[ v06 p678 ]
06:0678(116)CA
The decision of the Authority follows:
6 FLRA No. 116
FEDERAL AVIATION ADMINISTRATION
ST. LOUIS TOWER
BRIDGETON, MISSOURI
Respondent
and
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, M.E.B.A. (AFL-CIO),
LOCAL 352 /1/
Charging Party
Case No. 7-CA-436
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT FEDERAL
AVIATION ADMINISTRATION, ST. LOUIS TOWER (RESPONDENT) HAD ENGAGED IN THE
UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT
CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS.
THEREAFTER, THE GENERAL COUNSEL AND THE RESPONDENT FILED EXCEPTIONS TO
THE 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 (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 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS. /2/
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 FEDERAL AVIATION ADMINISTRATION, ST.
LOUIS TOWER, BRIDGETON, MISSOURI, SHALL:
1. CEASE AND DESIST FROM:
(A) DISCIPLINING MR. JAMES STACK, OR ANY OTHER REPRESENTATIVE OF
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, M.E.B.A. (AFL-CIO),
AN INVESTIGATORY INTERVIEW WHICH MAY RESULT IN DISCIPLINARY ACTION
AGAINST THE UNIT EMPLOYEE.
(B) REQUIRING MR. VINCENT MICCICHE, OR ANY OTHER UNIT EMPLOYEE, TO
TAKE PART IN AN EXAMINATION, INTERVIEW OR MEETING WHICH THE EMPLOYEE
REASONABLY BELIEVES MAY RESULT IN DISCIPLINARY ACTION AGAINST THE
EMPLOYEE WITHOUT EFFECTIVE UNION REPRESENTATION BY PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION, M.E.B.A. (AFL-CIO), LOCAL 352, IF SUCH
REPRESENTATION HAS BEEN REQUESTED BY THE EMPLOYEE.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND
NECESSARY TO EFFECTUATE THE POLICIES OF THE STATUTE:
(A) EXPUNGE FROM MR. STACK'S PERSONNEL FILES ALL RECORDS OF THE ORAL
REPRIMAND GIVEN TO HIM ON NOVEMBER 13, 1979, AND ACKNOWLEDGE THE REMOVAL
TO MR. STACK IN WRITING.
(B) POST AT THE ST. LOUIS TOWER, BRIDGETON, MISSOURI, COPIES OF THE
ATTACHED NOTICE. COPIES OF SAID NOTICE, TO BE FURNISHED BY THE REGIONAL
DIRECTOR FOR REGION VII, AFTER BEING SIGNED BY AN AUTHORIZED
REPRESENTATIVE, SHALL BE POSTED BY IT IMMEDIATELY UPON RECEIPT THEREOF,
AND BE MAINTAINED BY IT FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID
NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR OF REGION VII, SUITE 680, CITY
CENTER SQUARE, 1100 MAIN STREET, KANSAS CITY, MISSOURI 64105, IN
WRITING, WITHIN 30 DAYS FROM THE DAY OF THIS ORDER, WHAT STEPS IT HAS
TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 DISCIPLINE MR. JAMES STACK, OR ANY OTHER PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION REPRESENTATIVE, BECAUSE OF HIS
ACTIVITIES IN REPRESENTING A UNIT EMPLOYEE AT AN INVESTIGATORY INTERVIEW
WHICH MAY RESULT IN DISCIPLINARY ACTION AGAINST THE UNIT EMPLOYEE.
WE WILL NOT REQUIRE MR. VINCENT MICCICHE, OR ANY OTHER UNIT EMPLOYEE,
TO TAKE PART IN AN EXAMINATION, INTERVIEW OR MEETING WHICH THE EMPLOYEE
REASONABLY BELIEVES MAY RESULT IN DISCIPLINARY ACTION AGAINST THE
EMPLOYEE WITHOUT EFFECTIVE UNION REPRESENTATION BY PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION, M.E.B.A. (AFL-CIO), LOCAL 352, IF SUCH
REPRESENTATION HAS BEEN REQUESTED BY THE EMPLOYEE.
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
STATUTE.
WE WILL EXPUNGE FROM MR. STACK'S PERSONNEL FILES ALL RECORDS OF THE
ORAL REPRIMAND GIVEN TO HIM ON NOVEMBER 13, 1979, AND ACKNOWLEDGE THE
REMOVAL TO STACK IN WRITING.
(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 REGION VII, FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS: SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET,
KANSAS CITY, MISSOURI 64105, AND WHOSE TELEPHONE NUMBER IS: (816)
374-2199.
-------------------- ALJ DECISION FOLLOWS --------------------
JOHN W. WEST, ESQUIRE
FOR THE RESPONDENT
JOHN J. RUBIN, ESQUIRE
FOR THE GENERAL COUNSEL
MR. GARY W. EADS
FOR THE CHARGING PARTY
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,
FED. REG., VOL. 45, NO. 12, JANUARY 11, 1980, 5 C.F.R.CHAPTER XIV, PART
2411, ET SEQ.
PURSUANT TO AN AMENDED CHARGE FIRST FILED ON FEBRUARY 19, 1980, BY
(AFL-CIO), LOCAL 352, (HEREINAFTER CALLED THE UNION OR PATCO), A
COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON MAY 22, 1980, BY THE
ACTING REGIONAL DIRECTOR FOR REGION VII, FEDERAL LABOR RELATIONS
AUTHORITY, KANSAS CITY, MISSOURI. THE COMPLAINT ALLEGES, IN SUBSTANCE,
THAT THE FEDERAL AVIATION ADMINISTRATION, ST. LOUIS TOWER, BRIDGETON,
MISSOURI, (HEREINAFTER CALLED THE RESPONDENT OR FAA), VIOLATED SECTIONS
7116(A)(1), (2) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, (HEREINAFTER CALLED THE STATUTE OR ACT), BY VIRTUE OF
ITS ACTIONS IN (1) DENYING AN EMPLOYEE EFFECTIVE UNION REPRESENTATION AT
AN INVESTIGATORY EXAMINATION AND (2) REPRIMANDING A UNION REPRESENTATIVE
FOR ATTEMPTING TO REPRESENT THE EMPLOYEE AT THE INVESTIGATORY
EXAMINATION.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON AUGUST 21, 1980, IN ST.
LOUIS, MISSOURI. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE RELEVANT
EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN. GENERAL COUNSEL MADE A
POST HEARING ARGUMENT AND THE RESPONDENT SUBMITTED A POST-HEARING BRIEF,
BOTH OF 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 CERTIFIED EXCLUSIVE REPRESENTATIVE OF RESPONDENT'S
AIR TRAFFIC CONTROLLERS LOCATED AT THE ST. LOUIS TOWER, BRIDGETON,
MISSOURI, AND A PARTY TO A COLLECTIVE BARGAINING AGREEMENT COVERING SUCH
EMPLOYEES. ARTICLE 6, SECTION 1, OF THE AGREEMENT PROVIDES IN PERTINENT
PART AS FOLLOWS:
EMPLOYEE REPRESENTATION
NO DISCIPLINARY ACTION MAY RESULT FROM A MEETING BETWEEN AN EMPLOYEE
AND HIS SUPERVISOR
AND/OR MANAGEMENT OFFICIAL UNLESS THE EMPLOYEE IS ADVISED THAT SUCH
MEETING IS FOR THE PURPOSE
OF DISCUSSING DISCIPLINE OR POTENTIAL DISCIPLINE, AND THE EMPLOYEE IS
ALLOWED UNION REPRESENTATION, IF HE SO DESIRES.
ON NOVEMBER 15, 1979, VINCENT MICCICHE, AN AIR TRAFFIC CONTROLLER,
WAS AT WORK IN THE ST. LOUIS TOWER. HIS SUPERVISOR AT THAT TIME WAS MR.
RICKY BAIRD. DURING THE COURSE OF HIS SHIFT, MR. MICCICHE, WHO HAD
EARLIER UNSUCCESSFULLY REQUESTED RELIEF FROM WORK DUE TO ILLNESS, BECAME
ENGAGED IN AN ALTERCATION WITH A FELLOW COMPTROLLER OVER THE USE OF AIR
SPACE FOR INCOMING AND DEPARTING FLIGHTS. THE ALTERCATION WAS MARKED BY
MR. MICCICHE SHOUTING OBSCENITIES AT HIS FELLOW COMPTROLLER. UPON BEING
SUBSEQUENTLY RELIEVED FROM HIS POSITION, MR. MICCICHE LEFT THE CONTROL
TOWER AND TOOK A SEAT IN THE "BREAK ROOM." WHILE IN THE "BREAK ROOM,"
MR. MICCICHE CONTACTED MR. JAMES STACK, WHO WAS THEN PRESIDENT OF LOCAL
352, AND COMPLAINED ABOUT HAVING HIS SICK LEAVE REQUEST DENIED BY MR.
BAIRD. MR. STACK INFORMED MR. MICCICHE THAT HE WOULD CHECK THE MATTER
OUT.
APPROXIMATELY 10 TO 15 MINUTES AFTER MR. MICCICHE HAD BEEN IN THE
"BREAK ROOM" HE WAS APPROACHED BY MR. BAIRD AND INFORMED THAT HE, MR.
BAIRD, WANTED TO HOLD A COUNSELING SESSION WITH HIM. HE WAS FURTHER
INFORMED BY MR. BAIRD THAT POSSIBLE DISCIPLINARY ACTION COULD RESULT AND
THAT HE, MR. MICCICHE, SHOULD GET A UNION REPRESENTATIVE TO ACCOMPANY
HIM TO THE MEETING. MR. MICCICHE THEN CONTACTED MR. STACK AND REQUESTED
HIM TO REPRESENT HIM AT THE SCHEDULED MEETING. MR. STACK CONSENTED TO
BE HIS REPRESENTATIVE AND ACCOMPANIED MR. MICCICHE TO THE OFFICE WHICH
MR. BAIRD HAD DESIGNATED FOR THE MEETING.
THE MEETING STARTED OUT WITH MR. STACK REQUESTING A POSTPONEMENT ON
THE GROUND THAT MR. MICCICHE WAS NOT FEELING WELL AND HAD EARLIER
REQUESTED SICK LEAVE. UPON HAVING THE REQUEST DENIED, MR. STACK THEN
INQUIRED WHETHER POSSIBLE DISCIPLINE COULD RESULT FROM THE MEETING. MR.
BAIRD REPLIED IN THE AFFIRMATIVE. MR. BAIRD THEN INFORMED MR. MICCICHE
THAT HE WAS BEING CHARGED WITH USING EXCESSIVE AND ABUSIVE LANGUAGE AND
CREATING A DISTURBANCE IN THE CONTROL ROOM. MR. MICCICHE RESPONDED THAT
HE HAD ATTEMPTED TO USE THE LAND-LINE TO COMMUNICATE WITH THE OTHER AIR
TRAFFIC CONTROLLER BUT THE LINE WAS BUSY. /3/ MR. BAIRD TOLD MR.
MICCICHE THAT HE DID NOT CONSIDER THE USE OF THE LAND-LINE PERTINENT TO
WHAT HE WAS ABOUT TO SAY TO MR. MICCICHE BUT THAT HE WOULD LOOK INTO THE
MATTER. MR. STACK INTERRUPTED AND SUGGESTED THAT MR. BAIRD CHECK THE
TAPES OF THE LAND-LINE BEFORE PROCEEDING ANY FURTHER WITH THE MEETING.
MR. BAIRD MADE NO RESPONSE TO MR. STACK'S SUGGESTION AND CONTINUED WITH
THE MEETING. WHEREUPON, MR. STACK AGAIN INTERRUPTED AND URGED MR. BAIRD
TO CHECK THE TAPES OF THE LAND-LINE CONVERSATIONS. MR. BAIRD REPLIED
THAT HE DID NOT HAVE TO INVESTIGATE ANY FURTHER AND THAT HE WAS GOING TO
CONTINUE COUNSELING MR. MICCICHE. MR. STACK THEN AGAIN INTERRUPTED AND
TOLD MR. BAIRD THAT BEFORE HE BEGAN COUNSELING HE "OUGHT TO GET ALL THE
FACTS." MR. BAIRD THEN TOLD MR. STACK TO BE QUIET. MR. STACK REPLIED
THAT HE WOULD NOT BE QUIET SINCE HE WAS AT THE MEETING AS MR. MICCICHE'S
REPRESENTATIVE AND COULD SPEAK UP. MR. BAIRD RESPONDED THAT HE WAS
GIVING MR. BAIRD AN ORDER TO BE QUIET. MR. STACK THEN STATED THAT HE
WAS NOT GOING TO TAKE THE ORDER. WHEREUPON MR. BAIRD ANNOUNCED THAT THE
MEETING WAS TEMPORARILY TERMINATED AND THAT MR. STACK SHOULD GET HIMSELF
A REPRESENTATIVE AND PREPARE FOR DISCIPLINARY ACTION.
MR. STACK THEN LEFT THE MEETING AND CONTACTED FELLOW EMPLOYEE THOMAS
FERRING, A PAST PRESIDENT OF LOCAL 352, AND ASKED HIM TO BE HIS
REPRESENTATIVE AT THE IMPENDING DISCIPLINARY MEETING. AFTER MR. FERRING
AGREED TO BE MR. STACK'S REPRESENTATIVE THEY BOTH REENTERED MR. BAIRD'S
OFFICE. UPON ENTERING MR. BAIRD'S OFFICE MR. FERRING INQUIRED AS TO THE
PURPOSE OF THE MEETING. MR. BAIRD RESPONDED THAT THE PURPOSE OF THE
MEETING WAS TO GIVE MR. STACK AN ORAL REPRIMAND. MR. BAIRD THEN
CONTINUED ON AND STATED "I AM OFFICIALLY ORALLY REPRIMANDING YOU FOR
DISOBEYING A DIRECT ORDER." /4/ AFTER ANSWERING A FEW QUESTIONS FROM MR.
FERRING CONCERNING THE POSSIBILITY OF HAVING THE DISCIPLINE DOWN GRADED
THE MEETING ENDED.
FOLLOWING THE AFOREMENTIONED MEETING BETWEEN MR. STACK, MR. FERRING
AND MR. BAIRD, MR. BAIRD ADVISED THAT THE COUNSELING MEETING WITH MR.
MICCICHE WOULD IMMEDIATELY RECONVENE. THE COUNSELING SESSION RECONVENED
AND CONTINUED FOR SOME TEN MINUTES WITHOUT ANY FURTHER INCIDENT. MR.
MICCICHE DID NOT RECEIVE ANY DISCIPLINE FOR HIS ACTIONS WHICH OCCURRED
EARLIER IN THE CONTROL TOWER.
ACCORDING TO MR. BAIRD, HE FELT THAT HE WAS DEALING WITH A HOSTILE
EMPLOYEE AND ANTICIPATED A PROBLEM WITH MR. MICCICHE DURING THE
COUNSELING SESSION AND IT WAS FOR THIS REASON THAT HE GAVE THE WARNING
OF POSSIBLE DISCIPLINARY ACTION TO MR. MICCICHE. THE WARNING WAS GIVEN
IN ACCORDANCE WITH ARTICLE 6, SECTION 1 OF THE CONTRACT.
DISCUSSION AND CONCLUSIONS
RESPONDENT TAKES THE POSITION THAT THE NOVEMBER 15, 1979, MEETING DID
NOT FALL WITHIN THE PURVIEW OF SECTION 7114(A)(2)(B) OF THE STATUTE AND
THAT, IN ANY EVENT, MR. STACK'S ACTION IN REFUSING TO CEASE
INTERRUPTING THE COUNSELING SESSION EXCEEDED THE BOUNDS OF PROTECTED
ACTIVITY. THUS, RESPONDENT ARGUES THAT THE NOVEMBER 15TH MEETING WAS A
COUNSELING SESSION AND NOT AN INVESTIGATION. THE GENERAL COUNSEL, ON
THE OTHER HAND, TAKES THE POSITION THAT THE NOVEMBER 15TH MEETING DID
FALL WITHIN THE PURVIEW OF THE STATUTE AND THAT MR. STACK'S ACTION DID
NOT EXCEED THE BOUNDS OF PROTECTED ACTIVITY. ACCORDINGLY, IT IS CLEAR
THAT RESOLUTION OF THE ISSUES UNDERLYING THE INSTANT COMPLAINT TURN ON
THE NATURE OF THE MEETING AND WHETHER MR. STACK'S ACTIONS AT THE
MEETING AMOUNTED TO INSUBORDINATION WARRANTING DISCIPLINE. FOR REASONS
SET FORTH BELOW, I FIND THAT THE MEETING OF NOVEMBER 15TH FELL WITHIN
THE PURVIEW OF SECTION 7114(A)(2)(B) OF THE STATUTE AND THAT MR. STACK'S
ACTIONS DID NOT EXCEED THE BOUNDS OF PROTECTED ACTIVITY.
THE LEGISLATIVE HISTORY OF THE STATUTE /5/ MAKES IT CLEAR THAT IT WAS
THE INTENT OF CONGRESS TO INCLUDE THE SO-CALLED "WEINGARTEN" RIGHTS /6/
IN SECTION 7114(A)(2)(B) OF THE STATUTE. /7/ INDEED THE FEDERAL LABOR
RELATIONS AUTHORITY HAS SO FOUND. /8/
IN WEINGARTEN THE SUPREME COURT MADE IT CLEAR THAT AN EMPLOYEE FACED
WITH POSSIBLE DISCIPLINARY ACTION WAS ENTITLED TO UNION REPRESENTATION
AT ANY EXAMINATION OF THE EMPLOYEE IN CONNECTION WITH ANY INVESTIGATION
CONCERNING HIS CONDUCT. A SIMILAR RESULT WAS REACHED BY THE SUPREME
COURT IN ILGWU V. QUALITY MANUFACTURING CO., 88 LRRM 2698 WHEREIN THE
EMPLOYEE, WHO HAD BEEN INSUBORDINATE TO THE PLANT OWNER'S WIFE, REFUSED
TO ATTEND AN INTERVIEW WITH MANAGEMENT WITHOUT THE PRESENCE OF HER UNION
REPRESENTATIVE. IN QUALITY, THE EMPLOYEE, WHO HAD SHUT DOWN HER MACHINE
AND WAS BUSY TALKING TO FELLOW EMPLOYEES, TOLD THE OWNER'S WIFE TO MIND
HER OWN BUSINESS WHEN ORDERED TO RESUME WORK.
CONTRARY TO THE POSITION OF THE RESPONDENT, I AM NOT PERSUADED THAT
THE TITLING OF THE NOVEMBER 15, 1979, MEETING AS "COUNSELING" REMOVES
THE MEETING FROM THE PROTECTION OF THE STATUTE. BE IT TITLED AN
INTERVIEW, INVESTIGATION OR COUNSELING, I FIND THAT WHENEVER THE
CIRCUMSTANCES, UNDERLYING A MEETING MAKE IT REASONABLE TO ENVISION A
DISCUSSION OF AN EMPLOYEE'S CONDUCT WHICH COULD LEAD TO DISCIPLINE, THE
EMPLOYEE IS ENTITLED UNDER SECTION 7114(A)(2)(B) OF THE STATUTE TO UNION
REPRESENTATION. SELDOM ARE SUCH INTERVIEWS DEVOID OF ANY DISCUSSION OF
THE REASONS OR JUSTIFICATION FOR THE EMPLOYEE'S UNACCEPTABLE CONDUCT.
THE FACT THAT MANAGEMENT OFFICIALS CONDUCTING THE INTERVIEW MIGHT HAVE
OBSERVED THE EMPLOYEE'S INJUDICIOUS CONDUCT DOES NOT ALTER THE
SITUATION, SINCE WITHOUT SAME, THE INTERVIEW WOULD PROBABLY NEVER HAVE
BEEN SCHEDULED. /8/ ACCORDINGLY, INASMUCH AS IT WAS REASONABLE TO
CONCLUDE UNDER ALL THE CIRCUMSTANCES PRESENT HEREIN THAT THERE WOULD BE
A DISCUSSION OF THE REASONS FOR MR. MICCICHE'S CONDUCT IN THE CONTROL
TOWER, I FIND THAT MR. MICCICHE WAS ENTITLED TO UNION REPRESENTATION AT
THE NOVEMBER 15, 1979, MEETING, FORMAL NOTICE OF WHICH CARRIED AN
EXPRESSED WARNING OF POSSIBLE DISCIPLINE.
THE SECOND ISSUE TO BE DECIDED IS WHETHER, UNDER ALL THE
CIRCUMSTANCES PRESENT HEREIN, MR. STACK EXCEEDED THE BOUNDS OF PROTECTED
ACTIVITY WHEN HE INFORMED MR. BAIRD THAT HE WOULD NOT OBEY HIS ORDER TO
BE QUIET. RESOLUTION OF THIS ISSUE TURNS ON THE DUTIES AND
RESPONSIBILITIES IMPOSED UPON A UNION REPRESENTATIVE IN A 7114(A)(2)(B)
SITUATION. IS HE TO SIT IDLY BY AS A WITNESS TO THE PROCEEDINGS OR IS
HE OBLIGATED TO TAKE AN ACTIVE PART IN THE EMPLOYEE'S DEFENSE? I
CONCLUDE THAT THE UNION REPRESENTATIVE IS UNDER A DUTY TO TAKE AN ACTIVE
PART IN THE EMPLOYEE'S DEFENSE. SUPPORT FOR THIS CONCLUSION IS FOUND IN
THE SUPREME COURT'S DECISION IN WEINGARTEN, SUPRA. /10/ THUS, THE
COURT, IN CONSIDERING THE ADVANTAGES OF UNION REPRESENTATION AT
INVESTIGATORY MEETINGS, STATED:
A SINGLE EMPLOYEE CONFRONTED BY AN EMPLOYER INVESTIGATING WHETHER
CERTAIN CONDUCT DESERVED
DISCIPLINE MAY BE TOO FEARFUL OR INARTICULATE TO RELATE ACCURATELY
THE INCIDENT BEING
INVESTIGATED, OR TOO IGNORANT TO RAISE EXTENUATING FACTORS. A
KNOWLEDGEABLE UNION
REPRESENTATIVE COULD ASSIST THE EMPLOYER BY ELICITING FAVORABLE FACTS
AND SAVE THE EMPLOYER
PRODUCTION TIME BY GETTING TO THE BOTTOM OF THE INCIDENT OCCASIONING
THE INTERVIEW. . . .
THE ABOVE QUOTATION MAKES IT CLEAR THAT THE SUPREME COURT ENVISIONED
ACTIVE PARTICIPATION BY THE UNION REPRESENTATIVE AT THE INVESTIGATORY
MEETING.
HAVING FOUND THAT ACTIVE PARTICIPATION BY THE UNION REPRESENTATIVE IN
AN INVESTIGATORY MEETING WAS ENVISIONED BY BOTH WEINGARTEN AND SECTION
7114(A)(2)(B) OF THE STATUTE, THE LAST QUESTION TO BE ANSWERED IS
WHETHER MR. STACK'S ACTIONS AT THE NOVEMBER 15TH MEETING WERE OF SUCH AN
OUTRAGEOUS AND INSUBORDINATE NATURE TO REMOVE THEM FROM THE PROTECTION
OF THE STATUTE AND LEGALLY SUBJECT HIM TO DISCIPLINE THEREFOR.
THE RECORD INDICATES THAT ON SOME FOUR OCCASIONS DURING THE NOVEMBER
15TH MEETING MR. STACK REQUESTED POSTPONEMENT OF THE MEETING BECAUSE OF
MR. MICCICHE'S POOR HEALTH AND/OR FOR A READING OF THE TAPE RECORDINGS
OF THE LAND-LINE CONVERSATIONS BETWEEN MR. MICCICHE AND HIS FELLOW
CONTROLLER. WHILE SUCH REQUESTS MIGHT HAVE DELAYED MR. BAIRD'S
COUNSELING OF MR. MICCICHE, IT CERTAINLY DID NOT PREVENT IT.
ADDITIONALLY, IT IS NOTED THAT MR. STACK'S REFUSAL TO ACCEDE TO MR.
BAIRD'S ORDER TO BE QUIET WAS COUCHED IN TERMS OF HIS RESPONSIBILITIES
AS MR. MICCICHE'S UNION REPRESENTATIVE.
VIEWING THE ABOVE CITED ACTIVITIES OF MR. STACK IN LIGHT OF THE
DUTIES AND RESPONSIBILITIES IMPOSED UPON HIM BY THE STATUTE, I CAN NOT
CONCLUDE AS URGED BY RESPONDENT, THAT MR. STACK EXCEEDED THE BOUNDS OF
PROTECTED ACTIVITY. /11/ ACCORDINGLY, I FIND THAT RESPONDENT VIOLATED
SECTIONS 7116(A)(1) AND (2) OF THE STATUTE WHEN IT GAVE AN ORAL
REPRIMAND TO MR. STACK BECAUSE OF HIS ACTIVITIES AS A UNION
REPRESENTATIVE. I FURTHER FIND THAT BY SUCH ACTION THE RESPONDENT
VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE SINCE IT DEPRIVED
MR. MICCICHE OF THE RIGHT OF REPRESENTATION ACCORDED HIM BY SECTION
7114(A)(2)(B).
HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1), (2) AND
(8) OF THE STATUTE BY VIRTUE OF ITS ACTIONS IN (1) DENYING MR. VINCENT
MICCICHE EFFECTIVE UNION REPRESENTATION AT THE NOVEMBER 15, 1980,
INVESTIGATORY INTERVIEW AND (2) GIVING AN ORAL REPRIMAND TO MR. JAMES
STACK BECAUSE OF HIS ACTIVITIES AS MR. MICCICHE'S SELECTED UNION
REPRESENTATIVE AT THE NOVEMBER 15, 1980, INTERVIEW, I RECOMMEND THAT THE
AUTHORITY ISSUE THE FOLLOWING ORDER:
ORDER
1. CEASE AND DESIST FROM:
(A) REQUIRING MR. VINCENT MICCICHE OR ANY OTHER UNIT EMPLOYEE TO TAKE
PART IN AN EXAMINATION, INTERVIEW OR MEETING WITHOUT EFFECTIVE UNION
REPRESENTATION BY LOCAL 352, PROFESSIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION (MEBA), AFL-CIO, THE EMPLOYEES' EXCLUSIVE COLLECTIVE
BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY
THE EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE
EXAMINATION, INTERVIEW OR MEETING MAY RESULT IN DISCIPLINARY ACTION
AGAINST THE EMPLOYEE.
(B) DISCIPLINING MR. JAMES STACK, OR ANY OTHER PROFESSIONAL AIR
TRAFFIC CONTROLLERS ASSOCIATION REPRESENTATIVE, BECAUSE OF HIS
ACTIVITIES IN REPRESENTING A UNIT EMPLOYEE AT AN INVESTIGATORY INTERVIEW
WHICH MAY RESULT IN DISCIPLINARY ACTION AGAINST THE UNIT EMPLOYEE.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND
NECESSARY TO EFFECTUATE THE POLICIES OF THE STATUTE:
(A) EXPUNGE FROM MR. STACK'S PERSONNEL FILES ALL RECORDS OF THE ORAL
REPRIMAND GIVEN TO HIM ON NOVEMBER 15, 1980.
(B) POST AT THE ST. LOUIS TOWER, BRIDGETON, MISSOURI, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE, TO BE
FURNISHED BY THE REGIONAL DIRECTOR FOR REGION VII, AFTER BEING SIGNED BY
AN AUTHORIZED REPRESENTATIVE, SHALL BE POSTED BY IT IMMEDIATELY UPON
RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO
INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR FOR REGION VII, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY
HEREWITH.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: OCTOBER 9, 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 REQUIRE MR. VINCENT MICCICHE OR ANY OTHER UNIT EMPLOYEE
TO TAKE PART IN AN EXAMINATION, INTERVIEW OR MEETING WITHOUT EFFECTIVE
REPRESENTATION BY LOCAL 352, PROFESSIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION (MEBA), AFL-CIO, THE EMPLOYEES' EXCLUSIVE COLLECTIVE
BARGAINING REPRESENTATIVE, IF SUCH REPRESENTATION HAS BEEN REQUESTED BY
THE EMPLOYEE AND IF THE EMPLOYEE REASONABLY BELIEVES THAT THE
EXAMINATION, INTERVIEW OR MEETING MAY RESULT IN DISCIPLINARY ACTION
AGAINST THE EMPLOYEE.
WE WILL NOT DISCIPLINE MR. JAMES STACK OR ANY OTHER PROFESSIONAL AIR
TRAFFIC CONTROLLERS ASSOCIATION REPRESENTATIVE, BECAUSE OF HIS
ACTIVITIES IN REPRESENTING A UNIT EMPLOYEE AT AN INVESTIGATORY INTERVIEW
WHICH MAY RESULT IN DISCIPLINARY ACTION AGAINST THE UNIT EMPLOYEE.
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
STATUTE.
WE WILL EXPUNGE FROM MR. STACK'S PERSONNEL FILES ALL RECORDS OF THE
ORAL REPRIMAND GIVEN TO HIM ON NOVEMBER 15, 1980.
(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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET, KANSAS CITY, MISSOURI
64105 AND WHOSE TELEPHONE NUMBER IS: (816) 374-2199.
--------------- FOOTNOTES: ---------------
/1/ THE INADVERTENT ERROR OF THE ADMINISTRATIVE LAW JUDGE IN
REFERRING TO THE NAME OF THE CHARGING PARTY AS THE PROFESSIONAL AIR
TRAFFIC CONTROLLERS ASSOCIATION, MEBA (AFL-CIO), LOCAL 352, IS HEREBY
CORRECTED.
/2/ IN THIS REGARD, SECTION 7114(A)(2)(B) REQUIRES THAT AN AGENCY
GIVE AN EXCLUSIVE REPRESENTATIVE THE OPPORTUNITY TO BE REPRESENTED AT
ANY EXAMINATION OF AN EMPLOYEE WHEN THE CONDITIONS PROVIDED IN THE
SECTION HAVE BEEN MET. SUCH REPRESENTATION INCLUDES THE RIGHT TO TAKE
AN ACTIVE PART IN THE DEFENSE OF THE EMPLOYEE. SEE U.S. CUSTOMS
SERVICE, REGION VII, LOS ANGELES, CALIFORNIA, 5 FLRA NO. 41 (1980). THE
AUTHORITY DOES NOT PASS UPON WHETHER THERE IS A DUTY TO TAKE AN ACTIVE
PART REQUIRED OF THE EXCLUSIVE REPRESENTATIVE AND FURTHER WHAT THE
MEANING OF "ACTIVE PART" MAY IMPLY IN SUCH SITUATIONS.
/3/ THE LAND LINE IS A TELEPHONE CIRCUIT IN THE CONTROL TOWER BY
WHICH ONE CONTROLLER CAN TALK TO ANOTHER CONTROLLER.
/4/ A NOTATION OF THE REPRIMAND WAS PUT IN MR. STACK'S PERSONNEL FILE
KEPT AT THE INSTALLATION.
/5/ LEGISLATIVE HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1978,
96TH CONGRESS, 1ST SESSION, COMMITTEE PRINT NO. 96-7, (NOVEMBER 19,
1979) PP. 664, 651, 652, 824 AND 926.
/6/ N.L.R.B. V. J. WEINGARTEN, INC., 95 S.CT. 959(1975); 88 LRRM
2689.
/7/ SECTION 7114(A)(2)(B) OF THE STATUTE PROVIDES AS FOLLOWS: AN
EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT . . . ANY EXAMINATION OF AN EMPLOYEE
IN THE UNIT BY A REPRESENTATIVE OF THE AGENCY IN CONNECTION WITH AN
INVESTIGATION IF (I) THE EMPLOYEE REASONABLY BELIEVES THE EXAMINATION
MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE; AND (II) THE
EMPLOYEE REQUESTS REPRESENTATION.
/8/ INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL REVENUE
SERVICE, HARTFORD DISTRICT OFFICE AND NATIONAL TREASURY EMPLOYEES UNION,
4 FLRA NO. 37, WHEREIN THE AUTHORITY ADOPTED SIMILAR CONCLUSIONS OF
JUDGE SALVATORE ARRIGO.
/9/ CF. QUALITY MANUFACTURING, SUPRA, WHEREIN THE MANAGEMENT
REPRESENTATIVE NOT ONLY OBSERVED THE ALLEGED MISCONDUCT, BUT WAS ALSO A
PARTY TO IT.
/10/ 88 LRRM 2693.
/11/ CF. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, SAN FRANCISCO,
CALIFORNIA AND NFFE, LOCAL 1450, 4 FLRA NO. 64.