[ v05 p492 ]
05:0492(62)CA
The decision of the Authority follows:
5 FLRA No. 62
DEPARTMENT OF THE AIR FORCE
AIR FORCE PLANT REPRESENTATIVE OFFICE
DETACHMENT 27, FORT WORTH, TEXAS
Activity
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1958
Petitioner
Case No. 6-RO-7
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1361
Intervenor
UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
AIR FORCE PLANT REPRESENTATIVE OFFICE
DETACHMENT 27 (AFPRO, GENERAL DYNAMICS)
FORT WORTH, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1361
Charging Party
Case No. 6-CA-233
CONSOLIDATED DECISION AND ORDER AND DIRECTION OF SECOND
ELECTION
THESE CASES ARE BEFORE THE AUTHORITY PURSUANT TO A REQUEST FOR REVIEW
OF THE REGIONAL DIRECTOR'S REPORT AND FINDINGS ON OBJECTIONS IN CASE NO.
6-RO-7 AND PURSUANT TO THE REGIONAL DIRECTOR'S ORDER TRANSFERRING CASE
TO THE FEDERAL LABOR RELATIONS AUTHORITY IN ACCORDANCE WITH SECTION
2429.1 (5 CFR 2429.1) OF THE AUTHORITY'S RULES AND REGULATIONS IN CASE
NO. 6-CA-233. INASMUCH AS BOTH CASES INVOLVE THE SAME PARTIES AND ARISE
OUT OF THE SAME FACTS AND CIRCUMSTANCES, THE ACTIVITY'S UNOPPOSED
REQUEST THAT THE CASES BE CONSOLIDATED FOR CONSIDERATION AND DECISION IS
GRANTED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASES,
INCLUDING THE REGIONAL DIRECTOR'S REPORT AND FINDINGS ON OBJECTIONS IN
CASE NO. 6-RO-7 AND THE PARTIES' STIPULATION AND RESPECTIVE BRIEFS IN
CASE NO. 6-CA-233, THE AUTHORITY FINDS:
IN MAY 1979, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1958
(NFFE) FILED A PETITION SEEKING TO REPRESENT A UNIT CONSISTING OF ALL
THE ACTIVITY'S GENERAL SCHEDULE PROFESSIONAL AND NON-PROFESSIONAL
EMPLOYEES, EXCLUDING EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS AND
SUPERVISORS AS DEFINED IN THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (5 U.S.C. 7101-7135). THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1361 (AFGE) BECAME AN INTERVENOR IN THAT
PROCEEDING. IN JUNE 1979, THE PARTIES ENTERED INTO AN APPROVED
AGREEMENT FOR CONSENT OR DIRECTED ELECTION PURSUANT TO WHICH A
REPRESENTATION ELECTION WAS SCHEDULED TO BE CONDUCTED ON JULY 12, 1979.
A FEW DAYS BEFORE THE ELECTION, ON OR ABOUT JULY 10, 1979, THE ACTIVITY
PUBLISHED A NEWSLETTER ENTITLED "TALLEY-HO. GRAM," DATED JULY 10, 1979
SIGNED BY THE ACTIVITY'S CHIEF MANAGEMENT OFFICIAL. THE NEWSLETTER WAS
PUBLISHED IN THE ACTIVITY'S CHIEF MANAGEMENT OFFICIAL. THE NEWSLETTER
WAS PUBLISHED IN THE ACTIVITY'S ELEVEN DIVISIONS BY BEING POSTED ON
BULLETIN BOARDS WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED IN THE
LARGER DIVISIONS, AND BY BEING CIRCULATED DIRECTLY TO EMPLOYEES IN THE
SMALLER DIVISIONS, AND BY BEING CIRCULATED DIRECTLY TO EMPLOYEES IN THE
SMALLER DIVISIONS. THE NEWSLETTER ALSO WAS POSTED ON THE MAIN EMPLOYEE
BULLETIN BOARD LOCATED APPROXIMATELY 90 FEET FROM THE VOTING BOOTH IN
THE PROSPECTIVE ELECTION AND IN A DIRECTION FROM WHICH THE MAJORITY OF
THE EMPLOYEES WOULD PASS ON THEIR WAY TO VOTE. THE "TALLEY-HO. GRAM,"
WHICH REMAINED POSTED ON THE BULLETIN BOARDS THROUGH JULY 12, 1979, THE
DATE OF THE ELECTION, STATED AS FOLLOWS:
10 JULY 1979
POST ON ALL BULLETIN BOARDS
1. NOTICES HAVE BEEN POSTED AND DISTRIBUTED ON THE UNION ELECTION TO
BE HELD THURSDAY, 12 JULY, BETWEEN 1345 AND 1545. EMPLOYEES ON THE
PAYROLL AS OF CLOSE OF BUSINESS 2 JUNE 1979 WILL BE ELIGIBLE TO CAST
THEIR VOTE FOR:
* NO UNION
* AFGE
* NFFE
YOUR DECISION WILL BE BINDING OVER THE YEARS TO COME SHOULD YOU VOTE
FOR A UNION TO REPRESENT YOU.
2. YOU ALL HAVE REPRESENTATIVES IN CONGRESS. A 15[ STAMP WILL ALLOW
YOU TO COMMUNICATE WITH THEM. WHEN WRITING TO YOUR CONGRESSMAN, I
SUGGEST ONLY ONE TOPIC OR SUBJECT TO A LETTER.
3. THE UPCOMING ELECTION WILL BE MONITORED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. ALL PARTIES CONCERNED WILL HAVE AN OBSERVER
PRESENT AT THE VOTING LOCATION (MIC). VOTES WILL BE TALLIED BY THE
OBSERVER AND CERTIFIED TO BY THE FEDERAL LABOR RELATIONS AUTHORITY.
4. BETWEEN NOW AND THURSDAY AFGE AND NFFE WILL HAVE REPRESENTATIVES
IN THE AFPRO BETWEEN 1100 AND 1300. VIRGINIA SCHMIDT, CPR, HAS SENT OUT
NOTICES CITING WHERE THESE REPRESENTATIVES WILL MEET WITH EMPLOYEES. BE
CANDID WITH THESE REPRESENTATIVES. ASK THEM WHAT THEY CAN DO FOR YOU
THAT YOUR CONGRESSMAN CANNOT DO. I HAVE TALKED TO EACH REPRESENTATIVE.
-- NOW IT IS YOUR TURN. VOTE ACCORDINGLY.
DORSEY J. TALLEY, COLONEL, USAF
COMMANDER
IN THE SECRET BALLOT ELECTION CONDUCTED ON JULY 12, 1980, A MAJORITY
OF THE VALID VOTES COUNTED (50 OF 90 NON-PROFESSIONALS AND 10 OF 18
PROFESSIONALS) WERE CAST AGAINST EXCLUSIVE RECOGNITION.
AFGE THEREAFTER FILED TIMELY OBJECTIONS TO CONDUCT ALLEGED TO HAVE
IMPROPERLY AFFECTED THE RESULTS OF THE ELECTION (CASE NO. 6-RO-7),
CONTENDING THAT THE CONTENTS OF THE "TALLEY-HO. GRAM" POSTED BY THE
ACTIVITY A FEW DAYS BEFORE THE ELECTION INTERFERED WITH THE FREE CHOICE
OF ELIGIBLE VOTERS IN THE ELECTION. ADDITIONALLY, AFGE LATER FILED AN
UNFAIR LABOR PRACTICE CHARGE ALLEGING THAT, BY SUCH CONDUCT, THE
ACTIVITY ALSO VIOLATED SECTION 7116(A)(1) OF THE STATUTE (CASE NO.
6-CA-233). /1/
IN CASE NO. 6-RO-7, THE REGIONAL DIRECTOR ISSUED HIS REPORT AND
FINDINGS ON OBJECTIONS IN WHICH HE FOUND, BASED UPON AN INVESTIGATION
AND THE POSITIONS OF THE PARTIES, THAT NO QUESTION OF FACT EXISTED WITH
REGARD TO THE CONTENT OF THE ACTIVITY'S NEWSLETTER AND THAT PORTIONS OF
THE NEWSLETTER VIOLATED THE ACTIVITY'S DUTY OF NEUTRALITY AND/OR
CONTAINED MISREPRESENTATIONS OF FACT. MORE SPECIFICALLY, THE REGIONAL
DIRECTOR FOUND THAT THE LAST SENTENCE OF ITEM 1 IN THE "TALLEY-HO.
GRAM," I.E., "YOUR DECISION WILL BE BINDING OVER THE YEARS TO COME
SHOULD YOU VOTE FOR A UNION TO REPRESENT YOU," WAS FACTUALLY INCORRECT
AND VIOLATED THE STATUTORY REQUIREMENT OF AGENCY NEUTRALITY BY CLEARLY
IMPLYING THE EMPLOYEES WOULD BE "BURDENED" WITH THE UNION FOR MANY YEARS
IF THEY VOTED FOR EXCLUSIVE RECOGNITION. HE FURTHER FOUND THAT ITEM 4
OF THE "TALLEY-HO. GRAM," WHICH ADVISES EMPLOYEES TO QUESTION BOTH LABOR
ORGANIZATIONS ON THE BALLOT REGARDING WHAT UNION REPRESENTATION COULD DO
FOR THEM THAT THEIR CONGRESSMAN COULD NOT DO, CLEARLY IMPLIED THAT THE
UNIT EMPLOYEES DID NOT NEED A UNION AT ALL AND THEREFORE CONSTITUTED A
VIOLATION OF AGENCY NEUTRALITY. IN SO FINDING, THE REGIONAL DIRECTOR
REJECTED THE ACTIVITY'S CONTENTION THAT THE MESSAGE CONTAINED IN THE
NEWSLETTER WAS FACTUAL AND NEUTRAL AND WAS AN EXPRESSION PROTECTED BY
SECTION 7116(E) OF THE STATUTE. /2/ ACCORDINGLY, HE CONCLUDED THAT
IMPROPER CONDUCT OCCURRED WHICH AFFECTED THE RESULTS OF THE ELECTION AND
REQUIRED THE ELECTION TO BE SET ASIDE AND RERUN AS SOON AS POSSIBLE
AFTER RESOLUTION OF THE ISSUES IN THE RELATED UNFAIR LABOR PRACTICE CASE
(6-CA-233). THE ACTIVITY THEREAFTER FILED A REQUEST FOR REVIEW SEEKING
REVERSAL OF THE REGIONAL DIRECTOR'S REPORT AND FINDINGS ON OBJECTIONS,
CONTENDING THAT THE "TALLEY-HO. GRAM" DID NOT VIOLATE AGENCY NEUTRALITY
AND, IN ANY EVENT, WAS AN EXPRESSION PROTECTED BY SECTION 7116(E) OF THE
STATUTE.
IN CASE NO. 6-CA-233, THE ACTIVITY ESSENTIALLY RESTATED THE FOREGOING
ARGUMENTS IN ITS BRIEF TO THE AUTHORITY, ARGUING THAT THE ISSUES IN BOTH
CASES WERE THE SAME. AFGE AND THE GENERAL COUNSEL, IN THEIR RESPECTIVE
BRIEFS, CONTENDED IN EFFECT THAT THE STATEMENTS CONTAINED IN THE
"TALLEY-HO. GRAM" WERE NOT AN EXPRESSION OF "PERSONAL VIEWS" BUT
CONTAINED AN IMPLIED ANTI-UNION ATTITUDE ON THE PART OF MANAGEMENT AND
THEREFORE WERE UNPROTECTED BY SECTION 7116(E) OF THE STATUTE.
AS PREVIOUSLY STATED, THE QUESTIONS BEFORE THE AUTHORITY ARE (1)
WHETHER CERTAIN STATEMENTS CONTAINED IN THE "TALLEY-HO. GRAM" CONSTITUTE
SUFFICIENT BASIS FOR SETTING ASIDE THE ELECTION IN CASE NO. 6-RO-7, AND
(2) WHETHER SUCH STATEMENTS FURTHER CONSTITUTE A VIOLATION OF SECTION
7116(A)(1) OF THE STATUTE AS ALLEGED IN CASE NO. 6-CA-233. FOR THE
REASONS SET FORTH BELOW, THE AUTHORITY CONCLUDES THAT BOTH QUESTIONS
MUST BE ANSWERED IN THE AFFIRMATIVE.
SECTION 7116(E) OF THE STATUTE, AS FINALLY ENACTED AND SIGNED INTO
LAW, INCORPORATES A NUMBER OF AMENDMENTS WHICH WERE ADDED BY THE
SENATE-HOUSE CONFERENCE COMMITTEE TO THE PROVISION CONTAINED IN THE BILL
PASSED BY THE SENATE. /3/ THE JOINT EXPLANATORY STATEMENT OF THE
COMMITTEE ON CONFERENCE INDICATES THE FOLLOWING WITH RESPECT THERETO:
/4/
EXPRESSION OF PERSONAL VIEWS
SENATE SECTION 7216(G) STATES THAT THE EXPRESSION OF . . . ANY
PERSONAL VIEWS, ARGUMENT,
OPINION, OR THE MAKING OF ANY STATEMENT SHALL NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE OR
INVALIDATE AN ELECTION IF THE EXPRESSION CONTAINS NO THREAT OF
REPRISAL OR FORCE OR PROMISE OF
BENEFIT OR UNDUE COERCIVE CONDITIONS.
THE HOUSE BILL CONTAINS NO COMPARABLE PROVISION.
THE HOUSE RECEDES TO THE SENATE WITH AN AMENDMENT SPECIFYING IN
GREATER DETAIL THE TYPES OF
STATEMENTS THAT MAY BE MADE UNDER THIS SECTION. THE PROVISION
AUTHORIZES STATEMENTS
ENCOURAGING EMPLOYEES TO VOTE IN ELECTIONS, TO CORRECT THE RECORD
WHERE FALSE OR MISLEADING
STATEMENTS ARE MADE, OR TO CONVEY THE GOVERNMENT'S VIEWS ON
LABOR-MANAGEMENT RELATIONS. THE
WORDING OF THE CONFERENCE REPORT IS INTENDED TO REFLECT THE CURRENT
POLICY OF THE CIVIL
SERVICE COMMISSION WHEN ADVISING AGENCIES ON WHAT STATEMENTS THEY MAY
MAKE DURING AN ELECTION,
AND TO CODIFY CASE LAW UNDER EXECUTIVE ORDER 11491, AS AMENDED, ON
THE USE OF STATEMENTS IN
ANY UNFAIR LABOR PRACTICE PROCEEDING.
THUS, SECTION 7116(E) PROVIDES THAT:
THE EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT, OPINION . . . SHALL
NOT, IF THE EXPRESSION
CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT OR WAS
NOT MADE UNDER COERCIVE
CONDITIONS . . . CONSTITUTE AN UNFAIR LABOR PRACTICE . . .
AS TO REPRESENTATION ELECTIONS, SECTION 7116(E) PROVIDES THAT:
(T)HE MAKING OF ANY STATEMENT WHICH--
(1) PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION AND ENCOURAGES
EMPLOYEES TO EXERCISE
THEIR RIGHT TO VOTE IN SUCH ELECTION,
(2) CORRECTS THE RECORD WITH RESPECT TO ANY FALSE OR MISLEADING
STATEMENT MADE BY ANY
PERSON, OR
(3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
LABOR-MANAGEMENT RELATIONS AND
REPRESENTATION, SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF
REPRISAL OR FORCE OR
PROMISE OF BENEFIT OR WAS NOT MADE UNDER COERCIVE CONDITIONS . . .
CONSTITUTE AN UNFAIR LABOR
PRACTICE . . . OR . . . CONSTITUTE GROUNDS FOR THE SETTING ASIDE OF
ANY ELECTION . . . ACCORDINGLY, WHILE SECTION 7216(G) OF THE SENATE
BILL PERMITTED THE EXPRESSION OF PERSONAL VIEWS DURING AN ELECTION
CAMPAIGN, SECTION 7116(E) OF THE STATUTE SPECIFIES THOSE STATEMENTS
WHICH ARE AUTHORIZED-- I.E., STATEMENTS ENCOURAGING EMPLOYEES TO VOTE IN
ELECTIONS, CORRECTING THE RECORD WHERE FALSE OR MISLEADING STATEMENTS
ARE MADE, OR CONVEYING THE GOVERNMENT'S VIEWS ON LABOR-MANAGEMENT
RELATIONS.
WHILE EXECUTIVE ORDER 11491, AS AMENDED, DID NOT CONTAIN A SPECIFIC
PROVISION SUCH AS SECTION 7116(E) OF THE STATUTE, A POLICY WAS
ESTABLISHED THEREUNDER THAT AGENCY MANAGEMENT WAS REQUIRED TO MAINTAIN A
POSTURE OF NEUTRALITY IN ANY REPRESENTATION ELECTION CAMPAIGN. /5/
WHERE MANAGEMENT DEVIATED FROM ITS REQUIRED POSTURE OF NEUTRALITY AND
THEREBY INTERFERED WITH THE FREE AND UNTRAMMELED EXPRESSION OF THE
EMPLOYEES' CHOICE IN THE ELECTION, SUCH ELECTION WOULD BE SET ASIDE AND
A NEW ELECTION ORDERED. /6/ MOREOVER, MANAGEMENT'S BREACH OF NEUTRALITY
DURING AN ELECTION CAMPAIGN WAS ALSO FOUND TO VIOLATE SECTION 19(A)(1)
OF EXECUTIVE ORDER 11491, AS AMENDED, /7/ BY INTERFERING WITH,
RESTRAINING AND COERCING EMPLOYEES IN THE EXERCISE OF THEIR PROTECTED
RIGHTS TO DETERMINE WHETHER TO CHOOSE OR REJECT UNION REPRESENTATION.
/8/ WE NOW TURN TO THE APPLICATION OF THE FOREGOING POLICY AND CASE LAW
TO THE FACTS AND CIRCUMSTANCES OF THE SUBJECT CASES, IN ACCORDANCE WITH
THE STATED INTENT OF CONGRESS IN ENACTING SECTION 7116(E) OF THE STATUTE
(SUPRA N. 2).
IN CASE NO. 6-RO-7, AS PREVIOUSLY STATED, THE REGIONAL DIRECTOR FOUND
THAT PORTIONS OF THE "TALLEY-HO. GRAM," AS POSTED ON THE ACTIVITY'S
BULLETIN BOARDS AND DISTRIBUTED TO THE EMPLOYEES SHORTLY BEFORE THE
ELECTION, VIOLATED THE REQUIREMENTS OF NEUTRALITY AND/OR CONTAINED
MISREPRESENTATIONS OF FACT WHICH REQUIRED THE ELECTION TO BE SET ASIDE.
THE AUTHORITY CONCLUDES, IN AGREEMENT WITH THE REGIONAL DIRECTOR, THAT
THOSE STATEMENTS IN THE "TALLEY-HO. GRAM" TO THE EFFECT THAT THE
EMPLOYEES' "DECISION WILL BE BINDING OVER THE YEARS TO COME SHOULD YOU
VOTE FOR A UNION TO REPRESENT YOU" AND URGING THE EMPLOYEES TO "(A)SK
(THE UNIONS) WHAT THEY CAN DO FOR YOU THAT YOUR CONGRESSMAN CANNOT DO"
VIOLATED THE REQUIREMENTS OF MANAGEMENT NEUTRALITY DURING AN ELECTION
CAMPAIGN. SUCH STATEMENTS CLEARLY COULD BE INTERPRETED BY THE UNIT
EMPLOYEES AS IMPLYING THAT THEY DID NOT NEED AND WOULD NOT BENEFIT FROM
UNION REPRESENTATION, AND WOULD BE UNABLE TO RID THEMSELVES OF UNION
REPRESENTATION FOR YEARS TO COME IF THEY WERE TO VOTE IN FAVOR OF
EXCLUSIVE RECOGNITION IN THE FORTHCOMING ELECTION. IN THE AUTHORITY'S
VIEW, SUCH STATEMENTS INTERFERED WITH THE EMPLOYEES' FREEDOM OF CHOICE
IN THE ELECTION AND THEREFORE REQUIRED THE ELECTION TO BE SET ASIDE.
IN SO CONCLUDING, THE AUTHORITY REJECTS THE ACTIVITY'S CONTENTION
THAT THE FOREGOING STATEMENTS CONTAINED IN THE TALLEY-HO. GRAM" WERE
PROTECTED BY SECTION 7116(E) OF THE STATUTE. AT THE OUTSET, THE
AUTHORITY REJECTS THE ACTIVITY'S ASSERTION THAT THE "TALLEY-HO. GRAM"
WAS MERELY THE "EXPRESSION OF (A) PERSONAL VIEW, ARGUMENT, (OR) OPINION"
WITHIN THE MEANING OF SECTION 7116(E) OF THE STATUTE. RATHER, WHERE (AS
HERE) WRITTEN STATEMENTS BY THE HEAD OF AN ACTIVITY ARE POSTED ON ALL
BULLETIN BOARDS AND CIRCULATED TO UNIT EMPLOYEES, THEY ARE NOT MERELY
THE EXPRESSION OF PERSONAL VIEWS BUT MAY REASONABLY BE INTERPRETED AS
THE ACTIVITY'S OFFICIAL POSITION WITH REGARD TO THE MATTERS ADDRESSED IN
SUCH STATEMENTS. IN ADDITION, AS PREVIOUSLY STATED (SUPRA P. 6),
SECTION 7116(E) AUTHORIZES STATEMENTS ENCOURAGING EMPLOYEES TO VOTE IN
ELECTIONS, CORRECTING THE RECORD WHERE FALSE OR MISLEADING STATEMENTS
ARE MADE, OR CONVEYING THE GOVERNMENT'S VIEWS ON LABOR-MANAGEMENT
RELATIONS. WHILE THE "TALLEY-HO. GRAM," IN PART, PUBLICIZED THE
FORTHCOMING REPRESENTATION ELECTION AND ENCOURAGED EMPLOYEES TO VOTE IN
SUCH ELECTION, AND TO THAT EXTENT FELL WITHIN THE PROTECTION OF SECTION
7116(E), OTHER PORTIONS OF THE "TALLEY-HO. GRAM" SET FORTH ABOVE WENT
BEYOND THE SCOPE OF PERMISSIBLE STATEMENTS THEREUNDER AND DID NOT
ACQUIRE PROTECTED STATUS MERELY BECAUSE THEY WERE CONTAINED IN THE SAME
DOCUMENT WHICH PROPERLY PUBLICIZED AND ENCOURAGED EMPLOYEES TO VOTE IN
THE ELECTION. MOREOVER, AS FOUND BY THE REGIONAL DIRECTOR, "THERE WAS
NO EVIDENCE THAT THE PUBLICATION WAS INTENDED TO CORRECT THE RECORD WITH
RESPECT TO ANY FALSE OR MISLEADING STATEMENT MADE BY ANY PARTY."
FINALLY, SUCH STATEMENTS DID NOT "CONVEY THE GOVERNMENT'S VIEWS ON
LABOR-MANAGEMENT RELATIONS." AS INDICATED ABOVE, THE GOVERNMENT'S VIEWS
ARE THAT EMPLOYEES SHOULD BE FREE TO CHOOSE OR REJECT UNION
REPRESENTATION WHILE MANAGEMENT MAINTAINS A POSTURE OF NEUTRALITY, AND,
AS FURTHER STATED BY CONGRESS IN SECTION 7101 OF THE STATUTE, THAT
"LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING ARE IN THE PUBLIC
INTEREST." /9/ TO THE EXTENT THAT THE "TALLEY-HO. GRAM" IMPLIED THAT
UNION REPRESENTATION WAS UNNECESSARY AND UNDESIRABLE, THEREFORE, SUCH
STATEMENTS WERE DIRECTLY CONTRARY TO THE GOVERNMENT'S VIEWS ON
LABOR-MANAGEMENT RELATIONS.
TURNING NEXT TO THE QUESTION RAISED IN CASE NO. 6-CA-233, THE
AUTHORITY CONCLUDES THAT, IN THE CIRCUMSTANCES PRESENTED, THE SAME
STATEMENTS WHICH CAUSED THE ELECTION TO BE SET ASIDE IN CASE NO. 6-RO-7
ALSO CONSTITUTE A VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE WHICH
PROVIDES THAT "IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY TO
INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE
EMPLOYEE OF ANY RIGHT UNDER THIS CHAPTER." CONSISTENT WITH THE FINDINGS
AND PURPOSE OF CONGRESS AS SET FORTH IN SECTION 7101 (SUPRA N. 9),
SECTION 7102 OF THE STATUTE (ENTITLED "EMPLOYEES' RIGHTS") PROVIDES IN
PART THAT "(E)ACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOINT, OR
ASSIST ANY LABOR ORGANIZATION, OR TO REFRAIN FROM ANY SUCH ACTIVITY,
FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, AND EACH EMPLOYEE SHALL
BE PROTECTED IN THE EXERCISE OF SUCH RIGHT." UNDER EXECUTIVE ORDER
11491, AS AMENDED, WHICH ESTABLISHED AND PROTECTED IDENTICAL EMPLOYEE
RIGHTS, /10/ MANAGEMENT'S BREACH OF NEUTRALITY DURING AN ELECTION
CAMPAIGN WAS FOUND TO CONSTITUTE UNLAWFUL INTERFERENCE WITH SUCH
PROTECTED RIGHTS IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER (SUPRA N.
7). /11/ CONSISTENT WITH THE STATED INTENT OF CONGRESS, THE AUTHORITY
CONCLUDES THAT MANAGEMENT'S BREACH OF NEUTRALITY DURING AN ELECTION
CAMPAIGN SIMILARLY INTERFERES WITH THE SAME PROTECTED RIGHTS OF
EMPLOYEES UNDER THE STATUTE AND THEREFORE VIOLATES SECTION 7116(A)(1) OF
THE STATUTE.
IN THE INSTANT CASE, AS FOUND ABOVE WITH RESPECT TO CASE NO. 6-RO-7,
THE ACTIVITY BREACHED ITS OBLIGATION TO REMAIN NEUTRAL DURING THE
ELECTION CAMPAIGN BY POSTING ON ALL BULLETIN BOARDS AND DISTRIBUTING TO
UNIT EMPLOYEES-- SHORTLY BEFORE THE SCHEDULED ELECTION-- A MESSAGE
SIGNED BY THE HEAD OF THE ACTIVITY WHICH STRONGLY IMPLIED THAT UNIONS
WERE UNNECESSARY, UNDESIRABLE, AND DIFFICULT TO REMOVE ONCE THE
EMPLOYEES VOTED IN FAVOR OF EXCLUSIVE RECOGNITION. SUCH VIOLATION OF
NEUTRALITY INTERFERED WITH THE EMPLOYEES' PROTECTED RIGHT UNDER SECTION
7102 OF THE STATUTE TO "FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION, OR
TO REFRAIN FROM ANY SUCH ACTIVITY," AND THEREFORE VIOLATED SECTION
7116(A)(1) OF THE STATUTE IN THE CIRCUMSTANCES OF THIS CASE.
IN VIEW OF THE FOREGOING, THE RESPONDENT IN CASE NO. 6-CA-233 SHALL
TAKE THE ACTION SET FORTH IN THE FOLLOWING ORDER; AND THE ELECTION
CONDUCTED ON JULY 12, 1979, IN CASE NO. 6-RO-7, IS HEREBY SET ASIDE AND
A SECOND ELECTION SHALL BE CONDUCTED AS DIRECTED BELOW.
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 DEPARTMENT OF DEFENSE, DEPARTMENT OF THE AIR
FORCE, AIR FORCE PLANT REPRESENTATIVE OFFICE, DETACHMENT 27 (AFPRO,
GENERAL DYNAMICS), FORT WORTH, TEXAS, SHALL:
1. CEASE AND DESIST FROM:
A. SUGGESTING TO EMPLOYEES THAT UNION REPRESENTATION IS UNNECESSARY
AND UNDESIRABLE, AND IMPLYING THAT THE EMPLOYEES WILL BE BURDENED WITH A
UNION REPRESENTATIVE FOR YEARS TO COME IF THEY WERE TO VOTE IN FAVOR OF
EXCLUSIVE RECOGNITION IN A SECRET BALLOT ELECTION CONDUCTED BY 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:
A. POST AT THE FACILITIES OF THE UNITED STATES DEPARTMENT OF
DEFENSE, DEPARTMENT OF THE AIR FORCE, AIR FORCE PLANT REPRESENTATIVE
OFFICE, DETACHMENT 27 (AFPRO, GENERAL DYNAMICS), FORT WORTH, 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 COLONEL, USAF, COMMANDER, AIR FORCE PLANT
REPRESENTATIVE OFFICE, DETACHMENT 27 (AFPRO, GENERAL DYNAMICS), FORT
WORTH, TEXAS, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN
BOARDS AND ALL OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED. THE COLONEL 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 REGIONAL VI, FEDERAL LABOR
RELATIONS AUTHORITY, P.O. BOX 2640, DALLAS, TEXAS 75221, IN WRITING,
WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN
TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE ELECTION HELD ON JULY 12, 1979, BE,
AND IT HEREBY IS, SET ASIDE AND THAT A SECOND ELECTION BE CONDUCTED
PURSUANT TO THE FOLLOWING:
DIRECTION OF SECOND ELECTION
IS IS HEREBY DIRECTED THAT A SECOND ELECTION BE CONDUCTED, AS EARLY
AS POSSIBLE, BUT NOT LATER THAN SIXTY (60) DAYS FROM THE DATE BELOW, IN
THE UNIT SET FORTH IN THE AGREEMENT FOR CONSENT OR DIRECTED ELECTION
APPROVED ON JUNE 20, 1979. THE APPROPRIATE REGIONAL DIRECTOR SHALL
CONDUCT THE ELECTION SUBJECT TO THE AUTHORITY'S RULES AND REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THE PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
ISSUED, WASHINGTON, D.C., APRIL 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 UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT SUGGEST TO OUR EMPLOYEES THAT UNION REPRESENTATION IS
UNNECESSARY AND UNDESIRABLE, OR IMPLY THAT THEY WILL BE BURDENED WITH A
UNION REPRESENTATIVE FOR YEARS TO COME IF THEY WERE TO VOTE IN FAVOR OF
EXCLUSIVE RECOGNITION IN A SECRET BALLOT ELECTION CONDUCTED BY THE
FEDERAL LABOR RELATIONS AUTHORITY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF 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 THE 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 VI, FEDERAL LABOR RELATIONS
AUTHORITY, WHOSE ADDRESS IS: P.O. BOX 2640, DALLAS, TEXAS 75221, AND
WHOSE TELEPHONE NUMBER IS (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ ON MARCH 21, 1980, THE GENERAL COUNSEL ISSUED A COMPLAINT AND
NOTICE OF HEARING IN 6-CA-233 BASED UPON AFGE'S UNFAIR LABOR PRACTICE
CHARGE. THEREAFTER, ON JULY 28, 1980, PURSUANT TO THE TERMS OF A
STIPULATION REACHED BY THE PARTIES THEREIN AND SECTION 2429.1 OF THE
AUTHORITY'S RULES, THE REGIONAL DIRECTOR ORDERED THE CASE TRANSFERRED
DIRECTLY TO THE AUTHORITY FOR DECISION.
/2/ SECTION 7116(E) OF THE STATUTE PROVIDES AS FOLLOWS:
(E) THE EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT, OPINION OR THE
MAKING OF ANY STATEMENT
WHICH--
(1) PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION AND ENCOURAGES
EMPLOYEES TO EXERCISE
THEIR RIGHT TO VOTE IN SUCH ELECTION.
(2) CORRECTS THE RECORD WITH RESPECT TO ANY FALSE OR MISLEADING
STATEMENT MADE BY ANY
PERSON, OR
(3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
LABOR-MANAGEMENT RELATIONS AND
REPRESENTATION, SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF
REPRISAL OR FORCE OR
PROMISE OF BENEFIT OR WAS NOT MADE UNDER COERCIVE CONDITIONS, (A)
CONSTITUTE AN UNFAIR LABOR
PRACTICE UNDER ANY PROVISION OF THIS CHAPTER, OR (B) CONSTITUTE
GROUNDS FOR THE SETTING ASIDE
OF ANY ELECTION CONDUCTED UNDER ANY PROVISIONS OF THIS CHAPTER.
/3/ SECTION 7216(G) OF THE FINAL SENATE BILL (S. 2640) WAS ADDED TO
THE BILL REPORTED OUT OF THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS AS
AN AMENDMENT OFFERED, EXPLAINED AND MODIFIED BY SENATOR HATCH OF UTAH ON
THE FLOOR OF THE SENATE. SEE 124 CONG.REC. S 14311-14315 (DAILY ED.
AUG. 24, 1978).
/4/ H.R. REP. NO. 96-1717, 95TH CONG., 2D SESS. AT 156 (1978).
/5/ SEE, E.G., CHARLESTON NAVAL SHIPYARD, A/ALMR NO. 1, 1 A/SLMR 27
(1970), AT N. 17; AND ANTILLES CONSOLIDATED SCHOOLS, ROOSEVELT ROADS,
CEIBA, PUERTO RICO, A/SLMR NO. 349, 4 A/SLMR 114 (1974). SEE ALSO
ROBERT E. HAMPTON, CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION,
"FEDERAL LABOR-MANAGEMENT RELATIONS: A PROGRAM IN EVOLUTION," 21
CATHOLIC UNIVERSITY LAW REVIEW 493, 502 (1972).
/6/ SEE, E.G., ANTILLES CONSOLIDATED SCHOOLS, 4 A/SLMR 114, SUPRA N.
5.
/7/ SECTION 19(A)(1) PROVIDED AS FOLLOWS:
SEC. 19. UNFAIR LABOR PRACTICES. AGENCY MANAGEMENT SHALL NOT--
(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
OF THE RIGHTS ASSURED
BY THIS ORDER . . .
/8/ SEE, E.G., VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA
PROCESSING CENTER, AUSTIN, TEXAS, A/ALMR NO. 523, 5 A/SLMR 377 (1975),
REVIEW DENIED BY THE FEDERAL LABOR RELATIONS COUNCIL, 5 FLRC 75 (1977).
/9/ SECTION 7101(A) OF THE STATUTE PROVIDES:
SEC. 7101. FINDINGS AND PURPOSE
(A) THE CONGRESS FINDS THAT--
(1) EXPERIENCE IN BOTH PRIVATE AND PUBLIC EMPLOYMENT INDICATES THAT
THE STATUTORY
PROTECTION OF THE RIGHT OF EMPLOYEES TO ORGANIZE, BARGAIN
COLLECTIVELY, AND PARTICIPATE
THROUGH LABOR ORGANIZATIONS OF THEIR OWN CHOOSING IN DECISIONS WHICH
AFFECT THEM--
(A) SAFEGUARDS THE PUBLIC INTEREST,
(B) CONTRIBUTES TO THE EFFECTIVE CONDUCT OF PUBLIC BUSINESS,
(C) FACILITATES AND ENCOURAGES THE AMICABLE SETTLEMENTS OF DISPUTES
BETWEEN EMPLOYEES AND
THEIR EMPLOYERS INVOLVING CONDITIONS OF EMPLOYMENT; AND
(2) THE PUBLIC INTEREST DEMANDS THE HIGHEST STANDARDS OF EMPLOYEE
PERFORMANCE AND THE
CONTINUED DEVELOPMENT AND IMPLEMENTATION OF MODERN AND PROGRESSIVE
WORK PRACTICES TO
FACILITATE AND IMPROVE EMPLOYEE PERFORMANCE AND THE EFFICIENT
ACCOMPLISHMENT OF THE OPERATIONS
OF THE GOVERNMENT.
THEREFORE, LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING IN THE CIVIL
SERVICE ARE IN THE
PUBLIC INTEREST.
/10/ SECTION 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED, PROVIDED, IN
PERTINENT PART, AS FOLLOWS:
SECTION 1. POLICY. (A) EACH EMPLOYEE OF THE EXECUTIVE BRANCH OF THE
FEDERAL GOVERNMENT
HAS THE RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO
FORM, JOIN, AND ASSIST A
LABOR ORGANIZATION OR TO REFRAIN FROM ANY SUCH ACTIVITY, AND EACH
EMPLOYEE SHALL BE PROTECTED
IN THIS RIGHT.
/11/ SUPRA N. 8.