17:0341(50)CA - GSA Central Office, Region IV, Interagency Motor Pool, Kennedy Space Center and AFGE -- 1985 FLRAdec CA



[ v17 p341 ]
17:0341(50)CA
The decision of the Authority follows:


 17 FLRA No. 50
 
 GENERAL SERVICES ADMINISTRATION
 CENTRAL OFFICE, REGION IV
 INTERAGENCY MOTOR POOL
 KENNEDY SPACE CENTER
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 
                                            Case No. 4-CA-1058
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in the
 unfair labor practices alleged in the complaint and recommending that it
 be ordered to cease and desist therefrom and take certain affirmative
 action.  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.
 
    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 and finds that no prejudicial error was committed.  The rulings
 are hereby affirmed.  Upon consideration of the Judge's Decision and the
 entire stipulated record, the Authority hereby adopts the Judge's
 findings, conclusions and recommendations only to the extent consistent
 herewith.
 
    The Judge found, based upon a stipulated record without a hearing,
 that the Respondent interfered with employees' protected rights under
 section 7102 of the Statute, in violation of section 7116(a)(1) of the
 Statute, by discontinuing its original termination plan and discharging
 five rather than two temporary drivers because of the Union's "second
 guessing." The Authority disagrees.
 
    Thus, the Authority concludes that the evidence contained in the
 stipulated record fails to support the Judge's finding that the
 Respondent's actions interfered with, restrained or coerced employees in
 the exercise of rights protected by the Statute.  In this regard, as
 noted by the Judge, the Union president was not acting as the exclusive
 representative of the temporary drivers at the meeting of June 19
 inasmuch as they were not members of the bargaining unit, and, as
 further noted by the Judge, the record also does not indicate in what
 capacity he was attending that meeting along with the Respondent's Equal
 Employment Counselor.  Indeed, there is no record evidence that the
 temporary drivers either requested his assistance or even knew that he
 would seek to act on their behalf, or were otherwise engaging in
 protected activity under section 7102 of the Statute.  Moreover, there
 is no record evidence that the supervisor's statement at the June 19
 meeting that he was tired of being second guessed concerning his
 decision was directed toward the Union.  Accordingly, the Authority
 concludes that the General Counsel has failed to sustain the burden of
 proving the allegations of the complaint that the Respondent violated
 section 7116(a)(1) of the Statute by terminating several non-unit
 temporary employees because the Union intervened on their behalf and
 attempted to discuss their terms and conditions of employment.  Cf.
 Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
 Hampshire, 16 FLRA No. 21 (1984) (no evidence was presented that
 discipline of a supervisor had a chilling effect on the exercise of
 protected employee rights).
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 4-CA-1058 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., March 27, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                                       Case No. 4-CA-1058
 
 
 
 
 
 
 
 
 
 
 -------------
 
 OLLOWS -------
       For the Respondent
 
    Barbara S. Liggett, Esquire
       For the General Counsel
 
    Mr. Homer Mays
       For the Charging Party
 
    Before:  BURTON S. STERNBURG
       Administrative Law Judge
 
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.Section 7101,
 et seq., and the Rules and Regulations issued thereunder, Fed. Reg.,
 Vol. 45, No. 12, January 17, 1980, and Vol. No. 46, No. 154, August 11,
 1981, 5 CFR Chapter XIV, Part 2411, et seq.
 
    Pursuant to an amended charge first filed on July 10, 1981, by the
 American Federation of Government Employees, AFL-CIO (hereinafter called
 the AFGE or Union), a Complaint /1/ and Notice of Hearing was issued on
 September 29, 1981, by the Regional Director for Region IV, Federal
 Labor Relations Authority, Atlanta, Georgia.  The , Complaint alleges
 that the General Services Administration Central Office, Region IV,
 Interagency Motorpool Kennedy Space Center (hereinafter called the GSA
 or Respondent), violated Section 7116(a)(1) of the Federal Service
 Labor-Management Relations Statute (hereinafter called the Statute or
 Act), by virtue of its actions in terminating temporary employees
 Charles Parker, Walter Eldridge, Joseph Mitchell, and Shirley Shafer
 because Mr. Homer Mays, President of Local 2498, intervened on their
 behalf and attempted to discuss their terms and conditions of
 employment.
 
    Following the issuance of the Complaint and Notice of Hearing, all
 parties entered into a stipulation of facts and exhibits and jointly
 filed a motion with the Office of Administrative Law Judges wherein they
 waived oral hearing and requested that the record be opened for the sole
 purpose of receiving the stipulation and exhibits and that a decision be
 rendered solely on the basis of such stipulation of facts and exhibits,
 and the parties post-hearing briefs.  The motion was granted on March
 16, 1982, and the parties were given until April 16, 1982, to file
 post-hearing briefs.  The General Counsel and the Respondent submitted
 post-hearing briefs which have been duly considered.
 
    Upon the basis of the entire record, which of course, consists of the
 stipulation of facts, stipulation of exhibits, and the parties
 post-hearing briefs, I make the following findings of fact, /2/
 conclusions, and recommendation.
 
                             Findings of Fact
 
    The Union Local 2498 was granted exclusive recognition for an
 appropriate unit, as set forth below, on February 4, 1966.  On September
 10, 1980, the Federal Labor Relations Authority certified a unit
 consolidating all AFGE represented bargaining units with GSA in Case No.
 3-UC-1.  Since that date, the American Federation of Government
 Employees (the national Union) has been the exclusive representative.
 On November 21, 1974, an agreement between GSA Region 4 and Union Local
 2498 was put into effect.  Upon consolidation of the AFGE units, a
 written agreement between GSA and AFGE outlined interim measures for the
 relationship.  On February 24, 1981, AFGE cancelled the interim
 agreement, notified GSA that it would assume a national relationship.
 On February 24, 1981, AFGE cancelled all collective bargaining
 agreements.  The parties hereto agree that as relates to all matters and
 proceedings herein, the Union has been and remains the exclusive
 representative of the employees of Respondent in an appropriate unit as
 set forth and described in a collective bargaining agreement, which has
 been in effect since on or about November 21, 1974.
 
    The appropriate unit set forth in the agreement includes all civil
 service employees of the Kennedy Space Center with Florida duty stations
 including those in a TAPER status, who are classified as both
 non-supervisory and non-professional, excluding professional,
 supervisory, managerial, temporary and confidential employees.
 
    In a letter dated June 17, 1981, the National Aeronautics and Space
 Administration herein NASA, notified Respondent that due to NASA budget
 limitation, the funding for five of the seven temporary drivers employed
 by Respondent and utilized by NASA would terminate effective June 26,
 1981.  Respondent had, at NASA's request, previously hired seven drivers
 on a temporary appointment not to exceed one (1) year.  Since these
 seven drivers were being funded by NASA on a reimbursable basis to
 Respondent, the termination of that funding required the immediate
 termination of those five employees unless Respondent was able to
 continue funding.
 
    On or about June 18, 1981, a meeting was arranged by Roger Willadsen,
 Fleet Manager for Respondent's interagency motor pool at the Kennedy
 Space Center.  In attendance at that meeting was Mr. Willadsen and Mr.
 Homer Mays, President of Union Local 2498.  /3/ Mr. Mays and Mr.
 Willadsen discussed NASA's request for the termination of five temporary
 drivers and the plan Mr. Willadsen had developed for the absorption of
 three of those five employees through detail of permanent employees.
 Since the action would impact on permanent employees within the
 collective bargaining unit, Mr. Willadsen arranged the discussion
 meeting.  Mr. Willadsen projected this absorption plan to be six weeks
 in duration.
 
    The plan as outlined at this meeting did not identify the three
 employees to be absorbed, nor did it identify the two remaining
 employees to be terminated.  Mr. Mays made no specific objections to the
 plan, though he did make the recommendation that terminations be made in
 accordance with the collective bargaining agreement.  Mr. Willadsen
 indicated that performance would be a significant criteria in his
 determination.
 
    After discussions and after receiving recommendations from his line
 supervisors, and after determining that the affected permanent employees
 had voluntarily agreed to the temporary details, Mr. Willadsen informed
 the temporary drivers of the planned disposition of all seven temporary
 drivers.  The original planned disposition was as follows:
 
          (a) Employees Eldridge and Parker (males) would continue to be
       funded by NASA.
 
          (b) Employees Mitchell (male), Golden and Shafer (females) were
       to be absorbed by Respondent.
 
          (c) Employees Fisher and Ehrke (females) were to be terminated.
 
    On or about June 19, 1981, after announcement of the employee
 disposition, Mr. Mays requested a second meeting with Mr. Willadsen.  In
 attendance at that meeting were Mr. Mays, accompanied by Verdell Fayson,
 the Equal Employment Counselor.  /4/ At this meeting, Mr. Mays sought to
 discuss the criteria being used to determine which employees should be
 terminated and which employees should be retained.  Mr. Mays challenged
 the determination on the basis that:  (a) seniority was not used as a
 criteria, and (b) no equal employment counseling was sought before
 making the determination to terminate only females.  Mr. Willadsen
 maintained that the plan and the method of implementation was a
 management decision.  As the discussion progressed, Mr. Willadsen
 advised Mr. Mays and Fayson that he was tired of being "second guessed"
 concerning this decision and, accordingly, he would rescind his original
 planned disposition for the temporary drivers and would terminate five
 drivers rather than two.  Mr. Willadsen then contacted Respondent's
 Region IV, Atlanta office of personnel by telephone to confirm his
 decision to terminate all five of the temporary drivers.  At the
 conclusion of the telephonic conference, Mr. Willadsen again announced
 that Respondent had decided to abandon the plan to absorb three
 temporary employees and was reverting to the original mandate from NASA
 to terminate five temporary employees.
 
    On or about June 26, 1981, temporary employees Charles Parker, Walter
 Eldridge, Joseph Mitchell, Shirley Shafer, and Dorothy Ehrke were
 terminated.
 
    Temporary employees Charles Parker, Walter Eldridge, Joseph Mitchell,
 and Shirley Shafer would not have been terminated at that time but for
 the intervention of Mr. Mays.
 
                        Discussion and Conclusions
 
    The General Counsel takes the position that the Respondent violated
 Section 7116(a)(1) when it announced on May 19, 1981, that it was
 rescinding the original planned disposition for the temporary drivers
 and would terminate five surplus temporary drivers rather than just two
 surplus temporary drivers.  Since the Respondent's action was admittedly
 caused by Union President Mays' criticism of the original termination
 plan, the General Counsel contends that Respondent's action made it
 clear to all of Respondent's employees that the utilization of the
 Union's assistance in future disputes would bring dire consequences.
 According to the General Counsel, Respondent's action in creating such
 an impression upon Respondent's employees was violative of Section
 7116(a)(1) of the Statute in that it coerced and restrained the
 employees in the exercise of their Section 7102 rights to form, join,
 and assist a labor organization, freely and without fear of penalty.
 
    The General Counsel does not contend that Respondent's action was
 violative of Sections 7116(a)(2) and (5) of the Statute.  Thus, the
 General Counsel acknowledges that the Respondent was under no obligation
 to bargain with Union concerning the temporary employees since they were
 not members of the recognized unit and that the temporary employees were
 not laid off or terminated because of any protected union activity.
 
    The Respondent on the other hand takes that position that its action
 did not violate Section 7116(a)(1) of the Statute.  In support of its
 position Respondent contends that inasmuch as the temporary employees
 were not in the recognized unit it was under no obligation to bargain
 with the Union over their conditions of employment.  Further, according
 to Respondent, the fact that the Union might have been appearing as the
 personal representative of the temporary drivers does not alter this
 conclusion, since concerted activity is not protected by the Statute.
 Finally, according to Respondent, inasmuch as the stipulation "provides
 inadequate evidence to support a finding of anti-union animus",
 Respondent's actions could not be said to have created a "chilling"
 effect on the bargaining unit employees.
 
    It is well established that employees have a right to form, join or
 assist a labor organization without fear of penalty or reprisal and that
 interference with such right is violative of Section 7116(a)(1) of the
 Statute.
 
    In the instant case Respondent, admittedly, terminated five rather
 than two temporary employees because it resented the Union President's
 attempted intrusion on its decision to select two temporary employees
 for termination without reference to either seniority or EEO
 considerations.
 
    Had the Union been acting in its capacity as exclusive representative
 of unit employees, the law is clear, that Respondent's action in
 rescinding the proposed plan would be violative of Section 7116(a)(1) of
 the Statute since such retaliatory action clearly conveyed to the
 employees, unit and non-unit alike, the impression and/or message that
 utilization of union representation or assistance could, and indeed did,
 result in dire economic consequences.  Pennsylvania Army and Air
 National Guard, A/SLMR No. 1085;  Department of Transportation, FAA,
 Airway Facilities Sector, Tampa, Florida, A/SLMR No. 725;  Army and Air
 Force Exchange Service (AAFES), Fort Carson, Colorado, 6 FLRA No. 108.
 
    However, such is not the case.  Mr. Mays was appearing not as the
 exclusive representative of the unit employees but rather apparently as
 the personnel representative of some of the temporary non-unit employees
 who were scheduled for termination.  In such circumstances, Respondent,
 as pointed out supra, would distinguish the rights accorded its
 employees and find no violation of the Statute.  I cannot agree.
 
    Employees, be they unit or non-unit employees, /5/ are accorded the
 right to form, join, and assist a labor organization freely and without
 fear of reprisal.  To the extent that such right is interfered with, a
 violation of Section 7116(a)(1) is established.  Neither a literal
 reading of the Statute, the legislative history, nor the case decisions
 under the Executive Order and the Statute, indicate that a distinction
 should be made when the union from which assistance is sought by an
 employee is not the exclusive representative of the employee in a
 recognized unit.  In fact the only distinction in this respect concerns
 the agency or activity's bargaining obligations, i.e. an agency is only
 obligated to bargain with a union when it is the exclusive
 representative in an appropriate unit.
 
    While an agency is under no obligation to bargain and in fact meet
 with a non-recognized or non-certified union except possibly as an
 employee's personal representative, it is not free to penalize employees
 because they have sought or accepted assistance from such union.  It is
 not the forum where remarks are made or actions taken which governs the
 illegality of such acts or remarks but rather the nature of such acts
 and remarks.  If the acts or remarks interfere with the rights accorded
 employees under the Statute then they are violative of Section
 7116(a)(1) irrespective of the forum or circumstances where uttered or
 taken.  /6/ To hold otherwise would result in sanctioning coercive or
 restraining statements or actions made by agencies during organizing
 campaigns, because, similar to the circumstances herein, the Union would
 not have at such time achieved the status of exclusive representative.
 
    Accordingly, to the extent that Respondent contends that the June 19,
 1981, meeting, was, at best, "concerted activity" and hence unprotected
 by the Statute, I find, in accordance with the above analysis, that
 irrespective of the nature of the meeting, Respondent is not relieved of
 liability for any statements or actions emanating therefrom which have
 the effect of interfering with its employees' statutory right.  /7/
 
    Further, again contrary to the contention of the Respondent, I find
 that when a statement and/or an action is by its very nature coercive
 and restraining, no independent evidence of union animus is necessary to
 sustain a violation of the Statute.  Here the very act, i.e.
 discontinuing the original termination plan and discharging five rather
 than two temporary drivers because of the Union's second guessing, is by
 its very nature coercive.
 
    Had Respondent discontinued or abandoned its plan because the Union
 had demonstrated possible deficiencies in such plan or for that matter
 any other legitimate reason, a different conclusion might well be in
 order.  However, such was not the case.  The stipulation clearly
 indicates that it was not the merits of the Union's objections to the
 plan which motivated Respondent's action but rather the Union's "second
 guessing".  In such circumstances Respondent not only interfered with
 the rights of Respondent's remaining employees to freely accept future
 representation by the Union but also penalized the four discharged
 temporary employees because of the Union's intervention on their behalf
 and deprived them of any future opportunity they may have had to seek
 union representation in connection with their respective working
 conditions with the Respondent.
 
    Having found and concluded that Respondent has violated Section
 7116(a)(1) of the Statute, I recommend that the Authority issue the
 following order designed to effectuate the purposes and policies of the
 Statute.  /8/
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7)(A) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and
 Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
 2423.29(b)(1), the Authority hereby orders that the General Services
 Administration Central Office, Region IV, Interagency Motorpool Kennedy
 Space Center shall:
 
    1.  Cease and desist from:
 
          (a) Terminating the employment of temporary employees Charles
       Parker, Walter Eldridge, Joseph Mitchell and Shirley Shafer
       because Local Union 2498, American Federation of Government
       Employees, AFL-CIO intervened on their behalf and challenged a
       management decision.
 
          (b) In any like or related manner, interfering with,
       restraining or coercing employees in the exercise of their rights
       guaranteed by the Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Make temporary employees Charles Parker, Walter Eldridge,
       Joseph Mitchell, and Shirley Shafer whole for any monies lost due
       to their terminations in retaliation for the intervention of Local
       Union 2498, American Federation of Government Employees, AFL-CIO,
       on their behalf.
 
          (b) Post at the General Service Administration Central Office,
       Region IV, Interagency Motorpool, Kennedy Space Center, Florida,
       copies of the attached notice marked "Appendix", on forms to be
       furnished by the Federal Labor Relations Authority.  Upon receipt
       of such forms they shall be signed by a responsible official of
       Region IV, General Services Administration and they shall be
       posted for 60 consecutive days thereafter in conspicuous place