[ v14 p201 ]
14:0201(42)CA
The decision of the Authority follows:
14 FLRA No. 42
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
OAKLAND AIR ROUTE TRAFFIC CONTROL
CENTER, FREMONT, CALIFORNIA
Respondent
and
WESTERN REGION, PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION, AFL-CIO,
MEBA, OAKLAND, CALIFORNIA
Charging Party
Case No. 9-CA-581
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practice alleged in the complaint and recommending that
it be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the Respondent filed exceptions to the Judge's
Decision, and the General Counsel filed exceptions, an opposition to the
Respondent's exceptions, and a motion to strike certain portions of the
Respondent's brief in support of exceptions. /1/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
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 Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions, and recommendations only to the extent
consistent herewith. /2/
The Judge concluded that the Respondent violated section 7116(a)(1)
of the Statute /3/ by virtue of disparaging remarks about the employees'
exclusive representative at that time, the Professional Air Traffic
Controllers Organization (the Union), made by Erwin Buschauer, Chief of
the Oakland Air Route Traffic Control Center, on a radio interview
broadcast to the public. In so concluding, the Judge rejected the
Respondent's defense that Buschauer's statements were protected by
section 7116(e) of the Statute. /4/
The Authority disagrees. As we have previously held, outside of the
context of representation elections (where management's neutrality is
required), section 7116(e) protects the expression of personal views,
arguments, or opinions by management, employees, or union
representatives as long as such expression contains no threat of
reprisal or force or promise of benefit or is not made under coercive
conditions. See, e.g., Oklahoma City Air Logistics Center (AFLC),
Tinker Air Force Base, Oklahoma, 6 FLRA No. 32(1981).
The Authority finds that Buschauer's statements herein were not
violative of the Statute. Thus, the Authority finds that Buschauer's
statements during a radio interview, while critical of the Union,
contained no threat of reprisal or force or promise of benefit and were
not made under coercive conditions, and, therefore, under section
7116(e) cannot "constitute an unfair labor practice under any provision
of (the Statute)." In so finding, the Authority notes, as did the Judge,
that Buschauer's comments were made in the general context of a heated
and vigorous debate between the Respondent and the Union in the media
and before Congress on the subject of air safety. In our view, the
comments therefore could have been reasonably understood by the general
public and the employees to be part of a robust public debate rather
than as a threat. Moreover, while strongly stated, Buschauer's remarks
on their face neither contained any threat against the Union or those
employees who supported it nor any promise of benefits to employees who
chose to withhold such support. Further, we find that remarks made
during a radio broadcast with no unit employees present were not made
under coercive conditions. Accordingly, the Authority concludes that
the General Counsel has failed to establish that Buschauer's statements
interfered with, restrained, or coerced any employees in their exercise
of any right under the Statute in violation of section 7116(a)(1) of the
Statute. /5/ The complaint shall, therefore, be dismissed in its
entirety.
ORDER
IT IS ORDERED that the complaint in Case No. 9-CA-581 be, and it
hereby is, dismissed.
Issued, Washington, D.C., April 6, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
OAKLAND AIR ROUTE TRAFFIC CONTROL
CENTER, FREMONT, CALIFORNIA
Respondent
and
WESTERN REGION, PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION,
AFL-CIO, MEBA
OAKLAND, CALIFORNIA
Charging Party
Case No.: 9-CA-581 /6/
Fritz E. Sperling,
Attorney for Respondent
Domenic Torchia,
Vice President of Charging Party
Nancy E. Pritikin,
Attorney for the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute (hereinafter referred to as the "Statute"), 92 Stat.
1191, Chapter 71 of the Title 5 U.S.C. 7101, et. seq., and the rules and
regulations issued thereunder and published in 45 Fed.Reg. 3482-3524
(1/17/80), 5 CFR 2421 et seq.
Pursuant to a Charge filed on July 10, 1980, by the Western Regional
Vice-President of the Professional Air Traffic Controllers Association
(hereinafter, "PATCO West", or the "Union"), a Complaint and Notice of
Hearing was issued on September 29, 1980, and amended on November 21,
1980, by the Regional Director, Region IX, of the Federal Labor
Relations Authority (hereinafter, the "Authority").
The Complaint in Case No. 9-CA-581 alleges that Oakland Air Control
Center, /7/ of the Federal Aviation Administration (hereinafter, "FAA"
or the "Respondent"), by the chief of the named FAA facility, Erwin
Buschauer, /8/ made disparaging comments concerning PATCO West in a news
broadcast, and thereby violated Section 7116(a)(1) of the Statute. /9/
Respondent does not deny that the statements were made by the chief of
the facility and broadcast; but it claims that the statements did not
constitute a violation of Section 7116(a)(1), and were merely the
expression of personal views permitted by Section 7116(e) of the
Statute. /10/
A hearing was held on February 6, 1981, at San Francisco, CA, at
which the parties were given a full opportunity to be heard and present
evidence. Briefs were submitted by the Respondent, on March 25, 1981,
and by the General Counsel, on March 27, 1981. Based upon the record
made in this proceeding, my observation of the witnesses and their
demeanor, and the briefs, the following findings, conclusions, and
recommended order are made.
Findings of Fact /11/
1. Professional Air Traffic Controllers Organization ("PATCO") is
the exclusive bargaining agent for certain of Respondent's employees,
including air traffic controllers, and is a party to a collective
bargaining agreement with Respondent. Negotiations are about to start
on a new agreement. PATCO West is the Western Region of PATCO.
2. In a radio interview that was taped and broadcast in San
Francisco on June 24, Erwin Buschauer, the chief of the facility here
involved, made certain statements about PATCO. The broadcast was in two
segments. A copy of the tape was received into evidence as Joint
Exhibit 1, and is as follows:
1st Segment
THE FOLLOWING IS FROM KCBS, IT RUNS 54 SECONDS, THE
BROADCASTER IS
RONALD DATIN WOLF, THE OUT CUE - CBS NEWS, SAN FRANCISCO. THE
TAPE IN
5.
KCBS - FREMONT, CALIFORNIA AIR TRAFFIC CONTROL OFFICIALS SAY
THE COMPUTER FAILURES IN THE LAST MONTH ARE BEING
OVERBLOWN, AND
FOR A REASON. CHIEF CONTROLLER ERWIN BUSCHAUER SAYS PATCO
(PROFESSIONAL AIR TRAFFIC CONTROLS ORGANIZATION) IS USING THE
RECENT SYSTEM FAILURES HERE AND AT CHICAGO'S O'HARE AIRPORT
TO
FURTHER THEIR OWN INTERESTS AND RIP OFF THE TAXPAYERS.
ALTHOUGH
REFUSING TO BE SPECIFIC WHEN ASKED TO EXPLAIN THE BASIS FOR
HIS
ACCUSATIONS, BUSCHAUER SAID . . .
BUSCHAUER - "I CAN'T, I'D HAVE TO RESIGN AND CALL A PRESS
CONFERENCE TO TELL YOU THE TRUTH, BUT THE FACT OF THE
MATTER IS,
THAT THERE ARE MOTIVES HERE FAR BEYOND AND APART FROM
AVIATION
SAFETY. IT'S A CAREFULLY ORCHESTRATED LITTLE SYMPHONY AND IT
HAS
TO DO WITH THE PUBLIC AND RIPPING THE PUBLIC OFF AND THAT'S ALL
I'M GOING TO SAY RIGHT NOW."
KCBS - THE QUESTION IS DOES THIS HAVE ANYTHING TO DO WITH
HIGHER WAGES? BUSCHAUER REPLIED . . .
Buschauer - ". . . It sure as hell does."
KCBS - THE FREMONT CENTER HANDLES ALL THE AIR TRAFFIC IN
NORTHERN CALIFORNIA AND NEVADA. RONALD DATIN WOLF FOR CBS
NEWS IN
SAN FRANCISCO.
2d Segment
KCBS - THE HEAD OF THE FREMONT, CALIFORNIA AIR TRAFFIC
CONTROL
CENTER, WHICH HANDLES ALL AIR TRAFFIC IN NORTHERN CALIFORNIA
AND
NEVADA SAYS THE PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION
(PATCO) IS USING RECENT COMPUTER FAILURES AT BOTH THE
FREMONT
CENTER AND AT CHICAGO'S O'HARE AIRPORT TO FURTHER THEIR OWN
INTEREST IN A LABOR DISPUTE. CHIEF CONTROLLER, ERWIN
BUSCHAUER
CHARGES PATCO WITH OVERBLOWING THE WHOLE SITUATION AS A
PART OF
WHAT HE CALLS A CAREFULLY ORCHESTRATED SYMPHONY SEPARATE
FROM AIR
TRAFFIC SAFETY. DOES THAT MEAN HIGHER WAGES? BUSCHAUER
REPLIES .
. .
Buschauer - ". . . It sure as hell does."
KCBS - BUSCHAUER SAYS THE PROBLEM HAS BEEN DISCOVERED AND
SOLVED, AND HE'S BEGINNING TO GET A LITTLE IRRITATED AT MUCH
ADO
OVER NOTHING. HE INSISTS THE BACKUP SYSTEM, WHEN NEEDED, IS
COMPLETELY SAFE. AF FOR PATCO, HE SAYS . . .
BUSCHAUER - "I WAS AN AIR TRAFFIC CONTROLLER FOR FOURTEEN
(14)
YEARS WHEN WE REALLY WERE CONCERNED ABOUT SAFETY, THEY'RE
MORE
CONCERNED ABOUT POLITICS TODAY, AS AN ORGANIZATION.
INDIVIDUAL
CONTROLLERS ARE MAGNIFICENT, THEY'RE WONDERFUL, BUT THEIR
ORGANIZATION IS SOMETHING ELSE."
KCBS - SO FAR PATCO HAS BEEN UNAVAILABLE FOR COMMENT.
RONALD DATIN WOLF FOR CBS NEWS, SAN FRANCISCO.
3. An air traffic controller, Charles Loren /12/ Mullick, when he
heard a portion of the broadcast, called the radio station and
questioned the broadcaster. The broadcaster gave him a copy of the
taped broadcast. Mr. Mullick then took the tape to the facility of
Respondent and played it for a number of employees, during breaks. Mr.
Mullick is the Director of Public Relations for PATCO West. He played
the tape for the employees at the facility because he "felt that the
people who worked at the Oakland Air Route Traffic Control Center should
be informed about what the Facility Chief thinks of them." (TR 13).
4. The Vice President of Local No. 503, PATCO West, located at the
Oakland, CA, Center, heard the taped radio broadcast at work and
discussed the tape, at length, with bargaining-unit employees. Four or
five employees asked her about the tape; and she played it for them.
She wanted them to be prepared in case people asked questions about the
broadcast.
5. Before making his broadcast statements, Mr. Buschauer read a
newspaper report dated June 15 and headlined "Shocking reports on FAA
and air safety." (R1) The article included comments about an impending
Congressional investigation, that "a lot of anonymous phone calls (were)
coming in (to a Congressman's office) from worried air controllers," and
that "a lot of people out in the country are very willing to talk."
(R1.2). Congressman Burton was quoted as saying that, because of
"possible reprisals by the FAA," he was offering anonymity - "even if we
have to disguise the individual witness." (R1.2).
6. Mr. Buschauer did not deny making the statements aired over the
radio station. He knew he made them to a reporter. I do not credit his
denial, that "the views (he) expressed to the KCBS interviewer
represent(ed) agency policy," (TR 51) or his testimony, that he was just
expressing his "personal opinion." (TR 67). His job, as chief of the
facility involved (Exh. 1(f) and (g)), is to "ensure that the policies
of FAA and the Western Region and carried out by the Oakland Center" (TR
52). He obviously was contacted by the media because of his position.
He admitted, to the interviewer, that he could not be more forthright,
without resigning (finding 2, above), an indication that what he did
say, he was saying in his official capacity.
7. Respondent admits that the FAA-PATCO dispute over air safety is
one of "long-standing and agency-wide in scope;" that Mr. Buschauer's
statements were "but one small part of a continuing dialogue which has
involved participants at every level of both union and agency
organizations, including the National President of the union and the FAA
Administrator;" and the "the debate in the media and before the Congress
has been heated and vigorous." (RBr 6).
8. Back in May 1979, PATCO developed a program aimed at publicizing
aviation safety problems through media contacts.
9. Mr. Buschauer acknowledges that PATCO is concerned with aviation
safety, but he believes that the June activity over safety concerned "a
plan to strike and to use aviation safety to gain public support for
such a strike." (TR 65).
10. The June activity over aviation safety concerned computer
outages which occurred on June 17 and June 22. One outage lasted for 77
minutes. The media called Mr. Buschauer within minutes of the outage
and had detailed knowledge of it. The wire services picked up the
story, shortly thereafter, and for the next few days, Mr. Buschauer was
interviewed by all of the local television stations, and by a number of
radio stations, as far away as New York City. The gist of the
interviews was that "it was scary; it's frightening and it's
dangerous." (TR 47). Mr. Buschauer defined the role of FAA as being,
among other things, "to foster aviation . . ." (TR 47). he felt it was
"a little counterproductive to frighten people out of utilizing an
industry that (FAA employees) are there to support." (TR 47). In
interviewing him, "the press" informed him "that PATCO had informed them
of various safety concerns, certain computer failures, and in several
instances identified Loren Mullick to (him) as their source." (TR 49).
11. Mr. Buschauer testified that PATCO was overblowing the
situation, in several respects:
(a) Statistically, FAA computer failures were down
approximately 60 percent over the 4 preceding years; and 1980 was
the safest year on record.
(b) One of the newspaper articles read by Mr. Buschauer refers
to the Fremont Center, controlling Northern California - Nevada
traffic, as operating with only 267 controllers out of 328
authorized, and with only 109 being fully trained. (R 1). Mr.
Buschauer testified that the 109 figure was "90 short of the
truth." (TR 50-51). (The article does not say that PATCO
furnished these figures.)
(c) Mr. Buschauer also testified that PATCO allegations, about
no training on the computer back-up system, were "not true." (TR
51). He testified that there is "a refresher training program to
keep the controllers reasonably current on that system." (TR 51).
12. Congressional interest was aroused over air safety; and on June
30 and August 15 hearings were held before the Subcommittee of the
Committee on Government Operations, house of Representatives. A copy of
the testimony taken at the hearings is in evidence. See GC 2. FAA and
PATCO officials testified at the hearings.
13. A United States Senate staff report on FAA's En Route Air
Traffic Control Computer System was issued, in October, that was
critical of FAA's ability to "assure the air safety of the traveling
public until (a) proposed replacement system (for a computerized air
traffic control system) is operational." (GC 3. 4).
14. On July 15, Mr. Buschauer set up a group to investigate system
outages "(b)ecause we have experienced an unusual amount of lengthy
computer outages in the past six weeks." (GC 4. 1). The report issued
by the group was critical of FAA procedures, organization, and
equipment, including the "excessive" time taken to restore some of the
computer outages. (GC 5. 2). One of the group's recommendations was
for increased training of controllers on back-up systems. (GC 5. 2. 9).
The group recommended that training at the Oakland Center be immediate.
(GC 5. 22).
15. At the Congressional hearings, held on June 30, on air traffic
control computer failures, Congressman Whittaker testified: "It is also
alarming that FAA employees speak out, attempting to bring potential
hazards to the attention of the public, they are disciplined by the very
agency that is set up to maintain and insure air safety." (GC 2. 34).
16. At the Congressional hearing on August 15, Domenic Torchia, a
PATCO official, testified that: "FAA has taken great liberty to
convince the Members of Congress and the public that PATCO is here
because we want to enhance our labor position when negotiating a
contract." (GC 2. 428).
17. At the hearing held in this case, Mr. Torchia denied that PATCO
contacted the media regarding safety issues in order to better the
union's position in collective bargaining negotiations. I credit this
testimony. The chief of the facility here involves admits that PATCO is
concerned about air safety. There were genuine problems with air safety
at the time Mr. Buschauer made the statements here at issue. PATCO
developed a program for publicizing air safety problems back in May
1979. Aside from Mr. Buschauer's assertions, there is no record
evidence that PATCO was publicizing safety problems to better its
collective bargaining interests.
18. A PATCO West official testified that, after the broadcast of Mr.
Buschauer's statements, Mr. Buschauer told him that he (Mr. Buschauer)
had "screwed up" and "blown his cool," in regard to the broadcast, and
asked the official "to sort of downplay the incident." (TR 71-72). Mr.
Buschauer acknowledged that he made such comments, "essentially as (the
official) represented it." (TR 81). Mr. Buschauer admitted that he was
"angry over the issue," when he made the statements. (TR 81).
Issues
1. Whether disparaging statements made public by the head of a
facility about the exclusive representative of facility employees
constitute an interference with employee rights protected by the Statute
in Section 7116(a)(1).
2. Whether the free speech provisions of Section 7116(e) are limited
to representational situations.
3. If not, whether the statements here at issue fall within the free
speech protection of Section 7116(e).
Discussion and Conclusions
1. The disparaging statements at issue violated Section 7116(a)(1)
rights.
A Section 7116(a)(1) violation has two elements-- a protected right;
and an interference with, restraint, or coercion of an employee in the
exercise of that right. Respondent argues that the General Counsel
failed to sustain his burden of proof on either element. (RBr 3). The
General Counsel argues that statements to bargaining unit employees
which disparage and show disdain for the exclusive representative have
the effect of interfering with employee rights, by discouraging
employees from exercising their rights under the Statute. (GCBr 4).
Several examples are given. When the exclusive representative is deemed
to be dishonest and unworthy, or unable to pursue and protect the
interests of the bargaining unit, employees in the unit will be
dissuaded from seeking union assistance when a problem arises. When
attacks are made by an agency on the motives of employees acting on
behalf of their labor organization, these employees are chilled in
freely expressing legitimate concerns of the union. Disparaging remarks
by an agency undermine the confidence of the bargaining-unit employees
in the ability of their exclusive representative to act on their behalf.
(GC 5).
Precedent supporting the General Counsel's position is found in cases
decided under Executive Order 11491, which controlled Federal
labor-Management relations prior to enactment of the Statute and which,
in Sections 1 and 19(a)(1) had provisions comparable to those here at
issue. /13/ A union steward told to shut up until spoken to, in the
presence of other employees at a meeting called by management to discuss
a management policy of concern to employees, was an action held to
constitute an unfair labor practice in U.S. Army Headquarters, U.S. Army
Training Center, Infantry, Fort Jackson Laundry Facility, Fort Jackson,
South Carolina, and Local 1909, American Federation of Government
Employees, AFL-CIO, A/SLMR No. 242, 3 A/SLMR 60(1973). Another unfair
labor practice was found when a supervisor, dealing with a "profane,"
"contentious" and difficult union steward, called the steward a
"troublemaker," threatened the steward with physical harm, and invited
the steward to hit him, all in front of other employees, and in
connection with a grievance matter. See U.S. Department of Agriculture,
Ozark-- St. Francis National Forests, Russellville, Arkansas, and Local
1075, National Federation of Federal Employees, A/SLMR No. 977, 8 A/SLMR
135(1978).
The rationale of these cases, though factually distinguishable, is
applicable to the instant situation. Here, the remarks were broadcast
publicly, to an audience that included employees, their family and
acquaintances. The exclusive representative of the employees was
castigated and demeaned by the head of the facility where the employees
work. The statements had a chilling effect on employees' protected
rights. Employees would not feel free to join an organization publicly
held up to be dishonest in motive. They would not feel free to seek its
assistance in grievance procedures. They would lose confidence in the
ability of their exclusive representative to bargain effectively on
their behalf with an agency holding it in such low regard. They would
not feel as free to express their views to Congress. See Section
7116(a)(1) quoted above, in footnote 4.
Respondent also relies on cases arising under Section 19(a)(1) of
Executive Order 11491, which hold that consideration must be given to
the entire circumstances surrounding the making of the communications in
determining whether employees were interfered with, restrained, or
coerced in the exercise of protected rights. In one, Internal Revenue
Service, Mid-Atlantic Service Center, A/SLMR No. 421(1974) no violation
was found where no union animus was shown and the communications
reflected only an overriding desire to solve food-service problems at
the agency. The "entire circumstances" here have been considered, and
found to be quite different. Mr. Buschauer's statements show
considerable union animus. While his statements may have been "designed
to reassure the public," (RBr 5), Mr. Buschauer obviously and
admittedly, "screwed up," "bl(ew) his cool," and overreached into an
unfair labor practice when his designs gave way to attacks on PATCO.
Respondent also relies on Department of the Navy, Naval Air Station,
Fallow, Nevada, FLRA No. 74-80, Published in Number 87 of the Report of
Case Decisions of the Federal Labor Relations Council, dated November
14, 1975. In that decision interference with a protected right was
found when the station's commanding officer posted a letter he wrote to
the union president on bulletin boards throughout the station. The
letter criticized the union president's tactics and statements during
bargaining sessions. The Council held that "direct communications
necessarily tend to undermine the status of the exclusive representative
in violation of the Order." See page 5 of the Council decision. A
somewhat similar situation occurred here, when broadcast statements
included disparaging remarks about PATCO's motives in speaking out on
air-safety concerns.
Another "circumstance" relied upon by Respondent is the fact that the
PATCO-FAA "dispute" relating to air traffic problems is "long standing
and agency-wide in scope," (RBr 6) a statement which is supported by the
record. (See, e.g. GC 2, 102-109. 35-38). But the record does not
support Respondent's assertion that "employees within the bargaining
unit have (,therefore,) grown quite accustomed to the on-going debate."
(RBr 5). The record shows that some union officials have grown "quite
accustomed" to it; but not that employees generally and, particularly,
new employees, who have not yet decided to join or avail themselves of
the assistance of their exclusive representative, have grown accustomed
to it, so that the broadcast remarks would not have undermined their
respect and confidence in PATCO.
Respondent also points to the record evidence which proved only that
one employee actually heard the broadcast, and that the Union itself
played the tape to the rest of the employees. Just how many employees
may have actually heard the broadcast cannot be fathomed from the
record. And the fact that the Union played the tape to Respondent's
employees does not estop it from charging an unfair labor practice, for
the Union had a legitimate reason for playing the tapes of disparaging
statements broadcast to the public. Employees were asking union
officials about the broadcast. By listening to the tapes, the employees
were in a better position to respond to any inquiries they might be
subjected to by members of the broadcast audience questioning the bona
fides of their exclusive representative.
Respondent relies upon one case where an employee was reprimanded for
disseminating an internal agency communication to the public (Federal
Aviation Administration, Las Vegas, Nevada, A/SLMR 796(1976) and another
where an employee was discharged for publishing "intemperate and
defamatory lampoons about his superiors (Meehan v Macy, 392 F.2d 822 (CA
DC, 1968)). These cases hold that there is no protected right of
employees to present their views to the public. This decision is not
based upon there being any such right.
2. The free speech provisions of Section 7116(e) are not limited to
representational cases.
In a decision handed down after the briefs in this case were filed,
the Authority discussed the legislative history of Section 7116(e) and
concluded that the Section should be read as follows:
Thus, section 7116(e) provides that:
The expression of any personal view, argument, opinion . . .
shall not, if the expression contains no threat of reprisal or
force or promise of benefit or was not made under coercive
conditions . . . constitute an unfair labor practice . . .
As to representation elections, section 7116(e) provides that:
(T)he making of any statement which--
(1) publicizes the fact of a representational election and
encourages employees to exercise their right to vote in such
election,
(2) corrects the record with respect to any false or misleading
statement made by any person, or
(3) informs employees of the Government's policy relating to
labor-management relations and representation,
shall not, if the expression contains no threat of reprisal or
force or promise of benefit or was not made under coercive
conditions . . . constitute an unfair labor practice . . . or . .
. constitute grounds for the setting aside of any election . . .
See page 6 of the decision in Department of the Air Force, Air Force
Representation Office, Detachment 27, Fort Worth, Texas and AFGE, et al,
5 FLRA No. 62(4/17/81), which involved an election situation.
The discussion of the free-speech provisions, during the legislative
process, did focus on election situations. See Legislative History of
the Federal Service Labor-Management Relations Statute, Title VII of the
Civil Service Reform Act of 1978, Committee Print No. 96-7, 96th
Congress, 1st Session (11/19/79), pages 95, 585, 824, 996, 1021, 1023,
1025, 1026, 1027, 1028, 1033, 1034, 1035, 1046 and 1047. Nevertheless,
the language chosen by Congress does not specifically limit the
free-speech provisions to representational situations, as the General
Counsel urges. (RBr 7-8). See Section 7116(e), quoted in footnote 5,
above. And, as read by the Authority, the language would apply in
non-election situations. No rationale for so circumscribing the
free-speech provisions is apparent. And, in a country where free speech
is so prized, limitations on it should not be read into statutes unless
clearly warranted by their language or legislative history. No such
warrant is present here.
Several other Administrative Law Judges have also concluded that
Section 7116(e) is not limited to representational situations. See page
15 of the decision in Norfolk Naval Shipyard, et. al, Case Nos. 3-CA-63,
20, 21 and 456, decided on June 6, 1980, by Chief Judge John H. Fenton,
holding that the free-speech provisions extend to picketing situations.
See also pages 19-21 of the decision in Oklahoma City Air Logistics
Center Tinker Air Force Base, Case No. 6-CA-175, decided on May 23,
1980, by Judge William B. Devaney, holding that the free-speech
provisions apply to an expression of a union's worth to employees
seeking advice on joining it, and to asking an employee whether he knew
union dues were increasing. I concur in their interpretations.
3. Mr. Buschauer's statements do not fall within the protection of
Section 7116(e).
Section 7116(e) is restricted to the expression of a "personal view,
argument, opinion." See quotation of Section 7116(e) in footnote 5,
above, emphasis added. In this case, the views and opinions expressed
by Mr. Buschauer, were expressed in his official capacity and while
carrying out FAA policies. They were, admittedly, "but one small part"
of a heated dispute between FAA and PATCO being carried on at the
highest levels. (RBr 6). They may have also been the personal views of
Mr. Buschauer; but when they are also an expression of agency views,
they are not protected as free speech, under the Statute.
The statements also are not protected because they were made under
"coercive conditions." They were made only six days before the
commencement of Congressional hearings on air traffic problems. Mr.
Buschauer had reason to believe, from reading a newspaper article
introduced into evidence as Respondent's Exhibit 1, that a lot of
worried air controllers were willing to talk to Congress. Under these
circumstances, giving the media derogatory statements about the motive
of their exclusive representative, at this time, was clearly coercive.
In fact, PATCO officials gave extensive testimony at the hearings that
appeared to be quite open and frank. See e.g. GC 2. 4-10. 102-249.
399-455. Nevertheless, the broadcast statements may have restrained
those Union officials, to some degree, and scared away other FAA
employees who might have otherwise chosen to act for PATCO and "freely .
. . present the views of the labor organization to . . . Congress." In
any event, the success or failure in coercing a bargaining-unit employee
is not determinative. Cf. Department of the Army, Fort Bragg Schools,
et al, 3 FLRA No. 57 (1980).
Respondent argues that the statements were not coercive because they
were not "directed to employees; rather they were designed to reassure
the public." (RBr 5). They may have been "designed" to reassure the
public. But, as executed, they gave the public little reassurance,
indeed no specific facts at all, and focused instead on allegations
about PATCO's deceptive and dishonest motives. As to the audience to
which the statements were beamed, it would be disingenuous to believe
that employees are excluded from "the public" receiving news over a
radio station. Respondent states that "only one employee actually heard
the broadcast." (RBr 5). More accurately, only one employee testified
to hearing it. Just how many actually heard it is not known. Several
asked about it and, so that they might be prepared to cope with adverse
reactions to it from family members and acquaintances, the Union played
the tape for them.
Respondent also alleges that the statements were only to "set the
record straight." (RBr 10, citing Mr. Buschauer's testimony at TR 59).
If this were so, Mr. Buschauer should have devoted his statements to
specific facts refuting those which had appeared in the media. He was
invited to do just this, and, expressly declined to do so.
ULTIMATE FINDING AND ORDER
Respondent has violated Section 7116(a)(1) of the Statute.
Pursuant to 5 CFR 2423.26 and 5 U.S.C. 7118, the Authority hereby
orders that Respondent, Department of Transportation, Federal Aviation
Administration, Oakland Air Route Traffic Control Center, Fremont,
California, shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing bargaining-unit
employees in the exercise of their rights as assured by the
Federal Service Labor-Management Relations Statute, by making
disparaging remarks about the exclusive representative,
Professional Air Traffic Controllers Organization, in radio
broadcasts.
(b) In any like or related manner, interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Post at its facility in Fremont, California, 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 Chief of the Oakland Air Route Traffic
Control Center, and shall be posted and maintained by him for 60
consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. The
Chief shall take reasonable steps to insure that such notices are
not altered, defaced or covered with any other material.
(b) Notify the Federal Labor Relations Authority in writing,
within thirty (30) days from the date of this Order as to what
steps have been taken to comply herewith.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: May 28, 1981
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 interfere with, restrain or coerce our employees in the
exercise of their rights as assured by the Federal Service
Labor-Management Relations Statute, by making disparaging remarks
concerning the exclusive representative, Professional Air Traffic
Controllers Organization (PATCO), in radio broadcasts.
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 to form, join or
assist any labor organization, freely and without fear of penalty or
reprisal, including the right to act for a labor representative and the
right, in that capacity, to present the views of the labor organization
to Congress.
(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 any 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, Region
IX, whose address is: Room 11408, P.O. Box 36016, 450 Golden Gate
Avenue, San Francisco, California 94102, and whose telephone number is:
(415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1/ The basis for the General Counsel's motion to strike is that the
Respondent's brief in support of exceptions contains matters not a part
of the record in this case. In reaching its Decision, the Authority has
relied only on matters contained in the record of the instant
proceeding, and therefore the motion to strike is denied.
/2/ After the Judge issued her Decision in this case, the Authority
revoked the exclusive recognition status of the Charging Party (PATCO)
and thereafter dismissed certain complaints issued on behalf of PATCO on
the basis that any decision rendered in such cases could not have any
practical legal effect (see, e.g., Professional Air Traffic Controllers
Organization, AFL-CIO, Local 216, 11 FLRA No. 16(1983); United States
Department of Transportation, Federal Aviation Administration, Southwest
Region, 11 FLRA No. 18(1983)). However, the Authority concludes that
the instant case has not been rendered moot. Thus, in contrast to the
above-cited cases, alleged violations of the statutory rights of
individual employees to act on behalf of and to be represented by a
labor organization of their own choice are involved herein. We shall
thus consider the merits of the case.
/3/ Section 7116(a)(1) provides:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter(.)
/4/ Section 7116(e) provides:
(e) The expression of any personal view, argument, opinion or
the making of any statement which--
(1) publicizes the fact of a representational election and
encourages employees to exercise their right to vote in such
election,
(2) corrects the record with respect to any false or misleading
statement made by any person, or
(3) informs employees of the Government's policy relating to
labor-management relations and representation, shall not, if the
expression contains no threat of reprisal or force or promise of
benefit or was not made under coercive conditions, (A) constitute
an unfair labor practice under any provision of this chapter, or
(B) constitute grounds for the setting aside of any election
conducted under any provisions of this chapter.
/5/ See Army and Air Force Exchange Service (AAFES), Ft. Carson,
Colorado, 9 FLRA No. 69(1982); Oklahoma City Air Logistics Center
(AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA No. 32(1981). Compare
Department of the Treasury, Internal Revenue Service, Louisville
District, 11 FLRA No. 64(1983).
/6/ Case No. 9-CA-580 was originally consolidated with 9-CA-581. An
Order dated November 21, 1980, severed 9-CA-580; and an informal
settlement agreement was reached as to it.
/7/ The Complaint was amended, at the hearing, to correct the name of
Respondent.
/8/ The transcript spelling, of "Bushauer", is corrected, wherever it
so appears.
/9/ Section 7116(a)(1) provides that it shall be 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."
Such "right)" include the "right to form, join, or assist any labor
organization . . . freely and without fear of penalty or reprisal . . .
, to act for a labor representative and the right, in that capacity, to
present the views of the labor organization to . . . Congress . . . ,
and to engage in collective bargaining with respect to conditions of
employment through representatives chosen by employees . . . " Section
7102 of the Statute.
/10/ Section 7116(e) provides that:
The expression of any personal view, argument, opinion or the making
of any statement which -
"(1) publicizes the fact of a representational election and
encourages employees to exercise their right to vote in such
election,
"(2) corrects the record with respect to any false or
misleading statement made by any person, or
"(3) informs employees of the Government's policy relating to
labor-management relations and representation, shall not, if the
expression contains no threat of reprisal or force or promise of
benefit or was not made under coercive conditions, (A) constitute
an unfair labor practice under any provision of this chapter, or
(B) constitute grounds for the setting aside of any election
conducted under any provisions of this chapter.
/11/ References to the record will be as follows: "TR" refers to the
transcript; "GC" refers to exhibits of the General Counsel; "R" refers
to exhibits of the Respondent; "Jt" refers to the Joint Exhibit;
"GCBr" refers to the brief of the General Counsel; and "RBr" refers to
the brief of Respondent. Multipage exhibits will be referenced by the
exhibit number, followed by the page number. All dates referred to are
in 1980, unless otherwise specified.
/12/ The misspelling of "Loren," in the transcript, is corrected.
/13/ Section 1(a) of Executive Order 11491, dated October 29, 1969, 3
CFR 861 (Comp. 1966-70) provided that: "Each employee of the executive
branch of the Federal Government has the right, freely, and without fear
of penalty or reprisal, to form, join, and assist a labor organization .
. . and each employee shall be protected in the exercise of this right.
. . . (T)he right to assist a labor organization extends to . . . acting
for the organization in the capacity of an organization representative,
including presentation of its views to officials of the . . . Congress .
. . . The head of each agency shall take the action required to assure
that . . . no interference, restraint, coercion, or discrimination is
practiced within his agency to . . . discourage membership in a labor
organization."
Section 19(a)(1) of the Order made it an unfair labor practice to
"interfere with, restrain, or coerce an employee in the exercise of the
rights assured by this Order".