983 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 such resolution was incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings.