Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado (Respondent) and American Federation of Government Employees, Local 1345, AFL-CIO (Charging Party) 

 



[ v06 p607 ]
06:0607(108)CA
The decision of the Authority follows:


 6 FLRA No. 108
 
 ARMY AND AIR FORCE EXCHANGE SERVICE
 (AAFES), FORT CARSON, COLORADO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1345
 Charging Party
 
                                            Case No. 7-CA-489
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 THE ATTACHED RECOMMENDED DECISION AND ORDER FINDING THAT THE 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.  NO EXCEPTIONS WERE FILED.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 C.F.R. 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 ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
 PARTICULARLY THE ABSENCE OF EXCEPTIONS THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.  /1/
 
                                   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 ARMY AND AIR FORCE EXCHANGE SERVICE
 (AAFES), FT. CARSON, COLORADO SHALL:
 
    (1) CEASE AND DESIST FROM:
 
    (A) THREATENING EMPLOYEES THAT THERE WILL BE A REDUCTION IN FORCE IF
 THEY CONTINUE TO FILE UNFAIR LABOR PRACTICE CHARGES OR GRIEVANCES UNDER
 THE NEGOTIATED GRIEVANCE MACHINERY.
 
    (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 IN ORDER TO EFFECTUATE THE
 POLICIES OF THE STATUTE:
 
    (A) POST AT ITS FACILITIES AT ARMY AND AIR FORCE EXCHANGE SERVICE
 (AAFES), FT. CARSON, COLORADO, 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 GENERAL MANAGER OF AAFES, AND
 SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER
 IN CONSPICUOUS PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
  THE GENERAL MANAGER 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 VII, FEDERAL LABOR
 RELATIONS AUTHORITY, SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET,
 KANSAS CITY, MISSOURI 64105, 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., SEPTEMBER 18, 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 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT THREATEN OUR EMPLOYEES THAT THERE WILL BE A REDUCTION IN
 FORCE IF THEY CONTINUE TO FILE UNFAIR LABOR PRACTICE CHARGES, OR
 GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE MACHINERY.
 
    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
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
                            AGENCY OR ACTIVITY
 
    DATED:  BY:
 
                            (SIGNATURE) (TITLE)
 
    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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
 WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, SUITE
 680, CITY CENTER SQUARE, 1100 MAIN STREET, KANSAS CITY, MISSOURI 64105.
 
 
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
    LUTHER G. JONES, ESQ.
 
    FOR THE RESPONDENT
 
    GAVIN LODGE, ESQ.
 
    FOR THE GENERAL COUNSEL
 
    BEFORE:  WILLIAM NAIMARK
 
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON JUNE 6, 1980
 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
 KANSAS CITY, MISSOURI REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED
 ON SEPTEMBER 9, 1980 AT DENVER, COLORADO.
 
    THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATION STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (HEREIN CALLED
 THE ACT.) A CHARGE WAS FILED ON MARCH 31, 1980 BY AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1345 (HEREIN CALLED THE UNION)
 AGAINST ARMY AND AIR FORCE EXCHANGE SERVICE (AAFES), FT. CARSON,
 COLORADO, (HEREIN CALLED RESPONDENT).  BASED UPON SAID CHARGE THE
 COMPLAINT HEREIN ALLEGED THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF
 THE ACT BY, ON OR ABOUT JANUARY 23, 1980, TELLING TWO EMPLOYEE UNION
 REPRESENTATIVES THAT IF THEY CONTINUED TO FILE GRIEVANCES, A REDUCTION
 IN FORCE WOULD OCCUR AND EVERYONE WOULD BE LAID OFF.
 
    A RESPONSE WAS FILED BY RESPONDENT ON JUNE 16, 1980 WHEREIN IT DENIED
 THE COMMISSION OF ANY UNFAIR LABOR PRACTICES.
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING.  EACH WAS AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES.  BRIEFS WERE FILED WITH THE UNDERSIGNED WHICH
 HAVE BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
 ADDUCED AT THE HEARING.  I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN, AND STILL IS,
 THE COLLECTIVE BARGAINING REPRESENTIVE OF RESPONDENT'S EMPLOYEES IN AN
 APPROPRIATE UNIT.
 
    2.  AT ALL TIME MATERIAL HEREIN, AND ON JANUARY 23, 1980, BOTH THE
 UNION AND RESPONDENT WERE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT
 WHICH CONTAINED VARIOUS CONDITIONS OF EMPLOYMENT INCLUDING, INTER ALIA,
 A GRIEVANCE PROCEDURE FOR THE PRESENTATION AND RESOLUTION OF GRIEVANCES.
 
    3.  PRIOR TO JANUARY 1980 MANAGEMENT MET WITH UNION REPRESENTATIVES
 ON MANY OCCASIONS TO CONSIDER GRIEVANCES FILED AGAINST THE EMPLOYER.
 DURING THE SIX MONTH PERIOD PRIOR TO THE AFOREMENTIONED DATE ABOUT TEN
 (10) GRIEVANCES WERE FILED AS WELL AS NUMEROUS UNFAIR LABOR PRACTICE
 CHARGES.  WHILE MANY SUCH GRIEVANCES WERE RESOLVED, MANAGEMENT WAS
 DISTURBED BY THE REFUSAL OF THE UNION OFFICIALS TO ACCEPT THEIR POSITION
 ON ISSUES AND BY THE FACT THAT THE UNION PERSISTED IN ITS DEMANDS.
 RELATIONS BETWEEN THE PARTIES WERE SOMEWHAT STRAINED BY REASON THEREOF
 AS WELL AS BY RESPONDENT'S DISSATISFACTION WITH THE UNION'S PURSUING
 GRIEVANCES AND FILING UNFAIR LABOR PRACTICE CHARGES.
 
    4.  AT THE REQUEST OF THE UNION REPRESENTATIVES A MEETING WAS HELD
 WITH MANAGEMENT AT ABOUT 2:00 P.M. ON JANUARY 23, 1980 TO DISCUSS A
 GRIEVANCE FILED BY ANNELIESE JACKSON, AN EMPLOYEE.  THE SAID GRIEVANCE
 INVOLVED THE RELOCATION OF THE BEVERAGE SHOP AT THE MAIN EXCHANGE AND
 ITS ATTENDANT AFFECT UPON THIS EMPLOYEE.  PRESENT AT THIS MEETING, WHICH
 WAS HELD AT THE OFFICE OF RESPONDENT'S MANAGER, WERE THE FOLLOWING:
 
    STEWART FOGELMAN-- GENERAL MANAGER OF THE EXCHANGE
 
    PHILIP SCHUNK-- PERSONNEL MANAGER OF THE EXCHANGE
 
    CAROLYN RAINS-- PRESIDENT OF THE UNION AND AN EMPLOYEE
 
    MARLENE MOOSMAN-- 4TH VICE-PRESIDENT AS WELL AS STEWARD OF THE UNION
 AND AN EMPLOYEE
 
    5.  AT THE DISCUSSION OF THE JACKSON GRIEVANCE, DURING THE AFORESAID
 MEETING, FOGELMAN STATED THAT MANAGEMENT FELT IT DID NOT HAVE TO MEET
 AND CONFER WITH THE UNION CONCERNING POSITION CHANGES INVOLVING ONLY ONE
 OR TWO EMPLOYEES RATHER THAN THE ENTIRE BARGAINING UNIT.  HOWEVER, THE
 MANAGER REMARKED THAT THE EMPLOYER HAD THE RIGHT TO MOVE, CLOSE, OR DO
 OTHERWISE.  THE UNION OFFICIALS REPLIED THAT MANAGEMENT WOULD BE
 REQUIRED, HOWEVER, TO CONSULT WITH THE UNION.
 
    DURING THE MEETING, WHICH LASTED ABOUT ONE HOUR, FOGELMAN POINTED HIS
 FINGER AT RAINS AND STATED, IN SUBSTANCE, THAT IF "YOU PEOPLE KEEP
 FILING" THESE CASES OR GRIEVANCES, THERE WOULD BE A REDUCTION IN FORCE;
 THAT RESPONDENT WOULD LAY EVERYBODY OFF, AND THERE WOULD BE NOTHING LEFT
 TO TALK ABOUT.  RAINS INQUIRED IF THAT WAS A THREAT, BUT THE MANAGER DID
 NOT REPLY.  WHEREUPON EMPLOYEE-UNION AGENT RAINS REMARKED THAT
 FOGELMAN'S STATEMENT CONSTITUTED AN UNFAIR LABOR PRACTICE AND THEY MIGHT
 FILE A CHARGE WITH RESPECT THERETO.  FOGELMAN SAID RAINS SHOULD DO WHAT
 SHE HAS TO ABOUT THE MATTER.  /2/
 
                                CONCLUSIONS
 
    UNDER SECTION 7116(A)(1) OF THE ACT HEREIN IT IS 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." THUS, THE SOLE ISSUE FOR DETERMINATION /3/ IS WHETHER THE
 STATEMENT MADE BY FOGELMAN ON JANUARY 23, 1980 TO THE UNION
 REPRESENTATIVES WAS VIOLATIVE OF THE ACT.
 
    A SIMILAR SITUATION TO THE CASE AT BAR AROSE IN FEDERAL AVIATION
 ADMINISTRATION, AIR TRAFFIC CONTROL TOWER, GREATER PITTSBURGH AIRPORT,
 PITTSBURGH, PENNSYLVANIA, A/SLMR NO. 920.  IN THE CITED CASE AN
 EMPLOYEE, WHO HAD FILED AN INFORMAL GRIEVANCE, WAS TOLD BY MANAGEMENT
 THAT IF HE FILED A FORMAL GRIEVANCE THE EMPLOYER WOULD MAKE A CHANGE IN
 SCHEDULING ASSIGNMENT.  THE SAID CHANGE WAS ADMITTEDLY UNFAVORABLE TO
 THE EMPLOYEE.  IT WAS HELD THAT SUCH A STATEMENT WAS VIOLATIVE OF
 SECTION 19(A)(1) OF THE ORDER AND CONSTITUTED INTERFERENCE, RESTRAINT
 AND COERCION.  I CONSIDER THE FAA CASE, SUPRA, TO BE CONTROLLING.
 INDEED, THE THREAT TO EMPLOYEES TO IMPOSE A REDUCTION IN FORCE IF THEY
 CONTINUE TO FILE GRIEVANCES OR UNFAIR LABOR PRACTICE CHARGES IS
 DECIDEDLY COERCIVE.  MOREOVER, APART FROM THE OBVIOUS RESTRAINING EFFECT
 OF SUCH A STATEMENT, IT MANIFESTLY INTERFERES WITH THE RIGHT OF
 EMPLOYEES TO INVOKE THE NEGOTIATED GRIEVANCE MACHINERY.  ACCORDINGLY, I
 AM CONSTRAINED TO CONCLUDE THAT THE STATEMENT MADE BY RESPONDENT'S
 MANAGER, STEWART FOGELMAN, TO EMPLOYEES CAROLYN RAINS AND MARLENE
 MOOSMAN ON JANUARY 23, 1980 CONSTITUTED A THREAT WHICH WAS VIOLATIVE OF
 SECTION 7116(A)(1) OF THE ACT.
 
    HAVING FOUND THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE ACT
 BY THREATENING EMPLOYEES THAT THERE WOULD BE A REDUCTION IN FORCE IF THE
 SAID INDIVIDUALS CONTINUED TO FILE UNFAIR LABOR PRACTICE CHARGES OR
 GRIEVANCES, I RECOMMEND THE AUTHORITY ISSUE THE FOLLOWING ORDER.
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(E) OF THE FEDERAL LABOR-MANAGEMENT RELATIONS
 STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT IS HEREBY
 ORDERED THAT THE ARMY AND AIR FORCE EXCHANGE SERVICE (AAFES), FT.
 CARSON, COLORADO, SHALL:
 
    (1) CEASE AND DESIST FROM:
 
    (A) THREATENING EMPLOYEES THAT THERE WOULD BE A REDUCTION IN FORCE IF
 THEY CONTINUED TO
 
    FILE UNFAIR LABOR PRACTICE CHARGES OR GRIEVANCES UNDER THE NEGOTIATED
 GRIEVANCE MACHINERY.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF RIGHTS ASSURED BY THE ACT.
 
    (2) TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 POLICIES OF THE ACT.
 
    (A) POST AT ITS FACILITIES AT ARMY AND AIR FORCE EXCHANGE SERVICE
 (AAFES), FT. CARSON,
 
    COLORADO, 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
 
    GENERAL MANAGER OF AAFES, AND SHALL BE POSTED AND MAINTAINED BY HIM
 FOR 60 CONSECUTIVE DAYS
 
    THEREAFTER IN CONSPICUOUS PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE
 
    GENERAL MANAGER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
 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 WHAT STEPS HAVE BEEN TAKEN TO COMPLY
 HEREWITH.
 
                              WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  NOVEMBER 24, 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 FEDERAL SERVICE
 
                    LABOR-MANAGEMENT RELATIONS STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT THREATEN OUR EMPLOYEES THAT THERE WILL BE A REDUCTION IN
 FORCE IF THEY CONTINUE TO FILE UNFAIR LABOR PRACTICE CHARGES, OR
 GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE MACHINERY.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED UNDER
 THE ACT.
 
                            AGENCY OR ACTIVITY
 
    DATED:  BY:
 
    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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, SUITE 680, CITY
 CENTER SQUARE, 1100 MAIN STREET, KANSAS CITY, MISSOURI 64105.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SEE, E.G., UNITED STATES DEPARTMENT OF TREASURY, BUREAU OF
 ALCOHOL, TOBACCO, AND FIREARMS, CHICAGO, ILLINOIS, 3 FLRA NO. 116
 (1980).
 
    /1/ WHILE BOTH FOGELMAN AND SCHUNK DENY THAT THE MANAGER MADE SUCH A
 THREAT, THE RECITAL HEREIN OF WHAT OCCURRED REPRESENTS THE CREDIT
 VERSION THEREOF.  TESTIMONY BY BOTH RAINS AND MOOSMAN CONCERNING THE
 MEETING WAS DETAILED, PRECISE, AND CORROBORATED IN RESPECT TO NEARLY ALL
 RELEVANT AND MATERIALS STATEMENTS.  MOREOVER, I WAS IMPRESSED BY THE
 DIRECTNESS OF SUCH TESTIMONIES.  CONTRARIWISE, THERE WAS SOME
 INCONSISTENCY IN THE MANAGER'S VERSIONS OF THE MEETING.  THUS, IN HIS
 STATEMENT FOGELMAN AVERS HE DID NOT KNOW HOW LONG THE MEETING LASTED,
 WHEREAS NEARLY SIX MONTHS LATER, AT THE HEARING, HE TESTIFIED IT
 CONSUMED 30 MINUTES.  MOREOVER, THE MANAGER'S AFFIDAVIT (G.C. EXHIBIT 2)
 REFLECTS HIS STATEMENT THAT HE MAY HAVE MENTIONED A REDUCTION IN FORCE
 MIGHT ENSUE IF PRODUCTIVITY DID NOT IMPROVE.  IN SUM, I FIND LESS
 IMPRECISENESS IN THE VERSIONS OF THE MEETING ON JANUARY 23, 1980 AS
 ADDUCED BY THE UNION REPRESENTATIVES.
 
    /3/ ALTHOUGH RESPONDENT DOES NOT CONTEND AN ISSUE