[ v16 p631 ]
16:0631(93)CA
The decision of the Authority follows:
16 FLRA No. 93
DEPARTMENT OF DEFENSE
ARMY AND AIR FORCE EXCHANGE SERVICE
FORT EUSTIS EXCHANGE
FORT EUSTIS, VIRGINIA
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-114
Charging Party
Case No. 4-CA-30433
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in certain unfair labor practices under section 7116(a)(1) and (2) of
the Federal Service Labor-Management Relations Statute (the Statute),
and recommending that the complaint be dismissed in its entirety.
Thereafter, the General Counsel filed exceptions to the Judge's
Decision. /1/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of 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.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 4-CA-30433 be,
and it hereby is, dismissed. Issued, Washington, D.C., November 30,
1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
-----------------
OWS ---
ARMY AND AIR FORCE EXCHANGE SERVICE
FORT EUSTIS EXCHANGE
FORT EUSTIS, VIRGINIA
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-114
Charging Party
Case No.: 4-CA-30433
Luther G. Jones, III, Esq.
For the Respondent
George L. Reaves, Jr.
For the Charging Party
Regina N. Kane, Esq.
For the General Counsel
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. 7101, et seq. It was instituted by the Regional Director of the
Fourth Region of the Federal Labor Relations Authority by the issuance
of a complaint and notice of hearing dated August 30, 1983. The
complaint was issued following an investigation of an unfair labor
practice charge filed on May 23, 1983, and an amended charge filed on
August 3, by National Association of Government Employees, Local R4-114,
herein the Union, NAGE or Charging Party. The complaint alleges that
Department of Defense, Army and Air Force Exchange Service, Fort Eustis
Exchange, Fort Eustis, Virginia, herein the Respondent, violated section
7116(a)(1) and (2) of the Statute by requiring Union President Susan
Moody to sign a revised AAFES Standards of Conduct Review Certificate
Form 1100-30 and orally reprimanding her for failing to sign the form.
The complaint alleges that the Respondent's conduct was motivated by
Moody's activities in and on behalf of the Union. Respondent denies any
violations and asserts that the General Counsel has not proven a prima
facie case and, in any event, Moody would have been disciplined for
insubordination and even in the absence of her alleged protected
activity.
A hearing was held in Norfolk, Virginia at which the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine, and cross-examine witnesses and argue orally. Briefs
were filed by the General Counsel and Respondent. In addition
Respondent moved to file an amended brief. The General Counsel filed no
response to the motion, which is hereby granted.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
Findings of Fact
1. The Department of Defense has been and is now an agency within
the meaning of section 7103(a)(3) of the Statute. Army and Air Force
Exchange Service, and Fort Eustis Exchange, Fort Eustis, Virginia, have
been and are now activities of the Department of Defense within the
meaning of section 2421.4 of the Rules and Regulations of the Authority.
2. At all times material herein, the following named persons
occupied the positions set forth opposite their respective names and
have been and/or are now supervisors or management officials within the
meaning of section 7103(a)(10) and (11) of the Statute, and/or agents of
Respondent:
Joel R. Sontag
General Manager
Tidewater Area Exchange
Langley Air Force Base, Virginia
Robert Campbell
Exchange Manager
Fort Eustis Exchange
Fort Eustis, Virginia
David E. Ellison
Director, Personnel
Headquarters, AAFES
Robert Stiles
Food Manager
Fort Eustis Exchange
3. The National Association of Government Employees, herein called
NAGE National, has been and remains the exclusive representative of
certain employees of the Army and Air Force Exchange Service in a
consolidated unit as set forth and described in a collective bargaining
agreement between NAGE National and the Army and Air Force Exchange
Service which is effective by its terms until at least on or about
October 26, 1985. The unit herein is as set forth and described in the
collective bargaining agreement described above (See G.C. Exh. 1.D.
(para. 5b). The Union has been and is now an administrative subdivision
of NAGE National and responsible for administration of the collective
bargaining agreement described above for employees in the unit described
in paragraph 5(b) of the complaint, at Respondent's Ft. Eustis, Virginia
Facility. The Union has been and is now a labor organization within the
meaning of section 7103(a)(4) of the Statute.
4. Employees of Respondent are required twice a year to sign a
Standards of Conduct Review Certificate (G.C. Exh. No. 2). The same
form may be used year after year as there is room on the front page to
"reaffirm" each time it is signed and dated. The reverse side of the
form contains a list of basic rules of conduct, rules concerning
gratuities and general prohibited practices. Of course, when a copy of
the form is made, there are two sheets of paper, one being a copy of the
front of the form and one being the reverse side of the form. In August
of 1982, the form was slightly revised (G.C. Exh. No. 3). It still
consisted of one page with printing on each side but there were two
copies; the original was colored white and the carbon was colored
yellow. The new form contained one new prohibited practice (#10) and a
requirement to report arrests and indictments (#11).
5. The events of April 6.
a. On April 6, Food Manager Robert Stiles asked Union steward Janice
Harrell to update her Standards of Conduct Review Certificate. She
recognized immediately that the form was a new one and told Stiles she
preferred to sign her old form. Stiles promptly walked over to the file
cabinet, obtained her counseling folder and gave her the old form, which
she signed. In response to a leading question by the General Counsel,
Harrell stated that Stiles did not appear "upset" when she signed the
old form.
b. Also on April 6, Stiles approached Lillian Wright, a steward and
Secretary-Treasurer of the Union. He asked her to sign her Standards of
Conduct review Certificate. The form proffered her was the old form.
c. Based upon the testimony of Harrell and Wright, I conclude that
Stiles did not discern any significant difference between the old and
the new form, that he didn't care which ones were signed, and he made no
special effort to insist on one or the other being signed.
6. The events of April 7.
a. On April 7, Stiles asked Supervisor Clara Carter to request the
employees under her supervision to sign their Standards of Conduct
Review Certificates. He did not specify which form should be signed.
Carter testified that she gave each of these employees the old form from
their personnel file. The following employees signed: Veda Hunter, Kim
Brown, Doris Nazareth and Alma Jones. /2/ According to Carter, Susan
Moody failed to sign her old form. /3/ As to the reason for this
refusal to sign the old form, I accept the credited version of Stiles
who said he inquired of Carter whether she had collected all the
necessary signatures and was informed that Moody refused until some
outdated annotations were removed from her counseling cards. /4/ It
seems to me that only this type of reason would cause Stiles to conclude
that there was a "problem".
b. After being informed by Carter that Moody was refusing to sign
the certificate, Stiles apparently arranged to meet with Carter and
Moody. Somewhere or other-- the testimony is conflicting-- they all
wound up seated at the same table. /5/ Although Moody had in front of
her the personnel folder containing her old form, which she had signed
in previous years, she had not yet signed the old form. There is also a
conflict of testimony as to the order in which words were spoken and
actions taken by those present. Somehow or other, a copy of the newly
revised form appeared on the table. The person who put the new form
there was Stiles. His explanation, is that he noticed Moody's old form
did not have a copy of the reverse side so he went and got it in order
to be helpful. Although I am puzzled by this explanation, it is not
unreasonable and I accept it. A more plausible explanation, however, is
that it was at this point in the meeting when Moody refused to sign
because it was a xerox copy. Logically this would have to have occurred
prior to being presented with a new form. G.C. Exhibit No. 7 and the
testimony of Campbell (Tr. 82) clearly indicate that a refusal, because
it was a xerox copy, occurred. It seems to me that this objection by
Moody best explains why Stiles-- without having been asked-- went to his
office and got the new form so that Moody could read what was on the
back. Certainly, the difference between the two forms was insignificant
and, as we have already seen, Stiles treated the two forms alike in his
dealings with other employees. Accordingly, I can readily understand
why he would pick up a copy of the new form rather than look for an
original copy of the superceded old form. /6/ Logically, it also seems
that it must have been somewhere at the beginning of this meeting that
Stiles told Moody outdated notations of her counseling card had nothing
to do with whether she should sign her Standards of Conduct Review
Certificate. According to Stiles, she seemed to accept what he said.
c. With respect to the remainder of this meeting there are numerous
conflicts in the testimony. Both Stiles and Moody agree that Carter was
there throughout the entire meeting which, based upon Stiles' testimony,
I find lasted about 15 minutes. Carter said she was only there for
about five minutes and her recollection was somewhat limited. My
impression at the hearing, based upon my observation of her demeanor
while giving testimony, was that Carter was withholding information as
to exactly what was said at this meeting and her "excuse" for having a
limited recollection was that she was "in and out" of the meeting. As a
result, Carter's testimony was almost valueless in terms of reconciling
the conflict between the differing versions given by Stiles and Moody.
Accordingly, the account that follows is primarily based upon the
credited testimony of Stiles whose version was the most plausible
explanation of what happened.
d. When Moody saw the new form she immediately recognized that it
was different from the old form. Without reading a single word, the
mere appearance indicated it was new. Moreover, at the bottom of the
front page it said it was revised in August, 1982, some eight months
previous. Then Moody read the new form and stated that she was afraid
to sign it because she didn't have all the material referred to in the
form. Stiles then offered to obtain whatever information she needed but
she replied it wasn't necessary and "I can't sign this form until I
check with my union representative and they tell me it's okay. Stiles
then said to Moody "well you have reviewed the form, I have offered to
get you the information required, and she cut me off and she said . . .
I haven't received a copy of this form in the mail." /7/ The meeting
ended upon this note. With respect to the conflicting testimony, I have
concluded, after much deliberation, that Stiles did not insist upon
Moody signing the new form and that at no time did Moody express any
willingness to sign the old form.
e. Moody also testified that during this meeting she went to Stiles'
office, called a Union representative, told him about the new form, was
asked to send copies of both forms to the Union, and was advised not to
sign anything she didn't understand. Stiles denied the foregoing and
Carter didn't mention it. I believe Stiles. This is not to say that
she didn't make the call at a different time. Thus, it appears to me
that she is confused as to an event which occurred, not during this
meeting, but afterwards. (Reference to this is made in G.C. Exh. No. 8
(para. 6) as having made in the subsequent meeting with Campbell,
discussed infra.)
f. After Moody returned to work, Stiles prepared a memo (Resp. Exh.
No. 1) which Carter, who had been present during the entire meeting,
signed. It stated as follows:
At 0950 hrs Mrs. Susan Moody refused to sign standards of
Conduct AAFES form (Rev. Aug. 82) 1100-30. She advised she would
not sign until she checked with the Union Representative (sic)
advised her it was ok to sign, Mrs. Moody did state that it was a
new form to her.
Both Stiles and Carter signed the memo. I credit Stiles' testimony that
before she signed this memo Carter verified that it was accurate. /8/
Stiles then reported what happened to Exchange Manager Robert Campbell.
I find and conclude that Stiles, without distinguishing between the old
and new form, merely reported that Moody had not signed the Standards of
Conduct Review Certificate. Campbell asked for a copy of the memo and
said he wanted to see Moody. Campbell's recollection of the
conversation is that Moody's refusal related to the fact that the back
of the new form had some information pertaining to procurement,
something not germane to her job. Campbell's recollection is that
Stiles was only referring to the new form. However, Campbell credibly
testified that in this or some other conversation with Stiles, he
learned that Moody had said that the xerox copy in her file had no
information on the reverse side. Thus, there was some discussion of the
old form and Moody's reason for not signing it.
g. Stiles also informed Catherine Vader, Chief of Personnel, about
the incident. He told her that Moody refused to sign because she didn't
receive a copy of the new form.
h. According to Moody, later that same day while Moody was
explaining what had occurred in the Stiles-Moody-Carter meeting to
Lillian Boyd, (hereinafter Boyd) Union steward, Campbell came out of his
office. Boyd suggested that Moody ask Campbell about the matter. Moody
did so, and Campbell told Moody that he could not discern a difference
between the two forms. Boyd did not testify and Campbell did not recall
the incident. This evidence offered by the General Counsel, together
with the credited testimony of Campbell, shows that management's
attention was being directed not to a particular form (old or new) but,
rather, to the fact of Moody's refusal.
i. According to Moody, it was this same day /9/ that she talked to
Janice Harrell, who showed Moody a letter dated March 31, 1983 from
Director of Personnel, (G.C. Exh. No. 6) which provided in part, that
"(t)he revised form is to be used for all new hire employees only."
(G.C. Exh. No. 6) Moody and Harrell went to Campbell's office and showed
Campbell the letter. He read it, and drew a line under the phrase, "new
hire employees only." (G.C. Exh. No. 6) Moody asked Campbell whether or
not she was considered a new employee, and he replied that she was not.
Although Harrell was a witness at the hearing she wasn't asked about
this conversation with Campbell. He didn't recall the conversation but
didn't dispute it. I do not see where this evidence helps the General
Counsel's case. What is shows me is that Campbell was oblivious to any
distinction between the old and the new form. His awareness of the
situation was that an employee was refusing to sign the Standards of
Conduct Review Certificate. What is missing from Moody's testimony is
even more significant. She did not testify that while in Campbell's
office she offered or attempted in any way to make clear to Campbell
that she was, in fact, willing to sign the old form as she contends in
this proceeding. Surely, if she was willing to sign the old form she
could have made this clear while she had another Union official present
as a witness. It should also be noted that during her meeting with
Stiles she was not aware of G.C. Exh. No. 6 (referred to above), and,
therefore, her refusal could not have been based upon the reason that
she was not a new employee.
j. Lois Lee Lawson, a supervisor at the Wings and Wheels Snack Bar
testified that the only instructions she received from Stiles were to
have employees read and sign their standards of conduct. He gave no
specific instructions as to forms and she used the old ones in their
folders. Delores Wallace, a food foreman testified similarly. Thus,
they corroborated the testimony of Stiles and Carter.
7. Events of April 8.
a. Pursuant to a call from Campbell, Stiles went to Moody's work
area and told her Campbell wanted to see her "as an employee." Moody
replied that she didn't have time to go to Mr. Campbell's office because
she was busy. On cross-examination, Stiles conceded that Moody may have
also asked him to make an appointment when she was less busy. With
respect to this conflict in testimony, I am inclined to believe that
Moody balked about going directly to see Campbell and Stiles correctly
concluded that she was being somewhat "difficult." Whether or not
Moody's response could properly be characterized as a "refusal" depends
upon what she said and how she said it. In any event Stiles reported
back to Campbell and characterized it as a "refusal." Naturally,
Campbell replied as might be expected and sent Stiles back to Moody to
tell her he would not take no for an answer. But, even on the second
trip, Stiles didn't obtain the kind of prompt compliance one should
expect of an employee. Thus, Moody's version is that she asked Stiles
whether Campbell wanted to see her as an employee or as a Union
official. Stiles' version, which I credit, is that he again made clear
that Campbell wanted to see her as an employee, to which Moody inquired
whether he was "asking" or "directing" her to go. Stiles replied that
he was directing her to go to Campbell's office. She thereupon went to
the office of Campbell, followed by Stiles.
b. At the meeting in Campbell's office, Moody was asked by Campbell
to review and update her standards of conduct. She replied, "I cannot
sign it until I check with the Union to see if it's okay for me to
sign." From the testimony of Campbell it's sufficiently clear that it
was the revised form which was the subject of the conversation and that
Campbell advised Moody he felt she was incorrect in saying the revised
form was only for new employees. Further, Campbell pointed out to her
that this was standard form required of all AAFES employees to sign
periodically. The meeting lasted only 5 or 10 minutes. Moody admitted
she refused to sign (Tr. 34) and she assumed they were talking about the
revised form. There is no evidence that Moody offered to sign the old
form, and, in my opinion, it was incumbent upon her to make such an
offer to clarify and explain her refusal.
8. On April 12, Stiles hand-delivered to Moody a Notice of Proposed
Written Reprimand (G.C. Exh. No. 7) which in pertinent part, states as
follows:
a. Specifically, on 7 April 1983, you refused to sign your
Standards of Conduct Review Certificate (AAFES Form 1100-30)
stating it was a xerox copy. However, when given an updated AAFES
Form 1100-30, you refused to sign it, stating that you objected to
the procurement and reporting of arrests/indictments section and
would not sign until you checked with your union.
b. On 8 April 1983, Mr. Bob Stiles, your manager, informed you
that Mr. Robert Campbell, Exchange Manager, Fort Eustis, wished to
see you in his office. You told Mr. Stiles that you did not have
time for a meeting. Only after Mr. Stiles told you that Mr.
Campbell would not accept a "No" did you meet with Mr. Campbell.
During your meeting Mr. Campbell explained that he was talking to
you as an exchange employee, and that all exchange employees were
to sign/reaffirm the Standards of Conduct Review Certificate. You
told Mr. Campbell that you had been directed by your union not to
sign. Furthermore, you had been directed by the union to send a
copy of your old xerox form and a copy of the new form to them.
You again stated that you would not sign the Standards of Conduct
Review Certificate until your union gave you permission.
3. In refusing to sign the statement reaffirming your AAFES
Standards of Conduct Review Certificate, you have violated
paragraph 1-19, Exchange Service Manual (ESM) 15-4, Standards of
Conduct and paragraph 1-25, AR 60-21/AFR 147-15, Exchange
Personnel Policies. you are again directed to sign the AAFES
Standards of Conduct Review Certificate Form 1100-30 within 20
calendar days of your receipt of this letter.
4. You are advised that consistent with the principle of long
standing practice in the work place of "Comply Now, Grieve Later",
if you refuse to comply with this order within the allotted time
of 20 calendar days, your refusal will be considered a serious act
of insubordination, and you may be separated from employment with
the Army and Air Force Exchange Service for that act.
5. If you have questions about whether the requirement
directed of you conforms to regulation or other proper authority,
you are advised that you should file a grievance or seek redress
with the Federal Labor Relations Authority after you comply with
the requirement.
9. On April 21 Moody and her Union Representative, George Reaves met
with Campbell and General Manager Joel Sontag. During the meeting
Sontag asked whether Moody would sign the old form and she said she
would. He then called Stiles at the Snack Bar and asked him to bring
over her old form, which she then signed.
10. On May 5 Moody was told by Stiles to report to Campbell's
office. In contrast to her conduct on April 8, supra, she "assumed" she
was being called as an "employee" and therefore stopped enroute to ask
Union Steward Boyd to accompany her. When the got there, Campbell
informed her she was being given an oral reprimand, rather than a
written one, and he noted this on her counseling card which she then
acknowledged in writing. Later, she received written notification (G.C.
Exh. No. 9) of the oral reprimand which, in pertinent part, stated:
. . . However, I have taken into consideration the possibility
that you misinterpreted the requirement to comply with paragraph
1-19, Exchange Service Manual (ESM) 15-4, Standards of Conduct.
Accordingly, it is my final decision that the proposed written
reprimand be reduced to an oral reprimand which will be
administered by Mr. Robert Campbell, Exchange Manager."
4. The specific basis relied upon in making the final decision
to orally reprimand you is as follows:
Specifically, on 7 April 1983, you refused to sign your
Standards of Conduct Review Certificate (AAFES Form 1100-30).
Again on 8 April 1983, you refused to sign when asked by your
Exchange Manager, Mr. Robert Campbell.
Thus, the April 8 "refusal" to promptly meet with Campbell was omitted
as a specific basis for the oral reprimand.
Positions of the Parties
The General Counsel contends: (1) that Moody was engaged in
protected union activity when she sought advice from the Union,
especially when she felt that, as Union President, she should have been
notified of any change in the Standards of Conduct Review Certificate;
(2) that Respondent had knowledge of such "protected" activity; and (3)
that the oral reprimand was discriminatorily motivated because she was
singled out as the only "old" employee who was being required to sign
the newly revised form. In this latter regard, it is asserted that
Respondent's defense of "insubordination" is a pretext designed to mask
its real reason; i.e. Moody's resort to the Union for assistance in
carrying out her representational duties as Union President.
The Respondent denies that Moody was engaged in protected activity,
Respondent asserts Moody was orally reprimanded for being insubordinate
by refusing to comply with a requirement uniformly imposed upon all
employees, and that her refusal warranted disciplinary action. In its
amended brief, Respondent argues that Moody was not engaged in concerted
activity because she was not acting "with or on the authority of other
employees, but was engaged in activity solely by and on behalf of
herself." /10/
Discussion and Conclusions of Law
The Authority has held that it will not condone any action by an
employee, regardless of his union activity or position, which would
result in a breach of a lawful agency regulation. /11/ There is no
dispute that Moody was being asked to comply with a lawful agency
regulation when she was asked to sign and date her Standards of Conduct
Review Certificate.
In a recent arbitration decision, /12/ the Authority dealt with a
Union's contention that a grievant, the Union president, was engaged in
activities protected under the Statute and consequently was not subject
to discipline while so engaged. The Authority held as follows:
There is no authority under the Statute to support the
assertion that the grievant was immune from discipline until such
time as he determined that his responsibilities as union president
had been fulfilled. To the contrary, nothing in the Statute
operates to insulate the grievant from discipline in the
circumstances of this case. See United States Forces Korea/Eighth
United States Army and National Federation of Federal Employees,
Local 1363, 11 FLRA No. 79 (1983), at 3 n. 3. Accordingly, the
Union's exception is denied.
In my opinion, the foregoing case law is applicable to this proceeding.
By refusing to sign either the old or the new form, Moody acted at
her peril and risked possible discipline. She refused to sign the old
form for Carter on April 7; she refused to sign either the old or new
form for Stiles on April 7; and she refused to sign the new form for
Campbell on April 8. I find and conclude that the sole reason for
Respondent's proposed written reprimand of April 12 and its oral
reprimand of May 5 was her refusal to fulfill a requirement imposed upon
all employees, namely, to sign a Standards of Conduct Review
Certificate. Accordingly, I find that the General Counsel has failed to
prove by a preponderance of the evidence that Respondent committee an
unfair labor practice in violation of section 7116(a)(1) and (2).
Even if I were to accept Moody's testimony that she needed time to
read it over and understand it, enough time went by between April 7 and
April 12 for her to accomplish this. She also had ample time in which
to consult with the Union and to read all the applicable regulations.
But the plain and simple fact is that she was being obstinate and
recalcitrant. As things worked out she didn't sign the form until April
21, two weeks after her initial refusal for the clearly irrelevant
reason that she wanted some annotations removed from her counseling
card. It was this initial refusal followed by her complaint that the
old form was a xerox copy that started this entire incident. Since
these refusals preceded her being shown and asked to sign the new form,
grounds for insubordination had already been established in her capacity
as an employee before any factual issues arose concerning whether she
then began to conduct herself as union president in a representational
capacity. My view of the facts is that she was not engaged in union
activity in a representational capacity. But, even if so engaged, the
General Counsel has not established a nexus between such activity and
the discipline imposed. Further, the record is barren of any evidence
of hostility towards the Union or Moody by Respondent or its agents.
Finally, I find no merit in the General Counsel's contention that
Moody was the victim of disparate treatment. Although Stiles approached
two other employees and sought their signatures, he was not upset
because Harrell preferred to sign her old form or because Jones was busy
and couldn't sign hers right away. He didn't even approach Moody
himself. She was just one of five employees who Carter requested to
sign the old form-- the same form (G.C. Exh. No. 2) Moody had been
signing since 1977. I am satisfied that Stiles did not care which form
was signed so long as he accomplished his assignment of ensuring that
all employees under his supervision complied with this requirement. The
only employee to refuse was Moody. In the circumstances of this case,
Moody was not immune from discipline. /13/
Section 7116(a)(1) of the Statute makes it an unfair labor practice
for an agency "to interfere with, restrain, or coerce any employee in
the exercise by the employee of any right" protected by the Statute,
including the right to engage in activities on behalf of a labor
organization. Section 7116(a)(2) makes it an unfair labor practice for
an agency "to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment."
The General Counsel has the burden of proving the allegations of the
complaint by a preponderance of the evidence. Based upon my review of
the entire record, I conclude that the General Counsel has not sustained
its burden of proving that Moody's oral reprimand was motivated by
anti-union reasons.
Having found that Respondent did not engage in any unfair labor
practices by the actions and conduct described above, and therefore has
not violated section 7116(a)(1) and (2) as alleged in the complaint, it
is recommended that the Authority issue the following:
ORDER
That the complaint in Case No. 4-CA-30433 be, and it hereby is,
dismissed.
FRANCIS E. DOWD
Administrative Law Judge
Dated: July 5, 1984
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ The General Counsel excepted to certain credibility findings made
by the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge has had the advantage of
observing the witnesses while they testified. The Authority will not
overrule a Judge's resolution with respect to credibility unless a clear
preponderance of all the relevant evidence demonstrates that such
resolution was incorrect. The Authority has examined the record
carefully, and finds no basis for reversing the Judge's credibility
findings.
/2/ Jones' signature was first solicited on the old form by Stiles
but Jones was busy. She asked him if it would be all right if she
signed later. He said that would be okay. Later, that same day (April
7) Carter solicited Jones' signature. Jones testified she signed in
April or May. I find she singed on April 7 and inadvertantly wrote
March 7, probably because the date on the preceding line was also the
month of March.
/3/ I believe Carter was telling the truth when she said she asked
Moody to sign her old form. Therefore, I discredit Moody's denial and,
because I believe she was untruthful with respect to this matter I have
found it hard to credit much of her testimony overall when in conflict
with other witnesses.
/4/ I find it hard to believe that Moody, who'd been working there
for 22 years, and who had been signing this same form (G.C. Exh. No. 2)
for many years, would refuse simply because she needed time to read it
over. There obviously had to be more to it than that. Although Carter
testified she couldn't recall the exact words used by Moody, the thrust
of her testimony was that Moody "wasn't ready" to sign. I do not accept
Carter's characterization of Moody's actions as not being a "refusal" to
sign.
/5/ The most accurate account is that of Stiles. He testified that
Carter and Moody were both seated at a table and Carter came to him and
told him Moody wouldn't sign until some outdated annotations were
removed from her counseling card. Stiles told Carter this had nothing
to do with standards of conduct and the two of them joined Moody at a
table where Moody had her file in front of her, with the old form. As
of this point, the old form was unsigned.
/6/ Moody claims Stiles was gone for a half hour, but this testimony
is contradicted by both Stiles and Carter and is in any event not
plausible.
/7/ Respondent disputes that she was entitled to any notice and, in
any event, points out that signing the form would not preclude her or
the Union from filing a grievance or unfair labor practice charge.
There is no evidence that a grievance or charge were filed, or that this
incident generated correspondence from the Union to the Respondent
concerning the new form or defending Moody's refusal.
/8/ I place no significance in the fact that Stiles did not attempt
to provide a detailed summary of the entire incident. The mere failure
to include all the reasons given by Moody for refusing to sign does not
mean his testimony is untrue.
/9/ In another conflict of testimony, Harrell placed this
conversation as 5 or 6 days after April 5 (Tr. 60).
/10/ In support of this argument, Respondent cites the following NLRB
cases which it asserts are analogous: Meyers Industries, Inc. and
Kenneth P. Prill, 268 NLRB No. 73, 115 LRRM 1025. See also Briley
Marine and Michael A. Fuller, 269 NLRB No. 122, 115 LRRM 1310; Central
Georgia Electric Membership Corporation and Stanley H. Allen, 269 NLRB
No. 123, 115 LRRM 1311. In reaching my decision herein I have found it
unnecessary to decide whether Moody was engaged in "concerted" activity.
Rather, I have only considered whether it was "protected" activity and,
if so, whether such activity motivated Respondent's decision to
discipline her.
/11/ United States Forces Korea/Eighth United States Army, 11 FLRA
No. 79, 11 FLRA 434 (1983), note 3.
/12/ Harry S. Truman Memorial, Veterans Hospital, Columbia, Missouri,
14 FLRA No. 20, 14 FLRA 103, (March 16, 1984). There, a union president
was disciplined for insubordination for not obeying an order to return
to work. The Arbitrator denied the grievance.
/13/ See cases cited in notes 10 and 11, supra.