[ v05 p193 ]
05:0193(24)CA
The decision of the Authority follows:
5 FLRA No. 24 SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR FORCE BASE, TEXAS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617 Labor Organization Case No. 6-CA-460 DECISION AND ORDER THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD ENGAGED IN AN UNFAIR LABOR PRACTICE AS ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS, (5 CFR 2423.29), AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C 7101-7135), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS. ORDER PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR FORCE BASE, TEXAS, SHALL: 1. CEASE AND DESIST FROM: (A) INTERFERING WITH, OR DISCOURAGING, BY IMPLIED THREATS, OR OTHERWISE, MR. WAYMOND BROWN, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE RIGHT AS A UNION STEWARD TO AID AND ASSIST UNIT EMPLOYEES IN FILING AND PROCESSING GRIEVANCES FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL. (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE: (A) POST AT THE SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR FORCE BASE, TEXAS, 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 THE COMMANDER OF THE SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR FORCE BASE, 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. THE COMMANDER SHALL TAKE REASONABLE STEPS 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 OF REGION VI, 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., FEBRUARY 17, 1981 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY 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 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT INTERFERE WITH, OR DISCOURAGE, BY IMPLIED THREATS, OR OTHERWISE, MR. WAYMOND BROWN, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE RIGHT AS A UNION STEWARD TO AID AND ASSIST UNIT EMPLOYEES IN FILING AND PROCESSING GRIEVANCES, FREELY AND WITHOUT FEAR OF PENALTY. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER THE 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 VI, WHOSE ADDRESS IS: BRYAN & ERVAY STREET, ROOM 450, OLD POST OFFICE BUILDING, DALLAS, TEXAS, 75221, AND WHOSE TELEPHONE NUMBER IS: (214) 767-4996. -------------------- ALJ$ DECISION FOLLOWS -------------------- SUSAN E. JELEN, ESQUIRE FOR THE GENERAL COUNSEL MAJOR LEWIS G. BREWER, ESQUIRE FOR THE RESPONDENT 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. 7101, ET. SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART 2411, ET. SEQ. PURSUANT TO AN AMENDED CHARGE FIRST FILED ON MARCH 14, 1980, BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617, (HEREINAFTER CALLED THE UNION OR AFGE), A COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON MAY 28, 1980, BY THE REGIONAL DIRECTOR FOR REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, DALLAS, TEXAS. THE COMPLAINT ALLEGES IN SUBSTANCE, THAT THE SAN ANTONIO AIR LOGISTICS CENTER, (AFLC), KELLY AIR FORCE BASE, TEXAS, (HEREINAFTER CALLED THE RESPONDENT OR AFLC), VIOLATED SECTION 7116(A)(1) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, (HEREINAFTER CALLED THE STATUTE OR ACT), BY THREATENING TO REPLACE UNIT EMPLOYEES WITH MILITARY PERSONNEL IF SUCH UNIT EMPLOYEES DID NOT CURTAIL THEIR UNION ACTIVITIES. A HEARING WAS HELD IN THE CAPTIONED MATTER ON AUGUST 7, 1980, IN SAN ANTONIO, TEXAS. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN. THE PARTIES SUBMITTED POST-HEARING BRIEFS 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 NUMBER OF EMPLOYEES, INCLUDING THE POLICE DEPARTMENT, AT KELLY AIR FORCE BASE. MR. DANNY SPEED, WHO IS THE UNION'S CHIEF STEWARD FOR THE ENTIRE UNIT APPOINTED MR. WAYMOND BROWN TO BE THE CHIEF STEWARD FOR THE POLICE DEPARTMENT WHICH WAS RESPONSIBLE FOR SECURITY AT KELLY AIR FORCE BASE. IN HIS CAPACITY AS CHIEF STEWARD FOR THE POLICE DEPARTMENT, MR. BROWN SUPERVISED THE STEWARD AND ALTERNATE STEWARD ON EACH OF THE FOUR SHIFTS AT THE AIR FORCE BASE. MR. PAUL SACHO, A POLICEMAN, WAS THE SECOND SHIFT STEWARD. ACCORDING TO MR. BROWN, MR. SACHO WAS A VERY CONSCIENTIOUS AND ENERGETIC STEWARD WHO HAD FILED NUMEROUS GRIEVANCES AND COMPLAINTS ON BEHALF OF UNIT EMPLOYEES WITH THE RESPONDENT, INSPECTOR GENERAL AND EEO COMMISSION. ACCORDING TO THE CREDITED TESTIMONY OF MR. BROWN, ON FEBRUARY 14, 1980, HE WAS CALLED FROM HIS POST OF DUTY AND INSTRUCTED TO PROCEED TO THE OFFICE OF MAJOR CARROLL JACKSON, RESPONDENT'S CHIEF OF SECURITY POLICE. UPON ENTERING MAJOR JACKSON'S OFFICE, MR. BROWN WAS INFORMED THAT MAJOR JACKSON WANTED TO BRING THE ACTIONS OF UNION STEWARD SACHO TO MR. BROWN'S ATTENTION. MAJOR JACKSON THEN WENT ON TO STATE THAT MR. SACHO WAS TAKING ADVANTAGE OF THE "WEAKER ONES" ON THE SECOND SHIFT BY SOLICITING GRIEVANCES. MAJOR JACKSON FURTHER INFORMED MR. BROWN THAT MR. SACHO'S UNION ACTIVITIES HAD UPSET THE SUPERVISOR ON THE SECOND SHIFT BECAUSE THE EMPLOYEES WERE LISTENING TO MR. SACHO'S COUNSELING AND ADVICE. WHEN MR. BROWN INFORMED MAJOR JACKSON THAT HE, MR. BROWN, CONSIDERED MR. SACHO AN ENERGETIC AND CONSCIENTIOUS WORKER AND THAT THE GRIEVANCES BEING FILED WERE LEGITIMATE AND NOT THE PRODUCT OF MR. SACHO'S SOLICITATIONS, MR. JACKSON STATED THAT IN THE INTEREST OF "THE UNION AND MANAGEMENT, IT WOULD BE BEST IF "'BROWN'" COULD PULL MR. SACHO'S COAT TAIL AND CALM HIM DOWN BECAUSE HIGHER AUTHORITY - HIGHER HEADQUARTERS WAS TAKING A LOOK AT US DOWN HERE AND THEY PROBABLY WERE GOING TO REPLACE US WITH MILITARY". FURTHER, ACCORDING TO THE TESTIMONY OF MR. BROWN, MAJOR JACKSON CITED AIR FORCE REGULATION 26-1 WHICH DEALS WITH THE REPLACEMENT OF CIVILIAN POLICE BY MILITARY PERSONNEL WHEN A POSITION BECOMES VACANT. THIS WAS THE FIRST TIME THAT MR. BROWN HEARD OF THE REGULATIONS. THE MEETING ENDED WITH MR. BROWN REITERATING HIS OPINION OF MR. SACHO. /1/ DISCUSSION AND CONCLUSIONS HAVING CREDITED MR. BROWN WITH RESPECT TO THE FEBRUARY 14, 1980, CONVERSATION, THE SOLE ISSUE REMAINING FOR DECISION IS WHETHER MAJOR JACKSON'S ACTION, I.E., REQUESTING THE UNION TO PULL MR. SACHO'S COAT TAILS AND STATING AT THE SAME TIME THAT THERE WAS A POSSIBILITY THAT CIVILIAN POLICEMEN MIGHT BE REPLACED BY MILITARY PERSONNEL, CONSTITUTED A VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE. SECTION 7102 OF THE STATUTE GIVES EMPLOYEES THE RIGHT TO JOIN, FORM OR ASSIST ANY LABOR ORGANIZATION FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL. SUCH RIGHT INCLUDES THE RIGHT TO ACT FOR A LABOR ORGANIZATION IN THE CAPACITY OF A REPRESENTATIVE AND THE RIGHT, IN SUCH CAPACITY, TO PRESENT THE VIEWS OF THE LABOR ORGANIZATION TO HEADS OF AGENCIES AND OTHER OFFICIALS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT. IN THE INSTANT CASE, MAJOR JACKSON'S REQUEST TO PULL MR. SACHO'S COAT TAILS CERTAINLY WAS AN ATTEMPT BY HIM TO HAVE THE CHIEF UNION STEWARD CURTAIL THE PROTECTED ACTIVITIES OF ANOTHER STEWARD, MR. SACHO. COUPLING SUCH REQUEST WITH A STATEMENT INDICATING THAT FAILURE TO DO SO COULD RESULT IN THE REPLACEMENT OF UNIT CIVILIAN POLICEMEN BY MILITARY PERSONNEL NOT ONLY EMPHASIZES THE REQUEST BUT MAKES IT CLEAR TO UNIT EMPLOYEES THAT FAILURE TO ABIDE BY THE REQUEST COULD RESULT IN THE LOSS OF THEIR JOBS. ACCORDINGLY, I FIND THAT RESPONDENT, BY VIRTUE OF THE REQUEST AND STATEMENT ISSUED BY MAJOR JACKSON TO CHIEF UNION STEWARD BROWN ON FEBRUARY 14, 1980, VIOLATED SECTION 7116(A)(1) OF THE STATUTE, WHICH PROHIBITS INTERFERENCE WITH THE SECTION 7102 RIGHTS AND ACTIVITIES ACCORDED EMPLOYEES. HAVING FOUND THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE STATUTE, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY ISSUE THE FOLLOWING ORDER: ORDER PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C 7118(A)(1)(A), AND SECTION 2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. SEC. 2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR FORCE BASE, TEXAS SHALL: 1. CEASE AND DESIST FROM: (A) INTERFERING WITH, OR DISCOURAGING, BY IMPLIED THREATS, OR OTHERWISE, MR. WAYMOND BROWN, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE RIGHT AS A UNION STEWARD TO AID AND ASSIST UNIT EMPLOYEES IN FILING AND PROCESSING GRIEVANCES, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL. (B) IN ANY LIKE TO RELATED MANNER, INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE; (A) POST AT THE SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR FORCE BASE, TEXAS, 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 THE COMMANDER OF THE SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR FORCE BASE, 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 TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (B) NOTIFY THE FEDERAL 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: OCTOBER 3, 1980 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 WITH, OR DISCOURAGE, BY IMPLIED THREATS, OR OTHERWISE, MR. WAYMOND BROWN, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE RIGHT AS A UNION STEWARD TO AID AND ASSIST UNIT EMPLOYEES IN FILING AND PROCESSING GRIEVANCES, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THE 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 QUESTION 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 VI, WHOSE ADDRESS IS: ROOM 450, DOWNTOWN POST OFFICE STATION, BRYAN & ERVAY STREET, DALLAS, TEXAS 75221. --------------- FOOTNOTES$ --------------- /1/ MAJOR JACKSON, WHO DENIED MAKING THE STATEMENTS ATTRIBUTED TO HIM, COULD NOT REMEMBER HAVING A SPECIFIC MEETING WITH MR. BROWN ON FEBRUARY 14, 1980. HOWEVER, HE ACKNOWLEDGED MEETING FREQUENTLY DURING SUCH TIME FRAME WITH MR. SPEED AND MR. BROWN, JOINTLY AND SINGULARLY. HE FURTHER ACKNOWLEDGED DISCUSSING AFR 26-1 AND A COMPLAINT FROM A UNIT EMPLOYEE CONCERNING MR. SACHO'S ALLEGED ACTION IN SOLICITING GRIEVANCES, BUT DENIED THAT THE THE TWO SUBJECTS WERE EVER TIED TOGETHER IN A CONVERSATION. WITH RESPECT TO AFR 26-1, HE CLAIMS THAT HE RAISED IT WITH THE STEWARDS IN ORDER TO SQUELCH ANY POSSIBLE RUMORS ABOUT ITS APPLICATION. AS TO THE GRIEVANCE COMPLAINT, MAJOR JACKSON STATED THAT HE MERELY GAVE IT TO MR. BROWN FOR ANY ACTION HE MAY HAVE DEEMED APPROPRIATE. LASTLY, MAJOR JACKSON ACKNOWLEDGED THAT HIS SUPERVISOR WAS HAVING A PROBLEM WITH MR. SACHO'S CONDUCT AS A UNION STEWARD AND THAT HE HAD GIVEN A SIGNED STATEMENT TO AN AGENT OF THE AUTHORITY WHEREIN IT IS STATED "I DO NOT RECALL USING THE PHRASE "'PULL SACHO'S COAT TAILS'" BUT PERHAPS MY REMARKS MAY HAVE BEEN INTERPRETED SO."