U.S. Federal Labor Relations Authority

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32:0665(96)CA - - Army, Reserve Personnel Center, St. Louis, MO and AFGE Local 900 - - 1988 FLRAdec CA - - v32 p665

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The decision of the Authority follows:

32 FLRA No. 96





Charging Party

Case No. 57-CA-70350


I. Statement of the Case

This case is before the Authority on exceptions filed by the General Counsel and the Charging Party (the Union) to the attached Decision of the Administrative Law Judge. The Judge found that a question asked of a Union official by the Respondent's commander did not interfere with employees' rights under section 7102 of the Statute, in violation of section 7116(a)(1). He, therefore, recommended that the complaint be dismissed.

For the reasons discussed below, we agree with the Judge and shall dismiss the complaint.

II. Background

Employee Ethel Mackey called Ray Wilkins, vice president of the Union, and stated that she wanted to talk to him about a possible grievance of another employee, as well as other matters. Wilkins went to see Mackey in her work area. In accordance with established procedure for such visits, Wilkins received permission from Mackey's supervisor to speak to Mackey. Wilkins was not on duty at the time.

Mackey's desk was in an open space area. Several other unit employees were in the area at the time of Wilkins' visit. A few minutes after Wilkins began speaking with Mackey, Lt. Col. Pederson, commander of the facility, came out of his office and noticed the two speaking. Lt. Col. Pederson leaned over a partition which was about 15 feet away from Mackey's desk and, according to the Judge, "loudly asked Wilkins if he had permission to be there." ALJ at 3. Wilkins answered that he did have permission, and Pederson left the area without making any comments.

III. Administrative Law Judge's Decision

Section 7102 of the Statute provides that "{e}ach employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal . . . ." In considering whether Pederson's questioning of the Union official interfered with employees' rights under section 7102 of the Statute, the Judge applied an "objective" test. ALJ at 4. The Judge stated that the test was whether an employer's statement may reasonably tend to coerce or intimidate an employee. The Judge further stated that neither the intent of the employer nor the perception of the employee is determinative of whether Pederson's question could reasonably lead an employee to draw an inference of coercion or interference with the rights guaranteed by section 7102.

The Judge addressed two factors asserted by the General Counsel to support an inference of coercion. First, the Judge dismissed as "strained reasoning" the assertion that Pederson should have spoken to Mackey's supervisor rather than addressing Mackey directly. ALJ at 5. Rather than demonstrating that Pederson looked unfavorably on those who discussed representational matters, the Judge found that "{n}othing was said . . . to manifest such aversion to representational discussions." Id. In addition, the Judge noted that Pederson and Wilkins had discussed employment matters many times. The Judge noted that the record did not reflect any hostile reaction or conduct by Pederson toward Wilkins which would support the view that management disapproved of Union discussions with employees.

Second, the Judge addressed the General Counsel's assertion that Pederson's tone during the questioning supported an inference of coercion. The Judge credited the testimony of several unit employees present at the time of the incident that the question was asked in a "loud" voice. Id. However, testimony by Wilkins that the tone was intimidating and challenging was deemed by the Judge to be subjective in nature. The Judge found no other evidence to support an objective determination that Pederson's question was posed in an intimidating or coercive manner. Therefore, the Judge made no finding that the question was posed in that manner.

The Judge noted that the loud voice used to question Wilkins "may have resulted in several subjective perceptions that the Division Chief was annoyed at Wilkins' presence and representational discussion." Id. The Judge stated, however, that "{w}ithout more," he could not conclude that "asking a question loudly tends to coerce employees and interferes with the exercise of their rights under the Statute." ALJ at 5-6.

The Judge concluded that neither the question, nor the manner in which it was posed, could reasonably be construed as coercive or tending to interfere with or restrain employees in the exercise of their rights under section 7102 of the Statute. Therefore, the Judge recommended that the complaint be dismissed.

IV. Positions of the Parties

The General Counsel argues that Pederson's question constituted an "unprovoked act of rudeness and disrespect from a high level manager to a Union official in the presence of unit employees." General Counsel's Brief at 5. The General Counsel argues further that since Pederson's question did not occur "in a context where some lack of civility could be condoned{,}" it was contrary to the goal of a balanced relationship between the parties established by the Statute. Id. The General Counsel also noted that although the Judge found that Wilkins did not object to being "yelled at" by Pederson, the Union did object at a subsequent labor-management meeting. Id.

The Union also filed exceptions. The Union asserts that Pederson's manner was coercive and intimidating.

V. Analysis and Conclusion

We agree with the Judge's conclusion and find that the General Counsel has failed to establish a violation of section 7116(a)(1) of the Statute. The General Counsel asserts that Pederson's question coerced or interfered with employees' rights under section 7102 to "form, join, or assist" the Union. The General Counsel argues that Pederson's question constitutes:

an entirely unprovoked act of rudeness and disrespect from a high level manager to a Union official in the presence of unit employees. Thus, although Lt. Colonel Pederson's conduct . . . may not have attained the degree of disrespectfulness or intemperance of that [described in Authority cases cited previously in the brief}, it was also not in a context where some lack of civility could be condoned{.}

General Counsel's brief at 5.

The Judge rejected the General Counsel's argument. The Judge found that there was no evidence to support an objective finding that the tone was coercive. The only objective evidence found by the Judge regarding the tenor of the remark was that the question was asked in a loud voice.

We agree with the Judge that Pederson's question did not violate the Statute. A supervisor asked a legitimate question of a Union representative in front of unit employees. Although the question was asked in a "loud" tone of voice, there is no indication in the record that the question was coercive or tended to interfere with employee rights under Section 7102 of the Statute. Therefore, we shall dismiss the complaint.


The complaint in Case No. 57-CA-70350 is dismissed.

Issued, Washington, D.C.

Jerry L. Calhoun, Chairman
Jean McKee, Member

(If blank, the decision does not have footnotes.)