AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2082, AFL-CIO
Respondent
and
HARRY W. JOHNSON, III, AN INDIVIDUAL
Charging Party
Case No. SF-CO-20199
William D. Fraser Mack McLeod For the Respondent
John R. Pannozzo, Jr., Esquire For the General Counsel
Before: BURTON S. STERNBURG 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 January 14, 1992 by Mr. Harry W.
Johnson, III, an individual, (hereinafter called the Charging Party
or Mr. Johnson), a Complaint and Notice of Hearing was issued by
the Regional Director of the San Francisco Regional Office, Federal
Labor Relations Authority, San Francisco, California on May 14,
1992. The Complaint, which was amended without objection at the
hearing, alleges that the American Federation of Government
Employees, Local 2082, AFL - CIO, (hereinafter called the
Respondent or Union), violated Section 7116(b)(1) of the Federal
Service Labor - Management Relations Statute, (hereinafter called
the Statute), by (1) confiscating a number of petitions to
decertify the Union as the exclusive representative of the
bargaining unit at Headquarters, 7th Infantry Division (Light),
Fort Ord, California, and (2) interrogating an employee concerning
his decertification activities.
A hearing was held in the captioned matter on June 24, 1992, in San
Francisco, California. All parties were afforded the 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 posted hearing briefs on August 6 and
7, 1992, respectively, 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
On or about August 16, 1991, Mr. Johnson, who had been President of
Local 2082 since June 1990, prepared a decertification petition
because he felt that the American Federation of Government
Employees (AFGE) District and National Offices had not been
supplying sufficient support to Local 2082 in connection with
contract negotiations being conducted by the Local. According to
Mr. Johnson, he had been receiving more support from a rival union
located at Monterey, California than he received from AFGE. The
petition which was directed to the "Federal Labor Relations
Authority" from the "Fort Ord Bargaining Unit Employees" stated as
follows:
We the undersigned employees assert that AFGE Local 2082 (The
Union), the currently recognized, or certified labor organization
no longer represents a majority of the employees in the unit. We
the undersigned recommend that this labor organization be
decertified in accordance with 5 U.S.C. 7111, and provide this
petition in support of DR - DECERTIFICATION OF EXCLUSIVE
REPRESENTATION PETITION FLRA Form 21.
Mr. Johnson placed the petitions in various areas throughout Fort
Ord, California where the unit employees worked. 1 He also gave a
number of petitions to Mr. Lyndle Pangle who at the time was a
Local 2082 shop steward. Between August 16, 1991 and approximately
October 15, 1991, according to Mr. Johnson, he collected
approximately 24 names on the petitions that he had been
circulating. In this connection, Mr. James Fisher, Chief of the
Management Employee Relations Branch and Labor Relations Officer at
Fort Ord, testified that on September 11, 1991, during a discussion
in his office, he was shown a decertification petition by Mr.
Johnson which had a number of signatures thereon.
On or about October 15, 1991, Mr. Johnson attended a meeting at the
Local 2082 office located on the base. In attendance at the meeting
were Mr. Fred Aguas, Acting Union Treasurer, Mr. Geronimo Beltrane,
Acting Chief Steward, Mr. Gilbert Cortez, Acting Vice President,
and Ms. Judy Mohr, National Representative of American Federation
of Government Employees, AFL - CIO, who had been recently appointed
Trustee of Local 2082 at Fort Ord.
Ms. Mohr began the meeting by handing out letters from Mr. John
Sturdivant, President of AFGE, wherein Local 2082 was placed in
trusteeship and Ms. Mohr was named trustee. She then proceeded to
remove all the individuals who were present from their current
positions in Local 2082 and collect their keys to the Local 2082
office.
Following the removal of the officers from their respective
positions, according to Mr. Johnson, Ms. Mohr then turned to him
and said, "I understand there's decertification petitions floating
around this base, and I understand you're responsible for it. I
want them and I want them now. This is not the way this local or
this union does business." Mr. Johnson then asked why he had to
surrender the petitions, and she replied "because I'm in charge".
Whereupon, Mr. Johnson opened his brief case and took out five
petitions, two of which were totally signed and another partially
signed. According to Mr. Johnson, the petitions surrendered to Ms.
Mohr contained about twenty four signatures. Further, according to
Mr. Johnson, Ms. Mohr then stated that she did not want to see any
more of these things going around the post. When Ms. Mohr asked
whether there were any more petitions around, he pointed to the top
of a cabinet where there were a number of blank petitions. Ms. Mohr
took possession of the petitions and then asked if anybody else had
any petitions. Mr. Thompson replied that Mr. Lyndle Pangle had a
few.
Finally, according to Mr. Johnson, that while no threats were made
by Ms. Mohr, he turned the petitions over to her because he was not
sure of his legal standing and figured it was better to be safe
than sorry and that he could file an action later. Thereafter, he
ceased circulating the decertification petitions.
According to Mr. Pangle, at a meeting in the Local 2082 office
around the beginning of September 1991, he had a discussion with
Mr. Johnson concerning, among other things, the necessity of
getting additional members into Local 2082. It was agreed, that by
passing around a decertification petition they might scare people
into joining the Union. This would be accomplished by first asking
employees whether they wanted to get rid of the Union. If the
employee said no, then he, if not already a member, would be given
an application for membership in the Union and be requested to fill
it out. The record indicates that he obtained seven signatures on
the decertification petition in his possession.
Mr. Pangle further testified that during the middle of October
1991, he had a discussion with Ms. Mohr at Local 2082's office on
the base. In attendance were Mr. Johnson, Mr. Beltrane, Mr. Cortez
and Mr. Aguas. Ms. Mohr told him about the trusteeship and asked if
he was one of the people that had been passing around the
decertification petitions. He said that he was and that he had been
using the decertification petition as a tool to solicit union
membership. Ms. Mohr then stated that "the national was not going
to support a decertification petition of the AFGE, and that she
wanted all the decertification petitions that I had, signed or
unsigned". Mr. Pangle did not surrender the petitions in his
possession and according to his testimony he was not intimidated by
Ms. Mohr.
Finally, according to Mr. Pangle, when he received the
decertification petitions from Mr. Johnson on or about September
1991, it was his impression that they were both going to use the
decertification petitions as a tool to obtain membership in the
Union.
Mr. Gilbert Cortez, who at the time of the hearing was Acting
President of Local 2082, testified that he met Mr. Johnson in Local
2082's office and was shown a decertification petition. At the time
Mr. Johnson told him in response to a question concerning the
legality of the decertification petition that he was using the
petition as a bluff in order to get employees to join the Union.
Mr. Cortez further testified that he never attempted to get any
employee to sign a decertification petition. 2
Ms. Mohr testified that after she had told Mr. Johnson and the
other officers of Local 2082 that the Local was in trusteeship and
that they were no longer in office, she asked Mr. Johnson what the
decertification petitions, which she had seen in the office, were
all about. According to Ms. Mohr who admits having knowledge of the
petitions prior to her arrival at the Fort, Mr. Johnson informed
her that they were being used as a scare tactic to get people to
join the Union. Ms. Mohr then asked "are you saying that you are
using this to organize?" Upon receiving an affirmative response,
Mr. Mohr told him that she had an extensive background in
organizing and that she had never "been led to believe that you
organize by decertifying a union". When Mr. Johnson stated that he
was using the petition to scare the employees, Ms. Mohr, further
testified that she told him "that I'm the appointed trustee, I am
not going to use this manner in which to organize and we're not
going to decertify the local in order to gain membership. So I'm
asking that we cease and desist this type organizing under my
appointment." Thereupon she trashed the petitions that were in
Local 2082's office. She does not recall whether Mr. Johnson gave
her any other petitions, but acknowledges that he might have.
However, she denies that any of the petitions bore signatures.
According to Ms. Mohr, she had a similar conversation later in the
day with Mr. Pangle.
Discussion and Conclusions
The General Counsel takes the position that the Union violated
Section 7116(b)(1) of the Statute by virtue of the actions of its
agent, Ms. Mohr, since such actions interfered with, restrained and
coerced Mr. Johnson, Mr. Pangle and the signatories to the
decertification petitions in the exercise of their rights
guaranteed by Section 7102 of the Statute, namely the right to
remove the Union as the exclusive representative of the employees
at Fort Ord. With regard to the signatories, it is the General
Counsel's position that the employees would in the future be
hesitant to sign a decertification petition for fear that the Union
would be aware of, and be displeased with, their actions.
The Union, on the other hand, takes the position that no violation
of the Statute occurred because Ms. Mohr was acting within her
legal authority when she discontinued the use of decertification
petitions as a ploy or tool to obtain membership in the Union.
Thus, it appears to be the position of the Union that it has the
right to decide the methods by which union organizing should be
accomplished.
Section 7102 of the Statute gives employees the right to form, join
or assist any labor organization, or to refrain from such activity,
freely and without fear of penalty or reprisal. To the extent that
a union interferes with, restrains or coerces employees in the
exercise of the rights accorded by Section 7102, such union action
is violative of Section 7116(b)(1) of the Statute.
Based upon the foregoing, I find, and I do not understand any party
to be of a contrary view, that the circulation of a decertification
petition falls within the employees' rights set forth in Section
7102 of the Statute. Cf. National Association of Government
Employees; National Association of Government Employees, Local
R12-35, 14 FLRA 452; United Union of Roofers, Waterproofers and
Allied Workers Local No. 81.(Beck Roofing Company, Inc.), 294 NLRB
285, enf. 135 LRRM 2477, (9th Cir. 1990) wherein the National Labor
Relations Board applying a similar provision reached a similar
conclusion under the National Labor Relations Act.
In the subject case we have two separate instances where the Union
admittedly intruded into the circulation of decertification
petitions. In the first instance we have an employee, i.e. Mr.
Johnson, who at the time was President of Local 2082, circulating a
decertification petition for purposes of removing the Union as the
exclusive representative of the employees. In the second instance
we have Mr. Pangle, while a Union Steward, admittedly circulating a
decertification petition for purposes of achieving membership in
the Union. Ms. Mohr acknowledges interrogating Mr. Johnson and Mr.
Pangle with regard to their actions in circulating decertification
petitions, demanding the petitions and informing them that they
should cease such activity since the Union did not approve of using
decertification petitions as a means of achieving union membership.
Contrary to the contention of the Union, I can not find upon the
basis of the instant record that Mr. Johnson, like Mr. Pangle, was
using the decertification petition as a vehicle to achieve
membership in the Union. Thus, his credited testimony indicates
that he prepared the decertification petitions because he was
dissatisfied with the support he had been receiving from the
National Office in connection with negotiations being conducted by
Local 2082. Additionally, he left a number of unattended
decertification petitions throughout the various offices where unit
employees worked. If he had indeed been using the petitions as a
device to increase union membership, the unattended decertification
petitions, without more, certainly would not have achieved that
result. Accordingly, I find that Mr. Johnson's sole motive in
preparing and circulating the decertification petitions was to
remove the Union as the exclusive representative. Further, based
upon the credited testimony of Mr. Johnson and the corroborating
testimony of Mr. Fisher, I find that Mr. Johnson had been
successful in obtaining a number of signatures on the
decertification petitions and that he surrendered such signed
petitions to Ms. Mohr.
The record evidence further establishes that on or about October
15, 1991, following Ms. Mohr's action in removing Mr. Johnson and
the other officers from their respective positions in Local 2082,
Ms. Mohr approached Mr. Johnson and demanded the decertification
petitions in his possession. When Mr. Johnson asked why he had to
surrender the petitions, Ms. Mohr stated "because I am in charge".
Whereupon, Mr. Johnson, not being sure of the legality of his
position, opened his brief case and surrendered the signed
petitions in his possession. Further, in reply to Ms. Mohr's
inquiry concerning the existence of other petitions, Mr. Johnson
pointed to a pile of petitions on top of a file cabinet and also
informed her that Mr. Pangle had a number of petitions in his
possession.
Based upon the above recapitulation of the pertinent facts
concerning the October 15, 1991 meeting between Mr. Johnson and Ms.
Mohr wherein the decertification activity of Mr. Johnson was
discussed, I find that the Union, through its agent Ms. Mohr,
interfered with, coerced and restrained Mr. Johnson in the exercise
of his right to engage in the circulation of a decertification
petition.
In reaching this conclusion, I have taken into consideration the
fact that Ms. Mohr might well have been operating under the
impression that Mr. Johnson, like Mr. Pangle, had been using the
petition as a vehicle to achieve union membership. However, since
such was not the case, her activities not only interfered with the
rights of Mr. Johnson and the signatories to the decertification
petition, but resulted in the destruction of the petition and
abandonment of Mr. Johnson's efforts to remove the Union as the
exclusive representative of the employees. 3 In such circumstances,
I find that the Union violated Section 7116(b)(1) of the
Statute.
Turning now to the October 15, 1991 incident involving Mr. Pangle
and Ms. Mohr, I find, contrary to the contention of the General
Counsel, that the Union did not violate Section 7116(b)(1) of the
Statute by virtue of the activities of Ms. Mohr. In reaching this
conclusion it is noted that Mr. Pangle, unlike Mr. Johnson, was
admittedly using the decertification petition for reasons other
than to remove the Union from its position as exclusive
representative. In fact the sole reason for utilizing the
decertification petition, according to Mr. Pangle, was to achieve
memberships in the Union. While, as indicated above, I have found
the circulation of a decertification petition to remove the
"in-union" to be a protected right under Section 7102 of the
Statute, I can not find that use of a decertification petition
solely as a ploy to achieve membership in the Union is entitled to
equal protective status.
Not only does such action confuse and frustrate the intent of the
employees who opt to become signatories to the petition but it
abuses the Authority's processes. Moreover, since the use by Mr.
Pangle of the decertification petition was admittedly solely for
purposes of achieving membership in the Union, it follows that the
Union was within its rights in attempting to dictate the manner in
which membership organizational drives should be conducted. To this
end, when Ms. Mohr ordered Mr. Pangle to cease using the
decertification petition as a vehicle to achieve membership I find,
as noted above, that she did not infringe upon any of the rights
enumerated in Section 7102 of the Statute and thereby commit an
additional Section 7116(b)(1) violation of Statute.
With respect to alleged illegal interrogation of Mr. Pangle, I find
that under all the circumstances, particularly the fact that all
parties were aware of how Mr. Pangle was utilizing the petitions,
that the Union did not violate the Statute when Ms. Mohr asked Mr.
Pangle if he was one of the people circulating the petition.
Having found that the Union's sole violation of Section 7116(b)(1)
of the Statute occurred when it confiscated the decertification
petitions in Mr. Johnson's possession, it is hereby recommended
that the Authority issue the following order designed to effectuate
the purposes and policies of the Act.
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 American Federation of Government
Employees, Local 2082, AFL - CIO shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing employees represented
by the American Federation of Government Employees, Local 2082, AFL
- CIO, (AFGE), from seeking an election to decertify AFGE as the
exclusive representative of such employees by confiscating
decertification petitions from Harry W. Johnson, III.
(b) In any like or related manner, interfering with, restraining or
coercing its employees in the exercise of rights assured them by
the Federal Service Labor - Management Relations Statute.
2. Take the following affirmative action designed and found
necessary to effectuate the policies of the Statute:
(a) Post in the office(s) of the AFGE at Headquarters, 7th Infantry
Division (Light), Fort Ord, California, 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 AFGE
Trustee Judy Mohr 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 ensure that
such notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the San Francisco
Regional Office, Federal Labor Relations Authority, 901 Market
Street, Suite 220, San Francisco, CA 94103, in writing, within 30
days from the date of this order, as to what steps have been taken
to comply.
Issued, Washington, DC, September 30, 1992
BURTON S. STERNBURG
Administrative Law Judge
NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES AS ORDERED BY THE FEDERAL
LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY
OUR MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT interfere with the right of employees represented by
the American Federation of Government Employees, Local 2082, AFL -
CIO, (AFGE), to seek an election to decertify AFGE as the exclusive
representative of such employees by confiscating decertification
petitions from Harry W. Johnson, III.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed under 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 any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor Relations
Authority, San Francisco Regional Office, whose address is: 901
Market Street, Suite 220, San Francisco, CA 94103 and whose
telephone number is: (415) 744-4000.
FOOTNOTES
Footnote 1 The Union is "the certified exclusive representative of
employees of Headquarters, 7th Infantry Division (Light), Ft. Ord,
California".
Footnote 2 Although the record is not clear on this point, it
appears that his conversation took place in early or mid-September
1991.
Footnote 3 Compare National Association of Government Employees,
supra, where there was no showing that the union, other than
requesting employees by letter to destroy any decertification
petition that they may come across, took no further action in
support of the request.