District Council 47, Afscme

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.