12:0719(139)CA - Army Air Defense Center and Fort Bliss, Fort Bliss, TX and NAGE R14-85 -- 1983 FLRAdec CA



[ v12 p719 ]
12:0719(139)CA
The decision of the Authority follows:


 12 FLRA No. 139
 
 UNITED STATES ARMY AIR DEFENSE
 CENTER AND FORT BLISS,
 FORT BLISS, TEXAS
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, R14-85
 Charging Party
 
                                            Case No. 6-CA-1115
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practices alleged in the complaint, and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  Therefore, the Respondent filed exceptions to the
 Judge's denial of its motion to dismiss and motion "for more particular
 charges." The General Counsel filed an Opposition.  In its motions,
 Respondent argued that it did not receive notice of all issues of fact
 and law which the General Counsel intended to litigate at the hearing
 and that the allegations contained in paragraph 7 of the complaint were
 not raised in the charge.  The Judge ruled that the complaint met the
 requirements of section 2423.12 of the Authority's Rules and ,
 Regulations, and that the allegations contained therein were neither
 vague nor precluded the Respondent from understanding, responding to, or
 defending against the complaint.  The Authority agrees, noting further
 that all relevant issues were fully litigated at the hearing.  /1A/
 
    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 in this case, and noting
 especially the absence of exceptions to the Judge's substantive findings
 and conclusions, the Authority hereby adopts the Judge's findings,
 conclusions and recommendations.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Authority and section 7118 of the Statute, the Authority hereby orders
 that the U.S. Army Air Defense Center and Fort Bliss, Fort Bliss, Texas,
 shall:
 
    1.  Cease and desist from:
 
    (a) Instituting any change in the visitors policy, or in the practice
 of allowing employees to wash private vehicles without first affording
 the National Association of Government Employees, R14-85, notice and,
 upon request, an opportunity to bargain to the fullest extent of the
 law.
 
    (b) Interfering with, restraining, or coercing employees by
 representing to them that management would adversely change personnel
 policies and practices, take reprisals against them, or contract out
 their jobs if they engaged in Union activities.
 
    (c) In any like or related manner, interfering with, restraining, or
 coercing its 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 its facilities at the United States Army Air Defense
 Center in Fort Bliss, Fort Bliss, Texas, 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 authorized
 representative of the facility, and shall be posted and maintained by
 this official for 60 consecutive days thereafter, in conspicuous places,
 including all bulletin boards and other places where notices are
 customarily posted.  The authorized representative 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 Rules and
 Regulations, notify the Regional Director, Region VI, Federal Labor
 Relations Authority, in writing, within 30 days of this Order, as to
 what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., August 31, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, 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 institute any change in the visitors policy, or the practice
 of allowing employees to wash private vehicles, without first affording
 the National Association Association of Government , Employees, R14-85,
 notice and upon request, an opportunity to bargain to the fullest extent
 of the law.  WE WILL NOT interfere with, restrain, or coerce employees
 by representing to them that management would adversely change personnel
 policies and practices, take reprisals against them, or contract out
 their jobs if they engage in Union activities.  WE WILL NOT in any like
 or related manner, interfere with, restrain, or coerce employees in the
 exercise of their rights assured by the Federal Service Labor-Management
 Relations 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 the Notice or compliance with its provisions, they
 may communicate directly with the Regional Director, Region VI, Federal
 Labor Relations Authority, whose address is:  Bryan & Ervay Streets,
 Room 450, P.O. Box 2640, Dallas, Texas 75221, and whose telephone number
 is:  (214) 767-4996.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 6-CA 1115
 
    Captain Wilbur L. Tomlinson
          For the Respondent
 
    Elizabeth A. Martinez, Esq.
          For the General Counsel
 
    Before:  ALAN W. HEIFETZ
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding arose pursuant to the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101, et seq., as a result
 of an unfair labor practice charge filed April 20, 1981, with the
 Federal Labor Relations Authority.  Consequently, on July 23, 1981, the
 Regional Director issued a complaint alleging (1) that Respondent, in
 violation of Section 7116(a)(1) of the Statute (a) on March 16, 1981,
 told employees that it would adversely change personnel policies and
 practices because of their Union activities;  (b) on March 19, 1981,
 told employees that reprisals would be taken against employees because
 they engaged in Union activities;  and (c) on June 12, 1981, told
 employees , that higher performance standards would be required of
 employees because of their Union activities;  and (2) that Respondent,
 in violation of Sections 7116(a)(1) and (5), unilaterally changed
 existing terms and conditions of employment by implementing a new
 visitors policy and discontinuing the practice of allowing employees to
 wash their private vehicles.  Respondent denies those allegations.
 
    A hearing was held on September 1, 1981, in El Paso, Texas.  All
 parties were afforded full opportunity to examine witnesses and to
 introduce evidence.  Briefs were filed by November 20, 1981.  Upon the
 entire record, including my observation of the witnesses and their
 demeanor, I make the following findings, conclusions and recommended
 order:
 
                             Findings of Fact
 
    On March 16, 1981, a labor-management meeting was held at
 Respondent's Fire Station #1.  One purpose of that meeting was to air
 complaints regarding incidences of station visitation abuses, including
 specific complaints about one youngster sometimes housed at the Fire
 Station by Assistant Chief Larry A. Kern.  At that meeting, the Union
 made an inquiry as to what, if any, visitation policy was then in
 existence.  Chief Walter Henegar said that there was no policy but that
 he would come up with one.
 
    On March 20, 1981, by a Disposition Form (DF) letter, Chief Henegar
 issued a policy on visitation and car washing.  The policy prohibited
 visitors without prior approval from the Office of the Fire Chief and
 absolutely prohibited civilians from washing private automobiles while
 on duty.  Because the Union complained that it was not given an
 opportunity to comment on the new policy prior to its issuance, he
 issued a DF letter dated March 31, 1981, which rescinded the March 20
 letter.  However, the Union never received a copy of the March 31
 letter.  Chief Henegar also issued two other DF letters on March 31.
 One asked for Union comments on the visitors policy and the other, on
 the car washing policy.  The Union did receive copies of these letters.
 The Union's response to both letters, dated April 24, 1981, was:
 "Rescind DF letter of March 20, 1981, and Local R14-85 will negotiate on
 any proposal you submit."
 
    The March 20 letter remained posted until at least May 1, 1981,
 although a note beneath it stated that the policy had been rescinded
 verbally.  One supervisor claimed that the policy had been rescinded
 verbally, but another continued to enforce the new policy consistent
 with the March 20 letter.
 
    The Union never received a response to its request of April 24, 1981,
 to negotiate.  Without notice to the Union, Chief Henegar, on May 13,
 1981, issued a new policy on visitors.  Subsequently, by DF letter dated
 May 18, 1981, Chief Henegar, based upon advice from the Civilian
 Personnel Office, rescinded all policy DFs promulgated concerning car
 washing and visitation in fire stations.  The alleged threats
 
    A. During the March 16 meeting, one which lasted for approximately
 three hours, Assistant Chief Larry A. Kern, approached Acting Union
 President Tomas Rivera and stated, "Mr. Rivera, you know that by the
 Union bringing these matters up, this is going to affect you and the
 employees by not having any more visitors, your wives not bringing any
 more hot lunches, and by some people not attending retirement parties."
 /1/
 
    After leaving the meeting, Assistant Chief Kern responded to employee
 Robert Colorado's inquiry as to what happened at the meeting.  He told
 Mr. Colorado that the meeting resulted in a victory for management and
 that the Union hadn't accomplished anything.
 
    B.  During the month of March 1981, a petition was circulated
 throughout the Fire Department which solicited signatures of fire
 fighters who favored a relaxation of the haircut policy.  On several
 occasions, Assistant Chief Kern told employees that the petition was
 illegal and that employees who signed the petition could lose their
 jobs.  On one occasion, he asked employees who signed the petition to
 raise their hands.  He also stated that the petition had been used by
 the Union to file a grievance.  /2/ In actuality, it had not been so
 used.
 
    As a result of Assistant Chief Kern's statements, at least one
 employee requested that his name be removed from the petition.  Another
 employee, fearing that the Union was acting improperly, read a statement
 at a Union meeting on March 27, 1981, asking for the resignation of the
 Union officers.  After they explained their position, the resignation
 demand was withdrawn.
 
    C. On June 12, 1981, at a training class, Assistant Chief Kern
 remarked that since grievances lead up to the General, a continued trend
 of grievance filings could influence the decision whether to contract
 out the operations of the Fire Department.  He went on to say that it
 would be to the employees' advantage to talk to those who were filing
 grievances and to urge them to reconsider their actions.  Finally, he
 stated that the number of complaints that were being filed bore an
 adverse effect on discipline and that employees were "slacking down on
 performance", and that they "better straighten up . . . (and) cut out
 all these ULPs." /3/
 
                        Discussion and Conclusions
 
    Counsel for the General Counsel argues that Respondent violated
 Sections 7116(a)(1) and (5) of the Statute by unilaterally implementing
 changes in working conditions concerning Station visitors and the
 washing of private vehicles without affording the Union prior notice and
 an opportunity to bargain concerning those changes.  Respondent's
 defense, as argued on brief, is that no employee was adversely affected
 by either policy issuance, that at worst the violations are de minimus
 since the issuances were rescinded, and that there is no present policy
 in effect.
 
    Contrary to Respondent's contention, a change in the visitors policy
 has a reasonably foreseeable adverse effect on employees almost on its
 face.  Part time residence at a fire station is inherent in the fire
 fighter's job.  Shifts are lengthy and idle hours can be numerous.  The
 potential effect of absence from home and hearth was not lost on
 Assistant Chief Kern when he said of the Union bringing the policy to
 question, " . . . this is going to affect you and the employees by not
 having any more visitors, your wives not bringing any more hot lunches,
 and by some people not attending retirement parties."
 
    Deprivation of meal and mate is by no means de minimus.  Where, as
 here, resident fire fighters have come to expect that their long hours
 might be temporarily broken by the receipt of a hot meal or the warmth
 of companionship, the receipt of such benefits over a period of time
 ripens into a working condition which cannot be unilaterally changed by
 Respondent without notice to the Union.
 
    Although the fire fighters who testified are regularly scheduled for
 24-hour duty, their actual work hours end daily at 1600 hours.  Prior to
 the Chief's new policy issuance, fire fighters were able to wash their
 private vehicles after 1600 hours.  It is the residential nature of
 their job which prohibited them from washing the vehicles off station.
 Since a motor vehicle is a major asset to most individuals, its
 maintenance is of no small importance to its owner.  Keeping the vehicle
 clean, therefore, is not a trivial matter and, where, as here, fire
 fighters have been allowed to maintain that cleanliness with the aid of
 station facilities, that practice develops into a working condition
 which cannot unilaterally be taken away without notice to the Union.
 
    Were this a case where a policy is issued in error and then
 immediately rescinded, one might conclude that such action does not rise
 to the level of an unfair labor practice.  However, here a new policy
 was issued on not one, but two occasions without notice to the Union
 and, on both occasions the new policy was rescinded.  And at least one
 supervisor continued to enforce the policy after it was purportedly
 rescinded.  This is not a case of mere inadvertence.  The fact that no
 new policy is not in effect may obviate the need for a status quo ante
 remedy, but the facility with which unilateral policy changes issued in
 this case justifies the imposition of a cease and desist order.
 
    Counsel for the General Counsel argues that the statements made to
 employees by Assistant Chief Kern violated Section 7116(a)(1) of the
 Statute.  Respondent avers that, if made, those statements should be
 considered to be protected free speech.
 
    The statement of Assistant Chief Kern that "by the Union bringing
 these matters up, this is going to affect you and the employees . . . ",
 violates the Statute as alleged since the clear import of the language
 is that an adverse effect will be brought about because the Union raised
 the issue.  There is no question that the Union had a lawful right to
 inquire as to what the visitation policy was and what it would be in the
 future.  The intended effect of Assistant Chief Kern's statement was to
 discourage any further inquiries into policy issues by threatening
 adverse changes in personnel policies as a consequence.
 
    Similarly, his statement that employees who signed the haircut
 petition were engaging in unlawful activities and could lose their jobs,
 was violative of the Statute.  The statement was nothing less than a
 threat to take reprisals against employees who engaged in lawful
 concerted activity and, as such, it was intended to dissuade employees
 from any further petitioning.
 
    Finally, Assistant Chief Kern's remarks which indicated that the
 department would be contracted out if the employees continued to file
 grievances, are violative of the Statute because they threaten the loss
 of jobs as a result of engaging in protected activity.  Such remarks are
 clearly coercive and can only be intended to restrain employees from
 exercising rights guaranteed them by the Statute.
 
    Having found and concluded that Respondent violated Sections
 7116(a)(1) and (5) of the Statute as alleged, I recommend that the
 Authority issue the following:
 
                                   ORDER
 
    ORDERED, that the United States Army Air Defense Center and Fort
 Bliss, Fort Bliss, Texas shall:
 
    1.  Cease and desist from:
 
          (a) Instituting any change in the visitors policy or in the
       practice of allowing employees to wash private vehicles without
       first affording the National Association of Government Employees,
       R14-85, notice and, upon request, an opportunity to bargain to the
       fullest extent of the law.
 
          (b) Interfering with, restraining, or coercing employees by
       representing to them that management would adversely change
       personnel policies and practices, take reprisals against them, or
       contract out their jobs if they engaged in Union activities.
 
          (c) In any like or related manner, interfering with,
       restraining, or coercing 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
 purposes and policies of the Statute:
 
          (a) Post at its facilities 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 an
       authorized representative 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 ensure that the
       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 as to what steps have been
 taken to comply with the Order.
 
 
 
 
                                       ALAN W. HEIFETZ
                                       Administrative Law Judge
 
 Dated:  January 18, 1982
          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 institute any change in the visitors policy or in the
 practice of allowing employees to wash private vehicles without first
 affording the National Association of Government Employees, R14-85,
 notice and, upon request, an opportunity to bargain to the fullest
 extent of the law.  WE WILL NOT interfere with, restrain, or coerce
 employees by representing to them that management will adversely change
 personnel policies and practices, take reprisals against them, or
 contract out their jobs if they engage in Union activities.  WE WILL NOT
 in any like or related manner, interfere with, restrain or coerce
 employees in the exercise of their rights assured by the Federal Service
 Labor-Management Relations Statute.
                                       (Agency and 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 its provisions, they
 may communicate directly with the Regional Director, Region 6, for the
 Federal Labor Relations Authority whose address is:  P.O. Box 2640,
 Dallas, Texas 75221, and whose telephone number is:  (214) 767-4996.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
    /1A/ See Internal Revenue Service, Chicago, Illinois, 9 FLRA No. 73
 (1982) at n. 3, appealed as to other matters, sub nom. Internal Revenue
 Service v. Federal Labor Relations Authority, appeal docketed No.
 82-2506 (7th Cir. Sept. 18, 1982).
 
 
    /1/ Assistant Chief Kern denies making this statement.  However, I
 credit Mr. Rivera's testimony that the statement was made.  Chief
 Henegar did not recall having heard such a statement being made.
 Nevertheless, the room was large, there was cross-conversation during
 this three hour meeting, and Chief Henegar did not