10:0088(22)CA - Air Force, Air Force Logistics Command, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 -- 1982 FLRAdec CA



[ v10 p88 ]
10:0088(22)CA
The decision of the Authority follows:


 10 FLRA No. 22
 
 DEPARTMENT OF THE AIR FORCE,
 AIR FORCE LOGISTICS COMMAND
 OGDEN AIR LOGISTICS CENTER
 HILL AIR FORCE BASE, UTAH
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1592
 Charging Party
 
                                            Case No. 7-CA-925
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1) AND (2) OF THE
 STATUTE AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
 ENTIRETY.  EXCEPTIONS TO THE JUDGE'S DECISION WERE FILED BY THE GENERAL
 COUNSEL, AND AN OPPOSITION WAS FILED TO THE GENERAL COUNSEL'S EXCEPTIONS
 BY THE RESPONDENT.
 
    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, THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS, /1/ CONCLUSION AND RECOMMENDATION.
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-925 BE, AND
 IT HEREBY IS DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 17, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    CLARE A. JONES, ESQUIRE
    FOR THE RESPONDENT
 
    GAVIN K. LODGE, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    MR. JOHN DARLINGTON
    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, SECTION 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 CHARGES FILED ON DECEMBER 29, 1980, BY THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1592 (AFL-CIO), (HEREINAFTER
 CALLED THE AFGE OR UNION), A COMPLAINT AND NOTICE OF HEARING WAS ISSUED
 ON APRIL 29, 1981, BY THE REGIONAL DIRECTOR FOR REGION VII, FEDERAL
 LABOR RELATIONS AUTHORITY, KANSAS CITY, MISSOURI.  THE COMPLAINT ALLEGES
 IN SUBSTANCE THAT THE DEPARTMENT OF THE AIR FORCE, AIR FORCE LOGISTICS
 COMMAND, OGDEN AIR LOGISTICS CENTER, HILL AIR FORCE BASE, UTAH,
 (HEREINAFTER CALLED THE AIR FORCE OR RESPONDENT), VIOLATED SECTIONS
 7116(A)(1) AND (2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE, (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS ACTIONS IN
 GIVING A COUNSELING LETTER TO UNION STEWARD BETH ALLEN FRISBEY FOR
 FAILING TO FOLLOW THE CHAIN OF COMMAND SET FORTH IN THE GRIEVANCE
 PROCEDURE OF THE COLLECTIVE BARGAINING AGREEMENT AND THREATENING TO USE
 EVERY MEANS AT ITS DISPOSAL TO HAVE MS. FRISBEY REMOVED FROM HER
 POSITION AS UNION STEWARD.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON JUNE 17, 1981, IN
 OGDEN, UTAH.  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 GENERAL COUNSEL AND THE RESPONDENT
 SUBMITTED POST-HEARING BRIEFS ON JULY 27, 1981, 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 THE NON-SUPERVISORY
 EMPLOYEES AT HILL AIR FORCE BASE AND A PARTY TO A COLLECTIVE BARGAINING
 AGREEMENT WITH THE AIR FORCE LOGISTICS COMMAND WHICH IS APPLICABLE TO
 SUCH EMPLOYEES.
 
    ARTICLE 5, DISCIPLINE, SECTION 5.01 DEFINITION AND COVERAGE, PROVIDES
 IN SUB-SECTION (C) AS FOLLOWS:
 
    NONDISCIPLINARY COUNSELING SESSIONS CONDUCTED BY SUPERVISORY AND/OR
 MANAGEMENT OFFICIALS
 
    WITH UNIT EMPLOYEES OR ENTRIES IN AIR FORCE FORMS 971 RECORDING SUCH
 COUNSELING ARE NOT
 
    CONSIDERED DISCIPLINE.  HOWEVER, SUCH ENTRIES CONCERNING AN EMPLOYEE
 IN THE SUPERVISOR'S 971
 
    WILL BE SHOWN TO THE EMPLOYEE, AND THAT EMPLOYEE SHALL ACKNOWLEDGE
 HIS AWARENESS OF SAID ENTRY
 
    BY DATING AND INITIALING THE FORM 971.  SUCH COUNSELING SESSIONS AND
 ENTRIES THEREOF SHALL BE
 
    GRIEVABLE OR ARBITRABLE UNDER THE TERMS OF THIS AGREEMENT.
 
    ARTICLE 6 OF THE COLLECTIVE BARGAINING AGREEMENT CONTAINS A FOUR STEP
 GRIEVANCE PROCEDURE.  THE FIRST STEP IS AN INFORMAL DISCUSSION WITH THE
 FIRST LINE SUPERVISOR.  FAILING RESOLUTION OF THE GRIEVANCE AT THE FIRST
 STEP, THE GRIEVANCE IS THEN ADVANCED TO THE DIRECTORATE, STAFF OFFICE OR
 TENANT COMMANDER.  IF THE GRIEVANCE IS NOT SETTLED AT THIS LATTER LEVEL,
 THEN THE GRIEVANCE IS ADVANCED TO THE 3RD STEP, WHICH IS THE COMMANDER
 OF THE SUBORDINATE AFLC ACTIVITY.  FAILING RESOLUTION OF THE GRIEVANCE,
 THE NEXT STEP IN THE GRIEVANCE MACHINERY IS SUBMISSION TO ARBITRATION.
 
    MS. FRISBEY, WHO, ACCORDING TO THE COMPLAINT, WAS THE TARGET OF THE
 ALLEGED UNFAIR LABOR PRACTICES, HAS BEEN EMPLOYED BY RESPONDENT SINCE
 1976 AS A MATERIAL SORTER CLASSIFER IN THE "LOCAL PURCHASE CAGE".  MS.
 FRISBEY BECAME A UNION STEWARD IN APRIL 1980.
 
    ALTHOUGH NOT ENTIRELY CLEAR FROM THE RECORD, IT APPEARS THAT MS.
 FRISBEY WAS ENCOUNTERING NUMEROUS PROBLEMS WITH MANAGEMENT WITH
 RESPECT
 TO THE MANNER IN WHICH SHE WAS CONDUCTING HER DUTIES AS UNION STEWARD.
 IN ORDER TO CLEAR THE AIR AND CORRECT THE SITUATION, MR. FRED SOSA, THE
 DIVISION STEWARD, ARRANGED A MEETING ON SEPTEMBER 16, 1980, WITH SECTION
 CHIEF JOE SALAZAR AND MR. TOM FAUSTO, MS. FRISBEY'S IMMEDIATE OR
 FIRST-LINE SUPERVISOR.
 
    AT THE MEETING, HELD IN MR. SALAZAR'S OFFICE AND ATTENDED BY MR.
 SALAZAR, MR. FAUSTO AND MR. SOSA, MR. SALAZAR AND MR. FAUSTO TOOK THE
 POSITION, ACCORDING TO MR. SOSA, THAT MS. FRISBEY WAS "AN INSTIGATOR AND
 BAD EMPLOYEE" AND THAT SOMEONE ELSE SHOULD BE CHOSEN TO REPRESENT THE
 UNION.  THE MEETING, WHICH WAS OF SHORT DURATION, SOON WAS ADJOURNED TO
 BRANCH CHIEF ED MORGAN'S OFFICE FOR FURTHER DISCUSSIONS.
 
    AT THE SUBSEQUENT DISCUSSIONS IN MR. MORGAN'S OFFICE, MR. MORGAN LET
 IT BE KNOWN TO BOTH MR. SOSA AND MS. FRISBEY WHO WAS THEN IN ATTENDANCE,
 THAT HE WAS CONCERNED ABOUT THE MANNER IN WHICH MS. FRISBEY HAD BEEN
 HANDLING HER DUTIES AS UNION STEWARD.  IN SUPPORT OF HIS POSITION, MR.
 MORGAN CITED EXAMPLES OF VARIOUS ACTIONS MS. FRISBEY HAD TAKEN IN HER
 POSITION AS UNION STEWARD.  ALTHOUGH NOT ENTIRELY CLEAR FROM THE RECORD,
 IT APPEARS THAT MR. SOSA, WHO ACKNOWLEDGED DURING THE MEETING THAT MS.
 FRISBEY WAS NOT THE BEST STEWARD BUT THAT HE HAD TO WORK WITH WHAT HE
 HAD, SUBSEQUENTLY BECAME UPSET WITH MANAGEMENT'S COMMENTS ABOUT MS.
 FRISBEY AND APPARENTLY TOOK ISSUE WITH VARIOUS STATEMENTS MADE AT THE
 MEETING AND/OR PAST ACTIONS OF RESPONDENT'S REPRESENTATIVES IN
 CONNECTION WITH MS. FRISBEY.  ACCORDING TO THE TESTIMONY OF MR. SOSA AND
 MS.  FRISBEY THE MEETING ENDED WITH BOTH PARTIES BEING ANGRY AND MR.
 MORGAN STATING "GOD DAMN IT, I AM GOING TO DO EVERYTHING I CAN TO GET
 RID OF HER" AS A UNION STEWARD.  /2/ MR. MORGAN, MR. SALAZAR AND MR.
 FAUSTO ALL DENY THAT MR. MORGAN USED THE WORDS ATTRIBUTED TO HIM OR IN
 ANY OTHER LANGUAGE OR MANNER THREATENED TO HAVE MS. FRISBEY REMOVED AS A
 UNION STEWARD.  IN FACT ALL THE LATTER THREE WITNESSES MADE IT CLEAR
 THAT MR. MORGAN WAS A VERY QUIET MAN WHO NEVER USED PROFANITY.
 
    ON NOVEMBER 14, 1980, MR. FAUSTO GAVE MS. FRISBEY A LETTER OF
 COUNSELING "CONCERNING TWO THINGS, YOUR ERROR RATE AND CHAIN OF
 COMMAND".  /3/ WITH RESPECT TO THE "CHAIN OF COMMAND", THE COUNSELING
 LETTER READS AS FOLLOWS:
 
    2-IN THAT ON 13 NOV. 80 AT APPROX 1400 HRS YOU FAILED TO COMPLY WITH
 THE MASTER LABOR
 
    AGREEMENT, ARTICLE 6 SECTION 6.07 PARA. A.  YOU ARE REQUIRED TO FIRST
 DISCUSS THE MATTERS
 
    INFORMALLY WITH FIRST LINE SUPERVISOR.  YOU DID NOT, YOU JUST GOT ON
 THE TELEPHONE AND CALLED
 
    THE COLONEL'S OFFICE AND ASKED TO SEE HIM.
 
    ENTRY MADE IN AF FORM 971 BY TOM FAUSTO, COPY FURNISHED TO EMPLOYEE
 ON THIS DATE.
 
    ASIDE FROM THE PRESENTING THE COLLECTIVE BARGAINING AGREEMENT WHICH
 PROVIDES FOR COUNSELING LETTERS AND ESTABLISHING THROUGH A STIPULATION
 THAT MS. FRISBEY DID IN FACT RECEIVE A COUNSELING LETTER FROM MR. FAUSTO
 ON NOVEMBER 14, 1980, NO EVIDENCE WAS INTRODUCED INTO THE RECORD
 INDICATING THAT COUNSELING LETTERS WERE, OR COULD BE, THE BASIS OF
 FUTURE DISCIPLINE AND/OR FUTURE POOR APPRAISALS.  IN THIS LATTER
 CONTEXT, MR. FAUSTO'S UNCONTRADICTED TESTIMONY INDICATES THAT A
 COUNSELING LETTER IS A MERE NOTATION THAT A SUPERVISOR TALKED TO AN
 EMPLOYEE ABOUT THE PARTICULAR MATTER.
 
    ON NOVEMBER 25, 1980, SOME THIRTY DAYS PRIOR TO THE FILING OF THE
 CHARGES UNDERLYING THE INSTANT COMPLAINT, MS. FRISBEY FILED A GRIEVANCE
 WHEREIN SHE REQUESTED REVIEW OF THE "NUMEROUS ENTRIES" TO HER A.F. FORM
 971.  A REVIEW OF THE GRIEVANCE INDICATES THAT SUCH GRIEVANCE WAS NOT
 CONFINED SOLELY TO THE NOVEMBER 14, 1980 ENTRY ON AF FORM 971, BUT ALL
 SUCH ENTRIES MADE IN THE PAST.  THERE IS NO ALLEGATION IN THE GRIEVANCE
 THAT THE AWARDING OF SUCH COUNSELING NOTATIONS INTERFERED WITH HER
 RIGHTS ACCORDED BY THE STATUTE.
 
                        DISCUSSION AND CONCLUSIONS
 
    RELYING ON THE TESTIMONY OF MS. FRISBEY AND MR. SOSA, THE GENERAL
 COUNSEL TAKES THE POSITION THAT MR. MORGAN'S CRITICISM OF MS. FRISBEY'S
 ACTIVITIES AS UNION STEWARD AND HIS LATER THREAT TO REMOVE HER FROM SUCH
 POSITION WERE VIOLATIVE OF SECTION 7116(A)(1) OF THE STATUTE SINCE SUCH
 ACTIONS AMOUNT TO A DENIGRATION OF MS. FRISBEY IN HER CAPACITY AS UNION
 STEWARD.
 
    ALTHOUGH NOT ENTIRELY CLEAR FROM THE RECORD, IT APPEARS THAT THE
 GENERAL COUNSEL IS TAKING THE FURTHER POSITION THAT THE NOVEMBER 24,
 1980, LETTER OF COUNSELING ISSUED TO MS. FRISBEY IS VIOLATIVE OF SECTION
 7116(A)(1) AND (2) OF THE STATUTE SINCE IT HAD THE TENDENCY NOT ONLY TO
 RESTRAIN HER IN THE PERFORMANCE OF HER PROTECTED UNION ACTIVITY, I.E.
 PERFORMING AS A UNION STEWARD, BUT ALSO COULD SERVE AS THE BASIS FOR A
 FUTURE ADVERSE APPRAISAL.
 
    WITH REGARD TO THE STATEMENTS OF CRITICISM ATTRIBUTED TO MR. MORGAN
 AT THE SEPTEMBER 16, 1980, MEETING, I CAN NOT AGREE, THAT UNDER ALL THE
 CIRCUMSTANCES, SUCH CRITICISM OF MS. FRISBEY'S ACTIVITY AS A UNION
 STEWARD WAS VIOLATIVE OF SECTION 7116(A)(1) OF THE STATUTE.  THUS, IT IS
 NOTED THAT THE MEETING WAS HELD AT THE UNION'S REQUEST FOR THE EXPRESS
 PURPOSE OF DISCUSSING MS. FRISBEY'S ACTIVITIES AS A UNION STEWARD AND
 THE REASONS FOR RESPONDENT'S DISSATISFACTION THEREWITH.  IN SUCH
 CIRCUMSTANCES, I QUESTION HOW THE ALLEGED DISSATISFACTION WITH MS.
 FRISBEY'S ACTIVITIES AS A UNION STEWARD COULD BE RESOLVED WITHOUT THE
 RESPONDENT SETTING FORTH ITS REASONS FOR SUCH DISSATISFACTION.  INASMUCH
 AS THE UNION INITIATED THE MEETING AND IMPLICITLY INVITED COMMENTS,
 CRITICAL OR OTHERWISE, I FIND THAT IN SUCH CIRCUMSTANCES THE RESPONDENT
 WAS PRIVILEGED TO MAKE THE CRITICAL REMARKS, WHICH THE GENERAL COUNSEL
 NOT CATEGORIZES AS DENIGRATING, SO LONG AS SUCH REMARKS WERE
 UNACCOMPANIED BY ANY THREAT OR OTHER ACTION WHICH MIGHT SERVE TO
 RESTRICT MS. FRISBEY'S RIGHT TO JOIN, FORM, OR SERVE THE UNION.  IN THIS
 LATTER CONTEXT, BASED UPON MR. MORGAN'S DEMEANOR, THE CORROBORATING
 TESTIMONY OF MR. SALAZAR AND MR. FAUSTO, AND THE FACT THAT THERE IS A
 DISCREPANCY BETWEEN THE PRE-TRIAL STATEMENTS OF MS. FRISBEY AND MR. SOSA
 AND THEIR TESTIMONY AT THE HEARING, I CREDIT MR. MORGAN'S DENIAL THAT HE
 DID NOT THREATEN TO DO EVERYTHING IN HIS POWER TO HAVE MS. FRISBEY
 REMOVED FROM HER POSITION AS UNION STEWARD.  ACCORDINGLY, IN VIEW OF THE
 ABOVE CONSIDERATIONS, I SHALL RECOMMEND THAT THIS ASPECT OF THE
 COMPLAINT BE DISMISSED.
 
    TURNING TO THE SECOND ALLEGATION OF THE COMPLAINT, I.E. THE NOVEMBER
 14, 1980, LETTER OF COUNSELING, THE SOLE QUESTION TO BE DETERMINED IS
 WHETHER THE ACTION OF MR. FAUSTO IN PRESENTING THE LETTER, STANDING
 ALONE, CONSTITUTES A VIOLATION OF SECTIONS 7116(A)(1) AND (2) OF THE
 STATUTE.
 
    THE STATUTE GIVES AN EMPLOYEE THE RIGHT TO SERVE OR REPRESENT A UNION
 AND TO BE FREE FROM ANY DISCRIMINATION WITH REGARD TO HIRE, TENURE OR
 PROMOTION FOR EXERCISING SUCH RIGHT.  TO THE EXTENT THAT AN ACTIVITY
 DOES DISCRIMINATE AGAINST AN EMPLOYEE BECAUSE HE HAS CHOSEN TO SERVE AS
 A UNION STEWARD, IT IS WELL ESTABLISHED THAT SUCH ACTION IS VIOLATIVE OF
 SECTIONS 7116(A)(1) AND (2) OF THE STATUTE.
 
    IN THE INSTANT CASE, MS. FRISBEY WAS GIVEN A LETTER OF COUNSELING FOR
 ALLEGEDLY BY-PASSING, THE CHAIN OF COMMAND SET FORTH IN THE COLLECTIVE
 BARGAINING AGREEMENT'S FOUR STEP GRIEVANCE PROCEDURE.  INASMUCH AS
 ARTICLE 5 OF THE COLLECTIVE BARGAINING AGREEMENT MAKES IT CLEAR THAT
 SUCH COUNSELING LETTERS ARE NOT DISCIPLINARY IN NATURE, THE ONLY BASIS
 FOR FINDING A 7116(A)(1) AND (2) VIOLATION PREDICATED THEREON WOULD BE A
 SHOWING, THAT DESPITE THE NONDISCIPLINARY NATURE OF THE COUNSELING
 LETTER, IT SOMEHOW COULD AFFECT MS. FRISBEY'S JOB TENURE OR PROMOTIONAL
 OPPORTUNITIES.  HOWEVER, NO PROBATIVE EVIDENCE IN THIS LATTER REGARD WAS
 INTRODUCED INTO THE RECORD.  IN SUCH CIRCUMSTANCES, I CAN NOT FIND THAT
 THE ISSUANCE OF THE NOVEMBER 14, 1980, COUNSELING LETTER, STANDING
 ALONE, AMOUNTED TO COERCION AND RESTRAINT, AND/OR DISCRIMINATION, WITHIN
 THE MEANING OF SECTIONS 7116(A)(1) AND (2) OF THE STATUTE.  ACCORDINGLY,
 I SHALL RECOMMEND THAT THIS ASPECT OF THE COMPLAINT BE DISMISSED.
 
    FINALLY, RESPONDENT URGES DISMISSAL OF THE SECTION 7116(A)(1) AND (2)
 ALLEGATION OF THE COMPLAINT ON THE GROUND THAT MS. FRISBEY HAS MADE THE
 COUNSELING LETTER THE SUBJECT OF A GRIEVANCE AND THAT IN SUCH
 CIRCUMSTANCES FURTHER PROCEEDINGS UNDER THE STATUTE ARE BARRED BY
 SECTION 7116(D).
 
    INASMUCH AS THE GRIEVANCE FILED BY MS. FRISBEY APPEARS TO BE ONLY
 ATTACKING THE MERITS OF THE COUNSELING LETTER AND NOT WHETHER THE AWARD
 OF SUCH A COUNSELING LETTER IS VIOLATIVE OF THE STATUTE, I FIND THAT THE
 ISSUES BEING ATTACKED IN THE SEPARATE FORUMS ARE DIFFERENT AND THAT
 FURTHER PROCESSING OF THE INSTANT COMPLAINT IS NOT BARRED BY SECTION
 7116(D) OF THE STATUTE.
 
    HAVING CONCLUDED THAT RESPONDENT DID NOT VIOLATE SECTIONS 7116(A)(1)
 AND (2) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY ADOPT THE
 FOLLOWING ORDER:
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT SHOULD BE, AND HEREBY IS,
 DISMISSED IN