Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri (Respondent) and Professional Air Traffic Controllers Organization, MEBA, Local 352 (Charging Party)

 



[ 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 S