16:0881(123)CA - Army Military Traffic Management Command, Eastern Area, Bayonne, NJ and AFGE Local 2855 -- 1984 FLRAdec CA
[ v16 p881 ]
16:0881(123)CA
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.