[ v19 p366 ]
19:0366(49)CA
The decision of the Authority follows:
19 FLRA No. 49
UNITED STATES TREASURY DEPARTMENT
BUREAU OF ENGRAVING AND PRINTING
Respondent
and
LOCAL 4-B, GRAPHIC COMMUNICATIONS
INTERNATIONAL UNION, AFL-CIO, CLC
Charging Party
Case No. 3-CA-40152
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint, and recommending that
it be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the Respondent filed exceptions to the Judge's
Decision and the General Counsel filed an opposition to the Respondent's
exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, except as modified
herein.
The Judge found that Kit Regone, Superintendent of the Currency
Processing Division, told employee Burton George, a union official, that
George had "too much time off for leave without pay, and too much time
for official union business, and that (he has) to suffer the
consequences; its a trade off." The Judge concluded that this statement
tended to interfere with George's protected right under section 7102 of
the Statute to act for a labor organization and therefore violated
section 7116(a)(1) of the Statute. The Authority agrees with the
Judge's conclusion, based on his credibility resolutions, that the
Respondent violated section 7116(a)(1) of the Statute by the foregoing
statement. /1/
The Judge also concluded that the sole reason for the Respondent's
failure to give George a performance award was his protected union
activity and, thus, the Respondent improperly discriminated against
George in violation of section 7116(a)(2) of the Statute. The
Respondent had a "six month calendar rule" which generally provided that
an employee had to be in his or her present position for six months to
be considered for an award. The Judge concluded that the Respondent
would have made an exception to this rule were it not for George's union
activities. To the contrary, there is no evidence in the record to
suggest that an exception to the six month calendar rule would have been
made or that George's participation in protected activity was a factor
in the failure to grant him an award, although Mr. Regone's statement
may have given that impression. In this regard, the record evidence
establishes that an exception to the six month rule is only made when
the employee's supervisor contacts the former supervisor and receives a
recommendation from the former supervisor that the employee should
receive an award. In this instance, George's supervisor did contact Al
Jablonski, George's former supervisor, but Jablonski recommended against
such an award. There is no record evidence that, in circumstances
substantially the same as involved in this case, any employee has ever
received an award, and no basis for concluding that an exception would
have been made herein but for George's union activities. Accordingly,
the Authority concludes that the General Counsel has not met the burden
of proving that the Respondent violated section 7116(a)(2) of the
Statute by denying George a performance award, and this allegation of
the complaint shall be dismissed. /2/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the United States Treasury Department, Bureau of Engraving and
Printing, shall:
1. Cease and desist from:
(a) Making statements to unit employees which carry the impression
that they will suffer economic or other consequences because they
exercised their statutory right to act as union representatives.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Post at its Washington, D.C. office, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by an
appropriate official, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the allegation in the complaint alleging a
violation of section 7116(a)(2) of the Statute be, and it hereby is,
dismissed.
Issued, Washington, D.C., July 26, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT make statements to unit employees which carry the impression
that they will suffer economic or other consequences because they
exercised their statutory right to act as union representatives. WE
WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
(Agency or Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region III,
Federal Labor Relations Authority, whose address is: P.O. Box 33758,
Washington, D.C. 20033-0738 and whose telephone number is: (202)
653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-40152
Erica Cooper, Esquire
Peter A. Sutton, Esquire
For the General Counsel
Ms. Joanne W. Simms
Mr. Michael H. Doring
For the Respondent
Robert L. Scott-Clayton, Esquire
For the Charging Party/Union
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to a charge filed on January 6, 1984, by Local 4-G, Graphic
Communications International Union, AFL-CIO, CLC, (hereinafter called
the Union), a Complaint and Notice of Hearing was issued on March 30,
1984, by the Acting Regional Director for Region III, Federal Labor
Relations Authority, Washington, D.C. The Complaint alleges in
substance that the United States Treasury Department, Bureau of
Engraving and Printing, (hereinafter called the Respondent or Bureau)
violated Sections 7116(a)(1) and (3) of the Federal Service
Labor-Management Relations Statute, (hereinafter called the Statute), by
(1) making statements to a unit employee which had a tendency to
interfere with, restrain, or coerce the employee in the exercise of his
statutory rights, and (2) denying the unit employee a Sustained Superior
Performance Award because of his participation in activities protected
by the Statute.
A hearing was held in the captioned matter on May 18, 1984, in
Washington, D.C. All parties were afforded the full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post-hearing briefs and/or statements of position
on June 18, 1984, which have been duly considered. /3/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The Union is the exclusive collective bargaining representative of
the bookbinders working at Respondent's premises in Washington, D.C.
Mr. Burton George, the alleged discriminatee herein, since January 1983,
has held the position of Assistant to the President of the Union and
Chairman of the Bookbinders Council which is composed of five union
members having the responsibility of dealing with problems arising from
the collective bargaining agreement and policies and procedures within
the Bureau of Engraving. Additionally, Mr. George acts on behalf of the
Union as a negotiator and as Recording Secretary of the Joint Council of
Unions, an organization comprised of the various unions representing
employees in a number of separate units at the Bureau of Engraving.
In the course of performing the duties assigned to his various union
positions Mr. George during the 1982-1983 appraisal period spent
approximately 250 hours on Official Time and took approximately 100 to
144 hours of Leave Without Pay. Mr. George utilized Leave Without Pay
when he was conducting union business outside the Bureau of Engraving.
Prior to utilizing either type of leave, i.e. LWOP or Official Time, he
sought and received advance approval from either Foreman Bobbie Dudley,
Mr. Kit Regone, Superintendent of the Currency Processing Division, or
Labor Relations Specialist Joanne Simms.
Mr. George has been employed by the Respondent since 1981. For the
first seven months of the October 1982 to September 1983 rating period
Mr. George worked in the Currency Mutilation Branch under the
supervision of Mr. Al Jablonski. In May 1983, according to Mr. George,
due to friction between himself and Mr. Jablonski caused by Mr. George's
use of the telephone for union matters, he, Mr. George, exercised his
seniority rights and transferred to the Mechanical Examination Branch
where he was under the supervision of Foreman Dudley for the remaining
five months of the 1982-1983 rating period. While working in the
Mutilation Branch under Mr. Jablonski, Mr. George worked one hour
overtime at the start of almost every workday and also worked overtime
on a number of Saturdays for Foreman Dudley in the Mechanical
Examination Branch.
On October 17, 1983, Mr. George met with Mr. Herbert Robinson,
Assistant Foreman of the Mechanical Examination Branch, for purposes of
discussing Mr. George's performance appraisal for the rating period
October 1982-September 1983. Mr. George signed for and received his
performance appraisal which listed Mr. Robinson as his supervisor and
Mr. Dudley as reviewing official. Mr. George's appraisal carried an
average of 4.125 which was arrived at by averaging six performance
elements. On the two critical elements included in the appraisal, i.e.
production and safety, Mr. George received the highest possible score of
10 for production and an 8 for safety. The production score was based
upon his actions in producing a yearly average of 34,473 sheets per man
day. During the course of the meeting Mr. George became aware for the
first time that he would not, unlike a number of other employees on the
day shift, be receiving a Sustained Superior Performance Award in the
amount of $600. /4/
Following the meeting with Mr. Robinson, Mr. George approached Mr.
Dudley later in the day and asked him why he, Mr. George, was not being
given a Sustained Superior Performance Award. Mr. Dudley replied that
he, Mr. George, was not going to get an award because he had not spent
six calendar months in the Mechanical Examination Branch and that if he
was dissatisfied he could take the matter up with Superintendent Regone.
Further, according to Mr. George, Mr. Dudley told him that inasmuch as
he had worked for Mr. Jablonski for seven months of the rating period he
should see him about getting a performance award. Subsequently, on or
about October 25, 1983, Mr. George met with Mr. Jablonski and asked him
about a recommendation for a performance award. Mr. Jablonski responded
that he, Mr. George, was only entitled to one rating and that he would
not give him a second rating.
Further, according to the testimony of Mr. George, he met with Mr.
Regone, his second line supervisor, on November 29, 1983, and asked him
if he, Mr. George, was going to get a performance award. Mr. Regone
replied that he would look into it. On December 2, 1983, at the end of
a discussion concerning another matter, Mr. George again asked if he was
going to get a performance award. Mr. Regone stated that he was not
giving him a performance award because he, Mr. George, did not have six
months time. When Mr. George responded that he could not get six months
time, Mr. Regone stated, "well you have too much time off for leave
without pay, and too much time for official union business, and that you
have to suffer the consequences; it is a trade off." According to Mr.
George, at the time of Mr. Regone's statement, he understood it to mean
that he had not worked six calendar months in the Mechanical Examination
Branch. /5/
Mr. George further testified that on December 5, 1983, he spoke to
Mr. Regone's supervisor, Chief Production Officer Thomas Harris. Mr.
Harris informed Mr. George that Mr. Regone had already contacted him and
told him that Mr. George had too much time on LWOP for union business
and that he, Mr. Regone, was not going to give Mr. George an award.
When Mr. George complained that it was unfair, Mr. Harris replied "well,
I don't want to overrule my people. If they're wrong, they're wrong, or
if they're right, they're right, but I just don't overrule them." /6/
Failing to get any satisfaction from Mr. Harris, Mr. George contacted
Labor Relations Specialist Joanne Simms on December 8, 1983. After Mr.
George related Mr. Regone's remarks Ms. Simms called Mr. Regone in Mr.
George's presence. At the conclusion of the telephone conversation, Mr.
George asked what Mr. Regone had said. Miss Simms replied that Mr.
Regone had told her that Mr. George had too much time off on leave
without pay, and that he didn't believe it was for union business.
Subsequently, Mr. George went to see Assistant Director DeBose on
December 21, 1983, and related his problem. Mr. DeBose informed Mr.
George that he would check into the matter. According to Mr. George, he
has never had a reply from Mr. DeBose.
Mr. Regone acknowledges having two meetings with Mr. George wherein
the subject of a performance award to Mr. George was discussed. During
the first meeting, in answer to Mr. George's statement that he needed
money and question whether he, Mr. George, was going to get a
performance award he, Mr. Regone, informed Mr. George that he would
discuss the matter with Mr. Dudley and get back to him. At the second
meeting he informed Mr. George that he had discussed the matter with Mr.
Dudley and was satisfied that both the "evaluation and the award
recommendations were done fairly" and that he had no intention of
overriding his supervisor. Mr. Regone denied ever telling Mr. George
that he, Mr. George, had been denied a performance award because of his
union activities or taken too much leave without pay. He further
testified that it was "general policy" for a supervisor to deny a
performance award to an employee who had worked less than six months
under his supervision. However, according to Mr. Regone, prior to
denying an employee who had less than six calendar months employment
under his supervision an award, it was incumbent on the supervisor to
check with the employee's past supervisor concerning the possibility of
a performance award. In the event the prior supervisor was agreeable to
a performance award for the employee then the employee's present
supervisor could make an appropriate recommendation irrespective of the
fact that the employee had not been under his supervision for at least
six months of the appraisal period.
Mr. Dudley testified that the sole reason he denied a performance
award to Mr. George was the fact that Mr. George had not spent six
months under his supervision. Prior to deciding not to recommend Mr.
George for a performance award he checked with Mr. Jablonski, Mr.
George's supervisor for the first seven months of the appraisal period,
and asked him whether he would want to recommend Mr. George for a
performance award. Upon receiving a negative reply from Mr. Jablonski,
he decided not to recommend Mr. George for an award. At the same time
that he spoke to Mr. Jablonski about Mr. George, Mr. Jablonski asked Mr.
Dudley about employee Haught who was then currently working under his
supervision but had been supervised by Mr. Dudley for the majority of
the appraisal period. Mr. Dudley informed Mr. Jablonski that he wanted
to recommend Mr. Haught for an award and a recommendation for an award
was subsequently processed for employee Haught. /7/ Further according
to Mr. Dudley, the recommendations for awards were made by him in the
latter part of October 1983 without any prior discussions with Mr.
Regone.
With respect to the December 8, 1983 telephone conversation between
Ms. Simms and Mr. Regone, which was prompted by Mr. George's complaint,
Ms. Simms testified as follows:
"Mr. Regone briefly said that Mr. George came to him with the
statement, 'I need some money how about giving me an award.' He
related the rest of it and I asked him specifically, did he say
that he would not give him an award because of his leave without
pay or union activities and he told me he did not." /8/
The record reveals that there are four unions representing employees
within Mr. Regone's division. Of the ten union representatives
operating in his division, the record indicates that five of such
representatives received performance awards for the appraisal period
involved in the instant complaint.
Discussion and Conclusions
The General Counsel, which urges a credibility determination in Mr.
George's favor, takes the position that Mr. Regone's December 2, 1983
statement to Mr. George that he had "too much time off for leave without
pay, and too much time for official union business, and you have to
suffer the consequences . . . " was violative of Section 7116(a)(1) of
the Statute as it had a tendency to interfere with Mr. George's Section
7102 rights, namely, to act for a labor organization in the capacity of
a representative. The General Counsel further contends that the
Respondent violated Section 7116(a)(1) of the Statute since the record
evidence establishes that Mr. George was denied a performance award
solely because of his participation in representational activities on
behalf of the Union.
Respondent, on the other hand, urges that Mr. Regone's denials be
credited and the complaint be dismissed in its entirety. Respondent,
alternatively, takes the position that even assuming that Mr. Regone's
denials are not credited that the Section 7116(a)(2) aspect of the case
be dismissed since the record evidence establishes that Mr. George was
denied a performance award solely on the ground that Mr. George had not
spent six calendar months under Mr. Dudley's supervision. In support of
this latter position, Respondent points out that the decision to deny
Mr. George a performance award was solely that of Mr. Dudley.
In view of the above stated positions of the parties it is obvious
that basic to the resolution of the instant complaint is a credibility
determination. In this connection, based primarily on my observation of
the witnesses and their demeanor, I credit Mr. George's testimony that
on December 2, 1983, in response to Mr. George's statement that he could
not get six months time in, Mr. Regone stated "well you have too much
time off for leave without pay, and too much time for official business,
and that you have to suffer the consequences; it is a trade off." In
addition to being impressed by Mr. George's demeanor and clear
recollection of the facts, it is noted that Mr. Regone did not deny
making the statement attributed to him, but rather merely denied telling
Mr. George that the reason he was not getting an award was because of
his union activities and because he took too much leave without pay.
Having credited Mr. George, I find that the December 2, 1983
statement of Mr. Regone, a high level supervisor, had a tendency to
interfere with Mr. George's statutory right to act for a labor
organization in the capacity of a representative and thereby constituted
a violation of Section 7116(a)(1) of the Statute. Cf. U.S. Marine
Corps, Marine Corps Logistics Base, Barstow, California, 5 FLRA 725;
Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 9 FLRA 73.
In view of the above finding, it must now be decided whether Mr.
Regone's refusal to overrule Mr. Dudley and give Mr. George a
performance award was, as contended by the General Counsel, based solely
upon Mr. George's participation in activities protected by the Statute.
Support for an affirmative conclusion appears in the uncontroverted
statement attributed to Mr. Harris, Mr. Regone's supervisor. Thus,
according to Mr. George, he was informed by Mr. Harris that Mr. Regone
had spoken to him about Mr. George's appeal and informed him, Mr.
Harris, that Mr. George had "too much leave without pay for union
business and that he, (Mr. Regone) wasn't going to give (Mr. George) an
award."
Inasmuch as the statement attributed to Mr. Harris stands
uncontradicted, and appears to be the sole reason why Mr. Regone opted
not to overrule Mr. Dudley, I have no choice but to find that but for
Mr. George's participation in activities protected by the Statute, Mr.
Regone would have made an exception to the "six months calendar rule"
and recommended Mr. George for the $600 performance award. In reaching
this conclusion, I find that while Respondent did have in effect a "six
months calendar rule", it has failed to establish that Mr. Regone's
refusal to overrule Mr. Dudley's recommendation was predicated in part
on the existence of such rule.
Having concluded that the Respondent (1) violated Section 7116(a)(1)
of the Statute by virtue of the action of Mr. Regone in making a
statement to Mr. George which had a tendency to interfere with his
rights accorded by the Statute, and (2) violated Section 7116(a)(2) of
the Statute by denying Mr. George a performance award solely because of
his participation in activities protected by the Statute, it is hereby
recommended that the Authority issue the following order designed to
effectuate the purposes and policies of the Statute.
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the United States Treasury Department, Bureau of Engraving and
Printing, shall:
1. Cease and desist from:
(a) Making statements to unit employees which carry the
impression that they will suffer economic or other consequences
because they exercised their statutory right to act as a union
representative.
(b) Denying a Sustained Superior Performance Award to Mr.
Burton George or any other unit employee because of their exercise
of representational rights assured by the Federal Service
Labor-Management Relations Statute.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute.
(a) Give Mr. Burton George a Sustained Superior Performance
Award equal to that paid to other book binders on the day shift
for the appraisal period October 1982-- September 1983.
(b) Post at its Washington, D.C. Office copies of the attached
Notice marked Appendix, on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms, they shall
be signed by an appropriate official, and shall be posted and
maintained for 60 consecutive days thereafter in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region III, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
BURTON S. STERNBURG
Administrative Law Judge
Dated: August 16, 1984
Washington, DC
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT make statements to unit employees which carry the impression
that they will suffer economic or other consequences because they
exercised their statutory right to act as a union representative. WE
WILL NOT deny a Sustained Superior Performance Award to Mr. Burton
George or any other unit employee because of their exercise of
representational rights assured by the Federal Service Labor-Management
Relations Statute. WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute. WE
WILL give Mr. Burton George a Sustained Superior Performance Award equal
to that paid to other bookbinders on the day shift for the appraisal
period October 1982 - September 1983.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting, and must not be altered,
defaced or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Region III, Federal Labor Relations Authority, whose address is: 1111 -
18th Street, NW., Suite 700, P.O. Box 33758, Washington, DC 20033-0758,
and whose telephone number is 202-653-8452.
--------------- FOOTNOTES$ ---------------
/1/ The Respondent 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/ See Veterans Administration Medical Center, Buffalo, New York, 13
FLRA 283 (1983).
/3/ In the absence of any objection, General Counsel's motion to
correct the transcript is hereby granted.
/4/ The record reveals that some 9 or 10 other bookbinders on the day
shift with appraisal marks similar to those achieved by Mr. George and
who also possessed production averages within the 33,178 to 35,178 range
were given Sustained Superior Performance Awards in the amount of $600.
/5/ The record indicates that an employee could amass more man hours
than represented by a calendar month in less time than the expiration of
a full month by working overtime.
/6/ Mr. George's testimony concerning his conversation with Mr.
Harris stands uncontradicted.
/7/ Employee Haught was the only employee named in the record who had
received a recommendation for a performance award who had not spent six
months under the supervision of the supervisor making the recommendation
for the award.
/8/ Ms. Simms was the only witness not sequestered and she was in the
courtroom during Mr. Regone's testimony concerning his conversation with
Mr. George on December 2, 1983.