[ v06 p678 ]
06:0678(116)CA
The decision of the Authority follows:
6 FLRA No. 116 FEDERAL AVIATION ADMINISTRATION ST. LOUIS TOWER BRIDGETON, MISSOURI Respondent and PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, M.E.B.A. (AFL-CIO), LOCAL 352 /1/ Charging Party Case No. 7-CA-436 DECISION AND ORDER THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT FEDERAL AVIATION ADMINISTRATION, ST. LOUIS TOWER (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. THEREAFTER, THE GENERAL COUNSEL AND THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S RECOMMENDED DECISION AND ORDER. PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 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 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS. /2/ 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 FEDERAL AVIATION ADMINISTRATION, ST. LOUIS TOWER, BRIDGETON, MISSOURI, SHALL: 1. CEASE AND DESIST FROM: (A) DISCIPLINING MR. JAMES STACK, OR ANY OTHER REPRESENTATIVE OF PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, M.E.B.A. (AFL-CIO), AN INVESTIGATORY INTERVIEW WHICH MAY RESULT IN DISCIPLINARY ACTION AGAINST THE UNIT EMPLOYEE. (B) REQUIRING MR. VINCENT MICCICHE, OR ANY OTHER UNIT EMPLOYEE, TO TAKE PART IN AN EXAMINATION, INTERVIEW OR MEETING WHICH THE EMPLOYEE REASONABLY BELIEVES MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE WITHOUT EFFECTIVE UNION REPRESENTATION BY PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, M.E.B.A. (AFL-CIO), LOCAL 352, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE EMPLOYEE. (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND NECESSARY TO EFFECTUATE THE POLICIES OF THE STATUTE: (A) EXPUNGE FROM MR. STACK'S PERSONNEL FILES ALL RECORDS OF THE ORAL REPRIMAND GIVEN TO HIM ON NOVEMBER 13, 1979, AND ACKNOWLEDGE THE REMOVAL TO MR. STACK IN WRITING. (B) POST AT THE ST. LOUIS TOWER, BRIDGETON, MISSOURI, COPIES OF THE ATTACHED NOTICE. COPIES OF SAID NOTICE, TO BE FURNISHED BY THE REGIONAL DIRECTOR FOR REGION VII, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE POSTED BY IT IMMEDIATELY UPON RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL. (C) NOTIFY THE REGIONAL DIRECTOR OF REGION VII, SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET, KANSAS CITY, MISSOURI 64105, IN WRITING, WITHIN 30 DAYS FROM THE DAY OF THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH. ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 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 WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT DISCIPLINE MR. JAMES STACK, OR ANY OTHER PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION REPRESENTATIVE, BECAUSE OF HIS ACTIVITIES IN REPRESENTING A UNIT EMPLOYEE AT AN INVESTIGATORY INTERVIEW WHICH MAY RESULT IN DISCIPLINARY ACTION AGAINST THE UNIT EMPLOYEE. WE WILL NOT REQUIRE MR. VINCENT MICCICHE, OR ANY OTHER UNIT EMPLOYEE, TO TAKE PART IN AN EXAMINATION, INTERVIEW OR MEETING WHICH THE EMPLOYEE REASONABLY BELIEVES MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE WITHOUT EFFECTIVE UNION REPRESENTATION BY PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, M.E.B.A. (AFL-CIO), LOCAL 352, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE EMPLOYEE. 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 STATUTE. WE WILL EXPUNGE FROM MR. STACK'S PERSONNEL FILES ALL RECORDS OF THE ORAL REPRIMAND GIVEN TO HIM ON NOVEMBER 13, 1979, AND ACKNOWLEDGE THE REMOVAL TO STACK IN WRITING. (AGENCY OR ACTIVITY) DATED: BY: (SIGNATURE) 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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR OF REGION VII, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET, KANSAS CITY, MISSOURI 64105, AND WHOSE TELEPHONE NUMBER IS: (816) 374-2199. -------------------- ALJ DECISION FOLLOWS -------------------- JOHN W. WEST, ESQUIRE FOR THE RESPONDENT JOHN J. RUBIN, ESQUIRE FOR THE GENERAL COUNSEL MR. GARY W. EADS FOR THE CHARGING PARTY BEFORE: BURTON S. STERNBURG ADMINISTRATIVE LAW JUDGE DECISION STATEMENT OF THE CASE THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG., VOL. 45, NO. 12, JANUARY 11, 1980, 5 C.F.R.CHAPTER XIV, PART 2411, ET SEQ. PURSUANT TO AN AMENDED CHARGE FIRST FILED ON FEBRUARY 19, 1980, BY (AFL-CIO), LOCAL 352, (HEREINAFTER CALLED THE UNION OR PATCO), A COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON MAY 22, 1980, BY THE ACTING REGIONAL DIRECTOR FOR REGION VII, FEDERAL LABOR RELATIONS AUTHORITY, KANSAS CITY, MISSOURI. THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE FEDERAL AVIATION ADMINISTRATION, ST. LOUIS TOWER, BRIDGETON, MISSOURI, (HEREINAFTER CALLED THE RESPONDENT OR FAA), VIOLATED SECTIONS 7116(A)(1), (2) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, (HEREINAFTER CALLED THE STATUTE OR ACT), BY VIRTUE OF ITS ACTIONS IN (1) DENYING AN EMPLOYEE EFFECTIVE UNION REPRESENTATION AT AN INVESTIGATORY EXAMINATION AND (2) REPRIMANDING A UNION REPRESENTATIVE FOR ATTEMPTING TO REPRESENT THE EMPLOYEE AT THE INVESTIGATORY EXAMINATION. A HEARING WAS HELD IN THE CAPTIONED MATTER ON AUGUST 21, 1980, IN ST. LOUIS, MISSOURI. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE RELEVANT EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN. GENERAL COUNSEL MADE A POST HEARING ARGUMENT AND THE RESPONDENT SUBMITTED A POST-HEARING BRIEF, BOTH OF WHICH HAVE BEEN DULY CONSIDERED. UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATIONS. FINDINGS OF FACT THE UNION IS THE CERTIFIED EXCLUSIVE REPRESENTATIVE OF RESPONDENT'S AIR TRAFFIC CONTROLLERS LOCATED AT THE ST. LOUIS TOWER, BRIDGETON, MISSOURI, AND A PARTY TO A COLLECTIVE BARGAINING AGREEMENT COVERING SUCH EMPLOYEES. ARTICLE 6, SECTION 1, OF THE AGREEMENT PROVIDES IN PERTINENT PART AS FOLLOWS: EMPLOYEE REPRESENTATION NO DISCIPLINARY ACTION MAY RESULT FROM A MEETING BETWEEN AN EMPLOYEE AND HIS SUPERVISOR AND/OR MANAGEMENT OFFICIAL UNLESS THE EMPLOYEE IS ADVISED THAT SUCH MEETING IS FOR THE PURPOSE OF DISCUSSING DISCIPLINE OR POTENTIAL DISCIPLINE, AND THE EMPLOYEE IS ALLOWED UNION REPRESENTATION, IF HE SO DESIRES. ON NOVEMBER 15, 1979, VINCENT MICCICHE, AN AIR TRAFFIC CONTROLLER, WAS AT WORK IN THE ST. LOUIS TOWER. HIS SUPERVISOR AT THAT TIME WAS MR. RICKY BAIRD. DURING THE COURSE OF HIS SHIFT, MR. MICCICHE, WHO HAD EARLIER UNSUCCESSFULLY REQUESTED RELIEF FROM WORK DUE TO ILLNESS, BECAME ENGAGED IN AN ALTERCATION WITH A FELLOW COMPTROLLER OVER THE USE OF AIR SPACE FOR INCOMING AND DEPARTING FLIGHTS. THE ALTERCATION WAS MARKED BY MR. MICCICHE SHOUTING OBSCENITIES AT HIS FELLOW COMPTROLLER. UPON BEING SUBSEQUENTLY RELIEVED FROM HIS POSITION, MR. MICCICHE LEFT THE CONTROL TOWER AND TOOK A SEAT IN THE "BREAK ROOM." WHILE IN THE "BREAK ROOM," MR. MICCICHE CONTACTED MR. JAMES STACK, WHO WAS THEN PRESIDENT OF LOCAL 352, AND COMPLAINED ABOUT HAVING HIS SICK LEAVE REQUEST DENIED BY MR. BAIRD. MR. STACK INFORMED MR. MICCICHE THAT HE WOULD CHECK THE MATTER OUT. APPROXIMATELY 10 TO 15 MINUTES AFTER MR. MICCICHE HAD BEEN IN THE "BREAK ROOM" HE WAS APPROACHED BY MR. BAIRD AND INFORMED THAT HE, MR. BAIRD, WANTED TO HOLD A COUNSELING SESSION WITH HIM. HE WAS FURTHER INFORMED BY MR. BAIRD THAT POSSIBLE DISCIPLINARY ACTION COULD RESULT AND THAT HE, MR. MICCICHE, SHOULD GET A UNION REPRESENTATIVE TO ACCOMPANY HIM TO THE MEETING. MR. MICCICHE THEN CONTACTED MR. STACK AND REQUESTED HIM TO REPRESENT HIM AT THE SCHEDULED MEETING. MR. STACK CONSENTED TO BE HIS REPRESENTATIVE AND ACCOMPANIED MR. MICCICHE TO THE OFFICE WHICH MR. BAIRD HAD DESIGNATED FOR THE MEETING. THE MEETING STARTED OUT WITH MR. STACK REQUESTING A POSTPONEMENT ON THE GROUND THAT MR. MICCICHE WAS NOT FEELING WELL AND HAD EARLIER REQUESTED SICK LEAVE. UPON HAVING THE REQUEST DENIED, MR. STACK THEN INQUIRED WHETHER POSSIBLE DISCIPLINE COULD RESULT FROM THE MEETING. MR. BAIRD REPLIED IN THE AFFIRMATIVE. MR. BAIRD THEN INFORMED MR. MICCICHE THAT HE WAS BEING CHARGED WITH USING EXCESSIVE AND ABUSIVE LANGUAGE AND CREATING A DISTURBANCE IN THE CONTROL ROOM. MR. MICCICHE RESPONDED THAT HE HAD ATTEMPTED TO USE THE LAND-LINE TO COMMUNICATE WITH THE OTHER AIR TRAFFIC CONTROLLER BUT THE LINE WAS BUSY. /3/ MR. BAIRD TOLD MR. MICCICHE THAT HE DID NOT CONSIDER THE USE OF THE LAND-LINE PERTINENT TO WHAT HE WAS ABOUT TO SAY TO MR. MICCICHE BUT THAT HE WOULD LOOK INTO THE MATTER. MR. STACK INTERRUPTED AND SUGGESTED THAT MR. BAIRD CHECK THE TAPES OF THE LAND-LINE BEFORE PROCEEDING ANY FURTHER WITH THE MEETING. MR. BAIRD MADE NO RESPONSE TO MR. STACK'S SUGGESTION AND CONTINUED WITH THE MEETING. WHEREUPON, MR. STACK AGAIN INTERRUPTED AND URGED MR. BAIRD TO CHECK THE TAPES OF THE LAND-LINE CONVERSATIONS. MR. BAIRD REPLIED THAT HE DID NOT HAVE TO INVESTIGATE ANY FURTHER AND THAT HE WAS GOING TO CONTINUE COUNSELING MR. MICCICHE. MR. STACK THEN AGAIN INTERRUPTED AND TOLD MR. BAIRD THAT BEFORE HE BEGAN COUNSELING HE "OUGHT TO GET ALL THE FACTS." MR. BAIRD THEN TOLD MR. STACK TO BE QUIET. MR. STACK REPLIED THAT HE WOULD NOT BE QUIET SINCE HE WAS AT THE MEETING AS MR. MICCICHE'S REPRESENTATIVE AND COULD SPEAK UP. MR. BAIRD RESPONDED THAT HE WAS GIVING MR. BAIRD AN ORDER TO BE QUIET. MR. STACK THEN STATED THAT HE WAS NOT GOING TO TAKE THE ORDER. WHEREUPON MR. BAIRD ANNOUNCED THAT THE MEETING WAS TEMPORARILY TERMINATED AND THAT MR. STACK SHOULD GET HIMSELF A REPRESENTATIVE AND PREPARE FOR DISCIPLINARY ACTION. MR. STACK THEN LEFT THE MEETING AND CONTACTED FELLOW EMPLOYEE THOMAS FERRING, A PAST PRESIDENT OF LOCAL 352, AND ASKED HIM TO BE HIS REPRESENTATIVE AT THE IMPENDING DISCIPLINARY MEETING. AFTER MR. FERRING AGREED TO BE MR. STACK'S REPRESENTATIVE THEY BOTH REENTERED MR. BAIRD'S OFFICE. UPON ENTERING MR. BAIRD'S OFFICE MR. FERRING INQUIRED AS TO THE PURPOSE OF THE MEETING. MR. BAIRD RESPONDED THAT THE PURPOSE OF THE MEETING WAS TO GIVE MR. STACK AN ORAL REPRIMAND. MR. BAIRD THEN CONTINUED ON AND STATED "I AM OFFICIALLY ORALLY REPRIMANDING YOU FOR DISOBEYING A DIRECT ORDER." /4/ AFTER ANSWERING A FEW QUESTIONS FROM MR. FERRING CONCERNING THE POSSIBILITY OF HAVING THE DISCIPLINE DOWN GRADED THE MEETING ENDED. FOLLOWING THE AFOREMENTIONED MEETING BETWEEN MR. STACK, MR. FERRING AND MR. BAIRD, MR. BAIRD ADVISED THAT THE COUNSELING MEETING WITH MR. MICCICHE WOULD IMMEDIATELY RECONVENE. THE COUNSELING SESSION RECONVENED AND CONTINUED FOR SOME TEN MINUTES WITHOUT ANY FURTHER INCIDENT. MR. MICCICHE DID NOT RECEIVE ANY DISCIPLINE FOR HIS ACTIONS WHICH OCCURRED EARLIER IN THE CONTROL TOWER. ACCORDING TO MR. BAIRD, HE FELT THAT HE WAS DEALING WITH A HOSTILE EMPLOYEE AND ANTICIPATED A PROBLEM WITH MR. MICCICHE DURING THE COUNSELING SESSION AND IT WAS FOR THIS REASON THAT HE GAVE THE WARNING OF POSSIBLE DISCIPLINARY ACTION TO MR. MICCICHE. THE WARNING WAS GIVEN IN ACCORDANCE WITH ARTICLE 6, SECTION 1 OF THE CONTRACT. DISCUSSION AND CONCLUSIONS RESPONDENT TAKES THE POSITION THAT THE NOVEMBER 15, 1979, MEETING DID NOT FALL WITHIN THE PURVIEW OF SECTION 7114(A)(2)(B) OF THE STATUTE AND THAT, IN ANY EVENT, MR. STACK'S ACTION IN REFUSING TO CEASE INTERRUPTING THE COUNSELING SESSION EXCEEDED THE BOUNDS OF PROTECTED ACTIVITY. THUS, RESPONDENT ARGUES THAT THE NOVEMBER 15TH MEETING WAS A COUNSELING SESSION AND NOT AN INVESTIGATION. THE GENERAL COUNSEL, ON THE OTHER HAND, TAKES THE POSITION THAT THE NOVEMBER 15TH MEETING DID FALL WITHIN THE PURVIEW OF THE STATUTE AND THAT MR. STACK'S ACTION DID NOT EXCEED THE BOUNDS OF PROTECTED ACTIVITY. ACCORDINGLY, IT IS CLEAR THAT RESOLUTION OF THE ISSUES UNDERLYING THE INSTANT COMPLAINT TURN ON THE NATURE OF THE MEETING AND WHETHER MR. STACK'S ACTIONS AT THE MEETING AMOUNTED TO INSUBORDINATION WARRANTING DISCIPLINE. FOR REASONS SET FORTH BELOW, I FIND THAT THE MEETING OF NOVEMBER 15TH FELL WITHIN THE PURVIEW OF SECTION 7114(A)(2)(B) OF THE STATUTE AND THAT MR. STACK'S ACTIONS DID NOT EXCEED THE BOUNDS OF PROTECTED ACTIVITY. THE LEGISLATIVE HISTORY OF THE STATUTE /5/ MAKES IT CLEAR THAT IT WAS THE INTENT OF CONGRESS TO INCLUDE THE SO-CALLED "WEINGARTEN" RIGHTS /6/ IN SECTION 7114(A)(2)(B) OF THE STATUTE. /7/ INDEED THE FEDERAL LABOR RELATIONS AUTHORITY HAS SO FOUND. /8/ IN WEINGARTEN THE SUPREME COURT MADE IT CLEAR THAT AN EMPLOYEE FACED WITH POSSIBLE DISCIPLINARY ACTION WAS ENTITLED TO UNION REPRESENTATION AT ANY EXAMINATION OF THE EMPLOYEE IN CONNECTION WITH ANY INVESTIGATION CONCERNING HIS CONDUCT. A SIMILAR RESULT WAS REACHED BY THE SUPREME COURT IN ILGWU V. QUALITY MANUFACTURING CO., 88 LRRM 2698 WHEREIN THE EMPLOYEE, WHO HAD BEEN INSUBORDINATE TO THE PLANT OWNER'S WIFE, REFUSED TO ATTEND AN INTERVIEW WITH MANAGEMENT WITHOUT THE PRESENCE OF HER UNION REPRESENTATIVE. IN QUALITY, THE EMPLOYEE, WHO HAD SHUT DOWN HER MACHINE AND WAS BUSY TALKING TO FELLOW EMPLOYEES, TOLD THE OWNER'S WIFE TO MIND HER OWN BUSINESS WHEN ORDERED TO RESUME WORK. CONTRARY TO THE POSITION OF THE RESPONDENT, I AM NOT PERSUADED THAT THE TITLING OF THE NOVEMBER 15, 1979, MEETING AS "COUNSELING" REMOVES THE MEETING FROM THE PROTECTION OF THE STATUTE. BE IT TITLED AN INTERVIEW, INVESTIGATION OR COUNSELING, I FIND THAT WHENEVER THE CIRCUMSTANCES, UNDERLYING A MEETING MAKE IT REASONABLE TO ENVISION A DISCUSSION OF AN EMPLOYEE'S CONDUCT WHICH COULD LEAD TO DISCIPLINE, THE EMPLOYEE IS ENTITLED UNDER SECTION 7114(A)(2)(B) OF THE STATUTE TO UNION REPRESENTATION. SELDOM ARE SUCH INTERVIEWS DEVOID OF ANY DISCUSSION OF THE REASONS OR JUSTIFICATION FOR THE EMPLOYEE'S UNACCEPTABLE CONDUCT. THE FACT THAT MANAGEMENT OFFICIALS CONDUCTING THE INTERVIEW MIGHT HAVE OBSERVED THE EMPLOYEE'S INJUDICIOUS CONDUCT DOES NOT ALTER THE SITUATION, SINCE WITHOUT SAME, THE INTERVIEW WOULD PROBABLY NEVER HAVE BEEN SCHEDULED. /8/ ACCORDINGLY, INASMUCH AS IT WAS REASONABLE TO CONCLUDE UNDER ALL THE CIRCUMSTANCES PRESENT HEREIN THAT THERE WOULD BE A DISCUSSION OF THE REASONS FOR MR. MICCICHE'S CONDUCT IN THE CONTROL TOWER, I FIND THAT MR. MICCICHE WAS ENTITLED TO UNION REPRESENTATION AT THE NOVEMBER 15, 1979, MEETING, FORMAL NOTICE OF WHICH CARRIED AN EXPRESSED WARNING OF POSSIBLE DISCIPLINE. THE SECOND ISSUE TO BE DECIDED IS WHETHER, UNDER ALL THE CIRCUMSTANCES PRESENT HEREIN, MR. STACK EXCEEDED THE BOUNDS OF PROTECTED ACTIVITY WHEN HE INFORMED MR. BAIRD THAT HE WOULD NOT OBEY HIS ORDER TO BE QUIET. RESOLUTION OF THIS ISSUE TURNS ON THE DUTIES AND RESPONSIBILITIES IMPOSED UPON A UNION REPRESENTATIVE IN A 7114(A)(2)(B) SITUATION. IS HE TO SIT IDLY BY AS A WITNESS TO THE PROCEEDINGS OR IS HE OBLIGATED TO TAKE AN ACTIVE PART IN THE EMPLOYEE'S DEFENSE? I CONCLUDE THAT THE UNION REPRESENTATIVE IS UNDER A DUTY TO TAKE AN ACTIVE PART IN THE EMPLOYEE'S DEFENSE. SUPPORT FOR THIS CONCLUSION IS FOUND IN THE SUPREME COURT'S DECISION IN WEINGARTEN, SUPRA. /10/ THUS, THE COURT, IN CONSIDERING THE ADVANTAGES OF UNION REPRESENTATION AT INVESTIGATORY MEETINGS, STATED: A SINGLE EMPLOYEE CONFRONTED BY AN EMPLOYER INVESTIGATING WHETHER CERTAIN CONDUCT DESERVED DISCIPLINE MAY BE TOO FEARFUL OR INARTICULATE TO RELATE ACCURATELY THE INCIDENT BEING INVESTIGATED, OR TOO IGNORANT TO RAISE EXTENUATING FACTORS. A KNOWLEDGEABLE UNION REPRESENTATIVE COULD ASSIST THE EMPLOYER BY ELICITING FAVORABLE FACTS AND SAVE THE EMPLOYER PRODUCTION TIME BY GETTING TO THE BOTTOM OF THE INCIDENT OCCASIONING THE INTERVIEW. . . . THE ABOVE QUOTATION MAKES IT CLEAR THAT THE SUPREME COURT ENVISIONED ACTIVE PARTICIPATION BY THE UNION REPRESENTATIVE AT THE INVESTIGATORY MEETING. HAVING FOUND THAT ACTIVE PARTICIPATION BY THE UNION REPRESENTATIVE IN AN INVESTIGATORY MEETING WAS ENVISIONED BY BOTH WEINGARTEN AND SECTION 7114(A)(2)(B) OF THE STATUTE, THE LAST QUESTION TO BE ANSWERED IS WHETHER MR. STACK'S ACTIONS AT THE NOVEMBER 15TH MEETING WERE OF SUCH AN OUTRAGEOUS AND INSUBORDINATE NATURE TO REMOVE THEM FROM THE PROTECTION OF THE STATUTE AND LEGALLY SUBJECT HIM TO DISCIPLINE THEREFOR. THE RECORD INDICATES THAT ON SOME FOUR OCCASIONS DURING THE NOVEMBER 15TH MEETING MR. STACK REQUESTED POSTPONEMENT OF THE MEETING BECAUSE OF MR. MICCICHE'S POOR HEALTH AND/OR FOR A READING OF THE TAPE RECORDINGS OF THE LAND-LINE CONVERSATIONS BETWEEN MR. MICCICHE AND HIS FELLOW CONTROLLER. WHILE SUCH REQUESTS MIGHT HAVE DELAYED MR. BAIRD'S COUNSELING OF MR. MICCICHE, IT CERTAINLY DID NOT PREVENT IT. ADDITIONALLY, IT IS NOTED THAT MR. STACK'S REFUSAL TO ACCEDE TO MR. BAIRD'S ORDER TO BE QUIET WAS COUCHED IN TERMS OF HIS RESPONSIBILITIES AS MR. MICCICHE'S UNION REPRESENTATIVE. VIEWING THE ABOVE CITED ACTIVITIES OF MR. STACK IN LIGHT OF THE DUTIES AND RESPONSIBILITIES IMPOSED UPON HIM BY THE STATUTE, I CAN NOT CONCLUDE AS URGED BY RESPONDENT, THAT MR. STACK EXCEEDED THE BOUNDS OF PROTECTED ACTIVITY. /11/ ACCORDINGLY, I FIND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (2) OF THE STATUTE WHEN IT GAVE AN ORAL REPRIMAND TO MR. STACK BECAUSE OF HIS ACTIVITIES AS A UNION REPRESENTATIVE. I FURTHER FIND THAT BY SUCH ACTION THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE SINCE IT DEPRIVED MR. MICCICHE OF THE RIGHT OF REPRESENTATION ACCORDED HIM BY SECTION 7114(A)(2)(B). HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1), (2) AND (8) OF THE STATUTE BY VIRTUE OF ITS ACTIONS IN (1) DENYING MR. VINCENT MICCICHE EFFECTIVE UNION REPRESENTATION AT THE NOVEMBER 15, 1980, INVESTIGATORY INTERVIEW AND (2) GIVING AN ORAL REPRIMAND TO MR. JAMES STACK BECAUSE OF HIS ACTIVITIES AS MR. MICCICHE'S SELECTED UNION REPRESENTATIVE AT THE NOVEMBER 15, 1980, INTERVIEW, I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER: ORDER 1. CEASE AND DESIST FROM: (A) REQUIRING MR. VINCENT MICCICHE OR ANY OTHER UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION, INTERVIEW OR MEETING WITHOUT EFFECTIVE UNION REPRESENTATION BY LOCAL 352, PROFESSIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION (MEBA), AFL-CIO, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION, INTERVIEW OR MEETING MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE. (B) DISCIPLINING MR. JAMES STACK, OR ANY OTHER PROFESSIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION REPRESENTATIVE, BECAUSE OF HIS ACTIVITIES IN REPRESENTING A UNIT EMPLOYEE AT AN INVESTIGATORY INTERVIEW WHICH MAY RESULT IN DISCIPLINARY ACTION AGAINST THE UNIT EMPLOYEE. (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND NECESSARY TO EFFECTUATE THE POLICIES OF THE STATUTE: (A) EXPUNGE FROM MR. STACK'S PERSONNEL FILES ALL RECORDS OF THE ORAL REPRIMAND GIVEN TO HIM ON NOVEMBER 15, 1980. (B) POST AT THE ST. LOUIS TOWER, BRIDGETON, MISSOURI, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE, TO BE FURNISHED BY THE REGIONAL DIRECTOR FOR REGION VII, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE POSTED BY IT IMMEDIATELY UPON RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (C) NOTIFY THE REGIONAL DIRECTOR FOR REGION VII, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH. BURTON S. STERNBURG ADMINISTRATIVE LAW JUDGE DATED: OCTOBER 9, 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 CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT REQUIRE MR. VINCENT MICCICHE OR ANY OTHER UNIT EMPLOYEE TO TAKE PART IN AN EXAMINATION, INTERVIEW OR MEETING WITHOUT EFFECTIVE REPRESENTATION BY LOCAL 352, PROFESSIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION (MEBA), AFL-CIO, THE EMPLOYEES' EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY THE EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION, INTERVIEW OR MEETING MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE. WE WILL NOT DISCIPLINE MR. JAMES STACK OR ANY OTHER PROFESSIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION REPRESENTATIVE, BECAUSE OF HIS ACTIVITIES IN REPRESENTING A UNIT EMPLOYEE AT AN INVESTIGATORY INTERVIEW WHICH MAY RESULT IN DISCIPLINARY ACTION AGAINST THE UNIT EMPLOYEE. 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 STATUTE. WE WILL EXPUNGE FROM MR. STACK'S PERSONNEL FILES ALL RECORDS OF THE ORAL REPRIMAND GIVEN TO HIM ON NOVEMBER 15, 1980. (AGENCY OR ACTIVITY) DATED: BY: (SIGNATURE) 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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET, KANSAS CITY, MISSOURI 64105 AND WHOSE TELEPHONE NUMBER IS: (816) 374-2199. --------------- FOOTNOTES: --------------- /1/ THE INADVERTENT ERROR OF THE ADMINISTRATIVE LAW JUDGE IN REFERRING TO THE NAME OF THE CHARGING PARTY AS THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION, MEBA (AFL-CIO), LOCAL 352, IS HEREBY CORRECTED. /2/ IN THIS REGARD, SECTION 7114(A)(2)(B) REQUIRES THAT AN AGENCY GIVE AN EXCLUSIVE REPRESENTATIVE THE OPPORTUNITY TO BE REPRESENTED AT ANY EXAMINATION OF AN EMPLOYEE WHEN THE CONDITIONS PROVIDED IN THE SECTION HAVE BEEN MET. SUCH REPRESENTATION INCLUDES THE RIGHT TO TAKE AN ACTIVE PART IN THE DEFENSE OF THE EMPLOYEE. SEE U.S. CUSTOMS SERVICE, REGION VII, LOS ANGELES, CALIFORNIA, 5 FLRA NO. 41 (1980). THE AUTHORITY DOES NOT PASS UPON WHETHER THERE IS A DUTY TO TAKE AN ACTIVE PART REQUIRED OF THE EXCLUSIVE REPRESENTATIVE AND FURTHER WHAT THE MEANING OF "ACTIVE PART" MAY IMPLY IN SUCH SITUATIONS. /3/ THE LAND LINE IS A TELEPHONE CIRCUIT IN THE CONTROL TOWER BY WHICH ONE CONTROLLER CAN TALK TO ANOTHER CONTROLLER. /4/ A NOTATION OF THE REPRIMAND WAS PUT IN MR. STACK'S PERSONNEL FILE KEPT AT THE INSTALLATION. /5/ LEGISLATIVE HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1978, 96TH CONGRESS, 1ST SESSION, COMMITTEE PRINT NO. 96-7, (NOVEMBER 19, 1979) PP. 664, 651, 652, 824 AND 926. /6/ N.L.R.B. V. J. WEINGARTEN, INC., 95 S.CT. 959(1975); 88 LRRM 2689. /7/ SECTION 7114(A)(2)(B) OF THE STATUTE PROVIDES AS FOLLOWS: AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT . . . ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF THE AGENCY IN CONNECTION WITH AN INVESTIGATION IF (I) THE EMPLOYEE REASONABLY BELIEVES THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE; AND (II) THE EMPLOYEE REQUESTS REPRESENTATION. /8/ INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE AND NATIONAL TREASURY EMPLOYEES UNION, 4 FLRA NO. 37, WHEREIN THE AUTHORITY ADOPTED SIMILAR CONCLUSIONS OF JUDGE SALVATORE ARRIGO. /9/ CF. QUALITY MANUFACTURING, SUPRA, WHEREIN THE MANAGEMENT REPRESENTATIVE NOT ONLY OBSERVED THE ALLEGED MISCONDUCT, BUT WAS ALSO A PARTY TO IT. /10/ 88 LRRM 2693. /11/ CF. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, SAN FRANCISCO, CALIFORNIA AND NFFE, LOCAL 1450, 4 FLRA NO. 64.