OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916
andJUNE A. MESARICK
Case No. 76-CO-10038
Bruce Conant, Esquire Matthew L. Jarvinen, Esquire For the General Counsel
Before: WILLIAM B. DEVANEY Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, et seq. (1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns an alleged
statement by the Union President to the charging party, to the
effect, that if she filed an unfair labor practice charge her
grievance would be dropped.
This case was initiated by a charge filed on June 12, 1991
(G.C. Exh. 1(a)), which alleged violations of §§ 16(b) (1), (2),
(3), (5) and (6) of the Statute. The Complaint and Notice of
Hearing issued on May 28, 1992 (G.C. Exh. 1(b)), alleged violation
of § 16(b)(1) only and set the hearing for August 28, 1992, at a
time and place in Oklahoma City, Oklahoma, to be designated later.
By Order dated June 15, 1992 (G.C. Exh. 1(d)) the time and place of
the hearing was set and, pursuant thereto, a hearing was duly held
on August 28, 1992, in Oklahoma City, Oklahoma, before the
undersigned. All parties were represented at the hearing, were
afforded full opportunity to be heard, to introduce evidence
bearing on the issue involved, and were afforded the opportunity to
present oral argument which each party waived. At the conclusion of
the hearing, pursuant to the request of Respondent to which General
Counsel had no objection, October 14, 1992, was fixed as the date
for mailing post-hearing briefs. General Counsel timely mailed a
brief, received on October 19, 1992, which has been carefully
considered. Respondent on October 28, 1992, mailed a brief,
received on November 2, 1992. As Respondent's brief was not timely
mailed it is rejected and has not been considered. Upon the basis
of the entire record, including my observation of the witnesses and
their demeanor, I make the following findings and conclusions.
1. The Respondent, American Federation of Government
Employees, AFL-CIO, Local 916 (hereinafter, "Union"), is the
exclusive representative of a bargaining unit of employees at the
Oklahoma City Air Logistics Center, Tinker Air Force Base
(hereinafter, "Tinker AFB").
2. The Charging Party, June A. Mesarick, is employed at
Tinker AFB as a GS-7 Supply Technician, having worked herself up
from a GS-2 Clerk-typist to her present job which is to research
requisitions for aircraft parts.
3. Although employed by the Air Force for more than 20
years and having received fully satisfactory performance
evaluations in recent years (Res. Exh. 4, p. 6), Ms. Mesarick
contends that management continuously lies about her (Tr. 31); that
Tinker AFB tapped her home telephones, stole her keys and broke
into her house, and stole her address book and planted it at the
Union hall (Tr. 30, 63). Tinker AFB previously proposed to
reprimand Ms. Mesarick for making false statements (Tr. 26, 28),
but Ms. Mesarick said the supervisor lied about her (Tr. 28). In
1990, Ms. Mesarick told several persons that she had talked to
Becky, who had died about a month earlier (Res. Exh. 4, pp.
4. In March, 1988, Ms. Mesarick received a suspension of
one day; she filed a grievance which she said went to arbitration
in about May, 1989; and she said that Ms. Cheryl Prentice, who is
in charge of arbitrations for the Union, told her that she had won
(Tr. 16).(2) Nevertheless, Ms.
Mesarick said that she continued to talk to Ms. Prentice every
couple of months about the grievance; that, ". . . they were
supposed to have hearing over again for 40 different people . . ."
(Tr. 17). She stated that, ". . . they finally told me that --
after two years they told me to forget it, that it was -- that case
was out in limbo, and I could just forget about it." (Tr. 17).
5. Ms. Mesarick wrote to Mr. Eugene Marshall, President
of the Union, on November 19, 1990, in which she stated, in
"This is a request for information on the five cases the union has had in arbitration
regarding me from 1988 to the present. Ms. Prentice advised me several weeks ago
the cases were in limbo indefinitely because Tinker AFB has refused to follow
thru. . . ." (G.C. Exh. 1(a), attachment).
6. On November 29, 1990, the Union and Tinker AFB
entered into the following memorandum of agreement,
"On Thursday, November 29, 1990, the parties came to agreement on Mesarick
Case No. 15771. The Parties formalized an agreement in which the Union would
withdraw Mesarick Case No. 15771 from the Expedited Arbitration arena. This will
consider the Case No. 15771 closed, and not subject to further arbitration." (Res.
Exh. 1; Tr. 66-67).
7. On May 5, 1991, Ms. Mesarick wrote President Marshall
again and stated, in part,
"Please advise the latest status on Grievance # 15771. . . . Enclosed is cy of 19
Nov 1990 letter I personally handed to you and you never answered to date." (G.C.
Exh. 1(a), attachment).
Ms. Mesarick stated that Mr. Marshall told her there was no
reason for him to write her because he talked to her and didn't
have to write (Tr. 18).
8. Ms. Mesarick stated that in May, 1991, President
Marshall told her that Tinker AFB was not cooperating and that he
was going to file a union grievance against them. (Tr. 19). She
"A I told him he had till the end of the month."
"A . . . I had told him if he didn't - - if they did a ULP on me, why didn't he file on
them? And if he didn't, I was going to."
"A He said, you file anything on anybody, I am going
to pull your cases." (Tr. 19-20).
9. President Marshall categorically denied that he made
the statement that, "If you file anything on anybody, I will pull
your cases." (Tr. 44). He further stated,
"A . . . I categorically deny any statement of threatening her to pull any of her
cases." (Tr. 45)
"A I talked to her, but I never made any statements like she is alleging that I
made." (Tr. 52).
The complaint alleges specifically that:
"11. In May, 1991, the Respondent, by Union President Gene Marshall, told
Mesarick words to the effect that if she filed an unfair labor practice charge, her
grievance would be dropped."
Ms. Mesarick did testify that President Marshall told her, ". .
. you file anything on anybody, I am going to pull your cases."
(Tr. 20).(3) But President Marshall
categorically denied having made any such statement. I found
President Marshall a credible witness. On the other hand, while Ms.
Mesarick's testimony appears plausible on the surface, upon
examination in light of the record her testimony loses credibility.
For example, as her grievance, which she identified as Case No.
15771, had been withdrawn by agreement of the Union and Tinker AFB
on November 29, 1990 (Res. Exh. 1), what possible reason would the
Union have had to tell her in May 1991 that Tinker was not
cooperating as to her case? Indeed, although General Counsel darkly
suggests that, "Marshall simply didn't want her to learn what the
Union had done with her grievance. . . ." (General Counsel's Brief,
p. 7), what reason could the Union have had for refusing to
disclose the disposition of her grievance? The memorandum of
agreement was an accomplished fact and disposition of the grievance
could not have been kept secret forever. Eventually, when no relief
was forthcoming, Ms. Mesarick must be told, and if eventually, why
not then? What possible reason would President Marshall have to
threaten withdrawal of a case already disposed of? Ms. Mesarick has
a history of difficulty of separating fact from fiction. On
balance, as I found President Marshall a credible witness, I credit
his denials that he made any statement as Ms. Mesarick alleged. I
specifically do not credit Ms. Mesarick's testimony that President
Marshall said, in effect, "If you file anything on anybody, I am
going to pull your cases."
Having found that Respondent, by its President, did not make
the statement as alleged in the Complaint, it is recommended that
the Authority adopt the following,
The Complaint in Case No. 76-CO-10038 be, and the same is
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: September 20, 1993
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(b)(1) will be referred to, simply, as "§ 16(b)(1)".
2. Contrary to Ms. Mesarick's statement, obviously she had not prevailed in her initial arbitration. The Union was greatly disturbed by the handling of a group of arbitration cases, including Ms. Mesarick's, and sought to have them re-heard. It was this grievance that resulted in an arbitration decision directing the re-hearing of these cases (Tr. 47).
3. Although not an allegation of
the Complaint, Ms. Mesarick did testify that after she filed the
charge herein [June 12, 1991] President Marshall told her,
". . . Don't file on us and then come over here expecting us to
help you." (Tr. 21).
General Counsel asserts that this comment was unrebutted and is ". . . evidence of his [Marshall's] propensity toward coercion and additional support for her charge in this case." (General Counsel's Brief, p. 5). While the language was not specifically referred to, I can not agree that the comment was not denied. President Marshall was asked about conversations with her in May or June and his response was, "I talked to her, but I never made any statements like she is alleging that I made" (Tr. 52) by which he was denying all of Ms. Mesarick's allegations, especially since her filing charges against the Union was mentioned (Tr. 57). In any event, this allegation is not separately addressed.