14:0201(42)CA - Transportation, FAA, Oakland Air Route Traffic Control Center, Fremont, CA and Western Region, Professional Air Traffic Controllers Organization, MEBA, Oakland, CA -- 1984 FLRAdec CA



[ v14 p201 ]
14:0201(42)CA
The decision of the Authority follows:


 14 FLRA No. 42
 
 DEPARTMENT OF TRANSPORTATION
 FEDERAL AVIATION ADMINISTRATION
 OAKLAND AIR ROUTE TRAFFIC CONTROL
 CENTER, FREMONT, CALIFORNIA
 Respondent
 
 and
 
 WESTERN REGION, PROFESSIONAL AIR
 TRAFFIC CONTROLLERS ORGANIZATION, AFL-CIO,
 MEBA, OAKLAND, CALIFORNIA
 Charging Party
 
                                            Case No. 9-CA-581
 
                            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 practice alleged in the complaint and recommending that
 it be ordered to cease and desist therefrom and take certain affirmative
 action.  Thereafter, the Respondent filed exceptions to the Judge's
 Decision, and the General Counsel filed exceptions, an opposition to the
 Respondent's exceptions, and a motion to strike certain portions of the
 Respondent's brief in support of exceptions.  /1/
 
    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, conclusions, and recommendations only to the extent
 consistent herewith.  /2/
 
    The Judge concluded that the Respondent violated section 7116(a)(1)
 of the Statute /3/ by virtue of disparaging remarks about the employees'
 exclusive representative at that time, the Professional Air Traffic
 Controllers Organization (the Union), made by Erwin Buschauer, Chief of
 the Oakland Air Route Traffic Control Center, on a radio interview
 broadcast to the public.  In so concluding, the Judge rejected the
 Respondent's defense that Buschauer's statements were protected by
 section 7116(e) of the Statute.  /4/
 
    The Authority disagrees.  As we have previously held, outside of the
 context of representation elections (where management's neutrality is
 required), section 7116(e) 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 is not made under coercive
 conditions.  See, e.g., Oklahoma City Air Logistics Center (AFLC),
 Tinker Air Force Base, Oklahoma, 6 FLRA No. 32(1981).
 
    The Authority finds that Buschauer's statements herein were not
 violative of the Statute.  Thus, the Authority finds that Buschauer's
 statements during a radio interview, while critical of the Union,
 contained no threat of reprisal or force or promise of benefit and were
 not made under coercive conditions, and, therefore, under section
 7116(e) cannot "constitute an unfair labor practice under any provision
 of (the Statute)." In so finding, the Authority notes, as did the Judge,
 that Buschauer's comments were made in the general context of a heated
 and vigorous debate between the Respondent and the Union in the media
 and before Congress on the subject of air safety.  In our view, the
 comments therefore could have been reasonably understood by the general
 public and the employees to be part of a robust public debate rather
 than as a threat.  Moreover, while strongly stated, Buschauer's remarks
 on their face neither contained any threat against the Union or those
 employees who supported it nor any promise of benefits to employees who
 chose to withhold such support.  Further, we find that remarks made
 during a radio broadcast with no unit employees present were not made
 under coercive conditions.  Accordingly, the Authority concludes that
 the General Counsel has failed to establish that Buschauer's statements
 interfered with, restrained, or coerced any employees in their exercise
 of any right under the Statute in violation of section 7116(a)(1) of the
 Statute.  /5/ The complaint shall, therefore, be dismissed in its
 entirety.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 9-CA-581 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., April 6, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DEPARTMENT OF TRANSPORTATION
    FEDERAL AVIATION ADMINISTRATION
    OAKLAND AIR ROUTE TRAFFIC CONTROL
    CENTER, FREMONT, CALIFORNIA
                                Respondent
 
    and
 
    WESTERN REGION, PROFESSIONAL AIR
    TRAFFIC CONTROLLERS ORGANIZATION,
    AFL-CIO, MEBA
    OAKLAND, CALIFORNIA
                              Charging Party
 
                                       Case No.: 9-CA-581 /6/
 
    Fritz E. Sperling,
    Attorney for Respondent
 
    Domenic Torchia,
    Vice President of Charging Party
 
    Nancy E. Pritikin,
    Attorney for the General Counsel
    Federal Labor Relations Authority
 
    Before:  ISABELLE R. CAPPELLO
    Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute (hereinafter referred to as the "Statute"), 92 Stat.
 1191, Chapter 71 of the Title 5 U.S.C. 7101, et. seq., and the rules and
 regulations issued thereunder and published in 45 Fed.Reg. 3482-3524
 (1/17/80), 5 CFR 2421 et seq.
 
    Pursuant to a Charge filed on July 10, 1980, by the Western Regional
 Vice-President of the Professional Air Traffic Controllers Association
 (hereinafter, "PATCO West", or the "Union"), a Complaint and Notice of
 Hearing was issued on September 29, 1980, and amended on November 21,
 1980, by the Regional Director, Region IX, of the Federal Labor
 Relations Authority (hereinafter, the "Authority").
 
    The Complaint in Case No. 9-CA-581 alleges that Oakland Air Control
 Center, /7/ of the Federal Aviation Administration (hereinafter, "FAA"
 or the "Respondent"), by the chief of the named FAA facility, Erwin
 Buschauer, /8/ made disparaging comments concerning PATCO West in a news
 broadcast, and thereby violated Section 7116(a)(1) of the Statute.  /9/
 Respondent does not deny that the statements were made by the chief of
 the facility and broadcast;  but it claims that the statements did not
 constitute a violation of Section 7116(a)(1), and were merely the
 expression of personal views permitted by Section 7116(e) of the
 Statute.  /10/
 
    A hearing was held on February 6, 1981, at San Francisco, CA, at
 which the parties were given a full opportunity to be heard and present
 evidence.  Briefs were submitted by the Respondent, on March 25, 1981,
 and by the General Counsel, on March 27, 1981.  Based upon the record
 made in this proceeding, my observation of the witnesses and their
 demeanor, and the briefs, the following findings, conclusions, and
 recommended order are made.
 
                           Findings of Fact /11/
 
    1.  Professional Air Traffic Controllers Organization ("PATCO") is
 the exclusive bargaining agent for certain of Respondent's employees,
 including air traffic controllers, and is a party to a collective
 bargaining agreement with Respondent.  Negotiations are about to start
 on a new agreement.  PATCO West is the Western Region of PATCO.
 
    2.  In a radio interview that was taped and broadcast in San
 Francisco on June 24, Erwin Buschauer, the chief of the facility here
 involved, made certain statements about PATCO.  The broadcast was in two
 segments.  A copy of the tape was received into evidence as Joint
 Exhibit 1, and is as follows:
 
                                1st Segment
 
    THE FOLLOWING IS FROM KCBS, IT RUNS 54 SECONDS, THE
 BROADCASTER IS
 RONALD DATIN WOLF, THE OUT CUE - CBS NEWS, SAN FRANCISCO.  THE
 TAPE IN
 5.
 
          KCBS - FREMONT, CALIFORNIA AIR TRAFFIC CONTROL OFFICIALS SAY
       THE COMPUTER FAILURES IN THE LAST MONTH ARE BEING
 OVERBLOWN, AND
       FOR A REASON.  CHIEF CONTROLLER ERWIN BUSCHAUER SAYS PATCO
       (PROFESSIONAL AIR TRAFFIC CONTROLS ORGANIZATION) IS USING THE
       RECENT SYSTEM FAILURES HERE AND AT CHICAGO'S O'HARE AIRPORT
 TO
       FURTHER THEIR OWN INTERESTS AND RIP OFF THE TAXPAYERS. 
 ALTHOUGH
       REFUSING TO BE SPECIFIC WHEN ASKED TO EXPLAIN THE BASIS FOR
 HIS
       ACCUSATIONS, BUSCHAUER SAID . . .
 
          BUSCHAUER - "I CAN'T, I'D HAVE TO RESIGN AND CALL A PRESS
       CONFERENCE TO TELL YOU THE TRUTH, BUT THE FACT OF THE
 MATTER IS,
       THAT THERE ARE MOTIVES HERE FAR BEYOND AND APART FROM
 AVIATION
       SAFETY.  IT'S A CAREFULLY ORCHESTRATED LITTLE SYMPHONY AND IT
 HAS
       TO DO WITH THE PUBLIC AND RIPPING THE PUBLIC OFF AND THAT'S ALL
       I'M GOING TO SAY RIGHT NOW."
 
          KCBS - THE QUESTION IS DOES THIS HAVE ANYTHING TO DO WITH
       HIGHER WAGES?  BUSCHAUER REPLIED . . .
 
    Buschauer - ". . . It sure as hell does."
 
          KCBS - THE FREMONT CENTER HANDLES ALL THE AIR TRAFFIC IN
       NORTHERN CALIFORNIA AND NEVADA.  RONALD DATIN WOLF FOR CBS
 NEWS IN
       SAN FRANCISCO.
 
                                2d Segment
 
          KCBS - THE HEAD OF THE FREMONT, CALIFORNIA AIR TRAFFIC
 CONTROL
       CENTER, WHICH HANDLES ALL AIR TRAFFIC IN NORTHERN CALIFORNIA
 AND
       NEVADA SAYS THE PROFESSIONAL AIR TRAFFIC CONTROLLERS
 ORGANIZATION
       (PATCO) IS USING RECENT COMPUTER FAILURES AT BOTH THE
 FREMONT
       CENTER AND AT CHICAGO'S O'HARE AIRPORT TO FURTHER THEIR OWN
       INTEREST IN A LABOR DISPUTE.  CHIEF CONTROLLER, ERWIN
 BUSCHAUER
       CHARGES PATCO WITH OVERBLOWING THE WHOLE SITUATION AS A
 PART OF
       WHAT HE CALLS A CAREFULLY ORCHESTRATED SYMPHONY SEPARATE
 FROM AIR
       TRAFFIC SAFETY.  DOES THAT MEAN HIGHER WAGES?  BUSCHAUER
 REPLIES .
       . .
 
    Buschauer - ". . . It sure as hell does."
 
          KCBS - BUSCHAUER SAYS THE PROBLEM HAS BEEN DISCOVERED AND
       SOLVED, AND HE'S BEGINNING TO GET A LITTLE IRRITATED AT MUCH
 ADO
       OVER NOTHING.  HE INSISTS THE BACKUP SYSTEM, WHEN NEEDED, IS
       COMPLETELY SAFE.  AF FOR PATCO, HE SAYS . . .
 
          BUSCHAUER - "I WAS AN AIR TRAFFIC CONTROLLER FOR FOURTEEN
 (14)
       YEARS WHEN WE REALLY WERE CONCERNED ABOUT SAFETY, THEY'RE
 MORE
       CONCERNED ABOUT POLITICS TODAY, AS AN ORGANIZATION. 
 INDIVIDUAL
       CONTROLLERS ARE MAGNIFICENT, THEY'RE WONDERFUL, BUT THEIR
       ORGANIZATION IS SOMETHING ELSE."
 
          KCBS - SO FAR PATCO HAS BEEN UNAVAILABLE FOR COMMENT.
 
          RONALD DATIN WOLF FOR CBS NEWS, SAN FRANCISCO.
 
    3.  An air traffic controller, Charles Loren /12/ Mullick, when he
 heard a portion of the broadcast, called the radio station and
 questioned the broadcaster.  The broadcaster gave him a copy of the
 taped broadcast.  Mr. Mullick then took the tape to the facility of
 Respondent and played it for a number of employees, during breaks.  Mr.
 Mullick is the Director of Public Relations for PATCO West.  He played
 the tape for the employees at the facility because he "felt that the
 people who worked at the Oakland Air Route Traffic Control Center should
 be informed about what the Facility Chief thinks of them." (TR 13).
 
    4.  The Vice President of Local No. 503, PATCO West, located at the
 Oakland, CA, Center, heard the taped radio broadcast at work and
 discussed the tape, at length, with bargaining-unit employees.  Four or
 five employees asked her about the tape;  and she played it for them.
 She wanted them to be prepared in case people asked questions about the
 broadcast.
 
    5.  Before making his broadcast statements, Mr. Buschauer read a
 newspaper report dated June 15 and headlined "Shocking reports on FAA
 and air safety." (R1) The article included comments about an impending
 Congressional investigation, that "a lot of anonymous phone calls (were)
 coming in (to a Congressman's office) from worried air controllers," and
 that "a lot of people out in the country are very willing to talk."
 (R1.2).  Congressman Burton was quoted as saying that, because of
 "possible reprisals by the FAA," he was offering anonymity - "even if we
 have to disguise the individual witness." (R1.2).
 
    6.  Mr. Buschauer did not deny making the statements aired over the
 radio station.  He knew he made them to a reporter.  I do not credit his
 denial, that "the views (he) expressed to the KCBS interviewer
 represent(ed) agency policy," (TR 51) or his testimony, that he was just
 expressing his "personal opinion." (TR 67).  His job, as chief of the
 facility involved (Exh. 1(f) and (g)), is to "ensure that the policies
 of FAA and the Western Region and carried out by the Oakland Center" (TR
 52).  He obviously was contacted by the media because of his position.
 He admitted, to the interviewer, that he could not be more forthright,
 without resigning (finding 2, above), an indication that what he did
 say, he was saying in his official capacity.
 
    7.  Respondent admits that the FAA-PATCO dispute over air safety is
 one of "long-standing and agency-wide in scope;" that Mr. Buschauer's
 statements were "but one small part of a continuing dialogue which has
 involved participants at every level of both union and agency
 organizations, including the National President of the union and the FAA
 Administrator;" and the "the debate in the media and before the Congress
 has been heated and vigorous." (RBr 6).
 
    8.  Back in May 1979, PATCO developed a program aimed at publicizing
 aviation safety problems through media contacts.
 
    9.  Mr. Buschauer acknowledges that PATCO is concerned with aviation
 safety, but he believes that the June activity over safety concerned "a
 plan to strike and to use aviation safety to gain public support for
 such a strike." (TR 65).
 
    10.  The June activity over aviation safety concerned computer
 outages which occurred on June 17 and June 22.  One outage lasted for 77
 minutes.  The media called Mr. Buschauer within minutes of the outage
 and had detailed knowledge of it.  The wire services picked up the
 story, shortly thereafter, and for the next few days, Mr. Buschauer was
 interviewed by all of the local television stations, and by a number of
 radio stations, as far away as New York City.  The gist of the
 interviews was that "it was scary;  it's frightening and it's
 dangerous." (TR 47).  Mr. Buschauer defined the role of FAA as being,
 among other things, "to foster aviation . . ." (TR 47).  he felt it was
 "a little counterproductive to frighten people out of utilizing an
 industry that (FAA employees) are there to support." (TR 47).  In
 interviewing him, "the press" informed him "that PATCO had informed them
 of various safety concerns, certain computer failures, and in several
 instances identified Loren Mullick to (him) as their source." (TR 49).
 
    11.  Mr. Buschauer testified that PATCO was overblowing the
 situation, in several respects:
 
          (a) Statistically, FAA computer failures were down
       approximately 60 percent over the 4 preceding years;  and 1980 was
       the safest year on record.
 
          (b) One of the newspaper articles read by Mr. Buschauer refers
       to the Fremont Center, controlling Northern California - Nevada
       traffic, as operating with only 267 controllers out of 328
       authorized, and with only 109 being fully trained.  (R 1).  Mr.
       Buschauer testified that the 109 figure was "90 short of the
       truth." (TR 50-51).  (The article does not say that PATCO
       furnished these figures.)
 
          (c) Mr. Buschauer also testified that PATCO allegations, about
       no training on the computer back-up system, were "not true." (TR
       51).  He testified that there is "a refresher training program to
       keep the controllers reasonably current on that system." (TR 51).
 
    12.  Congressional interest was aroused over air safety;  and on June
 30 and August 15 hearings were held before the Subcommittee of the
 Committee on Government Operations, house of Representatives.  A copy of
 the testimony taken at the hearings is in evidence.  See GC 2.  FAA and
 PATCO officials testified at the hearings.
 
    13.  A United States Senate staff report on FAA's En Route Air
 Traffic Control Computer System was issued, in October, that was
 critical of FAA's ability to "assure the air safety of the traveling
 public until (a) proposed replacement system (for a computerized air
 traffic control system) is operational." (GC 3. 4).
 
    14.  On July 15, Mr. Buschauer set up a group to investigate system
 outages "(b)ecause we have experienced an unusual amount of lengthy
 computer outages in the past six weeks." (GC 4. 1).  The report issued
 by the group was critical of FAA procedures, organization, and
 equipment, including the "excessive" time taken to restore some of the
 computer outages.  (GC 5. 2).  One of the group's recommendations was
 for increased training of controllers on back-up systems.  (GC 5. 2. 9).
  The group recommended that training at the Oakland Center be immediate.
  (GC 5. 22).
 
    15.  At the Congressional hearings, held on June 30, on air traffic
 control computer failures, Congressman Whittaker testified:  "It is also
 alarming that FAA employees speak out, attempting to bring potential
 hazards to the attention of the public, they are disciplined by the very
 agency that is set up to maintain and insure air safety." (GC 2. 34).
 
    16.  At the Congressional hearing on August 15, Domenic Torchia, a
 PATCO official, testified that:  "FAA has taken great liberty to
 convince the Members of Congress and the public that PATCO is here
 because we want to enhance our labor position when negotiating a
 contract." (GC 2. 428).
 
    17.  At the hearing held in this case, Mr. Torchia denied that PATCO
 contacted the media regarding safety issues in order to better the
 union's position in collective bargaining negotiations.  I credit this
 testimony.  The chief of the facility here involves admits that PATCO is
 concerned about air safety.  There were genuine problems with air safety
 at the time Mr. Buschauer made the statements here at issue.  PATCO
 developed a program for publicizing air safety problems back in May
 1979.  Aside from Mr. Buschauer's assertions, there is no record
 evidence that PATCO was publicizing safety problems to better its
 collective bargaining interests.
 
    18.  A PATCO West official testified that, after the broadcast of Mr.
 Buschauer's statements, Mr. Buschauer told him that he (Mr. Buschauer)
 had "screwed up" and "blown his cool," in regard to the broadcast, and
 asked the official "to sort of downplay the incident." (TR 71-72).  Mr.
 Buschauer acknowledged that he made such comments, "essentially as (the
 official) represented it." (TR 81).  Mr. Buschauer admitted that he was
 "angry over the issue," when he made the statements.  (TR 81).
 
                                  Issues
 
    1.  Whether disparaging statements made public by the head of a
 facility about the exclusive representative of facility employees
 constitute an interference with employee rights protected by the Statute
 in Section 7116(a)(1).
 
    2.  Whether the free speech provisions of Section 7116(e) are limited
 to representational situations.
 
    3.  If not, whether the statements here at issue fall within the free
 speech protection of Section 7116(e).
 
                        Discussion and Conclusions
 
    1.  The disparaging statements at issue violated Section 7116(a)(1)
 rights.
 
    A Section 7116(a)(1) violation has two elements-- a protected right;
 and an interference with, restraint, or coercion of an employee in the
 exercise of that right.  Respondent argues that the General Counsel
 failed to sustain his burden of proof on either element.  (RBr 3).  The
 General Counsel argues that statements to bargaining unit employees
 which disparage and show disdain for the exclusive representative have
 the effect of interfering with employee rights, by discouraging
 employees from exercising their rights under the Statute.  (GCBr 4).
 Several examples are given.  When the exclusive representative is deemed
 to be dishonest and unworthy, or unable to pursue and protect the
 interests of the bargaining unit, employees in the unit will be
 dissuaded from seeking union assistance when a problem arises.  When
 attacks are made by an agency on the motives of employees acting on
 behalf of their labor organization, these employees are chilled in
 freely expressing legitimate concerns of the union.  Disparaging remarks
 by an agency undermine the confidence of the bargaining-unit employees
 in the ability of their exclusive representative to act on their behalf.
  (GC 5).
 
    Precedent supporting the General Counsel's position is found in cases
 decided under Executive Order 11491, which controlled Federal
 labor-Management relations prior to enactment of the Statute and which,
 in Sections 1 and 19(a)(1) had provisions comparable to those here at
 issue.  /13/ A union steward told to shut up until spoken to, in the
 presence of other employees at a meeting called by management to discuss
 a management policy of concern to employees, was an action held to
 constitute an unfair labor practice in U.S. Army Headquarters, U.S. Army
 Training Center, Infantry, Fort Jackson Laundry Facility, Fort Jackson,
 South Carolina, and Local 1909, American Federation of Government
 Employees, AFL-CIO, A/SLMR No. 242, 3 A/SLMR 60(1973).  Another unfair
 labor practice was found when a supervisor, dealing with a "profane,"
 "contentious" and difficult union steward, called the steward a
 "troublemaker," threatened the steward with physical harm, and invited
 the steward to hit him, all in front of other employees, and in
 connection with a grievance matter.  See U.S. Department of Agriculture,
 Ozark-- St. Francis National Forests, Russellville, Arkansas, and Local
 1075, National Federation of Federal Employees, A/SLMR No. 977, 8 A/SLMR
 135(1978).
 
    The rationale of these cases, though factually distinguishable, is
 applicable to the instant situation.  Here, the remarks were broadcast
 publicly, to an audience that included employees, their family and
 acquaintances.  The exclusive representative of the employees was
 castigated and demeaned by the head of the facility where the employees
 work.  The statements had a chilling effect on employees' protected
 rights.  Employees would not feel free to join an organization publicly
 held up to be dishonest in motive.  They would not feel free to seek its
 assistance in grievance procedures.  They would lose confidence in the
 ability of their exclusive representative to bargain effectively on
 their behalf with an agency holding it in such low regard.  They would
 not feel as free to express their views to Congress.  See Section
 7116(a)(1) quoted above, in footnote 4.
 
    Respondent also relies on cases arising under Section 19(a)(1) of
 Executive Order 11491, which hold that consideration must be given to
 the entire circumstances surrounding the making of the communications in
 determining whether employees were interfered with, restrained, or
 coerced in the exercise of protected rights.  In one, Internal Revenue
 Service, Mid-Atlantic Service Center, A/SLMR No. 421(1974) no violation
 was found where no union animus was shown and the communications
 reflected only an overriding desire to solve food-service problems at
 the agency.  The "entire circumstances" here have been considered, and
 found to be quite different.  Mr. Buschauer's statements show
 considerable union animus.  While his statements may have been "designed
 to reassure the public," (RBr 5), Mr. Buschauer obviously and
 admittedly, "screwed up," "bl(ew) his cool," and overreached into an
 unfair labor practice when his designs gave way to attacks on PATCO.
 
    Respondent also relies on Department of the Navy, Naval Air Station,
 Fallow, Nevada, FLRA No. 74-80, Published in Number 87 of the Report of
 Case Decisions of the Federal Labor Relations Council, dated November
 14, 1975.  In that decision interference with a protected right was
 found when the station's commanding officer posted a letter he wrote to
 the union president on bulletin boards throughout the station.  The
 letter criticized the union president's tactics and statements during
 bargaining sessions.  The Council held that "direct communications
 necessarily tend to undermine the status of the exclusive representative
 in violation of the Order." See page 5 of the Council decision.  A
 somewhat similar situation occurred here, when broadcast statements
 included disparaging remarks about PATCO's motives in speaking out on
 air-safety concerns.
 
    Another "circumstance" relied upon by Respondent is the fact that the
 PATCO-FAA "dispute" relating to air traffic problems is "long standing
 and agency-wide in scope," (RBr 6) a statement which is supported by the
 record.  (See, e.g. GC 2, 102-109.  35-38).  But the record does not
 support Respondent's assertion that "employees within the bargaining
 unit have (,therefore,) grown quite accustomed to the on-going debate."
 (RBr 5).  The record shows that some union officials have grown "quite
 accustomed" to it;  but not that employees generally and, particularly,
 new employees, who have not yet decided to join or avail themselves of
 the assistance of their exclusive representative, have grown accustomed
 to it, so that the broadcast remarks would not have undermined their
 respect and confidence in PATCO.
 
    Respondent also points to the record evidence which proved only that
 one employee actually heard the broadcast, and that the Union itself
 played the tape to the rest of the employees.  Just how many employees
 may have actually heard the broadcast cannot be fathomed from the
 record.  And the fact that the Union played the tape to Respondent's
 employees does not estop it from charging an unfair labor practice, for
 the Union had a legitimate reason for playing the tapes of disparaging
 statements broadcast to the public.  Employees were asking union
 officials about the broadcast.  By listening to the tapes, the employees
 were in a better position to respond to any inquiries they might be
 subjected to by members of the broadcast audience questioning the bona
 fides of their exclusive representative.
 
    Respondent relies upon one case where an employee was reprimanded for
 disseminating an internal agency communication to the public (Federal
 Aviation Administration, Las Vegas, Nevada, A/SLMR 796(1976) and another
 where an employee was discharged for publishing "intemperate and
 defamatory lampoons about his superiors (Meehan v Macy, 392 F.2d 822 (CA
 DC, 1968)).  These cases hold that there is no protected right of
 employees to present their views to the public.  This decision is not
 based upon there being any such right.
 
    2.  The free speech provisions of Section 7116(e) are not limited to
 representational cases.
 
    In a decision handed down after the briefs in this case were filed,
 the Authority discussed the legislative history of Section 7116(e) and
 concluded that the Section should be read as follows:
 
          Thus, section 7116(e) provides that:
 
          The expression of any personal view, argument, opinion . . .
       shall not, if the expression contains no threat of reprisal or
       force or promise of benefit or was not made under coercive
       conditions . . . constitute an unfair labor practice . . .
 
          As to representation elections, section 7116(e) provides that:
 
          (T)he making of any statement which--
 
          (1) publicizes the fact of a representational election and
       encourages employees to exercise their right to vote in such
       election,
 
          (2) corrects the record with respect to any false or misleading
       statement made by any person, or
 
          (3) informs employees of the Government's policy relating to
       labor-management relations and representation,
 
          shall not, if the expression contains no threat of reprisal or
       force or promise of benefit or was not made under coercive
       conditions . . . constitute an unfair labor practice . . . or . .
       . constitute grounds for the setting aside of any election . . .
 
 See page 6 of the decision in Department of the Air Force, Air Force
 Representation Office, Detachment 27, Fort Worth, Texas and AFGE, et al,
 5 FLRA No. 62(4/17/81), which involved an election situation.
 
    The discussion of the free-speech provisions, during the legislative
 process, did focus on election situations.  See Legislative History of
 the Federal Service Labor-Management Relations Statute, Title VII of the
 Civil Service Reform Act of 1978, Committee Print No. 96-7, 96th
 Congress, 1st Session (11/19/79), pages 95, 585, 824, 996, 1021, 1023,
 1025, 1026, 1027, 1028, 1033, 1034, 1035, 1046 and 1047.  Nevertheless,
 the language chosen by Congress does not specifically limit the
 free-speech provisions to representational situations, as the General
 Counsel urges.  (RBr 7-8).  See Section 7116(e), quoted in footnote 5,
 above.  And, as read by the Authority, the language would apply in
 non-election situations.  No rationale for so circumscribing the
 free-speech provisions is apparent.  And, in a country where free speech
 is so prized, limitations on it should not be read into statutes unless
 clearly warranted by their language or legislative history.  No such
 warrant is present here.
 
    Several other Administrative Law Judges have also concluded that
 Section 7116(e) is not limited to representational situations.  See page
 15 of the decision in Norfolk Naval Shipyard, et. al, Case Nos. 3-CA-63,
 20, 21 and 456, decided on June 6, 1980, by Chief Judge John H. Fenton,
 holding that the free-speech provisions extend to picketing situations.
 See also pages 19-21 of the decision in Oklahoma City Air Logistics
 Center Tinker Air Force Base, Case No. 6-CA-175, decided on May 23,
 1980, by Judge William B. Devaney, holding that the free-speech
 provisions apply to an expression of a union's worth to employees
 seeking advice on joining it, and to asking an employee whether he knew
 union dues were increasing.  I concur in their interpretations.
 
    3.  Mr. Buschauer's statements do not fall within the protection of
 Section 7116(e).
 
    Section 7116(e) is restricted to the expression of a "personal view,
 argument, opinion." See quotation of Section 7116(e) in footnote 5,
 above, emphasis added.  In this case, the views and opinions expressed
 by Mr. Buschauer, were expressed in his official capacity and while
 carrying out FAA policies.  They were, admittedly, "but one small part"
 of a heated dispute between FAA and PATCO being carried on at the
 highest levels.  (RBr 6).  They may have also been the personal views of
 Mr. Buschauer;  but when they are also an expression of agency views,
 they are not protected as free speech, under the Statute.
 
    The statements also are not protected because they were made under
 "coercive conditions." They were made only six days before the
 commencement of Congressional hearings on air traffic problems.  Mr.
 Buschauer had reason to believe, from reading a newspaper article
 introduced into evidence as Respondent's Exhibit 1, that a lot of
 worried air controllers were willing to talk to Congress.  Under these
 circumstances, giving the media derogatory statements about the motive
 of their exclusive representative, at this time, was clearly coercive.
 In fact, PATCO officials gave extensive testimony at the hearings that
 appeared to be quite open and frank.  See e.g. GC 2. 4-10.  102-249.
 399-455.  Nevertheless, the broadcast statements may have restrained
 those Union officials, to some degree, and scared away other FAA
 employees who might have otherwise chosen to act for PATCO and "freely .
 . . present the views of the labor organization to . . . Congress." In
 any event, the success or failure in coercing a bargaining-unit employee
 is not determinative.  Cf. Department of the Army, Fort Bragg Schools,
 et al, 3 FLRA No. 57 (1980).
 
    Respondent argues that the statements were not coercive because they
 were not "directed to employees;  rather they were designed to reassure
 the public." (RBr 5).  They may have been "designed" to reassure the
 public.  But, as executed, they gave the public little reassurance,
 indeed no specific facts at all, and focused instead on allegations
 about PATCO's deceptive and dishonest motives.  As to the audience to
 which the statements were beamed, it would be disingenuous to believe
 that employees are excluded from "the public" receiving news over a
 radio station.  Respondent states that "only one employee actually heard
 the broadcast." (RBr 5).  More accurately, only one employee testified
 to hearing it.  Just how many actually heard it is not known.  Several
 asked about it and, so that they might be prepared to cope with adverse
 reactions to it from family members and acquaintances, the Union played
 the tape for them.
 
    Respondent also alleges that the statements were only to "set the
 record straight." (RBr 10, citing Mr. Buschauer's testimony at TR 59).
 If this were so, Mr. Buschauer should have devoted his statements to
 specific facts refuting those which had appeared in the media.  He was
 invited to do just this, and, expressly declined to do so.
 
                        ULTIMATE FINDING AND ORDER
 
    Respondent has violated Section 7116(a)(1) of the Statute.
 
    Pursuant to 5 CFR 2423.26 and 5 U.S.C. 7118, the Authority hereby
 orders that Respondent, Department of Transportation, Federal Aviation
 Administration, Oakland Air Route Traffic Control Center, Fremont,
 California, shall:
 
    1.  Cease and desist from:
 
          (a) Interfering with, restraining or coercing bargaining-unit
       employees in the exercise of their rights as assured by the
       Federal Service Labor-Management Relations Statute, by making
       disparaging remarks about the exclusive representative,
       Professional Air Traffic Controllers Organization, in radio
       broadcasts.
 
          (b) 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 Federal Service Labor-Management Relations
 Statute:
 
          (a) Post at its facility in Fremont, California, 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 Chief of the Oakland Air Route Traffic
       Control Center, and shall be posted and maintained by him for 60
       consecutive days thereafter, in conspicuous places, including all
       places where notices to employees are customarily posted.  The
       Chief shall take reasonable steps to insure that such notices are
       not altered, defaced or covered with any other material.
 
          (b) Notify the Federal Labor Relations Authority in writing,
       within thirty (30) days from the date of this Order as to what
       steps have been taken to comply herewith.
 
                                       ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
    Dated:  May 28, 1981
    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 interfere with, restrain or coerce our employees in the
 exercise of their rights as assured by the Federal Service
 Labor-Management Relations Statute, by making disparaging remarks
 concerning the exclusive representative, Professional Air Traffic
 Controllers Organization (PATCO), in radio broadcasts.
 
    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 to form, join or
 assist any labor organization, freely and without fear of penalty or
 reprisal, including the right to act for a labor representative and the
 right, in that capacity, to present the views of the labor organization
 to Congress.
                                       (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 any 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, Region
 IX, whose address is:  Room 11408, P.O. Box 36016, 450 Golden Gate
 Avenue, San Francisco, California 94102, and whose telephone number is:
 (415) 556-8105.
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The basis for the General Counsel's motion to strike is that the
 Respon