19:0748(93)CA - SSA, Baltimore, MD and AFGE Local 1501 -- 1985 FLRAdec CA
[ v19 p748 ]
19:0748(93)CA
The decision of the Authority follows:
19 FLRA No. 93
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1501, AFL-CIO
Charging Party
Case No. 9-CA-40028
DECISION AND ORDER
The Administrative Law Judge issued the attached 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 and the Respondent filed exceptions to the Judge's
Decision.
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, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order as modified below.
In agreement with the conclusion of the Judge, the Authority finds
that, under the circumstances herein, the General Counsel failed to
prove by a preponderance of the evidence that there was a request by an
employee for a Union representative and a denial thereof by management
in violation of section 7114(a)(2)(B) of the Statute. In this regard
the Authority notes particularly that, when the employee indicated that,
if the inquiry concerning his use of official time continued, he would
wish to have a Union representative present, the Respondent's official
ceased this line of inquiry. In view of the above determination, the
Authority does not find it necessary to address or adopt the other
findings and conclusions of the Judge with regard to whether there was
an "examination," whether the employee being questioned could have
"reasonably believed" that the examination might have resulted in
disciplinary action, and whether a Union official present as a "witness"
also constituted a representative within the meaning of the Statute.
/1A/
ORDER
IT IS ORDERED that the complaint in Case No. 9-CA-40028 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., August 15, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 9-CA-40028
Wilson Schuerholz
For the Respondent
Patricia Jeanne Howze
For the General Counsel
John Mack
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on December 28,
1983, by the Regional Director for the Federal Labor Relations
Authority, San Francisco, California, a hearing was held before the
undersigned on March 20, 1984 at Seattle, Washington.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based
on a charge filed on October 27, 1983, by American Federation of
Government Employees, AFL-CIO (herein called the Union) against Social
Security Administration, Baltimore, Maryland (herein called Respondent).
The Complaint alleged, in substance, that on or about October 5, 1983
Respondent conducted an examination of employee Michael Teefy; that
during such an examination, and at a time when Teefy had reason to
believe the examination would result in disciplinary action against him,
the said employee requested the presence of a Union representative;
that Respondent denied said request and proceeded with the examination--
all in contravention of Section 7114(a)(2)(B) of the Statute and in
violation of Section 7116(a)(1) and (8) thereof.
Respondent's Answer, dated January 23, 1984, denied that an
examination took place as alleged and that employee Teefy requested the
presence of a Union representative. It also denied the commission of
any unfair labor practice.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed which have been
duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the American Federation of
Government Employees, AFL-CIO, has been the exclusive bargaining
representative of a nationwide consolidated unit of Respondent's
employees, including certain employees of Respondent's Port Angeles,
Washington facility with specified exclusions thereat.
2. At all times material herein American Federation of Government
Employees, Local 1501, AFL-CIO, was the designated agent, on behalf of
the Union herein, to represent the unit employees of Respondent,
Seattle, Washington District. /1/
3. At all times material herein Michael A. Teefy has been employed
as a Union representative assigned to Respondent's Port Angeles,
Washington office. Since November, 1981 Teefy has been Regional
vice-president of the Union's National Council of Social Security
Administration Field Operations locals. Teefy's duties as Union
representative include handling grievances, taking part in arbitration
hearings, and participating in collective bargaining sessions on behalf
of the Union.
4. Respondent's Seattle Region consists of the states of Washington,
Oregon, Idaho and Alaska. There are 57 field offices. There are also
three area directors in the Region who report to the assistant regional
commissioner for field operations. Each field office has a manager, as
well as supervisors who report to the area directors.
5. Since Teefy could not obtain data needed for the February 24
meeting, he did not show up and meet with Morris. Prior to the
arbitration hearing, Pam Smith, chief of Labor-Management Relations
Division, told Teefy that he was going to be suspended for not meeting
with Morris.
6. Record facts show that Teefy was scheduled to represent a unit
employee at an arbitration hearing on February 8, 1983 /2/ at Seattle,
Washington. /3/ The hearing ran four days and was adjourned till
February 25. A meeting was scheduled between Teefy and Richard Morris,
management analyst for Respondent in the Seattle Human Resources
Management Branch (HRMB) to be held on February 24. Official time was
granted Teefy, and he was authorized to travel to Seattle from Port
Angeles in the morning of that date, as well as meet with Morris in the
afternoon to discuss the grievance which led to the arbitration
proceeding.
7. Upon Teefy's return to Port Angeles after the arbitration
hearing, supervisor Bob Dunphy called Teefy into the manager's office.
Dunphy told the employee he could if he wanted, get a Union
representative. Teefy called Jeffrey Saul, vice president of Local
1501, and asked the latter to be his representative. Since Saul was
attempting to obtain official time therefor, Teefy asked Dunphy to
postpone the meeting. The supervisor refused, saying the employee was
being afforded a representative as a courtesy and had no absolute right
to such representative. Whereupon Dunphy started asking Teefy re his
whereabouts on February 24 and what he had done that day. The employee
then asked a local Union representative, Rita Erdmann, to be his
representative at the discussion. The meeting continued and lasted
30-45 minutes. It resulted in a written reprimand being given to Teefy
and the latter's being placed on AWOL for four days. /4/
8. On October 3 Teefy attended a bargaining session as chief Union
negotiator in Seattle to discuss a review policy for the Seattle
district. The meeting lasted from 9:00 a.m. till 4:00 p.m. but
negotiations were not completed. Since the mediator, Douglas Hammond,
could not resume until two days later, October 5, it was proposed that
they reconvene at that time. Teefy told Hammond that he is authorized
four hours travel to and from Seattle, and thus he could not attend on
the 5th of October until 12 or 1 o'clock. He told Hammond that if it
could be arranged with management for him to stay in Seattle, they could
commence negotiations at 9:00 a.m. on October 5. The mediator agreed to
talk to management. He returned shortly and said "Okay, I'll see you at
nine o'clock in the morning on the fifth."
9. On October 4 Teefy spent the day working on Union proposals for
the next negotiation session set for the following day. During the
morning of October 4 Teefy spoke to his supervisor, Bob Dunphy, who
asked where he was and what he was doing. Teefy explained he was
preparing Union proposals at the home of Mary O'Malley /5/ for the next
session. Dunphy asked if the employee would be returning to Port
Angeles. When Teefy stated it would be ridiculous to drive to Port
Angeles and turn around to return back to Seattle, the supervisor asked
if Teefy would be using his RVP /6/ time. The employee replied in the
negative, and Dunphy commented that Teefy was on travel time. The
employee stated that if Dunphy is ordering his return to Port Angeles
he'll do so, otherwise he'll stay in Seattle. The supervisor asked
Teefy what he would be doing, and the latter replied he'd be working on
the proposals.
10. The negotiations resumed on October 5 and concluded at 3:30 when
the parties reached an impasse. Whereupon Teefy went up to the third
floor to speak with Morris in the Labor Management Relations Section to
ascertain whether a travel request he had submitted for future duties
would be approved. Earlier that day Teefy had dropped off a request for
travel and official time to spend four days in the following week
preparing and presenting a case involving the termination of Frank
Lingelback. Teefy also gave Morris a memo from Saul authorizing him to
negotiate on behalf of Local 1501 and appoint its representatives.
O'Malley was with Teefy when the latter walked in the office. /7/ Teefy
asked Morris if there was any problem re the request concerning travel
and official time for the Lingelback case. Morris told him it was
satisfactory.
11. A discussion then ensued re the whereabouts of Teefy on October
4. The record reflects three principal versions of what transpired.
The testimonies with respect to each such version are as follows: /8/
(a) Teefy's Testimony
Morris told Teefy he wanted to talk to the employee re yesterday
(October 4)-- that he wanted to know what Teefy was doing and where he
was that day. Teefy stated he was at O'Malley's house preparing
proposals for the negotiating session scheduled for October 5. Morris
commented that Teefy should be accountable for his time, and he asked
the employee whether it was right for the latter to do as he pleased.
Morris mentioned that Teefy could have gone to the movies, been hiking,
or at the Space Center. The employee denied being at said places, and
repeated that he was working on proposals for negotiations. Teefy said
"This is beginning to sound like a Weingarten discussion, and I want my
representative." Morris replied it was not an investigation; that he
was just asking what Teefy had been doing on the previous day, that
nothing was going to happen. He also stated that the employee should
either have been on leave without pay or annual leave or RVP time.
Morris asked Teefy if he were on travel status and the latter said he
was taking constructive leave, that it was ridiculous to drive back to
Port Angeles and turn around and return to Seattle.
During the initial discussion between the two individuals O'Malley
approached Teefy and asked for her car keys. She asked Teefy if he was
all right, and the latter replied that he did not know. He then asked
O'Malley to stay and be a witness to the discussion. Whereupon O'Malley
remained for the rest of the conversation. /9/
Morris remarked that he didn't understand "constructive travel" and
asked Teefy for citations and regulations. At that point Teefy stated
it was getting to be an investigation and he wanted his representative.
Morris denied that it was an investigation, saying he was just asking
questions. The conversation continued with Teefy explaining his idea of
"constructive travel." Morris said that when the employee traveled in
such a manner he must either use his own time or else not be reimbursed
for such time. After both individuals repeated some of the same
comments to each other, Teefy asked "Am I being charged with something?
If I'm being charged with something, I want my representative."
Whereupon Morris said, "We're not charging you with anything. You still
have your RVP time this week, but if this problem should come up in the
future, there could be a different change." At that point Teefy again
asked if he was being charged with anything, and Morris said no charge
was made against the employee.
(b) O'Malley's Testimony
This witness confirmed the fact that she accompanied Teefy to the
regional office on October 5; that she heard Morris Ask Teefy where he
had been the previous day and what he had been doing. Teefy explained
he had been preparing Union proposals; that it would have been stupid
to drive back to Port Angeles, turn around and drive back to Seattle.
Morris commented that the employee could have been in the mountains,
gone fishing, or been at the Seattle Center. Both Morris and Teefy
discussed their versions of "constructive leave" which Teefy believed he
could use for the time taken. Morris again stated he needed to know
where Teefy was on October 4, and the latter then said "we're getting
into a Weingarten."
O'Malley confirms the fact that Teefy thereafter asked her to stay
and be a witness; that Morris remarked he had not yet been told where
Teefy was yesterday or what he had been doing. Teefy then said, "Now
we're talking Weingarten. Now we're talking union rep." Whereupon
Morris replied, "We're not talking about AWOL or discipline just now.
We just want to ask you a few questions-- where you were and what you
were doing yesterday?" Also, Morris stated we're not talking about AWOL
or discipline just now." Teefy then stated "This is Weingarten." He
commented that management did this to him before in February. The
conversation switched to the applicability of "constructive travel," and
Teefy stated these were references and practices supporting his use
thereof. He also agreed to obtain them for Morris.
(c) Morris' Testimony
This management official confirms the appearance on October 5 of both
Teefy and O'Malley in the regional office; that there was a preliminary
discussion re Teefy's request for leave and official time to represent
Lingelback the following week which request was approved. Morris then
asked Teefy where he had been yesterday and what he was doing; that the
employee was accountable for his time; that Teefy replied it was none
of Morris' business. Teefy asked if Morris expected him to drive to
Port Angeles and then turn around and return. Morris replied in the
negative. The parties discussed the applicability of constructive
travel. Morris remarked that Teefy could have been at the Seattle
Center or skiing. At some point the employee said, "This is getting
dangerously close to being a Weingarten meeting." Morris stated "No it's
not. Nothing is going to happen here." Dunphy also said that nothing is
going to happen. Morris also suggested Teefy use RVP time for yesterday
but the employee refused to do so. Teefy again asked whether management
expected him to return to Port Angeles and drive back to Seattle.
Morris replied he did not expect him to do so. Whereupon Teefy stated
"if you keep going on like this, I want somebody here." The parties then
changed the topic and discussed Teefy's plans re the following week as
union representative at the planned adverse action hearing.
The record reveals that Morris wanted the information as to Teefy's
whereabouts on October 4 so as to make arrangements in the future for
Teefy to work under similar circumstances. Morris testified Teefy could
take claims in the Seattle office; that it was a situation to be
discussed.
(d) Dunphy's Testimony
This management official confirms the fact that he spoke to Teefy on
October 4 re his whereabouts on that day. He asked the employee about
his status on October 4 and whether Teefy was going to take leave or RBP
time. The latter told Dunphy he was on constructive travel and
explained how it worked in the east. He said it was ridiculous to drive
back to Port Angeles and then return again to Seattle. Dunphy agreed,
but no resolution was made as to the employee's status.
Dunphy recalls being in the office on October 5 and hearing Morris
ask Teefy what he was doing the previous day. When Teefy asked why he
was being questioned, Morris replied that they were trying to find out
what Teefy considered his duty status to be on that day. Teefy said
that it was getting close to a Weingarten situation. Morris said it was
not so; they just wanted to discuss Teefy's duty status. Whereupon
Teefy remarked, "if this is going to continue, I think I want a
representative here." Morris then said, "Okay, we'll quit talking about
yesterday." The discussion then centered around Teefy's request for
travel and official time re his representational duties in Spokane the
following week. The meeting ended at 4:35 and all agreed upon the
scheduled plans for the presentation in Spokane.
11. Record facts show, and I find, that Teefy was not thereafter
charged with abuse of leave or any other misdeed, nor was any
disciplinary action taken against him based on his failing to return to
Port Angeles on October 4.
Conclusions
General Counsel contends that Respondent conducted an investigation
of employee Teefy on October 5 in contravention of Section 7114(a)(2)(B)
of the Statute. It is asserted that management's labor relations
specialist, Rick Morris, examined Teefy in connection with the
investigation of the employee's use (or misuse) of official time on
October 4. Further, that Respondent denied Teefy's request for a union
representative therat, at a time when the employee reasonably believed
such examination could result in disciplinary action against him-- all
in violation of Section 7116(a)(1, and (8) of the Statute.
The predicate of the aforementioned contentions is found in Section
7114(a)(2)(B) of the Statute, and it provides as follows:
"An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
. . . .
(B) any examination of an employee in the unit by a
representative of the agency in connection with an investigation
if--
(i) the employee reasonably believes that the examination may
result in disciplinary actions against the employee; and
(ii) the employee requests representation.
There are two primary issues posed for determination herein: (1)
whether an "examination" of Teefy took place at which the employee
requested, and was denied union representation; (2) if so, whether
Teefy could have reasonably believed that such examination might result
in disciplinary action being taken against him.
(1) Where an agency interrogates an employee during an investigation
concerning such individual, and also denies his request for union
representation when the employee may well fear disciplinary action
toward him, the Authority has not hesitated to find that such conduct
violated the Statute. See Internal Revenue Service, Los Angeles
District Office, 15 FLRA No. 133; Department of the Navy, Norfolk Naval
Base, Norfolk, Virginia, 14 FLRA No. 97. In such instances questions
directed to the employee concerning his duties or employment are deemed
to constitute an examination in connection with an investigation
conducted by management. In the case at bar it is quite clear that the
interrogation by Morris of Teefy on October 5, which dealt with the
latter's whereabouts on the previous day and his activities-- all in
conjunction with an investigation as to the employee's misuse of
official time-- may properly be described as an "examination" under the
Statute. I reject any contention by Respondent that since the
discussion ensued as a result of Teefy's visiting the regional office
himself, it was not formalistic in nature and thus may not be termed an
"examination." An agency may examine an employee irrespective of how it
is initiated and whether or not it was planned. Further, no formalities
are required, as I view the statutory language, in order to construe
such investigation as an examination within the meaning of the Statute.
It is also quite clear that there must be a request by the employee
for union representation, and a denial thereof by management, before an
agency runs afoul of Section 7114(a)(2)(B). In those cases where the
employer has flouted the Statute it has been quite clear that the
employee has asked for such representation, which request has been
denied by management. Lackland Air Force Base Exchange, Lackland Air
Force Base, Texas, 5 FLRA No. 60; Internal Revenue Service, Washington,
D.C. and Internal Revenue Service, Hartford District Office, 4 FLRA No.
37.
Turning to the instant case, I am not persuaded that Teefy made an
unqualified request for union representation on October 5, which was
denied by Morris during the examination. While Teefy testified he
stated, during the initial discussion, that the investigation sounded
like "Weingarten," and he wanted a union representative, none of the
other witnesses corroborated such a request. O'Malley, who as a union
representative accompanied Teefy to the office, testified that the
latter said, "Now we're talking union rep." Both Morris and Dunphy
testified that Teefy stated, at the end of the conversation that if
Morris was going to continue the questioning, the employee wanted a
union representative. Further, Teefy also testified that he asked
management if they were charging him with anything; that Morris assured
him no charge was being leveled against the employee; and Teefy
remarked that if he is being charged, he wanted a union representative.
Based on the foregoing, I am unable to conclude that Teefy made an
unqualified request for a union representative. This employee, who is
experienced and well versed as a union agent, is familiar with
labor-management activities. Such familiarity with labor relations
matters justifies the expectation that any insistence by him for a union
representative would not be couched in contingencies or be vague in
nature. The record reflect, and I find, that Teefy's demand for such
representation was contingent upon Respondent's charging him officially
with some misconduct; that in such event, or if Morris continued the
investigation, Teefy would demand the presence of a union
representative. This conclusion is reinforced by the fact that Teefy,
after he mentioned that the questioning sounded like "Weingarten,"
explained his whereabouts on October 4 and what duties he was performing
that day. The employee continued to discuss the type of leave
(constructive) which he believed was applicable, and he repeatedly
attempted to justify his remaining in Seattle an extra day. At no time
did Teefy refuse to continue the discussion or investigation on the
ground that he did not have union representation. Moreover, Morris
assured the employee that he was not being charged with anything; and,
further, Respondent's official did not continue with the examination as
to Teefy's whereabouts on the previous day. It is true that Morris
denied the meeting was a "Weingarten" situation but conceded management
wanted to interrogate Teefy re his leave. However, in the absence of an
unmistakable and clear request or demand for a union representative /10/
by Teefy, I am constrained to conclude that Respondent did not deny the
employee an opportunity to be represented by his union.
(2) Affording an employee the opportunity to have a union
representative present during the investigative examination is not
absolute. The Statute specifically delimits the right so accorded the
employee to instances where he reasonably believes said examination will
result in disciplinary action against him. /11/
The Supreme Court set the stage in the private sector for granting
union representation to an employee who undergoes an investigatory
interview. In NLRB v. Weingarten, Inc., 420 U.S. 251, 955 Ct. 959
(1975) it was concluded that the right of an employee to such
representation was based on Section 7 of the National Labor Relations
Act which guaranteed the right of employees to act in concert for
'mutual aid and protection'. The court was concerned that the employee,
being fearful of consequences or inarticulate, would not be able to
raise extenuating factors on his behalf during an investigation as to
whether the employee's conduct warranted discipline. Hence, it was held
in the cited case that requiring an employee to attend such interview,
which he reasonably believes may result in the imposition of discipline,
infringes his protected rights under said Act.
In the public sector the same qualification was adopted, as set forth
under 7114(a)(2)(B), which conditions such representation on the
employee reasonably believing the examination may result in disciplinary
action against him. To this extent, such statutory provision tracks the
limitation imposed by the Weingarten decision. Moreover, the Authority
has refused to find that an agency ran afoul of said section of the
Statute where a grant of immunity was accorded the employee. Thus, in
U.S. Immigration and Naturalization Service, San Diego, California, 15
FLRA No. 80 the agency interviewed an employee in the course of an
investigation concerning certain improper conduct by the employee's
fellow patrol agents. The employer assured said employee that no
administrative proceedings would be instituted against him based on any
statement made by him during the interview. It was held that such
assurance by the agency was sufficient to dispel any fear by the
employee of discipline. Accordingly, the latter was disentitled to
union representation during the interviews. In those instances where
the Authority has found an infringement by an agency of the right to
union representation, the employee received no firm assurance that his
statements during the interview would not lead to disciplinary action
being taken against him. See Department of the Navy, Norfolk Naval
Base, Norfolk, Va., supra; Internal Revenue Service, Washington, D.C.,
and Internal Revenue Service, Hartford District Office, supra.
Turning to the case at bar, General Counsel insists that Teefy had a
reasonable basis for fearing disciplinary action against him despite the
assurance by Morris that no such action would be taken. This contention
is predicated upon the former interview of Teefy by supervisor Dunphy in
February, 1983 and the resultant discipline thereafter of Teefy for
failure to attend a meeting with Morris.
Several factors, however, make it clear to the undersigned that the
previous interview did not afford a reasonable basis for Teefy's fearing
discipline at the examination on October 5. It does not appear that
Teefy was given any assurance during the February interview that no
disciplinary action would be taken against him. The failure to give
such grant of immunity contrasts with the interview on October 5. Both
Teefy and O'Malley, as well as Morris, testified that at the meeting on
October 5, Teefy was told that nothing was going to happen to him by
reason of the examination. While it may be maintained that the
assurance of immunity could have been more explicit, I am convinced that
Morris did express to Teefy that the latter would not be disciplined or
receive a reprimand based on the statements made by the employee at the
interview. Further, that such a declaration was sufficient to dispel
any reasonable fear of future discipline by reason of the interview.
/12/
It is also noted that, at the February interview, Teefy did in fact
have union representation. The record reflects that the employee asked
union representative Rita Erdmann to represent him thereat, and that the
discussion then continued for about 30-45 minutes. Since there is no
evidence to the contrary, and based on the testimony of Teefy in said
respect, it is concluded that union agent Erdmann acted as Teefy's
representative during the entire examination.
Accordingly, I am persuaded that the February examination of Teefy
did not afford him a reasonable belief on October 5 that he would be
disciplined or reprimanded officially as a result of statements made at
,the interview on the latter date. Moreover, I concluded that Morris
did give sufficient assurance to Teefy at said interview that the
employee would not be disciplined based on statements made by him
thereat.
In view of the foregoing findings and determination, the undersigned
concludes that Respondent did not transgress Section 7114(a)(2)(B) of
the Statute. Accordingly, it is recommended that the Complaint, which
alleges a violation by Respondent of Section 7116(a)(1) and (5), be
dismissed in its entirety.
WILLIAM NAIMARK
Administrative Law Judge
Dated: January 9, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1A/ During the hearing the Judge was confronted with conflicting
testimony with regard to what was said during the October 5, 1983
meeting. 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.
/1/ Effective as of January 1, 1984 the local was designated as Local
3937. Prior thereto and during the material event herein, and at the
time the charge was filed, it was local 1501.
/2/ Unless otherwise indicated, all dates hereinafter mentioned occur
in 1983.
/3/ The incident which occurred in February was introduced as
background by General Counsel. It is contended this evidence
demonstrated that Teefy had reasonable fear of discipline at the later
meeting with supervisor Bob Dunphy in October.
/4/ General Counsel's brief adverts to the fact that on February 24
Dunphy gave repeated assurances to Teefy that the latter would not be
disciplined. The record does not disclose that, during their
conversation, any such assurances were given to Teefy.
/5/ O'Malley was employed at the South Seattle Social Security Office
as a claims representative. She also held the position of local Union
representative and handled first and second stage grievances.
/6/ Regional Vice President time of eight hours per week is accorded
Teefy, as regional vice-president of the Union, to work on regional
Union issues.
/7/ Record facts reflect Bob Dunphy was present during an ensuing
discussion between Teefy and Morris. Another employee, Michael Walsh,
was present for part of the discussion.
/8/ While there are some discrepancies apparent from the different
accounts of the meeting, most of the material facts which are
determinative do not require a resolution of credibility. To the extent
that such disparity calls for a credibility resolution and a
determination as to whether the facts demonstrate a request for, and
denial of, Union representation on Teefy's behalf, such resolution and
determinations will be set forth in the conclusions, infra.
/9/ Teefy further testified he did not consider O'Malley to be his
representative; that he was reluctant to get into an argument with
Morris as to whether a union representative, as himself, could have a
representative.
/10/ Respondent takes the position that, in reality, Teefy had a
union representative in the presence of O'Malley who was a union
official. However, in view of Teefy's request that O'Malley remain as a
"witness" and the lack of any participation by her at the examination, I
do not conclude that she attended as Teefy's representative.
/11/ Since it has been heretofore concluded that there was no clear
request for, and denial of, a union representative at the October 5
interview, the issue as to whether Teefy reasonably believed thereat he
would be disciplined need not be resolved. Nevertheless, in view of the
emphasis placed thereon by Respondent, as well as the circumstances
herein, consideration is given this issue by the undersigned and a
determination reached in connection therewith.
/12/ Note is also taken that the Authority has made it clear that the
reasonableness of any belief, by the employee, of disciplinary action
must be founded on objective criteria. Where management has given
assurances that no discipline is contemplated, the employee's belief to
the contrary is deemed subjective in nature and therefore unreasonable.
See Department of the Navy, Norfolk Naval Base, Norfolk, Va., supra.