14:0617(85)CA - AFGE Local 2000 and William R. Massengale -- 1984 FLRAdec CA



[ v14 p617 ]
14:0617(85)CA
The decision of the Authority follows:


 14 FLRA No. 85
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2000, AFL-CIO
 Respondent
 
 and
 
 WILLIAM R. MASSENGALE
 Charging Party
 
                                            Case Nos. 6-CO-37 
                                                      6-CO-38
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices as alleged in the consolidated complaint,
 and recommending that it be ordered to cease and desist therefrom and
 take certain affirmative action.  The Judge found further that the
 Respondent had not engaged in certain other unfair labor practices
 alleged in the consolidated complaint, and recommended dismissal of
 those portions of the consolidated complaint.  Thereafter, the General
 Counsel filed exceptions and a supporting brief with respect to certain
 portions of the Judge's Decision.
 
    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 recommended Order.  /1A/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the American Federation of Government Employees, Local 2000,
 AFL-CIO shall:
 
    1.  Cease and desist from:
 
    (a) Threatening to "get" or to "get rid of" non-members of the Union.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing any unit employee in the exercise by the employee of any right
 under 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 business offices and its normal meeting places,
 including all places where notices to members and unit employees
 represented by Local 2000 are customarily posted, 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 an
 appropriate official of the American Federation of Government Employees,
 Local 2000, AFL-CIO, and shall be posted for 60 consecutive days
 thereafter, in conspicuous places, including all places where notices to
 members and to other employees are customarily posted.  Reasonable steps
 shall be taken to insure that such Notices are not altered, defaced, or
 covered by any other material.
 
    (b) Submit appropriate signed copies of said Notices to the Commander
 of Barksdale Air Force Base for posting in conspicuous places where unit
 employees are located, where they shall be maintained for 60 consecutive
 days from the date of posting.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director of Region VI, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the remaining allegations of the
 consolidated complaint in Case Nos. 6-CO-37 and 6-CO-38 be, and they
 hereby are, dismissed.  
 
 Issued, Washington, D.C., May 17, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                    NOTICE TO ALL MEMBERS AND 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 MEMBERS AND OTHER EMPLOYEES THAT:
 
    WE WILL NOT threaten to "get" or to "get rid of" non-members of the
 Union.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce any unit employee in the exercise by the employee of any right
 under the Federal Service Labor-Management Relations Statute.
                                       (Union)
 
 Dated:  . . .  By:  (Signature) (Title)
 
    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 VI, Federal Labor Relations Authority whose address is:
  Bryan & Ervay Streets, Room 450, P.O. Box 2640, Dallas, Texas, and
 whose telephone number is:  (214) 767-4996.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case Nos. 6-CO-37, 6-CO-38
    Mr. Carl W. Holt
    Ms. Opal B. Adams
          For the Respondent
 
    Elizabeth A. Martinez, Esquire
    Susan Jelen, Esquire
          For the General Counsel
 
    Before:  WILLIAM B. DEVANEY
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 6 U.S.C. 7101,
 et seq., /1/ and the Rules and Regulations issued thereunder, 5 C.F.R.
 2423.1, et seq., was initiated by a charge in Case No. 6-CO-37, filed on
 May 18, 1981 (G.C. Exh. 1(a)), which alleged violations of Secs.
 16(b)(1), (2) and (5) of the Statute by American Federation of
 Government Employees, Local 2000, AFL-CIO (hereinafter referred to as
 "Union") as the result of statements made by the then Chief Steward of
 the Union, Mr. Franks, in a conversation between Mr. Franks and Mr.
 William Massengale, and other employees, all of whom were non-members of
 the Union, outside the maintenance office on, or about, April 25, 1981;
 and by a charge in Case No. 6-CO-38 (G.C. Exh. 1(d)), also filed on May
 18, 1981, which alleged violations of Secs. 16(b)(1), (2) and (5) of the
 Statute by the Union as the result of statements made at a Union meeting
 by the President of the Union to non-members of the Union.  On July 27,
 1981, an Order Consolidating Cases, Consolidated Complaint and Notice of
 Hearing issued (G.C. Exh. (g)).  The Consolidated Complaint alleged
 violation of Sec. 16(b)(1) only and the Notice of Hearing set the
 hearing for October 26, 1981, at a place to be determined.  On August
 27, 1981, an order rescheduling the hearing for October 28, 1981, issued
 (G.C. Exh. 1(i)) pursuant to which a hearing was duly held before the
 undersigned on October 28, 1981, in Shreveport, Louisiana.
 
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence bearing on the issues involved, and were afforded
 opportunity to present oral argument.  At the close of the hearing,
 November 30, 1981, was fixed as the date for mailing post-hearing briefs
 which time was subsequently extended for good cause shown, and
 specifically delay in receipt of the transcript, to December 18, 1981.
 Counsel for General Counsel timely mailed a most helpful Brief, received
 on December 22, 1981, which has been carefully considered.  Upon the
 basis of the entire record, including my observation of the witnesses
 and their demeanor, I make the following findings and conclusions:
 
                                 FINDINGS
 
    1.  The Union is the exclusive representative for employees in the
 bargaining unit covering all professional and non-professional civilian
 employees paid from appropriated funds of Barksdale Air Force Base and
 on-base tenant organizations.  The 917th Tactical Fighter Group Reserve
 Unit (hereinafter referred to as the "917th") is a tenant organization.
 
    2.  At all times material, William Massengale, John Tomasak, Myna
 Babb and Joe Linder were civilian technicians employed as crew chiefs by
 the 917th.  Crew chiefs are responsible for the maintenance and flight
 preparation of aircraft.  The named individuals, while included in the
 bargaining unit represented by the Union, were not, and never had been,
 members of the Union.
 
    3.  In April, 1981, the 917th advised Ms. Opal B. Adams, President of
 the Union, that it had got the new A-10 aircraft and that the 917th
 would also operate a training school for the A-10 aircraft;  that,
 because its mission had changed, it would have to change working hours
 in order to cover the pilots in training (Tr. 191).  The Union requested
 impact and implementation negotiations and designated Mr. Carl W. Holt,
 National Representative, as its chief negotiator.  On the Union's
 negotiating team was Mr. Jack E. Franks, Chief Steward and, also, a crew
 chief.
 
    4.  As a result of the ensuing negotiations, an agreement was reached
 by management and the Union's negotiating team (Res. Exh. 1) which,
 pursuant to the Union's procedures, was subject to ratification by the
 membership of the Union.
 
    5.  The change in hours consisted of establishing a Tuesday through
 Saturday tour of duty.  The non-Union crew chiefs became aware of the
 impending change and on, or about April 25, 1981, Mr. William Massengale
 had a discussion with Mr. Jack Franks, about the schedule.  /2/ This
 discussion took place outside the door of the maintenance office.  Both
 Mr. Massengale and Mr. Franks subsequently left the employ of the 917th
 and neither testified at the hearing.  Mr. Joe M. Linder, a crew chief,
 and Mr. John A. Tomasak, another crew chief, came by while the
 discussion between Messrs. Massengale and Franks was in progress.  Mr.
 Linder testified that he heard the following:
 
          "Q.  Now, what was Mr. Massengale asking?
 
          "A.  Well, he was wanting to get some answers to some questions
       about our job, the way the union was representing us about the job
       and Mr. Franks was telling him that by being non-members, that the
       union didn't have to represent them.
 
          "Q.  Do you recall anything more that he was saying?
 
          "A.  Well, he-- Mr. Franks went ahead and told him if he wanted
       to have a say in what the union was doing, that he could go ahead
       and join the union and start paying his dues and then he would
       have a say on what the union was doing." (Tr. 96-97).
 
 Mr. Tomasak testified, in part, as follows:
 
          "Q.  Do you recall what it was that Mr. Massengale was telling
       Mr. Franks?
 
          "A.  He was discussing being represented by the union.
 
          "Q.  Okay.  Do you recall what Mr. Franks was stating to Mr.
       Massengale?
 
          "A.  Well, like I said, the discussion got kind of heated and
       Bill Massengale was asking Jack Franks about being represented.
       And Jack Franks said, I don't give a damn about anybody who is not
       in the union.  He said, as far as I'm concerned, all you
       son-of-a-bitches can go to hell.  He said, you had the opportunity
       to join the union and be represented and if you don't, you can
       keep your damned mouth shut.  He said, I represent the people who
       are in the union and pay dues and everybody else can go to hell.
 
                                .  .  .  .
 
          "Q.  Did you say anything?
 
          "A.  At that point I asked Jack Franks, I said, 'Does that mean
       if I am not in the union I can't be represented?' And he says,
       you're damned right.  He says, I look out for myself.  He says, I
       pay my dues and everybody else can go to hell.
 
          "Q.  Now, did Mr. Massengale agree with this?
 
          "A.  He said, that's not right.  He has got the right to be
       represented.  And Jack Franks says-- he said, hell no, not until
       you you (sic) pay for the right." (Tr. 52-54).
 
 On cross-examination, Mr. Tomasak testified, in part, as follows:
 
          "Q.  Okay.  Thank you.  You said that you want-- I want to get
       this straight here.  What right do you contend you were denied as
       a non-member?
 
          "A.  Well, if we have a grievance or anything, we are supposed
       to be represented by the union.
 
          "Q.  When were you denied representative of a grievance?
 
          "A.  Well, I wasn't personally denied but during the contract,
       the schedule changes being brought up, we asked about filing a
       grievance and Jack Franks said it (sic) too late to file a
       grievance.
 
          "Q.  What was the grievance on?
 
          "A.  That we didn't have any say so on the schedule being drawn
       up.
 
          "Q.  Can you explain that?  I'm not following what you mean you
       didn't have any say so.
 
          "A.  There were changes of working hours and the length of time
       we worked on each shift.
 
          "Q.  You mean by that that you weren't allowed to sit in at the
       negotiating table?  Is that what you're saying?
 
          "A.  Yes, sir." (Tr. 61).
 
                                .  .  .  .
 
          BY MR. HOLT
 
          "Q.  Do I understand you then, Mr. Tomasak, to say that you
       feel that you weren't being represented because non-members
       weren't (sic) at the negotiating table, is that essentially what
       you're saying?
 
          "A.  None of the members-- none of the union members were there
       either.  Not off the flight line.
 
          "Q.  You mean--
 
          "A.  It affected our schedule and none of the people that it
       affected were there to negotiate and bargain.
 
                                .  .  .  .
 
          "A.  There was one person there, Jack Franks, and the only
       reason he was there was because he was chief steward.  It wasn't
       because he was off the flight line.
 
          "Q.  Then is there a difference between Jack Franks being
       there-- if he is there as union steward, you mean that has nothing
       to do with him being an affected employee?  Wasn't he affected?
 
          "A.  It affected him favorably.  That's why he was pushing for
       it because of the favorable part it would have on his life.
 
          "Q.  Well, what was Franks' pushing for exactly?
 
          "A.  One of the things he was pushing for was working on
       Saturday because his wife worked on Saturday and she was off
       Monday.  And he wanted to work Saturday.
 
          "Q.  Well, do you know who proposed this irregular work
       schedule, Mr. Tomasak?
 
          "A.  Management I believe." (Tr. 64-66).
 
    6.  The non-Union crew chiefs, set forth in Paragraph 2, learned that
 a Union meeting was scheduled at which the work schedule changes were to
 be considered;  /3/ one or more of them contacted Mr. Dan Weeks, shop
 steward, and asked him if they could attend the meeting and Mr. Weeks
 said yes.  Accordingly, Massengale, Tomasak, Babb and Linder, all
 non-members, individually came to the Union meeting which had been
 called to ratify the negotiated agreement (Res. Exh. 1).  Ms. Adams,
 President, presided and in attendance, also, were:  Messrs. Franks,
 Johnny Smith, Johnny Hood and Mr. James Brooks.  /4/ The non-members
 were identified to Ms. Adams and they were not asked to leave.  To the
 contrary, I credit Ms. Adams' testimony that she read the agreement and
 that she answered questions about it (Tr. 199-200).  Indeed, Mr. Hood,
 with a greater sense of public relations than some of his fellow
 members, quite candidly stated.
 
          "Q.  The meetings you attended when you were an officer, in the
       event that non-members were you say there as invited guests, were
       they allowed to vote and participate?
 
          "A.  No, sir, they were allowed to come and listen and it was--
       well, the whole thing behind it was to invite non-union in the
       hope to make members out of them, to show them what went on, you
       know, what people was trying to work for them instead of against
       them." (Tr. 176)
 
    I do not credit Ms. Adams' testimony that she did not convene the
 meeting.  The record shows, and I find, that she did convene the
 meeting;  that the agreement was discussed;  and that, as Mr. Hood
 stated, there was dissatisfaction with the agreement expressed by
 members as well as by the non-members present (Tr. 175, 183-184).  It is
 further clear that the non-Union employees present asserted a right to
 vote on the agreement and that Ms. Adams told them that, as non-members
 of the Union, they could not vote.  As Mr. Hood very credibly testified.
 
          " . . . that's what started the whole uproar.  They was under
       the impression, which I would probably have had too had had I not
       belonged to the union, that if there was something out there that
       was affecting my job and I felt that this part of a group of
       people were involved in it, I would feel that I would want a voice
       in it too." (Tr. 179).
 
 Mr. Linder testified, in part, as follows:
 
          ". . . Ab far as having anything to say about the union itself,
       my being a non-member, I feel that I have no right to deal with
       the union.  But when it has to do with my job on the flight line,
       it puts food on the table for my kids and clothes on their backs,
       then I feel that I should have a say on it being a member or not
       of the union.
 
          "Q.  You're relating that to the work schedule then?
 
          "A.  Yes." (Tr. 103).
 
    Mr. Tomasak's testimony was to like effect.  He testified on
 cross-examination, in part, as follows:
 
          "A.  We went there just to-- it was supposed to be discussion
       before it was ratified and we went to see what the discussion was
       about, see if there was anyway to change it.  See why we didn't
       have a say in what was going on in the first place.
 
                                .  .  .  .
 
          "A.  Well, if it affects the people on the flight line, we
       should have something to say about it.
 
          "Q.  Well, do you mean by that that you should have been at the
       negotiation sessions?
 
          "A.  No, we should have had somebody who represented us more
       fully.
 
          "Q.  Well, who is supposed to represent the non-union members,
       Mr. Tomasak?
 
          "A.  Well, there ought to be somebody there to represent us.
 
          "Q.  Well, meaning who?
 
          "A.  Well, if nobody else, we should elect somebody from the
       non-union members and had somebody sit in there and bargain for
       us." (Tr. 68-69).
 
 On direct, Mr. Tomasak had testified, in part, as follows:
 
          "Q.  Did you ask Mrs. Adams any questions about the schedule?
 
          "A.  Yes, we did.  We basically asked her the same questions we
       did Jack Franks, why we couldn't be represented during the
       bargaining of our schedule.
 
          "Q.  And do you recall what she said?
 
          "A.  She said that she didn't have to represent us, that we
       didn't have anything to say unless we were in the union.  That if
       we joined the union, we could have a say so in schedules being
       made and everything else.
 
          "Q.  What did she say your rights were?
 
          "A.  She said we didn't have any rights unless we were union
       members.  We didn't have to be represented." (Tr. 57).
 
 Ms. Babb testified, in part, as follows:
 
          "Q.  . . . Do you recall what type of questions were being
       asked?
 
          "A.  They were just scheduling-- discussing the proposed
       schedule, you know, why we were working Tuesday through Saturday
       on a 30-day rotation.  They were just curious about the schedule
       that was being proposed.
 
          "Q.  And what was Mrs. Adams response to these questions?
 
          "A.  Concerning the schedule, I don't recall what was said.  It
       was just proposed what was being discussed about it and she said
       that we didn't have any rights as a non-union member.  She didn't
       have to listen to us or represent us, and if we decided to become
       a union member at that time, we could have some say so about
       scheduling-- we could work and stuff but if we were not a union
       member, we had no rights.  And if you became a member you can be
       represented." (Tr. 88-89).
 
 Mr. Linder testified that,
 
          "A.  Well, she (Ms. Adams) stated that as being non-union
       members, that the union didn't have to represent us in any way.
       (Tr. 100).
 
 On cross-examination he was asked,
 
          "Q.  Isn't it true, Mr. Linder, that there is some confusion
       here?  Isn't it true that Mrs. Adams said in order to have a voice
       in the final product, to ratify it, you must be a union member so
       otherwise you have no voice?  Isn't this essentially what she
       said?  (Tr. 108-109).
 
 Mr. Linder responded,
 
          "A.  Well, that might have been what she meant but that wasn't
       what she said.
 
          "Q.  In other words, you didn't understand it that way?
 
          "A.  No, I didn't understand it that way.
 
          "Q.  Well, are you aware, Mr. Linder, that your negotiating
       committee, being the negotiating committee for the local, was
       representing everybody at the bargaining table including you?
       Were you not aware of that?
 
          "A.  By being a non-union member I was told I wasn't
       represented." (Tr. 109).
 
    7.  The record shows without dispute that there were not sufficient
 members present at the Union meeting held on, or about, April 25, to
 constitute a quorum (See, Tr. 133, 167, 198).  Ms. Adams may well have
 retreated to reliance on the absence of a quorum because of the
 opposition to the agreement by the Union members present, as Mr. Tomasak
 testified, "And after a while when she saw that the three members that
 were there, it wasn't going to be ratified because they were asking
 questions and they really didn't like what was in it, she said they were
 not going to vote on it that day . . . so she postponed it for a
 different day" (Tr. 59);  nevertheless, Ms. Adams did not bring to a
 vote ratification of the agreement because of the absence of a quorum;
 announced that the meeting would be rescheduled;  "and non-union members
 don't show up." (Tr. 93).
 
    8.  Although the non-union employees present at the Union meeting had
 been identified to Ms. Adams at the commencement of the meeting, when
 Mr. Massengale got up to leave either Ms. Adams asked him who he was
 (Tr. 101) or she asked someone in the room who that man was and was told
 it was Bill Massengale.  Mr. Tomasak testified that Ms. Adams then said,
 
          ". . . oh, that's Bill Massengale.  He is a troublemaker.
       don't like troublemakers and I am going to get rid of him." (Tr.
       58).
 
 Mr. Linder testified, in part, as follows:
 
          ". . . and she said, oh, you're bill massengale.  And he said,
       yes, I am.  And then after he went out, then, well, I believe that
       Mrs. Adams said, so that's Bill Massengale.  Says, he is a
       troublemaker.  Says, I will get him.  But (sic) she meant by that
       I have no idea." (Tr. 101).
 
 Ms. Babb testified, in part, as follows:
 
          ". . . there was a little bit of a disturbance between the two
       and she asked for his name.  And he gave her his name and he left
       and she stated that he was a troublemaker.  And that's about all I
       remember." (Tr. 89).
 
 Mr. Hood, testified, in part, as follows:
 
          "Q.  Did you ever hear Mrs. Adams make a statement at the
       meeting to Mr. William Massengale, I will get you?
 
          "A.  No, sir.  Like I said, there was a lot going on and she
       mentioned something about, well, you're just a troublemaker, or
       something like that.  I heard something to that effect." (Tr.
       178).
 
    Mr. Smith denied having heard any such statement (Tr. 147) as did Mr.
 Brooks (Tr. 161) and Ms. Adams denied that she told Mr. Massengale she
 would get him (Tr. 206), but she was neither asked, nor did she deny
 that she called Mr. Massengale a troublemaker.
 
    In any event, I find that Ms. Adams did call Mr. Massengale a
 troublemaker and further that she said she would "get" him or "get rid
 of him".  I make this latter finding, with full awareness that neither
 Ms. Babb nor Mr. Hood recalled any such statement although each very
 credibly testified that Ms. Adams called Mr. Massengale a troublemaker,
 in part because I found Mr. Tomasak's and Mr. Linder's testimony in this
 regard wholly credible;  in part because I did not find the testimony of
 Mr. Smith, of Mr. Brooks, or of Ms. Adams in this regard credible;  and
 in part because the circumstances of singling out Mr. Massengale for
 further identification at the end of the meeting and terming him a
 "troublemaker", which even Ms. Adams did not deny, is so thoroughly
 consistent with the "get" him statement attributed to Ms. Adams by
 Messrs. Tomasak and Linder.
 
                                CONCLUSIONS
 
    Section 14(a)(1) of the Statute creates not only the right but the
 duty of an exclusive representative to act for, and to negotiate
 collective bargaining agreements covering, all employees in the unit.
 To be sure, Sec. 14(a)(1) specifically provides that,
 
          " . . . An exclusive representative is responsible for
       representing the interests of all employees in the unit it
       represents without discrimination and without regard to labor
       organization membership."
 
    Nevertheless, the second sentence of Sec. 14(a)(1), set forth above,
 does not limit or restrict the right and duty of a labor organization,
 set forth in the first sentence of Sec. 14(a)(1),
 
          " . . . to act for, and negotiate collective bargaining
       agreements covering, all employees in the unit."
 
    Both under the Executive Order and the Statute far less weight has
 been accorded to community of interest of employee, or more accurately
 the lack of it, in determining appropriate units than the National Labor
 Relations Board has traditionally accorded in the private sector under
 the NLRA;  but in both the public and private sector it is not uncommon
 that particular employees, or groups of employees, who are included in
 broader units feel that their concerns are not fully understood or
 appreciated.  Nevertheless, the exclusive representative has both the
 right and the duty to negotiate collective bargaining agreements
 covering all employees in the Unit, provided only that it must represent
 the interests of all employees in the Unit without discrimination and
 without regard to labor organization membership.  Not only was it not
 charged, but the Agreement (Res. Exh. 1) plainly shows that its terms
 apply to all maintenance and operations personnel of the 917th and that
 labor organization membership is not a consideration.
 
    Philosophically, there is logic to the argument that collective
 bargaining agreements covering all employees should be voted on by all
 employees;  but this is not the way the law has developed.  All
 employees are entitled to vote in determining whether there is to be
 union representation;  but once a labor organization is chosen as the
 exclusive representative, the labor organization then acts for, and
 negotiates collective bargaining agreements covering, all employees and
 its members ratify and approve such agreements in the manner provided by
 the labor organization's governing requirements.  Although the Statute
 protects the right of each employee to refrain from joining any labor
 organization, non-members have no right under the Statute to vote or to
 participate in meetings of the labor organization.
 
    There is no doubt whatever that a statement, as alleged in Paragraph
 5(a) of the Complaint, that the Union would not represent employees in
 the unit unless they were members of the Union, would, ordinarily,
 constitute a violation of Sec. 16(b)(1).  See, for example, American
 Federation of Government Employees, Local 1778, AFL-CIO and Department
 of the Air Force, Headquarters, 438th Air Base Group (MAC), Mcguire Air
 Force Base, Case. No. 2-CO-12 (ALJ, February 17, 1981);  National
 Treasury Employees Union and U.S. Customs Service;  National Treasury
 Employees Union and Nuclear Regulatory Commission, Case Nos. 3-CO-26,
 3-CO-37 (ALJ, February 25, 1981);  cf., National Treasury Employees
 Union (NTEU), Chapter 202, et al., 1 FLRA 909 (1979);  Federal Aviation
 Science and Technological Association Division, National Association of
 Government Employees, 2 FLRA 801 (1980).  However, this case is not
 ordinary, but is quite extraordinary.  Indeed, the "representation"
 sought was that the non-Union crew chiefs be allowed to participate in
 negotiations.  Neither Mr. Franks, then Chief Steward of the Union, nor
 Mr. Massengale, the charging party, was employed at the 917th at the
 time of the hearing and neither testified at the hearing.  Consequently,
 as the primary protagonists were absent and only portions of their
 conversation were overheard, it is not known, fully, how Mr.
 Massengale's conversation with Mr. Franks began but it is clear from Mr.
 Linder's testimony that Mr. Franks told Mr. Massengale that" . . . if he
 wanted to have a say in what the union was doing, that he could go ahead
 and join the union and start paying his dues and then he would have a
 say on what the union was doing" (Tr. 97);  and Mr. Tomasak made it very
 clear that the representation he had sought in his question to Mr.
 Franks, and the representation Mr. Massengale had sought, was the right,
 as non-Union employees, to have a representative sit in at the
 negotiating table (Tr. 61) which he fully reaffirmed in regard to
 questions later asked at the Union meeting, " . . . we basically asked
 her the same questions we did Jack Franks, why we couldn't be
 represented during the bargaining of our schedule." (Tr. 57).
 
    Recognizing, as the record shows, that Mr. Massengale and Mr. Tomasak
 had asked, or asserted the right, as non-Union employees to take part in
 negotiations, Mr. Franks' response becomes quite different than as
 alleged in the Complaint.  While I fully appreciate the concern of the
 non-Union employees, it was, as the British might say, cheeky for a
 non-Union employee to ask, or assert the right, to a Union official to
 take part in the Union's negotiations and I equally appreciate the
 strong reaction that such assertion was reasonably calculated to
 provoke, and did provoke, by Mr. Franks.  For reasons more fully stated
 in Oklahoma City Air Logistics Center (AFLC), Tinker Air Force Base,
 Oklahoma, 6 FLRA No. 32 (1981), I concluded that, under the particular
 circumstances of this case, Mr. Franks' statements fall within the
 protection of Sec. 16(e) of the Statute which "protects the expression
 of personal views, arguments or opinions by . . . 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." 6 FLRA
 No. 32 at p. 6.  As Mr. Massengale had gone to Mr. Franks, to talk about
 the non-Union crew chiefs taking part in negotiations and Messrs. Linder
 and Tomasak passed by and, being interested, as non-Union crew chiefs
 themselves, "joined" the discussion, Mr. Franks' expression of personal
 views were not made under coercive conditions;  nor, under the
 circumstances, was there any threat of reprisal or force or proscribed
 promise of benefit.  Mr. Franks' statement to Mr. Massengale, as Mr.
 Linder testified, that ". . . he could . . . join the union . . . and
 then he would have a say on what the union was doing" correctly stated
 the rights flowing from Union membership and was not a promise of
 benefit proscribed by Sec. 16(e).  Indeed, in response to Mr.
 Massengale's assertion that non-Union employees could, or should,
 participate in negotiations, Mr. Franks' response, as provided in Sec.
 16(e)(2) corrected " . . . the record with respect to any false or
 misleading statement made by any person" by telling Mr. Massengale that
 if he wanted a voice in what the Union was doing he could join the Union
 and then he would have "a say" on what the Union was doing.
 
    Thereafter, Mr. Massengale, and other non-Union crew chiefs, learned
 that there was to be a Union meeting at which the agreement concerning
 the shift change was to be considered;  they inquired of their shop
 steward, Mr. Weeks, whether they could attend, and he told them they
 could, so several of them went to the Union meeting.  They were
 permitted to attend the meeting at which the agreement was read and
 discussed.  The record shows, as Mr. Tomasak testified, that they " . .
 . basically asked . . . (Union President Adams) the same questions we
 did Jack Franks, why we couldn't be represented during the bargaining of
 our schedule" to which Ms. Adams responded, as Mr. Tomasak stated, "She
 said that she didn't have to represent us, that we didn't have anything
 to say unless we were in the union.  That if we joined the union, we
 could have a say so in schedules being made and everything else." (Tr.
 57).  (See, to like effect, the testimony of Mr. Linder (Tr. 100) and
 Ms. Babb (Tr. 88-89)).  Under ordinary circumstances, as stated above,
 such statement would constitute a clear violation of Sec. 16(b)(1);  but
 recognizing that the representation sought was the right of non-Union
 employees to join in negotiations coupled with:  (a) the asserted right
 to join in discussions at a Union meeting;  and (b) the asserted right,
 because " . . . it has to do with my job on the flight line", to vote,
 i.e., "have a say on it being a member or not of the union", on the
 negotiated agreement, I do not find Ms. Adams' response, as alleged in
 Paragraph 5(b) of the Complaint, concerning representation, to have been
 improper or to constitute a violation of Sec. 16(b)(1) of the Statute.
 For reasons set forth above as to Mr. Franks' statements, I conclude
 that Ms. Adams' statements in this regard fall within the protection of
 Sec. 16(e) of the Statute.  In addition, she properly stated that, as
 non-members, they had no right to speak at the Union meeting and no
 right to vote.
 
    Although I have endeavored to make it clear, let me emphasize again
 that nothing contained in this decision means that a labor organization
 may with impunity, under any circumstances, refuse to represent any
 employee in the bargaining unit.  I have found no violation in this case
 solely because the representation sought was not that the Union
 represent any employee but, rather, that non-Union employees be allowed
 to join in negotiations and/or that non-Union employees be allowed to
 "have a say" in Union business.  A labor organization has a duty to
 represent the interests of all employees in the Unit it represents
 without discrimination, but nothing in the Statute grants any right to
 non-members to engage in collective bargaining.  To the contrary, the
 whole thrust of Sec. 14(a) is that a labor organization which has been
 accorded exclusive recognition is "the exclusive representative of the
 employees in the unit . . . and is entitled to act for, and negotiate
 collective bargaining agreements covering, all employees in the unit."
 
    At the end of the meeting, Ms. Adams called Mr. Massengale a
 troublemaker and, further, stated she would "get" him or "get rid of"
 him.  Although Mr. Massengale, and other non-members, were present only
 by grace, Ms. Adams' statement that Mr. Massengale, who had been the
 most vocal of the non-members present, was a troublemaker and that she
 would "get" him constituted a threat and, made in the presence of other
 non-members, also had a chilling effect upon the right of other
 employees to, inter alia, refrain from joining or assisting any labor
 organization "freely and without fear of penalty or reprisal", in
 violation of Sec. 16(b)(1) of the Statute.
 
    Having found that Respondent violated Sec. 16(b)(1) of the Statute by
 terming Mr. Massengale a troublemaker and stated that she would "get"
 him, I shall recommend that the Authority issue an appropriate order.
 Although Mr. Massengale has left the employ of the 917th, Respondent's
 violation has not been rendered moot as such statement, made in the
 presence of other non-Union employees also interfered with, restrained,
 or coerced other employees.  Indeed, both because of the circumstances
 in which the threat was made and because, as General Counsel states,
 there was a prior violation by the same Respondent involving threats to
 employees, a broad cease and desist order is warranted.  In all other
 respects, I recommend that the Complaint in Case Nos. 6-CO-37 and
 6-CO-38 be dismissed.
 
    Accordingly, I recommend that the Authority issue the following:
 
                                   ORDER
 
    Pursuant to Sec. 18(a)(7) of the Statute, 5 U.S.C. 7118(a)(7), and
 Section 2423.29 of the Regulations, 5 C.F.R. 2423.29, the Authority
 hereby orders that American Federation of Government Employees, Local
 2000, AFL-CIO, shall:
 
    1.  Cease and desist from:
 
          (a) Threatening to "get" or to "get rid of" non-members of the
       Union.
 
          (b) In any manner interfering with, restraining, or coercing
       any employee in the exercise by the employee of any right under
       the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action:
 
          (a) Post at their respective business offices, in normal
       meeting places, and all places where notices to members of Local
       2000 are customarily posted, copies of the attached Notice marked
       "Appendix" on forms to be furnished by the Authority.  Upon
       receipt of such forms, they shall be signed by a representative of
       American Federation of Government Employees, AFL-CIO, Local 2000,
       and shall be posted for 60 consecutive days thereafter, in
       conspicuous places, including all places where notices to members
       are customarily posted.  Reasonable steps shall be taken to insure
       that such Notices are not altered, defaced, or covered by any
       other material.
 
          (b) Submit signed copies of said Notice to employers for
       posting in conspicuous places where unit employees are located,
       where they shall be maintained for a period of 60 consecutive days
       from the date of posting.
 
          (c) Pursuant to Sec. 2423.30 of the Regulations, 5 C.F.R.
       2423.30, notify the Regional Director of the Federal Lab or
       Relations Authority for Region VI, whose address is:  Old Post
       Office Building, Bryan & Ervay Streets, Room 450, P.O. Box 2640,
       Dallas, Texas 75221, in writing, within 30 days from the date of
       this order, as to what steps have been taken to comply herewith.
 
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
 Dated:  February 24, 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 ALL MEMBERS AND ALL EMPLOYEES OF ALL UNITS
 FOR WHICH
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 2000 HOLDS
 EXCLUSIVE RECOGNITION that:
 
    WE WILL NOT threaten to "get" or to "get rid of" non-members of the
 Union.
 
    WE WILL NOT in any manner interfere with, restrain, or coerce any
 employee in the exercise by the employee of any right under the Federal
 Service Labor-Management Relation Statute.
 
    WE WILL represent the interests of all employees in all units we
 represent without discrimination and without regard to labor
 organization membership.
                                       American Federation of Government
                                       Employees, AFL-CIO, Local 2000
 
 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 question concerning this Notice, or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Federal Labor Relations Authority, Region VI, whose
 address is:  Bryan & Ervay Street, Old Post Office Building, Room 450,
 P.O. Box 2640, Dallas, TX 75221;  and whose telephone number is:  (214)
 767-4996.
 
    /1A/ In so concluding, the Authority notes particularly the absence
 of exceptions with respect to the portion of the Judge's decision
 finding that the Respondent violated section 7116(b)(1) of the Statute
 when its President called the Charging Party a "troublemaker" and said
 that she would "get" him or "get rid of" him.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ For convenience and reference, sections of the Statute
 hereinafter are, also, referred to without inclusion of the initial "71"
 of the Statute reference, e.g., 7116(b)(1) will be referred to, simply,
 as "16(b)(1)".
 
 
    /2/ April 25, 1981, was a Saturday and it appears that the date of
 this incident was, in all probability, Friday, April 24, 1981;  however,
 as neither the day