16:0952(128)CA - Air Force, Lowry AFB, Denver, CO and AFGE Local 1974 -- 1984 FLRAdec CA
[ v16 p952 ]
16:0952(128)CA
The decision of the Authority follows:
16 FLRA No. 128
UNITED STATES AIR FORCE
LOWRY AIR FORCE BASE
DENVER, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1974
Charging Party
Case Nos. 7-CA-30363
7-CA-30364
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled consolidated proceeding finding that the Respondent had
engaged in certain unfair labor practices alleged in the complaint and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Judge further found that the Respondent
had not engaged in certain other alleged unfair labor practices and
recommended dismissal of the complaint with respect to them.
Thereafter, the Respondent and the General Counsel filed exceptions to
the Judge's Decision and the Respondent filed an opposition to the
General Counsel's exceptions along with cross exceptions.
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 recommended Order.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the United States Air Force, Lowry Air Force Base,
Denver, Colorado, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing Louise Figueroa in the
exercise of her duties as a steward of the American Federation of
Government Employees, AFL-CIO, Local 1974, by calling her a
"troublemaker" and by inserting references to her union activities in
her performance appraisal.
(b) In any like or related manner interfering with, restraining, or
coercing 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 Statute:
(a) Post at its facilities at Lowry Air Force Base, copies of the
attached Notice on forms to be furnished by the Authority. Upon receipt
of such forms, they shall be signed by the Commander of Lowry Air Force
Base, or his designee, and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to 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, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the remaining allegations in Case Nos.
7-CA-30363 and 7-CA-30364 of the consolidated complaint be, and they
hereby are, dismissed.
Issued, Washington, D.C., December 18, 1984
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Acting
Chairman
/s/ RONALD W. HAUGHTON
Ronald W. Haughton, 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 interfere with, restrain, or coerce Louise Figueroa in
the exercise of her duties as a steward of the American Federation of
Government Employees, AFL-CIO, Local 1974, by calling her a
"troublemaker" and by inserting references to her union activities in
her performance appraisal.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
. . .
(Activity
Dated: . . . By: . . .
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VII, Federal Labor Relations Authority, whose address
is: 1531 Stout Street, Suite 301, Denver, Colorado 80202 and whose
telephone number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
UNITED STATES AIR FORCE
LOWRY AIR FORCE BASE
DENVER, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1974
Charging Party
Case Nos. 7-CA-30363
7-CA-30364
Major Wade B. Morrison, Esquire
For the Respondent
Mr. Dariel B. Case
For the Charging Party
Daniel Minahan, Esquire
For the General Counsel
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns a consolidated unfair labor practice complaint
issued by the Regional Director, Region Seven, Federal Labor Relations
Authority, Denver, Colorado against the United States Air Force, Lowry
Air Force Base, Denver, Colorado (Respondent), based on charges filed by
the American Federation of Government Employees, AFL-CIO, Local 1974
(Charging Party or Union). The complaint alleged, in substance, that
Respondent violated sections 7116(a)(1) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute),
by virtue of certain statements made by its agents to employees who
represent the Union in the months of February, March, and April 1983.
Specifically, the General Counsel alleged that Lawrence Gabel, a
supervisor, gave Union steward Louis Figueroa, one of his subordinates,
a performance appraisal containing the comment that Figueroa spent too
much time on Union activity. The General Counsel also alleged that
Gabel told Figueroa she was nothing more than a troublemaker since
becoming a Union steward. Calvin Mullins, Respondent's Commissary
Officer, is alleged to have made a similar remark, telling Figueroa that
he would not want to transfer a troublemaker from one section to
another. The General Council also claimed that Mullins told Union
steward Vicki Sansom, in connection with Union literature distributed by
Sansom, that he did not want employees writing to their Congressmen
about the Commissary.
On August 12, 1983, Respondent filed an Answer denying the unfair
labor practices alleged in the Consolidated Complaint.
A hearing was held in Denver, Colorado. The Respondent, Charging
Party, and the General Counsel were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The Respondent
and the General Counsel filed helpful briefs. Based on the entire
record, /1/ including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
Findings of Fact
I. The Performance Appraisal Received By Figueroa From Gabel on
February 16, 1983
A. Findings of Fact
Louise Figueroa has been a Union steward since November 1982. She
represents the Commissary's grocery, produce, and meat department
employees, which amount to about 60% of the employees in the Commissary.
(Tr. 117). From January or February of 1982 to April of 1983, her
immediate supervisor was Lawrence Gabel, the produce manager. (Tr. 19,
79). Gabel reports to Calvin Mullins, the Commissary Officer. (Tr.
105, 113).
Figueroa engaged in a broad range of representational activities on
behalf of the Charging Party, including negotiations concerning working
conditions, handling employee questions and complaints, and
investigating potential grievances. When dealing with management, she
dealt primarily with Gabel and Mullins. (Tr. 18).
There was considerable friction between Figueroa and Gabel. They had
heated arguments over complaints employees had raised with Figueroa.
Gabel was concerned that Figueroa would then take such complaints "right
to the front office." (Tr. 87-88; 94-95). Gabel hired an attorney
because he was concerned about Figueroa's complaints to Mullins, and
told her he was suing her for defamation of character. (Tr. 22, 94).
Figueroa and Gabel also had disagreements over the procedure to be
followed in obtaining official time to engage in representational
activities. Figueroa's practice was to respond to employee complaints
on the spot, if it could be done briefly, and to request official time
only if the response required more time. (Tr. 54). Gabel counseled
Figueroa on a number of occasions for her failure to obtain official
time in order to conduct all Union business. Some of these counselings
were justified. (Tr. 20). However, I credit Figueroa's testimony that
there were other occasions when Gabel's criticism and presumption that
she was conducting Union business without being on official time were
not justified, as she was not conducting Union business, or was not even
on duty on some occasions when he criticized her. (Tr. 44, 52-53).
Once a year, each employee at the Commissary receives a performance
appraisal or "CPAS." On February 16, 1983 Gabel told Figueroa he wanted
to discuss the CPAS form he had prepared for her. The CPAS form
contains 19 rating categories within which a supervisor may rate an
employee on a scale of 1 through 9, with 1 being the lowest rating and 9
being the highest. (G.C. Exhs. 2, 3, and 4). Figueroa noticed that
Gabel had rated her at 3 and 4 in all 19 categories. (Tr. 25).
Moreover, in category 19, /2/ Gabel had written, "spends too much time
on Union business." Gabel explained that he put the comment on her CPAS
because she was conducting Union business at the work place on duty time
without asking for official time. (Tr. 45-46, 81-82). Figueroa told
Gabel she thought the CPAS was unfair and immediately took the matter up
with Mr. Mullins. (Tr. 26-27).
The next day Gable told Figueroa that he had destroyed the CPAS and
showed her another CPAS which he had prepared. (Tr. 30, G.C. Exh. 4).
The marked were higher, and the comment he had made on the other form
did not appear. He did not otherwise apologize or explain the
destruction of the first form. Ms. Figueroa was still dissatisfied with
the rating, but she and Gabel both signed it. (Tr. 31). Shortly
thereafter, Figueroa was informed by the assistant store manager that
Gabel would prepare still different CPAS forms for all employees under
his supervision. (Tr. 31).
Gabel prepared the final version of Figueroa's appraisal on February
21, 1983. On this appraisal, he rated her a 6 or 7 in all 19
categories. Gabel considered the final appraisal to be very good, and
the most accurate reflection of Figueroa's performance during the rating
period. (Tr. 96, 97, 103). This version was added to her civilian
personnel file. (G.C. Exh. 3).
B. Conclusions of Law
The General Counsel contends that Respondent violated section
7116(a)(1) of the Statute when Gabel included the remark, "spends too
much time on Union business," on the first performance appraisal form he
prepared for Figueroa on February 16, 1983.
Respondent claims that the statement, as accompanied by Mr. Gabel's
explanation, did no more or less than Mr. Gabel's previous counselings;
it merely discouraged union activity not pursued in a proper manner.
Respondent also contends that, in any event, any violation is de
minimus, as the appraisal was merely a draft appraisal of no legal
effect and was subsequently replaced.
I agree with the General Counsel that a violation has been
established. The comment on the performance appraisal, on its face,
includes all union activity. It cannot be read to apply strictly to the
steward's failure to secure permission to conduct representational
activities on official time, as Gabel stated in his explanation. This
is particularly true in view of my findings that there were occasions
when Gabel did not have a legitimate reason for counseling Figueroa
about conducting union business without being on official time.
The comment is the performance appraisal indicated that Figueroa's
protected union activity was a negative factor in her performance
rating. The suggestion of any relationship between the employee's
protected activity and his or her employment status violates the
Statute. See Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, 12 FLRA 667, 679-680 (1983). Here
the statement clearly had a tendency to interfere with, restrain, or
coerce the employee in the exercise of her rights under the Statute to
freely form, join, or assist a labor organization as a steward.
Respondent's conduct through Gabel is not considered to be de
minimus. Gabel did not change the appraisal immediately, but the next
day, and then apparently only because Figueroa took her complaint to the
second-level supervisor. There was also no unambiguous, specific
repudiation of the coercive conduct, or assurance that in the future the
employer will not interfere with statutory rights. Cf. Safeway Stores,
Inc., 266 NLRB No. 66, 113 LRRM 1101, 1101-02 (1983). In United States
Department of Interior, Office of the Secretary, U.S. Government
Comptroller For the Virgin Islands, 11 FLRA 521, 522 fn. 2 (1983), the
Authority noted that the agency had removed a performance appraisal
containing a reference to protected activity from an employee's official
personnel folder, but nevertheless ordered the agency to cease and
desist from such conduct and to post an appropriate notice. See also
Department of Labor, Office of Workers Compensation Programs, 11 FLRA
77, 83 (1983).
II. Gabel's Alleged Comment That Ms. Figueroa Had Been Nothing More
Than A Troublemaker Since She Became A Union Steward
A. Findings of Fact
In January 1983, the Union and Respondent negotiated an agreement
regarding the distribution of hours to part time employees in the
Commissary. Respondent agreed to distribute any extra hours to part
time employees who wanted them, according to an equitable rotation.
Figueroa, who attended the negotiations, was assigned to provide Mullins
with a list of part time employees willing to work additional hours.
(Tr. 33; G.C. Exh. 5).
Figueroa monitored the implementation of the agreement regarding
equitable distribution of hours by observing the previous day's sign-in
sheets when she signed-in to work each day. By early March 1983, these
sign-in sheets were no longer kept on a clipboard on the produce desk,
so Figueroa asked Mullins for copies of the sign-in sheets. On March
11, 1983 Mullins advised Figueroa that Gabel would be instructed to
provide her with the sign-in sheets. (Tr. 35-36).
On March 12, 1983 Figueroa asked Gabel for copies of the sign-in
sheets for the previous two weeks, which amounted to ten pieces of
paper. Gabel said he did not think he had to furnish this information.
Figueroa explained that Mullins had agreed to furnish it, Gabel then
told Figueroa, "Since becoming the Union steward, you have become
nothing but a troublemaker. You're just like Margaret Moore /3/ and she
taught you well." Figueroa told Gabel to "grow up," and she would talk
to Mullins again about obtaining the sign-in sheets. Gabel replied that
Figueroa had no right demanding anything of him. (Tr. 35-36). Figueroa
returned to Mullins, explained the situation, and Mullins instructed
Gabel to make the copies available. Figueroa later obtained the copies
from Gabel /4/ (Tr. 36-38).
B. Conclusions of Law
The determination of whether statements violate section 7116(a)(1) by
interfering with, restraining, or coercing any employee in the exercise
of his or her statutory rights must take into careful account the entire
circumstances surrounding the making of the statements. Department of
the Navy, Portsmouth Naval Shipyard, 7 FLRA 766, 777 (1982).
Figueroa was acting for the Union within the meaning of Section 7102
of the Statute when she asked Gabel for the sign-in sheets in order to
police the administration of a collective bargaining agreement. Gabel's
statement, "Since becoming a Union steward, you have become nothing but
a troublemaker. You're just like Margaret Moore and she taught you
well," demonstrated Gabel's hostility to Figueroa's activities as a
Union steward and ominously linked Figueroa with an employee who had
filed complaints with the Union and was no longer employed by the
Commissary. Gabel's remark would cause a reasonable employee to "think
twice" before requesting documents which the Union has a right to obtain
under the Statute or otherwise representing the Union. The statement
therefore interfered with, restrained, or coerced Figueroa in the
exercise of her rights and violated section 7116(a)(1) of the Statute,
as alleged. Internal Revenue Service, Louisville District, 11 FLRA 290
(1983).
III. Mullins Statement to Figueroa Regarding Her Request For
Transfer
A. Findings of Fact
On April 5, 1983 Figueroa and Union steward Nicki Sansom met with
Commissary Officer Mullins. Figueroa reiterated previous requests she
had made for a transfer from the produce department to the grocery
department. She based her request on her previous experience in the
grocery department and Mullin's expressed desire to utilize all
employees to the best of their capabilities. (Tr. 38-39). Figueroa
also mentioned her desire to transfer because of her conflict with
supervisor Gabel. (Tr. 70).
According to Figueroa, Mullins said it was not his "policy to
transfer a problem from one department to another. I don't necessarily
mean that you're a problem, but the problems that have arisen in your
department I wouldn't want transferred to another department." (Tr. 39).
According to Sansom, Mullins replied, "Why would I want to transfer
somebody who causes trouble or friction in one area into another
department of the store?" (Tr. 70-71). Mullins testified that he
responded, "I'd rather for her to learn to get along in the section she
was assigned to and not to transfer into another section until she
learned to get along with the people she was working with." (Tr. 106).
Mullins stated that if something became available, he would see what he
could do. (Tr. 71).
About a week after the meeting, Figueroa was transferred to the
grocery department. Her personnel records, however, still show that she
is employed in the produce department. (Tr. 40).
Mullins testified that prior to Figueroa's request for transfer, he
had been advised by her supervisor, Gabel, that Figueroa was causing
dissention and was generally not getting along with people. He knew she
did not get along with Gabel. (Tr. 106, 114-115, 126-127). He stated
that his decision had nothing to do with Figueroa's union duties; he
expected she would perform union duties regardless of the section to
which she was assigned. (Tr. 106-107).
B. Conclusions of Law
As noted, the Statute is designed to protect employees from
statements suggesting any relationship between an employee's protected
activity and that employee's present or future employment status with an
agency. Department of Health and Human Services, supra, 12 FLRA at
679-680. Thus, management commits an unfair labor practice in
determining or suggesting that an employee's protected union activity
renders him or her unsuitable for transfer to a new or different
position. Corpus Christi Army Depot, Corpus Christi, Texas, 4 FLRA 588,
597-598 (1980). However, as noted, all of the circumstances surrounding
the statements must be carefully considered. Department of the Navy,
Portsmouth Naval Shipyard, supra, 7 FLRA at 777.
I credit steward Sansom's testimony that Figueroa referred at the
outset to her "conflict" with her supervisor, Gabel, as one of her
reasons for requesting a transfer. Mullin's response picked up on this
undefined "conflict." It has not been established that Mullins' response
and reference to Figueroa's "problems," "trouble," "friction," or
"failure to get along with people" in her department referred to
Figueroa's union activities. Given the circumstances, Mullins response
is shrouded in some ambiguity. Under all the circumstances, it would
not be proper to "choose the unlawful and eschew the innocent of two
equally available interpretations." Department of the Navy, Portsmouth
Naval Shipyard, 6 FLRA 491, 496 (1981). Accordingly, a preponderance of
the evidence does not support a violation of section 7116(a)(1) in this
instance. Department of the Navy, Portsmouth Naval Shipyard, supra;
Department of the Navy, Portsmouth Naval Shipyard, 7 FLRA 766, 777
(1982).
IV. Mullins' Conversation With Sansom Regarding The Union Sponsored
Letter to Congress (Case No. 7-CA-60363
A. Findings of Fact
On or about January 28, 1983, it was brought to Commissary Officer
Mullin's attention that a letter which did not pertain to Commissary
business had been left on the copying machine by Union steward Sansom.
The letter was addressed to Congresswoman Schroeder and urged that
military commissaries be closed on holidays so personnel could spend the
time with their families. /5/ The letter asserted that local stores
were adequate to service the needs of military personnel on holidays.
(Tr. 107). Mr. Mullins understood that the letter had been drafted by
the Union, and that the Union was encouraging employees to send
individual copies of the letter to their Congressional representatives.
(Tr. 107, 110).
Mr. Mullins contacted Cheryl Lepard, chief of labor and employee
relations, and read her the letter. He asked what his options were. Ms.
Lepard informed him that the Union could distribute the letter, but they
could not distribute it in duty areas or on duty time. (Tr. 129-130).
Mr. Mullins subsequently called Ms. Sansom to his office. After a
discussion about the use of the copier, he told her she could not pass
out the letter on duty time or in duty areas. (Tr. 63, 108). He also
stated that employees should not send the letter. (Tr. 111-112). He
said the letter was bad publicity for the Commissary, because it would
give more ammunition to some Congressmen who wanted to close
commissaries. It would be ammunition from the actual commissary
employees themselves. He stated that the letter would hurt her and the
other employees more than it would help. (Tr. 107-108, 111-113).
Mullins took no further action to disseminate his opinion, or to find
out whether the letter was distributed among employees or mailed. (Tr.
108).
B. Conclusions of Law
The General Counsel contends that Respondent violated section
7116(a)(1) when Mullins told the Union steward that she and other
employees should not send the letter to Congress.
Respondent defends on the basis that Mr. Mullins was simply
expressing his personal opinion or predicting adverse effects beyond the
employer's control. Respondent claims the opinion or prediction was not
coupled with any threat of reprisal or promise of benefit and was not
made under coercive conditions. See section 7116(e) and Oklahoma City
Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA 159
(1981).
Section 7102 of the Statute expressly assures to each employee the
right to act for a labor organization in the capacity of a
representative and the right, in that capacity, to present the views of
the labor organization to the Congress.
The standard by which one may determine interference, restraint, or
coercion is not the subjective perceptions of the employee, nor is it
the intent of the employer. Rather, the test is whether, under the
circumstances of the case, the employer's conduct may reasonably tend to
coerce or intimidate the employee, or, in the case of a statement,
whether the employee could reasonably have drawn a coercive inference
from the statement. Federal Mediation and Conciliation Service, 9 FLRA
199 (1982); Army and Air Force Exchange Service, Ft. Carson, Colorado,
9 FLRA 620 (1982); Department of the Treasury, Internal Revenue
Service, Louisville District, 11 FLRA 290 (1983).
There is no dispute that Mullins summoned Sansom to discuss with her
what he recognized as a Union sponsored letter which employees were to
use in writing their Congressmen. Mullins expressed his displeasure
over the letter and told Sansom that employees should not send the
letter; the letter could hurt her and the other employees more than it
would help, because there were those who would use it to fuel their
efforts to close down commissaries. Mullins' statements were, no doubt,
designed to discourage Sansom from passing out the letter and to
discourage her, and through her possibly other employees, from sending
the letters.
It is concluded from all the circumstances that a reasonable employee
would interpret Commissary Officer Mullins' remarks as statements of
agency management and not merely expressions of his own personal views.
The remarks were made by the head of the Commissary, not a lower-level
supervisor, and were addressed to Sansom in Mullins' office, to which
she had been summoned for the purpose. Compare Army and Air Force
Exchange Service, Ft. Carson, Colorado, supra, 9 FLRA at 626.
Mullins' statement contained no explicit or implicit threat of
reprisal or force or promise of benefit. The thrust of his remarks,
that the letter would be harmful to employees and could possibly play a
part in closing down the Commissary, was simply a prediction of a
possible adverse effect or result of the Union's letter writing
campaign. It was clear from Mullins' remarks that neither he nor the
Commissary had an interest in, or desired, to bring about this adverse
result. Rather, the action would possibly be taken by outside third
parties, namely, the Congress. Under the circumstances, the statement
was protected free speech and was not made under coercive conditions and
would not tend to coerce a reasonable employee. Federal Mediation and
Conciliation Service, 9 FLRA 199 (1982); Internal Revenue Service,
Mid-Atlantic Service Center, 4 A/SLMR 520 (1974); Department of
Transportation, Federal Aviation Administration, Denver Tower, Colorado,
Case No. 7-CA-823, ALJDR 18 (1983). Compare United States Army and Air
Defense Center and Fort Bliss, Fort Bliss, Texas, 12 FLRA 719, 727
(1983) where a violation of section 7116(a)(1) was found where the
supervisor implicitly threatened to make adverse changes in personnel
policies as a consequence of the union raising an issue.
It is also noted that although the proposed letter was drafted by the
Union, it was intended to be adopted and sent by individual employees as
a statement of their own individual views and not as their presentation
to the Congress of the views of the Union. Section 7102 protects
representatives of labor organizations in their presentation of the
views of the labor organization to Congress. Therefore, even assuming
that telling Ms. Sansom not to send the letter interfered with her
communicating with a member of Congress, such conduct would be a
violation of 5 U.S.C. 7211 /6/ and not interference with section 7201
rights or a violation of section 7116(a)(1). Cf. United States Air
Force, Lackland Air Force Base, 6 A/SLMR 226, 6 A/SLMR 84, 86 (1976).
Based on the foregoing and conclusions, it is recommended that the
Authority issue the following Order.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the United States Air Force, Lowry Air
Force Base, Denver, Colorado, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing Louise Figueroa,
or any other employee, by inserting any remark in any appraisal
form or reference letter regarding the protected union activities
of Louise Figueroa or any other employee.
(b) Making any statement or comment which interferes with,
restrains, or coerces Louise Figueroa or any other employee in the
exercise of the right accorded him or her by the Federal Service
Labor-Management Relations Statute to act for a labor organization
in the capacity of a representative and the right, in that
capacity, to represent the views of the labor organization to
appropriate authorities.
(c) In any like to related manner, interfering with,
restraining, or coercing 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 Statute.
(a) Post at its facilities copies of the attached Notice marked
"Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the Commander and
shall be posted and maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted. The Commander shall take reasonable steps to insure that
such notices are not altered, defaced, or covered by any other
material.
(b) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director,
Region Seven, Federal Labor Relations Authority, Denver, Colorado,
in writing, within 30 days from the date of this order, as to what
steps have been taken to comply herewith.
IT IS FURTHERED ORDERED, that the complaint, in all other respects,
be, and it hereby is, DISMISSED.
/s/ GARVIN LEE OLIVER
GARVIN LEE OLIVER
Administrative Law Judge
Dated: December 7, 1983
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, restrain, or coerce Louise Figueroa, or
any other employee, by inserting any remark in any appraisal form or
reference letter regarding the protected union activities of Louise
Figueroa or any other employee.
WE WILL NOT make any statement or comment which interferes with,
restrains, or coerces Louise Figueroa or any other employee in the
exercise of the right accorded him or her by the Federal Service
Labor-Management Relations Statute to act for a labor organization in
the capacity of a representative and the right, in that capacity, to
present the views of the labor organization to appropriate authorities.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
. . .
(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 of compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 7,
whose address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202,
and whose telephone number is: (303) 837-5224.
--------------- FOOTNOTES$ ---------------
/1/ Respondent's Motion to Correct the Transcript is granted; the
transcript is hereby corrected as set forth therein.
/2/ It reads, "Compared to other individuals doing about the same
work, does the employee show more initiative in starting, carrying out
and completing projects?" A rating of 3 would correspond to "less
initiative." A rating of 4 would correspond to "slightly less
initiative." (G.C. Exhs. 2, 3 and 4)
/3/ Margaret Moore was a former Commissary employee who filed several
complaints with the Union alleging that management was discriminating
against her. (Tr. 37).
/4/ Gabel testified that he was busy when Figueroa asked for the time
sheets and felt she could obtain the information elsewhere. He did not
remember calling her a troublemaker, but claims Figueroa told him he was
paranoid and had a problem. (Tr. 83-85). I credit Figueroa's version
of this incident.
/5/ I credit Mr. Mullins' testimony as to the content of the letter
in issue.
/6/ 5 U.S.C. 7211 provides:
The right of employees, individually or collectively, to
petition Congress or a Member of Congress, or to furnish
information to either House of Congress, or to a Committee or
Member thereof, may not be interfered with or denied.
See the earlier version of this law, Public Law 89-554, Sept. 6,
1966, 80 Stat. 523, which, prior to the 1978 amendment, was codified as
5 U.S.C. 7102.