[ v06 p607 ]
06:0607(108)CA
The decision of the Authority follows:
6 FLRA No. 108
ARMY AND AIR FORCE EXCHANGE SERVICE
(AAFES), FORT CARSON, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1345
Charging Party
Case No. 7-CA-489
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
THE ATTACHED RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT
HAD ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS. NO EXCEPTIONS WERE FILED.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 C.F.R. 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THE ABSENCE OF EXCEPTIONS THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. /1/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE ARMY AND AIR FORCE EXCHANGE SERVICE
(AAFES), FT. CARSON, COLORADO SHALL:
(1) CEASE AND DESIST FROM:
(A) THREATENING EMPLOYEES THAT THERE WILL BE A REDUCTION IN FORCE IF
THEY CONTINUE TO FILE UNFAIR LABOR PRACTICE CHARGES OR GRIEVANCES UNDER
THE NEGOTIATED GRIEVANCE MACHINERY.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(2) TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
POLICIES OF THE STATUTE:
(A) POST AT ITS FACILITIES AT ARMY AND AIR FORCE EXCHANGE SERVICE
(AAFES), FT. CARSON, 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 GENERAL MANAGER OF AAFES, AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER
IN CONSPICUOUS PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
THE GENERAL MANAGER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION VII, FEDERAL LABOR
RELATIONS AUTHORITY, SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET,
KANSAS CITY, MISSOURI 64105, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., SEPTEMBER 18, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT THREATEN OUR EMPLOYEES THAT THERE WILL BE A REDUCTION IN
FORCE IF THEY CONTINUE TO FILE UNFAIR LABOR PRACTICE CHARGES, OR
GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE MACHINERY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
AGENCY OR ACTIVITY
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 THE NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, SUITE
680, CITY CENTER SQUARE, 1100 MAIN STREET, KANSAS CITY, MISSOURI 64105.
-------------------- ALJ DECISION FOLLOWS --------------------
LUTHER G. JONES, ESQ.
FOR THE RESPONDENT
GAVIN LODGE, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON JUNE 6, 1980
BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
KANSAS CITY, MISSOURI REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED
ON SEPTEMBER 9, 1980 AT DENVER, COLORADO.
THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATION STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (HEREIN CALLED
THE ACT.) A CHARGE WAS FILED ON MARCH 31, 1980 BY AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1345 (HEREIN CALLED THE UNION)
AGAINST ARMY AND AIR FORCE EXCHANGE SERVICE (AAFES), FT. CARSON,
COLORADO, (HEREIN CALLED RESPONDENT). BASED UPON SAID CHARGE THE
COMPLAINT HEREIN ALLEGED THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF
THE ACT BY, ON OR ABOUT JANUARY 23, 1980, TELLING TWO EMPLOYEE UNION
REPRESENTATIVES THAT IF THEY CONTINUED TO FILE GRIEVANCES, A REDUCTION
IN FORCE WOULD OCCUR AND EVERYONE WOULD BE LAID OFF.
A RESPONSE WAS FILED BY RESPONDENT ON JUNE 16, 1980 WHEREIN IT DENIED
THE COMMISSION OF ANY UNFAIR LABOR PRACTICES.
BOTH PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. BRIEFS WERE FILED WITH THE UNDERSIGNED WHICH
HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING. I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN, AND STILL IS,
THE COLLECTIVE BARGAINING REPRESENTIVE OF RESPONDENT'S EMPLOYEES IN AN
APPROPRIATE UNIT.
2. AT ALL TIME MATERIAL HEREIN, AND ON JANUARY 23, 1980, BOTH THE
UNION AND RESPONDENT WERE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT
WHICH CONTAINED VARIOUS CONDITIONS OF EMPLOYMENT INCLUDING, INTER ALIA,
A GRIEVANCE PROCEDURE FOR THE PRESENTATION AND RESOLUTION OF GRIEVANCES.
3. PRIOR TO JANUARY 1980 MANAGEMENT MET WITH UNION REPRESENTATIVES
ON MANY OCCASIONS TO CONSIDER GRIEVANCES FILED AGAINST THE EMPLOYER.
DURING THE SIX MONTH PERIOD PRIOR TO THE AFOREMENTIONED DATE ABOUT TEN
(10) GRIEVANCES WERE FILED AS WELL AS NUMEROUS UNFAIR LABOR PRACTICE
CHARGES. WHILE MANY SUCH GRIEVANCES WERE RESOLVED, MANAGEMENT WAS
DISTURBED BY THE REFUSAL OF THE UNION OFFICIALS TO ACCEPT THEIR POSITION
ON ISSUES AND BY THE FACT THAT THE UNION PERSISTED IN ITS DEMANDS.
RELATIONS BETWEEN THE PARTIES WERE SOMEWHAT STRAINED BY REASON THEREOF
AS WELL AS BY RESPONDENT'S DISSATISFACTION WITH THE UNION'S PURSUING
GRIEVANCES AND FILING UNFAIR LABOR PRACTICE CHARGES.
4. AT THE REQUEST OF THE UNION REPRESENTATIVES A MEETING WAS HELD
WITH MANAGEMENT AT ABOUT 2:00 P.M. ON JANUARY 23, 1980 TO DISCUSS A
GRIEVANCE FILED BY ANNELIESE JACKSON, AN EMPLOYEE. THE SAID GRIEVANCE
INVOLVED THE RELOCATION OF THE BEVERAGE SHOP AT THE MAIN EXCHANGE AND
ITS ATTENDANT AFFECT UPON THIS EMPLOYEE. PRESENT AT THIS MEETING, WHICH
WAS HELD AT THE OFFICE OF RESPONDENT'S MANAGER, WERE THE FOLLOWING:
STEWART FOGELMAN-- GENERAL MANAGER OF THE EXCHANGE
PHILIP SCHUNK-- PERSONNEL MANAGER OF THE EXCHANGE
CAROLYN RAINS-- PRESIDENT OF THE UNION AND AN EMPLOYEE
MARLENE MOOSMAN-- 4TH VICE-PRESIDENT AS WELL AS STEWARD OF THE UNION
AND AN EMPLOYEE
5. AT THE DISCUSSION OF THE JACKSON GRIEVANCE, DURING THE AFORESAID
MEETING, FOGELMAN STATED THAT MANAGEMENT FELT IT DID NOT HAVE TO MEET
AND CONFER WITH THE UNION CONCERNING POSITION CHANGES INVOLVING ONLY ONE
OR TWO EMPLOYEES RATHER THAN THE ENTIRE BARGAINING UNIT. HOWEVER, THE
MANAGER REMARKED THAT THE EMPLOYER HAD THE RIGHT TO MOVE, CLOSE, OR DO
OTHERWISE. THE UNION OFFICIALS REPLIED THAT MANAGEMENT WOULD BE
REQUIRED, HOWEVER, TO CONSULT WITH THE UNION.
DURING THE MEETING, WHICH LASTED ABOUT ONE HOUR, FOGELMAN POINTED HIS
FINGER AT RAINS AND STATED, IN SUBSTANCE, THAT IF "YOU PEOPLE KEEP
FILING" THESE CASES OR GRIEVANCES, THERE WOULD BE A REDUCTION IN FORCE;
THAT RESPONDENT WOULD LAY EVERYBODY OFF, AND THERE WOULD BE NOTHING LEFT
TO TALK ABOUT. RAINS INQUIRED IF THAT WAS A THREAT, BUT THE MANAGER DID
NOT REPLY. WHEREUPON EMPLOYEE-UNION AGENT RAINS REMARKED THAT
FOGELMAN'S STATEMENT CONSTITUTED AN UNFAIR LABOR PRACTICE AND THEY MIGHT
FILE A CHARGE WITH RESPECT THERETO. FOGELMAN SAID RAINS SHOULD DO WHAT
SHE HAS TO ABOUT THE MATTER. /2/
CONCLUSIONS
UNDER SECTION 7116(A)(1) OF THE ACT HEREIN IT IS AN UNFAIR LABOR
PRACTICE FOR AN AGENCY TO "INTERFERE WITH, RESTRAIN, OR COERCE ANY
EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THIS
CHAPTER." THUS, THE SOLE ISSUE FOR DETERMINATION /3/ IS WHETHER THE
STATEMENT MADE BY FOGELMAN ON JANUARY 23, 1980 TO THE UNION
REPRESENTATIVES WAS VIOLATIVE OF THE ACT.
A SIMILAR SITUATION TO THE CASE AT BAR AROSE IN FEDERAL AVIATION
ADMINISTRATION, AIR TRAFFIC CONTROL TOWER, GREATER PITTSBURGH AIRPORT,
PITTSBURGH, PENNSYLVANIA, A/SLMR NO. 920. IN THE CITED CASE AN
EMPLOYEE, WHO HAD FILED AN INFORMAL GRIEVANCE, WAS TOLD BY MANAGEMENT
THAT IF HE FILED A FORMAL GRIEVANCE THE EMPLOYER WOULD MAKE A CHANGE IN
SCHEDULING ASSIGNMENT. THE SAID CHANGE WAS ADMITTEDLY UNFAVORABLE TO
THE EMPLOYEE. IT WAS HELD THAT SUCH A STATEMENT WAS VIOLATIVE OF
SECTION 19(A)(1) OF THE ORDER AND CONSTITUTED INTERFERENCE, RESTRAINT
AND COERCION. I CONSIDER THE FAA CASE, SUPRA, TO BE CONTROLLING.
INDEED, THE THREAT TO EMPLOYEES TO IMPOSE A REDUCTION IN FORCE IF THEY
CONTINUE TO FILE GRIEVANCES OR UNFAIR LABOR PRACTICE CHARGES IS
DECIDEDLY COERCIVE. MOREOVER, APART FROM THE OBVIOUS RESTRAINING EFFECT
OF SUCH A STATEMENT, IT MANIFESTLY INTERFERES WITH THE RIGHT OF
EMPLOYEES TO INVOKE THE NEGOTIATED GRIEVANCE MACHINERY. ACCORDINGLY, I
AM CONSTRAINED TO CONCLUDE THAT THE STATEMENT MADE BY RESPONDENT'S
MANAGER, STEWART FOGELMAN, TO EMPLOYEES CAROLYN RAINS AND MARLENE
MOOSMAN ON JANUARY 23, 1980 CONSTITUTED A THREAT WHICH WAS VIOLATIVE OF
SECTION 7116(A)(1) OF THE ACT.
HAVING FOUND THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE ACT
BY THREATENING EMPLOYEES THAT THERE WOULD BE A REDUCTION IN FORCE IF THE
SAID INDIVIDUALS CONTINUED TO FILE UNFAIR LABOR PRACTICE CHARGES OR
GRIEVANCES, I RECOMMEND THE AUTHORITY ISSUE THE FOLLOWING ORDER.
ORDER
PURSUANT TO SECTION 7118(E) OF THE FEDERAL LABOR-MANAGEMENT RELATIONS
STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT IS HEREBY
ORDERED THAT THE ARMY AND AIR FORCE EXCHANGE SERVICE (AAFES), FT.
CARSON, COLORADO, SHALL:
(1) CEASE AND DESIST FROM:
(A) THREATENING EMPLOYEES THAT THERE WOULD BE A REDUCTION IN FORCE IF
THEY CONTINUED TO
FILE UNFAIR LABOR PRACTICE CHARGES OR GRIEVANCES UNDER THE NEGOTIATED
GRIEVANCE MACHINERY.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE ACT.
(2) TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
POLICIES OF THE ACT.
(A) POST AT ITS FACILITIES AT ARMY AND AIR FORCE EXCHANGE SERVICE
(AAFES), FT. CARSON,
COLORADO, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO
BE FURNISHED BY THE
FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE
GENERAL MANAGER OF AAFES, AND SHALL BE POSTED AND MAINTAINED BY HIM
FOR 60 CONSECUTIVE DAYS
THEREAFTER IN CONSPICUOUS PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE
GENERAL MANAGER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY
HEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: NOVEMBER 24, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT THREATEN OUR EMPLOYEES THAT THERE WILL BE A REDUCTION IN
FORCE IF THEY CONTINUE TO FILE UNFAIR LABOR PRACTICE CHARGES, OR
GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE MACHINERY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED UNDER
THE ACT.
AGENCY OR ACTIVITY
DATED: BY:
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 THE NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, SUITE 680, CITY
CENTER SQUARE, 1100 MAIN STREET, KANSAS CITY, MISSOURI 64105.
--------------- FOOTNOTES: ---------------
/1/ SEE, E.G., UNITED STATES DEPARTMENT OF TREASURY, BUREAU OF
ALCOHOL, TOBACCO, AND FIREARMS, CHICAGO, ILLINOIS, 3 FLRA NO. 116
(1980).
/1/ WHILE BOTH FOGELMAN AND SCHUNK DENY THAT THE MANAGER MADE SUCH A
THREAT, THE RECITAL HEREIN OF WHAT OCCURRED REPRESENTS THE CREDIT
VERSION THEREOF. TESTIMONY BY BOTH RAINS AND MOOSMAN CONCERNING THE
MEETING WAS DETAILED, PRECISE, AND CORROBORATED IN RESPECT TO NEARLY ALL
RELEVANT AND MATERIALS STATEMENTS. MOREOVER, I WAS IMPRESSED BY THE
DIRECTNESS OF SUCH TESTIMONIES. CONTRARIWISE, THERE WAS SOME
INCONSISTENCY IN THE MANAGER'S VERSIONS OF THE MEETING. THUS, IN HIS
STATEMENT FOGELMAN AVERS HE DID NOT KNOW HOW LONG THE MEETING LASTED,
WHEREAS NEARLY SIX MONTHS LATER, AT THE HEARING, HE TESTIFIED IT
CONSUMED 30 MINUTES. MOREOVER, THE MANAGER'S AFFIDAVIT (G.C. EXHIBIT 2)
REFLECTS HIS STATEMENT THAT HE MAY HAVE MENTIONED A REDUCTION IN FORCE
MIGHT ENSUE IF PRODUCTIVITY DID NOT IMPROVE. IN SUM, I FIND LESS
IMPRECISENESS IN THE VERSIONS OF THE MEETING ON JANUARY 23, 1980 AS
ADDUCED BY THE UNION REPRESENTATIVES.
/3/ ALTHOUGH RESPONDENT DOES NOT CONTEND AN ISSUE OF LAW EXISTS, IT
DOES MAINTAIN THAT THE GENERAL COUNSEL HAS NOT PROVEN ITS CASE BY A
PREPONDERANCE OF THE EVIDENCE. IT INSISTS, FURTHER, THAT THE WEIGHT OF
THE EVIDENCE IS "DEAD-EVEN," AND THUS THE TEST OF PREPONDERANCE HAS NOT
BEEN MET. AS I HAVE INDICATED SUPRA, GREATER WEIGHT HAS BEEN ACCORDED
TO THE UNION WITNESSES' TESTIMONY RESULTING IN THE FACTUAL DETERMINATION
AS HERETOFORE SET FORTH.