[ v20 p705 ]
20:0705(84)CA
The decision of the Authority follows:
20 FLRA No. 84
UNITED STATES AIR FORCE
DAVIS-MONTHAN AIR FORCE BASE
TUCSON, ARIZONA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2924, AFL-CIO
Charging Party
Case No. 8-CA-40371
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. Thereafter, the Respondent filed exceptions to the Judge's
Decision and the General Counsel filed an opposition to the 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 0rder. /1/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the United States Air Force, Davis-Monthan Air Force Base, Tucson,
Arizona, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees by
threatening to discipline any agents of the American Federation of
Government Employees, Local 2924, AFL-CIO, or any other exclusive
representative, for protected conduct occurring during the performance
of their representational functions.
(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 Statute:
(a) Post at its facilities located at the Davis-Monthan Air Force
Base, Tucson, Arizona, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by an appropriate official 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 VIII, 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.
Issued, Washington, D.C., November 22, 1985
(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Respondent excepted to certain credibility findings made by
the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge has had the advantage of
observing the witnesses while they testified. The Authority will not
overrule a Judge's resolution with respect to credibility unless a clear
preponderance of all the relevant evidence demonstrates that such
resolution was incorrect. The Authority has examined the record
carefully, and finds no basis for reversing the Judge's credibility
findings.
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 by
threatening to discipline any agents of the American Federation of
Government Employees, Local 2924, AFL-CIO, or any other exclusive
representative, for protected conduct occurring during the performance
of their representational functions.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
---
(Agency or Activity)
Dated:---
By:---
(Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Region VIII, Federal Labor Relations Authority, whose
address is: 350 South Figueroa Street, 10th Floor, Los Angeles,
California 90071, and whose telephone number is: (213) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
UNITED STATES AIR FORCE DAVIS-MONTHAN
AIR FORCE BASE TUCSON, ARIZONA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2924, AFL-CIO
Charging Party
Deborah Wagner, Esquire For the General Counsel
Michael T. Coiro For the Charging Party
Major Charles D. Beckenhauer For the Respondent
Before: BURTON S. STERNBURGE Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to a charge filed on July 23, 1984, by the American
Federation of Government Employees, Local 2924 (hereinafter called the
AFGE or Union), a Complaint and Notice of Hearing was issued on October
29, 1984, by the Regional Director for Region VIII, Federal Labor
Relations Authority, Los Angeles, California. The Complaint alleges
that the United States Air Force, Davis-Monthan Air Force Base, Tucson,
Arizona, (hereinafter called the Respondent or Air Force Base), violated
Section 7116(a)(1) of the Federal Service Labor-Management Relations
Statute, (hereinafter called the Statute), by virtue of its actions in
threatening a unit employee with removal because of his participation in
protected union activities.
A hearing was held in the captioned matter on January 18, 1985, in
Tucson, Arizona. All parties were afforded the full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post hearing briefs on February 19, 1985, which
have been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The Union is the exclusive representative of a unit consisting, among
others, of all wage grade employees serviced by the Central Civilian
Personnel Office, Davis-Monthan Air Force Base. The Union and the
Respondent have been parties' to a number of collective bargaining
agreements covering such employees for a number of years. The most
recent collective bargaining contract has been effective since October
6, 1980.
On a date unspecified in the record, Mr. John Sullivan, a unit
employee, was awarded a one day disciplinary suspension. The suspension
was grieved by the Union and subsequently, at the third step of the
grievance procedure, reduced to a "counseling." Mr. Edward Margosian,
Vice-President of the Union, served as Mr. Sullivan's representative
during the grievance proceedings.
On June 4, 1984, Mr. Sullivan went to Mr. James R. Chisum's office
for purposes of receiving his "counseling". /1/ Mr. Margosian appeared
at Mr. Chisum's office shortly after Mr. Sullivan. Upon Mr. Margosian's
entry into the office, Mr. Chisum proceeded to present Mr. Sullivan his
971 file, which is a supervisor's record of the employee's employment
history. Although, not entirely clear from the record whether certain
notations were in the 971 file of Mr. Sullivan or about to be put in, it
is clear that the entries became the subject matter of a conversation
between Mr. Margosian and Mr. Chisum.
During the course of the conversation wherein the merits of the 971
entries were being discussed, Mr. Margosian admittedly asked Mr. Chisum
"if he was a probationary manager." According to Mr. Margosian, Mr.
Chisum looked up and asked if he was threatening him. Further,
according to Mr. Margosian, he stated "No, I am not threatening you."
According to Mr. Margosian, he then explained his rationale "as to why
he asked the question". When asked to specifically state what he told
Mr. Chisum following his denial that the question was a threat Mr.
Margosian testified as follows:
"Okay, the reason why I asked him that question was I wanted to
establish-- I wanted to establish the mitigating circumstances as
to why the supervisor was not cognizant of the Rules and
Regulations that pertained to putting entries in on employee's
971, and that the entries were not warranted, and the reasons why
they weren't warranted, and he was not cognizant of those
reasons."
Mr. Chisum then replied that he perceived his question as a threat.
Mr. Margosian then told Mr. Chisum "my question is not a threat." At
that point Mr. Sullivan interjected "that's not a threat." He is just
asking a question." Thereafter, the parties proceeded to discuss the 971
entries. Upon leaving the meeting Mr. Margosian informed Mr. Chisum
that he was going to check out some of the facts and would get back to
him in a couple of days.
According to Mr. Sullivan, after he and Mr. Margosian became aware of
the 971 entries, Mr. Margosian asked Mr. Chisum if he was a probationary
supervisor. When Mr. Chisum replied in the affirmative, Mr. Margosian
then stated, "That might explain why these entries are derogatory and
false. Maybe you don't know the full rules and regulations about 971
entries." Mr. Chisum then replied, "I know all the regulations about 971
entries, and they stay in there." According to Mr. Sullivan, the meeting
ended with Mr. Margosian telling Mr. Chisum that he was going to check
on the 971 entries and investigate them a little bit further.
According to Mr. Chisum, during the meeting Mr. Margosian stated "you
are on probation at this time, aren't you?" He, Mr. Chisum replied,
"What does this have to do with this meeting." He further added that he,
Mr. Chisum, had 28 years of service and he, Mr. Margosian, did not scare
him. Further according to Mr. Chisum, following the above exchange Mr.
Margosian made no further remarks about Mr. Chisum's probationary
status, but "did say he was going to have me investigated because he
felt I wasn't doing my job."
Following the meeting, Mr. Chisum wrote up a memorandum of the
meeting and forwarded it to the Civilian Personnel Office. The
memorandum which described in detail many of Mr. Margosian's questions
concerning the 971 entries, how they were made, and whether or not Mr.
Sullivan had advanced notice of same, went on to state as follows:
At that time the union representative ask me if I was on probation
and I said yes. What would that have to do with this? Then I
said I have 28 years in government work and you don't scare me.
The union representative ask me to remove the form 971 entries and
I said no. Then the union representative said your not doing your
job either and I am going to prove it. The Union representative
ask for the aircraft tail no. that the entries were based on. I
said I would get them for him - then the union representative said
I am going to do some checking on you and on the 971 entries made
on Mr. Sullivan. We will be back in 2 or 3 days for another
meeting. I said OK this meeting is over have a good day.
On June 13, 1984, Mr. Margosian was summoned to the Civilian Office
of Personnel. Upon entering the office of Mr. James Murphy, the
Civilian Personnel Officer, he was told to sit down. Whereupon, Mr.
Murphy told him, "The next time you threaten a manager of mine, I'm
going to have you removed from government service. Do you understand
what I am saying." Mr. Margosian asked him, Mr. Murphy, "On what basis
are you making these remarks." Mr. Murphy replied that he had a letter
from Mr. Chisum wherein it was reported that during a grievance meeting
he, Mr. Margosian, had asked Mr. Chisum whether he was a probationary
manager and that Mr. Chisum perceived the question as a threat. Mr.
Murphy further told Mr. Margosian that he "made a tactical error and
that he did not want to see Mr. Margosian get into trouble." Mr.
Margosian replied that he did not think that he had made a tactical
error and that he had merely asked the man a question. Mr. Margosian
then used Mr. Murphy's telephone to call Mr. Joseph Picca, the Secretary
Treasurer of the Local, who at the time was the next ranking officer in
the Local. Mr. Picca arrived at Mr. Murphy's office approximately
twenty minutes later. During the interim, according to Mr. Margosian,
he tried to tell Mr. Murphy that he was not trying to discredit Mr.
Chisum but that some of the 971 entries were false. Mr. Murphy kept
repeating that he, Mr. Margosian, had made a tactical error.
Subsequently, according to Mr. Margosian and Mr. Picca, when Mr.
Picca arrived at the office, Mr. Margosian summed up what had happened.
Mr. Picca then asked Mr. Murphy how he could perceive a question as a
threat. Mr. Murphy then pointed out that they had a supervisor in the
same shop that had been demoted while he was in probationary status and
Mr. Chisum perceived the question to be a threat to his status as a
foreman. The discussion turned to other subjects following Mr. Murphy's
statement to Mr. Margosian that if it happened again he would be removed
from government service.
According to Mr. Murphy, upon reading Mr. Chisum's memorandum
covering the June 4th meeting and noting that the question had no part
in the investigation", he concluded that the question concerning Mr.
Chisum's probationary status was related to the personnel action taken
several months earlier with respect to the removal of another supervisor
during his probationary period. In such circumstances he construed the
remark to constitute a threat to Mr. Chisum's supervisory status.
Further, according to Mr. Murphy, prior to confronting Mr. Margosian he
had one of his aides check with Mr. Chisum to see if he indeed perceived
the question as a threat. Upon receiving an affirmative reply he
summoned Mr. Margosian to his office.
When Mr. Margosian arrived at his office he told Mr. Margosian as
follows:
"Ed, it has been brought to my attention that when you were
running one of your investigations as a representative of
somebody, that you exceeded the authority of your office. You
threatened a supervisor to a point where you were trying to scare
him into doing something that he didn't feel like doing.
"The threat had nothing to do with your investigation except to
scare the individual. An this intolerable. And I am going to
tell you flat out right now if you do it again, I will bring
charges against you. And if you keep it up, I will get you fired.
That's all."
According to Mr. Murphy, Mr. Margosian's only response was to accuse
Mr. Murphy of threatening him.
Discussion and Conclusions
The General Counsel, relying primarily on the Authority's decision in
Department of the Navy, Puget Sound Naval Shipyard, Bremerton,
Washington, 2 FLRA No. 7, takes the position that Mr. Margosian's action
in asking Mr. Chisum whether he still was a probationary supervisor did
not constitute "flagrant misconduct" beyond the ambit of protected
activity. In such circumstances, the General Counsel urges a Section
7116(a)(1) finding since the warning issued by Mr. Murphy to Mr.
Margosian tended to interfere with, restrain and coerce him in the
exercise of his Section 7102 right to freely, and without fear of
reprisal, to act as a union representative.
Respondent, on the other hand, takes the position that the question
was tantamount to a threat, and conceived as such by Mr. Chisum, and
therefore exceeded the bounds of protected activity. Accordingly,
Respondent was well within its rights in admonishing Mr. Margosian that
a reoccurrence of such conduct would result in appropriate discipline,
namely, discharge from the Federal Service. In support of its position,
Respondent points out that the remark was unrelated to the subject
matter under discussion and was an attempt to bring pressure upon the
supervisor to remove the 971 entries or face complaints with respect to
his qualifications as a supervisor.
Having observed the witnesses and their demeanor, I credit Mr.
Margosian's testimony that following his question concerning whether Mr.
Chisum was still a probationary supervisor he explained the reasons for
the question. To the extent that Mr. Chisum's testimony does not
indicate that Mr. Margosian proffered an explanation for his question, I
do not conclude that his testimony was in any degree fabricated.
Rather, Mr. Chisum impressed me as a very sensitive gentleman who became
incensed at the suggestion that he might not know the rules and
regulations and turned a deaf ear to any explanations that might have
been forthcoming from Mr. Margosian following his unexpected challenge
to Mr. Chisum's qualifications.
Having credited Mr. Margosian's testimony that he followed up his
question concerning Mr. Chisum's probationary status with an explanation
of the reason for the question, I find, contrary to the contention of
the Respondent, that Mr. Margosian did not threaten Mr. Chisum and
thereby possibly exceed the bounds of protected union activity.
Accordingly, having found that Mr. Margosian's actions fell within the
protection of the Statute, it follows that Mr. Murphy's threat of future
disciplinary action predicated upon a reoccurrence of such protected
union activity was violative of Section 7116(a)(1) of the Statute since
the threat had a tendency to interfere with, coerce and restrain Mr.
Margosian in the future exercise of his Section 7102 right to freely and
without fear of reprisal, act as a union representative.
Moreover, even if it be concluded that Mr. Margosian's had not
proffered a reason for his question, I still could not find, as urged by
Respondent, that Mr. Margosian's action in merely propounding the
question exceeded the bounds of protected union activity. Respondent's
position is based solely upon the assumption that the only logical
reason for the question was to put Mr. Chisum on notice that he could
anticipate the same future as his predecessor, namely demotion during
his probationary period, if he, Mr. Chisum, did not remove the 971
entries. However, contrary to Respondent, an equally valid assumption
would be that the question was intended to be derogatory in nature and
convey to Mr. Chisum that due to his short tenure as a foreman he lacked
the necessary expertise in the area of 971 entries. /2/
In any event, I find the question, standing alone, to be too
ambiguous to support Respondent's position that it constituted a threat
and therefore fell outside the ambit of protected union activity.
Having concluded that the Respondent violated Section 7116(a)(1) of
the Statute by threatening Mr. Margosian because of his participation in
activities protected by the Statute, I recommend that the Federal Labor
Relations Authority issue the following order designed to effectuate the
purposes and policies of the Statute.
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the United States Air Force, Davis-Monthan Air Force Base, Tucson,
Arizona shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees by
threatening to discipline any agent of the American Federation of
Government Employees, Local 2924, AFL-CIO, or any other exclusive
representative, for conduct occurring during their performance of
representational functions. (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 Statute:
(a) Post at its facilities located at the Davis-Monthan Air Force
Base, Tucson, Arizona, 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 of
said activities 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) Notify the Regional Director of Region
VIII, Federal Labor Relations Authority, 350 South Figueroa
Street, 10th Floor, Los Angeles, California, within 30 days from
the date of this Order as to what steps have been taken to comply
herewith.
(s)---
BURTON S. STERNBURG
Administrative Law Judge
--------------- FOOTNOTES$ ---------------
/1/ Mr. Chisum was the foreman in the Hydraulic Shop and Mr.
Sullivan's supervisor. According to the record, Mr. Chisum, having
received his promotion to foreman on November 7, 1983, was still within
his one year probationary period. Further, according to the record, Mr.
Chisum's predecessor, a Mr. Donnerstag, had been removed from the
position of foreman during his probationary period due to "improper
management."
/2/ The utterance of derogatory remarks by a union representative has
been held to be am insufficient basis for removing his participation in
representational activities from the protection of the Statute.
Veterans Administration, Region Office, Denver, Colorado, 2 FLRA No. 84.
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 our employees by
threatening to discipline any agent of the American Federation of
Government Employees, Local 2924, AFL-CIO, or any other exclusive
representative, for conduct occurring during their performance of
representational functions.
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 or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region VIII,
whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles,
California 90071 and whose telephone number is: (213) 688-3805 or FTS
8-798-3805.