[ v51 p1014 ]
51:1014(85)CA
The decision of the Authority follows:
51 FLRA No. 85
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
BUREAU OF ENGRAVING AND PRINTING
WESTERN CURRENCY FACILITY
FORT WORTH, TEXAS
(Respondent)
and
RAY E. MIDDER, AN INDIVIDUAL
(Charging Party)
DA-CA-30545 (1)
_____
DECISION AND ORDER
March 29, 1996
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on the General Counsel's exceptions to the attached decision of the Administrative Law Judge. The Judge found that the Respondent did not violate section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by discharging Officer Ray Midder during his probationary period. The Judge concluded that Midder had not been discharged for engaging in protected activity. The Judge also found that the Respondent did not violate section 7116(a)(1) of the Statute by telling certain members of the Respondent's police force that Officer Frank Wards had been discharged as a result of his protected activity.(2) The Respondent filed an opposition to the General Counsel's exceptions.
The General Counsel's exceptions dispute the Judge's credibility findings on which his findings and determinations are based. The demeanor of witnesses is an important factor in resolving issues of credibility and only the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. See Redstone Arsenal Exchange, Army and Air Force Exchange Service, Redstone Arsenal, Alabama, 50 FLRA, 51-52 (1994), and the cases cited therein. We have examined the record and find no basis for reversing the Judge's credibility findings.
Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
II. Order
Pursuant to § 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Bureau of Engraving and Printing, Western Currency Facility, Fort Worth, Texas, shall:
1. Cease and desist from:
(a) Interfering with the right of its employees to engage in lawful organizing activity by telling employees that their protected activity was to blame for shift changes, that an employee was discharged because he had engaged in protected activity, and threatening employees for exercising their protected rights under the Statute.
(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of the rights assured them by the 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 facilities at the Western Currency Facility 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 the General Manager of the Western Currency Facility, 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, Dallas Regional Office, Federal Labor Relations Authority, 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, in writing, within 30 days form the date of this Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that, except as specifically found above, all other allegations of the complaint in DA-CA-30545 are dismissed.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Bureau of Engraving and Printing, Western Currency Facility violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify our employees that:
WE WILL NOT interfere with the right of our employees to engage in lawful organizing activity by telling employees that their activity was to blame for shift changes, that an employee was discharged because he had engaged in protected activity, or threatening employees for exercising their protected rights under the 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.
_____________________________
(Agency or Activity)
Date:______________ 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 any of its provisions, they may communicate directly with the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, whose address is: 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, and whose telephone number is: (214) 767-4996.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| BUREAU OF ENGRAVING AND PRINTING WESTERN CURRENCY FACILITY
FORT WORTH, TEXAS
Respondent |
|
| and
FRANK WARDS, AN INDIVIDUAL and RAY E. MIDDER, AN INDIVIDUAL Charging Parties |
DA-CA-30545 |
Suzanne Wilson, Esquire
For the Respondent
Joseph T. Merli, Esquire
Joan M. Durkin, Esquire
For the General
Counsel
Richard W. Carter, Esquire
For the Charging Party
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq.(1), and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether the charging parties were discharged during their probationary periods because they had engaged in protected activity, namely, that they had openly campaigned for recognition of the Combined Law Enforcement Association of Texas [CLEAT] and whether Respondent made threatening statements to employees that, in essence, they would suffer if they engaged in organizing a union.
Case No. DA-CA-30471 [Frank Wards] was initiated by a charge filed on March 1, 1993 (G.C. Exh. 1(a))and by a First Amended charge, filed on July 21, 1993 (G.C. Exh. 1(e)), each of which alleged violations of §§ 16(a)(1) and (2) of the Statute. Case No. DA-CA-30545 [Ray E. Midder] was initiated by a charge filed on March 17, 1993, which alleged violation of §§ 16(a)(1) (G.C. Exh. 1(c)) and by a First Amended charge, filed on July 20, 1993 (G.C. Exh. 1(g)), which alleged violations of §§ 16(a)(1) and (2) of the Statute. The Order Consolidating these cases and the Consolidated Complaint and Notice of Hearing issued on January 14, 1994 (G.C. Exh. 1(i)) and set the hearing for February 14, 1994, pursuant to which a hearing was duly held on February 14, 15 and 16, 1994, in Fort Worth, Texas, before the undersigned.
All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which Respondent exercised. At the conclusion of the hearing, March 16, 1994, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, on motion of Respondent, to which the other parties did not object, for good cause shown, to March 31, 1994. Respondent and General Counsel each timely mailed an excellent brief, received on, or before, April 8, 1994, which have been carefully considered.
General Counsel submitted with his Brief corrected pages 6, 7 and 8. On these pages, reference had been made to dates in 1993, whereas, the actual dates were in 1992. Corrected pages 6, 7 and 8, which correct the year to read 1992, have been substituted as requested. By motion, undated, but served on April 11, 1994, and received on April 15, 1994, General Counsel moved to correct the transcript by removing Respondent Exhibit 13 from the Exhibit File for the reason that, although identified, it was never offered or received into evidence. There was no opposition to General Counsel's motion and, accordingly, Respondent Exhibit 13 has been removed from the Exhibit File. By motion dated April 11, 1994, and received on April 15, 1994, General Counsel moved to Strike the following portions of Respondent's Brief:
"1. Page 13 from the second paragraph beginning, 'Midder provided a second statement . . .' to the end of the page.
"2. Page 14 in its entirety.
"3. The first sentence on page 15.
"The above described portions of Respondent's Brief are followed by references or refer to Respondent's Exhibits 4 and 5 . . . [which] were rejected at hearing and are not part of the record in this case (TR 371, 376). Since the above portions of Respondent's brief refer to, or are based upon, documents which are not evidence in this case, . . . General Counsel's Motion to Strike these portions should be granted." (General Counsel's Motion To Strike).
On May 10, 1994, Respondent served an Opposition To General Counsel's Motion to Strike Portions of Respondent's Brief which was received on May 13, 1994. I agree with Respondent that the reference in the first full paragraph on page 13 to "R-4" was a typographical error and should have read, "R-3", as R-3, which was received in evidence, was signed and sworn to on November 4, 1992, whereas, R-4, which was rejected, had been signed and sworn to on November 5, 1992. Accordingly, the first full paragraph on page 13, beginning, "Midder provided . . .", as corrected to show "R-3", rather that "R-4", will stand. I further agree with Respondent that, inasmuch as the first sentence of the second paragraph beginning on page 13, "In his October 28 statement . . .", is, indeed, found in his October 28, 1992, statement which was received in evidence as Respondent Exhibit 2, this sentence should stand; however, I fully agree with General Counsel that the remainder of this paragraph beginning with the sentence, "Later that day . . ." on page 13, all of page 14 and the first sentence on page 15, for the reasons stated by General Counsel, and which Respondent does not dispute, should be, and they are hereby, stricken.
On June 2, 1994, Charging Party Frank Wards filed a motion to withdraw charges in Case No. DA-CA-30471, stating that,
"1. Movant FRANK WARDS, after having conferred with Richard W. Carter, his Representative of Record in the hearing in this cause, has elected to enter into a negotiated settlement with Respondent herein.
"2. Movant FRANK WARDS no longer wishes to pursue or to have pursued any and all charges he has previously filed against Respondent which have been tried in this cause.
"3. Movant FRANK WARDS believes that to grant this Motion and to dismiss the charges and cause would be in the best interests of the Charging Party, the Respondent, and the United States of America."
General Counsel, on July 6, 1994, filed a "Motion to Remand Case to the Region", received on July 11, 1994, in which he states, in part,
". . . It is the position of the General Counsel that the Settlement Agreement entered into by the Respondent and Charging Party Wards effectuates the purposes and policies of the Federal Service Labor-Management Relations Statute and fully remedies the allegation in Case No. DA-CA-30471 that Wards was discharged during his probationary period because of his protected activity. Accordingly, it is requested that the Administrative Law Judge remand Case No. DA-CA-30471 to the Dallas Regional Director for further action consistent with the terms of the Settlement Agreement . . . The remaining complaint will continue to allege that Midder was terminated because of his protected activity. The complaint also continues to allege the Section 7116(a)(1) violations set forth in paragraphs 14 through 20.
"If the Administrative Law Judge remands Case No. DA-CA-30471 . . . the complaint . . . will be amended in the following manner:
"Paragraphs 2, 6, 7 and 22 of the complaint will be deleted.
"Paragraphs 21 and 24 of the complaint will be amended to delete any reference to Wards.
"The remaining paragraphs remain unchanged.
. . . ."
General Counsel's request that Case No. DA-CA-30471 be remanded to the Dallas Regional Director for further processing, notwithstanding that General Counsel states that the motion to remand was not opposed by Charging Parties Ray E. Midder or Frank Wards, or by Respondent, is unnecessary and for that reason is denied; however, General Counsel's motion will be treated as a request for withdrawal of the Complaint in Case No. DA-CA-30471, pursuant to § 2423.19(p) of the Regulations, 5 C.F.R. § 2423.19(p), which request is hereby approved, and as a motion to amend the Consolidated Complaint, which is also granted, both actions being fully consistent with the motion of Charging Party Frank Wards. Accordingly, the Consolidated Complaint is hereby amended as follows:
1. Paragraphs 2, 6, 7 and 22 are hereby deleted.
2. Paragraphs 21 and 24 are hereby amended by deleting the words: "Wards and" in each paragraph.
3. The remaining paragraphs of the Consolidated Complaint, including the § 16(a)(1) violation set forth in paragraphs 14 through 20, as well as the § 16(a)(2) allegations of Paragraph 23, 24, and 26 concerning Ray E. Midder, remain unchanged.
Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions:
Findings
1. The Bureau of Engraving and Printing (hereinafter, "Bureau") is a part of the Department of the Treasury and its function, principally, is to print United States currency, other securities and postage stamps. Historically, although there had been mints for the coinage of United States coins, operated by the Bureau of the Mint, another component of the Department of the Treasury, located outside Washington, D.C., paper currency was printed only in Washington, D.C. Thus, the bargaining unit of police officers was located wholly within the District of Columbia and was represented by the American Federation of Government Employees, Local 29 (hereinafter, "Local 29").
2. Some time before 1989, construction of a new satellite operation, the Western Currency Facility (WCF), in Fort Worth, Texas, was begun. In November 1989, Mr. Ray E. LaVan, Jr. was made General Manager of WCF (Tr. 399). Prior thereto, he had been employed by the Bureau in Washington, D.C., for about 25 years in various capacities, most recently as Chief of Production Management (Tr. 400).
3. While the actual production of currency at WCF did not begin until the fall of 1990, when presses were installed (Tr. 400), the WCF police force had been established in 1988 or 1989 (Tr. 401) during construction of the WCF. Initially, a number of police employees were transferred from Washington, D.C., to constitute the nucleus of the new WCF police force (Tr. 21), including, Mr. Jesse Lee Robinson, Jr. who, in 1989, as Inspector, was placed in charge of the WCF police unit (Tr. 557). Mr. Robinson had been President of Local 29 for seven years (Tr. 570), had been Chief Negotiator for Local 29 in the negotiations resulting in the September 14, 1983, Agreement (Res. Exh. 12), which Agreement remains in effect (Tr. 589), and had risen through the ranks to become Inspector.
4. Because Local 29 was the exclusive representative of all Bureau police employees and the Bureau was starting a new operation in Fort Worth, for which it was transferring employees as well as hiring new employees in Fort Worth, Local 29 and the Bureau had discussions regarding the effect of the contract on the covered WCF employees (Tr. 588) and agreed to extend to the employees at WCF the terms of the current collective bargaining agreement.
5. The Bureau's uniformed police force is a para-military organization with ranks of private, corporal, sergeant, lieutenant and Inspector, the highest ranked uniformed position, who reports directly to the Manager of the Security and Police Services Branch (Tr. 19, 412, 414).
6. When Mr. LaVan came to WCF in November 1989, as General Manager, there were about ten or twelve police officers and by October 1992, there were approximately 50 (G.C. Exh. 2). Security is required on a twenty-four hour basis and, when fully staffed, WCF utilizes three 8-hour shifts per day: day, evening and midnight. However, Mr. LaVan stated that the number of officers available varied widely from time to time as the result of the loss of police officers to higher paying production jobs, attendance at the required eight week police training course at Brunswick, Georgia, etc. (Tr. 402-403) so that the shift pattern was constantly changing from eight-hour shifts to twelve-hour shifts, depending on the availability of people (Tr. 404-405). In like manner, because of the lack of personnel, there were times when Respondent was unable to man every post and had to close down posts (Tr. 404).
7. Although, as noted above, the parties had agreed to extend the terms of the current collective bargaining agreement to WCF employees and during orientation new police officers hired at WCF were given a copy of the contract between the Bureau and Local 29 and were told that their exclusive representative was Local 29 (Tr. 107, 137, 213), Local 29 did not have any local representation at WCF until the summer of 1992 when WCF police officers Israel Garcia and Jonathan Ferrell were appointed stewards (Tr. 562, 563); however, both Garcia and Ferrell resigned as stewards after about one month. In the meantime, WCF police officers, unhappy with the quality of representation provided by Local 29 (Tr. 20, 214), began to look for an alternative union. The Combined Law Enforcement Association of Texas, Communications Workers of America, AFL-CIO (hereinafter, "CLEAT") was familiar to some WCF police officers and they initiated a CLEAT membership campaign. The CLEAT membership campaign reached a peak in September and October 1992 (Tr. 25).(2)
8. Mr. Samuel T. Cobb, III, who began work as a police officer at WCF in April, 1992 (Tr. 19), was, beginning in late August or early September, the organizer or contact person for CLEAT (Tr. 25). By letter dated October 29, 1992, CLEAT gave Respondent notice that Mr. Cobb had been designated CLEAT activity contact at WCF (G.C. Exh. 3). Mr. Cobb solicited membership, handed out literature, signed up members and collected money in the ready room in the presence of super-visors (Tr. 27-29). Messrs. Tony Kutche, Donald Stallings, Frank S. Wards and Ray E. Midder joined CLEAT and became active on behalf of CLEAT (Tr. 30-31, 109, 214, 320) with Messrs. Stallings and Midder being the points of contact for the evening shift (Tr. 30, 110) and Mr. Kutche the point of contact for the graveyard shift (Tr. 214). Mr. Stallings testified that on at least two or three occasions around the end of September or early October 1992, Mr. Wards and Mr. Cobb announced to all employees present in the ready room that CLEAT points of contact were Cobb, Wards, Midder and Stallings and Lieutenants Stout and Causey were present at the time of the announcements and, in addition, Lieutenant Klapp possibly was present (Tr. 111). Mr. Midder testified that while he could not say for sure that any supervisor saw him distrib-uting CLEAT magazines (Tr. 322), he kept the CLEAT literature in his locker and, in early October, 1992, Lieutenant Causey, whose locker was adjacent to his (Midder's), told him, ". . . you need to be careful about what you keep in your locker because the supervisors do go through them when the employees aren't around." (Tr. 320-321). At this time, Mr. Midder's locker was open and Mr. Midder stated that Lieutenant Causey could see the CLEAT literature in his locker (Tr. 321). Inspector Robinson, who first learned of CLEAT from Officer Garcia, who, together with Mr. Ferrell, had been appointed Local 29 stewards (Tr. 562-563), after notification (G.C. Exh. 3) of Mr. Cobb's designation as CLEAT representative, talked to Mr. Cobb and told him that he had not received any notification indicating he was a representative for the WCF police unit, that he did not recognize his position as a representative and only recognized Local 29 (Tr. 563). Moreover Inspector Robinson testified that he was not aware of any bargaining unit employee other than Mr. Cobb being active on behalf of CLEAT and, specifically, that he did not associate either Mr. Wards or Mr. Midder with CLEAT (Tr. 564).
Ms. Carol Williamson, Manager of Security and Police Services(3) testified that she was aware that Mr. Cobb was active on behalf of CLEAT (Tr. 487, 494, 503) but that she did not know of, nor was she aware of, any activity on behalf of CLEAT by Mr. Midder (Tr. 495), or by Mr. Stallings (Tr. 495-496), or by Mr. Kutche (Tr. 496). Ms. Williamson further testified that she knew nothing about CLEAT; that WCF was represented by Local 29; and that when she received an admin-istrative inquiry from a supervisor who had been asked by employees if they could have a CLEAT representative present during an investigation, she had told the supervisor no, that AFGE, Local 29 was the recognized bargaining representative, not CLEAT (Tr. 495).
9. As Mr. LaVan stated, the shift pattern changed from twelve-hour shifts to eight-hour shifts depending on the availability of people (Tr. 404-405). Nevertheless, the record is wholly ambiguous and contradictory as to when shift patterns changed, i.e. when employees worked 12-hour shifts and when they worked 8-hour shifts, and the record is equally ambiguous and contradictory as to the effect, if any, on overtime of the change of shifts and when employees rotated on shifts. The only "Daily Attendance and Detailed Report" introduced as an exhibit was for Mr. Wards, is dated February 23, 1992, and covers the pay period ending February 22, 1992 (Res. Exh. 8). Mr. Wards' Daily Attendance record shows that for the first work day of the pay period (Monday) and his fifth work day of the pay period (Saturday) (he was off on Wednesday) he worked an 8-hour shift; however his Daily Attendance record strongly suggests that on the other six days he worked during the pay period (he was absent on sick leave two days) he was working a 12-hour shift. Mr. Wards' Payroll Statements for pay roll periods ending January 25, 1992, through December 25, 1992, were introduced (G.C. Exh. 10) and these records show overtime hours. Mr. Wards had 18, 40 , 75 , 23 , 34 , 28 , 25 and 28 hours overtime each payroll period through the payroll period ending May 16, 1992. His overtime hours for the payroll period ending May 30, were 4 ; for the payroll period ending June 13, were 5 hours; for the payroll period ending June 27, were 13 hours; for the payroll period ending July 7, were 3 hours; and for the payroll period ending August 8, were 11 . Mr. Wards was on leave through the payroll period ending October 3. Beginning with the payroll period ending October 17 his overtime hours were: 16, 25, 16 , 4 and 21 (G.C. Exh. 10).
Mr. John H. Griffith in his Report of Investigation, which is discussed hereinafter, did note that,
"In mid July, the WCF Police Unit changed from working two, twelve hour shifts to three, eight hour shifts (6:30 AM to 2:30 PM; 2:30 PM to 10:30 PM and 10:30 PM to 6:30 AM) (Res. Exh. 1, p. 5).
Mr. Griffith's Report of Investigation does not indicate how long the 8-hour shifts remained in effect and the record shows that WCF was, again, working 12-hour shifts by August or September 1992 (Tr. 181, 447).
Mr. Edward Barnes stated that they had been on 12-hour shifts when he came in October 1992 (Tr. 182); that, "We went to eight-hour shifts -- I don't know the exact dates but we did go to eight-hour shifts at one time, then we went back to twelve-hour shifts." (Tr. 182); that when he went to the police academy in September 1992, they were on 12-hour shifts; and that when he got back from the academy in November, he believed we were then on 8-hour shifts (Tr. 181). Mr. Barnes stated he did not like 12-hour shifts and had sought to get them eliminated; however, he stated that you earn more overtime on 12-hour shifts (Tr. 181).
Mr. Tony Kutche stated that they went to assigned 8-hour shifts in December 1992 (Tr. 217), and then just before Christmas 1992, went to rotating shifts (Tr. 220); but earlier, Mr. Kutche inferred that at the time of the CLEAT meetings at the Holiday Inn in November 1992, they were working 8-hour shifts because "They normally had three meetings each time . . . so it would coincide with the shift that was either coming on duty or going off duty so everybody could attend" (Tr. 215); however, see General Counsel Exhibit 6 which shows meetings for, "THURSDAY, NOVEMBER 12th 1:00 P.M. and 3:15 P.M. . . ." Mr. Cobb stated that they went to 8-hour shifts on, or about, October 15, 1992 (Tr. 50). He further stated that the change from 8 to 12 hour shifts did not affect overtime; that it was the closing down of posts that hurt them financially by the loss of overtime (Tr. 83-84) and that this occurred around the 15th of October (Tr. 50). However, Mr. Wards overtime earnings for the payroll periods October 4-17 through the payroll period for November 29-December 12 (G.C. Exh. 10), as set forth above, do not support Mr. Cobb's assertion. Ms. Lacelle Howard stated that rotating shifts began in January 1993 (Tr. 199) or February 1993 (Tr. 199).
Mr. Roger Lee Knickerbocker began at WCF on August 24, 1992 (Tr. 161) and stated that during the "Mad Laugher" investigation, which he said was conducted from about September to October 1992, ". . . they put us on rotating shifts." (Tr. 164; 165-166). Ms. Williamson testified that they did not go from 12-hour shifts to 8-hour shifts until April or May 1993 (Tr. 492). She testified that,
"A It was sometime in the spring. We did go from the 12 to -- two 12s to three eight-hour shifts. We had been expending an awful lot of overtime. Mr. LaVan was after us to curb our spending, so to speak, and we finally at that point reached a large enough man-power or staffing that we could staff the posts with sufficient numbers of officers on each shift." (Tr. 492-493).
Mr. Craig Straight, who came to WCF in about August 1992 (Tr. 447), stated that when he started work he was on a 12-hour shift (day); that two or three months later he went to an eight-hour evening shift (Tr. 446-447); but Lieutenant Kevin Gene Klapp believed we were on 12-hour shifts throughout 1992 (Tr. 552).
10. During the "Mad Laugher" investigation, which is discussed hereinafter, some employees, including Mr. Midder (Tr. 487-488) wanted to append a statement ". . . more or less pleading the Fifth Amendment" (Tr.487), which Mr. Midder said, ". . . Sam Cobb told him to put it [G.C. Exh. 4] on there." (Tr. 488). Accordingly, Mr. Cobb testified that on October 22, 1992, he was called in to meet with Ms. Williamson, Inspector Robinson and Mr. John Griffith (Tr. 60) at which time he was told that, ". . . CLEAT was a state labor organization and was not recognized by the Bureau. They informed me that the attorneys or representatives from CLEAT would not be allowed on their property, and they had no authority or power . . . I think that is all the first meeting." (Tr. 61).
Thereafter, by letter dated October 29, 1992 (G.C. Exh. 3), CLEAT gave Respondent notice that Mr. Cobb had been designated CLEAT representative. Mr. Cobb stated that on November 2, 1992, Inspector Robinson called him in early in the morning and told him they had just received the CLEAT letter and, ". . . that CLEAT would not be recognized and their people would not be allowed to come on the property. He said he would not recognize me and I would not be allowed to represent anyone or he wouldn't even discuss matters with me." (Tr. 61-62). Inspector Robinson's version, while wholly consistent with Mr. Cobb's, was also a bit different, as follows, "I talked with Sam Cobb and I informed -- I met with him in my office and told Sam that unless -- I had not received any notification from our labor relations division indicating that he was a representative for the police unit, and I did not recognize his position as a representative. I only recognized Local 29 AFGE representative." (Tr. 563).
11. Mr. Wards was terminated effective December 23, 1992 (G.C. Exh. 7). In April 1993, some months after his discharge, Mr. Wards appeared on television on a Friday evening and made comments about the lack of security at WCF. Mr. LaVan called Ms. Williamson quite disturbed by the attack on WCF's security and suggested that she meet with all officers at roll call on Monday (Tr. 493-494). Ms. Williamson met with officers at roll call on Monday and, in response to a question replied, ". . . that our security posture was always important to us, it was unfortunate that his [Mr. Wards'] timing did cast aspersions on the rest of the force, however, he was free to say whatever he pleased because he was a disgruntled, former employee. I did say that." (Tr. 494).
12. Sergeant Curtis Leon Sales admitted talking to a Mr. James David Cooper, a contract safety specialist for Respondent (Tr. 148), about Mr. Wards' termination and stated as follows:
"A I told him that -- well, we (sic) was talking about -- he mentioned that he heard that it was for participating in Union activities. I said, Well, you hear a lot of things. You believe what you want to hear, pretty much.
"Q Did you tell him that Mr. Wards was fired because he was running around and couldn't keep his mouth shut?
"A He assumed that. He put that in his own context.
"Q So that -- you don't recall that as --
"A I remember having a discussion with him, you see, and he took it and ran with it." (Tr. 583).
Mr. Cooper testified that Sergeant Sales told him, ". . . Frank [Wards] had been fired because he was a union organizer. . . ." (Tr. 151). Mr. Cooper was a credible witness, Sergeant Sales did not deny having told Mr. Cooper that Mr. Wards was fired because of activity on behalf of CLEAT, and, accordingly, I credit Mr. Cooper's testimony.
13. It is asserted that Respondent, in September or October, 1992, changed from 12-hour shifts to 8-hour shifts and it is alleged in Paragraph 17 of the Complaint that Respondent in, or about, September 1992, told employees that a change in shifts would be in effect until the employees learned how to act, etc. While there was testimony of a September or October 1992 shift change, the weight of the testimony and evidence shows that there was no shift change until some time in 1993. Paragraph 18 of the Complaint alleges that in March or April 1993, Ms. Williamson told employees they were going back on 12-hour shifts and they were going to be forced into 6-day weeks and they could thank Frank Wards who was just a disgruntled employee and CLEAT. The record does not show any change in March or April from 8-hour shifts back to 12-hour shifts. To the contrary, the record shows that Respondent changed from 12-hour shifts to 8-hour shifts and, in April 1993, after Mr. Wards had made critical remarks on a local television program about the security at WCF, Ms. Williamson met with all officers at roll call; did say that it was unfortunate that Mr. Wards had cast aspersions on the WCF police force, but he was free, as a disgruntled, former employee, to say what he pleased; and, by implication, she told them that the heightened vigilance and security consciousness was attributable to Mr. Wards' comments (Tr. 207-208, 494). Ms. Williamson denied that she ever said employees could thank Mr. Wards regarding a shift change (Tr. 493); testified that she was never at a meeting when it was said that employees could thank CLEAT for a shift change (Tr. 502); and credibly testified that in the spring of 1993, Respondent went from two 12-hour shifts to three 8-hour shifts to curb spending and because Respondent had reached sufficient staffing that it could staff each shift (Tr. 492-493). I credit Ms. Williamson's denials and do not credit the testi-mony of Mr. Kutche (Tr. 219), which I found unconvincing, demonstrably incorrect in some respects and overly creative or contrived, or Mr. Barnes (Tr. 179) because his attribution to Ms. Williamson appeared contrived. Nevertheless, the record shows, and I find, that Respondent, through Sergeant Sales,(4) did inform employees, that CLEAT was responsible for shift changes as Mr. Barnes stated (Tr. 177), as Mr. Cobb stated (Tr. 50), and as Sergeant Sales, not only did not deny, but in effect admitted. Thus, the record shows as follows:
"Q Okay. Do you recall any discussion of a change in shifts that occurred either in September 1993 or September 1992?
"A Yes, I remember a shift change. Yes.
"Q What was the change to, or what was it from?
"A It was passed down by management why we had the shift change. Yet and still, officers wanted to run to me to see if they can dig for some information, and I gave them what they wanted to hear: a bunch of garbage, because it was none of their business.
"They already knew why the shift change is being implemented.
"Q Why was that particular change?
"A That was a management decision, you know.
"Q So you didn't really know why?
"A No." (Tr. 583-584).
14. Paragraph 20 of the Complaint alleges that, "In May 1993, Wright informed employees that he had attended meetings with Williamson and Robinson, back in 1992, and that in the meetings it was decided that Wards was a troublemaker and they needed to get rid of him and that it was then discussed how to accomplish that goal." (G.C. Exh. 1(i), Par. 20) (See, also, First Amended Charges, G.C. Exhs. 1(e) and (g)). Mr. Knickerbocker, who was a wholly credible witness, testified that in May, 1993, Mr. Ken Wright, the training officer, came to his post and the following ensued,
"A He came in and sat down and first asked me how I was doing and things to that nature, and then he went into that him and Carol Williamson was on the outs and he told me that he had sat in a meeting with Lt. Klapp, Carol Williamson, and Inspector Robinson, and that they were plotting to terminate Officer Wards before, way before that he was terminated. And then he said that the whole thing was a set-up, that Officer Wards was set up.
"Q What was your reaction when Training Officer Wright made these statements to you? Did you ask him any questions?
"A No, I didn't ask him anything. I was surprised he even came in there and talked to me.
"Q Why were you surprised?
"A Because I don't know Ken that well -- Mr. Wright -- and he hardly ever talks to me. (Tr. 167-168).
. . .
"Q And did Officer Wright elaborate at all as to why -- you said they were plotting to remove Frank Wards -- did he elaborate on why they were plotting?
"A No, ma'am.
"Q After Officer Wright made these statements to you, what happened next?
"A He started to talk about training and the Bureau purchasing new weapons for the officers and then he got up and left.
"Q And do you know if he ever made statements like that to any other officers?
"A Yes, ma'am.
"Q Tell me about that.
"A Sam Cobb and Ron Brown, when we were in the ready room one day, told me that he told them the same thing." (Tr. 169).
Ms. Williamson denied that she had any conversation with Inspector Robinson in which she stated that Frank Wards was a troublemaker (Tr. 491-492).
At the hearing, Mr. Wright testified that on December 23, 1992, after he had walked Mr. Wards out of the facility, Ms. Williamson said it was going to be a good Christmas because Mr. Wards was fired (Tr. 232); that she made references to other employees, which he characterized as a "hit list"; that she said,
"A Yes. She said it was one down and she had I guess about five more to go, and she mentioned other police officers by name.
"Q And what were the other five that she had to go?
"A It was Erickson, Midder, Teischman.
"JUDGE DEVANEY: Who?
"THE WITNESS: Sgt. Teischman, Lacelle Howard. It could have been someone else but I would have to look at my own notes.
"Q BY MR. MERLI: Did she mention Don Stallings?
"A Yes, Stallings.
"Q How about Sam Cobb?
"A And Cobb, yes. Those were the other names. . . . (Tr. 233)
. . .
"Q In this conversation. I am talking about this particular conversation where she said one down, five to go, named the five employees, was happy, it was going to be a great Christmas. What did she say about the union and Wards?
"A That he was a troublemaker because he was always talking about starting a f------ union -- those were her exact words." (Tr. 234).
I did not find Mr. Wright a credible witness. His testimony was hopelessly at odds with what he told Mr. Knickerbocker and what Mr. Knickerbocker stated he had told Messrs. Cobb and Brown. A purported meeting with Ms. Williamson, Inspector Robinson and Lieutenant Klapp had become a discussion with Ms. Williamson; a plot to terminate a single person - Officer Wards - has become a plot involving other police officers. If he had been told of a vendetta involving more than one it is not believable that he would have told Messrs. Knickerbocker, Cobb and Brown of only Wards, especially that he would not have told Mr. Cobb, whom he claimed was also the object of the vendetta. Because his testimony was not credible, I do not credit Mr. Wright's testimony for any purpose.
15. On October 21, 1992, Respondent received a report that one police officer, Hilton Moore, had threatened to do bodily harm to one or more other police officers, Rodney Williams and/or Mr. Cobb (Res. Exh. 1; Tr. 36-37, 566). General Manager LaVan was informed, and, in the course of the oral briefing, learned of the "Mad Laugher", which was a telephone call to a police officer, generally on duty, but sometimes at the officer's home or in the ready room (Tr. 418, 432, 433), when the telephone was picked up the caller would emit loud, insane-sounding laughter and hang up without otherwise speaking. Mr. LaVan stated that he was, ". . . a little bit distressed because I didn't really feel that the mad laugher kind of situation was a proper activity for supposedly mature people of, you know, judgment to be engaging in. And so I had directed the security officer to look into it, and I wanted to find out who was involved in it and who was responsible." (Tr. 406). Mr. John Griffith, investigator and security specialist for the Bureau, on October 23, 1992, was assigned by Mr. LaVan to investigate both the threats of bodily harm and the "Mad Laugher", to be assisted by Ms. Williamson (Tr. 359, 479). Mr. Griffith's investigation began on October 23 and continued into early December 1992, culminating with his Report of Investigation, dated December 8, 1992 (Res. Exh. 1).
Inspector Robinson initially investigated the bodily harm threats; Officer Moore was taken out of uniform, on October 23, 1992 (Tr. 37), and assigned to other duties, until it could be determined if there was any validity to the alleged threats (Tr. 496, 566); and Inspector Robinson interviewed ten to fifteen officers in regard to Officer Moore (Tr. 567). Officer Moore, when questioned, had told Lieutenant Stout that Officer Rodney Williams was a "Mad Laugher" (Tr. 421). This had led to a confrontation between Moore and Williams (Tr. 422, 423, 424), and more than 100 "Mad Laugher" calls to Officer Moore in a period of about one week (Tr. 432, 433). Having found no proof that Officer Moore had made any threats, he was returned to police duty on November 10, 1992 (Tr. 38). While Inspector Robinson's investigation of the Moore allegations was taking place, Mr. Griffith's investigation both of alleged threats of bodily harm and the "Mad Laugher" was also taking place (Tr. 568). In the course of Mr. Griffith's investigation, Officer Cobb was taken out of uniform on October 27 (Tr. 37) in connection with bodily harm threats, including his calls to the Assistant United States Attorney in Fort Worth (Res. Exh. 1, p. 4; Tr. 496). Officer Cobb was returned to uniform in mid-December 1992 (Tr. 37).
In his investigation, Mr. Griffith interviewed 40 to 45 employees (Tr. 357, 358) and took about 63 statements (Tr. 357-358). In connection with the "Mad Laugher" matter, Officer Stallings and Sergeant Erickson were also removed from uniform(5) (Tr. 496, 497). As the result of the investigation, Ms. Williamson recommended that Sergeant Erickson, Officers Cobb, Midder and Stallings be terminated (Res. Exh. 1, p. 9; Tr. 480, 485). On review, Respondent determined that the preponderance of the evidence did not support the recommended removal of Officer Cobb and the recommendation was rejected (Tr. 592). On the basis of his oral reply, the deciding official mitigated the recommended removal of Officer Stallings to a 14-day suspension (Tr. 593-594) and Mr. Stallings sought, and was given, a higher paying job in production (Tr. 132-134, 498). On review, the proposed removal of Sergeant Erickson was approved and he was discharged (Tr. 386). On review, the proposed removal of Mr. Midder was approved (Tr. 591) and Mr. Midder was terminated effective February 5, 1993 ". . . for making false statements in matters of official interest, and improper conduct. . . ." (G.C. Exh. 12).
In addition to recommending terminations, as set forth above, Ms. Williamson made a number of recommendations for less severe disciplinary actions, including letters of reprimand and oral counselling (Tr. 479, 490). These recommendations were also reviewed (Tr. 480, 590, 591) and an unspecified number of letters of reprimand were issued by Ms. Williamson (Tr. 490) and Inspector Robinson gave oral counselling to six employees and oral admonishments to two employees (Tr. 568).
Mr. Midder stated that, in addition to himself and Mr. Stallings, between ten and fifteen other employees were disciplined for "Mad Laugher" conduct (Tr. 340); but these employees, while a lot of them were members of CLEAT, "weren't active in distributing the information or anything like that." (Tr. 341).
Conclusions
There is no doubt that Mr. Midder was active on behalf of CLEAT, a labor organization, U.S. Department of The Treasury, Bureau of Engraving and Printing and American Federation of Government Employees, AFL-CIO and Combined Law Enforcement Association of Texas et al., 49 FLRA 100 (1994) (See, also, §§ 2422.5 and 2422.17 of the Authority's Rules and Regula-tions, 5 C.F.R. §§ 2422.5, 2422.17), although he certainly was not the moving force and visible, designated representative as Officer Cobb was. He did distribute CLEAT literature and, with Mr. Stallings, was a point of contact for CLEAT on the evening shift, and General Counsel has shown that Respondent, through supervisors such as Lieutenants Stout and Causey, and possibly Klapp, was aware of Mr. Midder's activity on behalf of CLEAT. Further, General Counsel has shown that Sergeant Sales and Inspector Robinson had made statements to the effect that CLEAT was to blame for shift changes and that Sergeant Sales had told a contract safety specialist that Mr. Wards had been discharged because of activity on behalf of CLEAT. Mr. Midder was discharged which, General Counsel asserts, was because he engaged in protected activity. § 2 of the Statute protects the right of an employee, during non-work time in non-work areas, to "assist" a labor organization other than the exclusive representative. Department of Commerce, Bureau of the Census, 26 FLRA 719, 721 (1987); Social Security Administration, 45 FLRA 303, 323 (1992), therefore, Mr. Midder engaged in protected activity. Without more, General Counsel made a prima facie case of a violation of § 16(a)(2) inasmuch as he showed: (1) Mr. Midder, against whom the alleged discriminatory action was taken, was engaged in protected activity on behalf of CLEAT; (2) Respondent indicated animus toward CLEAT; and (3) Mr. Midder's protected activity was a motivating factor in his termination. Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981); Letterkenny Army Depot, 35 FLRA 113 (1990) (hereinafter, "Letterkenny").
Of course, as the Authority stated in Letterkenny, supra,
"Even if the General Counsel makes the required 'prima facie' showing(6), an agency will not be found to have violated section 7116(a)(2) if the agency can demonstrate, by a preponderance of the evidence, that: (1) there was a legitimate justi-fication for its action; and (2) the same action would have been taken even in the absence of protected activity. . . ." (35 FLRA at 118).
The October 22, 1992, report of an alleged threat, or threats, by one police officer on the life of one or more fellow police officers provoked an immediate investigation of those alleged threats and the related "Mad Laugher" conduct which General Manager LaVan did not feel was a proper activity for supposedly mature people. Mr. LaVan, on October 23, 1992, assigned Mr. John Griffith, investigator and security specialist for the Bureau, to investigate both the threats and the "Mad Laugher" activity, to be assisted by Ms. Williamson. Mr. Griffith's investigation was wholly independent of CLEAT organizational activity, was not brought about by CLEAT organizational activity and did not impinge upon CLEAT activity except to note that eight named officers insisted upon including a paragraph which expressed their desire to exercise their constitutional right to remain silent under the Fifth and Fourteenth Amendments; that CLEAT furnished and encouraged the use of this paragraph; and that CLEAT had not been recognized as a representative.
However innocuous the "Mad Laugher" may have been at its inception, it proliferated and soon became, as Mr. Griffith stated in his report, ". . . an instrument of harassment and intimidation aimed at a Police Private [Moore] and a Lieutenant [Stout]. The Police Private was targeted as a result of being labeled a 'snitch' and the Police Lieutenant because of his concerted effort to identify and stop the callers." (Res. Exh. 1, p. 2). The "Mad Laugher" was exhaustively investigated by Mr. Griffith. General Counsel's assertion that Mr. Griffith's investigation was suspicious because he, ". . . was required to obtain the approval of the U.S. Attorney's Office prior to conducting the investigation. However, no such approval was obtained. As a result, two U.S. Attorneys met with Griffith. . . ." (General Counsel's Brief, p. 11), is wholly unwarranted and in part constitutes an egregious misrepresentation. First, the question concerned the use of the Kalkines(7) Statement (Res. Exh. 2) which carries with it a grant of immunity from criminal prosecution, i.e., ". . . the answers I give . . . may not be used against me in a criminal prosecution. . . ." (Res. Exh. 2, emphasis in original), and the United States Attorney must approve of the waiver of criminal prosecution. It is true that Mr. Griffith did not personally obtain the approval of the United States Attorney; but it is wholly false to imply that approval had not been obtained. Thus, Mr. Griffith credibly testified that he had the approval of the Bureau's legal counsel (Tr. 385); that Bureau policy is that approval can come from the legal office; and that the legal office confers with the U.S. Attorney (Tr. 385). Moreover, the investigation by the Department of Treasury's Inspector General, which in part reviewed the propriety of the use of the Kalkine Statement (Tr. 384), concluded that, ". . . they found no improprieties in our investigation or the manner that we were conducting our investigation and the investigation itself." (Tr. 377) which was confirmed in a letter to the Director, or Associate Director (Tr. 384). General Counsel's statement, "two U.S. Attorneys met with Griffith" is an egregious misrepresenta-tion. The investigators were: investigators from the Department of Treasury's Office of Inspector General (Tr. 376, 382), not U.S. Attorneys; moreover, General Counsel's implicit representation that the U.S. Attorney was investigating, which itself was false, because approval had not been given for use of Kalkine statements is also false and, as stated above, contrary to the record.
I am aware that Mr. Cobb testified, inter alia, as stated by General Counsel (General Counsel's Brief, p. 10), that CLEAT was not recognized by Respondent and that CLEAT officials would not be allowed on Respondent's property (Tr. 61); but, contrary to General Counsel's implied impropriety, Respondent was then legally obligated to recognize only Local 29 as the exclusive representative of its employees, could not recognize CLEAT and could not permit CLEAT access to its premises unless and until it had attained equivalent status with Local 29. § 16(a)(3) of the Statute; Social Security Administration, 45 FLRA 303, 315 (1992); American Federation of Government Employees v. FLRA, 793 F.2d 333, 336-337 ("equivalent status", 336 n.8) (D.C. Cir. 1986), remanded to Authority; decision on remand, 24 FLRA 672 (1986), aff'd, 840 F.2d 947, 948, 950-951 ("equivalent status", 948 n.1). Consequently, Respondent's statement that CLEAT was not recognized and that its officials would not be allowed on Respondent's property was wholly proper. Indeed, even the statement General Counsel referenced that, Ms. Williamson told Mr. Wards that, ". . . CLEAT was only interested in his dues. . . ." (General Counsel's Brief, p. 10), was, in context, as follows: ". . . She then said that CLEAT was not -- she said, I don't know if you are aware of it or not, but CLEAT is not a federal agency -- a federal union; they are a state union, and they have no business in federal government. She said -- as a matter of fact, she said, 'If they were interested in more than just your dues, they would have shown you their charter,' . . ." (Tr. 277). This appears to have been part and parcel of CLEAT's lack of standing, see § 3(4), as a representative.
General Counsel contends, in effect, that the Griffith investigation was, in reality, a guise to investigate the organizational activity of CLEAT and relies on referenced testimony of Mr. Wards and of Mr. Midder (General Counsel's Brief, pp. 10-11). As to the testimony of Mr. Wards, it is clear that he was questioned about the disclaimer(8); that he said he put the disclaimer on his statement because the CLEAT attorney instructed him to do so (Tr. 277); and that "This CLEAT business" (Tr. 279) referred to the CLEAT disclaimer. It is true that Mr. Midder said that Ms. Williamson asked, ". . . who was involved in organizing CLEAT, and I told her Sam Cobb. . . ." (Tr. 335) and that she asked, "who organized CLEAT and why. . . ." (Tr. 337). On the other hand, Ms. Williamson testified,
"Q Okay. Did Mr. Midder put this statement from CLEAT -- or that you learned was from CLEAT -- onto his written statement that he submitted?
"A Yes, he did.
"Q Did you ask him where he got the statement or where it came from?
"A Yes, I did.
"Q And did he answer you?
"A Yes, he did, He --
"Q And what did he --
"A He said Sam Cobb told him to put it on there." (Tr. 488).
Ms. Williamson's testimony was more convincing than Mr. Midder's, not only in this regard, but in other respects, I did not find his testimony credible, for example, Mr. Midder testified that on November 4, they, ". . . told me if I wrote down the disclaimer, I would be terminated for not following orders." (Tr. 336) and, ". . . she said that if I wrote the disclaimer on my statement, I would be terminated for not following orders." (Tr. 337); but Mr. Midder wrote his version of the disclaimer on his statement (Res. Exh. 3); Mr. Griffith credibly testified that, ". . . 'I never told anyone not to include it. I told -- what I told them was that it was not relevant, that it did not apply in this situation." I fully credit Mr. Griffith and I do not credit Mr. Midder's testimony in this regard. Moreover, I conclude that whatever discussion of CLEAT occurred it was wholly the product of Mr. Midder's use of the CLEAT disclaimer.
Finally, while it is quite true that Ms. Williamson on November 3, 1992, wrote a memorandum to Mr. Robert Doering, Manager, Employee and Labor Relations Division (Res. Exh. 1, p. 9; Tr. 586), recommending his discharge(9), Mr. Doering concluded that the preponderance of the evidence did not support the recommended removal of Officer Cobb and this recommendation was rejected (Tr. 592). The record further shows memoranda to Mr. Doering on December 4, 1992, recommending the discharge of Messrs. Midder and Stallings (Res. Exh. 1, p. 9); however, Mr. Stallings was not given notice of proposed termination until "the early part of February of '93" (Tr. 127) and the record does not show a notice of proposed termination for Mr. Midder, although he was not removed from service until February 5, 1993 (G.C. Exh. 12, Tr. 318). Mr. Griffith's sole function was to investigate and report his findings (Tr. 382, 390, 391). Ms. Williamson was assigned to assist Mr. Griffith in his investigation but she, as Manager of the Security and Police Service Branch (Tr. 478), had sole responsibility for recommending any disciplinary action. Consequently, when the investigation concerning a particular employee appeared to her satisfaction to warrant disciplinary action, she was free to make a recommendation to Mr. Doering. The time span between her initial recommendation, the review by Labor Relations before any notice of recommended action, and notice to the employee of any proposed disciplinary action, encouraged prompt action even though the overall investigation had not been completed and was a bulwark to unwarranted action since later developed information, if any, could temper inchoate recommendations before notice to employees.
I conclude that Respondent's "Mad Laugher" investigation was wholly independent of CLEAT representational activity and that this was a legitimate justification for its action. "Mad Laugher" activity had long ceased to be either an amusing or acceptable prank but had escalated to a serious and dangerous level of harassment, confrontation and asserted threats of bodily harm. Respondent's General Manager directed that the activity be investigated, those responsible be identified and the conduct be stopped. Mr. Midder was discharged during his probationary period for: participating in "Mad Laugher" calls and falsely denying his participation (". . . for making false statements in matters of official interest, and improper conduct . . . You denied any participation in the 'Mad Laugher' telephone calls. Evidence reveals that you were an active participant in making such calls. Your actions in this matter fail to demonstrate the traits necessary for continued employment." G.C. Exh. 12).
On the basis of all of the evidence, I conclude that General Counsel has not proved by a preponderance of the evidence that protected activity was a motivating consider-ation for the discharge of Mr. Midder. The record shows that Ms. Williamson recommended discharge of each employee she was convinced, on the basis of the evidence, had participated in "Mad Laugher" telephone calls and had lied about it, including a supervisor, Sergeant Erickson, and had recommended some lesser form of discipline for those who admitted participation in "Mad Laugher" telephone calls, including another supervisor, Sergeant Wallace (Tr. 568). Her recommendations were reviewed by Labor Relations before any notice of proposed discipline was issued, and the recommendation for discharge of Mr. Cobb was rejected because Mr. Doering determined that the prepon-derance of the evidence did not support the recommended removal of Officer Cobb. The focal point for all CLEAT activity and its officially designated representative, Mr. Cobb, the record shows, was evaluated entirely on the basis of the "Mad Laugher" activity - not his union activity. Moreover, the recommended removal of Mr. Stallings was miti-gated on appeal to a fourteen-day suspension. Mr. Stallings sought and was given a higher paying job in production - this with regard to an employee as deeply, and as openly, involved in CLEAT activity as Mr. Midder, which, again, discounts union activity as a motivating consideration. Mr. Midder was discharged because he was found to have participated in "Mad Laugher" telephone calls and lied about his involvement.
If, nevertheless, even if it were found that protected activity were a motivating factor, Respondent had a legitimate justification for his discharge, namely, his participation in "Mad Laugher" telephone calls and his lying about his involvement. The giving of false testimony under oath by a probationary employee is, as Respondent concluded, a trait demonstrating his unsuitability for retention as a police officer. Respondent clearly would have taken the same action even in the absence of protected activity. Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981); Letterkenny, 35 FLRA 113 (1990).
Although Mr. Midder was not discharged because of protected activity, or if protected activity were a motivating factor in his discharge, Respondent had a legitimate justification for his discharge and would have taken the same action in the absence of protected activity, nevertheless, the record shows, as I have found, that Respondent, through supervisors Sales and Robinson, told employees, in effect, that CLEAT organizational activity was responsible for shift changes; that Sergeant Sales told a contract safety specialist that an employee, not implicated in the "Mad Laugher" activity and the Complaint with regard thereto having been withdrawn, had been fired because of activity on behalf of CLEAT; and, further, that Sergeant Sales threatened an employee for engaging in protected activity.
Having found that Respondent engaged in activity in violation of § 16(a)(1) of the Statute, it is recommended that the Authority adopt the following:
ORDER
Pursuant to § 2423.29 of the Rules and Regulations, 5 C.F.R. § 2423.29 and § 18 of the Statute, 5 U.S.C. § 7118, it is hereby ordered that the Bureau of Engraving and Printing, Western Currency Facility, Fort Worth, Texas, shall:
1. Cease and desist from:
(a) Interfering with the right of its employees to engage in lawful organizing activity on behalf of the Combined Law Enforcement Association of Texas, Communications Workers of America, AFL-CIO (hereinafter, "CLEAT"), or any other labor organization, by telling employees that their activity on behalf of CLEAT was to blame for shift changes, that an employee was discharged because he was a CLEAT organizer, or threatening employees for exercising their protected rights under the Statute.
(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of the rights assured them by the 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 facilities at the Western Currency Facility 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 the General Manager of the Western Currency Facility, 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, Dallas Region, Federal Labor Relations Authority, 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, 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, except as specifically found above, all other allegations of the Complaints in Case Nos. DA-CA-30471 and DA-CA-30545 be, and the same are hereby, dismissed.
__________________________
WILLIAM B. DEVANEY
Administrative Law
Judge
Issued: September 15, 1994
Washington, DC
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with the right of our employees to engage in lawful organizing activity on behalf of the Combined Law Enforcement Association of Texas, Communications Workers of America, AFL-CIO (hereinafter, "CLEAT"), or any other labor organization, by telling employees that their activity on behalf of CLEAT was to blame for shift changes, that an employee was discharged because he was a CLEAT organizer, or threatening employees for exercising their protected rights under the 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 Statute.
_______________________________
(Activity)
Date:___________ 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Region, 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202-1906, and whose telephone number is: (214) 767-4996.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
Authority's Footnotes Follow:
1. This case initially encompassed two consolidated complaints: DA-CA-30471 and DA-CA-30545. After the close of the hearing in this case, Charging Party Frank Wards and the General Counsel each filed motions seeking to withdraw the charges in DA-CA-30471. The General Counsel further sought to amend the consolidated complaint to reflect that the charges filed by Charging Party Ray Midder in DA-CA-30545 are unchanged. Noting that the actions sought by the General Counsel were consistent with the motion filed by Wards, the Judge granted the General Counsel's request. Accordingly, only DA-CA-30545 is now before us.
2. Although the Judge rejected these claims, the Judge found that the Agency violated section 7116(a)(1) of the Statute when certain of Respondent's agents: (1) told employees that their protected activity was to blame for shift changes; (2) told employees that an officer had been discharged because he had engaged in protected activity; and (3) threatened an employee for engaging in protected activity. As no exceptions were filed regarding these aspects of the Judge's decision, they are addressed only in connection with the issuance of an Order and Notice.
ALJ's Footnotes Follow:
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(a)(2) will be referred to, simply, as, "§ 16(a)(2)".
2. In 1992, the Bureau filed a unit clarification petition in Case No. WA-CU-30014, and other cases, in which it contended that the existing units in its District of Columbia Currency Facility (DCF) should be clarified to specifically exclude WCF employees. On October 2, 1992, American Federation of Government Employees, AFL-CIO, filed a representation petition, Case No. DA-RO-30001 (G.C. Exh. 2), to represent WCF police in a separate unit, i.e., that WCF should be severed from the existing unit represented by Local 29. CLEAT filed a petition to intervene in Case No. DA-RO-30001. Following the Regional Director's dismissal of the Bureau's clarifi-cation of unit petitions and dismissal of the petition in Case No. DA-RO-30001, because he found no circumstances to justify severance, CLEAT's application for review was granted; the unit represented by Local 29 was clarified to exclude the police at WCF and Case No. DA-RO-30001 was remanded to the Dallas Regional Director to determine whether the petitioned-for unit is appropriate. 49 FLRA No. 15, 49 FLRA 100 (1994).
3. As previously noted, the supervisor of WCF's Police Inspector.
4. Similar statements were attributed to Inspector Robinson, see, for example: Ms. Howard (Tr. 197, 198); Mr. Knickerbocker (Tr. 164-165); Inspector Robinson was not asked about statements attributed to him. Accordingly, I find that Respondent, through Inspector Robinson, told employees, in effect, that CLEAT was to blame for shift changes.
In addition, Mr. Barnes testified that on Friday, February 11, 1994, after he had met with FLRA counsel, he had gone to the police locker room where Sergeant Sales said to him, "Am I ready to go over and end my career on Monday -- something to that effect"; that he, Barnes, made no reply but went back and reported the matter to FLRA counsel (Tr. 181). Sergeant Sales was not asked about this statement. Accord-ingly, I further find that Respondent, through Sergeant Sales, threatened an employee for engaging in protected activity.
5. Sergeant Erickson, at his request, moved to the warehouse rather than being assigned duties in the police department. (Tr. 497).
6. Moreover, as the Authority further stated in Letterkenny, "If the General Counsel fails to make the required prima facie showing, the case ends without further inquiry." (35 FLRA at 118). Accordingly, when the General Counsel fails to make a prima facie showing that the discipline was invoked because the employee engaged in protected activity, that ends the inquiry and the analytical framework of Letterkenny need not be applied. U.S. Department of Treasury, Internal Revenue Service, Washington, D.C., 41 FLRA 1212 (1991); United States Customs Service, Region IV, Charleston District, Charleston, South Carolina, 42 FLRA 177 (1991). Here, General Counsel made a prima facie case that protected activity was a motivating factor in the discharge of Mr. Midder. Whether Ms. Williamson knew that Mr. Midder was engaged in organi-zational activity, as she testified (Tr. 495), has no bearing on what General Counsel has shown in his case in chief. To be sure, even if he makes a prima facie case that protected activity was a motivating factor, nevertheless, General Counsel must still prove by a preponderance of the evidence that the, "allegedly discriminatory action was motivated by consideration of protected activity." (Letterkenny, 35 FLRA at 122). Once General Counsel makes out a prima facie case, the burden of going forward, but not the burden of proof, shifts to the respondent. In going forward, a defense could be that protected activity was not a motivating consideration although the distinction between that defense and proof that the respondent would have taken the same action in the absence of protected activity may be blurred.
7. Kalkines v. The United States, 473 F.2d 1391, 1393 (Ct. Cl. 1973). A federal employee may not refuse to answer work-related questions and may be discharged for refusing to answer if he is adequately informed: (a) that he is subject to discharge for not answering; and (b) that his replies, and their fruits, can not be used against him in a criminal case. Gardner v. Broderick, 392 U.S. 273, 278 (1968); Uniformed Sanitation Men Ass'n. v. Commissioner of Sanitation, 392 U.S. 280, 283, 284, 285 (1968); Uniformed Sanitation Men Ass'n. v. Commissioner of Sanitation (Uniformed Sanitation Men II), 426 F.2d 619 (2d Cir. 1970), cert. denied, 406 U.S. 96 (1972); Kalkines, supra; Navy Public Works Center, Pearl Harbor, Hawaii v. FLRA, 678 F.2d 97 (9th Cir. 1982); Weston v. Department of Housing and Urban Development, 14 MSPB 321, 324 (1983); Gootee v. Veterans Administration, 36 MSPB 526 (1988); National Treasury Employees Union, 9 FLRA 983, 986 (1982); National Treasury Employees Union, 47 FLRA 370, 375 n.2 (1993).
8. Properly understood, while it "blows a lot of smoke", the CLEAT "Constitutional Protection Statement" (G.C. Exh. 4) adds nothing of substance to a Kalkines Statement (Res. Exh. 2) which begins with the grant of immunity, i.e., ". . . my answers, may not be used against me in a criminal prose-cution", and notice that he, or she, may be subject to disciplinary action for failure to answer questions relating to the performance of duties as an employee. The CLEAT statement states, "It is my belief and understanding that the department requires this report (statement) solely . . . for internal purposes . . ." and "For any and all other purposes, I reserve my constitutional right to remain silent. . . ." (G.C. Exh. 4).
The trouble with the CLEAT statement was that it was not well understood and was conducive to misapplication as a right to remain silent in administrative as well as criminal proceedings. Thus, Mr. Griffith stated in his report, "The officers who chose to ignore the mandatory cooperation warning by executing their right to remain silent . . . may have in fact hampered this investigation. . . ." (Res. Exh. 1, p. 8).
9. Indeed, Mr. Griffith's Report shows a memorandum to Mr. Doering on October 30, 1992, recommending Sergeant Erickson's discharge (Res. Exh. 1, p. 9).