Conclusions

A. KNUTH WAS DOCUMENTED IN HIS 971 FILE AS BEING OUT OF HIS WORK AREA AND REQUIRED TO TAKE ANNUAL LEAVE IN CONNECTION WITH HIS ATTENDANCE AT A TRAINING SESSION IN REPRISAL FOR HIS PROTECTED ACTIVITY IN VIOLATION OF SECTION 7116(a)(1) AND (2) OF THE STATUTE.

This case is controlled by Letterkenny Army Depot, 35 FLRA 111 (1990). In such cases the General Counsel need only make a prima facie showing that the violation of section 7116(a)(1) and (2) of the Statute occurred. Respondent then has an opportunity to establish by a preponderance of the evidence that its actions were justified. Here the preponder-ance of the evidence is short of proving that Respondent had legitimate justification for the actions it took against Knuth, for being out of his work area or in requiring Knuth to take annual leave in connection with his attendance of a training session. In this regard, weaknesses in the General Counsel's case disappear when the testimony of Respondent's own witness, Greenwood, is considered. Greenwood's candor established that he was smitten by the achievements and "awards" of the Shop. His total testimony confirms that he did not want that record jeopardized by grievances. Classic is his statement that "they" wouldn't consult me or they wouldn't give us an opportunity to work the problem out. These statements carry little weight since the record shows that the grievances involved in this case went through the normal two steps of the contractual procedure and the Union was just not satisfied with the responses from Greenwood's supervisors, so they continued the grievance process. Furthermore, Greenwood's hand is apparent in most of the actions taken against the employees herein. In my opinion, this first level supervisor set the tone for handling the employees who filed grievances. The evidence, in my opinion, demonstrates that Respondent's attempts to justify its actions against Knuth are contrived, and that it would not have taken the actions against Knuth in the absence of protected activity.

The record reveals that less than a week after Knuth had grieved his performance appraisal, along with others in the Shop, he began experiencing problems with supervision. Indeed, problems that he had not previously experienced. Greenwood, who admittedly had knowledge of the grievances soon after they had been filed, initiated annotations in two of the four grievants 971 files concerning work areas. Knuth was among those two. Similarly, in September, when Knuth's grievance was awaiting a 3rd step hearing before a grievance panel pursuant to the negotiated grievance procedure, he was charged AWOL and required to take annual leave under circumstances in which other employees who had done the same thing, had not been charged. The timing of the annotation in Knuth's 971 file, as well as the AWOL charge relative to the filing and processing of his performance appraisal grievance, raises questions about the appropriateness of Respondent's actions.

The record also shows animus toward employees involved in protected activity. The attitude of Respondent's supervisors toward the employees' having exercised their protected right to file grievances under the negotiated grievance procedure was certainly not one of compassionate acceptance. The general view on grievances is portrayed by Greenwood in his statement that the employees could file as many "damn grievances" that they wanted, when discussing the work area issue with Renz. Respondent's contempt is further defined by the prophecy of Lynch that the employees were going to be getting the documentation that they had found lacking, if they pursued the grievances. Lynch's forecast, unlike the local weatherman, could not have been more accurate, as evidenced by the actions taken against Knuth and against Spiller, whose case will be discussed in more detail below. The views expressed above, in my view constitute animus in this case.

The manner in which Respondent chose to annotate Knuth's 971 file helps explain its unlawful motive. It also demonstrates that Knuth's 971 file would not have been annotated in the absence of protected activity. The idea of a work area in the Shop seems to have found its genesis only after the four grievances were filed in August 1991. This is evidenced by credited testimony, as well as both Renz' and Knuth's vehement protests against being documented as being out of their "work areas". Respondent offered no evidence that it ever imposed "work area" restrictions on employees in the Shop prior to the admonishments initiated by Greenwood. Returning to the 971 file, AuCoin's action in agreeing to place a statement in Knuth's file only to the effect that he had discussed work areas with Knuth, and then placing remarks in Knuth's file denoting that Knuth had been viewed out of his work area, seems to be unnecessarily crafty. In the absence of anything improper with respect to documenting an employee for being out of his work area, the need for such guile becomes apparent. The pretext, in my view, was unveiled showing that Respondent's actions were clearly aimed at undermining two grievants, Knuth and Spiller.

There is also a close relationship between the annotation in Knuth's 971 file, and the issue raised in Knuth's grievance concerning his performance appraisal which further helps confirm Respondent's unlawful motive, and assists in showing that such action would not have been taken in the absence of protected activity. Thus, Knuth's supervisor, AuCoin, admitted that because Knuth's grievance argued that there had not been sufficient documentation to support the lower appraisal, he sought to address this issue by creating more documentation to back up his actions. While AuCoin sought to characterize this as a policy which he adopted uniformly throughout the Shop, the evidence suggests that this fresh approach on his part, not only resulted from Knuth's grievance, but was also applied solely to the grievant, Knuth. Although, AuCoin testified that during the time he had known Knuth, Knuth had been "consistently" counselled, it was only after Knuth filed a grievance that AuCoin deemed it necessary to put something in writing concerning Knuth's alleged deficiencies. In the circumstances, Repondent's unlawful motive, becomes more clear.

In seeking to justify its action regarding the annotation in Knuth's 971 file, Respondent maintains that it only sought to accommodate the Union in its request that management have tangible justification for changes in the ratings given to employees. This is simply another way of saying that the grievants received the documentation that they had argued did not exist in support of their lower ratings. The result of Respondent's subsequent finger-pointing at the Union, as the reason behind its own conduct, has an obvious impact on the Union concerning the manner in which employees will view the Union after the instant grievances. Clearly, the Union was not asserting in its grievances that Respondent make a wholesale effort to put as much paper in the grievants' files as possible. Respondent's explanation that its actions were justified by the Union's grievance, are in my opinion, too transparent for serious consideration.

Respondent's claim that the documentation issued to the grievants was consistent with the recommendations of the 3rd step grievance panel, that all performance related discussions be documented and that regularly-scheduled performance discussions be implemented, requiring annotation in the employee's 971 file, is rejected. The actions complained of in the complaints in this matter clearly all occurred before the 3rd step grievance decisions were issued. Unless they were clairvoyant, the supervisors involved could hardly know the outcome of the grievance panel's recommendations before they were made. Moreover, Respondent's actions can not be argued as consistent with the grievance panel's recommendation, since there is no evidence that the grievance panel ever suggested that the grievants be issued a swell of documentation concerning matters which had before gone unnoticed by Shop supervisors.

Moving ahead to the threatened AWOL charge against Knuth when he went directly from home in the morning instead of reporting to work before going to a training session. Knuth was required to take annual leave for the time. Knuth's attendance of the training session provided a good opportunity for Shop supervisors to show him that he was operating under a different set of rules than those that applied before he filed a grievance. The record evidence is quite clear that no employee had ever been required to take annual leave in connection with attendance at a training session, and no employee in the shop had ever reported to work prior to attending a training session. Respondent's motive in the matter is illuminated by its insistence upon placing blame on Knuth notwithstanding factors suggesting that Knuth was justified in doing what every other employee did when assigned to early morning training. Aside from employee witnesses testifying, that they reported directly to training sessions to avoid the necessity for filling out travel vouchers, there was absolutely no evidence of any employee who attended a training session before reporting to work, ever being required to take annual leave for that time.

Also indicative of the incompatible treatment Knuth received is the formula which Respondent used to determine the amount of annual leave that Knuth would be required to take. The evidence suggests that Respondent intended to treat Knuth differently. According to Greenwood, he and AuCoin figured that Knuth should be attributed 45 minutes for clean-up and travel time, and, thus required to take 1.25 hours annual leave to make up the two hour discrepancy. At the same time, however, Greenwood admitted that employees who were scheduled for an 8:30 a.m. training session, whose work day began at 7:30 a.m. were not required to report to work, the 45 minute travel allowance, presumably not being applicable. He then attempted to explain the discrepancy away by asserting that the manner in which timekeeping was accomplished had been changed. Upon further examination, Greenwood admitted that he did not know whether the timekeeping method had changed at the time that Knuth had been required to take annual leave. Greenwood's statements show that the matter was handled haphazardly not because Knuth was not allowed the extra 15 minutes, but rather that no "formula" existed prior to Knuth's situation.

AuCoin insisted upon placing fault upon Knuth for not notifying him of the training in a timely fashion. However, Knuth notified him about the training session the day before the scheduled session, which was the day that Knuth himself, learned that he had been selected to attend the training. AuCoin additionally admitted that the CPO is normally responsible for notifying supervisors of employee training. It is unclear what more Knuth could have done. Furthermore, Knuth says that Sands directed him to report directly to the training class. Sands' directive to the employee was simply ignored by AuCoin. AuCoin, ignoring the fact that Sands had directed Knuth to go straight to training without first reporting to Fairchild helps establish that Respondent was groping for reasons to discipline the grievants.

The record evidence demonstrates that Respondent had a discriminatory motive both in annotating Knuth's 971 file and in requiring him to take annual leave in connection with his attendance at a training session. Respondent failed to establish by a preponderance of the evidence that any justification existed for its actions against Knuth. Accordingly, it is found that Respondent violated section 7116(a)(1) and (2) when it required Knuth to take annual leave in connection with his attendance of a training session. Respondent also violated section 7116(a)(1) and (2) when it annotated Knuth's 971 file based on a fictional "work area" policy.

B. SPILLER WAS ISSUED A COUNSELLING MEMORANDUM BASED ON HIS REPRESENTATIONAL ACTIVITIES BECAUSE OF HIS EXERCISE OF PROTECTED ACTIVITY.

Regarding the counselling memorandum issued to Spiller, one need only examine the testimony of Greenwood, who described him as "working against us." Greenwood also described his basic problem with him as follows:

Greenwood's outrage that he had to deal with a grievance when prior to that time, the Union had never filed a formal grievance in the Shop can not be mistaken. It is also clear, that Greenwood blamed Spiller for the grievances, although Spiller has a Statutory right to assist employees in grieving their appraisals under the negotiated procedure. In Greenwood's view, Spiller was fine as a Union steward for only as long as he did not actively assist employees or his own protected rights.

Renshaw's animus is also shown by the record. Again, the timing is a key factor. See Naval Air Engineering Center, supra. Renshaw virtually admits the fact that the counselling memorandum would not have been issued in the absence of protected activity. First, Renshaw says that he decided to research how much officical time Spiller was allowed approximately two to three weeks prior to verbally reprimanding Spiller on this subject. Since the record establishes that the verbal reprimand occurred in early September, it appears that Renshaw's sudden urge for research concerning Spiller's allotted official time occurred almost immediately after the August 8, 1991 date of Spiller's first step grievance. Then Renshaw says that since approximately April 1991, he suspected Spiller was conducting Union business without permission. Yet, it was not until after the performance appraisal grievances were filed that Renshaw warned, and subsequently counselled Spiller on the matter. Furthermore, Renshaw admitted that he allowed employees casual conversations in the shop which lasted two to four minutes, without questioning the conversation. He stated that a conversation becomes "burdensome" when it lasts 15 or 20 minutes, and that it was at this point that he inquired about the nature of the conversation, and why the employees were not performing their jobs. However, Renshaw never indicated that he had witnessed Spiller and Knuth conversing for 15 or 20 minutes. Renshaw found it necessary to break up Knuth's and Spiller's conversation, although the record shows that such a conversation would otherwise have been allowed. Renshaw's action demonstrated not only a motive, but also helps show that the action would not have been taken in the absence of protected activity.

Respondent's motive in issuing the counselling memorandum to Spiller is also betrayed by its failure to investigate the matter for which Spiller was counselled. As previosuly noted, Renshaw assumed that Spiller and Knuth were discussing a representational matter, although he did not hear the conversation, simply because the two had met earlier that day on a representational matter. While Renshaw says that he provided Spiller the opportunity to explain the nature of his conversation with Knuth, the opportunity came with the disciplinary action in his hand. Such a move is easily recognized as a belated attempt to justify his actions. The total record makes it pretty clear that Respondent's supervisors made no attempt to cover their dislike for protected activity or to secure the truth, or even to obtain "evidence" which would sustain their action against Spiller. In this case, there is abundant evidence that the counselling memorandum issued to Spiller was motivated by discriminatory reasons. Accordingly, it is found that Respondent failed to establish by a preponderance of the evidence that there was any justification for its issuing a counselling memorandum to Spiller for conducting union business without permission. Respondent's action, therefore, was in violation of section 7116(a)(1) and (2) of the Statute.

C. LYNCH'S STATEMENTS TO SPILLER VIOLATED SECTION 7116(a)(1) OF THE STATUTE

The test applied in situations such as here is whether the alleged statement tends to coerce or intimidate employees in the exercise of section 7102 rights under the Statute, or whether employees could reasonably draw a coercive inference therefrom. U.S. Department of Agriculture, Forest Service, Chatahoochee-Oconee National Forest, Gainsville, Georgia, 45 FLRA 1310 (1992). Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 35 FLRA 891, 895 (1990) (Ogden Air Logistics Center).

In the instant matter, the testimony that Lynch told Spiller that if "documentation was what the employees wanted, then documentation was what they were going to get." is undenied. Also, Lynch did not deny that on at least one occasion, he may have told Spiller that the employees who filed the grievances may lose, even if they won the grievances. Thus, Lynch is imputed with making two statements to Spiller which violated the Statute.

It was decided sometime ago that statements by managers or supervisors tending to interfere with or coerce an employee in the exercise of the protected right to file a grievance violates the Statute. SeeBureau of Engraving and Printing, 28 FLRA 796 (1987). Telling an employee that he will lose, even if he wins his grievance can leave only one impression, and that is that there will be certain backlash for having filed the grievance. See U.S. Department of the Air Force, Nellis Air Force Base, Nevada, 38 FLRA 39 (1990)(where the Authority upheld an administrative law judge's finding of a violation where the agency informed an employee who had grieved her performance appraisal that she had been "marked" as a person who had gone to the union and civilian personnel). Consequently, it is found that this first statement constituted a violation of section 7116(a)(1). The second statement attributed to Lynch, that employees were going to get the documentation that they had argued should have been present in order to justify their lowered appraisals, is equally violative of the Statute. It constitutes a blatant threat to "paper" employees who filed the grievances, which is what in fact did occur. There is no question, in my opinion, that such a threat would tend to chill an employee in the exercise of the protected right of filing a grievance. Accordingly, it is found that both statements attributed to Lynch, as set out above, violated section 7116(a)(1) of the Statute.

Based on the foregoing, it is found that Respondent violated section 7116(a)(1) and (2) of the Statute. Therefore, it is recommended that the Authority adopt the following: