16:0952(128)CA - Air Force, Lowry AFB, Denver, CO and AFGE Local 1974 -- 1984 FLRAdec CA



[ v16 p952 ]
16:0952(128)CA
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 r