[ v16 p881 ]
The decision of the Authority follows:
16 FLRA No. 123 U.S. ARMY MILITARY TRAFFIC MANAGEMENT COMMAND, EASTERN AREA, BAYONNE, N.J. Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2855, AFL-CIO Charging Party Case No. 2-CA-405 DECISION AND ORDER The Chief Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Chief Judge further found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of the complaint with respect to them. Exceptions to the Chief Judge's Decision were filed by the General Counsel. 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 Chief Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Chief Judge's Decision and the entire record, the Authority hereby adopts the Chief Judge's findings, conclusions and recommendations, except as modified below. The Authority adopts the finding of the Chief Judge that the reprimand of an employee based on Union activity but which would have occurred even in the absence of Union activity did not violate section 7116(a)(2) of the Statute. However, the Authority also finds, contrary to the Chief Judge, that under these circumstances the section 7116(a)(1) allegation of the complaint relating to the reprimand also must be dismissed. /1/ Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981). See also American Federation of Government Employees, Local 1920, AFL-CIO, 16 FLRA No. 70 (1984) (wherein the Authority dismissed a section 7116(b)(1) allegation in "dual motive" circumstances). ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the United States Army Military Traffic Management Command, Eastern Area, Bayonne, N.J. shall: 1. Cease and desist from: (a) Making statements to employees which discourage or chill the exercise of their right, freely and without fear of penalty or reprisal, to join or assist Local 2855, American Federation of Government Employees, AFL-CIO, or any other labor organization. (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Post at U.S. Army Military Traffic Management Command, Eastern Area, Bayonne, N.J., copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Such forms shall be signed by the Commander, or his designee, and they shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by any other material. (b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the remaining allegations of the complaint be, and they hereby are, dismissed. Issued, Washington, D.C., December 18, 1984 /s/ Henry B. Frazier III Henry B. Frazier III, Acting Chairman /s/ Ronald W. Haughton Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT make statements to employees which discourage or chill the exercise of their right, freely and without fear of penalty or reprisal, to join or assist Local 2855, American Federation of Government Employees, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. (Activity) Dated: By: (Signature) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region II, Federal Labor Relations Authority whose address is: 26 Federal Plaza, Room 241, New York, New York 10278 and whose telephone number is: (212) 264-4934. -------------------- ALJ$ DECISION FOLLOWS -------------------- U.S. ARMY MILITARY TRAFFIC MANAGEMENT COMMAND, EASTERN AREA, BAYONNE, N.J. Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2855, AFL-CIO Charging Party Case No. 2-CA-405 Allan Stadtmauer, Esquire Margaret Ann Sipser, Esquire For the General Counsel Samuel S. Horn, Esquire Philip R. Winegarner, Esquire For the Respondent John Bianchi For the Charging Party Before: JOHN H. FENTON Chief Administrative Law Judge DECISION Statement of the Case This proceeding arose under the Federal Service Labor-Management Relations Statute. It is based on a complaint issued by the Regional Director of Region 2, Federal Labor Relations Authority, alleging that Respondent violated the Statute by: (1) terminating Serafino Arena's attendance at operational meetings in April 1980 because he was a shop steward for Local 2855; (2) requesting, through Lt. Colonel Nelsson, on May 23, 1980, that Arena cease his union activities; and (3) issuing a letter of reprimand to Arena on June 26, 1980, because of his office and his activities in behalf of Local 2855. A formal hearing was held in New York City on November 19 and 20, 1980. All parties were afforded full opportunity to examine witnesses, to introduce evidence, to make oral argument and to file briefs. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings, conclusions and recommended order: Findings of Fact Serafino (Sal) Arena /1A/ was employed as a GS-5 Contract Specialist Trainee on March 11, 1979, in the Contract Administration Office (CAO) of the Military Ocean Terminal, Bayonne, New Jersey. That Terminal is a component of Respondent, and was at all material times covered by a collective bargaining agreement between Respondent and AFGE Local 2855. Arena had been employed, for about seven years at the GS-9 level, as a Loss and Damage Claims Examiner and as a Freight Rate Specialist, and was at the time he accepted the GS-5 position in CAO an apparently active Executive Vice President of the Union. He took the grade reduction, under which his pay was unaffected for two years, and he had the prospect of reachieving GS-9 status in that time frame, because he believed the long-run career prospects in CAO were superior to those offered in claims work. He was interviewed for the trainee position by Murray Stern, CAO Chief (and his carpool companion), who outlined the requirements of the position and told him in substance, that it would be to his advantage to disassociate himself from the Union and put all his effort into his training. Although Stern was well aware of the nature and extent of Arena's duties as Executive Vice President from discussions in carpooling which consumed two hours a day, Arena was hired for the job on March 11, 1979. There is no indication that any promise to drop such activities was extracted from him, although he indicates that he responded to Stern's suggestion that he concentrate fully on his training by saying that he would consider such a course. Stern left the job as CAO Chief in May 1979. During their several months of association Stern, upon receiving a request for official time to handle a grievance, reminded Arena of their discussion during the interview in which Stern had stressed the importance of putting his total effort into training. At no time did Stern rate his performance or establish a formal training program, although he did suggest correspondence courses. Stern was replaced by Mr. S. Eugene Arnold while Arena was still active as Executive Vice President. Approximately three weeks after assuming his new position, Arnold spoke to Arena about the number of telephone calls he was placing and receiving about Union matters. According to a memo Arnold prepared on May 21, (G.C. Exh. 2), he informed Arena as well as Ms. Margaret Kaplinski (a former secretary who had just advanced to the job of contract specialist intern) that callers were to be told that calls about Union matters were, absent an emergency, to be placed to Arena at the Union office in the afternoon. The memo (of which Arena was not given a copy) also indicated that Arnold told Arena that everyone was "cooperative with his Union time off activities and that in return he should show more interest in his job and attendance, and try to learn more" and, further, that his performance "while in the office is satisfactory . . . (but) more assistance is required in the area of administration, response to letters, etc. /2/ Arnold remained head of CAO until August or September, 1979, when he was replaced by Marie (Jill) Grasso. On August 8, Arnold gave Arena a satisfactory performance rating for the period from March 12 through July 1. Sometime in June or July Arena resigned from his office as Executive Vice President. He held no Union position until he was appointed shop steward on April 3, 1980, after he grieved Grasso's failure to recommend him for promotion on February 15, 1980. There was some immediate conflict between Grasso and Arena over tardiness and his habit of eating bacon and eggs at his desk. The latter was resolved, after some resistance from him by substituting a donut and eating in a conference room. /3/ Grasso required him to enroll in a correspondence course and provided him with a average of six hours per week to study. Interestingly, Ms. Kaplinski, whose job as a contract specialist intern was the same as Arena's (but who was treated as a "junior" to him), was required to complete her correspondence courses on her own time. Again conflict developed, the merits of which I cannot resolve, concerning Arena's application to those studies. Clearly Grasso was dissatisfied with his progress and expressed her criticism to him, in an environment free of Union activity on his part. In February, approximately 30 days before the anniversary of his year in grade GS-5, Arena asked Grasso if she had submitted the necessary papers for his promotion to GS-7. She told him she had not and proceeded to criticize his work performance, including, specifically, lateness in preparing certain milestone charts. On February 15, Arena filed a grievance which went to arbitration. In September of 1980 the arbitrator rules that Arena had not been given a sufficiently clear and detailed statement of his shortcomings, and directed that this be done and that he be given a period of 90 days in which to remedy them. If such deficiencies were remedied, Arena was to be promoted to GS-7 effective as of the anniversary date of his service as a GS-5. That period was still open when this record was closed. Again, it is to be noted that this refusal to promote Arena occurred when he was not a Union activist. On April 3 Arena was appointed shop steward. By memo dated April 16, Grasso requested that he advise her of his specific area of stewardship. Union President John Bianchi wrote back that she was not entitled to know "the specifics of internal union affairs" and the matter was dropped. Sometime in April, Colonel Frank Francois, Commander of the Military Ocean Terminal, spoke to Arena at his desk, indicating that he understood Arena was now a Union official and therefore ought not attend staff meetings at which management discussions occur which should not take place in the presence of Union officials. Shortly thereafter Grasso told Arena and Kaplinski that they were to stop attending operational /4/ and staff meetings in her absence. Each of them had attended such meetings as part of their training, a practice which Grasso discontinued, but they continued to substitute for her until April. At that time Kurt Stanford, Chief of Cargo Operations, told Grasso that there was no need for her to send a substitute to the daily operational meetings because they could not make on-the-spot determinations required of the contracting officer and, further, that relocation of the meeting site from Grasso's building to another one had rendered such visits inconvenient. Arena resisted this change in duties, and Grasso told him that Col. Francois decides who attends staff meetings, and Kurt Stanford decides who attends operations meetings. In her affidavit to the Authority's investigator, Grasso said that she assumed Stanford's decision to bar Arena for such meetings was based on the conflict caused by Arena's status as a Union official and that the fact that he did not have the knowledge to make contract interpretations. Margaret Kaplinski, a witness for the General Counsel (and a nonmember of the Union who was also barred from such meetings) /5/ was informed by an unidentified luncheon companion from the Terminal's administrative officers that Arena was ousted from such meetings because of his Union affiliation. Stanford denied that Arena's activity had anything to do with his decision, and said that the decision to exclude the substitutes from such meetings, although based on the unimportance of their attendance, was prompted by relocation of the meeting site and the inconvenience caused thereby. There is no indication that Stanford was anti-union. A Log was kept, as provided by contract, on which Arena was required to note that he wished to be excused for Union representational duties, showing the time, the expected duration and the location of such activity. It indicates that he was absent for such reason on April 16, April 17 (twice), April 21, May 6, May 12, May 15, May 16 (twice), May 22, May 27 and May 28 (G.C. Exh. 6). On April 21 CAO received a Disposition Form concerning draft regulations for the movement of hazardous materials. The form, along with other mail, was reviewed by Arena, who noted that it contained an April 28 suspense (due) date, initialed it and forwarded it to Grasso. Arena did not bring the matter of the suspense date to Grasso's attention. /6/ According to Arena, he received the assignment on April 29, a day after it was due, immediately called the office which had requested the work to advise that it would be late, and was informed that Grasso had already informed them that it would be late. Grasso testified that she made the assignment at 8:30 a.m. on April 24. Her "punch list," a spiral notebook of assignments and other reminders strongly supports this assertion. During that time she was out of the office at meetings the better part of every afternoon. At one such meeting she was asked about the status of the Disposition Form, and said it would be late. On April 30 she left Arena a note inquiring about the assignment and stating that it had to be completed on May 1. She returned to her office later that afternoon, after the others had left for the day, and found on her desk the assignment and a request from Arena for guidance, as well as a statement that he had to return to an EEO investigation at 9 a.m. the next day. He had been out a good part of that day on the EEO matter in which he was the personal representative of the complainant. He was not there in his capacity as a Union official, and hence had not signed the Log for such purpose. Grasso was again out of the office on the morning of May 1, as was Arena on his EEO matter. When he returned she called him into her office for purposes of providing the requested guidance. She began by being critical of the progress he had made and his failure to meet the suspense date, and told him she wanted the work done immediately. He responded that he wished to have a Union representative present because he felt he was being counselled. With her permission he then called Chief Steward John Brennan and discussions were suspended until Brennan arrived. When the discussion resumed, Grasso told Brennan that she was not counselling Arena but rather providing guidance at his request and made the point that he did not meet due dates on his work. A discussion ensued about the date when the assignment was in fact made, with Grasso, by reference to her punch list, insisting that Arena had received his assignment four days earlier than he would admit. She became annoyed, and made the point that he spent too much time away from his desk, and was not doing his work-- that he was always handling some other matter, making specific mention of the EEO proceeding then consuming much of his time, as well as working for Brennan. In essence she said that his involvement with the EEO and Union matters kept Arena from spending sufficient time in the Office to get his work done on time. She then said the meeting was not a counselling session, that she had much work to do and she terminated the meeting. /7/ Arena then went to the Union office for about an hour. On Friday, May 2, Grasso again reminded Arena of the importance of finishing the overdue assignment. She also told both Kaplinski and Arena that they were not to leave the office without her permission and told Arena that, due to his work his request to attend the EEO matter at 9 a.m. was denied. Arena thereafter called EEO to report he could not attend and, as a consequence of the intercession of a Colonel Smiley (who indicated Arena would be briefly needed) attended to his EEO responsibilities from 10 a.m. until approximately 2:30 p.m. On Monday, May 5, Arena requested on the Log one and a half to two hours for handling a grievance. This was the only occasion when such a request was denied. It was denied in writing, on the Log, on the ground that his assigned duties had to be completed before he could receive approval. That afternoon Grasso concluded that Arena's conduct warranted a reprimand. According to Grasso, the assignment was well within Arena's capability and he had received adequate time. She therefore concluded that his failure to deliver a timely and acceptable work product was deliberate and warranted a reprimand. She briefed Col. Francois, who instructed her to seek guidance from civilian personnel on the proper procedures. In discussing the shortcomings of Arena, she told the Colonel that she was fed up with Arena and all of his activities, including his Union activities. /8/ She then prepared a three page chronology of the events which she believed justified the proposed reprimand and forwarded it to Personnel. Arena had the assignment typed that afternoon and delivered it the following morning, May 6. Grasso was very dissatisfied with his effort and rather thoroughly revised it. /9/ On the same day, Union President Bianchi prepared an unfair labor practice charge accusing Respondent of harassing Arena and refusing to permit Arena to represent employees. That charge was received by Respondent on May 13. On Friday, May 23, Grasso delivered to Arena a formal reprimand for "deliberate failure to work on assigned duties." While preparing his reply, Arena requested additional official time. Grasso, hurrying out of the office, told him to take his request to Lt. Colonel Nelsson, deputy to Francois and a man for whom Arena had worked as a freight claims examiner when he was active as Vice-President of the Union. Nelsson asked Arena "why don't you stop this Union nonsense and do your job like you're supposed to do instead of like you were in 82"? /10/ On May 29 Arena submitted his written reply to Francois. In his reply, Arena denied receiving his assignment on April 24, stressing the fact that he recorded its receipt in a note on April 29 because it was already overdue. He defended against Grasso's charge that he spent three hours on his correspondence course on April 24 on the ground that it could not interfere with an assignment he had not yet received. He did not address her assertion that he did the same thing on April 29. With respect to her assertion that he spent over 12 hours on the EEO matter on April 30 and May 1 and 2, (one-half his time), he replied that he was, "indeed," occupied in such cause. He further argued that her denial of his request to attend the May 2 EEO matter and her statement that he and Kaplinski were not to leave the office without permission was "another act of continuing harassment because of my representational responsibilities as authorized by law, for both the Union and otherwise." On that note, he asserted that the law must be changed if participation in representational work could be considered evidence of deliberate failure to perform assigned work. He summed up by characterizing Grasso's critique of his performance as fraudulent, defamatory and part of a pattern of increasing harassment. On June 25, 1980, Colonel Francois sustained Grasso, finding that her proposed reprimand was amply warranted. A centerpiece of the General Counsel's evidence is the testimony of Francois in explanation of a paragraph in an affidavit given to the Authority. Francois, called as an adverse witness, said that he sustained Grasso's proposed reprimand upon the rebuttal submitted by Arena and his own knowledge of what was going on. In his affidavit he said "I based this decision on Arena's rebuttal, but I do not recall exactly what I based on my decision on, However, I consider(ed) Arena's hours involved in other activities on duty hours. These activities included illnesses, union activity, EEO activities and just goofing off activities. When asked what Union activities he considered when making his final decision, he replied that there were none: "There were no union activities I gave him a reprimand on." After protesting that the single paragraph read into the record was unfairly taken out of the context of the entire affidavit, Francois again said that he based his decision on Arena's rebuttal, and that all the matters he had enumerated were in the rebuttal. When it was suggested that he had testified that the Union activities he considered were those Arena mentioned in his letter of rebuttal, he replied that it was because the hours that he used in the union and other activities consumed so much time that he wasn't working, and "that's what the whole reprimand was about." Counsel for the General Counsel then asked: "Okay. So you considered some of the time he spent on union activities in making your determination?" Francois replied that he had done so "(o)nly because he (Arena) had raised it in his rebuttal." After stating that Arena spent a great deal of time in Union activity, he was asked whether in his determination he was considering a lot of hours on union activities. He responded: "And goofing off too, that's correct." When asked whether he equated the two, he said that he did not, and when asked whether he even personally caught Arena goofing off, he said that he had. Interestingly, Arena's rebuttal mentions no specific incident of Union activity on his part, it merely contends that the proposed reprimand was retaliation for his "representational responsibilities as authorized by law, for both the Union and otherwise." Grasso's chronology mentions no Union activity except for an account of the meeting with Chief Steward Brennan, called by Arena because he felt her response to his request for guidance constituted counselling, and Arena's trip to the Union office shortly thereafter. The Log shows he did engage in Union representational activity on four occasions prior to the proposed reprimand. None of those occasions collided with performance of the assignment at issue. Counsel for the General Counsel asserts that the unlawful motivation for the reprimand is indicated by the fact that Arena had not previously been counselled. Grasso testified that she had in fact attempted to "counsel" Arena in the initial stages of the promotion grievance, in the presence of President Bianchi, and that he became so loud that she terminated the meeting. She generally asserted that he did not take criticism well and would not profit from counselling, and received any discussion of work deficiencies as counselling which called for the presence of a Union representative. Counsel for the General Counsel also asserts that Francois "admitted that for 'at least ten months' Grasso had been telling him that she was disturbed because Arena was always running to the Union and filing grievances and ULPS." Although it is not clear what months such reference includes, the observation immediately follows a statement that Francois discussed with Grasso her intention to reprimand Arena, and thus suggests that the statement was made at that time. Whatever precisely it was that Counsel for the General Counsel said (the transcript is garbled but I think the whole sense of it supports the General Counsel's version, see page 31), Francois testified that he could not recall whether Grasso made such a statement at the time of their conference, but that she had been telling him that for at least ten months. Given the fact that the conversation occurred on May 5, and that Arena had first "run to the Union" or filed a grievance in mid-February, I think it quite clear that those ten months ran back from the date of Francois' testimony. A number of charges were filed in Arena's behalf after this conversation. /12/ There is, finally, the fact that Grasso gave Arena good references for other jobs during material times, and that Francois had issued only two other reprimands during his tenure as Commander. On April 10, 1980, Grasso evaluated Arena in connection with his application for a GS-11 position as a traffic management specialist. She rated him above average in the skills or oral and written communications, and in ability to "extract and evaluate meaningful and pertinent data which includes researching written materials . . . ." As to specific knowledge of various areas she responded that she had not observed such work. She appraised his overall potential as above average. On May 20, she appraised Arena in connection with an application for a GS-5 (target GS-11) position as a computer specialist. Again, she rated his overall potential as above average, his skill in oral communication outstanding and his writing skill above average. She attempted to explain these appraisals as based upon potential, or ability, as opposed to actual performance. In January 1978 an employee was reprimanded for insubordination, and in January 1979 an employee was reprimanded for negligently failing to inspect shipments received, thus not noticing that $1650 worth of cassettes were missing and affording somebody a license to steal. Discussion and Conclusions This is not a run-of-the-mine case of discrimination, where union activity is followed by adverse employment changes arguably caused by those activities rather than by changes in job performance. Here the alleged discriminatee held high Union office and was very active in a unit of approximately 1000 employees before taking on the new job, ceased such activities with the active encouragement of management, found himself in job difficulty after about seven months of work for a new supervisor in an atmosphere free of Union activity, and resumed Union office after he was in trouble. Here, too, it is clear that those new Union activities, as well as other representational work (EEO) did in some measure contribute to the reprimand he received. While alleging no unfair labor practice prior to April of 1980, when Arena was appointed steward, the General Counsel introduced background evidence in an apparent effort to show that the two supervisors who preceded Grasso in CAO were opposed to the Union and tried to dissuade Arena from his activist role. Thus it was shown that Stern, well aware of Arena's role as Union Executive Vice-President, counselled him that he would be well-advised to cease such activities and be prepared to concentrate on succeeding in his new position as a Contract Administration Trainee. At some time later, Stern reminded Arena of those discussions. I find no evidence of animus from such talk. They were carpool mates, well acquainted with one another, and often discussed Union matters. Arena was under consideration for an entirely new job which would require on-the-job-training as well as successful completion of correspondence courses. The clear message conveyed was that active involvement in Union affairs would necessarily detract from the time and effort devoted to mastering a wholly new field. Most telling of all is the boomerang effect of such background evidence. The fact is that Stern, well aware of Arena's role, and concerned about its incompatibility with a trainee's progress, nevertheless hired Arena in the absence of any assurance he would cease such activities. The same may be said of the evidence that the second supervisor, Arnold, tried to put a clamp on Union-related telephone calls to Arena in the morning, where provision had been made for his availability on official time in the Union office during the afternoon. Arnold would have been remiss in his duty had he failed to do so, yet the fact that he did is proferred as evidence of an inhospitable attitude. In July, Arnold gave Arena a satisfactory performance rating. General Counsel Exhibit 2 shows that Arnold was not entirely satisfied. He left this record, albeit secretly, of his belief that the office had been cooperative with respect to Arena's time off for Union activities, but that Arena had not, in return, showed sufficient interest in his work and in his attendance. He said that Arena's work while in the office was satisfactory, but that he could be more helpful in several areas, including answering correspondence (G.C. Exh. 2). Remarks of the sort made by Stern and Arnold are of course ambiguous, and take on meaning and clarification from the entire work environment. There is lacking here any unequivocal evidence of opposition to the Union. There is no history of violations. There are, rather, expressions of concern about Arena's time in Union activity as it impacted on his work. Again, in my judgement, this is not a run-of-the-mine situation, such as those where considerations of time spent in Union matters unlawfully intruded into an appraisal or evaluation of a journeyman employee who was current in the state of his art, but whose work produce suffered because of time spent in protected activities. /13/ Arena was a trainee who was expected to learn an entirely new job and who could avoid any loss in income if he mastered it within two years. I do not find this background evidence establishes a proclivity to punish Arena for Union activities, so as to cast a baneful light or subsequent events. Rather, I find Respondent accommodated Arena's ambitions by hiring him notwithstanding his role as an activist, that Stern no more than give him friendly advice that his new job should receive all of his energy, and that Arnold betrayed only his concern that Arena's effort to learn the new job was not what was to be expected, given the effort Arnold had made to accommodate his Union activity. /14/ Obviously, Grasso and Arena did not hit it off well with respect to his tardiness and his breakfast. He had resigned from Union office several months before she assumed command of CAO, and there is no indication she was opposed to the Union. Nevertheless, his work hardly went smoothly. In December (about three months after her arrival) she criticized his progress in the correspondence courses, notwithstanding that unlike nonmember Kaplinski, he was given an average of six hours per week to study. In this instance, as in the case of breakfast on the job, he disputed her approach to the matter. Finally, in February, he approached her about her intentions with respect to his reachieving GS-7 status in March. While the Arbitrator in the subsequently filed grievance found she did not give him a sufficiently detailed statement of his shortcomings, she did make it clear that she did not feel he was ready for promotion. /15/ One reason given, of immediate relevance to the reprimand at issue, was that he was late in completing an assignment. As in the case of the other background evidence, the evidence of the refusal to promote Arena also cuts the other way. It establishes that Grasso and her superiors were prepared to go the grievance-arbitration route rather than promote a former GS-9 back to GS-7, and that such a stand was taken against a backdrop of no Union activity in the preceding eight months and no evidence whatever of a disposition to punish Arena for his earlier Union role. Thus, as noted, we are presented with quite the reverse of the usual case: an alleged discriminatee who encountered very serious problems on the job and thereafter became active in the Union. The question remains whether Rena's resumption of his role as a Union official caused the additional difficulties he was to face down the line. Arena's exclusion from staff meetings after his appointment as steward is not alleged as a violation. It is evident that there was confusion between this incident and the simultaneous exclusion from attendance at operational meetings. I fully credit Grasso's statement that she was so confused when she ventured the opinion that Stanford may have been in part motivated to exclude him because his attendance would present a conflict of interest. The conflict is apparent at staff meetings of managers, but not at operational meetings routinely attended by unit employees. I would venture the guess that the same confusion explains the hearsay elicited from Kaplinski about her unidentified luncheon companions. I would in any event disregard that testimony as having no probative value in the circumstances. There is no evidence that Stanford was motivated to exclude Arena because of his appointment as steward or his having filed a grievance. Arena had in fact attended such meetings when he held higher Union office. This allegation has no support in this record save that derived from the timing. The exclusion also occurred about the time of the removal of the site from the building then shared by Grasso and Stanford, thus allegedly prompting Stanford to think of the added inconvenience as well as the value of such attendance. It is not without some significance that Kaplinski, who was not a Union member, was also excluded. I conclude that these circumstances, at most, give rise to suspicion and fall far short of establishing by a preponderance of the evidence that Respondent's motivation for the change was illegal. I find that the proposed dangerous cargo regulation was assigned to Arena on April 24. I credit Grasso's account both because she had entered it into a chronological log, and because I cannot believe an individual as aggressive as Arena would have accepted an assignment a day after it was due without having made an issue of it. However, it would not change my view of this matter were I to find he actually received the assignment on April 29, for there still remained over three working days before Grasso concluded, on May 5, that he was deliberately failing to do his job. She informed him by a note left on April 30 that the assignment had to be completed on the following day. Later that day she received his request for guidance and his statement that he had to return to his EEO representational duties at 9:00 a.m. on May 1. He had spent almost all of that day on the EEO matter, and spent approximately one half of his available time in that endeavor during the three critical days of April 30, May 1 and May 2. On the latter day, a Friday, she again reminded Arena of the importance of completing the assignment, told him and Kaplinski that they were not to leave the office without permission, and specifically denied (although unsuccessfully) his request to attend the EEO investigation on that day. On the following day, Monday, she was confronted with a Log entry requesting one and one half to two hours official time for a grievance, which she specifically denied (this being the only time she ever did so) on the ground he had to finish his assigned duties. Sometime that afternoon he turned into typing an unsatisfactory draft of CAO's proposed comments on those regulations. In the meantime, Grasso had clearly been annoyed and upset at Arena's involvement of Chief Steward Brennan at their May 1 meeting in response to his request for guidance. Because she expressed her evident unhappiness with his seeking guidance two days after the assignment was due, he concluded that he was being counselled and sought his Weingarten rights. The critical issue here is whether her irritation with him was grounded on his assertion of rights recognized by the Statute, or upon his assertion of inappropriate claims to representation which the law does not recognize. In IRS, Detroit, Michigan, 5 FLRA No. 53, the Federal Labor Relations Authority held that a routine performance evaluation was not an "examination in connection with an investigation" within the meaning of Section 14(a)(2)(B) so as to afford the employee the right to union representation. It is clear that Grasso's criticism of Arena's progress on his assignment, in response to his request for guidance, was not an examination, and had no connection with an investigation. It follows that her anger or frustration at his "running to the Union" was properly based on his overreaching, and forms no basis for a finding of Union animus on her part. On May 5, Grasso, determined to seek disciplinary action against Arena, and cleared the matter with Colonel Francois. In doing so betrayed the fact that she was fed up with all of his activities, including those for the Union. I conclude that she was quite understandably upset at his routine subordination of his work to his other activities. At the time his principle representational activities concerned the EEO matter, which collided very seriously with his completion of the already overdue draft of comments on the dangerous cargo regulations. Suspense dates were not an everyday occurrence, and it is clear from this record that Grasso was embarrassed about late delivery of the assignment to Cargo Operations and was deeply frustrated by Arena's cavalier attitude towards his work. She several times made it clear to him that he was on a priority assignment, and she especially made it clear that she was angry that he should be requesting guidance several days after the assignment was due. He nevertheless secured Union representation at the delivery of such guidance, questioned her right to make notes on the session, and again absented himself for about an hour at the Union office. After being told that he could not leave without permission and that he could not go to the EEO session on Friday, May 2, he requested permission to attend to Union representational duties on Monday. At that point the assignment was five work days overdue (or four days counting from the day he acknowledged receipt), she had bluntly made known her sense of urgency about immediate completion of his work, and he appears blandly to have pursued a course of representational business as usual. Somewhere a balance must be struck between the competing demands of the Agency's mission and a Union officers right to represent employees. /16/ The record yields a portrait of a Union steward in trouble with his supervisor before he occupied that office, who never came forward, even during what became an emergency with respect to the missed suspense date, to indicate that he was concerned about the conflict between finishing work of utmost importance and performing other representational duties. No accommodation was sought. Rather, as his reply to the proposed reprimand makes clear, he perceived no conflict: his representational work was a right which transcended any duty to the employer. He was therefore altogether casual about meeting Grasso's demand, and she concluded that he was without loyalty to her and without sympathy for her predicament. Of critical importance here is that no nexus was established between the EEO representational duties which formed the principal obstacle to completion of the work and the union or Arena's status as an official. It should be noted here also that he studied his correspondence course when it conflicted with that assignment. In sum, there is evidence that Grasso's decision to reprimand was affected by Arena's Union activities. She was clearly critical of the fact that he was out of the office on these and other matters rather than doing his work. She was clearly very embarrassed that CAO was not responding in timely fashion to the request of another unit, and was angry and frustrated because Arena responded to her criticism by calling for the Union and to her ultimatums by simply pursuing his EEO case on a business-as-usual basis. There is no evidence that she was opposed to the Union as such. Her chronology of the events deemed to warrant the reprimand places its emphasis on Arena's study of his correspondence courses and his involvement in the EEO matter, and mentions the Union only with respect to the Brennan visit and the hour Arena took at the Union office shortly thereafter. Although never expressed, the whole sense of her memo is that Arena subordinated this urgent assignment to such other matters. I conclude that Arena was reprimanded primarily for that very reason, and would have been reprimanded even in the absence of Union activity. /17/ It is not urged, and I do not find, that the EEO matter was protected activity which could not constitute a legitimate basis for discipline where pursued in the face of serious conflict with priority work. I attach no importance to the above-average ratings simultaneously made of Arena's potential for other jobs. Aside from her excuse that she believed she was judging his ability rather than his performance, she was already on record that he did not deserve promotion to GS-7. The remark attributed to Lt. Colonel Nelsson was not denied or explained, as he did not testify. Notwithstanding the doubt that it was seriously meant which arises from Arena's statement that he was not intimidated, the remark stands as an unexplained discouragement of Union activity. Regardless of its impact on Arena, or Nelsson's intention, it is by any objective standard illegal, i.e., it would tend to coerce a reasonable employee. Wyman-Gordon Company v. NLRB, 108 LRRM 2085 (CCA 1, 1981). I find it was coercive because it was uttered by the Deputy Commander of the Military Ocean Terminal and implied a disapproval of Arena's Union activities. While there was no explicit threat of reprisal or promise of benefit, such a remark, from such a source, would inherently tend to discourage or chill the exercise of the right to join or assist a labor organization, "freely and without fear of penalty or reprisal." Accordingly, I recommend that the complaint allegations addressed to the exclusion of Arena from operational meetings and to the reprimand as a violation of Section 7116(a)(2) be dismissed. Having found that Lt. Colonel Nelsson's remark was violative of Section 7116(a)(1), and that the decision to reprimand Arena was violative of the same Section because it was affected by considerations of Union activity. I recommend that the Authority adopt the following Order: ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby orders that the U.S. Army Military Traffic Management Command Eastern Area, Bayonne, N.J.: 1. Cease and desist from: (a) Making statements to employees which will discourage or chill employees in the exercise of their right, freely and without fear of penalty or reprisal, to join or assist Local 2855, American Federation of Government Employees, AFL-CIO, or any other labor organization. (b) Permitting considerations of the Union activity of stewards or other Union officers to have any impact in decisions made with respect to discipline or any other aspect or condition of employment. (c) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Post at U.S. Army Military Traffic Management Command Eastern Area, Bayonne, N.J., copies of the attached notice marked "Appendix," on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander and they shall be posted for 60 consecutive days thereafter in conspicuous places, including all places where notice to employees are customarily posted. The Commander shall take reasonable steps to insure that such notices are not altered, defaced or covered by any other material. (b) Pursuant to 5 C.F.R. 2423.30, notify the Regional Director, Region 2, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. /s/ John H. Fenton JOHN H. FENTON Chief Administrative Law Judge Dated: April 6, 1982 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT make any statements to stewards of Local 2855, American Federation of Government Employees, AFL-CIO, or to any of our employees which would discourage or chill them in the exercise of their right to assist that Union or any other labor organization without fear of penalty of reprisal. WE WILL NOT permit considerations of activity on behalf of Local 2855, American Federation of Government Employees, or any other labor organization, to have any impact upon decisions made with respect to discipline or any other aspect or condition of employment of our employees. WE WILL NOT in any like or related manner interfere with, restrain or coerce any employees in the exercise of rights assured by the Statute. (Agency or Activity) Dated: BY: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region 2, whose address is: 26 Federal Plaza, Room 241, New York, New York 10278, and whose telephone number is: (212) 264-4934. --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) and (2) provides: Section 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment(.) /1A/ Misspelled Marina in the transcript for the second day of hearing. Note also that Kaplinski is misspelled, as in Grasso. /2/ I believe it proper to make such findings, as the Exhibit was offered without limitation as to purpose. /3/ He had previously been counselled by either Stern or Arnold for tardiness and eating at his desk. /4/ Operational meetings involve officials of the stevedoring contractor and the plans for moving cargo into and out of the terminal. /5/ Although both were told not to go to such meetings, Kaplinski had not gone to operational meetings after Grasso arrived. /6/ Kaplinski testified she would have done so, or placed the document affected by the suspense date on top of the mails, although there was no instructions to separate such mail. /7/ Grasso said that there was no was of counselling Arena, who immediately became indignant and called for Union representation. She had previously cancelled a meeting, in the presence of a Union representative because Arena raised his voice. /8/ In acknowledging that she was fed up with such activities because of their impact on her mission, Grasso on cross-examination said that "it had reached a point of no return . . . had gotten completely out of hand . . . and was intolerable . . . ." She further said that she "certainly couldn't be expected to carry on and do everything in there, pick up on everyone's assignments it was just impossible." Asked whether it "was all this activity that was taking him away," she replied: All the activity and the fact that when the due date is given, if . . . the individual can't meet it or they don't know how they can accomplish it, I don't expect them to wait three or four days to come and tell me about it. If you have loyalty in a position you come and you tell the person immediately . . . . I have the regard the respect for the position I am the one that has to answer for it. This to me was an affront that was-- (i)t was an insult because I would be the one that has to answer why I didn't meet this. /9/ She testified that, when she brought to his attention an omission in his response, he simply shrugged his shoulders and said he forgot it. /10/ Nelsson was on the West Coast and was not called to testify. According to Arena, he had been unhappy with the time Arena spent on Union matters when they worked together in Building 82. Although it is of no legal significance, Arena said he did not feel threatened by the remark. /11/ As note, the request entered on May 5 would have, had it not been denied. It could not have been made at a time when Grasso had made more plain her concern about the overdue assignment. /12/ At the time of the grievance, Arena also filed a sex discrimination charge. It was not pursued. /13/ See Department of the Navy, Norfolk Naval Shipyard, OALJ-81-61 and United States Army, Corpus Christi Depot, 4 FLRA No. 80, for a discussion of such problems. It does not follow that an agency may not speak to an employee about a real or perceived conflict between achievement of its mission and union activities. /14/ Stern was concerned that Arena used more far more official time than the contract allowed (G.C. Exh. 4(b)). /15/ Respondent relies on some of the Arbitrator's findings which are critical of Arena's job performance. That Award having been introduced for the purpose of showing that protected activity preceded the reprimand, application of the usual rules of evidence would bar admission of his opinions on matters at issue here. However, Rule 2423.17 provides that the parties are not bound by the rules of evidence, and it may be that subsidiary findings in his Award, because they relate to the very job performance at issue, do deserve something in the order of official notice of a decision in another forum. I note, but because of my uncertainty do not rely upon, the Arbitrator's finding that the "evidence amply supports the conclusion that Arena's on-the-job performance, including his correspondence courses, left much to be desired, and that it was occasioned primarily by his union and nonunion representational functions." I also note, with the same restriction, that the Arbitrator appears to have accepted Stern's testimony that Arena's Union activity consumed far more time than the contract allowed, that he refused requests to delay the handling of Union tasks to the detriment of work that had to be done, that he was unsuccessfully counselled on this matter, and that at the end of two months of supervision Stern felt Arena, although an intelligent man, was not performing in a manner which would warrant promotion absent marked improvement. /16/ Cf. Vandenburg Air Force Base, 5 A/SLMR 486 and Puget Sound Naval Shipyard, 6 A/SLMR 709 for example of such an accommodation. /17/ IRS, Washington, D.C., 6 FLRA No. 23. I recommend that this approach be modified by a finding that Respondent violated Section 7116(a)(1) when considerations of Union activity intruded into its determination to reprimand Arena.