[ v56 p950 ]
56 FLRA No. 160
U.S. DEPARTMENT OF THE AIR FORCE
437TH AIRLIFT WING
AIR MOBILITY COMMAND
CHARLESTON AIR FORCE BASE
CHARLESTON, SOUTH CAROLINA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1869
(Charging Party)
AT-CA-90669
_____
DECISION AND ORDER
November 30, 2000
_____
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1]
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel.
The complaint alleges that the Respondent engaged in unlawful discrimination against the Union Safety Representative, Thomas Kamenicky, in violation of section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) when it detailed Kamenicky to another area for one month and ordered him to undergo a "reasonable suspicion urinalysis" and "psychiatric evaluation." The Respondent's stated reason was that Kamenicky told one supervisor that another supervisor was "a stupid son-of-a-bitch" and that he would "like to shoot him in the back of the head with a rivet gun." ALJD at 8, 18. The Judge found that the General Counsel did not establish a prima facie case of discrimination by the Respondent's action, and recommended dismissal of this allegation of the complaint. The General Counsel excepts to this finding and conclusion. The Respondent filed an opposition to this exception.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, for the reasons below. [n2]
II. Background
At the time of the hearing, Kamenicky was a 24-year employee of the Respondent in the Sheet Metal Corrosion Shop and had been the Union safety representative since 1996.
The incident that resulted in the allegation under consideration here occurred on June 15, 1999, when Kamenicky was working under Staff Sergeant Charles Carter's supervision. Kamenicky and Carter got into a discussion about how the job was to be done and Carter told Kamenicky how he wanted it to be done. Kamenicky questioned Carter's decision, and Carter responded that they were just going to do it his way.
Kamenicky returned to the shop to get a rivet gun and met Technical Sergeant Stanley Simpson, another supervisor to whom Kamenicky sometimes reported, in the tool room at between 9:30 and 10:00 a.m. Simpson, observing that Kamenicky appeared to be upset, asked him how things were going. According to credited testimony, Kamenicky complained about "incompetent supervision," hesitated for a moment, and continued,
I probably shouldn't say this to you, but Sergeant Carter's a stupid son-of-a-bitch and I'd like to shoot him in the back of the head with a rivet gun.
AJLD at 8. Simpson reported this to Kamenicky's second line supervisor, Master Sergeant Dennis Ingold, at about 11:30 a.m., and that afternoon Ingold removed Carter from the flight line without telling him why. Nevertheless, Carter drove Kamenicky back to the shop from the flight line at the end of his work day. Carter [ v56 p951 ] told Kamenicky that he had been told that Kamenicky had turned in the safety reports and that he didn't think much of Kamenicky for doing that, and that he didn't appreciate having to get called up to Wing Safety.
Two days later, on June 17, Major Anthony Williams, Commander of the 437th Equipment Maintenance Squadron, gave Kamenicky a memorandum barring him from the building where he had been working in order "to allow management time to investigate an alleged incident between you and SSgt. Carter [sic] on 15 June 99." G.C. Exh. 16. Williams declined Kamenicky's request to have Union representation before signing an acknowledgment that he would be moved to a different section. Kamenicky remained on this detail for approximately one month, and was returned to his old job when, in Ingold's estimation, "time [had] allowed cooler heads to prevail." ALJD at 11 quoting Tr. at 226.
Also on June 17, Kamenicky was given a memorandum by Ingold referring him for a psychiatric evaluation and informing him that he was scheduled for a "reasonable suspicion urinalysis." ALJD at 12. [n3]
III. Judge's Decision
As noted, the Judge found various violations of the Statute and dismissed one allegation, to which the GC takes exception. The portion of the Judge's analysis and conclusions that is at issue relates to the detailing of Kamenicky, and testing him for drugs and psychological disorders. The Judge stated:
That these actions resulted essentially from Kamenicky's statement about wanting to shoot Sergeant Carter with a rivet gun is not totally unbelievable, and this appears to be enough for the Authority, which exercises considerable restraint in questioning an agency's assertion that the actions it took were based on security concerns, to exonerate Respondent.
ALJD at 15.
The Judge relied primarily on U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA 704, 712-14 (1999) (Leavenworth), which involved an allegation that the activity violated section 7116(a)(5) when it denied permission for the union president to enter the facility to represent a unit employee because he had been placed on "home duty" pending investigation of an allegation that he made statements inciting inmates and staff members to fight each other.
The Authority stated that an agency may refuse to honor a particular union designation of representative "where it can demonstrate `special circumstances' that warrant precluding a particular individual from serving in that capacity." Id. at 713. The Authority noted that a correctional facility "has special security concerns," where "internal security concerns are of _paramount importance.'" Id. at 714. The Authority concluded in that case that the Respondent had demonstrated "special circumstances" warranting its refusal to grant access for representational purposes.
The Judge stated that "arguably," Leavenworth is distinguishable because the Authority found that the correctional institution had special security concerns "that may not be present at other work locations," and that "internal security concerns are of paramount importance." ALJD at 16. The Judge declined to distinguish the case "since we are dealing here with a real and immediate situation rather than a generic condition[.]" Id. For that reason, "the comparison that must be made is with the actual facts of the cases." Id. at 16-17.
In comparing Leavenworth with this case, the Judge stated:
[T]he risk posed by Kamenicky's _rivet gun' statement appears to me rather slight. Yet, . . . it presented a more credible cause for concern than any risk that I can imagine arising from the union president's limited presence inside the Leavenworth facility, under escort or other appropriate safeguards. . . . Here, Kamenicky's anger had a specific target, and there was a finite possibility of serious injury if he acted out his expressed desire.
Id. at 17.
The Judge stated that he did not believe management officials thought there was much likelihood that Kamenicky would act out his threat. Rather, he relied on testimony by management "that they felt obligated . . . to improvise a series of prompt steps to minimize the possibility of a worst-case scenario." ALJD at 17. In contrast to Leavenworth, in which the Judge said "the agency got by with nothing more than a bare assertion that its security concerns justified its actions," Respondent here "at least took steps that had a plausible connection with its asserted security concerns." Id. [ v56 p952 ]
The Judge said that while "[o]ne may . . . question the efficacy of the steps Respondent took to ensure Carter's safety and to prevent any other _erratic behavior' by Kamenicky[,]" the officials "at the very least . . . thought they risked criticism if they appeared to ignore the potential for harm." Id. at 18. The Judge concluded,
using Leavenworth as a relevant basis for comparison if not as a controlling precedent, the General Counsel has not established a prima facie case that Respondent engaged in unlawful discrimination when it took these nondisciplinary measures.
Id.
IV. Positions of the Parties
A. Exceptions
1. Leavenworth Does Not Apply
The General Counsel excepts to the Judge's finding that Leavenworth is a "precedent to contend with in section 7116(a)(2) cases." ALJD at 16 n.16. The basis for this exception is that Leavenworth concerned an allegation that denying access to a union officer violated section 7116(a)(5) of the Statute. The General Counsel asserts that Leavenworth is not applicable to this case, which involves a section 7116(a)(2) allegation.
2. Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny)
The General Counsel asserts that the Authority's decision in Letterkenny established the correct analytical framework for deciding this case. The General Counsel asserts that it has established a prima facie case under this framework by showing that Kamenicky's protected activity was a motivating factor in the Respondent's treatment of him. The evidence relied upon is that Simpson waited an hour to report Kamenicky's statement; management failed to inform Carter of the threat; the Respondent allowed Kamenicky to remain under Carter's supervision for the rest of the day; and it waited two days to detail Kamenicky out of Carter's work area. The General Counsel claims, therefore, that the facts show that there was no real threat to anyone, and management knew it.
Since there was no real threat, the General Counsel contends, management failed to establish a legitimate reason for its action, required by the Letterkenny framework once the General Counsel has established a prima facie case.
B. Opposition to Exceptions
The Respondent contends that the General Counsel failed to establish the elements of a prima facie case, and that the General Counsel is merely contesting the Judge's credibility findings.
The Respondent argues that Leavenworth applies, "since we are dealing with an actual serious situation on a military installation." Opposition at 3. It contends that the special security needs of a military installation constitute special circumstances.
The Respondent states that management had good reason for its action. The circumstances cited include the threat to Sergeant Simpson; the fact that this was Kamenicky's "second incident of erratic behavior" within six days, id. at 4; [n4] that Simpson had known Kamenicky for six years and had never seen this type of behavior by him; and that Ingold's "clear intent was to identify the basis for Mr. Kamenicky's otherwise unexplainable erratic behavior[.]" Id. Moreover, according to the Respondent the fact that Carter was detailed out of the area immediately "is a clear indication that Sergeant Ingold was truly concerned about the threatening comments towards Sergeant Carter and the potential for disruption to the safety and security to those in the duty section." Id. at 5. [ v56 p953 ]
V. Analysis and Conclusions
A. Analytical Framework
To establish a prima facie case of a section 7116(a)(2) violation, the burden is on the General Counsel to show by a preponderance of the evidence 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 activity's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. Letterkenny, 35 FLRA at 118.
If the General Counsel establishes a prima facie case, an agency will not be found to have violated section 7116(a)(2) if it can demonstrate, by a preponderance of the evidence, that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken even in the absence of protected activity. Id.
Leavenworth, on the other hand, has been used only in section 7116(a)(5) cases. The Authority has not recognized the "special circumstances" standard of Leavenworth as a defense to a section 7116(a)(2) allegation; "special circumstances" cannot justify discrimination. Thus, the existence of "special circumstances" permitting an agency to limit a union's choice of representatives under section 7116(a)(5), and the existence of a valid defense to a charge of discrimination under section 7116(a)(2) and Letterkenny are distinct analytical concepts. [n5]
We adopt the Judge's conclusion that the Respondent did not violate section 7116(a)(2) by its discipline and testing of Kamenciky, but we reach this conclusion based on the application of the analysis outlined in Letterkenny, instead of Leavenworth.
B. Application of Analytical Framework
Applying Letterkenny, to make a prima facie case the General Counsel must establish by a preponderance of the evidence that the employee's protected activity was a motivating factor in the Respondent's treatment of him. The facts, and the Judge's credibility resolutions, provide ample basis for finding that the General Counsel has not established by a preponderance of the evidence that Kamenicky's protected activity was a motivating factor.
The Judge credited testimony that the Respondent acted to protect its employees in the face of a threat by an employee. Removing Kamenicky from contact with the subject of his threat had an obvious, plausible connection with safety and security concerns of management. Detailing Kamenicky and ordering psychological and drug testing also were appropriate responses to Kamenicky's rivet-gun threat on June 15, against the background of his earlier outburst on June 9. Not only did the two incidents occur within a few days of each other, but uncontradicted testimony indicates that Simpson had known Kamenicky for six years and had never seen this type of behavior by him.
Based on the foregoing, we adopt the Judge's conclusion that the General Counsel failed to establish a prima facie case. We reach this conclusion because the preponderance of the evidence fails to establish that Kamenicky's Union activity was a motivating factor for ordering the detail, the drug test and the psychiatric evaluation.
VI. Order
Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of the Air Force, 437th Airlift Wing, Air Mobility Command, Charleston Air Force Base, Charleston, South Carolina, shall:
1. Cease and desist from:
(a) Discriminating against Thomas Kamenicky and interfering with, restraining, or coercing employees by disciplining Thomas Kamenicky or any representative of the American Federation of Government Employees, Local 1869, the exclusive representative of a unit of employees (the Union), for protected activity engaged in while performing union representational duties.
(b) Forcing any employees to attend meetings at which they are admonished for filing formal safety hazard reports on behalf of the Union.
(c) Telling any employees that the results of their filing formal safety hazard reports are not appreciated and that they are regarded less favorably because they did so.
(d) Telling any employees that their being referred for examination of their erratic behavior is not [ v56 p954 ] personal just as an employee stated that his filing of safety hazard reports was not personal.
(e) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Rescind and expunge from its files all records of, and references to, the reprimand given to Thomas Kamenicky on August 16, 1999.
(b) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 1869, are located, 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 Commanding Officer of the 437th Airlift Wing, and they 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.
(c) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Atlanta 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.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the U.S. Department of the Air Force, 437th Airlift Wing, Air Mobility Command, Charleston Air Force Base, Charleston, South Carolina, has violated the Federal Service Labor- Management Relations Statute, and has ordered us to post and abide by this Notice.
We hereby notify bargaining unit employees that:
WE WILL NOT discriminate against Thomas Kamenicky and interfere with, restrain, or coerce employees by disciplining Thomas Kamenicky or any representative of the American Federation of Government Employees, Local 1869, the exclusive representative of a unit of employees (the Union), for protected activity engaged in while performing union representational duties.
WE WILL NOT force any employees to attend meetings at which they are admonished for filing formal safety hazard reports on behalf of the Union.
WE WILL NOT tell any employees that the results of their filing formal safety hazard reports are not appreciated and that they are regarded less favorably because they did so.
WE WILL NOT tell any employees that their being referred for examination of their erratic behavior is not personal just as an employee stated that his filing of safety hazard reports was not personal.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL rescind and expunge from our files all records of, and references to, the reprimand given to Thomas Kamenicky on August 16, 1999.
________________________
Activity)
Date:__________By:___________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: Marquis Two Tower, Suite 701, 285 Peachtree Center Avenue, Atlanta, GA 30303, and whose telephone number is: (404) 331-5212.
File 1: Authority's Decision in 56 FLRA No.
160
File 2: ALJ's Decision
Footnote # 1 for 56 FLRA No. 160 - Authority's Decision
Member Pope did not participate in this decision.
Footnote # 2 for 56 FLRA No. 160 - Authority's Decision
The complaint also alleges that the Respondent violated section 7116(a)(1) of the Statute by: (1) ordering Kamenicky to attend a meeting at which he was required to defend the safety reports that he had filed; (2) commenting to Kamenicky through its agent that referring Kamenicky for counseling and for urinalysis was nothing personal, just like when Kamenicky said that the safety reports he had made were not personal; and (3) its agent telling Kamenicky that he did not appreciate Kamenicky's having caused Wing Safety to contact him, and that the agent did not think much of Kamenicky any more.
The complaint alleges in addition that the Respondent violated section 7116(a)(2) by its reprimand of Kamenicky.
The Judge found that the Respondent violated the Statute in regard to the foregoing allegations. As no exceptions were filed to these findings, the Authority adopts them without precedential significance pursuant to section 2423.41 of the Authority's Regulations. See, e.g., Federal Bureau of Prisons, South Central Region, Dallas Texas, 55 FLRA 1250 (2000).
Footnote # 3 for 56 FLRA No. 160 - Authority's Decision
According to credited testimony, Kamenicky responded saying, "you've got to be kidding," ALJD at 12, and Ingold then said, "don't take it personal, just like you say your safety write-ups aren't personal." Id. This remark by Ingold was the subject of one of the section 7116(a)(1) violations found by the Judge to which the Respondent did not file exceptions.
Footnote # 4 for 56 FLRA No. 160 - Authority's Decision
By way of background, the incident referred to occurred on June 9 when Kamenicky complained to Ingold that Downs and Carter should be "busted" because of their safety violations. ALJD at 5. According to credited testimony, Ingold was talking to somebody
when Kamenicky appeared, in an agitated state, screaming, "Where's Sergeant Downs?" Ingold answered that Downs was [on] TDY. Kamenicky replied that Downs was a "lying son-of-a-bitch, [and] when I get through with him and Carter, they'll be lucky to have one stripe left." Ingold turned to leave, and Kamenicky said, "you'll find out, too, you wait until . . . Major Williams comes down looking for your ass."
Id. Kamenicky later that same afternoon went to Ingold's office and apologized for his outburst. He told Ingold that he knew he should not have acted in that manner but that he was very frustrated about working on these issues. Ingold responded that he understood how Kamenicky would be frustrated.
Footnote # 5 for 56 FLRA No. 160 - Authority's Decision
Member Cabaniss would note, however, that in some cases, the types of factors indicative of "special circumstances" might also support a conclusion that protected activity was not a motivating factor for an agency's action, or that the agency would have taken the same action even absent the protected activity.