[ v50 p498 ]
50:0498(68)CA
The decision of the Authority follows:
50 FLRA No. 68
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
UNITED STATES AIR FORCE ACADEMY
COLORADO SPRINGS, COLORADO
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1867
(Charging Party/Union)
DE-CA-20757
DE-CA-20651
DE-CA-20889
_____
DECISION AND ORDER
June 16, 1995
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the exceptions.
The consolidated complaint alleges that the Respondent violated: (1) section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing several changes in certain conditions of employment and by repudiating the parties' agreement; (2) section 7116(a)(1) and (2) by discriminating against a union representative; and (3) section 7116(a)(1) by making certain prohibited statements to an employee.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order in Case No. DE-CA-20889 and the Judge's findings, conclusions and recommended Order as to portions of the complaints in Case Nos. DE-CA-20651 and DE-CA-20757. We will remand to the Chief Administrative Law Judge,(1) for further proceedings consistent with this decision, certain portions of the complaints in Case Nos. DE-CA-20651 and DE-CA-20757 that allege that the Respondent engaged in unlawful discrimination, in violation of section 7116(a)(2) of the Statute.
II. Judge's Decision
The facts and other relevant matters are set forth in the attached Judge's decision, and are only briefly summarized here.
Michael Parmelee is an employee in the Respondent's Body Shop and a union steward. This unfair labor practice proceeding arose out of a series of events involving, inter alia: (1) issuance of counselling memoranda to Parmelee concerning his rescheduling of work to accommodate union business; (2) restrictions placed by the Respondent on Parmelee's use of official time and access to telephones for union activity and the issuance of a memorandum concerning the official time restriction; and (3) the issuance of a memorandum to Parmelee concerning alleged discourteous conduct. As it concerns Parmelee, the complaint alleged that, by the former actions, the Respondent: (1) discriminated against Parmelee, in violation of section 7116(a)(1) and (2) of the Statute; (2) improperly implemented changes in Parmelee's conditions of employment, in violation of section 7116(a)(1) and (5); and (3) with respect to the restrictions on official time, also repudiated the parties' collective bargaining agreement, in violation of section 7116(a)(1) and (5). The Judge concluded that the Respondent improperly implemented changes in conditions of employment and repudiated the parties' agreement. The Judge also found that the Respondent had discriminated against Parmelee by issuing counselling memoranda concerning the rescheduling of work.(2) However, the Judge did not address the allegation that the Respondent discriminated against Parmelee in connection with the restrictions on the use of official time and telephone access. Finally, with respect to the Respondent's issuance of the memorandum regarding alleged discourteous conduct, the Judge found that Parmelee was not engaged in protected activities at the time when the alleged conduct occurred and, therefore, recommended dismissal of the allegation in the complaint that the Respondent discriminated against Parmelee in violation of section 7116(a)(1) and (2).
III. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel excepts to the Judge's: (1) failure to rule on the allegation that, by restricting Parmelee's use of official time and telephones and issuing a memorandum regarding his use of official time, the Respondent violated section 7116(a)(1) and (2) of the Statute; and (2) conclusion that the Respondent did not discriminate against Parmelee in issuing the memorandum regarding discourteous conduct. The General Counsel requests that both memoranda be expunged from Parmelee's records.
B. Respondent's Opposition
The Respondent claims that its restrictions on Parmelee's use of official time and telephone access did not constitute discrimination under section 7116(a)(2) of the Statute because the restrictions had "no harm to or affect on [him] in his capacity as an employee[.]" Opposition at 6. In particular, according to the Respondent, because its actions "affected the rights of the Union and one of its stewards purely in an official, representative capacity," the analytical framework for resolving alleged violations of section 7116(a)(2) set forth by the Authority in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), does not apply here.(3) Opposition at 3. Among other things, the Respondent claims that applying Letterkenny in this case "renders the second prong of the defense meaningless[]" because "[a] Respondent accused of committing the type of (a)(5) violations here will never be able to show that the same action would have been taken in the absence of protected activity . . . ." Exceptions at 5. The Respondent also claims that the Judge did not err in concluding that the issuance of the memorandum regarding discourteous conduct did not violate the Statute.
IV. Analysis and Conclusions
A. Restrictions on the Use of Official Time and Telephones
The Judge failed to address the allegations in the complaint that the Respondent's restrictions on Parmelee's use of official time and telephones and its issuance of the official time memo violated section 7116(a)(1) and (2) of the Statute. Moreover, the Judge failed to make the findings necessary for us to resolve these allegations. For example, the Judge did not address whether or how the Respondent's imposition of restrictions on Parmelee's use of official time affected Parmelee's conditions of employment, as required by section 7116(a)(2). The Judge also did not address whether the restrictions placed on Parmelee's use of telephones differed, in scope or timing, from restrictions placed on other employees or whether, on any other basis, the restrictions constituted unlawful discrimination.
Accordingly, we remand these aspects of the complaints to the Chief Administrative Law Judge for further action. On remand, the Judge should determine whether, based on existing evidence, the General Counsel established that the Respondent violated section 7116(a)(1) and (2) by its actions in connection with restricting Parmelee's official time and access to telephones. In this connection, the Judge may wish to direct the parties to file briefs addressing the appropriate framework for resolving these allegations, particularly in view of the Respondent's argument, noted above, that the Letterkenny framework does not apply in a case, such as this one, where the alleged violation results from a restriction on protected activity itself.
B. The Discourteous Conduct Memorandum
The Judge concluded that the Respondent did not violate section 7116(a)(1) and (2) by issuing to Parmelee the memorandum regarding alleged discourteous conduct because the memorandum was based on remarks made by Parmelee "at a time when [he] was performing his normal Body Shop duties as a rank and file employee." Judge's Decision at 11-12. However, under Letterkenny, a memorandum such as the one in dispute here may be found violative of the Statute even if it is based on conduct or remarks that did not occur during the time an employee is engaged in protected activity. The memorandum may be found unlawful if it is based on an employee's other or previously-occurring protected activities and if those other activities were a motivating factor in the Respondent's issuance of the memo. E.g., United States Customs Service, Region IV, Miami District, Miami, Florida, 36 FLRA 489, 495 (1990). In addition, under Letterkenny, the Respondent would have the opportunity to demonstrate that there was a legitimate justification for its action and that the same action would have been taken in the absence of protected activity.
The Judge did not address the connection, if any, between other protected activity and the Respondent's issuance of the memorandum. We are unable based on the record before us to determine whether the issuance of the memorandum constituted unlawful discrimination. Therefore, we will remand this aspect of the complaint to the Chief Administrative Law Judge for further action.
V. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor- Management Relations Statute, the United States Air Force Academy, shall:
1. Cease and desist from:
(a) Unilaterally changing conditions of employment of bargaining unit employees by prohibiting the wearing of coveralls outside the Logistics Distribution Transportation and Maintenance (LGDTM) compound, limiting Michael Parmelee's access to telephones, and restricting his official time, without first giving notice to the American Federation of Government Employees, Local 1867 (AFGE), the exclusive representative of certain of its employees, and allowing it the opportunity to bargain over such changes.
(b) Discriminating against Michael Parmelee by placing memoranda addressing the rescheduling of work in his Air Force personnel file in retaliation for his participation in activities protected by the Statute.
(c) Advising a unit employee that her problems began when she became associated with a union steward.
(d) Repudiating the existing collective bargaining agreement with AFGE by restricting the amount of time accorded Michael Parmelee for representational activities.
(e) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Restore the practices of allowing unit employees working in the LGDTM compound to wear coveralls to and from work and during their lunch period, and of allowing Michael Parmelee a reasonable amount of official time to conduct union activities and access during working hours to the telephones located in the LGDTM compound.
(b) Expunge from Michael Parmelee's Air Force personnel file the memoranda addressing the rescheduling of his work.
(c) Prior to changing conditions of employment, notify AFGE, the exclusive representative of the employees working in the LGDTM compound, and afford it the opportunity to bargain over the substance, impact, and manner of implementation of any contemplated changes.
(d) Honor the terms of the collective bargaining agreement currently in effect with AFGE.
(e) Post at the United States Air Force Academy, Colorado Springs, Colorado, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Superintendent of the United States Air Force Academy and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(f) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Denver Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
The remaining portions of the complaints in this case are remanded to the Chief Administrative Law Judge for further proceedings consistent with this decision.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY EMPLOYEES THAT:
WE WILL NOT unilaterally change conditions of employment of bargaining unit employees by prohibiting the wearing of coveralls outside the Logistics Distribution Transportation and Maintenance (LGDTM) compound, limiting Michael Parmelee's access to telephones, and restricting his official time use, without first giving notice to the American Federation of Government Employees, Local 1867 (AFGE), the exclusive representative of certain of our employees, and allowing it the opportunity to bargain over such changes.
WE WILL NOT discriminate against Michael Parmelee by placing memoranda addressing his rescheduling of work in his personnel file in retaliation for his participation in activities protected by the Statute.
WE WILL NOT advise a unit employee that her problems began when she became associated with a union steward.
WE WILL NOT repudiate the existing collective bargaining agreement with AFGE.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Statute.
WE WILL restore the practices of allowing unit employees working in the LGDTM compound to wear their coveralls to and from work and during their lunch period, and allowing Michael Parmelee a reasonable amount of official time to conduct union activities and access during working hours to the telephones located in the LGDTM compound.
WE WILL expunge from Michael Parmelee's personnel file the memoranda addressing the rescheduling of his work.
WE WILL, prior to changing conditions of employment, notify AFGE, the exclusive representative of the employees working in the LGDTM compound, and afford it the opportunity to bargain over the substance, impact, and manner of implementation of any contemplated changes.
WE WILL honor the terms of the collective bargaining agreement currently in effect with AFGE.
_______________________________
(Activity)
Dated:_______________ By:________________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204 and whose telephone is (303) 844-5224.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Judge who conducted the hearing in this case is no longer with the Authority.
2. No exceptions were filed to these conclusions or to the Judge's additional conclusions that the Respondent violated various portions of the Statute by: (1) issuing a memorandum to Parmelee concerning his rescheduling of work to accommodate union activity; (2) prohibiting Parmelee from wearing Air Force-issued coveralls when going off base during his lunch period; and (3) making certain statements to Parmelee's wife, a bargaining unit employee. As no exceptions were filed to these aspects of the Judge's decision, we will not address them further except to adopt the recommended order and notice to employees.
3. As a general matter, under the Letterkenny framework, the General Counsel bears the initial burden of establishing a prima facie case that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. A respondent may seek to rebut a prima facie showing by establishing, by a preponderance of the evidence, the affirmative defense that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken in the absence of protected activity.