San Antonio Air Logistics Center (AFLC), Kelly Air Force Base, Texas (Respondent) and American Federation of Government Employees, Local 1617, AFL-CIO (Labor Organization)

 



[ 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 ACKNOWLED