[ v17 p563 ]
17:0563(86)CA
The decision of the Authority follows:
17 FLRA No. 86
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, 440TH TACTICAL
AIRLIFT WING (AFRES)
MILWAUKEE, WISCONSIN
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2144, AFL-CIO
AND HERBERT E. MUELLER
Charging Parties
Case No. 5-CA-30148
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. Thereafter, the General Counsel and
the Charging Parties filed exceptions to the Judge's Decision and briefs
in support thereof, and the Respondent filed an opposition to the
General Counsel's exceptions and a supporting brief.
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 recommended Order.
ORDER
IT IS ORDERED that the complaint in Case No. 5-CA-30148 be, and it
hereby is, dismissed.
Issued, Washington, D.C. April 19, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 5-CA-30148
Major Wade B. Morrison,
Counsel for Respondent
Judith Ramey,
Counsel for the General Counsel
Federal Labor Relations Authority
Kevin M. Grile,
Counsel for the Charging Party
Before: ISABELLE R. CAPPELLO, Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp.
V, 1981), commonly known as the Federal Service Labor-Management
Relations Statute, and hereinafter referred to as the "Statute", and the
rules and regulations issued thereunder and published at 5 CFR 2411 et
seq.
On January 18, 1983, the Charging Parties filed an unfair labor
practice charge against Respondent. The General Counsel of the Federal
Labor Relations Authority ("Authority") investigated the charge and, on
March 29, 1983, filed the complaint initiating this proceeding.
The complaint alleges violations of 5 U.S.C. 7116(a)(1) and (2). /1/
The alleged violative act is the termination of an employee, Herbert E.
Mueller, because he engaged in informational picketing and presented
grievances to management, on behalf of and through Local 2144 of the
American Federation of Government Employees ("Union"). Respondent
admits terminating Mr. Mueller and claims that it was because of his
duty performance, not his union activities.
The case was heard on May 25, 26 and 27, 1983, in Milwaukee,
Wisconsin. Witnesses were sequestered, except for Mr. Mueller,
assisting the General Counsel, and Raymond True, Assisting Respondent.
These exceptions were by agreement of the parties. The parties
appeared, adduced evidence, and examined witnesses. Pursuant to an
order dated June 17, 1983, briefing time was extended to July 25. On
July 25 briefs were submitted by all the parties.
Based upon the record made in this proceeding, my observation of the
demeanor of the witnesses, and the briefs, I enter the following
findings of fact and conclusions of law, and recommend the entry of the
following order.
Findings of Fact /2/
1. It is admitted that the American Federation of Government
Employees ("AFGE"), Local 2144 has been the exclusive representative of
a unit of Respondent's employees, including all General Schedule and
Wage Board civilians, during all times material to this proceeding.
Professional, managerial and supervisory employees were excluded from
the unit, at the times here relevant. Herbert E. Mueller was a member
of the bargaining unit during his employment and, on August 14 became a
union member.
2. On November 24, Mr. Mueller was terminated.
3. Mr. Mueller was initially hired by Respondent as a temporary
laborer, WG7, in September 1981. In the latter part of November 1981,
he was selected by Michael Bratlein to be a civil engineering technician
in the Civil Engineering Division ("CE") to perform work as a planner of
construction projects. Mr. Bratlein is a supervisory engineer and
serves as Deputy Base Engineer. At the time of his selection as a
planner, Mr. Mueller began serving a probationary period of 1 year.
According to Mr. Bratlein, a probationary period is to allow management
to answer the "basic question"-- "would you like to retain this person
forever" (2 TR 349).
4. When hired as a planner, Mr. Mueller's first-line supervisor was
Roland Kolwitz. His second-line supervisor was Bernhart Schmidt, who
had been a union steward at one time, and was Operations Foreman in CE
during Mr. Mueller's employment. His third-line supervisor was Raymond
True who, as Base Engineer, is the chief officer in CE and also a
Colonel in the Reserves. On July 26, Mr. Kolwitz was replaced by Thomas
Bausano, serving on a temporary detail. Mr. Bausano supervised Mr.
Mueller from July 26 until November 24.
5. For the period from September 24, 1981 to March 31, 1982, Mr.
Mueller received a Civilian Potential Appraisal ("CPA"). It was dated
April 23 and signed by Mr. Kolwitz, as supervisor, and by Mr. Schmidt as
the reviewing official. The ratings were mostly in the "Average" range
(GC 3). Some were in the "(s)lightly above average" range (GC 3). Mr.
Mueller felt that the appraisal was not high enough and protested it to
Mr. Schmidt and Colonel True. Both assured him that it was "good" (1 TR
18, 19). Colonel True gave him this assurance in May 1982, and also
told him that it would not harm his being promoted into a supervisory
position.
6. For the period from July 26 to September 20 Mr. Mueller received
a "fully successful" overall performance rating in a written Job
Performance Appraisal ("JPAS"). See GC 4. It is dated September 22 and
shows signatures on that date by Mr. Bausano, as the "Supervisor," Mr.
Schmidt, as the "Reviewing Official," and Mr. Mueller as the "Employee."
A note at the end of the appraisal states: "This is a presumptive JPAS
rating" (GC 4.4).
6a. A "presumptive" rating "may be assigned" when there is
insufficient data upon which to evaluate an employee (AE 4). It is
intended "neither to hurt the employee nor to glorify the employee," but
means that there "was no proof that anything had occurred," and so a
presumption is made that the employee is "passable or acceptable" (2 TR
137). It is to prevent an employee from sustaining "any undue hardship
on an within-grade increase that is due, yet they have not had adequate
time to be evaluated" (2 TR 226).
6b. The Office of Personnel advised Mr. Bausano that he had
supervised Mr. Mueller for too short a time to write up a JPAS. Mr.
Kolwitz had failed to make out a JPAS for Mr. Mueller before being
replaced by Mr. Bausano. It was admitted that Mr. Schmidt, as the
second-line supervisor, could have written up an actual appraisal, based
upon his own observation of the performance of Mr. Mueller. Mr. Schmidt
had daily contact with Mr. Mueller and "very often" reviewed his work (2
TR 284). Mr. Bratlein also admitted to having work-type contacts with
Mr. Mueller, two or three times a week, and to having been personally
involved in some "personality problems" of Mr. Mueller in dealing with
some other agencies on the base (2 TR 332).
6c. Mr. Bausano admitted that, as of September 22, he considered
that Mr. Mueller "had his high points and his low points just like
anyone" and was not a "total loss" (2 TR 154). Mr. Schmidt considered
Mr. Mueller to be "marginal on his performance," at the time the JPAS
was signed (3 TR 122).
6d. A personnel specialist, Ronald Springer, advised giving the
presumptive rating, and a consequent within-grade increase which was
approved on September 17, 1982 and made effective on October 3, 1982.
7. At sometime after the time the within-grade increase had been
granted, Mr. Springer met with Colonel True and Mr. Bausano, two times,
about the procedure for terminating a probationary employee and, in
particular, Mr. Mueller. Mr. Springer advised them of the proper
reasons for termination, that it would have to be for "performance
based" reasons, and that there had to be "documentation" (2 TR 239).
8. Rumors about Mr. Mueller being fired surfaced in CE in October.
A union official learned of them and discussed the matter with Mike
Taylor, a personnel specialist in the Chicago office, and Colonel
McMahon, Base Commander, in the middle of October. Neither professed
any knowledge of Mr. Mueller's termination. Mr. Taylor checked, and
called the union official back with word that "the rumor was not true"
(2 TR 41-42). Mr. Bausano, about the same time, assured Mr. Mueller
that the rumors were "unfounded" (1 TR 30).
9. On November 17, Mr. Mueller was informed, by a letter signed by
Mr. Schmidt, that he was being terminated during probation.
10a. The primary decision to terminate Mr. Mueller had to be made by
Mr. Schmidt, because Mr. Bausano was only on detail as his supervisor.
Mr. Bausano approached Mr. Schmidt to discuss the subject and to get
some "feedback" (2 TR 176). Mr. Bausano brought to Mr. Schmidt a "rough
draft" of things he could remember, to justify a letter of termination,
"to see if it was usable or if they were willing to do something else"
(2 TR 176).
10b. The "idea" of terminating Mr. Mueller "floated around"
throughout most of the time period of Mr. Bausano's supervision of him.
Colonel True, Mr. Schmidt, Felix Mercado, Phillip Tojek, Mr. Bratlein,
secretaries, the Contracting Officer and her assistant, and some
laborers expressed negative thoughts to Mr. Bausano about Mr. Mueller.
Mr. Mercado and Mr. Tojek were members of the bargaining unit, at the
time.
10c. Perhaps as early as September, Colonel True discussed with Mr.
Schmidt the problems with Mr. Mueller's performance and that "it might
be necessary for (Mr. Schmidt) to take some action" (3 TR 68-71).
11. Three reasons for termination were given in the November 17
letter to Mr. Mueller, the first being for "(p)erformance" and the fact
that "(s)everal instances of questionable ability had occurred since the
change to the present supervisor (Mr. Bausano)" (GC 8.1).
11a. Mr. Bratlein, who was in contact with Mr. Mueller probably two
or three times a week, admitted that Mr. Mueller made only "slightly
more" mistakes than the seven other planners with whom Mr. Bratlein had
worked, and that only one other had been removed involuntarily (2 TR
363). In Mr. Bratlein's opinion, Mr. Mueller "probably could accomplish
the job if the personality wouldn't have gotten in the way, and it
appears to have been really the biggest stumbling block for him" (2 TR
345).
11b. Sandra Skinner, a union steward and coworker of Mr. Mueller in
the planning section, was in a position to compare the work of eight
planners. (While she may have had some bias, as a union steward, she
appeared to give honest, candid, and careful testimony-- all under the
scrutiny of her third-line supervisor, Colonel True-- so I have credited
her testimony). Ms. Skinner sees all work orders in CE; when there is
a problem on one, it comes back to her desk; she keeps the status board
on work orders; she attends regular Monday meetings where problems with
projects are discussed; she knows if engineering performance standards
are used; she can observe how often work orders are returned for
reasons of material ordering; her desk is located so that she can
overhear complaints made to Mr. Mueller and Mr. Bausano; "customers"
(other agencies on the base for whom CE is doing work) call her "fairly
often" to check on the progress of work orders (2 TR 100). On the basis
of what she was in a position to know, observe, and overhear, Ms.
Skinner ranked Mr. Mueller as the second best planner of the eight with
whom she had worked. Only one other of the eight planners was
terminated involuntarily. She felt that Mr. Mueller had "a very good
rapport with customers" (2 TR 101). His orders were not returned
anymore frequently because of material-ordering mistakes. She
established that it was "common for there to be hitches" in work orders,
at least 80 percent having them (2 TR 97).
11c. Mr. Mueller's first-line supervisor up until July 26 (Mr.
Kolwitz) thought that "(o)verall" the performance of Mr. Mueller was
"good" (2 TR 300 and GC 10.2) and that he was a "fast learner" (GC
10.2). Mr. Kolwitz expressed to Mr. Schmidt his concern that Mr.
Mueller's "low performance," on some jobs, was "probably his (Mr.
Kolwitz') fault" (2 TR 285).
11d. Mr. Mueller himself admitted to lapses in performance as to the
instances cited in the November 17 notice of termination letter. But he
testified that this was not such a poor record, since he had handled
over 100 work orders during the period of his employment. He also
expressed his view to management that, since his supervisors reviewed
all his work, the lapses were really in supervision by Mr. Bausano and
Mr. Kolwitz. Mr. Bausano admitted that he had no real construction
experience. And Mr. Kolwitz was judged by Colonel True as a
"substandard" employee in terms of performance (3 TR 3). Mr. Mueller
admitted to setting his own priorities for accomplishing the workload of
the planning section and put facility surveys last, even when asked,
several times, to complete them on schedule.
12. Another reason given for termination was reliability in
attendance, specifically that Mr. Mueller had been counseled on two
occasions in less than 6 months to use the sign-out sheet, so that his
location during duty hours could be determined, and that as recently as
November 15 he had neglected to do so. See GC 10.25. Mr. Mueller
appeared to regard the use of sign-out sheets as a trivial matter. He
claims that he was only told once to use the sign-out sheet; but he
then admitted it may have been more than once. See 1 TR 105. He
explained that he did so 75 percent of the time, which was "no worse
than anyone else in the Civil Engineering Section" (GC 9.3). Ms.
Skinner confirmed that others did not always sign out. Mr. Bausano
conceded that the standard applied to Mr. Mueller for use of the
sign-out sheet represented a higher one than had been in effect in CE.
See 2 TR 215-216.
13. The final reason given for termination concerned the "bad
attitude" of Mr. Mueller (GC 8.1). Cited were problems of "arrogance
and unwillingness to follow departmental procedure;" "abusive style of
conversation concerning the job, concerning the government in general,
and concerning other employees;" "disruption and discontent resulting
from (his) actions;" "excessive gossiping during duty hours;" "misuse of
government phones;" and "insubordination."
13a. Mr. Mueller admitted feeling superior to his supervisors; to
some name-calling of them, in front of others; and to using his office
phone for personal calls. Name-calling and personal use of office
phones are not uncommon, in CE.
13b. On December 15, 1981, Mr. Kolwitz documented, in Mr. Mueller's
personnel file, the fact that shop personnel had told him that Mr.
Mueller was "acting like the (B)ase (E)ng(ineer)" (GC 10.1). On January
21, he also documented the fact that Mr. Mueller was going over his
head, to Colonel True and Mr. Schmidt. See GC 10.2. Mr. Kolwitz did
not testify.
13c. Several employees presently employed in CE did testify to the
fact that Mr. Mueller tried to supervise them even though he was not
their supervisor.
13d. An employee in the Contracting Office, and her supervisor,
testified to Mr. Mueller's arrogance and disdain for following
applicable government regulations. These two witnesses for Respondent
are not under the supervision of Colonel True, and appeared to be
sincere and honest in giving their testimony. Accordingly, I have fully
credited them and placed considerable weight upon their testimony.
Maintaining good relations with personnel in the Contracting Office is
important to the accomplishment of the work in CE because only they can
place orders for material and arrange for work to be done by outside
contractors.
13e. With some customers of CE, Mr. Mueller had amicable and
courteous working relationships. See 2 TR 193-194. For example, Mr.
Bausano recalled that the "(p)eople in disaster preparedness office
indicated that . . . Mr. Mueller was an okay person in their estimation"
(2 TR 193). And the Wing Senior Recruiter wrote a laudatory letter to
Mr. True about Mr. Mueller, on September 13, about a completed work
order. In the letter he praised him for his "daily diligent attention to
small and large details, friendly, receptive, cooperative attitude . . .
(and) professionalism . . . (GC 6). The letter called him as a "true
quality asset" to CE and expressed "pleasure to work with an individual
of his caliber" (GC 6). The praise from the Wing Senior Recruiter was
documented in Mr. Mueller's personnel file.
13f. Mr. Bausano had a "hot" discussion with Mr. Mueller on his
first day as his supervisor (2 TR 138). Mr. Bausano began to document
problems with Mr. Mueller on August 27, when he had a formal counseling
session with Mr. Mueller. See GC 10.7 and 8. Another formal counseling
session took place on October 13 and was also documented. See GC 10.14
and .15.
13g. Mr. Bausano testified as to the two formal counseling sessions;
and his testimony was not rebutted by Mr. Mueller. Mr. Bausano is
currently an employee in CE and acted and testified under the scrutiny
of Colonel True, who promoted him following his detail as the supervisor
of Mr. Mueller. Accordingly, I observed, with particular concern, his
demeanor as a witness. He appeared to be uncomfortable and reluctant to
testify against Mr. Mueller; but he also appeared to be honest and to
give careful consideration to what he was saying. What he had to say
was corroborated, in some respects, by others. Accordingly, I have
credited his testimony.
13h. Mr. Bausano established that he explained to Mr. Mueller that
his "loud, very abusive: criticism and very negative remarks about the
organization "caused other people to react in kind" (2 TR 143). He
established that he "tried to get the point across that this is just
continuing to stir things up" (2 TR 143). He established that he told
Mr. Mueller to express his feelings privately, but that "while we're in
the work place why should we keep things continually at a fever pitch.
Let's tone down a little" (2 TR 143). Mr. Bausano established that
these remarks did not refer to "union remarks," but rather about "people
(Mr. Mueller) didn't like or the way things were done" and "regulations
he didn't care for" (2 TR 143-144). Mr. Bausano established that Mr.
Mueller expressed the view that there were a lot of unnecessary steps
required in Air Force regulations and that there was a better way of
doing things.
13i. Mr. Bausano established that Mr. Mueller, in public, made such
loud remarks about Mr. Schmidt as his being "too dumb to have the job,"
that he "was screwing things up," that he was a "tankbrain," a
"dogbreath" or "doghead," and that he had "shit for brains" (2 TR 145).
Mr. Bausano established that Mr. Mueller also felt "pretty strongly"
about Mr. Tojek, and made remarks "about just about anyone that may have
gotten on his bad side for something during the day" (2 TR 144). While
other employees also engaged in name-calling, what set Mr. Mueller apart
was the fact that he was "more constant about it than others and seemed
so negative . . ." (2 TR 221).
13j. On August 26, Mr. Bausano documented an observation by Norman
Ross, a supervisor acting in the stead of Mr. Schmidt on that day. The
documentation states: "On 26 August 1982, Herb Mueller was observed in
bldg 218 to visit Mr. Mahnke, the Union Representative, without
permission from his supervisor and without specific business at bldg
218" (GC 10.6). Mr. Ross told Mr. Bausano that he was "supposed to keep
of where (his) people are" (2 TR 185).
13k. Mr. Bausano observed that Mr. Mueller did not take counseling
"in a constructive manner," that he "would usually chuckle about it
toward the end(,) that this was something (Mr. Bausano) had to do, and
(Mr. Mueller) realized things would be documented, but he had things he
wanted to go for and that was it" (2 TR 149).
13l. From my own observation of Mr. Mueller, I judge him to be a
brash, free-spirited type of person, unlikely to be much concerned about
government regulations or differential toward supervisors.
14. On November 1, Mr. Bausano put a "progress report" into the file
of Mr. Mueller (2 TR 160). The report notes "no overall improvement" in
Mr. Mueller's "(b)ad (a)ttitude," and that complaints continue to be
made to him by CE personnel and other offices (GC 10.17). The complaints
were to "his deep bitterness and resentment toward the organization and
government employees and programs, the refusal by Herb to let others
speak their opinion or explain their ideas as customers or as
coparticipants in work efforts," about his "arrogance and bad temper,"
and "inability to accept criticism, suggestions, or even questions . .
." (GC 10.17). The Contracting Office and shop supervisors continued to
complain about Mr. Mueller. He continued to engage in "extended
conversation involving gossip, outside business plans, and items of
personal concern continue to be a problem" (GC 10.18).
Facts relating to the union activities of Mr. Mueller
15. Mr. Mueller had been a contractor before coming to work for
Respondent and had formed a "general dislike for unions" (TR 35) which
he voiced to a union steward for AFGE, Sandra Skinner, and to Mr.
Schmidt, among other employees of Respondent. Mr. Mueller voiced this
dislike to Mr. Schmidt on the first day he was hired. During his early
months of employment by Respondent, Mr. Mueller was not a union member
and had no contact with union officials other than casual conversations
with Ms. Skinner, who was a co-worker in his work area.
16. Between September 1981 and the latter part of July or early
August 1982, Mr. Mueller came to believe that management was doing "a
fine job," from the administrative standpoint, and a "very poor" one
with regard to labor relations (TR 37); but he basically minded his own
business and did not express to anyone what he viewed as problems in CE.
17. In the latter part of July, or early part of August 1982, Mr.
Mueller initiated a meeting with Mr. Springer, to discuss the way
management was dealing with employees in CE, and to state that he did
not think the termination of Vern Snyder, a supervisor in CE, was
necessary. Mr. Springer told Mr. Mueller that "they were keeping an eye
on things over in civil engineering" and suggested that he talk to
Colonel McMahon, the Base Commander (TR 39).
18. Mr. Mueller made an appointment to see Colonel McMahon and saw
him approximately a few days after meeting with Mr. Springer. Mr.
Mueller covered the same points he had made with Mr. Springer. Colonel
McMahon said he would check into it.
19. Mr. Mueller heard nothing from Colonel McMahon. Mr. Snyder's
termination was 2 or 3 days away, so "kind of grasping at straws," Mr.
Mueller contacted the Union (1 TR 42).
20. On August 12, 14 employees sent a memorandum to Mark Button,
Chief Steward for the Union. The employees were from Building 106,
which houses CE. The subject was "Action for Informational Picketing"
(GC 12). It stated that the employees wanted to start an informational
picket action on August 14 and asked for a reply to their concerns by
11:30 a.m. on August 13, "in order to hold the picket action" (GC 12).
The concerns expressed were for Colonel McMahon to initiate an
investigation of CE management, and restrain the firing of Mr. Snyder
until the investigation had ended and a final conclusion reached.
20a. Mr. Mueller was the author of the August 12 memorandum, which
was written during the workday. The signature of Mr. Mueller heads the
list on the left-hand side of the double row of signatures. It was
typed by Ms. Skinner. Mr. Mueller reviewed the memorandum with other
signatories, at their work sites, and had them sign it.
20b. Mr. Mueller also circulated the memorandum at a retirement
party for Mr. Snyder, held on August 12, 1982. The party was held in
the evening, after duty hours, at a club on the base. Numerous
employees of CE were there, as were management people, including Mr.
Schmidt. Mr. Mueller took the memorandum from table to table, at the
party, and asked people to read and sign it. Mr. Schmidt was standing
next to one of these tables. The words "picket" and "union" were used
by Mr. Mueller, in discussing the memorandum.
20c. Outside the club, on the evening of the party, Mr. Mueller
showed the memorandum to Mark Button, who was then Chief Steward of the
Union and also its Executive Vice-President. Mr. Button stated that
"people may have to picket" (1 TR 50) and that more signatures were
needed as a "show of hands of who wanted to do this" (2 TR 7).
20d. The morning after the party, Mr. Mueller obtained some more
signatures and gave the memorandum to Ms. Skinner to give to Mr. Button,
for presentation to Colonel McMahon.
20e. Mr. Bausano, Mr. Bratlein and Mr. Schmidt never saw this
memorandum. Colonel True did, in Colonel McMahon's office, on August
13, when Mr. Button handed the document to Colonel McMahon. Colonel
True just saw "the paper go by" and did not read it (2 TR 377).
20f. Colonel McMahon told Mr. Button that the memorandum was not
addressed to him and, if he wanted action on it, it would be necessary
for Mr. Button to cover it with an endorsement. Mr. Button told Colonel
McMahon that the Union was backing the CE employees. The Colonel asked
for the union's endorsement in writing. Mr. Button replied that this
was not necessary, since the Colonel had his word that the Union was
backing it. Subsequently, the Colonel called Mr. Button to ask, again,
if the Union was going to back the picketing, and if he was going to
receive a letter to that effect. Mr. Button again affirmed that the
Union was backing the picketing and that a letter was not necessary.
Then the Colonel told Mr. Button that he "could not stop the firing" (2
TR 11).
20g. The memorandum of August 12 was not a grievance. Mr. Snyder
was a member of management.
21. The initial idea to picket came from Mr. Mueller. He realized
that something had to be done at about 11:00 a.m. on Friday, August 13,
when nothing had been heard from Colonel McMahon, and Mr. Snyder started
"clearing" (1 TR 51). That afternoon, Mr. Mueller began conversing with
employees in regard to picketing. He did so in the office, throughout
the work sites, and in the boiler room, wherever he saw a CE employee.
He probably talked to just about all of the CE employees. Mr. Mueller
was "extremely open" in everything he did (1 TR 52).
22. After duty hours on Friday, August 13, 1982, a meeting of CE
employees was called by the Union in regard to the picketing. In
attendance were the president of Local 2144, Ken Mischka, its
vice-president, Mr. Button, the unit representative in CE, Jeff Mahne,
and all the CE employees who had signed the letter. The only previous
Union meeting attended by Mr. Mueller had been one held the night before
this one. Details of the picketing were discussed. Among other things,
the Union and the CE employees decided where to picket and what would be
on the picket signs. Selection of sign language was decided by vote of
those present. Mr. Mueller was appointed as one of the picket captains,
to provide flyers to people who stopped their vehicles and to be
interviewed by the media. The picketing was planned to start the
following day, a Saturday. This particular day was chosen because all
the Air Force Reserves would be starting a 2-day training period on that
day.
23. Before picketing began, an unsigned letter circulated around the
base. The letter allegedly said something about employees who picketed
being subject to firing. A copy was not adduced for the record; and
little weight is accorded to testimony about it. No one on the picket
line was fired, except for Mr. Mueller. Two have been promoted-- Karen
Kopenhaffer and Mr. Angoli. Mr. Angoli was also a probationary
employee, at the time of the picketing; and he was on the picket line
all the time. He was promoted sometime in January 1983. Ms.
Kopenhaffer's promotion was not a decision of CE management, because she
was selected for a job outside the CE division.
24. The picketing began at 6:30 a.m. on Saturday, August 14, and
continued for about 10 days. The picket line was formed directly across
the street from the main gate, which is used by 99 percent of base
employees. Approximately 20 or 22 people gathered to picket, all
carrying signs. Each had an "AFGE" symbol on it. The signs stated such
things as "poor management, fraud, and abuse of government tax dollars
and Caesar's Palace" (1 TR 56). One referred to "sexual harassment" (2
TR 14). These topics had been discussed in a meeting, in February,
between the union officials and General Balch, the Wing Commander.
24a. Mr. Mueller missed only 1 or 2 days on the picket line. Mr.
Bausano, Mr. Bratlein, Mr. Schmidt and Colonel True all observed him on
the line. However, there is no credible evidence that they were aware
that he had a leadership role in the picketing.
24b. Mr. Schmidt, Colonel True and Mr. Bratlein at first thought the
picketing was over a 1981 change in hours, which had gone to arbitration
and the arbitrator had ruled, in July 1982, in favor of management. In
the spring of 1982, and continuously thereafter, employees had
threatened to picket over this change. Mr. Schmidt also thought it was
over the firing of a Mr. Francisco (see finding 38a, infra), but then
read, in the papers, that it was over the firing of Mr. Snyder. Colonel
True and Mr. Schmidt professed to be unconcerned about the picketing.
Both witnessed it and heard about it over television or the radio, or
both.
24c. Bargaining-unit members were informed of the picketing, by
flyers, and asked to join the line. Some were not aware of the reasons
for the picketing.
24d. Four to six special union meetings were held during the
picketing, after duty hours, on the base. Mr. Mueller attended them
all.
24e. On the first Monday of the picketing, Mr. Mueller joined the
Union and was put on dues withholding. Dues withholding information is
held only by the Personnel Office and is not released to "management" (2
TR 228). There is no credible evidence that any of Mr. Mueller's
supervisors knew that he was a union member.
24f. Colonel True never tried to discourage the employees from
picketing. He told the CE employees and staff that "the picketing was
legal and as far as he was concerned no effort would be made to stop it
and business would go on as usual" (2 TR 117). He told his staff "to
keep it low-keyed" and to be "cooperative . . . (about) people going out
during lunch and stuff" (2 TR 348-349).
24g. During the picketing, the Union learned that management had
indicated in press interviews that they did not know what the picketing
was about. Mr. Button wrote a memorandum to the Civilian Personnel
Officer, dated August 20, 1982, setting forth the allegations of the CE
employees. See GC 15. Mr. Button and Mr. Mischka signed the memo for
the Union. The Union gave the letter to Mr. Springer, and subsequently
met with Mr. Springer, Mr. Taylor, and members of management. The
memorandum listed six allegations: harassment; mismanagement;
discrimination; misuse of government funds; misuse of contract
services; and coverup and collusion. Mr. Mueller contributed the last
two items to the memorandum. None of these allegations were considered
as "grievances" by the Union (2 TR 58). In the memorandum, the Union
asked for an investigation and the removal of Colonel True and Mr.
Schmidt from their positions of authority. The memorandum was given to
the Civilian Personnel Officer.
24h. After some negotiations, the Union agreed to take the names of
the two supervisors off the memorandum dated August 20, and to stop the
picketing, if an investigation would take place. These negotiations
took place on a Friday. The picketing stopped the following Monday.
25. After these negotiations, Mr. Taylor told the Union that he
needed some information on what to look for in an investigation. Mr.
Mueller was asked by Mr. Button to draft a letter detailing what they
wanted investigated over in CE. Towards the end of August or the first
part of September, Mr. Mueller complied with this request by drafting
what was introduced into evidence as GC 13. Mr. Mueller also drafted it
for the purpose of requesting a congressional investigation. The draft
was "to: AFGE-- Union President and Vice President;" was "From: Civil
Engineering Employees;" and was labeled "Request for Congressional
Investigation" (GC 13.1).
25a. The draft was prepared in Mr. Mueller's office and typed by Ms.
Skinner. In preparing the draft, Mr. Mueller had discussions with Ms.
Skinner, Larry Holmes, and maybe a couple of other people. Mr. Holmes
was the union steward for CE. They also pulled office files in regard
to work orders mentioned in the draft. The draft was signed by 11 CE
employees and Mr. Mueller. Mr. Mueller discussed the draft with each of
the 11 signatories, at the work site where they happened to be, and
during duty hours.
25b. The draft listed 10 charges, naming Colonel True, Mr. Schmidt,
Mr. Bratlein, and Mr. Tojek as colluding on a number of them and listing
Mr. Heiberg, Mr. Bausano, Mr. Tojek and Mr. Moriarity as examples of one
change, preselection of employees. The draft also asked for an
investigation into the qualifications of Mr. Tojek and Mr. Moriarity.
It also listed eight work orders in connection with a change of
"pyramiding" and "cover-up" (GC 13.2).
25c. This document (GC 13) was not considered to be a "grievance" by
the Union (2 TR 58).
25d. After some discussion, the union officials decided to give a
sanitized copy to management which blanked out the names of the CE
employees who signed the memorandum, and the work orders. Since only a
"very few" employees would have access to work-order numbers (2 TR 35),
the Union was fearful that management would know who had drafted the
memorandum. Mr. Mueller is one who had access to work-order numbers.
25e. The sanitized memorandum was handed over to Mr. Button to Mr.
Taylor, in the presence of Mr. Mischka and Myrtle Honel, Civilian
Personnel Officer. Management indicated that it needed the work-order
numbers in order to investigate. Ms. Honel indicated that she "thought
she knew who made the letter up or drafted the letter" (2 TR 34). This
person was Ms. Skinner who is privy to such information by virtue of her
job.
25f. Mr. Bausano and Mr. Schmidt never saw this memorandum. Mr.
Schmidt also testified that he was unaware of its subject matter, but
did not appear sure. See 2 TR 307. Mr. Bratlein and Colonel True saw
the document, without the signatures. Colonel True recalled receiving
it from Mr. Taylor on August 27. But Mr. Button testified that he did
not hand the document over to management until early September. See 2
TR 32. Mr. Bratlein conceded that some of the information in it might
have come from Ms. Kopenhaffer, Ms. Skinner or Mr. Mueller. See 2 TR
359-360. He knew Mr. Mueller had raised concerns about preselection.
He acknowledged that it would have been reasonable to assume that Mr.
Mueller and some other CE employees in certain sections developed the
document handed over to management. Of these employees, Mr. Mueller was
the only probationary one.
25g. Colonel True professed not to care, to question, or to theorize
on who created this document. See 3 TR 36-37. He read it "more than
once" and then put it aside (3 TR 37). He professed to have no
"curiosity" or "concern" about its subject matter (3 TR 38). He also
claimed that he did not read the picket signs, which he drove by 14
times. There had been "allegations of Congressional investigation" from
1980 to 1982 (3 TR 45). When Mr. Taylor gave him the document, Colonel
True "jokingly said, well it looks like another Congressional
investigation we'll never see" (3 TR 46). Colonel True's professions of
unconcern, etc. did not strike me as sincere. He appeared to be an
authoritarian-type of man, determined to run an efficient organization
and unlikely to appreciate criticism, nor not wonder what it was all
about.
26. During the month of September 1982, Mr. Mueller and Mr. Button
got together "quite often," at least once a week, throughout the base
and while both were on duty (2 TR 36). The purpose of their meetings
and conversations was to put together a package of evidence concerning
the allegations being made by CE employees, to present them to
congressmen, and to discuss what the Union had arrived at with
management in regard to management's investigation.
27. In September, Mr. Mueller, Mr. Button, Mr. Holmes, and Mr.
Mischka met with Congressman Zablocki. They took annual leave for the
meeting. They provided him with their documentation concerning the
allegations of the CE employees. The documentation came from
researching and copying different materials in the files of the CE
building. Mr. Button acted as the spokesperson and announced that they
were all from AFGE. Congressman Zablocki reflected that "he thought we
were opening a can of worms that should be left closed" (2 TR 39).
Apparently an investigation of mismanagement, in CE, had been
investigated, in 1980, and a "clean bill of health" had resulted (2 TR
312).
28. In October, Mr. Mueller, Mr. Mischka and Mr. Button met with
Congressman Aspen. Again, all took annual leave. Again, Mr. Button
acted as spokesman and announced that they were all from AFGE. Again,
the allegations of the CE employees were presented.
29. Before these visits with the congressmen, Mr. Mueller discussed
them with Mr. Holmes and a couple of other people in the CE office, and
also made telephone calls about them to Mr. Mischka and Mr. Button-- all
during duty hours. Mr. Mueller and Ms. Skinner, who shared the same
office which was in a "high traffic area" used by management, discussed
these matters and tried to do so "discreetly" (2 TR 82).
30. Following the meeting with Congressman Aspen, Mr. Mueller, Mr.
Mischka and Mr. Button went to the airport in Racine and met with
Congressmen Aspen and Udall. Members of the media took pictures of the
group. Mr. Mueller examined the pictures in the office, at his desk,
and discussed them with Ms. Skinner. Whether the pictures were
published or seen by management officials was not established. Mr. True
was unaware, until after Mr. Mueller was terminated, that he had been
meeting with congressmen.
31. In September, management did investigate the CE Division.
Someone from the Chicago personnel office of the Air Force interviewed
Mr. Mueller. Mr. Mueller told the investigator what he thought of the
CE Division's management and that he had "authored these different
letters and forms," including GC 13 (see finding 25, supra). Whereupon,
the investigator wrote Mr. Mueller's name across the copy of GC 13,
which Mr. Mueller gave him (1 TR 76). Whether this information got back
to Mr. Mueller's supervisors was not established.
32. Mr. Mueller did ask for and receive official time for "union
activities," on occasion, from Mr. Bausano, after Mr. Bausano checked it
out to see if it was legal (2 TR 178).
33. No management official ever tried to dissuade Mr. Mueller from
participating in union activities. The only union activity of Mr.
Mueller which bothered Mr. Bausano was "the amount of time that was
spent misusing the phones" (2 TR 178). Had Mr. Mueller asked for
official time to conduct union business over the phone, Mr. Bausano
would have given it to him.
Facts relating to general problems in CE
34. Mr. Button conceded that before Colonel True arrived in CE, in
October 1980, "civil engineering was a mess" and that Colonel True was
sent to CE, "(a)s a hatchet man" and "(t)o get the organization moving"
(2 TR 59).
35. Colonel True found "total chaos" in CE, upon his arrival (2 TR
371). His predecessor had suffered a mental breakdown. There was no
"management structure, control, reporting capabilities or knowledge of
what was going on in the division" (2 TR 371).
36. During his first week in CE, union officials and grievants spent
20 hours in Colonel True's office. Well into 1981, they were spending
an average of about 15 hours a week in his office, with a peak in July
through August 1981, when he made the change in the hours of work. See
finding 24b, supra.
36a. Although the proportion of CE employees at the 440th Wing is
very small, they are involved in 89 percent of the grievances filed and
80-90 percent of the charges of unfair labor practices. Some involve
Colonel True, Mr. Schmidt, and Mr. Tojek, now a foreman in CE, but just
an employee in the electric shop of CE when Mr. Mueller was employed.
The number of grievances has dropped off "considerably . . . in the last
year" (2 TR 124).
36b. In February, a group grievance was directed to Colonel True.
In May, another was directed to Mr. Schmidt. The grievances alleged
spying on and harassment of employees and complained of ratings,
including Mr. Schmidt lowering ratings given by the first-line
supervisors. These grievances do not appear to have been signed by Mr.
Mueller. See AE 2 and 3.
36c. Colonel True testified that he was "pretty well desensitized to
group grievances, ULP's (an apparent reference to unfair labor practice
charges), FSIP's (a reference to submissions to the Federal Services
Impasses Panel), or the whole alphabet soup of the kinds of things that
can be used to frustrate the legitimate demands of management" (2 TR
374). He professed that a "union can contribute very well to increased
efficiency in government" and that "the representatives we have now in
civil engineering and the employees are able to do that" (2 TR 374).
37. Since September, the union steward for CE has been Larry Holmes.
He was the CE employee seen by Colonel True, on television, while being
interviewed as a spokesman for the picketers. Mr. Mueller was also
interviewed; but there is no evidence that this filmed sequence was
seen by any CE supervisor of Mr. Mueller.
37a. Mr. Holmes tried to resign as steward when, after 4 hours in
the position, he faced his friends "accosting him in the hall" over
grievances which, as related by Colonel True, were "completely beyond
his (Mr. Holmes') control" (2 TR 375). Although Colonel True knew that
Mr. Holmes had been a spokesman for CE employees during the picketing,
Colonel True encouraged him to keep the job and assured him "that he had
my support, that I felt he was a very level head in maintaining good
labor relations within civil engineering" (2 TR 375). Colonel True has
"cordial" relations with Mr. Holmes (2 TR 119) and is "very pleased"
with Mr. Holmes' performance, as steward, in resolving problems (2 TR
375). His predecessor as steward for CE was not employed in CE and took
grievances to arbitration.
37b. No adverse action has been taken against Mr. Holmes, since the
picketing. However, when Colonel True first came to CE, Mr. Holmes
received reprimands and letters of caution.
38. There are 88 employees in CE of whom 11 are supervisors. In
August 1982, 28 or 29 of these employees were in the Fire Department
over which Colonel True presides as Base Fire Marshal. Since Colonel
True became head of CE, 15 CE employees have been "terminated" during
their probationary year (2 TR 384). Colonel True attaches "a
significant amount of importance to the probationary period," because he
regards "the examination process by OPM (a)s imperfect at best" (2 TR
385). A "rash of terminations" occurred in July (1 TR 93).
38a. One probationary employee terminated by Colonel True was Donald
Francisco. He was terminated on November 22, 1980, on the advice of
Mr.Schmidt. The Union feels that he was terminated for being a
"whistleblower" (2 TR 21) and has been representing Mr. Francisco since
his termination. As of the time of this hearing, his case is in a
Federal court. Colonel True, General Balch, Mr. Kolwitz, and Mr.
Schmidt are named in documents filed in the case. The case has been
discussed by union officials with Colonel True. Mr. Francisco is a
controversial figure among CE employees, some of whom signed a group
grievance, on September 15, 1980, asking for his termination.
38b. Another terminated CE employee was Barry Kliner. He replaced
Mr. Bausano on December 8 as supervisor of the planning section. He was
terminated in May 1983. According to Colonel True, he was terminated
for being generally inattentive to his job, incapable of organization,
and reading periodicals and magazines not connected with his work. See
3 TR 5. He resigned because he was going to be removed. According to
Ms. Skinner, whose testimony I have credited (see findings 11b, supra),
Mr. Kliner told her that, on six or eight occasions, he refused to
"write (her) up," when told to do so by Mr. Schmidt (2 TR 106), and
complained to her that "he was not allowed to act as a supervisor" and
"was always dictated to" (2 TR 109). Mr. Kliner was not called as a
witness. Mr. Schmidt, who testified after Ms. Skinner, did not deny his
role vis-a-vis Mr. Kliner, or what he instructed Mr. Kliner to do.
Accordingly, I credit what Mr. Kliner told Ms. Skinner as true.
38c. Two other supervisors were terminated by Mr. True. One was Mr.
Kolwitz. Mr. Kolwitz retired when faced with a removal action. The
problem Colonel True found with Mr. Kolwitz was "substandard"
performance and "documenting employee behavior" (3 TR 2). Documentation
of employee behavior is high on Colonel True's agenda for getting CE
moving out of the mess he found when he took over.
38d. The other terminated supervisor was Mr. Snyder. He was found
to be "insensitive to carrying out the goals of the organization in
terms of supervising his employees, maintaining positive control of
them, and the general uncooperativeness towards the goal of management"
(3 TR 4). He also retired when faced with a removal action.
Discussion and Conclusions
The General Counsel and the Charging Party agree that in order to
prevail in this action, it must first be established that "protected
conduct (union activities) was a motivating factor in the decision
adversely affecting the employee" (GCBr 12 and see also CPBr 23).
Assuming, arguendo, that Mr. Mueller engaged in union activities (an
easy assumption on this record), I nevertheless cannot find that such
activities motivated his termination, for the following reasons.
A. First of all, it was clearly established that Mr. Mueller, quite
apart from his union activities, was not the type of employee to survive
a probationary period in an organization commanded by Colonel True. By
the admission of the Union's own vice president, Colonel True came to CE
charged with the responsibility of acting as a "hatchet man" and getting
the organization moving. See finding 34, supra. A rash of terminations
followed his assumption of duties, including terminations of supervisors
who were lax about following orders such as documenting employee
performance. Mr. Mueller was not the only employee terminated by
Colonel True during his probationary period-- 15 others suffered the
same fate. Colonel True struck me as being an authoritarian person, who
might brook some honest mistakes in performance, but would never
tolerate a bad attitude on the part of an employee in a probationary
status.
And it was established that Mr. Mueller had a bad attitude, insofar
as fitting into a large, military organization with a prescribed chain
of command and a myriad of regulations to follow. He appeared to be a
brash, free-spirited sort of person. As early as December 1981, many
months before he began any union activities, Mr. Mueller embarked upon a
course of conduct that was bound to put him on a collision course with
Colonel True-- namely acting like the Base Engineer around shop
personnel. On January 21 his first-line supervisor documented the fact
that Mr. Mueller was "acting like a boss" over his personnel. See
finding 13b, supra. This same supervisor, on January 27, documented the
fact that Mr. Mueller was not following the chain of command. Personnel
in the Contracting Office, through whom CE has to deal in obtaining
materials and the services of contractors, complained of his arrogance
and disdain for following government regulations. He engaged publicly
and constantly in a campaign of demeaning his supervisors. He did not
take counseling seriously. He was careless about letting his first-line
supervisor know where he could be located during duty hours, and
regarded documentation of this fault as trivial (Colonel True was a
stickler about documentation by his supervisors). He set his own
priorities in accomplishing his duties. He did not change in his
attitudes over the course of his employment.
Mr. Mueller was a hard-working individual and had to learn and
perform his work under first-line supervisors who were themselves
somewhat inadequate. His mistakes, as a planner, in estimating work
orders do not appear to be of such a serious nature as to justify his
termination, taken by themselves. But neither was his performance of
such an outstanding nature that Colonel True would overlook what a man
of Colonel True's nature would regard as a bad attitude toward the
organization. Probationary periods are established to ferret out just
such individuals. As Mr. Bratlein put it, the "basic question" asked
about an employee coming up to the end of a probationary period is
"would you like to retain this person forever." See finding 3, supra.
It was not unexpected that someone like Colonel True would answer that
question in the negative, as to Mr. Mueller.
B. Other CE employees were heavily and noticeably engaged in the
same informational picketing activities as Mr. Mueller and were so
observed by CE supervisors. Yet none of the others suffered any adverse
action as a result.
C. While Colonel True expressed annoyance at the "whole alphabet soup
of the kinds of things that can be used to frustrate the legitimate
demands of government," including group grievances and charges of unfair
labor practices (see finding 36c, supra), he nevertheless acted in
accord with the law when the informational picketing began-- he did not
discourage employees from picketing and cautioned his staff that it was
"legal" and that no effort should be made to stop it. See finding 24f,
supra. It fits the character of Colonel True, as I observed him, that
he would adhere, faithfully, to what was "legal." I also accept, as
valid, the characterization of Colonel True as a "heavy-handed" manager
and "a man of strong opinion" (CPBr 27). But I do not draw from these
character traits the conclusion that Colonel True would commit the
illegal act of terminating an employee for engaging in union activities
criticizing Colonel True's organization.
D. The General Counsel and the Charging Party rely heavily upon the
fact that, on September 22, 1982 Mr. Mueller's first and second-line
supervisors signed off on a "Fully Successful" performance appraisal on
him. See GCBr 3-4, CPBr 30-31 and finding 6, supra. However, I view as
adequate Respondent's explanation that this rating was "presumptive"
only, and not truly reflective of the views of Mr. Mueller's
supervisors. See findings 6a-6c, supra.
E. Colonel True's credibility as "the key witness" is challenged.
See GCBr 16. And I too doubt his candor, on some points raised by the
General Counsel. For one thing, I doubt his asserted lack of knowledge
about what was on the picket signs. He admitted to listening to the
television coverage of the picketing and, as a responsible manager,
would hardly ignore the substance of what his employees were so publicly
complaining. I also doubt his assertion that he was uncompletely
unaware of the extent of Mr. Mueller's activities on behalf of the
Union. However, the conclusion I have reached in points A through C,
supra, do not turn on belief in what Colonel True, alone, had to say.
F. The General Counsel argues, and I agree, that Colonel True was
"the key decision maker" in terminating Mr. Mueller (GBCr 21). I also
agree that Colonel True indicated a dislike for union grievances and
charges that could be used to frustrate legitimate managerial demands.
See GCBr 23-24. However, the facts establish that Colonel True
recognizes the legal rights of unions, abides by them, and tries to
cooperate. See findings 24f, 36c, 37 and 37a.
G. The General Counsel and the Charging Party suggest that Colonel
True's present cordial relations with the current union steward for AFGE
in CE, Larry Holmes, is because Mr. Holmes is "nicely under his control"
(GCBr 25-27 and see also CPBr 26-33). Unlike his predecessor, Mr.
Holmes is and has been a CE employee. Nevertheless, he dared to picket
and to speak out, over television, against Colonel True's organization
while under his supervision. See finding 37, supra. So I doubt that
Mr. Holmes is likely now to be unduly influenced by Colonel True, in the
execution of his union duties. Were this case, it would seem likely
that the Union would have replaced him, which it has not done, insofar
as the record shows.
H. The General Counsel also argues, as evidence of "union animus,"
the testimony of Colonel True to the effect that the Union posts the
names of stewards so frequently that he had difficulty keeping track of
them. See GCBr 24 and 3 TR 24-25. I find little, if any, suggestion of
animus in such testimony.
I. The General Counsel also points to testimony of Mr. Bausano,
namely that throughout the period Mr. Bausano supervised Mr. Mueller,
including the period of the picketing, Mr. Mueller, while in the office,
would stir up people by engaging in time-consuming, loud arguments with
them. See GCBr 20-21. From this, the General Counsel concludes that
the stirring up and loud arguing had to do with union activities, and
that this is the reason Mr. Mueller lost his job. I do not draw such a
conclusion. A supervisor who might be in complete sympathy with union
activities, would quite naturally become concerned when those union
activities were taking place at the work site, during duty hours, and
interfering with his getting work out of his staff.
J. The General Counsel argues that Mr. Mueller was treated
differently from other similarly situated. See GCBr 25-26. In support,
the General Counsel points to the promotion of two employees who also
picketed, one being another probationary employee, Mr. Angoli, who
apparently received his promotion at about the same time management was
put on notice of the unfair labor practice charge initiating this case.
See 3 TR 19-23. Neither was shown to have assumed such a leadership
role in the picketing, as did Mr. Mueller. But neither were they shown
to have the personality traits which Mr. Mueller exhibited. A number of
probationers were terminated by Colonel True in his attempt to rectify
the mess which admittedly existed when he took over command.
K. The General Counsel argues that the reasons given by Respondent
for terminating Mr. Mueller were pretextual, and its witnesses
unreliable. See GCBr 27-28.
As for all the witnesses, I have been wary of relying, too heavily,
upon the testimony of those employed in CE, who had to testify under the
watch of their boss, Colonel True, and who gave damaging testimony
concerning Mr. Mueller. In particular, Michael Bratlein, Harry Hamilton,
Felix Mercado, and Phillip Tojek seems overly willing to indict Mr.
Mueller and, in the case of Mr. Hamilton, to extoll the virtues of
Colonel True. On the other hand, Mr. Bausano, while appearing
uncomfortable in his role as a witness, nevertheless struck me as being
sincere and honest in his evaluation of Mr. Mueller. See finding 13g,
supra. I do believe that he yielded to pressure in recommending
termination, rather than some less stringent steps to deal with Mr.
Mueller. I believe that he did so, honestly, in consideration of the
opinions of others who had worked with Mr. Mueller for a longer time
than he had, and who would continue to have to do so. Mr. Schmidt
struck me as a faithful soldier marching to Colonel True's command, and
less than candid, in some respects, particularly in disavowing any
concern over the picketing.
I have credited fully the testimony of the witnesses from the
Contracting Office, who are not under the control of Colonel True, and
who established that Mr. Mueller was arrogant in his dealings with them
and exhibited a disdain for the government regulations which they must
follow in procurement. I have also relied greatly upon my own
observation of Mr. Mueller and Colonel True, and upon the testimony of
Mr. Button, the Union's Vice President, who described Colonel True as a
"hatchet man" sent to bring order out of the "mess" in CE. See finding
34, supra. Such a "hatchet man" would not be likely to tolerate an
employee of Mr. Mueller's propensities, quite apart from any union
activities.
I agree with the General Counsel to the extent of concluding that Mr.
Mueller's performance in estimating, use of the sign-out board, and
misuse of government phones, even taken together, would probably not
have triggered the termination of Mr. Mueller. But I disagree that
these factors when added to his bad attitude, should be considered "sham
and pretex(tual) "reasons for this adverse action (GCBr 27-28). The
evidence convinces me that the bad attitude charge was the primary
reason for Mr. Mueller's termination and the others were make-weight,
but nevertheless real ones.
L. A troubling point made by the General Counsel and the Charging
Party concerns the fact that Mr. Bausano began documenting problems with
Mr. Mueller around August 26, at about the same time that Mr. Mueller's
active union activities began and Colonel True received a copy of GC 13,
the document detailing problems in CE, and drafted by Mr. Mueller. See
GCBr 29; CPBr 29; and finding 25-25f, supra. However, Mr. Bausano's
supervisory role did not begin until July 26. So it does not seem unduly
suspicious that a month would pass before he would begin formal
documentation of problems observed. And since Colonel True was placing
pressure on all supervisors to document employee problems, as a part of
his campaign to straighten out management, in CE, it is not unduly
suspicious that Mr. Bausano would document the problems he was having
with Mr. Mueller.
Also, Colonel True did not receive GC 13 until August 27 at the
earliest, (see finding 25f, supra); and it was sanitized by the Union
to conceal the names of the employees who signed it.
On the same day, August 27, Mr. Bausano had his first formal and
documented counseling with Mr. Mueller (GC 10.7 and .8) for which he had
prepared by making out a list of things he wanted to go over. The
record does not indicate the time of day, on August 27, that Colonel
True might have received the copy of document, or the time of
counseling. Indeed, Colonel True may not have received the document
until early September. Thus, it cannot be concluded that the counseling
was triggered by the receipt by Colonel True of the document Mr. Mueller
had prepared.
M. It is also troubling, as the Charging Party points out that
"upper level management started seriously talking about firing Mr.
Mueller approximately in late August, either after or near the end of
the picketing" (CPBr 22 and 29) and that "documentation" of his file by
Mr. Bausano also then began (CPBr 24). However, Mr. Mueller's
probationary period ended in November. Colonel True was trying to run
an efficient organization, was insistent that all supervisors document
employee problems, and was firing those who did not. And as early as
December 1981, complaints about Mr. Mueller had been registered with his
supervisors and documented. See finding 13b, supra. Thus, I have
considered, but not placed controlling weight on the "juxtaposition of
these events" (CPBR 24).
N. The Charging Party dismisses, as "incredible," any suggestion
that management had no knowledge of Mr. Mueller's activities "in
coordination with AFGE Local 2144" (CPBr 19). As of August 14, when Mr.
Mueller appeared on the picket line which was replete with signs naming
AFGE as supporting the picketers, I agree. But CE management then
learned of other CE employees regularly on the picket line, as well;
and nothing adverse happened to them.
O. The Charging Party also challenges the job standards devised by
Mr. Bausano for the job of planner. See CPBr 31-33. As devised, it was
argued that Mr. Mueller did meet the standard for estimating labor and
material costs and utilizing the sign-out board. See GC 4.2 and 3 TR
126-127. I agree that failure to meet these particular standards would
not have resulted in the firing of Mr. Mueller and also that Mr. Bausano
was too inexperienced to devise accurate standards. However, I do not
believe that Mr. Bausano would have "devised the standards solely for
(Mr. Mueller)," as the Charging Party argues (CPBr 32).
P. I have also considered the fact that management, as late as May,
was telling Mr. Mueller that his performance was "good" and he had a
potential for promotion and, as late as October, that rumors of his
firing were "unfounded." See findings 5 and 8, supra. As it turned out,
these assurances were misrepresentations. However, it is probably not
so unusual for supervisors to make such remarks, in the hopes of
encouraging employees to do better; and I have therefore not attached
significance to them.
Based upon the record made in this case, it is concluded that
Respondent was not motivated to terminate Mr. Mueller for any but
legitimate reasons. This conclusion renders unnecessary the
consideration of other issues raised by the parties.
Ultimate Findings and Recommended Order
The General Counsel has not proved the allegations of the complaint
by a preponderance of the evidence.
Accordingly, and pursuant to 5 CFR 2423.29, it is hereby ordered the
complaint in this case be dismissed.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: August 30, 1983
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ Section 7116 provides, in pertinent part, that:
Sec. 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; (or)
(2) to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment. . . .
/2/ The following abbreviations will be used. "1 TR" refers to the
transcript of May 25. "2 TR" refers to the transcript of May 26. "3
TR" refers to the transcript of May 27. "AE" refers to the exhibits of
the Respondent, and "GC" refers to those of the General Counsel.
Multipage exhibits will be referenced by exhibit number followed by page
or paragraph number. "GCBr" refers to the brief of the General Counsel,
"CPBr" to that of the Charging Parties, and "RBr" to that of the
Respondent.
All dates referenced herein are in 1982, unless otherwise specified.
Corrections to the transcript have been made pursuant to 5 CFR
2423.19(r) and appear in Appendix A hereto.