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U.S. SMALL BUSINESS ADMINISTRATION, WASHINGTON, D.C. |
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Case No. WA-CA-21106
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Gail D. Reinhart
Christopher Holleman
Counsel for the Respondent
Ana de la Torre
Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
The unfair labor practice complaint alleges that Respondent
violated section 7116(a)(1) of the Federal Service Labor-Management
Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1), by the
statements that three supervisors made to John Bareno which, under
the circumstances, allegedly tended to coerce and intimidate Bareno
in the exercise of rights protected by section 7102 of the
Statute.
Respondent's answer admitted the allegations as to Respondent,
the Union, and the charge, but denied any violation of the
Statute.
For the reasons set forth below, it is concluded that the
statements were not made and that Respondent did not violate the
Statute as alleged.
A hearing was held in Washington, D.C. The Respondent and the
General Counsel were represented by counsel and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The
Respondent and General Counsel filed helpful briefs. Based on the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of
law, and recommendations.
At all times relevant, John T. Bareno was a Program Analyst for the
Respondent in the Office of Program Support. His immediate
supervisor was Rodney A. Lewis, Director, Office of Program
Support. James L. Charney, Director of Program Analysis and
Compliance, was his second level supervisor, and Robert Lineberry,
Deputy Director, Office of Program Analysis and Quality Assurance
(OPAQA), was his third level supervisor.
Bareno became Vice President of Solidarity, U.S.A. (Solidarity)
in or about mid-February 1992. Prior to this time, Bareno had been
a shop steward for the American Federation of Government Employees,
Local 2532, the agent of the exclusive representative of
Respondent's employees.
On April 2, 1992, Robert Wildberger, an employee of Respondent,
advised Respondent, by letter to the Administrator, that Solidarity
"is a new Federal sector labor union seeking to represent federal
employees." He identified himself as President of Solidarity, but
did not inform Respondent that Bareno was affiliated with
Solidarity. On July 13, 1992, Respondent received a letter from the
Authority's Denver Regional Office transmitting an election
petition filed by Solidarity. One of the attachments to the letter
indicated that Bareno was Executive Vice President of Solidarity.
This was the first time Respondent learned that Bareno had any
official connection with Solidarity.
1. The Alleged Statement By Lewis
John Bareno testified that sometime during mid-April 1992,
Rodney Lewis called Bareno into his office and asked Bareno if he
had a "death wish?" Bareno thought this to be an odd question, told
Lewis that he did not have a death wish, and inquired what Lewis
meant.
According to Bareno, Lewis responded that Wildberger had "these
people upset," gesturing toward the Director's office, and, as
Bareno's friend, he was advising Bareno to disasso-ciate himself
from Wildberger. Bareno testified that he replied that Wildberger
was a friend and that he agreed with Wildberger's convictions about
the need for a bona fide union. According to Bareno, Lewis
responded that SBA already had a union. Bareno testified that he
replied that the current union was ineffectual, and Lewis told him
Wildberger was using him and others to achieve his own personal
goals and cautioned Bareno to stay away from Wildberger.
I credit the contrary testimony of Rodney A. Lewis. Mr. Lewis
testified that sometime in April 1992, he did have a conversation
in which he asked Bareno whether he had a death wish. Lewis
testified that the conversation did not mention Wildberger,
Solidarity, or Union activity, but dealt strictly with Bareno's
work performance, namely his transmission of electronic mail
(E-mail) messages which had engendered complaints. Lewis was
frustrated that Bareno, despite being warned not to do so, had once
again sent certain E-mail messages directly to senior officials
without first allowing Lewis to review the messages for tone and
clarity. He asked Bareno, "What's the matter? Do you have a death
wish or something?"
Lewis testified that, sometime after the above conversation, he
observed that, on a number of occasions, Bareno and Wildberger were
away from their duty stations for long periods of time (over 15
minutes). He, therefore, cautioned Bareno that if these frequent
absences were not job related, or were union related, they should
cease until he made a proper request for representational time.
Lewis did not, however, advise Bareno not to associate with
Wildberger.
2. The Alleged Statement By Charney
Bareno testified that, in late April or early May 1992, James
Charney called Bareno into Charney's office. According to Bareno,
Charney said he had already met with Wildberger and was now going
to get acquainted with Bareno. Bareno testified that Charney then
made the comment that he "felt Wildberger was being disruptive and
creating a lot of conflict, and that management was unhappy with
that. I don't like it either." According to Bareno, Charney then
asked Bareno why he was involved with Wildberger. Bareno said he
responded, essentially as he had to Lewis, that given the
conditions in the office, there was a need for a real union, and
that's what he and Wildberger were about.
I credit the contrary testimony of James L. Charney. Mr.
Charney first reported to work as the Director, Office of Program
Analysis and Compliance on April 29, 1992, having been transferred
to that position from SBA's Chicago Regional Office. Prior to
reporting to OPAQA from Chicago, Charney did not know anything
about Bareno, Wildberger, or Solidarity. He learned of Solidarity
from a meeting with Mr. Wildberger on April 30, 1992 but did learn
of Bareno's connection with Wildberger until July 1992 when the
bylaws of Solidarity were received by SBA from the Denver region of
the Authority. Mr. Charney met with Mr. Bareno on two or three
occasions concerning his work assignments, but did not make any
statements that he did not like the conflict Wildberger was
causing, or suggesting that Bareno should not associate with
Wildberger, or any similar statements.
3. The Alleged Statement by
Lineberry
Mr. Bareno testified that, about the middle of May 1992, Robert
Lineberry, Bareno's third line supervisor, called him into a
meeting that Mr. Lewis also attended. According to Bareno,
Lineberry told Bareno that it had been reported to him that Bareno
had been observed that day having coffee with Wildberger. Bareno
confirmed that this was true. Bareno stated that Lineberry then
noted that SBA management was upset with Wildberger because he was
causing a lot of problems, that he was concerned that Bareno was
associating with Wildberger, and that Bareno had best think about
this. Bareno testified that he responded that he was not going to
stop associating with Wildberger because they were friends and were
working on a project to establish a new union.
I credit the contrary testimony of Robert Lineberry and Rodney
A. Lewis. Mr. Lineberry testified that he did not make the
statements attributed to him by Mr. Bareno in May 1992 or at any
other time. He testified that he saw Mr. Bareno basically every day
and did have a specific meeting with him and Mr. Lewis on April 8,
1992. Mr. Lineberry testified that, according to his notes, during
this meeting he advised Mr. Bareno to avoid the perception that
employees were socializing or conducting personal business on duty
time. Mr. Lineberry testified that there was concern about Mr.
Bareno being absent from his work station and taking a number of
very visible breaks. Mr. Wildberger's name was not mentioned at the
meeting; rather, the warning was general in nature.
Mr. Lewis also attended the April 8, 1992 meeting and did not
at this meeting, or any other time, hear Mr. Lineberry advise Mr.
Bareno not to associate with Mr. Wildberger.
Section 2423.18 of the Rules and Regulations, 5 C.F.R. §
2423.18, based on section 7118(a)(7) and (8) of the Statute,
provides that the General Counsel "shall have the burden of proving
the allegations of the complaint by a preponderance of the
evidence." Based on the credibility resolutions made above, it is
concluded that the alleged statements were not made, and that a
preponderance of the evidence does not establish that Respondent
violated section 7116(a)(1), as alleged.
Based on the foregoing findings and conclusions, it is
recommended that the Authority issue the following Order.
The complaint is dismissed.
Issued, Washington, DC, February 7, 1994
GARVIN LEE OLIVER
Administrative Law Judge
Dated: February 7, 1994
Washington, DC