[ v17 p341 ]
17:0341(50)CA
The decision of the Authority follows:
17 FLRA No. 50
GENERAL SERVICES ADMINISTRATION
CENTRAL OFFICE, REGION IV
INTERAGENCY MOTOR POOL
KENNEDY SPACE CENTER
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Case No. 4-CA-1058
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 practices alleged in the complaint and recommending that it
be ordered to cease and desist therefrom and take certain affirmative
action. 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.
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 and finds that no prejudicial error was committed. The rulings
are hereby affirmed. Upon consideration of the Judge's Decision and the
entire stipulated record, the Authority hereby adopts the Judge's
findings, conclusions and recommendations only to the extent consistent
herewith.
The Judge found, based upon a stipulated record without a hearing,
that the Respondent interfered with employees' protected rights under
section 7102 of the Statute, in violation of section 7116(a)(1) of the
Statute, by discontinuing its original termination plan and discharging
five rather than two temporary drivers because of the Union's "second
guessing." The Authority disagrees.
Thus, the Authority concludes that the evidence contained in the
stipulated record fails to support the Judge's finding that the
Respondent's actions interfered with, restrained or coerced employees in
the exercise of rights protected by the Statute. In this regard, as
noted by the Judge, the Union president was not acting as the exclusive
representative of the temporary drivers at the meeting of June 19
inasmuch as they were not members of the bargaining unit, and, as
further noted by the Judge, the record also does not indicate in what
capacity he was attending that meeting along with the Respondent's Equal
Employment Counselor. Indeed, there is no record evidence that the
temporary drivers either requested his assistance or even knew that he
would seek to act on their behalf, or were otherwise engaging in
protected activity under section 7102 of the Statute. Moreover, there
is no record evidence that the supervisor's statement at the June 19
meeting that he was tired of being second guessed concerning his
decision was directed toward the Union. Accordingly, the Authority
concludes that the General Counsel has failed to sustain the burden of
proving the allegations of the complaint that the Respondent violated
section 7116(a)(1) of the Statute by terminating several non-unit
temporary employees because the Union intervened on their behalf and
attempted to discuss their terms and conditions of employment. Cf.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 16 FLRA No. 21 (1984) (no evidence was presented that
discipline of a supervisor had a chilling effect on the exercise of
protected employee rights).
ORDER
IT IS ORDERED that the complaint in Case No. 4-CA-1058 be, and it
hereby is, dismissed.
Issued, Washington, D.C., March 27, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 4-CA-1058
-------------
OLLOWS -------
For the Respondent
Barbara S. Liggett, Esquire
For the General Counsel
Mr. Homer Mays
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal 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 17, 1980, and Vol. No. 46, No. 154, August 11,
1981, 5 CFR Chapter XIV, Part 2411, et seq.
Pursuant to an amended charge first filed on July 10, 1981, by the
American Federation of Government Employees, AFL-CIO (hereinafter called
the AFGE or Union), a Complaint /1/ and Notice of Hearing was issued on
September 29, 1981, by the Regional Director for Region IV, Federal
Labor Relations Authority, Atlanta, Georgia. The , Complaint alleges
that the General Services Administration Central Office, Region IV,
Interagency Motorpool Kennedy Space Center (hereinafter called the GSA
or Respondent), violated Section 7116(a)(1) of the Federal Service
Labor-Management Relations Statute (hereinafter called the Statute or
Act), by virtue of its actions in terminating temporary employees
Charles Parker, Walter Eldridge, Joseph Mitchell, and Shirley Shafer
because Mr. Homer Mays, President of Local 2498, intervened on their
behalf and attempted to discuss their terms and conditions of
employment.
Following the issuance of the Complaint and Notice of Hearing, all
parties entered into a stipulation of facts and exhibits and jointly
filed a motion with the Office of Administrative Law Judges wherein they
waived oral hearing and requested that the record be opened for the sole
purpose of receiving the stipulation and exhibits and that a decision be
rendered solely on the basis of such stipulation of facts and exhibits,
and the parties post-hearing briefs. The motion was granted on March
16, 1982, and the parties were given until April 16, 1982, to file
post-hearing briefs. The General Counsel and the Respondent submitted
post-hearing briefs which have been duly considered.
Upon the basis of the entire record, which of course, consists of the
stipulation of facts, stipulation of exhibits, and the parties
post-hearing briefs, I make the following findings of fact, /2/
conclusions, and recommendation.
Findings of Fact
The Union Local 2498 was granted exclusive recognition for an
appropriate unit, as set forth below, on February 4, 1966. On September
10, 1980, the Federal Labor Relations Authority certified a unit
consolidating all AFGE represented bargaining units with GSA in Case No.
3-UC-1. Since that date, the American Federation of Government
Employees (the national Union) has been the exclusive representative.
On November 21, 1974, an agreement between GSA Region 4 and Union Local
2498 was put into effect. Upon consolidation of the AFGE units, a
written agreement between GSA and AFGE outlined interim measures for the
relationship. On February 24, 1981, AFGE cancelled the interim
agreement, notified GSA that it would assume a national relationship.
On February 24, 1981, AFGE cancelled all collective bargaining
agreements. The parties hereto agree that as relates to all matters and
proceedings herein, the Union has been and remains the exclusive
representative of the employees of Respondent in an appropriate unit as
set forth and described in a collective bargaining agreement, which has
been in effect since on or about November 21, 1974.
The appropriate unit set forth in the agreement includes all civil
service employees of the Kennedy Space Center with Florida duty stations
including those in a TAPER status, who are classified as both
non-supervisory and non-professional, excluding professional,
supervisory, managerial, temporary and confidential employees.
In a letter dated June 17, 1981, the National Aeronautics and Space
Administration herein NASA, notified Respondent that due to NASA budget
limitation, the funding for five of the seven temporary drivers employed
by Respondent and utilized by NASA would terminate effective June 26,
1981. Respondent had, at NASA's request, previously hired seven drivers
on a temporary appointment not to exceed one (1) year. Since these
seven drivers were being funded by NASA on a reimbursable basis to
Respondent, the termination of that funding required the immediate
termination of those five employees unless Respondent was able to
continue funding.
On or about June 18, 1981, a meeting was arranged by Roger Willadsen,
Fleet Manager for Respondent's interagency motor pool at the Kennedy
Space Center. In attendance at that meeting was Mr. Willadsen and Mr.
Homer Mays, President of Union Local 2498. /3/ Mr. Mays and Mr.
Willadsen discussed NASA's request for the termination of five temporary
drivers and the plan Mr. Willadsen had developed for the absorption of
three of those five employees through detail of permanent employees.
Since the action would impact on permanent employees within the
collective bargaining unit, Mr. Willadsen arranged the discussion
meeting. Mr. Willadsen projected this absorption plan to be six weeks
in duration.
The plan as outlined at this meeting did not identify the three
employees to be absorbed, nor did it identify the two remaining
employees to be terminated. Mr. Mays made no specific objections to the
plan, though he did make the recommendation that terminations be made in
accordance with the collective bargaining agreement. Mr. Willadsen
indicated that performance would be a significant criteria in his
determination.
After discussions and after receiving recommendations from his line
supervisors, and after determining that the affected permanent employees
had voluntarily agreed to the temporary details, Mr. Willadsen informed
the temporary drivers of the planned disposition of all seven temporary
drivers. The original planned disposition was as follows:
(a) Employees Eldridge and Parker (males) would continue to be
funded by NASA.
(b) Employees Mitchell (male), Golden and Shafer (females) were
to be absorbed by Respondent.
(c) Employees Fisher and Ehrke (females) were to be terminated.
On or about June 19, 1981, after announcement of the employee
disposition, Mr. Mays requested a second meeting with Mr. Willadsen. In
attendance at that meeting were Mr. Mays, accompanied by Verdell Fayson,
the Equal Employment Counselor. /4/ At this meeting, Mr. Mays sought to
discuss the criteria being used to determine which employees should be
terminated and which employees should be retained. Mr. Mays challenged
the determination on the basis that: (a) seniority was not used as a
criteria, and (b) no equal employment counseling was sought before
making the determination to terminate only females. Mr. Willadsen
maintained that the plan and the method of implementation was a
management decision. As the discussion progressed, Mr. Willadsen
advised Mr. Mays and Fayson that he was tired of being "second guessed"
concerning this decision and, accordingly, he would rescind his original
planned disposition for the temporary drivers and would terminate five
drivers rather than two. Mr. Willadsen then contacted Respondent's
Region IV, Atlanta office of personnel by telephone to confirm his
decision to terminate all five of the temporary drivers. At the
conclusion of the telephonic conference, Mr. Willadsen again announced
that Respondent had decided to abandon the plan to absorb three
temporary employees and was reverting to the original mandate from NASA
to terminate five temporary employees.
On or about June 26, 1981, temporary employees Charles Parker, Walter
Eldridge, Joseph Mitchell, Shirley Shafer, and Dorothy Ehrke were
terminated.
Temporary employees Charles Parker, Walter Eldridge, Joseph Mitchell,
and Shirley Shafer would not have been terminated at that time but for
the intervention of Mr. Mays.
Discussion and Conclusions
The General Counsel takes the position that the Respondent violated
Section 7116(a)(1) when it announced on May 19, 1981, that it was
rescinding the original planned disposition for the temporary drivers
and would terminate five surplus temporary drivers rather than just two
surplus temporary drivers. Since the Respondent's action was admittedly
caused by Union President Mays' criticism of the original termination
plan, the General Counsel contends that Respondent's action made it
clear to all of Respondent's employees that the utilization of the
Union's assistance in future disputes would bring dire consequences.
According to the General Counsel, Respondent's action in creating such
an impression upon Respondent's employees was violative of Section
7116(a)(1) of the Statute in that it coerced and restrained the
employees in the exercise of their Section 7102 rights to form, join,
and assist a labor organization, freely and without fear of penalty.
The General Counsel does not contend that Respondent's action was
violative of Sections 7116(a)(2) and (5) of the Statute. Thus, the
General Counsel acknowledges that the Respondent was under no obligation
to bargain with Union concerning the temporary employees since they were
not members of the recognized unit and that the temporary employees were
not laid off or terminated because of any protected union activity.
The Respondent on the other hand takes that position that its action
did not violate Section 7116(a)(1) of the Statute. In support of its
position Respondent contends that inasmuch as the temporary employees
were not in the recognized unit it was under no obligation to bargain
with the Union over their conditions of employment. Further, according
to Respondent, the fact that the Union might have been appearing as the
personal representative of the temporary drivers does not alter this
conclusion, since concerted activity is not protected by the Statute.
Finally, according to Respondent, inasmuch as the stipulation "provides
inadequate evidence to support a finding of anti-union animus",
Respondent's actions could not be said to have created a "chilling"
effect on the bargaining unit employees.
It is well established that employees have a right to form, join or
assist a labor organization without fear of penalty or reprisal and that
interference with such right is violative of Section 7116(a)(1) of the
Statute.
In the instant case Respondent, admittedly, terminated five rather
than two temporary employees because it resented the Union President's
attempted intrusion on its decision to select two temporary employees
for termination without reference to either seniority or EEO
considerations.
Had the Union been acting in its capacity as exclusive representative
of unit employees, the law is clear, that Respondent's action in
rescinding the proposed plan would be violative of Section 7116(a)(1) of
the Statute since such retaliatory action clearly conveyed to the
employees, unit and non-unit alike, the impression and/or message that
utilization of union representation or assistance could, and indeed did,
result in dire economic consequences. Pennsylvania Army and Air
National Guard, A/SLMR No. 1085; Department of Transportation, FAA,
Airway Facilities Sector, Tampa, Florida, A/SLMR No. 725; Army and Air
Force Exchange Service (AAFES), Fort Carson, Colorado, 6 FLRA No. 108.
However, such is not the case. Mr. Mays was appearing not as the
exclusive representative of the unit employees but rather apparently as
the personnel representative of some of the temporary non-unit employees
who were scheduled for termination. In such circumstances, Respondent,
as pointed out supra, would distinguish the rights accorded its
employees and find no violation of the Statute. I cannot agree.
Employees, be they unit or non-unit employees, /5/ are accorded the
right to form, join, and assist a labor organization freely and without
fear of reprisal. To the extent that such right is interfered with, a
violation of Section 7116(a)(1) is established. Neither a literal
reading of the Statute, the legislative history, nor the case decisions
under the Executive Order and the Statute, indicate that a distinction
should be made when the union from which assistance is sought by an
employee is not the exclusive representative of the employee in a
recognized unit. In fact the only distinction in this respect concerns
the agency or activity's bargaining obligations, i.e. an agency is only
obligated to bargain with a union when it is the exclusive
representative in an appropriate unit.
While an agency is under no obligation to bargain and in fact meet
with a non-recognized or non-certified union except possibly as an
employee's personal representative, it is not free to penalize employees
because they have sought or accepted assistance from such union. It is
not the forum where remarks are made or actions taken which governs the
illegality of such acts or remarks but rather the nature of such acts
and remarks. If the acts or remarks interfere with the rights accorded
employees under the Statute then they are violative of Section
7116(a)(1) irrespective of the forum or circumstances where uttered or
taken. /6/ To hold otherwise would result in sanctioning coercive or
restraining statements or actions made by agencies during organizing
campaigns, because, similar to the circumstances herein, the Union would
not have at such time achieved the status of exclusive representative.
Accordingly, to the extent that Respondent contends that the June 19,
1981, meeting, was, at best, "concerted activity" and hence unprotected
by the Statute, I find, in accordance with the above analysis, that
irrespective of the nature of the meeting, Respondent is not relieved of
liability for any statements or actions emanating therefrom which have
the effect of interfering with its employees' statutory right. /7/
Further, again contrary to the contention of the Respondent, I find
that when a statement and/or an action is by its very nature coercive
and restraining, no independent evidence of union animus is necessary to
sustain a violation of the Statute. Here the very act, i.e.
discontinuing the original termination plan and discharging five rather
than two temporary drivers because of the Union's second guessing, is by
its very nature coercive.
Had Respondent discontinued or abandoned its plan because the Union
had demonstrated possible deficiencies in such plan or for that matter
any other legitimate reason, a different conclusion might well be in
order. However, such was not the case. The stipulation clearly
indicates that it was not the merits of the Union's objections to the
plan which motivated Respondent's action but rather the Union's "second
guessing". In such circumstances Respondent not only interfered with
the rights of Respondent's remaining employees to freely accept future
representation by the Union but also penalized the four discharged
temporary employees because of the Union's intervention on their behalf
and deprived them of any future opportunity they may have had to seek
union representation in connection with their respective working
conditions with the Respondent.
Having found and concluded that Respondent has violated Section
7116(a)(1) of the Statute, I recommend that the Authority issue the
following order designed to effectuate the purposes and policies of the
Statute. /8/
ORDER
Pursuant to Section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and
Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
2423.29(b)(1), the Authority hereby orders that the General Services
Administration Central Office, Region IV, Interagency Motorpool Kennedy
Space Center shall:
1. Cease and desist from:
(a) Terminating the employment of temporary employees Charles
Parker, Walter Eldridge, Joseph Mitchell and Shirley Shafer
because Local Union 2498, American Federation of Government
Employees, AFL-CIO intervened on their behalf and challenged a
management decision.
(b) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of their rights
guaranteed by the Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Make temporary employees Charles Parker, Walter Eldridge,
Joseph Mitchell, and Shirley Shafer whole for any monies lost due
to their terminations in retaliation for the intervention of Local
Union 2498, American Federation of Government Employees, AFL-CIO,
on their behalf.
(b) Post at the General Service Administration Central Office,
Region IV, Interagency Motorpool, Kennedy Space Center, Florida,
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 a responsible official of
Region IV, General Services Administration and they shall be
posted for 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily
posted. The Director shall take reasonable steps to insure that
such notices are not altered, defaced, or covered by any other
material.
(c) Notify the 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.
BURTON S. STERNBURG
Administrative Law Judge
Dated: May 11, 1982
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, restrain or coerce our employees in the exercise
of their rights assured in the Federal Service Labor-Management
Relations Statute by terminating the employment of temporary employees
Charles Parker, Walter Eldridge, Joseph Mitchell, and Shirley Shafer
because Local Union 2498, American Federation of Government Employees,
AFL-CIO, intervened on their behalf and challenged a management
decision. WE WILL NOT in any like or related manner, interfere,
restrain or coerce our employees in the exercise of the rights assured
them by the Federal Service Labor-Management Relations Statute. WE WILL
make temporary employees Charles Parker, Walter Eldridge, Joseph
Mitchell, and Shirley Shafer whole for any monies lost due to their
terminations in retaliation for the intervention of Local Union 2498,
American Federation of Government Employees, AFL-CIO, on their behalf.
. . . (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
question concerning this Notice or compliance with its provisions, they
may communicate directly with the Regional Director for the Federal
Labor Relations Authority whose address is: Suite 501-North Wing, 1776
Peachtree Street, N.W., Atlanta, Georgia 30309, and whose telephone
number (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ In the absence of any opposition, the General Counsel's motion to
amend the Complaint and substitute the name "Vivian Daniel Smith" for
the name "Daniel Smith" is hereby granted.
/2/ Since the record consists solely of facts and exhibits stipulated
by all parties, there is no dispute as to the facts. The factual
summary set forth infra, is for the most part a verbatim recitation of
the stipulation of facts.
/3/ The record does not indicate whether Mr. Mays was an employee of
Respondent.
/4/ The record does not indicate in what capacity Mr. Mays was
appearing at the meeting or whether Verdell Fayson was a part of
management or just a rank and file employee.
/5/ In reaching this conclusion it is noted that the Statute defines
an employee as "an individual employed in an agency". Inasmuch as the
temporary drivers involved herein are individuals employed by an agency,
they are therefore entitled to all the rights accorded "employees" under
the Statute.
/6/ See Department of Transportation, FAA, supra.
/7/ Respondent's reliance on VA Medical Center, Bath, New York, 4
FLRA No. 76 is misplaced. In such case the Authority merely concluded
that concerted activity was not protected by the Statute and was not, as
here, faced with any threats or other coercive actions emanating
therefrom.
/8/ Inasmuch as the record indicates that the temporary employees
would have only worked for six additional weeks at most, I shall only
order Respondent to make them whole.