District Council 47, Afscme

National Labor Relations Board - Board Decisions

Dec 17, 1985

277 N.L.R.B. 1088 (N.L.R.B. 1985)

1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District Council 47, AFSCME and Nancy M. Boyle.
Case 4-CA-13961
17 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 19 August 1985 Administrative Law Judge
Norman Zankel issued the attached decision. The
Charging Party filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 The Charging Party has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wa11 Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
Henry Protas, Esq., for the General Counsel.
Lee W. Jackson, Esq. (Kirschner, Walters, Willig, Weinberg
& Dempsey), of Philadelphia, Pennsylvania , for the Re-
spondent.
Norton H. Brainard III, Esq., of Philadelphia , Pennysl-
vania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge. Upon a
charge filed by the Charging Party (Boyle) on 12 Sep-
tember 1983,1 a complaint and notice of hearing was
issued on 10 November by the Regional Director for
Region 4 of the National Labor Relations Board.
In substance, the complaint alleges that District Coun-
cil 47, AFSCME (Respondent), as Boyle's employer,
violated Section 8(a)(1) of the National Labor Relations
Act when, "on or about August 2, 1983 ... [Respond-
ent] ... told an employee not to associate with another
employee who supported Teamsters Local 115; threat-
ened an employee with discharge because said employee
sought assistance from Teamsters Local 115 regarding
the filing of a grievance; and created an impression that
1 All dates hereafter are in 1983 unless otherwise stated
its employees' protected concerted activities of giving
testimony to the Board were under surveillance."
A hearing on these allegations had been scheduled to
begin in Philadelphia, Pennsylvania, on 9 October 1984.
The hearing was not convened on that date. Instead, by
a series of motions, orders, and responses the -hearing
was opened, by order, for me to consider the merits of a
settlement proposal submitted by Respondent.
On 12 December 1984 1 issued a decision by which
that proposal was approved by me. My recommended
Order requested similar approval by the Board.
On 29 March 1985 the Board issued a "Decision and
Order Remanding Proceeding" (published at 274 NLRB
1434). The Board rejected the settlement proposal and
directed me to conduct further proceedings consistent
with its decision.
On 11 June 1985 the hearing was reconvened at Phila-
delphia. All parties were represented by counsel. Each
was afforded the opportunity to examine and cross-exam-
ine witnesses, to argue orally, and to file briefs. Timely
briefs were submitted by the General Counsel, Respond-
ent, and Boyle's counsel.
On due consideration of the entire record, including
my observation of the demeanor of the witnesses who
testified at the 11 June 1985 hearing, I make the follow-
ing
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent, a labor organization within the meaning
of the Act, has maintained its principal place of business
in Philadelphia, Pennsylvania. At all material times, Re-
spondent has been an integral part of a multistate labor
organization, the American Federation of State, County
and Municipal Employees (AFSCME) which maintains
its national headquarters in Washington, D.C.
During the calendar year immediately preceding com-
plaint issuance, Respondent collected and received dues
and initiation fees in excess of $100,000, and remitted
dues and initiation fees in excess of $25,000 directly from
its Philadelphia office to AFSCME's Washington, D.C.
offices.
Respondent admits, the record reflects, and I find it is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The parties agree, the record reflects, and I find that
Teamsters Local 115, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Local 115) is and, at all material times, has
been a labor organization within the meaning of Section
2(5) of the Act.
IL THE UNFAIR LABOR PRACTICES
A. Background 2
At the time of hearing, Bell was Respondent's vice
president. She has held that position since September
2 The events described are a composite of (1) uncontradicted testimony
of Joann Bell, Respondent's vice president and admitted supervisor, (2)
Continued
277 NLRB No. 116
STATE COUNTY EMPLOYEES AFSCME DISTRICT COUNCIL 47 1089
1980. That same month and year, Barkley was employed
by Respondent as a clerk-typist in Respondent's health
and welfare unit. In September 1981 Barkley began
working part time for Bell. From February 1982 through
the hearing date, Barkley was permanently assigned to
work as Bell's personal secretary.3
Local 115 was the certified collective-bargaining rep-
resentative of Respondent's full-time and regular part-
time clerical employees until 2 May 1983. Thereafter, as
a result of a decertification election (Case 4-RD-1092)
those clerical employees were represented by Independ-
ent Clerical Employees of District Council 47, a newly
certified labor organization.
Another clerical employee, Nancy Boyle, served as
shop steward for Local 115. Boyle was Local 115's ob-
server at the decertification election. Barkley testified
that she was most friendly with Boyle, among the nine
clerical employees in the bargaining unit.
At relevant times, Boyle's desk was situated in Re-
spondent's health and welfare section, situated in the
back of Respondent's office. Barkley's desk was located
in the front of the office, immediately adjacent to Bell's
office. Barkley's desk was visible to Bell when the door
to Bell's office was open.
Barkley's job performance is relevant background to
the single conversation between Bell and Barkley, which
I find occurred on 2 August 1983, during which each of
the alleged unlawful statements was supposedly made.
Bell credited Barkley for being punctual in reporting for
work, maintaining a good attendance record, and show-
ing a general interest in her work.
Nonetheless, Barkley's job performance was deficient.
Those deficiencies are summarized as follows:
(1) In March or April 1982, 1 or 2 months after Bark-
ley's permanent assignment as Bell's secretary, Bell
orally told Barkley her typing was slow and contained
many typographical errors. Bell told Barkley she should
consider obtaining formal training in secretarial skills to
improve them. Barkley told Bell she intended to be tu-
tored. During that discussion, Bell specifically criticized
Barkley for' having erroneously mailed a political action
committee notice on health and welfare stationery and
that she omitted to include an essential part of the mail-
ing. Bell informed Barkley these errors cost Respondent
approximately $1100 for an inadequate mailing.
(2) In June or July 1982, Bell again spoke to Barkley
about poor work. Bell complained that she should not be
required to suffer- a delay of hours waiting for Barkley to
type a letter and that Respondent's other officials had
complained to Bell about the quality of Barkley's work.
Bell once again told Barkley she needed to improve her
job performance, and verbally told Barkley she was
being considered on probation.
(3) In late December 1983 or early January 1983, Bell
again spoke to Barkley about her poor work. Two spe-
corroborative testimony of the General Counsel's witness, Dora Barkley;
and (3) unrefuted documentary evidence Not every bit of evidence or
argument of counsel is reported. However, each has been considered.
Omitted material is deemed irrelevant, of little probative value, or super-
fluous.
S No party contends that Barkley is a confidential employee within the
meaning of the Act,
cific derelictions were discussed. The first involved
Barkley's failure to forward an insurance premium due
from Respondent for several months, since September
1982. Though Barkley had informed the insurance carri-
er she would comply with its requests for payment, she
failed to do so. This failure jeopardized Respondent's in-
surance coverage. Barkley acknowledged her error to
Bell, who told Barkley she would begin to impose pro-
gressive discipline on Barkley because her work had to
improve.
About the same time, Barkley neglected to tell Bell
she had scheduled an important meeting for Bell.
On 11 January Bell issued a written warning letter to
Barkley over these two problems.4
(4) On 5 February another incident involving Bark-
ley's job performance took place. Barkley's job included,
inter alia, cutting of payroll checks and paying bills. Be-
cause of illness, Barkley was absent from work at the be-
ginning of February. She left some of this work undone.
Thus, Bell worked on 5 February (Saturday) to do Bark-
ley's undone work. Bell testified she intended to work
only I to 1-1/2 hours. In fact, Bell remained working
until approximately midnight. The excessive time was
caused by Bell's discovery, when using files which
Barkley maintained for her, of a number of checks'
drawn on Respondent's health and welfare fund account.
These checks had been signed by Bell at various earlier
times. Some were over a year old. Stop payment orders
had been issued long before, and the checks had been re-
issued. The value of the checks Bell found totaled about
$70,000. These checks were strewn about various loca-
tions in Barkley's desk.
While still in Respondent's office on 5 February, Bell
wrote a memorandum to Barkley in which she set forth
additional examples of Barkley's poor work uncovered
after examining Barkley's files.5 Nonetheless, Bell con-
cluded she would not discipline Barkley because of the
latter's poor physical condition. Also, Bell decided not to
raise the matter of the checks discovered that day. Bell's
5 February discovery was discussed by her with Barkley
on 2 August. That conversation will be reported in sec-
tion II-C, below.
(5) On 7 February Bell continued reviewing Barkley's
files. On this day, Bell observed the files had been rela-
beled and rearranged and she recognized Boyle's hand-
writing in them. These files were supposed to be main-
tained by Barkley, not Boyle. Bell also noted that Boyle
had written on her wall calendar. Bell complained to Re-
spondent's president and to its treasurer that Boyle ex-
4 On 17 January Local 115 filed a charge (4-CA-13432-2) which al-
leged the warning violated Sec. 8(a)(3) The charge was dismissed on 28
February On 31 January Local 115 filed another charge (4-CA-13432-3)
complaining that Bell's conduct during an incident which occurred on 21
January violated Sec 8(a)(3) and (5) On 21 January three officials of
Local 115 appeared spontaneously at Bell's office. They demanded Bell
discuss a grievance filed by Barkley over the written warning she re-
ceived Bell declined to discuss the grievance, claiming she had other ap-
pointments. Bell asked the Local 115 officials to schedule an appoint-
ment. A heated argument ensued. Bell summoned the police who quelled
the altercation This charge, also, was dismissed on 28 February.
5 The memorandum was identified as R. Exh 6, but was not offered in
evidence
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceeded her authority by going through files maintained
for Bell.6
(6) In April or May, during Bell's campaign for reelec-
tion as Respondent's vice president , Barkley was desig-
nated to prepare and mail a notice of a political meeting
in support of Bell. Barkley did mail the notice, but omit-
ted the location, date, and time of the meeting. Two offi-
cers of Respondent had a loud and angry discussion
about this incident with Bell in her office. They com-
plained about Barkley 's mistake , Bell's office door was
open, and Barkley was sitting at her desk during the dis-
cussion. During her cross -examination , Bell said she di-
rectly addressed Barkley about this incident shortly after
the two officials complained to her (Tr. 87). There is no
evidence of any other type of discipline imposed as a
result.
The election of Respondent's officers was scheduled
for September. As noted, the campaign was already un-
derway in April or May. During this period of time, Bar-
kley was apparently in continuing poor health. It was ex-
pected Barkley would, at some point, have to undergo
surgery. There is no evidence that Bell had any confron-
tation with Barkley about Barkley's job performance
until the 2 August conversation, to be reported below,
which gave rise to the complaint allegations.
B. Credibility
Resolution of each substantive allegation literally turns
upon the relative credibility of Bell and Barkley, the
only witnesses who were presented to testify. Similarly,
credibility resolutions govern the necessary factual find-
ings relative to the scenario of the instant dispute, to be
described below in section II-C.
In general , my credibility resolutions are based on my
observation of witness demeanor, the weight of the re-
spective evidence, established or admitted facts, and in-
herent probabilities and reasonable inferences which may
be made from the record as a whole. Gold Standard En-
terprises, 234 NLRB 618 (1978); V & W Castings, 231
NLRB 912 (1977); Northridge Knitting Mills, 223 NLRB
230 (1976).
Also, I have carefully weighed all the testimony, bear-
ing in mind the personal interest of each witness in the
outcome of this litigation and the general tendency of
witnesses to testify in terms of their impressions or inter-
pretations of what was said during conversations, rather
than attempting to give verbatim accounts. Also consid-
ered is the principle that testimony of current employees,
in this case Barkley, who testify against their employer's
interests is not likely to be false. Georgia Rug Mill, 131
NLRB 1304 fn. 2 (1965). Finally, in assessing credibility,
I have utilized the principle that a trier of fact need not
discredit a witness simply because all of that witness' tes-
timony is not believed. "Nothing is more common than
to believe some and not all of what a witness says." Ed-
wards Transportation Co., 187 NLRB 3 at 3, 4 (1970),
enfd. per curiam 437 F.2d 502 (5th Cir. 1971).
In the credibility contest between Bell and Barkley, a
fair assessment of their testimony persuades me it is
Bell's version which is the most reliable and credible in
6 There is no evidence that Boyle was disciplined for this activity
all material respects . Bell testified confidently . Barkley
was considerably more nervous . Neither of these factors
is dispositive of the credibility issue . I attribute this dif-
ference in demeanor to Bell 's sophistication in personnel
and labor relations matters. Barkley 's insecurity is further
attributed to her position as an employee testifying
against her current employer.
Discounting these factors , the record reflects (and I
observed) that Bell's testimony was substantially more
comprehensive , direct, straightforward, sure and precise,
and less hesitant than Barkley's.
Barkley generalized when recounting the allegedly un-
lawful statements made by Bell during their 2 August
conversation. Barkley's testimony is pervaded with in-
stances of her acknowledging her faulty memory of
events. I find Bell's account of the 2 August conversa-
tion inherently plausible, in light of all the background
events described above. Moreover , it is, to some extent,
supported by documentation. Thus, as previously noted,
Bell's 5 February notes were identified as a Respondent
Exhibit at the hearing. Although not offered or received
in evidence , I place some , but not dispositive , reliance on
that document in evaluating credibility. In my view, the
existence of Bell's notes tends to support her oral testi-
mony, at least to the extent she testified she memorial-
ized the 5 February events during which she uncovered
numerous work errors on Barkley's part.
Finally, I find Barkley corroborated some of Bell's tes-
timony. For example, Barkley agreed that Bell reviewed
Barkley's job performance during the 2 August discus-
sion; that Bell suggested Barkley return to school for
more secretarial training; that they did discuss Barkley's
contacts with Boyle at work (though what was said is
disputed); and that they discussed a temporary replace-
ment for Barkley during her imminent extended absence
from work for medical treatment.
In evaluating credibility, I have considered the argu-
ments advanced by the General Counsel in support of
crediting Barkley. The arguments are unpersuasive. I
find them speculative and conjectural.
First, the General Counsel argues that because Bell is
"a labor relations professional ," she was "acutely aware
of the potential unlawfulness of remarks made to an em-
ployee which deal with or acknowledge an employee's
support for a union." Thus, the General Counsel asserts
"It is clear that Bell took this into consideration in her
testimony." (Emphasis added.) I disagree.
I have noted above that Bell's relative sophistication in
labor relations matters has been considered. Being well-
versed in labor relations issues cannot alone serve to
infer such an individual is necessarily dishonest.
The General Counsel vigorously attacks Bell's credi-
bility in what he characterizes as a transparent attempt
by Bell to deny her awareness that Barkley supported
Local 115. He claims that in a unit of only nine employ-
ees, Bell "would have surely known" which employees
supported Local 115 and which supported the rival, then
recently elected independent clerical union. In the ab-
sence of any union activity, I consider this assertion
speculative.
STATE COUNTY EMPLOYEES AFSCME DISTRICT COUNCIL 47 1091
To show Bell falsely claimed knowledge of Barkley's
union sentiment, the General Counsel points to her
knowledge of Barkley's January grievance and the argu-
ment over its processing . From this, the General Counsel
argues "there could have been no way that Bell would not
have known that Barkley supported Local 115" (empha-
sis added). This argument has no merit. Resort to a
grievance procedure through a certified collective-bar-
gaining representative is hardly indicative of the fact the
grievant supports that labor organization . All unit em-
ployees, whether or not supporters of their collective-
bargaining representative, are entitled to utilize the avail-
able representational procedures.
The General Counsel also argues that Bell's acknowl-
edgement that she observed Boyle (a notorious Local
115 supporter) and Barkley talking frequently at work
reflects Bell's knowledge that Barkley, too, supported
Local 115. In this regard, the General Counsel claims
"certainly the relationship" (emphasis added) that Bell
observed between Barkley and Boyle signified Bell's
knowledge of Barkley's union sympathies. This is not
necessarily true.
It is ludicrous to suggest that friendships, involving
even social ties, between employees necessarily are limit-
ed to those who share an affinity in their allegiance to a
particular labor organization.
The arguments above which I have italicized for em-
phasis show the speculative character of the General
Counsel's credibility position. This is especially true
when they are viewed, as I have done, in the full context
of facts upon which the General Counsel's claims of vio-
lation have been made. Even assuming , arguendo, Bell is
discredited in her denial of knowledge of Barkley' s union
sympathies, that would not, in my view of the total
record, be sufficient to discredit Bell's version of the 2
August conversation.
My overall impression of Bell's testimony, on the fac-
tors earlier described in this section, particularly of com-
prehensive and precise narrations, is so sufficiently sup-
ported by the surrounding and inherent circumstances
that discrediting her on whether or not she was aware of
Barkley's union affiliations would not fatally affect her
overall veracity.
On the foregoing, I adopt Bell's account of what was
said during her 2 August conversation with Barkley. Ac-
cordingly, the factual findings in section II-C, below, are
based on Bell's testimony, which I credit.'
C. Scenario of the Instant Dispute-The August
Discussion
Barkley had arranged to undergo an operation for her
lingering illness. On 2 or 3 August8 Barkley asked to see
Bell.
4 Additional credibility discussion, specifically addressing the different
versions of the conversation appear below, following Bell's account of
what was said
8 The precise date is uncertain. Both Bell and Barkley agree they had
only one conversation from which the complaint allegations emanate
For convenience, I adopt 2 August as the date the conversation oc-
curred Some time before they conferred, Barkley and Boyle were talking
at Barkley's desk. They were discussing the issue of labor agreements,
and Bell became involved in the discussion Inasmuch as no complaint
Some time before they conferred, Barkley and Boyle
were talking at Barkley's desk. They were discussing the
issue of labor agreements, and Bell became involved in
the discussion. Inasmuch as no complaint allegations
flow from this conversation, I find it unnecessary to dis-
cuss its contents.
Later on 2 August, Barkley and Bell conferred in
Bell's office. Barkley told Bell her operation had been
scheduled and she would need to be absent on extended
sick leave. Bell, who had earlier recommended to Bar-
kley the doctor to perform her operation, offered (on 2
August) to help arrange a combination of sick and vaca-
tion leave, or advanced leave, for Barkley.
Then, Bell invited Barkley to sit on a sofa in Bell's
office. Bell said that now that Barkley was leaving it was
the best time for them to have a conversation which Bell
intended to have with her for some time. Bell said that
since Barkley would not be returning until October, she
would be away at the time of Respondent's September
election of officers. Bell told Barkley she hoped she
would be reelected vice president.
Bell then said she had been subjected to considerable
criticism during the course of the election campaign be-
cause of Barkley's work errors. Bell noted that though
she withstood those criticisms, she wanted things to
change in her relationship with Barkley. Bell told Bar-
kley she would operate strictly in accordance with pro-
gressive discipline relative to Barkley's job performance,
and that such discipline could result in discharge. Bell
also told Barkley that she wanted Barkley to consider re-
turning to school in order to improve her work skills,
not just because it was important to Bell, but because it
was important also to Barkley.
Bell then reviewed Barkley's errors in detail, using her
5 February notes. Bell told Barkley of some of the things
which she discovered in Barkley's desk. Bell said many
of the mistakes were made because Barkley was disorga-
nized.
Bell then referred to Boyle, saying that shortly after 5
February it was her impression that Boyle had changed
and rewritten items within the files which Barkley main-
tained for Bell. Bell told Barkley that the files were
Bell's, to be maintained for Bell by Barkley, and that no
one other than Barkley was authorized to maintain or
handle those files.
Bell candidly admitted she made another reference to
Boyle. Thus, Bell said she believed one of the elements
of Barkley's poor performance was her lack of concen-
tration. Bell said Barkley could not concentrate on her
work while at the same time visiting constantly with
Boyle at her work station in the back of the building, or
talking constantly to Boyle on the telephone.
Bell said these matters were things she needed to ex-
amine with respect to improving her work, and that she
would no longer tolerate poor performance by Barkley.
Bell suggested Barkley, while on leave, should consider
whether or not she wanted to continue in her job as sec-
allegations flow from this conversation, I find it unnecessary to discuss its
contents
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retary to Bell, or, instead, return to her former position
working in Respondent's health and welfare section.
Near the end of the conversation , Bell discussed the
fact that Bell's sister suffered from the same illness as
Barkley, and Bell wished Barkley good luck with her op-
eration and recuperation . Bell also told Barkley she read
a book entitled "The Black Woman" which she believed
was important to her development. Bell told Barkley she
thought Barkley might be interested in reading the book
during her absence and delivered it to her.
Finally, Barkley suggested that a friend of hers might
be considered by Bell as a replacement for Barkley
during her absence. Bell said she would interview that
person for the job.
Barkley's sick leave consumed a period from 5 August
until 11 October . Meanwhile, Bell was reelected Re-
spondent's vice president. Upon, her return to work, Bar-
kley resumed her position as Bell's secretary. Thereafter,
Barkley enrolled in, and completed , a secretarial course.
There was a marked improvement in her job perform-
ance and , as previously stated , she still retained her job
at the time of the instant hearing.
1arkley's narration of her 2 August conversation with
Bell reflects that Bell said all the things to which Bell
testified, as I have found immediately above. However,
Barkley's version included the following additional testi-
mony.
1. Barkley claimed Bell told her the Black Coalition9
was upset because Barkley attended a baseball game and
a picnic. According to Barkley, this comment was made
while Bell enumerated Barkley's job deficiencies.
Bell denied she mentioned the baseball game on 2
August. She did recall telling Barkley, months before 2
August. that she was upset that Barkley left work to
attend the baseball game without obtaining prior permis-
sion. This neglect resulted in Respondent 's office being
unstaffed.
Further, Bell testified she did not recall having ex-
pressed her disapproval to Barkley for having attended a
picnic. Bell did acknowledge she criticized Barkley after
two members of, the Black Coalition vociferously com-
plained she had omitted to place the location, date, and
time -for a meeting on a notice. io
Because Bell's memory of events was notably keener
than Barkley's and her account of the baseball and Black
Coalition complaints are inherently plausible and unrefut-
ed, I, credit them. I also credit Bell's denial of recall con-
cerning her alleged disapproval of Barkley 's attendance
at a- picnic because of my overall impression of Bell's
credibility,
2. Barkley also claimed that, on 2 August, Bell remind-
ed her of the January altercation which took place when
Local 115.officials attempted to discuss Barkley's griev-
ance. This incident was attributed by Barkley to the
Black Coalition.
9 Identified as the Coalition of Black Trade Unionists. All of Respond-
ent's officers are members of the Coalition
10 This incident is reported above in sec. II, A, par 6. The two offi-
cers mentioned in my narration were also members of the Black Coali-
tion. Thus, if that term were used by Bell she placed it occurring 3 or 4
months before the 2 August conversation
The reference to the Black Coalition , however, actual-
ly was interjected by the General Counsel (see Tr. 19),
and not spontaneously by Barkley . According to Bar-
kley , Bell informed her that the police officer in charge
who responded to Bell's call on 21 January remarked to
Bell, "If you get rid of her [referring to Barkley], you'd
get rid of your problem."
Barkley continued in this vein, testifying that Bell said
that if she wanted to get - rid of Barkley she could, but
that Bell did not want to do so. In this connection, Bar-
kley asserted that Bell said Respondent 's attorney had a
"whole file on me ... and it had to do with some
checks that were made out the previous year and if she
[Bell] needed to use that she would , but she wouldn't
want to do that."
Because of Barkley's uncertainty of events and the fact
it was not she who initially associated the term Black `
Coalition with Bell 's purported reference to the 21 Janu-
ary incident, I credit Bell who denied telling Barkley
what the police officer said. Further, Bell credibly testi-
fied that what had been said was common knowledge
throughout the office . Barkley's imperfect recollection of
events, and the fact she had to be prodded by counsel,
are additional reasons I credit Bell.
I find Barkley's testimony concerning the "file" main-
tained allegedly by Respondent 's attorney is too general-
ized to be reliable , especially in view of Bell 's contrast-
ing explicit details (reported above) of the poor work she
discussed with Barkley on 2 August . Barkley , in abbrevi-
ated form , merely testified this alleged remark ' of Bell
"had to do with some checks that were made out the
previous year."
Moreover , I find the context of the discussion con-
cerning those checks renders it unlikely that Bell would
have referred to any "file" in the office of Respondent's
counsel . As previously reported, Bell's testimony is that
she had her 5 February memorandum in hand on 2
August when she spoke to Barkley. There simply was no
need for her to refer to any extraneous matter. Accord-
ingly, I credit Bell , whose testimony does not reflect she
referred to a file in possession of Respondent 's attorney.
3. Barkley also claimed that Bell told her, on 2
August, that "Boyle was-so much younger than I was
that I really shouldn 't associate with her." This state-
ment, according to Barkley, was made during Bell's ad-
monitions to be more attentive to her work.
As reported above, Bell candidly admitted telling Bar-
kley that Barkley's ability to concentrate on work was
due, in part, to her visits and conversations with Boyle.
My search of the record reflects that Bell, at no time,
was asked to admit or deny she told Barkley not to asso-
ciate with Boyle 'because of Boyle's age . `In other circum-
stances, whether or not Bell actually made such a state-
ment would be irrelevant . However, because (as 'will
appear in sec . II; (d), (1 ); below) this statement is the
foundation for a claim that the reasons Respondent prof-
fers for the 2 August conversation are pretextual, it be-
comes necessary to decide whether Bell made this com-
ment. I find she did not.
There is no inherent predicate for me to conclude such
a reference was made. Clearly, the focus of Bell's 2
STATE COUNTY EMPLOYEES AFSCME DISTRICT COUNCIL 47 1093
August conversation with Barkley was the latter's poor
work performance. Bell had documentation of those
events in hand . She rendered a litany of Barkley's poor
work record to Barkley . In this context , I find it inher-
ently implausible that Bell would have spoken of Boyle's
age. Barkley 's,apparently excessive contacts with Boyle
provided sufficient basis for Bell 's admonitions.) t
A trier of fact may, based on credibility resolutions,
find contrary to what an uncontradicted witness testifies.
NLRB v. Walton Mfg. Co., 369 U.S. 405, 406 (1962). On
my overall impressions of relative credibility , and be-
cause the record contains no indication of the ages either
of Barkley or Boyle , I conclude Bell did not tell Barkley
to refrain from associating with Boyle because of her
younger age.
4. Finally, Barkley testified that Bell "mentioned she
knew each time that I had been down to the Labor
Board and that she had read my statement ." Bell un-
equivocally denied she had said this to Barkley on 2
August. I credit Bell 's denial.
As with the alleged remark about Boyle's age, I con-
clude for Bell to have told Barkley that she (Bell) read
statements provided by Barkley to the Board is a non se-
quitur . At the hearing , Bell acknowledged she had been
aware of the unfair labor practice charges filed, and
which were dismissed on 28 February; that she became
aware of them when asked to respond to them; and that
she herself provided statements to answer those charges.
Bell denied she knew Barkley had been a "key" wit-
ness relative to the dismissed charges before 28 Febru-
ary. Charging Party's counsel argues this denial com-
prises a self-contradiction which impacts adversely on
Bell's disclaimer she told Barkley she read her Board
statement. However, I ascribe no significance to this situ-
ation because of my general observation of Bell 's testi-
monial precision . Thus, Charging Party 's counsel asked
Bell whether it was "some point before 28 February
1983 , you [Bell] had some knowledge that . . . Barkley
was a key witness in regards to a charge ...?" Bell re-
sponded , "Because I do not recall the timeframe , I could
not testify to a certainty to that" (Tr. 93).
As earlier noted, I found Bell 's testimony generally
precise . Clearly, Bell's quoted response was' not a denial
of her knowledge that Barkley had given testimony to
the Board . Instead , Bell's answer merely reflects her fail-
ure to recall exactly when she first became aware that
Barkley was involved in the charge . In this context, it is
clear that Bell had admitted knowing of Barkley's con-
nection to the charge, but simply was unsure of the date.
This conclusion is buttressed by Bell 's responses to ques-
tions later in the hearing, after her recollection of the
dates had been refreshed by her examination of docu-
mentary evidence (Tr. 92-96).
Once again, the complete context of events renders it
unlikely that Bell would have said, on 2 August, that she
had read Barkley 's Board statements . The charges had
been dismissed long before that date; Bell principally was
concerned , on 2 August , with enumerating Barkley's
r i In this connection, Bell's uncontradicted testimony during her cross-
examination reflects Boyle's supervisor complained to Bell that Barkley
was fraternizing too frequently with Boyle (Tr. 84)
work deficiencies; and Barkley herself presented abso-
lutely no credible testimony directly attributing any part
of the 2 August conversation to Local 115 or the charges
it had filed. Moreover, Bell is quite knowledgeable in
labor relations matters. In this entire framework , I find it
implausible that Bell would have made a statement so pa-
tently and potentially a violation of the Act. According-
ly, Bell's denial is credited , as I conclude Barkley 's rendi-
tion is inherently improbable.
D. Analysis
1. Instruction to refrain from associating with a
Local 115 supporter
In complaint paragraph 5(i), it is alleged that, on 2
August , Bell "told an employee not to associate with an-
other employee who supported Teamsters Local 115."
The General Counsel concedes Bell did not literally tell
Barkley not to associate with Boyle because of Boyle's
support of Local 115. My findings of fact make it clear
Bell made no such explicit statement.
The General Counsel theorizes, however, that Bell
conveyed a message bearing the alleged unlawful import
through a series of statements made by Bell on 2 August.
Thus, the General Counsel asserts that Bell's references
to the Black Coalition "made it clear to Barkley that Bell
considered it a question of racial loyalty not to support
Local 115." In this connection, the General Counsel
avers that the term "Black Coalition" served as a euphe-
mism for those who were loyal to black members of
management and spurned Local 115.12 Thus , the Gener-
al Counsel asserts Bell's purported references to objec-
tions supposedly made by the Black Coalition were upset
by Barkley 's (a) filing of her January grievance; (b) at-
tending Respondent 's picnic ; and (c) although not argued
in posthearing brief, attending a baseball game , signaled
to Barkley displeasure with her because of her associa-
tion with people, particularly Boyle, who supported
Local 115.
The General Counsel also argues that the supposed ad-
monition to avoid Boyle because of her younger age
demonstrates the pretextual character of Respondent's
defense. In this regard , the General Counsel argues that
Boyle's union activities "were the only explanation Bar-
kley could have inferred for why she was cautioned to
avoid Boyle."
Respondent claims that all of Bell's 2 August remarks
were justified by Barkley's work history; were appropri-
ate to the occasion of Barkley's anticipated extended ab-
sence from work ; were related only to Barkley's work
history; were totally unconnected to any enmity between
members of the Black Coalition and Local 115 ; and not
at all connected to Boyle's notorious support of Local
115. I agree with Respondent's position.
For purposes of my analysis , I have assumed , contrary
to my , factual findings in some respects , that Bell said
each and everything attributed to her by Barkley relating
to this allegation. Even when viewed in this light, most
favorable to the General Counsel, I conclude the record
12 Both Bell and Barkley are black.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not contain prima facie evidence to support this al-
legation.
The General Counsel's theory has some superficial
appeal. However, that appeal is lost when evaluated
against the context of all the surrounding circumstances.
These circumstances include:
(1) Barkley produced no statement whatever to show
Bell (or she) made any explicit reference to anyone's
union activities, sympathies, or affiliations.
(2) All evidence regarding Barkley's work deficiencies,
as enumerated by Bell, stands unrefuted.
(3) Barkley testified (not previously reported) that she
had not heard of an organization known as the Black
Coalition. The General Counsel notes, however, Barkley
did claim an awareness that she was the only one of Re-
spondent's black employees who supported Local 115.
From this, I am asked to infer that Barkley naturally un-
derstood the term "Black Coalition" to be synonymous
with opponents of Local 115. I consider such an infer-
ence, in all the circumstances, highly conjectural, and de-
cline to make it.
(4) Bell's references to the January altercation between
Local 115 officials and her related-to events 8 months re-
moved from the 2 August conversation. I consider them
remote, and not connotative of animus toward Local
115, especially because unfair labor practice charges
based on them had long since been dismissed; Local 115
had been decertified in May; and there is no evidence
showing Local 115 was thereafter engaged in any efforts
to reorganize the clerical unit.13 Logically, there is
simply no basis for making an inference that Bell's refer-
ences to the Black Coalition reasonably would have the
tendency to inhibit Barkley's, or anyone else's, statutory
rights.
(5) No direct, credible evidence whatever was ad-
duced which shows, or tends to show, Bell or any other
Respondent official, had engaged in other types of
8(a)(1) conduct. There is present herein neither a history,
nor pattern, of similar violations from which it can be
concluded Bell's 2 August remarks were an extension of
a design to interfere with, coerce, or restrain employees
in the exercise of their statutory rights.
(6) Bell's reference to Boyle's relatively young age is
not necessarily pretextual. The unrefuted evidence shows
that both Boyle and Barkley apparently tended to waste
each other's worktime. Thus, if Bell made the "age"
remark, I consider it nothing more than a suggestion that
Barkley's activities should not be guided by someone
more youthful and less experienced. I conclude the Gen-
eral Counsel's "pretext" argument totally ignores the
multitude of evidence showing Barkley's inattentiveness
to her work. In that backdrop, Bell's "age" comment is
reasonable as yet another means by which Bell attempted
to rehabilitate Barkley to be a more useful, productive
employee.
Bell impressed me as a strong, yet compassionate,
manager. I find the reference to Boyle's age entirely con-
sistent with Bell's overall actions and efforts to have Bar-
is The General Counsel claims Local 115 was still on the scene I
note, however, the instant charge was filed by Boyle, in her individual
capacity, and not Local 115.
kley improve her work skills and comportment . Viewed
in the absence of concurrent organizational activity by,
or on behalf of, Local 115, to claim the age reference
was a pretext to mask Respondent 's opposition to ,Local
115 or its supporters is illogical and highly speculative.
(7) No probative evidence exists to show Barkley was
a supporter of Local 115 or that Respondent knew she
supported that union . I have already indicated I find no
warrant to conclude Barkley's grievance filing, in Janu-
ary, signifies that she supported Local 115. Similarly, the
fact Barkley participated as a witness in the investigation
of the charges filed by Local 115, is not deemed proba-
tive upon the issue of her sympathies or affiliation.
No direct evidence was offered to show that Barkley
was active , in any way , on behalf of Local 115. In this
posture, it is extremely difficult , if not impossible , to con-
clude any of Bell's 2 August statements had the requisite
tendency to coerce employees in the exercise of their
Section 7 rights. Cf. Choctawhatchee Electric Cooperative,
274 NLRB 595 fn. 2 (1985).
(8) Cases cited by the General Counsel are materially
distinguishable from the instant case. It is true, as the
General Counsel contends, the Board has held that "ad-
vising an employee not to associate with a union adher-
ent violates Section 8(a)(1) of the Act."
Each of the three cases cited for this proposition, how-
ever, contains cogent and direct evidence which provid-
ed the predicate nexus for the inferences which need to
be made in the case at bar to find a violation . Thus, in
Warehouse Groceries Management , 254 NLRB 252, 260
(1981), the offending statement contained an explicit ref-
erence to a union which was then organizing. An em-
ployee was told to "stay away" from a union adherent
because he "just wanted to influence (the employee ad-
dressed) to join the union"; in Smith Auto Service, 252
NLRB 610, 613 (1980), the direction to avoid contact
with a union supporter was made in the context of evi-
dence which showed the speaking supervisor had first di-
rectly expressed his animosity toward both union activity
and the union adherent . Additionally , the direction to
avoid contact was made in the midst of numerous other
8(a)(1) statements which reflected a clear intent and pat-
tern of antiunion conduct; and in Flite Chief, 229 NLRB
968, 976 (1977), the unlawful instruction "anybody that
wants to keep their job better stay - away from Hilda,"
though not explicitly mentioning a union, was made
against a background of previous related unfair labor
practices which included, inter alia, a finding that the
manager issuing the unlawful instruction had earlier ex-
plicitly said he would do anything to "get" union sup-
porters and "for sure he was' going to keep [the support-
er] out."
Clearly, in each of the cited cases, there were attend-
ant circumstances from which it reasonably could be in-
ferred that the direction to refrain from associating with
known union supporters had the requisite tendency to
interfere with the employees' statutory rights. The
present circumstances are vastly dissimilar . There is just
no basis in this case to draw the inference requested by
the General Counsel. To do so requires me to resurrect
STATE COUNTY EMPLOYEES AFSCME DISTRICT COUNCIL 47 1095
incidents which, themselves, do not support such conclu-
sions. I decline to do so.
Moreover, in the instant case, there is no probative
evidence that Bell or Respondent (itself a labor organiza-
tion) bore animus toward Local 115 or to Boyle because
of her activities in its behalf. The difficulties Bell had
with Local 115 representatives over Barkley's January
grievance or her admonition to avoid Boyle for work-re-
lated reasons simply do not rise to the level of animosity
toward unions or employee activity in their behalf that
was present in any of the cases cited by the General
Counsel.
On all the foregoing, I find no merit to the allegation
in paragraph 5(i) of the complaint.
2. Threat of discharge
In complaint paragraph 5(ii) it is alleged that Bell
"threatened an employee with discharge because said
employee sought assistance from Local 115 regarding the
filing of a grievance."
This allegation is apparently based on Bell 's 2 August
statement to Barkley in which she supposedly reminded
Barkley that the police officer in charge in January told
Bell she would rid herself of her problem by getting rid
of Barkley.14 The General Counsel claims that this state-
ment was tantamount to a reminder that Bell "had the
power to fire . . . [Barkley] . . . and attempted to indi-
cate that reasonable minds would consider her grievance
filing to be grounds for discharge." Further, the General
Counsel argues "thus, Bell was able to communicate a
threat of discharge, while making it appear that it was
something she did not want to do, but would have to do
so [sic] only if Barkley forced her hand. In this case forc-
ing her hand . . . only meant exercising .. . [statutory]
... rights."
Once again, I find the General Counsel weaves a
theory of violation by unwarranted implication and con-
jecture, beginning with the January grievance incident
between Bell and officials of Local 115 and the dismissed
charges which resulted.
Once again, for analysis purposes only I shall assume,
contrary to my earlier findings, that Bell actually re-
minded Barkley, on 2 August, of what the police officer
said in January.1 s
It is strained to conclude the police officer's statement
bore an unlawful connotation. Assuming the statement
were made, I acknowledge it would not have been made
had not the grievance been filed. However, any implica-
tion in the statement that the filing of the grievance was
causally connected to Barkley having filed the grievance,
I find, was removed by dismissal of the unfair labor
practice charge which alleged a refusal to bargain over
Bell's failure to discuss the grievance. Respondent was
exonerated. Because it was apparently concluded Bell
acted lawfully when she refused to meet with Local 115
14 Interestingly, the General Counsel's brief does not argue that Bell's
remark that imposition of progressive discipline might result in discharge
representatives to discuss Barkley's grievance, any taint
of illegality which might have otherwise been derived
from the police officer' s comment was vitiated long
before 2 August.
The General Counsel argues , "No doubt cognizant
that a previous threat to discharge Barkley had resulted
in unfair labor practice charges, Bell resisted directly
threatening her with termination this time [2 August]."
No merit was found to that charge.16 I find this conten-
tion conjectural.
The General Counsel asks I infer a sinister connotation
to events yet unproved by the test of litigation. On the
state - of this record, I deem it inappropriate to do so,
without more cogent evidence bearing the tendency to
interfere with employees' statutory rights. If Bell were as
circumspect as the - General Counsel asserts, she needed
only to deny Barkley's request for extended leave. In-
stead , Bell was fully supportive of Barkley, having re-
ferred a physician to her and providing her with yet an-
other in a long series of opportunities for self-improve-
ment.
Moreover, there is no hint that Bell harbored any dis-
criminatory intent toward Barkley. On 2 August, Bell
even went so far as to suggest that Barkley consider
(during her medical leave) returning to her former posi-
tion in Respondent's health and welfare unit . By this,
Bell signified her intention to retain Barkley as an em-
ployee, if at all possible. In this context, and all sur-
rounding relevant circumstances, I am unpersuaded that
anything Bell said on 2 August reasonably has the tend-
ency to convey a threat of discharge.
Finally, I have considered the fact Bell only imposed
warnings upon Barkley over the major errors discovered
on and after 5 February. Any one of them appears as
valid grounds for termination. Yet, no such action was
taken. This omission, in my opinion, tends to dispel,
rather than enhance, any tendency that Bell's 2 August
remarks could be viewed as an unlawful discharge
threat. Accordingly, I find no merit to the allegation in
paragraph 5(ii) of the complaint.
3. Impression of surveillance
In complaint paragraph 5(iii), it is alleged that Bell
"created an impression that its employees' protected con-
certed activities of giving testimony to the Board were
under surveillance by informing an employee that Re-
spondent read statements given by said employee to
agents of the Board."
I have previously found it inherently improbable that
Bell told Barkley she read her Board statement. In addi-
tion to the reasons earlier stated for my conclusion, I
have considered the long-established principle that state-
ments of witnesses provided to the Board are retained as
confidential in Board files. They are not made public
unless and until that witness testifies at a Board hearing,
and then only upon request of the opposing party. There
is an unlawful threat . Had that statement been claimed as a violation , 16 The Regional Director concluded it would not effectuate
the Act's
Barkley 's admittedly poor work record, together with all other material policies to issue complaint "with respect to this isolated remark
" because
circumstances, persuades me it would not be unlawful Barkley was not disciplined over the incident which led to an apparent
15 It is self-evident that if my credibility resolution is ultimately sus- threat to discharge her for breach of Bell 's confidence (See R Exh. 5,
tained , no prima facie evidence of the alleged threat exists concerning Case 4-CA-13432-1 )
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no assertion that this procedure was not followed in
the instant case.
Assuming Barkley was not aware of this rule but that
Bell was, I would have to speculate that Bell was taking
advantage of her superior knowledge to frighten Barkley
away from using Board processes or giving the Board
statements detrimental to Respondent, in order to con-
clude it is likely Bell made the remark attributed to her.
The factual setting precludes such an onerous conclu-
sion.
No unfair labor practice charges were pending on 2
August. The instant charge was not filed until 12 Sep-
tember. There is no evidence to suggest that Local 115,
or Boyle, had contemplated filing charges on 2 August.
In a context otherwise free of coercive conduct, it is im-
plausible to ascribe the alleged unlawful remark to Bell. I
find it totally incongruous to the then-existing circum-
stances. Accordingly, I reaffirm my earlier conclusions
that it is inherently improbable Bell told Barkley she
read the Board statement and, hence, find no merit to the
instant allegation.
CONCLUSIONS OF LAW 17
1. District Council 47, AFSCME is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 115 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in any of the unfair
labor practices alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'8
ORDER
The complaint is dismissed in its entirety.
17 In view of my conclusions of law, Respondent ' s motion to dismiss
(ruling on which I reserved) is granted
18 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.