09:0620(69)CA - Army and Air Force Exchange Service (AAFES), Ft. Carson, CO and AFGE Local 1345 -- 1982 FLRAdec CA



[ 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. SMI