[ v09 p620 ]
09:0620(69)CA
The decision of the Authority follows:
9 FLRA No. 69
ARMY AND AIR FORCE EXCHANGE SERVICE
(AAFES), FT. CARSON, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1345
Charging Party
Case No. 7-CA-918
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
IN AN UNFAIR LABOR PRACTICE UNDER SECTION 7116(A)(1) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), AND
RECOMMENDED THAT THE CASE BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE
GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF 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 DECISION AND THE ENTIRE RECORD, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-918 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 21, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
LUTHER G. JONES, III, ESQUIRE
MR. G. T. FEARSON
FOR THE RESPONDENT
CATHY A. AUBLE, ESQUIRE
JAMES J. GONZALES, ESQUIRE
FOR THE GENERAL COUNSEL
MS. MARLENE MOOSMAN
FOR THE CHARGING PARTY
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS DECISION CONCERNS AN UNFAIR LABOR PRACTICE COMPLAINT ISSUED BY
THE REGIONAL DIRECTOR, REGION SEVEN, FEDERAL LABOR RELATIONS AUTHORITY,
KANSAS CITY, MISSOURI, AGAINST THE ARMY AND AIR FORCE EXCHANGE SERVICE
(AAFES), FT. CARSON, COLORADO (RESPONDENT), BASED ON A CHARGE FILED BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1345
(CHARGING PARTY OR UNION). THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT
RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) ON OR ABOUT OCTOBER 26,
1980 WHEN RESPONDENT, ACTING BY AND THROUGH BEATRICE SMITH, TOLD A UNIT
EMPLOYEE THAT THE UNION NEVER DOES ANYTHING FOR EMPLOYEES. THE
RESPONDENT'S ANSWER DENIED THIS ALLEGATION.
A HEARING WAS HELD IN THIS MATTER IN DENVER, COLORADO. THE
RESPONDENT, GENERAL COUNSEL, AND CHARGING PARTY WERE REPRESENTED AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, EXAMINE
AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING BRIEFS. BASED ON THE
ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND
THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
SINCE AUGUST 13, 1971, AND AT ALL TIMES THEREAFTER, THE UNION, A
LABOR ORGANIZATION, HAS BEEN RECOGNIZED BY THE RESPONDENT AS THE
EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT OF RESPONDENT'S
EMPLOYEES AT THE FORT CARSON POST EXCHANGE, FORT CARSON, COLORADO, AND
THE PUEBLO ARMY DEPOT, PUEBLO, COLORADO.
CAROLYN DUNCAN, A MEMBER OF THE BARGAINING UNIT, HAS BEEN EMPLOYED BY
RESPONDENT AT THE FORT CARSON POST EXCHANGE SINCE OCTOBER 25, 1979. SHE
IS CURRENTLY A GRADE TWO IN LABOR MARKING. FROM OCTOBER 25, 1979 TO
DECEMBER 7, 1980 SHE WORKED AS A SALES CLERK, GRADE ONE, ON THE SELLING
FLOOR. HER SECOND-LEVEL SUPERVISOR DURING THIS PERIOD WAS MS. BEATRICE
SMITH, A DEPARTMENT SUPERVISOR. SMITH DID NOT NORMALLY SPEAK PERSONALLY
WITH DUNCAN ON THE SELLING FLOOR. SMITH SUPERVISED ABOUT TWENTY-TWO
EMPLOYEES IN HER DEPARTMENT AND NORMALLY ADDRESSED THE SALES CLERKS,
INCLUDING DUNCAN, AS A GROUP. HOWEVER, SMITH KNEW THAT DUNCAN HAD
ATTENDED UNION MEETINGS, WHEN SMITH HERSELF WAS ALSO ACTIVE IN THE
UNION, AND DUNCAN KNEW THAT SMITH HAD ONCE BEEN THE UNION PRESIDENT.
ON SUNDAY, OCTOBER 26, 1980 DUNCAN WAS ASSIGNED BY SMITH TO COVER
SALES IN AN AREA OTHER THAN HER USUAL DUTY STATION. THAT AFTERNOON
SMITH APPROACHED DUNCAN AND INITIALLY TALKED TO HER ABOUT THE SOCIAL
ACTIVITIES SHE COULD ENJOY BY BELONGING TO THE EMPLOYEES ASSOCIATION, A
NON-UNION EMPLOYEE ORGANIZATION. THEREAFTER, ACCORDING TO DUNCAN, SMITH
WENT ON TO TALK ABOUT THE UNION, AS FOLLOWS:
(S)HE WENT ON TO TELL ME THAT SHE HAD GOTTEN OUT OF THE UNION, HAD
RESIGNED AND THAT SHE
ALWAYS ATTENDED MEETINGS AND SHE DIDN'T UNDERSTAND WHAT THE UNION WAS
TRYING TO DO; THAT (THE
UNION DOES NOTHING FOR THE EMPLOYEES); /2/ AND THAT THERE WAS ONE
TIME OF THE YEAR THAT YOU
COULD GET OUT OF THE UNION, RESIGN FROM IT, FILE AN 1188. BUT THAT
TIME OF THE YEAR HAD
ALREADY PASSED, BEING THAT IT IS IN SEPTEMBER EACH YEAR THAT YOU CAN
RESIGN. THE CONVERSATION LASTED ABOUT FIVE MINUTES. MRS. SMITH DID
MOST OF THE TALKING IN HER NORMAL SPEAKING VOICE. DUNCAN UNDERSTOOD
SMITH'S COMMENTS TO MEAN THAT SMITH HAD RESIGNED FROM THE UNION AND
WANTED THE EMPLOYEES WORKING UNDER HER TO FOLLOW SUIT AND DO THE SAME.
DUNCAN NEVER HAD ANY PRIOR OR SUBSEQUENT DIFFICULTY WITH SMITH. NO
OTHER ACTION WAS TAKEN TO COERCE HER OR SUGGEST THAT SHE WITHDRAW FROM
THE UNION. DUNCAN DID NOT RESIGN OR WITHDRAW FROM THE UNION. IN FACT,
SOMETIME AFTER THIS CONVERSATION OCCURRED, SHE BECAME A UNION STEWARD.
MRS. SMITH HAS BEEN EMPLOYED BY RESPONDENT FOR OVER SEVENTEEN YEARS.
PRIOR TO JUNE 1980 SHE WAS VERY ACTIVE IN THE UNION. SHE WAS ACTIVE IN
THE CERTIFICATION OF THE UNION, WAS PRESIDENT OFF AND ON FOR ABOUT SEVEN
YEARS UNTIL SHE RESIGNED, BECAUSE OF ILLNESS, AND LATER WAS A UNION
STEWARD. IN LATE 1979 OR EARLY 1980 A CONFLICT DEVELOPED BETWEEN MRS.
SMITH AND OTHERS, ON THE ONE HAND, AND MRS. RAINS AND MRS. MOOSMAN, ON
THE OTHER, AS TO THE BEST COURSE FOR THE UNION TO FOLLOW. AFTER MRS.
RAINS AND MRS. MOOSMAN BECAME PRESIDENT AND VICE PRESIDENT OF UNION,
RESPECTIVELY, THEY REMOVED MRS. SMITH AS STEWARD IN APPROXIMATELY JUNE
OR JULY 1980. SHORTLY THEREAFTER, MRS. SMITH BECAME A SUPERVISOR.
CONSEQUENTLY, SHE WAS REMOVED FROM THE BARGAINING UNIT ABOUT ONE MONTH
AND A HALF PRIOR TO HER CONVERSATION WITH MS. DUNCAN ON OCTOBER 26,
1980.
MRS. SMITH DENIED THAT THE CONVERSATION OCCURRED. SHE TESTIFIED
THAT, AS A FORMER UNION OFFICIAL, SHE KNEW BETTER THAN TO MAKE A
STATEMENT OF THIS KIND; THAT "THEY" WERE WAITING FOR HER TO DO
SOMETHING LIKE THAT; AND THAT MS. DUNCAN WAS A COMRADE AND SUPPORTER OF
RAINS AND MOOSMAN. RESPONDENT CONTENDS THAT THE SUBSEQUENT APPOINTMENT
OF MS. DUNCAN AS A STEWARD SUGGESTS THAT DUNCAN WAS SUBJECT TO STRONG
PRESSURES TO COLOR HER TESTIMONY.
BASED ON MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I FIND
THAT THE CONVERSATION OCCURRED AS SET OUT ABOVE. I FIND NO BASIS TO
DISCREDIT MS. DUNCAN'S TESTIMONY. THE RECORD DOES NOT DEMONSTRATE IN
ANY WAY THAT MS. DUNCAN IS THE INSTRUMENT OF AN OPPORTUNISTIC ATTACK BY
THE INCUMBENT UNION PRESIDENT AGAINST A FORMER UNION PRESIDENT. ON THE
OTHER HAND, THE EVIDENCE REVEALS THAT MRS. SMITH HAD THE MOTIVE TO MAKE
THE STATEMENT AGAINST THE UNION, DUE TO HER TREATMENT BY THE CURRENT
LEADERSHIP A FEW MONTHS EARLIER. SHE ALSO HAD A MOTIVE TO DENY MAKING
SUCH A STATEMENT AND AVOID POSSIBLE EMBARRASSMENT WITH HER SUPERIORS.
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
HAVING CONCLUDED THAT MRS. SMITH MADE THE STATEMENT FOUND ABOVE, /3/
THE NEXT ISSUE FOR DETERMINATION IS WHETHER THE STATEMENT VIOLATED
SECTION 7116(A)(1) OF THE STATUTE. SECTION 7116(A)(1) OF THE STATUTE
PROVIDES THAT IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY TO
INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE OF ANY
RIGHT PROVIDED BY THE STATUTE. CONSISTENT WITH THE FINDINGS AND PURPOSE
OF CONGRESS AS SET FORTH IN SECTION 7101, SECTION 7102 OF THE STATUTE
SETS FORTH CERTAIN EMPLOYEE RIGHTS INCLUDING THE RIGHT TO JOIN OR ASSIST
ANY LABOR ORGANIZATION "FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL."
FURTHER, SECTION 7102 PROVIDES THAT "EACH EMPLOYEE SHALL BE PROTECTED IN
THE EXERCISE OF SUCH RIGHT."
THE GENERAL COUNSEL POINTS OUT THAT MRS. SMITH WAS MS. DUNCAN'S
SECOND-LEVEL SUPERVISOR AND HAD THE POTENTIAL TO DRAMATICALLY AFFECT
DUNCAN'S WORK ENVIRONMENT. THE GENERAL COUNSEL ARGUES THAT THE
STATEMENT HAD AN INHERENT CHILLING EFFECT ON DUNCAN'S RIGHT TO JOIN OR
ASSIST THE UNION AND ON HER RELATED ASSOCIATION WITH UNION OFFICIALS.
THIS ARGUMENT IS APPEALING IN LIGHT OF THE SPECIFIC PROVISIONS OF
SECTIONS 7102 AND 7116(A)(1) OF THE STATUTE. IT IS REMINISCENT OF JUDGE
LEARNED HAND'S STATEMENT IN NLRB V. FEDERBUSH CO., 121 F.2D 954, 957 (2D
CIR. 1941):
WHAT TO AN OUTSIDER WILL BE NO MORE THAN THE VIGOROUS PRESENTATION OF
A CONVICTION, TO AN
EMPLOYEE MAY BE THE MANIFESTATION OF A DETERMINATION WHICH IT IS NOT
SAFE TO THWART. HOWEVER, THE AUTHORITY HAS NOT FOUND INTERFERENCE WITH
PROTECTED RIGHTS PER SE WHEN THERE IS NO MORE THAN AN EXPRESSION OF
OPINION. SEE NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, 5 FLRA NO.
105, JUDGE'S DECISION P. 15 (1981); OKLAHOMA CITY AIR LOGISTICS CENTER
(AFLC), TINKER AIR FORCE BASE, OKLAHOMA, 6 FLRA NO. 32, 6 FLRA 159
(1981). THE AUTHORITY HELD IN OKLAHOMA CITY AIR LOGISTICS CENTER (AFLC)
TINKER AIR FORCE BASE, OKLAHOMA, SUPRA, THAT, OUTSIDE OF THE CONTEXT OF
A REPRESENTATIONAL ELECTION, SECTION 7116(E) OF THE STATUTE PROTECTS THE
EXPRESSION OF PERSONAL VIEWS, ARGUMENTS OR OPINIONS BY MANAGEMENT,
EMPLOYEES, OR UNION REPRESENTATIVES AS LONG AS SUCH EXPRESSION CONTAINS
NO THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT OR WAS NOT MADE
UNDER COERCIVE CONDITIONS. /4/
IT IS CONCLUDED FROM ALL THE CIRCUMSTANCES THAT A REASONABLE EMPLOYEE
WOULD INTERPRET MRS. SMITH'S DISPARAGEMENT OF THE UNION AS AN EXPRESSION
OF HER OWN PERSONAL VIEWS RATHER THAN AS A STATEMENT OF THE POSITION OF
AGENCY MANAGEMENT. THIS CONTEXT IS REVEALED BY A NUMBER OF FACTORS,
INCLUDING THE FACT THAT THE DISPARAGING REMARKS WERE MADE BY THE
SUPERVISOR IN A PRIVATE CONVERSATION WITH AN EMPLOYEE AND WERE NOT
DISSEMINATED TO EMPLOYEES GENERALLY. /5/ THE SUPERVISOR ALSO EXPLICITLY
REFERRED TO HER OWN KNOWLEDGE AND PREVIOUS EXPERIENCE IN THE UNION.
IMMEDIATELY PRIOR TO THE DISPARAGING REMARK, SHE STATED THAT SHE "ALWAYS
ATTENDED MEETINGS AND . . . DIDN'T UNDERSTAND WHAT THE UNION WAS TRYING
TO DO . . . ." THE EMPLOYEE ALSO KNEW THAT THE SUPERVISOR HAD PREVIOUSLY
BEEN PRESIDENT OF THE UNION.
IN FURTHER EVALUATING THE SUPERVISOR'S STATEMENT OF PERSONAL OPINION,
IT IS NOTED THAT THE STATEMENT CONTAINED NO EXPLICIT THREAT OF REPRISAL
OR FORCE OR PROMISE OF BENEFIT. THE DETERMINATION OF WHETHER THE
STATEMENT WAS OTHERWISE "MADE UNDER COERCIVE CONDITIONS" MUST BE AN
OBJECTIVE ONE. THE ASSESSMENT OF THE ENTIRE FACTUAL CONTEXT MUST
EXAMINE NOT WHETHER THE EMPLOYER INTENDED, OR THE EMPLOYEE PERCEIVED,
ANY COERCIVE EFFECT, BUT WHETHER THE EMPLOYER'S ACTIONS WOULD TEND TO
COERCE A REASONABLE EMPLOYEE. CF. FEDERAL MEDIATION AND CONCILIATION
SERVICE, CASE NO. 3-CA-818, OALJ-81-045, DECISION OF ADMINISTRATIVE LAW
JUDGE ALAN W. HEIFETZ, DATED FEBRUARY 11, 1981; WYMAN-GORDON COMPANY V.
NATIONAL LABOR RELATIONS BOARD, 108 LRRM 2085 (1ST CIR., 1981).
IN OKLAHOMA CITY AIR LOGISTICS CENTER (AFLC) TINKER AIR FORCE BASE,
OKLAHOMA, SUPRA, THE AUTHORITY ADOPTED THE REASONING, ANALYSIS, AND
CONCLUSIONS OF JUDGE WILLIAM B. DEVANEY THAT CERTAIN STATEMENTS OF
PERSONAL OPINION BY A SUPERVISOR WERE PROTECTED BY SECTION 7116(E) AND
DID NOT VIOLATE SECTION 7116(A)(1) OF THE STATUTE. IN THAT CASE TWO
EMPLOYEES SOUGHT OUT THE SUPERVISOR WITH REGARD TO THE UNION. THE
SUPERVISOR, IN PRIVATE CONVERSATION, TOLD ONE EMPLOYEE THAT "THE UNION
ISN'T WORTH THE PAPER IT IS PRINTED ON" AND "$11.00 A MONTH ISN'T WORTH
THE MONEY INVESTED IN IT." THE SUPERVISOR SAID TO THE OTHER EMPLOYEE,
"DO YOU KNOW YOUR UNION DUES ARE GOING UP?" THE SUPERVISOR SOUGHT OUT A
THIRD EMPLOYEE AND STATED, "THE UNION HAS TO REPRESENT YOU WHETHER YOU
ARE A MEMBER OR NOT, DUES ARE HIGH AND I HATE TO SEE YOU WASTE YOUR
MONEY." THE JUDGE NOTED, IN PART, THAT THE SUPERVISOR'S STATEMENTS TO
THE FIRST TWO EMPLOYEES "WERE NOT MADE UNDER COERCIVE CONDITIONS AS EACH
EMPLOYEE HAD SOUGHT OUT (THE SUPERVISOR) AND ASKED HIS OPINION ABOUT THE
UNION . . . AND THERE WAS NO THREAT OF REPRISAL OR FORCE OF PROMISE OF
BENEFIT . . . . IN LIKE MANNER, ALTHOUGH (THE SUPERVISOR) SOUGHT OUT
(THE EMPLOYEE), (THE SUPERVISOR'S) QUERY TO (THE EMPLOYEE), DO YOU KNOW
YOUR UNION DUES ARE GOING UP, DID NOT, PURSUANT TO (71)16(E), CONSTITUTE
AN UNFAIR LABOR PRACTICE."
IN THE INSTANT CASE, ALTHOUGH THE CONVERSATION WAS INSTIGATED BY THE
SECOND-LEVEL SUPERVISOR, WITH WHOM THE EMPLOYEE DID NOT NORMALLY ENGAGE
IN PRIVATE CONVERSATION, IT IS CONCLUDED THAT THE STATEMENT WAS NOT MADE
UNDER COERCIVE CONDITIONS AND WOULD NOT TEND TO COERCE A REASONABLE
EMPLOYEE. THE RECORD CONTAINS NO RELATED INTIMIDATING OR DISCRIMINATORY
ACTS WHICH MIGHT GIVE THE STATEMENT A COERCIVE IMPORT. ALTHOUGH MRS.
SMITH EXPRESSED HER OWN DISDAIN FOR THE UNION AND, UNDER A MOST LIBERAL
INTERPRETATION, IMPLIED THAT MS. DUNCAN SHOULD RESIGN IN ABOUT ELEVEN
MONTHS, /6/ HER REMARKS WERE DEVOID OF ANY SUGGESTION OF ASSISTANCE OR
SUPPORT TO INDUCE SUCH ACTION, OR OF RETALIATORY CONSEQUENCES FOR
FAILING OR REFUSING TO DO SO. SEE MARINE CORPS EXCHANGE 8-2, MARINE
CORPS AIR STATION, EL TORO, CALIFORNIA, A/SLMR NO. 865, 7 A/SLMR 576
(1977). NEITHER HER TONE NOR MANNER WAS THREATENING. SEE NAVY RESALE
SYSTEM FIELD SUPPORT OFFICE COMMISSARY STORE GROUP, 5 FLRA NO. 42
(1981). THE CASUAL CONVERSATION TOOK PLACE ON THE SALES FLOOR AND NOT
IN A LOCATION WHICH MIGHT HAVE SPECIAL THREATENING CONNOTATIONS TO THE
EMPLOYEE.
IT IS CONCLUDED THAT RESPONDENT DID NOT VIOLATE SECTION 7116(A)(1) OF
THE STATUTE, AS ALLEGED. ACCORDINGLY, IT IS RECOMMENDED THAT THE
AUTHORITY, ISSUE THE FOLLOWING ORDER:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-918 BE, AND
IT HEREBY IS, DISMISSED.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: DECEMBER 16, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ IN SO DOING, THE AUTHORITY SPECIFICALLY NOTES THE JUDGE'S
CONCLUSIONS "FROM ALL THE CIRCUMSTANCES THAT A REASONABLE EMPLOYEE WOULD
INTERPRET (THE SUPERVISOR'S STATEMENT HERE IN ISSUE) AS AN EXPRESSION OF
HER OWN PERSONAL VIEWS RATHER THAN AS A STATEMENT OF AGENCY MANAGEMENT";
THAT "THE STATEMENT CONTAINED NO EXPLICIT THREAT OF REPRISAL OR FORCE
OR PROMISE OF BENEFIT"; AND THAT "THE STATEMENT WAS NOT MADE UNDER
COERCIVE CONDITIONS AND WOULD NOT TEND TO COERCE A REASONABLE EMPLOYEE."
/2/ I FIND, BASED ON THE EXTENSIVE EXAMINATION AND CROSS-EXAMINATION
AS TO THE EXACT WORDS USED, THAT THIS WAS ESSENTIALLY THE STATEMENT
MADE. SEE TR. 13, 14, 24, 26.
/3/ "THE UNION DOES NOTHING FOR THE EMPLOYEES. THERE (IS) ONE TIME
OF YEAR THAT YOU COULD GET OUT OF THE UNION, RESIGN FROM IT, FILE AN
1188. BUT THAT TIME OF THE YEAR HAS ALREADY PASSED, BEING THAT IT IS IN
SEPTEMBER EACH YEAR THAT YOU CAN RESIGN."
/4/ THE AUTHORITY ADOPTED JUDGE WILLIAM B. DEVANEY'S ANALYSIS OF
SECTION 7116(E). JUDGE DEVANEY THOROUGHLY REVIEWED ITS LEGISLATIVE
HISTORY. HE NOTED, IN PART, THAT, THE GENESIS OF THE "FREE SPEECH"
PROVISION INCLUDED A COLLOQUY ON THE FLOOR OF THE SENATE IN WHICH
SENATORS JAVITS AND HATCH AGREED THAT "AN INDIVIDUAL MANAGER, SPEAKING
PERSONALLY, COULD SAY THAT HE DOES NOT LIKE UNIONS AND HE DOES NOT THINK
THEY ARE A VERY GOOD IDEA AND HE DOES NOT THINK THEY WILL DO ANYBODY WHO
JOINS THEM ANY GOOD" SO LONG AS THE EXPRESSION CONTAINS NO THREAT OF
REPRISAL OR FORCE OR PROMISE OF BENEFIT AND IT IS NOT MADE UNDER
COERCIVE CONDITIONS. 6 FLRA AT 181.
/5/ UNDER EXECUTIVE ORDER NO. 11491, AS AMENDED, REMARKS DISPARAGING
OF A UNION WERE FOUND TO VIOLATE SECTION 19(A)(1) OF THE ORDER WHERE,
AMONG OTHER THINGS, SUCH DISPARAGING REMARKS WERE MADE BY A SUPERVISOR
TO THE ASSEMBLED EMPLOYEES, VETERANS ADMINISTRATION HOSPITAL,
SHREVEPORT, LOUISIANA, 1 FLRA NO. 48, 1 FLRA 383 (1979), AND TO AN
INFORMAL GROUP OF EMPLOYEES, U.S. CUSTOMS SERVICE, REGION IV, MIAMI,
FLORIDA, 1 FLRA NO. 108, 1 FLRA 941 (1979). IN DEPARTMENT OF THE AIR
FORCE, AIR FORCE PLANT REPRESENTATIVE OFFICE, DETACHMENT 27, FORT WORTH,
TEXAS, ET AL, 5 FLRA NO. 62 (1981), INVOLVING STATEMENTS MADE DURING AN
ELECTION CAMPAIGN, THE AUTHORITY NOTED THAT SUCH STATEMENTS COULD
REASONABLY BE INTERPRETED AS THE ACTIVITY'S OFFICIAL POSITION, AND NOT A
STATEMENT OF PERSONAL VIEWS, WHERE WRITTEN STATEMENTS BY THE HEAD OF AN
ACTIVITY WERE POSTED ON ALL BULLETIN BOARDS AND CIRCULATED TO UNIT
EMPLOYEES.
/6/ MRS. SMITH'S STATEMENT, "THERE (IS) ONE TIME OF YEAR THAT YOU
COULD GET OUT OF THE UNION, RESIGN FROM IT . . . . (I)T IS IN SEPTEMBER
EACH YEAR THAT YOU CAN RESIGN," IS NOT EXPLAINED FURTHER IN THE RECORD.
MRS. SMITH MAY HAVE BEEN REFERRING TO A PROCEDURE FOR DUES REVOCATION
ESTABLISHED PURSUANT TO SECTION 7115(A), OF THE STATUTE. SECTION
7115(A) OF COURSE, GOVERNS THE REVOCATION OF DUES ASSIGNMENTS AT
INTERVALS OF ONE YEAR AND DOES NOT REFER TO RESIGNATIONS. SEE ALSO,
GENERAL COUNSEL'S EX. 2, P. 36-38.