20:0818(102)CA - 162nd Tactical Fighter Group, Arizona Air NG, Tucson, AZ and AFGE Local 2924 -- 1985 FLRAdec CA
[ v20 p818 ]
20:0818(102)CA
The decision of the Authority follows:
20 FLRA No. 102
162ND TACTICAL FIGHTER GROUP
ARIZONA AIR NATIONAL GUARD
TUCSON, ARIZONA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2924, AFL-CIO
Charging Party
Case No. 8-CA-40172
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that 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. Thereafter, the Respondent filed exceptions
to the Judge's Decision and a supporting brief, and the General Counsel
filed an opposition to the Respondent'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 made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Specifically, the
Respondent excepts to the Judge's ruling that an individual should not
be permitted to testify, and contends that such ruling constituted a
denial of due process. The Authority adopts the Judge's ruling in this
regard, noting his finding that the individual had not been sequestered
during the hearing as the other witnesses had been sequestered pursuant
to the parties' agreement, and noting further the Judge's observation
that the Respondent's offer of proof as to what the individual's
testimony would be if he were permitted to testify demonstrated that
such testimony was not material to the issues to be decided in the case.
In this latter regard, there has been no showing of prejudice to the
Respondent's case due to the unavailability of this witness. Upon
consideration of the Judge's Decision and the entire record, the
Authority hereby adopts the Judge's findings, /1/ 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 162nd Tactical Fighter Group, Arizona Air
National Guard, Tucson, Arizona shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing its civilian employees
by telling the employees that they are being watched more closely
because of their exercise of protected rights under the Statute and by
threatening the employees that they will come under closer scrutiny
because of their exercise of such protected rights, including the right
to participate in an unfair labor practice hearing before the Federal
Labor Relations Authority.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of 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 Tucson, Arizona facilities 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 the
Commander, or a 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 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., December 11, 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 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 tell our civilian employees that they are being watched
more closely because of their exercise of protected rights under the
Statute and by threatening the employees that they will come under
closer scrutiny because of their exercise of such protected rights,
including the right to participate in an unfair labor practice hearing
before the Federal Labor Relations Authority.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights guaranteed 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) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
162ND TACTICAL FIGHTER GROUP ARIZONA
AIR NATIONAL GUARD TUCSON, ARIZONA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2924, AFL-CIO
Charging Party
Victor R. Schwanback, Esq. For the Respondent
Jonathon S. Levine, Esq. For the Charging Party
Before: ELI NASH, JR. Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. section 7107 et seq.
(hereinafter called the Statute). It was instituted by the Regional
Director of Region 8 based upon an unfair labor practice charge filed on
March 12, 1984, and amended on April 4, 1984-- /1/ , by the American
Federation of Government Employees, Local 2924, AFL-CIO, (hereinafter
called the Union), against the 162nd Tactical Fighter Group, Arizona Air
National Guard, Tucson, Arizona, (hereinafter called the Respondent),
alleging a violation of section 7116(a)(1) of the Statute. A Complaint
and Notice of Hearing issued on July 31, 1984, alleging that Respondent
threatened employees that working conditions would be worse after they
participated in a Federal Labor Relations Authority unfair labor
practice hearing and that employees had been watched more closely
because of their union activities in violation of section 7116(a)(1) of
the Statute.
Respondent's Answer denied the commission of any unfair labor
practices.
A hearing was held before the undersigned in Tucson, Arizona, at
which the parties were represented by counsel and afforded full
opportunity to adduce evidence and to call, examine, and cross-examine
witnesses and to argue orally. Timely briefs were filed by the
Respondent and the General Counsel and have been duly considered.
Upon consideration of the entire record in this case, including my
observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law, and recommendation.
Findings of Fact
On March 9, 1984, an unfair labor practice hearing involving the
162nd Tactical Fighter Group was scheduled to be heard in Tucson,
Arizona. The hearing, in Case No. 8-CA-30429 resulted from a directive
concerning official time for attendance at another unfair labor practice
hearing which occurred in June 1973.
On the evening of March 7, 1984, Master Sergeant Ernest Pain, an
admitted supervisor, instructed employees Patrick McIntyre, Ernesto
Lopez and George LeFlohic, to meet with him in Major Salcido's office.
All of the witnesses involved herein are uniformed members of the
Arizona Air National Guard. All are electronic mechanics and Sgt. Pain
is an electronic mechanic foreman. Although Sgt. Pain supervised these
employees he worked on the day shift while they worked the evening or
night shift. Their shifts, however overlapped. At the time of the
above meeting, Sgt. Pain was aware that McIntyre and Lopez had been
subpoenaed to testify at an Authority hearing on Friday, March 9, 1984.
Sgt. Pain began the meeting by stating that the employees had not
done any work on the previous evening when there had been work to be
done. Lopez responded that when they reported to work the previous day,
Victor Mendoza from the day shift had told him that there was no work to
be done except to cover the airplanes coming down if they needed to be
repaired. Lopez informed Pain that all the airplanes had come back in
good shape so there was nothing to be done. LeFlohic added that they
had all taken an hour for cleanup and there wasn't anything else to do.
To which Pain retorted that there was an adapter power supply (APS) and
two heading repeater modules (HRM's) that had needed to be run that
didn't get worked on. McIntyre replied that when he went back to look
at the APS that was on the bench, there was a "350" tag on it, and it
had been marked "completed." McIntyre also told Pain he hadn't noticed
the HRM's when he had gone into the back room and inquired as to why the
day shift hadn't run them. Pain responded that they had come in late in
the shift and they couldn't get anybody on day shift to work on them.
Sgt. Pain continued that if the employees couldn't have found any work
to do then they could have worked on their MEI project. He said he had
looked at those projects and had seen that they hadn't worked on them at
all.
According to the employees, after Sgt. Pain told them of the work
they had allegedly failed to do, he went on to say that a night shift
supervisor had turned them in for sitting around the supervisor's desk,
drinking and spilling coffee and fooling around, and that a T.O. cabinet
had been broken. The employees denied sitting around his desk, fooling
around and spilling coffee and informed Sgt. Pain that the T.O. glass
had been broken accidently by another crew chief, Horner. The employees
inquired which night shift supervisor had turned them in but, Sgt. Pain
would only reply, "you've been turned in for this." Specifically, the
three employee witnesses testified that Sgt. Pain said words to the
effect that the employees were being watched closely and that after
Friday they would come under closer scrutiny, e.g. "You're being watched
closely, and you'll be watched even more closer come Friday," "They're
keeping a close eye on your group and after Friday it will get a lot
worse." "He said that we would be watched closely after Friday it would
get worse." "WE were being watched closely, and Friday, things are going
to get worse that Friday." "Well, if you think you're being watched now,
wait until after Friday." Lopez and LeFlohic stated that the statement
by Sgt. Pain was made about the middle of the meeting. Sgt. Pain denies
making any of the above-referenced statements. LeFlohic inquired,
"(d)oes this have anything to do with that trial Friday?" Sgt. Pain did
not respond but only grinned at the employees. Sgt. Pain admits that at
some point in the conversation LeFlohic accused him of coming down hard
on the employees because of the Authority hearing. The only significant
event noted on the record to occur on Friday, March 9, 1984, was the
Authority unfair labor practice hearing.
When the conversation continued, Sgt. Pain informed McIntyre and
Lopez that he would be getting together with Willie Kyzer the following
day to discuss what uniform they would have to wear for the March 9
hearing. Sgt. Pain then informed the employees that the various
avionics supervisors had gotten together and discussed the elimination
of the night shift which elicited an immediate negative response from
the employees, particularly McIntyre and Lopez. The remainder of the
meeting concerned the proposed elimination of the night shift, after
which the meeting concluded after lasting for a little over an hour.
After the meeting, McIntyre and Lopez investigated Sgt. Pain's
claims. According to them, when they returned to the shop they noticed
that the APS was gone; they also noticed that the HRM's were in the
"Awaiting Parts" bin when they should have been in the "Awaiting
Maintenance" bin. Then McIntyre checked the "form 1348", for the two
HRM's which indicated that the HRM's had been received by the day shift
at 9:20 a.m. of March 6, 1984 and not at the end of the shift as Pain
had told the employees. McIntyre and Lopez also checked the dispatch
logs for March 6, 1984, which showed that the day shift had had only a
couple of jobs to perform, leaving ample time to run the HRM's.
Meanwhile, LeFlohic returned to the shop and was told by McIntyre
that the 1348's showed that the HRM's had been signed for at 9:20 a.m.
the morning when Sgt. Pain had said they had come in towards the end of
the shift. As a result, LeFlohic called Sgt. Pain and told him that the
HRM's had been signed for in the morning. Sgt. Pain replied, "(y)eah, I
know they were, I signed for them, I didn't have anybody available to
work on them at the time." LeFlohic told the other two employees of his
conversations with Pain who informed him that Mendoza, not Pain, had
signed for the HRM's, and that according to the dispatch log, four day
shift employees had been available to service the HRM's. McIntyre and
Lopez then ran the two HRM's, cleaned up the shop, after which McIntyre
went to get the MEI kit for him and LeFlohic to work on. McIntyre could
not find the MEI project in the forward supply part room or the shop
where he works and as a result, went to the hanger to see if it was
there. He proceeded to the avionics section where test equipment is
calibrated and was shown a log which showed that the project was at
Davis-Monthan Air Force Base where it had been a week and a half in
order to be calibrated. When he returned to the shop he told LeFlohic,
"Hey George, that MET kit's not here. I checked over in "Ads" and the
paperwork over there shows that it has been gone a week and a half so
there's no way Ernie (Sgt. Pain) could have looked at it."
On that night, the employees' night shift supervisor, John Dupont,
came into the shop. The employees asked him if he had been the
supervisor who had turned them in, which he denied. Thereafter, George
Carpenter, the night shift supervisor in charge of the entire base, came
into the shop and also denied turning the employees in for fooling
around. Dupont and Carpenter were apparently the only night shift
supervisors who could possibly have turned the employees in on the night
of March 6, 1984.
Following the March 9, 1984, FLRA hearing, sometime during the middle
of March 1984, Sgt. Pain and Lopez met concerning the latter's
preevaluation. Sgt. Pain began the meeting by asking Lopez, "Have you
noticed that you and Pat have been kept a closer eye on?" Lopez replied,
"Yes, I have. As a matter of fact I talked to Archie . . . and he
denied it." Pain merely looked at Lopez, smiled, and went into the
evaluation. "Archie" was Lopez's night shift supervisor at the time.
Lopez assumed that Pain was referring to Pat McIntyre.
DISCUSSION AND CONCLUSIONS
The amended complaint in this matter alleges that certain conduct of
an admitted supervisor interfered with, restrained, and coerced several
employees in violation of section 7116(a)(1) of the Statute. The
testimony of the witnesses upon which the amended complaint is based
presents a sharp conflict which can be resolved only through credibility
determinations.
The Charging Party's witnesses McIntyre, Lopez and LeFlohic all
testified that Sgt. Pain, in essence, told them "you're being watched
closely, and you'll be watched more closely after Friday." While the
wording of their testimony differs, there are no inherent
inconsistencies which would cause one to discredit that testimony.
Their testimony becomes even more plausible when one observes that the
only significant event which was to occur on Friday, March 9 was the
Authority unfair labor practice hearing in which several of the
witnesses herein had been subpoenaed to testify. Absent evidence of any
other significant event to occur on that day, it is reasonable to assume
that Sgt. Pain's reference was to the unfair labor practice hearing. I
credit their testimony and reject any inference that this statement was
made regarding the work habits of the employees involved.
In reflecting the testimony of Sgt. Pain, I rely not only on his
demeanor as a witness but also, reject Respondent's argument that Sgt.
reference was to certain manpower changes. While it is true that
manpower changes were discussed, it is clear from the record that those
changes were to take place at a later time. Further, manpower changes
were specifically discussed during this meeting albeit much later in the
conversation and there was no mention of any event to connect such
changes with Friday, March 9. Therefore, I find no connection in the
record between the manpower changes and March 9. Moreover, the unfair
labor practice hearing which was about to occur no doubt charged some
emotions creating a situation where these employees could reasonably
have drawn a coercive or intimidating inference from Sgt. Pain's
statement. Federal Mediation and Conciliation Service, 9 FLRA 199
(1982). In all the circumstances of the case, it is my view that the
General Counsel established by a preponderance of the evidence that Sgt.
Pain made certain statements to these three employees which were
coercive in nature.
Based on the foregoing, it is found that Sgt. Pain's remark to
employees McIntyre, Lopez and LeFlohic that "you're being watched
closely, and you'll be watched more closely after Friday" while he was
relating job deficiencies constituted a threat and coercion and was
violative of section 7116(a)(1) of the Statute.
Similarly, Sgt. Pain's remark to Lopez during the mid-March 1984
preevaluation meeting reaffirmed his earlier prediction to all three
employees that they would be under closer scrutiny because of their
participation in the March 9, 1984 hearing before the Authority. This
statement which occurred sometime later reinforces my view that Sgt.
Pain's March 7 statement was indeed a threat which was coercive in
nature and a threat which Respondent intended to carry out.
Accordingly, I find as alleged that the inquiry to Lopez also
constitutes interference, coercion and a threat in violation of section
7116(a)(1) of the Statute.
Based on the foregoing it is recommended that the Authority adopt the
following:
ORDER
Pursuant to Section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 USC 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 162nd Tactical
Fighter Group (ANG) (TAC), Tucson, Arizona, shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing its civilian
employees by telling the employees that they are being watched
more closely because of their exercise of protected union
activities and by threatening the employees that they will come
under closer scrutiny because of their exercise of protected union
activities. (b) In any like or related manner, interfering with,
restraining or coercing its employees in the exercise of the
rights guaranteed under the Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Post at its Tucson, Arizona facility 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
the Commander and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices are customarily
posted. Reasonable steps shall be taken by the Union to ensure
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 8,
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.
---
ELI NASH, JR.
Administrative Law Judge
Dated: January 11, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ At the hearing, the General Counsel amended the Complaint to
delete paragraph 5(b).
Appendix A
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LA8OR 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 tell employees that they are being watched more closely
because of their protected union activities, including their right to
participate in a Federal Labor Relations Authority unfair labor practice
hearing.
WE WILL NOT threaten employees that they will be placed under closer
scrutiny because of their participation in a Federal Labor Relations
Authority unfair labor practice hearing.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce any employee in the exercise of the rights guaranteed 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 8,
whose address is: 320 South Figueroa Street, 10th Floor, Los Angeles,
California 90071 and whose telephone number is: (213) 688-3805,
FTS-8-798-3805.