13:0654(107)CA - Army Corps of Engineers, Kansas City District, Kansas City, MO and NFFE Local 29 -- 1984 FLRAdec CA
[ v13 p654 ]
13:0654(107)CA
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.