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

[ v13 p654 ]
The decision of the Authority follows:

 13 FLRA No. 107
 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/
    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 --------------------
                              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
    Administrative Law Judge
                           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
    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
    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
    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.
    In view of the above findings and conclusions, it is recommended that
 the Authority issue the following Order dismissing the complaint in its
    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.