16:0952(128)CA - Air Force, Lowry AFB, Denver, CO and AFGE Local 1974 -- 1984 FLRAdec CA
[ v16 p952 ]
The decision of the Authority follows:
16 FLRA No. 128 UNITED STATES AIR FORCE LOWRY AIR FORCE BASE DENVER, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1974 Charging Party Case Nos. 7-CA-30363 7-CA-30364 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled consolidated proceeding finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of the complaint with respect to them. Thereafter, the Respondent and the General Counsel filed exceptions to the Judge's Decision and the Respondent filed an opposition to the General Counsel's exceptions along with cross exceptions. 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. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the United States Air Force, Lowry Air Force Base, Denver, Colorado, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing Louise Figueroa in the exercise of her duties as a steward of the American Federation of Government Employees, AFL-CIO, Local 1974, by calling her a "troublemaker" and by inserting references to her union activities in her performance appraisal. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Post at its facilities at Lowry Air Force Base, copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Commander of Lowry Air Force Base, or his designee, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to 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) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, 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 in Case Nos. 7-CA-30363 and 7-CA-30364 of the consolidated complaint be, and they hereby are, dismissed. Issued, Washington, D.C., December 18, 1984 /s/ HENRY B. FRAZIER III Henry B. Frazier III, Acting Chairman /s/ RONALD W. HAUGHTON Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT interfere with, restrain, or coerce Louise Figueroa in the exercise of her duties as a steward of the American Federation of Government Employees, AFL-CIO, Local 1974, by calling her a "troublemaker" and by inserting references to her union activities in her performance appraisal. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. . . . (Activity 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 VII, Federal Labor Relations Authority, whose address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224. -------------------- ALJ$ DECISION FOLLOWS -------------------- UNITED STATES AIR FORCE LOWRY AIR FORCE BASE DENVER, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1974 Charging Party Case Nos. 7-CA-30363 7-CA-30364 Major Wade B. Morrison, Esquire For the Respondent Mr. Dariel B. Case For the Charging Party Daniel Minahan, Esquire For the General Counsel Before: GARVIN LEE OLIVER Administrative Law Judge DECISION Statement of the Case This decision concerns a consolidated unfair labor practice complaint issued by the Regional Director, Region Seven, Federal Labor Relations Authority, Denver, Colorado against the United States Air Force, Lowry Air Force Base, Denver, Colorado (Respondent), based on charges filed by the American Federation of Government Employees, AFL-CIO, Local 1974 (Charging Party or Union). The complaint alleged, in substance, that Respondent violated sections 7116(a)(1) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), by virtue of certain statements made by its agents to employees who represent the Union in the months of February, March, and April 1983. Specifically, the General Counsel alleged that Lawrence Gabel, a supervisor, gave Union steward Louis Figueroa, one of his subordinates, a performance appraisal containing the comment that Figueroa spent too much time on Union activity. The General Counsel also alleged that Gabel told Figueroa she was nothing more than a troublemaker since becoming a Union steward. Calvin Mullins, Respondent's Commissary Officer, is alleged to have made a similar remark, telling Figueroa that he would not want to transfer a troublemaker from one section to another. The General Council also claimed that Mullins told Union steward Vicki Sansom, in connection with Union literature distributed by Sansom, that he did not want employees writing to their Congressmen about the Commissary. On August 12, 1983, Respondent filed an Answer denying the unfair labor practices alleged in the Consolidated Complaint. A hearing was held in Denver, Colorado. The Respondent, Charging Party, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and the General Counsel filed helpful briefs. Based on the entire record, /1/ including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact I. The Performance Appraisal Received By Figueroa From Gabel on February 16, 1983 A. Findings of Fact Louise Figueroa has been a Union steward since November 1982. She represents the Commissary's grocery, produce, and meat department employees, which amount to about 60% of the employees in the Commissary. (Tr. 117). From January or February of 1982 to April of 1983, her immediate supervisor was Lawrence Gabel, the produce manager. (Tr. 19, 79). Gabel reports to Calvin Mullins, the Commissary Officer. (Tr. 105, 113). Figueroa engaged in a broad range of representational activities on behalf of the Charging Party, including negotiations concerning working conditions, handling employee questions and complaints, and investigating potential grievances. When dealing with management, she dealt primarily with Gabel and Mullins. (Tr. 18). There was considerable friction between Figueroa and Gabel. They had heated arguments over complaints employees had raised with Figueroa. Gabel was concerned that Figueroa would then take such complaints "right to the front office." (Tr. 87-88; 94-95). Gabel hired an attorney because he was concerned about Figueroa's complaints to Mullins, and told her he was suing her for defamation of character. (Tr. 22, 94). Figueroa and Gabel also had disagreements over the procedure to be followed in obtaining official time to engage in representational activities. Figueroa's practice was to respond to employee complaints on the spot, if it could be done briefly, and to request official time only if the response required more time. (Tr. 54). Gabel counseled Figueroa on a number of occasions for her failure to obtain official time in order to conduct all Union business. Some of these counselings were justified. (Tr. 20). However, I credit Figueroa's testimony that there were other occasions when Gabel's criticism and presumption that she was conducting Union business without being on official time were not justified, as she was not conducting Union business, or was not even on duty on some occasions when he criticized her. (Tr. 44, 52-53). Once a year, each employee at the Commissary receives a performance appraisal or "CPAS." On February 16, 1983 Gabel told Figueroa he wanted to discuss the CPAS form he had prepared for her. The CPAS form contains 19 rating categories within which a supervisor may rate an employee on a scale of 1 through 9, with 1 being the lowest rating and 9 being the highest. (G.C. Exhs. 2, 3, and 4). Figueroa noticed that Gabel had rated her at 3 and 4 in all 19 categories. (Tr. 25). Moreover, in category 19, /2/ Gabel had written, "spends too much time on Union business." Gabel explained that he put the comment on her CPAS because she was conducting Union business at the work place on duty time without asking for official time. (Tr. 45-46, 81-82). Figueroa told Gabel she thought the CPAS was unfair and immediately took the matter up with Mr. Mullins. (Tr. 26-27). The next day Gable told Figueroa that he had destroyed the CPAS and showed her another CPAS which he had prepared. (Tr. 30, G.C. Exh. 4). The marked were higher, and the comment he had made on the other form did not appear. He did not otherwise apologize or explain the destruction of the first form. Ms. Figueroa was still dissatisfied with the rating, but she and Gabel both signed it. (Tr. 31). Shortly thereafter, Figueroa was informed by the assistant store manager that Gabel would prepare still different CPAS forms for all employees under his supervision. (Tr. 31). Gabel prepared the final version of Figueroa's appraisal on February 21, 1983. On this appraisal, he rated her a 6 or 7 in all 19 categories. Gabel considered the final appraisal to be very good, and the most accurate reflection of Figueroa's performance during the rating period. (Tr. 96, 97, 103). This version was added to her civilian personnel file. (G.C. Exh. 3). B. Conclusions of Law The General Counsel contends that Respondent violated section 7116(a)(1) of the Statute when Gabel included the remark, "spends too much time on Union business," on the first performance appraisal form he prepared for Figueroa on February 16, 1983. Respondent claims that the statement, as accompanied by Mr. Gabel's explanation, did no more or less than Mr. Gabel's previous counselings; it merely discouraged union activity not pursued in a proper manner. Respondent also contends that, in any event, any violation is de minimus, as the appraisal was merely a draft appraisal of no legal effect and was subsequently replaced. I agree with the General Counsel that a violation has been established. The comment on the performance appraisal, on its face, includes all union activity. It cannot be read to apply strictly to the steward's failure to secure permission to conduct representational activities on official time, as Gabel stated in his explanation. This is particularly true in view of my findings that there were occasions when Gabel did not have a legitimate reason for counseling Figueroa about conducting union business without being on official time. The comment is the performance appraisal indicated that Figueroa's protected union activity was a negative factor in her performance rating. The suggestion of any relationship between the employee's protected activity and his or her employment status violates the Statute. See Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 12 FLRA 667, 679-680 (1983). Here the statement clearly had a tendency to interfere with, restrain, or coerce the employee in the exercise of her rights under the Statute to freely form, join, or assist a labor organization as a steward. Respondent's conduct through Gabel is not considered to be de minimus. Gabel did not change the appraisal immediately, but the next day, and then apparently only because Figueroa took her complaint to the second-level supervisor. There was also no unambiguous, specific repudiation of the coercive conduct, or assurance that in the future the employer will not interfere with statutory rights. Cf. Safeway Stores, Inc., 266 NLRB No. 66, 113 LRRM 1101, 1101-02 (1983). In United States Department of Interior, Office of the Secretary, U.S. Government Comptroller For the Virgin Islands, 11 FLRA 521, 522 fn. 2 (1983), the Authority noted that the agency had removed a performance appraisal containing a reference to protected activity from an employee's official personnel folder, but nevertheless ordered the agency to cease and desist from such conduct and to post an appropriate notice. See also Department of Labor, Office of Workers Compensation Programs, 11 FLRA 77, 83 (1983). II. Gabel's Alleged Comment That Ms. Figueroa Had Been Nothing More Than A Troublemaker Since She Became A Union Steward A. Findings of Fact In January 1983, the Union and Respondent negotiated an agreement regarding the distribution of hours to part time employees in the Commissary. Respondent agreed to distribute any extra hours to part time employees who wanted them, according to an equitable rotation. Figueroa, who attended the negotiations, was assigned to provide Mullins with a list of part time employees willing to work additional hours. (Tr. 33; G.C. Exh. 5). Figueroa monitored the implementation of the agreement regarding equitable distribution of hours by observing the previous day's sign-in sheets when she signed-in to work each day. By early March 1983, these sign-in sheets were no longer kept on a clipboard on the produce desk, so Figueroa asked Mullins for copies of the sign-in sheets. On March 11, 1983 Mullins advised Figueroa that Gabel would be instructed to provide her with the sign-in sheets. (Tr. 35-36). On March 12, 1983 Figueroa asked Gabel for copies of the sign-in sheets for the previous two weeks, which amounted to ten pieces of paper. Gabel said he did not think he had to furnish this information. Figueroa explained that Mullins had agreed to furnish it, Gabel then told Figueroa, "Since becoming the Union steward, you have become nothing but a troublemaker. You're just like Margaret Moore /3/ and she taught you well." Figueroa told Gabel to "grow up," and she would talk to Mullins again about obtaining the sign-in sheets. Gabel replied that Figueroa had no right demanding anything of him. (Tr. 35-36). Figueroa returned to Mullins, explained the situation, and Mullins instructed Gabel to make the copies available. Figueroa later obtained the copies from Gabel /4/ (Tr. 36-38). B. Conclusions of Law The determination of whether statements violate section 7116(a)(1) by interfering with, restraining, or coercing any employee in the exercise of his or her statutory rights must take into careful account the entire circumstances surrounding the making of the statements. Department of the Navy, Portsmouth Naval Shipyard, 7 FLRA 766, 777 (1982). Figueroa was acting for the Union within the meaning of Section 7102 of the Statute when she asked Gabel for the sign-in sheets in order to police the administration of a collective bargaining agreement. Gabel's statement, "Since becoming a Union steward, you have become nothing but a troublemaker. You're just like Margaret Moore and she taught you well," demonstrated Gabel's hostility to Figueroa's activities as a Union steward and ominously linked Figueroa with an employee who had filed complaints with the Union and was no longer employed by the Commissary. Gabel's remark would cause a reasonable employee to "think twice" before requesting documents which the Union has a right to obtain under the Statute or otherwise representing the Union. The statement therefore interfered with, restrained, or coerced Figueroa in the exercise of her rights and violated section 7116(a)(1) of the Statute, as alleged. Internal Revenue Service, Louisville District, 11 FLRA 290 (1983). III. Mullins Statement to Figueroa Regarding Her Request For Transfer A. Findings of Fact On April 5, 1983 Figueroa and Union steward Nicki Sansom met with Commissary Officer Mullins. Figueroa reiterated previous requests she had made for a transfer from the produce department to the grocery department. She based her request on her previous experience in the grocery department and Mullin's expressed desire to utilize all employees to the best of their capabilities. (Tr. 38-39). Figueroa also mentioned her desire to transfer because of her conflict with supervisor Gabel. (Tr. 70). According to Figueroa, Mullins said it was not his "policy to transfer a problem from one department to another. I don't necessarily mean that you're a problem, but the problems that have arisen in your department I wouldn't want transferred to another department." (Tr. 39). According to Sansom, Mullins replied, "Why would I want to transfer somebody who causes trouble or friction in one area into another department of the store?" (Tr. 70-71). Mullins testified that he responded, "I'd rather for her to learn to get along in the section she was assigned to and not to transfer into another section until she learned to get along with the people she was working with." (Tr. 106). Mullins stated that if something became available, he would see what he could do. (Tr. 71). About a week after the meeting, Figueroa was transferred to the grocery department. Her personnel records, however, still show that she is employed in the produce department. (Tr. 40). Mullins testified that prior to Figueroa's request for transfer, he had been advised by her supervisor, Gabel, that Figueroa was causing dissention and was generally not getting along with people. He knew she did not get along with Gabel. (Tr. 106, 114-115, 126-127). He stated that his decision had nothing to do with Figueroa's union duties; he expected she would perform union duties regardless of the section to which she was assigned. (Tr. 106-107). B. Conclusions of Law As noted, the Statute is designed to protect employees from statements suggesting any relationship between an employee's protected activity and that employee's present or future employment status with an agency. Department of Health and Human Services, supra, 12 FLRA at 679-680. Thus, management commits an unfair labor practice in determining or suggesting that an employee's protected union activity renders him or her unsuitable for transfer to a new or different position. Corpus Christi Army Depot, Corpus Christi, Texas, 4 FLRA 588, 597-598 (1980). However, as noted, all of the circumstances surrounding the statements must be carefully considered. Department of the Navy, Portsmouth Naval Shipyard, supra, 7 FLRA at 777. I credit steward Sansom's testimony that Figueroa referred at the outset to her "conflict" with her supervisor, Gabel, as one of her reasons for requesting a transfer. Mullin's response picked up on this undefined "conflict." It has not been established that Mullins' response and reference to Figueroa's "problems," "trouble," "friction," or "failure to get along with people" in her department referred to Figueroa's union activities. Given the circumstances, Mullins response is shrouded in some ambiguity. Under all the circumstances, it would not be proper to "choose the unlawful and eschew the innocent of two equally available interpretations." Department of the Navy, Portsmouth Naval Shipyard, 6 FLRA 491, 496 (1981). Accordingly, a preponderance of the evidence does not support a violation of section 7116(a)(1) in this instance. Department of the Navy, Portsmouth Naval Shipyard, supra; Department of the Navy, Portsmouth Naval Shipyard, 7 FLRA 766, 777 (1982). IV. Mullins' Conversation With Sansom Regarding The Union Sponsored Letter to Congress (Case No. 7-CA-60363 A. Findings of Fact On or about January 28, 1983, it was brought to Commissary Officer Mullin's attention that a letter which did not pertain to Commissary business had been left on the copying machine by Union steward Sansom. The letter was addressed to Congresswoman Schroeder and urged that military commissaries be closed on holidays so personnel could spend the time with their families. /5/ The letter asserted that local stores were adequate to service the needs of military personnel on holidays. (Tr. 107). Mr. Mullins understood that the letter had been drafted by the Union, and that the Union was encouraging employees to send individual copies of the letter to their Congressional representatives. (Tr. 107, 110). Mr. Mullins contacted Cheryl Lepard, chief of labor and employee relations, and read her the letter. He asked what his options were. Ms. Lepard informed him that the Union could distribute the letter, but they could not distribute it in duty areas or on duty time. (Tr. 129-130). Mr. Mullins subsequently called Ms. Sansom to his office. After a discussion about the use of the copier, he told her she could not pass out the letter on duty time or in duty areas. (Tr. 63, 108). He also stated that employees should not send the letter. (Tr. 111-112). He said the letter was bad publicity for the Commissary, because it would give more ammunition to some Congressmen who wanted to close commissaries. It would be ammunition from the actual commissary employees themselves. He stated that the letter would hurt her and the other employees more than it would help. (Tr. 107-108, 111-113). Mullins took no further action to disseminate his opinion, or to find out whether the letter was distributed among employees or mailed. (Tr. 108). B. Conclusions of Law The General Counsel contends that Respondent violated section 7116(a)(1) when Mullins told the Union steward that she and other employees should not send the letter to Congress. Respondent defends on the basis that Mr. Mullins was simply expressing his personal opinion or predicting adverse effects beyond the employer's control. Respondent claims the opinion or prediction was not coupled with any threat of reprisal or promise of benefit and was not made under coercive conditions. See section 7116(e) and Oklahoma City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA 159 (1981). Section 7102 of the Statute expressly assures to each employee the right to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to the Congress. The standard by which one may determine interference, restraint, or coercion is not the subjective perceptions of the employee, nor is it the intent of the employer. Rather, the test is whether, under the circumstances of the case, the employer's conduct may reasonably tend to coerce or intimidate the employee, or, in the case of a statement, whether the employee could reasonably have drawn a coercive inference from the statement. Federal Mediation and Conciliation Service, 9 FLRA 199 (1982); Army and Air Force Exchange Service, Ft. Carson, Colorado, 9 FLRA 620 (1982); Department of the Treasury, Internal Revenue Service, Louisville District, 11 FLRA 290 (1983). There is no dispute that Mullins summoned Sansom to discuss with her what he recognized as a Union sponsored letter which employees were to use in writing their Congressmen. Mullins expressed his displeasure over the letter and told Sansom that employees should not send the letter; the letter could hurt her and the other employees more than it would help, because there were those who would use it to fuel their efforts to close down commissaries. Mullins' statements were, no doubt, designed to discourage Sansom from passing out the letter and to discourage her, and through her possibly other employees, from sending the letters. It is concluded from all the circumstances that a reasonable employee would interpret Commissary Officer Mullins' remarks as statements of agency management and not merely expressions of his own personal views. The remarks were made by the head of the Commissary, not a lower-level supervisor, and were addressed to Sansom in Mullins' office, to which she had been summoned for the purpose. Compare Army and Air Force Exchange Service, Ft. Carson, Colorado, supra, 9 FLRA at 626. Mullins' statement contained no explicit or implicit threat of reprisal or force or promise of benefit. The thrust of his remarks, that the letter would be harmful to employees and could possibly play a part in closing down the Commissary, was simply a prediction of a possible adverse effect or result of the Union's letter writing campaign. It was clear from Mullins' remarks that neither he nor the Commissary had an interest in, or desired, to bring about this adverse result. Rather, the action would possibly be taken by outside third parties, namely, the Congress. Under the circumstances, the statement was protected free speech and was not made under coercive conditions and would not tend to coerce a reasonable employee. Federal Mediation and Conciliation Service, 9 FLRA 199 (1982); Internal Revenue Service, Mid-Atlantic Service Center, 4 A/SLMR 520 (1974); Department of Transportation, Federal Aviation Administration, Denver Tower, Colorado, Case No. 7-CA-823, ALJDR 18 (1983). Compare United States Army and Air Defense Center and Fort Bliss, Fort Bliss, Texas, 12 FLRA 719, 727 (1983) where a violation of section 7116(a)(1) was found where the supervisor implicitly threatened to make adverse changes in personnel policies as a consequence of the union raising an issue. It is also noted that although the proposed letter was drafted by the Union, it was intended to be adopted and sent by individual employees as a statement of their own individual views and not as their presentation to the Congress of the views of the Union. Section 7102 protects representatives of labor organizations in their presentation of the views of the labor organization to Congress. Therefore, even assuming that telling Ms. Sansom not to send the letter interfered with her communicating with a member of Congress, such conduct would be a violation of 5 U.S.C. 7211 /6/ and not interference with section 7201 rights or a violation of section 7116(a)(1). Cf. United States Air Force, Lackland Air Force Base, 6 A/SLMR 226, 6 A/SLMR 84, 86 (1976). Based on the foregoing and conclusions, it is recommended that the Authority issue the following Order. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the United States Air Force, Lowry Air Force Base, Denver, Colorado, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing Louise Figueroa, or any other employee, by inserting any remark in any appraisal form or reference letter regarding the protected union activities of Louise Figueroa or any other employee. (b) Making any statement or comment which interferes with, restrains, or coerces Louise Figueroa or any other employee in the exercise of the right accorded him or her by the Federal Service Labor-Management Relations Statute to act for a labor organization in the capacity of a representative and the right, in that capacity, to represent the views of the labor organization to appropriate authorities. (c) In any like to related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute. (a) Post at its facilities 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 the Commander and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Commander shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (b) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director, Region Seven, Federal Labor Relations Authority, Denver, Colorado, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith. IT IS FURTHERED ORDERED, that the complaint, in all other respects, be, and it hereby is, DISMISSED. /s/ GARVIN LEE OLIVER GARVIN LEE OLIVER Administrative Law Judge Dated: December 7, 1983 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT interfere with, restrain, or coerce Louise Figueroa, or any other employee, by inserting any remark in any appraisal form or reference letter regarding the protected union activities of Louise Figueroa or any other employee. WE WILL NOT make any statement or comment which interferes with, restrains, or coerces Louise Figueroa or any other employee in the exercise of the right accorded him or her by the Federal Service Labor-Management Relations Statute to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to appropriate authorities. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. . . . (Agency or Activity) Dated: . . . BY: . . . (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice of compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region 7, whose address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202, and whose telephone number is: (303) 837-5224. --------------- FOOTNOTES$ --------------- /1/ Respondent's Motion to Correct the Transcript is granted; the transcript is hereby corrected as set forth therein. /2/ It reads, "Compared to other individuals doing about the same work, does the employee show more initiative in starting, carrying out and completing projects?" A rating of 3 would correspond to "less initiative." A rating of 4 would correspond to "slightly less initiative." (G.C. Exhs. 2, 3 and 4) /3/ Margaret Moore was a former Commissary employee who filed several complaints with the Union alleging that management was discriminating against her. (Tr. 37). /4/ Gabel testified that he was busy when Figueroa asked for the time sheets and felt she could obtain the information elsewhere. He did not remember calling her a troublemaker, but claims Figueroa told him he was paranoid and had a problem. (Tr. 83-85). I credit Figueroa's version of this incident. /5/ I credit Mr. Mullins' testimony as to the content of the letter in issue. /6/ 5 U.S.C. 7211 provides: The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a Committee or Member thereof, may not be interfered with or denied. See the earlier version of this law, Public Law 89-554, Sept. 6, 1966, 80 Stat. 523, which, prior to the 1978 amendment, was codified as 5 U.S.C. 7102.