[ v12 p719 ]
12:0719(139)CA
The decision of the Authority follows:
12 FLRA No. 139
UNITED STATES ARMY AIR DEFENSE
CENTER AND FORT BLISS,
FORT BLISS, TEXAS
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, R14-85
Charging Party
Case No. 6-CA-1115
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Therefore, the Respondent filed exceptions to the
Judge's denial of its motion to dismiss and motion "for more particular
charges." The General Counsel filed an Opposition. In its motions,
Respondent argued that it did not receive notice of all issues of fact
and law which the General Counsel intended to litigate at the hearing
and that the allegations contained in paragraph 7 of the complaint were
not raised in the charge. The Judge ruled that the complaint met the
requirements of section 2423.12 of the Authority's Rules and ,
Regulations, and that the allegations contained therein were neither
vague nor precluded the Respondent from understanding, responding to, or
defending against the complaint. The Authority agrees, noting further
that all relevant issues were fully litigated at the hearing. /1A/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
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 decision and the entire record in this case, and noting
especially the absence of exceptions to the Judge's substantive findings
and conclusions, the Authority hereby adopts the Judge's findings,
conclusions and recommendations.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Authority and section 7118 of the Statute, the Authority hereby orders
that the U.S. Army Air Defense Center and Fort Bliss, Fort Bliss, Texas,
shall:
1. Cease and desist from:
(a) Instituting any change in the visitors policy, or in the practice
of allowing employees to wash private vehicles without first affording
the National Association of Government Employees, R14-85, notice and,
upon request, an opportunity to bargain to the fullest extent of the
law.
(b) Interfering with, restraining, or coercing employees by
representing to them that management would adversely change personnel
policies and practices, take reprisals against them, or contract out
their jobs if they engaged in Union activities.
(c) In any like or related manner, interfering with, restraining, or
coercing its 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 its facilities at the United States Army Air Defense
Center in Fort Bliss, Fort Bliss, Texas, 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 the authorized
representative of the facility, and shall be posted and maintained by
this official for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices are
customarily posted. The authorized representative 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 Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor
Relations Authority, in writing, within 30 days of this Order, as to
what steps have been taken to comply herewith.
Issued, Washington, D.C., August 31, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 institute any change in the visitors policy, or the practice
of allowing employees to wash private vehicles, without first affording
the National Association Association of Government , Employees, R14-85,
notice and upon request, an opportunity to bargain to the fullest extent
of the law. WE WILL NOT interfere with, restrain, or coerce employees
by representing to them that management would adversely change personnel
policies and practices, take reprisals against them, or contract out
their jobs if they engage in Union activities. WE WILL NOT in any like
or related manner, interfere with, restrain, or coerce employees in the
exercise of their 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 posting, and must not be altered,
defaced, or covered by any other material. If employees have any
questions concerning the Notice or compliance with its provisions, they
may communicate directly with the Regional Director, Region VI, Federal
Labor Relations Authority, whose address is: Bryan & Ervay Streets,
Room 450, P.O. Box 2640, Dallas, Texas 75221, and whose telephone number
is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 6-CA 1115
Captain Wilbur L. Tomlinson
For the Respondent
Elizabeth A. Martinez, Esq.
For the General Counsel
Before: ALAN W. HEIFETZ
Administrative Law Judge
DECISION
Statement of the Case
This proceeding arose pursuant to the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101, et seq., as a result
of an unfair labor practice charge filed April 20, 1981, with the
Federal Labor Relations Authority. Consequently, on July 23, 1981, the
Regional Director issued a complaint alleging (1) that Respondent, in
violation of Section 7116(a)(1) of the Statute (a) on March 16, 1981,
told employees that it would adversely change personnel policies and
practices because of their Union activities; (b) on March 19, 1981,
told employees that reprisals would be taken against employees because
they engaged in Union activities; and (c) on June 12, 1981, told
employees , that higher performance standards would be required of
employees because of their Union activities; and (2) that Respondent,
in violation of Sections 7116(a)(1) and (5), unilaterally changed
existing terms and conditions of employment by implementing a new
visitors policy and discontinuing the practice of allowing employees to
wash their private vehicles. Respondent denies those allegations.
A hearing was held on September 1, 1981, in El Paso, Texas. All
parties were afforded full opportunity to examine witnesses and to
introduce evidence. Briefs were filed by November 20, 1981. Upon the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings, conclusions and recommended
order:
Findings of Fact
On March 16, 1981, a labor-management meeting was held at
Respondent's Fire Station #1. One purpose of that meeting was to air
complaints regarding incidences of station visitation abuses, including
specific complaints about one youngster sometimes housed at the Fire
Station by Assistant Chief Larry A. Kern. At that meeting, the Union
made an inquiry as to what, if any, visitation policy was then in
existence. Chief Walter Henegar said that there was no policy but that
he would come up with one.
On March 20, 1981, by a Disposition Form (DF) letter, Chief Henegar
issued a policy on visitation and car washing. The policy prohibited
visitors without prior approval from the Office of the Fire Chief and
absolutely prohibited civilians from washing private automobiles while
on duty. Because the Union complained that it was not given an
opportunity to comment on the new policy prior to its issuance, he
issued a DF letter dated March 31, 1981, which rescinded the March 20
letter. However, the Union never received a copy of the March 31
letter. Chief Henegar also issued two other DF letters on March 31.
One asked for Union comments on the visitors policy and the other, on
the car washing policy. The Union did receive copies of these letters.
The Union's response to both letters, dated April 24, 1981, was:
"Rescind DF letter of March 20, 1981, and Local R14-85 will negotiate on
any proposal you submit."
The March 20 letter remained posted until at least May 1, 1981,
although a note beneath it stated that the policy had been rescinded
verbally. One supervisor claimed that the policy had been rescinded
verbally, but another continued to enforce the new policy consistent
with the March 20 letter.
The Union never received a response to its request of April 24, 1981,
to negotiate. Without notice to the Union, Chief Henegar, on May 13,
1981, issued a new policy on visitors. Subsequently, by DF letter dated
May 18, 1981, Chief Henegar, based upon advice from the Civilian
Personnel Office, rescinded all policy DFs promulgated concerning car
washing and visitation in fire stations. The alleged threats
A. During the March 16 meeting, one which lasted for approximately
three hours, Assistant Chief Larry A. Kern, approached Acting Union
President Tomas Rivera and stated, "Mr. Rivera, you know that by the
Union bringing these matters up, this is going to affect you and the
employees by not having any more visitors, your wives not bringing any
more hot lunches, and by some people not attending retirement parties."
/1/
After leaving the meeting, Assistant Chief Kern responded to employee
Robert Colorado's inquiry as to what happened at the meeting. He told
Mr. Colorado that the meeting resulted in a victory for management and
that the Union hadn't accomplished anything.
B. During the month of March 1981, a petition was circulated
throughout the Fire Department which solicited signatures of fire
fighters who favored a relaxation of the haircut policy. On several
occasions, Assistant Chief Kern told employees that the petition was
illegal and that employees who signed the petition could lose their
jobs. On one occasion, he asked employees who signed the petition to
raise their hands. He also stated that the petition had been used by
the Union to file a grievance. /2/ In actuality, it had not been so
used.
As a result of Assistant Chief Kern's statements, at least one
employee requested that his name be removed from the petition. Another
employee, fearing that the Union was acting improperly, read a statement
at a Union meeting on March 27, 1981, asking for the resignation of the
Union officers. After they explained their position, the resignation
demand was withdrawn.
C. On June 12, 1981, at a training class, Assistant Chief Kern
remarked that since grievances lead up to the General, a continued trend
of grievance filings could influence the decision whether to contract
out the operations of the Fire Department. He went on to say that it
would be to the employees' advantage to talk to those who were filing
grievances and to urge them to reconsider their actions. Finally, he
stated that the number of complaints that were being filed bore an
adverse effect on discipline and that employees were "slacking down on
performance", and that they "better straighten up . . . (and) cut out
all these ULPs." /3/
Discussion and Conclusions
Counsel for the General Counsel argues that Respondent violated
Sections 7116(a)(1) and (5) of the Statute by unilaterally implementing
changes in working conditions concerning Station visitors and the
washing of private vehicles without affording the Union prior notice and
an opportunity to bargain concerning those changes. Respondent's
defense, as argued on brief, is that no employee was adversely affected
by either policy issuance, that at worst the violations are de minimus
since the issuances were rescinded, and that there is no present policy
in effect.
Contrary to Respondent's contention, a change in the visitors policy
has a reasonably foreseeable adverse effect on employees almost on its
face. Part time residence at a fire station is inherent in the fire
fighter's job. Shifts are lengthy and idle hours can be numerous. The
potential effect of absence from home and hearth was not lost on
Assistant Chief Kern when he said of the Union bringing the policy to
question, " . . . this is going to affect you and the employees by not
having any more visitors, your wives not bringing any more hot lunches,
and by some people not attending retirement parties."
Deprivation of meal and mate is by no means de minimus. Where, as
here, resident fire fighters have come to expect that their long hours
might be temporarily broken by the receipt of a hot meal or the warmth
of companionship, the receipt of such benefits over a period of time
ripens into a working condition which cannot be unilaterally changed by
Respondent without notice to the Union.
Although the fire fighters who testified are regularly scheduled for
24-hour duty, their actual work hours end daily at 1600 hours. Prior to
the Chief's new policy issuance, fire fighters were able to wash their
private vehicles after 1600 hours. It is the residential nature of
their job which prohibited them from washing the vehicles off station.
Since a motor vehicle is a major asset to most individuals, its
maintenance is of no small importance to its owner. Keeping the vehicle
clean, therefore, is not a trivial matter and, where, as here, fire
fighters have been allowed to maintain that cleanliness with the aid of
station facilities, that practice develops into a working condition
which cannot unilaterally be taken away without notice to the Union.
Were this a case where a policy is issued in error and then
immediately rescinded, one might conclude that such action does not rise
to the level of an unfair labor practice. However, here a new policy
was issued on not one, but two occasions without notice to the Union
and, on both occasions the new policy was rescinded. And at least one
supervisor continued to enforce the policy after it was purportedly
rescinded. This is not a case of mere inadvertence. The fact that no
new policy is not in effect may obviate the need for a status quo ante
remedy, but the facility with which unilateral policy changes issued in
this case justifies the imposition of a cease and desist order.
Counsel for the General Counsel argues that the statements made to
employees by Assistant Chief Kern violated Section 7116(a)(1) of the
Statute. Respondent avers that, if made, those statements should be
considered to be protected free speech.
The statement of Assistant Chief Kern that "by the Union bringing
these matters up, this is going to affect you and the employees . . . ",
violates the Statute as alleged since the clear import of the language
is that an adverse effect will be brought about because the Union raised
the issue. There is no question that the Union had a lawful right to
inquire as to what the visitation policy was and what it would be in the
future. The intended effect of Assistant Chief Kern's statement was to
discourage any further inquiries into policy issues by threatening
adverse changes in personnel policies as a consequence.
Similarly, his statement that employees who signed the haircut
petition were engaging in unlawful activities and could lose their jobs,
was violative of the Statute. The statement was nothing less than a
threat to take reprisals against employees who engaged in lawful
concerted activity and, as such, it was intended to dissuade employees
from any further petitioning.
Finally, Assistant Chief Kern's remarks which indicated that the
department would be contracted out if the employees continued to file
grievances, are violative of the Statute because they threaten the loss
of jobs as a result of engaging in protected activity. Such remarks are
clearly coercive and can only be intended to restrain employees from
exercising rights guaranteed them by the Statute.
Having found and concluded that Respondent violated Sections
7116(a)(1) and (5) of the Statute as alleged, I recommend that the
Authority issue the following:
ORDER
ORDERED, that the United States Army Air Defense Center and Fort
Bliss, Fort Bliss, Texas shall:
1. Cease and desist from:
(a) Instituting any change in the visitors policy or in the
practice of allowing employees to wash private vehicles without
first affording the National Association of Government Employees,
R14-85, notice and, upon request, an opportunity to bargain to the
fullest extent of the law.
(b) Interfering with, restraining, or coercing employees by
representing to them that management would adversely change
personnel policies and practices, take reprisals against them, or
contract out their jobs if they engaged in Union activities.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of 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 its facilities 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 an
authorized representative 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 ensure that the
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Federal Labor Relations Authority in writing
within 30 days from the date of this Order as to what steps have been
taken to comply with the Order.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: January 18, 1982
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 institute any change in the visitors policy or in the
practice of allowing employees to wash private vehicles without first
affording the National Association of Government Employees, R14-85,
notice and, upon request, an opportunity to bargain to the fullest
extent of the law. WE WILL NOT interfere with, restrain, or coerce
employees by representing to them that management will adversely change
personnel policies and practices, take reprisals against them, or
contract out their jobs if they engage in Union activities. WE WILL NOT
in any like or related manner, interfere with, restrain or coerce
employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.
(Agency and 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 its provisions, they
may communicate directly with the Regional Director, Region 6, for the
Federal Labor Relations Authority whose address is: P.O. Box 2640,
Dallas, Texas 75221, and whose telephone number is: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1A/ See Internal Revenue Service, Chicago, Illinois, 9 FLRA No. 73
(1982) at n. 3, appealed as to other matters, sub nom. Internal Revenue
Service v. Federal Labor Relations Authority, appeal docketed No.
82-2506 (7th Cir. Sept. 18, 1982).
/1/ Assistant Chief Kern denies making this statement. However, I
credit Mr. Rivera's testimony that the statement was made. Chief
Henegar did not recall having heard such a statement being made.
Nevertheless, the room was large, there was cross-conversation during
this three hour meeting, and Chief Henegar did not state categorically
that such a statement was not made.
/2/ Based on their demeanor and the consistent nature of their
testimony, I credit the testimony of the various employees who maintain
that these statements were made.
/3/ I credit the employees' testimony that these statements were
made.