[ v13 p283 ]
13:0283(46)CA
The decision of the Authority follows:
13 FLRA No. 46
VETERANS ADMINISTRATION MEDICAL CENTER
BUFFALO, NEW YORK
Respondent
and
MARLENE K. BESS, AN INDIVIDUAL
Charging Party
Case No. 1-CA-20256
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. The General Counsel
filed exceptions to the Judge's Decision and the Respondent filed a
brief in opposition to the exceptions.
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
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions, and recommendation that the complaint be
dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 1-CA-20256 be, and it
hereby is, dismissed.
Issued, Washington, D.C., September 30, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 1-CA-20256
M. Melissa Baltz, Esquire
For the Respondent
Carol Waller Pope, Esquire
For the General Counsel
Ms. Marlene K. Bess
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called "the Statute"),
and the Rules and Regulations issued thereunder.
The complaint, as amended at the hearing, alleged that on or about
April 23, 1982, Respondent through its representatives failed to select
the Charging Party for the position of WG-01 Housekeeping Aide because
she asserted that a vacancy announcement advertising the position had
not been drafted and posted in accordance with the requirements of a
collective bargaining agreement negotiated by the Respondent and the
Service Employees' International Union, Local 200. It was further
alleged : that the conduct described constituted unfair labor practices
within the purview of Sections 7116(a)(1) and (2) of the Statute.
Counsel representing the Respondent argues that the complaint should
be dismissed because representatives of Respondent participating in the
selection process were unaware of the existence of any protected union
activity; because there was no showing of anti-union animus involved in
the selection process; and because the selection made by the Respondent
would have been made even in the absence of any alleged protected
activity.
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Based upon the entire record
herein, including my observation of the witnesses and their demeanor,
the exhibits and other relevant evidence adduced at the hearing, and
briefs filed by the parties, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
Application Submitted by Charging Party for Housekeeping Aide Position
The record disclosed that the vacancy was created by the departure of
a WG-1 Housekeeping Aide serving a 12:00 p.m. to 8:00 a.m. shift in the
Respondent's Building Management Service (Tr. 57). Mr. John Alderson,
Chief of the Building Management Service, contacted the Respondent's
Personnel Service and advised that he wanted to fill the vacancy (Tr.
52). Ms. Donna Tuttle, a personnel staffing specialist in the Personnel
Service handled the request. She learned from Mr. Alderson that the
person selected to fill the vacancy would probably work a day shift
initially; but that eventually it would be a 12:00 p.m. to 8:00 a.m.
shift (Tr. 50). Because of this uncertainty Ms. Tuttle included the
following caveat in the job announcement:
NOTE: This is a full-time position. TOUR OF DUTY: Monday
thru Friday, 7:00 am - 3:30 pm. The tour of duty for this
position may be subject to change dependent upon the needs of the
service (G.C. Exh. 9).
The wording was proposed by Ms. Tuttle because of the imminent
possibility of a change in the tour of duty (Tr. 50). It was
established that it was not unusual to insert such a caveat in
announcements and that it was routine for this particular position
because it involved shift work (Tr. 42-43). /1/ It was merely
anticipated that the day shift identified in the announcement would be
assigned for "at least, some period of time." (Tr. 43).
The vacancy announcement also included a description of the job
duties involved (Tr. 85). It was posted on March 29, 1982, under the
provisions of a governing Merit Promotion Plan (Tr. 45-46, G.C. Exh. 3).
Ms. Bess decided to apply for the job, and submitted an application
(G.C. Exh. 5, Tr. 20). At the time she was a steward for Local 200, and
during the period 1977 until May of 1980, she had served as Secretary of
the Local (Tr. 18). As a Union representative she had attended meetings
with various management officials, and had sat in on negotiations
involving the Merit Promotion Plan Tr. 18, 21). /2/
Under Merit Promotion Plan procedure in effect, applications for the
position were rated by a Panel consisting of a Personnel Service
representative, and supervisors. A representative of Local 200
participated as an observer (G.C. Exh. 3, Tr. 22). The Panel considered
supervisory appraisal forms, questionnaires filled out by applicants,
and official personnel folders relating to each applicant. A numerical
rating was assigned to each candidate. In this case six applicants were
assigned, a "most highly qualified rating," with scores of 70 or higher,
and an alphabetical list of their names, without reference to their
individual scores, was sent to Mr. Alderson, the selecting official.
(R. Exh. 1, Tr. 46). /3/ Materials reviewed by the Panel in the rating
process were also forwarded. Interviews of the employees referred were
scheduled in alphabetical order with Ms. Bess being first.
Interview of Ms. Bess
Ms. Bess was interviewed by Mr. Brian Semeraro, Assistant Chief,
Building Management Service, on April 23, 1982 (Tr. 23-24). /4/ His
initial perception of her was that of one highly qualified to perform
the work (Tr. 69). He inquired concerning the reasons relating to her
wanting the position (Tr. 24, 65, 72-73). She replied that she was
interested in the pay, and that she considered herself qualified (Tr.
24, 66, 72). He explained that the candidate selected would undergo a
period of orientation for a one week period during a 7:00 a.m. to 3:30
p.m. daytime shift, and that the job would then be assigned to a
midnight to 8:00 a.m. shift (Tr. 24, 59-60, 70, 73). /5/ Ms. Bess asked
if Mr. Semeraro was certain about this and he assured her that he was
(Tr. 60).
Ms. Bess expressed surprise and dissatisfaction, and inquired
concerning the time when the decision was made to recruit for the
midnight to 8:00 a.m. shift (Tr. 24, 70, 73). She also advised Mr.
Semeraro that he had no right to recruit for the midnight shift (Tr.
73).
Mr. Semeraro explained that the decision had been made "several days
ago," and that he had confirmed the fact by checking with Mr. Alderson
that morning (Tr. 70). /6/ He invited her attention to the fact that
the vacancy announcement carried the caveat that "the tour of duty for
this position may be subject to change dependent upon the needs of the
service." (Tr. 25). Ms. Bess stated that she was aware of this (Tr.
25), and then pointed out that if the tour of duty was changed in the
future Respondent would have to comply with the seniority provision of
the governing collective bargaining agreement (Tr. 25). /7/ She also
expressed her opinion that if a midnight to 8:00 a.m. tour of duty was
created then the vacancy announcement would have to be amended
appropriately and posted again before a selection could be made (Tr.
25-26). /8/
She informed Mr. Semeraro that if she was not selected for the
position she would alert the individual selected concerning their rights
under the seniority provision of the collective bargaining agreement
(Tr. 26, 60, 73). Ms. Bess insisted on discussing with Mr. Semeraro the
applicability of the seniority provision if she were selected for the
job; and he clearly indicated that he wished to continue with her
interview to determine her suitability and qualifications for the job
(Tr. 72-73). He explained that he was not there to discuss the
provisions of the contract, or to debate such issues with her (Tr. 60,
72-73). Ms. Bess conveyed the impression that she did not, under the
circumstances, want to continue the interview (Tr. 70). Mr. Semeraro
did not react to the request for him to take a position on behalf of the
Respondent on the seniority issue presented by Ms. Bess, and did not
otherwise discuss the matter with her. There was no indication or
suggestion that the seniority provision would not be honored by the
Respondent (Tr. 30-31).
Ms. Bess informed Mr. Semeraro that she was not interested in the job
any longer, and that she would not accept the job (Tr. 25, 60-61, 73).
She also advised him that she would discuss the matter with Mr.
Alderson, Chief of Building Maintenance Service, and with Mr. Robert
Westfall, head of Personnel Service (Tr. 25, 60). Mr. Semeraro did not
respond to her statements concerning these intentions (Tr. 25). Ms.
Bess clearly indicated that she was not interested in the 12:00 midnight
to 8:00 a.m. shift (Tr. 85), and terminated the interview when Mr.
Semeraro continued his refusal to discuss the seniority provision of the
collective bargaining agreement, and the potential future impact on the
successful applicant as a result of the anticipated future change in the
tour of duty (Tr. 73).
Grievance Brought to Attention of Personnel Service
In accordance with procedure provided in the Merit Promotion Plan,
Ms. Bess contacted Mr. Westfall, the Personnel Officer, as the
appropriate person to see about the matter after leaving the interview
(Tr. 26, 31-32, 38). /9/ Accompanied by a Union representative she met
with Mr. Westfall and Ms. Tuttle about the matter after she left Mr.
Semeraro (Tr. 26-27, 49). /10/
Ms. Bess complained that she was surprised and upset over Mr.
Semeraro's statement that the job opening would not be assigned a
permanent daytime tour of duty (Tr. 27, 38, 50). She insisted that the
job had been falsely advertised, and that the vacancy announcement
should be canceled and reissued (Tr. 32, 50). She informed that she was
not at all interested in working the midnight to 8:00 a.m. shift, and
that she would not have applied for the job had she known that it was
going to be assigned to a night shift (Tr. 27, 32-33, 38-39). She
informed Mr. Westfall and Ms. Tuttle that she left the interview because
she was so upset over what she perceived as a change (Tr. 38). Ms. Bess
inquired of Mr. Westfall whether they would take action on her
complaint, and noted that she had told Mr. Semeraro that she did not
want the job (Tr. 28).
Mr. Westfall examined the vacancy announcement and noted that it did
say that the shift was subject to change, and that the candidate
selected would have had notice of risks associated with a change in the
tour of duty (Tr. 39). After considering withdrawal of the vacancy
announcement, Mr. Westfall and Ms. Tuttle informed Ms. Bess that the
vacancy announcement would stand as it was, and that if it was necessary
for an employee to be assigned to the night shift, the assignment would
be effected in accordance with the seniority provision of the collective
bargaining agreement or reannounced (Tr. 28, 39, 44, 50-52). It was
pointed out to her that she would probably not have had to go on the
night shift because of her seniority status (Tr. 39-40, 50).
At this point Ms. Bess became interested in the position again
inasmuch as it had the potential of a transfer to the new job with a
daytime tour of duty (Tr. 33-34, 40). She was only interested in the
job if she could be assured that it would be a daytime tour of duty (Tr.
33). She recognized that if the position were reannounced for a 12:00
p.m. to 8:00 a.m. tour of duty she would have no opportunity to be
selected for a daytime tour of duty. In the light of these
circumstances she announced that she had decided not to withdraw her
name from consideration, but would return to Mr. Semeraro and let him
know that she was still interested in the position (Tr. 40). It was
clear from the record that Mr. Westfall and Ms. Tuttle endeavored to
respond to Ms. Bess in a manner which would result in Ms. Bess being
considered for the job with some prospect of realizing her desire for a
daytime shift. She was advised by Mr. Westfall to return to Mr.
Semeraro to inform him of her interest, but was asked to not tell him of
her meeting with Mr. Westfall and Ms. Tuttle (Tr. 28, 36). Ms. Tuttle
stated that Ms. Bess should have Mr. Semeraro phone Ms. Tuttle if he had
any questions (Tr. 34). Ms. Bess testified that before leaving she told
Mr. Westfall and Ms. Tuttle that she was not "holding anything over
anyone's head, but if (she) didn't receive the job, (she) would file an
unfair labor practice (charge) because . . . rights under the contract
had been violated." (Tr. 28, 51).
Ms. Bess went to Mr. Semeraro's office, and in his absence she left a
note saying, "I have changed my mind. I wish to be considered for the
position. If you have any questions call Donna Tuttle." (Tr. 29, 36,
60-61). Mr. Semeraro did phone Ms. Tuttle and referred to the content
of Ms. Bess' note, and asked what was happening (Tr. 51, 61). Ms.
Tuttle advised that Ms. Bess had changed her mind, and that she wanted
to be considered as a candidate for the position (Tr. 51, 55). He was
instructed to consider her along with other candidates (Tr. 53). The
matter was not discussed further with Mr. Semeraro at that time, or
before selection of a candidate for the job (Tr. 29, 51, 55-56, 61);
and representatives of Personnel Service did not thereafter discuss Ms.
Bess' complaints with Building Management Service (Tr. 40-42, 94).
The Selection
Following completion of all the job interviews, and after being
advised that Ms. Bess wished to be considered after all, Mr. Semeraro
decided not to recommend Ms. Bess as a candidate because he determined
that she did not have a positive job attitude (Tr. 74-75, 79-80). His
reason for reaching this conclusion was based in part on the fact that
Ms. Bess refused to participate in the job interview scheduled for her
(Tr. 79-80). He testified that he wanted to conduct the interview, but
that she insisted they discuss what she perceived as a violation of the
collective bargaining agreement (Tr. 79-80). From her insistence upon
focusing on issues other than the requirements of the job he
subjectively determined that she lacked interest in the job itself (Tr.
79-80). He summarized his conclusion by saying, "We were not in line."
(Tr. 79). His testimony included the following statements indicative of
his reasons for concluding that she did not possess a positive job
attitude:
She gave the impression again she wanted to talk about a Union
issue . . . I felt . . . that point could have been discussed
later on. . . . I wanted to conduct an interview regarding (the)
Housekeeping Aide position (Tr. 80).
. . . .
I did not feel Ms. Bess was listening as to what I wanted to
discuss and the discussion she was bringing about was not relative
to that particular time (Tr. 81). /11/
It was also established that Ms. Bess was eliminated by Mr. Semeraro
because Michael Honan exhibited an impressive work attitude toward the
position being filled (Tr. 62, 75, 88-89). He determined that his
responses reflected enthusiasm about specific elements of the job itself
(Tr. 76-77), and that his positive attitude was reflected in statements
about what he would do if selected (Tr. 81).
Mr. Semeraro informed Mr. Alderson what had occurred during his
interview with Ms. Bess, and noted that she had declined the position,
but had thereafter asked to be considered (Tr. 89-90, 97). He said that
her evaluation was good, and that she had prior experience (Tr. 89-90).
Mr. Semeraro discussed each of the other five candidates with Mr.
Alderson in a similar manner, and then recommended that Michael Honan be
selected to fill the vacancy (Tr. 87-89, 92-94, 96). The selection was
finally made by Mr. Alderson, as Chief of Building Maintenance Service,
on the basis of the recommendation of Mr. Semeraro, and documents
received by Mr. Alderson for evaluative purposes. On April 26, 1982, he
signed a promotion certificate indicating that he had selected Michael
Honan (Tr. 14-15, R. Exh. 1). /12/ There was no evidence of improper
contact between anyone in Personnel Service with either Mr. Alderson or
Mr. Semeraro during the selection process.
Discussion and Conclusions
In order to establish a violation of Section 7116(a)(2) there must be
a showing that the alleged discriminatee was engaged in protected
activity, that the Respondent had knowledge of such activity, and lastly
that the Respondent took action against the discriminatee because of
anti-union animus. Veterans Administration Center, Leavenworth, Kansas,
1 FLRA No. 111, 1 FLRA 977 (September 20, 1979); United States
Department of Labor, 1 FLRA No. 120, 1 FLRA 1054 (September 28, 1979);
Internal Revenue Service, Washington, D.C., 8 FLRA No. 95, 8 FLRA 440
(April 30, 1982); Department of the Treasury, United States Customs
Service, Region IV, Miami, Florida, 8 FLRA No. 109, 8 FLRA 561 (May 13,
1982). The element of discriminatory motivation needed to establish a
Section 7116(a)(2) violation may be inferred from circumstantial
evidence. Veterans Administration Center, Leavenworth, Kansas, supra;
Department of the Treasury, United States Customs Service, Region IV,
Miami, Florida, supra. /13/ Section 2423.18 of the Rules and
Regulations, 5 C.F.R. 2423.18, provides that the General Counsel "shall
have the burden of proving the allegations of the complaint by a
preponderance of the evidence."
With respect to the first two elements needed to establish a
violation of Section 7116(a)(2), it is noted that Section 7103(a)(9) of
the Statute defines the word "grievance" in pertinent part as follows:
(9) 'grievance' means any complaint
(A) by any employee concerning any matter relating to the
employment of the employee;
. . . .
(C) by any employee, labor organization, or agency concerning -
(i) the effect or interpretation, or a claim of breach, of a
collective bargaining agreement . . .
It is clear that Ms. Bess was interposing a "complaint" of the type
described in Section 7103(a)(9) when she complained to Mr. Semeraro and
Mr. Westfall; and further that both Mr. Semeraro and Mr. Alderson were
at least aware of the complaint addressed to Mr. Semeraro. The fact
that it was initially brought up in the wrong forum, or before the wrong
representative of the Respondent, would not operate to divest the
complaint of its status as a "grievance" within the meaning of Section
7103(a)(9). Moreover, the mere circumstance that it was not designated
as a grievance when initially articulated by Ms. Bess, would not mean
that her complaint was any less a grievance in a definitional sense.
Department of the Treasury, Internal Revenue Service, Louisville
District, 11 FLRA No. 64, 11 FLRA 290 (February 10, 1983); Internal
Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA No.
54, 7 FLRA 371 (December 18, 1981); Department of the Treasury,
Internal Revenue Service, Chicago District Office, Chicago, Illinois,
A/SLMR No. 748, 6 A/SLMR 629 (1976), FLRC No. 76A-156, 5 FLRC 391
(1977). /14/
However, despite the foregoing, the record does not show by a
preponderance of the evidence that Ms. Bess' application was rejected
because of anti-union animus. As noted, such a showing is essential.
Veterans Administration, Veterans Administration Medical Center,
Fayetteville, Arkansas, 9 FLRA No. 123, 9 FLRA 902 (August 6, 1982);
Department of Health, Education and Welfare, Region VIII, Denver,
Colorado, Social Security Administration, Denver District, Denver,
Colorado, 6 FLRA No. 110, 6 FLRA 628 (September 21, 1981); Community
Services Administration, 6 FLRA No. 109, 6 FLRA 616 (September 21,
1981); Department of the Navy, Portsmouth Naval Shipyard, 6 FLRA No.
94, 6 FLRA 491 (August 31, 1981). Instead, it appears that Ms. Bess was
not selected because Mr. Semeraro perceived a lack of interest on her
part in her refusal to discuss job duties during the interview, and
because of an observed superior job attitude in the candidate selected.
Mr. Semeraro's conclusions concerning Ms. Bess were based in part
upon Ms. Bess' reluctance to participate in the job interview, and not
upon discriminatory motivation associated with her interposing arguments
relating to the applicability of the collective bargaining agreement to
the selection process. The record disclosed that the latter element was
merely a fortuitous circumstance. There was no evidence adduced to show
that Mr. Semeraro or Mr. Alderson had ever exhibited anti-union animus
in the past, or that prior relations with Ms. Bess or Local 200 were
strained in any way. Proof of Ms. Bess' complaints and subsequent
nonselection, without more, does not automatically suffice to establish
such animus.
Ms. Bess changed the subject and nature of the job interview shortly
after it began. What commenced as one of a series of job interviews
with Mr. Semeraro asking job-related questions, was transformed into a
confrontation with Mr. Semeraro and an interrogation of him by Ms. Bess.
This stemmed from her belief that the vacancy announcement was
defective, and from her opinion that a possible breach of the seniority
provision of the collective bargaining agreement might subsequently
occur following the week long orientation period preceding the
anticipated change in the temporary day shift tour of duty to a midnight
to 8:00 a.m. tour of duty. /15/ This confrontation was neither
anticipated nor desired by Mr. Semeraro. He did not consider it
appropriate to respond to her demands for resolution of her complaints.
Ms. Bess was insisting that Mr. Semeraro temporarily abandon his task
of interviewing candidates and participate in a negotiating session
relating to the validity of the vacancy announcement, and the meaning of
the seniority provision in the contract. She sought a commitment from
him, as a representative of the Respondent, on these issues. The record
made it clear that Mr. Semeraro was not the appropriate person to
determine such issues, and although he might conceivably have had some
authority to aid in resolving questions posed by Ms. Bess, there was no
reason for questioning his reluctance to do so within the context of a
job interview pertaining to the Housekeeping Aide position. In fact the
record clearly established that grievances of this nature were
appropriately raised only before her immediate supervisor, the next
supervisory level, or the Personnel Officer. /16/
Mr. Semeraro made it clear that he did not think the subjects raised
by Ms. Bess were appropriate. As noted, his reason for rejecting her
application did not stem from the substance of Ms. Bess' grievance
concerning alleged breaches of the contract, but rather because he was
reacting to her obstruction of the job interview process. It is logical
to assume that he would have drawn similar conclusions had Ms. Bess
raised issues involving other subjects not related to the business of
interviewing job applicants to determine job qualifications.
Although an effort was made to attribute an anti-union motive to
explanations relating to the formulation of the decision to reject Ms.
Bess, a careful evaluation of the record discloses proof of legitimate
reasons for the determinations made, and an absence of a showing, by a
preponderance of the evidence, that Ms. Bess' application was rejected
because of complaints initiated in her discussion with Mr. Semeraro, and
repeated later to Mr. Westfall and Ms. Tuttle.
Upon the basis of the foregoing, it is recommended that the Authority
issue the following order pursuant to 5 C.F.R. 2423.29(c).
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 1-CA-20256, be,
and it hereby is, DISMISSED.
LOUIS SCALZO
Administrative Law Judge
Dated: March 24, 1983
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Employees in Building Management Service were routinely assigned
to one of three shifts dividing the work day (Tr. 24).
/2/ In addition to her familiarity with the provisions of the Merit
Promotion Plan, Ms. Bess had also served as a Union member of several
rating panels convened in accordance with the provisions of the Plan
(G.C. Exh. 3, Tr. 21).
/3/ Those responsible for the selection in this case were not aware
of individual scores prior to selection and the scores were not
considered by the selecting official. Although all six candidates were
assigned "most highly qualified" ratings, the marks ranged from a low of
70.3 to a high of 81.2. Ms. Bess was second highest with a score of
80.9. The applicant selected, Michael Honan, was assigned the lower
score of 70.3.
/4/ All six applicants were interviewed by Mr. Semeraro during the
morning of April 23rd (Tr. 74).
/5/ All applicants interviewed were advised of this development (Tr.
61-62, 74).
/6/ Ms. Bess testified that Mr. Semeraro said the decision had been
made "that Thursday." She testified that she received the impression
that this meant April 22, 1983, or the day before the interview (Tr.
24). However, it is clear from other testimony that the decision had
been reached, in large measure, at the time of posting the vacancy
announcement on March 29, 1982. Even assuming Ms. Bess' recollection to
be accurate there is no reason to assume words attributed to Mr.
Semeraro by Ms. Bess were inconsistent with the account given by Mr.
Semeraro at the hearing.
/7/ Article 20, Section 7 of the agreement provided: "Senior
employees shall be given preference in selection of shifts in all
Services and scheduling of all shifts will be made in a fair and
equitable manner." (G.C. Exh. 2 at pg. 30).
/8/ Ms. Bess was relying upon her personal interpretation of Article
26, Section 3 of the agreement which provided: "All job vacancy
announcements shall be conspicuously posted for at least one week and
shall list the rating factors and maximum allowance for each factor. A
copy shall be furnished to Local 200 and each steward." (G.C. Exh. 2).
/9/ The Merit Promotion Plan provided both formal and informal
grievance procedures. The informal procedure referred to the employee's
immediate supervisor as an appropriate person to contact initially for
the purpose of discussing grievances relating to the administration of
the Plan. Alternatively, the employee was permitted to go directly to
either the supervisory level above the employee's immediate supervisor,
or to the Personnel Officer (Tr. 35, G.C. Exh. 3 at pg. 12). Ms. Bess
acknowledged that it would have been inappropriate to raise the
grievance before other officials (Tr. 31-32). She noted that the matter
did not involve her own immediate supervisor in any way (Tr. 32). Mr.
Semeraro did not supervise Ms. Bess.
/10/ The meeting lasted about 15 minutes (Tr. 54).
/11/ It was established that Mr. Semeraro had an established
procedure of asking applicants a series of questions about a job (Tr.
60, 66, 78, 79). Interviews lasted about five to ten minutes (Tr. 66).
A careful reading of the record disclosed that Ms. Bess' insistence upon
discussing issues of interest to her, but unrelated to Mr. Semeraro's
concerns, resulted in the frustration of Mr. Semeraro's method of
conducting the job interview.
/12/ By letter dated April 28, 1982 Mr. Westfall advised Ms. Bess
that she was qualified and referred for consideration, but that she was
not selected (G.C. Exh. 10).
/13/ Proof of anti-union animus is not essential in order to
establish an independent violation of Section 7116(a)(1). See Naval Air
Rework Facility, Marine Air Station, Cherry Point, North Carolina, 1
FLRA No. 85, 1 FLRA 754 (July 17, 1979). In the context of this case
there was no independent evidence of interference, restraint, or
coercion caused by the Respondent's representatives as a result of
complaints voiced by Ms. Bess to Mr. Semeraro and to Mr. Westfall.
/14/ But see National Labor Relations Board, Region 7, Boston,
Massachusetts, 5 FLRA No. 87 (May 15, 1981), an Executive Order case,
for a holding that a union official's unilateral unwarranted voicing of
complaints relating to his own and others' concerns about working
conditions, would not, without more, automatically create protected
union activity. It was observed that such a holding would allow a union
steward or any other union official to insulate themselves from
disciplinary action by merely raising complaints about working
conditions in response to supervisory action which met with their
personal displeasure.
/15/ It is noted that the caveat in the vacancy announcement put Ms.
Bess on notice that a shift change would probably occur. Thus, she had
prior knowledge of the possible applicability of the seniority provision
before the job interview. Perhaps she was surprised by the short period
of time that would elapse prior to the change. However, she was
apprised of the possibility and could have made inquiry concerning the
procedure which would be employed to assign an employee to a different
shift. Mr. Semeraro was merely bringing her up to date on developments
concerning the position. It was still a daytime shift as announced, if
only for a one-week period. Furthermore, there was no reason to
conclude that the collective bargaining agreement would be breached by
the Respondent.
Her contention concerning the fairness of the vacancy announcement
involved her perception of the meaning of Article 26, Section 3 of the
agreement. The record does not disclose any defect in the announcement
based upon this contractual provision, nor was the vacancy announcement
shown to be otherwise defective. Arguably, it could have been more
specific; however, no basis for reissuance was shown.
/16/ It can be argued that resolution of Ms. Bess' complaints by Mr.
Semeraro, would have usurped authority reposed in other management
officials by the Merit Promotion Plan and the collective bargaining
agreement. At a minimum there was ample justification for Mr.
Semeraro's refusal to resolve questions, and there was an adequate basis
for his concluding that her insistence upon discussing unrelated issues
exhibited a lack of interest in discussing the job. Discussion of her
qualifications to perform was the central purpose of the meeting.