16:0464(70)CA - AFGE Local 1920 and DOD, Army, HQ III Corps and Fort Hood, Fort Hood, TX -- 1984 FLRAdec CA



[ v16 p464 ]
16:0464(70)CA
The decision of the Authority follows:


 16 FLRA No. 70
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1920, AFL-CIO
 Respondent
 
 and
 
 UNITED STATES DEPARTMENT OF DEFENSE
 DEPARTMENT OF THE ARMY, HEADQUARTERS
 III CORPS AND FORT HOOD
 FORT HOOD, TEXAS
 Charging Party
 
                                            Case No. 6-CO-20012
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in certain unfair labor practices alleged in the complaint, and
 recommending that the complaint be dismissed in its entirety.
 Thereafter, the General Counsel filed exceptions to the Judge's
 Decision, and the Respondent filed an opposition thereto.
 
    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 made by
 the Judge 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, the Authority
 hereby adopts the Judge's findings, conclusions and recommended Order.
 /1/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 6-CO-20012 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C. November 15, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, LOCAL 1920, AFL-CIO
                                Respondent
 
    and
    UNITED STATES DEPARTMENT OF DEFENSE,
    DEPARTMENT OF THE ARMY, HEADQUARTERS
    III CORPS AND FORT HOOD
    FORT HOOD, TEXAS
                              Charging Party
 
                                       Case No.: 6-CO-20012
 
    Joseph F. Henderson, Esq.
    For the Respondent
 
    Sharon D. Hill, Esq.
    For the Charging Party
 
    James E. Dumerer, Esq.
    Elizabeth A. Martinez, Esq.
    For the General Counsel
 
    Before:  FRANCIS E. DOWD
    Administrative Law Judge
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
 U.S.C. 7101, et seq.  It was instituted by the Regional Director of the
 Sixth Region of the Federal Labor Relations Authority by the issuance of
 a Complaint and Notice of Hearing dated July 26, 1982.  The Complaint
 was issued following an investigation of an unfair labor practice charge
 filed on February 14, 1982, by United States Department of Defense,
 Department of the Army, Headquarters III Corps and Fort Hood, herein
 referred to as the Agency or Charging Party.
 
    The Complaint alleges that American Federation of Government
 Employees, Local 1920, AFL-CIO, herein the Respondent, AFGE or Union, by
 its agent Herbert B. Stimmel, has since on or about February 18, 1982,
 interfered with, restrained and coerced employees in the exercise of
 their rights guaranteed in Section 7102 of the Federal Service
 Labor-Management Relations Statute by removing Gary D. Hammerschmidt
 from his position as Union steward for having testified in an unfair
 labor practice hearing conducted under the auspices of the Federal Labor
 Relations Statute.  By such conduct, Respondent is alleged to have
 violated Section 7116(b)(1) of the Statute.  Respondent denies any
 violation contending that it had independent reasons for removing
 Hammerschmidt as Union steward.
 
    A hearing was held in Temple, Texas, at which time the parties were
 represented by counsel and afforded full opportunity to adduce evidence
 and call, examine and cross-examine witnesses and argue orally.  Briefs
 filed by the General Counsel and Respondent have been duly considered.
 
    Upon consideration of the entire record in this case, including my
 evaluation of the testimony and evidence presented at the hearing, and
 from my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions of law, and recommended order.
 
                             Findings of Fact
 
    1.  The Charging Party is an agency within the meaning of 5 U.S.C.
 7103(a)(3) of the Statute.  The Respondent is a labor organization
 within the meaning of 5 U.S.C. 7103(a)(4) of the Statute.  Herbert B.
 Stimmel has occupied the position of President, American Federation of
 Government Employees, Local 1920 since 1978 and is an agent of the
 Respondent, acting on its behalf.  At all times material herein,
 Respondent has been recognized as the exclusive representative for
 appropriate units of employees as more fully set forth in G.C. Exh. No.
 1(d).  Included in these units of 4500 employees are firefighters who
 work on alternating shifts at four stations on the base.  At all times
 material herein, Respondent and the Agency have been parties to a
 collective bargaining agreement, effective July 19, 1976, covering
 employees in the appropriate unit.
 
    2.  In December 1981 or early January 1982, steward Gary
 Hammerschmidt went to the Civilian Personnel Office to ask what
 procedures were available to bring another union into Fort Hood to
 represent fire fighters.  He was told by Ms. Henson that this was a
 touchy subject, that AFGE had exclusive rights, and he was referred to
 the Federal Labor Relations Authority.  He then went to see Union
 President Herbert Stimmel who became rather excited and said there was
 no way it could be done, that the Union was representing the fire
 department and doing a fine job.  The credited testimony of Stimmel
 reveals that he instructed Hammerschmidt to drop the matter and assumed
 that his instruction would be followed.  Stimmel had no reason at this
 particular point in time of suspecting any disloyalty by Hammerschmidt
 who claimed to be merely inquiring on behalf of another employee, Scott
 Field.  /2/
 
    3.  On January 18, 1982, a hearing was conducted pursuant to the
 Federal Service Labor-Management Relations Statute concerning unfair
 labor practice Case No. 6-CA-1209-2.  The hearing was based upon a
 complaint brought by Local 1920 alleging that the Agency violated the
 Statute by threatening employees with disparate treatment and reprisal
 because of their activity on behalf of Local 1920.  Stimmel appeared at
 the hearing on behalf of Local 1920.  Sharon D. Hill, in her capacity as
 Counsel for the Agency, called steward Hammerschmidt as a witness.
 Hammerschmidt was there voluntarily and not pursuant to any subpoena.
 He was there as a character witness to vouch for the honesty of a
 supervisor with whom he, in his steward capacity, had met and dealt with
 on labor-management problems.  He did not tell his Union President in
 advance of the hearing that he would be a witness.  /3/ As a result,
 Stimmel was surprised when Hammerschmidt appeared at the hearing (Tr.
 110).  Hammerschmidt's testimony (G.C. Exh. No. 3) lasted only a few
 minutes, following which he left the witness stand and departed from the
 courtroom.  He had no conversation with anyone, including Stimmel and
 proceeded directly to his truck and returned to North Fort Hood.  /4/
 The hearing concluded at 2:05 p.m.
 
    4.  The following also occurred during the course of the January 18
 hearing.  During a break in the hearing, Hammerschmidt had a
 conversation with steward John Irwin and former steward David Weber
 outside the courthouse while they were leaning next to a pickup truck by
 a drainage ditch.  Irwin testified that Hammerschmidt discussed bringing
 the International Fire Fighters Union, hereinafter IFF, into Fort Hood.
 Hammerschmidt told them he had already made contact with IFF and a
 representative from IFF could come up and talk to them about it.
 According to Irwin, Hammerschmidt said he thought it would be a better
 union for us because it was a fire fighting union.  Weber testified that
 Hammerschmidt thought the IFF could better represent the fire
 department.  Irwin testified that he reported the above discussion to
 Stimmel at the hearing and Stimmel's reaction was "somewhat disgusted."
 According to Stimmel, he was informed at the hearing by other stewards
 that Hammerschmidt "still wanted to bring it (the other union) in."
 Based upon my review of the foregoing testimony and the demeanor of the
 witnesses, I credit Irwin, Weber and Stimmel as to what Hammerschmidt
 said and the fact that it was immediately reported to Stimmel.  /5/ What
 is not clear, however, is whether the phrase "at the hearing" means
 during the hearing (e.g. during a break or at lunchtime) or immediately
 upon conclusion of the hearing, while still at the courthouse.  I
 conclude that, at the latest, Stimmel learned about Hammerschmidt's
 activity on behalf of IFF at the conclusion of the hearing and before he
 returned to his office.
 
    5.  Stimmel returned to his office and wrote a two-sentence letter
 advising the Civilian Personnel Office that Gary Hammerschmidt was
 terminated as steward, effective that same day.  (G.C. Exh. No. 3).  The
 document was time-stamped by the Civilian Personnel Office as being
 received at approximately 3:00 p.m.  Stimmel also prepared a memorandum,
 dated the same day, notifying Gary Hammerschmidt as follows:
 
          Please consider this official notification that you are removed
       as a steward for Local 1920.
 
          Two recent events have led me to make this decision.
 
          1.  You went to C.P.O. to inquire about bringing another union
       into Fort Hood.  This is a violation of AFGE and the National
       Constitution, an extremely bad policy for a steward that is
       supposedly representing Local 1920.
 
          2.  Today, January 18, 1982, without consulting with me, you
       testified for Management in an Unfair Labor case that Local 1920
       had filed with F.L.R.A. and a complaint had been issued.  I can
       only assume from your actions that you are much more interested in
       representing Management than Local 1920.  Therefore, to avoid
       casting an unfavorable image and a possible filing against Local
       1920, I hereby terminate you as a representative of Local 1920.
 
 The above letter was received by Hammerschmidt a few days later, but by
 then he already knew of his removal.  As far as this record /6/ is
 concerned he learned about it when he called Stimmel around 4:00 p.m.
 the afternoon of the hearing to "explain my side of what I did." Stimmel
 told him he was going to remove him as steward and that he didn't care
 to listen to his side of the story.
 
    6.  At the hearing before me, Stimmel was asked about his letter of
 January 18 removing Hammerschmidt from his steward position.  Stimmel
 credibly testified that long prior to January 18 he had complaints about
 Hammerschmidt being "pro-management" by other employees, but he took no
 action to remove him because he didn't have a replacement available.
 /7/ The last complaint he received was at the hearing when he was told
 that Hammerschmidt was "still pursuing trying to get another union in."
 Later, Stimmel testified that "the incident of the continuing of the
 trying to get the other union in was the final straw" (Tr. 116, lines
 5-6, 19-20).  Stimmel was also asked why he included, as a reason for
 removal, Hammerschmidt's testimony at the FLRA hearing.  Stimmel replied
 that it was not specifically for giving testimony but, rather, because
 Hammerschmidt failed to consult the Union President in advance.
 Stimmel's concern was that a steward who appears to be pro-management
 loses his credibility with the membership and thus damages his
 effectiveness as a representative.  This adverse result could be
 avoided, according to Stimmel, if there was a logical explanation for
 Hammerschmidt's action (e.g. to help a friend) so that this explanation
 could be passed along to the other Union members.  On cross-examination,
 however, Stimmel also revealed that by failing to discuss this in
 advance Hammerschmidt had not shown him proper respect as president.
 Thus, it appears that Stimmel also was personally affronted by
 Hammerschmidt's surprise appearance as a witness and, as he told
 Hammerschmidt on the telephone later that day, he was embarrassed to
 admit to the Union attorney that Hammerschmidt was a Union steward.  On
 cross-examination, Stimmel was also asked why he refused to listen to
 Hammerschmidt's side of the story when Hammerschmidt called him after
 the hearing.  Bearing in mind that Stimmel had already taken action to
 remove Hammerschmidt as a steward as of the time of this conversation,
 Stimmel replied as follows:  "No, because he couldn't convince me
 otherwise, because he had done the final, ultimate thing to be removed
 in my opinion."
 
    Essentially the issue to be resolved herein is whether the "final
 ultimate" reason for Hammerschmidt's removal as a steward was his
 continuing efforts to bring in another Union or his giving testimony at
 the hearing.
 
                     Discussion and Conclusions of Law
 
    A. Applicability of the Statute
 
    Section 7102 of the Statute provides as follows with respect to
 "employee rights:"
 
          Each employee shall have the right to form, join, or assist any
       labor organization, or to refrain from any such activity, freely
       and without fear of penalty or reprisal, and each employee shall
       be protected in the exercise of such right . . . .
 
 Section 7116(a)(4) makes it an unfair labor practice for an agency:
 
          to discipline or otherwise discriminate against an employee
       because the employee has filed a complaint, affidavit, or
       petition, or has given any information under this chapter.
 
 No comparable language exists in Section 7116(b) with respect to unfair
 labor practices by unions.  Nevertheless, the Complaint herein alleges a
 violation of Section 7116(b)(1) which makes it an unfair labor practice
 for a labor organization "to interfere with, restrain, or coerce any
 employee in the exercise by the employee of any right under this
 chapter."
 
    The Complaint relies on a decision by the Authority in which it
 adopted an Administrative Law Judge's decision finding the union therein
 violated Section 7116(b)(1) by removing a union steward because he gave
 testimony in a Federal Labor Relations Authority hearing.  /8/ Pertinent
 language in the Authority's decision is as follows:
 
          In so adopting, the Authority finds that the right guaranteed
       to employees under section 7102 of the Statute to form, join, or
       assist any labor organization, or to refrain from such activity,
       is sufficiently broad to include within its scope the right of an
       employee to appear as a witness in an Authority proceeding to
       which a union is a party and to give testimony supporting or
       opposing the union's interest in that proceeding.  In this regard,
       it is no less interference with the section 7102 statutory right
       for a union to discipline or discriminate against an employee for
       giving testimony in an Authority proceeding than it is for an
       employer to do so as proscribed under section 7116(a)(4) of the
       Statute.  Such interference with employee rights under section
       7102 is thus a violation of section 7116(b)(1) of the Statute.
       However, this should not be construed as abrogating the union's
       control of its own internal affairs in the absence of a statutory
       violation such as here involved.
 
    The Authority also noted that its order requiring reinstatement of
 the steward to his union position was confined to the circumstances of
 the case where it was found that "except for his testimony at the
 Authority proceeding" the steward would not have been removed from his
 union position.
 
    Although the Authority is not bound by National Labor Relations Board
 precedent, Counsel for General Counsel correctly notes in her brief that
 the Authority's interpretation and finding is consistent with case law
 arising under the National Labor Relations Act which similarly contains
 no specific prohibition with respect to labor organizations.  /9/
 Moreover, in a recent decision by the United States Court of Appeals for
 the District of Columbia Circuit, the Court upheld a negotiability
 determination by the Authority and stated as follows:  /10/
 
          Reference to private sector precedent decided under the
       National Labor Relations Act (NLRA) is appropriate in this case .
       . . .  The lack of any prior judicial decisions under the Act,
       especially when combined with the relative paucity of applicable
       legislative history, makes analogies to comparable legal
       developments in the private sector relevant and useful as a guide
       for this court's reasoning.
 
          We take this opportunity, however, to stress that the degree of
       relevance of private sector case law to public sector labor
       relations will vary greatly depending upon the particular
       statutory provisions and legal concepts at issue.  This court, for
       instance, has recently recognized that the structure, role, and
       functions of the Authority were closely patterned after those of
       the NLRB and that relevant precedent developed under the NLRA is
       therefore due serious consideration.  /11/
 
 Although the Authority's NTEU decision has not yet reached the Circuit
 Courts under this Statute, there is court precedent for a similar
 conclusion reached by the NLRB in its interpretation of similar
 statutory provisions.  /12/
 
    B.  The Causation Test in "Mixed Motive" Cases
 
    By way of background, it should be noted that in cases arising under
 the Executive Order, the Assistant Secretary of Labor utilized an "in
 part" test in determining whether discrimination against an employee was
 motivated by his or her protected activities under the Order.  Thus,
 where an agency had a legitimate basis for its management action against
 an employee, but union considerations also played a part, the agency
 would be held to have violated the Order.  It was only necessary to show
 that one of the reasons for the agency's action was based upon the
 employee's union or protected activity.  /13/ The "in part" test used by
 the Assistant Secretary was no different than the test utilized by the
 National Labor Relations Board in cases involving the private sector.
 
    In a case arising under the Statute, however, the Authority decided
 in 1981 to reevaluate the test or standard previously used in Executive
 Order cases.  Thus the Authority said:  /14/
 
          This case is one of first impression under the Statute in that
       it, for the first time, affords the Authority an opportunity to
       address the question of what test should be applied under the
       Statute in situations where consideration of an employee's
       participation in activities protected by the Statute played a part
       in a management decision adversely affecting that employee.
 
 Citing the Supreme Court's decision in Mt. Healthy, /15/ the Authority
 concluded as follows:
 
          In such circumstances the Authority finds that the burden is on
       the General Counsel to make a prima facie showing that the
       employee had engaged in protected activity and that this conduct
       was a motivating factor in agency management's decision not to
       promote.  Once this is established, the agency must show by a
       preponderance of the evidence that it would have reached the same
       decision as to the promotion even in the absence of the protected
       conduct.
 
          In the Authority's view, the application of such a test will
       serve to balance the legitimate interests and purposes of
       government with those rights assured to employees and their
       representatives under the Statute.  Such a test serves the
       purposes of the Statute by making it possible to more thoroughly
       analyze the relationship between the agency action and the
       protected conduct of an employee.  Under this test, therefore,
       both the General Counsel and the agency will have an opportunity
       to adduce evidence as to the motivating factors involved in the
       action or decision of the agency which is the basis of the
       complaint.  If it is established by a preponderance of the
       evidence that the same action or decision of the agency would have
       taken place even in the absence of the protected activity, a
       complaint of violation of section 7116(a)(1) and (2) of the
       Statute will not be sustained.  Conversely, if it is not
       established by a preponderance of the evidence that the action or
       decision would have taken place in any event, the Authority will
       find a violation under section 7116(a)(1) and (2) of the Statute.
 
 In reaching this conclusion the Authority relied upon its own
 independent analysis of the Federal Labor-Management Relations Statute.
 /16/
 
    C. Application of the Authority's Test to this Case.
 
    The two-part test established by the Authority in the Internal
 Revenue case has been met herein.  On January 18, after completion of a
 Federal Labor-Management Relations Authority hearing, Union President
 Herbert Stimmel returned to his Union office and prepared two documents.
  One notified the Civilian Personnel Office that Hammerschmidt's status
 as a Union steward was terminated;  the other notified Hammerschmidt of
 the reasons for his termination.  His status as a member of the Union
 was not affected, nor was any action taken to affect his status as an
 employee.
 
    General Counsel's Exhibit No. 5, the Union's letter to Hammerschmidt,
 sets forth two reasons for his removal:  (1) his inquiries with respect
 to bringing in another union;  and (2) his testimony in the FLRA hearing
 without prior consultation with Stimmel.  /17/ On the fact of the
 document itself, it's not clear which of these two reasons was the
 motivating factor or real reason for the action taken.  However, the
 main theme running through the document is that Hammerschmidt's conduct
 was incompatible with his obligations as a steward representing Local
 1920.
 
    Under the Authority's new test, the General Counsel has the burden of
 making a prima facie showing that the employee engaged in protected
 activity and that this was a motivating factor in the decision to remove
 him from his steward's position.  I conclude, based on the documentary
 evidence and the testimony of Stimmel, that a motivating factor in
 removing Hammerschmidt was the fact that he appeared as a witness and
 gave testimony at the FLRA hearing.  Clearly, under the Authority's
 decision in the NTEU case, Hammerschmidt was engaged in protected
 activity.  Therefore, the General Counsel has met his burden in making a
 prima facie case.
 
    Respondent, in order to meet its burden of showing it would have
 reached the same decision (i.e. removal of Hammerschmidt as a steward)
 even in the absence of the protected conduct, introduced evidence
 showing that on the day of the hearing, Hammerschmidt talked to two
 stewards, Irwin and Weber, and attempted to sell them on the idea of
 bringing in the International Fire Fighters Union because it would
 represent them better than AFGE.  Stimmel was informed of this conduct
 by Hammerschmidt at the hearing.  There certainly is no doubt in my mind
 that Hammerschmidt, by attempting to promote acceptance of a different
 union, was engaging in conduct inconsistent and incompatible with his
 obligation of being loyal to the Union which appointed him steward.  If
 a union in conducting its own internal union business cannot rid itself
 of disloyal stewards it certainly cannot effectively function.  Prior to
 January 18, Hammerschmidt asked about the procedure for bringing in
 another union but he conveyed the impression he was asking on behalf of
 someone other than himself.  He was told to drop the matter.  It seems
 reasonable to me that Stimmel, when being told on the day of the hearing
 that Hammerschmidt was continuing to foster the idea of bringing in
 another union, now realized with certainty that Hammerschmidt was acting
 for himself, and quite clearly against the interests of Local 1920.
 Whatever doubts Stimmel may have had before about Hammerschmidt were
 resolved on January 18.  As steward Irwin testified, Stimmel was
 disgusted when he was informed at the hearing of Hammerschmidt's efforts
 to supplant AFGE with the International Fire Fighters.  As far as
 Stimmel was concerned this was the "final straw" and as soon as he
 returned to his office he took steps to remove Hammerschmidt as steward.
  In my opinion, Hammerschmidt's conduct in this respect was not
 protected activity and therefore the Union had a lawful reason for
 removing him, consistent with the Union's right to enforce discipline.
 /18/ Thus, Respondent has shown by a preponderance of the evidence that
 it had a motivating factor, independent from Hammerschmidt's protected
 activity.
 
    In determining which of two competing motives was the real or "but
 for" reason for removing Hammerschmidt as steward, I must rely of course
 on the Authority's test as enunciated in Internal Revenue Service.
 Based upon my evaluation of the entire record in this proceeding, I find
 and conclude that a preponderance of the evidence establishes that
 Respondent Union, even in the absence of Hammerschmidt's protected
 activity, would have removed him from his steward position on January
 18, 1982 because of his efforts to bring in a rival union.  /19/ From
 the Union's point of view, Hammerschmidt's protected activity paled in
 comparison to his unprotected activity of bringing in another union.
 This latter conduct was in the nature of a "capital offense" and I
 believe it triggered the decision to remove Hammerschmidt as steward.
 Accordingly, I conclude that Respondent did not violate Section
 7116(b)(1) as alleged in the Complaint.
 
                                   ORDER
 
    It is hereby ordered that the Complaint in Case No. 6-C0-20012 be,
 and it hereby is, DISMISSED in its entirety.
 
                                       FRANCIS E. DOWD
 
    Dated:  March 28, 1983
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In adopting the Judge's decision, the Authority notes with
 approval his reliance on the decision of the U.S. Supreme Court in Mt.
 Healthy City School District Board of Education v. Doyle, 429 U.S. 274
 (1977).  Further, subsequent to the Judge's decision herein, the Supreme
 Court issued its decision in N.L.R.B. v. Transportation Management
 Corp., . . . U.S. . . . , 103 S.Ct. 2469 (1983), finding permissible and
 therefore affirming the National Labor Relations Board's construction of
 the National Labor Relations Act, as amended, which is similar to the
 approach taken by the Authority in "dual motive" cases.  See, e.g.,
 Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981).
 
 
    /2/ Scott Field was called as a rebuttal witness and he testified
 that, in fact, he did ask Hammerschmidt to find out how to bring in
 another union.  However, it apparently was not an isolated inquiry.  The
 two of them discussed the matter several times at every shift change
 over a period of three or four weeks.  Field testified that he thought a
 steward would be better able to obtain the requisite information and he
 asked Hammerschmidt, who worked on A shift, because it was more
 "convenient" than asking a B shift steward.  Irwin, Street, Leslie, and
 Weber (all of whom testified for the Union herein) were stewards on the
 B shift.  I conclude that Field's inquiry was prior to January 18, 1982
 and, in so doing, rely on Hammerschmidt's recollection of the date of
 his meeting with Stimmel.
 
 
    /3/ I do not credit Hammerschmidt's testimony that he attempted to
 call Stimmel during the 2-day period prior to the hearing and I note he
 didn't talk to Stimmel at the hearing.  The record est